SASI M.K. v. Union of India and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **FRIDAY, THE 13TH DAY OF JULY 2018 / 22ND ASHADHA, 1940** **WP(C).No. 3624 of 2015** ## **PETITIONER :** **SASI M.K., DEVELOPMENT OFFICER, RUBBER BOARD, REGIONAL OFFICE, THRISSUR 680 631.** **BY ADVS.SRI.T.V.AJAYAKUMAR KUM.P.H.RIMJU** ## **RESPONDENTS :** **1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF COMMERCE AND INDUSTRY, NEW DELHI - 110 001.** **2. THE CHAIRMAN, RUBBER BOARD, HEAD OFFICE, P.B NO.1122, SUB JAIL ROAD, KOTTAYAM - 686 002. 3. RUBBER BOARD, HEAD OFFICE, P.B NO.1122, SUB JAIL ROAD, KOTTAYAM - 686 002, REPRESENTED BY SECRETARY. 4. DEPUTY SECRETARY (P&A), RUBBER BOARD, HEAD OFFICE, P.B NO.1122, SUB JAIL ROAD, KOTTAYAM - 686 002. 5. THE DEPARTMENTAL PROMOTION COMMITTEE (FOR DEPUTY RUBBER PRODUCTION COMMISSIONER), RUBBER BOARD, KOTTAYAM, REPRESENTED BY ITS CONVENOR AND CHAIRMAN, RUBBER BOARD, KOTTAYAM - 686 002.** **WP(C).No. 3624 of 2015** **6. P.R.VIJAYAKUMARI,** **DY. RUBBER PRODUCTION COMMISSIONER, RUBBER TRAINING INSTITUTE, RUBBER BOARD, KOTTAYAM - 686 002.** **7. K.K.BHASKARAN,** **DY. RUBBER PRODUCTION COMMISSIONER, RUBBER BOARD REGIONAL OFFICE, SREEKANDAPURAM, KANNUR - 670 631.** **8.** - **P.P.SHAJI, MANAGING DIRECTOR, BHARATHAPUZHA RUBBERS (P) LTD., RUBBER BOARD REGIONAL OFFICE, FIRST FLOOR, NINAN'S COMPLEX, METTUPALAYAM STREET, PALAKKAD - 678 001.** **9. S.SELVARAJ,** - **DY. RUBBER PRODUCTION COMMISSIONER, RUBBER BOARD REGIONAL OFFICE, JAS TOWERS, KODATHIPADI, MANNARKKAD - 678 582.** **10.** ## **P.S.SALOMI,** **DY. RUBBER PRODUCTION COMMISSIONER, RUBBER BOARD REGIONAL OFFICE, 8/330, T.B ROAD, PALA - 686 575.** **11.** ## **K.R. SURESHKUMAR,** **DY. RUBBER PRODUCTION COMMISSIONER, RUBBER BOARD REGIONAL OFFICE, KANHJANGADU - 671 315.** **12.** **C.THOMAS, MANAGING DIRECTOR, KAVANAR LATEX LTD, 1C-IX/13, OPP. KSRTC, PALA 686 575.** **13. P.ACHUTHANKUTTY, DY. RUBBER PRODUCTION COMMISSIONER, RUBBER BOARD REGIONAL OFFICE, II FLOOR, MUKUDAVATHI BLDG, BALMATTA, BANGALORE - 575 001.** **WP(C).No. 3624 of 2015** |**14.**|**K. KRISHNAKUMARAN,**| |---|---| ||**DY. RUBBER PRODUCTION COMMISSIONER,**| ||**RUBBER BOARD REGIONAL OFFICE,**| ||**HOTEL SWAGATH BUILDING,**| ||**NEAR ARUNA THEATRE, MAIN ROAD,**| ||**PUTTUR P.O, DAKSHINA KANNADA**| ||**DT. 574 202, KARNATAKA.**| |**15.**|**P.V.CHARAMMA,**| ||**DY. RUBBER PRODUCTION COMMISSIONER,**| ||**RUBBER PRODUCTION DEPARTMENT,**| ||**RUBBER BOARD H.O., KOTTAYAM, - 686 002.**| |**16.**|**K.K.MAHADEVAN,**| ||**MANAGING DIRECTOR,**| ||**ADOOR RUBBERS (P) LTD,**| ||**PARVATHI MANDIRAM, K.P ROAD,**| ||**ADOOR P.O., PATHANAMTHITTA - 691 523.**| |**17.**|**S. SURYAKUMAR,**| ||**DY. RUBBER PRODUCTION COMMISSIONER,**| ||**RUBBER BOARD REGIONAL OFFICE, 3/33, C,**| ||**II FLOOR, PPK BUILDING, MAIN ROAD,**| ||**MARTHANDOM P.O.,**| ||**KANYAKUMARI DT., TAMILNADU 629 165.**| |**18.**|**K.A.GIRIJAMONY,**| ||**DY. RUBBER PRODUCTION COMMISSIONER,**| ||**RUBBER BOARD ZONAL OFFICE,**| ||**CENTRAL BLOCK II, FIRST FLOOR,**| ||**HOUSEFED COMPLEX, BELTOLA BASISTHA ROAD,**| ||**DISPUR, GUWAHATI (ASSAM) 781 006.**| |**19.**|**M.K.RAVI,**| ||**DY. RUBBER PRODUCTION COMMISSIONER,**| ||**RUBBER BOARD REGIONAL OFFICE,**| ||**KANJIRAPPALLY - 686 507.**| |**20.**|**R.SATHEESHCHANDRAN,**| ||**DY. RUBBER PRODUCTION COMMISSIONER,**| ||**RUBBER BOARD REGIONAL OFFICE,**| ||**PULICKAL TOWERS, COURT ROAD,**| ||**PB NO.37, MANJERI - 676 121.**| **WP(C).No. 3624 of 2015** |**21.**|**PRANABCHANDRA GOSWAMY,**| |---|---| ||**DY. RUBBER PRODUCTION COMMISSIONER,**| ||**RUBBER BOARD REGIONAL OFFICE,**| ||**P.S ROAD, AMOLAPATTY, NATUN BAZAR,**| ||**ITACHALI P.O., NAGAON,**| ||**ASSAM - 782 003.**| |**22.**|**G. SREEDHARAN,**| ||**DY. RUBBER PRODUCTION COMMISSIONER,**| ||**RUBBER BOARD REGIONAL OFFICE,**| ||**ATUL MANORAMA COMPLEX,**| ||**NEAR TELEPHONE EXCHANGE,**| ||**AGIA, GOALPARA, 783 120, ASSAM.**| |**23.**|**C. MOHANAN,**| ||**DY. RUBBER PRODUCTION COMMISSIONER,**| ||**RUBBER BOARD REGIONAL OFFICE,**| ||**SAMA CENTRE, OPP. MALABAR HOSPITAL,**| ||**JUBILEE ROAD, THALASSERY - 670 101.**| |**24.**|**P.K.JOSEPH,**| ||**DY. RUBBER PRODUCTION COMMISSIONER,**| ||**RUBBER BOARD REGIONAL OFFICE,**| ||**VIDYASAGAR ROAD, JAGANNATH CHOWMOHANI P.O,**| ||**RADHA KISHOREPUR,**| ||**UDAIPUR, SOUTH TRIPURA-799 120.**| |**25.**|**K.N.HARIDAS,**| ||**DY. RUBBER PRODUCTION COMMISSIONER,**| ||**RUBBER BOARD REGIONAL OFFICE,**| ||**GIRI BHAVAN, 3RD FLOOR, N.S AVENUE**| ||**RANGIRKHARI P.O, SILCHAR 788 005,**| ||**CACHAR DISTRICT, ASSAM.**| |**26.**|**V.RAJENDRAN,**| ||**DY. RUBBER PRODUCTION COMMISSIONER,**| ||**RUBBER BOARD REGIONAL OFFICE,**| ||**II FLOOR, CLASSIC TOWERS,**| ||**OPPOSITE JAWAHAR THEATRE,**| ||**MUVATTUPUZHA ROAD,**| ||**KOTHAMANGALAM - 686 691.**| |**27.**|**M.M.RAMLA,**| ||**DY. RUBBER PRODUCTION COMMISSIONER,**| ||**RP (EXT) RUBBER PRODUCTION DEPARTMENT,**| ||**RUBBER BOARD HEAD OFFICE,**| ||**KOTTAYAM - 686 002.**| **WP(C).No. 3624 of 2015** **28. KURIAN JOSE, DY. RUBBER PRODUCTION COMMISSIONER, MERIDIAN MANSION(NEAR MANORAMA), PB NO.139, WAYANAD ROAD, KOZHIKODE 673 001.** **29. T.SREEKUMAR, DY. RUBBER PRODUCTION COMMISSIONER, RUBBER BOARD REGIONAL OFFICE, DAKOPGRE, NEW TURA, 794 101, WEST GARO HILLS, MEGHALAYA.** **30. E.G.NATARAJAN, MANAGING DIRECTOR, MANIMALAYAR RUBBERS (P) LTD., MANIMALAYAR BUILDINGS, VADAVATHOOR P.O., KOTTAYAM-686010.** **31. DR.S.USHARANI, DY. RUBBER PRODUCTION COMMISSIONER, RUBBER BOARD REGIONAL OFFICE, SREEBHAVAN, XII/438, NEAR SURYA CINE HOUSE, NEDUMANGADU - 695 541.** ## **32. K.N.SUMEDHAN,** **DY. RUBBER PRODUCTION COMMISSIONER, RUBBER BOARD REGIONAL OFFICE, VALLATHOLE RUBBERS BUILDING, ANAPPARA, RAMAVARMAPURAM P.O., THRISSUR - 680 631.** **33. K.AJITHKUMAR,** - **DY. RUBBER PRODUCTION COMMISSIONER, RUBBER BOARD REGIONAL OFFICE, II FLOOR, S.G BUILDINGS, ADOOR 691 523.** **34. A.S.RAKSHIT, DY. RUBBER PRODUCTION COMMISSIONER, RUBBER BOARD REGIONAL OFFICE, HOUSEFED COMPLEX, CENTRAL BLOCK NO1-3RD FLOOR, BELTOLA BASISTHA ROAD, DISPUR, GUWAHATI - 781 006.** **35. A.N.JAYAPRAKASH, DY. RUBBER PRODUCTION COMMISSIONER, RUBBER BOARD REGIONAL OFFICE, MANIMALAYAR BUILDINGS, VADAVATHOOR, KOTTAYAM - 686 010.** **WP(C).No. 3624 of 2015** **36. K.C.SUDHEER ROY, DY. RUBBER PRODUCTION COMMISSIONER, RP DEPARTMENT (CO-ORDINATION), RUBBER BOARD HEAD OFFICE, KOTTAYAM 686 002.** **R1 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R2-R5 BY ADVS. SRI.V.ABRAHAM MARKOS** **SRI.ABRAHAM JOSEPH MARKOS SRI.ISAAC THOMAS SRI.BINU MATHEW SRI.TOM THOMAS (KAKKUZHIYIL) SRI.NOBY THOMAS CYRIAC** **R7 BY ADV. SRI.SEBASTIAN JOSEPH (KURISUMMOOTTIL)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.6.2018, THE COURT ON 13.7.2018 DELIVERED THE FOLLOWING:** **EL** **WP(C).No. 3624 of 2015 (C)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1. COPY OF THE RELEVANT PORTION OF THE OFFICE MEMORANDUM DATED 15.5.2001 ISSUED BY THE DIRECTOR (L&ED) OF THE RUBBER BOARD.** **EXHIBIT P1(A). COPY OF THE OM DATED 22.5.2001 ISSUED BY THE 4TH RESPONDENT.** **EXHIBIT P2. COPY OF THE GRADATION LIST OF DEVELOPMENT OFFICERS AS ON 31.12.2006 PUBLISHED BY THE 4TH RESPONDENT. EXHIBIT P3. COPY OF THE OFFICE MEMORANDUM F.NO.35034/97.ESTT(D) DATED 8.2.2002 ISSUED BY THE GOVERNMENT OF INDIA. EXHIBIT P3(A). COPY OF THE OM NO.35035/97.ESTT(D) DATED 16.2.05 ISSUED BY THE GOVERNMENT OF INDIA, DEPARTMENT OF PERSONNEL AND TRAINING EXTRACTED FROM THE SWAMY'S COMPILATION ON SENIORITY AND PROMOTION IN THE CENTRAL GOVERNMENT SERVICE. EXHIBIT P3(B). COPY OF THE RELEVANT EXTRACT OF OMS DATED 6.1.2006 AND 19.5.2009 ISSUED BY THE GOVERNMENT OF INDIA PUBLISHED IN SWAMY'S HAND BOOK 2013. EXHIBIT P4. COPY OF THE RUBBER BOARD (SERVICE) RULES 1961 ALONG WITH RELEVANT EXTRACT OF THE SCHEDULE THERETO. EXHIBIT P5. COPY OF THE MEMORANDUM DATED 5.10.2009 ISSUED BY THE 4TH RESPONDENT. EXIBIT P6. COPY OF THE PROCEEDINGS OF THE SELECTION COMMITTEE OF THE 3RD RESPONDENT DATED 20.10.2009. EXHIBIT P7. COPY OF THE OFFICE CIRCULAR DATED 6.3.2009 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P8. COPY OF THE ANNUAL CONFIDENTIAL REPORT OF THE PETITIONER FOR THE YEAR ENDING MARCH 2009. EXHIBIT P9. COPY OF THE ANNUAL CONFIDENTIAL REPORT OF THE PETITIONER FOR THE YEAR ENDING MARCH 2008. EXHIBIT P10. COPY OF THE RELEVANT EXTRACT OF THE OM DATED 20.07.2010 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P11. COPY OF THE OFFICE MEMORANDUM DATED 4.11.2010 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P12. COPY OF THE MEMORANDUM DATED 29.7.2011 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P13. COPY OF THE PROCEEDINGS DATED 31.8.2011 OF THE SELECTION COMMITTEE.** **WP(C).No. 3624 of 2015 ©** |**EXHIBIT P14.**|**COPY OF THE OFFICE MEMORANDUM DATED 1.3.2012 ISSUED BY**| |---|---| ||**THE 4TH RESPONDENT.**| |**EXHIBIT P15.**|**COPY OF THE OFFICE MEMORANDUM DATED 2.4.2012 ISSUED BY**| ||**THE 4TH RESPONDENT.**| |**EXHIBIT P16.**|**COPY OF THE OFFICE MEMORANDUM DATED 8.5.2012 ISSUED BY**| ||**THE 4TH RESPONDENT.**| |**EXHIBIT P17.**|**COPY OF THE OM DATED 18.5.2012 ISSUED BY THE 4TH**| ||**RESPONDENT.**| |**EXHIBIT P18.**|**COPY OF THE RELEVANT EXTRACT OF THE OM DATED 9.11.2012**| ||**ISSUED BY THE 4TH RESPONDENT.**| |**EXHIBIT P19.**|**COPY OF THE RELEVANT EXTRACT OF THE OM DATED 4.12.2012**| ||**ISSUED BY THE 4TH RESPONDENT.**| |**EXHIBIT P20.**|**COPY OF THE MEMORANDUM DATED 11.12.2012 ISSUED BY THE**| ||**4TH RESPONDENT.**| |**EXHIBIT P21.**|**COPY OF THE NOTIFICATION DATED 26.12.2012 ISSUED BY THE**| ||**3RD RESPONDENT.**| |**EXHIBIT P22.**|**COPY OF THE OFFICE MEMORANDUM DATED 2.1.2013 ISSUED BY**| ||**THE 4TH RESPONDENT.**| |**EXHIBIT P23.**|**COPY OF THE RECRUITMENT RULES FOR THE POST OF DY.R.P.C**| ||**ISSUED BY THE 3RD RESPONDENT.**| |**EXHIBIT P24.**|**COPY OF THE ORDER DATED 12.3.2013 PASSED BY THIS**| ||**HONOURABLE COURT IN WPC.6841/13.**| |**EXHIBIT P25.**|**COPY OF THE LETTER DATED 2.7.10 OF THE 3RD RESPONDENT.**| |**EXHIBIT P26.**|**COPY OF THE RELEVANT EXTRACT OF THE RUBBER BOARD**| ||**RECUITMENT RULES, 2009 ISSUED BY THE NOTIFICATION OF THE**| ||**2ND RESPONDENT.**| |**EXHIBIT P27.**|**COPY OF THE OFFICE MEMO DATED 7.8.2014 ISSUED BY THE 4TH**| ||**RESPONDENT.**| |**EXHIBIT P28.**|**COPY OF THE REPLY DATED 17.5.2013 GIVEN BY THE 4TH**| ||**RESPONDENT.**| |**EXHIBIT P29.**|**COPY OF THE REPLY DATED 8.8.2013 GIVEN BY THE 4TH**| ||**RESPONDENT.**| |**EXHIBIT P30.**|**COPY OF THE REPLY DATED 13.8.2013 GIVEN BY THE 4TH**| ||**RESPONDENT.**| |**EXHIBIT P31.**|**COPY OF THE PROCEEDINGS DATED 16.4.2003 OF THE DPC.**| |**EXHIBIT P32.**|**COPY OF THE ORDER DATED 1.3.2013 OF THIS HONOURABLE**| ||**COURT IN WPC.5771/2013**| **WP(C).No. 3624 of 2015 ©** - **EXHIBIT P33. COPY OF THE JUDGMNET DATED 4.7.2013 OF THIS HONOURABLE COURT IN WA.885/2013.** - **EXHIBIT P34. COPY OF THE JUDGMENT DATED 5.6.2013 OF THIS HONOURABLE COURT IN WA.618/2013.** - **EXHIBIT P35. COPY OF THE ORDER DATED 15.1.2014 OF THIS HONOURABLE COURT IN IA.11461/2013 IN WPC 6841/2013.** - **EXHIBIT P36. COPY OF THE ORDER DATED 18.9.2014 OF THIS HONOURBLE COURT IN COC.743/2014** - **EXHIBIT P37. COPY OF THE REPRESENTATION DATED 11.8.2014 OF THE PETITIONER TO THE 2ND RESPONDENT.** - **EXHIBIT P38. COPY OF THE MEMORANDUM DATED 17.10.2014 ISSUED BY THE 4TH RESPONDENT.** - **EXHIBIT P39. COPY OF THE MEMORANDUM DATED 12.8.2010 OF THE 4TH RESPONDENT ALONG WITH APAR OF THE PETITIONER FOR THE YEAR 2009-2010.** - **EXHIBIT P40. COPY OF THE REPRESENTATION DATED 2.9.2010 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT.** - **EXHIBIT P41. COPY OF THE MEMO DATED 22.10.2010 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.** - **EXHIBIT P42. COPY OF THE REVIEW PETITION DATED 26.3.2011 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P43. COPY OF THE MEMO DATED 26.8.2011 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.** - **EXHIBIT P44. COPY OF THE ANNUAL PERFOMANCE ASSESSMENT REPORT OF THE PETITIONER FOR THE YEAR 2011-2012, ISSUED BY THE 3RD RESPONDNET VIDE MEMORANDUM DATED 31.10.2012.** - **EXHIBIT P45. COPY OF THE ANNUAL PERFOMANCE ASSESSMENT REPORT OF THE PETITIONER FOR THE YEAR 2012-2013 ISSUED BY THE 3RD RESPONDENT VIDE MEMORANDUM DATED 14.2.2014.** - **EXHIBIT P46. COPY OF THE ANNUAL PERFOMANCE ASSESSMENT REPORT OF THE PETITIONER FOR THE YEAR 2013-2014 ISSUED BY THE 3RD RESPONDENT VIDE MEMORANDUM DATED 18.9.2014.** - **EXHIBIT P47. COPY OF THE OM NO.22011/5/2013-ESTT(D) DATED 9.5.2014 ISSUED BY THE GOVERNMENT OF INDIA, DEPARTMENT OF PERSONAL AND TRAINING.** - **EXHIBIT P48. COPY OF THE REPRESENTATION DATED 28.12.2014 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT.** - **EXHIBIT P49. COPY OF THE OM DATED 13.5.2003 ISSUED BY THE 4TH RESPONDENT.** **WP(C).No. 3624 of 2015 ©** **EXHIBIT P50. COPY OF THE ORDER DATED 22.4.2015 ISSUED BY THE 2ND RESPONDENT** **EXHIBIT P51. TRUE COPY OF THE REPLY AFFIDAVIT DATED 30.6.2016 FILED BY THE PETITIONER IN WPC.34596/2014** ## **RESPONDENT(S)' EXHIBITS** **EXHIBIT R2(A) TRUE COPY OF COUNTER AFFIDAVIT DATED 17.3.2016 FILED BY THE 2ND TO 5TH RESPONDENTS IN WPC.34596 OF 2014** **EXHIBIT R2(B) TRUE COPY OF JUDGMENT DATED 21.12.2016 PASSED BY THIS HONOURABLE COURT IN WPC.34596/2014(Y)** **EXHIBIT R2(C) TRUE COPY OF OFFICE MEMORANDUM NO.3/23/2017/EST DATED 9.11.2017 DATED 9.11.2017 REFIXING THE SENIORITY AND REGULARIZING THE PROMOTIONS OF DEPUTY RPCS** **EXHIBIT R7(A) TRUE COPY OF ORDER NO.3/23/1(1)/2016/EST. DATED 1.6.2016** **EXHIBIT R7(B) TRUE COPY OF THE COMMUNICATION DATED 8.3.2017 OF THE 3RD RESPONDENT** **EXHIBIT R7(C) TRUE COPY OF THE LETTER OF UNDERTAKING SUBMITTED TO THE 3RD RESPONDENT** **TRUE COPY** **P.S. TO JUDGE** ## **EL** **19.7.2018** ## _**P.V.ASHA, J.**_ -------------------------W.P(C) No.3624 of 2015-C ------------------------------------------- _Dated this the 13[th] day of July, 2018_ ## _**JUDGMENT**_ The petitioner, who belongs to Scheduled Caste community, has filed this writ petition aggrieved by the denial of promotion to the post of Deputy Rubber Production Commissioner (`Dy.RPC' for short) with effect from the date of promotion of his junior in the year 2010. 2. The petitioner joined the Rubber Board on 5.1.1983 as Junior Field Officer. He got further promotions as Field Officer, Assistant Development Officer and thereafter as Development Officer as per Ext.P1 order dated.15.5.2001. In Ext.P2 gradation list of Development Officers as on 31.12.2006, the petitioner was ranked Sl.No.15. His complaint is that the respondent Board denied him promotion based on the marks in the interview, conducted by a selection committee, by adopting methods of selection contrary to those in the Office Memorandums issued by the Department of Personnel and Training (`DoPT' for short), Government of 2 W.P(C) No.3624 of 2015-C India and without issuing any rules providing for the same in accordance with law. 3. The Rubber Board had issued Ext.P5 O.M directing the 14 Development Officers including the petitioner mentioned therein to appear for an interview to be held on 20.10.2009 for selection to the post of Dy. RPC in the pay band of Rs.15600-39100 with grade pay of Rs.6600. The petitioner and others appeared for the interview and thereafter Ext.P6 panel of selected officers was issued on 20.10.2009 **.** The petitioner was not selected. The petitioner submits that the interview was conducted contrary to the provisions contained in the office memorandum Ext.P3 and subsequent orders issued by the Government and the petitioner was liable to be selected for promotion. Several of the juniors of the petitioner were included in Ext.P6 which contained 10 candidates for promotion. Thereafter, as per Exts.P10 and P11 orders issued on 20.7.2010 and 4.11.2010 several of the juniors of the petitioner were again promoted. The petitioner submits that at the relevant time the Board took the view that the petitioner did not qualify in the interview and therefore he did not take up the matter at the relevant time. The promotions of his juniors continued to be made in the years 2011, 2012, 2013, etc. 3 W.P(C) No.3624 of 2015-C 4. Whileso, some of the Development Officers who were denied promotion approached this Court filing W.P.(C).No.6841/2013 challenging the method adopted by the respondents for making promotion by conducting the interview pointing out that the same was contrary to the office memorandums issued by the Government of India and that there are no statutory rules which prescribe the procedure for making promotion. As per interim orders dated 15.1.2014, this Court directed that the promotions which were already effected without conducting the DPC shall be treated as provisional and that promotions which were made as per Ext.P21 notification dt.26.12.12 shall be reviewed. Thereafter, the 4[th] respondent issued Ext.P27 memorandum on 7.8.2014 granting promotion to respondents 23 to 36, subject to the result of the writ petitions which were pending before this Court. 5. However, after this process of review also the petitioner was not included in the select list. Thereupon, the petitioner submitted Ext.P37 representation on 11.8.2014 before the Chairman complaining that he was wrongly superseded pointing out that all the 15 persons included in the select list therein were his juniors. As per Ext.P38 letter dated 17.10.14, the Dy.Secretary informed the petitioner that the DPC had not recommended 4 W.P(C) No.3624 of 2015-C him for promotion as there were adverse remarks in his APAR for the year 2009-10 which was not expunged by the competent authority. Ext.P39 letter dated 12.08.2010, the APAR for the year 2009-10 containing adverse remarks, in Part III item No.3 ( i) & (ii) was communicated to the petitioner and he was asked to submit representation within a period of 15 days. 6. The petitioner had thereupon submitted Ext.P40 representation on 2.9.2010 stating that there was no basis for the adverse remarks. However, by Ext.P41 letter dt.22.10.2010, the petitioner was informed that the appellate authority had ordered: “adverse remarks entered in the APAR of the 2009-10 will stay”. The petitioner submitted Ext.P42 review petition on 26.3.2011 requesting to review the order of the appellate authority and to expunge the adverse remarks against him. As per Ext.P43 dt.26.8.2011 he was informed that his representation to review the order of the appellate authority cannot be considered since there is no provision to review the said order. The petitioner thereafter received Exts.P44, P45 and P46 letters along with copies of APAR for the years 2011-12, 2012-13 and 2013-14, in which he is graded to be very good. Pointing out this the petitioner submitted Ext.P48 representation before the Chairman on 28.12.14 requesting for retrospective promotion stating that the selection process for the promotion 5 W.P(C) No.3624 of 2015-C made in the year 2009 was only by a selection committee without convening DPC and pointing out that he was graded as `good' against certain items in that APAR for the relevant year 2009-10 and that his final grading was never communicated to him and hence it cannot be treated as adverse remarks so as to make him ineligible for promotion. The writ petition was filed in the above circumstances. This Court by an interim order dated 5.2.2015 directed the 2[nd] respondent to consider Ext.P48 representation of the petitioner. 7. Rubber Board considered his representation Ext.P48 dt.28.12.2014 and rejected the same as per Ext.P50 order dt.22.4.2015, produced along with I.A.No.2325 of 2016 for amendment of the writ petition. It was stated that the petitioner was given another reply on his representation against APAR on 17.10.14 informing that promotion cannot be granted to him in view of the adverse remarks in his APAR for the year 2009-10 which were not expunged by the competent authority. It was also informed that the DPC which was held on 21.7.2014 did not recommend him for promotion on the basis of those adverse remarks in the APAR for the year 2009-10 and therefore he was not included in the list for promotion to the post of Dy RPC. 8. The respondents have filed counter affidavit opposing the 6 W.P(C) No.3624 of 2015-C prayers for promotion with effect from 20.07.2010 challenging Ext.P6 select list. Stating that the contentions raised by the petitioner are similar to those in W.P.(C).No.34596 of 2016, they adopted the counter affidavit filed in that case. Pointing out the delay in approaching this Court after a period of 8 years for promotions from 2006, it was stated that the writ petition was liable to be rejected. Producing the judgment in W.P(C).No.23389/2008, it was pointed out that promotions could be made as per the rules issued by the Rubber Board, even if it is not published in the official gazette. Therefore, it is stated that the promotions made by the respondents following the procedure prescribed in the rules were perfectly in accordance with law and the petitioner, who did not come out successful in the interview, was not eligible for promotion. The 2[nd] respondent Board had created posts in accordance with the requirement, with the approval of the Govt. of India and rules were framed by the Board for selection to the post and those also were forwarded to the Ministry of Commerce on 23.6.2008 and as per Ext.R2(c) letter dt.23.6.2008 the Ministry had directed the Board to review all the recruitment rules and thereafter the Board reviewed all the recruitment rules so as to be in conformity with the prescribed format approved by the Staff Affairs Committee of the Board held on 10.9.09 and it was placed before 7 W.P(C) No.3624 of 2015-C the Board at its meeting held on 13.11.2009 and 12.5.2010 and it was sent to the Department of Commerce for notification on 2.7.2010. Even though the respondents have attempted to justify the framing and implementation of Ext.R2(e) recruitment rules, this Court has in the judgment dated 21.12.16 in W.P(C).No.6841 of 2013 and connected cases found that the rules and the promotions made otherwise than through the select list drawn by DPC after conducting interview, are null and void. The respondents have also produced the judgment dt.21.12.2016 in W.P(C).No.34596/2014 by which the claim for retrospective promotion raised by similarly situated persons was rejected on the ground of delay of 10 years. It was therefore stated that the case of the petitioner is also liable to be rejected on the ground of delay. 9. The petitioner filed a reply affidavit pointing out that the specific contentions raised by him are not answered in the counter affidavit and claiming that his promotion is liable to be reviewed in tune with the direction in the judgment dated 21.12.16 in W.P(C).No.6841 of 2013 and connected cases and that he is entitled to be granted promotion with retrospective effect from the date of promotion of his juniors. 10. At the same time, the learned Standing Counsel argued that the petitioner chose to approach this Court only in the year 2014 and he did not 8 W.P(C) No.3624 of 2015-C have any complaint against the adverse remarks after the review petition was rejected. Therefore, it is stated that the writ petition is liable to be dismissed on the ground of delay, as done in W.P(C).No.34596/2014. It was also pointed out that the petitioner was granted promotion in the year 2016 and he accepted the same. 11. The learned counsel for the petitioner submitted that Ext.P43 order rejecting the review petition saying that there is no provision for review issued on 26.08.2011, is incorrect and unsustainable. It was argued that Apex Court has in the judgment in _**Vinod Kumar v. State of Haryana**_ [(2013) 16 SCC 293 ] held that review petition can be entertained, against the orders in appeal against the adverse entries in APAR. It was also pointed out that power to review is available to an authority under the provision contained in the General Clauses Act. 12. The learned counsel for the petitioner relying on _**Shankara Coop.Housing Society Ltd. v. M.Prabhakar**_ : (2011) 5 SCC 607, _**Collector, Land Acquisition, Anantnag v. Katiji:**_ AIR 1987 SC 1353, _**Ganpatbhai Mahijibhai Solanki v. State of**_ Gujarat: (2008) 12 SCC 353, _**Tridip Kumar Dingal v. State of W.B**_ [(2009) 1 SCC 768], etc. argued that when the fundamental right of the petitioner was denied, that too, on account of the 9 W.P(C) No.3624 of 2015-C fraud committed by the Board by issuing certain rules contrary to law, the writ petition was not liable to be rejected on the ground of delay. Relying on the judgments in _**Mohinder Singh v. Chief Election Commr.**_ :AIR 1978 SC 851 and _**State of Kerala v. Balakrishnan:**_ 1992(1) KLT 420, it was also argued that the respondents cannot justify the impugned orders supplementing the same by way of explanation in the counter affidavit or at the time of argument. It was also pointed out that the respondents have not answered the contentions raised by the petitioner; they simply adopted a counter affidavit filed in another writ petition without answering the specific contentions raised by the petitioner in this writ petition. The learned counsel also relied on the judgment of the Apex Court in _**State of U.P v. Mahesh Narain:**_ [(2013) 4 SCC 169] where the Apex Court has held that the rules or regulations would come into force only with effect from the date on which the rules were published in the official gazette.; _**CCE v. Ratan Melting & Wire Industries**_ [(2008) 13 SCC 1] in support of his contention that the OMs issued by DoPT, Government of India are binding on the respondent Board. 13. At the same time, the learned standing counsel relied on the judgment of this Court and the Apex Court in _**Sajeeve N.J. v. Union of India & Ors.**_ [2009 (4) KHC 627 (para.22 and 31)] and _**Shiba Shankar**_ 10 W.P(C) No.3624 of 2015-C _**Mohapatra & Ors. v. State of Orissa & Ors.**_ :(2010)12 SCC 71 respectively and argued that the writ petition is liable to be dismissed on the ground of delay and it was also pointed out that the petitioner who accepted his promotion as per Ext.R2(c) order cannot be heard to raise any contention and cannot seek retrospective promotion without challenging Ext.R2(c). 14. Having heard the contentions on both sides, it is seen that this Court has, in a similar case relating to the very same post, in the judgment dated 21.12.16 in W.P(C).No.6841 of 2013 and connected cases, held that the regulations framed by the respondent Board were not approved or sanctioned by the Central Government or notified in accordance with the provisions contained in Section 25(1) of the Rubber Board Act, according to which, the Board has to get previous approval of the Central Government to make regulations and the regulations are to be notified and it shall be laid before each house of the Parliament. It was further found that when no specific procedure is prescribed in the Rubber Board (Service) Rules 1961, the provisions applicable to the Central Government would be applicable in such matters as well and office memorandum Ext.P1 produced in that writ petition was to be applied in the matter of promotion. It was also held that the promotions made by the Board on the basis of the draft rules can have no 11 W.P(C) No.3624 of 2015-C ## legal backing or sanctity. In paras.16 and 17 of the judgment it was held as ## follows: _“16. I have considered the contentions advanced on either side. It is clear from a reading of Section 25 of the Act that the power to make rules with regard to conditions of service of employees of the Board vests with the Central Government. In exercise of such power, the Rubber Board (Service) Rules, 1961 were issued. Exhibit PI O.M is issued by the Central Government with respect to the procedure to be observed by the Departmental Promotion Committees in the matter of promotions. When no specific procedure is prescribed in the service rules of the Rubber Board, it is clear that the provisions applicable to Central Government servants would be applicable in such matters as well. Therefore, Exhibit PI can be seen to have effect in the matter of promotion to be effected in the Rubber Board as well. This procedure, according to the petitioners, was being followed by the Rubber Board prior to the issuance of draft recruitment rules by it by Exhibits P3 and P4. It is also not in dispute that the draft recruitment rules on which reliance was placed by the respondents are not the rules framed by the Central Government and notified in accordance with Section 25(1) of the Act. In the above view of the matter, it is clear that the promotions made by the Board on the basis of the draft rules framed by the Board can have no legal backing or sanctity._ _17. I am of the opinion that in the light of the decisions relied upon by learned counsel for the petitioners, the argument of the learned Senior Counsel that the reliance on the draft rules for making appointments to the post in question were justified cannot be accepted. I am in full agreement that the views expressed in the interim orders referred to above to the effect that the promotions have to be effected in strict compliance with Exhibit P1 Office Memorandum issued by the Central Government.”_ ## 15. The promotions ordered in Ext.P9 were set aside, making the interim order passed on 15.1.2014 absolute. The relevant portion of the interim order passed on 15.1.2014 in W.P(c).No.6841/2013 was as follows: _“....In the said circumstances, as has been done in the case of the Assistant Development Officers, Exhibit P8 list has to be treated as the list to be placed before the Departmental Promotion Committee to enable the Departmental Promotion Committee to effect assessment of the candidates included in the said list. A report taking in to account the bench mark should be made available to the Departmental Promotion Committee to effect proper_ 12 W.P(C) No.3624 of 2015-C _assessment. After such assessment the Departmental Promotion Committee shall prepare a list of persons fit for promotion to the post of Deputy Rubber Production Commissioners for the purpose of effecting such promotion. The promotions effected without conducting the Departmental Promotion Committee shall be treated as provisional promotions and promotions based on Exhibit P9 shall be reviewed based on the list now to be prepared pursuant to the aforesaid direction in W P(C)No.6841 of 2013. It is made clear that promotions to the post of Deputy Rubber Production Commissioners shall be effected henceforth solely based on the list thus drawn taking note of the directions hereinbefore. The entire exercise in relation to the review and promotions to the post of Deputy Rubber Production Commissioner shall be effected within a period of three months subject to the result of W.P(C)No.6841 of 2013.”_ 16. According to the respondents, the case of the petitioner was also considered for promotion in the process of review conducted, after the judgment and he was found ineligible in the light of adverse remarks in his APAR. 17. The petitioner is claiming promotion from 27.03.2010, the date on which his juniors were promoted. The petitioner had appeared for the interview held on 20.10.2009, along with other 12 Development Officers. Ext.P6 proceedings would show that the selection committee evaluated the officers in accordance with the recruitment rules based on their performance in the interview and 10 officers including 4 of his juniors were selected for promotion. They were granted promotion as per Exts.P10 and P11 orders issued on 20.07.2010 and 04.11.2010. When Ext.P9 select list was drawn there was no adverse remarks against the petitioner. The contention that he was graded as 'good' all along is not controverted by the respondents. The W.P(C) No.3624 of 2015-C 13 only adverse remarks in his career was Ext.P39 for the year 2009-10 communicated to him on 12.08.2010. Therefore the only reason for his noninclusion in the select list and consequential denial of promotion was the erroneous method adopted by them by way of evaluation by conducting interview, which this Court held illegal in the judgment in W.P.(C).No.6841 of 2013. 18. The selection committee which conducted interview thereafter on 31.08.2011 and even the DPC held for review of promotions also did not include the petitioner in the select list. Those non-inclusions were based on the APAR of 2009-10, which will be looked into for five years. In case the petitioner's non-inclusion in Ext.P9 list is found illegal, the subsequent supersessions based on adverse remarks would not be relevant. 19. The question to be considered is whether the claim of the petitioner at this distance of time is liable to be entertained or whether it is liable to be rejected on the ground of delay, in the light of the judgment in W.P.(C) No.34596 of 2014. In that writ petition the petitioners were challenging the promotions effected in the year 2006. This Court held that promotions cannot be challenged after a period of 10 years, in the light of sit back theory. In this case the petitioner is challenging the promotion effected 14 W.P(C) No.3624 of 2015-C in 2010 filing a writ petition in 2015. Most of the party respondents who superseded him retired from service and most of them did not enter appearance or did not contest. Going by the judgment in W.P.(C) No.6841 of 2013, it is seen that but for adopting the erroneous procedure of selection based on the performance in the interview, the petitioner would have been included in the select list based on which promotions were effected on 20.07.2010 along with his juniors, as he had attained the requisite benchmark. But the parties in W.P.(c).No.6841 of 2013 challenged the promotions/select list of 2012. Though the petitioner was also considered in the review undertaken pursuant to that judgment, by that time Ext.P39 adverse remarks for the year 2009-10 was there. 20. Though the learned Counsel for the petitioner argued that the delay occurred in challenging the promotion is liable to be condoned since the respondent Board committed fraud by conducting interview for promotion, under the guise of new recruitment rules, even before its approval by Central Government and publication in official gazette, as prescribed in the Act, it cannot be said that the respondents committed any fraud, though procedure adopted was not legal. Moreover, in Ext.R2(a) judgment this Court had taken a different view in regard to the publication of the rules, etc. W.P(C) No.3624 of 2015-C 15 21. Regarding the delay in claiming promotion, it is true as contended by the learned Counsel for the petitioner that cause of substantial justice deserves to be preferred in order to undo injustice, as held by the Apex Court in _**Collector (LA) v. Katiji**_ ( _supra_ ). The Apex Court has also affirmed the decision of the High Court which reviewed its decision after condoning the delay of 2205 days in _**Ganpatbhai Mahijibhai Solanki**_ 's case _supra_ **,** in the peculiar circumstances in that case where the appellant was found to have suppressed material facts and committed fraud on court in order to give effect to the provisions in the Urban Land (Ceiling and Regulation) Act, 1976, under which the land involved was already allotted to several persons. It is also true that the Apex Court in _**Tukaram Kana Joshi v. MIDC, (2013) 1 SCC 353**_ **,** where the petitioners approached the court 24 years after their lands were taken possession. There the State Government could not complete the acquisition proceedings as prescribed in the Act and it was observed that it was not a case where the petitioners were not vigilant. Reiterating the observations in _**P. S. Sadasivaswamy v. State of T.N**_ : (1975)1SCC 152 _**, State of M.P. v. Nandlal Jaiswal**_ : (1986)4SCC 566, _**Tridip Kumar Dingal v. State of West Bengal**_ : (2009)1SCC 768 _**, Durga Prashad v. Chief Controller of Imports and Exports**_ : AIR 1970 SC 769, 16 W.P(C) No.3624 of 2015-C _**Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur**_ : AIR 1993 SC 802, _**Dayal Singh v. Union of India**_ : AIR 2003 SC 1140, _**Shankara Coop. Housing Society Ltd. v. M. Prabhakar**_ : (2011)5SCC 607, _**H.D. Vohra v. State of Maharashtra**_ : AIR 1984 SC 866 _,_ it was held that question of condonation of delay is one of discretion and has to be decided on the basis of the facts of each case and such discretion, must be exercised fairly, justly, judiciously and reasonably, so as to promote justice; there is no hardand-fast rule as to when the High Court should exercise or refuse to exercise its jurisdiction under Article 226, when a party approaches the court after considerable delay and is otherwise guilty of laches and that the cause of substantial justice deserves to be preferred to technical consideration. 22. At the same time, as argued by the learned Standing Counsel, the Apex Court has also held that stale claims need not be entertained. In _**Shiba Shankar Mohapatra v. State of Orissa**_ , (2010) 12 SCC 471, the Apex Court, while considering the question regarding promotion of Sub Inspectors (General) and Sub Inspectors (Steno) as Inspectors in Orissa, their inter-se seniority,etc. the question regarding delay in challenging seniority and promotions was considered. It reiterated the view in the Constitution Bench in _**Ramchandra Shanker Deodhar and Others v. State of Maharashtra and**_ W.P(C) No.3624 of 2015-C 17 _**Others**_ , AIR 1974 SC 259, _**R.N. Bose v. Union of India and Others**_ : AIR 1970 SC 470, _**Tilokchand Motichand v. H.B.Munshi**_ : AIR 1970 SC 898, etc. where it was held that a party claiming fundamental rights must move the Court before others' rights come into existence; the action of the Courts cannot harm innocent parties if their rights emerge by reason of delay on the part of person moving the court; each person is entitled to sit back and consider that his appointment and promotion effected a long time ago would not be defeated after the number of years and that rights, which have accrued to others should not be allowed to be disturbed normally, by reason of delay in filing the writ petition. The Apex Court reiterated the observations in _**R. S. Makashi v. I. M. Menon and Others**_ : AIR 1982 SC 101, in which while considering a seniority dispute, it was observed that the maximum period fixed by the Legislature as the time within which the relief by a suit in a Civil Court must be brought, may ordinarily be taken to be a reasonable standard by which delay in seeking the remedy under Art.226 of the Constitution can be measured, as observed in _**State of Madhya Pradesh and Another v. Bhailal Bhai**_ : AIR 1964 SC 1006. The Apex Court reiterated the observations in _**K. R. Mudgal and Others v. R. P. Singh and Others**_ : AIR 1986 SC 2086 that a Government servant who is appointed to any post 18 W.P(C) No.3624 of 2015-C ordinarily should at least after a period of 3-4 years of his appointment be allowed to attend to the duties attached to his post peacefully and without any sense of insecurity and that any one who feels aggrieved by the seniority assigned to him, should approach the Court as early as possible otherwise in addition to creation of sense of insecurity in the mind of Government servants, there shall also be administrative complication and difficulties. 23. In the present case the adverse remarks in Ext.P39 APAR were communicated as per Ext.P39 letter dated 12.08.2010. The interview in which the petitioner appeared as per Ext.P5 OM was on 20.10.2009, based on which promotions were made on 20.07.2010.Therefore, at the time when the petitioner was called for interview on 20.10.2009 as per Ext.P5 call letter there were no adverse remarks in the APAR of the petitioner. When Ext.P10 order was issued promoting the juniors of the petitioner on 20.07.2010, the adverse remarks in APAR for 2009-10 were not communicated. The petitioner's contention is that except for the year 2009-10, there are no adverse remarks and that he does not have any disqualification for promotion. Therefore, it is clear that the reason for denial of promotion to the petitioner along with his juniors who were promoted on 12.03.2010 cannot be the adverse remarks. It can only be the marks in the interview W.P(C) No.3624 of 2015-C 19 conducted pursuant to Ext.P3 call letter in 2009, that he was not included in the select list. The procedure of selection otherwise than through DPC list and selection on the basis of interview has already been found illegal in the judgment in W.P.(C) No.6841 of 2013. It is pertinent to note that the petitioner in that case was challenging the promotions made in the year 2012 by filing writ petition in 2013. The denial of promotion to the petitioner could only be based on the illegally conducted interview. Though it is seen that the petitioner was illegally denied promotion, non-inclusion in the select list prepared in 2009 or promotions made or denial of promotion to the petitioner cannot be interfered with, in a writ petition filed in 2015. Though it is true that when the adverse remarks were communicated on 12.08.2010, the date of Ext.P39, the respondents have not even forwarded the alleged recruitment rules to the Government, the petitioner allowed thing to go like that till 2015, without challenging the non-inclusion in the select list or denial of promotion. The petitioner is seeking the review of the select list Exts.P10 and P11 of the year 2010. The contention of the respondents is to the effect that the party respondents were granted all the benefits based on their promotion. Therefore, even though they did not contest the case apparently because they would not be affected, a stale claim 20 W.P(C) No.3624 of 2015-C cannot be allowed to be pursued, after the petitioner remained silent all these years. Even though the party respondents did not contest the matter, the respondent Board has granted them all the benefits. Moreover an employee cannot be allowed to wait to challenge the promotions till retirement of the juniors. In W.P(c).No.34956/2013, which was dismissed on the ground of delay, the promotions of 2006 was challenged; this Court has in the judgment dated 20.10.2015 in W.P.(C) No. 9894 of 2013, in the matter of promotion to managerial cadre in Kerala Financial Corporation, dismissed the writ petition on the ground that it was filed after 4 years of the promotion, even after it was found that the procedure adopted for promotion was in violation of the regulations and the petitioners who challenged the promotions without any delay were granted relief. Going by the same principle the claim raised by the petitioner after 5 years is also liable to be rejected. It is settled law that inordinate and unexplained delay is an adequate ground for refusing to exercise discretion. 24. The respondents have stated that his case was considered while reviewing the promotion in tune with the directions in W.P.(C) No.6841 of 2013 and he was found unfit because of the adverse remarks. Ext.P39 adverse remarks in the APAR of 2009-10 would affect his promotions for a W.P(C) No.3624 of 2015-C 21 period of 5 years, as the inclusion in the select list is made based on the APAR for the last 5 years. His representation against the adverse remarks was rejected as per Ext.P41 letter dt.22.10.2010. The review petition was rejected in 2011. The petitioner ought to have challenged the adverse remarks immediately. In _**Vinod Kumarr**_ 's case ( _supra_ ) relied on by the learned Counsel for the petitioner the adverse remarks were in the ACR for 89-90. His representation before DIG was rejected on 26.5.1993. Thereafter the DGP allowed a representation submitted after 9 years on 15.07.2002, expunging the adverse remarks. A new DGP subsequently noticed that the former DGP had expunged such remarks in several cases, after a lapse of 1012 years after their representations/appeals against adverse marks were rejected The new DGP issued show cause notices in such cases and restored the adverse remarks. The apex court found that the action of the former DGP in entertaining belated petitions and expunging remarks were not within his powers and when such ultra vires acts done without any authority, in disregard of all canons of administrative law and when it was an act of favouritism, such mischiefs can be undone by administrative authorities themselves by reviewing such orders after following principles of natural justice. When the review petition itself was rejected in 2011, the 22 W.P(C) No.3624 of 2015-C respondents cannot be directed to consider it at this stage, even assuming that there is a provision for the same. 25. The respondents have stated that they had considered the case of the petitioner, when the DPC met for reviewing the promotions, pursuant to the judgment in W.P(C).No.6841/2013 and was found unfit due to the adverse remarks. In the APAR communicated to the petitioner as per Ext.P39 letter dated 12.08.2010, item no 2 under Part III of the APAR- the remarks as against 'general comments on the result achieved and quality of performance and application of knowledge, delegated authority and conceptual and professional skills on the job' was “good”. As against `commitment to the tasks assigned' under para.3 (i) and as against `devotion to duty' under (ii) of that item no.3 the remarks were “average”. As against the `human relations', `public relations', `intellectual honesty, creativity and innovative qualifies', `integrity', etc. under clause (iii) to (vi), the remarks were “good”. Against the entry `promptness/regularity in carrying out inspections etc.' in clause (vii), the remark was “reasonably prompt”. As against column 5 of Part IV it was stated that “Nothing special. As reported by the Reporting Officer who was his immediate controlling officer, his commitment and devotion to duty are just average, Grading can be done 23 W.P(C) No.3624 of 2015-C later”. As per the guidelines issued by the DoPT, the Departmental Promotion Committee has to consider the entries in the APAR on merits and has to take a decision based on it. In the O.M dt.10.7.1990 issued by the DoPT it is directed that relaxation shall be granted in the case of Scheduled Caste/Scheduled Tribe candidates. It also provides that powers of relaxation of recruitment rules may be exercised judiciously to ensure protection of their interest in tune with the instructions. As per the instructions issued by the DoPT the fitness of SC/ST officers shall be assessed keeping the view, the duties and responsibilities attached to the post and not on the basis of benchmark prescribed for promotion to the post, even though there is no reservation. When the overall grading is not given, as pointed out by the petitioner it was necessary for the DPC to consider the entries in Ext.P39 APAR in which grading on 4 items are given as `good' and as against 2 items in para.3 he is graded as `average'. Therefore, the DPC ought to have considered the case of the petitioner with reference to the entries in the APAR independently on merits and whether the petitioner was liable to be excluded on account of the grading given against the entries in paras.3(i) and 3(ii) of his APAR. The DPC ought to have considered the fact that the petitioner belongs to Scheduled Caste community. Ext.P47 office 24 W.P(C) No.3624 of 2015-C memorandum, reiterates the O.M dt.10.4.1989 in para.5 that DPCs are required to determine the merits of those being considered for promotion with reference to the required bench mark on the basis of the entries and gradings contained in the APAR and other relevant material facts placed before it and shall grade the officers as `fit' or `unfit' accordingly. Since the petitioner's final grading is not given even after rejection of his representations and his petitions for review was rejected, the DPC was bound to substantiate its assessment independently. The DPC which met on 21.7.2014 for review of the promotions on the basis of the judgment of this Court does not appear to have considered the case of the petitioner in tune with the merits of the entries in the APAR considering the fact that the petitioner belongs to Scheduled Caste community, and hence eligible for relaxed standards. It was necessary for the DPC to consider each of the entries on merits as directed in Ext.P47 applying the relaxed standards in the O.Ms issued in the case of employees belonging to SC/ST community. 26. In the above circumstances, I am of the view that the case of the petitioner is liable to be considered by the DPC with specific reference to the remarks in the APAR in view of the fact that there is no final grading given in the case of the petitioner and considering the fact that the petitioner has 25 W.P(C) No.3624 of 2015-C attained the benchmark for all the years preceding and succeeding 20092010 and taking into account the fact that the petitioner belongs to Scheduled Caste community, the DPC has to assess the fitness of the petitioner for inclusion in the select list for the year 2012 onwards and for promotion along with respondents 23 to 36, who were promoted as per Ext.P27. 27. In the result, the respondents are directed to convene a review DPC and to re-consider the case of the petitioner for inclusion in the select list for the year 2012 (for which the review DPC was held on 21.7.2014) pursuant to the judgment in W.P(C).No.6841 of 2013, dehors the findings in the DPC held on 21.7.2014 and thereafter and in Exts.P37 and P50 letters, in tune with the above observations, within a period of three months from the date of receipt of a copy of the judgment and to communicate the outcome to the petitioner. The writ petition is disposed of accordingly. Sd/- ## _**(P.V.ASHA, JUDGE)**_ _rtr/_