FIR Registration after Vigilance Preliminary Enquiry Excludes Officers from Promotion Select Lists under KS&SSR Note (i)

Introduction

This commentary examines the Kerala High Court’s April 11, 2025 decision in Anoop Varkey v. G.S. Sajiprasad, reported as 2025:KER:31193, clarifying the scope of Note (i) to Rule 28(b)(i)(7) of Part II of the Kerala State and Subordinate Services Rules (“KS&SSR”). The dispute arose when Mr. Anoop Varkey, a Deputy Transport Commissioner candidate, was included in the 2022 select list for promotion despite an FIR having been lodged against him by the Vigilance & Anti‑Corruption Bureau after a preliminary inquiry and government approval. His colleague, Mr. G.S. Sajiprasad, challenged the inclusion before the Kerala Administrative Tribunal, contending that Note (i) prohibits promotion-list inclusion of officers facing vigilance‐related criminal proceedings. The High Court’s division‑bench ruling considered earlier conflicting decisions and established a new precedent on when vigilance proceedings attract the embargo in KS&SSR.

Summary of the Judgment

The High Court unanimously held that under Note (i) to Rule 28(b)(i)(7) of Part II KS&SSR, an officer against whom an FIR is registered by the Vigilance & Anti‑Corruption Bureau—after a government‑approved preliminary inquiry to prima facie establish charges—is ineligible for inclusion in the select list for promotion. The Court overruled the Single Bench’s earlier view in Sasidharan K.K. v. State of Kerala & Ors. (2008 (4) KHC 146), which had required framing of formal charges by a vigilance court before invoking the embargo. Applying the clarified test, the Court dismissed Mr. Varkey’s challenge and upheld the Tribunal’s decision refusing to include him in the select list.

Analysis

Precedents Cited

1. State Of Kerala v. Babu Prasad B. (2019 KHC 940): A division‑bench decision that interpreted Note (i) and held that registration of an FIR after a government‑approved preliminary enquiry into corruption allegations suffices to trigger the exclusion from promotion lists. This ruling distinguished between Sessions‑court criminal cases and vigilance inquiries under the Prevention of Corruption Act.

2. Sasidharan K.K. v. State of Kerala & Others (2008 (4) KHC 146): A Single Bench had held that the embargo in Note (i) applies only once formal charges are framed by a vigilance court, an interpretation overturned by Babu Prasad B.

3. Janakiraman v. State of Tamil Nadu (reported by the Supreme Court): Discussed by both benches to contrast the absence of a preliminary enquiry requirement in ordinary Sessions‑court FIR registration under the Code of Criminal Procedure with the mandatory preliminary approval process under S. 17A of the Prevention of Corruption Act.

Legal Reasoning

The Court’s reasoning centered on the precise language of Note (i) to Rule 28(b)(i)(7):

“Officers under suspension and officers against whom criminal proceedings are pending in a Sessions Court or in any other higher Court for grave offences… and Officers against whom departmental proceedings are taken for the imposition of a major penalty… should not be included in the select list. … 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…”

Two elements must coexist to attract the embargo:

1. A “vigilance or departmental proceeding” must be initiated.
2. The proceeding must follow a preliminary enquiry that prima facie establishes the allegations against the officer.

The division bench in Babu Prasad B. had held that in vigilance cases under the Prevention of Corruption Act, Section 17A mandates government approval before any inquiry and that the Bureau’s submission of a preliminary enquiry report—accompanied by such approval—culminates in FIR registration. Consequently, FIR registration itself signifies initiation of the vigilance proceeding post‑enquiry. The earlier Sasidharan K.K. approach, which required formal charge framing by a vigilance court, was rejected as inconsistent with both the statutory scheme and the plain language of Note (i).

The present Bench reaffirmed this interpretation and clarified that government sanction under Section 19 of the Prevention of Corruption Act (required for court cognizance of a final report) is not relevant to the earlier stage of FIR registration. The embargo arises on FIR registration after a government‑approved preliminary enquiry, regardless of whether the prosecution sanction under S.19 has been granted.

Impact and Implications

1. Staff Promotion Procedures: Departments must adopt a sealed‑cover procedure for officers against whom government‑approved preliminary enquiries have yielded FIRs, excluding their names from promotion lists while separately recording their suitability.

2. Uniform Application of Note (i): The judgment resolves longstanding confusion by unifying the treatment of Sessions‑court cases and vigilance proceedings: in both, the act of lodging an FIR (post‑enquiry and approval) triggers ineligibility.

3. Administrative Vigilance Practice: Vigilance agencies and promotion committees will now ensure timely completion of preliminary enquiries and proper documentation of approvals to lawfully exclude officers facing serious corruption allegations.

4. Judicial Precedent: The overruled Sasidharan K.K. decision will no longer guide tribunals or lower benches, and future litigation on promotion‑list eligibility in Kerala will follow the Babu Prasad B. framework as reiterated here.

Complex Concepts Simplified

• Preliminary Enquiry: An internal fact‑finding exercise by the Vigilance & Anti‑Corruption Bureau to determine if allegations against a public servant warrant formal investigation.

• Government Approval (Section 17A, P.C. Act): Before lodging an FIR for corruption, the Bureau must secure written permission from the appropriate government authority—this ensures checks on frivolous prosecutions.

• Promotion Select List: A ranked roster of officers recommended for elevation; inclusion in it creates a right to promotion when vacancies arise.

• Note (i) to Rule 28(b)(i)(7), KS&SSR: A rule provision barring selection-list inclusion of officers under suspension, facing grave criminal proceedings, or against whom departmental/vigilance proceedings have been initiated post‑enquiry.

Conclusion

The Kerala High Court’s decision in Anoop Varkey v. G.S. Sajiprasad cements a critical principle: once a vigilance inquiry—preceded by government approval—culminates in FIR registration under the Prevention of Corruption Act, the officer is automatically excluded from promotional consideration under Note (i) to Rule 28(b)(i)(7) KS&SSR. By overruling the narrower Sasidharan K.K. test, the Court has ensured that the disciplinary‑promotion framework remains robust against officers under serious corruption suspicion even at early investigation stages. This precedent will guide promotion committees, vigilance agencies, and courts in upholding integrity within the state civil service.