IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 31ST OCTOBER 2011 / 9TH KARTHIKA 1933 WP(C).No. 30788 of 2010(W) -------------------------- PETITIONER: --------------- M.P.VARGHESE, DEPUTY EXCISE COMMISSIONER, IDUKKI. BY ADV. MR. ELVIN PETER P.J. MS. POOJA SURENDRAN RESPONDENTS: --------------- 1. STATE OF KERALA,REPRESENTED BY THE SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001 2. THE COMMISSIONER OF EXCISE, COMMISSIONERATE OF EXCISE,THIRUVANANTHAPURAM PIN 695001 3. E.SHIHABUDEEN, JOINT COMMISSIONER OF EXCISE, EXCISE INTELLIGENCE,THIRUVANANTHAPURAM PIN 695001 BY GOVERNMENT PLEADER MR. A. P. JOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(c) NO. 30788 OF 2010 APPENDIX PETITIONER'S EXHIBITS : EXT. P1 : TRUE COPY OF THE JUDGMENT DATED 20.02.2003 IN O.P. NO. 1158/2002 OF THIS HON'BLE COURT. EXT. P2 : TRUE COPY OF THE SELECT LIST PUBLISHED AS PER NOTIFICATION DATED 24.06.2003 EXT. P3 : TRUE COPY OF THEORDER DATED 15.07.2003 ISSUED BY THE GOVERNMENT. EXT. P4 : TRUE COPY OF THE ORDER DATED 27.04.2004 ISSUED BY THE GOVERNMENT. EXT. P5 : TRUE COPY OF THE SELECT LIST PUBLISHED AS PER NOTIFICATION DATED 27.04.2007 EXT. P6 : TRUE COPY OF THE ORDER DATED 20.04.2009 ISSUED BY THE GOVERNMENT. EXT. P6(a) : TRUE COPY OF THE ORDER DATED 24.12.2008 ISSUED BY THE GOVERNMENT. EXT. P7 : TRUE COPY OF THE ORDER G.O. DATED 09.04.2010 ISSUED BY THE GOVERNMENT. EXT. P8 : TRUE COPY OF THE MEMO OF CHARGES DATED 29.10.07 ALONG WITH THE STATEMENT OF ALLEGATIONS ISSUED BY THE GOVERNMENT. EXT. P9 : TRUE COPY OF THE JUDGMENT DATED 30.03.2010 IN W.P.(C) NO. 9744/2010 OF THIS HON'BLE COURT. EXT. P10 : TRUE COPY OF THE ORDER, GO. DATED 11.05.2010 ISSUED BY THE GOVERNMENT. EXT. P11 : TRUE COPY OF THE REPRESENTATION DATED 02.06.2010 SUBMITTED BY THE PETITIONR BEFORE THE 1ST RESPONDENT. EXT. P12 : TRUE COPY OF THE JUDGMENT DATED 14.06.2010 IN W.P.(C) NO. 18306 OF 2010 OF THIS HON'BLE COURT. EXT. P13 : TRUE COPY OF THE ORDER DATED 13.07.2010 ISSUED BY THE 1ST RESPONDENT. EXT. P14 : TRUE COPY OF ORDER, G.O. DATED 30.10.2008 ISSUED BY THE 1ST RESPONDENT. EXT. P15 : TRUE COPY OF THE ORDER, G.O. DATED 24.09.2010 ISSUED BY THE GOVERNMENT. W.P.(C) 30788 OF 2010 :2: EXT. P16 : TRUE COPY OF THE COMMUNICATION DATED 07.10.2010 ISSUED BY THE 2ND RESPONDENT. EXT. P17 : TRUE COPY OF COMMUNICATION DATED 19.05.2011 ISSUED BY THE 2ND RESPONDENT TO THE 1ST PETITIONER. /TRUE COPY/ P.A. TO JUDGE P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P (C) No . 30788 of 2010 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 31st day of October, 2011 JUDGMENT The petitioner is challenging the correctness and sustainability of Ext. P13 order, whereby the claim of the petitioner for promotion to the post of Deputy Excise Commissioner w.e.f. 24.12.2008 has been declined, confining the relief only prospectively. The petitioner is also aggrieved of the denial of his claim for promotion as Joint Excise Commissioner, in preference to the 3rd respondent, as per Ext. P15 order. 2. The sequence of events is as follows : The petitioner joined the service as Excise Inspector, pursuant to the advice made by the PSC, as per order dated 16.09.1983. Though the 3rd respondent was also advised by the PSC by the very same advice memo, the petitioner was assigned seniority in front of the 3rd respondent and the said seniority was being maintained in the promoted post of Circle Inspector of Excise as well. But when the select list prepared in respect of the Assistant Commissioner, Excise, the petitioner was placed below the 3rd respondent at serial No.3. It was challenged by availing statutory remedy under Rule 28 (b) (i) (8) W.P. (C) No. 30788 of 2010 : 2 : (a) KS & SSR, but the same initially did not turn to be fruitful. Pursuant to the intervention made by this Court as per Ext. P1 verdict, the seniority of the petitioner was restored and the petitioner was placed above the 3rd respondent in the list of eligible persons to be considered for promotion as the Assistant Excise Commissioners as borne by Ext. P2 revised list. The petitioner was subsequently promoted as Assistant Excise Commissioner as per Ext. P3 order and the probation was declared vide Ext. P4. Later, when it came to the promotion to the post of Deputy Excise Commissioner, the petitioner was shown at Sl. No. 5 in Ext. P5 select list, wherein the 3rd respondent was nowhere. In spite of inclusion of the petitioner in Ext. P5 selection list, he was never given promotion to the post of the Deputy Commissioner, in view of the pendency of the disciplinary proceedings and the proceedings before the Vigilance Tribunal, Trivandrum. 3. While so, the third respondent was promoted as per Ext P6 order dated 20.04.2009 w.e.f. 24.12.2008, which was the date of promotion given to the immediate junior of the 3rd respondent vide Ext. P6(a). The third respondent was given further promotion on provisional basis under Rule 31 (a) (i) of the KS & SSR as Joint Commissioner as per Ext. P7 order dated 09.04.2010 and it is W.P. (C) No. 30788 of 2010 : 3 : contended that the said promotion can only be a provisional promotion, being an ex-cadre post. In pursuance to the disciplinary proceedings against the petitioner, he was served with Ext. P8 memo of charges and on completion of the proceedings, the Vigilance Tribunal submitted the eqnuiry report, virtually exonerating the petitioner from all the charges. Thereafter, the petitioner approached this Court by filing W.P(C) No. 9744 of 2010, which was disposed of as per Ext. P9 judgment, directing the Government to consider the report submitted by the Vigilance Tribunal and to pass final orders with regard to the issue within the time as specified therein. In compliance with the said direction, the matter was considered by the Government and as per Ext. P10 order dated 11.05.2010 he was exonerated from all the charges. 4. Having exonerated from the charges, the petitioner submitted Ext. P11 representation before the first respondent for consequential benefits, which was ordered to be considered as directed by this Court vide judgment dated 14.06.2010 in W. P. (C) No. 18306 of 2010. As obvious from Ext. P12, it was observed by this Court, that the petitioner having been completely exonerated from the charges levelled against him, the claim of the petitioner was to be considered in accordance with Note 3 to Rule 28 (b) (i) (7) of the K.S. & S.S.R. and it was accordingly, W.P. (C) No. 30788 of 2010 : 4 : that the matter was considered by the Government leading to Ext. P13 order promoting the petitioner as Deputy Commissioner of Excise, however, without any regard to the claim of the petitioner to have retrospective promotion w.e.f. 24.12.2008, the date of promotion of his junior. So also, the claim of the petitioner for promotion to the post of Joint Commissioner, which is not included in the Special Rules, being an ex cadre post, to which promotion could be made only on provisional basis as per Rule 31 (a) (i) of K.S. & S.S.R, was also not considered; which made the petitioner to approach this Court, raising the challenge on many a ground. 5. During the pendency of the Writ Petition, the claim of the petitioner for promotion as Joint Commissioner was considered and rejected as per Ext. P15 order dated 29.04.2010, wherein the reason stated is that, the petitioner has not satisfactorily completed the probation in the cadre of Deputy Commissioner Excise and as such the said claim cannot be acceded to. The petitioner challenges Ext. P15 order as well, by amending the Writ Petition, stating that by virtue of the mandate under Ext. P14 and the relevant Rule position, the post of the Joint Commissioner does not come within the purview of the Special Rules and the said post could have been filled up only by way of W.P. (C) No. 30788 of 2010 : 5 : provisional promotion. Contention is that, since the seniority of the petitioner over the 3rd respondent stands settled, the 3rd respondent is liable to be reverted and the petitioner is to be given promotion as Joint Commissioner, Excise. 6. A counter affidavit has been filed from the part of the first respondent, virtually reiterating the stand already taken. It is stated that the petitioner could not be given promotion as Deputy Commissioner Excise earlier, only because of the pendency of the disciplinary proceedings (paragraph 4). Similarly, it is stated in paragraph 7 that promotion to the post of Joint Commissioner cannot be given for the fact that the petitioner has not satisfactorily completed the period of probation in the cadre of Deputy Commissioner Excise and hence that there is no merit in the case. 7. Heard the learned counsel for the petitioner and the learned Government Pleader at length. 8. With regard to the claim of the petitioner to have promoted w.e.f. 24.12.2008, it was the date on which promotion was given to the junior of the petitioner (the 3rd respondent), who was ordered to be promoted from the date of promotion given to the latter's junior, as borne by Exts. P6 and P6 (a). The seniority position of the petitioner W.P. (C) No. 30788 of 2010 : 6 : over the third respondent stands concluded by virtue of various proceedings as already mentioned hereinbefore. There is also no dispute that the disciplinary proceedings initiated against the petitioner have attained finality on exoneration from all the charges as borne by Ext. P10. In the said circumstances, this Court finds that, there is no rationale for having denied promotion to the petitioner from 24.10.2008, the date of promotion of his junior - the 3rd respondent. It is ordered accordingly. 7. Coming to the claim for promotion to the post of Joint Commissioner, Excise, as per Ext. P12 verdict passed by this Court, the concerned respondents were directed to consider the matter in relation to the claim for promotion to the post Deputy Commissioner and to pass appropriate orders, which led to Ext. P13. Later, the claim for promotion to the post of Joint Commissioner has been rejected as per Ext. P15 for the sole reason that the petitioner has not completed probation satisfactorily in the cadre of Deputy Commissioner. The factual position that the post of Joint Commissioner is an 'ex cadre post' and the same is not covered by the Special Rules in not controverted anywhere in the counter affidavit filed by the first respondent. So also, the third respondent has not turned up by filing W.P. (C) No. 30788 of 2010 : 7 : any counter affidavit to rebut the better credentials of the petitioner. As such, going by the mandate of Ext. P14 Government Order and the relevant Rules as mentioned above, the promotion if any, in respect of such ex cadre post could have been made only on provisional basis under Rule 31 (1) of Part II K.S. & S.S.R. Satisfactory completion of probation is contemplated only in respect of regular promotion. Since there cannot be any regular promotion to the post of Joint Commissioner, it being an ex-cadre post, not covered by Special Rules and it can only be filled up by way of provisional promotion, the question of completing the probation satisfactorily does not arise at all. No Rule or any judicial precedent to the contrary is not brought to the notice of this Court by the learned Government Pleader in this regard. In the said circumstances, this Court finds that the petitioner is entitled to succeed. In the above circumstances, Exts. P13 and P15 orders impugned in this Writ Petition, to the extent they are challenged, is set aside. The respondents 1 and 2 are directed to promote the petitioner to the post of Deputy Commissioner w.e.f. 24.12.2008, the date of promotion given to the 3rd respondent (junior of the petitioner) and disburse all the consequential benefits accordingly, without delay. With regard to the W.P. (C) No. 30788 of 2010 : 8 : post of Joint Commissioner, Excise, appropriate orders shall be passed by promoting the petitioner under Rule 31 (a) (i), if necessary by reverting the 3rd respondent, who occupies the position on a lower pedestal, in the matter of seniority. The steps in this regard shall be finalized as expeditiously as possible at any rate within one month from the date of receipt of a copy of the judgment. It is made clear that the monetary benefits payable to the petitioner in respect of the post of Joint Commissioner, Excise shall only be prospective. The Writ Petition is allowed to the said extent. No cost. Sd/- P. R. RAMACHANDRA MENON, JUDGE kmd