Dr. A. Sasidharan Babu v. State of Kerala and The Director of Animal Husbandry

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **MONDAY, THE 24TH MARCH 2008 / 4TH CHAITHRA 1930** **OP.No. 22795 of 2002(L)** **---------------------------------** **PETITIONER:** **------------------** **DR. A. SASIDHARA BABU, CHIEF VETERINARY OFFICER (RETIRED), "ASWATHY", T.C.17/1228 (9), VIVEKANANDA NAGAR, VNRA 168, PANGODE, TIRUMALA P.O., TRIVANDRUM.** **BY ADV. SRI.K.P.DANDAPANI(Sr.)** **RESPONDENTS:** **------------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, AGRICULTURE (AHE) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DIRECTOR OF ANIMAL HUSBANDRY VIKAS BHAVAN, THIRUVANANTHAPURAM.** **BY GOVERNMENT PLEADER SMT. N.SUDHADEVI** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 24/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ORDER ON CMP NO. 38995/2002 IN OP NO. 22795/2002 L.** ## **DISMISSED** **24/03/2008. SD/- T.R.RAMACHANDRAN NAIR, JUDGE.** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **EXT.P1. COPY OF THE REPORT OF TRANSFER OF CHARGE, DT. 19/6/99 REFERRED TO IN THE ORIGINAL PETITION.** **EXT.P2. COPY OF THE RELEVANT EXTRACT OF ORDER, GO RT NO. 1819/2000/AD DT. 23/10/00 OF THE R1 TO THE PETITIONER.** **EXT.P3. COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE R1 ON 31/5/2001.** **EXT.P4. COPY OF THE JUDGMENT OF THIS COURT,D T. 18/07/01 IN OP NO. 21073/2001.** **EXT.P5. COPY OF THE ORDER NO. 16015/AHE3/01/AD DT. 1/2/2002 OF THE R1 TO THE PETITIONER.** ## **RESPONDENT'S EXHIBITS NIL.** _True copy_ _tga_ ## **T.R.RAMACHANDRAN NAIR, J** **= = = = = = = = = = = = = = = = = = O.P.No. 22795 OF 2002** **= = = = = = = = = = = = = Dated this the 24[th] day of March, 2008.** **= = = = = = = = == = = = = = = = = = =** ## **J U D G M E N T** The petitioner while working as Chief Veterinary Officer, attained superannuation. The substantial claim in the original petition is for a declaration that he was entitled for promotion for the post with effect from 20.5.1999 and for grant of consequential monetary benefits including retirement benefits. 2. The petitioner was regularly appointed as veterinary surgeon through Public Service Commission on 9.4.1976 and was promoted as Assistant Director in category III in 1991. The Government, as per order, G.O.(Rt).No.554/2000/AD, dated 24.3.2001, declared that the petitioner has satisfactorily completed the period of probation in the cadre of Assistant Director with effect from 28.4.1992. The then incumbent of the post of Deputy Director in the animal husbandary department, was promoted as Joint Director as per order dated 20.5.1999, consequent upon which the petitioner was given charge of the **O.P.No. 22795 OF 2002** **2** Chief Veterinary officer in the District Veterinary Centre, Thiruvananthapuram, as per order dated 19.6.1999. The petitioner, claiming himself as fully qualified for regular promotion had been requesting the department to grant such promotion also. While so, the Departmental Promotion Committee met in July, 2000 and since no action thereafter was forthcoming, and as he was due to retire on 30.6.2001, he approached this Court by filing O.P.No. 27212/2000. As per order dated 23.3.2001, this Court observed that depending upon the vacancy position, Government shall publish the selected list to fill up the vacancies that are necessary to be filled up. Thereafter he was promoted as per Ext.P2 order dated 23.10.2000. Subsequently, he filed Ext.P3 representation seeking retrospective promotion as chief Veterinary Officer with effect from 20.5.1999. Ultimately, by Ext.P5, the said representation was rejected and aggrieved by the same, this original petition is filed. 3. Heard the learned counsel for the petitioner and learned Government Pleader. **O.P.No. 22795 OF 2002** **3** 4. It is contended by the learned counsel for the petitioner that the petitioner was entitled for promotion to the higher post with effect from the date of occurrence of vacancy, as he was the senior most qualified hand entitled to be promoted to that post. It is only due to the inaction of the department, promotion was delayed. According to the learned counsel, actually there was denial of promotion which adversely affected the petitioner. It is further pointed out by referring to the relevant rules in KS & SSR that the Departmental Promotion Committee had to meet from time to time to prepare a select list and therefore there was a bounden duty on them to convene the meeting and at any rate the failure on the part of the DPC cannot affect the right that was available to the petitioner to be promoted from the date of occurrence of vacancy. The learned counsel for the petitioner also relied upon the decision of the Apex Court in _**Premachandran vs. State of Kerala**_ (2004(1) KLT 486) and that of a learned Single Judge of this Court reported in _**Thulasidas vs. State of Kerala**_ (1997 (2) ILR Kerala 597) in support of the above arguments. **O.P.No. 22795 OF 2002** **4** 5. In the counter affidavit filed by the 1[st] respondent it is stated that for promotion to the post of Assistant Director and Deputy Director for the year 1999, there was no select list. The Departmental Promotion Committee was convened on 31.7.2000 and a select list was issued as per G.O.(Rt)No.1497/2000/AD dated 25.8.2000. All the 33 Assistant Directors were promoted as per order dated 23.10.2000. It is further pointed that the claim for retrospective promotion is not admissible because retrospective promotion can be done only to those posts which do not involve a change of duties as per Rule 23(c) and as the post of Deputy Director has more duties and functions, the claim cannot be granted. It is also submitted that the post of Deputy Director is a selection post and same can be filled up only by promoting qualified persons from the select list of Assistant Directors and it is not a matter of right which can be claimed merely by seniority. As on the date of occurrence of vacancy, the satisfactory completion of probation of the petitioner in the cadre of Assistant Director was not declared and only after such exercise alone he became eligible to be considered for inclusion in the filed of choice for selection for promotion to the post of **O.P.No. 22795 OF 2002** **5** Deputy Director. It is also stated that there was disciplinary proceedings against the incumbent which ended in passing of an order awarding punishment of barring one increment without cumulative effect, as per G.O(Rt) 194/96/AD dated 7.2.1996. 6. It is a case where even though the vacancy arose on 20.5.1999, the petitioner was actually promoted only on 23.10.2000. The question is whether the delay in convening the meeting of the Departmental Promotion Committee, in such circumstances, would help the officer concerned to claim retrospective promotion. In the decision reported in “Premachandran's” case (2004 (1) KLT 486), challenge against the order passed by the Government granting retrospective promotion was repelled by the Apex Court. In that case there was a gap of 16 years in convening the DPC, But taking note of the fact that persons were temporarily promoted from 1964, the Government passed an order promoting them with effect from the date on which they were temporarily promoted. The facts of the case herein are different. Here, the petitioner was never promoted temporarily to the post and he was holding the post by **6** ## **O.P.No. 22795 OF 2002** way of charge arrangement. Therefore the facts are not similar and principle laid down will not apply here. In “Thulasidas's” case (supra), it has not been laid down that the delay in convening the DPC is a matter which will enable a person to claim retrospective promotion. 7. In this case, it is evident that as on the date of occurrence of vacancy, the probation of the petitioner has not been declared. The learned counsel for the petitioner pointed out that the same was declared as per order dated 24.3.2001 with effect from 28.4.1992. It cannot be disputed that the meeting of DPC had to be convened to prepare a select list. Of course, Sub Rule 4 of Rule 28 of KS & SSR provides that the committee shall meet periodically to prepare select list for appointment of officers. As far as the situation herein is concerned, the select list was prepared for the year 2000 and not for the year 1999. The select list as such is not challenged in the writ petition also. As pointed out in the counter affidavit, the probation of the petitioner was also not declared as on the date of occurrence of vacancy. The principle that a person is entitled to promotion as **O.P.No. 22795 OF 2002** **7** on the date of occurrence of vacancy, does not apply to the facts of this case and it is also well settled that there are exceptions to the said principle. For all these reasons I find that the view taken in Ext.P5 does not call for any interference. Therefore the writ petition is dismissed. **T.R.RAMACHANDRAN NAIR JUDGE** bkn/-