Officer Facing Vigilance Case Post-Preliminary Enquiry Ineligible For Inclusion In Select List Under KS&SSR: Kerala High Court
The Court said that under Note (i) to Rule 28(b)(i)(7) of Part II Kerala State and Subordinate Services Rules, once a Vigilance Case is registered post preliminary enquiry, the twin conditions for disqualification are met, and the officer’s name cannot be included in the select list.
Justice A. Muhamed Mustaque, Justice P. Krishna Kumar, Kerala High Court
The Kerala High Court has held that an officer against whom a vigilance proceeding is initiated following a preliminary enquiry that prima facie establishes the charge is ineligible for inclusion in a promotion select list under the Kerala State and Subordinate Services Rules (KS&SSR).
The Division Bench of Justice A. Muhamed Mustaque and Justice P. Krishna Kumar observed, “…going by the plain meaning of the terms used in Note (i) to Rule 28(b) (i)(7) of Part II KS&SSR, only two conditions are to be satisfied for excluding an officer from the select list: (i) a vigilance/departmental proceeding is initiated and (ii) it was initiated after a preliminary enquiry to prima facie establish the charge.”
The Court explained, “The term ‘vigilance proceeding’ is to be understood as a Vigilance Case initiated by the Vigilance & Anti-Corruption Bureau and the term ‘charge’ is to be understood as the allegations against the officer in such a case. If an FIR is lodged after such a preliminary enquiry against an officer by the Vigilance and Anti-corruption Bureau, the above twin conditions are attracted and thus the name of the officer cannot be included in the select list.”
The Petitioner was represented by Senior Advocate K. Jaju Babu, while Advocate C. Leena appeared for the Respondents.
Brief Facts
The Petitioner was included in the revised select list of Deputy Transport Commissioners for the year 2022. Respondent No.1, also a candidate in the same select list, challenged the Petitioner’s inclusion before the Kerala Administrative Tribunal (Tribunal). The challenge was based on the ground that the Petitioner was an accused in a vigilance case and, therefore, should not have been considered eligible for inclusion as per Note (i) to Rule 28(b)(i)(7) of Part II of the KS&SSR. Following the Petitioner's inclusion in the select list, the Government notionally promoted him to the post of Deputy Transport Commissioner. Since there was no vacancy in that cadre at the time, Respondent No.1, who is junior to the petitioner, was reverted to the post of Regional Transport Officer.
The Petitioner contended that the bar under Note (i) would not be attracted merely by the registration of an FIR following a preliminary enquiry. He further submitted that, in addition to such registration, approval for prosecution from the Government under Section 19 of the Prevention of Corruption Act was also necessary for the disqualification to apply.
The Respondents argued that, as per the plain language of Note (i) to Rule 28(b)(i)(7) of Part II KS&SSR, an officer was to be excluded from the select list if a vigilance or departmental proceeding is initiated, and that it follows a preliminary enquiry that prima facie established the charge.
Reasoning of the Court
Referring to Note (i) to Rule 28(b)(i)(7) of Part II of the KS&SSR, the Court observed that the first part of the provision bars inclusion in the select list of officers against whom criminal proceedings for a grave offence are pending before a Sessions Court, officers facing departmental proceedings for imposition of a major penalty, and officers under suspension; the latter part of the Note further provides that officers against whom Vigilance or departmental proceedings are initiated following a preliminary enquiry where the charges have been prima facie established should also be excluded from the select list.
The Court referred to the decision of the Kerala High Court in State of Kerala & Ors. v. Babu Prasad (2019), wherein it was held that an officer against whom an FIR has been registered following a preliminary enquiry and approval for prosecution from the Government, or who has been recommended to be proceeded against departmentally through the issuance of a charge memo, is not eligible for inclusion in the select list.
The Bench stated, “…plain meaning of the terms used in Note (i) to Rule 28(b) (i)(7) of Part II KS&SSR, only two conditions are to be satisfied for excluding an officer from the select list: (i) a vigilance/departmental proceeding is initiated and (ii) it was initiated after a preliminary enquiry to prima facie establish the charge.”
The Court observed, “If an FIR is lodged after such a preliminary enquiry against an officer by the Vigilance and Anti-corruption Bureau, the above twin conditions are attracted and thus the name of the officer cannot be included in the select list. However, if it is only a disciplinary proceeding, the above conditions would be attracted only when a charge memo is issued.”
The Bench observed that there was no dispute regarding the fact that an FIR had been registered against the petitioner following a preliminary enquiry and after obtaining the requisite prior approval, hence, in terms of Note (i) to Rule 28(b)(i)(7) of Part II of the KS&SSR, the Petitioner was ineligible for inclusion in the select list.
Consequently, the Court dismissed the petition.
Cause Title: Anoop Varkey v. G.S. Sajiprasad & Ors. (Neutral Citation 2025:KER:31193)
Appearance:
Petitioner: Senior Advocate K. Jaju Babu; Advocates M. U. Vijayalakshmi, Brijesh Mohan
Respondents: Senior Government Pleader A. J. Varghese; Standing Counsel (KPSC) P.C. Sasidharan; Advocates C. Leena, V. Prince Dev
