IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 31ST MARCH 2011 / 10TH CHAITHRA 1933 WP(C).No. 8247 of 2011(E) ------------------------- PETITIONER(S): --------------- DINESHAN PUTHALATH, MOTOR VEHICLE INSPECTOR, REGIONAL TRANSPORT OFFICE, KANNUR. BY ADV. SRI.K.JAJU BABU RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, TRANSPORT DEPARTMENT, GOVT. SECRETARIAT, TRIVANDRUM-695 001. 2. THE DEPARTMENTAL PROMOTION COMMITTEE (HIGHER) MOTOR VEHICLES DEPARTMENT, REPRESENTED BY ITS CONVENER, SECRETARY TO GOVERNMENT, TRANSPORT DEPARTMENT, GOVT. SECRETARIAT, TRIVANDRUM-695 001. 3. THE TRANSPORT COMMISSIONER, TRIVANDRUM-695 001. GOVT. PLEADER SRI. ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 8247 of 2011 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 31st day of March, 2011. J U D G M E N T The petitioner is a Motor Vehicle Inspector in the Kerala Transport Service. The petitioner is eligible for promotion to the cadre of Joint Regional Transport Officer and further. No disciplinary proceedings or departmental action is pending against the petitioner. According to him, his confidential reports are very good and no adverse remarks have been communicated to him. But the 2nd respondent refused to consider the petitioner for inclusion in the list of persons eligible for consideration by the Departmental Promotion Committee to be included in the select list, on the ground that a vigilance case is pending against him. According to the petitioner, a vigilance case can be said to be pending against him only when a charge sheet has been framed against the petitioner. According to the petitioner, no charge sheet has so far been framed. He relies on the decision of this Court in Sasidharan v. State of Kerala, 2008 (4) KLT 149. The petitioner therefore seeks the following reliefs: “i. Issue a writ of mandamus or any other appropriate writ, order or direction, directing respondents 2 and 3 to consider Ext. P2 and take necessary steps for including the name of the petitioner in the select list for promotion to the post of Joint Regional Transport Officer etc., for 2011 if otherwise eligible; ii. declare that non consideration of the name of the petitioner while preparing the names of candidates for inclusion in the select list for promotion to the cadre of Joint Regional Transport officer on the reason that vigilance case (in which no charge memo is drawn on) is pending against the petitioner is illegal and unconstitutional; iii. Direct the 2nd respondent to convene ad hoc Departmental Promotion Committee in the light of Exts.P2 and P3 and include the name of the petitioner in the select list for W.P(C) No. 8247 of 2011 -: 2 :- promotion to the cadre of Joint Regional Transport Officer for the year 2011 forthwith; iv. direct the respondents not to fill up the existing vacancies of Joint Regional Transport Officer etc, or reserve one vacancy in favour of the petitioner, till his name is included in the select list for the year 2011.” 2. The learned Government Pleader has, today, placed before me the instructions received by the learned Advocate General from the Transport Commissioner himself, which reads thus: “Sri. Dineshan Puthalath, Motor Vehicles Inspector, Regional Transport Officer, Kannur has filed a representation dated 29.12.2010 (Ext. P2) requesting him to include his name also in the list of candidates for consideration for promotion as he is not charge sheeted yet in the vigilance case registered against him. Accordingly Sri. Dineshan Puthalath, Motor Vehicles Inspector, Kannur has been included as serial no: 15 in the field of choice of Motor Vehicles Inspectors for drawing up the select list for promotion as Joint Regional Transport Officers, submitted before the Departmental Promotion Committee (Higher) 2011. The Departmental Promotion Committee (Higher) met on 1.3.2011 decided to supercede Sri. Dineshan Puthalath, Motor Vehicles Inspector from the select list for promotion as Junior Regional Transport Officers, since vigilance case No. VC-6/2006/SCK has been registered against him and prosecution sanction has been issued, invoking the provisions of Note (i) under Rule 28(b)(i) (7) of KS & SSR, which envisages that officers against whom vigilance or departmental proceedings are taken after the charges have prima facie been established in a preliminary enquiry should not be included in the select list.” I am of opinion that the said stand is clearly against Note (i) under Rule 28(b)(i)(7) of K.S and S.S.R relied on by the Transport Commissioner, which reads thus: W.P(C) No. 8247 of 2011 -: 3 :- “Note:- (i) Officers under suspension and Officers against whom criminal proceedings are pending in a Sessions Court or in any other higher Court for grave offences like murder, dacoity, etc. and officers against whom departmental proceedings are taken for the imposition of a major penalty under the disciplinary rules applicable to them should not be included in the select list. But the suitability of such an officer for promotion should be assessed at the relevant time by the Departmental Promotion Committee and a finding reached whether, if the officer had not been suspended or the criminal proceedings/departmental proceedings had not been pending against him, he would have been recommended/selected for promotion. Where a select list is prepared the Departmental Promotion Committee shall also make a finding as to what the position of the officer in that list would have been but for the suspension or the criminal proceedings/departmental proceedings against him. The findings as to the suitability and the place in the select list of the officer should be recorded separately and attached to the proceedings. The proceedings of the Departmental Promotion Committee need only contain a note, “The findings are recorded in the attached sheet of paper”. The authority competent to fill the vacancy should be separately advised to fill the vacancy only on a temporary basis. Officers against whom vigilance or departmental proceedings are taken after the charges have prima facie been established in a preliminary enquiry should not be included in the select list. But, the cases of such officers should also be assessed. The question of including them in the select list shall be considered when the result of the enquiry is known. However, officers against whom departmental proceedings are taken for the imposition of a minor penalty may be included in the select list provisionally if they are found suitable but for the pendency of disciplinary proceedings initiated against them.” Further, that stand does not take into account the decision of this Court in Sasidharan's case (supra). As such, the stand of the respondent is clearly unsustainable. In the above circumstances, the writ petition is disposed of with a direction to the respondents to see that a review W.P(C) No. 8247 of 2011 -: 4 :- Departmental Promotion Committee is convened and the case of the petitioner be considered in accordance with law taking into account Note (i) of Rule 28(b)(i)(7) and the decision of this Court in Sasidharan's case (supra), as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment. Sd/- S. Siri Jagan, Judge. Tds/ [TRUE COPY] P.S TO JUDGE.