IMPORTANT POINT
An officer against whom an FIR is lodged in a graft case is ineligible for promotion under the Kerala State and Subordinate Services Rules, as established by the court's interpretation of the relevant provisions.

JUDGMENT :

P.Krishna Kumar, J.

The short legal issue to be determined in this case is whether, in view of the provisions contained in Note (i) to Rule 28(b)(i)(7) of Part II of the Kerala State and Subordinate Services Rules (‘KS&SSR”, for short), an officer against whom an FIR has been lodged in a graft case is entitled to be included in the select list for promotion.

2. The facts necessary for the determination of this case are as follows: the petitioner was included in the revised select list of Deputy Transport Commissioners for the year 2022. The first respondent, who is also a candidate included in the select list, challenged the validity of the inclusion of the petitioner in the select list before the Kerala Administrative Tribunal on the ground that the petitioner is an accused in Vigilance Case No. VC/1/2019/SCK and thus he should not have been included in the select list in view of Note (i) to Rule 28(b)(i)(7) of Part II KS&SSR. Pursuant to the inclusion of the petitioner in Annexure A6 select list, the Government notionally promoted him as Deputy Transport Commissioner by Annexure A7 order. As there was no vacancy in the said cadre, the first respondent, being junior to the petitioner, was reverted to the post of Regional Transport Officer. Thus, the first respondent challenged Annexure A7 as well before the Tribunal.

3. We have heard Sri.Jaju Babu, the learned Senior Counsel, instructed by Sri.Brijesh Mohan, the learned counsel appearing for the petitioner, Smt.Leena, the learned counsel appearing for the first respondent, and Sri.A.J.Varghese, the learned Senior Government Pleader.

4. As the question to be determined in this matter is the application of Note (i) to Rule 28(b) (i)(7) of Part II KS&SSR, it is reproduced below, with emphasis on the relevant part:

“Note.- (i) Officers under suspension and officers against whom criminal proceedings are pending in a Sessions Court or in any other higher Court for grave offences like murder, dacoity, etc; and Officers against whom departmental proceedings are taken for the imposition of a major penalty under the disciplinary rules applicable to them should not be included in the select list. But the suitability of such an Officer for promotion should be assessed at the relevant time by the Departmental Promotion Committee and a finding reached whether, if the Officer had not been suspended or the criminal proceedings/ departmental proceedings had not been pending against him, he would have been recommended/selected for promotion. Where a select list is prepared the Departmental Promotion Committee shall also make a finding as to what the position of the Officer in that list would have been but for the suspension or the criminal proceedings/ departmental proceedings against him. The findings as to the suitability and the place in the select list of the officer should be recorded separately and attached to the proceedings. The proceedings of the Departmental Promotion Committee need only contain a note. The findings are recorded in the attached sheet of paper". The authority competent to fill the vacancy should be separately advised to fill the vacancy only on a temporary basis. Officers against whom vigilance or departmental proceedings are taken after the charges have prima facie been established in a preliminary enquiry should not be included in the select list. But, the cases of such Officers should also be assessed. The question of including them in the select list shall be considered when the result of the enquiry is known. However Officers against whom departmental proceedings are taken for the imposition of a minor penalty may be included in the select list provisionally if they are found suitable but for the pendency of disciplinary proceedings initiated against them."

The legality of excluding officers against whom an FIR is lodged under the provisions of the Prevention of the Corruption Act is well settled. A Division Bench of this Court considered the said question in