IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 16TH JULY 2010 / 25TH ASHADHA 1932 WP(C).No. 16572 of 2010(V) -------------------------- PETITIONER(S): --------------- MATHEW ABRAHAM, S/O.LATE ABRAHAM, AGED 53 YEARS, MANAGER, KAP V BATTALION, MANIYAR, PATHANAMTHITTA, RESIDING AT THUNDIYIL HOUSE, VATTAKAVU, VELLAPPARA PO, KONNI. BY ADV. SRI.V.PHILIP MATHEW RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR GENERAL OF POLICE OF KERALA, POLICE HEAD QUARTERS,THIRUVANANTHAPURAM. 3. CHAIRMAN,DEPARTMENTAL PROMOTION COMMITTEE, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM. 4. SUPERINTENDENT OF POLICE, PATHANAMTHITTA 5. M.J.GOPAKUMAR,MANAGER, DISTRICT POLICE OFFICE,PATHANAMTHITTA. 6. K.K.CHELLAPPAN,SUPERINTENDENT OF POLICE, PATHANAMTHITTA. GOVERNMENT PLEADER SRI. P.NANDAKUMAR FOR R1 TO 4 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.16572 OF 2010(V) -------------------------------------------------- Dated this the 16th day of July, 2010 J U D G M E N T Petitioner is a Manager working in KAP 5th Battalion. He aspires promotion to the post of Administrative Assistant. DPC was held on 11.3.2010 and the 5th respondent was promoted by Ext.P2 order. Going by Ext.P1 seniority list, petitioner is at Sl. No.58 and the 5th respondent is at Sl. No.69. Petitioner submits that overlooking his seniority, 5th respondent was given promotion mainly for the reason that the DPC relied on adverse remarks in the confidential records of the petitioner which were not communicated to him. In view of the case of the petitioner that it was entirely relying on the uncommunicated adverse remarks the promotion was denied to him, this court directed the respondents to file a statement in the matter. Accordingly a statement was filed. 2. Government Pleader has now made available the confidential records of the petitioner for the period from 11.2009 to 20.5.2009, which contains the adverse remarks in question. According to the Government Pleader, it was only on 9.2.2010 that WPC.No. 16572/2010 :2 : the Reviewing Officer, agreed with the remarks made by the Reporting Officer and that the petitioner had entered on long leave for the period from 12.1.2010 to 11.4.2010 and reported for duty only on 12.4.2010. It is stated it was only thereupon that the remarks could be communicated to the petitioner and that prior to that DPC was convened on 11.3.2010. It is also stated that subsequently remarks were communicated to the petitioner on 28.5.2010. 3. Counsel for the petitioner relied on the provision contained in Rule 28(b)(1) of Part-II KS & SSR to contend that un communicated adverse remarks cannot be relied on against the petitioner and therefore according to him promotion given to the 5th respondent overlooking his claim is illegal. 4. Since, the adverse remarks could not be communicated, in the aforesaid factual background, I feel in the facts of this case, the proper course to be adopted is to direct the 2nd respondent, before whom the petitioner has filed Ext.P9 representation against the adverse remarks, to consider and pass orders on the representation. Therefore, the 2nd respondent is directed to consider WPC.No. 16572/2010 :3 : and dispose of Ext.P9, which shall be done at any rate within 6 weeks from the date of production of a copy of the judgment. Needless to say, depending upon the orders passed on Ext.P9, if it is necessary, ad hoc DPC will be held and the petitioner's case for promotion to the post of Administrative Assistant will be considered afresh. Petitioner shall produce a copy of the judgment along with a copy of the writ petition before the 2nd respondent for compliance. Writ Petition is disposed of as above. (ANTONY DOMINIC) JUDGE vi/