IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 4TH APRIL 2011 / 14TH CHAITHRA 1933 WP(C).No. 26675 of 2010(H) ---------------------------------------- PETITIONER(S): ------------------------ K.M.MATHEW, TALUK SUPPLY OFFICER, CHAVAKKAD, THRISSUR. BY ADVS. SMT.S.KARTHIKA SRI.M.S.UNNIKRISHNAN SRI.M.R.ANISON SMT.K.P.GEETHA MANI RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REP.BY ITS SECRETARY TO GOVERNMENT, FOOD AND CIVIL SUPPLIES DEPARTMENT, GOVT.SECRETARIAT, TRIVANDRUM. 2. THE DEPARTMENTAL PROMOTION COMMITTEE (HIGHER), REPRESENTED BY ITS CHAIRMAN, PUBLIC SERVICE COMMISSION, PATTOM P.O., TRIVANDRUM. 3. THE COMMISSIONER, FOOD AND CIVIL SUPPLIES DEPARTMENT, TRIVANDRUM. R1 & R3 BY GOVERNMENT PLEADER SRI. ANTONY MUKKATHA R2 BY ADV.SRI.P.C.SASIDHARAN, SC FOR PSC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.26675/2010 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE SELECTLIST PUBLISHED ON 27/3/2010. P2 COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 12/4/2010 BEFORE THE 1ST RESPONDENT. P3 COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 19/4/2010. P4 COPY OF THE LETTER DATED 15/5/2008 SUBMITTED BY THE T.S.O, CHERTHALA TO THE DSO, ALAPPUZHA. P5 COPY OF THE CHARGE SHEET AND CHARGE MEMO ISSUED BY THE 3RD RESPONDENT DATED 3/2/2009. P6 COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. DATED ON 30/3/2009. P7 COPY OF THE GAZETTE NOTIFICATION DATED 27/1/2004 P8 COPY OF THE CIRCULAR NO.5328/RULES-1/99/P&ARD DATED 3/6/1999. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts S. SIRI JAGAN, J. ----------------------------------- W.P.(C) No.26675 OF 2010 --------------------------------------- Dated this the 4th day of April, 2011 JUDGMENT The petitioner is working as a Taluk Supply Officer. According to the petitioner, the petitioner is fully qualified for consideration for promotion to the post of District Supply Officer. The petitioner alleges that in the select list published on 27.3.2010, the petitioner has not been included, whereas several of his juniors have been included. The petitioner has filed Ext.P2 appeal against the select list which has not been considered. The petitioner submits that the petitioner has not been considered only because of a pending disciplinary proceedings in respect of which Ext.P5 charge memo dated 3.2.2009 has been issued. The petitioner further submits that the petitioner has filed a detailed reply Ext.P6 to the charge memo and no action whatsoever has been taken on the charge memo thereafter. At the same time, according to the petitioner, in respect of the same charges two other employees were proceeded against and they were W.P.(C)No.26675/10 2 reinstated in service. The petitioner submits that in the above circumstances, superseding the petitioner for promotion is quite illegal and arbitrary. The petitioner, therefore, seeks the following reliefs: “a) issue a writ of mandamus or other appropriate writ order or direction directing the respondents to issue a revised select list for appointing to the post of D.S.O. based on Ext.P2 and P3 representation filed by the petitioner, if necessary by convening a review D.P.C at the earliest b) issue a writ of mandamus or other appropriate writ or order or direction directing respondents 1st and 2nd to promote the petitioner to D.S.O. post with effect from the date on which his immediate junior in T.S.O is promoted to that post; c) issue a writ of mandamus or other appropriate writ order or direction directing respondents 1 and 2 to finalise the proceedings taken against petitioner based on Ext.P5 at the earliest within a cut off date fixed by this Hon'ble Court; d) issue a writ of mandamus or other appropriate writ order or direction directing respondents 1 and 2 to provisionally promote the petitioner to the post of D.S.O dehors Ext.P5 memo of charges based on Ext.P8 circular.” 2. A counter affidavit has been filed on behalf of the 1st respondent wherein it is admitted that the Departmental Promotion Committee considered the case of the petitioner twice, the second one being a Review Departmental Promotion Committee and the Departmental Promotion Committee W.P.(C)No.26675/10 3 decided to supersede the petitioner on the ground that the disciplinary proceedings are pending against the petitioner. It is also specifically admitted therein that if the petitioner's name had been included in the select list, he would have been promoted earlier to one Sri. T.K. Sivaprasad, who has been promoted. 3. I have considered the rival contentions in detail. The procedure for consideration by the Departmental Promotion Committee is specifically prescribed in Rule 28 of the Kerala State and Subordinates Service Rules. The Rule does not prohibit consideration of persons against whom disciplinary proceedings are pending for promotion. On the other hand, Note to Rule 28(i) (b) (7) specifically stipulates that the persons against whom disciplinary proceedings are pending should also be considered for inclusion in the select list without reference to the disciplinary proceedings and their place in the select list has to be fixed. But, they shall not be promoted during the pendency of the disciplinary proceedings. Admittedly, that procedure has not been followed by the respondents in the matter of consideration of the petitioner for inclusion in the select list by the Departmental Promotion W.P.(C)No.26675/10 4 Committee. They have frankly admitted that the petitioner was superseded only because of the pendency of the disciplinary proceedings and his place in the select list was not fixed. That is clearly against the procedure prescribed in Note to Rule 28(i) (b) (7) of the KS & SSR. As such the action of the respondents in not considering the petitioner for promotion and inclusion in the select list is clearly against the Rules and is therefore, unsustainable. The petitioner has, in the meanwhile, retired from service on 31.3.2011. In the above circumstances, this writ petition is disposed of with the following directions: The respondents shall see that a review DPC is convened and the petitioner's case for promotion and inclusion in the select list is considered by the DPC without reference to the disciplinary proceedings pending and his place in the select list shall be fixed accordingly. The disciplinary proceedings initiated against the petitioner shall be completed, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. Thereafter, considering the decision in the disciplinary proceedings, further action based on the recommendation of the Departmental W.P.(C)No.26675/10 5 Promotion Committee shall be taken in accordance with the Rules, as expeditiously as possible, at any rate, within one month therefrom. If ultimately it is found that the petitioner is eligible for promotion in accordance with his place in the select list, the petitioner shall be given all consequential monetary benefits arising from such promotion within a further period of one month therefrom. S. SIRI JAGAN, JUDGE acd W.P.(C)No.26675/10 6