E VELAPPAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner, then a Ranger in the Kerala Forest Subordinate Service, was entitled for being considered for recruitment by transfer as Assistant Conservator in the Kerala Forest Service, havingregard to the fact that he possessed the two qualifications prescribed for recruitment by transfer as Assistant Conservator. On 6-10-1997, the Departmental Promotion Committee met for preparation of select list in terms of Rule 28(b)(i) of Part II of Kerala State & Subordinate Services Rules for the vacancy of Assistant Conservator that arose on 14-3-1996.

(2.) While the confidential reports of the Officers being assessed for the purpose of preparation of that select list, going by the provisions of Rule 28(b)(i)(4), are those relatable to the preceding three years, thereby, not the previous date of occurrence of vacancy, Note (i) under Rule 28(b)(i)(7) provides a method of dealing with the cases of officers who are either under suspension, facing disciplinary proceedings, involved in criminal cases or in vigilance proceedings. Note (i) under Rule 28(b)(i)(7) being a Note, is not intended to dilute, in any manner, the run and rigour of the Rule to which the Note is made. Therefore, the DPC was obliged in terms of Rule 28(b)(i) to consider the case of all the persons eligible for being considered for appointment to the said selection post. All that Note (i) to Rule 28(b)(i)(7) says is that in cases where an embargo is placed to the inclusion of persons facing proceedings referred to in that Note, in the select list, the cases of those persons will also have to be considered by the DPC, however that the DPC proceedings need only contain a note that "the findings are recorded in the attached sheet of paper" and the findings are required to be placed in a sealed cover. This device in the Rule ensures that the same DPC considers the cases of persons who could aspire for a selection post by promotion or by transfer and further that there would be a comparative evaluation of merit and ability of all such persons by the same Committee. This would sustain the credibility of the selection by ensuring that the yardstick applied appropriately goes through the merit, ability, credentials and all available data in relation to the competing candidates at a relevant point of time. After such results are arrived at, in view of the public interest involved, there is an embargo from including persons against whom there are proceedings referred-to in Note (i), in the select list and therefore, they would not be included but the findings as regards them are to be placed in a sealed cover. If ultimately the proceedings referred to in Note (i) get exhausted in favour of the employee, the findings of the DPC, resting inside the sealed cover would be taken out and appropriate action will follow on the basis of that. This is the method in which Note (i) has to work.

(3.) But, unfortunately, in this case, in spite of the DPC being headed by a Member of the PSC and in spite of top ranking executives of the State being on the Committee, Note (i) of Rule 28(b)(i)(7) stands flouted. The non-following of that Note in this case has led to the situation where the only plea that the Government now offers in support of its decision not to consider the petitioner in that DPC was that he was placed under suspension on 15-54997 and that he was facing certain vigilance proceedings. The order of suspension of the petitioner on 15-5-1997 was stayed by this Court in O.P. No. 8461 of 1997. Therefore, the fact that the petitioner was placed under suspension was one irrelevant to exclude him from the list when the DPC met on 6-10-1997, even going by Note (i). In so far as vigilance proceedings or departmental proceedings are concerned, the embargo against inclusion is only in the case of those officers against whom such proceedings are taken after the charges have been established in a preliminary enquiry. Indisputably, such a situation had also not arisen. Therefore, it goes without saying that had the DPC found the petitioner entitled to be included in the select list, his non-inclusion in the select list on the two counts urged by the Government would be illegal.