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2001 DIGILAW 688 (KER)

Mohandas v. State of Kerala

2001-11-27

KURIAN JOSEPH

body2001
Judgment :- Kurian Joseph, J. Supersession by the Departmental Promotion Committee entitles the superseded officer to make a representation and the Committee is bound to consider the same adverting to the grounds on which the supersession was made. But in the process, is the Departmental Promotion Committee entitled to rely on other grounds and justify the supersession? That is the question which arises for consideration in this case. 2. R.28(b)(i)(8)(a) of the Kerala State and Subordinate Services Rules which is relevant in the matter reads as follows: "The select list prepared by the Departmental Promotion Committee in the manner referred to above shall be published by the convener of the Committee after approval by the Government. Normally no revision of such select list shall be made under R.29 on the basis of re-evaluation of the confidential reports. However, if any officer who has been superseded and whose name has not been included in the list makes, within one month from the date of publication of the list, a written representation to the Convener of the Departmental Promotion Committee requesting a revision of the list, the Committee shall consider the representation. After going through the representation, if the Committee feels that some clarification should be obtained from the superseded officer by personal hearing, it may do so and on the basis of such representation and personal hearing if it is of the view that the list already prepared should be revised, it may make a recommendation to the effect. The list shall then be revised accordingly and published by the Convener after approval by the Government. Note:-Promotions from the first list published by the Departmental Promotion Committee shall be provisional and the list will be subject to revision, if after following the procedure, it is found that the list requires revision". 3. Petitioner, Circle Inspector of Police, aggrieved by the supersession by the D.P.C. in the supplemental list prepared for the year 1998 for promotion to the post of Deputy Superintendent of Police, made Ext. PI representation. By Ext. P2 judgment this Court directed the representation to be placed before the DPC and further directed that the decision must be taken within three months. PI representation. By Ext. P2 judgment this Court directed the representation to be placed before the DPC and further directed that the decision must be taken within three months. According to the petitioner, both the grounds for supersession were not tenable since the first ground of postponement of increment for six months was modified to one of censure and the other ground of pendency of enquiry was also cleared since on completion of the enquiry the petitioner was exonerated. It is also to be noted that the punishment of censure is to be ignored by the DPC under Note (v) of R.28(b)(i)(7). 4. In the impugned Ext. P4 order the stand taken is that apart from those two grounds referred to by the DPC on which the petitioner was superseded, there was yet another reason and that is based on Ext. P5 dated 21.5.1998. It is seen from Ext. P5 appellate order that the punishment of postponement of increment for two years with cumulative effect imposed on 19.3.98 was reduced to postponement of one increment with cumulative effect. Taking into consideration that punishment, the petitioner was liable to be superseded since the punishment was within the three year period of consideration. - 5. Sri. T.P. Kelu Nambiar, learned Senior Counsel appearing for the petitioner submits that once the petitioner preferred a representation on being superseded on certain grounds and those grounds having been found to be untenable, there is no justification in superseding the petitioner on another ground, assuming such a ground was available. It is also contended that the rules contemplate only one supersession, one representation and one review and that power of review having been exercised on points explained/represented, it was not open to the DPC to justify the supersession on another ground, assuming it was a case of bonafide omission to take note of a factual situation or a case of mistake of fact. There is also a contention that under R.28(b)(i)(8)(a), the DPC is entitled to consider only as to whether the representation is to be allowed or not for the reasons stated in the representation, nothing more and nothing less. 6. I am afraid, the contentions cannot be accepted. An officer can be superseded in the selection process on reasons, after considering his case on merits. 6. I am afraid, the contentions cannot be accepted. An officer can be superseded in the selection process on reasons, after considering his case on merits. If in that process a relevant factor was not taken into consideration, can it be said that there was consideration on merits? Unless the decision taken is one referring to all the relevant factors, it would be no decision in the eye of law, since there is non-application of mind on relevant aspects. In other words, if relevant considerations have been left out in the process of consideration, so long as there is no express bar in the rules in considering the relevant facts under R.28(b)(i)(8)(a), it is open to the DPC to review the case on merits, taking into consideration all the relevant aspects. But in the said process, the authority should comply with the principles of natural justice by putting the superseded officer on notice on the aspects left out of consideration so that he gets an opportunity to explain. The whole purpose of the Rules is to ensure a fair selection on objective assessment and in the process no ineligible officer should be made eligible. 7. M.P. Menon, J. in Radhakrishna Filial v. State of Kerala (1984 KLT 693), considered a case where eligible officers were made the victims of omission by the DPC. It was held therein as follows: "It is well-settled that consultation in this context does not mean absolute compliance with the advice of the Commission. The real question therefore is not whether the rules specifically empower the Government to remit a list to the DPC before approval, but whether the rules prohibit exercise of such a power. The proper approach will be to recognise the existence of such power-a power to direct the correction of an obvious mistake-unless it is specifically denied by the rules. And so far as I could see, the rules do not do so either expressly or by necessary implication. The rules are designed to eliminate arbitrariness and provide for the process of selection to proceed in an orderly manner; they are not designed to perpetuate mistakes and make eligible officers the victims thereof. 8. The factual position in the instant case is concerned is just the contra; an ineligible officer was found to be made eligible by mistake. The rules are designed to eliminate arbitrariness and provide for the process of selection to proceed in an orderly manner; they are not designed to perpetuate mistakes and make eligible officers the victims thereof. 8. The factual position in the instant case is concerned is just the contra; an ineligible officer was found to be made eligible by mistake. The process of selection is designed to be conducted in an orderly manner by the rules and they are not designed to perpetuate mistakes so as to make ineligible officers the beneficiaries thereof. Therefore, if there was a mistake committed by the DPC like omission to take note of a relevant factor, it is open to them to consider the case on all relevant aspects, but subject of course to the observance of the principles of natural justice. 9. The real purpose of the chance to make a representation is to provide an opportunity to the DPC to review its own decision. That review need not necessarily be confined to the matters represented. The representation is intended to initiate a review of the decision already taken by the DPC. In the process of such review at the instance of the superseded officer, it is open to the DPC to take note of an omission or a mistake of fact which did not occur to them at the earlier instance. But that omission or mistake should be notified to the affected party so that he gets an opportunity to explain. That is why the rules provide for an opportunity for personal hearing "if the Committee feels that some clarification should be obtained from the superseded officer by personal hearing". True, the DPC gets such an opportunity only on going through the representation. But once an opportunity for personal hearing was given, it is open to the DPC to revise the list "on the basis of such representation and personal hearing". 10. Thus, the position under the Rules is fairly clear and it enables the DPC even to take note of a valid ground of supersession at the time of review but with notice to the officer so that he gets an opportunity either to explain or clarify the position. 10. Thus, the position under the Rules is fairly clear and it enables the DPC even to take note of a valid ground of supersession at the time of review but with notice to the officer so that he gets an opportunity either to explain or clarify the position. In the scheme of R.28(b)(i)(8)(a) since an opportunity for personal hearing is to be granted if the DPC feels that some clarification should be obtained from the superseded officer, naturally the said Officer gets an opportunity to explain the position and there is no violation of the principles of natural justice. If there is a valid ground justifying the supersession and such a valid ground happened to be omitted to be taken note of, if cannot be contended that the DPC should not consider the same for the only reason that the supersession was on certain other grounds and the representation is confined only to those grounds. It is not as if the DPC exercises a suo motu power of review which is not provided under the Rules. It is a case only of correction of a mistake. Nobody is entitled to reap undue fruits out of a mistake committed by an authority and it cannot be contended that the authority lacks power to correct such mistakes. The only procedural safeguard in such circumstances is that there should be no violation of the principles of natural justice in the process of correction of a mistake. In the instant case, such an opportunity was not given to the petitioner and hence the DPC should consider afresh the issue with notice to the petitioner. 11. In the result, I quash Ext. P4 and direct the 2nd respondent to consider the case of the petitioner as represented in Ext.P3, in the light of the observations made above. A decision in accordance with law shall be taken in the matter within a period of two months from the date of production of a copy of this judgment. It is also made clear that it will be open to the DPC to take note of the factual situation as of now since even the three-year period after Ext. P5 has expired. The Original Petition is disposed of as above. The petitioner will produce a copy of this judgment along with a copy of the Original Petition before the 2nd respondent.