Kerala HC: FIR After Vigilance Enquiry Bars Promotion ; Person Under Vigilance Proceedings Can't Be Included in Select List
Sanchayita Lahkar
The High Court of Kerala Division Bench of Justice A. Muhamed Mustaque and Justice P. Krishna Kumar upheld an order of the Kerala Administrative Tribunal that excluded a public servant from the select list for promotion due to a pending vigilance case. The Court held that the inclusion of the officer was impermissible under Note (i) to Rule 28(b)(i)(7) of Part II of the Kerala State and Subordinate Services Rules. Dismissing the petition, the Court confirmed that registration of an FIR following a preliminary enquiry is sufficient ground to bar inclusion in the select list.
The petitioner, a public servant working in the Motor Vehicles Department, challenged the order of the Kerala Administrative Tribunal that invalidated his inclusion in a promotion select list. The dispute arose when the petitioner was included in the revised select list for promotion to the post of Deputy Transport Commissioner for the year 2022. Pursuant to this inclusion, the petitioner was notionally promoted by order dated 25 May 2024, despite no vacancy being available. This led to the reversion of the first respondent, who was junior to the petitioner, back to the post of Regional Transport Officer.
The first respondent challenged the petitioner’s inclusion and the notional promotion order before the Kerala Administrative Tribunal. It was contended that the petitioner was an accused in Vigilance Case No. VC/1/2019/SCK and thus disqualified from inclusion under the relevant service rules. Specifically, reliance was placed on Note (i) to Rule 28(b)(i)(7) of Part II of the Kerala State and Subordinate Services Rules, which bars the inclusion of officers against whom vigilance proceedings have been initiated following a preliminary enquiry establishing a prima facie case.
The petitioner opposed the application, arguing that no formal charge had been framed against him and hence he remained eligible for promotion. He further contended that mere registration of an FIR was insufficient to attract the exclusion clause in Note (i).
During the hearing, the Court considered the relevant government orders, including GO(P) No. 7/2024/TRANS dated 30 March 2024 and GO(RT) No. 187/2024/TRANS dated 25 May 2024, which dealt with the notional promotion of the petitioner. The FIR in question, No. 01/2019/SCK dated 20 December 2019, was registered by the Vigilance and Anti-Corruption Bureau after a preliminary enquiry and requisite approval from the competent authority.
The Tribunal, by order dated 21 January 2025, allowed the original application, holding that the petitioner’s inclusion in the select list was contrary to the service rules.
The petitioner subsequently filed the present original petition before the High Court challenging the Tribunal’s decision.
Justice P. Krishna Kumar, delivering the judgment for the Division Bench, framed the core issue as:
“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, an officer against whom an FIR has been lodged in a graft case is entitled to be included in the select list for promotion.”
The Court reproduced the relevant portion of Note (i), which states: “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.”
Referring to a previous Division Bench ruling in State of Kerala and Others v. Babu Prasad, 2019 KHC 940, the Court recorded the findings from: “An officer against whom FIR is registered after conducting preliminary enquiry and obtaining approval for prosecution from the Government… is not eligible to be included in the select list.”
Addressing the petitioner’s argument that sanction under Section 19 of the Prevention of Corruption Act was necessary, the Court clarified:
“The entire discussion made by the Division Bench was on a completely different aspect from the application of Section 19 of the Prevention of Corruption Act. Inasmuch as the provisions in Note(i) are concerned, the sanction order under Section 19 has no relevance.”
The Court distinguished between criminal proceedings for general offences and vigilance proceedings, noting:
“Vigilance proceedings are initiated specifically for commission of the offence of criminal misconduct by a public servant by abusing his official position.”
Further, the Court addressed the scope of the term “vigilance proceeding,” stating:
“If an FIR is lodged after such a preliminary enquiry against an officer by the Vigilance and Anti-Corruption Bureau, the above twin conditions are attracted and thus the name of the officer cannot be included in the select list.”
Rejecting the petitioner’s reliance on prior decisions interpreting the rule differently, the Court held:
“The Division Bench has not considered the question of necessity of obtaining sanction under Section 19… The term ‘vigilance proceeding’ is to be understood as a Vigilance Case initiated by the Vigilance & Anti-Corruption Bureau.”
The Court concluded:
“There is no dispute that an FIR was registered against the petitioner herein after conducting a preliminary enquiry and after obtaining the previous approval. Hence Note (i) to Rule 28(b)(i)(7) of Part II KS&SSR prohibits his inclusion in the select list.”
Confirming the Tribunal’s order in its entirety, the Division Bench issued the following directive:
“In the result, the original petition is dismissed and the impugned order is upheld.”
Advocates Representing the Parties
For the Petitioners: M.U. Vijayalakshmi, Brijesh Mohan, K. Jaju Babu (Senior Advocate)
For the Respondents: C. Leena, V. Prince Dev, Senior Government Pleader Sri. A.J. Varghese, Sri. P.C. Sasidharan, Standing Counsel for Kerala Public Service Commission
Case Title: Anoop Varkey v. G.S. Sajiprasad & Others
Neutral Citation: 2025:KER:31193
Case Number: OP(KAT) No. 35 of 2025
Bench: Justice A. Muhamed Mustaque, Justice P. Krishna Kumar
[Read/Download order]
