The High Court affirmed that an employee under investigation for misconduct is ineligible for promotion unless cleared, and the Tribunal improperly directed promotion consideration against established legal principles.

JUDGMENT :

MURALEE KRISHNA S., J.

1. The respondents 1 to 4 in O.A.No.1919 of 2019 on the file of the Kerala Administrative Tribunal, Thiruvananthapuram (the ‘Tribunal’ for short) filed this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, challenging Ext.P4 order dated 26.09.2022 passed by the Tribunal in that original application.

2. Going by the averments in the original application, the 1^st respondent is currently working as the State Tax Officer of Circle 1/ Commercial Tax Officer in Kollam District. During the year 2007, while the 1^st respondent was working as a Junior Superintendent at the Commercial Tax Office, Neyattinkara, in Thiruvananthapuram District, she happened to unearth and crack the fraudulent practice of four traders in the matter of advance tax payment. An enquiry was conducted belatedly after the retirement of the Commercial Tax Officer. While so, the 1^st respondent was included in Annexure A2 Select List dated 24.01.2009 for promotion to the post of Commercial Tax Officer. But the 1^st respondent was suspended from service as per Annexure A1 order dated 24.01.2009 and was later reinstated as per Annexure A3 order dated 03.06.2011 of the 2^nd petitioner. On her reinstatement, she continued as Junior Superintendent. Despite her inclusion in Annexure A2 Select List, and absence of any disciplinary proceedings initiated against her, nor any vigilance cases pending, her immediate junior and several others were promoted to the Cadre of Commercial Tax Officer and subsequently as Assistant Commissioner. When she raised her claim for promotion to the cadre of Commercial Tax Officer it was denied and after a substantially long period of 3 years from the date of occurrence of the offence, a case under the Prevention of Corruption Act, 1988 (‘PC Act’, for short), was registered against her and sent the FIR before the Enquiry Commissioner and Special Judge, Thiruvananthapuram. The Final Report/Charge Sheet was filed on 31.12.2015. Meanwhile, in the year 2014, through Annexure A4 order dated 16.08.2014 issued by the 2^nd petitioner, the 1^st respondent was promoted as Commercial Tax Officer. She ought to have been promoted in the year 2011 based on Annexure A2. Even after completing 2 years of service in the Cadre of Commercial Tax Officer after promotion in the year 2014, her probation was illegally not declared. Under the said circumstances, the 1^st respondent submitted Annexure A9 representation dated 27.01.2019 before the 1^st petitioner, praying for declaration of her probation in the Cadre of Commercial Tax Officer and retrospective Promotion in the cadre of Commercial Tax Officer with effect from the date of promotion of her immediate junior, as there were no legal impediments in effecting her promotion at that date. Subsequent to Annexure A9 representation, the 1^st respondent moved to the Tribunal through O.A.No.371 of 2019, and the Tribunal vide Annexure A10 order dated 25.02.2019 in O.A.No.371 of 2019 directed the 1^st petitioner to consider and pass orders on Annexure A9 representation within a period of three months. In compliance with Annexure A10, the 1^st petitioner considered and rejected Annexure A9 representation by Annexure A11 order dated 21.05.2019. Therefore, the 1^st respondent filed O.A. No.1919 of 2019 under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:

“(i) To call for the records leading to Annexure A11 and quash the same.

(ii) To issue appropriate di