IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 2ND DECEMBER 2011 / 11TH AGRAHAYANA 1933 Con.Case(C).No. 878 of 2011(S) ------------------------------------------ AGAINST THE JUDGEMENT/ORDER IN WPC.13179/2010 Dated 11/10/2010 .................................................................. PETITIONER: ----------------- T. GOPI, FORMERLY MANAGER, EXCISE DIVISION OFICE, WAYANAD, NOW WORKING AS CIRCLE INSPECTOR OF EXCISE, KOTTARAKKARA. BY ADVS. SRI.B.GOPAKUMAR SMT.CHINCY GOPAKUMAR RESPONDENTS: --------------------- 1. P. MARAPANDIYAN, I.A.S, PRINCIPAL SECRETARY TO GOVERNMENT AND CONVENOR, DEPARTMENTAL PROMOTION COMMITTEE (HIGHER) AS ON 29/03/2010 AND 04/12/2008 TAXES (F)DEPARTMENT, GOVERNMENT OF KERALA, SECRETRIAT, THIRUVANANTHAPURAM. 2. V.P. JOY, I.A.S, SECRETARY TO GOVERNMENT AND CONVENOIR, DEPARTMENTAL PROMOTION COMMITTEE (HIGHER ) AS ON 11/05/2011 (03/05/2011) TAXES (F) DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. R1 & R2 BY GOVERNMENT PLEADER SRI.S.JAMAL THIS CONTEMPT OF COURT CASE (CIVIL) HAVING BEEN FINALLY HEARD ON 02/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JM COC NO. 878 OF 2011 APPENDIX PETITIONERS ANNEXURES: ANNEX.A1: TRUE COPY OF JUDGMENT DT. 11.10.2010 IN W.P.(C) NO. 13179/10(V) IN FAVOUR OF THE PETITIONER ANNEX.A2: TRUE COPY OF NOTICE DT. 23.05.2011 ADDRESSED TO THE RESPONDENTS. ANNEX.A3: TRUE COPY OF POSTAL ACKNOWLEDGMENTS IN RESPECT OF ANNEXURE : A2 ANNEX.A4: TRUE COPY OF GAZETTE NOTIFICATION ISSUED UNDER REF NO. G.O. (MS) NO. 69/2011/TD DT. 11.05.2011. RESPONDENTS' ANNEXURES: ANNEX. R2(A): TRUE COPY OF THE MINUTES OF THE DEPARTMENTAL PROMOTION COMMITTEE MEETING DT. 4.10.2011. ANNEX.R2(B): TRUE COPY OF THE ORDER PASSED BY THE GOVT. REGARDING DEPARTMENTAL PROMOTION COMMITTEE MEETING HELD ON 4.10.2011 (G.O.(RT) NO. 725/2011/TD DT. 11.10.2011 \ TRUE COPY\\ P.A. TO JUDGE JM S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= Cont. Case (C) No. 878 of 2011 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 2nd day of December, 2011. J U D G M E N T The petitioner complains of non-compliance with one of the directions in Annexure AI judgment by the 2nd respondent. In the said judgment, I directed as follows: “The 1st respondent shall consider and pass orders on Ext.P2, as expeditiously as possible, at any rate, within 3 months from the date of receipt of a copy of this judgment, after affording an opportunity of being heard to the petitioner. The 2nd respondent shall consider and pass orders on Exts. P5 and P7, as expeditiously as possible, at any rate, within 2 months from the date of receipt of a certified copy of this judgment. The 3rd respondent shall consider and pass orders on Ext.P3, as expeditiously as possible, at any rate, within one month from the date of receipt of a certified copy of this judgment.” As against the 2nd respondent, the direction was to consider the petitioner's representation under Rule 28 of the Kerala State and Subordinate Service Rules, which relates to non-inclusion of the petitioner's name in the select list for the year 2008. The Departmental Promotion Committee, which is the 2nd respondent, did not consider the petitioner for inclusion in the select list for the year 2008, in view of the disciplinary proceedings initiated against the petitioner in 2008. For inclusion in the select list for the year 2008, the Departmental Promotion Committee was not expected to consider the disciplinary action pending against the petitioner or the confidential records subsequent to 31.12.2007. It is under the said circumstances, the Departmental Promotion Committee was directed to consider the petitioner's statutory Cont. Case (C) No. 878 of 2011 -: 2 :- representation under Rule 28. Apparently, realising the same, when this Court expressed displeasure over reluctance on the part of the Departmental Promotion Committee in considering the petitioner for inclusion in the select list without reference to the disciplinary proceedings, an ad hoc Departmental Promotion Committee was constituted and the petitioner's name was included as sl. no. 5A in the select list. The petitioner does not dispute the fact that his appropriate place in the select is 5A. He is aggrieved by the state of mind of the Departmental Promotion Committee in consistently insisting on including in the minutes of the Departmental Promotion Committee about the disciplinary action and the alleged unsatisfactory performance as reflected in the petitioner's confidential reports in the year 2007, which, according to the petitioner, is to spite the petitioner insofar as it was not necessary for the Departmental Promotion Committee to refer to the same for inclusion of the petitioner's name in the select list for the year 2008 as sl. no. 5A. He would submit that there was absolutely no blemish in his confidential records up to 31.12.2007. The Departmental Promotion Committee was expected to consider the confidential records only up to 31.12.2007 for the purpose of preparing the select list for the year 2008, is the contention raised. 2. The learned Government Pleader would contend that the Departmental Promotion Committee has not done anything wrong. They have included the petitioner in the Cont. Case (C) No. 878 of 2011 -: 3 :- select list at the right place without reference to the disciplinary proceedings or any unsatisfactory performance for the period in question. 3. I have considered the rival contentions in detail. 4. As rightly pointed out by the learned counsel for the petitioner, it was not necessary for the Departmental Promotion Committee to consider the pendency of the disciplinary action or the confidential records for the period subsequent to 31.12.2007. It is settled law that the Departmental Promotion Committee has to consider the petitioner's case de hors the disciplinary action with reference to the confidential records for the three year period preceding 1.1.2008. It was for the authority competent to order promotion of the petitioner to take into consideration the pending disciplinary action. During the pendency of the disciplinary action, the petitioner cannot be promoted in accordance with the select list. But if in the disciplinary action ends in exoneration, the petitioner has to be given his rightful promotion as per his position in the select list. If that be so, it was not necessary for the Departmental Promotion Committee to refer to the disciplinary action or the alleged unsatisfactory performance for the period subsequent to the period of consideration in the minutes of the Departmental Promotion Committee. In fact, they have stated thus in the minutes: “Sri. T. Gopi was not included in the select list for the year 2008 due to the pendency of disciplinary action Cont. Case (C) No. 878 of 2011 -: 4 :- and unsatisfactory performance as reflected in his confidential reports for the year 2007. The position of the officer would have been but for the suspension and departmental proceedings against him is recorded separately and attached.” I am unhappy with the conduct of the Departmental Promotion Committee. I think, they should have considered the case of the petitioner dispassionately. All what they needed to have done is to include the petitioner as sl. no. 5A in the select list and it was not necessary for the Departmental Promotion Committee to refer to the disciplinary action and the alleged unsatisfactory performance as reflected in his confidential records for the year 2007 insofar as, as is clear from the minutes themselves, the Departmental Promotion Committee was not expected to consider the same at all. The reference to the same would give a feeling that the Departmental Promotion Committee did not consider the matter dispassionately probably due to the fact that the petitioner had filed this contempt case. The Departmental Promotion Committee ought to have eschewed such petty feelings and should have conducted themselves without being influenced by the subsequent developments and the action on of the petitioner in filing the writ petition and the contempt case, especially since they were originally at fault in not considering the petitioner for inclusion in the select which led to the writ petition and the contempt case. However, insofar as the petitioner has been given his due by including him in the select list in the year 2008 at the appropriate Cont. Case (C) No. 878 of 2011 -: 5 :- place, I am not inclined to take further proceedings in the contempt case. Accordingly, expressing my displeasure over the conduct of the Departmental Promotion Committee, this contempt case is closed. Sd/- S. Siri Jagan, Judge. Tds/