IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 25788 of 2009(P)
1. B.BOSE,UNDER SECRETARY,LAW DEPARTMENT,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. THE SECRETARY TO GOVERNMENT,
For Petitioner :SRI.ELVIN PETER P.J.
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice V.GIRI
Dated :23/09/2009
O R D E R
V.GIRI, J
.......................
W.P.(C).25788/2009
.......................
Dated this the 23rd day of September, 2009
JUDGMENT
Petitioner is an Under Secretary in the Law
Department. While so, he was appointed as Secretary of the
Tribunal for Local Self Government Institutions.
2. He was placed under suspension in connection with a
complaint filed by a Legal Assistant Grade-I in the Law
Department. He challenged the order of suspension and by
Ext.P4, this Court directed the Government to consider the
application for revocation of suspension. By Ext.P5, the
Government decided to reinstate him without prejudice to the
disciplinary action to be initiated against him and also
directed that he be posted outside the Government
Secretariat. Accordingly he was reinstated and posted on
other duty as a Draftsman in the Official Language
(Legislative) Commission. He continues in the said post.
3. Ext.P7 is the gradation list of Legal Assistants and it is
seen that Sl.No.62 one R.Vijayakumar is junior to the
W.P.(C).25788/09
2
petitioner, who is listed against Sl.No.58. This fact is
projected by the petitioner to show that juniors to him have
been given higher grade in the category of Under Secretary,
in terms of the Pay Revision Order. A request made by the
petitioner vide Ext.P9 for sanctioning higher grade in the
scale of Rs.16650 – 23200 was considered and rejected by
the Government as per Ext.P10. Same is under challenge in
this writ petition. Paragraph 5 of Ext.P10 reads as follows.
On receipt of the judgment read as 2nd
paper above, Government have examined
the matter in detail. The disciplinary
proceedings initiated against Sri.B.Bose,
Under Secretary, Law Department are not
yet finalized and his suspension period has
not been regularized. The promotion
during the currency of disciplinary
proceedings may be interpreted as
condonation of misconduct. The
petitioner’s name will be considered for
promotion if he is exonerated or acquitted
from the charges leveled against him. In
the above circumstances, the claim of
Sri.B.Bose, Under Secretary, Law
Department for promotion to Higher
Grade cannot be considered at present
W.P.(C).25788/09
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and the request is rejected. The order of
the Honourable High Court in W.P.(C).
6418/2009 is complied with accordingly.
4. A statement has been filed on behalf of the 1st
respondent. The stand taken in Ext.P10 is reiterated in the
statement. It is also contended that the petitioner’s
probation in the post of Under Secretary has not been
declared so far. Since he is involved in a criminal case
directly in connection with his official capacity, his work
and conduct had not been declared as satisfactory. This, it
is contended, stands in the way of the higher grade being
granted to the petitioner.
5. I heard learned counsel on either side. Higher grade
in the same post is based on the seniority and completion of
a requisite number of years of service. It is not a cadre
based for promotion. Nor is it a promotion to a selection
post. Petitioner has been reinstated in service and
disciplinary proceedings are pending. These are not factors
that should stand in the way of the petitioner being granted
higher grade in the category of Under Secretary. The stand
taken by the Government in Ext.P10 is unsustainable.
W.P.(C).25788/09
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6. In the result, Ext.P10 is quashed. 1st respondent is
directed to pass orders granting grade promotion to the
petitioner as Under Secretary (Higher Grade). Same may
be granted with effect from the date of the order which the
Government is to pass. Such orders shall be without
prejudice to the pendency of the disciplinary proceedings or
continuation of the same against the petitioner. Petitioner’s
claim for grade promotion with reference to the date on
which his junior is granted the said promotion, shall be
considered after completion of the disciplinary proceedings.
Writ petition is disposed of as above.
V.GIRI,
Judge
mrcs