IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 12961 of 2008(R)
1. K.S.BALAKRISHNAN, SPECIAL GRADE
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY THE
... Respondent
2. THE DEPARTMENTAL PROMOTION COMMITTEE
3. SMT.P.S.SOBHA, PERFORMANCE AUDIT UNIT-II
For Petitioner :SRI.S.RAMESH BABU
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :07/11/2008
O R D E R
P.N.RAVINDRAN, J.
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W.P.(C) No.12961 of 2008
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Dated this the 7th November, 2008.
J U D G M E N T
The petitioner who is presently working as Special
Grade Secretary in the Vadakkanchery Grama Panchayat in
Palakkad District has filed this Writ Petition aggrieved by his
supercession for promotion to the category of Senior
Superintendent in the Local Self Government Department. While
the petitioner was working as Special Grade Secretary in the
Vadakkanchery Grama Panchayat, the Director of Panchayats
issued Ext.P1 communication dated 15.7.2006 to all Deputy
Directors of Panchayats calling for the confidential reports of 87
Special Grade Secretaries including the petitioner, for the purpose
of preparing the select list of Special Grade Secretaries eligible
for promotion to the category of Senior Superintendent. In the
list appended to Ext.P1, the petitioner is ranked as Sl.No.3.
Pursuant to Ext.P1, the confidential reports of the petitioner for
the years 2003 to 2005 were forwarded to the Convenor of the
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Departmental Promotion Committee. True copies of the
confidential reports for the years 2003 to 2005 are produced as
Exts.P2, P2(a) and P2(b), and the confidential reports for the
year 2006 are produced in two parts and are marked as Exts.P2
(c) and P2(d). They disclose that in respect of 10 factors,
uniformly for all the years, the petitioner was given Grade-A,
that is “excellent”, in respect of two factors, Grade-B that is “very
good” in respect of six factors and Grade-C that is “satisfactory”
in respect of two factors. However, the Departmental
Promotion Committee, in its wisdom, decided not to select the
petitioner. Ext.P4 is the minutes of the Departmental Promotion
Committee held on 12.9.2007 to select officers eligible for
promotion as Senior Superintendent. Ext.P4 discloses that while
assessing the suitability of the petitioner, the Departmental
Promotion Committee proceeded on the basis that
vigilance/disciplinary action is pending against him. In other
words, the petitioner’s case was considered as if he is an officer
against him vigilance/disciplinary proceedings is pending.
Evidently, because of the said fact, the petitioner’s name did not
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find a place in select list for the year 2006 published by the
Government. The petitioner’s juniors were selected and they
were promoted as per Ext.P3 order dated 27.9.2007 issued by
the Director of Panchayats.
2. Aggrieved by his supercession, the petitioner
moved the Convenor of the Departmental Promotion Committee
by filing Ext.P5, a statutory representation under Rule 28(b)(i)
(8)(a) of Part II of the K.S. & S.S.R., pointing out that no
disciplinary action/vigilance case is pending against him and that
he was illegally superceded. He thereafter filed W.P.(C)
No.32010 of 2007 in this Court. By Ext.P6 judgment delivered
on 29.10.2007, this Court directed the second respondent, the
Convenor of Departmental Promotion Committee to consider the
grievance voiced by the petitioner in Ext.P5 (a copy of which was
marked as Ext.P3 in the aforesaid writ petition) and take a
decision thereon, within one month from the date of receipt of a
copy of the judgment. As directed in Ext.P6 judgment, an Adhoc
Departmental Promotion Committee was constituted and it met
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on 31.12.2007. The Adhoc Departmental Promotion Committee
considered the case of the petitioner and some others. The Adhoc
Departmental Promotion Committee decided not to include the
petitioner in the select list for the year 2006, for the reason that
his confidential records were not satisfactory. The relevant
portion of the minutes, a copy of which is Ext.P8, reads as
follows:-
“Though the disciplinary actions initiated
against Sri.K.S.Balakrishnan and
Sri.T.S.Parameswaran were seen finalised by
exonerating them of the charges, the
Committee found the confidential reports of
Sri.K.S.Balakrishnan and Sri.T.S.Parameswaran
not satisfactory and hence decided not to
include them in the Select List 2006.
Smt.T.Thankamany and Smt.A.K.Sudhamma
against whom disciplinary actions are still
pending were also considered for inclusion in
the Select List 2006.”
3. A reading of Ext.P8 indicates that though initially
the petitioner was superceded on the ground that disciplinary
action was pending against him, the Adhoc Departmental
Promotion Committee decided not to vary its decision on the
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ground that his confidential reports were not satisfactory. In
the light of the decision taken by the Adhoc Departmental
Promotion Committee, the Director of Panchayats informed the
petitioner in Ext.P7 letter dated 4.2.2008 that he has not been
found fit for promotion by the Departmental Promotion
Committee, and, therefore, a decision has been taken not to
include him in the select list of Special Grade Secretaries eligible
for promotion to the category of Senior Superintendent for the
year 2006. In this Writ Petition, the petitioner challenges
Exts.P4, P7 and P8 and prays for the following reliefs:-
i) Issue a writ of certiorari calling for the
records leading upto Ext.P4, P7 and P8 and
quash the same to the extent that it excludes
the petitioner from the select list Ext.P4 and
rejects his representation against such
exclusion.
ii) Issue a writ of certiorari calling for the
records leading upto Ext.P3 and quash the
same to the extent that the petitioner is not
included as Sl.No.3 therein immediately
above the third respondent;
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iii) Issue a writ of mandamus commanding the
first and 2nd respondents to include the
petitioner in Ext.P4 select list and to give him
retrospective promotion in tune with Ext.P3
by placing him immediately above the third
respondent in the matter of such promotion
with all service and other monetary benefits.
4. I have heard Sri.S.Ramesh Babu, the learned
counsel appearing for the petitioner and Sri.P.Nandakumar, the
learned Government Pleader appearing for the respondents. The
learned counsel appearing for the petitioner contends that the
Departmental Promotion Committee had initially superceded the
petitioner on the erroneous assumption that disciplinary
action/vigilance case was pending against him and this will be
evident from Ext.P4 minutes, wherein the petitioner was grouped
along with officers against whom disciplinary action/vigilance
cases were pending. He further submits that at that point of
time, the Departmental Promotion Committee did not supercede
him for the reason that his confidential reports were not
satisfactory, but only for the reason that he was erroneously
grouped along with officers against whom vigilance
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case/disciplinary action were pending. He further submits that
when the petitioner’s case was reconsidered, the Departmental
Promotion Committee over looked the entries in the confidential
reports and decided to stick to its earlier decision to supercede
him on the ground that his confidential reports are not
satisfactory. The learned counsel also submits relying on the
entries in Exts.P2 to P2(d), copies of the confidential reports, that
the assessment of merit made by the Departmental Promotion
Committee is rested on erroneous and irrelevant considerations
and not based on the entries in the confidential reports. In other
words, the learned counsel submits that the Departmental
Promotion Committee did not assess the petitioner’s merit and
suitability on the materials before it, but on extraneous
considerations. Per contra, the learned Government Pleader
contended, relying on the counter affidavit dated 7.8.2008 sworn
to by the second respondent that the Departmental Promotion
Committee decided to supercede the petitioner on the ground
that his confidential reports were not satisfactory and he was
graded in ‘C’ category continuously for three years.
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5. I have considered the submissions made at the
Bar by the learned counsel appearing on either side. It is
evident from Ext.P4 minutes that when the select list of officers
eligible for promotion to the post of Senior Superintendent for the
year 2006 was prepared, the petitioner was superceded on the
short ground that disciplinary action/vigilance case was pending
against him. As a matter of fact, it is now clear that no vigilance
case/disciplinary action was pending against the petitioner, when
his eligibility for promotion was first assessed by the
Departmental Promotion Committee on 12.9.2007. For reasons
best known to the Departmental Promotion Committee, the
petitioner was grouped along with officers against whom
departmental proceedings/vigilance case were pending and
superceded. At that time, the Departmental Promotion
Committee did not form the opinion that the confidential reports
of the petitioner for the relevant years were not satisfactory. In
other words, there was no assessment of the merit and suitability
of the petitioner by the Departmental Promotion Committee,
when it met for the first time on 12.9.2007. Merely for the
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reason that they thought that departmental
proceedings/vigilance case is pending against the petitioner, the
members of the Departmental Promotion Committee did not
consider the petitioner’s case. Later, on review, the
Departmental Promotion Committee came to the conclusion that
though the petitioner has been exonerated of the charges, his
confidential reports for the relevant years were not satisfactory.
6. In the light of the facts stated above, the only
question that arises for consideration is whether the
supercession of the petitioner on the grounds stated in Ext.P8 is
sustainable or not. The confidential reports of the petitioner for
the relevant period, 2003-2006, are on record as Exts.P2 to P2
(d). They uniformly disclose that there are no adverse remarks
about the conduct or performance of the petitioner. In fact, the
confidential reports discloses that in respect of 10 factors which
are relevant, the petitioner is having Grade-A for two factors,
Grade-B in respect of six factors and Grade-C in respect of two
factors, uniformly for the period from 2003-06. Grade-A
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indicates that work and performance of the employee is excellent,
Grade-B indicates that it very good and Grade-C indicates that it
is satisfactory. Though the respondents have filed counter
affidavit, they have not disputed the authenticity and
genuineness of Exts.P2 to P2(d) or the correctness of the entries
therein. In other words, they admit the entries made in Exts.P2
to P2(d). Therefore, in the light of the entries in Exts.P2 to P2
(d), I find no logic behind the finding made by the Departmental
Promotion Committee in Ext.P8 minutes that the confidential
reports of the petitioner were not satisfactory. On the materials
on record, I am persuaded to take a view that the Departmental
Promotion Committee did not bestow serious attention to the
claims of the petitioner and have invented reasons to deny him
promotion to higher post. In the facts and circumstances of the
case, I am of the considered opinion that the supercession of the
petitioner for promotion to the post of Senior Superintendent for
the year 2006 was per se arbitrary and illegal.
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9. In the result, the writ petition is allowed and the
following directions are issued. Ext.P4 decision taken by the
Departmental Promotion Committee to supercede the petitioner
for the year 2006 is quashed. It is declared that the petitioner is
eligible to be included in the select list of Special Grade
Secretaries eligible for promotion to the post of Senior
Superintendent for the year 2006. The respondents shall take
steps to include his name in the select list of officers for the year
2006 eligible to be promoted to the category of Senior
Superintendent. Since the petitioner is due to retire on
30.11.2006, the directions given above shall be implemented
before the expiry of the said date, and consequential orders shall
also be issued simultaneously.
It is further declared that the petitioner will be
entitled to all service benefits including salary and allowances
as also the consequential pensionary benefits by treating him as
an officer who ought to have been included in the select list for
promotion to the post of Senior Superintendent for the year
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2006. He will also be entitled to all benefits were extended to
his junior Smt.P.S.Shobha who was selected and promoted as
Senior Superintendent by Ext.P3 order.
P.N.RAVINDRAN,
JUDGE
nj.