GOVERNMENT OF KERALA & INSPECTOR GENERAL OF POLICE v. RADHAKRISHNAN K. & UNION OF INDIA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **TUESDAY, THE 09TH DAY OF JULY 2019 / 18TH ASHADHA, 1941** **OP (CAT).No.273 of 2017** **AGAINST THE ORDER/JUDGMENT IN OA 180/00469/2017 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 31-08-2017** ## **PETITIONERS/RESPONDENTS:** **1 GOVERNMENT OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,KERALA.** **2 INSPECTOR GENERAL OF POLICE, THRISSUR RANGE, THRISSUR-680631.** **BY SRI.ANTONY MUKKATH, GOVERNMENT PLEADER** ## **RESPONDENTS/APPLICANT & 2ND RESPONDENT:** **1 RADHAKRISHNAN.K., S/O.A.KUNJAN, FORMER VIGILANCE OFFICER-I (ON DEPUTATION FROM THE POLICE DEPARTMENT), VIGILANCE WING OF KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN,PATTOM,THIRUVANANTHAPURAM-695004, RESIDING AT THORANATHIL HOUSE,THALAYOLAPARAMBU, KOTTAYAM-686605.** **2 UNION OF INDIA REPRESENTED BY ITS SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI-110001.** **BY ADVS. SRI.R.SREERAJ - R1 SRI.P.VIJAYAKUMAR, ASG - R2** ## **OTHER PRESENT:** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 27.06.2019, THE COURT ON 09.07.2019 PASSED THE FOLLOWING:** _OP(CAT) No.273/2017_ 2 ## **JUDGMENT** ## Ashok Menon, J. Can the applicant in O.A.No.180/00469/2017 on the file of the Central Administrative Tribunal, Ernakulam Bench, a Superintendent with the Kerala Police, conferred with IPS, be proceeded against in a disciplinary action based on Annexure A3 charge memo dated 27.04.2017 consequent to his suspension on 24.10.2016, proceeded against under the provisions of Kerala Police Departmental Inquiries, Punishment and Appeal Rules, 1958 (“Kerala Rules” for short), instead of being proceeded against under the All India Services (Discipline & Appeal) Rules, 1969 (“IAS Rules”for short) is the question that arises for consideration before us in this Petition. 2. The applicant was allegedly appointed to the Indian Police Service along with six others vide Annexure A2 notification dated 09.11.2016 of the Union Government with Presidential sanction. The Tribunal in _OP(CAT) No.273/2017_ 3 the aforesaid O.A. vide impugned Order dated 31.08.2017, held that the State Government has no jurisdiction to proceed against him under the Kerala Rules under the premise that he continues to be an officer of the State Service. 3. The facts in brief are thus: The applicant, while working as Superintendent of Police (non-IPS) was selected and included in the 2014 list of officers for being promoted to the Indian Police Service. While the matter was under consideration of the Union Government, he was placed under suspension on 24.10.2016, while on deputation as Vigilance Officer in the Vigilance Wing of the Kerala State Electricity Board. Within a few days from his order of suspension, he was appointed to the Indian Police Service, vide Annexure A2 notification dated 09.11.2016. 4. The State Government ignored Annexure A2 notification and proceeded with the disciplinary proceedings against him, issued Annexure A3 charge memo on 27.04.2017, which was served on him on 07.05.2017. _OP(CAT) No.273/2017_ 4 5. The applicant's contention is that in view of his being appointed to Indian Police Service vide Annexure A2 notification by the Government of India, he is not amenable to the provisions of the Kerala Rules and he could be proceed only under the IAS Rules. 6. The applicant's case is that once a police officer's name has been recommended to the Union Government for being selected to the Indian Police Service under Regulation 5 of the provisions of Indian Police Service (Appointment by promotion) Regulations, 1955 (“the Regulations” for short), and accepted by the Union in consultation with the Union Public Service Commission, and appointed to the Indian Police Service, he becomes a member of that service. According to the applicant, the Central Government and Selection Committee, in consultation with the UPSC and consequent to the Presidential sanction, finally approved and appointed the petitioner to the Indian Police Service. 7. Prior to the persons being included in the select list, Regulation 9(a) gives option to the Central Government not to appoint the person when his _OP(CAT) No.273/2017_ 5 name appears in the select list, if it is of the opinion that it is necessary or expedient to do so in public interest. 8. The learned Government Pleader Shri Antony Mukkath vociferously argues that under Regulation 5, if the name of an officer is included in the list for promotion to the Indian Police Service, and if the State Government withholds the integrity certificate in respect of such officer in view of any departmental or criminal proceedings pending against him, which renders him not suitable for appointment to the Indian Police Service, such inclusion of his name in the list shall be treated only as provisional and consequent to that, only on issuance of integrity certificate 'unconditionally' can such officer provisionally included in the list be included in the final list approved by the UPSC. 9. Shri Antony Mukkath argues that appointment in Indian Police Service alone is not sufficient until the officer is posted in consequent to such appointment. He relies on the decision in _**V.Venkata Prasad & another v.**_ _OP(CAT) No.273/2017_ 6 ## _**High Court of Andhra Pradesh & others, (2016) 11 SCC 656**_ in support of his argument. 10. In the instant case, the applicant was not given any posting under the Indian Police Service and continued as Superintendent of Police (non-IPS) till he retired under suspension, pending enquiry. His inclusion in the select list for the year 2014 can only be treated as provisional based on Regulation 5(5). He cannot therefore claim to be a member of the IPS, is the argument. 11. It is also submitted that Annexure A2 notification of his appointment to the Indian Police Service is issued without noticing the fact that the applicant was under suspension from 24.10.2016 following disciplinary proceedings. It is also submitted that even an enquiry under the IAS Rules is to be conducted by the State Government. 12. _**V.Venkata Prasad (Supra)**_ has no application to the case in hand. What was considered there, was whether officers appointed to the post of District Judge (Adhoc to Fast Track Courts) could claim to be _OP(CAT) No.273/2017_ 7 appointed to the Higher Judicial Service of the State. It was held that the officers were posted as District Judges (Adhoc) under a Scheme, and could not claim seniority over those recruited directly to the substantive posts. 13. There is nothing on record to show that consequent to his inclusion in the select list by the State Government in the year 2014, till Annexure A2 order was issued on including him in the final list, to show that the State Government had withheld his integrity certification or that the State Government had intimated the Union Government about the intended disciplinary proceedings, persuading them to stop inclusion of the applicant in the final select list. Regulation 9(a) would then have been invoked by the Union Government to stall the proceedings to get the applicant included in the final list till an unconditional integrity certificate was issued so as to include him in the final select list to be approved by the UPSC. _OP(CAT) No.273/2017_ 8 14. It is at the eleventh hour that the State Government thought of a disciplinary action against the applicant. The applicant says that it is with ulterior motives. But we do not intend to express anything on that. However, it is adequately clear that even consequent to his suspension, the State Government did not deem it appropriate to inform the Union Government about the withholding his integrity certificate. Without such a communication going to the Union Government, it cannot be said that the inclusion of the applicant's name in the select list was only provisional. Annexure A2 is not a provisional list, but it is an appointment order directing his appointment into the Indian Police Service after getting the Presidential sanction of the final select list. At this point of time, he cannot be proceeded against under the Kerala Rules for any disciplinary proceedings against him, as he ceased to be an officer in the Kerala Police Service. The disciplinary action, if any, could only be under the IAS Rules. The fact that he was not given a posting and retired from service, is _OP(CAT) No.273/2017_ 9 of no consequence as his appointment and induction into the Indian Police Service was already complete vide Annexure A2. We do not find no infirmity or error in the impugned findings of the Tribunal. The Original Petition is dismissed. **Sd/-** **V.CHITAMBARESH** **JUDGE** **Sd/-** _dkr_ **ASHOK MENON JUDGE** _OP(CAT) No.273/2017_ 10 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 COPY OF THE O.A.NO.469/2017 ALONG WITH ITS ANNEXURES EXHIBIT P2 COPY OF THE REPLY STATEMENT OF THE 1ST AND 3RD RESPONDENTS IN THE O.A. EXHIBIT P3 COPY OF THE REJOINDER STATEMENT. EXHIBIT P4 COPY OF THE ORDER DATED 31.08.2017 IN O.A.NO.469/2017.**