P N DEVARAJAN Vs. RUBBER BOARD

JUDGEMENT

(1.) The petitioner, an employee of the Rubber Board, Kottayam (2nd respondent) which is a statutory Body constituted and governed under the Rubber Act, 1947, has prayed for issue of a direction to quash Exts. P3, P7 and P9 and by a subsequent petition he has also prayed for restoration of his seniority in the promotion post which was overlooked when his juniors, namely respondents 4 to 26, were promoted.

(2.) By Ext. P3 penalty of withholding the increment for a period of three months without cumulative effect was imposed on the petitioner. By Ext. P7 his appeal against the penalty imposed in the disciplinary proceeding was dismissed by the Government of India, Ministry of Commerce, New Delhi (1st respondent). By Ext. P9 the appeal against the order of promotion of respondents 4 to 26 in supersession of his claim to the post of Upper Division Clerk from that the Lower Division Clerk was rejected. Since, during the pendency of the Original Petition he was promoted to the post of U. D. Clerk, he has now claimed that his position of seniority in the gradation list of L. D. Clerk may be directed to be restored in the gradation list of U. D. Clerks above respondents 4 to 26.

(3.) The petitioner's service as L. D. Clerk was confirmed with effect from 1.10.1985. While serving as L. D. Clerk the second respondent initiated disciplinary action against him under R.12 of the Rubber Board Service (Classification, Control and Appeal) Rules, 1961 by Memo No. C1/20/86/Vig. dated 12.6.1987. The charge against him was that he failed to carry out the lawful and clear orders of his superiors thereby committing wilful insubordination and dereliction of duty. The petitioner was given an opportunity to make a representation against the memo of charges. After taking into consideration his representation dated 24.6.1987, wherein he has expressed his regret for the misconduct and assured the disciplinary authority that such misconduct will not be repeated in future, the disciplinary authority (2nd respondent) imposed the aforesaid penalty. The appeal filed under R.18 of the Rubber Board Service (Classification, Control and Appeal) Rules, 1961 (for short, the Rules) against the penalty was dismissed by the first respondent, by order dated 16.2.1988 (Ext. P7). While so, by Ext. P5 order dated 24.9.1987, the second respondent promoted respondents 4 to 26, who were junior to him, by overlooking his seniority to the posts of Upper Division Clerk on the recommendation of the Departmental Promotion Committee (for short, the DPC). The petitioner filed O.P. No. 9316 of 1987 before this Court challenging Ext. P5 memorandum dated 24.9.1987 relating to the promotion of respondents 4 to 26. This Court, by judgment dated 8.6.1988, disposed of the O.P. with a direction to the petitioner to file an appeal as provided in R.19 of the Rules. Accordingly, the petitioner filed Ext. P8 appeal before the Government of India. However, the appeal was dismissed by Ext. P9 order by the first respondent. Subsequently, he was promoted as U. D. Clerk on 16.6.1988. But, he was not given his earlier position of seniority above respondents 4 to 26 in the promotion post as per the gradation list issued on 31.3. 1994. It is contended by the petitioner that the post of U. D. Clerk was not a selection post. The qualified L. D. Clerks are to be promoted strictly on the basis of seniority. An employee whose increments have been withheld cannot be considered to be ineligible for promotion to the higher grade as the specific penalty of withholding promotion has not been imposed on him. The denial of promotion to the petitioner amounts to imposition of double penalty which is unsustainable in law. Stoppage of increment will have no effect whatsoever on the seniority of the petitioner. Respondents 1 and 2 are, therefore, bound to grant promotion to him with effect from 24.9.1987 and he should be given seniority above respondents 4 to 26 from that date when they were promoted by Ext. P5 order. It is further contended that the second respondent, under similar circumstances, gave promotion with retrospective effect to one Kunjunni in pursuance of the direction of this Court in O. P. No. 6040 of 1985 (reported in 1995 (1) KLJ 253 - FB). The case of the petitioner being similar to that of Sri. Kunjunni and in view of the Circular dated 30-8-1990 (Ext. P10) he should be promoted with retrospective effect.