Person Against Whom Vigilance Proceedings Are Initiated Cannot Be Included In List For Promotion: Kerala High Court

The Kerala High Court held that a person against whom vigilance has filed an FIR after conducting a preliminary enquiry along with the approval granted by the appropriate authority cannot be included in the select list for promotion.Note (i) to Rule 28(b)(i)(7) of Part II KS&SSR says that an officer against whom vigilance or departmental proceedings is taken after the charges have prima facie been established in a preliminary enquiry should not be included in the select list.The Bench of the Court comprising of Justice A. Muhamed Mustaque and Justice P. Krishna Kumar following the judgments in State of Kerala and Others v Babu Prasad (2019) held that the condition under Note(i) of Rule 28(b)(i)(7) of Part II of KS&SSR is fulfilled if a vigilance case is initiated after conducting a preliminary enquiry to prima facie establish the charge. The Court clarified that this includes the Vigilance filing an FIR after conducting a preliminary enquiry against an officer.“… going by the plain meaning of the terms used in Note (i) of Rule 28(b)(i)(7) of Part II Ks&SSR, only two conditions are to be satisfied for excluding an officer from the select list: (1) a vigilance/ departmental proceeding is initiated and (ii) it was initiated after a preliminary enquiry to prima facie establish the charge. The term 'vigilance proceeding' is to be understood as a Vigilance Case initiated by the Vigilance & Anti – Corruption Bureau and the term 'charge' is to be understood as the allegations against the officer in such a case. If an FIR is lodged after such a preliminary enquiry after such a preliminary enquiry against an officer by the Vigilance and Anti – corruption Bureau, the above twin conditions are attracted and the name of the officer cannot be included in the select list.”The Court rejected the contention that the approval for prosecution under Section 19 of the Prevention of Corruption Act is required to fulfill the condition. The Court held that the condition laid down in Babu Prasad was that a previous approval from the Government should be taken to conduct a preliminary inquiry. If after the preliminary enquiry, the concerned Government feels that the allegations are grave, FIR can be registered. The Court held that in Babu Prasad, the Court considered the sanction required under Section 17A of the Prevention of Corruption Act and not under Section 19.The instant case was filed by the candidate who was initially appointed as the Deputy Transport Commissioner. His appointment was challenged by another candidate before the Kerala Administrative Tribunal. He was also included in the select list but could not be appointed as he was junior to the petitioner. The challenge was that an FIR has been filed against the petitioner by the Vigilance in a graft case. The Tribunal decided against the petitioner challenging which he approached the High Court. The High Court dismissed the petition agreeing with the decision of the Tribunal.Counsel for Petitioners: Advocates M. U. Vijayalakshmi, Brijesh Mohan, K. Jaju Babu (Sr.)Counsel for the Respondents: Advocates C. Leena, V. Prince Dev, A. J. Varghese (GP), P. C. Sasidharan (SC KPSC)Case No: OP (KAT) 35 of 2025Case Title: Anoop Varkey v G. S. Sajiprasad and OthersCitation: 2025 LiveLaw (Ker) 243Click Here To Read/ Download Order

Person Against Whom Vigilance Proceedings Are Initiated Cannot Be Included In List For Promotion: Kerala High Court

Manju Elsa Isac

Tags