IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 7TH NOVEMBER 2008 / 16TH KARTHIKA 1930 WP(C).No. 12961 of 2008(R) -------------------------- PETITIONER(S): --------------- K.S.BALAKRISHNAN, SPECIAL GRADE SECRETARY, VADAKKANCHERY PANCHAYAT, PALAKKAD DISTRICT. BY ADV. SRI.S.RAMESH BABU RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DEPARTMENTAL PROMOTION COMMITTEE (LOWER) REPRESENTED BT ITS CONVENOR-DIRECTOR OF PANCHAYAT, PANCHAYAT DEPARTMENT,DIRECTORATE OF PANCHAYATS, THIRUVANANTHAPURAM. 3. SMT.P.S.SOBHA, PERFORMANCE AUDIT UNIT-II PANCHAYAT DEPARTMENT, KOZHIKODE. GOVERNMENT PLEADER FOR R2 SRI.P.NANDAKUMAR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N.RAVINDRAN, J. ------------------------------- W.P.(C) No.12961 of 2008 ------------------------------- Dated this the 7th November, 2008. J U D G M E N T The petitioner who is presently working as Special Grade Secretary in the Vadakkanchery Grama Panchayat in Palakkad District has filed this Writ Petition aggrieved by his supercession for promotion to the category of Senior Superintendent in the Local Self Government Department. The brief facts of the case are as follows: 2. While the petitioner was working as Special Grade Secretary in the Vadakkanchery Grama Panchayat, the Director of Panchayats issued Ext.P1 communication dated 15.7.2006 to all Deputy Directors of Panchayats calling for the confidential reports of 87 Special Grade Secretaries including the petitioner, for the purpose of preparing the select list of Special Grade Secretaries eligible for promotion to the category of Senior Superintendent. In the list appended to Ext.P1, the petitioner is ranked as Sl.No.3. Pursuant to Ext.P1, the confidential reports of W.P.(C) No.12961 of 2008 2 the petitioner for the years 2003 to 2005 were forwarded to the Convenor of the Departmental Promotion Committee. True copies of the confidential reports for the years 2003 to 2005 are produced and marked as Exts.P2, P2(a) and P2(b) and the confidential reports for the year 2006 are produced in two parts and marked as Exts.P2 (c) and P2(d). They disclose that in respect of 10 factors, the petitioner was given Grade-A, that is “excellent”, in respect of 2 factors, Grade-B that is “very good” in respect of 6 factors and Grade-C that is “satisfactory” in respect of 2 factors, for all the years. However, the Departmental Promotion Committee decided not to select the petitioner. Ext.P4, the minutes of the meeting of the Departmental Promotion Committee held on 12.9.2007 to select officers eligible for promotion as Senior Superintendent, discloses that while assessing the suitability of the petitioner, the Departmental Promotion Committee proceeded on the basis that vigilance case/ disciplinary action is pending against him. In other words, the petitioner's case was considered as if he is an officer against whom vigilance/disciplinary proceeding was pending. Evidently, W.P.(C) No.12961 of 2008 3 because of the said fact, the petitioner's name did not find a place in select list for the year 2006 published by the Government. The petitioner's juniors were selected and they were promoted to the category of Senior Superintendent by Ext.P3 order dated 27.9.2007 issued by the Director of Panchayats. Smt.P.S.Sobha, the third respondent herein, who is admittedly junior to the petitioner, is one among the promotees. 3. Aggrieved by his supercession, the petitioner moved the Convenor of the Departmental Promotion Committee by filing Ext.P5, a statutory representation under Rule 28(b)(i) (8)(a) of Part II of the K.S. & S.S.R., pointing out that except a memo of charges issued on 4.8.2001 alleging excess payment of the sum of Rs.675/- for the maintenance work of a road during the year 1990-91, no disciplinary action/vigilance case is pending against him and that he was illegally superceded. He thereafter filed W.P.(C) No.32010 of 2007 in this Court. By Ext.P6 judgment delivered on 29.10.2007, this Court directed the second respondent, the Convenor of the Departmental Promotion W.P.(C) No.12961 of 2008 4 Committee to consider the grievance voiced by the petitioner in Ext.P5 (marked as Ext.P3 in the aforesaid writ petition) and take a decision thereon, within one month from the date of receipt of a copy of the judgment. As directed in Ext.P6 judgment, an Adhoc Departmental Promotion Committee was constituted and it met on 31.12.2007. The Adhoc Departmental Promotion Committee considered the case of the petitioner and some others and after noticing that the petitioner has been exonerated in the disciplinary proceedings, decided not to include him in the select list for the year 2006, for the reason that his confidential records were not satisfactory. The relevant portion of the minutes, a copy of which is Ext.P8, reads as follows:- “Though the disciplinary actions initiated against Sri.K.S.Balakrishnan and Sri.T.S.Parameswaran were seen finalised by exonerating them of the charges, the Committee found the confidential reports of Sri.K.S.Balakrishnan and Sri.T.S.Parameswaran not satisfactory and hence decided not to include them in the Select List 2006. Smt.T.Thankamany and Smt.A.K.Sudhamma against whom disciplinary actions are still pending were also considered for inclusion in the Select List 2006.” W.P.(C) No.12961 of 2008 5 4. A reading of Ext.P8 indicates that though initially the petitioner was superceded on the ground that disciplinary action was pending against him, the Adhoc Departmental Promotion Committee decided to supercede the petitioner on the ground that his confidential reports were not satisfactory. In the light of the decision taken by the Adhoc Departmental Promotion Committee, the Director of Panchayats informed the petitioner in Ext.P7 letter dated 4.2.2008 that he has not been found fit for promotion by the Departmental Promotion Committee, and, therefore, a decision has been taken not to include him in the select list of Special Grade Secretaries eligible for promotion to the category of Senior Superintendent for the year 2006. In this Writ Petition, the petitioner challenges Exts.P4, P7 and P8 and prays for the following reliefs:- i) Issue a writ of certiorari calling for the records leading upto Ext.P4, P7 and P8 and quash the same to the extent that it excludes the petitioner from the select list Ext.P4 and rejects his representation against such exclusion. W.P.(C) No.12961 of 2008 6 ii) Issue a writ of certiorari calling for the records leading upto Ext.P3 and quash the same to the extent that the petitioner is not included as Sl.No.3 therein immediately above the third respondent; iii) Issue a writ of mandamus commanding the first and 2nd respondents to include the petitioner in Ext.P4 select list and to give him retrospective promotion in tune with Ext.P3 by placing him immediately above the third respondent in the matter of such promotion with all service and other monetary benefits. 5. I have heard Sri.S.Ramesh Babu, the learned counsel appearing for the petitioner and Sri.P.Nandakumar, the learned Government Pleader appearing for the respondents. Though notice has been served on the third respondent, there was no appearance on her behalf. The learned counsel appearing for the petitioner contends that the Departmental Promotion Committee initially superceded the petitioner on the ground that disciplinary action/vigilance case was pending against him as can be seen from Ext.P4 minutes, wherein the petitioner was grouped along with officers against whom disciplinary action/vigilance case was pending. He further submits that at that point of time, the W.P.(C) No.12961 of 2008 7 Departmental Promotion Committee did not supercede the petitioner on the ground that his confidential reports were not satisfactory, but only for the reason that he was grouped along with officers against whom vigilance case/disciplinary action was pending. He further submits that when the petitioner's case was reconsidered, the Departmental Promotion Committee ignored the entries in the confidential reports and decided to stick to its earlier decision to supercede him stating that his confidential reports are not satisfactory. The learned counsel also submits relying on the entries in Exts.P2 to P2(d), copies of the confidential reports, that the assessment of merit made by the Departmental Promotion Committee was rested on extraneous and irrelevant considerations and was not based on the entries in the confidential reports. The Departmental Promotion Committee did not assess the petitioner's merit and suitability on the materials before it, but on extraneous considerations, it is submitted. Per contra, the learned Government Pleader contends, relying on the counter affidavit dated 7.8.2008 sworn to by the second respondent that the Departmental Promotion Committee W.P.(C) No.12961 of 2008 8 decided to supercede the petitioner as his confidential reports were not satisfactory as he was graded in 'C' category continuously for three years. 6. I have considered the submissions made at the Bar by the learned counsel appearing on either side. It is evident from Ext.P4 minutes that when the select list of officers eligible for promotion to the post of Senior Superintendent for the year 2006 was prepared, the petitioner was superceded on the short ground that disciplinary action/vigilance case was pending against him. As a matter of fact, it is now admitted that the petitioner was exonerated in the disciplinary proceedings. When the petitioner's eligibility for promotion was first assessed by the Departmental Promotion Committee on 12.9.2007, the petitioner was grouped along with officers against whom departmental action/vigilance case was pending and superceded. At that time, the Departmental Promotion Committee did not form the opinion that the confidential reports of the petitioner for the relevant years were not satisfactory. In other words, there W.P.(C) No.12961 of 2008 9 was no assessment of the merit and suitability of the petitioner by the Departmental Promotion Committee, when it met for the first time on 12.9.2007. Merely for the reason that they thought that the departmental action initiated against the petitioner has not been finalised, the Departmental Promotion Committee did not consider the petitioner's case. Later, on review, the Departmental Promotion Committee came to the conclusion that though the petitioner has been exonerated of the charges, his confidential reports for the relevant years were not satisfactory. 7. In the light of the facts stated above, the only question that arises for consideration is whether the supercession of the petitioner on the grounds stated in Ext.P8 is sustainable or not. The confidential reports of the petitioner for the period 2003-2006, are on record as Exts.P2 to P2(d). They disclose that there are no adverse remarks about the conduct or performance of the petitioner. In fact, the confidential reports discloses that in respect of 10 factors which are relevant, the petitioner has Grade-A for 2 factors, Grade-B in respect of 6 W.P.(C) No.12961 of 2008 10 factors and Grade-C in respect of 2 factors, uniformly for the period from 2003-06. Grade-A indicates that work and performance of the employee is excellent, Grade-B indicates that it very good and Grade-C indicates that it is satisfactory. Though the official respondents have filed a counter affidavit, they have not disputed the authenticity and genuineness of Exts.P2 to P2(d) or the correctness of the entries therein. In other words, they admit the entries made in Exts.P2 to P2(d). Therefore, in the light of the entries in Exts.P2 to P2(d), I find no logic behind the finding recorded by the Departmental Promotion Committee in Ext.P8 minutes that the confidential reports of the petitioner were not satisfactory. On the materials on record, I am persuaded to take a view that the Departmental Promotion Committee did not bestow serious attention to the claims of the petitioner and have invented reasons to deny him promotion to higher post. In the facts and circumstances of the case, I therefore hold that the supercession of the petitioner for promotion to the post of Senior Superintendent for the year 2006 was per se arbitrary and illegal. W.P.(C) No.12961 of 2008 11 10. In the result, the writ petition is allowed and the following directions are issued. The decision taken by the Departmental Promotion Committee to supercede the petitioner is quashed. It is declared that the petitioner is eligible to be included in the select list of Special Grade Secretaries eligible for promotion to the post of Senior Superintendent for the year 2006. The respondents shall take steps to include his name in the select list of officers for the year 2006 eligible to be promoted to the category of Senior Superintendent immediately above the third respondent. Since the petitioner is due to retire from service on 30.11.2008, the directions given above shall be implemented before the expiry of the said date, and consequential orders shall also be issued immediately thereafter. It is further declared that the petitioner will be entitled to all service benefits including salary and allowances as also consequential pensionary benefits by treating him as an officer who ought to have been included in the select list for promotion to the post of Senior Superintendent for the year 2006 and promoted as Senior Superintendent along with his junior W.P.(C) No.12961 of 2008 12 Smt.P.S.Shobha, who was promoted as per Ext.P3 order dated 27.9.2007. P.N.RAVINDRAN, JUDGE nj.