Dr.Raju Narayana Swamy Ias vs State Of Kerala
2023 Latest Caselaw 9279 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

        THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

                              &

           THE HONOURABLE MRS. JUSTICE SOPHY THOMAS

    FRIDAY, THE 25TH DAY OF AUGUST 2023 / 3RD BHADRA, 1945

                   OP (CAT) NO. 21 OF 2023

   AGAINST THE ORDER OA 199/2021 OF CENTRAL ADMINISTRATIVE
          TRIBUNAL, ERNAKULAM BENCH DATED 5/12/2022

PETITIONER/S:
          DR.RAJU NARAYANA SWAMY IAS.,AGED 54 YEAR
          SS/O.K.S.VENKITACHALAM IYER, PRESENTLY WORKING AS
          PRINCIPAL SECRETARY, PARLIAMENTARY AFFAIRS
          DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT,
          THIRUVANANTHAPURAM-695 001, RESIDING AT R.G.324
          ULLOOR GRAMAM, MEDICAL COLLEGE P.O.,
          THIRUVANANTHAPURAM, PIN - 695011
          BY ADVS.
          LAKSHMI RAMADAS
          P.RAVINDRAN (SR.)(R-341)
          M.R.SABU(000K/521/1989)
          APARNA RAJAN(K/851/2009)
          SREEDHAR RAVINDRAN(K/559/2012)


RESPONDENT/S:
     1    STATE OF KERALA,REPRESENTED BY ITS CHIEF SECRETARY,
          GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN -
          695001
     2    UNION OF INDIA,REPRESENTED BY ITS SECRETARY,
          DEPARTMENT OF PERSONNEL AND TRAINING, NEW DELHI, PIN
          - 110001
 OP (CAT)No.21/2023



                              -:2:-


    3      DR. A. JAYATHILAK IAS,ADDITIONAL CHIEF SECRETARY,
           REVENUE DEPARTMENT , SECRETARIAT, THIRUVANTHAPURAM,
           PIN - 695001
    4      ISHITA ROY IAS PRINCIPAL SECRETARY, AGRICULTURE,
           SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
           BY ADVS.
           PUBLIC PROSECUTOR/GOVERNMENT PLEADER SHRI ANTONY
           MUKKATH
           RAHUL KANDAMPULLY
           AJIT JOY
           RAAGA R.RAMALAKSHMI(K/628/2012)
           P.K.SURESH KUMAR (SR.)(S-793)
           ANEESH JAMES(K/214-D/2008)
           SAYUJYA(K/687-E/2014)


     THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 23.08.2023,
THE COURT ON 25/8/2023 DELIVERED THE FOLLOWING:
 OP (CAT)No.21/2023



                                   -:3:-




                             J U D G M E N T

A.Muhamed Mustaque, J.

This original petition was filed challenging the order of the

Central Administrative Tribunal (CAT), Ernakulam Bench. The

petitioner is the Seniormost IAS Officer and is currently the

Principal Secretary to Government. He approached the CAT as he was

not considered for apex scale promotion as the Chief Secretary. The

Central Administrative Tribunal, noting the procedure for the

appointment of the Chief Secretary, negated the challenge. This is

how the petitioner approached this Court challenging the said order

under Article 227 of the Constitution.

2. The learned Senior Counsel, referring to Annexure A8

relating to the promotion of members of the Indian Administrative

Service, argued that the petitioner is not claiming an appointment as

the Chief Secretary but only claiming a promotion to grade him as the

Chief Secretary. It is submitted that in the absence of any adverse

remarks in the ACR, he is entitled to be graded as the Chief Secretary OP (CAT)No.21/2023

on completion of 30 years of service as a member of the Indian

Administrative Service.

3. It is appropriate to refer to the principles relating to

promotion in the grade of Chief Secretary as referred in Annexure A8

office memorandum issued by the Government of India, Ministry of

Personnel P.G & Pensions, Department of Personnel & Training:

The zone of consideration for promotion in this grade would consist of all the members of the Service who have completed 30 years of service. Appointment in this grade would be made from amongst the officers thus cleared, at any time during the relevant year and subject to the provisions of rule 9(7) of the I.A.S. (Pay) Rules, 1954. The Screening Committee for this purpose shall consist of the Chief Secretary concerned, one officer working in this grade in the cadre and another officer of the cadre serving in Government of India in the same grade.

4. Promotion to the cadre of Chief Secretary will have to be

considered by a Screening Committee. It is further mentioned in

Annexure II of Annexure A8 office memorandum that all papers are to

be put up with the Screening Committee. It is specifically mentioned

in para.4(1) that 90% of the updated and completed ACR should be made

available with the committee. It seems that 90% of ACR related to

the petitioner was not unavailable. However, the Screening Committee

considered the petitioner with available records and rejected his

request for consideration to the grade of Chief Secretary. The Cabinet OP (CAT)No.21/2023

of the State Government approved the recommendations of the Screening

Committee. Upon approval by the cabinet, the petitioner made a

representation before the Government to include him for

promotion. Thereafter, he moved the CAT seeking consideration of the

representation. The Government considered the representation based

on the direction of the Tribunal and rejected the representation. The

petitioner challenging the rejection of the representation approached

the Tribunal. The Tribunal noting that 90% of ACR of the petitioner

was unavailable and considering that the petitioner had not challenged

the decision of the Screening Committee, dismissed the petition filed

by the petitioner.

5. The petitioner is a senior civil servant. He would have

been aware that 90% of his ACR was not available. The screening

committee was handicapped in considering his request for want of

ACR. The petitioner has a case that he had submitted a self-appraisal

form but nothing is available on record to show that he had submitted

the self-appraisal form. The Screening Committee considered the case

of the petitioner with the available records and found that

performance was not satisfactory. As seen from various ACRs produced

before this Court, and Annexure A8, the ACR has to be self generated

and to be reported before the Reporting Officer. Nothing prevents the OP (CAT)No.21/2023

petitioner from generating a self-appraisal form and making the

complete ACR available before the Screening Committee. The Committee

will have to meet at regular intervals to fill up various vacancies

during the course of year as seen from para.8 of Annexure A8. The

present exercise cannot be interfered with as the non-inclusion of

the petitioner was for want of ACR. Therefore, nothing prevents the

petitioner from moving the authorities for the preparation of his ACR

and making a request for considering him for the promotion in the

grade of Chief Secretary. As seen from Annexure A8, all members who

had completed 30 years of service are eligible for consideration for

promotion to the Grade of Chief Secretary. Thus, notwithstanding the

prayers in the petition, the petitioner is given liberty to move the

authorities for consideration to the post of Chief Secretary after

ensuring availability of 90% of his ACR. The original petition is

dismissed with the observations as above.

Sd/-

A.MUHAMED MUSTAQUE, JUDGE

Sd/-

SOPHY THOMAS, JUDGE

ms OP (CAT)No.21/2023

APPENDIX OF OP (CAT) 21/2023 PETITIONER ANNEXURES AnnexureA1 THE TRUE COPY OF THE DECISION OF COUNCIL OF MINISTERS DATED 24-12-2020 AnnexureA2 THE TRUE COPY OF THE REPRESENTATION DATED 10-02-2021 MADE BY THE APPLICANT TO THE 1ST RESPODENT AnnexureA3 THE TRUE COPY OF THE ORDER OF HON: C.A.T DATED 26-02-2021 IN O.A NO. 110 OF 2021 AnnexureA4 THE TRUE COPY OF A LETTER ISSUED BY THE 1ST RESPONDENT DATED 22-03-2021 AnnexureA5 THE TRUE COPY OF THE REPLY DATED 22-03-

2021 SENT BY THE APPLICANT TO THE 1ST RESPONDENT AnnexureA6 THE TRUE COPY OF THE LETTER DATED 12-04-

2021 SENT BY THE APPLICANT TO THE 1ST RESPODENT AnnexureA7 THE TRUE COPY OF THE G.O(RT) NO.1693/2021/GAD DATED 27-04-2021ISSUED BY THE 1ST RESPONDENT AnnexureA8 THE TRUE COPY OF THE O.M NO.20011/4/92-

AIS-II DATED 28-03-2000 AnnexureA9 THE TRUE COPY OF THE APPLICANT'S ANNUAL CONFIDENTIAL REPORT FOR THE PERIOD BETWEEN 1-4-1992 TO 24-8-1993 AnnexureA10 THE TRUE COPY OF THE APPLICANT'S ANNUAL CONFIDENTIAL REPORT FOR THE PERIOD OF 1991-1992 AND 1993 AnnexureA11 HE TRUE COPY OF THE APPLICANT'S ANNUAL CONFIDENTIAL REPORT FOR THE PERIOD BETWEEN 9-6-1999 AND 27-11-1999 AnnexureA12 THE TRUE COPY OF THE LETTER ISSUED BY THE REVIEWING AUTHORITY DATED 7-5-2015 AnnexureA13 THE TRUE COPY OF THE ORDER OF THE HON'BLE CHIEF MINISTER OF KERALA DATED 21-10-2013 AnnexureA14 THE TRUE COPY OF THE REPRESENTATION DATED 16-06-2014 MADE BY THE APPLICANT THROUGH EMAIL TO THE PRESIDENT , KERALA IAS OFFICERS ASSOCIATION OP (CAT)No.21/2023

AnnexureA15 THE TRUE COPY OF THE LETTER DATED 19-12-

2016 SENT BY THE THEN CHIEF SECRETARY, OF KERALA STATE TO SECRETARY DEPARTMENT OF PERSONNEL AND TRAINING AnnexureA16 THE TRUE COPY OF THE APPLICANT'S ANNUAL CONFIDENTIAL REPORT FOR 2005-2006 PERIOD OF THE APPLICANT AnnexureA17 THE TRUE COPY OF THE PERFORMANCE APPRAISAL REPORT OF THE APPLICANT FOR THE PERIOD BETWEEN 16-04-2012 AND 28-01-2013 AnnexureA18 THE TRUE COPY OF ALETTER DATED 12-08-2016 ISSUED BY THE 2ND RESPONDENT TO THE SENIOR CENTRAL GOVT. STANDING COUNSEL AnnexureA19 THE TRUE COPY OF THE G.O(RT) NO.1694/2021/GAD DATED 27-04-2021 AnnexureA20 THE TRUE COPY OF THE COMPLAINT DATED 9-3-

2021 MADE BY ONE KADAKKAVOOR VIKRAMAN ADDRESSED TO THE CHIEF SECRETARY, GOVT. OF KERALA AnnexureA21 THE TRUE COPY OF THE PERFORMANCE APPRAISAL REPORT OF THE APPLICANT FOR THE PERIOD BETWEEN 01-06-2016 AND 31-03-2017 AnnexureA22 THE TRUE COPY OF THE PERFORMANCE APPRAISAL REPORT OF THE APPLICANT FOR THE PERIOD BETWEEN 08-08-2018 TO 07-03-2019 AnnexureA23 THE TRUE COPY OF THE MINUTES OF THE SELECTION COMMITTEE HELD ON 16-11-2021 AnnexureA24 THE TRUE COPY OF THE REPLY NO.40/22/EKM DATED 15-01-2022 GIVEN BY THE DEPUTY SUPT.

OF POLICE VIGILANCE & ANTI-CORRUPTION BUREAU, ERNAKULAM UNIT AnnexureA25 THE TRUE COPY OF THE GOVT. ORDER GO(RT) NO.98/2022/GAD DATED 10-01-2022 ISSUED BY THE GOVT AnnexureA26 THE TRUE COPY OF THE O.M.NO. 36/01 /2022-

EO(SM-| ) DATED 15-09-2022 ISSUED BY THE DEPARTMENT OF PERSONNEL AND TRAINING, UNION OF INDIA (NOT MARKED BY CAT) AnnexureA27 THE TRUE COPY OF THE LETTER NO.

454/SC2/2022GA(SC) DATED 13-09-2022 OP (CAT)No.21/2023

AnnexureR1(A) TRUE COPY OF THE G.O(RT) NO.2316/2014/GAD DATED 19-03-2014 AnnexureR1(B) THE TRUE COPY OF DOPT LETTER DATED 20-05-

AnnexureR1(C) THE TRUE COPY OF DOPT LETTER DATED 09-06-

AnnexureR1(D) THE TRUE COPY OF THE ENQUIRY REPORT DATED 15-05-2019 Annexure R1(E) THE TRUE COPY OF THE FINAL ORDER PASSED BY THE CENTRAL ADMINISTARTIVE TRIBUNAL , MADRAS BENCH IN O.A NO. 1011/2019 Annexure R1(F) THE TRUE COPY OF G.O.(P) NO.250/1988/GAD DATED 26-07-1998 Annexure R1(G) THE TRUE COPY OF THE DOPT LETTER NO.10/16/2011-EO(PR) DATED 05-04-2016 Annexure R1(I) TRUE COPY OF G.O (RT) NO. 1065/2022/GAD DATED 11-03-2022 ISSUED BY THE CHIEF SECRETARY Annexure R1(H) THE TRUE COPY OF THE G.O(RT) NO.

856/2022/GAD DATED 26-02-2022 ExhibitP1 THE TRUE COPY OF THE ORDER PASSED BY THE HON: CENTRAL ADMINISTRATIVE TRIBUNAL DATED 05-12-2022 IN O.A NO. 180/199/2021 ExhibitP2 THE TRUE COPY OF THE ORIGINAL APPLICATION ALONG WITH ANNEXURES FILED BY THE PETITIONER BEFORE THE HON: CAT, ERNAKULAM BENCH IN O.A NO. 180/199/2021 ExhibitP2(a) THE TRUE COPY OF THE MISC. APPLICATION FILED BY THE PETITIONER /APPLICANT AS M.A NO. 814 / 2021 ExhibitP2(b) THE TRUE COPY OF THE MISC. APPLICATION FILED BY THE PETITIONER /APPLICANT AS M.A NO. 75 / 2022 ExhibitP2(c) THE TRUE COPY OF THE MISC. APPLICATION FILED BY THE PETITIONER /APPLICANT AS M.A NO. 754 / 2022 Exhibit P2(d) THE TRUE COPY OF THE MISC. APPLICATION FILED BY THE PETITIONER /APPLICANT AS M.A NO. 812 / 20222 OP (CAT)No.21/2023

ExhibitP3 THE TRUE COPY OF THE REPLY STATEMENT FILED BY THE 1ST RESPONDENT Exhibit P3(a) THE TRUE COPY OF THE REPLY STATEMENT FILED BY THE 1ST RESPONDENT IN M.A NO. 75 / 2022 Exhibit P3(b) THE TRUE COPY OF THE MISC APPLICATION FILED BY THE PETITIONER IN M.A NO. 335 /

ExhibitP3(c) THE TRUE COPY OF THE REPLY STATEMENT FILED BY THE 1ST RESPONDENT IN M.A NO. 335 /

ExhibitP3(d) THE TRUE COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE 1ST RESPONDENT IN THE O.A Exhibit P3(e) THE TRUE COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE 1ST RESPONDENT IN M.A NO. 75 / 2022 Exhibit P4 A TRUE COPY OF G.O (RT) NO. 1065/2022/GAD DATED 11-03-2022 ISSUED BY THE CHIEF SECRETARY, SRI. V.P.JOY Exhibit P5 TRUE COPY OF THE REPLY STATEMENT FILED BY THE 3RD RESPONDENT ExhibitP6 THE TRUE COPY OF THE REJOINDER FILED BY THE PETITIONER/APPLICANT Exhibit P6(a) THE TRUE COPY OF THE MISC. APPLICATION FILED BY THE PETITIONER /APPLICANT AS M.A NO. 164 / 2022 Exhibit P7 THE TRUE COPY OF THE PROCEEDINGS OF THE CAT, ERNAKULAM BENCH IN O.A NO. 199/2021 ExhibitP8 TRUE COPY OF OM NO.21011/1/2010-ESTT A DATED 13.04.2010 ISSUED BY THE 2ND RESPONDENT ExhibitP9 THE TRUE COPY OF THE ER SHEET OF DR.ASHA THOMAS, WHO WAS A MEMBER OF THE SCREENING COMMITTEE ON 16-11-2021 ExhibitP10 THE TRUE COPY OF THE ER SHEET OF SRI.

KAMALA VARDHANA RAO Exhibit P11 TRUE COPY OF THE MINUTES OF THE SCREENING COMMITTEE DATED 02-11-2022 OP (CAT)No.21/2023

Exhibit P12 A TRUE COPY OF G.O (RT) NO. 2836/2017/GAD DATED 06/05/2017 Exhibit P12(a) THE TRUE COPY OF THE CABINET DECISION DATED 25-08-2016 Exhibit P13 THE TRUE COPY OF THE DOP&T NOTIFICATION NO.11059/5/91-AIS III DATED 05.03.1992. Exhibit P14 A TRUE COPY OF THE REPLY RECEIVED BY THE PETITIONER IN RESPONSE TO AN RTI APPLICATION IN THIS REGARD DATED 24-12-

Exhibit P15 A TRUE COPY OF G.O(MS) NO. 159/2018/GAD DATED 23-07-2018 Exhibit P16 THE TRUE COPY OF THE THE JUDGMENT OF THIS HON'BLE COURT DATED 04/08/2021 IN OP(CRL) NO. 165 OF 2021 Exhibit P17 TRUE COPY OF THE COMPLAINT GIVEN BY KUMMANM RAJASEKHARAN DATED 31-8-2021 Exhibit P18 THE TRUE COPY OF THE ORDER DATED 25/09/2021 OF THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, KOZHIKODE IN CMP 512/2019 WHEREIN SRI. K.JAYAKUMAR IS THE FIRST ACCUSED Exhibit P19 A TRUE COPY OF THE COMMON JUDGMENT DATED 08/12/2022 IN WP(C)NO. 38265/ 2022 ,38375/ 2022 AND 38389 OF 2022 Exhibit P20 A SUMMARY OF THE THREE SCREENING COMMITTEE PROCEEDINGS Exhibit P21 TRUE COPY OF THE PAR OF THE APPLICANT FOR THE PERIOD FROM 01/04/2021 TO 31/03/2022