Kerala High Court
Jibeesh George vs State Of Kerala on 12 April, 2023
Author: S. Manikumar
Bench: S.Manikumar, Murali Purushothaman
WP(C): 14382/2021 -:1:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
WEDNESDAY, THE 12TH DAY OF APRIL 2023 / 22ND CHAITHRA, 1945
WP(C) NO. 14382 OF 2021
PETITIONER:
JIBEESH GEORGE, AGED 38 YEARS
S/O. GEORGE, KOMMALAKUZHIYIL HOUSE, RAJAMUDY POST,
PATHINARAMKANDAM, IDUKKI DISTRICT 685 604.
BY ADVS.SRI. G.P.SHINOD
SRI. GOVIND PADMANAABHAN
SRI. AJIT G ANJARLEKAR
SRI.ATUL MATHEWS
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE EX OFFICIO PRINCIPAL SECRETARY,
SCIENCE AND TECHNOLOGY DEPARTMENT, SASTRA BHAVAN,
PATTOM POST, THIRUVANANTHAPURAM DISTRICT 695 004.
2 THE EXECUTIVE COMMITTEE OF THE KERALA STATE COUNCIL FOR
SCIENCE, TECHNOLOGY AND ENVIRONMENT (KSCSTE)
REPRESENTED BY ITS EXECUTIVE VICE PRESIDENT (EX-OFFICIO),
KERALA STATE COUNCIL FOR SCIENCE, TECHNOLOGY AND
ENVIRONMENT (KSCSTE), SASTRA BHAVAN, PATTOM POST,
THIRUVANANTHAPURAM DISTRICT - 695 004.
3 KERALA STATE COUNCIL FOR SCIENCE
TECHNOLOGY AND ENVIRONMENT (KSCSTE),
REPRESENTED BY THE MEMBER SECRETARY, SASTRA BHAVAN,
PATTOM POST, THIRUVANANTHAPURAM DISTRICT-695 004.
4 DR. S. PRADEEP KUMAR, AGED 59 YEARS
FATHER'S NAME NOT KNOWN, MEMBER SECRETARY,
KERALA STATE COUNCIL FOR SCIENCE,
TECHNOLOGY AND ENVIRONMENT (KSCSTE), SASTRA BHAVAN,
PATTOM POST, THIRUVANANTHAPURAM DISTRICT-695 004.
BY ADV. SHRI N.MANOJ KUMAR, STATE ATTORNEY
BY SENIOR GOVERNMENT PLEADER SRI. K.P. HARISH
WP(C): 14382/2021 -:2:-
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.04.2023,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C): 14382/2021 -:3:-
JUDGMENT
S. Manikumar, CJ Petitioner has approached this Court, being aggrieved by Exhibit-
P13 order dated 24.06.2021, issued by the Executive Vice President of Kerala State Council for Science, Technology and Environment, Thiruvananthapuram, by which, Dr. S. Pradeep Kumar - respondent No.4, was appointed as the Member Secretary of Kerala State Council for Science, Technology and Environment (KSCSTE), Thiruvananthapuram, respondent No.3, and ex officio member of respondent No.2, the Executive Committee of KSCSTE, represented by its Executive Vice President (Ex-
Officio), despite not possessing the requisite qualification of a Scientist and exceeding the stipulated age.
2. Reliefs sought for by the petitioner are as under:
(i) Issue a writ of quo warranto or any other appropriate writ, calling upon the 4th respondent to show cause as to under what authority, he is holding on to the post of Member Secretary, Kerala State Council for Science, Technology and Environment;
(ii) Issue a writ of certiorari or any other appropriate writ, order or direction, to call for the records leading to the issuance of Exhibit-P13 order 24.06.2021 and Exhibit-P20 order dated 23.06.2022 respectively
(iii) Issue a writ of mandamus or any other appropriate writ(s), order or direction to respondents 1 & 2, to recover all financial benefits extended to respondent No.4 from 15.07.2021, the date of filing of this writ WP(C): 14382/2021 -:4:- petition, in the event of this Court adjudicating that the appointment of the 4th respondent is illegal;
(iv) Issue a writ of mandamus or any other appropriate writ(s), order or direction, to respondents 1 & 2, to henceforward make appointments to the post of Member Secretary of KSCSTE from among qualified and distinguished scientists, in accordance with Exhibit-P1 Memorandum of Association and rules & regulations of KSCSTE;
3. Brief facts for disposal of this writ petition are that; KSCSTE is an autonomous body under the Department of Science & Technology, Kerala, constituted in November, 2002. By Exhibit-P1 order in G.O.(P) No.76/2002/STED dated 6.11.2002, issued by the Chairman, STEC and the relevant part of Memorandum of Association, rules and bye-laws of KSCSTE, Government have reviewed the set up of State Committee on Science, Technology and Environment (STEC) and restructured the STEC as a new society bearing the name "Kerala State Council for Science, Technology and Environment.
4. Petitioner has further stated that as per Clause (4) of Exhibit-P1 Memorandum of Association, the Member Secretary shall be Scientist with research and administrative experience, nominated by the Government. He has further stated that as per Clause (3.3) of the rules and bye-laws, when any person is a member of the Council, by reason of the office of appointment he holds, his membership of the State Council WP(C): 14382/2021 -:5:- shall be terminated when he ceases to hold that office of appointment and in his vacancy, his successor in office or appointment shall automatically become a member of the Council. Exhibits-P2 and P3 are the orders dated 29.06.2010 and 01.06.2015 issued in that regard by the KSCSTE. It is discernible from Exhibits-P2 and P3 that appointments were made to the post of Member Secretary, in accordance with clause (4) of the Memorandum of Association.
5. Petitioner has further stated that due to the non-availability of Scientists/Technologists, with relevant administrative and research experience, to be selected to the contractual post of Member Secretary, the Executive Committee of KSCSTE vide Exhibit-P4 agenda and minutes of the 14th meeting held on 23.06.2007, raised the outer age limit for the post of Member Secretary from 50 years to 55 years. Thereafter, an advertisement was published inviting applications/nominations from desirous candidates to the contractual post of Member Secretary, having an essential qualification of Ph.D in Science/Technology/Engineering or M.D (in any branch of modern science). It was further stated in the said advertisement that, in order to keep the Council and its R & D institutions in the forefront with respect to expertise and innovations, we are looking for a dynamic result oriented Scientist with relevant academic/ WP(C): 14382/2021 -:6:- management experience to be appointed as its Member Secretary". The experience stipulated therein was a minimum of 15 years in Research/Academic/R & D Institutions of which at least 5 years should be in the grade of Scientist F (pay band Rs.37,400/- - Rs.67,000/- Grade Pay Rs.8,900/-) or shall be presently holding the grade of Scientist G. After the issuance of Exhibit-P5 advertisement, respondent No.4, who was the Controller of Examinations, Kannur University, was appointed as the Member Secretary of KSCSTE, for a period of 3 years on deputation basis.
6. Petitioner has further stated that as per the bio-data submitted by respondent No.4, it is learnt that he did not possess any required qualifications, as stipulated in Exhibit-P6. While holding the office of Member Secretary, the University Laws (Amendment) Ordinance, 2019 was issued by the Government of Kerala, whereby the outer age limit was stipulated as 56 years. Resultantly, the 4 th respondent was relieved from the post of Controller of Examinations, Kannur vide Exhibit-P8 order dated 8.2.2019. Though a writ petition, W.P.(C) No.10151/2019 in the form of a Public Interest Litigation, has been filed before this Court, on the submission of the Government that no appointment has been made by the Government to the post of Member Secretary, in KSCSTE, the said writ petition was withdrawn.
WP(C): 14382/2021 -:7:-7. Petitioner has further stated that after the withdrawal of W.P.(C) No.10151 of 2019, the 4th respondent surreptitiously submitted an application dated 27.04.2019 for re-appointment to the post in question.
However, despite numerous complaints from various quarters, regarding lack of prescribed qualification and overlooking various qualified Scientists under MSCSTE, the Government appointed respondent No.4 as the Member Secretary of KSCSTE on re-employment basis, for a period of one year, as evident from Exhibit-P10 order dated 4.5.2019. Pursuant to the said order, Government has issued Exhibit-P11 order dated 7.5.2020 whereby the 4th respondent was reappointed as the Member Secretary of KSCSTE, for a period of one year, with effect from 6.5.2020.
8. Since his tenure was over, by Exhibit-P13 order dated 24.06.2021, issued by the Executive Vice President, KSCSTE, the 4 th respondent was permitted to continue in the subject post, on re-employment basis, with effect from 25.06.2021. It has been reported in the newspapers that respondent No.4 has been appointed purely on political reasons, by violating the rules and overlooking qualified experts and scientists.
Petitioner has also contended that the action of respondents 1 & 2, viz., State of Kerala represented by the Ex Officio Principal Secretary, Science and Technology Department, and the Executive Committee of Kerala State WP(C): 14382/2021 -:8:- Council for Science, Technology and Environment, represented by its Executive Vice President (Ex-officio), to continue the 4 th respondent as the Member Secretary, despite the fact that he does not possess the required qualification and experience and has crossed the maximum stipulated age, which is clearly violative of Articles 14 and 16 of the Constitution of India. Hence, this writ petition is filed for the reliefs stated supra.
9. On the above pleadings and in support of the reliefs sought for, petitioner has raised the following grounds:
A. As per Exhibit P7 bio data submitted by the 4 th respondent during his appointment as the Member Secretary, the age of the 4 th respondent as on the date of issuance of Exhibit P13 Order of appointment is around 59 years. In accordance with Exhibit P4 decision taken by the Executive Committee of KSCSTE, the outer age limit for appointment to the post of Member Secretary is 55 years. Respondents 1 and 2 committed gross illegality by bypassing the outer age limit specified for appointment to the post of Member Secretary and in the case of the 4 th respondent alone, the outer age limit has been illegally diluted in order to pave the way for his appointment.
B. It is discernible from Exhibit P2 and P3 that earlier, appointments were made to the post of Member Secretary, in accordance with Clause 4 of the WP(C): 14382/2021 -:9:- Memorandum of Association, which stipulates that the Member Secretary shall be a Scientist with research and administrative experience. As per Exhibit P5 advertisement, it is stated that KSCSTE is looking for a dynamic result oriented Scientist with relevant academic/ management experience to be appointed as its Member Secretary. The experience stipulated was "a minimum of 15 years in Research/Academic/R & D Institutions of which at least 5 years should be in the grade of Scientist F (pay band Rs.37400-67000 Grade Pay 8900) or shall be presently holding the grade of Scientist G (pay band Rs.37400-67000 Grade Pay 10000) Experience in equivalent positions/grade with documented scientific accomplishments [publications/patents/books, etc.) and a minimum of 3 years documented administrative experience in R & D Institutions, Public Sector Units, Universities, Central State Departments". It is discernible from Exhibit P5 bio data that the 4 th respondent was an Associate Professor, who was not holding the grade of Scientist F or G. However, in this instant case, respondents 1 and 2 have flouted the stipulation contained in Clause 4 of the Memorandum of Association that the Member Secretary shall be a scientist with research and administrative experience and also, the precedence existing in KSCSTE, whereby only eminent scientists have been appointed hitherto.
C. Despite Clause 3.3 of the Rules and bye laws of the society stipulating that "when any person is a member of WP(C): 14382/2021 -:10:- the Council by reason of the office of appointment he holds, his membership of the State Council shall terminate when he ceases to hold that office of appointment and in his vacancy, his successor in office or appointment shall automatically become a member of the Council", the 4 th respondent was permitted to continue and respondents 1 and 2 strangely did not deem it fit to appoint his successor in office as a member of the Council. The initial appointment of the 4th respondent was in violation of the Memorandum of Association, as he did not possess the requisite qualifications. Further, the continuation of the 4th respondent as the Member Secretary, by virtue of Ext- P10 and Ext-P11, after he was relieved from the post of Controller of Examinations, Kannur University, was in violation of Clause 3.3 of the Rules and bye laws of the Society. Therefore, the nomination of respondent No.4 as the Member Secretary of KSCSTE, on re-employment basis, vide Ext-P13, is a continuation of illegal appointment and, therefore, the same has to be struck down.
D. Clause 6.5 of the Rules and bye laws of the Society provides that all members of the Executive Committee, other than the ex officio members shall hold office for a period of 3 years from the date of their nomination. Clause 7.1 of the Rules and bye laws of the Society states that, a Member Secretary of the State Council shall be nominated by the Government and shall hold office for a period of 3 years from the date of assumption of office. The continuance of the 4th respondent as a Member Secretary WP(C): 14382/2021 -:11:- of KSCSTE for the past 5 years, despite not possessing the requisite qualifications and in violation of the Rules and bye laws of the society regarding the tenure of the office is liable to be deprecated by this Court. The 1 st and 2nd respondents were enjoined under law to uphold, respect and enforce Exhibit Pl Memorandum of Association and the Rules and Bye Laws of KSCSTE.
E. The Member Secretary is having very wide powers in the matter of governance of the KSCSTE. This post was held by renowned scientists such as Dr. K. R. S. Krishnan, Scientist and Director from Department of Science & Technology, Prof. Dr. G. Muraleedhara Kurup Professor & Head of the Department of Biotechnology, University of Kerala, Dr. Ajaya Kumar Varma, Senior Scientist, CESS, Dr. K. K. Ramachandran, Senior Scientist, CESS etc. If this position is entrusted with people without the requisite qualification and vested interest, it will destroy the very purpose of KSCSTE. Various R&D organizations under KSCSTE are reputed organizations which are expected to keep a high level of standard in science and governance, in order to garner international acceptance. There is a good precedence of appointing the Member Secretary through advertisement and following transparent procedures but that is unfortunately not adopted in the matter of appointment of the 4th respondent; thereby paving the way for the inclusion of incompetent persons and favouritism. Moreover, a fair chance of competing is denied to scientists thereby, WP(C): 14382/2021 -:12:- violating the fundamental right of getting equal opportunity to all. The respondents ought to have considered that there is no dearth of capable and qualified scientists in Kerala and that they can be attracted to the post of Member Secretary through an advertisement but unfortunately, the 4th respondent is occupying the office of the 3rd respondent without adopting transparent procedures. procedures. It is also disconcerting that the 4 th respondent has been permitted to continue much beyond the stipulated period, without even inviting applications from eligible persons.
F. The appointment of the 4th respondent through the backdoor, despite being unqualified to hold the office of the 3rd respondent and superannuating from the post from which he was deputed, gives rise to a situation that key posts in esteemed scientific organizations is being led by an incompetent person, which would spoil the institutions and thereby, the interest of the State. If key posts in scientific organizations are permitted to be led by unqualified persons, it would inevitably lead to the destruction of such institutions and cause injustice to future generations.
G. The procedure of quo-warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to the public offices against the relevant statutory provisions and in some cases, persons not entitled to public office may be allowed to occupy them and to continue to hold WP(C): 14382/2021 -:13:- them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the courts to issue writ of quo-warranto is properly invoked, the usurper can be ousted.
H. An applicant for quo-warranto need not have any personal interest in the subject matter, the reason being that he seeks removal of an 'usurper; from a public office, and not enforcement of his personal rights and relief for himself. In so far as the appointment of the 4 th respondent as the Member Secretary of KSCSTE is concerned, the same cannot be termed as a service matter and consequently, there would be no bar to challenge the engagement by way of a PIL. When the very process of recruitment is contrary to the relevant provisions of law and precedents, the same cannot be branded as a simple 'service matter' and the party who attempts to set the law in motion cannot be non-suited, saying that he does not have any locus standi. Moreover, in Exhibit P9, the petitioner therein had withdrawn the writ petition to move again in the event of any violation of the Rules. It is worthwhile to note that no objection was raised earlier.
I. Relying on the decision in Yashwant Sinha and Ors v. Central Bureau of Investigation and Ors. [AIR 2019 SC 1802], the petitioner submitted that, the Hon'ble Apex Court relying on Pooran Mal v. Director of Inspection (Investigation) of Income Tax (AIR 1974 SC 348) held that; under the common law both in England and in India the context for material being considered by the court is WP(C): 14382/2021 -:14:- relevancy. There can be no dispute that the manner in which the evidence is got namely that it was procured in an illegal manner, would not ordinarily be very significant in itself in regard to the court's decision to act upon the same. The test of admissibility of evidence lies in its relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other law, evidence obtained as a result of illegal search or seizure is not liable to be shut out. In this instant case, the public interest outweighs the harm sought to be protected. The documents produced do not belong to a class which demands protection like matters which prejudicially affect the sovereignty and integrity of India, the security and the strategic security, scientific or economic interests of the state, in relation with a foreign state et cetera and moreover, the documents produced are essential to remove the usurper from his office.
10. Refuting the averments made by the petitioner and opposing the reliefs sought for, the 1st respondent has filed a statement dated 29.07.2021, wherein it is, inter alia, contended as under:
A. As per clause (11) of the Rules and Bye Laws of Kerala State Council for Science, Technology and Environment (hereinafter referred to as KSCSTE for short), the Member Secretary shall be the Principal Executive Officer of the Executive Committee and is responsible for the conduct of affairs, through efficient and faithful implementation of the decisions of the Council/Executive Committee The Member WP(C): 14382/2021 -:15:- Secretary will have the powers to open an account in the name of the State Council in a Bank approved by the Executive Committee and operate on the same in accordance with the decisions of the Executive Committee and such bye- laws as may be framed, provided that during the absence of the Member Secretary for a period exceeding one month from Kerala State, the Chairman of the Executive Committee shall have powers to nominate, for the period of absence of the Member Secretary, a person to perform the duties and exercise the powers of the Member Secretary mentioned in these Rules including the power to operate on the account opened in the Bank in accordance with the bye-laws and the decisions of the Executive Committee. The scientists at Council Head Quarters mainly deal with scientific administration and they report to the Director. The Director of the Council Head Quarters is responsible for Research and Development activities of the Council Head Quarters.
B. Clause (4) of the Memorandum of Association specifies that the State Council consists of 27 persons, and the Executive Vice President (Eminent Scientist) and Member Secretary (Scientist with research and administrative experience) are nominated by the Government. Further, as per Section 1, Rule 3.1 of the Service Rules and Regulations of Kerala State Council for Science, Technology and Environment, it is specified that the above composition as per Clause(4) of Memorandum of Association is applicable only in the composition of first State Council. Regarding the appointment of Member Secretary, it is clearly mentioned in clause 7.1 of WP(C): 14382/2021 -:16:- the Memorandum of Association and Rule 11 of Kerala State Council for Science, Technology and Environment, Service Rules and Regulations that the Member Secretary shall be nominated by the Government.
C. As per the Clause 7 of the Bye-Law, Member Secretary is to be nominated by the Government. However, the qualification and age limit for the post of Member Secretary, KSCSTE are not specified in its Memorandum of Association nor in Bye- Law and also not by the Government. Generally, Government nominate an appropriate individual to be appointed as Member Secretary, KSCSTE. Despite, the post was notified during 2015, by KSCSTE, and the qualification for the post was as specified in Ext.P5. However, the specified qualifications in Ext.P5 were not vetted by the Government. Nonetheless, as per the Ext.P7 Bio-data, Dr. S. Pradeep Kumar possess more than 15 years of academic experience and was in the pay band of Rs. 37,400-67,000, GP 10000 (grade of Scientist G/Professor) from 2010 onwards. As per Ext.P7, the 4 th respondent possessed long years of academic, research and administrative experience. He had 24 years of academic experience and 7 scientific publications in journals and presented research papers in different scientific conferences. He joined as Controller of Examinations at Kannur University with effect from 18.05.2010, after 23 years of academic/ research experience in various colleges in the Kerala State. Therefore, Dr. S. Pradeep Kumar does possess qualifications and experience (Scientist with research and administrative experience) for the position of Member Secretary, KSCSTE.
WP(C): 14382/2021 -:17:-D. The mode of appointment and designations of the previous Member Secretaries are as follows:
(1) Prof. PA. Wahid, Professor, Kerala Agricultural University- nominated by the Government;
(2) Prof. G. Muraleedhara Kurup, Professor, University of Kerala - nominated by the Government;
(3) Dr.R.Ajay Kumar Varma, Scientist, CESS- nominated by the Government;
(4) Dr.K.K.Ramachandran, Scientist, CESS - nominated by the Government (5) Prof.George Varghese, voluntarily retired from University service - Appointed based on notification issued as per Exhibit P-5;
(6) Dr.S.Pradeep Kumar, Controller of Examinations, Kannur University-nominated by the Government.
E. Respondent No.1 has further contended that it is Dr. George Varghese, who was appointed after the advertisement (Exhibit P5), and not the 4 th respondent, as stated in the Writ Petition. Respondent No.4 was nominated by the Government to be appointed as Member Secretary, KSCSTE (Exhibit P6) after terminating the services of Dr. George Varghese.
F. Respondent No.4 was serving as Member Secretary, KSCSTE, on deputation basis from Kannur University. He was serving as Controller of Examinations, Kannur University when appointed as Member Secretary, KSCSTE on deputation basis. The 4th respondent has relinquished from the post of Member Secretary, KSCSTE on superannuation from his parent organization. Later he was reappointed as Member Secretary, KSCSTE by the Government.
G. As pointed out in the Writ Petition, as per Exhibit P9 judgment dated 2/04/2019, W.P.(C).No.1051/2019, was WP(C): 14382/2021 -:18:- dismissed as withdrawn. The 4th respondent has not submitted any representation to Government for his re- appointment. Government have examined all the rules, regulations and connected documents related to the appointment of Member Secretary, KSCSTE and nominated 4 th respondent as per Exhibit P10.
H. On expiry of the tenure of re-appointment of the 4 th respondent as Member Secretary, the matter has been brought to the notice of the Government for its information and further necessary action by Kerala State Council for Science, Technology and Environment. Consequently, after examining the matter Government extended his tenure for one more year. Government have nominated 4th respondent as Member Secretary, as per the Memorandum of Association, Rules & By Laws of Kerala State Council for Science Technology and Environment, after examining all the necessary aspects.
I. It is respectfully submitted that the petitioner has not stated his locus standi for filing this Public Interest Litigation. Apart from the Statement that he is a public spirited person and he has not stated anything regarding his credentials. The petitioner failed to prove that there is violation of statutory rules in the matter of appointment of the 4th respondent as Member Secretary of KSCSTE.
J. It is settled law that the jurisdiction of the High Court to issue a writ of quo warranto is a limited one which can only be issued when the appointment is contrary to the statutory rules and WP(C): 14382/2021 -:19:- the same is a discretionary remedy. Moreover, the petitioner has not challenged the initial appointment of respondent No.4 as Member Secretary and is only challenging the extension of his term. Hence, the writ petition fails on that ground also.
11. In the additional statement filed by the 1st respondent dated 9.9.2021, it is contended as under:
A. It is submitted that Clause 3.1 of the Rules and Bye-
Laws of the KSCSTE specifies that the members of the State Council shall be as given in the MOA of the KSCSTE, and the same has to be followed in the formation of subsequent State Councils as well. The provision mentioned in Section I Rule 3.1 of Service Rules and Regulations of the KSCSTE appears to be misquoted by the petitioner. Section I Rule 3.1 of Service Rules and Regulations of the KSCSTE (Exhibit P15) clearly specifies the composition of the State Council and at the end remarks. "Notwithstanding anything contained above, the composition of the First State Council shall be as given in Article 4 of the MoA", whereas the petitioner kept silent on the initial portion of the Section I Rule 3.1 of Service Rules and Regulations of the Kerala State Council for Science, Technology and Environment while quoting. It is also submitted that there is no mis-interpretation of Article 4 of the MoA or Section I Rule 3.1 of Service Rules and Regulations of the KSCSTE by respondent No.1.WP(C): 14382/2021 -:20:-
B. The petitioner appears to have misrepresented the clause (Rule 11.1 of the KSCSTE Service Rules and Regulations) by adding a word 'only' in the quoted statement. Rule 11.1 of the KSCSTE Service Rules and Regulations (Exhibit P15) specifies that "The Member Secretary of the State Council shall be nominated by the Government and shall hold office for a period of three years from the date of assumption of office". The rule does not specify 'only three years', and therefore the point mentioned in Paragraph 4 of the statement of facts is misleading and erroneous.
C. As per Bye Law Clause 7 of KSCSTE, the Member Secretary is to be nominated by the Government. However, the qualification and age limit for the post of Member Secretary, KSCSTE is not specified, either in its MoA or in the Bye-Law, and also not by Government. Generally, the Government nominate a suitable individual to be appointed as Member Secretary, KSCSTE. The Government at Science and Technology Department have not received any proposal to fix the upper age limit of appointing Member Secretary from the KSCSTE after the ratification of upper age limit for appointing Member Secretary as 55 years as done by the State Council of KSCSTE on 29-07-2008 (Exhibit P16). This ratification was neither brought before the Government for vetting nor for making an amendment in the rules. Therefore, the statement made in Paragraph 5 of the previous statement filed by this WP(C): 14382/2021 -:21:- respondent, that the qualification and age limit for the post of Member Secretary, KSCSTE is not specified in the Memorandum of Association, Bye-law and by the Government and that specific qualification in Exhibit P5 were not vetted by Government is true to the facts and here is no a willful misrepresentation and hence the contention by the petitioner is devoid of merits.
D. It is also submitted that 're-employment' in Government institutions is obviously given to superannuated Government employees which means that they will be aged above 56 years if they are from State Government and above 60 years in case of persons from Central Government.
12. The 4th respondent has filed a counter affidavit dated 10.09.2021, wherein it is, inter alia, contended as under:
A. Referring to Exhibit-P1 Government order approving the Memorandum of Associations, rules and bye-laws of the Council, 4th respondent has submitted that the duties and functions of the Member Secretary is administrative in nature. But, he should have academic/scientific background, as well. It is further submitted that the appointments made hitherto the post of Member Secretary by the Government are hereunder:
Prof. P.A. Wahid, Professor, Kerala Agricultural University - nominated by the Government.WP(C): 14382/2021 -:22:-
Prof. G. Muraleedhara Kurup, Professor, University of Kerala - nominated by the Government. Dr. R. Ajay Kumar Varma, Scientist, CESS - nominated by the Government.
Dr. K.K. Ramachandran, Scientist, CESS - nominated by the Government.
Prof. George Varghese, voluntary retired from University service - Appointed based on notification issued as per Exhibit-P5.
Dr. S. Pradeep Kumar, Controller of Examinations, Kannur University - nominated by the Government. B. It is further submitted that personal working in the academic/administrative posts are nominated by the Government. As far as the 4 th respondent is concerned, his academic credentials are not disputed by the petitioner. It is also submitted that he is a degree holder in Botany and having 23 years of teaching experience in the Collegiate Education Department and while holding the post of Associate Professor, he was appointed to an administrative academic post of Controller of Examination of Kannur University.
C. It is further submitted that the post of Controller of Examination is both academic and administrative and is generally known as academic administrative post. In this context, it is also relevant to note that the qualification notified by the 3rd respondent as evidenced by Exhibit-P5 itself shows that the administrative experience should be in R&D WP(C): 14382/2021 -:23:- institutions, Public Sector units, Universities, Central or State departments. Hence, the 4th respondent is having long administrative experience in the Universities and that he has in its credit other administrative experience as well along with acclaimed academic accomplishments.
D. It is further submitted that the 4 th respondent is appointed on deputation basis as the Member Secretary by the Government on its nomination on 16.08.2016. The nomination was made by the Government and appointment was made on deputation considering his eligibility. While continuing in the post the term of appointment in the Universities in Kerala was curtailed by the Government by making amendment to the University acts. By virtue of the University Amendment Act, the 4th respondent's appointment as Controller of Examinations of the Kannur University ceased and he was to be deployed to his parent department that is to the Government Collegiate Education Department. It is also submitted that the Government considered the expediency of appointing the petitioner on re-employment basis to the post of Member Secretary and was pleased to appoint the 4th respondent on re-employment basis for a period of one year on 04.05.2019 and that on expiry of that term based on the recommendation of the Council, Government again renewed the same has issued fresh orders for his continuance.WP(C): 14382/2021 -:24:-
E. On expiry of that term the Government issued the present order on 24.06.2021 appointing the 4th respondent on re-employment basis for a period of one year. It is submitted that neither the original appointment nor the re- employment of this respondent is under challenge in this writ petition. Though an earlier attempt was made to challenge the same, the writ petition was withdrawn as well. It is also submitted that the 4th respondent is continuing as the Member Secretary, right from 2016 onwards, and how a cause of action arises to the 4 th respondent in the year 2021 to challenge the appoint is not known. The belated attempt on the part of the petitioner to challenge the appointment on the face of it is without any bonafides and liable to be dismissed.
13. Based on the grounds raised and placing reliance on the decisions in State of Jammu and Kashmir and others v. Shaheena Masarat and Another [Civil Appeal No.4991 of 2012 decided on 29.09.2021]; Reshmy R. S. v. State of Kerala [W.P.(C) No.24460/2015]; and Kerala Forest Research Institute, Peechi v. Dr. C. Renuka and Others [2015 KHC 926], learned counsel for the petitioner made submissions.
14. Learned counsel for the petitioner has also relied on the decision of the Hon'ble Supreme Court in The State of Jammu and Kashmir & Ors. v. Shaheena Masarat & Anr.[LL 2021 SC 518], wherein it was WP(C): 14382/2021 -:25:- observed that appointments to public posts should be strictly in accordance with Articles 14 and 16 of the Constitution of India; that eligibility criteria should be uniform and there cannot be any scope of arbitrary selections by unfettered discretion being vested in the authorities; that construing the provision relating to upper age limit as directed would be conferring unbridled power in the executive to choose persons of their choice by relaxing the age beyond 35 years; and that in such case, the provision would have to be declared as unconstitutional.
15. Reliance is also made by the learned counsel for the petitioner to the judgment of a learned single Judge of this Court in W.P.(C) No.24460 of 2015 dated 2.2.2018, [Reshmy R. S. and Another v. State of Kerala and Others], where it was held as under:
"Even though, the first respondent has stated that approval is necessary from Government for implementation of the recruitment rules, neither Ext.P2 nor Ext.P3 nor Ext.P4 contain such a provision. Though it appears to be right that it would be in the interest of the 3 rd respondent Council to have persons with test qualification as its employees in the administration and establishment, as in the case of employees in Government Departments, the bye laws or the Memorandum of Association do not provide for the same. No provision is seen made for prescribing test qualification for declaration of probation; even though power is conferred on the Executive Committee to prescribe tests for promotion, it appears that so far the Executive Committee has not found it necessary to prescribe any test qualification, though it is stated that the scale of pay is on par with those of Government employees.WP(C): 14382/2021 -:26:-
6. As pointed out by the learned Counsel for the petitioners, a Division Bench of this Court had in the judgment in Kerala Forest Research Institute, Peechi V Dr. C. Renuka & others [2015 KHC 926] had considered the question whether the State Government has jurisdiction to direct payment of gratuity in a particular manner imposing a ceiling disregarding Rule 14 of Ext.P3 rules of the Council, which governs payment of gratuity. The Council pleaded that since it is fully funded by Government, the authority to decide matters relating to service conditions of the employees of the Council and its R and D centres is the Government and it is bound by any direction issued by Government. After analyzing the entire provisions in Exts.P1 to P3, this Court in paragraph 60 of the judgment, found that there is no provision in the rules empowering the State Government to give any direction to the Council on service matters of any employee or officer under the Council."
16. Heard the learned counsel for the parties and perused the material on record.
17. G.O.(P) No.76/2002/STED dated 06.11.2002 issued by the Chairman, STEC & Ex-officio Secretary to the Government, Science, Technology and Environment (A) Department, Government of Kerala is reproduced hereunder:
"GOVERNMENT OF KERALA Abstract STED-NEW SCIENCE POLICY OF KERALA AND RESTRUCTURING OF STEC. -APPROVED-ORDERS ISSUED.
-------------------------------------------------------------------------
SCIENCE, TECHNOLOGY AND ENVIRONMENT (A) DEPARTMENT GO(P) No. 76/2002/STED Dated, Thiruvananthapuram 6th November, 2002
-------------------------------------------------------------------------WP(C): 14382/2021 -:27:-
------
ORDER Government have reviewed the present set up of State Committee on Science, Technology and Environment (STEC) as it is constituted and also the policy on Science, Technology and Environment so that the organisation and the policy may function in tune with the current conditions and developmental needs.
It has been decided, after due consideration, that the new policy on Science, Technology and Environment will be as given in Annexure I to this order and henceforth this policy will be followed until and unless it is changed. Government also order that STEC will be restructured and a new Society viz., Kerala State Council for Science, Technology and Environment will be registered with the Memorandum of Association, Rules and Bye-Laws as given in Annexure II and structural set up as outlined in it.
The Governing Bodies of the Research & Development centres under STEC will take steps to amalgamate fully with the new society for their integrated development as provided in Section 18 of the Travancore Cochin Literary Scientific and Charitable Societies Registration Act, 1955.
The restructured Kerala State Council for Science, Technology and Environment will be registered under the Travancore Cochin Literary Scientific and Charitable Societies Registration Act, 1955 All these formalities will be completed within a period of four months.
BY ORDER OF THE GOVERNOR Dr. M.S Valiathan Chairman, STEC & Ex-officio secretary to Government"
Annexure II KERALA STATE COUNCIL FOR SCIENCE, TECHNOLOGY AND ENVIRONMENT MEMORANDUM OF ASSOCIATION WP(C): 14382/2021 -:28:-
1. The name of the Society shall be The Kerala State Council for Science, Technology and Environment. Xxxxxxxxxxxxxxxxxxxxxx
4. The State Council consisting of 27 persons shall be constituted as follows:
Chief Minister President
Minister for Industries Vice President
Minister for Finance "
Minister for Agriculture "
Minister for Health "
xxxxxxxxxxxxxxxxxxxxxxx
Member Secretary (Scientist with research and administrative experience nominated by Government) KERALA STATE COUNCIL FOR SCIENCE, TECHNOLOGY AND ENVIRONMENT Rules and Bye-laws of the Society xxxxxxxxxxxxxxxxxxxxx
3. Members of the State Council:
3.1 The members of the State Council shall be as given in Article 4 of the Memorandum of Association. 3.2 xxxxxxxxxxxxx 3.3 When any person is a member of Council by reason of the office of appointment he holds, his membership of the State Council shall terminate when he ceases to hold that office of appointment and in his vacancy his successor in office or appointment shall automatically become a member of the Council.
3.4 xxxxxxxxxxxx 3.5 Notwithstanding anything contained in sub-rule 3.1 above the composition of the first State Council shall be given as in the Annexure to these Rules.
xxxxxxxxxxxxxxxxxx WP(C): 14382/2021 -:29:-
5. Authorities of the Council:
The following shall be the authorities of the Council:
President Executive Committee Executive Vice President, Member Secretary xxxxxxxxxx
7. Member Secretary 7.1. A Member Secretary of the State Council shall be nominated by the Government and shall hold office for a period of three years from the date of assumption of office.
xxxxxxxxxxxx
11. The Member Secretary shall be the principal executive officer of the Executive committee and is responsible for the conduct of affairs through efficient and faithful implementation of the decisions of the Council/Executive Committee. The Member Secretary will have the powers to open an account in the name of the State Council in a Bank approved by the Executive Committee and operate on the same in accordance with the decisions of the Executive Committee and such bye-laws as may be framed, provided that during the absence of the Member Secretary for a period exceeding one month from Kerala State, the Chairman of the Executive Committee shall have powers to nominate, for the period of absence of the Member Secretary, a person to perform the duties and exercise the powers of the Member Secretary mentioned in these Rules, including the power to operate on the account opened in the Bank in accordance with the bye-laws and the decisions WP(C): 14382/2021 -:30:- of the Executive Committee."
xxxxxxxxxxxxxxxx
18. Exhibit-P2 order dated 29.06.2010 issued by the Controller of Administration, KSCSTE is reproduced hereunder:
"O R D E R Dr. A. Ajayakumar Varma, Scientist, CESS who was on deputation as Executive Director, Kerala Suchitwa Mission was given appointment as Member Secretary in KSCSTE, for a period of 3 years as per G.O. read as 1 st paper above. As per the G.O. read as 2nd paper above, he was relieved from the duties of his present post of Executive Director, Suchitwa Mission, Thiruvananthapuram. Dr. R. Ajayakumar Varma, Scientist, CESS has reported for duty as Member Secretary to KSCSTE in the F.N. On 24.06.2010 vide charge report 3rd cited.
In the circumstances, the Council is pleased to admit Dr. R. Ajayakumar Varma, Scientist, CESS on duty as the Member Secretary of KSCSTE, on deputation basis, for a period of three years with effect from the F.N. On 24.06.2010, on usual terms and conditions of deputation subject tothe result of W.P.(C) No.9674/2010.
G. SHAJI Controller of Administration"
19. Exhibit-P4 is the minutes of the 14 th Meeting of the Executive Committee of KSCSTE held on 23.06.2007, as regards the ratification for WP(C): 14382/2021 -:31:- change in the age limit of Member Secretary, and it reads thus:
"Agenda Item No.14A.05 Ratification for Change in the Age Limit for Member Secretary Recently the Council has invited application through Newspaper advertisements to fill up the position of Member Secretary, KSCSTE against which KSCSTE received only few applications. Review of the credentials of the candidates revealed that there is no wide choice of Scientists/Technologists with relevant administration and research experience to select from. Similar situation was faced earlier also in the case of selection of Directors for the various R&D Centres under the Council. The matter was discussed in the last Executive Committee of the Council also and the collective view was that some of the requirements for the job need to be updated to reflect the realities. One of the major factors, which prevent eligible candidates from applying for this job, which is on a contract of three years, is the age limit of fifty (50) years. Senior professionals at this age normally will not be willing to leave their permanent positions to accept a contract job of this type for the short duration. Considering this, the Executive committee of the Kerala State Council for Science, Technology and Environment raised the age limit for appointment of Directors of the R&D Centres to fifty five (55) years.
Hence the age limit for the position of Member Secretary was raised to fifty five years (55) years with the approval from the President of KSCSTE and advertised accordingly through news papers. The proposed change in the age will be placed before the Executive Committee of the KSCSTE for ratification.
Point for decision The Executive Committee may ratify the change in the age limit effected in the of selection of Member Secretary of KSCSTE.
Agenda Item No.14A.04 xxxxxxxxxxxxxxxxx WP(C): 14382/2021 -:32:- Agenda Item No.14A.05 Ratification for Change in the Age Limit for Member Secretary The Executive Committee ratified the change in the age limit effected in the case of selection of Member Secretary of KSCSTE."
xxxxxxxxxxxxxxxx"
20. Exhibit-P5 is the advertisement dated 15.06.2016 published by the Executive Vice President of KSCSTE and it reads thus:
"Kerala State Council for Science Technology & Environment Sasthra Bhavan, Pattom, Thiruvananthapuram - 4.
(Science & Technology Department, Government of Kerala) The Kerala State Council for Science, Technology and Environment (KSCSTE) is a body under the Government of Kerala constituted to promote excellence in Science, Technology and Environment in the State through learning, research and development with the involvement of Academia, Industry and Research Organizations. In order to keep the Council & its R&D Institutions in the forefront with respect to expertise and an autonomous innovations we are looking for a dynamic, result oriented Scientist with relevant academic management experience to be appointed as its Member Secretary. The Member Secretary shall be responsible for formulating the agenda of the Executive Committee State Council, Operating funds of KSCSTE, Chair the meetings of Assessment Committees of Scientists upto grade F, appoint Scientific, Technical, Administrative staff in Council Headquarters, take disciplinary action of people under his authority.
The Member Secretary will also be the Member Secretary to Kerala Coastal Zone Management Author (CZMA) at present.WP(C): 14382/2021 -:33:-
The tenure of the Member Secretary will be 3 years from the date of appointment.
Eligibility Criteria:
1. Essential Qualifications:
PhD in Science/Technology/Engineering or M.D. (in any branch of modern medicine) II. Experience:
• A minimum of 15 years in Research/Academic/R&D Institutions of which at least 5 years should be in the grade of Scientist F (Pay band Rs 37400-67000 Grade pay 8900) or shall be presently holding the grade of Scientist G (Pay band Rs.34700-6700 Grade pay 10000) Experience in equivalent positions/grade with documented scientific accomplishments (publications/patents/books, etc.) and a minimum of 3 years documented administrative experience in R&D Institutions, Public Sector Units, Universities Central or State.
II. Upper age limit:
The Upper age of candidates as o the date of this advertisement shall be 58 years.
Applications/nominations with detailed bio-data and a passport photograph for the above position mu reach the Office of the Executive Vice President on or before 05.00 P.M. on 31st July, 2015.
Applications/Nominations can also be sent by Email: [email protected].
Date: 15.06.2015 Sd/-
Executive Vice
President"
21. Exhibit-P6 order dated 16.08.2016 issued by the Ex-officio Principal Secretary to Government, S & T (A) Department, Government of Kerala, is reproduced hereunder:WP(C): 14382/2021 -:34:-
"Government of Kerala Abstract Science & Technology Department - Appointment of Dr. Pradeep Kumar as Member Secretary, Kerala State Council for Science, Technology & Environment - Orders issued
----------------------------------------------------------------------
SCIENCE & TECHNOLOGY DEPARTMENT G.O.(Rt) No.52/16/S&TD Dated, Thiruvananthapuram, 16/08/2016
---------------------------------------------------------------------- Read: G.O.(Rt) No.10/16/S&TD dated 15.02.2016 ORDER Dr. Pradeep Kumar, Controller of Examinations, Kannur University is appointed as the Member Secretary, Kerala State Council for Science, Technology & Environment for a period of three years on deputation basis under the usual terms and conditions of deputation.
The service of Dr. George Varghese is terminated from Kerala State Council for Science, Technology & Environment, Thiruvananthapuram.
(By Order of the Governor) DR. SURESH DAS Ex-officio Principal Secretary to Government."
22. Exhibit-P8 is the office order dated 8.2.2019 issued by the Vice Chancellor of Kannur University and it reads thus:
"KANNUR UNIVERSITY No.KU/VCO/GEN/2019/3 08th February, 2019 OFFICE ORDER Consequent on the promulgation of the University Laws (Amendment) Ordinance 2019 issued as per Notification No.4969/Leg G2/2019/Law. dated 06 March 2019 of the Law WP(C): 14382/2021 -:35:- (Legislation -G) Department, Government of Kerala, amending relevant sections of Kannur University Act 1996, Dr.S.Pradeepkumar, Controller of Examinations, Kannur University, (presently on deputation as Member Secretary, KSCSTE) is relieved from the service of the Kannur University with effect from the forenoon of 08 March 2019, as he has completed four years as Controller of Examinations and has completed 56 years of age, as contained in section 8 of the University Laws (Amendment) Ordinance 2019.
This order is issued by the Vice-Chancellor, by exercising the powers of the Syndicate as contained in Section 11(1) of the Kannur University Act 1996.
GOPINATH RAVINDRAN
To (Vice-Chancellor)
Dr.S.Pradeepkumar
Member Secretary KSCSTE,
Thiruvananthapuram."
23. Exhibit-P10 order in G.O.(Ms) No.8/2019/S&TD dated 4.5.2019 issued by the 1st respondent is extracted hereunder:
"GOVERNMENT OF KERALA Abstract Science & Technology Department - Appointment of Dr.S.Pradeep Kumar in the post of Member Secretary, Kerala State Council for Science Technology and Environment on re- employment basis-For one year - Order issued.
----------------------------------------------------------------------------
SCIENCE & TECHNOLOGY (A) DEPARTMENT GO.(Ms)No.8/2019/S&TD Dated, Thiruvananthapuram, 04/05/2019
---------------------------------------------------------------------------- Read: 1. Government Order(Rt) No.52/16/S&TD dated 16/8/2016
2. Council (M) Order No.131/2016/KSCSTE dated 20/8/2016.
3. Order No. Ad.A2/5576/2010 dated 08/03/2019 of Kannur University.WP(C): 14382/2021 -:36:-
4. Office Order No. KU/VCO/GEN/2019/3 dated 08/03/2019 of Kannur University.
5. Letter No.3211/C1/2016/KSCSTE dated 08/03/2019 of Controller of Administration, Kerala State Council for Science, Technology and Environment.
6. Application dated 11/3/2019 from Dr.S.Pradeep Kumar.
7. Application dated 27/4/2019 from Dr.S.Pradeep Kumar.
ORDER Dr. S. Pradeep Kumar, the then Controller of Examination, Kannur University, had been appointed as Member Secretary, Kerala State Council for Science, Technology and Environment, vide Government Order read as 1st paper above and Council Order read as 2nd paper above.
2. Consequent to the promulgation of "The University Laws (Amendment) Ordinances, 2019" issued vide Notification No.4969/Leg.G2/2019/Law dated 6/3/2019, Dr.S.Pradeep Kumar was deemed to have demitted and vacated his office of Controller of Examination, Kannur University, with effect from the FN of 8th March, 2019, as he has completed four years as Controller of Examinations and attained 56 years of age, vide Order and Office Order read as 3 rd and 4th paper respectively.
3. Subsequently Dr.S.Pradeep Kumar, relinquished the post of Member Secretary, Kerala State Council for Science, Technology and Environment, vide his application read as 6th paper above. Thereafter, he requested to consider him for re- appointment to the post of Member Secretary vide his application read as 7th paper above.
4. Controller of Administration, Kerala State Council for Science, Technology and Environment, vide his letter read as 5th paper above, has submitted a proposal either to post a Member Secretary or to re-employ Dr. S. Pradeep Kumar as Member Secretary as the service of Member Secretary is inevitable for the smooth functioning of Council and its Research & Development Centres.
5. Government have examined the afore mentioned proposal and application from Dr.S.Pradeep Kumar. The appointing authority finds Dr.S.Pradeep Kumar qualified to hold the post and therefore hereby appoints Dr.S.Pradeep WP(C): 14382/2021 -:37:- Kumar to the post of Member Secretary, Kerala State Council for Science Technology and Environment on re-employment basis and resultant terms and conditions for a period of one year from his date of joining.
(By Order of the Governor) DR. B. ASHOK, IAS SECRETARY"
24. Exhibit-P11 is the order dated 7.5.2020 issued by the Ex Officio Principal Secretary, Science and Technology Department, by which, Dr. S. Pradeep Kumar, the 4th respondent, was nominated to be re-appointed to the post of Member Secretary, KSCSTE, w.e.f 6.5.2020 for a period of one year subject to the terms and conditions.
25. Exhibit-P12 is the order in G.O.(Ms) No.18/2021/S&TD dated 7.6.2021 and it is reproduced hereunder:
"Government of Kerala Abstract Department of Science and Technology - Additional Charge of Member Secretary, Kerala State Council for Science, Technology and Environment given to the Director of National Transportation, Planning and Research Centre - Orders issued.
-----------------------------------------------------------------------
Department of Science and Technology G.O.(Ms.).No.18/2021/S&TD Dated, Thiruvananthapuram, 07/06/2021
----------------------------------------------------------------------- References:- 1. G.O.(K) No: 9/2020/S&TD dated 07/05/2020.
2. Letter dated 01/02/2021 issued by Controller of Administration of Kerala State Council for Science WP(C): 14382/2021 -:38:- Technology and Environment vide KSCSTE/1314/ 2019-C1.
Order As per Reference (1), orders were issued nominating Dr. S. Pradeep Kumar to be reappointed as the Member Secretary, Kerala State Council for Science Technology and Environment, for a period of one year from 06/05/2020.
2. As the tenure of Dr.S.Pradeep Kumar, as the Member Secretary of the Council, is coming to an end, on 05/05/2021, the Controller of Administration of the Council recommended for appropriate action, as per reference cited letter.
3. The Government has examined the issue. As the tenure of Dr. S. Pradeep Kumar. as Member Secretary of Council has expired on 05/05/2021, Dr. Samson Mathew, Director of National Transportation Planning and Research Centre, is given full charge as the Member Secretary of Kerala State Council for Science Technology and Environment, until further orders. Sudheer Kulamulia Parambath (By Order of the Governor) Prof Dr. K. P. Sudheer ex-officio Principal Secretary Digitally signed by Sudheer Kulamulla Parambath Date: 2021.06.07 17:07:49 +05' 30' Executive Vice President, Kerala State Council for Science Technology and Environment. Dr.Samson Mathew, Director of National Transportation Planning and Research Centre."
26. Exhibit-P13 is the order in G.O.(Ms) No.21/2021/S&TD dated 24.06.2021, by which, Government have nominated the 4th respondent to WP(C): 14382/2021 -:39:- be appointed to the post of Member Secretary, KSCSTE for a period of one year, subject to terms and conditions and Vigilance clearance.
27. Exhibit-P20 is another order dated 23.06.2022 issued by the Ex-
officio Principal Secretary, Department of Science and Technology - re-
appointing Dr. S. Pradeep Kumar, as Member Secretary, KSCSTE for a period of one year. Said order reads as under:
"Order Dr. S. Pradeep Kumar, Controller of Examination, Kannur University was appointed as the Member Secretary of Kerala State Council for Science Technology and Environment vide Reference (1). He had assumed the office of Member Secretary on 18.08.2016 as per Reference No: 2.
2. As per the 21st Ordinance 2019 dated 6th March, 2019, upon completion of 56 years, the tenure of Dr. S. Pradeep Kumar in the parental Organization - Kannur University came to an end. Resultantly as per Order dated 08/03/2019 of Kannur University vide A2/5576/2020, his services in the University was relieved from 08/03/2019. Thereafter, Dr.S.Pradeep Kumar relinquished the post of Member Secretary, Kerala State Council for Science Technology and Environment, on his own volition.
3. In the said circumstances, as per Reference (3), the reappointment of Dr.S.Pradeep Kumar as the Member Secretary of Kerala State Council for Science Technology and Environment was recommended for a period of one year from the date of assumption of office. In accordance with the terms and conditions of re-employment, he was nominated and the said person assumed office on 06/05/2019. As his tenure came to an end, as per Reference (4), his tenure was extended for a period of one year from 06.05.2020, in accordance with the terms and conditions of re-employment. As per Reference No: (5), and on the basis of the decision of the Cabinet, Dr. S. Pradeep Kumar was reappointed to the post of Member Secretary, Kerala WP(C): 14382/2021 -:40:- State Council for Science Technology and Environment, w.e.f 24.06.2021, for a period of one year, in accordance with the terms and conditions prescribed and subject to Vigilance clearance.
4. Since the tenure of the Member Secretary, as per Reference No: 5 expired on 24.06.2022, the Controller of Administration of the Council recommended for appropriate action, as per Reference No: 6.
5. The Government have examined the issue.
Dr.S.Pradeep Kumar is nominated to be reappointed to the post of Member Secretary, Kerala State Council for Science Technology and Environment for a period of one year from 25.06.2022, subject to the terms and conditions mentioned below and Vigilance Clearance.
1. In accordance with KSR Chapter III Rule 100, the service conditions of the said person shall be governed by G.O (P) No: 159/2016/Fin dated 19.10.2016. The amounts received towards Pension and remuneration for reappointment shall not exceed the last pay received. The remuneration for reappointment = Last pay salary- Basic Pension.
2. Apart from the above, the following allowances shall be eligible to be drawn.
(a) He shall be eligible for HRA in tune with the last drawn salary in the place of reappointment.
(b) Dearness Allowances shall be applicable in accordance with the rates applicable in the parental organization.
(c) Dearness Relief is applicable on Pension.
(d) There shall be eligibility for yearly increment. However, there shall not be eligibility for stagnation increment or other benefits.
As per the Order of the Governor Prof Dr.K.P.Sudheer ex-officio principal Secretary Executive Vice President, Kerala State Council for Science Technology and Environment."
WP(C): 14382/2021 -:41:-28. Now, let us discuss about the service rules and regulations of the KSCSTE. Rule 3 of the Rules of the Kerala State Council for Science, Technology and Environment deals with members of the State Council and it reads as under:
"3. Members of the State Council 3.1 The members of the State Council shall consist of the following:
Chief Minister President
Minister for Industries Vice President
Minister for Finance "
Minister for Agriculture "
Minister for Health "
Minister for Education "
xxxxxxxxxxxxxxxxx
Member Secretary (nominated by Government) Directors of two Science & Technology institutions under the Council to be nominated in rotation by the President/Government.
Notwithstanding anything contained above, the composition of the first State Council shall be as given in the Article 4 of the Memorandum of Association."
29. Rule 11 deals with Member Secretary and clause 11.1 of Section 11 states that the Member Secretary of the State Council shall be nominated by the Government and shall hold office for a period of three years from the date of assumption of office.
30. Exhibit-P16 is the Minutes of the Sixth Annual General Meeting of the State Council of Kerala State Council for Science, Technology and WP(C): 14382/2021 -:42:- Environment held on 29.07.2008, wherein Agenda Item No.06.08 speaks about relaxation in age for the requirement of Directors/Member Secretary. It is stated therein that the State Council ratified the action of the President to raise the upper age limit requirement for the post of Director/Member Secretary as 55 years instead of the present 50 years.
31. Agenda Item No.06.08 (Exhibit-P17) is reproduced hereunder:
"Agenda Item No.06.08 Relaxation in Age for the Requirement of Directors/Member Secretary As per the present qualifications and experience requirements of Directors/Member Secretary, the qualifications are Ph.D in the relevant field with 15 years of research experience out of which at least 5 years should be in the grade of Scientist F. The age should be below 50 years.
In the case of age, it is found that the Council is not getting suitable candidates for the post of Director/Member Secretary in spite of repeated advertisements. The Executive Committee in its 13th Meeting held on 20.03.07 has agreed to the minor corrections in the qualifications and Experience required for the Appointment of Directors of R&D Centres and the age was recommended to be changed as below 55 years. Hence, it is suggested that the State Council may approve the change of age as below 55 years instead of present 50 years, with all other conditions remaining the same. Points for decision The State Council may approve the upper age limit requirement for the post of Director/Member Secretary as 55 years instead of the present 50 years."WP(C): 14382/2021 -:43:-
32. On the aspect as to when a writ of quo warranto can be issued, we deem it fit to consider a few decisions as hereunder:
(i) In B.R. Kapur v. State of Tamil Nadu and Ors. reported in (2001) 7 SCC 231, at paragraph Nos.79 to 81, the Hon'ble Supreme Court held as under:-
"79..............A writ of quo warranto is a writ which lies against the person, who according to the relator is not entitled to hold an office of public nature and is not an usurper of the office. It is the person, against whom the writ of quo warranto is directed, who is required to show, by what authority that person is entitled to hold the office. The challenge can be made on various grounds, including on the grounds that the possessor of the office does not fulfill the required qualifications or suffers from any disqualification, which debars the person to hold such office. So as to have an idea about the nature of action in a proceedings for writ of quo warranto and its original form, as it used to be, it would be beneficial to quote from Words and Phrases, Permanent Edn., Vol. 35- A, p. 648. It reads as follows:
The original common-law writ of quo warranto was a civil writ at the suit of the Crown, and not a criminal prosecution. It was in the nature of a writ of right by the King against one who usurped or claimed franchises or liabilities, to inquire by what right he claimed them. This writ, however, fell into disuse in England centuries ago, and its place was supplied by an information in the nature of a quo warranto, which in its origin was a criminal method of prosecution, as well to punish the usurper by a fine for the usurpation of the franchise, as to oust him or seize it for the Crown. Long before our revolution, however, it lost its character as a criminal proceeding in everything except form, and was applied to the mere purposes of trying the civil right, seizing the franchise, or ousting the wrongful possessor, the fine being nominal only and such, without any special legislation to that effect, has always been its character in many of the States of the Union, and it is therefore a civil remedy only. Ames WP(C): 14382/2021 -:44:- v. State of Kansas 4 S.Ct. 437, 442 : 111 US 449 : 1 Ed 482 (1884), People v. Dashaway Assn. 24 P 277, 278 : 84 Cal
114.
80. In the same volume of Words and Phrases, Permanent Edn., at p. 647 we find as follows:
The writ of 'quo warranto' is not a substitute for mandamus or injunction nor for an appeal or writ of error, and is not to be used to prevent an improper exercise of power lawfully possessed, and its purpose is solely to prevent an officer or corporation or persons purporting to act as such from usurping a power which they do not have. State Ex inf. McKittrick v. Murphy 148 SW 2d 527, 529, 530 : 347 Mo 484.
Information in nature of 'quo warranto' does not command performance of official functions by an officer to whom it may run, since it is not directed to officer as such, but to person holding office or exercising franchise, and not for purpose of dictating or prescribing official duties, but only to ascertain whether he is rightfully entitled to exercise functions claimed. State ex inf. Walsh v. Thatche 102 SW 2d 937, 938 : 340 Mo 865.
(emphasis supplied)
81. In Halsbury's Laws of England, 4th Edn., Reissue Vol. I, p. 368, para 265 it is found as follows:
"266. In general -- An information in the nature of a quo warranto took the place of the obsolete writ of quo warranto which lay against a person who claimed or usurped an office, franchise, or liberty, to inquire by what authority he supported his claim, in order what the right to the office or franchise might be determined."
(emphasis supplied)
(ii) In Waseem Abdullah v. J and K Academy of Art, Culture and Languages and others, reported in 2004 (3) JKJ 407, at paragraph No.11, the Hon'ble High Court of Jammu and Kashmir at Jammu, held as under:
WP(C): 14382/2021 -:45:-"11. In High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat [(2003) 4 SCC 712], Their Lordships of the Supreme Court opined that the High Court in exercise of its writ jurisdiction in a matter of the nature of the present case is required to determine at the outset as to whether a case has been made out for issuance of a writ of certiorari or a writ of quo warranto. The jurisdiction of the High Court to issue a writ of quo warranto is a limited one and while issuing such a writ, the Court merely makes a public declaration but will not consider the respective impact of the candidates or other factors, which may be relevant for issuance of a writ of certiorari. In paragraph 23 of the judgment, their lordships have emphatically held that a writ of quo warranto can only be issued when the appointment is contrary to the statutory rules."
(iii) In Raju Puzhankara v. Kodiyeri Balakrishnan and Ors. [2009 KHC 244], a Hon'ble Division Bench of this Court at paras 5 to 10, held as under:
"5. The next question is whether a Minister is holding a public office, so that a quo warranto writ can be issued, if he is functioning as a Minister without any legal authority. Another incidental question is, even if his initial assumption is valid in law, whether if he subsequently disqualify to hold office, can a writ of quo warranto be issued. There is no dispute that if a Minister is holding his office against law, a quo warranto writ can be issued. In S.R. Chowdhury v. State of Punjab and Ors. [AIR 2001 SC 2707], quo warranto writ was issued by the Supreme Court. In that case, a person who was not a member of the legislative assembly was appointed as Chief Minister. The Hon'ble Supreme Court held that even though under Article 164(4) of the Constitution of India, he can be appointed for an initial period of six months, he cannot be repeatedly continued to hold the office beyond the period of six months and, therefore, after the first six months, he cannot be appointed again and in that particular case quo warranto writ was issued. The Court also noticed that if he is repeatedly appointed to the above post, it will be flouting the constitutional scheme and mandate. In B.R. Kapur v.WP(C): 14382/2021 -:46:-
State of Tamil Nadu and Anr. (AIR 2001 SC 3435), the Hon'ble Supreme Court also held that even if a person is disqualified to become a member of the legislature, he cannot be appointed as a Minister or Chief Minister under the guise of Article 164(4) and a quo warranto writ can be issued to oust such person from office. In that case, Smt. Jayalalitha, who was convicted and sentenced by a Court of law for imprisonment for more than two years, without becoming a member of the Legislative Assembly occupied office of Chief Minister of Tamilnadu by virtue of Article 164(4) of the Constitution. The Apex Court held that if she is not qualified to become a member of the Legislative Assembly, she cannot be appointed as a Minister or a Chief Minister. The Hon'ble Apex Court held as follows:
"50. ...The Constitution prevails over the will of the people as expressed through the majority party. The will of the people as expressed through the majority party prevails only if it is in accord with the Constitution. The Governor is functionary under the Constitution and is sworn to 'preserve, protect and define the Constitution and the laws' (Article 159). The Governor cannot, in the exercise of his discretion or otherwise, do anything that is contrary to the Constitution and the laws. It is another thing that by reason of the protection the Governor enjoys under Article 361, the exercise of the Governor's discretion cannot be questioned. We are in no doubt at all that if the Governor is asked by the majority party in the legislature to appoint as Chief Minister a person who is not qualified to be a member of the legislature or who is disqualified to be a member of the legislature or who is disqualified to be such, the Governor must having due regard to the Constitution and the laws, to which he is subject, decline and the exercise of discretion by him in this regard cannot be called in question.
51. If perchance, for whatever reason, the Governor does appoint as Chief Minister a person who is not qualified to be a member of the WP(C): 14382/2021 -:47:- legislature or who is disqualified to be such, the appointment is contrary to the provisions of Article 164 of the Constitution, as we have interpreted it, and the authority of the appointee to hold the appointment can be challenged in quo warranto proceedings. That the Governor has made the appointment does not give the appointee any higher right to hold the appointment. If the appointment is contrary to the constitutional provisions it will be struck down. The submission to be contrary-unsupported by any authority-must be rejected.
52. The judgment of this Court in Shri Kumar Padma Prasad v. Union of India [(1992) 2 SCC. 428] is a case on point. One K.N. Srivastava was appointed a Judge of the Gauhati High Court by a warrant of appointment signed by the President of India. Before the oath of his office could be administered to him, quo warranto proceedings were taken against him in that High Court. An interim order was passed directing that the warrant of appointment should not be given effect to until further orders. A transfer petition was then filed in this Court and was allowed. This Court, on examination of the record and the material that it allowed to be placed before it, held that Srivastava was not qualified to be appointed a High Court Judge and his appointment was quashed. This case goes to show that even when the President, or the Governor, has appointed a person to a constitutional office, the qualification of that person to hold that office can be examined in quo warranto proceedings and the appointment can be quashed.
6. As far as the present case is concerned, the first respondent was elected as the Member of the Legislative Assembly and he became the Home Minister after complying with all legal formalities. There is no dispute with regard to his initial appointment and there is no contention that he was disqualified under any of the provisions of the enactments or the Constitution. The WP(C): 14382/2021 -:48:- only contention is that he has violated the oath of secrecy which was taken at the time of assumption of office. The form of oath of office to be taken at the time of assumption of office is as follows:
"I.....swear in the name of God/solemn affirm that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India, that I will faithfully and conscientiously discharge my duties as a Minister for the (State of Kerala) and that I will do right to all manner of people in accordance with the Constitution and the law without fear or favour, affection or ill-will."
The Oath of Secrecy to be taken is as follows:
"I.....swear in the name of God/solemnly affirm that I will not directly or indirectly communicate or reveal to any person or persons any matter which shall be brought under my consideration or shall become known to me as a Minister for the (State of Kerala) except as may be required for the due discharge of my duties as such Minister."
In this case, CBI prepared a final report after investigation. Two Government officers and one ex- Minister are arrayed as accused. C.B.I., has sought sanction to prosecute them and the Minister. It is stated in Ext. P-2 paper report that the first Respondent has stated that cases are not new to Pinarayi and they will fight the case politically. According to the Petitioner, by the above statement, the Minister has divulged the information that Pinarayi, an ex-minister, is an accused and thereby violated the oath. The violation of oath of office is a very serious matter. But the questions are whether there is any violation, and even if there is violation of oath, who is the authority to take action and whether writ of quo warranto will lie. When final report was filed levelling charges against an ex-Minister, a spontaneous reaction was made by the first Respondent.
WP(C): 14382/2021 -:49:-Whether such expression by the Home Minister before consideration of the issue by the Cabinet is improper is not a question to be considered by us. Impropriety of a statement by the Minister is nonjusticiable. Violation of oath is different from impropriety. In any event, a writ of quo warranto cannot be issued on the ground of impropriety and, in any view, for the impropriety in the conduct of a Minister writ of quo warranto will be issued by the Court sparingly in very special circumstances. It is a discretionary remedy. Even though the CBI has filed charges against the ex-Minister, unless he is found guilty by the Court, he is deemed to be innocent. Prima facie, we are of the opinion that the observations made by the Minister is not a violation of oath. This is only a prima facie opinion, as we are not called upon to give a verdict on that aspect in this proceedings.
7. Even assuming that there is violation of oath, a Full Bench of this Court in K.C. Chandy v. R. Balakrishna Pillai [1985 K.L.T. 762 F.B] held that quo warranto cannot be issued in such situation. The Court held that breach of Oath is different from absence of oath and if there is breach of Oath, action has to be exercised by the appointing authority under the Constitution. Whether breach of oath of office and of secrecy committed by a minister is outside the judicial review under Article 226 of the Constitution of India. The Full Bench held as follows:
"7. Breach of oath may thus be a betrayal of faith. The appointing authority, the Governor, in such cases, can consider whether there was, in fact, any breach of Oath. It is not for this Court to embark on any such enquiry.
8. Breach of Oath is different from absence of Oath. Absence of Oath prevents entry into office while breach affects the continuance after a valid entry. If no Oath is taken before assumption of office as enjoined by the Constitution, there is no legal title to hold that office and a writ of quo warranto will naturally go from this Court. Similarly, a Minister, who, for any period of six consecutive months, is not a WP(C): 14382/2021 -:50:- member of the Legislature of the State shall, at the expiration of that period, cease to be a Minister. This is the mandate of Article 164 of the Constitution. A person without authority cannot function; and the jurisdiction under Article 226 could be invoked to prevent that usurper in office from functioning.
9. Breach of Oath requires a termination of the tenure of office. This power can be exercised by the appointing authority under the Constitution and according to the procedure, if any, prescribed therein. The termination of that tenure is not the function of a Court, and it would not be appropriate to exercise jurisdiction under Article 226 in such cases. Proceedings under Article 226 in such cases do not lie. It was Jefferson who said:
"Our peculiar security is in the possession of a written Constitution; let us not make it a blank paper by construction.
(Government by Judiciary-Raoul Berger - p.304.)
10. The question as to whether there was breach of Oaths of office and of secrecy committed by a Minister is outside judicial review under Article 226 of the Constitution. "
(iv) In N. Kannadasan and Ors. v. Ajoy Khose and Ors., reported in (2009) 7 SCC 1, on the issuance of a writ of quo warranto, the Hon'ble Apex Court held as under:
"148. Concedingly, judicial review for the purpose of issuance of writ of Quo Warranto in a case of this nature would lie:
(A) in the event the holder of a public office was not eligible for appointment;
(B) Processual machinery relating to consultation was not fully complied.
149. The writ of quo warranto proceedings affords a judicial remedy by which any person who holds an WP(C): 14382/2021 -:51:- independent substantive public office is called upon to show by what right he holds the same so that his title to it may be duly determined and in the event it is found that the holder has no title he would be directed to be removed from the said office by a judicial order. The proceedings not only give a weapon to control the executive from making appointments to public office against law but also tend to protect the public from being deprived of public office to which it has a right.
150. It is indisputably a high prerogative writ which was reserved for the use of Crown.
151. The width and ambit of the writ, however, in the course of practice, have widened and it is permissible to pray for issuance of a writ in the nature of quo warranto.
152. In Corpus Juris Secundum [74 C.J.S. Quo Warranto § 14], `Quo Warranto' is defined as under:
"Quo warranto, or a proceeding in the nature thereof, is a proper and appropriate remedy to test the right or title to an office, and to remove or oust an incumbent.
It is prosecuted by the state against a person who unlawfully usurps, intrudes, or holds a public office. The relator must establish that the office is being unlawfully held and exercised by respondent, and that realtor is entitled to the office."
153. In the Law Lexicon by J.J.S. Wharton, Esq., 1987, 'Quo Warranto' has been defined as under:
QUO WARRANTO, a writ issuable out of the Queen's Bench, in the nature of a writ of right, for the Crown, against him who claims or usurps any office, franchise, or liberty, to enquire by what authority he supports his claim, in order to determine the right. It lies also in case of non- user, or long neglect of a franchise, or mis-user or abuse of it; being a writ commanding the defendant to show by what warrant he exercises such a franchise having never had any grant of it, or having forfeited it be neglect or abuse.WP(C): 14382/2021 -:52:-
154. Indisputably a writ of Quo Warranto can be issued inter alia when the appointment is contrary to the statutory rules as has been held by this Court in High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat, (supra) and R.K. Jain v. Union of India and Ors. (1993) 4 SCC 119. See also Mor Modern Coop. Transport Society Ltd. v. Financial Commr. & Secy.[2002] SUPP 1SCR 87.
155. In Dr. Duryodhan Sahu and Ors. v. Jitendra Kumar Mishra and Ors. (1998) IILLJ 1013 SC, this Court has stated that it is not for the court to embark upon an investigation of its own to ascertain the qualifications of the person concerned. [See also Arun Singh alias Arun Kr. Singh v. State of Bihar and Ors. AIR 2006 SC 1413 ]
156. We may furthermore notice that while examining if a person holds a public office under valid authority or not, the court is not concerned with technical grounds of delay or motive behind the challenge, since it is necessary to prevent continuance of usurpation of office or perpetuation of an illegality. [See Dr. Kashinath G. Jalmi and Anr. v. The Speaker and Ors. [1993]2SCR820 ].
157. Issuance of a writ of quo warranto is a discretionary remedy. Authority of a person to hold a high public office can be questioned inter alia in the event an appointment is violative of any statutory provisions.
163. It was held that a Writ of Quo Warranto can be issued even when the President or the Governor had appointed a person to a constitutional office. It was furthermore held that the qualification of that person to hold that office can be examined in a quo warranto proceedings and the appointment can be quashed."
(v) In Hari Bansh Lal v. Sahodar Prasad Mahto and Ors. reported in (2010) 9 SCC 655, the Hon'ble Supreme Court held as under:
"10. Writ of quo warranto lies only when appointment is contrary to a statutory provision. In High Court of Gujarat and Anr. v. Gujarat Kishan Mazdoor Panchayat and Ors. (2003) 4 SCC 712, (three-Judges Bench) Hon'ble S.B. Sinha, J. concurring with the majority view held as under:WP(C): 14382/2021 -:53:-
"22. The High Court in exercise of its writ jurisdiction in a matter of this nature is required to determine at the outset as to whether a case has been made out for issuance of a writ of certiorari or a writ of quo warranto. The jurisdiction of the High Court to issue a writ of quo warranto is a limited one. While issuing such a writ, the Court merely makes a public declaration but will not consider the respective impact of the candidates or other factors which may be relevant for issuance of a writ of certiorari. (See R.K. Jain v. Union of India, SCC para 74.)
23. A writ of quo warranto can only be issued when the appointment is contrary to the statutory rules. (See Mor Modern Coop. Transport Society Ltd. v. Financial Commr. & Secy. to Govt. of Haryana)"
11. In Mor Modern Cooperative Transport Society Ltd. v. Financial Commissioner & Secretary to Govt. of Haryana and Anr. [(2002) 6 SCC 269], the following conclusion in para 11 is relevant.
"11. ... The High Court did not exercise its writ jurisdiction in the absence of any averment to the effect that the aforesaid officers had misused their authority and acted in a manner prejudicial to the interest of the appellants. In our view the High Court should have considered the challenge to the appointment of the officials concerned as members of the Regional Transport Authority on the ground of breach of statutory provisions. The mere fact that they had not acted in a manner prejudicial to the interest of the appellant could not lend validity to their appointment, if otherwise, the appointment was in breach of statutory provisions of a mandatory nature. It has, therefore, become necessary for us to consider the validity of the impugned notification said to have been issued in breach of statutory provision."WP(C): 14382/2021 -:54:-
12. In B. Srinivasa Reddy v. Karnataka Urban Water Supply and Drainage Board Employees Assn. and Ors. (2006) 11 SCC 731this Court held:
"49. The law is well settled. The High Court in exercise of its writ jurisdiction in a matter of this nature is required to determine, at the outset, as to whether a case has been made out for issuance of a writ of quo warranto. The jurisdiction of the High Court to issue a writ of quo warranto is a limited one which can only be issued when the appointment is contrary to the statutory rules.
It is clear from the above decisions that even for issuance of writ of quo warranto, the High Court has to satisfy that the appointment is contrary to the statutory rules. In the later part of our judgment, we would discuss how the appellant herein was considered and appointed as Chairman and whether he satisfied the relevant statutory provisions.
20. From the discussion and analysis, the following principles emerge:
(a) Except for a writ of quo warranto, PIL is not maintainable in service matters.
(b) For issuance of writ of quo warranto, the High Court has to satisfy that the appointment is contrary to the statutory rules.
(c) Suitability or otherwise of a candidate for appointment to a post in Government service is the function of the appointing authority and not of the Court unless the appointment is contrary to statutory provisions/rules."
(vi) In Mahesh Chandra Gupta v. Union of India, [(2014) 1 SCC 161], Hon'ble Supreme Court, at paragraph (26), held as under:
"26. ....... writ of quo warranto can be issued only when person holding public office lacks eligibility or when appointment is contrary to statutory rules and held as under in paragraph 21:-WP(C): 14382/2021 -:55:-
"21. From the aforesaid exposition of law it is clear as noonday that the jurisdiction of the High Court while issuing a writ of quo warranto is a limited one and can only be issued when the person holding the public office lacks the eligibility criteria or when the appointment is contrary to the statutory rules. That apart, the concept of locus standi which is strictly applicable to service jurisprudence for the purpose of canvassing the legality or correctness of the action should not be allowed to have any entry, for such allowance is likely to exceed the limits of quo warranto which is impermissible. The basic purpose of a writ of quo warranto is to confer jurisdiction on the constitutional courts to see that a public office is not held by usurper without any legal authority."
(vii) In Renu and Ors. v. District and Sessions Judge, Tis Hazari and Ors. reported in (2014) 14 SCC 50, the Hon'ble Apex Court held as under:
"15. Where any such appointments are made, they can be challenged in the court of law. The quo warranto proceeding affords a judicial remedy by which any person, who holds an independent substantive public office or franchise or liberty, is called upon to show by what right he holds the said office, franchise or liberty, so that his title to it may be duly determined, and in case the finding is that the holder of the office has no title, he would be ousted from that office by judicial order. In other words, the procedure of quo warranto gives the Judiciary a weapon to control the Executive from making appointment to public office against law and to protect a citizen from being deprived of public office to which he has a right. These proceedings also tend to protect the public from usurpers of public office who might be allowed to continue either with the connivance of the Executive or by reason of its apathy. It will, thus, be seen that before a person can effectively claim a writ of quo warranto, he has to satisfy the Court that the office in question is a public office and is held by a usurper without legal authority, and that inevitably would lead to an enquiry as to whether the appointment of the alleged WP(C): 14382/2021 -:56:- usurper has been made in accordance with law or not. For issuance of writ of quo warranto, the Court has to satisfy that the appointment is contrary to the statutory rules and the person holding the post has no right to hold it. (Vide: The University of Mysore and Anr. v. C.D. Govinda Rao and Anr. (AIR 1965 SC 491); Shri Kumar Padma Prasad v. Union of India and Ors. (AIR 1992 SC 1213); B.R. Kapur v. State of Tamil Nadu and Anr. (AIR 2001 SC 3435); The Mor Modern Co-operative Transport Society Ltd. v. Financial Commissioner and Secretary to Govt., Haryana and Anr. (AIR 2002 SC 2513); Arun Singh v. State of Bihar and Ors. (AIR 2006 SC 1413); Hari Bansh Lal v. Sahodar Prasad Mahto and Ors. (AIR 2010 SC 3515); and Central Electricity Supply Utility of Odisha v. Dhobei Sahoo and Ors. [(2014) 1 SCC 161])."
(viii) In K.D. Prathapan v. State of Kerala and Ors. reported in 2015 KHC 606, this Court observed as under:
"34. Before we proceed to examine the above judgments relied on by the learned counsel for the petitioner, it is relevant to note the scope of a writ of quo warranto. In the present Writ Petition petitioner has prayed for issue of writ of quo warranto calling upon respondent No. 4, to show cause before this Court under what authority he is holding the office of Vice Chancellor. Further to quash Ext. P8 by which the State Government has restored respondent No. 4 in the post of Vice Chancellor in obedience of the judgment of the Division Bench dated 30.07.2012 in W.A. No. 347 of 2012. The Constitution Bench of the Apex Court in University of Mysore v. Govinda Rao (AIR 1965 SC 491) had occasion to consider the scope of writ of quo warranto. In the above case respondent Govinda Rao had filed a Writ Petition in the High Court under Article 226 of the Constitution praying for issue of a writ of quo warranto calling one Niya Gowda (respondent in the Writ Petition) to show cause as to under what authority he was holding the post of Research Reader in English in the Central College, Bangalore. High Court held that appointment of Niya Gowda was invalid. Appeal was filed by the University. The Constitution Bench examined the content and scope of writ WP(C): 14382/2021 -:57:- of quo warranto and following was laid down in paragraph 6 and 7:
"6. The judgment of the High Court does not indicate that the attention of the High Court was drawn to the technical nature of the writ of quo warranto which was claimed by the respondent in the present proceedings, and the conditions which had to be satisfied before a writ could issue in such proceedings.
7. As Halsbury has observed:
"An information in the nature of a quo warranto took the place of the obsolete writ of quo warranto which lay against a person who claimed or usurped an office, franchise, or liberty, to enquire by what authority he supported his claim, in order that the right to the office or franchise might be determined."
Broadly stated, the quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions; it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognised in that behalf, they tend to protect the public from usurpers of public office; in some cases, persons not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the courts to issue writ of quo warranto is properly WP(C): 14382/2021 -:58:- invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of quo warranto, he must satisfy the court, inter alia, that the office in question is a public office and is held by usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not."
35. In Centre For PIL and another (supra), with regard to writ of quo warranto the following was laid down in paragraph 51 which is to the following effect:
"51. The procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions. Before a citizen can claim a writ of quo warranto he must satisfy the Court inter
- alia that the office in question is a public office and it is held by a person without legal authority and that leads to the inquiry as to whether the appointment of the said person has been in accordance with law or not. A writ of quo warranto is issued to prevent a continued exercise of unlawful authority."
Thus writ of quo warranto is for a judicial enquiry in which a person holding public office is called upon to show by what right he hold the said office. If the enquiry reaches to the finding that the holder of the office has no valid title the issue of writ of quo warranto will oust him from that office. Court in the proceedings can enquire as to whether appointment of defendant is made contrary to the statutory provisions.
36. The Hon'ble Apex Court in Rajesh Awasthi (supra) has laid down the following in paragraph 19:
"19. A writ of quo warranto will lie when the appointment is made contrary to the statutory provisions. This Court in Mor Modern Coop.WP(C): 14382/2021 -:59:-
Transport Coop. Transport Society Ltd. v. Govt. of Haryana, [(2002) 6 SCC 269 held that a writ of quo warranto can be issued when appointment is contrary to the statutory provisions. In B. Srinivasa Reddy (supra), this Court has reiterated the legal position that the jurisdiction of the High Court to issue a writ of quo warranto is limited to one which can only be issued if the appointment is contrary to the statutory rules. The said position has been reiterated by this Court in Hari Bans Lal (supra) wherein this Court has held that for the issuance of writ of quo warranto, the High Court has to satisfy that the appointment is contrary to the statutory rules."
(ix) In Premkumar T.R. v. Mahatma Gandhi University and Ors. reported in ILR 2018 (1) Kerala 993, this Court held as under:
"27. Well established is the legal proposition that a writ of quo warranto lies when the appointment is made contrary to the statutory provisions. True, the University and Dr. Sebastian, too, have questioned Premkumar's locus standi to file the writ petition. Dr. Sebastian has, in fact, alleged that Premkumar was fielded by persons unhappy with his appointment as the Vice Chancellor. But this objection to the suitor's standing in a writ of quo warranto cannot detain us for long. Legion are the judicial precedents.
28. If we examine this prerogative writ--quo warranto--from the judicial perspective of England, the place of its origin, the writ's primary object is to shield the sovereignty of the Crown from invasion, and to prevent abuse of public office, by a usurper or intruder. So every subject is deemed to be interested and may institute quo warranto proceedings.[Halsbury's Laws of England (4th Edn.) Vol. 1, paras 179-80, as quoted in V.G. Ramachandran's Law of Writs, EBC (2006), p. 1355]
29. In India, too, any person may challenge the validity of an appointment to a public office, whether or not that person's fundamental or other legal right has been infringed. But the Court must be satisfied that the person so applying is bona fide, and there is a necessity in WP(C): 14382/2021 -:60:- public interest to declare judicially that there is a usurpation of public office. [Id., 1355] Indisputably, a writ of quo warranto questioning a usurper's occupying public office, according to the Supreme Court, can be maintained even by a busybody (N. Kannadasan v. Ajoy Khose [(2009) 7 SCC 1 : 2009 (8) SCALE 351]).
30. A citizen can claim a writ of quo warranto, for he stands in the position of a relater. He need not have any special or personal interest. The real test is to see whether the person holding the office is authorised to hold the same under law. Delay and laches, according to the Supreme Court in Rajesh Awasthi v. Nand Lal Jaiswal [AIR 2013 SC 78 : (2013) 1 SCC 501], constitute no impediment for the Court to deal with the lis on merits.
31. In Central Electricity Supply Utility of Odisha v. Dhobei Sahoo [2013 (13) SCALE 477 : AIR 2014 SC 246], the Supreme Court has pointed out that the concept of locus standi, which strictly applies to service jurisprudence, should have no entry, for such allowance is likely to exceed the limits of Quo Warranto. The basic purpose of a Writ of Quo Warranto, it was pointed out, is to confer jurisdiction on the Constitutional Courts to see that the public office is not held by a usurper, a person with no legal authority."
(x) In Bharati Reddy v. The State of Karnataka and Ors. reported in (2018) 6 SCC 162, the Hon'ble Supreme Court held as as under:
"26. In K. Venkatachalam v. A. Swamickan (AIR 1999 SC 1723) : (1999) 4 SCC 526, the challenge was to the election of the Appellant to the Legislative Assembly in Tamil Nadu by way of a writ Under Article 226 of the Constitution filed by the contesting candidate (Respondent therein) for a declaration that the Appellant was not qualified to be a Member of Tamil Nadu Legislative Assembly, since he was not enrolled as an elector in the electoral roll in the concerned constituency for the general elections in question. The Court analysed the factual matrix which pointed out that, admittedly, the incumbent was not an elector of the concerned constituency and that he blatantly and fraudulently impersonated himself as another elector in WP(C): 14382/2021 -:61:- the constituency. Accepting that indisputable position, the Court proceeded to conclude that the Appellant was not eligible to contest elections from the concerned constituency, not being a voter in that constituency. It thus held that the Appellant therein lacked the basic qualification under Clause (c) of Article 173 of the Constitution of India read with Section 5 of the 1951 Act, which was quintessential to be elected from the constituency. On such finding, the Court entertained the writ petition Under Article 226 and declared the Appellant to be occupying the public office without legal authority and issued a writ of quo warranto. In other words, the matter was decided on the basis of indisputable and established facts. This judgment will be of no avail to the writ Petitioners in the present case, so long as the Income and Caste Certificate issued to the Appellant is in force.
27. In Kurapati Maria Das v. Ambedkar Seva Samajan (2009) 7 SCC 387, the Court distinguished the decision in K. Venkatachalam (supra) being on the facts of that case and reversed the judgment of the High Court under challenge, whereby a writ of quo warranto was issued against the Appellant therein. The reason for doing so may have some bearing on the matter in issue as in that case, there was dispute about the caste status of the Appellant. The Court opined that the issue regarding the caste status can be decided only by the Competent Authority under the relevant enactment and not by the High Court. The Court accepted the contention of the Appellant that continuance of the post of Chairperson depended directly on his election, firstly, as a ward member and secondly as the Chairperson, which election was available only to the person belonging to the Scheduled Caste. In paragraph 32 of the reported decision, the Court while accepting the contention of the Appellant noted that the question of caste and his election are so inextricably connected that they cannot be separated and therefore, when the writ Petitioners challenged the continuation of the Appellant on the ground of his not belonging to a particular caste what they actually challenged was the validity of the election WP(C): 14382/2021 -:62:- of Appellant though, apparently, the petition was for a writ of quo warranto."
33. The proposition that can be deduced from the law laid and settled by the Hon'ble Supreme Court in the decisions extracted above is that, a writ of quo warranto questioning a usurper's occupying public office can be maintained even by a busybody and that the basic purpose of a writ of quo warranto is to confer jurisdiction on the Constitutional Courts to see that a public office is not held by usurper, without any legal authority. For a person to approach this Court seeking for issuance of a writ of quo warranto, he need not have any special or personal interest and the real test is to see whether the person holding the office is authorised to hold the same under law and that the appointment is not contrary to statutory rules. Accordingly, we hold that the petitioner has the locus standi to file this writ petition seeking writ of quo warranto.
34. It is contended by the petitioner that the 4 th respondent is not having the qualification prescribed in Exhibit-P1 Memorandum of Association, and the Rules and Bye-laws of KSCSTE. According to the petitioner, the qualification prescribed for the post of Member Secretary as per Article 4 of the Memorandum of Association is "Scientist with research and administrative experience nominated by the Government".
WP(C): 14382/2021 -:63:-35. It is contended that the 4 th respondent was an Associate Professor and the Controller of Examinations of Kannur University, at the time of his initial appointment as Member Secretary, and is not a Scientist. It is also contended that he had crossed the outer age limit for appointment as Member Secretary.
36. It is also contended that Member Secretary of Kerala State Council for Science, Technology and Environment, can be appointed only for a period of three years from the date of assumption of office; however, the 4th respondent is continuing to hold office as Member Secretary for more than three years.
37. It is further contended by the respondents that the petitioner had challenged only Exhibit-P13 order of reappointment of the 4 th respondent dated 24.06.2021 in the writ petition and the challenge against initial appointment cannot be called in question, in view of Exhibit-P9 judgment dated 02.04.2019 in W.P.(C) No.10159 of 2019. Though Exhibit-
P20 order of reappointment dated 23.06.2022 issued by the Ex Officio Principal Secretary, Science and Technology Department, has been challenged, by way of amendment of the writ petition, there are no pleadings in support of the challenge to Exhibit-P20. Therefore, the challenge made in the writ petition is belated.
WP(C): 14382/2021 -:64:-38. Clause 11 of Exhibit-P1 Rules and Bye-Laws of KSCSTE provides that the Member Secretary shall be the Principal Executive Officer of the Executive Committee and is responsible for the conduct of affairs, through efficient and faithful implementation of the decisions of the Council/Executive Committee.
39. Clause 7 of the Bye-Law provides that a Member Secretary of the State Council shall be nominated by the Government and shall hold office for a period of three years from the date of assumption of office.
According to respondent Nos. 1 and 4, neither the Memorandum of Association nor the Bye-Laws provide for the qualification of the Member Secretary, and the qualification prescribed in Article 4 of the Memorandum of Association is applicable only in the composition of the first State Council.
40. Clause 3.1 of Exhibit-P1 Rules and Bye Laws of KSCSTE further provides that the members of the State Council shall be as given in Article 4 of the Memorandum of Association. Clause 3.5 of the Rules provides that notwithstanding anything contained in sub-rule 3.1, the composition of the first State Council shall be as given in the annexure to the Rules.
The annexure to the Rules provides that the Member Secretary shall be a Scientist with research and administrative experience nominated by the WP(C): 14382/2021 -:65:- Government. The annexure to the Rules deals with the composition and qualification of the first State Council. The annexure to Rules deals only with the first State Council.
41. Once the period for which the first State Council constituted is over, the nomination of the Member Secretary shall be as provided under Clause 7.1, which stipulates that the Member Secretary shall be nominated by the Government and shall hold office for a period of three years from the date of assumption of office. Clause 7.1 does not provide for any specific qualification or age. Thus, the Memorandum of Association or Bye Laws do not provide for any qualification for the post of Member Secretary, KSCSTE. A writ of quo warranto can be issued only if the appointment is made contrary to statutory rules.
42. Since the Memorandum of Association or Bye Laws do not provide for any qualification for the post of Member Secretary, the petitioner cannot contend that the appointment of the 4 th respondent is contrary to statutory rules. The 4th respondent was an Associate Professor and the Controller of Examinations of Kannur University. It is stated that the 4th respondent is a doctoral degree holder in Botany and having 23 years of teaching experience in the Collegiate Education Department and good administrative experience. It is also stated that he was in the pay WP(C): 14382/2021 -:66:- band of Rs.37400-67000, Grade Pay-10000 (Grade of Scientist G/Professor) from 2010 onwards. It is also pointed out that some previous incumbents were also Professors and academicians.
43. At the time of appointment of the 4 th respondent as Member Secretary, he had not crossed the age limit of 55 years and further appointments were on re-employment basis. Clause 7.1 of the Bye Laws though provides that the Member Secretary shall hold office for a period of 3 years from the date of assumption of office, we do not find any prohibition in the Memorandum of Association or the Rules and Bye Laws in reappointing the incumbent to the post, after the expiry of the period of three years.
44. Since the Memorandum of Association and the Rules and Bye Laws do not prescribe any qualification for appointment of Member Secretary of the State Council, the appointment or reappointment of the 4th respondent cannot be said to be contrary to any statutory rules. The appointment of the 4th respondent, as well as the reappointment as per Exhibits-P13 and Exhibit-P20 orders dated 24.06.2021 and 23.06.2022 respectively, are by the Government, who is competent to make the appointment, as per the Memorandum of Association and Bye Laws.
Therefore, we are of the view that the 4 th respondent is holding office as WP(C): 14382/2021 -:67:- the Member Secretary of KSCSTE, with legal authority, and there is no usurpation in office by the 4 th respondent. We do not find any reason to quash Exhibits-P13 and P20 orders.
In fine, writ petition fails and is, accordingly, dismissed.
Sd/-
S. MANIKUMAR CHIEF JUSTICE Sd/-
MURALI PURUSHOTHAMAN JUDGE krj WP(C): 14382/2021 -:68:- APPENDIX PETITIONER's EXHIBITS:-
P1 COPY OF G.O(P) NO. 76/2002/STED DATED 06-11-2002 ISSUED BY THE CHAIRMAN, STEC AND THE RELEVANT PART OF THE MEMORRANDUM OF ASSOCIATION AND THE RULES AND BYE-LAWS OF KSCSTE.
P2 COPY OF THE ORDER DATED 29-06-2010 ISSUED BY THE CONTROLLER OF ADMISSION, KSCSTE.
P3 COPY OF THE ORDER DATED 01-06-2015 ISSUED BY THE EX OFFICIO PRINCIPAL SECRETARY, SCIENCE AND TECHNOLOGY DEPARTMENT.
P4 COPY OF THE RELEVANT PART OF THE MINUTES OF THE 14TH OF MEETING OF THE EXECUTIVE COMMITTEE OF KSCSTE HELD ON 23-06-2007.
P5 COPY OF THE ADVERTISEMENT DATED 15-06-2015 ISSUED BY THE EXECUTIVE VICE PRESIDENT OF KSCSTE, P6 COPY OF THE ORDER DATED 16-08-2016 ISSUED BY THE EX-OFFICIO PRINCIPAL SECRETARY TO GOVERNMENT, SCIENCE AND TECHNOLOGY DEPARTMENT.
P7 COPY OF THE BIODATA OF THE 4TH RESPONDENT.
P8 COPY OF THE OFFICE ORDER DATED 08-02-2019 ISSUED BY THE VICE CHANCELLOR OF KANNUR UNIVERSITY.
P9 COPY OF THE JUDGMENT DATED 02-04-2019 OF THIS HONOURABLE COURT IN WPC NO. 10151 OF 2019.
P10 COPY OF THE ORDER DATED 04-05-2019 ISSUED BY THE SECRETARY, SCIENCE AND TECHNOLOGY DEPARTMENT, GOVERNMENT OF KERALA.
P11 COPY OF THE ORDER DATED 07-05-2021 ISSUED BY THE EX-OFFICIO PRINCIPAL SECRETARY, SCIENCE AND TECHNOLOGY DEPARTMENT WITH TRANSLATION.
P12 COPY OF THE ORDER DATED 07-06-2021 ISSUED BY THE EX-OFFICIO PRINCIPAL SECRETARY, SCIENCE AND TECHNOLOGY DEPARTMENT WITH TRANSLATION.
P13 COPY OF THE ORDER DATED 24-06-2021 ISSUED BY THE EXECUTIVE VICE PRESIDENT, KSCSTE WITH TRANSLATION.WP(C): 14382/2021 -:69:-
P14 COPY OF THE RELEVANT PART OF THE NEWSPAPER REPORT DATED 09-07- 2021 OF JANMABHUMI WITH TRANSLATION.
P15 COPY OF THE RELEVANT PART OF THE SERVICE RULES AND OTHER RELEVANT RULES AND REGULATIONS OF KERALA STATE COUNCIL FOR SCIENCE, TECHNOLOGY AND ENVIRONMENT.
P16 COPY OF THE MINUTES OF THE 6TH ANNUAL GENERAL MEETING OF THE STATE COUNCIL OF KERALA STATE COUNCIL FOR SCIENCE, TECHNOLOGY AND ENVIRONMENT HELD ON 29-07-2008.
P17 COPY OF THE RELEVANT PART OF THE AGENDA ITEM NO.06.08 OF KSCSTE.
P18 COPY OF THE JUDGMENT DATED 29/9/2021 OF THE HONOURABLE SUPREME COURT OF INDIA IN CIVIL APPEAL NO.4991/2012.
P19 COPY OF THE JUDGMENT DATED 2/2/2018 IN WPC NO.24460/2015 OF THIS COURT.
P20 CCOPY OF THE ORDER DATED 23.06.2022 ISSUED BY THE EX OFFICIO PRINCIPAL SECRETARY, SCIENCE AND TECHNOLOGY, TRIVANDRUM.
RESPONDENTS' EXHIBITS:-
ANNEX.- R1(A):- COPY OF THE APPLICATION TO THE POST OF MEMBER SECRETARY DATED 27.04.2019.
//TRUE COPY// P.A. TO C.J.