IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 5TH JANUARY 2010 / 15TH POUSHA 1931 WA.No. 337 of 2007 -------------------- AGAINST THE JUDGEMENT IN OP.12673/1999 Dated 19/01/2006 .................... APPELLANT(S): RESPONDENTS: -------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, GOVT.SECRETARIAT, TRIVANDRUM. 2. THE DEPARTMENTAL PROMOTION COMMITTEE(HIGHER), AGRICULTURAL INCOME TAX & SALES TAX DEPARTMENT, REPRESENTED BY ITS CONVENOR, SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, TRIVANDRUM. BY SENIOR GOVT. PLEADER SRI.BENNY GERVASIS RESPONDENT: PETITIONER: -------------------------- P. LEELA BAI, INSPECTING ASST.COMMISSIONER, AGRICULTURAL INCOME TAX AND SALES TAX DEPARTMENT, KOTTAYAM. ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN SRI.T.R.SADEESAN SMT.DHANYA CHANDRAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ------------------------------ W.A.No.337/2007 ------------------------------ Dated this, the 5th day of January, 2010 JUDGMENT Balakrishnan Nair, J. The respondents in the Original Petition are the appellants. The respondent herein filed the O.P., challenging Ext.P6 communication of the Government dated 22.2.1999, rejecting her claim for promotion from 1996. 2. The brief facts of the case are the following: The respondent was an Inspecting Assistant Commissioner in the Department of Agricultural Income tax and Sales Tax. The disciplinary proceedings initiated against her ended in the punishment of withholding promotion to the next cadre for a period of two years, as evident from Ext.P2 order dated 15.1.1997. The order was passed by the Board of Revenue. On appeal, the Government set aside that order, taking the view that the Board of Revenue is not competent to take disciplinary action against the respondent/petitioner. Finally, the WA No.337/2007 - 2 - Government dropped all proceedings against her by Ext.P4 order dated 9.11.1998. Ext.P4 was preceded by a memo of charges issued by the Government, submission of reply by the respondent etc. During the pendency of the disciplinary proceedings, the Departmental Promotion Committee (DPC) which met in 1996, considered her for promotion to the next higher post of Deputy Commissioner of Agricultural Income tax and Sales Tax. The sealed cover procedure was followed and the DPC kept the decision concerning her in the sealed cover. After the passing of Ext.P4 order, the respondent claimed promotion with retrospective effect. This Court, by Ext.P5 judgment, issued the following directions: “2. It is an admitted case in the statement filed on behalf of the 1st respondent that in the meeting of the Departmental Promotion Committee held on 18.3.1996 due to the then pendency of the disciplinary action against the petitioner, sealed cover procedure was adopted as far as the petitioner was concerned. As final order has been passed by Government as per the Government order dated 9.11.1998 mentioned above, that sealed cover has to WA No.337/2007 - 3 - be opened and the petitioner's turn on the basis of the assessment made by the Departmental Promotion Committee has to be given effect to in Ext.P3, if she had seen otherwise found suitable. That procedure shall be adopted and finalised at any rate within six weeks from the date of receipt of a copy of this judgment. Further action, if any, based on the ranking shall be pursued within another four weeks.” In obedience to the direction of this Court quoted above, the respondent's claim was considered by the Government and by Ext.P6 communication, it was held that since the respondent was not fully exonerated, she is not entitled to be included in the select lists for the years 1996 and 1998. Based on that finding, her representation for inclusion in the select list for the year 1996 and consequential promotion was rejected. As mentioned earlier, challenging Ext.P6, the Original Petition was filed. The learned Single Judge took the view that in view of Ext.P5 judgment, further examination of the case of the respondent having regard to the nature of her exoneration is not permissible. It was held that in view of the direction in WA No.337/2007 - 4 - Ext.P5 judgment quoted above, she is entitled to get promotion from 1996 and all consequential benefits, including monetary benefits. Feeling aggrieved by the said judgment, this Writ Appeal is preferred. 3. We heard the learned counsel on both sides. The learned Government Pleader submitted that in view of the finding in Ext.P4 that the respondent is guilty of charge No.1 but the proceedings are dropped taking a lenient view, she is not entitled to get promotion in 1996. The sealed cover procedure contemplates promotion with retrospective effect only on complete exoneration from the charges. The learned counsel for the respondent, on the other hand, submitted that since the proceedings are dropped, it should be taken that lapses, if any, on her part, were condoned. Since the proceedings were already dropped, she does not have a chance to prove that she is innocent. Therefore, after dropping the proceedings, the appellants should not be permitted to take the stand that the respondent is not fully exonerated. 4. The learned Government Pleader, in reply, submitted WA No.337/2007 - 5 - that in any view of the matter, the respondent is not entitled to get arrears of salary. She can claim arrears only from the date she actually started officiation in the promoted post. 5. In view of Ext.P4 order, we are of the view that the respondent cannot be denied promotion on the ground that she has not been completely exonerated. According to the appellants, the decision of the DPC held on 18.3.1996 was that she will be considered for inclusion in the select list for the year 1996, if she was fully exonerated in the disciplinary proceedings. Once the Government have dropped all further proceedings, the respondent cannot be asked to come with full exoneration. She cannot be asked to perform something which is impossible to perform. So, it must be taken that the lapses on the part of the respondent have been condoned by the Government, on dropping the proceedings. Therefore, she is entitled to be included in the select list for the year 1996. Any other view would cause serious prejudice to the respondent/petitioner. But, regarding back wages, we feel that the respondent is entitled to get the same only from the date on WA No.337/2007 - 6 - which she was exonerated by the Government by taking a lenient view. Therefore, the direction of the learned Single Judge to include her in the select list for the year 1996 for promotion is sustained. But, the said promotion shall be notional. She will be entitled to get arrears of salary only from 9.11.1998, the date on which all further proceedings against her were dropped by Ext.P4 order of the Government. The appellants shall implement the direction of the learned Single Judge, as modified by this judgment, within three months from the date of production/receipt of a copy of this judgment. The Writ Appeal is disposed of as above. K. Balakrishnan Nair, Judge. C.T.Ravikumar, Judge. nm.