SHAHUL HAMEED v. STATE OF KERALA — 1978 DIGILAW 170 (KER)

Judgment :- 1. This writ petition is for the issue of a writ of certiorari quashing Ext.P-4 notification No. DC (1)5-12316/74 dated 18-6-1976 published in Part III of the Kerala Gazette dated 26 61976. There is also a prayer for the issue of a writ of mandamus to the second respondent, the Board of Revenue, Kerala State, Trivandrum, to include the name of the petitioner also in the select list Ext. P-4 assigning him proper rank among the Assistant Salestax Officers/Sales tax Inspectors. 2. The writ petitioner, while he was working as head clerk in the Revenue Department, was included by the Departmental Promotion Committee in the select list published on 2 31974 for appointment to the post of Assistant Salestax Officers for the year 1973-74. Thereafter, by Ext. P-2 order dated 14 31974 he was provisionally promoted and posted as Assistant Salestax Officer. Ext. P-1 is the final select list published on 3112 1974 after obtaining the approval of the Government. 3. It is the publication of Ext. P-4 notification dated 18 61976 in the Gazette dated 26 61976 that has given rise to the dispute in this matter and to the ultimate filing of this writ petition. It would appear that the Board of Revenue in the light of the decision of this Court in O.P No. 4590 of 1972 felt the need for preparing fresh seniority list of the upper division clerks in the Revenue Department which necessarily was bound to have some changes in the ranking given previously. Because of this changed circumstances it would also appear that the Revenue Board felt it necessary that the select list for appointment to the post of Assistant Salestax Officers drawn up by the Departmental Promotion Committee for the year 1974-75 also should be reviewed. The Departmental Promotion Committee thereafter met and prepared select list for the appointment of Assistant Salestax Officers for the years 1967-68 to 1974-75. It is the admitted case that in the revised select list for the year 1973-74 or 1974-75 the petitioner's name was not included; though in both the years his name was included in the field of choice, he was not selected as the Departmental Promotion Committee found him to be unsustainable. 4. The counsel for the petitioner, Sri. It is the admitted case that in the revised select list for the year 1973-74 or 1974-75 the petitioner's name was not included; though in both the years his name was included in the field of choice, he was not selected as the Departmental Promotion Committee found him to be unsustainable. 4. The counsel for the petitioner, Sri. Pirappancode V. Sreedharan Nair, submitted that the action of the Departmental Promotion Committee in reviewing the select list for the year 1973-74, which was published provisionally, and thereafter finally after the approval of the Government as early as 3112 1974, was not justified and was in effect without jurisdiction. The submission of the counsel is that the Kerala State and Subordinate Service Rules do not empower the Departmental Promotion Committee to review or revise a select list except in the special circumstances mentioned in R.28 (8) of the said Rules, and that such circumstances do not exist in the present case. It is also submitted that the failure on the part of the Government to exercise jurisdiction under R.29 of the Rules shows that it was without any direction from the Government or without the Government's approval that the Departmental Promotion Committee has proceeded to revise or review the select list already published finally with the approval of the Government. On a careful consideration of the provisions contained in R.28 (8) of the Kerala State and Subordinate Service Rules I am of the view that except for the special circumstances mentioned in the said sub-rule there is no power for the Departmental Promotion Committee to review or revise the select list. When that is the position, the contingency of a person placed in the position as that of the writ petitioner being included in the field of choice for consideration again by the Departmental Promotion Committee also could not arise. 5. The Government Pleader appearing for the State submitted that the Departmental Promotion Committee must be presumed to have the right and the power to correct the mistake, if any, crept in the course of the preparation of the select list, though there might not be any specific provision in the Kerala State and Subordinate Service Rules in that behalf. He also submitted that under Ext. P2 the petitioner was appointed only provisionally to the post of Assistant Salestax Officer and bis probation in that cadre has not so far been declared. He also submitted that under Ext. P2 the petitioner was appointed only provisionally to the post of Assistant Salestax Officer and bis probation in that cadre has not so far been declared. He also submitted that in Ext. R-1 proceedings No. A2-59201/75/TX dated 5 121975, the second respondent, the Board of Revenue, had made it clear that all the promotions and seniority of Assistant Salestax Officers appointed by transfer from 1967 onwards were subject to review by the Departmental Promotion Committee, which bad to draw up year wise select lists from 1967-68 onwards. The counsel for the petitioner has a case that the petitioner had already completed the maximum period required for the declaration of his probation and as such, even in the absence of a formal declaration that he had completed the period of probation, he should be deemed to have become a full member of the service in the cadre of Assistant Salestax Officer. I do not think that it is necessary to go into this minor question at present. The main question to be considered and answered is whether the Departmental Promotion Committee is competent in law to review or revise a select list provisionally published and later finally published after obtaining the approval of the Government In the absence of any enabling provision, except for those mentioned in R.28 (8) of the Kerala State and Subordinate Service Rules I am of the view that it has to be ruled that the Departmental Promotion Committee has no such power, and therefore Ext. P4 select list was prepared without competence in that behalf. Inasmuch as the petitioner's name is not included in Ext. P4 select list, I do not think that there is any need for quashing Ext. P4 The purpose would be served if it is declared that the inclusion of the petitioner's name in the final select list published on 31 12 1974 shall remain and the appointment or promotion granted to him on that basis shall remain without being altered by Ext. P4 select list; and I do so. The writ petition is disposed of as above. There will be no order as to costs.