AJITH A K Vs. SECRETARY

JUDGEMENT

(1.) Whether the Departmental Promotion Committee is competent to decide the rank of a person in the select list is the question to be decided in this case. R.28(b)(i)(7) of the K.S. & S.S.R. deals with the procedure for preparation of the select list. It is clearly stated in the rule that "Persons selected for inclusion in the select list shall be ranked in the select list according to their seniority in the feeder category". Despite such a clear provision, the contention advanced in the impugned Ext. P7 order passed by the Government is that the Departmental Promotion Committee has power to decide the rank in the select list also. The competence of the Departmental Promotion Committee, as rules stand now is only to decide the suitability of a person to be included in the select list. There is no doubt that the suitability is to be assessed based on the merit. Once an employee is found suitable or fit to be included in the select list, then the rank in the select list is to be solely based on the seniority in the feeder category. Reduction in rank is not the business of the Departmental Promotion Committee, as per the present scheme of the rules.

(2.) In the instant case, the petitioner joined service as Assistant Engineer, P.W.D. on 10/08/1979. In the select list of Assistant Engineers fit for promotion as Assistant Executive Engineers for the years 1997, 1998 and 1999, the petitioner was not included. Petitioner filed a representation. He moved this Court in OP 12903/99. Pursuant to the directions issued by this Court, an order was passed rejecting the representation of the petitioner, holding that he was not included in the select list because a vigilance enquiry was pending against him at the relevant time. He filed OP 5605/2000. In the judgment dated 05/04/2000, this Court directed the Government to pass final orders in the disciplinary proceedings. The disciplinary proceedings were finalised as per Ext. P1 order dated 07/07/2000 and a punishment of barring three increments with cumulative effect was imposed on him. In Ext. P2 notification dated 11/08/2000, pursuant to a review D.P.C., the petitioner was included in the select list of Assistant Engineers fit for promotion as Assistant Executive Engineers in respect of vacancies for the year 1999. According to the petitioner, he was not given proper placement, since the same does not reflect the seniority in the feeder category. The matter was pursued before the Government In Ext. P6 representation. That was rejected by Ext. P7 holding that "The D.P.C. has power to recommend suitability and the place in the select list of the persons to be included in the select list based on merit and ability".

(3.) The contention of the party respondents is that based on their rank in the select list, they obtained subsequent promotions. According to them, the petitioner ought not have been included in the select list for the year 1999, since he was serving the punishment. Only after the term of punishment, the petitioner could have been placed, if otherwise found suitable, at top in the list of the subsequent year. In that view of the matter, it is submitted that placing a person below in the select list for the year is the same as placing him at top in the subsequent list, it is submitted. I am afraid, that contention cannot be appreciated. The consequences are certainly different. But one contention which requires consideration is that the party respondents could not have challenged the inclusion of the petitioner as done in Exts. P2 and P3 since they were not to be affected by such placement, particularly since the impact of such inclusion is only when subsequent promotions are made to higher posts. Be that as it may, since the Government has not properly applied its mind on the crucial issue of the competence of the Departmental Promotion Committee for ranking a person found fit to be included in the select list, in any case, Ext. P7 has to be quashed and the matter has to be remitted to the Government. It will be open to the petitioner and the party respondents to take all their available contentions before the Government. I quash Ext. P7. There will be a direction to the first respondent to consider the issue with notice to the petitioner and the party respondents and pass appropriate orders thereon in accordance with law, within a period of four months from the date of receipt of a copy of the judgment. In order to facilitate the Government to advert to the contentions, the parties are free to submit their written submissions before the Government.