IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 27TH FEBRUARY 2009 / 8TH PHALGUNA 1930 WP(C).No. 32386 of 2008(E) --------------------------------------- PETITIONER(S): ----------------------- 1. THOMAS PAUL, ASSISTANT PUBLIC PROSECUTOR GRADE-I, KOTHAMANGALAM. 2. KERALA ASSISTANT PUBLIC PROSECUTOR'S ASSOCIATION, T.C.10/617,'INDIRAGIRI',S.V.SASTHRI GARDENS, MANNANTHALA, THIRUVANANTHAPURAM, REP. BY ITS PRESIDENT, V.RADHAKRISHNAN NAIR, DEPUTY DIRECTOR OF PROSECUTION AND SENIOR ASSISTANT PUBLIC PROSECUTOR, KOLLAM. BY ADVS. MR.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA MR.PETER JOSE CHRISTO MR.S.A.ANAND RESPONDENT(S): ----------------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN 695 001. 2. DEPARTMENTAL PROMOTION COMMITTEE FOR PROMOTION TO THE POSTS OF ASSISTANT PUBLIC PROSECUTOR GRADE-1 AND DEPUTY DIRECTOR OF PROSECUTION AND SENIOR ASSISTANT PUBLIC PROSECUTOR HOME DEPT. REP.BY ITS CONVENER,JOINT SECRETARY TO GOVERNMENT, HOME (C)DEPT.,SECRETARIAT, TVM.695001. GOVERNMENT PLEADER FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/02/2009, THE COURT ON 27/02/2009 DELIVERED THE FOLLOWING: W.P.(C) NO.32386/2008 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE G.O.(MS) NO.165/06/HOME DT. 26.9.06. P1(a):- COPY OF THE RELEVANT EXTRACT OF THE FINAL SENIORITY LIST OF DEPUTY DIRECTORS OF PROSECUTION/ASSISTANT PUBLIC PROSECUTORS OF THE SATE. P2:- COPY OF THE GO(RT) NO.2032/07 HOME DT. 30.7.07. P3:- COPY OF THE G.O.(RT) 277/08/HOME DT. 25.1.08. P4:- COPY OF THE REPRESENTATION DT. 15.3.99 SUBMITTE BY THE IST PETITIONER BEFORE THE GOVERNMENT. P5:- COPY OF THE REPRESENTATION DT. 20.2.06 SUBMITTE BY THE IST PETITIONER BEFORE THE GOVERNMENT. P6:- COPY OF THE REPRESENTATION T. 19.7.07 SUBMITTED BY THE IST PETITIONER BEFORE THE GOVERNMENT. P7:- COPY OF THE G.O.(RT) NO.2589/08/HOME DT. 18.8.08. P8:- COPY OF THE REPRESENTATION DT. 5.2.08 SUBMITTED BY THE 2ND PETITIONER ASSOCIATION BEFORE GOVERNMENT BY THE PRESIDENT OF THE ASSOCIATION. P9:- COPY OF THE GOVERNMENT LETTER NO.10317/A1/08/P&ARD DT. 13.8.08. P9(a):- COPY OF THE U.O.NOTE NO./15981/A1/07/P&ARD DT. 24.11.07 OF THE PERSONNEL AND ADMINISTRATIVE REFORMS (ADVICE A ) DEPARTMENT (ENCLOSURE). P9(b):- COPY OF THE U.O.NOTE NO.6035/A1/08/P&ARD DT. 9.6.08 OF THE PERSONNEL AND ADMINISTRATIVE REFORMS (ADVICE A) DEPARTMENT (ENCLOSURE). P10:- COPY OF THE G.O.(P) NO.83/07/FIN DT. 1.3.07. P11:- COPY OF THE G.O.(P) NO.515/07/FIN DT. 19.10.07. /TRUE COPY/ P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 32386 of 2008-E - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of February, 2009. JUDGMENT The first petitioner is an Assistant Public Prosecutor Grade I now working at Kothamangalam and the second petitioner is the Kerala Assistant Public Prosecutors Association represented by its President who is now working as Deputy Director of Prosecutions and Senior Assistant Public Prosecutor, Kollam. They are espousing the the cause of Asst. Public Prosecutors Grade II, Grade I and Deputy Directors of Prosecutions who are members of the association. 2. Shortly stated, the issue concerns the question whether the delay occurred in convening the Departmental Promotion Committee from 1998 to 2007 can be a ground to deny them the benefits for promotion to Grade I on the respective dates of occurrence of vacancies. 3. The service particulars in respect of the first petitioner are the following: He was appointed as per order dated 19.3.1991 as Asst. Public Prosecutor Grade II. This was regularized as per G.O.(Rt) No.2668/92/Home dated 6.6.1992. The satisfactory completion of the period of his probation as Assistant Public Prosecutor Grade II was declared WPC 32386/2008 2 as per G.O.(Rt) No.1730/1996/Home dated 17.7.1996. In the final seniority list of Deputy Director of Prosecution/Asst. Public Prosecutors dated 26.9.2006 he is included as serial No.48. This is evidenced by Exts.P1 and P1(a). 4. The next promotion post of Asst. Public Prosecutor Grade II is the post of Asst. Public Prosecutor Grade I. Going by Note 2 to Rule 3 of the Special Rules governing them, the appointment by promotion to the categories of Deputy Director of Prosecution and Senior Asst. Public Prosecutor and Asst. Public Prosecutor Grade I shall be made from the select list of eligible candidates prepared by the Committee or the Board constituted for the purpose. 5. By G.O.(MS) No.86/98/Home dated 17.4.1998, the Government constituted a Departmental Promotion Committee for preparing the select list for appointment to the categories of Asst. Public Prosecutor Grade I and Deputy Director of Prosecution and Senior Asst. Public Prosecutor in the State. According to the petitioners, the first petitioner was entitled to be promoted as Asst. Public Prosecutor Grade I against a vacancy that arose on 1.7.1998 consequent on the retirement on superannuation of one Shri M. Kunhikrishnan. 6. The select list published by the Departmental Promotion Committee thus constituted, was published as per Ext.P2 dated 30.7.2007 WPC 32386/2008 3 and the writ petitioner is included as serial No.2 therein. It is stated that the select list was prepared for all the vacancies in existence from 16.9.1996, i.e. the date of issuance of Special Rules till 30.7.2007. In the select list the year for which or the vacancies for which the select list is prepared, is not specified. 7. Subsequently, the first petitioner and 49 others who are members of the second petitioner association were promoted as Asst. Public Prosecutor Grade I with effect from 30.7.2007, as per Ext.P3. By Ext.P7, the Government issued a modification to the said order stating that the date 307.2007 will be corrected as the date of assumption of charge in the promoted post. 8. Aggrieved by Ext.P7 and the denial of promotion to them with retrospective effect from the due dates, Ext.P8 representation was filed. It is in these circumstances the petitioners have approached this court seeking for various reliefs. 9. Heard learned counsel for the petitioners and the learned Govt. Pleader. 10. By relying upon the provisions of Rule 28(4) of KS & SSR, learned counsel for the petitioners submitted that the Departmental Promotion Committee herein, was bound to prepare the select list as provided in sub-rules (a) and (b) therein. It is pointed out that in accordance WPC 32386/2008 4 with the date of occurrence of vacancies the eligibility of the petitioners ought to have been considered. The D.P.C. ought to have met periodically and should have prepared such a select list during a calendar year for the vacancies estimated to arise in the next calendar year and publish the same not less than 31st of December of that year. Thus, all the parties would have obtained promotion with retrospective effect from the respective due dates. It is pointed out that failure to do so has resulted in denial of due benefits to the petitioners. In this connection, learned counsel for the petitioners relied upon Exts.P9 and P9(a). Ext.P9 is the advice given by the Personnel and Administrative Reforms (Advice A) Department in the matter. In Ext.P9 (a), the said department was of the view that the D.P.C. has not included the eligible persons for promotion as Asst. Public Prosecutor Grade I in the respective years after assessing the vacancy position and the eligibility and suitability of the incumbents for promotion. Thus, it is pointed out that in spite of the legal position being explained by the Personnel and Administrative Reforms (Advice A) Department, the Home Department has chosen to deny the benefits to the petitioners. 11. One more thing to be noticed is regarding the deletion of Rule 23 (c) of the Part I K.S.R. as per Ext.P10. The said notification is dated 1.3.2007. In the case of Asst. Public Prosecutor Grade II on promotion as Asst. Public Prosecutor Grade I, there are no change of duties. Rule 23(c) WPC 32386/2008 5 permits enjoying the promotion with all monetary benefits from the date of occurrence of vacancy itself without assuming the charge if there is no change of duty. Later, the Government issued Ext.P11 by which it was clarified that in cases of promotion which do not involve a change of duties, the promotions will have notional effect from the date of occurrence of vacancy or the date of acquiring eligibility for promotion, as the case may be, but monetary benefits will be admissible only for a period of one year prior to the date of order of promotion. This was given effect from 1.3.2007. Learned counsel for the petitioners submitted that the same will not affect the case of the petitioners, since the vacancies arose between 1996 to 2007. 12. Learned counsel for the petitioners relied upon the principles stated by a Division Bench of this court in Sucheendran v. State of Kerala (2005 (2) KLJ 401) interpreting Rule 23 (c) of Part I K.S.R., wherein it was held that there is a clear provision in service rules that promotions which do not involve a change of duties should be given effect from the date on which the vacancy arose and arrears of difference in salary should be given when there is denial of promotion. That was a case concerning the same grade herein, viz. Asst. Public Prosecutor Grade I. 13. The respondents have filed a counter affidavit. It is stated that the D.P.C. was constituted as per Govt. Order dated 17.4.1998. The ratio WPC 32386/2008 6 between Asst. Public Prosecutor Grade I and Asst. Public Prosecutor Grade II was revised with effect from 1.7.1988 as per Govt. Order dated 12.3.1991, whereby the Senior Grade recommended in G.O.(P) No.480/89/Fin. Dated 1.11.1989 was cancelled. The ratio fixed is 1 : 1. The sanctioned post of Asst. Public Prosecutors are 125. Therefore, for retaining the grade ratio among Asst. Public Prosecutors Grade I and Grade II as 1 :1, there must be 62 Asst. Public Prosecutors Grade I and 63 Asst. Public Prosecutors Grade II. At the time of the convening of the D.P.C., there were only 12 Asst. Public Prosecutor Grade I and out of which, two are to be promoted as Deputy Director of Prosecutions. Consequently, 50 Asst. Public Prosecutors Grade II were considered for promotion as Asst. Public Prosecutors Grade I in the D.P.C. held on 7.7.2007. It is admitted in para 4 of the counter affidavit that the D.P.C. could not be convened before 2007 due to administrative reasons. Accordingly, justification is sought on the ground that the select list prepared was approved by the Government by G.O. dated 30.7.2007 and hence the promotion can be given effect to only prospectively. 14. A reference to the relevant rules is necessary to decide the issue. Sub-rule (4) of Rule 28(b) of the KS & SSR provides that “the Committee shall meet periodically to prepare select lists, in the order of merit, of the Officers selected for appointment.” It is further provided that the procedure WPC 32386/2008 7 provided in sub-rules (a) to (e) have to be followed by the D.P.C. for preparation of the select list. Under sub-rule (a) of Rule 28(b)(4), the select list shall be prepared during a calendar year for the vacancies estimated to arise in the next calendar year. Under sub-rule (b) during the first six months of the year action shall be taken to make all the confidential reports up to date, adverse remarks communicated, order for expunging the remarks issued, wherever necessary. Under sub-rule 8 (a) of Rule 28(b), the select list prepared by the D.P.C. shall be published by the convener of the committee after approval by the Government. Thus, the D.P.C. should have prepared the select list for each calendar year for the vacancies estimated to arise in the next calendar year. Herein, Ext.P2 will show that the entitlement of petitioners for assignment of vacancies in respect of the calendar years from 1998 to 2007 has not been considered. Names of 50 persons have been shown as enblock in Ext.P2 without assigning any particular year, and after estimating the vacancies. Thus, all of them have been promoted by a common order with effect from 30.7.2007 as per Ext.P3. 15. Thus, the persons working as Asst. Public Prosecutors Grade II have been denied due promotion from the respective years solely based on the date of occurrence of vacancies because of the delay in convening the D.P.C. The question is whether mere delay in convening the meeting of the D.P.C. would affect their rights adversely. WPC 32386/2008 8 16. The title to obtain promotion is clearly as on the date of occurrence of vacancy subject to seniority and eligibility which legal position is well settled. Therefore, when the D.P.C. prepared the select list, their entitlement for promotion ought to have been considered in the light of the vacancies which arose in the respective years and the eligibility of the persons concerned. In that view of the matter, the select list, Ext.P2 prepared is not in accordance with the relevant rules. In Ext.P8 representation, this aspect was pointed out by the petitioners. In Ext.P9, the legal position has been correctly explained by the Personnel and Administrative Reforms (Advice-A) Department. Even though in the counter affidavit it is stated that the representation is being examined, no action was taken by the Government to redress their grievance also. No tangible reasons have been stated as to the administrative delay attributed in convening the DPC. When an administrative action is unsupported by reasons, it results in arbitrariness. 17. In the light of the position emerging from the relevant rules, it is clear that the denial of promotion is illegal. The right of the first petitioner and the members of the second petitioner association who are similarly placed, for promotion in respect of vacancies which have arisen after the date of publication of the Special Rules (6.9.1996) and as on the dates of occurrence of each vacancies is hereby declared. The same will be subject WPC 32386/2008 9 to eligibility and suitability. Ext.P7 cannot have any legal effect in that view of the matter and the same is quashed. Rule 23(c) was deleted only with effect from 1.3.2007, Therefore, the assessment of vacancies have to be made accordingly, taking into account the dates of occurrence of vacancies as the amendment to Rule 23(c) is not retrospective. A revised select list will be published accordingly. There will be a direction to the respondents to grant retrospective promotion from the dates of occurrence of vacancies based on such revised select list. They will be entitled for consequential benefits also. Orders shall be passed within a period of three months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/