IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 18TH DECEMBER 2008 / 27TH AGRAHAYANA 1930 WP(C).No. 14201 of 2008(N) --------------------------------------- PETITIONER: ------------------- SURESH.T.T., INSPECTOR OF COMMERCIAL TAXES, COMMERCIAL TAXES, KANNUR. BY ADV. SRI.G.HARIHARAN. RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, TAXES (D) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF COMMERCIAL TAXES, CONVENOR, DEPARTMENTAL PROMOTION COMMITTEE (LOWER), COMMERCIAL TAXES, THIRUVANANTHAPURAM. 3. THE DEPUTY COMMISSIONER, COMMERCIAL TAXES, PALAKKAD. R1 TO R3 BY GOVERNMENT PLEADER SRI. P. NANDAKUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/12/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.14201/2008-N: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE JUDGEMENT IN W.P.(C).NO.20268/2006. EXT.P.2: COPY OF THE PROCEEDINGS OF THE JOINT COMMISSIONER, COMMERCIAL TAXES, THIRUVANANTHAPURAM DTD. 03/02/2007. EXT.P.3: COPY OF THE PROMOTION LIST 04/08/2006 PREPARED BY COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. EXT.P.4: COPY OF THE MEMO DTD. 30/01/2007 FROM THE OFFICE OF THE COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. EXT.P.5: COPY OF THE REPLY DTD. 22/02/2007 SENT BY THE PETITIONER. EXT.P.6: COPY OF THE JUDGMENT IN W.P.NO.21039/2007 DTD. 25/09/07. EXT.P.7: COPY OF THE COMMUNICATION DTD. 13/12/2007. EXT.P.8: COPY OF THE COMMUNICATION DTD. 21/04/08 ISSUED BY THE STATE PUBLIC INFORMATION OFFICER. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. prv. P.N.Ravindran, J. ===================== W.P(C).No.14201 of 2008 ===================== Dated this the 18th day of December, 2008. JUDGMENT The petitioner who is presently working as Inspector in the Commercial Taxes Department, has filed this Writ Petition aggrieved by his supersession for promotion to the category of Commercial Tax Officer/Sales Tax Officer. The brief facts of the case are as follows: 2. While the petitioner was working as Inspector in the Commercial Taxes Department, the Deputy Commissioner of Commercial Taxes, Palakkad placed him under suspension by order passed on 6.1.2006. Thereafter a memo of charges was issued. The petitioner challenged the order of suspension in W.P.(C) No.20268 of 2006. By Ext.P1 judgment delivered on 16.8.2006, this Court directed the respondents to finalise the disciplinary proceedings expeditiously and at any rate within six months from 16.8.2006. It was also observed that the petitioner will be free to move the Government in appeal challenging the order of suspension. The petitioner did not however file an appeal. The Joint Commissioner of Commercial Taxes however suo motu reviewed the order of suspension and issued Ext.P2 order dated 3.2.2007 reinstating the petitioner in service with a direction to post him outside Palakkad in a non-sensitive seat until further orders. 3. In the meanwhile by order passed on 4.8.2006, the petitioner was temporarily promoted under Rule 31(a)(i) of Part II of the Kerala State WP(C) 14201/08 -: 2 :- and Subordinate Services Rules to the category of Commercial Tax Officer. That order was cancelled by the Commissioner of Commercial Taxes as per Ext.P3 order dated 5.8.2006 for the reason that the Departmental Promotion Committee thereafter met on 7.12.2006. On noticing that disciplinary action has been initiated against the petitioner, the Convenor of the Departmental Promotion Committee issued Ext.P4 memo dated 30.1.2007 calling upon the petitioner to show cause why he should not be superceded. The petitioner filed Ext.P5 reply and thereafter filed W.P.(C) No.21039 of 2007 in this Court challenging Ext.P4. By Ext.P6 judgment delivered on 25.9.2007 this Court disposed of the said Writ Petition with a direction to the Convenor of the Departmental Promotion Committee to consider the reply submitted by the petitioner and take appropriate decision thereon within two months from the date of receipt of a copy of the judgment. The Commissioner of Commercial Taxes thereafter issued Ext.P7 letter dated 13.12.2007 informing the petitioner that as a vigilance enquiry is pending against him, his case can be considered only after the vigilance enquiry is finalised. This Writ Petition was thereupon filed seeking a writ in the nature of mandamus commanding the the second respondent to consider the petitioner's claim for promotion to the category of Commercial Tax Officer. 4. The respondents have filed a counter affidavit contending inter alia that a vigilance enquiry is pending against the petitioner and that WP(C) 14201/08 -: 3 :- the disciplinary action initiated against him has not been finalised. They contend that the petitioner is therefore not entitled to be considered for promotion and was rightly superceded by the Departmental Promotion Committee. As regards the provisional promotion granted to the petitioner, the respondents state that it was without noticing the pendency of the disciplinary action that the petitioner was temporarily promoted to the category of Commercial Tax Officer. The counter affidavit proceeds to state that on the mistake being brought to the notice of the Commissioner of Commercial Taxes, the order promoting the petitioner was cancelled. 5. I have considered the submissions made at the Bar by the learned counsel appearing on either side. The only ground on which the petitioner has been superceded for promotion is that a vigilance enquiry is pending against him. A learned Single Judge of this Court has in Sasidharan K.K. v. State of Kerala and others - 2008(4) I.L.R. 61, held that the mere pendency of a vigilance case cannot lead to the supersession of an officer who is otherwise eligible. It was held that except in cases where a vigilance court has framed charges, eligible officers cannot be superceded. In the instant case, the respondents have no case that the Vigilance and Anti Corruption Bureau has after investigation filed a final report. They have also no case that the vigilance court has framed charges against the petitioner. Therefore, the supersession of the petitioner by the Departmental Promotion WP(C) 14201/08 -: 4 :- Committee which met on 7.12.2006 and later on 8.1.2008 was legal. Further, the pleadings also disclose that Sri.Muraleedharan against whom also disciplinary action was initiated was selected by the Departmental Promotion Committee and promoted in the year 2007 as Commercial Tax Officer/Sales Tax Officer. In these circumstances, I am constrained to hold that the case of the petitioner was not properly considered by the Departmental Promotion committee and that the Departmental Promotion Committee did not strictly adhere to the provisions contained in Rule 28(b)(i)(7) of Part II of the Kerala State and Subordinate Services Rules. 6. I accordingly dispose of this Writ Petition with a direction to the respondents to constitute an Adhoc Departmental Promotion Committee to consider the case of the petitioner for promotion as Commercial Tax Officer/Sales Tax Officer for the years 2007 and 2008. Steps in that regard shall be taken and finalised within three months from the date of receipt of a copy of this judgment. P.N.Ravindran, Judge. ess 20/12 WP(C) 14201/08 -: 5 :- P.N.Ravindran, J. ===================== W.P(C).No.14201 of 2008 ===================== Dated this the 20th day of October, 2008. ORDER Heard the learned counsel appearing for the petitioner and the learned Government Pleader appearing for the respondents. The learned counsel for the petitioner submits relying on the decision of this Court in Sasidharan K.K. v. State of Kerala and others - 2008(4) I.L.R. Kerala 61 that Ext.P7 letter by which the petitioner's request to include him in the list of officers eligible for promotion to the post of Commercial Tax WP(C) 14201/08 -: 6 :- Officer was turned down, cannot be sustained. I am prima facie satisfied that there is merit in the said contention. By Ext.P7, the Commissioner of Commercial Taxes informed the petitioner that since a vigilance enquiry against him is pending, his case cannot be considered by the Departmental Promotion Committee. In Sasidharan K.K. v. State of Kerala and others (supra), a learned Single Judge of this Court has taken the view that except in cases where Vigilance has filed a charge sheet, the employee concerned is entitled to be considered for promotion by the Departmental Promotion Committee. The respondents are therefore directed to file a counter affidavit within 10 days stating whether the Vigilance has filed a charge sheet against the petitioner. Post after 10 days. P.N.Ravindran, Judge. ess 20/10