IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 23RD DAY OF DECEMBER 2011/2ND POUSHA 1933 WPC.No. 2581 of 2010 (W) ======================== PETITIONER ========== 1 K.KANNAN, ASSISTANT DIRECTOR OF SURVEY AND LAND RECORDS (MAPPING) M.O.ROAD THRISSUR. BY ADV.SRI. KALEESWARAM RAJ RESPONDENTS =========== 1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT DEPARTMENT OF SURVEY & LAND RECORDS SECRETARIATE THIRUVANANTHAPURAM. 2 DIRECTOR OF SURVEY & LAND RECORDS VAZHUTHACAUD THIRUVANANTHAPURAM. 3 DEPARTMENTAL PROMOTION COMMITTEE, (FOR PROMOTION TO THE POST OF DEPUTY DIRECTOR (OFFICE WING) REPRESENTED BY ITS CONVENER GOVERNMENT SECRETARIATE THIRUVANANTHAPURAM 4 D.VILASINI THANKACHY, DEPUTY DIRECTOR (OFFICE WING) DIRECTORATE OF SURVEY & LAND RECORDS THIRUVANANTHAPURAM. R1 TO R3 BY GOVERNMENT PLEADER MR. A. J. JOSE R4 ADV. SRI.V.AJAYKUMAR SRI.T.M.CHANDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.11.2011, THE COURT ON 23.12.2011 DELIVERED THE FOLLOWING: W.P.(c) NO. 2581 OF 2010 APPENDIX PETITIONER'S EXHIBITS : EXT. P1 : TRUE COPY OF G.O. (Rt) NO. 3263/07 DATED 01.08.2007 EXT. P2 : TRUE COPY OF THE REPRESENTATION DATED 01.11.2008 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT. P3 : TRUE COPY OF THE LETTER DATED 03.01.2009 SUBMITTED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT. EXT. P4 :TRUE COPY OF G.O.(Rt.) NO. 789/09 DATED 28.02.2009 EXT. P5 : TRUE COPY OF THE REPRESENTATION DATED 11.02.2009 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT. P6 : TRUE COPY OF THE LETTER DATED 09.03.2009 EXT. P7 : TRUE COPY OF LETTER DATED 15.06.2009 EXT. P8 : TRUE COPY OF THE REPRESENTATION DATED 01.10.2009 SUBMITTED BY THE PETITIONER. EXT. P9 : TRUE COPY OF THE LETTER DATED 07.10.2009 EXT. P10 : TRUE COPY OF G.O. (Rt.) NO. 64/10 DATED 07.01.2010 EXT. P11 : TRUE COPY OF RELEVANT PAGE OF THE ADMINISTRATIVE REPORT FOR THE YEAR 2006 - 2007 EXT. P12 : TRUE COPY OF THE LETTER DATED 19.04.2007 FOURTH RESPONDENT'S EXHIBITS : EXT. R4(a) : TRUE COPY OF THE G.O. (MS) NO. 64/10/REVENEU DATED 07.01.2010 EXT. R4(b) : TRUE COPY OF THE ORDER DATED 21/02/2008 EXT. R4(c) : TRUE COPY OF THE EXPLANATION EXT. R4(d) : TRUE COPY OF THE ENQUIRY REPORT DATED 28/05/2009 EXT. R4(e) : TRUE COPY OF THE REQUEST DATED 08/08/2008 EXT. R4(f) : TRUE COPY OF COMPLAINT DATED 20/10/2009 /TRUE COPY/ P.A. TO JUDGE P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P (C) No. 2581 of 2010 ~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 23rd day of December, 2011 JUDGMENT Denial of promotion to the post of Deputy Director (Office Wing) in the Kerala Land Survey Records (Service), in spite of a clear vacancy and the credentials of the petitioner, who is a qualified hand in the feeder category, is the dispute involved. 2. The petitioner joined the service as Second Grade Draftsman on 01.09.1975 and obtained various promotions. He was elevated to the post of Assistant Director (Mapping) as per Ext. P1 order dated 01.08.2007 and joined duty at Trichur on 01.11.2007. On completion of the probation satisfactorily on 01.11.2008, the petitioner submitted Ext. P2 representation for declaration of probation, which was forwarded by the second respondent to the first respondent, vide Ext. P3. W.P. (C) No. 2581 of 2010 : 2 : But, the probation was declared only much later, as per Ext. P4 order dated 28.02.2009, however, making it clear it was satisfactorily completed w.e.f. 01.11.2008. In the said circumstances, the petitioner submitted Ext. P5 representation before the first respondent on 11.02.2009, pointing out the declaration of probation and claiming promotion to the post of Deputy Director (Office Wing) in the existing vacancy. It was simultaneously pointed out that the fourth respondent, who was senior to the petitioner, was facing disciplinary proceedings and that her probation was not declared as complete, for such promotion. 3. The case of the petitioner was recommended by the second respondent vide Ext. P6 dated 09.03.2009. But, the petitioner was served with Ext. P7 communication dated 15.06.2009 declining the promotion, stating that, the petitioner would retire only on 31.03.2010 and as such, no 'provisional W.P. (C) No. 2581 of 2010 : 3 : promotion' under Rule 31 (a) (i) of Part II KS & SSR could be extended to him. Since the claim for regular promotion was not considered and no DPC/Adhoc DPC was convened in tune with the mandate under Rule 28 (b) (i) (4), the petitioner preferred Ext. P8 representation on 01.10.2009, which was also recommended by the second respondent, as borne by Ext. P9. However, without any regard to the said claim, the vacancy was later filled up by the first respondent, granting provisional promotion to the 4th respondent, as per Ext. P10 order, which made the petitioner to approach this Court by filing the above Writ Petition, seeking to set aside Exts. P7 and P10 and to cause the petitioner to be promoted to the post of Deputy Director (Office Wing) w.e.f. 01.11.2008, the date of declaration of his probation. 4. After granting four adjournments, awaiting statement, the Writ Petition was admitted on W.P. (C) No. 2581 of 2010 : 4 : 22.03.2010, with the following observations. “Admit. Learned Government Pleader takes notice on behalf of respondents 1 and 3. Petitioners shall take out notice by Special Messenger to the fourth respondent. The learned Government Pleader shall explain as to why although in several other cases which have come up before me, the Government takes a stand that persons against whom disciplinary proceedings or criminal investigation are pending, cannot be considered even for provisional promotion, the fourth respondent has been treated differently and granted provisional promotion eventhough admittedly a vigilance case is pending against the fourth respondent. Post on 29.03.2010”. Subsequently, when the matter came up for consideration on 03.03.2010, the factum of retirement of the petitioner as well as the fourth respondent from the service, after attaining the age of superannuation on 31.03.2010, was taken note of and it was ordered that the retirement of the petitioner will not disable the petitioner in W.P. (C) No. 2581 of 2010 : 5 : pursuing the writ petition with regard to the surviving issues. The matter came up again on 03.10.2011, when the following interim order was passed. “The Govt. Pleader again seeks time to file counter affidavit. I notice that a number of chances have given for filing counter affidavit. However, counter affidavit is still not filed on behalf of respondents 1 to 3. Nevertheless, time as granted so as to provide an opportunity to the said respondents to answer the allegations made in the writ petition, as a matter of indulgence. Post after three weeks. Counter affidavit in the meantime”. The position continued to be the same and no counter affidavit was filed from the part of the respondents 1 to 3, till the matter was finally heard on 03.11.2011. As such, the specific pleadings raised by the petitioner stand uncontroverted. 5. The 4th respondent has filed a counter affidavit, seeking to sustain provisional promotion given to her as per Ext. P10. It is stated that, W.P. (C) No. 2581 of 2010 : 6 : no disciplinary proceedings were pending against her, but for a preliminary enquiry and that the respondents were actually satisfied with her innocence in respect of the subject matter involved. It is also stated that, the non-declaration of the probation of the 4th respondent was for no fault on the part of the said respondent and it was arbitrarily prolonged for no reason at all. Any how, the specific averments of the petitioner and the observations made by the second respondent in the recommendations like Exts. P3, P6 and P8 to the effect that the probation of the 4th respondent was not declared, stand virtually conceded. 6. Mr. Kaleeswaram Raj, the learned counsel for the petitioner submits that, in spite of the retirement of the petitioner from the service on 31.03.2010, the petitioner is entitled to have the matter pursued, more so, in view of the interim order passed by this Court on 31.03.2010. The W.P. (C) No. 2581 of 2010 : 7 : learned counsel submits that, the specific averments as to the eligibility of the petitioner to be promoted to the then existing vacancy of Deputy Director and the non-declaration of probation of the 4th respondent are not rebutted by any of the respondents. Referring to the mandate under Rule 28 (b) (i) (4), the learned counsel for the petitioner submits that, it is obligatory for the Government to have convened a regular DPC for effecting promotion to the post in question and the lapse is a clear instance of failure in discharging the statutory duties. When satisfactory declaration of probation of the petitioner was brought up, seeking for promotion to the then existing vacancy as per Ext. P5, the same was turned down, in spite of Ext. P6 recommendation of the second respondent, by issuing Ext. P7, stating that, no 'provisional promotion' can be given to the petitioner, as he was to retire only on 31.03.2010. When Ext. P8, representation W.P. (C) No. 2581 of 2010 : 8 : was preferred for regular promotion supported by Ext. P9 recommendation of the second respondent, also pointing out the non declaration of satisfactory completion of probation of the 4th respondent, it was also given a 'go-bye' and the 4th respondent was given 'provisional promotion' under Rule 31 (a) (i) of KS & SSR vide Ext. P1. The respondents, all along were adopting “double standards” allegedly to favour the 4th respondent and to defeat the rights of the petitioner, which is stated as violative of the relevant provisions of the Constitution of India. 7. The learned counsel appearing for the 4th respondent, with reference to the contents of the counter affidavit, submits that non declaration of probation of the 4th respondent was being prolonged for no fault on the part of the said respondent. It is pointed out that, there is nothing wrong, illegal or arbitrary on the part of the first respondent in W.P. (C) No. 2581 of 2010 : 9 : having ordered 'provisional promotion' of the 4th respondent vide Ext. P10 and that the same is well within the four walls of the law. 8. The learned Government Pleader, though sought to sustain Ext.P10 order of provisional promotion given to the 4th respondent, did not add anything further as to why, the request of the petitioner to have regular promotion was not considered, undisputedly when the petitioner was there in the feeder category and the petitioner's probation was declared on 01.11.2008, while the probation of the 4th respondent was not declared satisfactorily. Nothing could be stated as well, as the respondents 1 to 3 have not chosen to file any counter affidavit 9. In response to Ext. P5 representation preferred by the petitioner, pointing out the credentials, supported by Ext. P6 recommendation of the second respondent, the first respondent issued Ext. P7 denying the benefit of promotion for the W.P. (C) No. 2581 of 2010 : 10 : reason that the petitioner was to retire from service only on 31.03.2010 and was having a longer term of more than six months. This disabled the first respondent from considering the 'provisional promotion' of the petitioner, in view of the mandate under Circular bearing No.5328/Rule1/99/P&ARD dated 03.06.1999, referred to therein stipulating that the ban of provisional promotion could be lifted only in respect of a person having less than six months of service. It is true, that such an exercise for granting the provisional promotion has been pursued granting the same to the 4th respondent, as per Ext. P10, when the said respondent, who is being senior to the petitioner was having only less than six months to retire from the service. 10. It is true, that pendency of disciplinary proceedings is not a bar while considering the candidature of an employee for promotion, in view of the settled position of law. Similarly, non W.P. (C) No. 2581 of 2010 : 11 : declaration of satisfactory completion of probation, cannot place any hurdle in respect of the 'provisional promotion' under Rule 31 (a) (i) of KS & SSR, which on the other hand, is relevant or applicable only in respect of 'regular promotion'. As it stands so, there is nothing wrong, arbitrary or illegal in having given provisional promotion to the 4th respondent as per Ext. P10, more so, when she was admittedly senior to the petitioner. But here, the question is different, whether there is any justification on the part of the respondents 1 to 3, in not considering the claim for 'regular promotion' of the petitioner, in spite of the fact that he was a qualified hand, having declared his probation w.e.f. 01.11.2008. Absolutely no explanation is forthcoming from the part of the respondents 1 to 3, as to why no DPC/ Adhoc DPC was convened in tune with the relevant provisions of law for considering the claim for regular promotion to the petitioner, W.P. (C) No. 2581 of 2010 : 12 : despite the availability of the clear vacancy in the post of Deputy Director (Office Wing). Silence speaks more in the context. 11. Rule 28 (b) (i) (4) of Part II KS & SSR enables the respondents 1 to 3 to have convened a Higher DPC or even Adhoc DPC for considering the claim for regular promotion to the post in question. The said Rule reads as follows : “Rule 28 (b) (i) (4). The Committee shall meet periodically to prepare select lists, in the order of merit, of the Officers selected for appointment. The Committee may also hold ad hoc meetings for the purpose of making selection to particular vacancies whenever occasion arises. The criterion for assessment of merit shall be the confidential reports of the officers. The confidential reports of th e officers for atleast the preceding three years shall be made available to the Committee for this purpose. Where remediable adverse remarks recorded in the confidential report of a Government Servant are not communicated to the officer concerned, such remarks shall be ignored by the Departmental Promotion Committee while considering his case for promotion. The following procedure shall be adopted by the Departmental Promotion Committee for the W.P. (C) No. 2581 of 2010 : 13 : preparation of select lists : - (a) Select lists shall be prepared during a calendar year for the vacancies estimated to arise in the next calendar year. (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 and orders for expunging such remarks issued wherever necessary. Simultaneously seniority list shall also be made up to date and probation of officers in the field of choice declared. Confidential Reports and seniority list shall be made up to date before 30 th June; (c) The Moderation Committee will be convened during the months of July/August. (d) During September/October the Departmental Promotion Committees will be convened and select lists prepared which will be notified before 30th November and in any case not later than December 31. If any officer becomes qualified after the preparation of the select list, but, before the occurrence of the vacancy, the Departmental Promotion Committee shall meet subsequently and his name shall be considered for inclusion in the select list; (e) At the time of change over from the existing system the number of vacancies for the current year and the next year shall be considered together. W.P. (C) No. 2581 of 2010 : 14 : 12. By virtue of Rule 28 (b) (i) (4) of Part II KS & SSR, an 'Adhoc DPC' should be convened, when situation warrants the same. Similarly, by virtue of Rule 28 (b) (i) (4) (d), the DPC should be convened during September/October of every year and the select list should be prepared and notified before the 30th of November, every year; which admittedly has not been done in the instant case. No answer is given as to the question, why ? The course and conduct pursued by the respondents 1 to 3 in not convening the DPC to consider the claim of the petitioner for 'regular promotion'; despite his being the next senior person in the feeder category (probation of the 4th respondent admittedly having not been declared satisfactorily) and in spite of satisfactory declaration of the probation of the petitioner w.e.f 01.11.2008 as borne by Ext. P4 issued by the first respondent, when clear vacancy was available in the post of Deputy Director (Office W.P. (C) No. 2581 of 2010 : 15 : Wing), have very much adversely affected the rights, interest and career of the petitioner to a significant extent. Respondents 1 to 3 were obviously protracting the matter in considering the claim of the petitioner, till the 4th respondent, whose probation was not declared, came up in the zone of consideration, to have 'provisional promotion' under Rule 31 (a) (i), taking it out of the 'ban' imposed by the Circular referred to in Ext. P10, thus giving provisional promotion to her as per Ext. P10, enabling her to retire as Deputy Director (Office Wing). This is nothing but a colourable exercise of power, which is liable to be intercepted. This is more so, when there is no explanation for the respondents 1 to 3 as to the denial of the claim of the petitioner for 'regular promotion' and when no counter affidavit has been filed, despite the various interim orders passed by this Court, particularly the one passed on W.P. (C) No. 2581 of 2010 : 16 : 03.10.2011. 13. In the above facts and circumstances, this Court finds that the petitioner is entitled to succeed. The respondents 1 to 3 are directed to convene an 'Adhoc DPC' to consider the claim of the petitioner for regular promotion to the post of Deputy Director (Office Wing) w.e.f. 01.11.2008, the date of declaration of probation satisfactorily as per Ext. P4. If the petitioner is found eligible, promotion shall be given to him on a 'notional basis' and the retirement benefits payable to the petitioner shall be reworked accordingly, which in turn shall be disbursed to him within a period of four months. The Writ Petition is allowed to the said extent. No cost. Sd/- P. R. RAMACHANDRA MENON, JUDGE kmd