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2005 DIGILAW 176 (KER)

Mohanan Nair v. State of Kerala

2005-02-28

K.K.DENESAN

body2005
Judgment :- K.K. Denesan, J. The petitioner belongs to the cadre of Industries Extension Officer. The next higher post of Industries Extension Officer is Assistant District Industries Officer. The latter post is selection post. Therefore, the Department Promotion Committee (D.P.C.) has to prepare a select list of persons eligible to be included for each year for promotion to the post of Assistant District Industries Officer. Ext.P1-Select list was published for the year 2002. Petitioner’s name was included in that list as serial No.12. However, petitioner was not promoted from that list. May be for the reason that sufficient number of vacancies did not actually arise in the year 2002. In the select list prepared for the year 2003, a copy of which is produced as Ext.P-2 along with the Writ Petition, petitioner’s name was not included. Against his non-inclusion, he filed objection before the departmental authorities. While so, Ext.P-3 revised list of Industries Extension Officers, entitled for promotion for the years 2001, 2002 and 2003 was published by the 2nd respondent. In that list, petitioner’s name was included for the year 2003 as Serial No.3. Serial Nos.1 and 2 are respondent Nos.4 & 5. The petitioner points out that, respondents 4 & 5 are not included in Ext.P-1 select list for the year 2003, initially prepared by the D.P.C. in which the petitioner was included as Serial No.12. Aggrieved by the lower rank assigned to the petitioner in Ext.P-3, he has filed this Writ Petition. He has sought for quashing Exts. P-3 as also P-4 by which respondents Nos.4 & 5 were promoted in preference to him and Ext.P-8 order rejecting the request made by the petitioner for inclusion of his name in the list as Serial No.1 in preference to respondents Nos.4 & 5 and for granting him promotion in preference to the said respondents. Incidental reliefs have been prayed for in this Writ Petition. 2. Though notice has been served on respondents Nos.4 & 5, there is no appearance for the said respondents. A counter-affidavit has been filed on behalf of respondents Nos.1,2 and 3. 3. Incidental reliefs have been prayed for in this Writ Petition. 2. Though notice has been served on respondents Nos.4 & 5, there is no appearance for the said respondents. A counter-affidavit has been filed on behalf of respondents Nos.1,2 and 3. 3. Learned counsel for the petitioner, placing reliance on the statutory provisions contained in R.28 of the Kerala Subordinate Service Rules (for short ‘the Rules’), particularly R.28(b)(9) and R.28(b)(7) Note (ii) to sub-r(11) of R.28 of the aforesaid Rules submits that, respondent Nos.4 & 5 ought not to have been included in the select list for the year 2003 in preference to the petitioner because the petitioner’s name was included in the select list for the year 2003 by the D.P.C. 4. R.28(b)(4) prescribes that the D.P.C. shall meet periodically to prepare select lists, in the order of merit, of the Officers selected for appointment. R.28(b)(4)(a) says that select list shall be prepared during the calendar year for the vacancies estimated to arise in the next calendar year. Having regard to the aforesaid provision, number of vacancies were estimated for the purpose of consideration by the D.P.C. for preparing select list for the year 2002. The D.P.C. found that the petitioner was eligible to be included in the select list for the year 2002. But, presumably, for want of sufficient number of actual vacancies, he could not be promoted in the year 2002. When such contingencies happen what should be the procedure to be followed is provided in R.28(b)(9) of the Rules wherein it is stated that the select list shall be reviewed annually and it shall remain in force until it is revised, that names of those officers who have already been appointed shall be removed from the list and the rest of the names along with those officers who may be included in the field of choice, shall be considered for the “Select list” for the subsequent period. The said sub-rule specifically says that a person included in an earlier select list, shall, however, be ranked above a person considered for a subsequent list, unless his conduct and work subsequent to such inclusion renders it necessary that he should be placed lower in the list or his name may be omitted from the list if there is definite deterioration in the work and conduct of the Officer subsequent to his inclusion in the select list for the previous year, as the case may be. There is no case for the respondents that the conduct and work of the petitioner subsequent to his inclusion in Ext.P-1 select list for the year 2002 warranted any action for non inclusion or omission of his name from the subsequent list. Therefore, the petitioner is entitled to be ranked above persons who are considered for inclusion in the subsequent list. Respondents Nos.4 & 5 who were not included in Ext.P-1 select list for the year 2002, but were found eligible to be included in the subsequent list cannot be placed or assigned rank above the petitioner. Note (i) below sub-r.(11) of R.28(b) says that as a person included in the earlier select list shall be ranked above a person considered for a subsequent list, unless his work and conduct subsequent to such inclusion renders it necessary that he should be placed lower in the list, the calculation of anticipated vacancies for purpose of preparing annual or supplemental select lists shall be done as accurately as possible. Therefore, it is clear that the statute intends that a person once included in the list going by merit and seniority, then persons who are thus included in field of choice get a right to be included in the next list above persons who are to be considered for inclusion in the subsequent list, even if they did not get actually promoted from the list in which they were initially included. Note (i) below sub-r.11 of R.28(b)(i) fortifies the legislative intention expressed in sub-r.(9) of R.28(b) of the Rules. 5. Learned Government Pleader submits that the petitioner was included in the 2002 list on the basis of an assessment of vacancies done during that year including anticipated vacancies and since expected number of vacancies did not arise, the petitioner could not be promoted. 5. Learned Government Pleader submits that the petitioner was included in the 2002 list on the basis of an assessment of vacancies done during that year including anticipated vacancies and since expected number of vacancies did not arise, the petitioner could not be promoted. According to the Government Pleader, the petitioner ought not to have been included in the 2002 list and if that is so, the revised list cannot contain his name in 2002 list. In that view of the matter, it is contended that the petitioner has no right to claim the benefit of sub-r.(9) or Note(i), below sub-r.(11) of R.28(b)(i) of K.S. & S.S.R. I am not able to agree with the above contentions of the learned Government Pleader. In my view, Note (i) below sub-r.(11) of R.28(b) takes care of the situation. The said provision cautions the authorities that the calculation of anticipated vacancies for the purpose of preparing annual or supplemental select lists shall be as accurately as possible. Therefore, it may so happen that the number of vacancies anticipated to arise may be either below the actual requirement or above the actual requirement. But once a list is prepared calculating the anticipatory vacancies, then sub-r.(9) of R.28(1) operates and the respondents cannot refuse to act according to the mandate of that provision. Learned counsel refers to Ext.R-1(a) judgments of this Court and says that revised list was prepared as directed by this Court. Ext.R-1(a) judgment does not deal with the assessment of vacancies much less the consequences that may flow from the preparation of select list on the basis of anticipatory vacancies as also the consequences that may emerge from the operation of sub-r.(9) of R.28(b)(i) of K.S. & S.S.R. Learned counsel for the petitioner submits that, Ext.R-1(a) judgment has no application to the facts of this case, and further, that this Court in Ext.R-1(a) was not dealing with cases of Industries Extension Officers eligible for promotion to the post of Assistant District Industries Officers. Ext.R-1(a) judgment deals with claims of promotion of Senior Co-operative Inspectors, who have got a different channel of promotion. Whatever that be, the issue to be decided in this case has no similarity with the issues decided by Ext.R-1(a) judgment. It is also to be seen that the petitioner was not a party to Ext.R-1(a) judgment. 6. Various other contentions have been raised in this Writ Petition. Whatever that be, the issue to be decided in this case has no similarity with the issues decided by Ext.R-1(a) judgment. It is also to be seen that the petitioner was not a party to Ext.R-1(a) judgment. 6. Various other contentions have been raised in this Writ Petition. However, I do not think that those contentions need be considered here because on the basis of the provisions of law referred to above, I am of the view that the petitioner is entitled to succeed. Hence, Exts.P3, P-4 and P-8 shall stand set aside to the extent the petitioner’s rights are prejudicially affected thereby. It is declared that the petitioner is entitled to be assigned rank No.1 in the select list for 2003 for promotion to the post of Assistant Industries Officer from the category of Industries Extension Officer. Respondent Nos.4 & 5 have to be ranked below the petitioner in the said list. It therefore, follows that the petitioner is entitled to be promoted to the post of Assistant District Industries Officer in preference to Respondents Nos.4 & 5. Hence there shall be a direction that the petitioner shall be promoted to the post of Assistant District Industries Officer from the date from which respondent No.4 was promoted to the said post. Service benefits that flow therefrom shall be worked out and made available to the petitioner as expeditiously as possible, in any event, within six weeks from the date of receipt of a coy of this judgment. The Writ Petitions is allowed of as above.