IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 29TH MARCH 2010 / 8TH CHAITHRA 1932 WP(C).No. 9770 of 2010(U) ------------------------- PETITIONER(S): --------------- SABU NOBERT, COMERCIAL TAX INSPECTOR, C.T.C.P. LALBAG, UJPPALA VIA, KASARGOD DIST. BY ADV. SRI.KALEESWARAM RAJ RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF COMMERCIAL TAX, SECRETARIAT, THIRUVANANTHAPURAM. 2. COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. 3. JOINT COMMISSIONER - I, DEPARTMENT OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. 4. DEPUTY COMMISSIONER, COMMERCIAL TAXES, KASARGOD. 5. INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, KASARGOD. 6. CONVENER, D.P.C.(LOWER) FOR PROMOTION TO THE POST OF COMMERCIAL TAX OFFICER, THIRUVANANTHAPURAM. BY GOVT. PLEADER SRI. ANTONY MUKKATH. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NO. 9770 OF 2010 -------------------------------------------- Dated this the 29th day of March, 2010 JUDGMENT The petitioner is aggrieved by the proposal on the part of the respondents as per Ext.P9 to supersede him in the matter of promotion to the post of Sales Tax/Commercial Tax Officer. Disciplinary proceedings initiated against the petitioner had culminated in imposition of a penalty of barring of one increment without cumulative effect as is obvious from Ext.P5. 2. The review petition filed against Ext.P5 was dismissed by the 4th respondent as per Ext.P7. Aggrieved by Exts.P5 and P7, the petitioner has preferred Ext.P8 appeal before the 3rd respondent and the same is pending. Be that as it may, the question is whether imposition of such a penalty can stand in the way of consideration of qualified person for promotion provided he falls within the zone of consideration. In this case, evidently, the petitioner is included within the zone of consideration. There is no dispute as to his eligibility for being considered for promotion to the post of Sales Tax/Commercial Tax Officer, as well. The only question to be decided is W.P.(C) NO.9770/2010 2 whether the imposition of the aforesaid penalty viz., barring one increment without cumulative effect can be a reason for denying inclusion of the petitioner in the select list. Indisputably, the punishment imposed on the petitioner as per Ext.P5 is a minor penalty under the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960. Going by the provisions under Rule 28 Part II of KS & SSR, a person against whom a minor penalty is imposed, is entitled to be considered for promotion. The question whether he is to be included in the select list for promotion to the concerned post is a matter which depends upon the decision taken by the Departmental Promotion Committee. Ext.P9 would reveal that the decision to supersede was taken reckoning the disciplinary proceedings as one which is still pending against the petitioner. The provisions under Rule 28 would reveal the consideration ought to have been effected after taking into account the penalty as imposed as per Ext.P5 since the imposition of such a minor penalty could not be a reason for withholding promotion. Of course, it is subject to the decision of the DPC. Considering the petitioner's claim treating the disciplinary proceedings as pending and considering his claim based on the penalty imposed as per Ext.P5 cannot be one and the same. In the circumstances, the sixth respondent is directed to consider the claim of the petitioner for inclusion in the select list for promotion to the post of Commercial Tax W.P.(C) NO.9770/2010 3 Officers in case the claim of the petitioner was not already considered based on Ext.P5. The claim of the petitioner shall be considered by the DPC in the next meeting if it was not already been considered. 2. Feeling aggrieved by the imposition of minor penalty as per Ext.P5, the petitioner has preferred a review petition. The same was rejected as per Ext.P7 order. Against Ext.P7 order, the petitioner has submitted Ext.P8 appeal dated 22.2.2010. It is submitted that the said appeal is still pending. Therefore, there shall be a direction to the third respondent to consider and pass orders on Ext.P8 appeal submitted by the petitioner expeditiously, at any rate, within a period of two months from the date of receipt of a copy of this judgment This Writ Petition is disposed of accordingly. C.T. RAVIKUMAR, JUDGE spc W.P.(C) NO.9770/2010 4 C.T.RAVIKUMAR, J. W.P.(C). NO.9770/2010 JUDGMENT 29th March, 2010