M.J Sojan vs Union Of India

Alexander Thomas, J.

The afore captioned Original Petition, instituted under Articles 226 & 227 of the Constitution of India, is directed against the impugned Ext.P-1 order dated 14.08.2023 rendered by the Central Administrative Tribunal, Ernakulam Bench, in O.A.No.80/2023 whereby, the Tribunal has refused to consider the interim plea made by the applicant and has ordered that the main matter in the O.A. be taken up for hearing on 14.09.2023. The sole petitioner herein is the sole applicant in the O.A. The respondents herein are the respondents in the O.A.

Heard Smt.Mitha Sudhindran, learned counsel appearing for the petitioner, Sri.S.Manu, learned Deputy Solicitor General of India, appearing for the first respondent-Union of India, Sri.Thomas Mathew Nellimootil, learned Standing Counsel for the Union Public Service Commission (UPSC), appearing for the second respondent and Sri.Ashok M. Cherian, learned Additional Advocate General, instructed by Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for respondents 3 & 4 (State and State Police Chief).

The prayers in Ext.P-3, O.A.No.80/2023, filed by the petitioner herein, before the Central Administrative Tribunal, Ernakulam Bench, are as follows:-

“1. Call for the entire records leading to the grievance of the applicant;

Direct the respondent No.3 to consider the case of the applicant for issuance of Integrity Certificate and to issue the same forthwith to be included in the records submitted to the Selection Committee of the UPSC, scheduled to be held soon;

Direct the respondents to consider the applicant for inclusion of his name in the select list for appointment by promotion to the Indian Police Service of Kerala Cadre, for the year 2021;

Any further relief or orders as this Hon'ble Tribunal may deem fit and proper to meet the ends of justice.

Award the cost of the proceedings.”

The interim relief sought for in Ext. P-3 is as follows:-

“......... to direct respondent No. 3 to grant the Integrity Certificate in respect of the applicant, within a time frame to be fixed by this Hon'ble Tribunal, pending disposal of the OA.”

A perusal of Ext.P2 proceedings sheet of the Tribunal would indicate that the above O.A. has been filed on 20.02.2023. Thereafter, the Original Application has been listed before the Tribunal for consideration on 21.02.2023, 03.04.2023, 23.05.2023, 29.05.2023, 24.07.2023 and later, on 14.08.2023. Ext.P6 reply statement dated 26.05.2023 has been filed by the third respondent-State of Kerala in the above O.A. before the Tribunal. According to the petitioner, he had pressed for interim relief on these occasions and when the matter had come up for consideration on 14.08.2023, the Tribunal has passed the impugned order dated 14.08.2023, the interim plea in the O.A. has not been considered and the main matter in the O.A has been ordered to be posted for hearing on 14.09.2023. The case of the petitioner is that, he is now holding the post of Superintendent of Police (Non-IPS cadre) in the Kerala State Police and that, he has been considered by the selection committee, for promotion to the cadre of Indian Police Service (IPS), as per the Regulations, for the selection years 2019 and 2020, as can be seen from Annexure A1 proceedings of the selection committee and that, it is only when the minutes of the said meeting was published, the applicant could come to know that the third respondent-State has withheld the issuance of the Integrity Certificate in favour of the applicant, solely on the ground of pendency of a criminal case, which, in effect, only makes out a case for the offence as per Section 323 (simple hurt) of the Indian Penal Code (IPC), though the offence charged is that as per Section 324 of the IPC.

The gist of the case of the petitioner is that, while he was holding the post of Sub Inspector of Police, a crime has been registered against him, out of extraneous considerations. The private criminal complaint filed by the defacto complainant, alleging offence as per Section 302 of the IPC was dismissed by the learned Judicial Magistrate. In the police charge sheeted case, the offence alleged is as per Section 324 of the IPC (causing hurt by using dangerous weapon). The factual allegation is that the petitioner, in the course of his police patrolling duty, in a public place, in front of a bar, had beaten the alleged victim concerned with a cane on his back and at best, the case may disclose the offence only as per Section 323 (simple hurt) of the IPC, as a cane, when used to beat on the back of a person, cannot be said to be a dangerous weapon, as understood in Section 324 of the IPC. Further that, the appointing authority of the petitioner, in the post of Sub Inspector of Police, is the Deputy Inspector General of Police, whereas the sanction to prosecute the petitioner in the above crime was given by the District Collector, who is incompetent. The trial was ongoing and the prosecution witnesses have given evidence and at that stage, the defacto complainant has secured interim order of stay of the trial, as per order dated 24.03.2021 in W.P.(C.) No. 6502/2019 filed before this Court. The trial has been prolonged accordingly. Further that, the petitioner has secured promotion from the post of Sub Inspector of Police to the post of Inspector of Police and later, he was promoted as Deputy Superintendent of Police and subsequently, he was promoted as the Superintendent of Police (Non IPS). He has been included in the eligible field of choice, by the State Government, for promotion to IPS Cadre, on the basis of the IPS Promotion Regulations for the selection years 2019 & 2020, as evident from Anx.A-1. But that, the respondent-State has withheld his Integrity Certificate. Further, the petitioner has also been included in the field of choice for selection to the IPS, for the selection year 2021. The respondent-State Government as per para 6 of Ext.P-6 reply statement, filed in this O.A., has taken the stand that the State Government cannot issue an Integrity Certificate in favour of the applicant, as the aforesaid criminal case is pending against him. Regulation 5(5) of the IPS (Appointment by Promotion) Regulations, 1955, provides as follows:

“Regulation 5. Preparation of list of suitable officers.- (1) ......

xxx xxx xxx

(5) The List shall be prepared by including the required number of names first from amongst the officers finally classified as "Outstanding" then from amongst those similarly classified as "Very Good" and thereafter from amongst those similarly classified as "Good" and the order of names inter-se within each category shall be in the order of their seniority in the State Police Service.

Provided that the name of an officer so included in the list shall be treated as provisional if the State Government withholds the integrity certificate in respect of such an officer or any proceedings, departmental or criminal are pending against him or anything adverse against him which renders him unsuitable for appointment to the service has come to the notice of the State Government.

Provided further that while preparing yearwise select lists for more than one year pursuant to the 2nd proviso to sub regulation (1), the officer included provisionally in any of the Select List so prepared shall be considered for inclusion in the Select List of subsequent year in addition to the normal consideration zone and in case he is found fit for inclusion in the suitability list for that year on a provisional basis such inclusion shall be in addition to the normal size of the select list determined by the Central Government for such year.

EXPLANATION I: The proceedings shall be treated as pending only if a charge-sheet has actually been issued to the officer or filed in a Court as the case may be.

EXPLANATION II: The adverse thing which came to the notice of the State Government rendering him unsuitable for appointment to the service shall be treated as having come to the notice of the State only if the details of the same have been communicated to the Central Government and the Central Government is satisfied that the details furnished by the State Government have a bearing on the suitability of the officer and investigation thereof is essential.”

Further, the norms and criteria, for issuance of integrity certificate by the State Government, in terms of the afore Regulations, have been dealt with in Government of India, Ministry of Home Affairs, letter No.17/3/70-AIS (III) dated 26.5.1970 (referred to in para No.6 of Anx. A-3 order dated 3.4.2013 rendered by the CAT, Ernakulam Bench in O.A.No. 24/2013). Para 2 of the abovesaid norms issued by the Government of India on 26.5.1970 reads as follows:

“2. As regards the officers against whom inquiries are pending, the integrity certificate should not ipso facto be withheld. The State Government should examine each case with reference to the nature/ gravity of the charges, the evidence available on the basis of the investigation made upto that time, the known arguments of defence, if any, the views of the Head of Department, the general reputation of the officer etc. and then decide whether they would like to include him in the list of officers whose integrity is certified or in the list of those in respect of whom the integrity certificate is withheld."

The petitioner would submit that since the select list for IPS promotion for the selection year 2021 may be finalised soon and in view of the stand taken by the 3rd respondent State that they would not issue integrity certificate, the claim of the petitioner for promotion will be again seriously and prejudicially affected, etc. and that the Tribunal should have granted interim orders in the matter of grant of integrity certificate to the petitioner, taking into account the facts and circumstances of the case, in the light of the abovesaid Government of India norms.

Sri.Thomas Mathew Nellimoottil, learned Standing Counsel for the UPSC appearing for respondent No.2, would submit that the case of eligible officers, included in the field of choice would be considered in accordance with Regulation 5(5) of the IPS Promotion Regulations and that the list will be prepared by including the required number of names first amongst the officers finally classified as outstanding and then from among those classified as very good and thereafter, from among those classified as good and the order of names in the same in each category will be placed in the order of seniority in the State Police service. Further that, in view of the stipulation in the first proviso to Regulation 5(5), the name of an officer so included in the list shall be treated as provisional, if the State Government withholds the integrity certificate in respect of such officer or any proceedings, departmental or criminal, are pending against him or anything adverse against him which renders him unsuitable for appointment to the service has come to the notice of the State Government. The abovesaid submissions made on behalf of R-2 are recorded.

On a prima facie assessment of the pleadings and materials on record, that is discernible from Ext.P-6 reply statement, more particularly para No.6 thereof, it indicates that a stand has been taken therein that the respondent State Government cannot issue any integrity certificate in favour of the original applicant, in view of the pendency of the aforesaid criminal case. The said stand taken by the State Government, in para No.6 of Ext.P-6 reply statement, does not appear to be in consonance with the norms in para No.2 of the norms issued by the Government of India on 26.5.1970. The norms in that regard are very clear, that, if such adverse proceedings are pending, then the integrity certificate should not ipso facto be withheld and it is the obligation of the State Government to exercise its discretion to examine each case with reference to the nature and gravity of the charges, the evidence available on the basis of the investigation made upto that time, the known arguments of the defence, if any, the views of the Head of the Department, general reputation of the officer, etc. and decide whether they would like to include him in the list of officers, whose integrity is certified or in the list of those in respect of whom the integrity certificate is withheld. Such exercise does not appear to have been done by the respondent State Government.

The interim relief sought for by the applicant is for a direction to the respondent State Government to issue the integrity certificate. Such an interim order cannot be granted at this stage of the case now. However, in view of the abovesaid prima facie finding, we are of the view that the respondent State Government is bound to reconsider their stand, referred to in para No.6 of the reply statement. The approach therein, that the respondent State Government cannot issue the integrity certificate at all in view of the mere pendency of the above criminal case, does not appear to be in consonance with the abovesaid Government of India norms. Further, we are of the view that in the facts and circumstances of this case, the Tribunal should have considered the interim plea of the petitioner. As, according to the petitioner, the selection committee for 2021 could be convened at any time and if the integrity certificate is withheld for the reasons stated by the respondent State Government, then the fundamental right of the petitioner to be considered for promotion, in consonance with the norms and guidelines governing the field, will be detrimentally affected, etc. Accordingly, it is ordered that the respondent State Government will reconsider the stand and should abide by the parameters and criteria laid down in para No.2 of the abovesaid norms issued by the Union Government on 26.5.1970 and should exercise its discretion and examine the involvement of the petitioner in the above criminal case, with reference to the nature and gravity of the factual charges alleged therein, the evidence available from the materials on record, the known arguments of the defence, if any, the views of the Head of the Department, the general reputation of the officer, etc. and then decide whether they would include him in the list of officers whose integrity is certified or in the list of those in respect of whom the integrity certificate is withheld. Such decision shall be taken by the State Government, as early as possible, without any further delay. It is also made clear that the 2nd respondent UPSC will also be at liberty to seek for any clarifications and orders of the Tribunal, if the selection committee is to be convened before orders are passed by the Tribunal, if they find it necessary. Further, in the light of the abovesaid submission made by the respondent UPSC, the case of the petitioner for promotion to IPS may be considered in the light of the provisions contained in the IPS Promotion Regulations, more particularly Regulation 5(5) thereof.

In that regard, the plea of the petitioner that even the offence as per Sec. 324 of the I.P.C. is not made out, and at best only the offence as per Sec. 323 may be made out and that the impugned criminal proceedings are illegal and ultra vires, on the ground that the sanction for prosecution under Sec. 197 of the Cr.P.C. has been granted by the District Collector, who is an incompetent authority and not by the competent appointing authority, etc. should be considered. Further, the case of the petitioner that he has consistently been promoted to all the higher posts upto the post of Superintendent of Police (non-IPS), and he has an extremely good service record and that no other criminal proceedings are pending against him, except the above incidents, which occurred 22 years ago, should all be taken into account. The report of the 4th respondent Director General of Police/State Police Chief, who is the Head of the Police Department and the general reputation of the officer should all be taken into account. The fact that the petitioner is now aged 54 years and the integrity certificate has been withheld in the previous selection years, 2019 and 2020, etc. without stating reasons, which has prejudiced the petitioner, the fact that the alleged incident took place more than 22 years after which the respondent state authorities have consistently found him fit and meritorous for various higher promotions, the plea of the petitioner that the trial has been deferred due to the orders in the pending W.P.(C)., etc. and all other aspects based on the respondent Union Government's afore norms should be considered and taken into account. Both sides have not brought to the notice of this Court, any norms on the above issue other than the norms referred to above. It has to be borne in mind that mechanical withholding of the issuance of integrity certificate, in the facts and circumstances of this case, would be unjust and illegal.

After considering all these relevant parameters, the competent authority of the respondent State Government may take a decision strictly in accordance with the abovesaid norms issued by the Union Government in relation to the request of the petitioner, for issuance of the integrity certificate and if necessary, the respondent State Government may seek the advice and opinion of the learned Advocate General/ Addl. Advocate General. The decision so taken containing reasons, shall be communicated by the respondent State Govt. to R-2 UPSC and to the petitioner. The respondent State Government will be at liberty to make it clear that the issuance of the integrity certificate in favour of the applicant, would be subject to the outcome of the O.A. If, on any account, the respondent State Govt. refuses to issue the integrity certificate, the Tribunal, after hearing both sides, may consider whether in the facts and circumstances of the case, the respondent State Government could be directed to issue the intergrity certificate in favour of the applicant, which could be subject to the result of the OA. The Registry of this Court will forward a copy of this judgment to the Registry of the Central Administrative Tribunal, Ernakulam Bench for necessary information.

Further, it is also ordered that the posting of the case before the Tribunal will stand advanced from 14.9.2023 to 7.9.2023, on which day, the respondent State Government may apprise the Tribunal about the decision taken by them, in compliance with the above directions.

With these observations and directions, the above Original Petition (CAT) will stand disposed of.