IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 17TH AUGUST 2010 / 26TH SRAVANA 1932 Con.Case(C).No. 1013 of 2009(S) ------------------------------------------------ (AGAINST THE ORDER IN WP(C) NO.11677/2008 DTD. 25/03/2009) ... PETITIONER(S): -------------------------- SAJAN.T.SUNNY, ADDITIONAL LAW OFFICER, COMMERCIAL TAXES DEPARTMENT, PALAKKAD. BY ADV. SRI.P.C.SASIDHARAN RESPONDENT(S): ---------------------------- P.MARA PANDIYAN, AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER, PRINCIPAL SECRETARY (TAXES) AND CONVENOR, DEPARTMENTAL PROMOTION COMMITTEE (HIGHER), COMMERCIAL TAXES DEPARTMENT, TAXES (D)DEPARTMENT, TRIVANDRUM. BY GOVERNMENT PLEADER SMT. N. SUDHADEVI THIS CONTEMPT OF COURT CASE (CIVIL) HAVING BEEN FINALLY HEARD ON 11/08/2010, THE COURT ON 17/08/2010 DELIVERED THE FOLLOWING: Kss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - C.O.(C) No. 1013 of 2009-S - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of August, 2010. JUDGMENT The petitioner alleges non compliance of the directions issued by this Court in Annexure A3 order. 2. The respondent has filed three affidavits and the petitioner has also filed a reply affidavit. 3. Shortly, the grievance is regarding the refusal of the Departmental Promotion Committee to consider the claim of the petitioner for promotion on the basis that the vigilance investigation against the petitioner is not over and in the disciplinary proceedings, memo of charges have been issued. 4. In Annexure A3 order, this Court directed the authority concerned to consider the matter in the light of the principles stated in Dr. P. Balachandran v. State of Kerala (ILR 2007 (2) Ker. 46) and Sasidharan v. State of Kerala (2008 (4) KLT 149). 5. The reason stated in Annexure 4 order is that the Departmental Promotion Committee (Higher) which met on 4.6.2009 considered the case of the petitioner and noticed that memo of charges dated 17.1.2006 has coc 1013/2009 2 been issued to him and the vigilance case is still pending and accordingly the committee decided to supersede the petitioner from including in the select list. It is argued by learned counsel for the petitioner that the principles stated in the above two judgments and the provisions of Rule 28 (b)(i)(7) and Note 1 of KS & SSR have not been duly followed by the Departmental Promotion Committee and the Government. 6. The stand repeatedly taken in the affidavit as well as additional affidavits is that the Departmental Promotion Committee is the competent authority to assess the suitability of an officer for inclusion in the select list for promotion and in the light of the memo of charges issued and that a vigilance case has been registered against the petitioner, the Committee decided to supersede him. The adhoc D.P.C. also decided to supersede him on same grounds. 7. In Dr. P.Balachandran's case (ILR 2007(2) Ker. 46), this Court considered the true interpretation of Rule 28(b)(i)(7) and Note 1 of KS & SSR and it was held thus: “No officer shall be excluded from consideration merely on the ground of the pendency of disciplinary proceedings. That this is the statutory position is discernible from Note (i) of Rule 28(b)(i)(7) of coc 1013/2009 3 KS & SSR. The legal requirement is to examine the records referred to in the above rule for the specified period with a view to assess the performance of the officer and to make a decision regarding his fitness to be included in the select list. The rule does not permit the Departmental Promotion Committee to simply discard the right of an officer, who comes within the field of choice, to get his fitness for inclusion in the list assessed by the Departmental Promotion committee which is bound to take appropriate decision about his fitness to be selected for the post for the relevant period. The rule says that the suitability of the officer for promotion should be assessed by the Departmental Promotion Committee and a finding reached, had the officer been not suspended or the criminal proceedings/departmental proceedings had not been pending against him, he would have been recommended/selected for promotion. The rule further says that where a select list is prepared the Departmental Promotion Committee shall also make a finding as to what the position of the officer in that list would have been but for the suspension or the criminal proceedings/departmental proceedings against him. Officers against whom vigilance or departmental proceedings are taken after the charges have, prima facie, been established in a preliminary enquiry should not be included in the Select List. But, the case of such officers should also be assessed.” Therefore, going by the above rule, an officer shall not be excluded from consideration merely on the ground of pendency of disciplinary coc 1013/2009 4 proceedings, but his suitability has to be assessed by the Departmental Promotion Committee. A reading of Note 1 in its entirety will reveal the true procedure to be adopted by the Departmental Promotion Committee even in a case where departmental proceedings/criminal proceedings are pending. It is specifically mentioned that when a select list is prepared, the Departmental Promotion Committee shall also make a finding as to what the position of the Officer in that list would have been but for the suspension or the criminal proceedings/departmental proceedings against him. The findings as to the suitability and the place in the select list of the Officer should be recorded separately and attached to the proceedings. This is quite important. 8. In Sasidharan's case (2008 (4) KLT 149), it was held that the embargo on inclusion of a person who faces a vigilance proceedings, from being included in the select list for promotion to a selection post would arise only after a charge sheet is drawn up by Vigilance Court. 9. A reading of the additional affidavits dated 22.9.2009 and 22.3.2010 do not throw any light on the various aspects with regard to the compliance of Note 1 to the above Rule. What is relied upon is only the first part of the rule to the effect that “officers under suspension and officers coc 1013/2009 5 against whom criminal proceedings are pending in a Session's Court or in any other higher Court for grave offences like murder, decoity, etc. and Officers against whom departmental proceedings are taken for the imposition of a major penalty under the disciplinary rules applicable to them should not be included in the select list.” The Departmental Promotion Committee has not evidently bestowed its attention to the remaining part of Note (i) to Rule 28(b)(i)(7). There is a failure obviously on the part of the Departmental Promotion Committee. 10. It is further mentioned in the additional affidavit dated 22.3.2010 that on 12.3.2010 the Director, Vigilance and Anti-corruption Bureau has informed that the investigation of VC 5/2007/EKM can be completed before 30.6.2010 and on receipt of the report to the Government suitable action will be taken. 11. In view of the various aspects considered as above, I am of the view that the matter requires a proper consideration afresh. It cannot be said that Annexure A4 communication has been issued in due compliance of the directions issued by this Court in Annexure A3 order. Therefore, the whole issue will be considered afresh in the light of the findings rendered above, within a period of six weeks from the date of receipt of a copy of coc 1013/2009 6 this judgment. Even though I have found that Annexure A3 order has not been fully complied with, since I have directed consideration of the matter properly in the light of the legal provisions and the dictum laid down by this Court in the two decisions noted above, the further action herein is dropped without prejudice to the right of the petitioner to move again, if required, by filing appropriate interlocutory application in the writ petition. (T.R. Ramachandran Nair, Judge.) kav/