A. Anilkumar v Union of India and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **THURSDAY, THE 05TH DAY OF SEPTEMBER 2019 / 14TH BHADRA, 1941** **OP (CAT).No.207 OF 2019** **AGAINST THE ORDER DATED 09-08-2019 IN O.A.NO.180/00869/2018 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** ## **PETITIONER/APPLICANT:** **A.ANILKUMAR, S/O.THE LATE ARUMUGHAN PILLAI, AGED 58 YEARS SUPERINTENDENT OF POLICE (RETIRED FROM STATE SERVICE), INTERNAL SECURITY INVESTIGATION TEAM KERALA, HILL PALACE, TRIPUNITHURA, RESIDING AT 'SREEPADAM', EAST KADUNGALLOOR, U.C.COLLEGE P.O., ALUVA, ERNAKULAM - 683 102.** **BY ADVS. SRI.O.V.RADHAKRISHNAN (SR.) SMT.K.RADHAMANI AMMA SRI.P.KRISHNANKUTTY NAIR (KOLLAMALA)** ## **RESPONDENTS/RESPONDENTS:** **1 UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF HOME AFFAIRS, GOVERNMENT OF INDIA, NEW DELHI - 110 001. 2 STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 3 UNION PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, SHAJAHAN ROAD, NEW DELHI - 110 069.** OP(CAT).No.207 of 2019 2 **4 THE SELECTION COMMITTEE, FOR SELECTION TO THE INDIA POLICE SERVICE, CONSTITUTED UNDER REGULATION 3 OF THE IPS (APPOINTMENT BY PROMOTION) REGULATION, 1955, REPRESENTED BY ITS CHAIRMAN, UNION PUBLIC SERVICE COMMISSION, SHAJAHAN ROAD, NEW DELHI - 110 069. 5 STATE POLICE CHIEF, KERALA POLICE HEADQUARTERS, THIRUVANANTHAPURAM - 695 001. 6 C.K.RAMACHANDRAN, SUPERINTENDENT OF POLICE (RETIRED), RESIDING AT 'KRISHNA KRIPA', MAVILCHUVADU, MUKKATTUKARA, MANNUTHY, THRISSUR DISTRICT - 680 651.** **R1 BY ASST. SOLICITOR GENERAL SRI.P.VIJAYAKUMAR R2 & R5 BY SR.GOVT.PLEADER SRI.P.N.SANTHOSH R3 & R4 BY SRI.THOMAS MATHEW NELLIMOOTTIL,SC UPSC R6 BY ADV. DR.K.P.SATHEESAN (SR.) R6 BY ADV. SRI.P.MOHANDAS (ERNAKULAM) R6 BY ADV. SRI.S.VIBHEESHANAN R6 BY ADV. SRI.K.SUDHINKUMAR R6 BY ADV. SRI.S.K.ADHITHYAN R6 BY ADV. SRI.SABU PULLAN ADV.SRI.S.RAMESH AS AMICUS CURIAE** ## **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 04-09-2019, THE** **COURT ON 05-09-2019 DELIVERED THE FOLLOWING:** OP(CAT).No.207 of 2019 3 “CR” ## Judgment ## Chitambaresh, J. 1.A select list of the year 2016 containing the names of State Police Service Officers of Kerala was prepared by the Selection Committee to fill up 13 substantive vacancies in the Kerala Cadre of Indian Police Service. The same was done in accordance with the Indian Police Service (Appointment by Promotion) Regulations, 1955 (hereinafter referred to as 'the Regulations'). The petitioner contends that he is next in line in the assessment for the select list and would have been selected for appointment by promotion had not the sixth respondent been included therein. The petitioner objects to the inclusion of the sixth respondent in the select list on the ground that he was placed under suspension in view of his involvement in a custodial death case. The sixth respondent was implicated in the criminal case on the allegation that he as superior police officer had given directions to manipulate the records to screen the culprits. The petitioner asserts that what is lacking in the sixth respondent is not only integrity but also continuous service of eight years in the post of OP(CAT).No.207 of 2019 4 Deputy Superintendent of Police. The petitioner adds that the span of suspension for a period of about 1½ years breaks the continuous service of the sixth respondent who ought not to have been included. 2.The respondents point out that the inclusion of the sixth respondent in the select list was inevitable notwithstanding the pendency of the disciplinary proceedings or the criminal case as per the Regulations. The respondents contend that the criminal case is still pending and the sixth respondent though provisionally included was not selected for appointment by promotion. This is because the State Government has withheld the integrity certificate to the sixth respondent which is essential for him to be so considered for appointment. The respondents add that the meeting of the selection committee was held on 4.7.2018 and therefore the select list can remain in force only till 31[st] day of December, 2018. The respondents urge that the inclusion of the petitioner too in the assessment for the select list was only provisional and the appointment cannot be made after the select list has ceased to be in force. OP(CAT).No.207 of 2019 5 3.We heard Mr O.V.Radhakrishnan, Senior Advocate on behalf of the petitioner, Mr P.Vijayakumar, Assistant Solicitor General, Mr Thomas Mathew Nellimoottil, Standing Counsel for the Union Public Service Commission, Mr P.N.Santhosh, Senior Government Pleader, Mr K.P.Satheesan, Senior Advocate for the sixth respondent and Mr S.Ramesh, Advocate as amicus curiae. 4.The relevant part of Clause 5(5) of the Regulations is as follows: “5(5) The list shall be prepared by including the required number of names, first among the officers finally classified as 'Outstanding'. Then from among those similarly classified as 'Very Good' and thereafter from amongst those similarly classified as 'Good' and the order of names inter-se within each category shall be in the order of their seniority in the State Police Force: Provided that the name of an officer so included in the select list shall be treated as provisional, if the State Government, withholds the integrity certificate in respect of such an officer of any proceedings, departmental or criminal, are pending against him or anything adverse against him which renders him unsuitable for appointment to the service has come to the notice of the State Government.” The Supreme Court dealing with similar Regulations in the context of promotion to the Indian Forest Service observed in OP(CAT).No.207 of 2019 6 ## Union Public Service Commission v. S.Thyagarajan and others [CDJ 2007 SC 173] as follows: “Further, the courts below did not appreciate that the under the Promotion Regulations, an officer who is included in the zone of consideration has to be considered by the Selection Committee even if disciplinary proceedings are pending against him. The name of such an officer is included provisionally in the select list, if he is otherwise found suitable for inclusion.” The inclusion of the sixth respondent provisionally in the select list cannot therefore be faulted with merely because he is under suspension from service consequent to his involvement in a crime. The sixth respondent was not selected for promotion to the Indian Police Service in the absence of an integrity certificate by the State Government owing to the pendency of the criminal case. - 5.The relevant part of Clause 5(2) of the Regulations is as follows: - “5(2) The Committee shall consider for inclusion to the said list, the cases of members of the State Police Service in the order of a seniority in that service of a number which is equal to three times the number referred in sub-regulation (1). OP(CAT).No.207 of 2019 7 xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx Provided also that the Committee shall not consider the case of a member of the State Police Service unless, on the first day of January of the year for which the select list is prepared he is substantive in the State Police Service and has completed not less than eight years of continuous service (whether officiating or substantive) in the post of Deputy Superintendent of Police or in any other post or posts declared equivalent to by the State Government.” The service of the sixth respondent in the substantive capacity as Deputy Superintendent of Police had commenced on 11.1.2006 and almost ten years of continuous service rolled by as on 1.1.2016. The period of suspension of the sixth respondent from 20.5.2010 to 27.11.2011 does not detract from the continuity in service as the same could even be regularised eventually. Everything depends upon the will of the Government dependent on the culmination of the criminal case and it would be premature now to hold that there is a break in service. The sixth respondent had drawn subsistence allowance during the period of suspension which is not possible had he not continued as Deputy Superintendent of Police. The order of suspension merely disabled the sixth respondent from discharging his duty in the OP(CAT).No.207 of 2019 8 officiating post though the period would be reckoned as continuous service therein. 6.This Court dealing with similar Regulations in the context of promotion to the Indian Administrative Service observed in P.C.Kunhikrishnan Nambiar and another v. State of Kerala [1964 KLT 704(FB)] as follows: “In the ordinary sense of the words in the context of service, “to officiate” is to “perform the duties of an ” “ ” “ ” office , and substantive means permanent . Substantive service therefore means service as a permanent holder of an office, and, in contradistinction, officiating service means service rendered as a non-permanent holder. In fact, all service which is not substantive is officiating, and it seems clear that the words, “whether officiating or substantive” are used in the Regulation to mean “whether substantive or not.” The word “service” by itself without any qualification would ordinarily comprise all service and the words “whether officiating or substantive” are put in brackets after the word “service” only in order to emphasise that all service, of whatever kind, counts. The regulation divides service into two categories, officiating and substantive, and does not contemplate a third, and what it says, is that all service, whether officiating or substantive, counts. It was necessary to clarify that all service, whether officiating or substantive, counts lest OP(CAT).No.207 of 2019 9 it be thought, in view of the fact that only substantive members of the State Civil Service are eligible, that the eight years of qualifying service should also be substantive. The purpose of the regulation is obviously that a candidate, in order to be eligible, must have a certain status and a certain experience. He must be a substantive member of a State Civil Service that must be his status and he must have ' eight years experience as a Deputy Collector. And, for the purpose, of that experience, it is sufficient that he should have performed the duties of the post it does not matter whether or not he performs them in a substantive capacity.” (emphasis supplied) The sixth respondent had evidently discharged his duty in a substantive capacity for a total period of about 8½ years even if the period of suspension for about 1½ years is eschewed from the total stint of service. 7.The relevant part of Clause 7(4) of the Regulations is as follows: “7(4) The select list shall remain in force till 31[st] day of December of the year in which the meeting of the selection committee was held with a view to prepare the list under sub-regulation (1) of Regulation 5 or up to sixty days from the date of approval of the select list by the Commission under sub-regulation (1) or, as the case may be, finally approved under subregulation (2), whichever is earlier. OP(CAT).No.207 of 2019 10 Provided that where the State Government has forwarded the proposal to declare a provisionally included officer in the Select List as 'unconditional' to the Commission during the period when the select list was in force, the Commission shall decide the matter within a period of forty-five days or before the date of meeting of the next selection committee, whichever is earlier and if the Commission declares the inclusion of the provisionally included officer in the Select List as unconditional and final, the appointment of the concerned officer shall be considered by the Central Government under regulation 9 and such appointment shall not be invalid merely for the reason that it was made after the Select List ceased to be in force.” The necessary corollary therefore is that the appointment made after the select list has ceased to be in force shall be invalid unless there is a declaration that the inclusion of the officer therein is 'unconditional'. The assessment for the select list cannot survive the select list which has ceased to be in force beyond 31.12.2018 since the meeting of the selection committee was held on 4.7.2018. The petitioner can stake a claim for appointment notwithstanding that the select list has ceased to be in force only if his inclusion in the select list is unconditional. OP(CAT).No.207 of 2019 **==> picture [11 x 8] intentionally omitted <==** 8.The inclusion of the sixth respondent in the select list provisionally subject to clearance in the disciplinary and criminal proceedings and the grant of integrity certificate is in consonance with the Regulations. The petitioner cannot be selected for appointment so long as the inclusion of the sixth respondent in the select list stands who is also admittedly placed above. The Tribunal was justified in repelling the contentions of the petitioner against the select list and dismissing his original application filed for promotion to the Indian Police Service. 9.Mr S. Ramesh, Advocate who argued as amicus curiae deserves a rich encomium. The original petition is dismissed. No costs. Sd/- ## V. CHITAMBARESH, JUDGE Sd/ASHOK MENON, JUDGE Sha/040919 OP(CAT).No.207 of 2019 12 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 PHOTOCOPY OF THE ORIGINAL APPLICATION NO.869/2018 FILED BY THE PETITIONER.** - **EXHIBIT P1(A14) PHOTOCOPY OF THE MINUTES OF THE SELECTION COMMITTEE ALONG WITH THE COVERING LETTER DATED 04/10/2018 OF THE DEPUTY SECRETARY & STATE PUBLIC INFORMATION OFFICER.** - **EXHIBIT P1(A15) PHOTOCOPY OF THE NOTIFICATION DATED 30/08/2018 AND PUBLISHED IN THE WEEKLY GAZETTE OF INDIA SEPTEMBER 15 SEPTEMBER 21, 2018 OF THE UNDER SECRETARY TO THE GOVT. OF INDIA.** **EXHIBIT P1(A1) PHOTOCOPY OF THE GO(RT) NO.2274/2006/HOME DATED 05/10/2006 OF THE UNDER SECRETARY TO GOVT.** - **EXHIBIT P1(A2) PHOTOCOPY OF THE GO DATED 29/11/2011 OF THE ADDITIONAL SECRETARY TO GOVERNMENT.** - **EXHIBIT P1(A3) PHOTOCOPY OF THE GO DAT4ED 08/05/2014 OF THE ADDITIONAL SECRETARY TO GOVERNMENT.** - **EXHIBIT P1(A4) PHOTOCOPY OF THE GO DATED 14/10/2015 OF THE DEPUTY SECRETARY TO GOVERNMENT.** - **EXHIBIT P1(A5) PHOTOCOPY OF THE RELEVANT PAGES OF THE GO DATED 12/02/2016 OF THE DEPUTY SECRETARY TO GOVT.** - **EXHIBIT P1(A6) PHOTOCOPY OF THE GO DATED 04/09/2015 RELEVANT PAGES OF THE SENIORITY LIST OF DEPUTY SUPERINTENDENT OF POLICE (GENERAL EXECUTIVES) AS ON 01/03/2013 OF THE ADDL. CHIEF SECRETARY TO GOVERNMENT.** - **EXHIBIT P1(A7) PHOTOCOPY OF THE ORDER DATED 02/12/2016 IN O.A NO.1009 OF 2016 OF THIS HON'BLE TRIBUNAL.** **EXHIBIT P1(A8) PHOTOCOPY OF THE COMMUNICATION DATED 29/11/2016 OF THE JUNIOR SUPERINTENDENT FOR 5TH RESPONDENT.** OP(CAT).No.207 of 2019 13 **EXHIBIT P1(A9) PHOTOCOPY OF THE LETTER DATED 05/10/2018 OFFICERS WHO ARE ELIGIBLE FOR CONSIDERATION FOR PROMOTION TO THE IPS THEIR ORDER OF SENIORITY AS ON 1ST JANUARY OF THE SELECT LIST YEAR OF THE UNDER SECRETARY & STATE PUBLIC INFORMATION OFFICER, THIRUVANANTHAPURAM.** **EXHIBIT P1(A10) PHOTOCOPY OF THE GO DATED 20/05/2010 OF THE ADDITIONAL CHIEF SECRETARY 2ND RESPONDENT.** **EXHIBIT P1(A11) PHOTOCOPY OF THE ORDER DATED 28/11/2011 OF THE DEPUTY SECRETARY TO GOVERNMENT. EXHIBIT P1(A12) TRUE COPY OF THE ORDER DATED 27/05/2011 ON BAIL APPLICATION NO.3786 OF 2011 OF THE HON'BLE HIGH COURT OF KERALA. EXHIBIT P1(A13) PHOTOCOPY OF THE REPRESENTATION DATED 13/02/2018 OF THE APPLICANT. EXHIBIT P1(A16) PHOTOCOPY OF THE NOTIFICATION DATED 30/08/2018 OF THE UNDER SECRETARY TO GOVERNMENT OF INDIA. EXHIBIT P1(A17) PHOTOCOPY OF THE GO DATED 07/09/2018 OF THE ADDITIONAL SECRETARY TO GOVERNMENT. EXHIBIT P1(A18) PHOTOCOPY OF THE GOVERNMENT OF INDIA M.H.A.LETTER NO.28/38/64-AIS(III) DATED 05/01/1965. EXHIBIT P1(A19) PHOTOCOPY OF THE OM NO.22011/4/91-ESTT.(A) DATED 14/09/1992 GOVERNMENT OF INDIA, DEPARTMENT OF PERSONNEL AND TRAINING.** **EXHIBIT P2 PHOTOCOPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE 1ST RESPONDENT.** **EXHIBIT P3 PHOTOCOPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE RESPONDENTS 3 AND 4.** **EXHIBIT P4 PHOTOCOPY OF THE REJOINDER STATEMENT OF THE PETITIONER/APPLICANT TO THE REPLY STATEMENT FILED BY THE RESPONDENTS 3 AND 4. EXHIBIT P5 PHOTOCOPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE 2ND RESPONDENT.** **EXHIBIT P6 PHOTOCOPY OF THE REJOINDER STATEMENT OF THE PETITIONER/APPLICANT TO THE REPLY STATEMENT** OP(CAT).No.207 of 2019 14 ||**FILED BY THE 2ND RESPONDENT.**| |---|---| |**EXHIBIT P7**|**PHOTOCOPY OF THE ADDITIONAL REPLY STATEMENT**| ||**FILED ON BEHALF OF THE 2ND RESPONDENT.**| |**EXHIBIT P7(R1)**|**TRUE COPY OF THE CIRCULAR**| ||**NO.18571/B3/91/LAW DATED 27/11/1991.**| |**EXHIBIT P8**|**PHOTOCOPY OF THE ADDITIONAL REJOINDER**| ||**STATEMENT ON THE PETITIONER/APPLICANT TO**| ||**THE ADDITIONAL REPLY STATEMENT OF THE 2ND**| ||**RESPONDENT FILED ON 03/06/2019.**| |**EXHIBIT P8(A20)**|**PHOTOCOPY OF THE DECISION OF THE CENTRAL**| ||**ADMINISTRATIVE TRIBUNAL, ALLAHABAD BENCH**| ||**REPORTED IN (1988) 8 ATC 16.**| |**EXHIBIT P8(A21)**|**TRUE COPY OF THE GOVERNMENT OF INDIA**| ||**(AUTHORISED OF OFFICERS FOR VERIFICATION OF**| ||**PLEADINGS AND OTHER DOCUMENTS TO BE FILED**| ||**IN THE CENTRAL ADMINISTRATIVE TRIBUNAL**| ||**RULES, 1993.**| |**EXHIBIT P9**|**PHOTOCOPY OF THE ARGUMENT NOTES OF BEHALF**| ||**OF THE PETITIONER/APPLICANT.**| |**EXHIBIT P10**|**PHOTOCOPY OF THE REPLY STATEMENT FILED ON**| ||**BEHALF OF THE 6TH RESPONDENT.**| |**EXHIBIT P11**|**PHOTOCOPY OF THE REJOINDER STATEMENT FILED**| ||**BY THE PETITIONER/APPLICANT TO THE REPLY**| ||**STATEMENT FILED BY THE 6TH RESPONDENT.**| |**EXHIBIT P12**|**PHOTOCOPY OF THE ORDER IN OA/180/00869/2018**| ||**DATED 09/08/2019 OF THE CENTRAL**| ||**ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH.**|