IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 1ST SEPTEMBER 2008 / 10TH BHADRA 1930 WP(C).No. 23777 of 2006(E) -------------------------------------- PETITIONER: ------------------ K.K. SASIDHARAN, ASST. EXCISE INSPECTOR, EXCISE RANGE OFFICE, ALACODE, KANNUR DISTRICT. BY ADV. SRI.N.SUGATHAN. RESPONDENTS: ----------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF EXCISE, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM. 3. THE JOINT COMMISSIONER OF EXCISE, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM. 4. THE DEPARTMENTAL PROMOTION COMMITTEE FOR THE POST OF EXCISE INSPECTOR, REP. BY ITS CONVENOR & JOINT COMMISSIONER OF EXCISE,THIRUVANANTHAPURAM. 5. THE PRINCIPAL SECRETARY TO GOVERNMENT, HOME AND VIGILANCE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 6. THE DIRECTOR, VIGILANCE & ANTI-CORRUPTION BUREAU, THIRUVANANTHAPURAM. 7. THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE & ANTI-CORRUPTION BUREAU, THRISSUR. BY SR. GOVERNMENT PLEADER SRI. P. NANDAKUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/07/2008, THE COURT ON 01/09/2008 DELIVERED THE FOLLOWING: W.P.(C). NO.23777/2006-E: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER NO.XD3-37850/03 DTD. 02/11/2004 OF THE R.3. EXT.P.1.A: EXTRACT OF THE FINAL SENIORITY LIST OF ASST. EXCISE INSPECTORS FOR THE PERIOD FROM 01/11/1996 TO 31/12/2003. EXT.P.2: COPY OF THE F.I.R. DTD. 30/05/2003. EXT.P.3: COPY OF THE G.O. (MS).NO.20/2005/TD DTD. 11/02/2005. EXT.P.4: COPY OF THE ORDER DTD. 25/07/2005 IN I.A. 10760/05 IN W.P.(C).26904/04. EXT.P.5: COPY OF THE ORDER NO. XE2-14981/2005 DTD. 23/08/2005 OF THE R.3. EXT.P.6: COPY OF THE ORDER NO. XD3-18923/03 DTD. 23/08/2005 OF THE R.3. EXT.P.7: COPY OF THE REPRESENTATION DTD. 08/09/2005 TO THE R.4. EXT.P.8: COPY OF THE JUDGMENT DTD. 06/10/2005 IN W.P.(C). NO. 26904/2004. EXT.P.9: COPY OF THE AFFIDAVIT DTD. 09/03/2006 IN CONT. CASE (C).NO.247/2006. EXT.P.10: COPY OF THE JUDGMENT DTD. 05/04/2006 IN CONT. CASE (C). NO. 247/2006. EXT.P.11: COPY OF THE ORDER NO. XD3-16192/06 DTD. 30/06/2006 OF THE EXCISE COMMISSIONER, TVM. EXT.P.12: COPY OF THE REPRESENTATION DTD. 20/05/2006 TO THE R.3. EXT.P.13: COPY OF THE ORDER NO. XD3/11080/06 DTD. 03/08/2006 OF THE EXCISE COMMISSIONER, TVM. EXT.P.14: COPY OF THE LETTER NO. XD3-26636/04 DTD. 01/09/2006 OF THE R.2. EXT.P.15: COPY OF THE G.O. (RT).NO.172/2006/PD DTD. 22/03/2006. EXT.P.16: COPY OF THE ORDER NO.X D3-11080/06 DTD. 08/12/2006 OF THE R.2. EXT.P.17: COPY OF THE ORDER DTD. 07/12/2006 IN W.P.(C). NO. 32493/2006. EXT.P.18: COPY OF THE ORDER DTD. 07/12/2006 IN W.P.(C). NO. 32493/2006. EXT.P.19: COPY OF THE G.O. (RT). NO. 384/07/TD DTD. 07/05/07. EXT.P.20: COPY OF THE MEMO OF CHARGES NO. 9452/A2/06/VIG. DTD. 19/06/2006. EXT.P.21: COPY OF THE EXPLANATION DTD. 03/08/2007 SUBMITTED BY THE PETITIONER. EXT.P.22: COPY OF THE LETTER DTD. 18/12/2007 OF THE R.5. TO THE PETITIONER. RESPONDENTS' EXHIBITS: EXT.R1.A: COPY OF THE LETTER DTD. XD3/26636/04 DTD. 01/09/2006. //TRUE COPY// P.S. TO JUDGE. prv. CR V. GIRI, J. ------------------------------- WP(C).NO. 23777 of 2006 --------------------------------- Dated this the 1st day of September, 2008. JUDGMENT A question involving the relevant date that has to be taken, in assessing the eligibility of a person aspiring for promotion to the selection post, in the context of Note to Rule 28(b)(i)(7) of part II of KS and SSR (hereinafter Rules) and in the context of a possible vigilance case against the aspirants for promotion arises for consideration in this case. A detailed discussion has been undertaken in this case in circumstances where a distinction was sought to be drawn between criminal cases where FIR is registered against the Government servant involving offences under the Penal Code before the Courts of General Criminal jurisdiction and cases under the provisions of the Prevention of Corruption Act taken cognizance of by a Vigilance Court. 2. I heard in detail learned counsel for the petitioner Sri. N.Sugathan and the senior Government Pleader Mr. P. Nandakumar on this aspect. WPC.23777 /2006 2 3. The petitioner joined service as an Excise Preventive Officer in the year 1998 and was promoted in the year 2003 as an Assistant Excise Inspector. He was included in Ext.P1 final seniority list of Assistant Excise Inspectors. Promotion therefrom is to the post of Excise Inspector which though is a non gazetted post is nevertheless a selection post. The petitioner became fully qualified and eligible to be considered as Excise Inspector in July, 2005. It is the petitioner's case that there were no adverse remarks in his CR and his Reviewing Officer apparently reported that he is a loyal and obedient officer fit for promotion. This assertion does not seem to be specifically controverted. 4. The Vigilance and Anti Corruption Bureau conducted a surprise check in the Excise Division Office, Thrissur. A body check was conducted on all the employees who were present in the office. The table and the almirah in the office were subjected to search. Apparently amounts in excess of declared as cash were recovered from some of the officers working there. Ext.P2 FIR was registered by the Vigilance and Anti Corruption Bureau on 30.5.2003 before the Vigilance court against the petitioner and five others. The petitioner and other officers were suspended WPC.23777 /2006 3 from service vide order dated 28.6.2003. The petitioner sought for revocation of his suspension. Ultimately, he moved this court as WPC.No.16495/2004 which was disposed of recording the submission of the learned Government Pleader that investigation has been completed and the petitioner can be reinstated in service. Accordingly the petitioner was reinstated in service pursuant to order dated 1.7.2004. 5. The petitioner aspired for promotion to the post of Excise Inspector. Since his claim was not considered, he moved WPC.No.26904/2004 for a direction to the DPC to consider his claim for promotion. An interim order was passed by this court on 14.9.2004 requiring the DPC to provisionally consider the petitioner's case. The petitioner was not included in Ext.P3 select list published pursuant to the DPC meeting held on 31.12.2004, apparently for the reason that his probation had not been declared in the cadre of Assistant Excise Inspector, when the DPC had met the petitioner's request for declaration of his probation was not accepted by the Vigilance and Anti Corruption Bureau. When he moved this court seeking a direction in this regard, Ext.P4 order was passed requiring the Excise Commissioner to WPC.23777 /2006 4 take a decision on the petitioner's request for declaration of his probation. Thereafter by Ext.P5 order dated 23.8.2005 the petitioner's probation was declared with effect from 8.7.2005. On the same day, by Ext.P6 order, 9 persons included in Ext.P3 select list were promoted as Excise Inspectors, 7 out of them were juniors to the petitioner. The petitioner submitted Ext.P7 objection thereto. While so, WPC.No.26904/2004 preferred by him earlier was disposed of vide Ext.P8 judgment requiring the respondent to convene an adhoc or review DPC and reconsider the case of the petitioner taking into account the order by which his probation was satisfactorily declared with effect from 8.7.2005 and when this was not complied within time, contempt proceedings were initiated. Respondents appeared before this court and submitted that the petitioner's claim was considered in an adhoc meeting of the DPC convened on 15.12.2005. The Vigilance department was required to intimate whether any charge sheet has been issued to the petitioner in VC.No.12/2003/TSR. It was conceded that though there is a vigilance case pending against the petitioner, a final report as to whether a charge sheet was issued was not received as such. WPC.23777 /2006 5 The petitioner was again considered in the DPC (Lower) meeting held on 12.2.2006 and again he was superseded on the premise that there was a vigilance case pending against him. The contempt proceedings were closed with liberty to the petitioner to take appropriate action. The petitioner again approached the respondents to promote him as an Excise Inspector taking note of the fact that many of his juniors have been promoted. It is the petitioner's case as on the date of filing of the writ petition, 28 persons who were juniors to him in the cadre of Assistant Excise Inspectors were promoted as Excise Inspectors superseding him. The only reason for the supersession of the petitioner was the pendency of the vigilance case in relation to which it is categorically asserted that charges were yet to be framed . 6. It is the specific contention of the petitioner that no disciplinary action was pending against him as well. In these circumstances, it is contended that there was absolutely no justification for the DPC which met on 15.12.2005 or subsequently on 18.2.2006 in not directing inclusion of the petitioner in Ext.P3 select list. 7. Separate counter affidavits have been filed by WPC.23777 /2006 6 respondents 1 and 2. The gist of the contention taken by respondents 1 and 2 is available from paragraph 7 of the counter affidavit filed on behalf of the first respondent. The same reads as follows:- “ In the DPC decision dated 15.12.2005, the Departmental Promotion Committee decided to supersede the petitioner and not to include him in the select list for promotion to the post of Excise Inspector since a Vigilance case is pending against him. The DPC meeting for promotion to the cadre of Excise Inspector for the year 2005,2006 has been convened on 18.2.2006 The petitioner's name was also considered in this DPC meeting and it was decided to supersede him since a vigilance case is pending against him.” 8. A detailed reply affidavit has been filed by the petitioner. Apart from controverting the stand taken in the counter affidavit filed by respondents 1 and 2, there is one fact which stands highlighted in the reply which I deem it appropriate to specifically refer to. It is the case of the petitioner that one D.Santhosh, Excise Circle Inspector and Manager who was also one of the WPC.23777 /2006 7 accused in Ext.P2 FIR had approached this court in WPC.No.32493/2006 claiming promotion to the cadre of Assistant Excise Commissioner. By Ext.P18 interim order passed by this court, apparently the DPC (higher) was required to consider the claim of the petitioner therein to the cadre of Assistant Commissioner of Excise and included in the select list provisionally. Pursuant thereto Sri.Santhosh was considered by the DPC (higher) and included in the select list. He was promoted as Assistant Excise Commissioner and posted at Palai. 9. After arguing the matter for some time, learned Special Government Pleader Sri.Nandakumar took time to ascertain the current stage of both the vigilance case as also the disciplinary proceedings pending against the petitioner and 5 others who are arrayed as accused in Ext.P2 FIR. The decision ultimately taken by the Government is expressed in the last two paragraphs in GO.(Rt). 138/2008 Vig. dated 17.6.2008 and the same read as follows:- “ Government have examined the matter again in detail on the basis of the written statement of defence and the submissions WPC.23777 /2006 8 made by the accused officers at the time of hearing. From the circumstantial evidences and the connected records, Government have reached to a conclusion that it may not be proper to initiate Vigilance Tribunal Enquiry against two accused officers only leaving out the others. It is obvious that the money collected is bribe and was received for all officers and staff and hence the Assistant Excise Commissioner and other senior officials should also be held responsible. In the circumstances, Government are pleased to deviate form the tentative decision already taken in the matter to refer the case to Vigilance Tribunal for a detailed enquiry. However, the case will be referred to Secretary Taxes Department to take departmental action against Sri.G.Yasodharan, Assistant Excise Commissioner, Sri.D.Santhosh, Manager, Excise Division Office, Sri.K.K.Sasidharan, Preventive Officer and Sri.K.S.Sunil Kumar, Preventive Officer as contemplated in G.O.(P).No.46/97/Vig dated 31.7.1997. WPC.23777 /2006 9 10. It is therefore apparent that ultimately the decision taken by the Government is to conduct departmental enquiry against the petitioner and others. Obviously the original tentative proposal for proceeding against the accused before the vigilance Tribunal seems to have been given up. Learned counsel for the petitioner submits that this aspect may also borne in mind in considering the challenge mounted by the petitioner against non inclusion of the petitioner in Ext.P3 select list and the subsequent decision taken by the DPC which met on 15.12.2005 and 18.2.2006 in considering the case of the petitioner but declined to direct his inclusion in Ext.P3 select list on the premise that there is a vigilance case pending against him. 11. The only reason given by the respondents in support of the action taken by the DPC to supersede the petitioner in the matter of promotion to the post of Excise Inspector and the further decision taken by the DPC which met on 15.12.2005 and 18.2.2006 in declining to direct the petitioner's inclusion in Ext.P3 select list pursuant to a review of the petitioner's case is that there was a vigilance case pending against the petitioner both when the DPC had originally met, prior to Ext.P3 select list WPC.23777 /2006 10 and thereafter on 15.12.2005 when the review DPC first considered the petitioner's case and even on 18.2.2006 when they next considered the petitioner's case after being intimated from the Vigilance and Anti Corruption Bureau that the petitioner is yet to be charge sheeted in the vigilance case as such. The question is whether this action on the part of the respondents can be justified. 12. Rule 28(b) (i) of Part II KS and SSR deals with promotion and appointment according to merit and ability. After providing that a departmental promotion committee will have to assess the eligibility of the persons who are otherwise eligible to be considered for promotion, Rule 28(b)(i)(7) provides that the select list shall be prepared from among eligible officers on the basis of merit and ability, seniority being a consideration only when all the qualifications are equal. Note to Rule 28(b)(1)(7) is the subject matter of dispute and therefore the same is extracted hereunder: WPC.23777 /2006 11 “(i) Officers under suspension and officers against whom criminal proceedings are pending in a Session's Court or in any other higher court for grave offences like murder, decoity, etc. and officers against whom departmental proceedings are taken for the imposition of a major penalty under the disciplinary rules applicable to them should ndot be included in the select list. But the suitability of such an officer for promotion should be assessed at the relevant time by the Departmental Promotion Committee and a finding reached whether, if the officer had not been suspended or the criminal proceedings/departmental proceedings had not been pending against him, he would have been recommended/selected for promotion. Where a select list is prepared the Departmental Promotion Committee shall also make a finding as to what the position of the officer in that list would have been but for the suspension or the criminal proceedings/ departmental proceedings against him. The findings as to the suitability and the place in the select list of the officer should be recorded separately and attached to the proceedings. WPC.23777 /2006 12 The proceedings of the Departmental Promotion Committee need only contain a note. The findings are recorded in the attached sheet of paper. the authority competent to fill the vacancy should be separately advised to fill the vacancy only on a temporary basis. 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.” 13. Mr.Nandakumar, learned senior Government Pleader specifically refers to the stipulation in the note to the effect that officers against whom vigilance or departmental proceedings are taken after the charges are prima facie established in the WPC.23777 /2006 13 preliminary enquiry should not be included in the select list. He lays stress on the words “after the charges are prima facie being established in the preliminary enquiry.” He contended that pursuant to the inspection conducted by the Vigilance and Anti Corruption Bureau in the office of the Excise Division at Thrissur on 31.3.2003 a preliminary enquiry was conducted at the Government level. Such preliminary enquiries are part of the procedure regularly adopted in all matters taken up for further action pursuant to an inspection and search by the Vigilance and Anti Corruption Bureau. It is only after the preliminary enquiry that Ext.P2 FIR was actually registered on 30.5.2005. Therefore all that the note contemplates in the context of a request made by a person for inclusion in the select list prepared by the DPC, as an embargo is the commencement of vigilance or departmental proceedings against the officer. A vigilance case was pending against the petitioner with effect from the date of registration of Ext. P2 and therefore the embargo contemplated by the note to Rule 28(b)(i)(7) was squarely available in the case of the petitioner. This embargo continued to operate on 15.12.2005. An adhoc DPC first considered the case of the petitioner and WPC.23777 /2006 14 thereafter on 18.2.2006 also. 14. The terminus acquo in so far as the disciplinary/criminal proceedings against an employee in the context of considering him for promotion to the next higher post was considered elaborately by the Supreme Court in Union of India and others vs. K.V.Janakiraman and others reported in 1991(4) SCC 109). 15. para 17 of the said judgment deals with the said aspect. Mr.Sugathan contended that the disciplinary/criminal proceedings can be stated to be pending against an employee in the context of denying him the benefit of a promotion to the next higher post only if at the relevant time either a memo of charges or charge sheet had already been issued in that regard to the employee. In other words, the disciplinary/criminal proceedings which could assume the potential of preventing the Government servant from being considered for promotion can be stated to be pending on the date on which the DPC meets only if a memo of charges as contemplated by Rule 15 of KCS and CCA rules had already been issued to the employee or a charge sheet has been ordered by the criminal court. WPC.23777 /2006 15 16. Mr.Nandakumar also does not seriously dispute this construction. But the controversy really centers around the question as to when vigilance proceedings can be stated to be pending against the employee, in the context of Note (i) to Rule 28(b)(7) of the said Rules. Mr. Nandakumar submits that though issuance of a charge sheet to the employee as an accused might be required as a sine quo non, in the matter of criminal proceedings in general, a different yardstick will have to be adopted in the case of vigilance proceedings, especially in the light of the specific wording contained in the note. He lays emphasis on the note which states that officers against whom vigilance or departmental proceedings were taken after the charges are prima facie established in a preliminary enquiry should not be included in the select list. He submits that in all cases a vigilance enquiry is instituted against a Government servant only after a preliminary enquiry. If that be so, the normal procedure adopted in the matter of registration of a crime against a person and the further steps which are progressively taken in such cases viz. the court taking cognizance of the same or court directing investigation under section 156(3) of the Cr.P.C. and WPC.23777 /2006 16 then accepting a final report filed by the investigating agency under section 173(8) of the Cr.P.C. would not ipso facto apply in the matter of a vigilance case. He submits that in such cases, the enquiry is originally conducted by the vigilance department and ultimately the Government takes a decision to sanction the prosecution of the officer concerned, before the Vigilance court for offences under the PC Act. The Government may take a decision not to proceed with the criminal case but to proceed with the departmental enquiry or in the alternative go for an enquiry before the Vigilance Tribunal which would also be comprehended by the KCS and CCA Rules. But vigilance proceedings will have to be treated as pending the moment a vigilance case is registered as in the instant case as evidenced by Ext.P2 because vigilance case is registered after the preliminary enquiry. The issuance of a charge sheet as is required in other criminal proceedings cannot be insisted upon in the context of Vigilance proceedings as such. 17. The argument is no doubt persuasive. But on a deeper analysis, I am not inclined to accept it. Firstly para 17 of Janakiraman does not postulate any distinction between WPC.23777 /2006 17 criminal proceedings involving offences under the Penal Code and vigilance proceedings pending before the vigilance court involving offences under the PC Act. If proceedings before the Vigilance Court are pending, the ratio in para 17 of Janakiraman should apply on all fours in the case of Note (i) to Rule 28(b) (i) (7) of Part II of KS and SSR also. The embargo on inclusion of a person who faces a vigilance proceedings, from being included in the select list for promotion to a selection post would arise only after a charge sheet is drawn up by the vigilance court in that regard. Proceedings involving offences under the PC Act would be tried as warrant cases and therefore charges will have to be framed against the accused, before proceeding with the trial. There is no reason why the principle laid down in Janakiraman should not apply proprio vigore in the case of vigilance proceedings also. 18. The second reason is the collocation of words “vigilance or departmental proceedings” as occurring in Note (i) to Rule 28 (b)(i) (7). The vigilance and departmental proceedings are considered together in stipulating an embargo on inclusion of a delinquent employee in a select list to be published by the Government. If therefore issuance of memo of charges is WPC.23777 /2006 18 treated as sine qua non for the purpose of pendency of disciplinary proceedings, governed by Rule 15 of the KCS and CCA Rules, the pendency of vigilance proceedings for the purpose of the Rule should be inferred only if charges are framed in that regard by the Vigilance Court. 19. But thirdly and more importantly, I think the very elaborate proceedings that is normally undertaken by the Government before sanctioning the prosecution of a Government servant in the vigilance court for offences under the PC Act should itself be taken as a reason for confining the embargo contemplated by the note to cases where charges are framed against the accused, in circumstances where pendency of a vigilance case is taken as a reason for not considering the delinquent employee for promotion. After a preliminary enquiry, FIR is registered and investigation is undertaken by the Vigilance and Anti Corruption Bureau and final report is submitted to the Government. It is obvious that in several cases the Government may decide not to go in for prosecution under the PC Act. The Government may settle for departmental proceedings or in certain cases drop the proceedings altogether. The Government WPC.23777 /2006 19 may either accept the recommendation of the Director of Vigilance and Anti Corruption Bureau or take a different decision in that regard. This even according to the Government, is a time consuming process. As is evidenced by the present case, Ext.P2 FIR was registered on 30.5.2003 but it was only in 2008 the Government took a decision not to proceed before the Vigilance court with a prosecution under the PC Act. In my view, it would be grossly arbitrary and violative of article 14 of the Constitution of India, if embargo as contemplated by the note is applied at all times after the registration of the vigilance case. In such an event, the embargo stipulated in the note could be struck down as violative of