Anoop C. Nair v. State of Kerala and Departmental Promotion Committee (Lower)

**OP(KAT).No. 375 of 2018 1** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY ,THE 08TH DAY OF MARCH 2019 / 17TH PHALGUNA, 1940** **OP(KAT).No. 375 of 2018** **AGAINST THE ORDER IN OA 2730/2017 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 23-02-2018** ## **PETITIONER:** **ANOOP C.NAIR AGED 42 YEARS S/O.G.CHANDRASEKHARAN NAIR, SUB-INSPECTOR OF POLICE, CHINGAVANAM POLICE STATION, CHINGAVANAM P.O., KOTTAYAM DISTRICT, PIN 686531, RESIDING AT DEEPTHI HOUSE, ERAVINALLOOR P.O., PUTHUPPALLY, KOTTAYAM, PIN-686022.** ## **BY ADV. SRI.C.S.MANU** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE SECRETARY, DEPARTMENT OF HOME, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN 695001. 2 THE DEPARTMENTAL PROMOTION COMMMITTEE(LOWER), REP.BY ITS CONVENER, THE STATE POLICE CHIEF, POLICE HEAD QUARTERS, VAZHUTHACADU, THIRUVANATHAPURAM,PIN695010.** ## **GP- SRI ANTONY MUKKATH.** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 12.11.2018, THE COURT ON 8.3.2019 PASSED THE FOLLOWING:** **OP(KAT).No. 375 of 2018 2** ## **JUDGMENT** ## **Arun, J** The Original Petition is filed aggrieved by Ext P2 order in O.A.(EKM) No.2730 of 2017 by which the Kerala Administrative Tribunal had dismissed the Original Application filed by the petitioner. The Original Application was filed by the petitioner challenging Annexure-A2 select list for promotion to the post of Inspector of Police. 2. According to the petitioner, he is eligible to be promoted to the post of Inspector of Police, as against the vacancies of the year 2017. But, the Departmental Promotion Committee (lower) did not consider the petitioner for promotion, in view of the currency of four punishments and the fact that the petitioner is an accused in CC No.2/2016 on the files of the Court of Enquiry Commissioner and Special Judge, Kottayam, which is still pending. The reason for superseding the petitioner's claim was communicated to him by Annexure-A1 letter dated 7.4.2017 issued by the State Police Chief. Thereafter, the petitioner submitted a representation before the Departmental Promotion Committee and obtained a direction to convene **OP(KAT).No. 375 of 2018 3** an ad hoc DPC, as per the order of the KAT in O.A.(EKM) 894/2017. Based on the directions an ad hoc DPC was convened on 11.7.2017 and decision was taken rejecting the petitioner's representation on the ground that petitioner had suffered punishments in disciplinary proceedings and that vigilance case is pending against him. 3. Before the Tribunal, the petitioner contended that the only punishment imposed on him pursuant to the departmental proceedings was barring of increment without cumulative effect. That, as per Section 101 (6) of the Kerala Police Act, 2011 the punishment of barring of increment without cumulative effect shall not be treated as an impediment for the promotion of a police officer. With regard to the criminal case pending against him before the Enquiry Commissioner and Special Judge, Kottayam, the petitioner contended that the court not having framed charge against him, the pendency of the criminal case would not be a bar for considering his legitimate claim for promotion. In order to buttress this contention, the petitioner relied on the decision of the Hon'ble Supreme Court in **Union of India and others v. K.V.Janakiraman and others(1991)4 SCC 109.** The petitioner had also ## **OP(KAT).No. 375 of 2018 4** placed reliance on the judgment in **K.K.Sasidharan v. State of Kerala (2008 (4) KLT 149)** . 4. In reply, it was pointed out on behalf of the respondents that a similar argument to the effect that pendency of a vigilance case, in which charge had not been framed, is not a bar for considering the persons claim for promotion, had been rejected by a Division Bench in OP(KAT) No.349/2014. The Tribunal, placing reliance on the Division Bench judgment, which has rendered with reference to Note (i) to Rule 28(b)(i)(7) of Part II KS & SSR, dismissed the Original Application. 5. Before this court also it was strongly contended by the counsel for the petitioner that in the light of the dictum laid down by the Apex Court in _**Janakiraman**_ 's case, the Tribunal had committed a grave illegality in dismissing the Original Application. It was further contended that a Division Bench of this Hon'ble Court to which one of us is a party(Justice C.T.Ravikumar, J) had in OP(CAT)No.4305 of 2011 and connected cases held that the question of a government servant being treated as one against whom prosecution for criminal charge is pending would arise only depending on the question whether the court had framed ## **OP(KAT).No. 375 of 2018 5** charge against the employee at any time before the DPC in question. 6. For the purpose of resolving the issue it would be apposite to refer to Note (i) to Rule 28(b)(i)(7) of Part II KS & SSR which reads as follows: “Officers against whom vigilance or departmental proceedings are taken after the charges have prima facie been established in a preliminary enquiry should not be included in the select list. But, the cases of such Officers should also be assessed. The question of including them in the select list shall be considered when the result of the enquiry is known. However Officers against whom departmental proceedings are taken for the imposition of a minor penalty may be included in the select list provisionally if they are found suitable but for the pendency of disciplinary proceedings initiated against them”. 7. On a careful scrutiny of the aforementioned provision it is evident that officers against whom vigilance or departmental proceedings are taken after the charges have prima facie been established in a preliminary enquiry should not be included in the select list. The provision does not contemplate framing of charges by the court in which the vigilance case is pending and on the other hand it envisages only prima facie establishment of the charges in a preliminary enquiry. As far as vigilance case against the ## **OP(KAT).No. 375 of 2018 6** petitioner is concerned, a preliminary enquiry was conducted before registration of FIR, which was done only on the court being satisfied that a prima facie case is made out. After registration of the FIR, a full fledged investigation was conducted and a final report laid before the court as provided under Section 173(2) of the Code of Criminal Procedure. In that view of the matter, there cannot be any doubt, that by the time final report is filed after investigation, the charges against the accused have prima facie been established. 8. After considering the impact of Note (i) to Rule 28(b)(i)(7) of Part II KS & SSR, as also the decision in Janakiraman's case followed by the Apex Court in **Union of India and others v. Anil Kumar Sarkar (2013)4 SCC** **161** , a Division Bench of this Court in OP(KAT) No.349 of 2014, categorically held that the principles laid down by the Apex Court cannot be applied to that case, in view of the provisions contained in Note (i) to Rule 28(b)(i)(7) of Part II KS & SSR. We are in complete agreement with the view expressed by the Division Bench (supra) for the reasons elaborated earlier. 9. Even though, the learned counsel for the petitioner ## **OP(KAT).No. 375 of 2018 7** brought to our notice a decision to the contrary rendered by a learned Single Judge in **K.K.Sasidharan v State of Kerala (2008(4)KLT 149) ,** in view of the Division Bench decisions in OP(KAT)No.349 of 2014, the decision in _**Sasidharan**_ 's case stands impliedly overruled. Further, on a careful perusal of the judgment in OP(CAT) No.4305 of 2011 and connected cases, we find that the judgment was rendered on an interpretation of Office Memorandum dated 14.9.1992 issued by the Department of Personnel and Training under the Central Government. In that view of the matter reliance cannot be placed on the judgment in OP(CAT)No.4305 of 2011, since the wordings of the Office Memorandum, which was subject matter of that case and the prescription under Note (i) to Rule 28(b)(i)(7) of Part II KS & SSR are entirely different. 10. For the reasons mentioned above, the Tribunal was fully justified in denying the reliefs sought in the Original Application. We find no reason to interfere with Ext P2 order of the Kerala Administrative Tribunal in OA(EKM) No.2730 of 2017. **OP(KAT).No. 375 of 2018 8** Accordingly, the Original Petition fails and the same is hereby dismissed. Sd/- **C.T.RAVIKUMAR, JUDGE** Sd/- **V.G.ARUN, JUDGE** cms **OP(KAT).No. 375 of 2018 9** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE OA.NO.2730 OF 2017 FILED BY THE PETITIONER BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANATHAPURAM, (ERNAKULAM BENCH) ALONG WITH ANNEXURES.** **EXHIBIT P2** **TRUE COPY OF THE ORDER DATE 23.2.2018 IN OA.NO,2730 OF 2016 PASSED BY THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANAHTAPURAM, (CAMP SITTING AT ERNAKULAM).** RESPONDENTS EXTS NIL /TRUE COPY/ P.S.TO JUDGE cms