Harees A.M. v. Kerala State Pollution Control Board and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE N.NAGARESH`** ``` THURSDAY, THE 9[TH] DAY OF MARCH 2023 / 18TH PHALGUNA, 1944 ``` ## **`WP(C) NO. 28143 OF 2022`** ## **`PETITIONER:`** ``` HAREES A.M., ``` ``` *CORRECTED (HARIS A.M.), AGED 52 YEARS S/O.HANEEFA RAVUTHAR, ENVIRONMENTAL ENGINEER, POLLUTION CONTROL BOARD, DISTRICT OFFICE, KOTTAYAM RESIDING AT FLAT NO.701, CONFIDENT OBERON APARTMENT, ALANGAD P.O., ERNAKULAM, PIN - 683 511. ``` ``` *NAME OF THE PETITIONER IN THE WPC IS CORRECTED AS PER ORDER DATED 30.08.2022 ``` - **`BY ADVS. P.N.SANTHOSH`** ``` K.P.GEETHA MANI SRI.RANJITH THAMPAN,ADDL.ADVOCATE GENER(AG-8) ``` ## **`RESPONDENTS:`** - **`1 KERALA STATE POLLUTION CONTROL BOARD REPRESENTED BY THE CHAIRMAN, OFFICE OF THE KERALA STATE POLLUTION CONTROL BOARD, PATTOM P.O., THIRUVANANTHAPURAM - 695 004.`** - **`2 THE CHAIRMAN KERALA STATE POLLUTION CONTROL BOARD, PATTOM P.O., THIRUVANANTHAPURAM - 695 004.`** - **`3 THE DEPARTMENTAL PROMOTION COMMITTEE OF THE KERALA STATE POLLUTION CONTROL BOARD, REPRESENTED BY IT CONVENER (MEMBER SECRETARY) OFFICE OF THE KERALA STATE POLLUTION CONTROL BOARD, PATTOM P.O., THIRUVANANTHAPURAM - 695 004.`** ``` BY ADV SRI. T.NAVEEN, (SC)- R1 TO R3 ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) No.28143 of 2022 ``` ``` 2 ``` ## **JUDGMENT** Dated this the 9[th] day of March, 2023 The petitioner, an employee of the Kerala State Pollution Control Board, has approached this Court filing this writ petition seeking to set aside Exts.P12 and P5 and to direct the respondents to reinstate the petitioner in service by revoking the suspension order. The petitioner further seeks to declare that he is entitled to be promoted to the post of Environmental Engineer on a regular basis with effect from 31.05.2021, the date of occurrence of vacancy. 2. The petitioner states that he was appointed as Assistant Engineer in the Kerala State Pollution Control Board on 17.11.2008. The petitioner was promoted as Assistant Environmental Engineer in the year 2013. In the year 2020, according to the petitioner, he was the seniormost Assistant Environmental Engineer entitled to be promoted as ``` WP(C) No.28143 of 2022 ``` ``` 3 ``` Environmental Engineer, which is the next promotional post. 3. On 14.10.2020, the petitioner was granted a temporary promotion as Environmental Engineer against a leave vacancy. When the regular incumbent returned after expiry of the leave, the petitioner was reverted as Assistant Environmental Engineer as per Ext.P7 proceedings dated 29.12.2020. 4. The petitioner would contend that a substantial vacancy of Environmental Engineer arose on 31.05.2021. The petitioner was again promoted as Environmental Engineer on a temporary basis as per Ext.P8 order dated 03.05.2021. 5. While the petitioner was working, he was suspended from service as per Ext.P1 proceedings dated 16.12.2021. For regular promotion to the category of Environmental Engineer, a Departmental Promotion Committee was convened on 28.05.2022 and 03.06.2022. The Departmental Promotion Committee decided not to consider the petitioner for promotion, as per Ext.P10 ``` WP(C) No.28143 of 2022 ``` ``` 4 ``` proceedings. Subsequently, the petitioner was reverted from the post of Environmental Engineer, which he was holding temporarily as per Ext.P12 order dated 24.06.2022. 6. Counsel for the petitioner argued that when there were two substantial vacancies of Environmental Engineer which were in existence as on 31.05.2021, the petitioner was not under suspension and there was no contemplation of disciplinary proceedings or criminal proceedings against the petitioner as on that date. Therefore, eventhough the Departmental Promotion Committee was convened subsequently much later in the year 2022, since the Departmental Promotion Committee was considering the question of grant of promotion against the vacancies which arose in the month of May, 2021, the Departmental Promotion Committee ought to have considered the candidature of the petitioner. The refusal of the Departmental Promotion Committee to consider the petitioner’s candidature for promotion to the post of Environmental Engineer is illegal and ``` WP(C) No.28143 of 2022 ``` ``` 5 ``` it has adverse civil consequences. 7. The counsel for the petitioner urged that in view of Rule 28(b)(i)(4) of the Kerala State and Subordinate Services Rules, 1958, a Departmental Promotion Committee shall meet periodically to prepare select lists, in the order of merit, of the officers selected for appointment. The Committee may also hold adhoc meetings for the purpose of making selections to particular vacancies whenever occasion arises. The criterion for assessment of merit shall be the confidential reports of the officers. The confidential reports of the officers for at least the preceding three years shall be made available to the Committee for this purpose. Where remediable adverse remarks recorded in the confidential reports of a Government Servant are not communicated to the officer concerned, such remarks shall be ignored by the Departmental Promotion Committee while considering his case for promotion. Sub Clause (a) to Sub Rule (4) mandates that Select lists shall be prepared during a calendar year for the vacancies estimated ``` WP(C) No.28143 of 2022 ``` ``` 6 ``` to arise in the next calendar year. 8. The counsel for the petitioner further relied on Sub Clause 4(d) which provides that during September/October, the Departmental Promotion Committees will be convened and select lists prepared which will be notified before 30[th] November and in any case not later than December 31[st] . If any officer becomes qualified after the preparation of the select list, but before the occurrence of the vacancy, the Departmental Promotion Committee shall meet subsequently and his name shall be considered for inclusion in the select list. 9. Relying on Rule 28 of Part II of the Kerala State and Subordinate Services Rules, 1958, the counsel for the petitioner urged that the respondents ought to have convened Departmental Promotion Committee in the year 2020 itself for finding the suitability of officers to be promoted against the vacancies arising in the year 2021. Had the Departmental Promotion Committee been convened as per Rule 28, as the ``` WP(C) No.28143 of 2022 ``` ``` 7 ``` petitioner was not under suspension at that time, the petitioner’s name would have been included in the select list and since there were vacancies, the petitioner would have been given regular promotion. In such an event, even if a suspension order is imposed on the petitioner, it would have been as an Environmental Engineer. There would have been no reversion or adverse consequences on the petitioner. 10. The counsel for the petitioner relied on the Full Bench judgment of this Court in _**Varghese and others v. State of Kerala and others** [1981 KLT 458 (F.B.)]_ . This Court in the said judgment held that it is the time of occurrence of vacancy that should be relevant for determining the question of promotion and not the time the order of promotion is passed. The relevant date must be definite and not depending upon the volition of the authorities as otherwise the determination would be arbitrary. The Full Bench relied on another Full Bench judgment of this Court in _**James Thomas and others v. Chief Justice, High Court of Kerala and**_ ``` WP(C) No.28143 of 2022 ``` ``` 8 ``` _**others** [1977 KLT 622 (F.B.)]_ to arrive at such conclusions. 11. The counsel for the petitioner pointed out that another Full Bench of this Court in _**Padmanabhan Nair v. Deputy Director** [1991 (1) KLT 337 (F.B.)]_ considered the issue and held that when qualifications are prescribed for a promotion post, eligibility for appointment to that post has to be reckoned with reference to the date on which the vacancy arose. If there was a qualified hand on that date in the feeder category, he is entitled to be considered for appointment to the post in preference to his unqualified seniors. The day on which the appointment is actually made is immaterial as the title to the appointment arises on the date of occurrence of the vacancy and is not defeated by the acquisition of qualification by a senior thereafter. 12. The counsel for the petitioner also relied on the judgment of the Hon’ble Apex Court in _**Union of India and others v. K.V. Jankiraman and others** [1991 (4) SCC 109]._ The counsel for the petitioner further relied on the judgment of ``` WP(C) No.28143 of 2022 ``` ``` 9 ``` the Hon’ble Apex Court in _**P.N. Premachandran v. State of Kerala and other** s [2004 (1) SCC 245]_ to contend that delay in convening the Departmental Promotion Committee being administrative lapse, promotees cannot be made to suffer for no fault on their part. The judgment of the Hon’ble Apex Court in _**P.N. Premachandran**_ (supra) was delivered taking into account the Kerala State and Subordinate Services Rules, 1958. 13. The counsel for the petitioner submitted that the delay on the part of the respondents in convening the Departmental Promotion Committee in the year 2020 itself for the vacancies arising in the year 2021 cannot have any adverse consequences on the petitioner. Assuming that the delay is justified even then, the Departmental Promotion Committee should not have refused to consider the candidature of the petitioner as has been done in Ext.P10. Therefore, the impugned orders are liable to be set aside, contended the counsel for the petitioner. ``` WP(C) No.28143 of 2022 ``` ``` 10 ``` 14. Standing Counsel entered appearance on behalf of the respondents and defended the writ petition. The Standing Counsel controverted all the material allegations made by the petitioner in the writ petition. It is submitted on behalf of the respondents that the petitioner was arrested by the Deputy Superintendent of Police, V&ACB, Kottayam Unit on 15.12.2021 in connection with a bribery incident. As soon as the Board received intimation from the Deputy Superintendent of Police, V&ACB, the petitioner was suspended from service with effect from 15.12.2021 as per Ext.P1. The petitioner made a request to the Chairman, Kerala State Pollution Control Board seeking to revoke his suspension. The Suspension Review Committee held on 22.03.2022 did not recommend revocation of the petitioner in view of the pendency of the investigation. 15. On behalf of the respondents, it is submitted that the promotions granted to the petitioner as Environmental ``` WP(C) No.28143 of 2022 ``` ``` 11 ``` Engineer were temporary in nature. As and when the vacancies ceased to exist, the petitioner was reverted as Assistant Environmental Engineer. The petitioner was under suspension when the Departmental Promotion Committee met. Therefore, the Departmental Promotion Committee was amply justified in not considering the candidature of the petitioner for promotion. The date of occurrence of vacancy has no relevance at all when the incumbent is under suspension when the Departmental Promotion Committee met. It was taking into consideration the reports of the Departmental Promotion Committee also that the petitioner was reverted from his temporary appointment as Environmental Engineer. 16. The respondents seriously disputed the applicability of Rule 28, Part II of the KS & SSR, 1958. It is pointed out that the petitioner is governed by the Kerala State Pollution Control Board General Special Service Rules which came into force from 12.06.1989. The said Rules provide that ``` WP(C) No.28143 of 2022 ``` ``` 12 ``` officers under suspension and officers against whom criminal or departmental proceedings are taken for grave criminal offences or for imposition of a major penalty should not be included in the select list. Therefore, the petitioner cannot seek any relief based on Rule 28 of the KS & SSR, 1958. Rule 28, Note (ii) would also justify the stand taken by the respondents, contended the Standing Counsel for the respondents. 17. I have heard the learned counsel for the petitioner and the learned Standing Counsel representing the respondents. 18. It is evident from the pleadings and arguments that the petitioner was Assistant Environmental Engineer and was the seniormost Assistant Environmental Engineer in the year 2020, eligible for promotion to the category of Environmental Engineer. When temporary leave vacancies arose, the petitioner was granted temporary promotions also to the post of Environmental Engineer. Subsequently, the petitioner was ``` WP(C) No.28143 of 2022 ``` ``` 13 ``` suspended from service on 16.12.2021 for offences alleged. Though the writ petition was filed challenging the suspension order also, it is submitted by the counsel for the petitioner that suspension order has been revoked during the pendency of the writ petition as per an order dated 24.01.2023. Therefore, what is remaining is the question of eligibility of the petitioner for being considered for promotion to the post of Environmental Engineer against vacancies which arose in the month of May, 2021. 19. It is a fact that the petitioner was in service, not under suspension and there was no disciplinary proceedings against the petitioner as on 31.05.2021, when one of the vacancies of Environmental Engineer arose. Though the Departmental Promotion Committee ought to have been convened sufficiently in advance for filling up the vacancies that may fall vacant immediately, it is an admitted position that the Departmental Promotion Committee was not convened during this time, perhaps due to the Covid-19 pandemic. The ``` WP(C) No.28143 of 2022 ``` ``` 14 ``` Departmental Promotion Committee was convened only on 28.05.2022 and 03.06.2022. The Departmental Promotion Committee did not consider the petitioner for promotion on the ground that the petitioner is under suspension in contemplation of departmental/criminal proceedings. Rule 23(6) of the Kerala State Pollution Control Board, General and Special Rules reads as follows:- (1) Officers under suspension and officers against whom criminal or departmental proceedings are taken for grave criminal offences or for imposition of a major penalty, as the case may, should not be included in the select list. But the suitability of such an officer, for promotion should be assessed at the relevant time by the Departmental Promotion Committee and a finding reached whether he would have been recommended/selected for promotion. The findings as to the suitability and the place in the select list of the officer should be recorded separately and attached to the proceedings of the Departmental Promotion Committee in a sealed cover. The proceedings of the Departmental Promotion Committee need only contain a note "the findings are in the attached sealed cover". The authority competent to fill the vacancy should be separately advised to fill up vacancy only on temporary basis. (2) If the officer concerned is completely exonerated and if the vacancy which has been filled up on temporary basis is still in existence he will be promoted to that vacancy, the arrangements made previously being ``` WP(C) No.28143 of 2022 ``` ``` 15 ``` reversed. If such a vacancy ceases to exist at the time of exoneration, he will be promoted in the first vacancy that may be available in future if he is found fit for promotion at that time. If the exoneration is not complete, the Departmental Promotion Committee decide each case on merit. (3) Officers whose names are included in the 'Select List', but who are subsequently placed under suspension or against whom Criminal Proceedings/Departmental Proceedings of the type referred to in Note (1) above, have been initiated should not be promoted on the basis of their inclusion in the select list until they are completely exonerated of the charges, he will be promoted on the basis of his position in the select list, to the post which has been filled on a temporary basis. If the exoneration is not complete, the Departmental Committee may consider such case on its merits. (4) A censure or warning awarded to an officer need not be taken into account while considering his case for Promotion under Note (2) and (3) above. 20. It is evident from the Rule that officers under suspension and officers against whom criminal or departmental proceedings are taken for grave criminal offences or imposition of a major penalty, should not be included in the select list. The Rule, however, states that the suitability of such an officer for promotion should be assessed at the relevant time by the Departmental Promotion ``` WP(C) No.28143 of 2022 ``` ``` 16 ``` Committee and a finding reached whether he would have been recommended/selected for appointment/promotion. The finding as to the suitability and the place in the select list of the officer should be recorded separately and attached to the proceedings of the Departmental Promotion Committee in a sealed cover. 21. Rule 23(b)(6), Note 3 provides that officers whose names are included in the ‘Select list’ but who are subsequently placed under suspension or against whom criminal proceedings/departmental proceedings of the type referred to in Note (1) above, have been initiated should not be promoted on the basis of their inclusion in the select list until they are completely exonerated of charges. He will be promoted on the basis of his position in the select list to the post which has been filled on a temporary basis if he is exonerated. If the exoneration is not complete, the Departmental Promotion Committee may consider such cases on its merits. These Rules are similar to the provisions ``` WP(C) No.28143 of 2022 ``` ``` 17 ``` applicable to State and Subordinate Services. 22. The intent and purpose of the Departmental Promotion Committee considering the case of the petitioner who was under suspension are obvious. If the suspension is revoked subsequently and the departmental proceedings ended up in acquittal or when in criminal proceedings, the candidates are exonerated. In such events, the pendency of departmental proceedings/criminal proceedings cannot mar the chances of the employees for promotion. It is to protect the interest of the employees that the procedure of sealed cover is adopted. The sealed cover procedure has been given recognition in the Kerala State Pollution Control Board General and Special Rules also. 23. I find that in the case of the petitioner, the Departmental Promotion Committee refused to consider the candidature of the petitioner. The relevant portion of Ext.P10 reads as follows:- ``` WP(C) No.28143 of 2022 ``` ``` 18 ``` “The committee examined the above matter and decided not to consider the case of Sri.Harees A.M." as he is under suspension.” 24. I find that the procedure adopted by the Departmental Promotion Committee cannot stand the scrutiny of law. As the Departmental Promotion Committee was convened to assess the merit and suitability of the candidates for promotion as Environmental Engineer against the vacancies arose in the month of May, 2021, as the petitioner was not under any disciplinary proceedings at that point of time, his candidature also ought to have been considered by the Departmental Promotion Committee. To that extent, Ext.P10 cannot stand the scrutiny of law. 25. In view of the discussions as made above, I am inclined to allow the writ petition to the extent of setting aside Ext.P10 in so far as it is applicable to the petitioner and to direct that the Departmental Promotion Committee shall convene a meeting again for assessing the suitability of the petitioner for promotion against the vacancies that arose on ``` WP(C) No.28143 of 2022 ``` ``` 19 ``` 31.05.2021. The Departmental Promotion Committee shall be convened and merit and suitability of the petitioner shall be assessed, within a period of three months. It is made clear that promotion of the petitioner as Environmental Engineer will be governed as per the Kerala State Pollution Control Board General and Special Service Rules and subject to the outcome of the proceedings pending against he petitioner. The writ petition is allowed as above. **Sd/-** **N.NAGARESH JUDGE** spk ``` WP(C) No.28143 of 2022 ``` ``` 20 ``` ## **`APPENDIX OF WP(C) 28143/2022`** ``` PETITIONER EXHIBITS Exhibit P1ATRUECOPYOFTHEORDER NO.PCB/E2/5925/2021 DATED 16/12/2021 ISSUED BY THE CHAIRMAN OF THE KERALA STATE POLLUTION CONTROL BOARD. ``` - **`Exhibit P2 A TRUE COPY OF THE ORDER DATED 25/2/2022 IN CRLM.P.1/2022 IN VC 11/2021 OF THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, KOTTAYAM.`** - **`Exhibit P3 A TRUE COPY OF THE APPEAL/REPRESENTATION DATED 12/3/2022 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.`** - **`Exhibit P4 A TRUE COPY OF THE JUDGMENT DATED 14/07/2022 IN WPC 21663/2022 OF THIS HON'BLE COURT.`** - **`Exhibit P5 A TRUE COPY OF THE ORDER NO.PCB/E2/5925/2021 DATED 05/07/2022 ISSUED BY THE 2ND RESPONDENT.`** - **`Exhibit P6 A TRUE COPY OF THE ORDER NO.PCB/E1/382/2019 DATED 14/10/2020 ISSUED BY THE 2ND RESPONDENT PROMOTION THE PETITIONER TEMPORARILY UNDER RULE 31 (A) (I) OF KS&S.`** - **`Exhibit P7 A TRUE COPY OF THE ORDER NO.PCB/E1/382/2019 DATED 29/12/2020 ISSUED BY THE 2ND RESPONDENT REVERTING THE PETITIONER TO THE POST OF ASSISTANT ENVIRONMENT ENGINEER.`** - **`Exhibit P8 A TRUE COPY OF THE ORDER NO. PCB/E1/382/2019 DATED 03/05/2021 ISSUED BY THE 2ND RESPONDENT PROMOTING THE PETITIONER TEMPORARILY TO THE POST OF ENVIRONMENTAL ENGINEER UNDER RULE 31 (A)(I) OF KS & SSR.`** - **`Exhibit P9 A TRUE COPY OF THE ORDER NO.PCB/E1/382/2019 15/01/2022 ISSUED BY THE 2ND RESPONDENT REVERTING SHRI.VARUN NARAYANAN TO THE POST OF ASSISTANT ENVIRONMENTAL ENGINEER.`** ``` WP(C) No.28143 of 2022 ``` ``` 21 ``` ``` Exhibit P10A TRUE COPY OF THE MINUTES OF THE MEETING OF THE DEPARTMENTAL PROMOTION COMMITTEE OF THE KERALA STATE POLLUTION CONTROL BOARD HELD ON 28/05/2022 AND 03/06/2022. Exhibit P11A TRUE COPY OF THE NOTIFICATION NO.PCB/E2/858/2021 DATED 16/06/2022 ISSUED BY THE FIRST RESPONDENT. Exhibit P12ATRUECOPYOFTHEORDER NO.PCB/E1/382/2019 DATED 24/06/2022 ISSUED BY THE 2ND RESPONDENT REVERTING THE PETITIONER TO THE POST OF ASSISTANT ENVIRONMENTAL ENGINEER. RESPONDENT EXHIBITS Exhibit R1 ATRUE COPY OF THE PROCEEDINGS NO.PCB E1/30465/05-11 DATED 28.10.2008 ISSUED BY THE BOARD. Exhibit R1 BTRUE COPY OF THE ORDER NO. PCB/E1/6427/13 DATED 5.6.2013 ISSUED BY THE BOARD. Exhibit R1CTRUECOPYOFTHELETTER NO.VC11/2021/KTMDATED15.12.2021 ISSUED BY THE DEPUTY SUPERINTENDENT OF POLICE, V &ACB, KOTTAYAM UNIT. Exhibit R1 DTRUE COPY OF THE LETTER NO.A1/10/2022 ENVT DATED 20.4.2022 ISSUED BY THE GOVT.TO THE CHAIRMAN OF THE BOARD. Exhibit R1 ETRUE COPY OF THE LETTER NO A1/10/2022- ENVT DATED 1.6.2022 ISSUED BY THE GOVT. TO THE CHAIRMAN OF THE BOARD. ```