High Court Kerala High Court

B.Bose vs State Of Kerala on 23 September, 2009

Kerala High Court
B.Bose vs State Of Kerala on 23 September, 2009
       

  

  

 
 
  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
3

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
4

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