IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 8TH JANUARY 2008 / 18TH POUSHA 1929 RP.No. 4 of 2008(J) ------------------- {IN W.P.(C)NO.36005/2007 OF THIS COURT} .................... PETITIONER: -------------------- 1. STATE OF KERALA REP. BY THE SECRETARY TO GOVERNMENT, TAXES DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001. 2. COMMISSIONER OF COMMERCIAL TAXES, COMMISSIONERATE OF COMMERCIAL TAXES, VIKAS BHAVAN, THIRUVANANTHAPURAM-695 033. 3. DEPARTMENTAL PROMOTION COMMITTEE, (HIGHER), COMMERCIAL TAXES DEPARTMENT, REP. ITS CONVENER, THE SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695001 BY GOVERNMENT PLEADER SRI.BEJOY CHANDRAN RESPONDENT: ----------------------- SEBASTIAN GEORGE, INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, MUVATTUPUZHA. BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 08/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.GIRI, J. ------------------------- R.P. 4 of 2008 in W.P.(C).No.36005 of 2007 J ------------------------- Dated this the 8th day of January, 2008. JUDGMENT The petitioner in the writ petition (hereinafter referred to as 'the petitioner'), an Assistant Commissioner of Commercial Taxes, was considered for promotion to the post of Deputy Commissioner by the Departmental Promotion Committee, which met on 26.3.2007 and 28.4.2007. The petitioner was superseded. Apparently, this was on account of the pendency of the disciplinary proceedings against the petitioner. This came to be dropped subsequently, as evidenced by Ext.P4 marked in the writ petition. It seems that other persons were also superseded in the original select list published. A review Departmental Promotion Committee was convened on 24.10.2007 and the petitioner's case was considered. The review Departmental Promotion Committee recommended that the petitioner be included in the revised select list. When the writ petition came up on 12.12.2007, on which R.P.No.4/08 in W.P.(C).NO.36005/07 :: 2 :: date the judgment was passed, learned counsel for the petitioner submitted that the Departmental Promotion Committee, which met on 24.10.2007, has recommended that he be included in the revised select list. This statement was taken note of and a direction was issued to the 1st respondent (1st petitioner in the review petition) to publish the revised select list, pursuant to the Departmental Promotion Committee meeting conducted on 24.10.2007, on or before 24.12.2007. A further direction was also issued to effect promotions on the basis of the said revised select list. 2. The petitioner had a grievance against his supersession for promotion pursuant to the meeting of the Departmental Promotion Committee held on 26.3.2007 and 28.4.2007. His right to take appropriate steps on the basis that he should have been included in the original select list was left unaffected by the judgment. 3. This review petition is filed by the State contending that pursuant to the meeting of the Departmental Promotion Committee held in March and R.P.No.4/08 in W.P.(C).NO.36005/07 :: 3 :: April, 2007, the select list was approved by the Government and published by order dated 8.5.2007. Subsequently, a review Departmental Promotion Committee met on 24.10.2007 to review the case of 13 persons, who were superseded in the original list; that therefore, when the Departmental Promotion Committee which met on 24.10.2007 submitted a review select list, it was found by the Government that a number of officers were superseded on the ground that there were disciplinary proceedings pending against them. It seems that thereupon the Government decided not to accept the revised select list prepared by the review Departmental Promotion Committee which met on 24.10.2007. Thereafter a direction has been issued to the Commissioner of Commercial Taxes to fianlise the disciplinary proceedings so as to convene an Ad-hoc Departmental Promotion Committee. Revised select list was not approved by the Government. 4. Rule 28(b)(i)(8)(b) of the Kerala State and Subordinate Services Rules, which was relied on by the R.P.No.4/08 in W.P.(C).NO.36005/07 :: 4 :: learned Government Pleader, provides that “wherever Government consider that there are exceptional circumstances which warrant a departure from the advice of the Departmental Promotion Committee in the public interest, the Departmental Promotion Committee shall be given a fresh opportunity to consider the proposals of the Government to revise the select list. If on receipt of the recommendation of the Departmental Promotion Committee, Government still feel that there are exceptional circumstances, which warrant a departure from the advice of the Departmental Promotion Committee in the public interest, they may take a decision accordingly”. The Government, therefore, need not consider themselves bound by the recommendation of the Departmental Promotion Committee and this obviously will be applicable to the recommendations of the Departmental Promotion Committee, which met on 24.10.2007 also. That does not mean that the Government can keep quiet after receipt of the recommendation. If the Government is unwilling to accept the recommendations of the Departmental R.P.No.4/08 in W.P.(C).NO.36005/07 :: 5 :: Promotion Committee, they will have to first require the Departmental Promotion Committee to reconsider the select list. If the Departmental Promotion Committee stick to their recommendations and do not modify the list and the Government is still not prepared to accept the recommendation, they may take a decision accordingly. But obviously, they will have to state the reasons. Such reasons will have to be recorded also. Apparently, none of these steps have been taken in the present case. 5. Learned counsel for the writ petitioner submits that firstly the review petition is silent as to the date on which the Government apparently took the decision not to accept the recommendation of the Departmental Promotion Committee. I find it is significant. The review petition, as a whole, does not specifically state that the Government has decided not to accept the recommendations made by the Departmental Promotion Committee which met on 24.10.2007. Nor is it a case where the inclusion of the petitioner in the revised select list will entail the supersession of any person, who is senior to the petitioner. R.P.No.4/08 in W.P.(C).NO.36005/07 :: 6 :: In these circumstances, I do not find any reason to hold that the direction issued in the judgment dated 12.12.2007 is otherwise vitiated by any error apparent on the face of the record. There are no grounds any reason to review the judgment. Accordingly, the review petition is dismissed. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. To Judge