IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 15TH JANUARY 2009 / 25TH POUSHA 1930 OP.No. 19353 of 2001(D) ----------------------- PETITIONER(S): --------------- T.V. CHANDRAN, SPECIAL EXTENSION OFFICER, INTEGRATED TRIBAL DEVELOPMENT PROJECT, IDUKKI. BY ADV. SRI.S.M.PREM SMT.K.P.SANTHI RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, SCHEDULED TRIBES DEVELOPMENT DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. DIRECTOR OF SCHEDULED TRIBES DEVELOPMENT DEPARTMENT, CONVENOR, DEPARTMENTAL PROMOTION COMMITTEE (LOWER), SCHEDULED TRIBES DEVELOPMENT DEPARTMENT, THIRUVANANTHAPURAM. 3. P.K. VENU, PERSONAL ASSISTANT TO TRIBAL DEVELOPMENT OFFICER, MANANTHAVADY. GOVERNMENT PLEADER SRI. P. SANTHOSH KUMAR. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 15/01/2009, THE COURT ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO. 19353/2001. ---------------------------------------------------------------- EXT.P1 TRUE COPY OF KERALA SCHEDULED TRIBES DEVELOPMENT SUIBORDINATE SERVICE SPECIAL RULES, 1993. EXT.P2 ORDER DT. 15-11-2000. EXT.P3 COPY OF SPECIAL RULES FOR KERALA SCHEDULED TRIBES DEVELOPMENT SERVICE, 1993. EXT.P4 KERALA GAZETTE DT. 25-10-2000. EXT.P5 GRADATION LIST DT. 25-10-1998. EXT.P6 REPRESENTATION DT. 23-11-2000. EXT.P7 KERALA GAZETTE DT. 4-5-2001. EXT.P8 REPRESENTATION DT. 21-5-2001. EXT.P9 ORDER DT. 21-5-2001. EXT.P10 TRUE COPY OF SELECT LIST. EXT.P11 REPRESENTATION DT. 4-8-2003. RESPONDENTS' EXHIBITS: ----------------------------------- EXT.R2(a) LETTER DT. 21-6-2001. EXT.R2(b) LETTER DT. 6-7-2001. EXT.R2(c) SELECT LIST DT. 11-12-2003. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 19353 of 2001 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 15th January, 2009. J U D G M E N T The petitioner, while working as Tribal Extension Officer, was not included in the select list for promotion to the post of Senior Superintendent/Assistant Project Officer/P.A to Tribal Development Officer prepared by the Departmental Promotion Committee (Lower) for the years 2000 and 2001. Exts.P4 and P7 are the select lists prepared. In the same, the juniors to the petitioner in the seniority list were included, whereas the petitioner has been excluded. It is under the above circumstances, the petitioner has filed this original petition seeking the following reliefs: “i) Issue a writ of certiorari or such other writ, direction or order quashing Exhibits P7 and P9 as arbitrary, illegal, unreasonable and unconstitutional to the extent the petitioner's name is omitted and the names of his admitted juniors are included and promoted; ii) issue a writ of mandamus or such other writ, direction or order compelling the 2nd respondent to revise Exhibit P7 Select List and to include the name of the petitioner also and to place him below Rank No. 7 Sri. S. Premachandran Pillai and above Rank No. 8 Sri. P.K. Venu - 3rd respondent; iii) direct the respondents to consider the petitioner for promotion to the post of Senior Superintendent/Assistant Project Officer/P.A to Tribal Development Officer and to grant him promotion with effect from 21-5-2001 with all attendant service benefits; iv) direct the 2nd respondent to consider Exhibits P6 and P8 representations made by the petitioner and to revise Exhibit P7 Select List including the name of the petitioner below Rank No. 7 Sri. S. Premachandran Pillai and above Rank No. 8 Sri. P.K. Venu – 3rd respondent.” According to the petitioner, there was no reason whatsoever to exclude the petitioner from the select list while including his juniors. 2. Two counter affidavits have been filed, one to the original O.P.. No. 19353/2001. -: 2 :- petition before amendment and one to the amended original petition. According to the learned Government Pleader, the petitioner was also considered by the Departmental Promotion Committee, but the DPC did not find him suitable to be included in the select list because of the adverse remarks against him as also the punishment imposed on him in disciplinary proceedings . Learned Government Pleader submits that the petitioner was rightly excluded after complying with the procedure and therefore the select lists superseding the petitioner for promotion are perfectly valid and proper. 3. I have considered the rival contentions in detail. 4. In the counter affidavit dated 31-1-2002 filed by respondents 1 and 2, it is stated thus in paragraph 2 onwards: “2. It is submitted that the Departmental Promotion Committee (Lower) convened on 31.7.2000 for the preparation of select list for promotion to the category of Special Extension Officer/Assistant Project Officer/P.A to Tribal Development Officer, excluded the name of the petitioner Sri. T.V. Chandran as disciplinary action was pending against him at that time and for want of Confidential Report for the period from 6.4.1998 to 26.8.1998 and from 1.1.99 to 31.12.99. 3. Further, the Departmental Promotion Committee (Lower) held on 18.12.2000. By this time disciplinary action against him was finalised on 27.10.2000 barring his annual increment for 3 year without cumulative effect. But his name was not considered in the preparation of select list as the Reviewing Officer has recorded an adverse remark in his confidential report as follows:- “All the 'A' Grade awarded are cancelled and the 'B' Grade are also changed as follows: Colums 3 – D, 4-D, 5-C, 8-D, 10-C do not agree with the report. He is very back in qualities. He is not dependable and responsible.” The above remarks was communicated to the Officer and his written reply was examined by the Reviewing Officer. The reply was not acceptable as the incumbent is not dependable and O.P.. No. 19353/2001. -: 3 :- responsible. The Director explained the situations behind this adverse remarks and the instances of corruptions from the part of the employees. In the above circumstances the Committee decided to supersede him by his juniors in the seniority list.” Again, in the counter affidavit dated 3-11-2008 filed by respondents 1 and 2, it is stated thus: “It is a fact that at the time of convening of the Departmental Promotion Committee on 18.12.2000 the names of all senior persons who were superceded by the previous Departmental Promotion Committee were included for consideration and in the case of the petitioner he was not included on account of the adverse remarks of the reviewing officer made in his Confidential Report. At the point of time disciplinary action was pending against him. The said action culminated him the penalty of barring of 3 annual increments with cumulative effect. Later the punishment was imposed on the petitioner was reviewed by the Government based on his representation and it was reduced to barring of one increment without cumulative effect as per G.O.(Rt) No. 407/02/SCSTDD dated 9.02.2002. It was prior to passing of the said order dated 9.02.2002 the representation dated 21.05.2001 of the petitioner in Ext. P8 to review the Ext. P7 select list was examined. After such careful examination a reply was given to the petitioner in and vide letter No. E2-5353/00 dated 6.07.2001 and a true copy of the same is produced herewith and marked as Ext. R2(b). On 25.03.2003, the Departmental Promotion Committee was convened to prepare the select list for 2002-03 for promotion to the post of Senior Superintendent/Assistant Project Officer/Personal Assistant. A supplementary Departmental Promotion Committee was then held for the said purpose on 27.06.2003. During the said period another disciplinary action was pending against the petitioner in connection with the construction of house for tribals in Agali Tribal Colony. However, his name was included in the field of choice. The D.P.C met on 25.3.2003 and examined the service particulars and Confidential report and noted very serious adverse remarks made in his Confidential Report. It was also found that the appeal petition preferred by the petitioner before the Government against the entry of the said adverse remarks was rejected. As stated earlier, in the counter affidavit the Director of Scheduled Tribes Development Department as per Order No. E2.7895/01 dated 25.11.2001 ordered to recover an amount of Rs.29448/- from the petitioner towards the financial loss caused to the Government on O.P.. No. 19353/2001. -: 4 :- account of his supervisory lapse in the matter of construction of houses for tribals in Agali Tribal Colony. In the appeal preferred by the petitioner Government vide order dated 14.07.2003, exonerated him of the said charges. In the circumstances, the petitioner had submitted Ext. P11 representation to review the Ext. P10 select for the year 2003 and to include his name therein with protection of seniority. Based on the said representation the adhoc D.P.C (lower) was held on 31.10.2003 and reviewed the case of the petitioner. However, his performance in the department during the period was not satisfactory as compared with the others in the field of choice. The Committee decided to include his name only as the last person in the select list for 2002-03 and accordingly it was reviewed. A true copy of the revised select list dated 11.12.2003 is produced herewith and marked as Exhibit R2 (c). It is thus obvious from the above that the grievance of the petitioner against his supercession was bereft of any basis and he was superceded on consideration of merit and ability. In this context it is relevant to note Rule 28(b) of KS & SSR which provides that select list shall be prepared from among eligible officers on the basis of merit and ability. Seniority becomes a consideration only when merit and ability are approximately equal. As stated earlier in the case of the petitioner his performance during the relevant period was not satisfactory, when compared with the others included in the field of choice. Later the petitioner was promoted in the cadre of Senior Superintendent/Assistant Project Officer/Personal Assistant on 5.10.2005 and he was assigned the rank No. 35, in the provisional cadre of Senior Superintendent/Assistant Project Officer/Personal Assistant on 1.06.2007. The petitioner was promoted on 5.10.2005 to the cadre of Senior Superintendent/Assistant Project Officer/Personal Assistant vide Order No.E1.18661/05 dated 5.10.2005 and he is working in the said cadre with effect from 13.10.2005.” Although as stated in the counter affidavits very severe adverse remarks have been entered in the confidential records of the petitioner, which were communicated to the petitioner and against which representation of the petitioner has been considered and rejected, the petitioner has not chosen to file a reply affidavit to refute those contentions. In fact, the petitioner has no case that he had challenged those adverse remarks or the orders refusing to expunge the same. That being so, I am of opinion that the petitioner O.P.. No. 19353/2001. -: 5 :- was superseded for the purpose of promotion on valid consideration. In any event, the petitioner was included in the select list for the year 2003 and promoted in 2005. In the above circumstances, I do not find any merit in the original petition and accordingly, the same is dismissed. Sd/- S. Siri Jagan, Judge. Tds/