IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 14TH JUNE 2010 / 24TH JYAISTHA 1932 WP(C).No. 18133 of 2007(H) -------------------------- PETITIONER(S): --------------- M.MOHANAN, TAHSILDAR (RTD)., RESIDING AT MUKKADATH, PAYYOLI P.O., KOZHIKODE. BY ADV. SRI.N.SUGATHAN SMT.VARSHA BHASKAR SRI.S.PRASANTH (AYYAPPANKAVU) RESPONDENT(S): --------------- 1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF LAND REVENUE, PUBLIC OFFICE BUILDING, MUSEUM JUNCTION, THIRUVANANTHAPURAM. 3. THE DEPUTY LAND REVENUE COMMISSIONER AND CONVENER, DEPARTMENTAL PROMOTION COMMITTEE (LOWER) FOR REVENUE DEPARTMENT, PUBLIC OFFICE BUILDING, MUSEUM JUNCTION, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI. ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 18133 of 2007 APPENDIX EXHIBITS EXT.P1- EXTRACT OF THE FINAL SENIORITY LIST OF DEPUTY TAHSILDARS FOR THE PERIOD FROM 1.1..01 TO 31.12.2002 EXT.P2- TRUE COPY OF THE NOTIFICATION DATED 28.6.04 EXT.P3- TRUE COPY OF PROCEEDINGS NO.A6 103/2004(1) DATED 30.6.04 OF DISTRICT COLLECTOR, KOZHIKODE EXT.P4- TRUE COPY OF PROCEEDINGS DATED 20.7.04 OF DISTRICT COLLECTOR, IDUKKI EXT.P5- TRUE COPY OF REPRESENTATION DATED 21.7.04 TO THE 4TH RESPONDENT EXT.P6- TRUE COPY OF THENOTIFICATION DATED 18.9.04 EXT.P7- TRUE COPY OF THE ORDER DATED 23.9.04 OF THE 2ND RESPONDENT EXT.P8- TRUE COPY OF REPRESENTATION DATED 30.5.06 TO THE 2ND RESPONDENT EXT.P9- TRUE COPY OF JUDGMENT DATED 6.2.07 IN W.P.(C).4070/07 EXT.P10- TRUE COPY OF PROCEEDINGS NO.LRE 8754/07 DATED 13.3.07 OF THE 2ND RESPONDENT EXT.P11- TRUE COPY OF PROCEEDINGS NO.LRE2-25898/06 DATED 11.5.07 OF THE 2ND RESPONDENT (TRUE COPY) P.A TO JUDGE ANTONY DOMINIC, J ....................... W.P.(C).18133/2007 ....................... Dated this the 14th day of June, 2010 JUDGMENT Petitioner retired as Tahsildar on 30.3.2007. In this writ petition, the prayer sought is to quash Ext.P10 and to direct respondents 2 and 3 to assign the petitioner rank in Ext.P2 select list for promotion to the cadre of Tahsildar for the year 2004 in between Sl.Nos.67 and 68 and to grant him all benefits. 2. Petitioner joined service as Lower Division Clerk in 1975. He was promoted as Deputy Tahsildar on 5.10.2000. Ext.P1 is the seniority list of Deputy Tahsildar for the period from 1.1.2001 to 31.12.2002 where the petitioner was included at Sl.No.177. In Ext.P2 select list for promotion to the cadre of Tahsildar for the year 2004, petitioner was not included due to pendency of disciplinary proceedings. At the same time, by Ext.P3 order, some of his juniors, who were included in Ext.P2 select list, were promoted. 3. Subsequently by Ext.P4, disciplinary proceedings initiated against the petitioner were finalized by barring one increment W.P.(C).18133/07 2 without cumulative effect. On the strength of Ext.P4, petitioner submitted Ext.P5 seeking to review Ext.P2 select list. Accordingly DPC was held and by Ext.P6, Ext.P2 select list was ordered to be modified including the petitioner. In pursuance to the above, petitioner was promoted as Tahsildar and he was assigned Sl.No.120(a) in Ext.P2 select list. There upon petitioner submitted Ext.P8 contending that he should be included in Ext.P2 select list above Sl.No.68 who was his junior in Ext.P1 seniority list. Pursuant to the directions of this Court in Ext.P9 judgment, Ext.P8 representation was considered and was rejected by Ext.P10. It is challenging Ext.P10 and seeking consequential orders, writ petition is filed. 4. Learned counsel for the petitioner contended that in view of the provisions contained in the Special Rules and also in the KS & SSR, with the issuance of Ext.P4 order finalizing the disciplinary proceedings by imposing a minor penalty, petitioner is entitled to get his due position in Ext.P2 select list restored by including his name, above Sl.No. 68. W.P.(C).18133/07 3 5. On the other hand, in the counter affidavit filed by the respondents, their contention is that pursuant to Ext.P5 representation filed by the petitioner seeking review of Ext.P2 select list, DPC (Lower) was held on 14.9.2004 and that it was decided to include the petitioner in the supplementary select list. It is stated that accordingly he was assigned Sl.No.120(a). Respondents contend that as per Note (ii) to Clause 7 of Rule 28(b) (i) of KS & SSR, “Officers against whom departmental proceedings are taken for the imposition of a minor penalty may not be included in the select list.” It is stated that the petitioner was imposed a punishment by Ext.P4 and therefore, DPC had to consider his case afresh on its merit and that it was accordingly he was decided to be included at Sl.No.120(a). 6. The only question that arises for consideration is whether the petitioner is entitled to be restored the seniority position as reflected in Ext.P1 list, on his inclusion in Ext.P2 select list for promotion to the cadre of Tahsildar. Admittedly it was on account W.P.(C).18133/07 4 of the disciplinary proceedings, that he was not included in Ext.P2 select list. When the matter was heard, there was a controversy between the learned counsel for the petitioner and the learned Government Pleader as to whether the proceedings initiated against the petitioner were for the imposition of a major penalty. In my view, this controversy can be resolved, by a reference to Ext.P4 order imposing punishment on the petitioner. This order shows that the punishment was imposed on the petitioner, after issuing a show cause notice to him and without enquiry. It was in such proceedings that a minor penalty was imposed on the petitioner. Evidently, therefore, in view of the procedure adopted, the proceedings were for minor penalty only. If so, the question is whether the claim of the petitioner for restoration of seniority is liable to be considered. This, in my view, is governed by the provisions in Note (ii) to Clause 7 of Rule 28(b)(i) of KS & SSR, which reads hereunder. The vacancy that would have gone to the Officer but for his suspension [or the criminal W.P.(C).18133/07 5 proceedings/departmental proceedings against him for the imposition of a major penalty] should be filed only on a temporary basis by the next person in the approved list. If the Officer concerned is completely exonerated, he will be promoted thereafter to the post filled on a temporary basis, the arrangements made previously being reversed. If the exoneration is not complete, the Departmental Promotion Committee may decide each case on its merits. Where, however, the post which would have gone to the Officer but for his suspension or the criminal proceedings/departmental proceedings against him, ceases to exist before the conclusion of the disciplinary, he will be promoted to the first vacancy that my be available in future if he is found fit for promotion at that time. [If the Officers against whom departmental proceedings are taken for imposition of a minor penalty and who have been provisionally included in the select list are fully exonerated of the charges, their cases for promotion on the basis of such inclusion in the select list shall be considered. If the Officers are not fully exonerated of the charges, the Departmental Promotion Committee may decide each case on its own merit.] W.P.(C).18133/07 6 7. A reading of the above provision show that an Officer who is facing a minor penalty proceedings is entitled to have his name provisionally included in the select list. If he is fully exonerated, he is entitled to the benefit of such provisional inclusion. On the other hand, if he is not fully excluded, DPC may decide each case on merit.” 8. In this case, by Ext.P4 one increment of the petitioner was barred without cumulative effect which means that he was not fully exonerated. This necessarily called for a fresh consideration and decision by the DPC. It was accordingly that the petitioner's case was considered by the DPC on 14.9.2004 and Ext.P6 order was issued based on which petitioner was given promotion. It is in that DPC it was decided to assign the petitioner rank No.120(a) in Ext.P2 select list. In my view, assigning of rank No.120(a) in Ext.P2 select list has been done by the DPC exercising its powers under Note (ii) to Clause 7 of Rule 28(b)(i) of KS & SSR referred to above. Such W.P.(C).18133/07 7 decision is perfectly within its power. If so, petitioner cannot claim restoration of his place in Ext.P2 select list commensurate with the seniority position as reflected in Ext.P1 seniority list. I do not see anything illegal in the order passed. Therefore, the writ petition is only to be dismissed and I do so. ANTONY DOMINIC, Judge mrcs