IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 11TH OCTOBER 2011 / 19TH ASWINA 1933 WP(C).No. 1909 of 2006(B) ------------------------- PETITIONER(S): -------------- TOMY THOMAS, INTELLIGENCE OFFICER, COMMERCIAL TAXES, KANNUR. BY ADV. SMT.V.P.SEEMANTHINI, SENIOR ADVOCATE SMT.T.B.REMANI RESPONDENT(S): -------------- 1. STATE OF KERALA, SECRETARY TO GOVT. TAXES DEPARTMENT, GOVT. SECRETARIAT, TRIVANDRUM. 2. D.P.C.(HIGHER), COMMERCIAL TAXES (D) DEPARTMENT, REP. BY ITS CONVENOR, GOVT.SECRETARIAT, TRIVANDRUM. 3. THE COMMISSIONER, COMMERCIAL TAXES, TRIVANDRUM. 4. VIJAYAN UNNITHAN, INSPECTING ASST.COMMISSIONER, KOLLAM. 5. SMT.HAJITHA.M.K, LAW OFFICER, COMMERCIAL TAXES, ERNAKULAM. 6. SMT.B.SUMAN, LAW OFFICER, COMMERCIAL TAXES, KOTTAYAM. 7. SRI.C.RAMACHANDRAN, ASST.COMMISSIONER, SPECIAL CIRCLE, TIRUR. 8. SMT.PRATHIBHA GNANASUNDARAM, ASST. COMMISSIONER (A.A), TRIVANDRUM. 9. GOPAKUMAR V.J., ASSISTANT COMMISSIONER (AUDIT ASSESSMENT), MATTANCHERRY. 10. AYUBKHAN S.M., ASSISTANT COMMISSIONER (AUDIT ASSESSMENT), PALAKKAD. R1 TO R3 BY GOVT. PLEADER SRI. ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BKA WP(C).No. 1909 of 2006(B) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE RELEVANT PAGES OF THE SENIORITY LIST PUBLISHED BY THE 3RD RESPONDENT ALONG WITH PROCEEDINGS DATED 13.05.2005. EXT.P2: COPY OF THE MEMO DATED 29.06.2005 ISSUED BY THE 2ND RESPONDENT. EXT.P3: COPY OF THE REPRESENTATION DATED 25.07.2005 BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P4: COPY OF THE ORDER DATED 27.08.2005 ISSUED BY THE 3RD RESPONDENT. EXT.P5: COPY OF THE REPRESENTATION DATED 19.09.2005 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P6: COPY OF THE REPRESENTATION DATED 25.11.2005 BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P7: COPY OF THE PROCEEDINGS DATED 09.12.2005 ISSUED BY THE 3RD RESPONDENT. EXT.P8: COPY OF THE GO(P)NO.100/2005/TD DATED 27.05.2005. EXT.P8(A): COPY OF THE GO(RT)NO.45/06/TD DATED 19.01.2006. EXT.P8(B): COPY OF THE ABOVE REVIEW SELECT LIST DATED 18.01.2006. EXT.P9: COPY OF THE LETTER DATED 05.04.2004 ISSUED BY THE DEPUTY COMMISSIONER, DEPT. OF COMMERCIAL TAXES, KANNUR. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// PA TO JUDGE BKA S.SIRI JAGAN, J. ================== W.P.(C).No. 1909 of 2006 ================== Dated this the 11th day of October, 2011 J U D G M E N T The petitioner joined service of the Sales Tax Department as Sales Tax Officer on 6.10.1995. In the cadre of Sales Tax Officer, respondents 4 to 10 are juniors to the petitioner. Ext.P1 is the seniority list, in which, the petitioner is rank No.81, whereas respondents 4 to 10 are rank Nos. 82, 106, 107, 108, 111, 116 and 117 respectively. The next promotion to which the petitioner and respondents 4 to 10 can aspire for is that of Assistant Commissioner. Before the Departmental Promotion Committee met for considering the names of eligible persons for inclusion in the select list, the petitioner was served with a memo of charges dated 5.8.2004 alleging lapses in discharge of official duties. After considering the reply submitted by the petitioner, the Deputy Commissioner recommended exoneration of the petitioner from all charges, in January, 2005. But final orders were not passed pursuant thereto. The same was passed only on 27.8.2005. In the meanwhile, on 24.5.2005, the Departmental Promotion Committee prepared a select list dated 27.5.2005, in which, the petitioner's name was not included. The petitioner was informed by Ext.P2 memo dated 29.6.2005 that the petitioner was superseded on the ground that disciplinary proceedings are pending against him. w.p.c.1909/06 - : 2 :- Subsequently, pursuant to representations filed by the petitioner, the petitioner was included in the select list by a Review Departmental Promotion Committee, but the petitioner was included only below respondents 4 to 10. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “a) to issue a writ of certiorari or other appropriate writ order or direction to quash Ext.P7 since the same is issued in violation of petitioner's Fundamental Right under Article 14 and 16 of the Constitution. b) to issue a writ of certiorari or other appropriate writ order or direction to quash Ext.P7, since the same is issued by 3rd respondent in flagrant violation of relevant clauses of Rule 28 (8&9) of KS&SSR; c) to issue a writ of mandamus or other appropriate writ, order or direction directing the 2nd respondent to include the petitioner's name in the select list prepared by Review D.P.C. which met on 19.12.2005 for promotion to the post of Asst. Commissioner forthwith; cc) to issue a writ of certiorari or other appropriate writ order or direction to quash Ext.P8(b) review select list to the limited extent of not including petitioner's name as Sl.No.60 (A) in that list. ccc) to issue a writ of certiorari or other appropriate writ order or direction to quash Ext.P8(a) G.O(Rt) No.43/06/TD dt. 19.1.06 since the same is issued in flagrant violation or (sic) relevant clauses of Rule 28(8) & (9) of KS&SSR. cccc) to issue a writ of mandamus or other appropriate writ order or direction directing the 2nd respondent to include the petitioner's name as S.l.No.60A in Ext.P8(b) review D.P.C. list; d) to issue a writ of mandamus or other appropriate writ, order of direction directing respondents 1 to 3 to promote the petitioner to the post of Asst. Commissioner with retrospective effect from 9.12.2005 to the post of Asst. Commissioner. e) to issue a writ of mandamus of (sic) other appropriate writ, order of direction directing respondents 1 to 3 to assign notional seniority to the petitioner in the post of Asst. Commissioner w.e.f. 9.12.2005 and to grant him all consequential monetary benefits including arrears of salary w.p.c.1909/06 - : 3 :- attached to the post of Asst. Commissioner.” 2. The 1st respondent has filed a counter affidavit supporting their action. Respondents 4 to 10 have not chosen to enter appearance and contest the matter. 3. I have considered the rival contentions in detail. 4. It is settled law that a Government servant cannot be superseded for promotion simply on the ground of pendency of disciplinary proceedings. Even if disciplinary proceedings are pending, the Government servant has to be considered by the Departmental Promotion Committee and his name has to be included at the appropriate place in the select list, but he shall not be promoted until the disciplinary proceedings are over. In this case, that procedure does not appear to have been followed. It is not disputed before me that the only ground on which, the petitioner was superseded was that disciplinary proceedings are pending. There is no contention that, on consideration by the Departmental Promotion Committee, respondents 4 to 10 were found to have been demonstrably superior in merit to the petitioner. If that be so, the seniority as between the petitioner and respondents 4 to 10 in the cadre of Sales Tax Officer should have reflected in the matter of preparation of select list for the post of Assistant Commissioner. Therefore, the petitioner was entitled to be included above the 4th respondent in the select list for appointment to w.p.c.1909/06 - : 4 :- the post of Assistant Commissioner. I note that the petitioners have already retired from service. In the circumstances, it is declared that for all service purposes the petitioner would rank as senior to respondents 4 to 10 in the cadre of Assistant Commissioner and further promotions shall be taking into account such seniority. The competent among the respondents shall pass appropriate orders in accordance with the said declaration within one month from the date of receipt of a copy of this judgment. The writ petition is allowed as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE The 8th sentence reading, “I note that the petitioners have already retired from service.” in the 4th paragraph of the judgment dated 11.10.2011 in W.P.(C).No. 1909/2006 is deleted as per order dated 16.11.2011 in I.A.No. 18200/11 in W.P.(C).No. 1909/2006. ///True copy/// P.A. to Judge