Kerala High Court
State Of Kerala vs State Of Kerala on 19 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE T.R.RAVI
TUESDAY, THE 19TH DAY OF JANUARY 2021 / 29TH POUSHA, 1942
OP(KAT).No.8 OF 2021
AGAINST THE ORDER IN OA 1774/2020 OF KERALA ADMINISTRATIVE
TRIBUNAL, DATED 19.11.2020 THIRUVANANTHAPURAM
PETITIONERS/RESPONDENTS 1 TO 4 IN OA:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT,
HOME DEPARTMENT, GOVERNMENT SECRETRIAT,
THIRUVANANTHAPURAM PIN 695 001
2 THE STATE POLICE CHIEF,
POLICE HEADQUARTERS, VAZHUTHACAUD,
THIRUVANANTHAPURAM PIN 695 010
3 THE ADDITIONAL DIRECTOR GENERAL OF POLICE,
(INTELLIGENCE)
PATTOM, THIRUVANANTHAPURAM PIN 695 004
4 THE COMMANDANT,
KERALA ARMED POLICE BATTALLION IV,
MANGATTU PARAMBA, KANNUR PIN 670 567
BY GOVERNMENT PLEADER
RESPONDENTS/APPLICANTS & RESPONDENTS 5 & 6 IN OA:
1 SANJU.L
AGED 36 YEARS
S/O. LUKOSE, RESIDING AT PLAVILA VEEDU,
KUMBALAM P.O, MULAVANA VILLAGE,
KUNDARA, KOLLAM PIN 691 501
2 THE KERALA PUBLIC SERVICE COMMISSION,
REPRESENTED BY ITS SECRETARY,
PATTOM PALACE,
THIRUVANANTHAPURAM PIN 695 004
3 THE DISTRICT OFFICER,
OP(KAT).No.8 OF 2021 2
KERALA PUBLIC SERVICE COMMISSION,
DISTRICT OFFICE, KASARAGODE,
KASARAGODE P.O, PIN 671 121
R1 BY ADV. SRI.B.MOHANLAL
SRI.ANTONY MUKKATH, SR.GP FOR PETITIONER,
SRI.P.C.SASIDHARAN FOR RESPONDENT, SRI.B.MOHANLAL
FOR RESPONDENT
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR
ADMISSION ON 19.01.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(KAT).No.8 OF 2021 3
ALEXANDER THOMAS & T.R.RAVI, JJ.
=========================
OP(KAT)No.8 of 2021
[arising out of interim order dated 19.11.2020 in O.A.No.1774 of 2020
of Kerala Administrative Tribunal, Thiruvananthapuram]
========================
Dated this the 19th day of January, 2021
JUDGMENT
ALEXANDER THOMAS, J.
The prayers in the above O.P.(KAT) filed under Articles 226
and 227 of the Constitution of India are as follows:
"1. To set aside the Exhibit P2 Order of the Kerala
Administrative Tribunal in O.A.No.1774/2020.
2. To dismiss the Exhibit P1 Original Application
no.1744/2020 filed by the petitioner before the Kerala
Administrative Tribunal, holding that the Petitioner is not
eligible for any of the reliefs claimed in the Exhibit P1
Original Application.
3. Any other order or direction as this Honourable
Court may deem fit and proper in the facts and
circumtances of the case."
2. Heard Sri.Antony Mukkath, learned Senior Government
Pleader appearing for the petitioners (State of Kerala and 3
others/official respondents 1 to 4 in the O.A. before the Tribunal)
and Sri. B.Mohanlal, the learned counsel appearing for the 1 st
respondent/original applicant before the Tribunal and
Sri.P.C.Sasidharan, the learned Standing Counsel for the Kerala
Public Service Commission appearing for R2 and R3 herein/R5 and
R6 in the O.A.
3. Respondent No. 1 to 4 in the O.A. (State of Kerala and
three others) has preferred the instant original petition, so as to
challenge Ext.P2 interim order dated 19.11.2020, rendered by the
Kerala Administrative Tribunal in O.A.No.1774/2020 filed by the R1
herein, whereby the the petitioners have been directed by the
Tribunal, to provisionally permit the original applicant to attend the
training course consequent to selection as Police Constable. The
petitioners have taken the stand that the original applicant cannot be
permitted to attend the training consequent to the selection as he is
involved in a crime, which is investigated by the Police and the case
is now pending as Calender Case on the file of the Jurisdictional
Magistrate Court concerned, and that further steps in respect of the
selection of the original applicant to be taken up for consideration
only after the accused secures acquittal in the said case, even though
he has been duly selected by the Kerala Public Service Commission
in the selection process. At the outset, it has to be borne in mind that
the impugned Ext.P2 order rendered by the Tribunal is only an
interlocutory order, whereby it is made clear that the said direction
is provisional and subject to the result in the original application.
The selection notification for the post of Police Constable in the
Kerala Armed Police Battalion No.IV (KAP IV) was issued by the 2 nd
respondent Kerala Public Service Commission long ago and after
finalization of the selection process, the petitioner/original applicant
has been duly included in the rank list prepared by the Kerala Public
Service Commission, and thereafter he has even secured advice
memo issued by the Kerala Public Service Commission as early as on
18.01.2012. Thus the Tribunal has noted that the original applicant
has been awaiting for the last more than 8 years, even after receipt of
advice memo by the Kerala Public Service Commission. More over it
appears that,the original applicant is aged more than 36 years.
Taking into account of these aspects, the Tribunal has passed the
said interlocutory order, and to ensure that the interest of the
petitioner are duly taken care of. The Tribunal has made it clear that
the said order is only provisional and will be subject to the result of
the O.A.
4. After hearing both sides for quite some time we are of the
considered view that, most crucial and relevant aspects of the matter
have not been placed by the petitioners herein either before this
Court or before the Tribunal, before the impugned Ext.P2 interim
order dated 19.11.2020 was rendered by the Tribunal in the O.A , or
at least before the present original petition has been filed before this
Court on 7.01.2021. None of the details are forthcoming as to the
nature of the allegations raised against various accused persons in
the instant criminal proceedings at Annexure -A3 and also as to the
specific nature of allegations raised against the original applicant for
the first time by filing of an additional report by the Police before the
learned Magistrate in the then pending crime on 16-04-2012 and
also as to the specific nature of the materials collected in the course
of investigation which discloses the alleged criminal culpability as
against the original applicant, which in turn led to the alleged filing
of the Final Report/charge sheet in this case. All what the learned
Government Pleader would urge is that since the original applicant is
facing the criminal proceedings at Annexure-A3, he cannot be send
for training once he is selected to the post of Police Constable since it
involves training with arms. The specific case of the original
applicant is to the effect that he is completely innocent and further
that the crime incident is said to have happened in 3.10.2010 and the
FIS and FIR has been lodged in this case on 14.10.2010, in which
only eight accused were arrayed therein. Further, the original
applicant secured advice from the Public Service Commission for
appointment to the post of Police Constable on 18.01.2012 and he
had also undergone physical test conducted by the the Public Service
Commission on 10.2.2012. It is long thereafter that the Police has
filed additional report in the above said FIR/crime as late as on
16.4.2012 that the petitioner is also involved as one among the
accused therein. The consistent case of the original applicant before
the Tribunal was to the effect that the case has been framed at the
instance of some persons having personal interest after knowing that
he has been advised by the Kerala Public Service Commission.
5. It has also to be borne in mind that, none other than the
Legislature of the State consequent to the bill introduced by the State
Government, has even amended the Kerala Police Act and has also
introduced a provision in Section 86 (2) of the Kerala Police Act,
2011, whereby a person who is implicated in a criminal case, is
entitled to get selected and to undergo training and the only embargo
is in his permanent appointment which can be considered only after
his acquittal in the criminal case etc.
6. It is pointed out by Sri.B.Mohanlal, learned counsel
appearing for the respondent herein/original applicant that, the
dictum laid down by this Court in the decisions by the Apex Court in
Union Territory, Chandigarh Administration v. Pradeep
Kumar [2018 KHC 6006 (SC)], can have no application in this case
in as much as, in the said case there is no provision which is similar
to the one in Section 86 (2) of the Kerala Police Act, 2011. Moreover
the party therein who is an accused in one among the cases, has
already been implicated in five other cases.
7. The counsel for the original applicant would assert that
his party has not been implicated in any criminal case other than
the one at Annexures-A3/A7, and that he has been falsely implicated
long after the registration of crime only due to extraneous
considerations in order to prevent his appointment, after coming to
know that he has secured advise for appointment by the Kerala
Public Service Commission etc.
8. After hearing both sides we are constrained to take a view
that the attitude shown by the petitioners is not apprising the
Tribunal even about the elementary facts regarding the allegations of
the crime and also as to the nature of the specific allegations
collected in the course of investigation as against the original
applicant, at least as alleged in the final report/charge sheet, and
also as to the alleged facts relating to the very origin of the crime etc.
cannot be countenanced as a bonafide litigation Without these basic
factual aspects, it is not right and proper for the petitioners herein to
take the stand that even interlocutory order as the one passed by the
Tribunal at Ext.P2 should be impugned, and that too in the teeth of
specific provisions made by the Legislature of the State in provisions
as in Section 86 (2) of the Kerala Police Act, 2011.
9. Without apprising the Tribunal about these aspects, it is
highly improper on the part of the petitioners to rush before this
Court by filing the above said original petition and that too as against
the interlocutory order passed by the Tribunal and that too without
apprising even this Court about these elementary factual aspects
relating to origin and the finalisation of the alleged crime referred to
in Annexure-A3.
Section 86 (2) of the Kerala Police Act, 2011, reads as follows:
"" A person against whom a criminal case for
an offence involving proclivity of violence or
moral turpitude is pending before a Court of
law shall be entitled to appear for
recruitment, to get selected and to undergo
training, but shall be entitled for permanent
appointment only after being acquitted".
10. Sri.B.Mohanlal, learned counsel appearing for the
original applicant would vehemently urge that in the facts of the
case, the Police has not even a remote case that the petitioner has
been involved in any other case and further that, there are no
objective facts and circumstances to come to the considered
conclusion that the original applicant could be imputed as a person
having proclivity for violence or that the offence involved is one for
moral turpitude based on he being arrayed as an additional accused
in a single case and that too has additional accused No.21 in a case
which is stated to arise out of disputes which has allegedly happened
in the context of a festival in a church.
11. Moreover it has to be borne in mind that, about nine long
years have elapsed after the selection advice to the original applicant,
and now he is more than aged 36 years. Prima facie, we feel that the
approach of the petitioners in litigating the case like this and that too
with scanty materials on the elementary and crucially relevant
aspects of the matter, cannot be seen as a litigation done with due
care and bonafides. In other words, prima facie it appears that the
petition lacks bonafides.
12. In view of the above said aspects, we had granted time
on the previous occasion to the learned Government Pleader to
secure instructions more particularly about the nature of the
allegations in the instant crime. Now today, we are apprised by the
learned Senior Government Pleader that initially, Crime
No.1701/2010 of Kundara Police Station was registered for offences
punishable under Sections 143, 147, 148, 341, 353, 332 read with
section 149 of the IPC and Section 3(2) (e) of Prevention of Damage
of Public Property Act, 1984, and that the FIS/FIR in this case has
been lodged and registered on 14.10.2010, in respect of the incident
on 03.10.2010 though the name of the original applicant was not
specifically shown by the Police at the time of lodging of FIS. The
FIR in the crime was registered as against not only the named
persons therein but also certain persons whose identity was not then
known. Later, the Police after investigation could get materials to
show the involvement of the original applicant as well in the said
case, and additional report was filed by the Police investigating
agency on 14.10.2010, before the Judicial First Class Magistrate
Court-I, Kollam, whereby the original applicant was then arrayed as
an additional accused, it is urged by the State. However,
Sri.B.Mohanlal, the learned counsel appearing for R1 herein/original
applicant would point out that the said factual assertion made on
behalf of the Police Investigation Agency, as if the additional report
was filed by the Police in this case as early as 14.10.2010 is factually
incorrect and wrong, and that this aspect of the matter has been
dealt with in Annexure A8 judgment (see page 66 of the paper book)
dated 04.11.2019 rendered by the Division Bench of this Court in
O.P.(KAT)No.2503/2013 filed by the 1st respondent/original
applicant herein (which arose out of O.A.No.1843/2012 of Kerala
Administrative Tribunal, Thiruvananthapuram), and that in
Paragraph 11 thereof, this Court has noted that the report is dated
14.10.2010, but the seal of the Magistrate Court specifically indicates
that the date on which it was actually filed in Court, which was
shown as 16.04.2012. In that regard, their Lordships of the Division
Bench of this Court as per Annexure A8 judgment has held that they
fully agreed with the factual findings made by the Tribunal on the
issue raised therein, that there is no ground of suppression against
the original applicant etc. Further the counsel for the 1 st
respondent/original applicant would also point out that it can also
be seen from Annexure A7 (see page 56 of the paper book) that the
seal would actually show that the said additional report was in fact
filed before the Jurisdictional Magistrate Court only on 16.04.2012,
and not on 14.10.2010, as asserted by the Police etc. Further it
appears that, the final report/charge sheet in this case has been filed
by the Police after completion of investigation and the learned
Magistrate has taken cognizance of offences alleged in the FIR, and
the case is now pending as C.C.No.341/2016 on the file of Judicial
First Class Magistrate Court-I, Kollam etc.
13. So after hearing both sides, it appears that the Division
Bench of this Court had already observed in Annexure A8 judgment,
that the additional report in the crime would have been filed only on
16.04.2012 and not on 14.10.2010, as alleged by the Police etc., in
that regard it can been seen that the consistent case in the original
applicant all throughout before the Tribunal and before this Court is
to the effect that the case has been framed at the instance of some
persons having personal interest, after knowing that the 1 st
respondent/ original applicant has been advised by the Kerala
Public Service Commission on 18.01.2012, in as much as the
additional report was filed by the Police in the above said crime only
on 16.04.2012.
14. From the submissions of both sides, it appears that the
incidents in relation to the said crime have occurred in the context of
a festival in a Church and some commotions have happened and the
Police was called to deal with the situation and then there arose
some disputes between parishioners who had gathered in the festival
and the Police etc., and the alleged incidents are said to have
happened in this context. Hence, it appears that though the FIR/FIS
in this case has been lodged as early as on 14.10.2010, 1 st
respondent/original applicant was not named as an accused therein,
and for the first time, he has been arrayed as additional accused in
the said case only by filing of the additional report by the Police as
late as on 16.04.2012.
15. Further the selection notification was issued by the
Kerala Public Service Commission, long ago and the rank list was
also prepared quite some time back, and the 1 st respondent/original
applicant has secured advice memo by the Kerala Public Service
Commission, and he is now waiting for being deputed for training for
last more than 8 years. Still further it has been noted that the 1 st
respondent/original applicant is now aged more than 36 years. It is
taking into account of all these cumulative factors that the Tribunal
has passed a well considered order granting interim direction that
the applicant should at least be provisionally send for training, and
that the said order will be subject to the final result of the O.A. The
interlocutory view taken by the Tribunal appears to be justified more
so in view of the provisions contained in Section 86(2) of the Kerala
Police Act, above which the reference has been made in the previous
paragraph in this judgment.
16. In the light of all these aspects, this Court is constrained
to take the view that the Tribunal cannot be faulted for having
passed such an interim order as one at Ext.P2. At any rate, we are
not in a position to hold that the said interlocutory view taken by the
Tribunal in this case is rather arbitrary or perverse, or would require
interdiction in judicial proceedings by way of judicial review and
superintendence at the hands of this Court. Hence the present
original petition fails and need not be entertained. In that view of the
matter it is ordered that the original petition will stand dismissed.
However, there will be no order as to cost.
Moreover, we feel that the petitioners should have complied
with the present interim order at Ext.P2, more so particularly in the
light of the previous round of litigation which has culminated in
Annexure A8 judgment of the Division Bench of this Court rendered
on 04.11.2019 in O.P.(KAT)No.2503/2013.
With these observations and directions, the above Original
Petition will stand finally disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
T.R.RAVI, JUDGE
VPK
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF O.A NO. 1774/2020 ALONG WITH
ANNEXURES.
ANNEXURE A1 TRUE COPY OF THE ADVICE MEMO NO. KGDIV(2)
2303/07/07(164) DATED 18-01-2012 ISSUED BY
THE 3RD RESPONDENT TO THE FIRST RESPONDENT.
ANNEXURE A2 TRUE COPY OF THE COMMUNICATION NO. A2(A)
20013/2011/KAP4 10-02-2012 ISSUED BY THE
3RD PETITIONER TO THE FIRST RESPONDENT
ANNEXURE A3 TRUE COPY OF THE FIR IN CRIME NO. 1701/2010
OF KUNDARA POLICE STATION IN KOLLAM
DISTRICT PENDING BEFORE THE JUDICIAL FIRST
CLASS MAGISTRATE COURT-1, KOLLAM
ANNEXURE A4 TRUE COPUY OF THE ORDER DATED 18-05-2012 IN
O.A NO. 770/2012 OF THIS HONOURABLE
TRIBUNAL
ANNEXURE A5 THE TRUE COPY OF THE ORDER G.O(RT) NO.
2183/2012/HOME DATED 20-07-2012 ISSUED BY
GOVERNMENT
ANNEXURE A6 THE TRUE COPY OF THE ORDER DATED 15-03-2013
IN O.A NO. 1843/2012 OF THIS HONOURABLE
TRIBUNAL
ANNEXURE A7 THE TRUE COPY OF THE REPORT DATED 16-04-
2012 SUBMITTED BY THE SUB INSPECTOR OF
POLICE, KUNDARA IN ANNEXURE A3 FIR
ANNEXURE A8 THE TRUE COPY OF THE JUDGMENT DATED 04-11-
2019 IN OP(KAT) NO. 2503/2013 OF THE
HONOURABLE HIGH COURT OF KERALA, ERNAKULAM
ANNEXURE A9 THE TRUE COPY OF THE ORDER NO. L2-
6334/2020/PHQ DATED 27-03-2020 ISSUED BY
THE SECOND PETITIONER.
ANNEXURE A10 THE TRUE COPY OF THE ORDER DATED 23-03-2018
IN O.A (EKM) NO. 744/2018 OF THIS
HONOURABLE TRIBUNAL
ANNEXURE A11 THE TRUE COPY OF THE JUDGMENT DATED 08-06-
2018 IN OP(KAT) NO. 178/2018 OF THE
HONOURABLE HIGH COURT OF KERALA, ERNAKULAM
EXHIBIT P2 TRUE COPY OF THE INTERIM ORDER OF THE
TRIBUNAL DATED 19-11-2020 IN O.A NO.
1774/2020
