P BALACHANDRAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner is borne on the cadre of Assistant Director in the Animal Husbandry Department. On the strength of seniority in the post of Assistant Director, he is eligible to be considered by the Departmental Promotion Committee (Higher) for appointment to the post of Deputy Director in the department. However, in Ext. P2 notification published as per G.O. dated 01/09/2006, the petitioner's name is not included though 20 persons including his juniors find a place in that notification. If the petitioner's name had been included in Ext. P2, his place in the list would have been below serial No. 10 and above serial No. 11.

(2.) A statement has been filed on behalf of the respondents. It is contended that the Departmental Promotion Committee (Higher), while preparing the list of officers fit for promotion to the post of Deputy Director, had made discussions about the right of the petitioner for inclusion in the list and after due scrutiny of the files found that disciplinary proceedings were pending against him pursuant to Ext. P4 memo of charges. The petitioner has sought for a declaration that his supersession is unjust, illegal and against the statutory provisions in KS and SSR. The petitioner has also sought for a declaration that Ext. P4 memo of charges is vitiated by errors apparent on the face of the record and is illegal and unsustainable.

(3.) Heard both sides. The main contention urged by the petitioner is violation of Note (i) of R.28(b)(i)(7) of KS and SSR. It is pointed out that no proceedings, much less, any disciplinary proceedings for the imposition of major penalty were pending against him on the date the Departmental Promotion Committee held its meeting on 14/08/2006. Ext. P4 memo of charges, though dated 21/10/2005, was actually sent to the petitioner only on 16/09/2006. The allegation against the petitioner is that he committed serious irregularities by collecting contribution from outsiders misusing official position. In the statement of allegations it is stated that he in his capacity as President, Indian Veterinary Association had accepted a donation of Rs. one lakh from M/s. Indian Immunologicals Ltd. for shooting a video film on 'Foot and Mouth Disease' and being a Government servant the alleged act amounted to violation of the Kerala Government Servants' Conduct Rules, 1960. As on the date of framing Ext. P4 memo of charges neither the disciplinary authority nor any other superior authority had intended or was in a position to exactly identify that person whose name was referred to therein, as Dr. Balachandran. The statement of allegations which originally opened with the sentence 'you, Dr. P. Balanchandran, Veterinary Surgeon etc....' has been subsequently corrected as Dr. P. Balanchandran, Assistant Project Officer etc. It is admitted fact that there was some confusion as to the identity of the person against whom charges were framed as per Ext. P4 and that was why the memo of charge dated 21/10/2005 was forwarded by registered post A/D along with covering letter dated 16/09/2006. This being the fact situation, the petitioner could come to know of the memo of charge only after 16/09/2006. This aspect assumes significance in the context of the statement filed on behalf of the respondents that the members of the Departmental Promotion Committee had discussed the issue in detail in the background of the disciplinary proceedings pending against the petitioner as also the records of the case and after scrutiny of the relevant file had decided not to include the petitioner in the selection list of 2006. Counsel for the petitioner points out that such a consideration was impossible of performance on 14/08/2006, for, even the Government was not in a position to identify who exactly was the delinquent officer. Government could make up its mind as to who exactly is the delinquent employee, only in the month of September 2006, and therefore, the Departmental Promotion Committee which met in August, 2006 could not have made any deliberation with regard to the alleged misconduct of the petitioner, as matters stood on 14/08/2006. When the Government itself was not in a position to clearly identify who exactly was the delinquent officer, neither the convenor nor the members of the Departmental Promotion Committee could have scrutinised the relevant records on the assumption that the petitioner will be identified on a later date as the delinquent officer and that memo of charges will have to be forwarded to him. In my view that the above submission of the counsel for the petitioner is well founded.