IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 7TH JANUARY 2008 / 17TH POUSHA 1929 WP(C).No. 33962 of 2006(R) ------------------------------------ PETITIONER: ------------------- S. SAJI, DEPOT ENGINEER, K.S.R.T.C., VIZHINJAM DEPOT., VIZHINJAM, THIRUVANANTHAPURAM DIST. BY ADV. SRI.ELVIN PETER P.J. RESPONDENTS: ---------------------- 1. KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, THIRUVANANTHAPURAM, REPRESENTED BY ITS CHAIRMAN-CUM-MANAGING DIRECTOR. 2. THE CHAIRMAN-CUM-MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, THIRUVANANTHAPURAM. 3. THE DEPARTMENTAL PROMOTION COMMITTEE, KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, THIRUVANANTHAPURAM, REPRESENTED BY ITS CHAIRMAN. 4. V.J. SAJU, ASST.WORKS MANAGER, KSRTC, EDAPPAL (TYRES),EDAPPAL 5. RAJAN MUNDAYIL, ASST. WORKS MANAGER, KSRTC, KOZHIKODE. 6. EASTER YASHIK, PUMBA SPECIAL OFFICER, K.S.R.T.C, PUMBA, PATHANAMTHITTA DIST. 7. K.G.SUDHEER, ASST.WORKS MANAGER, KSRTC,THIRUVANANTHAPURAM CENTRAL, THIRUVANANTHAPURAM. 8. P.T. PADMALAL, ASST. WORKS MANAGER, KSRTC R/W, KOZHIKODE. W.P.(C) NO.33962/2006 9. A. DAVID, ASST.WORKS MANAGER, KSRTC, CENTRAL WORKS, PAPPANAMCODE, THIRUVANANTHAPURAM. 10. M. ISAAC MATHEW, ASST.WORKS MANAGER, KSRTC,THIRUVANANTHAPURAM CITY, THIRUVANANTHAPURAM. ADDL.R11 IMPLEADED ADDL.R11:- STATE OF KERALA, REP.BY THE SECRETARY TO GOVERNMENT TRANSPORT DEPT., GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. IS IMPLEADED AS ADDL. R11 AS PER ORDER DT. 5.2.07 IN IA. 1540/07. BY ADV. SHRI.JOHNSON P.JOHN, SC, KSRTC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.33962/2006 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE ORDER DT. 98.9.05 ISSUED BY THE KSRTC. EXT.P2:- COPY OF THE ORDER DT. 5.11.0P5 ISSUED BY THE KSRTC. EXT.P3:- COPY OF THE JUDGMENT DT. 15.6.06 IN WPC. 15405/06 OF THIS HONOURABLE COURT. EXT.P4:- COPY OF THE ORDER DT. 1.2.7.06 ISSUED BY THE KSRTC. EXT.P5:- COPY OF THE ORDER DT. 26TH SEPT. 2006 ISSUED BY THE KSRTC. EXT.P6:- COPY OF THE ORDER DT. 8.1.07 ISSUED BY THE GOVERNMENT. EXT.P7:- COPY OF THE CIRCULAR DT. 24.2.75 ISSUED BY THE GOVT. EXT.P8:- COPY OF THE CIRCULAR DT. 21.3.74 ISSUED BY THE GOVERNMENT. EXT.R1(a):- COPY OF THE ORDER DT. 26.9.06. /TRUE COPY/ P.A. TO JUDGE tss S.SIRI JAGAN, J. ====================== W.P.(C).No.33962 of 2006 ====================== Dated this the 7th day of January, 2008 J U D G M E N T The petitioner entered the service of the Kerala State Road Transport Corporation as an Assistant Depot Engineer in 1995. In the year 2000, disciplinary proceedings were initiated against him in respect of certain misconducts involving loss to the Corporation. Originally he was imposed with the punishment of barring of increments. In appeal it was converted into censure with recovery of an amount of Rs.9000/- as loss caused to the Corporation on account of his misconduct. Later on, it appears that, taking into account this punishment, the petitioner was overlooked for promotion as Depot Engineer and several of his juniors were promoted ahead of the petitioner to that post. The petitioner was promoted as Depot Engineer only with effect from 5.11.2005. The petitioner approached this court seeking restoration of his seniority as originally obtaining prior to his punishment. This court, by Ext.P3 judgment, directed the Corporation to consider his claim. Ext.P5 order was passed holding that since his juniors were selected from a select list prior to his promotion as Depot Engineer on 5.11.2005, he is not w.p.c.33962/06 2 eligible for restoration of his original seniority. This was confirmed by the Government in Ext.P6. In the meanwhile, eight of his juniors were promoted as Assistant Works Manager who were promoted as Depot Engineer earlier to the petitioner, as per Ext.P4 order. The petitioner is challenging Exts. P4, P5 and P6 orders in this writ petition. 2. The petitioner's contention is that in so far as the punishment of barring of promotion is one of the punishments prescribed under the Kerala Civil Services (Classification, Control and Appeal) Rules and the petitioner has not been imposed with a punishment of barring of promotion, he could not have been overlooked for promotion as Depot Engineer based on the punishment of censure and recovery of loss, and therefore, he should be considered for promotion to the post of Assistant Works Manager as per his original seniority prior to the disciplinary proceedings. The petitioner also relies on the decision of the Supreme Court in UNION OF INDIA AND OTHERS v. K.V.JANKIRAMAN AND OTHERS [(1991) 4 SCC 109]. 3. The learned Standing Counsel appearing for the KSRTC w.p.c.33962/06 3 submits that although the punishment of barring of promotion has not been imposed on the petitioner, the Corporation was entitled to take into account that punishment also while considering the comparative merits of the eligible candidates for promotion to the post of Depot Engineer, which is a selection post, which only has been done by the Corporation. Therefore, once he has been overlooked for the selection post of Depot Engineer, he cannot get his seniority restored as obtaining prior to his disciplinary proceedings. 4. I have considered the rival contentions in detail. 5. I am of opinion that simply because the punishment of barring of promotion has not been imposed on the petitioner, the Corporation is not disentitled to take into account the punishment also while assessing the comparative merit among the eligible candidates in the feeder category for the purpose promotion. In fact eight juniors mentioned in Ext.P4 had been promoted in the post of Depot Engineer ahead of the petitioner, since on assessment of comparative merit, they were found to be more meritorious than the petitioner for the post of Depot Engineer. w.p.c.33962/06 4 Therefore, the petitioner was overlooked in the earlier selection to the post of Depot Engineer and the petitioner was selected only subsequently and appointed on 5.11.2005. Such taking into account the punishment imposed on the petitioner does not amount to imposition of barring of promotion on the petitioner. The petitioner has not challenged those promotions also. According to me, that is exactly what has been approved in the decision of JANKIRAMAN 's case (supra). Paragraph 29 of the said judgment, which reads as follows, is clear in this regard. “29. According to us, the Tribunal has erred in holding that when an officer is found guilty in the discharge of his duties, an imposition of penalty is all that is necessary to improve his conduct and to enforce discipline and ensure purity in the administration. In the first instance, the penalty short of dismissal will vary from reduction in rank to censure. We are sure that the Tribunal has not intended that the promotion should be given to the officer from the original date even when penalty imparted is of reduction in rank. On principle, for the same reasons, the officer cannot be rewarded by promotion as a matter of course even if the penalty is other than that of the reduction in rank. An employee has no right to promotion. He has only a right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circumstances. To qualify for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests. An employee found guilty of a misconduct cannot be placed on par with the other employees and his case has to be treated differently. There is, therefore, no discrimination when in the matter of promotion, he is treated differently. The least that is expected of any administration is that it does not reward an employee with promotion retrospectively from a date when for his conduct before that date he is penalised in praesenti. When an employee is w.p.c.33962/06 5 held guilty and penalised and is therefore, not promoted at least till the date on which he is penalised, he cannot be said to have been subjected to a further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct. In fact, while considering an employee for promotion his whole record has to be taken into a consideration and if a promotion committee takes the penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified. If, further, the promoting authority can take into consideration the penalty or penalties awarded to an employee in the past while considering his promotion and deny him promotion on that ground, it will be irrational to hold that it cannot take the penalty into consideration when it is imposed at a later date because of the pendency of the proceedings, although it is for conduct prior to the date the authority considers the promotion. For these reasons, we are of the view that the Tribunal is not right in striking down the said portion of the second sub-paragraph after clause (iii) of paragraph 3 of the said Memorandum. We, therefore, set aside the said findings of the Tribunal.” In fact that decision is against the petitioner's case. Therefore, I am satisfied that the petitioner is not entitled to claim seniority over the persons promoted ahead of him in the cadre of Depot Engineer for the purpose of subsequent promotion as Asst. Works Manager as claimed by him now. Therefore, I do not find any merit in the challenge against Exts. P4, P5 and P6. 6. However, the counsel for the petitioner submits that now there are vacancies of Assistant Works Manager and he may be considered for promotion to those vacancies. I am of opinion that that is a reasonable request. As and when the respondents intend to make promotion to any vacancies of Assistant Works w.p.c.33962/06 6 Manager hereinafter, the petitioner shall also be considered in accordance with his present seniority in the cadre of Depot Manager, and merits, since the same is also a selection post. With the above observations this writ petition is disposed of. sdk+ S.SIRI JAGAN, JUDGE