IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 7TH SEPTEMBER 2009 / 16TH BHADRA 1931 WP(C).No. 30936 of 2008(G) -------------------------- PETITIONER(S): --------------- M.O.PUSHPENDRAN, DEPUTY DIRECTOR (GENERAL EDUCATION DEPARTMENT), NOW WORKING AS DEPUTY DIRECTOR, OFFICE OF THE DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. BY ADV. SRI.KRB.KAIMAL, SENIOR ADVOCATE SRI.ANIL K.NAIR SRI.B.UNNIKRISHNA KAIMAL SRI.V.MADHUSUDHANAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT OF KERALA, GENERAL EDUCATION (C) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPARTMENTAL PROMOTION COMMITTEE (HIGHER), GENERAL EDUCATION DEPARTMENT, REPRESENTED BY ITS CONVENER - SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. MS.SMITHA, GOVERNMENT PLEADER FOR R1,2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.30936/2008 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF ORDER NO.D4/25418/03/DPI DATED 27/01/2004 ISSUED BY THE DPI TOGETHER WITH THE RELEVANT PORTION OF THE SENIORITY LIST PUBLISHED THEREWITH. P2 : COPY OF ORDER G.O.(Rt.)NO.2916/2004/G.EDN. DATED 09/07/2004 ISSUED BY R1. P3 : COPY OF ORDER G.O.(Rt.)NO.635/05/G.EDN. DATED 11/02/2005 ISSUED BY R1 P4 : COPY OF MEMO OF CHARGES NO.1479/C3/03/G.EDN. DATED 18/07/2005 ISSUED BY R1. P5 : COPY OF ORDER G.O.(Rt.)NO.136/08/VIG. DATED 10/06/2008. P6 : COPY OF JUDGMENT OF THIS HONOURABLE COURT IN WP(C) NO.15113/2008 DATED 18/06/2008. P7 : COPY OF ORDER G.O.(Rt.) NO.3752/2008/G.EDN. DATED 14/08/2008 ISSUED BY R1. P8 : COPY OF NOTIFICATION NO.GO(P) NO.170/2006/G.EDN. DATED 17/06/2006 PUBLISHED IN THE KERALA GAZETTE EXTRAORDINARY DATED 25/07/2006. P9 : COPY OF G.O.(Rt.)5472/06/G.EDN. DATED 19/12/2006 ISSUED BY R1. P10 : COPY OF NOTIFICATION G.O.(P) NO.99/2007/G.EDN. DATED 18/05/2007 PUBLISHED IN KERALA GAZETTE EXTRAORDINARY DATED 25/05/2007. P11 : COPY OF JUDGMENT OF THIS HONOURABLE COURT IN WP(C) NO.25568/2006 DATED 24/09/2007. P12 : COPY OF NOTIFICATION G.O.(P) NO.71/2008/G.EDN. DATED 10/04/2008 PUBLISHED IN KERALA GAZETTE EXTRAORDINARY DATED 15/05/2008. P13 : COPY OF REPRESENTATIONS DATED 19/08/2008 SUBMITTED BY THE PETITIONER TO R2. P14 : COPY OF NOTICE NO.61493/C3/08/G.EDN. DATED NIL ISSUED BY THE GOVERNMENT TO THE PETITIONER. P15 : COPY OF REPRESENTATION DATED 22/11/2008 SUBMITTED BY PETITIONER TO THE GOVERNMENT. P16 : COPY OF JUDGMENT OF THIS HONOURABLE COURT IN W.A.NO.44/2009 DATED 11/03/2009. //TRUE COPY// PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.30936 of 2008 --------------------------------- Dated, this the 7th day of September, 2009 J U D G M E N T In 1990, the petitioner was directly recruited and appointed as District Educational Officer under a special recruitment conducted, as per Rule 17A of Part II KS & SSR. He was promoted as Deputy Director of Education by order dated 05/06/1995. While continuing as such, Ext.P1 seniority list of gazetted officers in the teaching branch of General Education Department as on 01/01/2003 was issued on 27/01/2004. In Ext.P1, the petitioner is at serial No.14. 2. Subsequently, by Ext.P2 order dated 09/07/2004, the petitioner was placed under suspension. He challenged the order of suspension by filing WP(C) No.20678/2004, and by judgment rendered on 06/01/2005, this Court disposed of the writ petition directing the Government to reinstate the petitioner latest by 15/02/2005. Accordingly, by Ext.P3 order dated 11/02/2005, the petitioner was reinstated in service. Thereafter Ext.P4 memo of charges was issued by the 1st respondent on 18/07/2005, and the WP(C) No.30936/2008 -2- petitioner submitted his written statement of defence denying the allegations. 3. Meanwhile, a vigilance enquiry was also ordered, and on its completion, the Vigilance Department issued another memo of charges on 19/10/2007 with the very same set of allegations as those contained in Ext.P4. The petitioner submitted his reply to this memo of charges also. The Vigilance Department in the Government considered the memo of charges and the reply submitted by the petitioner, and issued Ext.P5 order dated 10/06/2008 holding that the charges levelled against the petitioner were not serious enough warranting reference to the Vigilance Tribunal for detailed enquiry, and recommending that departmental action be initiated against the petitioner. 4. While the matter remained as such without any progress, Ext.P8 select list for promotion to the category of Joint Director was approved by the 1st respondent, and due to the pendency of the disciplinary proceedings, the petitioner's name was not included in Ext.P8. It is stated that based on Ext.P8, a junior to the petitioner was also promoted as per Ext.P9 order. Thereafter, again, the 2nd WP(C) No.30936/2008 -3- respondent drew up Ext.P10, another select list for promotion as Additional Directors and Joint Directors from lower categories. Even in Ext.P10 issued on 25/05/2007, the petitioner was not included and several of his juniors were included. Thereupon, the petitioner approached this Court by filing WP(C) No.25568/2006. That writ petition was disposed of by Ext.P11 judgment rendered on 24/09/2007 directing that the pendency of departmental proceedings or vigilance enquiry can be no reason to exclude a person from consideration, and that, in such a case, the procedure as contemplated under Rule 28(b)(i)(vii) of Part II, KS & SSR should be adopted. 5. The next DPC was convened on 19/03/2008, and even in Ext.P12 select list, the petitioner was not included. However, Ext.P12 shows that in the case of the petitioner, apparently because of the directions contained in Ext.P11 judgment, sealed cover procedure was adopted and his name was deferred to be considered depending upon the out come of the disciplinary proceedings. As the disciplinary proceedings initiated against the petitioner was remaining pending for so long, the petitioner filed WP(C) WP(C) No.30936/2008 -4- No.15113/2008 before this Court. That writ petition was disposed of by Ext.P6 judgment dated 18/06/2008 directing the Government to complete the disciplinary proceedings within three months. 6. In pursuance to Ext.P6 judgment, Ext.P7 order was issued by the Government on 14/08/2008. The relevant portion of which reads as under:- “Government have examined the matter in detail and found that his action had not made any loss to Government exchequer and the allegation against the petitioner are not proved completely. The Vigilance Department has also found that the charges levelled against him are not so serious enough to be recommended to the Vigilance Tribunal for enquiry. In the circumstances, Government have decided to finalise the disciplinary proceedings against Sri.M.O.Pushpendran, Deputy Director, Directorate of VHSE, Thiruvananthapuram by awarding a 'censure'. The Director of Public Instructions will take necessary arrangements to record the censure in his service book.” This order shows that the disciplinary action against the petitioner concluded with the imposition of punishment of censure, which according to the petitioner, can have no impact on his claim for promotion. 7. Once the disciplinary proceedings initiated against the WP(C) No.30936/2008 -5- petitioner came to a close as above, he filed Ext.P13 representation to the 2nd respondent seeking to have his claim for promotion considered in the light of Ext.P7. There was no reply to the representation, and it was thereupon that this writ petition was filed with the following main prayers:- “i. a writ of mandamus to the 2nd respondent to open the sealed cover referred to in Ext.P12 in so far as the petitioner is concerned and depending on the findings as to suitability of the petitioner, include him in appropriate place based on seniority in Exts.P8, P10 and P12 sealct lists. ii. a writ of mandamus to the 1st respondent to promote the petitioner as Joint Director and Additional Director from the respective dates of promotion of his immediate junior Shri.N.Thyagarajan and to grant all consequential benefits including arrears of salary. iii. A writ of mandamus to 1st respondent to pass orders on Ext.P13.” 8. At the stage of admission, this Court passed order dated 22/10/2008 directing the 2nd respondent to open the sealed cover adopted in the case of the petitioner as mentioned in Ext.P12 select list and file a statement in this Court. However, without complying with the said order, the 2nd respondent filed I.A.No.14675/2008 praying to recall the order dated 22/10/2008. The averments in WP(C) No.30936/2008 -6- paragraph 3 of the affidavit shows that based on the representations received from other parties, the Government issued order dated 06/10/2008 staying the operation of Ext.P7 order and ordering to decide the matter afresh, after hearing the affected parties in detail. The petitioner filed a counter to the said I.A. producing Ext.P14 notice issued by the 1st respondent, calling upon the petitioner to appear for hearing on the proposal to review Ext.P7, and Ext.P15 representation submitted by him, contending inter alia, that review at the instance of a third party is not maintainable. I.A.No.14675/2008 was heard by a Learned Single Judge, and upholding the contention of the learned counsel for the petitioner, that review under Rule 35 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960, at the instance of a third party was not prima facie maintainable, the I.A. was dismissed by the Learned Single Judge by order dated 05/12/2008. Against the said order, though Writ Appeal No.44/2009 was filed by the respondents, that also met with dismissal as per the judgment rendered on 11/03/2009. 9. Subsequently, an additional counter affidavit in WP(C) No.30936/2008 -7- compliance with the orders dated 22/10/2008 and 05/12/2008 has been filed in this writ petition. A reading of paragraph 8 of the affidavit shows that the Government had received two representations from an Organisation, based on which, the order dated 06/10/2008 was passed staying Ext.P7. It is also stated that in the meanwhile, a further petition was also received from one Mr.M.K.Sivankutty, a junior to the petitioner. It is stated that in the above circumstances, it was decided to review Ext.P7 order, since it has found that while imposing punishment of censure on the petitioner, the seriousness of the charges levelled against him were not looked into or properly adverted to. Proceeding further in paragraph 9 of the affidavit, it is stated that the sealed cover was opened as directed by this Court, and the recommendation of the DPC was to approve the name of the petitioner for inclusion in the select list for promotion subject to finalisation/exoneration of the disciplinary action pending against him. It is at this stage, the writ petition has been taken for final hearing. 10. Evidently, by Ext.P7, censure is the punishment imposed on the petitioner and with that order, the disciplinary action has WP(C) No.30936/2008 -8- come to a close. However, his claim for promotion on the basis of Ext.P7, raised as per Ext.P13 representation filed by the petitioner on 19/08/2008 has not been considered by the 2nd respondent for the reason that Ext.P7 order is proposed to be reviewed. The contention raised by the learned counsel for the petitioner is that the review is not maintainable. Therefore, according to him, the petitioner's request for promotion made in Ext.P13 is to be considered. In the light of this contention, the sustainability of the proposal of the respondents to review Ext.P7 is the question to be examined. 11. The power of review is not an inherent one, but is only a conferred power. A reading of this Court's order dated 05/12/2008 shows that the Rule relied on by the respondents to justify the proposed review is Rule 35 of the Kerala Civil Services (C.C.& A.) Rules, 1960, which reads as under:- “Rule 35. Review of original orders.-There shall be a review of original orders, on application of party, by Government. There shall be only one review and application for review shall be made within a period of two months from the date of the order.” On a reading of this Rule, bearing in mind that the power of review is only a conferred power and is not an inherent one, it can be seen WP(C) No.30936/2008 -9- that the review of an original order by the Government, can be only on an application by a party. This necessarily means that the power of review is not a suomotu power, and is to be invoked by a party to the proceedings. Admittedly, in this case, the power of review has been set in motion by the representations made by an organisation, and also by another colleague of the petitioner who are not parties to the proceedings leading to Ext.P7 order. If so, the only conclusion that is possible is that the invocation of review power under Rule 35 at the instance of a third party to the proceedings is illegal and the proposal in this behalf is unsustainable. 12. The learned counsel for the petitioner has also relied on the judgments of the Apex Court in Devki Nandan Verma v. State of Haryana and Another (1995 Supp.(3) SCC 431) and Rajnit Prasad v. Union of India and Others (2000 (9) SCC 313). These judgments also support the view that in service disputes, there is no role to be played by a third party. Therefore, I should accept the contention of the learned counsel for the petitioner that Rule 35 could not have been initiated. Although, the learned Government Pleader relied on Rule 34 of the Rules and attempted to sustain the proposed review WP(C) No.30936/2008 -10- of Ext.P7, in my view, Rule 34 only enables review of original orders or appellate orders passed by authorities, which are subordinate to the Government. This Rule does not authorise Government to review its own orders. Since the proposal for review as contained in Ext.P14 is absolutely unsustainable for the aforesaid reasons, necessarily, the claim of the petitioner for promotion raised by him in Ext.P13 before the 2nd respondent should be considered on merits. 13. Therefore, I dispose of the writ petition directing the 2nd respondent to deal with Ext.P13 in accordance with law, ignoring the proposal for review as reflected in Ext.P14 notice issued by the 1st respondent. Orders on Ext.P13 shall be passed with notice to the petitioner, and as expeditiously as possible, at any rate, within six weeks of production of a copy of this judgment. The writ petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg