IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 2698 of 2008(U)
1. V.K. BEENAKUMARI,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. K.P. ABDUL AZEEZ,
3. COMMISSIONER,
4. DEPARTMENTAL PROMOTION COMMITTEE(HIGHER)
5. COMMISSION FOR SCHEDULED CASTES &
For Petitioner :SRI.B.GOPAKUMAR
For Respondent :SRI.C.P.MOHAMMED NIAS
The Hon'ble MR. Justice V.GIRI
Dated :22/02/2008
O R D E R
V.GIRI,J.
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W.P ( C) No. 2698 of 2008
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Dated this the 22nd February, 2008
J U D G M E N T
Petitioner, who is presently working as Deputy
Commissioner in the Department of Commercial Taxes, is
aggrieved by the delay on the part of the Government in
effecting promotions to the post of Joint Commissioner , in spite
of vacancies existing in that post from 1.7.2006. Petitioner’s
claim in that behalf was directed to be considered by this Court
as per the order in I.A.14226 of 2007 in W.P(C)No.9989 of 2005.
Government considered the petitioner’s case and rejected it
under Exhibit P5. Government does not, at this stage, propose to
fill up the vacancy by way of provisional promotion. As as
regards regular promotion, the stand taken is that Government is
not in a position to finalise the seniority list of Deputy
Commissioner, which is obviously necessary to convene a DPC
and effect regular promotion. Exhibit P5 has been challenged in
this writ petition.
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2. Petitioner has further challenged Exhibit P3 by which
the 2nd respondent who was occupying the post of Joint Labour
Commissioner till 30th June 2006 (whose retirement gave rise to
the vacancy which is currently existing) has been appointed as
Consultant (Law) at the Centre for Taxation Studies. Apparently,
the engagement of the 2nd respondent under Exhibit P3 was
further extended by a period of one year from the 1st of July,
2007. These actions are challenged by the petitioner on the
premise that apparently the 2nd respondent, post retirement is
acting as defecato Joint Commissioner and that there is no
necessity to engage the services of a retired person. It is only to
help the 2nd respondent that the Government has refused to
consider even provisional promotion to the post of Joint
Commissioner, it is contended.
3. A statement has been filed by the Government
refuting these aspects. That the engagement of the 2nd
respondent was effected considering his legal acumen and
proven expertise in helping the Government to defend tax
matters. This has nothing to do with the filling or non-filling up
of the post of Joint Commissioner (Law). The allegation
regarding any undue indulgence being shown to the 2nd
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respondent has also been refuted.
4. A counter affidavit has been filed by the 2nd
respondent. It is contended that he was offered the engagement
as Consultant (Law) under Exhibit P3, not on his application but
after the Governing body of the Centre for Taxation Studies had
taken a decision at the highest level, to utilize his services.
Apparently, the Chief Minister and the Minister for Finance are
also members of the governing body. He renders such services
as he can, going by the considerable experience he had
accumulated over the years in conducting matters on behalf of
the Government both before this Court and before the Supreme
Court. Neither Exhibit P3 nor Exhibit P4 has anything to do with
the delay in finalization of the provisional seniority list of Deputy
Commissioners and the delay in effecting promotions to the post
of Joint Commissioner.
5. I heard the Learned counsel for the petitioner
Mr.B.Gopakumar and the learned Government Pleader Mr.Bejoy
Chandran and Sri. Mohammed Nias, learned counsel for the 2nd
respondent. In my view, there is nothing which suggests a link
between the engagement of 2nd respondent as a Consultant (Law)
in the Centre for Taxation Studies, as per Exhibits P3 and P4
W.P ( C) No. 2698 of 2008
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with the delay on the part of the Government in finalizing the
seniority list of Deputy Commissioners. Adequate reasons have
been given by the Government in the statement filed by them I
am not able to find any illegality as such in the decision taken to
avail the services of the 2nd respondent as a Consultant (Law).
Once the services are decided to be utilized, there is nothing
wrong in enabling him to give his best, in serving the
Government as such. Apparently, his legal acumen or expertise
in handling matters on behalf of the Government has been
considered as valuable by the Government. This court would be
slow in interfering with the decision as reflected in Exhibits P3
and P4, unless there is a demonstrated case of malafides or
statutory infraction, I am not able to detect any in this case.
6. In so far as the petitioner’s claim for promotion to the
post of Joint Commissioner is concerned, obviously she is entitled
to be considered for promotion to the said post. Petitioner
contends that she is the senior most amongst the Deputy
Commissioners. Therefore, if regular promotions are effected
there is absolutely no reason why she should not be promoted, it
is contended. The post of Joint Commissioner is a selection post
and it is upto the Government to fill up the same. Apparently,
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the delay in finalizing the seniority list of Deputy Commissioner
is due to pendency of certain writ petitions before this Court,
according to the Government. Learned counsel for the petitioner
Mr. Gopakumar points out that there is no order of restraint by
this Court against the finalization of the seniority list and the
reason given by the Government in this regard does not seems to
be tenable. But the decision to fill up the post which is
essentially a selection post is ultimately vested with the
Government. In the facts and circumstances of the case, I
consider it appropriate to direct the Government to take a
decision on the question as to whether the existing vacancy in
the post of Joint Commissioner is to be filled up. This shall be
done without reference to the pendency of writ petition No.9989
of 2005. At any rate, if the Government decides that orders of
promotion could be made only after getting clarifications from
this Court, it is perfectly open to them to do so. There does not
seem to be any justification in not taking a decision in that
behalf.
7. Learned counsel for the petitioner submits that even if
the Government decides to defer the question of regular
promotion there is nothing that stands in the way of provisional
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promotion being effected in the absence of select list. This is
especially so when the eligible incumbents are impending
retirement. Petitioner is due to retire in 2009, it is submitted.
In the facts and circumstances of the case, the writ petition
is disposed of in the following terms:
i) The 1st respondent shall take a decision as to whether
the existing vacancy of Joint Commissioner in the
Department of Commercial Taxes is to be filled up on
a regular basis by effecting regular promotion from
among the Deputy Commissioners. This shall be done
within a period of two months from today. Such
decision shall be taken without reference to the
pendency of Writ Petition No.9989 of 2005. If actual
implementation of the orders require any clarification
from this Court in W.P(C) 9989 of 2005, Government
is at liberty to make appropriate motion in that behalf.
ii) If the Government decides that regular promotion is
not feasible, for the post of Joint Commissioner, it
shall consider the case of the petitioner and other
eligible incumbents for provisional promotion to the
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said post. While doing so, Government shall keep in
mind the judgment in W.A Nos.200 of 1986, 890 of
2002 and 826 of 2003.
iii) The filling up of the post of Joint Commissioner either
on a regular basis or on a provisional basis is not in
any manner connected with the engagement of the 2nd
respondent as a Consultant, as already mentioned
above. The challenge against Exhibits P3 and P4 is
repelled.
(V.GIRI, JUDGE)
ma
W.P ( C) No. 2698 of 2008
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K.THANKAPPAN,J
CRL.A. NO.92 OF 1999
ORDER
25th May, 2007