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2022 Supreme(Ker) 411
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Alexander Thomas, Viju Abraham, JJ.
Sandeep.S., S/O.Sukesan.B. - Appellant
Vs.
Divya S.S.Rose, W/o. Aravind.S.G. - Respondent
OP(KAT) NO.331,337 OF 2021, 93 OF 2022
Decided On : 13-05-2022
Advocate Appeared:
For the Appellant : K.Sandesh Raja
For the Respondent: Elvin Peter P.J., Nirmal V Nair For Addl., K.R.Ganesh, Gouri Balagopal, Abhijith.K.Anirudhan, Sri.Saigi Jacob Palatty, Sr.Govt.Pleader
Point of Law: The principle of “purposive interpretation” or “purposive construction” is based on the understanding that the court is supposed to attach that meaning to provisions which subserve the “purpose” behind such a provision and basic approach should be for what purpose norm has been designed to accomplish and interpretative process of court is supposed to realise goal that legal text is designed to realize.
Headnote:
Constitution of India, 1950 - Articles 226 & 227 - Prevention of Corruption (Amendment) Act, 2018 - Section 17A - Prevention of Corruption Act (Amendment Act) (sic), 2018 and Vigilance Manual 2001 - KS&SSR - Rule 28(b)(i)(7) - Criminal Procedure Code, 1973 – Section 161 - Post of Assistant Conservator of Forest - Promotion - Select list - Illegal gratification - Whether latter part of Note (i) supra can be invoked for superseding an officer only if vigilance crime/FIR has been registered, pursuant to a vigilance enquiry conducted by Vigilance & Anti-Corruption Bureau, wherein allegations have been prima facie established or whether in a vigilance proceeding, arising out of a trap case, first proviso to Sec.17A of Prevention of Corruption Act, Note (i) supra could be invoked, pursuant to pendency of an FIR in a trap case registered without a preliminary enquiry – Court view that provisions of Note (i) supra would apply, even as against such an accused Government servant, who is not alleged bribe receiver in trap case, provided materials disclose a cognizable offence to satisfaction of vigilance police officer recording register in FIR/vigilance crime. In light of these aspects, court constrained to reject contentions of applicant that provisions contained in Note (i) cannot be made applicable to an accused Government servant like her - It is also ordered that the competent authority of State Government may also pass orders granting promotion to R7 in the above O.P select list, 2021, as Asst. Conservator of Forest, based on his inclusion of said select list, without any further delay, as envisaged in the provisions contained in Rule 28 of Part-II KS&SSR. (Para 46 and 49)
Finding of the court: Court have no hesitation to hold that adverse provisions contained in Note (i) supra would also apply in a case where Government servant is arrayed as an accused in a trap case registered as per provisions of Prevention of Corruption Act. Therein, there may not be much dispute in a case where the accused government servant is the alleged direct bribe receiver as per FIR. But in the instant case, the applicant (A1) is not alleged to be direct bribe receiver even as per the case of vigilance investigation. But that the demand for bribe was made by her, to be paid not directly to her, but to be paid by complainant to another accused Government servant (A3). Keeping in view these norms of interpretation, we are also of the view that the provisions of Note (i) supra would apply, even as against such an accused Government servant, who is not the alleged bribe receiver in trap case, provided the materials disclose a cognizable offence to the satisfaction of vigilance police officer recording the register in the FIR/vigilance crime. In the light of these aspects, we are constrained to reject the contentions of the applicant that provisions contained in Note (i) cannot be made applicable to an accused Government servant like her - it is also ordered that the respondent-Vigilance authorities will ensure the completion of investigation in Annexure A-2 vigilance crime, without much delay and within a reasonable and expeditious time limit. It is made clear that in case, if there is any undue and prolonged delay in completion of the abovesaid vigilance investigation, then the applicant will be at liberty to seek appropriate remedy, in the manner known to law in that regard.
Result: O.P disposed of.
JUDGMENT :
Alexander Thomas, J.
As the very same verdict of the Tribunal is challenged in the first two O.Ps and as the verdict of the Tribunal in a connected matter is challenged in the third O.P, all these cases are disposed of on the basis of this common judgment.
O.P(KAT) No.331/2021 & O.P(KAT) No.93/2022
The impugned final order dated 10.11.2021 is the subject matter of challenge in these two O.Ps filed under Articles 226 & 227 of the Constitution of India. The two petitioners in O.P(KAT)No.331/2021 are contesting respondents 4 & 6 in the above O.A. Whereas, the three petitioners in O.P(KAT) No.93/2022 are the State of Kerala, Forest Department and the Departmental Promotion Committee (DPC) concerned, who have been arrayed as official respondents 1 to 3 in the above O.A. Whereas, respondents 1 to 4 in O.P(KAT) No.331/2021 are the original applicants in the O.A, State of Kerala, Principal Chief Conservator of Forests & the DPC. The documents and pleadings as produced in O.P(KAT) No.331/2021 will be referred to in this judgment for the sake of convenience, as the said O.P was the one which was filed in an earlier point of time. Later, the Director of Vigilance & Anti-Corruption Bureau and the Superintendent of Police, Vigilance & Anti-Corruption Bureau have been impleaded as additional respondents 5 & 6 in O.P(KAT) No.331/2021 and the last person who has been included in Annexure A-2 select list, 2021 has been impleaded as additional respondent No.7 in that O.P. The four respondents in O.P(KAT)No.93/2022 are the original applicant and the contesting respondents 4 to 6 in the above O.A [who incidentally are the three petitioners in O.P(KAT) No.331/2021].
2. Heard Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the petitioners in O.P(KAT) No.93/2022 as well as official respondents 2 to 6 in O.P(KAT) No.331/2021, Sri.K.Sandesh Raja, learned counsel appearing for the petitioners in O.P(KAT) No.331/2021 as well as for contesting respondents 2 to 4 in O.P(KAT) No.93/2022, Sri.P.J.Elvin Peter, learned Advocate appearing for R1 in both the O.Ps (original applicant in the O.A) and Sri.Nirmal V.Nair, learned counsel appearing for additional contesting respondent No.7 in O.P(KAT) No.331/2021.
3. The applicant in the O.A will be referred for convenience as 'the original applicant/applicant'. The applicant was essentially aggrieved by the decision of the DPC referred to in Annexure R1(a), which resulted in the impugned Annexure A-8 select list, 2021 for promotion to the post of Assistant Conservator of Forest, whereby she has been excluded from the said select list on account of the pendency of vigilance proceedings at Annexure A-2. The Tribunal, after hearing the parties in the above O.A, had passed the impugned Ext.P-3 interim order dated 21.10.2021 in the above O.A, whereby the submission on behalf of the official respondents that statement will be filed on their behalf on or before 25.10.2021 and that until then, no promotion of the applicant's juniors will be effected in the meantime, was recorded and the case was posted for the statement of the official respondents on 25.10.2021. Later, the Tribunal has rendered the impugned Ext.P-7 final order dated 10.11.2021 finally disposing of the instant O.A No.1869/2021, with the clear finding in para No.6 thereof, that the exclusion of the applicant, in pursuance of Annexure-R1(a) minutes of the DPC and Annexure A-8 select list for the year 2021, is in plain violation of the provisions contained in Note (i) to Rule 28(b)(i)(7) of KS&SSR Part-II and the dictum laid down by a learned Single Judge of this Court in the case of Sasidharan v. State of Kerala [2008 (4) KLT 149] and that the said error committed by the official respondents need not be allowed to be perpetuated and hence, the official respondents have been directed to include the original applicant in Annexure A-8 select list for 2021, between Sl.No.2 (M.Ajeesh) and Sl.No.3 (B.R.Anuraj – contesting respondent No.
