IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 23RD SEPTEMBER 2009 / 1ST ASWINA 1931 WP(C).No. 25788 of 2009(P) -------------------------- PETITIONER(S): --------------- B.BOSE,UNDER SECRETARY,LAW DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM,NOW ON OTHER DUTY AS DRAFTSMAN OFFICIAL LANGUAGE (LEGISLATIVE) COMMISSION,KERALA OFFICIAL LANGUAGE LEGISLATIVE COMMISSION,PETTAH,THIRUVANANTHAPURAM. BY ADV. SRI.ELVIN PETER P.J. SMT.POOJA SURENDRAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REP.BY THE SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM. 2. THE SECRETARY TO GOVERNMENT, LAW DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. GOVERNMENT PLEADER ANU SIVARAMAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J ....................... W.P.(C).25788/2009 ....................... Dated this the 23rd day of September, 2009 JUDGMENT Petitioner is an Under Secretary in the Law Department. While so, he was appointed as Secretary of the Tribunal for Local Self Government Institutions. 2. He was placed under suspension in connection with a complaint filed by a Legal Assistant Grade-I in the Law Department. He challenged the order of suspension and by Ext.P4, this Court directed the Government to consider the application for revocation of suspension. By Ext.P5, the Government decided to reinstate him without prejudice to the disciplinary action to be initiated against him and also directed that he be posted outside the Government Secretariat. Accordingly he was reinstated and posted on other duty as a Draftsman in the Official Language (Legislative) Commission. He continues in the said post. 3. Ext.P7 is the gradation list of Legal Assistants and it is seen that Sl.No.62 one R.Vijayakumar is junior to the W.P.(C).25788/09 2 petitioner, who is listed against Sl.No.58. This fact is projected by the petitioner to show that juniors to him have been given higher grade in the category of Under Secretary, in terms of the Pay Revision Order. A request made by the petitioner vide Ext.P9 for sanctioning higher grade in the scale of Rs.16650 – 23200 was considered and rejected by the Government as per Ext.P10. Same is under challenge in this writ petition. Paragraph 5 of Ext.P10 reads as follows. On receipt of the judgment read as 2nd paper above, Government have examined the matter in detail. The disciplinary proceedings initiated against Sri.B.Bose, Under Secretary, Law Department are not yet finalized and his suspension period has not been regularized. The promotion during the currency of disciplinary proceedings may be interpreted as condonation of misconduct. The petitioner's name will be considered for promotion if he is exonerated or acquitted from the charges leveled against him. In the above circumstances, the claim of Sri.B.Bose, Under Secretary, Law Department for promotion to Higher Grade cannot be considered at present W.P.(C).25788/09 3 and the request is rejected. The order of the Honourable High Court in W.P.(C). 6418/2009 is complied with accordingly. 4. A statement has been filed on behalf of the 1st respondent. The stand taken in Ext.P10 is reiterated in the statement. It is also contended that the petitioner's probation in the post of Under Secretary has not been declared so far. Since he is involved in a criminal case directly in connection with his official capacity, his work and conduct had not been declared as satisfactory. This, it is contended, stands in the way of the higher grade being granted to the petitioner. 5. I heard learned counsel on either side. Higher grade in the same post is based on the seniority and completion of a requisite number of years of service. It is not a cadre based for promotion. Nor is it a promotion to a selection post. Petitioner has been reinstated in service and disciplinary proceedings are pending. These are not factors that should stand in the way of the petitioner being granted higher grade in the category of Under Secretary. The stand taken by the Government in Ext.P10 is unsustainable. W.P.(C).25788/09 4 6. In the result, Ext.P10 is quashed. 1st respondent is directed to pass orders granting grade promotion to the petitioner as Under Secretary (Higher Grade). Same may be granted with effect from the date of the order which the Government is to pass. Such orders shall be without prejudice to the pendency of the disciplinary proceedings or continuation of the same against the petitioner. Petitioner's claim for grade promotion with reference to the date on which his junior is granted the said promotion, shall be considered after completion of the disciplinary proceedings. Writ petition is disposed of as above. V.GIRI, Judge mrcs