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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 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 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.

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 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.

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 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.

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 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.