Dismissed

Biju.P.C., v. State of Kerala

Kerala HC20 Mar 2024WP(C)/31207/2023

Case brief

AI extract

What is this about?

Writ petition challenging non-inclusion in promotion select list due to pending sexual harassment criminal case before JFCM. Court held JFCM is not exempt from the rule and ordered petitioner's inclusion in the list.

What did the court decide?

Directed the 3rd respondent to include the petitioner in the revised select list for Superintending Engineer/Deputy Chief Engineer post and recast the list accordingly.

Biju.P.C., Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2024)

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WPC 31207/23

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: 1:

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE BASANT BALAJI

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WEDNESDAY, THE 20TH DAY OF MARCH 2024 / 30TH PHALGUNA, 1945
WP(C) NO.31207 OF 2023

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PETITIONER/S:

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BIJU.P.C., AGED 50 YEARS S/O. P.K. CHATHUKUTTY, EXECUTIVE
ENGINEER, P.H.DIVISION, KERALA WATER AUTHORITY, SULTAN
BATHERY, WAYANAD, PIN - 673123

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BY ADVS. ELVIN PETER, P.J. K.R.GANESH GOURI BALAGOPAL
ABHIJITH.K.ANIRUDHAN, SREELEKSHMI A.S.

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RESPONDENT/S:

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1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, KERALA WATER RESOURCES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001

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2 THE KERALA WATER AUTHORITY REPRESETNED BY ITS MANAGING DIRECTOR, JALABHAVAN, THIRUVANANTHAPURAM, PIN - 695001

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3 THE DEPARTMENTAL PROMOTION COMMITTEE (TECHNICAL HIGHER), FOR PREPARING SELECT LIST FOR THE POST OF SUPERINTENDING ENGINEERS/ DEPUTY CHIEF ENGINEERS OF KERALA WATER AUTHORITY, REPRESENTED BY ITS CONVENOR (MANAGING DIRECTOR), KERALA WATER AUTHORITY, JALABHAVAN, THIRUVANANTHAPURAM, PIN - 695001

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BY ADV P.M.JOHNY

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OTHER PRESENT:

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GP SMT PRINCY XAVIER.

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
20.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WPC 31207/23

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JUDGMENT

(Dated this the 20^th day of March, 2024)

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The petitioner is working as Executive Engineer in the 2^nd

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respondent. For the promotion to the post of Superintending Engineer/ Deputy Chief Engineer in Kerala Water Authority, departmental promotion committee was held on 20.12.2022 and

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selection list was published as per Ext.P8 by the 3^rd respondent

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DPC on 16.12.2023. The petitioner is placed as Rank No.36 in

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the seniority list, but he has been superseded for the reason that a criminal case, was pending as C.C. No.305 of 2021 before the

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court of the JFCM-1, Kozhikode. Challenging the noninclusion of the petitioner in Ext.P8 list, he has approached this court with the following reliefs:

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(i) Issue a writ of mandamus directing the respondents to promote the petitioner to the post of Superintending Engineer in the Kerala Water Authority in one of the vacancies occurred in the year 2023.

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(i)(a)to issue a writ of certiorari calling for the records leading to Ext.P8 and quash the same to the extent it supersedes the petitioner while including the juniors of the petitioner;

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WPC 31207/23

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: 3:

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(i)(b) to issue a writ of mandamus or any other appropriate writ, order or direction directing the 3rd respondent to convene an Adhoc DPC and include the petitioner in Ext.P8 select list above Sl. No. 12 who is Rank No. 37 in the seniority list Sri. Harikrishnan.M. and below Sl.No. 11A who is Rank No. 35 Sri. Sathya Wilson in the seniority list of Executive Engineer as Sl. No. 11- B;

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(ii) To issue a writ of Mandamus directing the respondents to keep one post of Superintending Engineer vacant till JFCM-I, Kozhikode decides the case CC No. 305/2021 as has held in Ext. P5 and P6 Judgments;

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(iii) To declare that the petitioner is entitled to get one post of Superintending Engineer to be kept vacant;

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(iv) It is humbly prayed that this Hon’ble Court may be pleased to dispense with filing of English translation of Vernacular Documents.

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(v) To issue such other writ, order or direction as this Hon’ble Court deem fit and proper in the facts and circumstances of the case.

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A statement is filed on behalf of respondent Nos.2 and

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3, wherein it is contended that one Smt.Anoopa C K., D’man

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Gr.I, Kerala Water Authority had filed a petition before the

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Internal Complaints Committee of the Kerala Water Authority

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WPC 31207/23

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: 4:

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against the petitioner and the complaint was sexual harassment. The then Executive Engineer, Project Division, Kozhikode, after hearing the petitioner and the witnesses, and examining the evidence/documents, referred the matter to the police authorities for initiation of proceedings against the petitioner. The case was registered as FIR No.281/2021 against the petitioner and it is now pending as C.C No.305 of 2021 before the JFMC-1, Kozhikode.

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It is also submitted that the criminal case against the petitioner is in the nature of a grave offence of sexual harassment against subordinate lady staff and therefore, invoking rule under Note (i) to sub rule (7) of Rule 28(b)(i) of the Kerala State & Subordinate Service Rules (KS & SSR) 1958, the petitioner was superseded in DPC, as per the decision taken on 20.12.2022 by the DPC. It is also stated that the petitioner’s claim will be considered if he is qualified under the provisions of s ub rule (7)

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WPC 31207/23

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: 5:

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of 28(b)(i ) of the KS & SSR and the petitioner will be given the

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benefit without any delay.

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4. Heard the counsel Shri.Elvin Peter P.J. for the petitioner, standing counsel Shri.P.M.Johny and the Government Pleader Smt.Princy Xavier.

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5. Note (i) to Rule 28(b)(i) sub Rule 7 of KS & SSR reads

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as follows:

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Note.- (i) Officers under suspension and officers against whom criminal proceedings are pending in a Sessions Court or in any other higher Court for grave offences like murder, dacoity, etc; and Officers against whom departmental proceedings are taken for the imposition of a major penalty under the disciplinary rules applicable to them should not be included in the select list.

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The counsel for the petitioner argues that the FIR registered against the petitioner is for the offence under Section 354D(i) IPC and the case is pending before the JFCM-1, Kozhikode. The above note clearly exempt the officer, against whom proceeding are pending before the

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WPC 31207/23

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: 6:

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Sessions Court or any other Higher Court. Since the case is

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pending before the JFCM Court, invoking the said note, the DPC should have included the petitioner in the list and ought not have superseded. It is also brought to the notice that he has approached this court invoking section 482 Cr.P.C. for quashing FIR which was failed, and he approached the apex court in SLP(Crl.) No.16502 of 2023 and the apex court has dismissed it . It is also a fact that no charge has been framed by the competent criminal court. Therefore, going by Note (i) to sub rule (7) of Rule 28(b)(i), it is very clear that the non inclusion of the petitioner in the DPC is illegal.

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Going by Ext.P8 itself, the seniority of the petitioner for the post of Superintending Engineer is Sl.No.36. In the revised list for the year 2020-23, the petitioner ought to have been placed between 11A and 12, as his seniority rank is

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Therefore, the revised list of Superintending Engineer

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WPC 31207/23

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: 7:

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drawn as per Ext.P8, to the extent of non inclusion of the petitioner is illegal.

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In the result, this Writ Petition is disposed of directing the 3^rd respondent to include the petitioner in the revised select list for the post of Superintending Engineer/ Deputy Chief Engineer in the Kerala Water Authority, in between 11A – 12 and to recast the same. It is also directed that on the basis of the said re-casted list, the promotion shall be

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effected in the department.

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Sd/-

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BASANT BALAJI, JUDGE

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dl/

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WPC 31207/23 : 8:

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APPENDIX OF WP(C) 31207/2023

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PETITIONER EXHIBITS

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EXHIBIT P1 TRUE COPY OF THE GAZETTE NOTIFICATION NO. 16443/E9/2020/KWA DATED 01.02.2023

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EXHIBIT P2 TRUE COPY OF THE RELEVANT EXTRACT OF THE FINAL REPORT DATED 19.07.2021 SUBMITTED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOZHIKODE IN C.C. NO. 305/2021

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EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 23.08.2023 IN W.P.(C) NO, 4777/2023

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EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 14.09.2023 IN R.P. NO. 951/2023 IN W.P C 4777/2023

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EXHIBIT P5 TRUE COPY OF THE ORDER DATED 30.05.2023 IN W.P.(C) NO. 17413/2023

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EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 11.08.2023 IN W.P.(C) NO. 17413/2023

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EXHIBIT P7 TRUE COPY OF THE INTERIM ORDER DATED 16.01.2024 PASSED BY THE HON'BLE SUPREME COURT IN SPECIAL LEAVE TO APPEAL (CRL.) NO. 16502/2023.

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EXHIBIT P8 TRUE COPY OF THE SELECT LIST OF EXECUTIVE ENGINEERS FOR PROMOTION TO THE POST OF SUPERINTENDING ENGINEERS IN THE KERALA WATER AUTHORITY APPROVED BY THE GOVERNMENT AND PUBLISHED IN THE GAZETTE DATED 28.12.2023.

Biju.P.C., v. State of Kerala

Case brief

What is this about?

What did the court decide?

Biju.P.C., v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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