Thomas A.C. v. Kerala State Road Transport Corporation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** ## **THURSDAY, THE 30TH DAY OF JUNE 2016/9TH ASHADHA, 1938** ## **WP(C).No. 11543 of 2016 (P)** **----------------------------------------** ## **PETITIONER(S):** **----------------------** **THOMAS A.C., INSPECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, KATTAPPANA, RESIDING AT ANATHARACKAL HOUSE, NEDUMKANDAM P.O., IDUKKI-685553.** ## **BY ADV. SRI.SAJEEV KUMAR K.GOPAL** **RESPONDENT(S):** - **-------------------------** **1. THE KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, TRANSPORT BHAVAN, FORT P.O., THIRUVANANTHAPURAM-695023.** **2. THE CHAIRMAN AND MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT P.O., THIRUVANANTHAPURAM-695023.** **3. THE EXECUTIVE DIRECTOR (VIGILANCE), KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT P.O. THIRUVANANTHAPURAM-695023.** **4. THE DEPARTMENTAL PROMOTION COMMITTEE, KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT P.O., THIRUVANANTHAPURAM-695023. REPRESENTED BY ITS CHAIRMAN.** ## **BY SRI.M.GOPIKRISHNAN NAMBIAR, SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** ## **WP(C).No. 11543 of 2016 (P)** ## **---------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-------------------------------------** - **P1: TRUE COPY OF THE REPORT SUBMITTED BY THE ENQUIRY OFFICER DATED 06/01/2016.** - **P2: TRUE COPY OF THE SHOW CAUSE NOTICE ISSUED BY THE 3RD RESPONDENT DATED 04/02/2016.** - **P3: TRUE COPY OF THE ORDER NO.VLC4-1548/2015 ISSUED BY THE 3RD RESPONDENT DATED 22/02/2016.** - **P4: TRUE COPY OF THE MINUTES OF THE DPC WHICH RELATES TO THE POST OF ASSISTANT TRANSPORT OFFICER.** **RESPONDENT(S)' EXHIBITS** **---------------------------------------** **NIL.** **/ TRUE COPY /** **P.S. TO JUDGE** **PJ** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) No.11543 of 2016 ----------------------------------------------Dated this the 30[th] day of June, 2016** ## **JUDGMENT** This writ petition is filed by the petitioner seeking to quash Ext.P4 order passed by the 4th respondent, whereby the promotion of the petitioner is ordered to be kept in sealed cover. Brief facts for the disposal of the writ petition are thus: 2. Petitioner is presently working as Inspector with the 1st respondent Corporation in its Kattappana Depot. The next promotion to the petitioner is to the post of Assistant Transport Officer. Petitioner is qualified to be considered for promotion. The Departmental Promotion Committee constituted for promotion has adopted a sealed cover procedure so far as the petitioner and others are concerned, as per Ext.P4, on the ground that the petitioner is under punishment period. According to the petitioner, the disciplinary proceedings against the petitioner is concluded, evident from Ext.P3, and the punishment of temporary bar of increment for a period of six months was imposed. According to the petitioner, it is a minor punishment and the said **W.P.(C) No.11543 of 2016** 2 punishment imposed cannot stand in the way of providing promotion to the petitioner. Therefore, it is the contention of the petitioner that, the sealed cover procedure adopted by the 4th respondent as per Ext.P4 cannot be sustained under law. It is in this background, petitioner has filed this writ petition. 3. Heard learned counsel for the petitioner and learned Standing Counsel for the respondents. 4. Learned counsel for the petitioner reiterated the submissions made in the writ petition. That apart, it is contended that, as per Ext.P3, the punishment imposed against the petitioner is only barring increment for a period of six months. Ext.P3 is dated 22.02.2016. Therefore, it is the contention of the petitioner that, the imposition of such a punishment was not an impediment for the 4th respondent to consider the promotion of the petitioner. learned counsel for the petitioner has also invited my attention to the judgment of this Court in _**'Gopi v. K.S.R.T.C'**_ [2009 (2) KLT SN 32 (C. No.37)], where the bar of increment without cumulative effect was considered and this Court held that the same is not a major punishment so as to deprive promotion. 3 **W.P.(C) No.11543 of 2016** 5. On the contrary, learned Standing Counsel for the respondents submitted that, Ext.P4 order passed by the 4th respondent is legal and absolutely in accordance with order. Learned counsel has also invited my attention to Rule 28(7) Note (i) and (ii) of the K.S.&S.S.R, which read thus: _“28(7). The “Select List” shall be prepared from among the eligible officers on the basis of merit and ability, seniority being a consideration only when all the qualifications are equal. The number of names to be included in the “Select List”shall be the same as the estimated number of vacancies likely to arise during the next year. Supplemental lists may be prepared in case the lists already prepared get exhausted before the close of the year to which they relate so as to obviate the necessity for convening meetings of Departmental Promotion Committees at short notice or keeping of posts unfilled and thereby causing administrative inconvenience. Persons selected for inclusion in the Select List shall be ranked in the Select List according to their seniority in the feeder category. When the Special Rules provide for a definite ratio or order of preference from the feeder categories, persons from each feeder category shall be included in separate select lists and appointment shall be made in accordance with the ratio or order of preference prescribed by such Special Rules for each feeder category._ 4 **W.P.(C) No.11543 of 2016** _Note:- (i) Officers under suspension and Officers against whom criminal proceedings are pending in a Session's Court or in any other higher Court for grave offences like murder, dacoity, etc. and Officers against whom departmental proceedings are taken for the imposition of a major penalty under the disciplinary rules applicable to them 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, if the Officer had not been suspended or the criminal proceedings/departmental proceedings had not been pending against him, he would have been recommended/selected for promotion. Where a select list is prepared the Departmental Promotion Committee shall also make a finding as to what the position of the Officer in that list would have been but for the suspension or the criminal proceedings/departmental proceedings against him. 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. The proceedings of the Departmental Promotion Committee need only contain a note. “The findings are recorded in the attached sheet of paper”. The authority competent to fill the vacancy should be separately advised to fill the vacancy only on a temporary basis. Officers against whom vigilance or departmental proceedings are taken after the charges have prima facie been established in a preliminary enquiry should not be included in the Select List. But, the cases of such Officers should also be assessed. The question of including them in the select list shall be considered when the result of the enquiry is known. However, Officers against whom departmental proceedings are taken for the imposition of a minor penalty may be included in the select list provisionally if they are found suitable but for the pendency of disciplinary proceedings initiated against them._ _(ii) The vacancy that would have gone to the Officer but for his suspension or the criminal_ _proceedings/departmental proceedings against him for the imposition of a major penalty should be filled only on a temporary basis by the next person in the approved list. If the Officer concerned is completely exonerated, he will be promoted thereafter to the post filled on a temporary basis, the arrangements_ **W.P.(C) No.11543 of 2016** 5 _made previously being reversed. If the exoneration is not complete, the Departmental Promotion Committee may decide each case on its merits. Where, however, the post which would have gone to the Officer but for his suspension or the criminal proceedings/departmental proceedings against him, ceases to exist before the conclusion of the_ _disciplinary proceedings, he will be promoted to the first vacancy that may be available in future if he is found fit for promotion at that time. If the officers against whom departmental proceedings are taken for imposition of a minor penalty and who have been provisionally included in the select list are fully exonerated of the charges, their cases for promotion on the basis of such inclusion in the select list shall be considered. If the Officers are not fully exonerated of the charges, the Departmental Promotion Committee may decide each case on its own merit.”_ 6. Learned Standing Counsel has pointed out that, so far as the selection is concerned, the imposition of a minor penalty is not a bar for including them provisionally in the list, if they are found suitable but for the pendency of disciplinary proceedings initiated against them. But however, learned counsel contended that, with respect to the promotion as per Note-II, if the officers are not fully exonerated of the charges, the Departmental Promotion Committee may decide each case on its own merit. Therefore, it is the contention of the learned counsel that the sealed cover procedure adopted by the 4th respondent is in order since the punishment period as per Ext.P3 barring increment for a period of six months has not expired. ## **W.P.(C) No.11543 of 2016** 6 7. However, learned counsel for the petitioner contended that, merely because the petitioner is under punishment as per Ext.P3, that is not a ground for adopting a sealed cover procedure because as per Note (ii) of Rule 28(7) of K.S.&S.S.R, the 4th respondent is vested with powers to consider the promotion of the petitioner in terms of law. 8. On evaluating the rival submissions made across the Bar, perusal of pleadings and the documents, the judgment pressed into service by the petitioner and the provisions of law pointed out by the learned Standing Counsel, I am of the considered opinion that the sealed cover procedure adopted by the 4th respondent is not in accordance with law. The 4th respondent was at liberty to consider the case of the petitioner for promotion taking into account the punishment imposed as per Ext.P3. Adjournment of the promotion procedure is not contemplated under Notes (i) and (ii) as pointed out by the learned Standing Counsel under the K.S.&S.S.R. Learned Standing Counsel has also pointed out that the Departmental Promotion Committee of the respondent Corporation is guided by the Kerala State Road Transport Corporation Appointment to Higher Division Services (Preparation of Select List) **W.P.(C) No.11543 of 2016** 7 Regulations, 1988. Learned counsel has invited my attention to paragraphs 5, 6 and 7 of the said Regulations, wherein similar provisions as that of K.S.&S.S.R are provided, therein also it is stated that, if the exoneration is not complete, the Departmental Promotion Committee may consider each case on its merits. 9. Taking into account the cumulative factual circumstances and reckoning the law discussed above, I am of the considered opinion that petitioner is entitled to succeed in this writ petition. Therefore, 4th respondent is directed to consider the case of the petitioner for promotion on merits, taking into account the observations and directions contained above within a period of three weeks from the date of receipt of a copy of this judgment. The writ petition is disposed of accordingly. Sd/- **SHAJI P. CHALY JUDGE** //true copy// P.S. to Judge St/30.06.2016