IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 27TH MARCH 2009 / 6TH CHAITHRA 1931 WP(C).No. 14029 of 2008(T) -------------------------- PETITIONER(S): --------------- RAJAN K.PAUL, ASSISTANT ENGINEER (WORKS) P.W.D. BUILDINGS DIVISION, PALAKKAD. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO IRRIGATION & ADMINISTRATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CONVENOR DEPARTMENTAL PROMOTION COMMITTEE (H), KERALA PUBLIC WORKS DEPARTMENT, THIRUVANANTHAPURAM. 3. THE CHIEF ENGINEER IRRIGATION & ADMINISTRATION DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM. 4. THE DIRECTOR VIGILANCE & ANTI CORRUPTION BUREAU THIRUVANANTHAPURAM. GOVERNMENT PLEADER, SRI.ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: T.R. Ramachandran Nair, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.14029/2008-T ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 27th day of March, 2009 J U D G M E N T The petitioner herein is working as Assistant Engineer (Works), Palakkad. He joined service on 01/01/1987 and thereafter, was deputed to the Irrigation Department on working arrangement. The main relief sought for in the writ petition is to quash Ext.P10 reply given by the Government refusing the request of the petitioner for promotion on the ground that he is involved in vigilance case registered as C.C.No.44/2004 in the court of the Enquiry Commissioner and Special Judge, Kozhikode. 2. The petitioner is seeking promotion to the post of Assistant Executive Engineer. Ext.P8 will show that the Director of Vigilance and Anti-Corruption Bureau has communicated their no objection in considering him to the post of Assistant Executive Engineer. In Ext.P10 the view taken by the Government is that in the light of the provisions under Note (i) to Rule 28(b)(i)(7) of Part II K.S. & S.S.R officers against whom vigilance or departmental proceedings are taken after the charges have prima facie been established in a preliminary enquiry should not be included in the select list. 3. This Court in Sasidharan vs.State of Kerala [2008 (4) KLT 149] after interpreting the above rule has held that “embargo on inclusion of W.P.(C) No.14029/2008 -:2:- a person who faces a vigilance proceedings, from being included in the select list for promotion to a selection post would arise only after a charge sheet is drawn up by Vigilance Court”. It was further held that “it would be grossly arbitrary and violative of Art.14 of the Constitution of India, if embargo as contemplated by the note is applied at all times after the registration of the vigilance case”. In the light of the above dictum, the petitioner is entitled to succeed. Ext.P10 is quashed. The first respondent is directed to reconsider his claim for promotion in the light of the dictum laid down in Sasidharan's case [2008 (4) KLT 149] (supra). 4. The learned Senior Counsel appearing for the petitioner submits that so far charge sheet has not been submitted in the above criminal case. Therefore, the respondents 1 and 2 will take action and pass appropriate orders within two months from the date of receipt of the copy of this judgment. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms