IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 6TH SEPTEMBER 2011 / 15TH BHADRA 1933 WP(C).No. 19486 of 2011(I) --------------------------------------- PETITIONER(S): ------------------------ P.K. SIVADAS, ASSISTANT PROJECT OFFICER (P & M), POVERTY ALLEVIATION UNIT, RURAL DEVELOPMENT DEPARTMENT, PATHANAMTHITTA DISTRICT. BY ADV. DR.K.P.SATHEESAN, SRI.M.R.JAYAPRASAD, SRI.P.MOHANDAS (ERNAKULAM), SRI.MATHEW SUNNY, SRI.ANOOP.V.NAIR. RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNMENT (ERA) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-1. 2. THE COMMISSIONER, COMMISSIONERATE OF RURAL DEVELOPMENT, THIRUVANANTHAPURAM-33. 3. THE DIRECTOR OF VIGILANCE AND ANTI CORRUPTION BUREAU, DIRECTORATE OF VIGILANCE AND ANTI CORRUPTION BUREAU, THIRUVANANTHAPURAM-33. R1 TO R3 BY GOVT. PLEADER MR.A.J. VARGHESE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/09/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C).No. 19486 of 2011(I) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER ISSUED BY THE VIGILANCE DEPARTMENT AS G.O. (RT) NO.123/05/VIG. DATED 15/04/2005. EXT.P2: COPY OF THE ORDER G.O.(RT) NO.1860/2006/LSGD DATED 07/08/2006. EXT.P3: COPY OF THE REPORT FILED BY THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI CORRUPTION BUREAU BEFORE THE HONOURABLE ENQUIRY COMMISSIONER & SPECIAL JUDGE, THRISSUR DATED NIL. EXT.P4: COPY OF THE LETTER GIVEN BY THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI CORRUPTION BUREAU, IDUKKI UNIT, MUTTOM DATED 10/05/2010. EXT.P5: COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE FIRST RESPONDENT DATED 03/06/2010. EXT.P6: COPY OF THE REPRESENTATION GIVEN TO THE 2ND RESPONDENT DATED 03/06/2010. EXT.P7: COPY OF THE JUDGMENT DATED 23/11/2010 IN WP(C) NO. 35062/2010. EXT.P8: COPY OF THE ORDER G.O.(RT)NO.1647/2011/LSGD DATED 11/07/2011. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE rs C.T. RAVIKUMAR, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P.(C)No. 19486 OF 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of September, 2011 J U D G M E N T While working as Assistant Project Officer in the District Rural Development Agency, the petitioner was placed under suspension as per Ext.P1 order. Evidently, the petitioner was placed under suspension on account of the registration of a crime against him by the Vigilance Department. Subsequently, the petitioner was reinstated into the service as per Ext.P2. The specific contention of the petitioner is that Vigilance had, later, filed a final report deleting the name of the petitioner from the array of accused. In the meanwhile, many of his juniors were promoted on temporary basis under Rule 31(a)(i) of Part II of Kerala State and Subordinate Services Rules(for short 'KS&SSR'), it is contended. The contention of the petitioner is that while considering the question of promotion on temporary basis under Rule 31(a)(i) of the KS&SSR pendency of disciplinary proceedings cannot be a reason for overlooking the seniority unlike in the case of a regular promotion. The specific WP.(C) No,19486/2011 2 contention of the petitioner is that while the petitioner was undergoing suspension many of his juniors were promoted under Rule 31(a)(i) of Part II of the KS &SSR. That contention of the petitioner was not specifically refuted in the counter affidavit. In other words, the respondents did not have a case that they had not resorted to promotion on temporary basis and that they have effected promotion on regular basis. In the absence of any such denial the contention of the petitioner that the juniors were promoted only by invoking the power under Rule 31(a)(i) of the KS &SSR on provisional basis has to be taken as admitted. The contention of the petitioner is that he is entitled to get promotion under Rule 31(a)(i) of Part II of KS &SSR ahead of his juniors and pendency or proposal of disciplinary proceedings cannot be a reason to deny or deprive that right. The learned counsel appearing for the petitioner relied on a decision of this Court in W.P.(C) No.16765/2006 and a Division Bench decision in W.P.(C) No.24963/2005 to buttress the said contention. In view of the said decisions, while effecting promotion under Rule 31(a)(i) of Part II KS&SSR, pendency of disciplinary proceedings cannot be assigned as a reason to deny promotion to an otherwise eligible senior. Certainly a senior can be deprived of promotion if he is under suspension. I may hasten to add that WP.(C) No,19486/2011 3 such a senior can also be deprived of such temporary promotion if he/she is suffering a penalty of withholding of promotion. Evidently, the petitioner was placed under suspension as per Ext.P1 order. However, he was subsequently reinstated as per Ext.P2. So also, there is no case that he was imposed with the penalty of withholding of promotion. The learned Government Pleader submits that there is nothing on record which would reveal that the name of the petitioner was deleted from the array of accused in the vigilance case. As already noticed hereinbefoire, the specific contention of the petitioner is that his name was already been deleted from the array of accused. Having heard the learned counsel for the petitioner and also the learned Government Pleader and having perused the materials produced in this writ petition, I am inclined to dispose of this writ petition as hereunder:- The second respondent is directed to ascertain the question whether the name of the petitioner was deleted from the array of accused in the Vigilance case No.1/205/IDIC and also VE.13/99/ERT. If the petitioner is no more an accused in the aforementioned cases, certainly, there cannot be any reason for denying the claim of the petitioner for promotion under Rule 31(a)(i)of Part II of the KS &SSR, considering the WP.(C) No,19486/2011 4 fact that the juniors were already granted promotion. In case, vacancies are available in the post of Deputy Development commissioner, after ascertaining the aforesaid facts, the respondents shall take appropriate steps forthwith for the purpose of granting promotion to the petitioner provisionally by invoking the provisions under Rule 31(a)(i) of Part II of KS&SSR. In case, there is no vacancy available then appropriate steps may be taken for considering the said claim of the petitioner for such promotion and for that purpose the rival claims of the petitioner and the juniormost promotee have to be considered, in accordance with law. This shall be done expeditiously, at any rate, within a period of one month from the date of receipt of copy of this judgment. The petitioner is also having a grievance that the period of suspension was not regularised. Respondents 1 and 2 shall consider the question regarding the regularisation of suspension period, in accordance with law, and pass orders expeditiously. Sd/- (C.T. RAVIKUMAR, JUDGE) jma //true copy// P.A to Judge