K.S. Premachandra Kurup, IAS (Rtd.) vs State of Kerala and Dr. V.M. Gopala Menon, IAS, Secretary to Government of Kerala Co-operation Department

Justice S.S. Satheesachandran

Petitioner is a retired public servant who was a member of Indian Administrative Service, for short ''IAS''. He is proceeded with on a complaint

given by Government Secretary of the Kerala Co-operative Department alleging that even after retirement in correspondence he has used with his

name IAS and that constituted an offence punishable u/s 170 of the Indian Penal Code. The Government Secretary forwarded that complaint to

the Director of Co-operative Academic Professional Education, for short, ''CAPE'', who, in turn, through a senior officer presented the above

letter with a covering letter to the Station House Officer, Museum Police Station. Receiving the documents, Sub Inspector of Police registered

Ext.P1 crime against the petitioner for the offence punishable u/s 170 of the Indian Penal Code. Ext.P1 is the copy of the F.I.R., and the letter sent

by the Cooperative Secretary and the covering letter of the Director, CAPE, referred to above, form part of it. Petitioner has filed the above writ

petition under Article 226 of the Constitution of India to quash Ext.P1 F.I.R. and all further proceedings thereof. Petitioner, after his retirement,

was appointed as the Director of CAPE with effect from 16.06.2011. According to him since he could not digest of nor be a party to some of the

instructions/directions given from the office of the Minister of Co-operation and later of the rebuke showered on him by the Minister as well he

tendered his resignation from the post of Director on 02.06.2012. Ext.P2 is stated to be a copy of communication sent to the Minister on the same

day. After receipt of his resignation letter keeping it without taking any action a pre-dated Government Order was passed stating that he had been

removed from the post of Director of CAPE with immediate effect. Ext.P3 is the copy of that G.O. dated 02.06.2012. Petitioner who wanted to

do everything in a transparent manner was not prepared to heed to the instructions/recommendations made by the Minister of Co-operation with

respect to the selection and appointment of some Assistant Professors in Engineering Colleges and filling up of some management seats in the Co-

operative Medical College, both under the control of CAPE, and that eventually led to tendering of his resignation from the post of Director,

CAPE, according to him. A writ petition was filed by those who were aggrieved by the selection and recruitment of Assistant Professors, and also

admissions made to the management seats in Medical College. On the representation made by the petitioners in the writ petition that the retired

Director of CAPE would be able to furnish details of what happened in the selection process Ext.P4 order was passed by this Court which gave

liberty to those petitioners to get details from the Ex-Director through an affidavit and file the same before the court. Ext.P4 is copy of that order.

Petitioners in the writ petition approached him with Ext.P4 order, and thereupon he has sworn an affidavit stating correctly and truly what

transpired in the selection process. That affidavit handed over to the petitioners was filed by them before the court. Ext.P5 is a copy of the affidavit

dated 15.08.2012. After considering the affidavit, on 08.10.2012, this court directed the Government to file a reply over the serious allegations

raised in the affidavit. The next day, all the dailies carried it as a main news. Ext.P6 is a copy of the news item published in a daily on the order

passed by the court. Thereafter, the crime under Ext.P1 F.I.R. has been registered against him on the basis of a communication sent by the

Secretary Cooperative Department to the Director, CAPE and that being forwarded with a covering letter to the Station House officer, Museum

Police Station. The allegation made that after retirement with his name he has used IAS in his letterhead and sent communication to the

Government and others, to register a crime against him under Ext.P1 F.I.R., is nothing but an attempt to harass him, for having sworn to an affidavit

in the writ petition disclosing the irregularities committed in the selection process, according to the petitioner. No offence u/s 170 of the Indian

Penal Code as imputed in Ext.P1 F.I.R. would lie against him on the allegations raised is his further case to seek quashing all proceedings arising

from Ext.P1 F.I.R.

Respondents 1 and 2 have taken notice through Government Pleader. Notice to third respondent was dispensed with. I heard learned counsel

for the petitioner and also learned Government Pleader.

Though some imputations and allegations are made against the Minister of Co-operation with respect to registration of Ext.P1 F.I.R. against the

petitioner, after hearing learned counsel for the petitioner and also learned Government Pleader, I find to dispose this writ petition his impleadment

as a party respondent, nor of hearing him is called for. Further more, even on the statements set out in the petition a writ petition is pending before

the court touching upon various irregularities imputed over the selection process in the appointment of Assistant Professors and filling up of the

management seats, and an affidavit filed by the petitioner, former Director of the CAPE, disclosing some of the aspects involved, is pending

consideration before the Division Bench of this court. When that be the case, a critical scrutiny of the allegations raised thereto with respect to the

allegations imputed against the Minister over the selection process and that having some bearing in the registration of the crime under Ext.P1 F.I.R.

against petitioner need be gone into only if it is shown that for disposal of this petition such exercise is necessary. However, after hearing the

submissions made and looking into the facts and circumstances presented with reference to the exhibits produced, I find Ext.P1 F.I.R. is liable to

be quashed for the simple reason that no offence whatsoever on the allegations imputed has been made out even prima facie to proceed against the

petitioner.

Petitioner is being proceeded with for the offence u/s 170 of the Indian Penal Code on the allegation that in his letterhead with his name he used

IAS and communications were sent by him to the Government and others showing his name as such while he continued as the Director of CAPE.

Simple question that emerges for consideration is whether the use of IAS with his name as alleged would constitute an offence u/s 170 of the Indian

Penal Code. To constitute such an offence a person must either pretend to hold a particular office as a public servant knowing that he does not

hold such office or falsely personate any other person holding such office. Over and above that, that person in such assumed character must do or

attempt to do an act under the colour of such office. Essential ingredients for the offence as indicated above are totally absent in the case. The only

imputation is that after retirement from IAS he has used-IAS with his name in his letterhead and made some correspondence. True, IAS being a

service under the Central Government so long as a member thereof is in service then alone he can use with his name as a member/cadre of that

service. To use with the name either IAS or IAS (retd.) after leaving the service, no doubt, is not proper. IAS is only a service, and the selection

thereto is based on Rule 7 of the Indian Administrative Service (Recruitment) Rules, 1954 and the Indian Administrative Service (Appointment by

Competitive Examination) Regulations, 1955. A person selected to such service, whether his cadre is with the State Government or the Central

Government, as governed by The Indian Administrative Service (Cadre) Rules, 1954, so long as he continues in service, then alone he is a member

of ""IAS"". After retirement use with his name ""IAS"" or ""IAS retd."" does not arise. He can use only the post which he held with his name as retired

after retirement from his service, and not ""IAS retd."". However, the use of IAS or IAS (retd.) by a person, who was in such service, but, after

retirement, though not proper and correct, whether that would constitute an offence, that too u/s 170 of the IPC is the question to be looked into.

By use of IAS with his name in the letterhead and correspondence made stating so the petitioner could not be imputed of having pretended of

holding a particular office as a public servant, which he was not, or of doing or attempting to do any act under the assumed character of such

pretended public servant. There must be pretension or false personation to be a particular person, that too a public servant, which he is not, and

then doing of or attempt to do some act under colour of such office of that public servant, to proceed against a person u/s 170 of the Indian Penal

Code. Petitioner who was a member of IAS had used IAS in his letterhead when he continued as Director of CAPE and also corresponded in that

manner, is no ground to impute that he has committed an offence u/s 170 of the Penal Code.

Registration of Ext.P1 F.I.R. against the petitioner for the offence u/s 170 of the Indian Penal Code is tainted and not at all done in good faith, is

also visible from some of the circumstances presented by the materials. As indicated earlier, I am not touching upon the allegations over the

selection process nor of any matter which may emerge for consideration in the writ petition pending before the Division Bench in which Ext.P5

affidavit of petitioner is stated to have been produced. After removal of the petitioner from the post of Director, nearly four months later, Ext.P1

letter from the Secretary Co-operative Department was addressed to the Director of CAPE taking exception to the use of IAS with his name by

the petitioner in the resignation letter tendered and other correspondence by him. A cursory look into Ext.P3 Government Order removing

petitioner from service would show that even in that communication what is stated is that ""the services of Sri. K.S. Premachandra Kurup IAS

(Rtd.) as Director CAPE is replaced with immediate effect...."". That G.O. issued by the Order of Governor is signed by none other than the

Secretary, Co-operative department who later sent Ext.P1 communication later to the successor Director of the CAPE, the present incumbent, to

prosecute the petitioner for the offence u/s 170 of the Indian Penal Code. Where Ext.P3 Government Order itself recognized and used IAS (Rtd.)

with the name of the petitioner to order his removal from service why should the petitioner be found fault with for having used I.A.S. in his

letterhead or correspondence. Ext.P1 covering letter sent by the Director, CAPE, deputing a senior officer with the letter from the Co-operative

Secretary to the Police Station to register the crime against the petitioner, is also much revealing. Subject of that covering letter reads thus:

Direction from Government to initiate action against Sr. K.S. Premachandra Kurup (IAS retired)-forwarding of. Letter of the Co-operative

Secretary with the covering letter forms part of Ext.P1. The first sentence in that letter sent by the Secretary, Co-operative Department reads thus,

Sri. K.S. Premachandra Kurup, IAS (Rtd.), former Director CAPE is an officer retired from Indian Administrative Service"". If the petitioner is

liable to be prosecuted for having used with his name IAS, naturally, the aforesaid Secretary of the Co-operative Department and also the Director

of CAPE who have used name of the petitioner as stated above could also be prosecuted for doing so, if at all such use constituted an offence

under law. As stated earlier use of naming such service with or without suffix ''retired'' by a former member is an impropriety, but, certainly it

cannot be treated as an offence, nonetheless an offence u/s 170 of the Penal Code. Ext.P1 F.I.R. and all further proceedings thereof against the

petitioner are quashed.

Writ petition is allowed.