IMPORTANT POINTS
The words “officers against whom vigilance or departmental proceedings are taken after the charges are prima-facie established in the preliminary enquiry” can only mean, initiation of departmental proceedings or vigilance proceedings. A vigilance case is commenced and deemed to be pending on submission of the report with recommendations, based on the preliminary enquiry conducted by the Vigilance and Anti-Corruption Bureau along with the approval granted by the Government for a particular course of action, be it registration of FIR or placement of the matter before the Vigilance Tribunal. If the recommendation is for initiation of departmental proceedings, the commencement of the proceedings will be on issuance of charge sheet

JUDGMENT :

V.G. ARUN, J.

1. The original petition is filed by the State of Kerala and its officers, aggrieved by Exhibits P5 and P9 orders of the Kerala Administrative Tribunal, in O.A. (EKM) No. 350 of 2018 filed by the respondent herein. The original application was filed, aggrieved by curtailment of the applicant's right to be included in the zone of consideration for promotion to the post of Assistant Director in the Local Self Government Department. An encapsulation of the facts in the writ petition is as follows:

The applicant, while working as Secretary of Kakkodi Grama Panchayat, was included in Annexure A1 seniority list of Special Grade Secretaries. Under Annexure A2 notification dated 22.12.2017, promotions were effected from Annexure A1, superseding the applicant, by reason of a vigilance case pending against him. The vigilance case (FIR No. 3/2014 of VACB, Kozhikode) was registered on 17.2.2014 against the applicant and six others for offences under Sections 13(1)(d) read with 13(2) of the Prevention of Corruption Act and Sections 466, 468, 471, 477A and 120B of IPC. The allegation was that the applicant, while working as the Secretary of Olavanna Grama Panchayat, entered into a conspiracy with certain other officials of the Panchayat and some builders and granted building permits for high rise buildings illegally, by forging documents and falsifying accounts.

2. According to the applicant, mere registration of an FIR by the Vigilance and Anti-Corruption Bureau cannot entail non-inclusion in the select list for promotion. The original application was therefore filed seeking a declaration that pendency of vigilance enquiry is not a bar for inclusion of the applicant in the select list for promotion and to direct respondents 1 to 3 to promote the applicant to the post of Assistant Director of Panchayats, with effect from the date of promotion of his juniors.

3. A reply statement was filed by the respondents stating that the case against the applicant is under investigation, during the course of which it was revealed that while working as Secretary, Olavanna Grama Panchayat, the applicant had illegally granted four building permits for the construction of high rise buildings. It was also revealed that the applicant had forged various documents, including the building licence register and had granted building permits even before remittance of permit fee by the builder.

4. On 4.4.2018 the Tribunal issued Exhibit P3 order, directing that the eligibility of the applicant should be assessed, as stipulated under Note 1 to Rule 28(b)(i)(7) of Part II KS and SSR, even if the applicant was not eligible to be included in the select list. Accordingly, direction was issued to include the applicant in the zone of consideration and to assess his eligibility and record the findings of the DPC. It was also directed that if the DPC finds the applicant to be eligible for inclusion in the select list, consequential orders should be issued by the Government.

5. Based on Exhibit P3 order, the DPC considered the applicant's eligibility and decided not to revise the select list for promotion by including the applicant's name since the vigilance case against him was pending. On the proceedings of the DPC being brought to the Tribunal's notice, Exhibit P5 order dated 5.2.2019 was issued, observing that the action of the DPC was not in terms of the directions in Exhibit P3 order. The Tribunal therefore issued a further order, Exhibit P5 dated 5.2.2019, directing to place the applicant in the zone of consideration of the DPC and to consider the suitability of the applicant in accordance with Rule 28(b)(i)(7) of Part II of KS & SSR and in terms of the dictum laid down by the High Court in Sasidharan K.K. vs. State of Kerala and Others, 2008 (4) KLT 149 and by the Honourable Supreme Court in Union of India vs. K.V. Janakiraman, (1991) 4 SCC 109.

6. Thereupon, the DPC considered the applicant's eligibility again and noticing that the vigilance case was p