Neena Majeed v. Kerala Water Authority & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 29TH DAY OF AUGUST 2017/7TH BHADRA, 1939** ## **WP(C).No. 10184 of 2015 (W)** **----------------------------** ## **PETITIONER :** **----------------------** **NEENA MAJEED, ASSISTANT EXECUTIVE ENGINEER, OFFICE OF THE CHIEF ENGINEER (SR), KERALA WATER AUTHORITY, THIRUVANANTHAPURAM.** **BY ADVS.SRI.SHAJI THOMAS SRI.H.KIRAN** **RESPONDENT(S):** **---------------------------** **1. KERALA WATER AUTHORITY, JALA BHAVAN, THIRUVANANTHAPURAM - 695 033, REP. BY ITS MANAGING DIRECTOR.** **2. THE DEPARTMENTAL PROMOTION COMMITTEE (TECHNICAL HIGHER), KERALA WATER AUTHORITY, REP. BY ITS CONVENER AND MANAGING DIRECTOR, KERALA WATER AUTHORITY, JALA BHAVAN, THIRUVANANTHAPURAM- 695 033.** **3. THE SECRETARY, WATER RESOURCES, (WATER SUPPLY-B) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM -695 001.** **4. SMT. SANDHYA P., EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, P.H. DIVISION,** **ALAPPUZHA - 688 001.** **5. SMT. USHA RADHAKRISHNAN, EXECUTIVE ENGINEER, KERALA WATER AUTHORITY,** - **P.H. CIRCLE, THRISSUR - 680 001.** **6. SRI.G.K. SUJATHKUMAR, EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, PROJECT DIVISION, PIRAVOM - 686 664.** **2/-** **-2-** ## **WP(C).No. 10184 of 2015 (W)** **7. SRI. V.K. RETNAKUMAR, EXEECUTIVE ENGINEER, KERALA WATER AUTHORITY,** **SOUTHERN REGION, THIRUVANANTHAPURAM - 695 033.** **8. SRI.E. MOHAMMED, EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, WORKS SOUTH,** **HEAD OFFICE, THIRUVANANTHAPURAM - 695 033.** **9. SMT. ANITHA PUTHENPURAY, EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, J.I.C.A PROJECT, THIRUVANANTHAPURAM - 695 033.** **10. SRI. ABRAHAM N.T., EXECUTIVE ENGINEER, KERALA WATER AUTHORITY,** **QUALITY CONTROL DIVISION, THIRUVANANTHAPURAM - 695 033.** **11. SRI. KISHORE BABU S., EXECUTIVE ENGINEER, KERALA WATER AUTHORITY,** **PROJECT DIVISION, ALAPPUZHA - 688 001** **12. SRI.K.V.M ABDUL LATHEEF, EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, NOW WORKING AS DEPUTY DIRECTOR, ENVIRONMENTAL REGIONAL PROJECT MANAGEMENT UNIT, K.R.W.S.A, JALA NIDHI, PERINTHALMANNA, MALAPPURAM - 679 322.** **R1 TO R3 BY SRI.P.BENJAMIN PAUL, SC, SRI.JOSEPH JOHN, SC,** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 10184 of 2015 (W)** ## **------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -------------------------------------** ## **EXHIBIT-P1- TRUE COPY OF G.O(RT).NO.662/2010/WRD DATED 04/06/2010** **EXHIBIT-P2- TRUE COPY OF THE ORDER NO. KWA/JB/E1-12596/03 ISSUED BY THE IST RESPONDENT DATED 05/08/2010.** **EXHIBIT-P3- TRUE COPY OF THE MINUTES OF THE DEPARTMENTAL PROMOTION COMMITTEE WHICH MET ON 23/08/2014.** **EXHIBIT-P4- TRUE COPY OF THE MINUTES OF THE DEPARTMENTAL PROMOTION COMMITTEE MEETING HELD ON 17/09/2014.** **EXHIBIT-P5- TRUE COPY OF THE REPRESENTATION DATED 30/09/2014.** **EXHIBIT-P6- TRUE COPY OF THE COMMUNICATION NO. 18028/B1/14/WRD DATED 09/10/2014 ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT-P7- TRUE COPY OF THE RELEVANT PORTION OF THE STATEMENT CONTAIN IN THE SENIORITY POSITION AS ON 10/10/2014.** **EXHIBIT-P8- TRUE COPY OF THE REPRESENTATION DATED 17/10/2014.** **EXHIBIT-P9- TRUE COPY OF THE JUDGMENT IN W.P(C) 27442/2014 DATED 21/10/2014.** **EXHIBIT-P10- TRUE COPY OF THE HEARING NOTES DATED 01/12/2014.** **EXHIBIT-P11- TRUE COPY OF THE ORDER NO. KWA/JB/E2A/201313/2014 DATED 07/02/2015.** **RESPONDENT(S)' EXHIBITS:** **NIL** **------------------------------------------** **/TRUE COPY/** **P.A.TO JUDGE** **sts** ## _**P.V.ASHA, J.**_ -------------------------- W.P(C) No.10184 of 2015-W ------------------------------------------- _Dated this the 29[th] day of August, 2017_ ## _**JUDGMENT**_ The petitioner, who is an Assistant Executive Engineer is aggrieved by the denial of promotion as Executive Engineer in preference to her juniors. 2. The petitioner was appointed as Assistant Engineer on 28.12.1994. She was promoted as Assistant Executive Engineer w.e.f 5.1.2002. Her probation in the cadre of Assistant Executive Engineer was declared w.e.f 8.1.2003. She availed leave without allowance for the period from 31.8.2005 to 17.12.2013. She rejoined duty on 18.12.2013. The next promotion is to the post of Executive Engineer. 3. The Departmental Promotion Committee (`D.P.C' for short) for promotion to the post of Executive Engineers was convened on 23.8.2014. But she was superseded on the ground that confidential reports for a period of 3 years were not available and she had not completed one year duty after availing leave without allowance. As per Ext.P3 minutes, the D.P.C had drawn a select list of Assistant Executive Engineers who were found 2 W.P(C) No.10184 of 2015-W suitable for promotion as Executive Engineer for the year 2014. 9 Assistant Executive Engineers who were ranked 3, 5, 6, 8, 9, 11, 13, 16 and 17 in the seniority list were included in the select list. The petitioner who was rank No.4 was superseded on the ground that confidential report was not completed, and that she had not completed one year duty after availing leave without allowance. An adhoc DPC was convened on 17.9.2014 in order to review the cases of the officers who were overlooked. The petitioner was again superseded on the same ground. The select list was modified adding one more officer i.e with 10 officers. The petitioner thereupon submitted Ext.P5 representation against her supersession on 30.09.2014. Thereafter she submitted a statutory representation Ext.P8 on 17.10.2014 before the 2[nd] respondent under Rule 28 (b)(i)(8)(a) of KS&SSR. She thereafter approached this Court in W.P.(C) No.27442/2014 and this Court as per Ext.P9 judgment dated 21.10.2014 directed the 2[nd] respondent to consider the representations within a period of one month. Thereafter, as per Ext.P11 order dated 7.2.2015 the 2[nd] respondent rejected her representation saying that the petitioner had not completed one year at the time when D.P.C met after she rejoined duty. It was stated that when the confidential reports for the preceding 3 years were not available, it was necessary to submit the 3 W.P(C) No.10184 of 2015-W confidential reports for at least one year, as provided in Rule 28(b)(i)(4a) of KS&SSR. Therefore, it was stated that the petitioner's right can be considered after the confidential reports for one year is placed before the D.P.C. The petitioner filed this writ petition challenging the non inclusion of her name in the select list and the order Ext.P11. 4. The Kerala Water Authority has filed counter affidavit reiterating their stand in Ext.P11 order. According to the respondents, confidential reports for a period of at least one year after re-joining duty was essential for consideration by D.P.C; when the petitioner had not completed one year service after she rejoined duty on 17.12.2013, she was not eligible for consideration by the D.P.C. It is further stated that the petitioner was considered and promoted in the year 2015 when she became eligible. 5. The petitioner relies on the judgments of this Court in **Vishnu Namboothiri v. State of Kerala** [2000 (3) KLT 627 and **Shobanakumar v. State of Kerala** [2004 2 KLT 755] in support of her claim that completion of one year is not necessary after rejoining duty for the purpose of considering her for promotion. 6. Heard the learned counsel appearing for the petitioner as well 4 W.P(C) No.10184 of 2015-W ## as the learned Standing Counsel. ## 7. Rule 28(b)(i)(4a) provides as follows: “28(b)(i) Promotion and appointment by transfer according to merit and ability:-- xxxx xxxxx xxxxx xxxxx xxxx xxxx xxxx 4(a) Where confidential reports for the three years mentioned in subclause (4) are not available in respect of an officer who was under suspension but has been reinstated or who was or is on long leave the suitability of the officer shall be assessed-- (i) in the case of an officer who has been reinstated after suspension fully exonerating him of the charges or in the case of an officer [who was or is on long leave], on the basis of the confidential reports for a period of three years excluding the period during which the officer was under suspension or on long leave or is on long leave, as the case may be preceding the date of the meeting and if the Confidential Reports for the said period are not available on the basis of the Confidential Report for the one year immediately after reinstatement or, as the case may be, immediately after rejoining duty after leave; (ii) in the case of an Officer who has been reinstated after suspension imposing a penalty, on the basis of the confidential reports for the period after reinstatement (which shall not be less than one year).” The suitability of an officer who was on long leave is to be assessed on the basis of confidential reports for a period of 3 years preceding the meeting. In the case of an officer who availed long leave, the confidential reports for the preceding three years shall be before she entered on long leave, if 3 year period is available. It is only in a case when such confidential reports for the 3 year period before she availed long leave are not available, that the confidential reports for one year after rejoining duty is to be insisted. 8. In the present case the respondents do not have a case that the petitioner did not have 3 years confidential reports. Their contention is that W.P(C) No.10184 of 2015-W 5 confidential reports are not available for the 3 years preceding the meeting of DPC. Petitioner's promotion as Assistant Executive Engineer was from 5.1.2002. She had completed her probation on 8.1.2003. She availed leave after completion of about 3 years and 7 months of her promotion as Assistant Executive Engineer. The learned Standing Counsel argued that she had not completed 3 years service after she completed probation and therefore she is not eligible for promotion. But no rule is pointed out which insists three years' service after probation, either for the purpose of consideration by the D.P.C, or for promotion as Executive Engineer. There is no provision of law that the service rendered prior to declaration of probation shall not be considered for the purpose of promotion. 9. In the judgments in **Vishnu Namboodiri** 's case ( _supra_ ) and in **Shobhakumar** 's case ( _supra_ ), this Court has, after interpreting the provisions contained in Rule 28(b)(i)(4a), held that an officer who rejoined after long leave need not wait for a period of one year and that the eligibility for promotion shall be considered on the basis of the confidential reports for a period of 3 years immediately before one availed leave. Those judgments hold the field even now. Therefore, going by the dictum laid down in those decisions, the supercession of the petitioner was unsustainable. The order W.P(C) No.10184 of 2015-W 6 Ext.P11 rejecting the claim of the petitioner is unsustainable, as the respondents have not looked into the confidential reports or even its availability before she entered on leave without allowance. The petitioner was entitled to be promoted in preference to her juniors in Exts.P3, P4 as well as Ext.P6. In the light of her position in the seniority list, the petitioner was liable to be included as Sl.No.2 in the select list above the 4[th] respondent. 10. Even though notice was ordered and sent to respondents 4 to 12, who were granted promotion superseding the petitioner, none of them have entered appearance. In the above circumstances, the supercession of the petitioner in Exts.P3 and P4 and her non-inclusion in the select list Ext.P6 and the order Ext.P11 are quashed. The official respondents are directed to convene an adhoc D.P.C to consider the case of the petitioner based on the confidential reports for a period of 3 years prior to her entering on long leave, i.e, prior to 31.08.2005. Based on such consideration the select list of Assistant Executive Engineers for the year 2014 shall be reviewed and revised including the petitioner as Sl.No.2. Thereafter she shall be granted notional promotion with effect from the date on which the 4[th] respondent was granted 7 W.P(C) No.10184 of 2015-W promotion. The petitioner shall be entitled to all consequential benefits except for pay and allowances. All such benefits shall be disbursed to her within a period of 4 months from the date of receipt of a copy of the judgment. The writ petition is accordingly allowed. Sd/- _**(P.V.ASHA, JUDGE)**_ _rtr/_