Central Administrative Tribunal - Ernakulam
Radhakrishnan K vs M/O Home Affairs on 31 August, 2017
1
CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No. 180/00469/2017
, this the 3 t day of ., 2017
CORAM:
Hon'ble Mr. U. Sarathchandran, Judicial Member
Hon'ble Mr. E.K. Bharat Bhushan, Administrative Member
Radhakrishnan K., aged 56 years, Sb. A. Kunjan,
Former Vigilance Officer-I (on deputation from the Police Department),
Vigilance wing of the Kerala State Electricity Board, Vydyuthi Bhavan,
Pattom, Thiruvananthapuram-695 004, residing at Thoranathil House,
Thalayolaparambu, Kottayam -- 686 605. Applicant
(By Advocate: Mr. R. Sreeraj)
Versus
1. The Government of Kerala, represented by its Chief Secretary,
Secretariat, Thiruvananthapuram -- 695 001.
2. Union of India, represented by its Secretary to the Government of
India, Ministry of Home Affairs, New Delhi -- 110 001.
3. Inspector General of Police, Thrissur Range,
Thrissur -- 680 631. Respondents
[By Advocates: Mr. Antony Mukkath, GP & Mr. M. Rajeev, GP
(R1&3) and Mr. S.R.K. Prathap, ACGSC (R2)J
This application having been heard on 14.08.20 17, the Tribunal on
3 delivered the following:
ORDER
Hon'ble Mr. U. Sarathchandran, Judicial Member --
The controversy in this OA is whether the applicant by virtue of Annexure A2 notification issued by the Government of India is a member of the Indian Police Service (IPS) and whether Annexure A3 disciplinary action initiated against him under Kerala Police Departmental Enquiries, 2 Punishment & Appeal Rules, 1958 is maintainable or not?
2. The applicant states that while he was working as Superintendent of Police (non-IPS) he was conferred appointment to the Indian Police Service vide Annexure A2 notification. However while he was working as Superintendent of Police (non-IPS cadre) on deputation as Vigilance Officer in the Vigilance wing of Kerala State Electricity Board he was served with Aimexure Al order of suspension dated 24.10.2016. It was during the currency of the aforesaid suspension Annexure A2 notification appointing him as a member to the IPS has been issued. Nevertheless, the respondent State Government ignoring Annexure A2 Notification decided to proceed with the disciplinary proceedings by issuing Annexure A3 charge memo. According to the applicant as he was appointed to IPS vide Annexure. A2 notification issued by the Government of India he is not amenable to the provisions of the Kerala Police Departmental Enquiries, Punishment & Appeal Rules, 1958 and therefore Annexure A3 memo of charges issued under the aforesaid State rules lacks competency as the same is without jurisdiction. It is further alleged by the applicant that the memo of charges has been issued with malafide intention to deprive him the benefits of his appointment to IPS as he has earned the wrath of the then ruling Government when he refused to toe in the line with it during the investigation of a murder case registered in the Thalassery Police Station, while he was Dy. SP (DCRB) Kannur. The applicant was thereafter denied responsible positions during the reign of the then Government and it is this underlying feud which led to his suspension just a few days before his 3 appointment to the IPS. According to the applicant Annexure A3 memo of charges has been issued with malafides and hence not legally sustainable. He points out that the State Government has not withheld his integrity certificate while his name was considered by the selection committee constituted by the UPSC under the provisions of Indian Police Service (Appointment by Promotion) Regulations, 1955 [herein after referred to as the Regulations] and there was not even an adverse remark against the applicant at any point of time during its process of finalizing the select list by the UPSC. It is further contended by the applicant that after receiving Annexure A3 memorandum of charges though he had time till 23.10.2017 for submitting written statement of defence the inquiring authority proceeded with the inquiry and directed the applicant to attend the oral inquiry at 12 PM on 25.5.20 17. Therefore he seeks relief as under:
"i) Declare that Annexure A-3 Memo of Charges is without jurisdiction and issued with malice and quash the same.
ii) Declare that the enquiry thus far held by the 3d respondent is illegal and contrary to the due process of law and is therefore a nullity.
iii) Such other relief as may be prayed for and this Hon'ble Tribunal may deem fit to grant.
iv) Grant the cost of this Original Application."
3. The OA was contested only by respondents Nos. 1 and 3. In their reply statement it was contended that the applicant was placed under suspension by Annexure Al order dated 24.6.2016 while he was working as a State Police Officer and Annexure A3 memo of charges was issued to him under the provisions of Kerala Police Departmental Enquiries, Punishment & Appeal Rules, 1958. According to them the applicant has retired from State 4 Police Service without granting him any posting under the IPS. He was continuing as Superintendent of Police (Non-IPS) until his retirement and was never posted to Indian Police Service. It is also contended by the aforesaid respondents that applicant's inclusion in the select list for the year 2014 was treated to be provisional based on sub-regulation (5) of Regulation 5 of the Regulations and that Annexure A2 notification was issued on 9.11.2016 without noticing the fact that applicant was under
suspension from 24.10.20 16 in contemplation of disciplinary proceedings. Therefore, his appointment was deemed to be provisional. According to the respondents the misconduct committed by the applicant is to be inquired into by the State Government in accordance with the Kerala Police Departmental Enquiries, Punishment & Appeal Rules, 1958. It is further stated in the reply statement that even if the misconducted committed by the applicant is to be inquired into under All India Services (Discipline & Appeal) Rules, 1969 the State Government is the authority to inquire into the misconduct. The respondents deny the allegation that Annexure A3 was issued with a malice and political ill will.
4. Wehave heard Mr. R. Sreeraj, learned counsel for the applicant, Mr. Antony Mukkath, GP for respondents Nos. 1 & 3 and Mr. S.R.K. Prathap, learned ACGSC appearing for respondent No. 2. Perused the record.
5. Annexure A2 is the notification relied on by the applicant in support of his contention that he was appointed to the IPS. It reads: 5
"No. I-14011/27/2016-LPSJ (II) Government of India Ministry of Home Affairs New Delhi, the 9th November, 2016.
NOTIFICATION In exercise of the powers conferred by sub-rule (1) of rule 9 of the Indian Police Service (Recruitment) Rules, 1954, read with sub-regulation (1) of regulation 9 of the Indian Police Service (Appointment by Promotion) Regulations, 1955, the President is pleased to appoint the following members of Kerala Police Service to the Indian Police Service on probation and to allocate them to the Kerala Cadre under sub-rule (1) of the rule 5 of the Indian Police Service (Cadre) Rules, 1954:--
Select List 2014 S. No. Name (5/Shri) Date of Birth Asokan,B. 13-3-1961 2 Sam Christy Daniel 25-5-1960 3 Radhakrishnan, K. 20-6-1961 4 Alex K. John 17-1-1961 5 Venugopal, K. B. 30-5-1960 6 Zachariah George 3-1-1961 7 Mohamed Rafique, V. M. 25-5-1960
2.The appointments will take effect from the date of issue of this notification.
Sd!-
KULDEEP KUMAR, Section Officer (IPS- 1).
Tele. No. 2309 4038"
Referring to the provisions of the Regulations Shri R. Sreeraj learned counsel for the applicant submitted that Regulation 5 prescribes the procedure for preparation of list of suitable State Police Officers for promotion to the IPS. A reading of Regulation (5) indicates that the Selection Committee constituted by the UPSC prepares the select list of suitable officers in consultation with both the State and the Central Government and that the said Committee takes into account the qualities of the State Police Service officers included in the list of zone of consideration prepared and sent by the State Government and the Committee classifies the eligible officers under different grades based on an overall relative 6 assessment of their service records and seniority. It is also provided in the Regulation 5 that the name of the officers included in the list will be treated as provisional if the Government withholds the integrity certificate in respect of such officers in view of any departmental or criminal proceedings pending against him which renders them not suitable for appointment to the service come to the notice of the State Government. Only if the State Government furnishes integrity certificate 'unconditionally' such officers who are provisionally included in the list will be included in the final select list approved by the UPSC.
6. Thus a reading of the Regulations clearly show that the selection of State Police Officers on promotion to IPS is a tripartite consultative process consisting of the State Government, UPSC and the Central Government. Finally those officers selected by the Selection Committee and finally approved by the UPSC will be appointed by the Central Government in terms of Regulation (9) of the Regulations.
7. The applicant began to feel the teitonic shift in the prospects of his appointment to IPS right from the issuance of Annexure Al suspension order dated 24.10.2016 placing him under suspension while he was working as a Superintendent of Police (non-IPS) under the Kerala Police Service. It was in the meantime Annexure A2 notification came to be published. A reading of Annexure A2 notification as quoted above reveals that it is a Presidential order appointing the applicant among others to the IPS and to allocating them to the Kerala cadre under Sub Rule (1) of Rule 5 of the 7 Indian Police Service (Cadre) Rules, 1954. It is also clear in Annexure A2 that the appointments will take into effect from the date of issue of that Notification i.e. 9.11.2016.
8. As noted above, a meticulous consideration of the merit and eligibility of the State Police Officers included in the zone of consideration is being made by the Selection Committee constituted by the UPSC. Repeated consultations with the State Government and the Central Government are done before such officers are finally approved by the UPSC and then appointed by the Central Government.
9. Shri R. Sreeraj, learned counsel for the applicant submitted that during the process of consideration by the Selection Committee the respondent State Government has not made any demur regarding the non-acceptability of the applicant for selection. He submitted that there was no whisper by the State Government either to the UPSC or to the Central Government that disciplinary proceedings were pending against him. It is worth noticing that even though the State Government states in the reply statement that the applicant is "deemed to have been included in the select list as provisionally" there is nothing on record to show that applicant was included in the select list of IPS by promotion only provisionally. There is also nothing to show that State Government had sent any report to the UIPSC or to the Central Government to deny him appointment either. It is worth noticing that the Central Government has the power not to appoint any person whose name appears in the select list in certain cases. Rule 9(a) 8 of the Regulations read:
"9(a) Powers of the Central Government not to appoint in certain cases:-
Notwithstanding anything contained in these regulations the Central Government may not appoint any person whose name appears in the Select List, if it is of the opinion that it is necessary or expedient so to do in the public interest:
Provided that no such decision shall be taken by the Central Government without consulting the Union Public Service Commission."
There is nothing in record to show that the State Government had taken any steps in that direction either to persuade the Central Government not to appoint him, even after they decided to place him under suspension vide Annexure Al which event was preceding to publication of Annexure A2 notification.
10. The net effect of Annexure A2 notification is that with its publicatIon, the applicant has become a member of the IPS. It is indeed a Presidential order appointing him to the IPS after following the procedure prescribed in the Regulations, taking effect from its date of issue, to which the State Government cannot turn a Nelson's eye. Therefore, without resorting to any of the remedies that were available to the State Government under the Regulations the State Government cannot at a stage after the issuance of Annexure A2 notification make a contention that the applicant has not become a member of the IPS.
11. Referring to the decision of the apex court in V. Venkata Prasad & Anr. v. High Court of Andhra Pradesh & Ors. - (2016) 11 SCC 656 Shri Antony Mukkath submitted that a letter of appointment is not sufficient to prove that the applicant has been appointed in the IPS without appointing 9 him to a post in the service. We feel that the aforecited decision is not applicable to the facts of this case because the procedure for appointing the State Police Officers to IPS is governed by the Regulations which has a statutory force. Rule 9 of the said Regulations clearly governs the mode of appointment. Since Annéxure A2 has been issued under the provisions of the Regulations by way of a Presidential order, the State Government cannot brush it aside by contending that no specific posting has been given by it to the applicant. It is worth reminding the authorities of the State Government that they cannot sideline or shut their eyes to a Presidential order and treat it as not effective to them unless they give a posting to the applicant. We are of the view that the above argument of the State Government is puerile and will be having serious repercussions on the Centre-State relationship as envisaged in our Constitution.
12. In the light of the above discussion we are convinced that by virtue of Annexure A2 notification the applicant has become a member of the IPS of Kerala cadre, appointed by the President of India. Therefore, if at all he has to be made amenable to the disciplinary proceedings to be initiated against him it has to be under the All India Services (Discipline & Appeal) Rules, 1969 and not under the rules framed for the State Police Officers i.e. Kerala Police Departmental Enquiries, Punishment & Appeal Rules, 1958. Therefore, while quashing and setting aside Annexure Al and A3 memo of charges we direct the respondents 1 and 3 to stop the disciplinary proceedings initiated against the applicant under the aforesaid rule forthwith.
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13. It was contended by the respondents that the applicant has been superannuated from the State Police Service on attaining the age of 56 years on 30.4.20 17. However as this Tribunal finds that the applicant has been appointed to the All India Services i.e. in the Indian Police Service, his superannuation will take place only on attaining the age of 60 years. Therefore, we direct the applicant to report before the State Police Chief immediately on receipt of a copy of this order. Respondent No. 1 State Government is directed to issue necessary posting orders to the applicant under the Kerala cadre of IPS. We make it clear that if the State Government considers that the disciplinary proceedings against the applicant needs to be continued the same shall be proceeded only in accordance with the All India Services (Discipline & Appeal) Rules, 1969.
14. The Original Application is disposed of with the above directions. No order as to costs.
(E.K. BHRAT BHUSHAN) (U. SARATHCHANDRAN)
ADMINITRATIVE MEMBER JUDICIAL MEMBER
Original Application No. 180/00469/2017
APPLICANT' S ANNEXURES
Annexure Al -- True copy of the GO(Rt) No. 3178/16/H dated
24.10.2016 issued by the 1St respondent (along with its translation).
Annexure A2 -- True copy of the notification No. 1-14011/27/2016- IPS.I(II) dated 9.11.2016 issued by the 2nd respondent. Annexure A3 -- True copy of the memo of charges issued by the 31(1 respondent to the applicant (with English translation). Annexure A4 -- True copy of the written statement of defence submitted by the applicant to the 3( respondent.
Annexure A5 -- True copy of the request for postponement of the enquiry submitted by the applicant to the 3rd respondent.
Annexure A6 -- True copy of the order GO (Rt) No. 695/2017/GAD dated 31.1.2017 issued on behalf of the 1St respondent. RESPONDENTS' ANNEXURES Nil
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