IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 22ND FEBRUARY 2008 / 3RD PHALGUNA 1929 WP(C).No. 2698 of 2008(U) ------------------------- PETITIONER: ------------ V.K. BEENAKUMARI, MEMBER (DEPT.), KAIT & STAT, ADDL.BENCH,ERNAKULAM. BY ADV. SRI.B.GOPAKUMAR SMT.CHINCY GOPAKUMAR RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVT. OF KERALA, TAXES (D) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. K.P. ABDUL AZEEZ, PRESENTLY WORKING AS CONSULTANT (LAW) CENTRE FOR TAXATION STUDY, AVAILING THE INFRASTRUCTURE OF THE OFFICE OF THE JOINT COMMISSIONER (LAW), KOCHI, RESIDING AT MANJARI, CHEVARAMBALAM, KOZHIKODE. 3. COMMISSIONER, COMMERCIAL TAXES AND DIRECTOR, CENTRE FOR TAXATION STUDIES, GOVT.OF KERALA, THIRUVANANTHAPURAM. 4. DEPARTMENTAL PROMOTION COMMITTEE(HIGHER) FOR TAXES DEPARTMENT, REPRESENTED BY ITS CONVENOR, GOVT.SECRETARIATE, THIRUVANANTHAPURAM. 5. COMMISSION FOR SCHEDULED CASTES & SCHEDULED TRIBES, NEW DELHI. BY ADV. SRI.C.P.MOHAMMED NIAS - R2 GOVERNMENT PLEADER SRI.BEJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI,J. ------------------------- W.P ( C) No. 2698 of 2008 -------------------------- Dated this the 22nd February, 2008 J U D G M E N T Petitioner, who is presently working as Deputy Commissioner in the Department of Commercial Taxes, is aggrieved by the delay on the part of the Government in effecting promotions to the post of Joint Commissioner , in spite of vacancies existing in that post from 1.7.2006. Petitioner's claim in that behalf was directed to be considered by this Court as per the order in I.A.14226 of 2007 in W.P(C)No.9989 of 2005. Government considered the petitioner’s case and rejected it under Exhibit P5. Government does not, at this stage, propose to fill up the vacancy by way of provisional promotion. As as regards regular promotion, the stand taken is that Government is not in a position to finalise the seniority list of Deputy Commissioner, which is obviously necessary to convene a DPC and effect regular promotion. Exhibit P5 has been challenged in this writ petition. W.P ( C) No. 2698 of 2008 2 2. Petitioner has further challenged Exhibit P3 by which the 2nd respondent who was occupying the post of Joint Labour Commissioner till 30th June 2006 (whose retirement gave rise to the vacancy which is currently existing) has been appointed as Consultant (Law) at the Centre for Taxation Studies. Apparently, the engagement of the 2nd respondent under Exhibit P3 was further extended by a period of one year from the 1st of July, 2007. These actions are challenged by the petitioner on the premise that apparently the 2nd respondent, post retirement is acting as defecato Joint Commissioner and that there is no necessity to engage the services of a retired person. It is only to help the 2nd respondent that the Government has refused to consider even provisional promotion to the post of Joint Commissioner, it is contended. 3. A statement has been filed by the Government refuting these aspects. That the engagement of the 2nd respondent was effected considering his legal acumen and proven expertise in helping the Government to defend tax matters. This has nothing to do with the filling or non-filling up of the post of Joint Commissioner (Law). The allegation regarding any undue indulgence being shown to the 2nd W.P ( C) No. 2698 of 2008 3 respondent has also been refuted. 4. A counter affidavit has been filed by the 2nd respondent. It is contended that he was offered the engagement as Consultant (Law) under Exhibit P3, not on his application but after the Governing body of the Centre for Taxation Studies had taken a decision at the highest level, to utilize his services. Apparently, the Chief Minister and the Minister for Finance are also members of the governing body. He renders such services as he can, going by the considerable experience he had accumulated over the years in conducting matters on behalf of the Government both before this Court and before the Supreme Court. Neither Exhibit P3 nor Exhibit P4 has anything to do with the delay in finalization of the provisional seniority list of Deputy Commissioners and the delay in effecting promotions to the post of Joint Commissioner. 5. I heard the Learned counsel for the petitioner Mr.B.Gopakumar and the learned Government Pleader Mr.Bejoy Chandran and Sri. Mohammed Nias, learned counsel for the 2nd respondent. In my view, there is nothing which suggests a link between the engagement of 2nd respondent as a Consultant (Law) in the Centre for Taxation Studies, as per Exhibits P3 and P4 W.P ( C) No. 2698 of 2008 4 with the delay on the part of the Government in finalizing the seniority list of Deputy Commissioners. Adequate reasons have been given by the Government in the statement filed by them I am not able to find any illegality as such in the decision taken to avail the services of the 2nd respondent as a Consultant (Law). Once the services are decided to be utilized, there is nothing wrong in enabling him to give his best, in serving the Government as such. Apparently, his legal acumen or expertise in handling matters on behalf of the Government has been considered as valuable by the Government. This court would be slow in interfering with the decision as reflected in Exhibits P3 and P4, unless there is a demonstrated case of malafides or statutory infraction, I am not able to detect any in this case. 6. In so far as the petitioner’s claim for promotion to the post of Joint Commissioner is concerned, obviously she is entitled to be considered for promotion to the said post. Petitioner contends that she is the senior most amongst the Deputy Commissioners. Therefore, if regular promotions are effected there is absolutely no reason why she should not be promoted, it is contended. The post of Joint Commissioner is a selection post and it is upto the Government to fill up the same. Apparently, W.P ( C) No. 2698 of 2008 5 the delay in finalizing the seniority list of Deputy Commissioner is due to pendency of certain writ petitions before this Court, according to the Government. Learned counsel for the petitioner Mr. Gopakumar points out that there is no order of restraint by this Court against the finalization of the seniority list and the reason given by the Government in this regard does not seems to be tenable. But the decision to fill up the post which is essentially a selection post is ultimately vested with the Government. In the facts and circumstances of the case, I consider it appropriate to direct the Government to take a decision on the question as to whether the existing vacancy in the post of Joint Commissioner is to be filled up. This shall be done without reference to the pendency of writ petition No.9989 of 2005. At any rate, if the Government decides that orders of promotion could be made only after getting clarifications from this Court, it is perfectly open to them to do so. There does not seem to be any justification in not taking a decision in that behalf. 7. Learned counsel for the petitioner submits that even if the Government decides to defer the question of regular promotion there is nothing that stands in the way of provisional W.P ( C) No. 2698 of 2008 6 promotion being effected in the absence of select list. This is especially so when the eligible incumbents are impending retirement. Petitioner is due to retire in 2009, it is submitted. In the facts and circumstances of the case, the writ petition is disposed of in the following terms: i) The 1st respondent shall take a decision as to whether the existing vacancy of Joint Commissioner in the Department of Commercial Taxes is to be filled up on a regular basis by effecting regular promotion from among the Deputy Commissioners. This shall be done within a period of two months from today. Such decision shall be taken without reference to the pendency of Writ Petition No.9989 of 2005. If actual implementation of the orders require any clarification from this Court in W.P(C) 9989 of 2005, Government is at liberty to make appropriate motion in that behalf. ii) If the Government decides that regular promotion is not feasible, for the post of Joint Commissioner, it shall consider the case of the petitioner and other eligible incumbents for provisional promotion to the W.P ( C) No. 2698 of 2008 7 said post. While doing so, Government shall keep in mind the judgment in W.A Nos.200 of 1986, 890 of 2002 and 826 of 2003. iii) The filling up of the post of Joint Commissioner either on a regular basis or on a provisional basis is not in any manner connected with the engagement of the 2nd respondent as a Consultant, as already mentioned above. The challenge against Exhibits P3 and P4 is repelled. (V.GIRI, JUDGE) ma W.P ( C) No. 2698 of 2008 8 K.THANKAPPAN,J CRL.A. NO.92 OF 1999 ORDER 25th May, 2007