IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 7TH SEPTEMBER 2011 / 16TH BHADRA 1933 WP(C).No. 24501 of 2011(K) ---------------------------------- PETITIONER(S): ------------------- P.SASIDHARAN,ASSISTANT EXECUTIVE ENGINEER,P.W.D.BUILDINGS SUB DIVISION, WADAKKANCHERRY,THRISSUR DISTRICT. BY ADVS. SRI.ELVIN PETER P.J. SRI.T.G.SUNIL (PRANAVAM) SRI.K.R.GANESH RESPONDENT(S): -------------------- 1. STATE OF KERALA-REPRESENTED BY THE SECRETARY TO GOVERNMENT,PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER(ADMINISTRATION), PUBLIC WORKS DEPARTMENT,THIRUVANANTHAPURAM. 3. THE DEPARTMENTAL PROMOTION COMMITTEE (HIGHER)FOR PREPARING THE SELECT LIST OF ASSISTANT EXECUTIVE ENGINEERS FORPROMOTION TO THE POST OF EXECUTIVE ENGINEER,REPRESENTED BY ITS CONVENOR,SECRETARY TOGOVERNMENT,PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY GOVT. PLEADER SRI.L.G.SURESH BABU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 24501/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF GOVERNMENT ORDER DATED 16/08/2011. P2: COPY OF THE LIST OF ASSISTANT EXECUTIVE ENGINEERS, WHO ARE IN THE ZONE OF CONSIDERATION FOR PROMOTION TO THE POST OF EXECUTIVE ENGINEER. P3: COPY OF FOVERNMENT ORDER DATED 15/03/2011. P4: COPY OF THE SELECT LIST OF EXECUTIVE ENGINEERS FOR PROMOTION TO THE POST OF SUPERINTENDING ENGINEERS. P4(a):COPY OF THE SELECT LIST OF EXECUTIVE ENGINEERS FOR PROMOTION TO THE POST OF SUPERINTENDING ENGINEERS PUBLISHED IN THE GAZETTE. P5: COPY OF GOVERNMENT ORDER DATED 22/02/2011. P5(a):COPY OF GOVERNMENT ORDER DATED 22/02/2011. P5(b):COPY OF THE REPLY DATED 24/03/2011 ISSUED TO THE PETITIONER BY THE VIGILANCE & ANTI CORRUPTION DEPARTMENT. P6: COPY OF THE DECISION OF THIS HONOURABLE COURT REPORTED IN 2008 (4) KLT 149. P7: COPY OF THE ORDER DATED 29/04/2005 ISSUED BY THE GOVERNMENT. P8: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 19/08/2011. P9: COPY OF THE JUDGMENT IN WRIT PETITION NO.5062/2009 OF THIS HONOURABLE COURT DATED 16/02/2009. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NO.24501 OF 2011 -------------------------------------------- Dated this the 7th day of September, 2011 JUDGMENT The petitioner is presently working as Assistant Executive Engineer in the Buildings Sub Division of the Public Works Department at Wadakkancherry. Since the petitioner was sufficiently senior, his name was included in Ext.P2 list and the said list was placed for consideration before the Departmental Promotion Committee. However, the Departmental Promotion Committee, after making assessment, excluded the name of the petitioner while preparing the select list for promotion to the post of Executive Engineer. His non-inclusion in the select list was on the ground that a punishment of barring of one increment with cumulative effect was imposed on him and further that vigilance case No.5 of 2007 was registered against him before the Court of Enquiry Commissioner and Special Judge Thrissur. The petitioner contends that originally, a punishment of barring of one increment without cumulative effect was imposed on him after conducting an enquiry based on the memo of charges issued on 31.8.2009. However, in appeal, the said punishment was modified as one of censure. There cannot be any doubt with respect to the W.P.(C) NO.24501 of 2011 2 position that in the light of Note (v) to Rule 28(b)(i)(7) of Part II of Kerala State & subordinate Services Rules, the punishment of censure could not have been taken into account while considering the petitioner's case for promotion. Relying on the decision of this court in Sasidharan v. State of Kerala reported in 2008 (4) KLT 149, it is further contended that since no charge sheet was framed by the Court of Enquiry Commissioner and Special Judge, Thrissur, the mere registration of the case also could not have been taken into account for excluding the petitioner from the select list. On being aggrieved by non-inclusion of his name in the select list for promotion to the post of Executive Engineer, the petitioner has preferred Ext.P8 representation before the Government. The petitioner has taken all the aforesaid contentions in Ext.P8. It is contended that in the light of the decision of this Court in Radha Krishna Pillai v.State of Kerala & others reported in 1984 KLT 693, the Government are duty bound to consider Ext.P8 representation, on merits, before approving the select list. To fortify the said contention, the petitioner relies on Ext.P9 judgment of this Court in W.P.(C).No.5062 of 2009, as well. 2. I have heard the learned counsel for the petitioner and also the learned Government Pleader. 3. Evidently, the non-inclusion of the petitioner in the select list prepared by the Departmental Promotion Committee for promotion to the W.P.(C) NO.24501 of 2011 3 post of Executive Engineer in the Public Works Department was on account of the aforesaid reasons. As already noticed hereinbefore, a punishment of barring of one increment without cumulative effect was subsequently modified as one of censure. The specific contention of the petitioner is that the Court of Enquiry Commissioner and Special Judge Thrissur has not framed charge against the petitioner in vigilance case No.5 of 2011and therefore, in the light of the decision of this Court in Sasidharan's case (supra), the mere registration of the said vigilance case could not have been taken into account for excluding the petitioner from the select list. In view of the said decision as also in view of the decision of this Court in Radha Krishna Pillai's case (supra), I am of the view that the Government are bound to consider Ext.P8 representation submitted by the petitioner raising grievances against non-inclusion of his name in the select list before approving the select list. In the said circumstances, this Writ Petition is disposed of with a direction to the first respondent to consider Ext.P8 representation and pass appropriate orders thereon, on merits, before the select list is approved. (C.T. RAVIKUMAR, JUDGE) spc W.P.(C) NO.24501 of 2011 4 C.T. RAVIKUMAR, J. JUDGMENT September, 2010 W.P.(C) NO.24501 of 2011 5