IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 7TH JANUARY 2011 / 17TH POUSHA 1932 WP(C).No. 24805 of 2005(C) ----------------------------------------- PETITIONER(S): ------------------------ S.L.SREERAM,FINANCIAL ASSISTANT, OFFICE OF THE SUPERINTENDING ENGINEER, IRRIGATION CENTRAL CIRCLE,THRISSUR. BY SRI.V.CHITAMBARESH, SENIOR ADVOCATE, BY ADV. SRI.T.C.SURESH MENON, SRI.SREEKANTH.K.R., SRI.JIBU P THOMAS. RESPONDENT(S): --------------------------- 1. THE STATE OF KERALA,REPRESENTED BY THE PRINCIPAL SECRETARY (FINANCE), FINANCE (ESTABLISHMENT-B) DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM. 2. THE ACCOUNTANT GENERAL,A & E (AUDIT), KERALA,THIRUVANANTHAPURAM. R1 & R2 BY GOVERNMENT PLEADER SRI. MOHAMMED FAZIL.M.P. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.24805/2005 C APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER OF PROVISIONAL PROMOTION ISSUED BY THE FIRST RESPONDENT DTD. 21/11/1997. P2: COPY OF THE ORDER OF REVERSION ISSUED BY THE FIRST RESPONDENT DTD. 15/07/1998. P3: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE FIRST RESPONDENT DTD. 8/10/2004. P4: COPY OF THE LETTER ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER DTD. 23/11/2004. P5: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE FIRST RESPONDENT DTD. 14/01/2005. P6: COPY OF THE ORDER ISSUED BY THE FIRST RESPONDENT DTD.28/2/2005. P7: COPY OF THE PROVISIONAL SENIORITY LIST OF DIVISIONAL ACCOUNTANTS PUBLISHED BY THE FIRST RESPONDENT DTD.1/06/2000. P8: COPY OF THE SELECT LIST OF OFFICERS FOR APPOINTMENT DTD. 27/11/2004. P9: COPY OF THE JUDGMENT IN WP(C) NO.11620/2005 DTD. 6/04/2005. P10: COPY OF THE ORDER DTD. 15/07/2005. RESPONDENT'S EXHIBITS: R1(A): COPY OF THE SELECT LIST TO THE POST OF DIVISIONAL ACCOUNTANTS ISSUED AS PER G.O.(RT) NO.4053/84/FIN. DTD. 26/12/1984. R1(B): COPY OF THE EXT.R1 LIST (SL.NOS.28 & 36) AND AS PER THE SENIORITY LIST. Kss ..2/- ..2.... WPC.NO.24805/2005 C R1(C): COPY OF THE CIRCULAR NO.3/2001/FIN. DTD. 08/01/2001. R1(D): COPY OF THE CIRCULAR NO.49/02/FIN. DTD. 04/07/2002. R1(E): COPY OF THE MEMO NO.53526/ESTT.B2/2002/FIN. DTD. 30/09/2002. R1(F): COPY OF THE CIRCULAR NO.22/03/FIN. DTD. 13/02/2003. R1(G): COPY OF THE CIRCULAR NO.24/04/FIN.DTD. 02/04/2004. R1(H): COPY OF THE LIST OF ELIGIBLE DIVISIONAL ACCOUNTS TO BE SELECTED AS FINANCIAL ASSISTANTS. R1(I): COPY OF CIRCULAR NO.25458/GA (CR CELL)/06/GAD DTD. 19/06/2006. /TRUE COPY/ P.S.TO JUDGE Kss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.24805 of 2005-C - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of January, 2011. JUDGMENT The petitioner is aggrieved by Ext.P10 order whereby his prayer for promotion to the post of Financial Assistant from the date on which his immediate junior was appointed, was declined. 2. While the petitioner was working as seniormost Divisional Accountant, he was provisionally promoted as Financial Assistant/Accounts Officer under Rule 31(a)(i) of KS & SSR in a vacancy which was reserved for a direct recrutee. Ext.P1 is the said order. Thereafter, when the Public Service Commission advised candidates, he was reverted as per Ext.P2 order. It appears that a junior colleague of the petitioner, viz. Shri V. Ananda Shenoy continued on the basis of an interim order passed by this Court in a writ petition filed by him. According to the petitioner, he should have been considered for regular promotion in a vacancy which arose immediately after his reversion and he filed a representation in that regard as per Ext.P3, in 2004. It is his case that he was not considered for promotion and finally he got a reply as per Ext.P4 stating that he was not considered for the reason that he has not furnished the Confidential Reports wpc 24805/2005 2 in time. Finally, he was promoted as per Ext.P6 as Financial Accountant on regular basis. According to the petitioner, the delayed promotion has resulted in the petitioner being pushed down in the select list for appointment in the higher categories. Ext.P8 is the select list for promotion to the post of Senior Finance Officer, Finance Officer Grade I, etc. Hence, he filed a writ petition as W.P.(C) No.11620/2005, wherein this Court directed the representation to be considered and finally by Ext.P10 his prayers were rejected. 3. According to the petitioner, his reversion earlier was not on account of non submission of Confidential Reports. It is also pointed out that the reason for his non consideration cannot be justified. 4. The respondents have filed a detailed counter affidavit and pursuant to an order passed by this Court on 27.10.2010, an additional counter affidavit has also been filed. 5. The counter affidavit filed by the first respondent shows that the petitioner’s promotion on 21.11.1997 was only provisional which does not need any Confidential Report. He was not given any regular promotion only due to the fact that he never bothered to furnish the Confidential Reports in time. It is also stated that the petitioner has chosen to stay as Divisional Accountant and evaded promotion for a long time and then wpc 24805/2005 3 furnished Confidential Reports at his convenience and now he is complaining about the delayed promotion. Ext.R1(a) is the select list to the post of Divisional Accountant issued as per Govt. Order dated 26.12.1984. It is pointed out that the petitioner was keeping silence for a number of years. The Government has been directing the concerned officers to furnish their Confidential Reports by different circulars, Exts.R1(c) to R1(g), but he was silent for a number of years and finally he submitted the Confidential Report for the period from 1.1.1999 to 31.12.2002, only on 4.3.2003. It is also stated that after his reversion from the provisional post, he never bothered to represent to the Government. Finally, on production of the Confidential Report he was included for consideration by the Departmental Promotion Committee which is evident from Ext.R1(h). Confidential Reports are required as per Rule 28(b)(i) of the KS & SSR. 6. In the additional counter affidavit fled on behalf of the first respondent, in answer to the points raised in the interim order dated 27.10.2010, it is explained that the petitioner’s senior Shri M.S. Devaraj and the petitioner were included in the field of choice in the D.P.C. 2003, they were not included in the select list 2003 approved by the D.P.C. for want of Confidential Report. Both of them were also included in the field of choice for the D.P.C. on 1.11.2004, but as Shri M.S. Devaraj had not wpc 24805/2005 4 furnished the Confidential Reports, his name was not included in the select list dated 27.11.2004 and the petitioner was included. Shri M.S. Devaraj submitted his Confidential Reports in 2005 and his name was included in the select list dated 28.10.2005 and he was accordingly promoted. The procedure for preparing Confidential Reports is explained in para 4 of the additional counter affidavit. It is pointed out that every year by the first week of January or whenever the reporting officer changes, the officer concerned should submit the Confidential Reports from the reporting officer after filling facing sheet with a self assessment. It is the duty of the concerned officer to submit the Confidential Reports in time. After submitting the Confidential Reports, the reporting officer submits it to the Reviewing Officer. Then the Reviewing Officer after offering the remarks sends it to the Government or Head of the Department. Ext.R1(i) is the detailed procedure prescribed by the Government for preparation and review of Confidential Report, dated 19.6.2006. 7. Therefore, what is alleged is that the petitioner never bothered to prepare the facing sheet along with the self assessment. With regard to the above aspect, learned counsel for the petitioner submitted that in the absence of the same, the reporting officer should have prepared a confidential report form as stated in para 7 of Ext.R1(i). May be that there wpc 24805/2005 5 is a provision which enables the reporting officer to prepare a confidential report on that basis. But that will not absolve the petitioner from his responsibility to submit the details and self assessment for finalising the confidential reports. Preparing of Confidential Reports from time to time is on the basis of the procedure prescribed and various circulars have been issued reminding the officers concerned also to prepare self assessment and submit, as evident from the counter affidavit and the additional counter affidavit. When the petitioner finally submitted the same, he was considered and was included in the select list. What prompted the petitioner to keep silence for a number of years without submitting the self assessment form for enabling the reporting officer to prepare the Confidential Reports, is not explained in the writ petition. Now the petitioner is blaming on the reporting officers, which cannot be accepted at all. There is no evidence to show that he had played his role in the matter from time to time. Even though in the reply affidavit in para 5 it is stated that he has played his role, the details have not been explained with supporting materials. It is therefore evident that want of Confidential Reports before the D.P.C. was the real reason for not considering the petitioner for a number of years. In that view of the matter, the stand taken in Ext.P10 cannot be faulted. Evidently the authorities have not excluded him for any extraneous reason wpc 24805/2005 6 and it is not a case where his claims were overlooked illegally. Apart from that, the D.P.C. has been meeting from time to time and even if the petitioner was overlooked, he could have represented the matter if he was really aggrieved. None of the earlier select lists have been challenged. His juniors who were included in them and were promoted earlier than him, are not parties in this writ petition. For all these reasons, I find no reason to interfere. 8. Learned counsel for the petitioner prayed for a reconsideration of the matter by submitting that Ext.P10 was passed without hearing the petitioner. But on the undisputable and clear facts , I am of the view that merely for the purpose of offering a hearing to the petitioner, the matter need not be sent back since no other conclusion is possible. The writ petition is therefore dismissed. No costs. (T.R. Ramachandran Nair, Judge.) kav/