Central Administrative Tribunal - Ernakulam
Kishorekumar J vs Department Of Personnel And Training on 23 May, 2023
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00563/2022
Tuesday, this the 23rd day of May, 2023
CORAM:
Hon'ble Mr. Justice Sunil Thomas, Judicial Member
Hon'ble Mr. K. V. Eapen, Administrative Member
Kishore Kumar J, aged 55 years,
S/o. Late Y. Janardhanan,
Superintendent of Police, State Crime Records Bureau,
PHQ Towers, Thiruvananthapuram - 695 010,
Residing permanently at KaithaparampuVeedu,
Arayoor P.O.,Thiruvananthapuram - 695 122. -Applicant
(By Advocate: Mr. M. R. Hariraj)
VERSUS
1. Union of India, represented by its Secretary,
Department of Personnel and Training,
Ministry of Personnel, Public Grievances and Pension,
New Delhi - 110 069.
2. The Union Public Service Commission
represented by itsSecretary, ShahJahan Road,
New Delhi - 110 069.
3. The Selection Committee for Selection to the Indian Police Service,
Constituted under Regulation - 3 of the Indian Police Service
(Appointment by Promotion) Regulations, 1955,
represented by itsChairman, Union Public Service Commission,
New Delhi - 110 069.
4. State of Kerala,
represented by the Additional Chief Secretary,
Home Department, Government Secretariat,
Thiruvananthapuram - 695 001.
5. State Police Chief, Police Headquarters,
Thiruvananthapuram - 695 010.
6. Deputy Inspector General of Police,
Thiruvananthapuram Range,
Thiruvananthapuram - 695 034. -Respondents
O.A180/563/2022
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(By Advocates: Mrs. O. M. Shalina, SCGSC for R1,
Mr. Thomas Mathew Nellimoottil for R2&3,
Mr. Baijuraj G, Sr. GP for R4, 5& 6)
This Original Application having been heard on 6th April, 2023, the
Tribunal on 23rd May 2023 delivered the following:-
ORDER
Per: K. V. Eapen, Administrative Member The applicant in this O.A is a State Police Service (SPS) Officer, Kerala who is being considered for appointment by promotion into the Indian Police Service (IPS). He filed this O.A originally on 13.10.2022. Later the O.A was amended and refiled on 22.11.2022. The applicant seeks the following relief: -
"(i) To declare that Annexure A9 is not liable to be considered against the applicant while preparing the select list for Indian Police Service for the year 2019 and 2020 by respondents 1 to 3 and to direct the respondents 1 to 3 to consider the applicant for inclusion in the select list and for appointment by promotion to the Kerala Cadre of Indian Police Service for 2019 and 2020 ignoring Annexure A9.
(ii) To call for the records leading to Annexure A12 and A14 and quash the same to the extend it considers the inclusion of the applicant in the select list as provisional, and refuses posting to applicant in preference to his juniors and those below him in the select list;
(iii) To direct the respondents to consider the applicant as included in Annexure A12 select list unconditionally and to grant him appointment to Indian Police Service in preference to others ranking below him in Annexure A12 with effect from the date on which such promotion is granted to those below him in the select list with all consequential benefits including arrears of pay and allowances with interest at 12% per annum;
(iv) To grant such other reliefs as may be prayed for
and the Hon'ble Tribunal may deem fit to grant; and
(v) To grant the costs of this Original Application."
O.A180/563/2022
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2. The applicant seeks a direction in the OA that the disciplinary proceedings drawn up against him, along with the charge memorandum issued on 12.10.2022 vide Annexure A9, be not considered while preparing the select list for IPS for the year 2019 and 2020 by the respondents 1 to 3. Further, he also prays for a direction that the select list approved by the UPSC vide Annexure A12 dated 16.11.2022 and the appointment order issued vide Annexure A14 dated 16.11.2022 appointing members of the Kerala Police Service to the Indian Police Service be quashed to the extent that Annexure A12 has considered the inclusion of the applicant in the select list as 'provisional' and Annexure A14 has fully excluded from the appointment.
3. The applicant had commenced service in the Kerala Police as a General Executive Branch Sub-Inspector on 20.04.1995. He submits that he has had generally blemish less service record. He was promoted as Deputy Superintendent of Police (Dy.SP) in 2008 and still later, promoted as Non- Cadre Superintendent of Police in July 2017. The first respondent (indicated herein as Secretary to the Government of India, Department of Personnel and Training, though generally in such cases, it is the Secretary Ministry of Home Affairs as the matter is regarding promotion to the IPS) had determined that there would be 9 vacancies in the quota for appointment by promotion to the Indian Police Service in the Kerala Cadre for the year 2019 and 14 vacancies for the year 2020 as per Annexures A1 and A2 letters respectively. It is submitted that the Selection Committee in the Union Public Service Commission (UPSC) for preparing the Select List of candidates for promotion from the State Police Services to the IPS should ordinarily meet every year as per the regulations. It is further submitted that, anticipating that the applicant O.A180/563/2022 4 would be considered for promotion to the Indian Police Service (IPS), some vested interests had instigated initiation of a departmental inquiry against the applicant in the year 2019 itself in respect of certain allegations related to incidents which occurred in 2017. However, after an elaborate inquiry, the charges were found to be not proved by the Inquiry Officer. Even after that, a penalty was proposed by the Disciplinary Authority disagreeing with the report. However, after considering his representation against the same the proceedings were closed only with a reprimand, which does not amount to any penalty.
4. It is submitted that the above disciplinary proceedings were concluded by April 2022. Meanwhile the holding of the Selection Committee Meeting pursuant to the identification of vacancies by the Annexures A1 and A2 letters was still pending. The name of the applicant had been included in the zone of consideration for the years 2019 and 2020. An Integrity Certificate was also issued. A copy of the proposals of the State Government of Kerala for the years 2019 and 2020 submitted through letters dated 21.05.2022 and 24.05.2022 have been produced at Annexure A3 and Annexure A4. The Selection Committee meeting envisaged under the Indian Police Service (Appointment by Promotion) Regulations, 1955 was then finally held on27.06.2022. The applicant submits that this Selection Committee which held its meeting on 27.06.2022 had finalised the Select List for the 2019 and 2020 vacancies. In this regard, the applicant did not produce any separate document but a copy of a news report which had been published in a local newspaper, Malayala Manorama dated 29.07.2022 at Annexure A5. In that report it was indicated that 23 officials who are working as Superintendent of O.A180/563/2022 5 Police in Kerala State Police Department had been selected for recruitment into the IPS and that the decision had been taken in the UPSC's Committee Meeting held in Delhi for filling up the posts vacant for the years 2019 and 2020. The applicant's name appeared in the list published in the Newspaper.
5. The applicant submits that he was then awaiting the final publication of the Select List. At that time, this Tribunal by an interim order in OA.180/527/2021 filed by one Shri. C Bastin Sabu issued certain directions on the respondents. A copy of the interim order issued by this Tribunal dated 02.09.2022 in that matter has been produced by the applicant at Annexure A6. As per this order it had been directed that the representation submitted by the applicant therein (C. Bastin Sabu) should be properly considered by the Selection Committee before finalisation of the Select List for the vacancies in IPS for the years 2019 and 2020. It was also directed that a Review Selection Committee Meeting can also be conducted for that purpose and that the Committee should consider all the observations and directions made in the previous interim order dated 10.12.2021 of this Tribunal and the explanations of the State Government before finalising their decision relating to the suitability of the candidature of the applicant (C Bastin Sabu). Further if, after such consideration, the applicant (C Bastin Sabu) is not found fit to be included in the Select List, one of the vacancies in 2019 would have to be kept unfilled, until final disposal of the OA.180/527/2021. It was also made clear, however, that this order would not stand in the way of filling up the remaining vacancies of 2019 and 2020 from among the other persons shortlisted in the Select List of the IPS Kerala for the vacancy years 2019 and 2020. It was also made clear in the interim order that everything should be done as early as O.A180/563/2022 6 possible notwithstanding these orders which were confined only to the case of the applicant.
6. The applicant in this O.A (J. Kishore Kumar) submits that, immediately after the proposal of the State Government at Annexures A3 and A4 was sent to the UPSC, an order had been issued by the 4th respondent (Additional Chief Secretary, Home Department, Government of Kerala) directing that an oral enquiry against the applicant in another matter be conducted under the KPDIP&A Rules. The charge in this matter related to the arrest and detention of four persons without collecting adequate materials and falsely implicating them in a murder case by the applicant. It was also directed in the order dated 01.06.2022, produced at Annexure A7, that the State Police Chief would suggest a competent senior officer for conducting the inquiry. In this regard, the applicant has submitted some details in order to explain the circumstances which led to the institution of the oral inquiry ordered by the Government vide Annexure A7. It is submitted by him that due to public pressure a particular case was transferred by the Superintendent of Police, Palakkad from the Crime Branch Palakkad to the Crime Branch, Malappuram where the applicant had been posted as Dy.SP, Crime Branch, Malappuram. The applicant was entrusted with the investigation of the case. After due investigation, he had found that so far the said investigation was still proceeding as one in respect of an unnatural death only. He then took steps to ensure that the offences under Section 302 the IPC were also included in addition in the FIR. The applicant has given certain details in this regard by which he seeks to establish his investigation had found and pointed conclusively to the involvement of some 4 persons in the unnatural death case. These 4 persons involved were then O.A180/563/2022 7 arrested and were subjected to polygraph test. Further investigation was then conducted and it is submitted that all the evidence collected pointed to the fact that at the behest of the 1st accused, accused nos. 2 to 4 had committed murder of an individual concerned, whose body was recovered from a canal. The applicant submits that, he was later on 06.04.2010 transferred from the Crime Branch, Malappuram to Crime Headquarters Analysis Wing, Thiruvananthapuram. This was done at that time when the charge sheet had to be submitted.
7. From the details submitted by the applicant it appears that the skull of the individual recovered from the Canal was sent only in the year 2014 for an Odontology test to AIMS, Ernakulam. The result, therein, was found inconsistent with the earlier held result of superimposition test which had confirmed that the skull belonged to the missing person who had been alleged to have been murdered. Later the skull was also sent to CDFD, Hyderabad for DNA test and the DNA test also concluded that the skull was not that of the missing person. The applicant, however, submits that this could have happened as there were some unauthorised interventions in the investigation in the test. Further, the AIMS, Ernakulam is not the authorised Forensic Lab of the Government and the integrity of the chain of custody of the skull itself was doubtful. However, since such aspects are matters beyond his reach, it is submitted that all that he had done was to make bonafide efforts in an independent and dispassionate manner in his investigation in the case. It is submitted that those who had been accused also did not have a complaint against him. In any case, the so-called missing person has still not been found after two decades. Hence, the body which was found floating in the O.A180/563/2022 8 canal even if not of that missing person still the identity of that person is not yet known. Based on these facts he gave a detailed representation to the Chief Minister and Home Secretary of the Government of Kerala against the decision to institute an oral enquiry against him. A copy of the representation dated 15.06.2022 is produced at Annexure A8. However, the charge memo dated 12.10.2022, produced at Annexure A9, was issued on him, which should be deemed as void.
8. The applicant submits that this charge memo is apparently issued by the Deputy Inspector General of Police (DIG), Thiruvananthapuram Range, the 6th respondent in this O.A., who is not his disciplinary authority. The actual disciplinary authority of the applicant is the 4threspondent (Additional Chief Secretary, Home Department, Government of Kerala) and as such the Annexure A9 Memo should be taken to be void. The respondents issued the charge memo in undue haste on him at 5.45 PM on 12.10.2022. He submits that it is reliably learnt by him that the only reason for this haste was to communicate to the 2nd respondent, UPSC that a disciplinary proceeding against him was pending before the Review Selection Committee Meeting was conducted in accordance with the interim order of this Tribunal dated 02.09.2022 in O.A 527/2021 produced at Annexure A6. This would then ensure that the applicant would be left out of the consideration.
9. It is contended that the charge memo at Annexure A9 is not only void it has also been issued basically as an exercise of power for reasons other than what appears to be vested. It is submitted that the 2nd respondent UPSC and the 1st respondent Government of India should have ignored the Annexure A9 charge memorandum while considering the case of the applicant for O.A180/563/2022 9 promotion against the vacancies in the IPS for appointment by promotion for the year 2020. However, this was not taken into proper consideration. The orders described earlier, at Annexure A12 and A14, being approval of the Select List of 2019 and 2020 (Annexure A12) and appointment to the IPS for the Selection List of the year 2019 and 2020 (Annexure A14) were issued. In the notification at Annexure A12 the applicant has been indicated in the Select List 2020 at SI.No.2 with an asterisk (*) against his name, which in the foot note to the same indicates that he has been included in the list provisionally, subject to clearance in disciplinary proceedings pending against him and the grant of Integrity Certificate by the State Government. In the communication dated 16.11.2022 at Annexure A14 his name has been completely omitted from the Select List 2020 consisting of 13 names (instead of 14 vacancies specified) for appointment to the IPS against vacancies of 2020.
10. The applicant submits that he has since also approached the Kerala Administrative Tribunal (KAT) challenging the Annexure A9 charge memo issued against him. The KAT had disposed of the matter in O.A 1923/2022 on 16.11.2022 with a direction to the 1st respondent Home Department, Government of Kerala therein to consider the representation submitted by him after affording him an opportunity of hearing and then, to pass orders on the same before proceeding further on the basis of the Annexures A16 and A18 of that case. The said Annexure A16 is a copy of the Home Department Memo dated 01.06.2022, which has been produced at Annexure A7 in this O.A and Annexure A18 is the copy of another GO dated 27.06.2022 of the Home Department, which has been produced at Annexure A10 in this O.A. The main grounds taken by the applicant are that he is entitled to be considered for non-
O.A180/563/2022 10 provisional inclusion in the Select List and that, he should have been given appointment to the IPS based on such inclusion, in preference to those ranking below him. Further, the Select List should have been prepared based on the facts and circumstances in existence in 2020 or, at best, on the date of the first Selection Committee meeting, i.e., 27.06.2022 and not be affected by subsequent developments.
11. It is submitted by the applicant that it is impermissible for the 4th respondent, Home Department, Government of Kerala to withhold his Integrity Certificate because there are no proceedings can be taken, based on any pending charge memo in view of the Annexure A13 order of the Kerala Administrative Tribunal. He submits that the issuance of the Annexure A9 charge memo was deliberate and malafide, based on false allegations. Promotion cannot be denied on the ground of fabricated proceedings which are vitiated by legal and factual malice and which are arbitrary, unjust and violative of Articles 14 and 16 of the Constitution of India. Further, as brought out earlier, he submits that the Annexure A9 charge memo has been issued by an authority having no jurisdiction to issue the same, as the 6th respondent DIG of Police Thiruvananthapuram Range is only the Inquiry Officer, whose job was only to forward the draft memo of charges to Government for approval, as per the Home Department's GO dated 27.06.2022, produced at Annexure A10. In addition, the 6th respondent has shown ugly haste which indicates that the action was malafide. The fact remains that the allegations in the charge memo are based on alleged actions of the applicant in the period from 2008 to 2010. An opportune moment had been chosen to initiate the proceedings which demonstrates that the proceedings were only initiated to O.A180/563/2022 11 deny him promotion and prevent his entry into the Indian Police Service. He submits that he had received the Badge of Honor for Detective Excellence in 2011 and 2012 and that he has been instrumental in solving many crimes.
12. It is submitted that refusing promotion to him based on an inquiry initiated in a doubtful manner is illegal and discriminatory. He submits that the order at Annexure A7 issued by the Home Department ordering an oral inquiry was the result of a report by a person having directly some interest in the earlier mentioned case. To the best of his knowledge, the case was filed after the conclusion of DNA test, which was scruitnised by Additional DGP as well as the Inspector General of Police, Crimes. Both of these authorities did not find any fault with the procedure of investigation of the applicant in the missing person case and had not recommended any proceedings against the applicant. A report had been sent by the Superintendent of Police (SP), NRI Cell, who works in the office of the 5th respondent State Police Chief, Thiruvananthapuram, this SP (NRI Cell) is junior to the applicant and stands to benefit if the applicant is taken out of consideration for promotion to the IPS. The applicant has produced a copy of the letter relating to his case issued by the Superintendent of Police, NRI Cell, Office of the State Police Chief dated 25.02.2022 at Annexure A11. He submits that the latter at Annexure A11 was never approved by the DGP, State Police Chief himself, which again shows the malafide nature of the entire proceedings.
13. The applicant also contends that it is relevant to point out that, when the OA was filed on 13.10.2022 and the matter was first considered by this Tribunal on 14.10.2022, he had apprehended that the impending Selection Committee Meeting to be held on 17.10.2022 would review his case once O.A180/563/2022 12 again and would remove him from the list of officials who had been short- listed in the earlier meeting held for finalising the Select List for 2019 and 2020. He had, therefore, prayed that this Tribunal pass an interim order to direct the respondents to consider his case for inclusion in the Select List for appointment by promotion to the Kerala Cadre of the IPS for 2019 and 2020 by ignoring Annexure A9 Charge Memo dated 12.10.2022. This was on the first day when the matter was listed before this Tribunal. The Tribunal, after considering whatever material was available at its disposal, only clarified and reiterated that the order dated 02.09.2022 in O.A 527/2021 in the case of C. Bastin Sabu (produced herein at Annexure A6) had only directed that Annexure A14 representation made by the applicant, C. Bastin Sabu in that O.A, should only be considered by the Selection Committee and that, if required, a Review Selection Committee Meeting can be conducted for the purpose. The other aspects of that order have been brought out earlier. Thus the respondents in this O.A (563/2022) were specifically directed to keep only the directions made in the order dated 02.09.2022 in O.A 527/2021 in mind while they conducted the Review Selection Committee Meeting. It was also indicated that the Tribunal's observations in this stage were confined only to this effect.
14. The applicant then filed M.A 180/937/2022 where the documents which have been referred to above, including our interim order on 14.10.2022, the notification dated 16.11.2022 regarding the Select List (Annexure A12) and final appointment to the IPS vide the communication dated 16.11.2022 (Annexure A14), along with orders of KAT dated 16.11.2022 in O.A 1923/2022 (brought out in the O.A at Annexure A13) were brought to the O.A180/563/2022 13 notice of this Tribunal. However, since these documents have now become part of the amended O.A, we are not separately going into them again. The M.A was filed for a direction to treat the applicant as included in the Select List unconditionally and to grant the applicant appointment to Indian Police Service, which is the same relief as sought in the amended O.A itself. Since we are dealing with the matter in these orders, the M.A No.937/2022 dated 18.11.2022 can be taken as closed. As noted, the documents brought to notice therein along with the prayer has now been incorporated in the amended O.A itself.
15. We now take up the reply statements filed in the O.A by the respondents. Learned SCGSC Smt. O. M. Shalina has filed a memo dated 21.11.2022 on behalf of the respondent No.1 (Ministry of Home Affairs). In this Memo, it has been indicated that the Review Selection Committee Meeting was held on 17.10.2022. The Memo further indicated that the Government of Kerala, vide its letter dated 26.10.2022, had also forwarded a copy of the minutes of the Selection Committee Meeting held on 17.10.2022 for the preparation of Select List for the year 2019 and 2020 for promotion of State Police Service officers to the IPS of Kerala Cadre. The State Government had requested the Ministry to forward its observations to the Union Public Service Commission on the aforesaid minutes in terms of Regulation 6(A) of the Indian Police Service (Appointment by Promotion) Regulations, 1955 (hereafter referred to as the Regulations or 1955 Regulations). After due consideration, the Ministry had given its recommendation to the Commission on the minutes vide letter dated03.11.2022 without any modification, with a request that the decision O.A180/563/2022 14 taken by the Commission regarding approval of the Select list prepared by the Selection Committee may be conveyed to the Ministry immediately for taking further necessary action in the matter. Learned Nodal Counsel for UPSC Sh. Thomas Mathew Nellimoottil submitted that the recommendations of the Selection Committee had been approved by the UPSC without any modification and the same had been intimated to the Ministry of Home Affairs as per letter dated 11.11.2022. The names of State Police Service officers of Kerala approved by the Selection Committee in its meeting held on 17.10.2022, for filling up of22 substantive vacancies in the Kerala Cadre of Indian Police Service was then notified as per the Notification dated16.11.2022issued by the Ministry of Home Affairs, publishing the Select Lists of the year 2019 and 2020 prepared by the Selection Committee in its meeting held on 17.10.2022. This has been produced by the learned SCGSC at Annexure R1(A)(which is a copy of the same document produced as impugned order at Annexure A12).Similarly, it is recorded that in furtherance of Annexure R1(A) Select List, in exercise of the powers conferred by sub- rule (1) of rule 9 of the Indian Police Service (Recruitment) Rules, 1954read with sub-regulation (1) of regulation 9 of the Indian Police Service(Appointment by Promotion) Regulations, 1955, the President has appointed the members, whose names were included unconditionally in the above Select Lists of Kerala Police Service to the Indian Police Service against vacancies determined by Government of India for Select List Years 2019 and 2020. Further it has allocated them to the Kerala Cadre under sub- rule (1)of the Rule 5 of the Indian Police Service (Cadre) Rules, 1954. The notification in this connection dated 16.11.2022 issued by the Ministry of Home Affairs have been produced at Annexure R1(b) (which is the same O.A180/563/2022 15 notification produced at Annexure A14 as the impugned order). In effect, what is being indicated by these details is that the Ministry of Home Affairs has, without any modification of the Select List prepared by the Selection Committee, issued the notification without modification of the Select List prepared by the UPSC in the minutes of the meeting held on 17.10.2022. The Ministry has also issued the appointment under the relevant rules to the IPS of the eligible members of State Police Service of Kerala. Therefore, the Ministry of Home Affairs has not taken any contrary position or any other view on the actions being taken by the UPSC or the State Government.
16. The Union Public Service Commission (UPSC) has not filed a separate reply statement in this O.A. A Counsel statement has been filed on behalf of the UPSC respondents 2 and 3 by the learned Nodal Counsel for UPSC Sh. Thomas Mathew Nellimoottil. In the Counsel Statement it is indicated, at the outset, that in accordance with the provisions of the Indian Police Service (Appointment by Promotion) Regulations, 1955, the Selection Committee, presided over by the Chairman/Member of the UPSC makes selection of the State Police Service (SPS) Officers for promotion to the Indian Police Service (IPS). The UPSC is concerned with the convening of the Selection Committee Meeting and approval of the Select List prepared by the Selection Committee in consultation with the Government of India and State Governments in this process. The State Government is responsible for forwarding the necessary proposals/documents for consideration of the Selection Committee. As per Regulation 5(2) of the Promotion Regulations, the State Government is required to furnish the eligibility list consisting of names of State Police Service Officers equal to three times the number of vacancies determined by O.A180/563/2022 16 the MHA, who are substantive in the State Police Service as on 1st January of the vacancy year and have completed not less than 8 years of continuous service in the post of Deputy Superintendent of Police (Dy.SP) or in any other post or posts declared equivalent thereto by the State Government. Under Regulation 5(4) of the aforesaid Regulations of 1955, the Selection Committee should verify the eligible officers in the zone of consideration as 'Outstanding', 'Very Good', 'Good' or 'Unfit' as the case may be based on an overall relative assessment of their service records and, later thereafter, as per the provisions of the Regulation 5(5) of the said Regulations, the Selection Committee prepares a list by including the required number of names, first from the officers finally classified as 'Outstanding', then from amongst those similarly classified as 'Very Good' and thereafter from amongst those similarly classified as 'Good'. The order of names within each category is maintained in the order of their respective inter-se seniority and classification on their assessment of service records. The proviso under the Regulation 5(5) also provides that the name of an officer so included in the list shall be treated as provisional if the State Government withholds the integrity certificate in respect of such officer or any proceedings, departmental or criminal are pending against him which renders him unsuitable for appointment to the service has come to the notice of the State Government. Further by two explanations, it has also been clarified under Regulation 5(5)that the proceeding should be treated as pending only if a charge sheet has actually been issued to the officer or filed in a Court as the case may be and that the adverse thing which came to the notice of the State Government rendering him unsuitable for appointment to the service shall be treated as having come to the notice of the State Government only if the details of the same have been O.A180/563/2022 17 communicated to the Central Government and the Central Government is satisfied that the details furnished by the State Government have a bearing on the suitability of the officer and investigation thereof is essential. These two explanations are called as Explanation I and Explanation II under the Regulation 5(5) of the 1955 Regulations. In addition, the Counsel Statement has indicated that Regulation 7(3) of the Promotion Regulations provides that the list, as finally approved by the Commission, shall form the Select List of the members of the State Police Service. There is another proviso here that if an officer whose name is included in the Select List is, after such inclusion, issued with a charge sheet or a charge sheet is filed against him in a Court of Law, his name in the Select List shall be deemed to be provisional. In addition to the above, there are certain Guidelines issued guiding the actual working of the Commission in which it is indicated that the Annual Confidential Report of the eligible officers are to be evaluated and taken into account.
17. In the Counsel Statement filed by the learned Nodal Counsel for the UPSC it is also indicated that after preparation of the Select List by the Selection Committee in accordance with the provisions of the Regulations of 1955, as well as the Guidelines referred to above, the recommendations are forwarded to the State Government and the Central Government. As per the provisions of Regulation 6 and 6-A of Promotion regulations of 1955,the State Government and the Central Government are required to furnish their observations on the recommendations of the Selection Committee. After taking into consideration the observations of the State Government and the Central Government and the requisite records received from the State Government, the UPSC takes a final decision on the recommendations of the O.A180/563/2022 18 Selection Committee with or without modifications in terms of the provisions of Regulation 7. Thereafter, the appointments to the IPS are made from the Select List by the Government of India, Ministry of Home Affairs. It is submitted that this procedure is being uniformly followed for all the States/Cadres in the matter of induction of the All-India Services.
18. Coming to the facts of the present case it is submitted in the Counsel Statement that the Selection Committee Meeting to prepare the Select Lists of 2019 and 2020 for promotion to IPS of Kerala Cadre had been held on 27.06.2022 against09and 14vacancies respectively. One of the candidates (the applicant in O.A 527/2021) Shri C. Bastin Sabu who was being considered was assessed overall as 'unfit' for both the Selection Lists in 2019 and 2020.It is submitted that before the final approval of the recommendations of the Selection Committee, the Commission received the interim order dated 02.09.2022 in MA No.180/675/2022 in OA No.527/2021 filed by Shri Bastin Sabu directing inter-alia that if after consideration of the representation of Shri Bastin Sabu and also considering the explanations of the State Government, in case Shri Bastin Sabu is not included in the Select List, one of the vacancies in 2019 shall be kept unfilled until final disposal of the O.A. No.527/2021 filed by Shri Bastin Sabu. It was also directed that the interim order would not stand in the way of filling up of the remaining vacancies for the vacancy years 2019and 2020.In view of the aforesaid interim order dated 02.09.2022, the recommendations of the Selection Committee Meeting held on 27.06.2022 were not approved by the Commission. Further, in compliance with the aforesaid order, a Review Selection Committee Meeting to prepare the Select Lists of 2019and 2020 for promotion to IPS of Kerala Cadre was O.A180/563/2022 19 reconvened on17.10.2022. The name of Shri Bastin Sabu was again considered by the Selection Committee for the Select Lists of 2019 and 2020.On the basis of assessment of his service records, Shri Bastin Sabu was once again assessed overall as 'unfit' for both the Select Lists of2019 and 2020. On the basis of this assessment, Shri Bastin Sabu had not been included in the Select Lists of 2019 and 2020.
19. Further, in compliance with the interim order dated 02.09.2022, one vacancy was kept unfilled from the vacancy of the year 2019. The Selection Committee then proceeded to fill up the remaining 08vacancies and 14vacancies for the Select Lists of 2019 and2020respectively. It is submitted that for 08 vacancies for the Select List of 2019, 24 eligible officers were in the zone of consideration. For the year2020, against 14 vacancies only 37 officers against the possible zone of consideration of 42 officers were eligible for consideration. Accordingly, these 37 officers were considered for the Select List of 2020. It is submitted in the counsel statement that the name of Shri Kishore Kumar J. (the Applicant in this O.A) figured at Sl. No. 13 and at SI No.04 in the eligibility lists (zone of consideration) of 2019 and 2020 respectively. As per the Statement of Disciplinary Proceedings/Criminal Proceedings etc., furnished by the State Government, no disciplinary proceedings were known as pending against the Applicant (Shri Kishore Kumar J.) when the Selection Committee had earlier met on 27.06.2022to prepare the Select lists of 2019 and 2020 for promotion to IPS of Kerala Cadre. He was assessed overall as 'Very Good' for both the Select Lists. The name of Shri Kishore Kumar J. was not included in the Select List of 2019 due to availability of officers senior to him with similar grading of 'Very Good' O.A180/563/2022 20 and statutory limit on the size of the Select List. The name of Shri Kishore Kumar J. was however included at SI.No.1 in the Select list of 2020 unconditionally. After this, when the meeting was once again reconvened on 17.10.2022, in pursuance of aforesaid interim order of this Tribunal dated 02.09.2022 in the matter of Sh. C. Bastin Sabu in O.A 527/2021, the name of Shri Kishore Kumar J. was considered along with others, once again. Shri Kishore Kumar J appeared SI.No.13 and at SI.No.5 inthe eligibility lists of 2019 and 2020, respectively when the Selection Committee Meeting met again on 17.10.2022 to prepare the Select Lists of 2019 and 2020 for promotion to IPS of Kerala Cadre. He was once again assessed overall as 'Very Good'. The name of Shri Kishore Kumar J. was again not included in the Select List of 2019 due to availability of officers senior to him and the statutory limit on the size of the Select List. Further, the State Government, in the meantime vide its letter dated 14.10.2022, had intimated that a charge memo dated 12.10.2022 was issued to Shri Kishore Kumar J. in a disciplinary case and that his Integrity Certificate has been withheld.
20. It is indicated in the Counsel Statement that based on the assessment of his service records; Shri Kishore Kumar J. was assessed overall as 'Very Good' for the Select List of 2020. His name was included provisionally atSI.No.02 in the Select List of 2020, subject to clearance in disciplinary proceedings pending against him and grant of Integrity Certificate by the State Government in terms of 1stproviso to Regulation 5(5) of the Promotion Regulations of 1955, the provisions of which have been brought out above. These Select Lists were later approved by the Commission on 11.11.2022. They were acted upon by the Government of India, Ministry of Home Affairs O.A180/563/2022 21 vide its Notification dated 16.11.2022.It is submitted that when the Selection Committee met on 27.06.2022 to prepare the Select Lists of 2019 and 2020, there had been no disciplinary case pending against the applicant. Hence his name had been included at SI.No.1 in the Select List of 2020 unconditionally. However, when the meeting was once again reconvened on 17.10.2022 in pursuance of interim order dated 02.09.2022 of this Tribunal in OA No.527/2021, the State Government vide letter dated 14.10.2022 had already intimated that a charge memo dated 12.10.2022 had been issued to Shri Kishore Kumar J. in a disciplinary case and that his Integrity Certificate has been withheld. Thus his name was included in terms of first proviso to Regulation 5(5) of the Promotion Regulations, provisionally at SI.No.2 in the Select List of 2020, subject to his clearance in the disciplinary proceeding pending against him and grant of integrity certificate by the State Government. It is further submitted that Regulation 7(3) of Promotion Regulations also provides that if an officer whose name is included unconditionally in the Select List is, after such inclusion, issued with a charge sheet or a charge sheet is filed against him in a Court of Law, his name in the Select List will be deemed to be provisional.
21. Thus, in effect what is submitted by the UPSC is that they have only followed the provisions of the Regulations of 1955, read with the Guidelines, while preparing Select List. As per the 1st proviso to Regulation 5(5) of Regulations of 1955, such officers are included provisionally in the Select List in case, at the time of Selection Committee Meeting and before approval of the Select List by the Commission if, the State Government withholds the integrity certificate in respect of such an officer or any proceedings O.A180/563/2022 22 departmental or criminal is pending against him or anything adverse against him, which renders him unsuitable for appointment to the service, has come to the notice of the State Government. Further, as per proviso to Regulation 7(3), even if charge sheet has been issued to an officer after approval of the Select List but before appointment by the Central Government, the inclusion of such an officer in the Select List is deemed to be provisional. In this case, the name of the applicant was included in the Select List of 2020provisionally in terms of these Regulations, since a charge sheet had been issued to him by the State Government and Integrity Certificate had also been withheld by the State Government. It is also indicated in the counsel statement that the case of Union of India etc v K.V.Janakiraman Etc., [(1991) 4 SCC 109] the Hon'ble Supreme Court had held that to qualify for promotion, the least that is expected of an employee is to have an unblemished record.
22. The respondent No.4, Additional Chief Secretary, Home Department, Govt. of Kerala has filed a reply statement through Sr. Government Pleader, wherein, the decision in relation to the issue of Charge Memo on the applicant Sh. J Kishore Kumar (Superintendent of Police of State Crime Records Bureau) is sought to be explained. It is submitted that while holding while holding charge as DySP, CBCID HHW, II Malappuram, the applicant herein had committed gross dereliction of duty while conducting the further investigation of the case in Cr No.30/2001 of Perumpadappu Police Station. He had made a false and baseless assumption that the dead body found in the Cr. No. 30/2001 case of unnatural death was that of one Suroor, who was missing. He arrested four innocent natives and friends of Suroor and got them assaigned as accused. However later after a DNA analysis and odontology O.A180/563/2022 23 test, it was revealed that the deceased person was not Suroor and consequently, the arrested persons were absolved. It is submitted by the respondent No.4, Home Department of Government of Kerala that the arrest and detention of four persons had been made without collecting adequate materials and as such 4 innocent persons had to suffer due to misconduct on the part of the investigating officer and consequently the Government ordered an oral inquiry against him as per GO dated 01.06.2022 (Annexure A7). The Officer had approached the Kerala Administrative Tribunal and the Tribunal directed that further steps would not be conducted in inquiry, until his representation to drop the inquiry was decided (Annexure A13). Later as per GO dated 11.01.2023 the Government rejected his representation and has thus complied with the order of the KAT in O.A No.1923/2022 dated 16.11.2022. The oral inquiry against the applicant is therefore, continuing and the PR minutes are to be received from the Inquiry Officer. It is further clarified that another oral inquiry had been ordered against the officer by GO dated 01.10.2018, which was closed later after considering the representation of the applicant, by modifying the punishment to a 'reprimand' as per GO dated 21.04.2022. However, in this present matter the Government has ordered an oral inquiry as per GO dated 01.06.2022. It is submitted that the Inquiry Officer, who is the Deputy Inspector General of Police (DIG) Thiruvananthapuram Range, had drafted the Memo of Charges. The same was forwarded to the Government and the Government had approved the Memo of Charges on 11.10.2022. Thus it is clarified by the respondents that the draft charge memo received from the Inquiry Officer, DIG, Thiruvananthapuram Range had been approved by the Government on 11.10.2022. In effect, therefore, the Memo of Charges have been drawn up by the Government. The O.A180/563/2022 24 Memo of Charges was also served on the applicant on 12.10.2022. It is also clarified that the DIG, Thiruvananthapuram Range has been appointed by the Government to conduct oral inquiry by serving the Charge Memo after getting the draft approved by the Disciplinary Authority, Government in this case.
23. We now come to the real crux of the issues raised by the applicant. The applicant seeks to establish that the Charge Memo which has been issued on him has been approved by a non-competent authority and needs to be struck down. In this regard, no separate rejoinder was filed by the applicant and the averment was only made during oral submissions by the learned Counsel for the applicant. In addition, M.A No.180/318/2023 was filed by the applicant for discovery of documents for a direction to the 4th respondent, Additional Chief Secretary, Home Department to produce the file relating to issuance of Charge Memo at Annexure A5 along with the file notings, as the contention that the Government had approved the Charge Memo before it was issued by the Inquiry Officer was contested by the applicant. It was submitted in this M.A that this was false and was seriously disputed and that even assuming that there was such an approval, the lack of jurisdiction did not get effaced. After considering the Miscellaneous Application, this Tribunal directed the learned Sr. GP to produce before it a copy of the file notings of the Home Department of the Government of Kerala, wherein the decision in relation to the issuance of Charge Memo etc., on the applicant had been taken. Home Department, Government of Kerala File No.HOME-H1/111/2018-HOME (Computer No.807529) was accordingly produced before the Tribunal on 06.04.2023.On going through the e-file Note sheet it was noted that the draft Memo of Charges had been put up for approval by the Additional Secretary to O.A180/563/2022 25 Additional Chief Secretary of the Home Department on 10.10.2022. Note No.42 indicated that it was seen by the Additional Chief Secretary on 10.10.2022 at 5.08PM and then returned to the Additional Secretary (Home), who saw it on 11.10.2022 at 10.40AM as per Note 43. Further after that, Note 44 in the file revealed that the letter forwarding approved Memo of Charges was put up for approval by the Additional Secretary (Home), which was again seen as per Note 45 and further returned by way of note 46 and 47. The above file was also shown to the learned Counsel for the applicant in Court. From the records that have been produced and shown to us, it appears that the decision to issue the Memo of Charges as well as contents of the Charge Memo had been shown and approved by the Government of Kerala, Home Department before it was issued to the applicant.
24. Learned Counsel for the applicant further submitted (again, during oral submissions since, as indicated earlier, no affidavit or rejoinder in this connection have been filed) that the proviso to Regulation 5(5) of Regulations of 1955 has only provided for the name of an officer who has been included in the list by the Selection Committee to be treated as 'provisional' only if the State Government withholds the integrity certificate in respect of such an officer or if any proceedings, departmental or criminal are pending against him or anything adverse against him which renders him unsuitable for appointment to the service has come to the notice of the State Government. It is submitted by him that when the meeting of the Selection Committee was held on the first instance, i.e., on 27.06.2022, there had been no Charge Memo issued on the applicant and his integrity certificate was clear. Learned Counsel submits that the Selection Committee, appointed under the Regulations, has no O.A180/563/2022 26 further role beyond what has been indicated in Rule 5. It had, therefore, no right to reconsider the case of the applicant in the subsequent reconvened Selection Committee Meeting held on 17.10.2022. He submits that, accordingly the list that had been finalised in the first meeting held on 27.06.2022, should have been taken to be the final one. It is that List that should have been sent to the State Government under the provisions of Regulation 6 and, then the List so prepared, would have to come to the Commission for approval and not again back to the Committee. In other words, the List prepared in the meeting on 27.06.2022 should be the one which should have been considered and approved for preparation of the Select List by the Commission as there was no further role for the Selection Committee after this was done. It is contended that the Selection Committee, by reconsidering the matter fully once again on 17.10.2022, has gone beyond its jurisdiction.
25. It is also submitted that tinkering with the list prepared by the Selection Committee is also illegal and it is not for the State Government to decide as to how the meeting should be held once again. It is only under Regulation 7(2) in case the Commission (as opposed to the Selection Committee) desires it necessary to make changes in the list received from the State Government that the Commission should inform the State Government and the Central Government of the changes proposed and, after taking into account these comments of the State Government and the Central Government, it should approve the list finally with such modifications as it may in its opinion be just and proper. In other words, the Selection Committee does not have any role or does not 'breathe further' beyond Regulation 5. In any case, it is also quite O.A180/563/2022 27 relevant to point out that the interim orders passed by this Tribunal with directions to the Selection Committee were only clearly limited to the re- consideration of the case of Sh. C. Bastin Sabu. This is clear from the details of the order (context of which were brought out earlier) which shows that no other matter beyond the matter of Sh. C. Bastin Sabu was to be considered. Hence, the Selection Committee has, therefore, gone beyond its mandate and jurisdiction and wrongly re-opened the entire matter and considered the preparation of the list once again. In addition, the learned Counsel drew attention to the matter of Delhi Jal Board v Mahinder Singh [(2000) 7 SCC 210] in this connection. In paragraph 5 of the said judgment it is submitted that the right to be considered by the Departmental Promotion Committee was dealt with. It was held that it is a fundamental right, guaranteed under Article 16 of the Constitution of India, to be considered for promotion by the Departmental Promotion Committee provided that the employee is eligible and is in the Zone of Consideration. It is also submitted that the sealed cover procedure permits any issue affects promotion of an individual employee to be kept in abeyance till the result of any pending disciplinary inquiry. It was found in judgment that a fact that by the time one disciplinary proceeding in the first inquiry ended in the employee's favour and by the time the sealed cover was opened to give effect to it, another departmental enquiry was started by the Department, should not have come in the way of giving him the benefit of the assessment by the first Departmental Promotion Committee in his favour in the anterior selection. In other words learned Counsel seeks justify his contention that the first Selection Committee Meeting held on 27.06.2022 is similar to a first DPC held in the case of the applicant and is, therefore, covered by the finding in Delhi Jal Board (supra). The first Selection O.A180/563/2022 28 Committee Meeting had cleared the applicant for inclusion in the Select List and that should have been given effect to. The fact that in the meantime, a departmental proceeding had been instituted on the applicant before the re- convened Second Selection Committee meeting was held on 17.10.2022 should have been ignored and the decision in the first meeting should have been prevailed in light of the Delhi Jal Board (supra).
26. Learned Counsel submits that the findings in the matter of A. Anilkumar v Union of India [(2019) 4 KLT (SN 76) 59] also helps the case of the applicant herein because it indicates that, even if there are disciplinary or criminal proceedings, an official cannot be excluded even if he is under suspension from service from being considered for promotion to the Indian Police Service. In that case that an officer can be considered for inclusion provisionally in the Select List subject to his clearance. Further, the Hon'ble Apex Court in State of Gujarat v Natvarlal Motilal Chavda [(2014) 15 SCC 499] has found at paragraph 8.8 that even after inclusion of an officer in the final Select List, the Central Government may not appoint an officer if it is of the opinion that it is necessary or expedient not to do so in the public interest. However, it is clear that such plenary powers conferred upon the Central Government by Regulation 10 with an opening non-obstante clause, are also subject to the proviso that no such decision shall be taken by the Central Government without consulting the UPSC. Thus, it is clear from the language in which Regulation 10 is couched that the special power of the Central Government to deny appointment to any person, whose name appears in the Select List is quite conditional and should be exercised only if an opinion is formed that it is necessary or expedient so to do in public interest and, further O.A180/563/2022 29 that, even after forming such an opinion, the final decision could be taken only after consulting the UPSC. However in the matter of the applicant herein there is no clear picture as to whether and how the Home Ministry took the decision not to include his name in the final appointment list as per Annexure A14 dated 16.11.2022 and if it was done after due consultation with the UPSC as envisaged under Regulation 10. Further to this it is submitted that in its judgment in Natvarlal Motilal Chavda (supra) the Hon'ble Apex Court referred to the decision taken by the Hon'ble High Court against which the SLP had been filed and also noted that the Hon'ble High Court was of the opinion that promotion of respondent 1, therein, should not be withheld merely because of the reason that much after the meeting of the Selection Committee a charge-sheet was served upon him. The Hon'ble High Court had taken the view that the State Government had made an imperfect and pre-emptive attempt at 'provisionalising' the name of the petitioner after his selection by the Selection Committee, consisting, inter alia, of three of very senior civil servants, including the Chief Secretary, and after examination by the Committee, in particular, of the aspect of integrity of the petitioner as required by the Government of India's decision under Regulation 3.The Hon'ble Apex Court noted in the matter that it was sought to be submitted that the Hon'ble High Court had taken the view that the decision of the State Government of withdrawing the integrity certificate and that of the UPSC, which was accepted by the Union of India, in making the promotion of respondent no. 1 therein 'provisional' was bad in law and not permissible under the extant regulations.
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27. It is submitted by the learned Counsel for the applicant that due to the reasons clarified in Natvarlal Motilal Chavda (supra) the integrity certificate which had been given at the time of the first Selection Committee meeting held on 27.06.2022 should have prevailed in the matter of the applicant, especially, when there was no direction or instruction that the Review Selection Committee Meeting had to re-open already settled cases. It is submitted that the reasonings brought out in the Natvarlal Motilal Chavda (supra), therefore, are in favour of the contentions of the applicant herein. However, these considerations which were, as have noted, only made by the learned Counsel for the applicant in his oral submissions and not by way of written statements or rejoinder have been countered by the learned Nodal Counsel for UPSC in a written submission submitted in the matter on 06.04.2023. As per this submission, it has been at the outset clarified by learned Nodal Counsel for the UPSC that the process in question is to be considered as a matter of lateral induction of the State Service Officers to one of the All India Services(i.e., the IPS herein). Even if the procedure is labelled as "Appointment by Promotion" it is only a clear case of lateral induction, as any officer cannot be 'promoted' from one Service to another. He can only be inducted into the Service and the process is governed by Indian Police Service (Appointment by Promotion) Regulations, 1955. Further these Regulations stipulate that the size of the Select List prepared cannot be greater than the number of vacancies. Initially, the Government of India, Ministry of Home Affairs had determined that there were 9 and 14vacancies respectively for the Select Lists of the years 2019 and 2020. Later, in compliance of the order of this Tribunal, the reconvened Selection Committee Meeting first considered the case of Shri C. Bastian Sabu the applicant in O.A 180/527/2021. Since, O.A180/563/2022 31 Shri Sabu was being assessed as "Unfit" in terms of guidelines of the Commission due to a penalty imposed on him, the Committee decided to keep a vacancy reserved in compliance of the orders of this Tribunal. The Committee therefore decided to prepare the Select List for the year 2019 for the remaining 8 vacancies.
28. Learned Counsel in the written statement has submitted that in terms of the Regulations, 24 officers had to be considered for the 8 vacancies of 2019 as one vacancy was to be kept reserved in compliance with the directions of the Tribunal. Similarly, for preparing the Select List of 2020, the Commission considered 37 officers, proposed by the State Government in terms of the IPS (Appointment by Promotions), Regulations and had prepared a Select List of 14 officers. It is submitted that the argument made by the learned Counsel for the applicant cannot be taken up for consideration in light of the actual facts. For example, it has been stated by the learned Counsel for the applicant that by virtue of the interim order passed by this Tribunal in Shri C. Bastin Sabu's case (O.A No.527/2021), the direction was only not to fill up one vacancy,which would arise at the time of issue of the order of appointment and not earlier. However, as Nodal Counsel for UPSC points out in the written statement that, as far as the applicant (Shri Kishore Kumar J) was concerned, the interim order keeping one post vacant has not affected him in any manner, since irrespective of whether the vacancy was to be kept aside or not he was already in the list, but treated as provisional. Hence, the impact of the interim order in Shri Bastin Sabu's case is not relevant nor required to be considered at all in the case filed by Shri Kishore Kumar.
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29. Learned Nodal Counsel submitted in the written statement that the basic issue as far as Shri Kishore Kumar J is concerned, is whether his name could be included in the Select List, by treating it as provisional when in the earlier list prepared by the Selection Committee on 27.06.2022 there was no such recommendations to include his name as provisional. It is contended that the Selection Committee's decision in its meeting on 13.10.2022 to treat his name as provisional is not 'legally correct'. However, in clarification to the point learned Nodal Counsel in his statement submits that it is to be noted that pursuant to the list prepared by the Selection Committee in its meeting held on 27.06.2022, no actual final Select List was prepared by the UPSC or issued. The fact remains that, as on 17.10.2022, a Charge Memo was issued to the applicant Sh. Kishore Kumar J and it was still pending. This Charge Memo was duly to be considered by the Selection Committee as it existed at the time of its meeting. The Committee included his name as provisional, therefore, strictly in terms of Regulation 5(5) of the IPS (Appointment by Promotion) Regulations, 1955. That apart, the list prepared by the Selection Committee which met on17.10.2022 was not the only record before the UPSC for consideration at the time of approval of the Select List. By then the observations and the records forwarded under Regulation 6 by the State Government and comments from the Central Government under Rule 6A, were also considered by the Commission at the time of approval of the Select List. It is also relevant to mention that, at the time approval of the Select List, latest position with regard to disciplinary proceedings/criminal proceedings, withholding of integrity etc., as intimated by the State Government, is also to be taken into account by the Commission while approving the Select List. Therefore, the inclusion of the name of Shri Kishore Kumar J as provisional in O.A180/563/2022 33 the Select List cannot be faulted, for such list was prepared only based on the materials brought to the notice of the UPSC/Selection Committee, by the State Government.
30. Learned Nodal Counsel submits that another argument was advanced that the reconvened Selection Committee held on17.10.2022 should have confined its deliberations to the case of Shri C Bastin Sabu alone. This cannot be accepted as the Selection Committee cannot ignore the actual situation as it stood at the time of consideration, i.e., the issuance of the Charge Sheet to Shri Kishore Kumar J had taken place by that time. It is submitted that in case the contention of the applicant is to be accepted, it will imply that the entire Select List prepared in terms of the recommendations of the Selection Committee which met on 17.10.2022 is against the directions of this Tribunal and therefore unsustainable. If that is the case, the entire selection should be challenged and not in relation to the applicant alone and everyone included in the Select List ought to be placed as respondents. Thus, this argument is not legally sustainable.
31. Learned Nodal Counsel also submits in the statement that it is also to be appreciated that the applicant's grading has not been changed at all in the reconvened Selection Committee meeting. He was granted an overall grading of 'very good' in both Selection Committee Meetings held on 27.06.2022 and 17.10.2022 for the vacancy years 2019 and 2020. The Committee has followed the first proviso to Regulation 5(5) of the IPS (Appointment by Promotion)Regulations that even if an officer is included in the list by the Selection Committee, his inclusion in the Select List will be treated as provisional if the State Government withholds the Integrity Certificate in O.A180/563/2022 34 respect of such an officer or any proceedings, departmental or criminal, are pending against him or anything adverse against him which renders him unsuitable for appointment to the service has come to the notice of the State Government. Further, as per Regulation 7(3) of the same Regulations, even if the list has been finally approved by the Commission, if an officer whose name is included in the Select list is after such inclusion, issued with a charge sheet or a charge sheet is filed against him in a Court of Law, his name in the Select list has to be deemed only as provisional. In addition, as per Regulation 9(a) too, the Central Government is competent to take a decision not to appoint any person whose name appears in the select list if it is necessary or expedient to do so in the public interest after consulting with the U.P.S.C. It is to be noted that Shri Kishore Kumar J, the applicant in this case, had been served a charge sheet even before the finalization of the Select List and he was, therefore, made provisional under the 1stproviso to Regulation 5(5). Therefore, it is submitted that in any view of the matter the procedure adopted by the Commission is perfectly in order.
32. It is clarified that the State Government, vide letter dated 14.10.2022 had intimated that a Charge Memo dated 12.10.2022 had been issued to the applicant in a disciplinary case and that his Integrity Certificate was withheld. This was taken into consideration in the Selection Committee Meeting held on 17.10.2022 and even though the applicant was included in the Select List of 2020 as SI.No.(2), he was included so 'provisionally' as per the first proviso to Regulation 5(5) of the Promotion Regulations, subject to his clearance in the disciplinary proceedings pending against him and grant of Integrity Certificate by the State Government. Further the contention that the Charge O.A180/563/2022 35 Memo considered by the Selection Committee is void ab initio is a matter to be considered by the concerned Court, which is the Kerala Administrative Tribunal. No such orders have been received from the said Tribunal.
33. In other words, it is contended that whatever has been done by the Commission cannot be faulted. The meeting of the Selection Committee is held for considering and finalising of a Select List based on a year wise vacancy. It cannot be fixed to be held only for a particular purpose for one candidate but has to be taken into account the actual situation of all the candidates appearing in the Zone of Consideration at that precise time. We note in this connection that when the first meeting was held the vacancies taken up for consideration were 9 for 2019 and 14 for 2020. The Zone of Consideration was accordingly fixed at 27 and 42 respectively (3 times the number of vacancies). Later when the 2nd Meeting was held there were only 8 vacancies taken up for 2019 in line with our orders and 14 for 2020. Hence the number of eligible candidates who would have to be taken up for consideration would also be changed because of this. We would largely agree that it is incumbent on the UPSC to take this change into consideration, even though learned Counsel for the applicant contested this (again during oral submissions), stating that, the Zone of Consideration in both the dates of Meeting should have remained at 27 and not changed to 24 as far as Selection Committee was concerned when it was considering candidates for the Select List of 2019. Learned Counsel also contested the validity of the Charge Memo issued by the Government stating that in the reply statement filed by the respondent State Government, it was clear that the Memo of Charges approved but the Annexure A9 Charge Memo was signed by DIG of Police, O.A180/563/2022 36 who is not the Disciplinary Authority in the case. Further, he pointed that the Charge Memo does not indicate that it is 'for or on behalf of the Governor of Kerala' as the Disciplinary Authority in the case of the Applicant should only be the State Government. However, learned Sr. GP contested these interpretations, especially after the concerned filewas produced for perusal before this Tribunal. He submits that in any case it is not for the CAT to decide on whether the Charge Memo was valid or void, as the correct forum for this is Kerala Administrative Tribunal. This Tribunal can only accept that a valid Charge Memo has been issued and to proceed on that basis in absence of any other order to the contrary.
34. However, learned Counsel for the applicant pressed the point that the Charge Memo was issued without jurisdiction and was thus illegally issued. He points to the matter of Government of Orissa v Ashok Transport Agency and others [(2002) 9 SCC 28] to make the point that since the Charge Memo is void, as per the this judgment, any type of void acts, transactions, decrees which are wholly without jurisdiction are ab initio void and that for avoiding the same, no declaration is necessary. The law does not take any notice of the same and it can be disregarded in collateral proceedings or otherwise is not relevant. We have considered this contention and have come to the conclusion that since this Tribunal is not the authority to decide whether the said Charge Memo is void or voidable, it cannot go into this issue. We only note that learned Sr. GP Sh. Antony Mukkath had made the point that the Annexure A9 Charge Memo has been issued by the correct authority and this is established by the case records. It was signed by the DIG of Police but it had clearly been O.A180/563/2022 37 approved by the Government. As stated earlier in the absence of any other orders to this effect, we accept this position.
35. With regard to the second relief sought by the applicant in the OA, i.e., to quash the inclusion of the applicant in the Select List as 'provisional', it was submitted by the learned Counsel for the applicant (verbally) that the directions in A. Anilkumar (supra) at paragraph 11 which outline the details of Clause 7(4) of the Regulations are very relevant. As per Regulation 7(4) it is given that the Select List shall remain in force till 31st day of December of the year in which the meeting of the Selection Committee was held with a view to prepare the list under sub-regulation (1) of Regulation 5 or up to sixty days from the date of approval of the Select List by the Commission under sub-regulation (1) or, as the case may be, finally approved under sub regulation (2), whichever is earlier. It is also provided that where the State Government has forwarded the proposal to declare a provisionally included officer in the Select List as 'unconditional' to the Commission during the period when the Select List was in force, the Commission shall decide the matter within a period of forty-five days or before the date of meeting of the next Selection Committee, whichever is earlier and if the Commission declares the inclusion of the provisionally included officer in the Select List as unconditional and final, the appointment of the concerned officer shall be considered by the Central Government under regulation 9 and such appointment shall not be invalid merely for the reason that it was made after the Select List was ceased to be in force. However after due consideration we have noted that in this case no such proposal to declare the 'provisionally' included officer as 'unconditional' has been forwarded by the State O.A180/563/2022 38 Government. The matter has also become final on 11.11.2022 as per the Regulation provisions and, technically speaking, the Select List is no longer in force and hence the appointments are final and cannot be changed. We have found no grounds to interfere in this position either due to malafide or legal malice issues or on grounds of reasonableness.
36. We now come to our findings which should be quite obvious in light of the earlier comments. Again we should note that most of the contentions were made in oral submissions and not by providing us adequate written statements in the matter. However, we have still considered all the contentions made. After going through the same we find that that no fault can be placed on the UPSC in the process followed by them in this matter in finalising the Select List. Nor can the Selection Committee be faulted in the way that they have dealt with the issue. They have correctly prepared the Select List for 2019 and 2020 after taking into consideration the Charge Memo issued on the applicant (Shri Kishore Kumar J) before the meeting held on 17.10.2022. We note that the Selection Committee and the Commission have followed the Rules as well as their provisos as well as the relevant Guidelines and had correctly placed the applicant in the Select List of 2020 'provisionally'. As the State Government also did not give any further comments in the disciplinary proceedings pending against him within time period envisaged under Regulation 7(4), the List/Appointment to the IPS issued by the Central Government has become final. In relation to whether the State Government was justified or has followed the right procedure in issuing the Charge Memo against the applicant, etc., as noted, this Tribunal is not the correct forum for adjudicating the issue. This Tribunal has to go by the simple fact that the O.A180/563/2022 39 Charge Memo had been issued and was pending before the 2nd Meeting of the Selection Committee was held on 17.10.2022 in the absence of any other orders.
37. Further, we also make it clear that the interim orders of this Tribunal in O.A 180/527/2021 in the matter of Shri C. Bastin Sabu did not specifically debar the Selection Committee or the UPSC from taking into account developments in any other case other than the case of Sh. Bastin Sabu. Or that it debarred the Zone of Consideration of officers being changed or being considered accordingly as per the situation on the date of consideration. We had directed that the meeting was to be held because of the orders of this Tribunal in the case of Sh. C. Bastin Sabu for a proper consideration of the representation of Sh. C. Bastin Sabu as well as points made by this Tribunal earlier in his case. The Orders did not convey anything else in relation to other candidates appearing in the Zone of Consideration or that their matters were not to be taken up. We have noted that as per the procedure in the UPSC, when the matter was taken up, all up-to-date considerations in reference to all the candidates are taken up including whatever developments have taken place in the interregnum. In any case, as is quite clearly indicated from the sequence of dates brought out, none of the legal authorities that have been placed before us can be taken to be relevant in this case of the applicant. The facts and circumstances in his case differs most importantly from those cases, as even after the first Selection Committee Meeting was held, no final Select List had been approved by the Commission till the interim order of this Tribunal in O.A 527/2021 in Sh. C. Bastin Sabu's case had been passed. Hence, it cannot be stated that the Select List had been finalised on the basis of the First O.A180/563/2022 40 Meeting of the Selection Committee. The Select List was finalised on the basis of the Second meeting and by then since the Charge Memo was issued on the applicant (Shri Kishore Kumar J) as per the Regulations, the applicant had to be shown to be included only on a provisional basis. Further, later, since the State Government did not indicate anything else, his name was not included in the final appointment list. As noted this is the normal procedure conducted or followed by the UPSC in such cases. In addition, we also note that the allegations which have been made against the applicant in the Charge Memo are clearly of a very serious nature in so far as the allegations relates to harassment and of unjustified arrest of some individuals in relation to the action taken by him. While the veracity of the same this is for the Inquiry to establish, we would also feel that the judgment of the Hon'ble Supreme Court in Janakiraman etc (supra) that what is least expected of the employee to qualify for promotion is an unblemished record, is fairly relevant in the matter.
38. Hence in view of the above detailed considerations and relevant factors in this matter, we did not find it fit for an intervention in favour of the applicant in the O.A. The O.A is accordingly dismissed. No order as to costs.
(Dated this the 23rd day of May, 2023)
(K. V. Eapen) (Justice Sunil Thomas)
Administrative Member Judicial Member
bp
O.A180/563/2022
41
List of Annexures
Annexure A1- A true copy of the F.No.1-1401/05/2021-IPS-I(E) dated 10.05.2022.
Annexure A2- A true copy of F.No.1-14011/05/2021-IPS.I(E) dated 10.03.2021.
Annexure A3- A true copy of Letter No.ASPNDG/Kottur/18-19 dated 09.10.2018.
Annexure A4- A true copy of representation dated 22.10.2018.
Annexure A5- A true copy of Charge Memo No.F1/4/1/2018 dated 09.10.2019.
Annexure A6- A true copy of written brief dated 27.01.2021.
Annexure A7- A true copy of letter No.F1/4/1/2018 dated 11.05.2021.
Annexure A8- A true copy of the inquiry report dated 05.05.2021.
Annexure A9- A true copy of representation dated 04.06.2021.
Annexure A10- A true copy of appeal dated 23.10.2021.
Annexure A11- True copy of the letter No.G 6-61063/2016/PHQ dated 25.02.2022,
along with its true English translation.
Annexure A12- A true copy of Notification No.F.No.1-14011/05/2021-IPS (E) (I)
dated 16.11.2022.
Annexure A13- True copy of Final Order dated 16.11.2022 in O.A 1923/2022 of the
Kerala Administrative Tribunal.
Annexure A14- A true copy of the notification no.1-14011/05/2021-IPS-I (E) (I)
dated 16.11.2022.
Annexure R1(A)- A true copy of the notification F.No.1-1401 i/05/2021-IPS - (E)(I)
dated 16.11.2022 issued by the Ministry of Home Affairs publishing the Select Lists of the year 2019 and 2020 prepared by the Selection Committee in its meeting held on 17.10.2022.
Annexure R1(B)- A true copy of the notification F.No.1-14011/05/2021-IPS - (E)(I) dated 16.11.2022 appointing the members in the Select Lists of Kerala Police Service to the Indian Police Service.
Annexure MA1- A true copy of Interim Order dated 14.10.2022 in O.A 563/2022. Annexure MA2- A true copy of Notification No.F.No.1-14011/05/2021-IPS-1 (E)(I) dated 16.11.2022.
Annexure MA3- A true copy of Interim order dated 16.11.2022. Annexure MA4- A true copy of the notification no.1-14011/05/2021-IPS-I(E)(I) dated 16.11.2022.
***** O.A180/563/2022