IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 21ST JULY 2008 / 30TH ASHADHA 1930 WP(C).No. 1349 of 2004(I) -------------------------------------- PETITIONER: --------------------- C.D.MATHAI, DIVISIONAL ACCOUNTANT, BANASURA SAGAR PROJECT, PADINJARATHARA, WAYANAD. BY ADV. SRI.P.RAMAKRISHNAN RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF FINANCE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER, IRRIGATION AND ADMINISTRATION, THIRUVANANTHAPURAM. 3. THE SUPERINTENDING ENGINEER, PWD ROADS AND BRIDGES, NORTH CIRCLE, KOZHIKODE. 4. THE SUPERINTENDING ENGINEER, PWD BUILDING AND LOCAL WORKS, NORTH CIRCLE, KOZHIKODE. 5. THE EXECUTIVE ENGINEER, PWD ROADS DIVISION, KALPETTA, WAYANAD. 6. THE EXECUTIVE ENGINEER, PWD BUILDINGS DIVISION, KALPETTA, WAYANAD. BY GOVERNMENT PLEADER SRI. MOHAMMED FAZIL M.P.-R1TOR6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.1349/2004 I APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF CIRCULAR DTD. 28/03/2003 ISSUED BY THE 2ND RESPONDENT. EXT.P2: COPY OF LETTER DTD. 30/07/2003 FROM THE 2ND RESPONDENT TO THE PETITIONER. EXT.P3: COPY OF LETTER DTD. 1/04/2003 FROM THE 5TH RESPONDENT STO THE 3RD RESPONDENT. EXT.P4: COPY OF LETTER DTD. 26/08/2003 FROM THE 6TH RESPONDENT TO THE 4TH RESPONDENT. EXT.P5: COPY OF LETTER DTD. 4/12/2003 ISSUED BY THE 1ST RESPONDENT. EXT.P6: COPY OF LETTER DTD. 16/12/03 ISSUED BY THE 2ND RESPONDENT. EXT.P7: COPY OF THE LETTER DTD. 20/06/2003. RESPONDENT'S EXHIBIT: EXT.R1(A): COPY OF THE LETTER DTD. 10/10/2003 OF THE CHIEF ENGINEER, IRRIGATION AND ADMINISTRATION. /TRUE COPY/ P.A.TO JUDGE Kss P.N.RAVINDRAN, J. ====================================== W.P.(C)No. 1349 of 2004 ====================================== Dated this the 21st day of July 2008 JUDGMENT The petitioner commenced service as Typist/Clerk in the Public Works Department on 28.8.1971. He, later, went over to the Irrigation Department and while in service in that department as Junior Superintendent, he was provisionally promoted as Divisional Accountant in the Kerala General Service with effect from 15.8.1998. The post of Divisional Accountant is a selection post. The Departmental Promotion Committee for selection to the post of Divisional Accountant was convened after a long interval of time in the year 2003. For the reason that the petitioner had failed to submit his confidential reports, by Ext.P5, the State Government directed that the petitioner be reverted to his parent department (Irrigation Department) with immediate effect. The direction in Ext.P5 was implemented and by Ext.P6, the petitioner was reverted from the post of Divisional Accountant in the Public Works Department and posted as Junior Superintendent in the Irrigation Department. The petitioner has in this writ petition challenged Exts.P5 and P6 and prayed for the following reliefs:- a) issue a writ of certiorari or other appropriate writ or order quashing and setting aside Exts.P5 and P6. b) Hold that the petitioner cannot be penalized for the non-submission of his W.P.(C)No.1349/2004 2 confidential records before the Departmental Promotion Committee and that it was the duty of respondents 3 to 6 to have the confidential records submitted in time for the consideration of the DPC, c) Hold that respondents 2 to 6 are liable to ensure the availability of the petitioner's confidential records at least before the next Departmental Promotion Committee, for its consideration. 2. I have heard Sri.P.Ramakrishnan, the learned counsel appearing for the petitioner and Sri.Muhammed Fazil, the learned government pleader appearing for the respondents. 3. The learned counsel for the petitioner submitted that Exts.P2 to P4 and P7 will show that the petitioner's confidential reports had been submitted by him and forwarded by the authorities concerned to the Departmental Promotion Committee. The learned counsel also submitted that the State Government have in Ext.P5 proceeded on the erroneous assumption that the petitioner has failed to submit his confidential reports. It is seen from Ext.P2 that the confidential reprots of the petitioner for the period from 9.7.2001 to 31.12.2001 have been received in the office of the Chief Engineer, Irrigation Department. Ext.P3 shows that the confidential reports of the petitioner for the period from 1.1.2002 to 31.12.2002 and from 1.1.2003 to 1.4.2003 have been submitted by the petitioner to the Executive Engineer, Public Works Department (Roads Division), Wayanad, Kalpetta and that he, in turn, has forwarded them to the higher authorities. Ext.P4 shows that the confidential reports of the petitioner from W.P.(C)No.1349/2004 3 1.7.2000 to 30.6.2001 were also submitted and likewise forwarded by the Executive Engineer, PWD, Roads Division, Kalpetta. It is, therefore, evident from Exts.P2, P3 and P4 that the confidential reports of the petitioner except for a period of 9 days from 1.7.2001 to 9.7.2001 have been forwarded to the authorities concerned. The only reason stated in Ext.P5 for reverting the petitioner and for not placing his case before the Departmental Promotion Committee is that he had failed to submit the confidential reports. This is also the stand taken in the counter affidavit filed on behalf of the first respondent. In the light of Exts.P2,P3 and P4 and also the recitals in Ext.P7, I find force in the contention of the learned counsel for the petitioner that the stand taken in Ext.P5 does not appear to be correct and that the government appears to have issued Ext.P5 without being aware of the fact that the confidential reports of the petitioner had in fact been forwarded. The learned counsel for the petitioner submitted that the matter therefore requires to be re-examined by the government, though the petitioner has retired from service on attaining the age of superannuation. 4. After hearing the learned counsel appearing for the petitioner and the learned Government Pleader appearing for the respondents, I am of the opinion that in view of Exts.P2, P3, P4 and P7, the matter requires to be examined afresh. Now that the petitioner has retired from service, it may not be necessary to quash Ext.P6. However, the government shall, notwithstanding the fact that the petitioner has retired from service, bestow its attention to the matter on the petitioner filing a representation within one month from today setting out his W.P.(C)No.1349/2004 4 contentions and producing the relevant records in support thereof. The State Government shall, within four months thereafter, reconsider the petitioner's claims and pass orders thereon. If the petitioner is found eligible for promotion as Divisional Superintendent, but for the fact that Ext.P5 was issued, he shall be given notional promotion to the said post and his pensionary benefits shall be re-fixed accordingly. It is made clear that the petitioner will not be entitled to any monetary benefit except pensionary benefits, in case his claim is upheld by the State Government.. The writ petition is allowed as above. No costs. P.N.RAVINDRAN, JUDGE css/