Kerala High Court
Vishnu S vs Dinesh Babu D on 10 September, 2025
Author: Anil K. Narendran
Bench: Anil K. Narendran
1
OP(KAT)No.359 of 2025
2025:KER:66665
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR. JUSTICE MURALEE KRISHNA S.
WEDNESDAY, THE 10TH DAY OF SEPTEMBER 2025 / 19TH BHADRA, 1947
OP(KAT) NO. 359 OF 2025
AGAINST THE ORDER DATED 23.07.2025 IN O.A NO.130 OF
2025 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONER/ADDITIONAL 5TH RESPONDENT IN OA:
VISHNU S
AGED 34 YEARS
S/O. A. SASIDHARAN NAIR, DEPUTY SUPERINTENDENT,
CENTRAL PRISON AND CORRECTIONAL HOME, POOJAPURA,
THIRUVANANTHAPURAM-695 012, RESIDING AT TC 16/1338,
MANOJ VIHAR, KANNETTUMUKKU, THYCAUD PO,
THIRUVANANTHAPURAM, PIN - 695014
BY ADVS.
SRI.P.NANDAKUMAR
SMT.AMRUTHA SANJEEV
SHRI.VIVEK VIJAYAKUMAR
RESPONDENTS/APPLICANT & RESPONDENTS 1 TO 4 IN OA:
1 DINESH BABU D
AGED 45 YEARS
2
OP(KAT)No.359 of 2025
2025:KER:66665
S/O. C.B. DIVAKARAN NAIR,
WORKING AT DEPUTY SUPERINTENDENT, HOME DEPARTMENT,
CENTRAL PRISON AND CORRECTIONAL SERVICES,
KANNUR-670 005, RESIDING AT DIVA SADANAM,
EZHUVATHIRUTHI, PONNANI, MALAPPURAM, PIN - 679577
2 STATE OF KERALA
REPRESENTED BY THE SECRETARY,
HOME DEPARTMENT, GOVERNMENT SECRETARIAT,
STATUE, THIRUVANANTHAPURAM, PIN - 695001
3 THE DIRECTOR GENERAL OF PRISONS AND CORRECTIONAL
SERVICES
PRISONS HEAD QUARTERS, POOJAPURA PO,
THIRUVANANTHAPURAM, PIN - 695012
4 DEPARTMENTAL PROMOTION COMMITTEE (LOWER)
REPRESENTED BY ITS CONVENOR, THE DIRECTOR GENERAL OF
PRISONS AND CORRECTIONAL SERVICES,
PRISONS HEAD QUARTERS, POOJAPURA PO,
THIRUVANANTHAPURAM, PIN - 695012
5 DEPARTMENTAL PROMOTION COMMITTEE (HIGHER)
REPRESENTED BY ITS CONVENOR, THE SECRETARY TO
GOVERNMENT, HOME (B) DEPARTMENT,
GOVERNMENT /SECRETARIAT, STATUE,
THIRUVANANTHAPURAM, PIN - 695001
BY ADVS.
SHRI.G.SIVASANKAR
SMT.GAYATHRI S.B.
SRI.A.J. VARGJESE SR.GP
THIS OP KERALA ADMINISTRATIVE TRIBUNAL WAS FINALLY HEARD
ON 25.08.2025, THE COURT ON 10.09.2025 PASSED THE FOLLOWING:
3
OP(KAT)No.359 of 2025
2025:KER:66665
JUDGMENT
Muralee Krishna, J.
This original petition is filed by the 5 th respondent in
O.A.No.130 of 2025 on the file of the Kerala Administrative
Tribunal, Thiruvananthapuram (for short the 'Tribunal'),
challenging Exts.P7 and P8 interim orders dated 23.07.2025
passed by the Tribunal in M.A.Nos.1249 of 2025 and 1269 of 2025
respectively, in that Original Application.
2. As per the pleadings in the Original Petition, the
petitioner is presently working as Deputy Superintendent at
Central Prison, Poojapura, Thiruvananthapuram. His name has
been included in the select list dated 04.06.2025 for promotion to
the post of Joint Superintendent for the year 2025. The 1 st
respondent is the senior-most Deputy Superintendent, who has
been superseded from being included in that select list due to the
pendency of a criminal case and disciplinary proceedings against
him. Being aggrieved, the 1st respondent approached the Tribunal
by filing O.A.No.130 of 2025, invoking the provisions under
2025:KER:66665
Section 19 of the Administrative Tribunals Act, 1985, seeking a
declaration that he is eligible and entitled to be promoted as Joint
Superintendent with effect from the date of promotion of his
immediate junior in Annexure A1 seniority list dated 27.04.2019.
In the Original Application, the 1 st respondent has also sought for
a direction against respondents 2 to 5 herein to grant
retrospective promotion to him as Joint Superintendent with effect
from the date of promotion of his immediate junior with all service
and monetary benefits. The 1st respondent sought an interim order
to provisionally promote him to the said post during the pendency
of the original application. The Tribunal adjourned the matter to
get instructions as to the status of the disciplinary proceedings
against the 1st respondent. Then the 1st respondent approached
this Court by filing OP(KAT)No.257 of 2025. By Annexure R5(d)
judgment dated 17.06.2025, this Court disposed of that original
petition by granting an interim order for a period of six weeks.
Paragraphs 2 to 4 of that judgment read thus;
"2.The learned Government Pleader on instructions submits
2025:KER:66665
that a select list to the post of Joint Superintendent has been
prepared by the DPC, and the following persons have been
considered for the promotion.
Sl.No. Name of Officer
1 Sri.Jijesh E.V.
2 Sri.Aneesh C.S.
3 Sri.Vishnu S.
3. Considering the above, we passed the following order on
12.06.2025.
"We direct that one post of Joint Superintendent in
Prisons & Correctional Services Department shall be
kept vacant and shall not be filled up based on G.O.
(P) no.73/2025/HOME Dated, Thiruvananthapuram,
04-06-2025 issued by the Additional Chief Secretary
(Home & Vigilance Department) without further orders
from this Court."
4. In the light of the above, we are of the view that the
above interim order can be retained for a period of six
weeks, The petitioner, in the meanwhile, shall implead the
aforesaid persons before the Tribunal. The petitioner is free
to seek extension of above interim order before the
Tribunal.
This original petition is disposed of as above."
3. In pursuance to Annexure R5(d) judgment, by Ext.P7
2025:KER:66665
interim order dated 23.07.2025 in M.A.No.1249 of 2025, which is
an application filed by the petitioner herein seeking an order to
vacate the interim order dated 12.06.2025 passed by this Court,
it was held by the Tribunal that evidently since the order dated
12.06.2025 was passed by this Court, the Tribunal cannot modify
the said order. Therefore, that interlocutory application was
dismissed by the Tribunal.
4. The 1st respondent filed M.A.No.1269 of 2025 before
the Tribunal seeking extension of the interim arrangement made
by this Court in Annexure R5(d) judgment. By Ext.P8 order dated
23.07.2025, the Tribunal disposed of that interlocutory
application. Paragraphs 2 and 3 of that order read thus;
"2.The Hon'ble High Court directed the respondents to keep
one post vacant and not be filled up, through an interim
order passed on 12.06.2025. In the judgment disposing the
Original Application it is ordered that, the said interm order
can be retained for a period of six weeks. Liberty was
granted to the applicant to implead necessary parties. It is
further made clear that, the applicant will be free to seek
extension of the above interim order before this Tribunal.
2025:KER:66665
3. In view of the fact that the Hon'ble High Court had
granted interim relief in the matter, we are inclined to
extend the same until disposal of the Original Application."
Being aggrieved by Exts.P7 and P8 orders, the petitioner is now
before this Court, invoking the supervisory jurisdiction of this
Court under Article 227 of the Constitution of India.
5. Heard the learned counsel for the petitioner, the
learned counsel for the 1st respondent and the learned Senior
Government Pleader.
6. The learned counsel for the petitioner would submit
that by Annexure R5(d) judgment, this Court directed to keep one
post of Joint Superintendent in Prisons & Correctional Services
Department vacant for a period of six weeks from 17.06.2025. By
Ext.P8 order, the Tribunal extended that interim order until the
disposal of the original application. Against the 1st respondent,
disciplinary proceedings are pending. Hence, he is not included in
the select list, in view of Note (i) to Rule 28 (b) (i) (7) of Part II
KS & SSR. As per Note (ii) to the said Rule, when departmental
proceedings for imposition of a major penalty are pending against
2025:KER:66665
the senior-most person, the post can be temporarily filled by the
next person in the seniority, in the approved list. Therefore, there
is no meaning in keeping one post of Joint Superintendent vacant
indefinitely.
7. On the other hand, the learned counsel for the 1st
respondent would submit that the criminal case against the 1 st
respondent was already closed in view of the refer report filed by
the Investigating Officer. In Annexure A5 order dated 03.03.2023
in O.A (EKM)No.1566 of 2019, the Tribunal held the disciplinary
proceedings against the 1st respondent as unwarranted. In that
circumstance, the 1st respondent is entitled to promotion and
therefore there is no illegality in Exts.P7 and P8 orders passed by
the Tribunal.
8. Note (i) and (ii) of Rule 28 (b) (i) (7) of Part II KS &
SSR read thus;
"Note.- (i) Officers under suspension and officers against
whom criminal proceedings are pending in a Sessions Court
or in any other higher Court for grave offences like murder,
dacoity, etc; and Officers against whom departmental
2025:KER:66665
proceedings are taken for the imposition of a major penalty
under the disciplinary rules applicable to them should not be
included in the select list. But the suitability of such an
Officer for promotion should be assessed at the relevant
time by the Departmental Promotion Committee and a
finding reached whether, if the Officer had not been
suspended or the criminal proceedings/departmental
proceedings had not been pending against him, he would
have been recommended/selected for promotion. Where a
select list is prepared the Departmental Promotion
Committee shall also make a finding as to what the position
of the Officer in that list would have been but for the
suspension or the criminal proceedings/departmental
proceedings against him. "The findings as to the suitability
and the place in the select list of the Officer should be
recorded separately and attached to the proceedings. The
proceedings of the Departmental Promotion Committee
need only contain a note. "The findings are recorded in the
attached sheet of paper". The authority competent to fill the
vacancy should be separately advised to fill the vacancy only
on a temporary basis. 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. But, the cases of such
Officers should also be assessed. The question of including
them in the select list shall be considered when the result of
2025:KER:66665
the enquiry is known. However Officers against whom
departmental proceedings are taken for the imposition of a
minor penalty may be included in the select list provisionally
if they are found suitable but for the pendency of disciplinary
proceedings initiated against them.
(ii) The vacancy that would have gone to the Officer but for
his suspension or the criminal proceedings/departmental
proceedings against him for the imposition of a major
penalty should be filled only on a temporary basis by the
next person in the approved list. If the Officer concerned is
completely exonerated, he will be promoted thereafter to
the post filled on a temporary basis, the arrangements made
previously being reversed. If the exoneration is not
complete, the Departmental Promotion Committee may
decide each case on its merits. Where, however, the post
which would have gone to the Officer but for his suspension
or the criminal proceedings/departmental proceedings
against him, ceases to exist before the conclusion of the
disciplinary proceedings, he will be promoted to the first
vacancy that may be available in future if he is found fit for
promotion at that time. If the officers against whom
departmental proceedings are taken for imposition of a
minor penalty and who have been provisionally included in
the select list are fully exonerated of the charges, their cases
for promotion on the basis of such inclusion in the select list
shall be considered. If the Officers are not fully exonerated
2025:KER:66665
of the charges, the Departmental Promotion Committee
may decide each case on its own merit."
[Underline supplied]
9. Admittedly, disciplinary proceedings are pending
against the 1st respondent. It is true that from Annexure A9
proceedings of the Additional Chief Judicial Magistrate Court,
Thiruvananthapuram, it can be gathered that the criminal case
against the 1st respondent was closed in view of the filing of a refer
report by the Investigating Officer. However, the disciplinary
proceedings against the 1st respondent are still not concluded.
Even if any observation is made in Annexure A5 order of the
Tribunal regarding the merits of that disciplinary proceedings, the
same is a matter to be considered in the disciplinary proceedings.
A reading of Notes (i) and (ii) of Rule 28 (b) (i) (7) of Part II KS &
SSR would show that a person against whom a disciplinary
proceeding is pending, for imposition of a major penalty, should
not be included in the select list for promotion. Similarly, if such a
proceeding is pending against the person to be promoted, the next
senior person in the list shall be temporarily promoted. If the
2025:KER:66665
departmental proceedings conclude in his favour, then he will be
promoted to the first vacancy that may be available in future if he
is found fit for promotion at that time. Hence, keeping one post
vacant without selecting anyone from the select list to the post of
Joint Superintendent is detrimental or adverse to the interest of
the person next in rank in the select list. It is true that while
passing Ext.P7 order dated 23.07.2025, the period of the interim
relief granted for six weeks by this Court in Annexure R5(d)
judgment was not over. Therefore, the Tribunal was correct in
dismissing M.A.No.1249 of 2025 by Ext.P7 order. At the same
time, the Tribunal ought not have passed a blanket order like
Ext.P8, directing to keep one post of Joint Superintendent vacant
till the disposal of the original application, merely by saying that
this Court granted interim relief in Annexure R5(d) judgment.
Therefore Ext.P8 order of the Tribunal is liable to be set aside
Having considered the pleadings and materials on record and
the submissions made at the Bar, this original petition is allowed
in part by setting aside Ext.P8 order dated 23.07.2025, passed by
2025:KER:66665
the Tribunal in M.A.No.1269 of 2025 in O.A.No.130 of 2025. The
Tribunal shall consider the said interlocutory application afresh
and pass appropriate orders in accordance with law, after
considering the rival contentions of the parties on merits, if the
same is required prior to the passing of the final order in the
original application.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
MURALEE KRISHNA S., JUDGE
MSA
2025:KER:66665
APPENDIX OF OP(KAT) 359/2025
PETITIONER ANNEXURES
Annexure A1 TRUE COPY OF SENIORITY LIST OF DEPUTY
SUPERINTENDENTS AS ON 01.01.2019 VIDE
NOTIFICATION NO.E1-5657/2019 DATED
27.04.2019 ISSUED BY THE 2ND RESPONDENT
Annexure A1(a) TRUE COPY OF NOTIFICATION NO.GENERAL E1-
37410/2023/PRHQ-937 DATED 08.01.2024
ALONG WITH PROVISIONAL SENIORITY LIST OF
DEPUTY SUPERINTENDENTS AS ON 01.01.2024
BEARING NO.GENERAL E1-37410/2023/PRHQ-
154 DATED 08.01.2024 ISSUED BY THE 2ND
RESPONDENT.
Annexure A2 TRUE COPY OF NOTIFICATION NO.GENERAL E1-
37338/2023/PRHQ-242 DATED 09.01.2024
ALONG WITH PROVISIONAL SENIORITY LIST OF
JOINT SUPERINTENDENTS AS ON 01.01.2024
BEARING NO.GENERAL E1-37338/2023/PRHQ-
833 DATED 09.01.2024 ISSUED BY THE 2ND
RESPONDENT.
Annexure A3 TRUE COPY OF CHARGE MEMO AND STATEMENT OF
ALLEGATIONS BEARING NO.E2-20864/13 DATED
09.03.2018 ISSUED BY THE 2ND RESPONDENT.
Annexure A4 TRUE COPY OF REPRESENTATION DATED
15.06.2019 SUBMITTED BY THE APPLICANT
(NO.SSJM 01/18) TO THE 2ND RESPONDENT.
Annexure A5 TRUE COPY OF ORDER IN OA(EKM) NO.1566 OF
2019 DATED 03.03.2023 RENDERED BY THE
HON'BLE KERALA ADMINISTRATIVE TRIBUNAL.
Annexure A6 TRUE COPY OF SHOW CAUSE NOTICE NO.F2-
20864/2013/PRHQ DATED 16.01.2023 ISSUED
2025:KER:66665
BY THE 2ND RESPONDENT
Annexure A6(a) TRUE COPY OF REPLY TO THE SHOW CAUSE
NOTICE SUBMITTED BY THE APPLICANT DATED
01.02.2023 TO THE 2ND RESPONDENT
Annexure R5(a) TRUE COPY OF ORDER NO.E1-13940/2023/PRHQ
ISSUED BY THE 2ND RESPONDENT DATED
25.05.2023
Annexure R5(b) TRUE COPY OF NOTIFICATION NO.E1-
37470/2023/PRHQ ISSUED BY THE 2ND
RESPONDENT DATED 21.06.2024 PUBLISHING
THE FINAL SENIORITY LIST OF DEPUTY
SUPERINTENDENTS AS ON 01.01.2024
Annexure R5(c) TRUE COPY OF GO(P) NO.73/2025/HOME ISSUED
BY THE 1ST RESPONDENT DATED 04.06.2022
Annexure R5(d) TRUE COPY OF THE JUDGMENT IN OP(KAT)
NO.257 OF 2025 DATED 17.06.2025
Exhibit P1 TRUE COPY OF OA NO.130 OF 2025 ALONG WITH
ANNEXURES
Exhibit P2 TRUE COPY OF ORDER
DATED 22.01.2025 IN OA NO.130 OF 2025
Exhibit P3 TRUE COPY MA NO.1140 OF 2025 IN OA NO.
130 OF 2025.
Exhibit P4 TRUE COPY OF REPLY STATEMENT ALONG WITH
ANNEXURES SUBMITTED BY THE ADDITIONAL 5TH
RESPONDENT.
Exhibit P5 TRUE COPY OF MA NO.1249 OF 2025 IN OA
NO.130 OF 2025
2025:KER:66665
Exhibit P6 TRUE COPY OF MA NO.1269 OF 2025 IN OA
NO.130 OF 2025
Exhibit P7 TRUE COPY OF ORDER DATED 23.07.2025 IN MA
NO.1249 OF 2025 IN OA NO.130 OF 2025
Exhibit P8 TRUE COPY OF ORDER DATED 23.07.2025 IN MA
NO.1269 OF 2025 IN OA NO.130 OF 2025
