IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 21ST OCTOBER 2010 / 29TH ASWINA 1932 WP(C).No. 8138 of 2009(J) --------------------------------- PETITIONER(S): ---------------------- K.P.RAJAGOPALAN NAIR, AGED 56 YEARS, S/O.PARAMESWARAN NAIR, KOTTAPPURATHU VEEDU, PO.ANAYADI, VIA-SOORANAD, QUILON DISTRICT. BY ADV. SRI. ISSAC GEORGE RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, TRIVANDRUM-1. 2. PRINCIPAL SECRETARY, HOME DEPARTMENT (B), GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, TRIVANDRUM-1. R1 & R2 BY GOVERNMENT PLEADER ADV.SRI SANDESH RAJA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/10/2010 , THE COURT ON THE SAME DAY FOLLOWING: WP(C) NO. 8138/2010-J APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE FINAL SENIORITY LIST OF DEPUTY JAILORS IN THE PRISON DEPARTMENT AS ON 1-10-2001 ISSUED BY ADDL. DGP (PRISONS). P2 COPY OF THE CIRCULAR NO.5328/99 P& ARD, DATED 3-6-1999 ISSUED BY GOVT. OF KERALA. P3 COPY OF THE LETTER OF PROPOSAL FOR PROMOTIONS TO THE PETITIONER BY DGP(PRISONS) TO THE GOVT.OF KERALA, NO.E1-10014/2006, DATED 4-10-2006. P4 COPY OF THE JUDGMENT IN WP(C) NO.2718 OF 2007 DATED24-1-2007 OF THE HON'BLE HIGH COURT OF KERALA. P5 COPY OF THE ORDER NO. 62029/B3/2006/HOME, DATED 13-2-2007 FROM THE 2ND RESPONDENT TO THE PETITIONER. P6 COPY OF THE LETTER OF REQUEST BY THE PETITIONER TO THE 2ND RESPONDENT DATED 15-2-2007. P7 COPY OF THE G.O.RT.NO.2731/2004/HOME, DATED 9-12-2004 ISSUED BY HOME DEPT. TO K.G.GOPALA KRISHNAN NAIR. P8 COPY OF THE G.O.RT.NO.615/03/HOME DATED 16-04-2003 ISSUED BY HOME DEPT.TO ANDAPPAN. P.K. P9 COPY OF THE 'NEWS ITEM' IN PAGE 12 OF TRIVANDRUM EDITION F MALAYALAM DAILY, MATHRUBHOOMI, DATED 12-8-2008. P10 COPY OF THE LETTER OF REQUEST TO THE 2ND RESPONDENT, DATED 14-3-2007 BY THE PETITIONER. P11 COPY OF THE INTERIM ORDER IN W.A.NO.(C).456/2007 DATED 27-2-2007 BY THE HON'BLE HIGH COURT OF KERALA. P12 COPY OF THE RELEVANT PAGE OF SERVICE BOOK OF THE PETITIONER. P13 COPY OF THE JUDGMENT OF W.A.NO.(C) 456/OF 2007 DATED 20-3-2007 OF HON'BLE HIGH COURT OF KERALA. P14 COPY OF THE S.PL.PETITION (CIVIL) NO.8475/2007 DATED 15-1-2008 AND REVIEW PETITION (CIVIL) NO.351/2008, DATED 8-4-2008 OF HON'BLE SUPREME COURT OF INDIA. P15 COPY OF THE LETTER OF REQUEST TO THE 2ND RESPONDENT DATED 13-4-2007. P16 COPY OF THE G.O.RT.NO.2295/2007/HOME DATED 25-8-2007 T N.SASIDHARAN. P17 COPY OF THE LETTER OF REQUEST TO THE 2ND RESPONDENT DATED 10-9-2007. (CONTD...........) -2- P18 COPY OF THE LETTER FROM HOME GOVT. OF INDIA TO THE PETITIONER ABOUT AWARD OF THE HON'BLE PRESIDENT'S PRISON MEDAL DT. 15-8-2006. P19 COPY OF THE LETTER OF REQUEST TO THE 2ND RESPONDENT DATED 10-12-08. P19(A) COPY OF THE JUDGMENT OF CON.CASE (C) NO.103 OF 2009 (S) AGAINST THE JUDGMENT/ORDER IN WPC.NO.2718/2007 OF HIGH COURT OF KERALA, DATED 12-02-2009. P20 COPY OF THE REPRESENTATION TO THE 2ND RESPONDET BY THE PETITIONER DATED 23-1-2009. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.8138 of 2009-J - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of October, 2010. JUDGMENT The petitioner's request for provisional promotion was declined by the Government as per Ext.P5 order dated 13.2.2007. The same is the cause of action for filing this writ petition. 2. The petitioner's case is that he was the seniormost Deputy Jailer in the Prison Department as per the final seniority list as on 1.10.2001. Ext.P1 is the copy of the said final seniority list. It appears that there was a ban regarding the grant of provisional promotion which was lifted by the Administrative Department of the Government as per Ext.P2. The petitioner thereafter filed a representation and as per Ext.P3 a proposal was made by the DGP (Prisons). As no orders were passed, he approached this Court by filing W.P.(C) No.2718/2007 wherein this Court by Ext.P4 judgment directed the competent authority to consider the representation. 3. In Ext.P5 the Government took the view that since the post in question is Superintendent of Central Prison which is a sensitive one, it is not advisable without the recommendation of the D.P.C., to fill it up and therefore his request for provisional promotion is declined. wpc 8138/2009 2 4. The petitioner thereafter came across two orders, viz. Exts.P7 and P8 whereby some others have been provisionally promoted in the years 2004 and 2003 respectively. In Revenue Department also certain provisional promotions have been made and Ext.P9 is the Press report evidencing the same. Ext.P10 is a further representation filed by him after attaining superannuation on 28.2.2007. It appears that there was a dispute pending before this Court with regard to his claim for correction of date of birth in the service records, wherein Ext.P11 interim order was passed by a Division Bench stating that the retirement will be subject to the result of the Writ Appeal. Ext.P13 is the judgment in W.A. No.456/2007 by which the Writ Appeal was dismissed and S.L.P.(C) NO.8475/2007 filed against the same was also dismissed as per Ext.P14 judgment. The petitioner filed a review petition as R.P.No.351/2008 in S.L.P.No.8475/2007. It was also dismissed as evidenced by Ext.P14 order. 5. It is the case of the petitioner that in respect of other persons provisional promotions have been ordered by the Government and one of the orders have been produced as Ext.P16. Finally, he moved the Government again by Ext.P17 representation. In the meanwhile, he had occasion to approach this Court by filing C.O.(C) No.103/2009 which was dismissed of by Ext.P19(a) judgment. wpc 8138/2009 3 6. Learned counsel for the petitioner mainly contended that there was a delay in convening the D.P.C. and in those circumstances the Government had passed orders permitting provisional promotion. In respect of similarly placed persons, provisional promotions have been granted in the very same department as evidenced from Exts.P7 and P8 orders. There is no reason as to why the petitioner was discriminated. It is pointed out that even after retirement, going by Ext.P16, one Sasidharan was granted provisional promotion. In this background, learned counsel for the petitioner submitted that the refusal to grant the request of the petitioner as per Ext.P5 cannot be justified. 7. Learned Government Pleader submitted that the Government felt that the post of Superintendent Central Prison is a sensitive one and therefore it was decided not to grant provisional promotion, in the absence of any proceedings of the D.P.C. also. With regard to the orders passed as Exts.P7 and P8, my attention was invited to the reasons stated in para 4 of the counter affidavit wherein it is explained that one Shri K.G. Gopalakrishnan Nair was provisionally promoted as Superintendent, Open Prison, Nettukaltheri and Shri P.K.Andappan has been provisionally promoted as D.I.G. (P). Only well behaved and reformed prisoners are housed in the Open Prison, Nettukaltheri. Their character and conduct in wpc 8138/2009 4 the jail are good. On the contrary, remand/under trial/convicted prisoners are housed in the Central Prison, Thiruvananthapuram. Therefore, competency and proficiency of the Superintendent to be posted in the Central Prison, Thiruvananthapuram is mandatory. It is in these circumstances, the Government rejected the request of the petitioner for provision promotion. 8. Evidently, the rules envisage provisional promotions to be granted in certain contingencies. The rule, viz. Rule 31 of the Kerala State and Subordinate Service Rules is extracted below: “31. Temporary promotion.-- (a) Where it is necessary in the public interest owing to an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of a higher category in a service or class by promotion from a lower category and there would be undue delay in making such promotion in accordance with the rules, the Appointing Authority may promote a person otherwise than in accordance with the rules, temporarily.” Therefore, it is up to the appointing authority to promote a person otherwise than in accordance with the rules, temporarily, if public interest requires such promotion to be granted, that too owing to an emergency. Therefore, it is not a case where a person can claim provisional promotion as a matter of right. It is entirely at the discretion of the appointing authority to wpc 8138/2009 5 consider a person for provisional promotion and to grant it. In that view of the matter, it cannot be said that the view taken in Ext.P5 is so irrational requiring interference by this Court. 9. As far as Ext.P16 is concerned, it is explained that the person concerned was exonerated in a disciplinary proceedings and that had led to the passing of the order as Ext.P16. Learned counsel for the petitioner invited my attention to the various averments in the reply affidavit. It is pointed out that there was unreasonable delay in convening the D.P.C. and the regular promotion was also denied only because of the default of various officers. It is pointed out that the circumstances being the same, the Government could have rectified the situation by provisionally promoting the petitioner. Of course, the petitioner had approached this Court earlier by filing W.P.(C) No.2718/2007 seeking provisional promotion. It does not appear whether he had moved earlier with a grievance regarding the non convening of the D.P.C., etc. At any rate, that will not enable him to get a notional promotion at this distance of time. 10. Apart from that, Ext.P5 has been passed on 13.2.2007 and the petitioner retired from service evidently on 28.2.2007. This writ petition has been filed only on 12.3.2009. Therefore, there is unreasonable delay in filing the writ petition also. Even though it is pointed out by the learned wpc 8138/2009 6 counsel for the petitioner that the petitioner came across the orders Exts.P7, P8 and P16 later, that cannot explain the delay in filing the writ petition. 11. For all these reasons, the writ petition is dismissed. 12. Learned counsel for the petitioner submitted that even though the petitioner retired from service on 28.2.2007, on the strength of the interim order, he continued upto 20.3.2007, viz. the date of dismissal of Writ Appeal No.456/2007. It is mentioned in para 11 of the counter affidavit that the petitioner's service from 1.3.2007 to 20.3.2007 can be considered as re-employment and his eligible salary and allowances for that period will be granted as per Rule 100 of Part III K.S.R. This will be considered and appropriate orders will be passed within a period of two months from the date of receipt of a copy of this judgment, if it is not already done. No costs. (T.R. Ramachandran Nair, Judge.) kav/