Muralee Krishna, J.

1. The respondents 1 to 4 in O.A.No.1919 of 2019 on the file of the Kerala Administrative Tribunal, Thiruvananthapuram (the ‘Tribunal’ for short) filed this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, challenging Ext.P4 order dated 26.09.2022 passed by the Tribunal in that original application.

2. Going by the averments in the original application, the 1st respondent is currently working as the State Tax Officer of Circle 1/ Commercial Tax Officer in Kollam District. During the year 2007, while the 1st respondent was working as a Junior Superintendent at the Commercial Tax Office, Neyattinkara, in Thiruvananthapuram District, she happened to unearth and crack the fraudulent practice of four traders in the matter of advance tax payment. An enquiry was conducted belatedly after the retirement of the Commercial Tax Officer. While so, the 1st respondent was included in Annexure A2 Select List dated 24.01.2009 for promotion to the post of Commercial Tax Officer. But the 1st respondent was suspended from service as per Annexure A1 order dated 24.01.2009 and was later reinstated as per Annexure A3 order dated 03.06.2011 of the 2nd petitioner. On her reinstatement, she continued as Junior Superintendent. Despite her inclusion in Annexure A2 Select List, and absence of any disciplinary proceedings initiated against her, nor any vigilance cases pending, her immediate junior and several others were promoted to the Cadre of Commercial Tax Officer and subsequently as Assistant Commissioner. When she raised her claim for promotion to the cadre of Commercial Tax Officer it was denied and after a substantially long period of 3 years from the date of occurrence of the offence, a case under the Prevention of Corruption Act, 1988 (‘PC Act’, for short), was registered against her and sent the FIR before the Enquiry Commissioner and Special Judge, Thiruvananthapuram. The Final Report/Charge Sheet was filed on 31.12.2015. Meanwhile, in the year 2014, through Annexure A4 order dated 16.08.2014 issued by the 2nd petitioner, the 1st respondent was promoted as Commercial Tax Officer. She ought to have been promoted in the year 2011 based on Annexure A2. Even after completing 2 years of service in the Cadre of Commercial Tax Officer after promotion in the year 2014, her probation was illegally not declared. Under the said circumstances, the 1st respondent submitted Annexure A9 representation dated 27.01.2019 before the 1st petitioner, praying for declaration of her probation in the Cadre of Commercial Tax Officer and retrospective Promotion in the cadre of Commercial Tax Officer with effect from the date of promotion of her immediate junior, as there were no legal impediments in effecting her promotion at that date. Subsequent to Annexure A9 representation, the 1st respondent moved to the Tribunal through O.A.No.371 of 2019, and the Tribunal vide Annexure A10 order dated 25.02.2019 in O.A.No.371 of 2019 directed the 1st petitioner to consider and pass orders on Annexure A9 representation within a period of three months. In compliance with Annexure A10, the 1st petitioner considered and rejected Annexure A9 representation by Annexure A11 order dated 21.05.2019. Therefore, the 1st respondent filed O.A. No.1919 of 2019 under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:

                  “(i) To call for the records leading to Annexure A11 and quash the same.

                  (ii)      To issue appropriate direction to the 1st respondent to promote the applicant retrospectively to the cadre of Commercial Tax Officer with effect from the date of promotion of her immediate junior and to restore her legitimate seniority as per Annexure A2 Select List.

                  (iii)     To issue direction to the 1st respondent to declare the applicant as an approved probationer in the cadre of Commercial Tax Officer with effect from 16.08.2016.

                  vi) To issue direction to the 1st respondent to consider the applicant for promotion to the post of Assistant Commissioner”.

3. In the original application, on behalf of the 1st petitioner, a reply statement dated 10.02.2020 was filed opposing the reliefs sought by the 1st respondent. To that reply statement, the 1st respondent filed a rejoinder dated 14.06.2020. Thereafter, by the impugned Ext.P4 order, the Tribunal disposed of the original application, setting aside Annexure A11 order dated 21.05.2019 and the 1st petitioner herein is directed to consider the claim of the 1st respondent-applicant for promotion as Commercial Tax Officer with effect from the date of promotion of the 2nd respondent herein as such. Her claim for declaration of probation as a Commercial Tax Officer was also directed to be considered in the light of the observations made in the order. It was further directed that the 1st petitioner shall pass orders as directed within two months from the date of receipt of a copy of Ext.P4 order.

4. Being aggrieved, the petitioners–respondents 1 to 4 are now before this Court with the present original petition.

5. Heard the learned Senior Government Pleader and the learned counsel for the 1st respondent.

6. The learned Senior Government Pleader would submit that the 1st respondent was under suspension from 24.01.2009 till reinstated in service on 03.06.2011. Her reinstatement was without prejudice to the pending disciplinary action and the case that was referred to the Vigilance and Anti-Corruption Bureau for a detailed enquiry by the Government in 2009. The Vigilance enquiry was conducted on the said allegation, and a criminal case was registered on 17.08.2011 as VC No.7/11/SIU 1, for the offences under the PC Act. The request of the 1st respondent for declaration of her probation in the cadre of Commercial Tax Officer was declined by the 2nd petitioner in Annexure A6 letter on the ground of the pendency of the said vigilance case. Annexure A11 order rejecting the representation of the 1st respondent was also passed, taking note of the pendency of the said vigilance case. By relying on the judgment of the Division Bench of this Court, in State of Kerala v. Babu Prasad [2020 (4) KLT SN 31], which was cited before the Tribunal also, the learned Senior Government Pleader would submit that the registration of FIR in a vigilance case is sufficient to exclude an employee from the select list for promotion. The learned Senior Government Pleader vehemently argued that the Tribunal mistakenly noted the date of registration of the FIR in the vigilance case as 31.12.2015 instead of 17.08.2011, which resulted in the passing of the impugned order in favour of the 1st respondent.

7. On the other hand, the learned counsel for the 1st respondent would submit that it is true that in the impugned order, the Tribunal mistakenly mentioned the date of registration of the FIR in the vigilance case. But, there is no relevance for the date of registration of the FIR as far as this case is concerned. Even going by the judgment in Babu Prasad [2020 (4) KLT SN 31], apart from registration of the FIR, approval for prosecution from the Government is necessary to treat that FIR as a ground to exclude the 1st respondent from the list of eligible employees for promotion. In the instant case, the prosecution sanction was obtained only on 18.09.2015, and the final report was filed before the Enquiry Commissioner Special Judge, Thiruvananthapuram, on 31.12.2015. No departmental proceedings were initiated against the 1st respondent by issuing a memo of charges. For the aforesaid reasons, there is no necessity to interfere with the impugned order of the Tribunal.

8. Article 227 of the Constitution of India deals with the power of superintendence over all courts by the High Court. Under clause (1) of Article 227 of the Constitution, every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.

9. In Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329] the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court.

10. In Jai Singh v. Municipal Corporation of Delhi [(2010) 9 SCC 385], while considering the nature and scope of the powers under Article 227 of the Constitution of India, the Apex Court held that, undoubtedly the High Court, under Article 227 of the Constitution, has the jurisdiction to ensure that all subordinate courts, as well as statutory or quasi-judicial tribunals exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well-established principles of law. The exercise of jurisdiction must be within the well-recognised constraints. It cannot be exercised like a 'bull in a china shop', to correct all errors of the judgment of a court or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice.

11. In K.V.S. Ram v. Bangalore Metropolitan Transport Corporation [(2015) 12 SCC 39] the Apex Court held that, in exercise of the power of superintendence under Article 227 of the Constitution of India, the High Court can interfere with the order of the court or tribunal only when there has been a patent perversity in the orders of the tribunal and courts subordinate to it or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted.

12. In Sobhana Nair K.N. v. Shaji S.G. Nair [2016 (1) KHC 1] a Division Bench of this Court held that, the law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law.

13. In view of the law laid down in the decisions referred to supra, the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India, cannot sit in appeal over the findings recorded by a lower court or tribunal. The supervisory jurisdiction cannot be exercised to correct all errors of the order or judgment of a lower court or tribunal, acting within the limits of its jurisdiction. The correctional jurisdiction under Article 227 can be exercised only in a case where the order or judgment of a lower court or tribunal has been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. Therefore, no interference under Article 227 is called for, unless the High Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted.

14. The 1st respondent herein entered service on 24.12.1998 as L.D. Clerk in the Commercial Tax Department under the Compassionate Employment Scheme. She was subsequently promoted in the year 1996 as U.D. Clerk, in the year 2000 as Head Clerk and in the year 2001 as Junior Superintendent. She was included in Annexure A2 select list dated 24.01.2009 for promotion to the post of Commercial Tax Officer. However, she was suspended on the very same day as per Annexure A1 order, pending disciplinary action on the allegation of misconduct, including misappropriation of Government money. The Departmental Promotion Committee (‘DPC’, for short) held on 23.03.2010 decided to remove her from Annexure A2 select list, citing suspension. The 1st respondent was reinstated in service as per Annexure A3 order dated 03.06.2011, without prejudice to the disciplinary action pending against her. Thereafter, an FIR was registered against the 1st respondent on 17.08.2011 by the Vigilance and Anti-Corruption Bureau for the offences under Sections 468, 471, and Section 120(B) of the Indian Penal Code ( ‘IPC’ for short) as well as under Section 13(2) r/w Section 13(1)(d) of the PC Act. The DPC met on 15.03.2011, 08.05.2012, 24.04.2013 and 21.10.2013, excluded the 1st respondent from the select list for promotion on account of the pendency of the vigilance case. But in the meeting held on 03.06.2014, the DPC included the 1st respondent in the select list for promotion for the year 2014, and she was promoted as per Annexure A4 order dated 16.08.2014. Thereafter, the Vigilance and Anti-Corruption Bureau filed the final report before the court concerned on 31.12.2015. The request of the 1st respondent for declaration of probation in the promoted post of Commercial Tax Officer was declined by Annexure A6 letter dated 03.03.2018 issued by the Joint Commissioner. The request made by the 1st respondent by Annexure A9 representation claiming that she should have been promoted immediately on her reinstatement in service on the basis of her position in Annexure A2 select list was rejected by Annexure A11 order by the Government on 21.05.2019. The claim of the 1st respondent is that mere registration of the FIR is insufficient to exclude her from the select list for promotion, or not declaring her probation in the promotion post. According to her, even at the time of the previous meetings held by the DPC, the position was the same as that of the meeting held on 03.06.2014, and hence she ought to have been promoted on the basis of her position in Annexure A2 select list. At the same time, the contention of the petitioners is that the registration of FIR by the Vigilance and Anti-Corruption Bureau under the PC Act is standing in a different footing and it cannot be equated with other criminal cases triable by the Sessions Court mentioned in Note (i) to Rule 28(b)(i)(7) of Part II Kerala State and Subordinate Service Rules (‘KS & SSR’ for short).

15. To appreciate the rival contentions of the parties to this lis, it would be appropriate to extract Note (i) to Rule 28(b)(i)(7) of Part II KS & SSR and also the relevant portion of the judgment of the Division Bench of this Court in Babu Prasad [2020 (4) KLT SN 31].

16. Note (i) to Rule 28(b)(i)(7) of Part II KS & SSR reads as follows:

                  “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 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 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.

[Underline supplied]

17. In Babu Prasad [2020 (4) KLT SN 31], the issue came up for consideration before this Court was the promotions effected superseding the applicant therein by reason of a vigilance case pending against him for the offences under Section 13(1)(d) read with Section 13(2) of the PC Act and Sections 466, 468, 471, 477A and 120B of IPC. The applicant therein contended that the pendency of the vigilance enquiry is not a bar for inclusion of the applicant in the select list for promotion. The Tribunal in the original application filed by the applicant therein directed to place the applicant in the zone of consideration of the DPC and to consider the suitability of the applicant in accordance with Rule 28(b)(i)(7) of Part II KS & SSR and also in terms of the dictum laid down by the Apex Court in Union of India v. K.V. Jankiraman [(1991) 4 SCC 109] and that of this Court in Sasidharan K.K. v. State of Kerala [2008 (4) KLT 149].

18. In Babu Prasad [2020 (4) KLT SN 31], after referring to the judgment of the Apex Court in K.V. Jankiraman [(1991) 4 SCC 109] and that of this Court in Sasidharan K.K. [2008 (4) KLT 149] and also the relevant provisions under the KS & SSR, this Court held as under:

                  “15. We are unable to subscribe to the findings in Sasidharan's case (supra). The provision considered by the Apex Court for arriving at the conclusion in Janakiraman's case (supra) is distinct from Note (i) to R.28(b)(i)(7) of Part II KS & SSR. The marked distinction in the terminology of Note(i), with respect to pendency of Sessions cases and taking of vigilance proceedings was omitted to be noted. The distinction in the procedure with respect to Sessions and Vigilance cases was also not considered. The Code of Criminal Procedure, which is applicable for Sessions cases, do not provide for any preliminary enquiry and prima facie establishment of charges pursuant thereto as a precursor to registration of an FIR, but mandates the registration of FIR on information regarding the commission of a cognizable offence being given to an officer - in - charge of a police station. Per contra, as per S.17A of the P.C Act previous approval from the appropriate Government is a prerequisite for conduct of any inquiry or enquiry, into any offence under the Act, alleged to have been committed by a public servant, after completion of which alone the FIR can be registered.

                  16. Another crucial distinction is that criminal proceedings pending against an officer in a Sessions or higher Court, for grave offences like murder, dacoity etc. are not offences linked to the service of the accused officer as a public servant, whereas vigilance proceedings are initiated specifically for commission of the offence of criminal misconduct by a public servant by abusing his official position. This would be akin to a disciplinary proceeding , where the requirement is the issuance of a charge - memo. If the appropriate Government, enjoined to grant an approval for registration of Vigilance case is of the opinion that the allegations are not grave enough for registration of FIR, it may direct a disciplinary proceeding to be carried on, in which event the next step would be issuance of a charge - memo. In the event of an approval being granted, the next step would be registration of an FIR.

                  17. The later part of Note(i), states about vigilance as well as departmental proceedings being taken against an officer on the charges being prima facie established in a preliminary enquiry. Paragraph 32 of the Vigilance Manual makes it clear that a preliminary enquiry by the Vigilance and Anti - Corruption Bureau can result in either (i) registration of a Vigilance case by the Bureau, (ii) enquiry by the Vigilance Tribunal or (iii) departmental action against the suspect officer. The taking of disciplinary proceedings after conduct of preliminary enquiry by the Vigilance Department and prima facie establishment of charges is definitely more onerous than taking of disciplinary proceedings straightaway by the employer, for imposition of major penalty. The former part of Note 1, with respect to pending criminal proceedings before the Sessions or higher courts for grave offence and taking of disciplinary proceedings for imposition of major penalties, cannot therefore be equated with the later part, which is with respect to taking of vigilance or departmental proceedings after the charges are prima facie established in a preliminary enquiry. Thus understood, the words "officers against whom vigilance or departmental proceedings are taken after the charges are prima facie established in the preliminary enquiry" can only mean, initiation of departmental proceedings or vigilance proceedings. A vigilance case is commenced and deemed to be pending on submission of the report with recommendations, based on the preliminary enquiry conducted by the Vigilance and Anti - Corruption Bureau along with the approval granted by the Government for a particular course of action, be it registration of FIR or placement of the matter before the Vigilance Tribunal. If the recommendation is for initiation of departmental proceedings, the commencement of the proceedings will be on issuance of charge sheet. Hence, we find that Sasidharan's case (supra) does not lay down the correct law. An officer against whom FIR is registered after conducting preliminary enquiry and obtaining approval for prosecution from the Government or recommended to be proceeded against departmentally by issuance of a charge - memo, is not eligible to be included in the select list. The DPC must adopt the sealed cover procedure in the case of such officers”.    [Underline supplied]

19. From Note (i) to Rule 28(b)(i)(7) of Part II KS & SSR and also from the principles laid down in Babu Prasad [2020 (4) KLT SN 31], it is clear that an officer against whom an FIR is registered by the Vigilance and Anti-Corruption Bureau, after prima facie satisfying about the charges in the preliminary enquiry should not be included in the select list. The 1st respondent has no case that the FIR was registered by the Vigilance and Anti Corruption Bureau without conducting the preliminary enquiry against the 1st respondent on the allegations raised against her. Therefore, the prosecution sanction granted for filing of the final report and proceeding with the vigilance case granted on 18.09.2015 has no relevance in the instant case. Hence, we find no illegality in excluding the 1st respondent in the select list for promotion by the DPC during its meetings held in the year 2011, 2012 and 2013.

20. Then the point to be considered is as to what is the procedure that should have been adopted by the DPC?

21. While answering this point, it is apposite to note that in K. V. Jankiraman [(1991) 4 SCC 109], the Apex Court considered the questions, (i) what is the date from which it can be said that disciplinary/criminal proceedings are pending against an employee? (ii) What is the course to be adopted when the employee is held guilty in such proceedings if the guilt merits punishment other than that of dismissal? (iii) To what benefits is an employee who is completely or partially exonerated is entitled to and from which date?

22. The Apex Court in K. V. Jankiraman [(1991) 4 SCC 109] held that the ‘sealed cover procedure’ is adopted when an employee is due for promotion, increment, etc., but disciplinary/criminal proceedings are pending against him at the relevant time. From the principles laid down in K. V. Jankiraman [(1991) 4 SCC 109] about the procedure to be followed in the case of exclusion of a government employee from the select list for promotion due to the pendency of a criminal case or departmental disciplinary proceedings, and the principles laid down in the judgment of this Court in Babu Prasad [ 2020 (4) KLT SN 31], it can only be said that the DPC ought to have adopted a sealed cover procedure in the case of the 1st respondent. The vigilance case registered against the 1strespondent is still pending. Even then the DPC, in its meeting held on 03.06.2014, recommended the inclusion of the 1st respondent in the select list for promotion, which is patently against the settled position of law as discussed above. However, we are not expressing anything on the decision of the DPC held on 03.06.2014 to include the 1st respondent in the select list for promotion and also the subsequent promotion granted to her, as the same is not under challenge.

23. Similar is the case of the declaration of probation of the 1st respondent. In the original application, the 1st respondent is seeking the declaration of her probation approved in the post of Commercial Tax Officer with effect from 16.08.2016. However, as noted above, the promotion granted to the 1st respondent itself cannot be said as in accordance with her entitlement. Therefore, the petitioners cannot be directed to declare satisfactory completion of the probation by the 1st respondent, before the finalisation of the vigilance case. The tribunal failed to consider these aspects in their proper perspective while allowing the original application. In such circumstances, we are of the opinion that the impugned order of the Tribunal is liable to be set aside.

                  In the result, the original petition is allowed by setting aside the impugned order dated 26.09.2022, passed by the Tribunal in O.A.No.1919 of 2019, and the original application stands dismissed.