OP(KAT) No. 511 of 2017, Sreeshan P.S. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN THURSDAY, THE 21[ST] DAY OF SEPTEMBER 2023 / 30TH BHADRA, 1945 OP(KAT) NO. 511 OF 2017** **AGAINST THE ORDER DATED 27.09.2017 IN OA 2211/2015 OF KERALA** **ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/APPLICANT:** SREESHAN.P.S, AGED 43 YEARS, S/O.P.A.SHANMATHURAN, NOW WORKING AS MOTOR VEHICLE INSPECTOR, REGIONAL TRANSPORT OFFICE, IDUKKI DISTRICT-685 603, RESIDING AT PUTHANPURAKKAL, KUMBALANGHI P.O.,COCHIN, ERNAKULAM, PIN-682 007. BY ADVS. SMT.GIRIJA K GOPAL SMT.K.N.VIGY ## **RESPONDENTS/RESPONDENTS:** 1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, TRANSPORT DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM-695 001. 2 THE TRANSPORT COMMISSIONER AND CONVENER, DEPARTMENTAL PROMOTION COMMITTEE (LOWER),MOTOR VEHICLE DEPARTMENT, TRANS TOWERS, VAZHUTHACAUD, TRIVANDRUM-695 014. 3 THE TRANSPORT COMMISSIONER MOTOR VEHICLE DEPARTMENT, TRANS TOWERS, VAZHUTHACAUD, TRIVANDRUM-695 014. 4 NOBI P.M.MOTOR VEHICLE, REGIONAL TRANSPORT OFFICE, CIVIL STATION, AYYANTHOLE P.O.,THRISSUR-680 003. ADV. A.T. VARGHESE SR. GP THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 21.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT) NO. 511 OF 2017 **==> picture [31 x 8] intentionally omitted <==** ## J U D G M E N T ## A. Muhamed Mustaque, J. This original petition was filed by the petitioner, who is the applicant before the Kerala Administrative Tribunal. 2. The short issue in this matter in regard to seniority of the person, who joined the service after availing leave without allowance before Departmental Promotion Committee (for short “DPC”) is convened. The facts can be summarised as follows: 3. The petitioner, who was Assistant Motor Vehicle Inspector entered into service on 12.01.2006. His probation was declared on 23.01.2008. Thereafter, he availed leave without allowance and remained absent w.e.f. 01.06.2008 to 01.03.2013. 4. The DPC was convened on 12.03.2013 for the promotion to the post of Motor Vehicle Inspector. The list was published on 20.03.2013. If the petitioner had not availed leave without allowance, admittedly, the Sreeshan P.S, who is the sole petitioner in the original petition and before the tribunal, will be senior to one OP(KAT) NO. 511 OF 2017 **==> picture [31 x 9] intentionally omitted <==** Nobi P.M, who is the sole party respondent here. 5. Under Rule 28 (b) (I) (iv) of the KS & SSR, the method of preparation of select list by the committee is prescribed. The criteria for the assessment is verification with reference to the confidential report of the officers, at least preceding three years. 6. In the absence of the confidential report as above, in Sub rule 4 (a) (i) of the Rules it is stipulated that the confidential report relating to one year immediately after re-joining the duty after leave shall be considered. 7. In Rule 28 (b) (i) (7) (iv) of the rules, which reads thus: “Where while preparing a select list an officer has been superseded on account of his confidential report for the one year referred to in sub- clause (4a) not being available due to non-completion of the said period of one year, the select list shall be treated as provisional to the extent it relates to the officers junior to the officer so superseded, and as soon as the confidential reports in respect of such officer relating to the said one year become available, the departmental promotion committee shall review the list and make it absolute, after considering the claims of the officer with reference to the confidential reports for the said one year.” 8. In that case, it is obvious from the Sub Rule 28 (b) (I) (7) (iv) of the Rules that the DPC had to advert whether an officer is being superseded on account OP(KAT) NO. 511 OF 2017 **==> picture [31 x 8] intentionally omitted <==** of want of confidential report for one year reference in Clause 4(a). This vital aspect will have to be adverted by the DPC while preparing the select list. It is further mandate that if any officer is being superseded for want of one year confidential report, the select list will be provisional to the extent of the junior officer so superseded and DPC shall review the list and make it absolute after adverting to the claims of the officer with reference to the confidential report of one year. 9. Reading the provisions as above, if the petitioner had re-joined the duty before the DPC is convened, any select list prepared by the DPC can be treated only as provisional, if any junior is superseding the petitioner. 10. The petitioner, submitted Annexure A5 representation dated 26.03.2013 before the 2[nd] respondentthe Transport Commissioner and Convener. The petitioner also moved the tribunal on account of the non consideration of the representation. The DPC had considered the representation pursuant to the order of the tribunal and DPC is of the view that the request can only be considered after completion of one year from rejoining duty. Then, the petitioner moved the Government by Annexure A9 representation against the decision of the OP(KAT) NO. 511 OF 2017 ..5.. DPC. Again the petitioner had approached the tribunal, the tribunal then directed the Government to consider the petitioner's representation. Thereafter, the Government passed Annexure A11 order on 22.12.2014, holding that the decision of the DPC does not call for interference. This order was under challenge before the tribunal. It is to be noted that, by the time, subsequent select list was prepared and the petitioner was included in the subsequent select list w.e.f. 01.03.2014. Thus, the petitioner approached the tribunal. 11. The tribunal after adverting to Rule 28 (b) (I) (iv) (b) of the Rules came into a conclusion that the DPC was right in promoting the junior by superseding the petitioner as the petitioner's confidential report was not available and no fault can be attributed on DPC and the petitioner is only entitled for consideration for promotion after completion of one year from re-joining duty. 12. We heard the learned counsel for the petitioner and the learned Government Pleader. 13. Rule 28 (b) (i) (7) (iv) of the Rules unequivocally makes it clear that when the DPC is convened and for want of confidential report and junior OP(KAT) NO. 511 OF 2017 **==> picture [31 x 9] intentionally omitted <==** supersedes the senior, the select list will only be provisional in respect of junior, subject to review by the DPC regarding the confidential report of the senior related to, for a period of one year after re-joining duty. The law is clear in this regard. When an officer re-joined duty after leave, and his confidential report is not available for three years, then the service after re-joining duty have to be adverted with reference to the confidential report immediately following one year after re-joining duty for the purpose of promotion and the select list prepared after re-joining duty after leave will be provisional as far as the junior is concerned. 14. The learned Government Pleader vehemently defended the order of the Government and submits that in Appendix 12 (A) of Part I KSR, the petitioner will lose all seniority benefits in the grade with reference to his junior during the currency of the period of leave and therefore, the decision of the DPC does not warrant any interference. 15. The learned Government Pleader placed reliance on judgment of this Court Yesodhari Devi M.G. v. State of Kerala and others [2007 (3) KHC 449] and in J. Sreekala v. The State of Kerala and Another [2007 (1) KHC 605] and submitted that the petitioner has to be treated as a new OP(KAT) NO. 511 OF 2017 **==> picture [31 x 8] intentionally omitted <==** entrants in same cadre and he will forfeit all the service benefits. He will lose all right to claim seniority in the cadre. He further argued that there were subsequent lists and the petitioner had not made those employees in the party array and that there will be a chain of reaction if the petitioner's claim for seniority is upheld in respect of other employees who were promoted subsequently. 16. This is a case where the petitioner is not claiming for any seniority during the currency of leave. When he re-joined the service, he stands along with the others in the cadre and if any promotion is being effected, necessarily he will have to be considered along with others. His handicap for consideration of promotion will not be lost but for want of confidential report, he will be entitled for promotion only after review by the DPC in regard to confidential report and he has to wait at least for one year. Once the handicap is removed, he can march over the juniors who were promoted provisionally. If those juniors in that list is part of this proceedings, the challenge will not fail for want of others who were promoted in the subsequent list. 17. The learned counsel for the petitioner particularly refers to Clause 4 and 5 of the Appendix 12 OP(KAT) NO. 511 OF 2017 ..8.. (A) of Part I KSR. We are afraid to accept the argument. The Appendix 12 (A) only speaks about forfeiture of the seniority during the currency of the period of leave. Once an officer joined duty after leave, he stands in a different pedestal. The only disability for the DPC is that, if DPC will not be in a position to have the confidential report of such person. That is exactly the reason Rule 28 (b) (i) (7) (iv) of the Rules, was incorporated to face such situation, to treat promotion to the junior as provisional subject to further review by the DPC in regard to promotion with reference to confidential report for one year immediately after rejoining duty. If that be the case, the DPC list on 20.03.2013 can be treated only as provisional as far as Mr.Nobi P.M is concerned. We ought to have remitted the matter back for review, but we note that subsequently the petitioner's confidential report was verified and the petitioner has been included in the select list along with others. In that view of the matter, we do not find any reason for remitting the matter back for review by the DPC inasmuch as that the petitioner found suitable for promotion and nobody has a case that the petitioner is not included in subsequent select list for promotion. 18. In that scenario, we are of the view that the petitioner is entitled to succeed. The petitioner shall OP(KAT) NO. 511 OF 2017 **==> picture [31 x 9] intentionally omitted <==** be placed just above Mr.Nobi P.M. in the select list prepared by the DPC dated 16.03.2013. This original petition is allowed and disposed of as above. Sd/A.MUHAMED MUSTAQUE JUDGE Sd/SHOBA ANNAMMA EAPEN JUDGE PR OP(KAT) NO. 511 OF 2017 ..10.. ## **APPENDIX OF OP(KAT) 511/2017** PETITIONER EXHIBITS - EXHIBIT P1 TRUE COPY OF OA 2211/15. - ANNEXURE A1 THE PHOTOSTAT COPY OF ORDER - NO.A3/4002/TC/2013 DATED 28.2.2013. - ANNEXURE A2 THE PHOTOSTAT COPY OF THE RELEVANT EXTRACTS OF ORDER NO.A/22522/TC/2011 DATED 25.1.2012. - ANN3XURE A3 THE PHOTOSTAT COPY OF NOTIFICATION NO.A1/25875/TC/2013 DATED 16.3.2013 PUBLISHED IN THE KERALA GAZETTE. - ANNEXURE A4 TRUE COPY OF RELEVANT EXTRACTS OF THE MINUTES OF ADHOC DPC FOR THE YEAR 2013 HELD ON 12.3.2013 FOR PROMOTION TO THE POST OF MVI IN MV DEPARTMENT. - ANNEXURE A5 TRUE COPY OF THE REPRESENTATION DATED 26.3.2013 BEFORE THE 2ND RESPONDENT. - ANNEXURE A6 TRUE COPY OF ORDER NO.A4/697/2013/TC DATED 30.3.2013. - ANNEXURE A7 THE PHOTOSTAT COPY OF THE ORDER OF THE TRIBUNAL IN OA NO.1048/2013 DATED 11.6.2013. - ANNEXURE A8 THE PHOTOSTAT COPY OF RELEVANT EXTRACTS OF THE MINUTES OF THE ADHOC DPC(V) (L) HELD ON 10.9.2013. - ANNEXURE A9 THE PHOTOSTAT COPY OF THE - REPRESENTATION SUBMITTED BY THE APPLICANT BEFORE THE 1ST RESPONDENT DATED 12.5.2014. ANNEXURE A10 THE PHOTOSTAT COPY OF ORDER OF THIS HON'BLE TRIBUNAL IN OA NO.2866/2013 OP(KAT) NO. 511 OF 2017 ..11.. DATED 18.6.2014. ANNEXURE A11 THE PHOTOSTAT COPY OF G.O. (RT) NO.595/2014/TRANS DATED 22.12.2014. ANNEXURE A12 THE PHOTOSTAT COPY OF THE ENTITLEMENT REGISTER OF MR.P.K.STEPHEN OBTAINED UNDER RTI ACT. EXHIBIT P2 A TRUE COPY OF THE REPLY STATEMENT FILED BY THE 1ST RESPONDENT. EXHIBIT P3 A TRUE COPY OF THE ORDER IN O.A.NO.2211/2015.