Kerala High Court
James K.Joseph vs The Union Of India on 17 June, 2011
Author: P.R. Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HON'BLE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR
&
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
WEDNESDAY, THE 2ND DAY OF MAY 2012/12TH VAISAKHA 1934
WA.No. 1269 of 2011 ( )
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AGAINST THE JUDGMENT IN WPC.14495/2011 DATED 17-06-2011
.....
APPELLANT(S)/PETITIONER:
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JAMES K.JOSEPH, "SILVER OAK",
P.T.P.NAGAR, THIRUVANANTHAPURAM
BY ADV. SRI.THOUFEEK AHAMED
RESPONDENT(S)/RESPONDENTS:
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1. THE UNION OF INDIA, REPRESENTED BY THE
SECRETARY (PERSONNEL), MINISTRY OF PERSONNEL
DEPARTMENT OF PERSONNEL AND TRAINING, NORTH BLOCK
NEW DELHI - 110 001.
2. THE DIRECTOR,
CENTRAL BUREAU OF INVESTIGATION, NEW DELHI
REPRESENTED BY ITS STANDING COUNSEL
HIGH COURT OF KERALA. KOCHI - 31.
BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA
BY SRI.P.CHANDRASEKHARA PILLAI, C.B.I.
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 16/03/2012,
THE COURT ON 02/05/2012 DELIVERED THE FOLLOWING:
tss
W.A. NO.1269/2011
APPENDIX
PETITIONER'S ANNEXURES
A:- COPY OF THE LETTER DTD. 6.6.2005.
B:- COPY OF THE NOTE NO.A.11013/13/2004 DT.D 23.11.2005.
RESPONDENT'S ANNEXURES
NIL
//TRUE COPY//
P.S. TO JUDGE
tss
MANJULA CHELLUR, Ag. C.J. &
P.R. RAMACHANDRA MENON J.
~~~~~~~~~~~~~~~~~~~~~~~
W.A. No. 1269 Of 2011
~~~~~~~~~~~~~~~~~~~~~~~
Dated, this the 2nd day of May, 2012
JUDGMENT
Ramachandra Menon J.
Interference declined by the learned single Judge with regard to the prayer for ordering CBI enquiry, as to the alleged fraud/forgery committed by some officials of the Government of India - Department of Personnel and Training (DOPT), in connection with the 'non-selection' of the petitioner as Administrative Member of the Central Administrative Tribunal ('CAT' in short) is sought to be interfered in this appeal.
2. The appellant was a member of the Indian Audit and Accounts Service (IA&AS) during the period from 1972 to 1996. According to the appellant, he came out from the service in the year 1996, on voluntary retirement and was engaged otherwise in different capacities, as Managing Editor of 'Deepika' - a Malayalam daily, CEO of a Malayalam Television channel (India W.A No. 1269 of 2011 :2: Vision), Managing Director of the Kerala State Industrial Development Corporation and also as the Managing Director of the Kerala State Road Transport Corporation. It is stated that there was no complaint from any corner, in respect of the service at any point of time.
3. While so, the appellant was considered for the appointment as Administrative Member of the CAT in the year, 2004. According to him, he was selected and included in the list along with one Mr. N. Ramakrishnan and was to be appointed in the Bench at Kochi. In the course of further proceedings, though Mr. N. Ramakrishnan was given placement, the appellant was not given any letter of appointment and on enquiry, no satisfactory reply was obtained, when the appellant was constrained to approach this Court by filing W.P.(C) No. 16915 of 2005. According to the appellant, such non-selection was on the basis of some adverse, non-existing and incorrect facts/notes presented before the Selection Committee and that the same came to the notice of the appellant only much later, that too, on W.A No. 1269 of 2011 :3: coming across the report of the Intelligence Bureau ('IB' in short). It was pointed out that, though the appellant did not raise any challenge earlier, he had to protect his self respect, which made him to approach this Court by filing the above mentioned writ petition. The learned Single Judge dismissed the writ petition, placing reliance on the decision of the Apex Court rendered in Union of India Vs. Kali Dass Batish [(2001) 1 SCC 779], holding that the impugned proceeding was not a matter for judicial review. Being aggrieved of the said judgment, the appellant filed W.A. No. 464 of 2009, but on submitting that he would work out his grievance before other appropriate forum, the writ petition itself was permitted to be withdrawn and the appeal was disposed of as per the judgment dated 13.03.2009
4. About two years after culmination of the above proceedings, the appellant approached this Court by filing W.P. (C) No. 14495 of 2011, with the following prayers :
(i) Issue a Writ of Mandamus or any other appropriate Writ, Order or Direction, directing the 2nd respondent to conduct an investigation regarding review of the selection of petitioner as W.A No. 1269 of 2011 :4: Administrative Member of Central Administrative Tribunal, un-
influenced by any persons, including the then Secretary (Personnel) ad other officials including the then Joint Secretary, Director and Members of the Selection Committee, who un-selected the petitioner:
(ii) issue a Writ of Mandamus or any other appropriate Writ, Order or Direction, directing the 1st respondent to produce the entire file regarding the un-selection of he petitioner for perusal before this Hon'ble Court :
and
(iii) grant such other reliefs as this Hon'ble Court may deem fit and proper in the circumstances of this case.
After hearing, the learned single Judge observed that, the allegations made in the writ petition and the request made are in the form of a rowing enquiry to find out as to whether any fraud or forgery was involved. Observing that, there was a specific course as provided under the relevant provisions of the Cr.P.C., if at all any offence was committed by anybody, it was held that the nature of the jurisdiction sought to be exercised was not the function of this Court under Article 226 of the Constitution of India or under Section 482 of Cr.P.C. The learned Judge observed W.A No. 1269 of 2011 :5: that, having regard to the facts and circumstances placed before the Court, it was not required to direct the CBI or any other police officer to register a case as prayed for. Accordingly, without prejudice to the other rights of the appellant, the writ petition was dismissed, which is under challenge in this appeal.
5. After filing the writ appeal, on 05.08.2011, the appellant filed I.A. No. 661 of 2011 seeking to "amend the prayers in the writ petition". The said I.A. came up for consideration before this Court on 20.09.2011 and since it was not opposed, it was allowed, as prayed for, directing the appellant to file amended copy of the writ petition. The prayers in the amended writ petition, as permitted above, read as follows :
(i) Issue a Writ of Mandamus or any other appropriate Writ, Order or Direction directing the 2nd respondent to conduct an Investigation regarding the forgery and fabricated nature of the documents produced by the Officials of Department of Personnel and Training relating to the appointment of petitioner to the post of Member, Central Administrative Tribunal in the interest of justice.
(ii) Issue a Writ of Mandamus or other appropriate Writ, W.A No. 1269 of 2011 :6: Order or Direction directing the 1st respondent to produce the entire file regarding the un-selection of the petitioner for perusal before this Hon'ble Court.
and
(iii) Grant such other reliefs that this Hon'ble Court may deem fit and proper in the circumstances of this case.
6. The first respondent has filed a detailed statement, through the learned Assistant Solicitor General of India, disputing the facts and figures. The learned standing counsel appearing for the CBI, who is the second respondent, also vehemently opposed the relief sought for.
7. We heard Mr. Kalyanam - the learned counsel appearing for the appellant, Mr. P. Parameswaran Nair - the learned Assistant Solicitor General of India and Sri. P. Chandrasekharan Pillai - the learned standing counsel for the CBI.
8. During the course of hearing, this Court doubted the jurisdiction, to entertain the relief sought for, mainly for the reason that the averments and allegations in the writ petition as well as the appeal refer to the alleged forgery/manipulation of W.A No. 1269 of 2011 :7: records by the officials of the concerned Ministry at New Delhi. The learned counsel for the appellant asserted that there was jurisdiction for this Court; that there was absolutely no merit or bonafides with regard to the insinuation made against the appellant and that the appellant was having an unblemished track record throughout his career, and that there was some animosity for the Secretary (Personnel) to the appellant, since he had forwarded the particulars for being considered as the Administrative Member of the CAT directly to the Chairman instead of routing through the Secretary (Personnel), as being done by the others. Eventhough, the selection committee had selected the appellant and was included in the list along with Mr. N. Ramakrishnan, he was sidelined, referring to the adverse IB report in respect of some enquiry stated as pursued against the appellant. It was stated that, as per the IB report, there was an enquiry against the appellant, which made him to apply for 'voluntary retirement' from the service and came out of the service accordingly, in the year 1996. It is contended that no W.A No. 1269 of 2011 :8: enquiry whatsoever was conducted against the appellant at any point of time and there was no such need, necessity or occasion to have it pursued as well. The specific case of the appellant is that, by giving wrong and fabricated report to the section committee, and so also to the Prime Minister's Office, even the Prime Minister and the Chief Justice of India have been misled, as a result of which, the name of the appellant, who was already listed to be appointed as a member of the CAT was caused to be removed from the list. Such a course was pursued only because of personal vendetta of the officer concerned (named as Mr. A.N. Tiwari, then Secretary - Personnel, as given in paragraph 3 of the Memorandum of Appeal) against the appellant, which allegedly involve the offences of forgery and manipulation of records and hence is sought to be enquired into, through the CBI, to bring home the 'self respect' and to brush up untainted profile of the petitioner.
9. The learned counsel also submits that, the question of jurisdiction was never raised by the respondents at any point of time, when the writ petition was considered and finalized and W.A No. 1269 of 2011 :9: even otherwise, it is stated that the decision taken to remove the appellant from the list was taken only in the meeting of the selection committee held at Ernakulam on 24th September, 2005; that part of the cause of action has arisen at Ernakulam as well and hence this Court is entitled to proceed. With regard to the merits involved, the learned counsel submits that, much of the materials could be collected, only by invoking the provisions under the Right to Information Act ('RTI' Act in short), which revealed that no enquiry was conducted against the appellant, as alleged. It is also pointed out that there was no such case for the respondents, when the Government of India filed their counter affidavit (Ext.P2) in the earlier round of litigation i.e. W.P.(C) No. 16915 of 2005. The only case therein was that, the claim of the writ petitioner to be appointed as a member of the "Kochi Bench" of the CAT was not liable to be entertained, as the selection was never confined to any particular Bench and that the person selected could be appointed in any of the Benches of the CAT in India. It was stated in the said counter affidavit, that W.A No. 1269 of 2011 :10: the contention of the writ petitioner that the selection committee headed by the Honourable Mr. Justice K.G. Balakrishnan during the month of October, 2005 had recommended his name along with Sri. N. Ramakrishnan, IAS, to be considered for the two available vacancies in CAT Kochi, cannot be accepted as correct. In paragraph 4 of Ext. P2 counter affidavit, it was only stated that, there was no allegation of malafides or any instance of malafides in the process of selection and that the allegations in the writ petition were quite flimsy, baseless and unsustainable.
10. The learned counsel for the appellant refers to Ext. P3 reply given under the RTI Act to the counsel engaged by the appellant. Clauses 2 and 6 of the same are relevant, which read as follows :
(2) Offer of appointment is made to the candidates recommended by the Selection Committee subject to the clearance from the I.B. and approval of ACC. In case there is no favourable report from IB or ACC approval is not received in respect of a candidate recommended by the Selection Committee, the offer is made to the candidate from the waiting list.
W.A No. 1269 of 2011 :11: (6) Selection Committee only recommends candidates for appointments. Only those candidates recommended by the Selection Committee who are clear from IB and whose appointment is approved by ACC are given offer of appointments.
Referring to the IB report and the observations, as contained in the said documents, the learned counsel submits that, the above observations could not have barred the way in selecting/appointing the appellant. With reference to Ext. P4 information dated 26.06.2008, supplied under the RTI Act, the learned counsel submits that the authority concerned in the office of the Comptroller and Auditor General of India, New Delhi had confirmed that no enquiry had actually been made in connection with the 'recruitment of contingent staff', with regard to which, the appellant was sought to be connected as mentioned in the IB report. Based on the adverse IB report, the earlier recommendation to appoint the petitioner as an Administrative Member of the CAT was caused to be withdrawn, as per Ext. P5 minutes of the 50th meeting of the selection committee, reviewing W.A No. 1269 of 2011 :12: the selection. It is stated therein, that the said committee was constituted with Justice K.G. Balakrishnan as the Chairman (Nominee of the Chief Justice of India) on 24.09.2005 at Ernakulam, though the time and venue are not mentioned specifically, details of which are stated as not available, as per Ext. P6 reply given to the appellant under the RTI Act. As per Ext. P6, it was also communicated that the records showing the notice for the 50th meeting of the selection committee held on 24.09.2005 and the report furnished to it were not available in the department. It was also stated that, the IB report, along with its forwarding letter, was 'top secret' and the same could not be parted with. Ext. P5 finding of the reviewing selection committee was forwarded by the Secretary to the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training (DOPT), to the Chief Justice of India, requesting to concur with the recommendation and to withdraw the earlier recommendation of appointment of the appellant, which is stated as granted and accordingly, the appellant was W.A No. 1269 of 2011 :13: removed from the list. The learned counsel also places reliance on the decisions such as; Common Cause, A Registered Society Vs. Union of India [(1999) 6 SCC 667)], Secretary, Minor Irrigation & Rural Engineering Services, U.P. and Others Vs. Sahngoo Ram Arya and another [(2002) 5 SCC
521)], P. Vijayan Vs. State of Kerala and another [(2010) 2 SCC 398], State of West Bengal and Others Vs. Committee for Protection of Democratic Rights, West Bengal and others [(2010) 3 SCC 571) and Asok Kumar Todi Vs. Kishwar Jahan and Others [(2011) 3 SCC 758], for substantiating that this Court is having jurisdiction to decide the issue.
11. Mr. P. Parameswran Nair, the learned Assistant Solicitor General submits that there is absolutely no merit or bonafides in the case, as the IB report was based on the actual facts and figures, which is very much discernible from the relevant files. The learned ASG has also made available two different files, one bearing No. A 11013/13/2004-AT of the W.A No. 1269 of 2011 :14: Ministry of Personnel, Public Grievances and Pensions (DOPT), containing the proceedings, including that of the selection committee and the other one bearing No. AC(N)/Sectt - 25-95 from the office of the Comptroller and Auditor General of India. The learned Assistant Solicitor General submits that there were serious complains with regard to the appointment of some casual labourers related to the staff of the Accountant General's office and such 'en-amass recruitments' were effected during the tenure of the appellant, while he was holding the office of the Accountant General at Thiruvananthapuram. It is stated that, based on the complaints and further correspondences, the Comptroller and Auditor General at New Delhi had ordered an 'Enquiry' to be conducted into the matter, so as to unearth the actual facts and figures. The complaints, paper reports, the various correspondences between the authorities concerned and the order passed by the CAG, as included in the second file, are produced for perusal of the Court. The learned ASG also submits that the appellant has chosen the wrong forum and that this W.A No. 1269 of 2011 :15: Court is not having territorial jurisdiction to deal with the issue, in view of the admitted pleadings and proceedings. Reliance is sought to be placed on the decisions rendered by the Apex Court in Oil and Natural Gas Commission Vs Utpal Kumar Basu and Others [(1994) 4 SCC 711], Kusum Ingots and Alloys Ltd. Vs. Union of India and another [(2004) 6 SCC 254) and that of a Division Bench of this Court in Capt. B.S. Prakash Vs. Food Corporation of India (2007 (4) KLT 895) etc.
12. Mr. P. Chandrasekhara Pillai, the learned standing counsel for the CBI supports the learned Assistant Solicitor General with regard to the question of jurisdiction and also on other incidental aspects.
13. After hearing both the sides, this Court finds that the primary question to be considered is with regard to the jurisdiction, rather than on merits. In paragraph 3 of the memorandum of appeal, the petitioner has contended that the adverse observations against him in Ext. P3, were fabricated at the instance of the Secretary (Personnel), "Mr. A.N. Tiwari", who W.A No. 1269 of 2011 :16: was having grudge against the appellant, especially because the appellant had applied for the post directly to the Chairman of the CAT, without forwarding through the Secretary (Personnel), as is normally done by others. It is stated that the finding incorporated in Ext. P3 that the appellant had to face an enquiry in connection with the recruitment of some contingency staff, while working as Accountant General of Kerala, was palpably wrong and no such enquiry was ordered into the matter by the Comptroller and Auditor General of India at any point of time. In paragraph 4, the appellant submits that Mr. K. J. Alphons, IAS might have colluded with Mr. A.N. Tiwari, Secretary (Personnel) and concocted the allegations against the appellant and the conspiracy hatched between the two, with deliberate and malafide intention to sabotage the appellant's appointment. In paragraph 5, the appellant says that the comments in Ext. P3 are motivated by bias, prejudice and malice caused to be made under pressure from a superior officer Mr. A.N. Tiwari, Secretary (personnel). After having fabricated the documents as above, W.A No. 1269 of 2011 :17: they some how managed to get the approval of the Prime Minister to reject the selection committee's recommendation and that the Prime Minister's rejection of the Selection Committee's recommendation, before it was submitted to the Hon'ble Chief Justice of India, amounted to usurping the primacy of appointment. In paragraph 6, the appellant submits that, after having obtained the approval of the Prime Minister for rejecting the appellant's selection, the file was put up before the Hon'ble Chief Justice of India, who in June, 2005 ordered a verification by the Selection Committee, on the adverse report furnished by the Secretary (Personnel). It was thereafter, that the matter was committed to the 'review selection committee' met at Ernakulam and the recommendation of the said committee, to delete the name of the appellant from the select list, was concurred by the Chief Justice of India. In Ground B, the appellant submits that the minutes of the selection committee meeting containing the recommendation to drop the name of the appellant from the select list for appointment as a member of the Central W.A No. 1269 of 2011 :18: Administrative Tribunal itself is a forged document and that the Hon'ble Chief Justice of India concurred with the proposal to 'unselect' the appellant relying on the fraudulent inputs furnished by Mr. A.N. Tiwari, the then Secretary (Personnel), resulting in denial of fundamental right of the appellant for equal opportunity with Mr. N. Ramakrishnan, IAS for appointment as CAT member. In Ground E, the appellant submits that, there is 'double forgery' perpetrated by Mr. A.N. Tiwari, then Secretary (personnel), which cannot be investigated by an ordinary policeman, simultaneously adding that the appellant is not seeking appointment as CAT member, but craves for justice in public interest, so that such nefarious crimes are not repeated by men in high positions.
14. From the above, it is clear that, the entire insinuation made by the appellant is against 'Mr. A. N. Tiwari', the then Secretary (Personnel), who is in Delhi. The falsification of the documents, presentation of the same before the Prime Minister, submission of the same before the Chief Justice of India for reconsideration and the subsequent steps have also taken place W.A No. 1269 of 2011 :19: in Delhi. This being the position, the alleged offence of forgery or fraud, whatever it may be, can be considered as arisen only at Delhi and not anywhere in Kerala. As it stands so, this Court does not have jurisdiction to entertain the matter or to grant relief to the petitioner, in respect of the offence/crime stated as committed by the persons concerned in Delhi. That apart, in spite of serious allegations raised against Mr. A.N. Tiwarai, the appellant has not chosen to implead him in the party array. Similarly, he has not impleaded the IB or any other authority concerned, who according to the petitioner was instrumental to the case in hand. In view of the law declared by the Apex Court in (1994) 4 SCC 711 (cited supra), (2004) 6 SCC 254) (cited supra) and also by a Division Bench of this Court in 2007 (4) KLT 895 (cited supra), this Court holds that, the issue is outside the jurisdiction of this Court. The position is answered against the petitioner.
15. Having answered the question of jurisdiction, this Court could have laid things to rest there. But this Court finds it W.A No. 1269 of 2011 :20: necessary to go into the other aspects as well, particularly as to the basis for the IB report, in view of the fact that the concerned files, both from the Ministry and from the Comptroller and Auditor General of India have been caused to be produced before this Court, at the instance of the appellant. Going by the contents of the file produced from the Ministry, it is seen that, three persons including the appellant and Mr. N. Ramakrishnan IAS were caused to be enlisted for selection and appointment as the Administrative Members of the CAT. In the case of the two persons placed in the select list at serial Nos. 1 and 2, they are still holding the office as the Secretary, Department of Information Technology and the Principal Secretary of Home and Vigilance, Government of Kerala, Thiruvananthapuram respectively and as such, their confidential reports and such other materials are very much available. Unlike this, in the case of the appellant, he had proceeded on voluntary retirement as early as in the year 1996 and since his consideration was being done in the year 2004 -'05, he could only be treated as a person from the public. This W.A No. 1269 of 2011 :21: necessitated to procure 'IB verification report', which was ordered. The IB, in turn, gave a detailed report, along with a covering letter on 17.12.2004. The file of the Ministry shows that the report of the IB was considered, when it was noted that the instances other than the alleged illegal recruitment of casual labourers, were not of much consequence/significance. Even in the case of the appointment of casual labourers, it was observed that the matter could not be decided or inferred that the appellant was guilty, for having proceeded on voluntary retirement, pursuant to the enquiry ordered. But still, it was a fact to be reckoned, to see whether the person concerned was having an 'untainted figure' and status, especially with regard to appointment to a post like that of a judicial member of the CAT. It was in the said circumstances, that the entire facts and figures were put to further analysis and the review selection committee decided to remove the name of the appellant from the select list, which recommendation was accepted by the Hon'ble Chief Justice of India, leading to removal of the appellant from the select list. W.A No. 1269 of 2011 :22: The 'notes' in the file are quite in order and it does not suffer from any infirmity, either with regard to the sequence of events or as to the contents.
16. Coming to the basis for the IB report, the file forwarded from the office of the Comptroller and Auditor General of India throws light into it. It is seen that various correspondence/communications were there, between the AG's Office, at Thiruvananthapuram and the CAG's office in New Delhi and some News paper reports and such other materials are also placed in the file. In March, 1995, certain complaints were received, regarding engagement of casual employees in the office of the Accountant General (A&E), Kerala and in June 1995, similar complaints were forwarded from the President's Secretariat as well. This was with regard to the en-mass appointment of the casual labourers during the tenure of the appellant as the Accountant General (A & E), who was continuing in the office, till February, 1995. It is said, in all, 133 casual labourers were engaged by that office, without the knowledge of the Comptroller W.A No. 1269 of 2011 :23: and Auditor General, who asked for a detailed report, advising the concerned authority to disengage all the casual employees. Accordingly, 71 casual employees were disengaged and 62 employees, who were already granted 'Temporary Status' as per DOPT O.M. dated 10.09.93 and the clarification dated 12.07.94, were retained. The above 62 persons, who are given 'Temporary Status' by the Accountant General, were not sponsored through the employment exchange. The Accountant General was advised to withdraw the Temporary Status after issuance of show-cause notice, aggrieved of which, the concerned employees filed a representation and approached the CAT, Ernakulam, challenging the proposed action of the Accountant General to cancel the Temporary Status given to them, by filing O.A. No. 1154 of 1995. As per the order dated 11.09.95, the CAT observed that, the applicants had to approach the competent authority i.e. DOPT at the first instance and consequential direction was given to the 3rd respondent/DOPT to consider and finalize the matter in accordance with law, simultaneously granting an order of 'status W.A No. 1269 of 2011 :24: quo' till such time.
17. By this time, the appellant, on leaving the office as the Accountant General, had joined duty as Joint Secretary to the Government of India, DOPT in March, 1996. Pursuant to the directions given by the Tribunal, the "appellant", in such capacity, passed a speaking order, referring to the sequence of events and the Comptroller and Auditor General office was advised that 'status quo' might be maintained in this regard. On 19.04.1996, the appellant requested that, he might be permitted to retire voluntarily, due to personal reasons w.e.f 30.04.1996, which in turn was accepted, vide the Ministry of Finance, Department of Expenditure, letter No. A 38011/1/96/AG dated 01.05.1996. As a result of this, no departmental enquiry was conducted against the appellant under CCS(CCA) Rules. But the fact remains, that there was quite a lot of correspondence/proceedings in this regard, between the authorities of the CAG's office in New Delhi and AG's Office at Thiruvananthapuram. Copies of various Complaints, Statement of facts, anonymous letters, News paper W.A No. 1269 of 2011 :25: reports in the Malayala Manorama Daily, 'Notice' dated 13.03.2005 issued by the NGO Association of the A.G's office as to the irregular appointments and such other materials were forwarded to the CAG's Office, which form part of the file. It was in the said circumstances, that the detailed 'Notes' were made on different dates and finally, considering the same, it was suggested to conduct a detailed enquiry as to the employment of casual labourers as well as grant of temporary status to the casual labourers in the Office of the A.G (A&E), Kerala. This 'Note' suggestion was considered and concurred by the CAG, passing an order to conduct an 'Enquiry' as aforesaid. In short, an order was passed by the CAG in the relevant file, to conduct an enquiry into the above instance, with which the appellant is stated as connected, while he was functioning as the Accountant General (A&E), Thiruvananthapuram.
18. We are not concerned, whether the appellant was guilty or not and whether there was any basis for the allegations levelled against him; the core issue being different. It is seen W.A No. 1269 of 2011 :26: from the file, that the circumstance under which the casual labourers had to be engaged, was sought to be highlighted by the appellant himself, by writing to the office of the CAG at New Delhi, stating that, no sufficient Group D staff was there to man the sanctioned strength; that the pending work had to be completed in a time-bound manner, that the engagement was done 'through front door' and that there was absolutely no basis for the complaints or allegations. However, this remains a matter to be enquired into, so as to ascertain the truth. It was in the said circumstance, that 'Enquiry' was ordered by the CAG, though, no enquiry did take place against the appellant, pursuant to the voluntary retirement from service. Whether the matter was pursued further, by conducting an Enquiry to take the proceedings to a logical conclusion does not become the subject matter of scrutiny before this Court. This is more so, since, the employer - employee relationship is cut off, once the application for voluntary retirement is accepted. The only circumstance to be examined is, whether there was any basis for the IB report W.A No. 1269 of 2011 :27: submitted as per the direction given in this regard, as to the verification of the conduct and antecedents of the appellant, in connection with selection and appointment as an Administrative Member of the CAT, which cannot be answered in the negative, though it may not amount to finding on guilt. It was accordingly, that the selection committee arrived at the conclusion that the appellant was not fit to be included in the selection list, in view of insinuations and in turn, he was removed from the list. This does not mean that the appellant has actually committed any misconduct or offence, with regard to which, we do not express any opinion at all, as the same can be established only in an 'Enquiry'. But the fact remains that an 'Enquiry' was ordered by the CAG, as revealed from the relevant file. This being the position, it cannot be said that, anything wrong or anything contrary to the facts and figures was submitted/pointed by 'Mr. A.N Tiwari', the then Secretary (Personnel) or anybody else in the Ministry, with any malicious intention, to cause the selection committee to remove the name of the appellant from W.A No. 1269 of 2011 :28: the select list. Even otherwise, a select listed candidate does not have any vested right to be appointed, in view of the law declared by the Constitution Bench of the Apex Court in Shankarsan Dash Vs. Union of India [(1991) 3 SCC 47]. This being the position, the contentions raised by the appellant fail on merits as well.
In the above circumstances, this Court finds that there is absolutely no merit in the appeal and none of the grounds raised in support of the same does serve the purpose. Interference is declined and the writ appeal is dismissed accordingly.
The files are ordered to be returned to the learned Assistant Solicitor General.
MANJULA CHELLUR, (Ag. CHIEF JUSTICE) P. R. RAMACHANDRA MENON, (JUDGE) kmd