OP(KAT) No.8 of 2021

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **TUESDAY, THE 19TH DAY OF JANUARY 2021 / 29TH POUSHA, 1942** **OP(KAT).No.8 OF 2021** **AGAINST THE ORDER IN OA 1774/2020 OF KERALA ADMINISTRATIVE TRIBUNAL, DATED 19.11.2020 THIRUVANANTHAPURAM** ## **PETITIONERS/RESPONDENTS 1 TO 4 IN OA:** **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETRIAT, THIRUVANANTHAPURAM PIN 695 001** - **2 THE STATE POLICE CHIEF, POLICE HEADQUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM PIN 695 010** - **3 THE ADDITIONAL DIRECTOR GENERAL OF POLICE, (INTELLIGENCE) PATTOM, THIRUVANANTHAPURAM PIN 695 004** - **4 THE COMMANDANT, KERALA ARMED POLICE BATTALLION IV, MANGATTU PARAMBA, KANNUR PIN 670 567** **BY GOVERNMENT PLEADER** ## **RESPONDENTS/APPLICANTS & RESPONDENTS 5 & 6 IN OA:** - **1 SANJU.L AGED 36 YEARS S/O. LUKOSE, RESIDING AT PLAVILA VEEDU, KUMBALAM P.O, MULAVANA VILLAGE, KUNDARA, KOLLAM PIN 691 501** - **2 THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM PALACE, THIRUVANANTHAPURAM PIN 695 004** **3 THE DISTRICT OFFICER,** **OP(KAT).No.8 OF 2021** **2** **KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICE, KASARAGODE, KASARAGODE P.O, PIN 671 121** **R1 BY ADV. SRI.B.MOHANLAL SRI.ANTONY MUKKATH, SR.GP FOR PETITIONER, SRI.P.C.SASIDHARAN FOR RESPONDENT, SRI.B.MOHANLAL FOR RESPONDENT** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 19.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(KAT).No.8 OF 2021** **3** ## **ALEXANDER THOMAS & T.R.RAVI, JJ. =========================** OP(KAT)No.8 of 2021 [arising out of interim order dated 19.11.2020 in O.A.No.1774 of 2020 of Kerala Administrative Tribunal, Thiruvananthapuram] **======================== Dated this the 19[th] day of January, 2021** ## **JUDGMENT** ## **ALEXANDER THOMAS, J.** The prayers in the above O.P.(KAT) filed under Articles 226 and 227 of the Constitution of India are as follows: _“1. To set aside the Exhibit P2 Order of the Kerala Administrative Tribunal in O.A.No.1774/2020._ _2. To dismiss the Exhibit P1 Original Application no.1744/2020 filed by the petitioner before the Kerala Administrative Tribunal, holding that the Petitioner is not eligible for any of the reliefs claimed in the Exhibit P1 Original Application._ _3. Any other order or direction as this Honourable Court may deem fit and proper in the facts and circumtances of the case.”_ ## 2. Heard Sri.Antony Mukkath, learned Senior Government Pleader appearing for the petitioners (State of Kerala and 3 others/official respondents 1 to 4 in the O.A. before the Tribunal) and Sri. B.Mohanlal, the learned counsel appearing for the 1[st] respondent/original applicant before the Tribunal and Sri.P.C.Sasidharan, the learned Standing Counsel for the Kerala **OP(KAT).No.8 OF 2021** **4** Public Service Commission appearing for R2 and R3 herein/R5 and R6 in the O.A. 3. Respondent No. 1 to 4 in the O.A. (State of Kerala and three others) has preferred the instant original petition, so as to challenge Ext.P2 interim order dated 19.11.2020, rendered by the Kerala Administrative Tribunal in O.A.No.1774/2020 filed by the R1 herein, whereby the the petitioners have been directed by the Tribunal, to provisionally permit the original applicant to attend the training course consequent to selection as Police Constable. The petitioners have taken the stand that the original applicant cannot be permitted to attend the training consequent to the selection as he is involved in a crime, which is investigated by the Police and the case is now pending as Calender Case on the file of the Jurisdictional Magistrate Court concerned, and that further steps in respect of the selection of the original applicant to be taken up for consideration only after the accused secures acquittal in the said case, even though he has been duly selected by the Kerala Public Service Commission in the selection process. At the outset, it has to be borne in mind that the impugned Ext.P2 order rendered by the Tribunal is only an interlocutory order, whereby it is made clear that the said direction is provisional and subject to the result in the original application. **OP(KAT).No.8 OF 2021** **5** The selection notification for the post of Police Constable in the Kerala Armed Police Battalion No.IV (KAP IV) was issued by the 2[nd] respondent Kerala Public Service Commission long ago and after finalization of the selection process, the petitioner/original applicant has been duly included in the rank list prepared by the Kerala Public Service Commission, and thereafter he has even secured advice memo issued by the Kerala Public Service Commission as early as on 18.01.2012. Thus the Tribunal has noted that the original applicant has been awaiting for the last more than 8 years, even after receipt of advice memo by the Kerala Public Service Commission. More over it appears that,the original applicant is aged more than 36 years. Taking into account of these aspects, the Tribunal has passed the said interlocutory order, and to ensure that the interest of the petitioner are duly taken care of. The Tribunal has made it clear that the said order is only provisional and will be subject to the result of the O.A. 4. After hearing both sides for quite some time we are of the considered view that, most crucial and relevant aspects of the matter have not been placed by the petitioners herein either before this Court or before the Tribunal, before the impugned Ext.P2 interim order dated 19.11.2020 was rendered by the Tribunal in the O.A , or **OP(KAT).No.8 OF 2021** **6** at least before the present original petition has been filed before this Court on 7.01.2021. None of the details are forthcoming as to the nature of the allegations raised against various accused persons in the instant criminal proceedings at Annexure -A3 and also as to the specific nature of allegations raised against the original applicant for the first time by filing of an additional report by the Police before the learned Magistrate in the then pending crime on 16-04-2012 and also as to the specific nature of the materials collected in the course of investigation which discloses the alleged criminal culpability as against the original applicant, which in turn led to the alleged filing of the Final Report/charge sheet in this case. All what the learned Government Pleader would urge is that since the original applicant is facing the criminal proceedings at Annexure-A3, he cannot be send for training once he is selected to the post of Police Constable since it involves training with arms. The specific case of the original applicant is to the effect that he is completely innocent and further that the crime incident is said to have happened in 3.10.2010 and the FIS and FIR has been lodged in this case on 14.10.2010, in which only eight accused were arrayed therein. Further, the original applicant secured advice from the Public Service Commission for appointment to the post of Police Constable on 18.01.2012 and he had also undergone physical test conducted by the the Public Service **OP(KAT).No.8 OF 2021** **7** Commission on 10.2.2012. It is long thereafter that the Police has filed additional report in the above said FIR/crime as late as on 16.4.2012 that the petitioner is also involved as one among the accused therein. The consistent case of the original applicant before the Tribunal was to the effect that the case has been framed at the instance of some persons having personal interest after knowing that he has been advised by the Kerala Public Service Commission. 5. It has also to be borne in mind that, none other than the Legislature of the State consequent to the bill introduced by the State Government, has even amended the Kerala Police Act and has also introduced a provision in Section 86 (2) of the Kerala Police Act, 2011, whereby a person who is implicated in a criminal case, is entitled to get selected and to undergo training and the only embargo is in his permanent appointment which can be considered only after his acquittal in the criminal case etc. 6. It is pointed out by Sri.B.Mohanlal, learned counsel appearing for the respondent herein/original applicant that, the dictum laid down by this Court in the decisions by the Apex Court in **Union Territory, Chandigarh Administration v. Pradeep Kumar** [2018 KHC 6006 (SC)], can have no application in this case in as much as, in the said case there is no provision which is similar **OP(KAT).No.8 OF 2021** **8** to the one in Section 86 (2) of the Kerala Police Act, 2011. Moreover the party therein who is an accused in one among the cases, has already been implicated in five other cases. 7. The counsel for the original applicant would assert that his party has not been implicated in any criminal case other than the one at Annexures-A3/A7, and that he has been falsely implicated long after the registration of crime only due to extraneous considerations in order to prevent his appointment, after coming to know that he has secured advise for appointment by the Kerala Public Service Commission etc. 8. After hearing both sides we are constrained to take a view that the attitude shown by the petitioners is not apprising the Tribunal even about the elementary facts regarding the allegations of the crime and also as to the nature of the specific allegations collected in the course of investigation as against the original applicant, at least as alleged in the final report/charge sheet, and also as to the alleged facts relating to the very origin of the crime etc. cannot be countenanced as a bonafide litigation Without these basic factual aspects, it is not right and proper for the petitioners herein to take the stand that even interlocutory order as the one passed by the Tribunal at Ext.P2 should be impugned, and that too in the teeth of **OP(KAT).No.8 OF 2021** **9** specific provisions made by the Legislature of the State in provisions as in Section 86 (2) of the Kerala Police Act, 2011. 9. Without apprising the Tribunal about these aspects, it is highly improper on the part of the petitioners to rush before this Court by filing the above said original petition and that too as against the interlocutory order passed by the Tribunal and that too without apprising even this Court about these elementary factual aspects relating to origin and the finalisation of the alleged crime referred to in Annexure-A3. Section 86 (2) of the Kerala Police Act, 2011, reads as follows: _“” A person against whom a criminal case for an offence involving proclivity of violence or moral turpitude is pending before a Court of law shall be entitled to appear for recruitment, to get selected and to undergo training, but shall be entitled for permanent appointment only after being acquitted”._ 10. Sri.B.Mohanlal, learned counsel appearing for the original applicant would vehemently urge that in the facts of the case, the Police has not even a remote case that the petitioner has been involved in any other case and further that, there are no objective facts and circumstances to come to the considered conclusion that the original applicant could be imputed as a person having proclivity for violence or that the offence involved is one for **OP(KAT).No.8 OF 2021** **10** moral turpitude based on he being arrayed as an additional accused in a single case and that too has additional accused No.21 in a case which is stated to arise out of disputes which has allegedly happened in the context of a festival in a church. 11. Moreover it has to be borne in mind that, about nine long years have elapsed after the selection advice to the original applicant, and now he is more than aged 36 years. Prima facie, we feel that the approach of the petitioners in litigating the case like this and that too with scanty materials on the elementary and crucially relevant aspects of the matter, cannot be seen as a litigation done with due care and bonafides. In other words, prima facie it appears that the petition lacks bonafides. 12. In view of the above said aspects, we had granted time on the previous occasion to the learned Government Pleader to secure instructions more particularly about the nature of the allegations in the instant crime. Now today, we are apprised by the learned Senior Government Pleader that initially, Crime No.1701/2010 of Kundara Police Station was registered for offences punishable under Sections 143, 147, 148, 341, 353, 332 read with section 149 of the IPC and Section 3(2) (e) of Prevention of Damage of Public Property Act, 1984, and that the FIS/FIR in this case has been lodged and registered on 14.10.2010, in respect of the incident **OP(KAT).No.8 OF 2021** **11** on 03.10.2010 though the name of the original applicant was not specifically shown by the Police at the time of lodging of FIS. The FIR in the crime was registered as against not only the named persons therein but also certain persons whose identity was not then known. Later, the Police after investigation could get materials to show the involvement of the original applicant as well in the said case, and additional report was filed by the Police investigating agency on 14.10.2010, before the Judicial First Class Magistrate Court-I, Kollam, whereby the original applicant was then arrayed as an additional accused, it is urged by the State. However, Sri.B.Mohanlal, the learned counsel appearing for R1 herein/original applicant would point out that the said factual assertion made on behalf of the Police Investigation Agency, as if the additional report was filed by the Police in this case as early as 14.10.2010 is factually incorrect and wrong, and that this aspect of the matter has been dealt with in Annexure A8 judgment (see page 66 of the paper book) dated 04.11.2019 rendered by the Division Bench of this Court in O.P.(KAT)No.2503/2013 filed by the 1[st] respondent/original applicant herein (which arose out of O.A.No.1843/2012 of Kerala Administrative Tribunal, Thiruvananthapuram), and that in Paragraph 11 thereof, this Court has noted that the report is dated 14.10.2010, but the seal of the Magistrate Court specifically indicates **OP(KAT).No.8 OF 2021** **12** that the date on which it was actually filed in Court, which was shown as 16.04.2012. In that regard, their Lordships of the Division Bench of this Court as per Annexure A8 judgment has held that they fully agreed with the factual findings made by the Tribunal on the issue raised therein, that there is no ground of suppression against the original applicant etc. Further the counsel for the 1[st] respondent/original applicant would also point out that it can also be seen from Annexure A7 (see page 56 of the paper book) that the seal would actually show that the said additional report was in fact filed before the Jurisdictional Magistrate Court only on 16.04.2012, and not on 14.10.2010, as asserted by the Police etc. Further it appears that, the final report/charge sheet in this case has been filed by the Police after completion of investigation and the learned Magistrate has taken cognizance of offences alleged in the FIR, and the case is now pending as C.C.No.341/2016 on the file of Judicial First Class Magistrate Court-I, Kollam etc. 13. So after hearing both sides, it appears that the Division Bench of this Court had already observed in Annexure A8 judgment, that the additional report in the crime would have been filed only on 16.04.2012 and not on 14.10.2010, as alleged by the Police etc., in that regard it can been seen that the consistent case in the original **OP(KAT).No.8 OF 2021** **13** applicant all throughout before the Tribunal and before this Court is to the effect that the case has been framed at the instance of some persons having personal interest, after knowing that the 1[st] respondent/ original applicant has been advised by the Kerala Public Service Commission on 18.01.2012, in as much as the additional report was filed by the Police in the above said crime only on 16.04.2012. 14. From the submissions of both sides, it appears that the incidents in relation to the said crime have occurred in the context of a festival in a Church and some commotions have happened and the Police was called to deal with the situation and then there arose some disputes between parishioners who had gathered in the festival and the Police etc., and the alleged incidents are said to have happened in this context. Hence, it appears that though the FIR/FIS in this case has been lodged as early as on 14.10.2010, 1[st] respondent/original applicant was not named as an accused therein, and for the first time, he has been arrayed as additional accused in the said case only by filing of the additional report by the Police as late as on 16.04.2012. 15. Further the selection notification was issued by the Kerala Public Service Commission, long ago and the rank list was **OP(KAT).No.8 OF 2021** **14** also prepared quite some time back, and the 1[st] respondent/original applicant has secured advice memo by the Kerala Public Service Commission, and he is now waiting for being deputed for training for last more than 8 years. Still further it has been noted that the 1[st] respondent/original applicant is now aged more than 36 years. It is taking into account of all these cumulative factors that the Tribunal has passed a well considered order granting interim direction that the applicant should at least be provisionally send for training, and that the said order will be subject to the final result of the O.A. The interlocutory view taken by the Tribunal appears to be justified more so in view of the provisions contained in Section 86(2) of the Kerala Police Act, above which the reference has been made in the previous paragraph in this judgment. 16. In the light of all these aspects, this Court is constrained to take the view that the Tribunal cannot be faulted for having passed such an interim order as one at Ext.P2. At any rate, we are not in a position to hold that the said interlocutory view taken by the Tribunal in this case is rather arbitrary or perverse, or would require interdiction in judicial proceedings by way of judicial review and superintendence at the hands of this Court. Hence the present original petition fails and need not be entertained. In that view of the **OP(KAT).No.8 OF 2021** **15** matter it is ordered that the original petition will stand dismissed. However, there will be no order as to cost. Moreover, we feel that the petitioners should have complied with the present interim order at Ext.P2, more so particularly in the light of the previous round of litigation which has culminated in Annexure A8 judgment of the Division Bench of this Court rendered on 04.11.2019 in O.P.(KAT)No.2503/2013. With these observations and directions, the above Original Petition will stand finally disposed of. ## **Sd/ALEXANDER THOMAS, JUDGE** **Sd/T.R.RAVI, JUDGE** VPK **OP(KAT).No.8 OF 2021** **16** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF O.A NO. 1774/2020 ALONG WITH ANNEXURES.** |**EXHIBIT P1**|**TRUE COPY OF O.A NO. 1774/2020 ALONG WITH**<br>**ANNEXURES.**| |---|---| |**ANNEXURE A1**|**TRUE COPY OF THE ADVICE MEMO NO. KGDIV(2)**| ||**2303/07/07(164) DATED 18-01-2012 ISSUED BY**| ||**THE 3RD RESPONDENT TO THE FIRST RESPONDENT.**| |**ANNEXURE A2**|**TRUE COPY OF THE COMMUNICATION NO. A2(A)**| ||**20013/2011/KAP4 10-02-2012 ISSUED BY THE**| ||**3RD PETITIONER TO THE FIRST RESPONDENT**| |**ANNEXURE A3**|**TRUE COPY OF THE FIR IN CRIME NO. 1701/2010**| ||**OF KUNDARA POLICE STATION IN KOLLAM**| ||**DISTRICT PENDING BEFORE THE JUDICIAL FIRST**| ||**CLASS MAGISTRATE COURT-1, KOLLAM**| |**ANNEXURE A4**|**TRUE COPUY OF THE ORDER DATED 18-05-2012 IN**| ||**O.A NO. 770/2012 OF THIS HONOURABLE**| ||**TRIBUNAL**| |**ANNEXURE A5**|**THE TRUE COPY OF THE ORDER G.O(RT) NO.**| ||**2183/2012/HOME DATED 20-07-2012 ISSUED BY**| ||**GOVERNMENT**| |**ANNEXURE A6**|**THE TRUE COPY OF THE ORDER DATED 15-03-2013**| ||**IN O.A NO. 1843/2012 OF THIS HONOURABLE**| ||**TRIBUNAL**| |**ANNEXURE A7**|**THE TRUE COPY OF THE REPORT DATED 16-04-**| ||**2012 SUBMITTED BY THE SUB INSPECTOR OF**| ||**POLICE, KUNDARA IN ANNEXURE A3 FIR**| |**ANNEXURE A8**|**THE TRUE COPY OF THE JUDGMENT DATED 04-11-**| ||**2019 IN OP(KAT) NO. 2503/2013 OF THE**| ||**HONOURABLE HIGH COURT OF KERALA, ERNAKULAM**| |**ANNEXURE A9**|**THE TRUE COPY OF THE ORDER NO. L2-**| ||**6334/2020/PHQ DATED 27-03-2020 ISSUED BY**| ||**THE SECOND PETITIONER.**| |**ANNEXURE A10**|**THE TRUE COPY OF THE ORDER DATED 23-03-2018**| ||**IN O.A (EKM) NO. 744/2018 OF THIS**| ||**HONOURABLE TRIBUNAL**| |**ANNEXURE A11**|**THE TRUE COPY OF THE JUDGMENT DATED 08-06-**| ||**2018 IN OP(KAT) NO. 178/2018 OF THE**| **OP(KAT).No.8 OF 2021** **17** **HONOURABLE HIGH COURT OF KERALA, ERNAKULAM** **EXHIBIT P2** **TRUE COPY OF THE INTERIM ORDER OF THE TRIBUNAL DATED 19-11-2020 IN O.A NO. 1774/2020**