Kerala High Court
Dr.M.K.Ramachandran Nair vs The State Of Kerala on 30 June, 2009
Author: V.Giri
Bench: V.Giri
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 33916 of 2008(K)
1. DR.M.K.RAMACHANDRAN NAIR,
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE UNIVERSITY OF KERALA,
3. SUJITH S.S., THRIVENI, NELLANADU,
For Petitioner :SRI.S.V.RAJAN
For Respondent :SRI.GEORGE POONTHOTTAM
The Hon'ble MR. Justice V.GIRI
Dated :30/06/2009
O R D E R
V.GIRI, J.
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W.P.(C).Nos.33916, 32009, 32034,
35279 & 35426 of 2008, 298 of 2009
& W.P.(C).No.37082 of 2007
----------------------------------------
Dated this the 30th day of June, 2009.
JUDGMENT
The challenge in these writ petitions, except the last mentioned, is against an order passed by the Kerala Upa Lok Ayukta, on a complaint filed by the 2nd respondent in W.P.(C)No.32034/08, a former member of the Senate of the Kerala University, alleging that selection to the post of Assistant Grade II in the Kerala University was vitiated by serious irregularities in the conduct of the selection and favouritism and nepotism indulged in by original respondents 1 and 2 in the matter of selecting the candidates, who were ultimately appointed. The complaint was treated as an `allegation' within the meaning of Section 2(b) of the Kerala Lok Ayukta Act {for short "the Act"}.
2. The complaint originally listed only the Vice Chancellor and the Registrar of the University as W.P.(C).No.33916 of 2008 & con. Cases.
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respondents 1 and 2. The Pro-Vice Chancellor was impleaded suo motu by the Upa Lok Ayukta, at one point of time and two persons, petitions 1 and 2 in W.P. (C)No.298/09 were impleaded as respondents 4 and 5, in a representative capacity. The complainant was directed to take out notice of the complaint by paper publication. The 3rd respondent in W.P.(C)No.298/09, a Section Officer, working in the University got himself impleaded in the proceedings before the Upa Lok Ayukta. The University of Kerala was, at one point of time, impleaded as a respondent, but was later deleted from the party array. Four members of the Syndicate were impleaded as respondents 10 to 13, essentially on the ground that they were members of the selection committee. One of the candidates, who appeared in the selection, but who was unsuccessful and who in turn, had challenged the entire selection process conducted by the University in W.P.(C)No.(37082/07, got herself impleaded as additional 8th respondent in the W.P.(C).No.33916 of 2008 & con. Cases.
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proceedings before the Upa Lok Ayukta. Certain among the contesting respondents filed counter affidavits at different stages of the proceedings. The maintainability of the complaint was raised as a preliminary issue by respondents 10 to 13, and it was directed to be considered by the Upa Lok Ayukta. The University had raised the question of jurisdiction before the Upa Lok Ayukta. The petitioners in W.P.(C) No.35426/08, who were not eo-nominee parties before the Upa Lok Ayukta, had approached this court earlier challenging the action taken by the Upa Lok Ayukta in impleading two among the selected candidates, petitioners 1 and 2 in W.P.(C)No.298/09, in a representative capacity competent to represent the other candidates in the proceedings before the Upa Lok Ayukta. Their challenge was, to a considerable extent, accepted by this court. The Upa Lok Ayukta proceeded to draw up a report under Section 12(3) of the Act, inter alia, recommending that appropriate W.P.(C).No.33916 of 2008 & con. Cases.
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legal proceedings be initiated against respondents 1, 3 and additional respondents 10 to 13 as they are guilty of favouritism, nepotism and political patronage in the selection conducted to determine the suitability of the candidates as Assistant Grade II in the University. There was a further recommendation that the rank list in question and all appointments made in accordance with the rank list be set aside and the Vice Chancellor of the University should constitute a new selection board including all the members of the present selection committee and conduct a fresh test for all candidates who applied, without insisting on a fresh application.
3. The University has challenged the order passed by the Upa Lok Ayukta in W.P.(C)No.35279/08. The Vice Chancellor has challenged the same in W.P. (C)No.33916/08. The Pro-Vice Chancellor has instituted W.P.(C)No.32034/08. Persons who were impleaded in a representative capacity and the Section W.P.(C).No.33916 of 2008 & con. Cases.
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Officer of the University has come up in W.P.(C) No.298/09. Five among the selected candidates, who are not parties before the Lok Ayukta have approached this court in W.P.(C)No.35426/08.
4. One of the candidates, who had appeared, but was not selected, as mentioned above, has comprehensively challenged the entire selection process in W.P.(C)No.37082/07. I have proceeded to consider the challenge against the order passed by the Upa Lok Ayukta and since considerable materials were placed before the Upa Lok Ayukta to demonstrate that the selection, as such, was vitiated and in effect, the upholding of the order of the Upa Lok Ayukta would satisfy the grievances projected by the petitioner in W.P.(C)No.37082/07 and further on account of the fact that petitioner therein also was a party to the proceedings before the Upa Lok Ayukta and therefore a party in the other writ petitions, all these writ petitions have been heard together. But, this judgment will W.P.(C).No.33916 of 2008 & con. Cases.
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dispose of only those writ petitions involving a challenge against the order passed by the Upa Lok Ayukta and the judgment will only be treated as an order in W.P.(C)No.37082/07.
5. The facts as narrated by the petitioners, who have mounted the challenge against the order passed by the Upa Lok Ayukta, are similar and therefore, I will narrate the undisputed facts, as narrated by the learned counsel in all these writ petitions. I will refer to the order of the Upa Lok Ayukta, as has been marked in W.P.(C)No.32034/08, for the sake of convenience.
6. The Kerala University invited applications from eligible persons for selection to the post of Assistant Grade II as per notification dated 3.3.2005. Selection consisted of a written examination in an OMR format, an assessment of the hand writing carrying 5 marks and an interview to be conducted by a selection committee to be constituted by the University. Going W.P.(C).No.33916 of 2008 & con. Cases.
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by the version now placed on record by the University, more than 35000 candidates had applied in response to the notification. The written examination was held on 3.7.2005. An outside agency by name M/s.Secure Print Limited, Hyderabad (hereinafter referred to as the Outside Agency) was entrusted with the task of setting question papers. Written examination was conducted for 100 marks (Later scaled down to 75, which is also a subject matter of controversy). Going by the version given by the University and which does not seem to be seriously disputed, the candidates were required to give their answers in an OMR sheet. The OMR sheet was in two parts, one of the parts contained the details of the candidate. Going by the normal procedure adopted in these cases, that part which contains the details will be torn away from the remaining part and this will be retained by the University. The answer sheet in the OMR format will then be sent to the Outside Agency. The said answer sheets are then W.P.(C).No.33916 of 2008 & con. Cases.
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scanned and the marks obtained by individual candidates are tabulated. The OMR answer sheets were forwarded to the Outside Agency without much delay, after the conduct of the examination in the year 2005 itself. Obviously, the outside agency would have completed the evaluation of the answer sheets within a short time and it seems that the outside agency had tabulated the marks obtained by the candidates and had prepared a list of candidates along with the marks. It further seems that the soft copy of the evaluation and the results were forwarded by the outside agency to the University in the year 2005 itself. One of the areas of controversy, which was considered by the Upa Lok Ayukta was whether the OMR sheets which would have been scanned by the outside agency as such were retained by the outside agency or forwarded to the University. I should note here that the Upa Lok Ayukta has found as a fact that going by the materials on record, apart from the soft copy, giving the evaluation W.P.(C).No.33916 of 2008 & con. Cases.
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of the marks and the marks obtained by the candidates, the OMR sheets, in 7 bundles, were forwarded to the University in the year 2005 itself.
7. There was a significant hiatus for which, no reasonable explanation is forthcoming, between the completion of the written examination and the commencement of the next step forming part of the selection process. It seems that a short list of 2114 candidates was published only on 9.7.2007 i.e. two years after the conduct of the examination and evaluation by the outside agency. These candidates were interviewed from 12.11.2007 to 29.2.2008. A provisional rank list consisting of 1412 candidates was published on 8.4.2008. The maximum marks that can be secured at the time of interview was fixed as 25. But, as stated above, the written examination was conducted with a maximum marks of 100, which was later scaled down to 75. 5 marks was set apart for the hand writing of the candidate. The hand writing of the W.P.(C).No.33916 of 2008 & con. Cases.
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candidate was assessed at the time when they participated in the written examination and the same was assessed by a panel of persons outside the University. The marks obtained by a candidate in the written examination, interview and the hand writing were aggregated to form the basis of the result of the examination, which was published by the University.
8. The answer key as adopted in the written examination was published only on 25.5.2008 and on 26.5.2008, the instant complaint was filed by the 2nd respondent before the Lok Ayukta. The Upa Lok Ayukta considered the complaint on 2.6.2008; notice was directed to be issued. On 13.6.2008, the Upa Lok Ayukta passed an order suo motu impleading the Pro- Vice Chancellor as additional 3rd respondent. Thereafter on 4.7.2008 the Upa Lok Ayukta passed an order impleading two among the selected candidates as respondents 4 and 5 in a representative capacity. On 18.7.2008, the complainant filed an application for W.P.(C).No.33916 of 2008 & con. Cases.
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amending the complaint and incorporating additional reliefs 4 to 6, which read as follows:
(1) Declare that respondents 1 to 3
are unfit to hold the public
offices, which they are now
holding.
(2) Declare that the candidates,
whose names appear in the Ext.P3
are unfit to hold the post of
Assistant Grade II in the
University of Kerala and the said
rank list is to be set aside.
(3) To allow the complainant to
realise compensation from the
respondents as fixed by the
Hon'ble Lok Ayukta.
9. The order passed by the Upa Lok Ayukta allowing the application for amendment was challenged before this court in W.P.(C)No.22835/08.
This court passed an order of stay of all further proceedings pursuant to the order, allowing the amendment and impleading additional respondents 4 and 5 in a representative capacity. W.P.(C).No.33916 of 2008 & con. Cases.
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10. As I indicated at the outset, the members of the selection committee had raised an objection as against the continuance of the proceedings against them on the ground that they are not 'public servants' within the meaning of Section 2(h) of the Lok Ayukta Act. Apprehending that their objections in this regard will not be considered independently by the Lok Ayukta, they had approached this court in W.P.(C) No.27469/08. By judgment dated 17.9.2008, the petitioners therein were directed to appear before the Upa Lok Ayukta and file their written objections detailing their objections as regards the jurisdiction of the Upa Lok Ayukta to the effect that they are 'public servants' and therefore, not comprehended by the provisions of the Act. It was observed that the Upa Lok Ayukta would certainly look into their objections and take a decision before proceeding further. The objections raised by the aforementioned respondents were looked into and the Upa Lok Ayukta had passed W.P.(C).No.33916 of 2008 & con. Cases.
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an order rejecting their objections and found that they are 'public servants'. They have challenged the said order in W.P.(C)No.32009/08.
11. As I have mentioned above, petitioners 1 and 2 in W.P.(C)No.289/09, two of the selected candidates eo-nominee impleaded by the Lok Ayukta had raised a contention before the Lok Ayukta that the Lok Ayukta has no jurisdiction to implead any person in a representative capacity. It was contended that, at any rate, the Lok Ayukta had no jurisdiction to set aside a list or direct appointments already effected, to be cancelled. The Lok Ayukta had originally passed an order directing that petitioners 1 and 2 in W.P.(C) No.289/09 be treated as having been impleaded in a representative capacity and also directed a paper publication to be taken out in this regard. This order passed by the Lok Ayukta was challenged by the petitioners in W.P.(C)No.35426/08 before this court in W.P.(C)No.22835/08. They had also challenged the W.P.(C).No.33916 of 2008 & con. Cases.
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order passed by the Lok Ayukta allowing an amendment, inter alia, incorporating a relief by way of a declaration that the select list should be set aside. This court granted a stay of further proceedings before the Lok Ayukta on the strength of such impugned orders. The said interim order has been marked as Ext.P5 in W.P.(C)No.35426/08.
12. The Lok Ayukta proceeded to consider the contentions raised by the complainant as also by the University. The contentions raised by the members of the selection committee, respondents 10 to 13 were also considered. Oral evidence was adduced before the Lok Ayukta. The Lok Ayukta passed a specific order directing the OMR sheets relating to the written test to be produced before it. Though originally the University had undertaken to produce the same, later it was specifically represented that such OMR sheets were not available. The soft copy of the results along with hard copy thereof were produced before the Lok W.P.(C).No.33916 of 2008 & con. Cases.
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Ayukta. But the Lok Ayukta did not, on its own, go through such materials, but proceeded to enter an adverse finding against the University for non- production of the OMR sheets, in spite of specific directions. The Lok Ayukta also went into the question as to whether Clause (d) in the 2nd Schedule to the Lok Ayukta Act stood in the way of the Lok Ayukta considering the complaint, as the issue related to the appointment of certain 'public servants'. The Upa Lok Ayukta also went into the question as to whether respondents 10 to 13 were 'public servants' and if so, whether their actions can also be scrutinized and appropriate directions issued by the Lok Ayukta in this regard. The Upa Lok Ayukta also perused the records relating to the interview conducted by the members of the selection committee and drew inferences from the marks awarded in the interview and the aggregation of the marks secured by the individual candidates in the written examination, interview and hand writing test. W.P.(C).No.33916 of 2008 & con. Cases.
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The Upa Lok Ayukta came to the conclusion that there is an unexplained failure on the part of the University in producing the OMR sheets, which, on the basis of the materials on record, according to the Upa Lok Ayukta, were despatched by the outside evaluation agency to the competent officer of the University. It was further found that there seems to have been a deliberate attempt on the part of the members of the selection committee to pull up persons, who had not fared well in the written examination to come within the zone of consideration by awarding them unreasonably high marks in the interview. Incongruities arising from the assessment of the handwriting of the individual candidates apparently for the purpose of enabling those persons to include in the zone of consideration were also found and noted by the Upa Lok Ayukta. These findings were rendered by the Upa Lok Ayukta after summoning the outside agency. But it was found by the Upa Lok Ayukta that the second W.P.(C).No.33916 of 2008 & con. Cases.
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respondent Registrar was not a member of the Selection Committee and he was only a paid employee of the University and he was not responsible for the selection. He was, therefore, exonerated from any culpability. The Upa Lok Ayukta, thereafter, held that the entire selection as evidenced by the select list produced before it should be held to be vitiated. Direction was issued to initiate action against respondents 1 and 3 and against respondents 10 to 13. A direction was also issued to set aside the rank list and take steps to prepare a fresh select list after undertaking a procedure de novo. This has been challenged by different persons, as mentioned above.
13. As I stated at the outset the 8th respondent before the Upa Lok Ayukta, one of the candidates who had appeared in the selection had filed a written petition before this court as W.P.(C)No.37082/07 challenging the entire selection on several grounds.
This includes the manner in which the written W.P.(C).No.33916 of 2008 & con. Cases.
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examination was conducted, the constitution of the selection committee and alleged manipulations in the drawing up of final marks. I have not heard the parties finally in W.P.(C)No.37082/07, as on hearing the other writ petitions, I am satisfied that a final disposal of the said writ petition should be deferred by a certain period. I will deal with that aspect at a later stage.
14. Pleadings in these cases are, to a certain extent, repetitive and therefore, I will encapsulate the contentions taken up by the petitioners and the respondents, to understand the issues.
15. According to the petitioners:
(A) The second schedule to the Lok Ayukta Act enumerates the matters in which the Lok Ayukta cannot conduct an investigation in terms Section 8(1) of the Act. This includes action taken in respect of appointment, removal, pay, discipline, superannuation or other matters and other conditions of service of 'public servants'. What is involved in the present case, it is contended, is the action taken in W.P.(C).No.33916 of 2008 & con. Cases.
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respect of appointment of Assistant Grade II in the University. They are, therefore, exempted from an investigation under Section 8(1) of the Act.
(B) Assuming that the complaint in question could have been proceeded with, the Lok Ayukta had acted without jurisdiction in directing the select list to be set aside without the selected candidates on the party array. This court had, on an earlier occasion, held that the Lok Ayukta cannot invoke the powers under Order I Rule 8 of the CPC and direct the impleadment of any person in a representative capacity. This court had, in the decision in Nithin v.
University of Kerala {2008(4) KLT
839)}, which is a judgment inter parte, held that the Lok Ayukta cannot take any proceedings in a representative capacity, nor can the judgment of the Lok Ayukta bind the persons, who are not eo-nominee parties before it. If that be so, the direction now issued by the Lok Ayukta to set aside the select list is one rendered in the absence of the affected persons on the party array. W.P.(C).No.33916 of 2008 & con. Cases.
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This is illegal, it is contended. That findings of favouritism, nepotism and political patronage have been entered into by the Upa Lok Ayukta, without there being any materials on record and without the parties joining issues as such, on the said aspects.
(C) Members of the syndicate cannot be considered as 'public servants', as they are not specifically enumerated in Section 2(o) of the Act and consequently a direction to initiate action against respondents 10 to 13, the petitioners in W.P.(C) No.32009/08 will have to be treated as one without jurisdiction.
(D) The University should have been a party, before entering into the investigation in the manner in which it has been done. That the University was originally a party, later it was directed to be deleted from the party array. This action on the part of the Upa Lok Ayukta is illegal.
(E) Specific allegations have not been taken up before the Lok Ayukta or incorporated as part of the pleadings qua the persons impleaded or even the persons, who were originally on the party array and therefore, a proper W.P.(C).No.33916 of 2008 & con. Cases.
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investigation could not have been undertaken by the Upa Lok Ayukta as contemplated by Section 9 of the Act.
The mandatory provision under Section 9(3) of the Act requiring the Upa Lok Ayukta to conduct any investigation under the Act only after forwarding a copy of the complaint to the competent authority qua the 'public servants' in question has been violated by the Upa Lok Ayukta.
16. Thus, the aforementioned are the submissions made by the counsel for the petitioners in the above writ petitions, except W.P.(C)No.37082/07 viz., Senior Counsel M/s. K.Ramakumar, M.K.Damodaran, T.Krishnanunni, and Mr.K.Gopalakrishna Kurup, Mr.Pirappankode Sudheer along with Mr.Rajagopalan Nair and Mr.S.V.Rajan.
17. Per contra, it has been submitted by Sri.George Poonthottam and by Mr.Babu Varghese, learned counsel appearing for the complainant and the petitioner in W.P.(C)No.37082/07 that the restraint on W.P.(C).No.33916 of 2008 & con. Cases.
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the Lok Ayukta in conducting an investigation into the matters which have been enumerated in the second schedule to the Act is only "when the complaint contains a `grievance' and not when the complaint contains an `allegation' as such". This vital distinction is discernible from the reading of the statutory provisions. It is further contended that the allegation is regarding inadequate opportunity having been given to the parties before the Lok Ayukta to adduce evidence in support of their contentions. The orders passed by the Upa Lok Ayukta, at different points of time, will show that the parties were aware of the parameters of the investigation, which the Upa Lok Ayukta had drawn up and the kind of materials, which should have been made available to the respondents to resist the relief prayed for in the complaint. The allegation regarding the Upa Lok Ayukta being bereft of jurisdiction to proceed against any person in a representative capacity is also misconceived in the W.P.(C).No.33916 of 2008 & con. Cases.
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present case because, the primary purpose was conducting an investigation into the mal- administration, which had vitiated the entire selection. Apart from the technical contentions which are alleged to have been taken up by the counsel for the petitioners challenging the orders of the Upa Lok Ayukta, it is a fact that specific findings have been arrived at by the Upa Lok Ayukta as regards the political patronage, favouritism and nepotism having been vitiated the selection process. But, it is contended that the irrefutable fact is that the OMR sheets which have been despatched by the evaluation agency have inexplicably disappeared in this case. The Upa Lok Ayukta was justifiably disturbed about the state of affairs. In spite of opportunities having been granted, the University was not able to explain the glaring discrepancies in the selection process. Ultimately, justice has been done, it is contended, by giving the declaration which the Upa Lok Ayukta had thought fit. W.P.(C).No.33916 of 2008 & con. Cases.
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18. I will first deal with the contention regarding the lack of jurisdiction of the Upa Lok Ayukta to proceed with the complaint in question.
19. The allegation regarding the absence of jurisdiction is rested on a reading of Section 8(1) with Clause of the Second Schedule, both of which read as follows:
8(1) Except as hereinafter provided, the Lok Ayukta or an Upa Lok Ayukta shall not conduct any investigation under this Act, in the case of a complaint involving a grievance in respect of any action, if such action relates to any matter specified in the Second Schedule.
(d) Action taken in respect of appointment, removal, pay, discipline, superannuation or other matters relating to conditions of service of public servants but, not including actions relating to claims for pension, gratuity, provident fund or to any claims which arises on retirement, removal or termination of service."
20. It is contended that admittedly, the complaint in the present case relates to an action taken W.P.(C).No.33916 of 2008 & con. Cases.
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for the purpose of appointing certain 'public servants' viz., Assistant Grade II in the University and such actions, therefore, whether taken by a Selection Committee or by the University are investigated by the Upa Lok Ayukta under Section 8(1) of the Act. That whatever be the mal-administration on the part of the University, since the complaint in question relates to an action taken for appointment of a public servant, the Upa Lok Ayukta should have desisted from even undertaking an investigation. I do not find any substance in the above contention. Crucial distinction which separates a `grievance' from an allegation as the two terms have been defined in the Lok Ayukta Act have to be kept in mind. An `allegation' is defined in Section 2(b) of the Act. A `grievance', on the other hand, is separately defined in Section 2(h) of the Act. What distinguishes a `grievance' from an `allegation' is that the former should be contained in a claim by a person, that he has sustained an injustice or undue W.P.(C).No.33916 of 2008 & con. Cases.
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hardship due to the mal-administration. The latter viz., `allegation' in relation to a public servant can be raised by any person, who may not have any `grievance' to be redressed, qua the mal-administration concerned. But the complainant, who raises an `allegation', irrespective of whether he has suffered a personal injury from such mal-administration would nevertheless be entitled to affirm that the public servant has indulged in favouritism and nepotism and lack of integrity. In such circumstances, he would be entitled to file a complaint before the Lok Ayukta. In filing such a complaint, he does not seek the redressal of any `grievance' as such, but only makes an `allegation' against the public servant, as the term is defined under the Act. He does not seek any relief for himself. He is only interested in bringing to light acts of mal-administration and he acts in general public interest. The powers given to Lok Ayukta or the Upa Lok Ayukta under the Act are enumerated inter alia in W.P.(C).No.33916 of 2008 & con. Cases.
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Section 12 of the Act. Section 12 of the Act clearly brings out a distinction between the action to be taken after a completion of an investigation in respect of a complaint involving a '`grievance'' and in respect of a complaint involving an '`allegation''. Section 12(1) enables the Lok Ayukta, after completion of the investigation, to recommend to the competent authority the manner in which the injury or hardship that has been caused to the complainant should be remedied or redressed; but under Section 12(3) of the Act, on completion of an investigation involving an `allegation' in respect of a complaint from which it has sprung, the Lok Ayukta is empowered to draw up a report and communicate its findings, along with the relevant documents. Findings in the report are communicated to the complainant as well. On the Lok Ayukta making a recommendation, on completion of the investigation into a complaint involving an `allegation', the recommendations may also contain a W.P.(C).No.33916 of 2008 & con. Cases.
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declaration that the public servant should not hold the post. Such declaration is binding on the Governor, Government or the Chief Minister, as the case may be. But a report, qua a complaint containing an `allegation' as such does not contemplate a mandatory order by the Upa Lok Ayukta, granting any relief in favour of any person for the simple reason that the complainant in a complaint involving an `allegation' does not seek any redressal of his individual `grievance'. He is only interested in prosecuting a matter against a public servant. The proscription under Section 8(1) of the Act read with the second schedule to the Act is relatable only to a complaint involving a `grievance' and not a complaint involving an `allegation'. There seems to be a good reason why such a proscription is contained in Section 8(1) in the context of a complaint involving a `grievance'. The legislature, in its wisdom, has interdicted the Lok Ayukta or the Upa Lok Ayukta from undertaking an investigation, in the case of a complaint W.P.(C).No.33916 of 2008 & con. Cases.
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involving a `grievance' in respect of any action, which is enumerated in the second schedule, which is also part of the plenary statute. The legislature, in its wisdom, has chosen to make a distinction between a '`grievance'' and an '`allegation'' and the proscription contained in Section 8 is restricted only in respect of a case of a grievance. It is not for this court to expand the areas, which cannot be investigated into by the Lok Ayukta in terms of Section 8(1) of the Act.
21. There cannot be any doubt that the complaint filed by the first respondent in this case involves only an `allegation' and not a `grievance'. The Upa Lok Ayukta was perfectly competent to entertain the complaint and direct an investigation into the same.
22. The other contention as regards jurisdiction arises from the definition of 'public servant' as contained in Section 2(o) of the Act. The contention seems to be that respondents 10 to 13 before the Lok W.P.(C).No.33916 of 2008 & con. Cases.
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Ayukta, the petitioners in W.P.(C)No.32009/08, are not 'public servants'. The contention seems to be that the petitioners therein became members of the selection committee by reason of the fact that they were members of the Syndicate. Syndicate has a separate statutory existence and members of the Syndicate, it is contended, cannot be considered as persons in the service or pay of a statutory body.
23. The Upa Lok Ayukta has negatived this contention on the basis that members of the Syndicate would also be in the service of the University or in the pay of the University and consequently, the said petitioners would be 'public servants', within the meaning of Section 2(o)(v) of the Act. The objections raised by the petitioners in this regard, directed to be considered by this court in the judgment dated 17.9.2008, are rested on more than one ground. Firstly, that a member of the Syndicate was specifically enumerated in the Public Services Act and Public W.P.(C).No.33916 of 2008 & con. Cases.
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Mens' (Prevention of Corruption) Act and absence of such enumeration in the Lok Ayukta Act is to be treated as significant. This, the Upa Lok Ayukta had correctly found to be a contention without much significance. But, thereupon, the Upa Lok Ayukta had proceeded to straight away enter a finding that petitioners in W.P.(C)No.32009/09 are 'public servants' as defined in Section 2(o)(vii)(F) of the Act. In my view, the distinction between a 'public servant' as comprehended by Section 2(o)(vii)(F) and Section 2(o)
(v) of the Act and whether members of the Syndicate of the University can be considered as persons in the service of the University or in the pay of the University requires more elaborate consideration by the Upa Lok Ayukta. I propose to deal with the said aspect and issue a direction at a later stage, in this judgment.
24. It is then contended that the Upa Lok Ayukta had proceeded to draw a finding of nepotism, political patronage and favouritism without there being W.P.(C).No.33916 of 2008 & con. Cases.
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any materials on record. It is further contended that the Upa Lok Ayukta had no materials on the basis of such finding can be rendered qua, the persons, who are not impleaded as parties eo-nominee. A pattern in the matter of awarding of marks in the interview should not have resulted in a finding that the entire selection was vitiated or otherwise manipulated. It is contended that the findings are, therefore, vitiated.
25. There are certain aspects, which can assume the characteristics of irrefutable facts and in my view, it is appropriate that they are enumerated as to understand the contentions raised by the petitioners.
(a) Firstly, the OMR sheets relating to the written examination, which was conducted by the University have not been produced before the Upa Lok Ayukta in spite of the directions issued in that regard. W.P.(C).No.33916 of 2008 & con. Cases.
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It has not been the case of the University or respondents 1 to 3, at any point of time, before the Upa Lok Ayukta that the OMR sheets have been destroyed by a conscious decision taken by the University in that regard. There is a dispute as to whether the OMR sheets were despatched by the evaluation agency in Hyderabad and whether it has been received by the University officials in Thiruvananthapuram. Considerable efforts have been taken by the Upa Lok Ayukta in analyzing the materials placed on record, and the Upa Lok Ayukta has been right in coming to the conclusion that Exts.X5(a) to X5(b) negative the contention of the University authorities that they have not received the answer scripts (sic - OMR sheets from the evaluation agency). There has been no tenable explanation from the University officials for the serious lapse. Learned counsel for the petitioners, including the Senior counsel for the University, have not been able to point out any significant material to the contra W.P.(C).No.33916 of 2008 & con. Cases.
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to dislodge this finding of fact arrived at by the Upa Lok Ayukta.
(b) It is an irrefutable fact that though the written test was conducted in 2005, a final rank list was published only on 8.4.2008. There is not even an attempt to explain as to why there was such an significant hiatus between the conduct of the written examination and the holding of the interview. There is a gap of more than 2 years. The OMR sheets were sent to the outside evaluation agency for scanning.
Scanning of OMR sheets and evaluating the OMR sheets would have taken hardly a few days, since a software obviously would have been deployed. Going by Exts.X5(a) to X5(b), bundles of the OMR sheets along with the results of the candidates were forwarded by the evaluation agency in the year 2005 itself. If that be so, there is unexplained delay in publishing the short list of the candidates eligible for attending the interview as such. Some responsible W.P.(C).No.33916 of 2008 & con. Cases.
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official of the University owes an explanation in this regard.
(c) When a complaint was filed before the Lok Ayukta on 26.5.2008 alleging manipulations in the drawing up of the final rank list and notice was issued by the Upa Lok Ayukta, steps apparently were not taken to ascertain where the bundles of the OMR sheets sent by the evaluation agency, were actually kept. Since the `allegation' regarding irregularity in the conduct of selection process was filed on the following day of the date on which, the answers were published in the University Website, the University could not have afforded to be sanguine about the successful completion of the selection process without giving rise to any controversy whatsoever. The University was bound to retain all materials relatable to the selection process which included conduct of the written examination, for a reasonable period, after the completion of the selection, to be made available to any W.P.(C).No.33916 of 2008 & con. Cases.
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forum which had the jurisdiction to verify the regularity of the same. There is an unexplained delay on the part of the University.
26. The aforesaid finding of facts by the Upa Lok Ayukta, I am of the view, has not been dislodged by any materials which are adequate enough to draw a contrary inference.
27. The findings of facts by the Upa Lok Ayukta goes a long way to alleviate the burden which the petitioner in W.P.(C).No.37082 of 2007 has taken upon himself. If the selection process is found to be vitiated, then it goes without saying that no person shall be permitted to be a beneficiary of such a selection. To permit any such action would be a negation of Articles 14 and 16 of the Constitution of India.
28. But, I am bound to consider the contentions of the learned counsel for the petitioners as regards the regularity of the directions issued by the W.P.(C).No.33916 of 2008 & con. Cases.
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Upa Lok Ayukta and also the regularity of the procedure adopted by the Upa Lok Ayukta before entering a finding that some of the 'public servants' who are arrayed in the writ petitions, are unfit to hold the post in terms of Section 12(3) of the Act.
29. A common contention, which has been raised in this regard by the learned counsel for the petitioners is that the complaint as it was originally instituted contained general allegations regarding manipulations having been effected in the selection process at the stage of interview and hand writing assessment. A specific `allegation' regarding absence of materials by way of OMR sheets, as has been raised in the present case, really surfaced only in the proceedings undertaken by the Upa Lok Ayukta. It is contended that irregularity or illegality in the matter of conduct of written examination is different from the irregularity or serious acts of nepotism which have tainted the conduct of the interview and the ultimate W.P.(C).No.33916 of 2008 & con. Cases.
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drawing up of the results. Thus, if it is a case where the very conduct of the written examination is projected as an issue, then the complaint should have been amended and persons, who were responsible for the acts of violation and negligence or contumacious conduct on the part of the University officials/authorities, should have been specified in black and white in the complaint itself. Unless this is done, it is contended, the concerned authority would not be in a position to meet the `allegation' or produce evidence to the contra in defence of the stand or in exoneration of his liability, if any. The major portion of the argument has really turned on this requirement, which it is contended, should have formed the basis of the approach that the Lok Ayukta had taken.
30. There cannot be gainsaying the fact that the Lok Ayukta and Upa Lok Ayukta are extremely high powered bodies conferred with plenary powers in declaring any public servant unfit to hold an office. W.P.(C).No.33916 of 2008 & con. Cases.
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The powers of the Lok Ayukta extends to no less than the Chief Minister of the State. Finding in this regard by the Lok Ayukta or Upa Lok Ayukta is binding on the competent authority. The competent authority has no discretion to refuse to act as recommended by the Upa Lok Ayukta. In other words, the findings in terms of Section 12(1) or 12(3) generates statutory consequences. The process initially undertaken by the Upa Lok Ayukta is one of investigation. Section 11 of the Act deals with the powers of the Lok Ayukta to require any public servant to furnish information or produce documents relevant for the investigation. Limited powers of the Civil Court while trying a civil suit are vouchsafed in favour of the Lok Ayukta. The proceedings before a Lok Ayukta are judicial in character. The parameters which otherwise govern the proceedings before any judicial body to a large extent are applicable before the Lok Ayukta also. This includes requiring and receiving evidence on record. A W.P.(C).No.33916 of 2008 & con. Cases.
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complaint before the Lok Ayukta cannot be treated on a par with a plaint within the meaning of Section 26 of the CPC. Nevertheless, a Lok Ayukta could proceed to direct an investigation into a complaint and for the sake of such direction, the Lok Ayukta could issue a notice or summons to the concerned public servant or the competent authority qua the public servant. Where on a report forwarded by the Lok Ayukta, serious consequences befall the public servant and it might result in him vacating the office which he holds, accompanied by no less significant stigma that would be attached to a finding rendered by a high powered body like the Lok Ayukta, it is mandatory that the public servant be given an opportunity to specifically note what `allegation' he is required to meet and what is the charge he is required to be absolved of. I agree with the submission made by Sri.Poonthottam that it may not always be possible in matters like the present one, for all meticulous facts to be pleaded. Further, W.P.(C).No.33916 of 2008 & con. Cases.
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certain materials would surface only in the course of investigation as has happened in the present case where the complainant notwithstanding the fact that he was a member of the Senate was not aware of the fact that the bundles containing the OMR sheets were not available for a verification by anyone. He probably went by the manner in which the interview was held. According to him, it was vitiated by acts of nepotism and political patronage. It is further contended that the scope of enquiry and investigation undertaken by the Lok Ayukta was definitely known to the authorities of the University and they had opportunity to produce the materials to the contra.
31. No doubt, as the investigation proceeded, it became clear that the OMR sheets were not available for perusal by any other investigating agency. Whether it is available at all is a moot question. If OMR sheets are not made available, it may lead to an inference that there was irregularity in the selection. But that is W.P.(C).No.33916 of 2008 & con. Cases.
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different from saying that the results of the written examination has been tinkered with to suit the convenience of those persons, who wanted a particular result to be brought about in the selection process. If there is irregularity in the selection process, then irrespective of whether the investigating agency is actually in a position to say or pinpoint A, B or C, it might be necessary for a public authority like the University to mend its ways and take cognizance and possibly retrace the steps. But this is different from not only finding that the selection process has been vitiated, but that official A, official B or official C is responsible for such lapse. In the context of the powers that have been made available to the Upa Lok Ayukta exercisable, qua a public servant, it was necessary that these materials which surfaced in the course of the investigation or enquiry undertaken by the Upa Lok Ayukta be specified, qua those officials whom the complainant perceived to be responsible for W.P.(C).No.33916 of 2008 & con. Cases.
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such lapse. This would include respondents 1, 3 and respondents 10 to 13 (the implication of the latter being dependent on a finding that they are 'public servants' within the meaning of the Upa Lok Ayukta). If any other official of the University was responsible for such lapse, he must also be made liable for failure on his part to take appropriate action to see that the selection process is conducted properly. But what, in my view, seems to be clear going by the grave extent of power made available to the Lok Ayukta is that materials which surfaced in the course of investigation or enquiry undertaken during the proceedings pending before the Lok Ayukta, should be reflected in the complaint and obviously this could be achieved only if the complainant is given an opportunity to amend the complaint in such a manner as he deems fit. Once such amendment is made and allegations are made specifically qua any authority or official, then such authority or official or public servant, as the case may W.P.(C).No.33916 of 2008 & con. Cases.
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be, should get an opportunity to defend his case. In my view, this procedure will have to be undertaken by the Lok Ayukta at least in matters like the present one, where the complicity of a plurality of individuals is involved and the consequence of a direction issued by the Lok Ayukta would be felt by hundreds of persons. But, going through the proceedings of the Upa Lok Ayukta, also reflected in different orders passed by the Upa Lok Ayukta, prior to the final orders, I am of the view that such an opportunity has not been given either to the University or to respondents 1 to 3 or to respondents 10 to 13. I refrain from expressing any comment as regards the second respondent, because the Upa Lok Ayukta itself has exonerated him by its order. No challenge has been mounted by the complainant as regards such a step taken by the Upa Lok Ayukta.
32. The next contention that has been pursued by Mr.Gopalakrishna Kurup, essentially, is W.P.(C).No.33916 of 2008 & con. Cases.
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that the Upa Lok Ayukta went wrong in directing the select list itself to be set aside, in circumstances where the affected persons were not on the party array. It is pointed out that the petitioners in W.P.(C)No.298/09 were impleaded in a representative capacity and this action taken by the Lok Ayuktha has been set at naught in the judgment in {2008(4) KLT 839}. No doubt, the aforementioned decision came to be delivered after the Upa Lok Ayukta had passed the final order in this matter. It might have been better if the Upa Lok Ayukta had stayed its hands in passing a final order till the pronouncement of the judgment in the aforementioned writ petition. Be that as it may, since this court had, in categoric terms, held that the Upa Lok Ayukta had no jurisdiction to implead any person in a representative capacity and has also set at naught the order impleading such persons in a representative capacity as also the order allowing the amendment incorporating the declaratory relief as regards the W.P.(C).No.33916 of 2008 & con. Cases.
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same, it should follow as a sequiter that none of the beneficiaries were eo-nominee parties to the proceedings before the Upa Lok Ayukta. In other words, those persons were not parties before the Upa Lok Ayukta. If such persons cannot be impleaded in a representative capacity, then obviously the only course that is available to the complainant to ensure that a fresh select list should be prepared as a consequence of the finding that the selection as such is vitiated, would be to see that all such persons are eo-nominee made parties. All these selected candidates had been impleaded as party respondents in W.P.(C)No.37082/07 and for the present, it would suffice if I observe that the complainant would be entitled to take advantage of the fact that most of such selected candidates have entered appearance through counsel in W.P.(C) No.37082/07.
33. Mr.Gopalakrishna Kurup contends that the selected candidates cannot be considered as 'public W.P.(C).No.33916 of 2008 & con. Cases.
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servants', unless they have been appointed in that behalf and consequently there cannot be an `allegation' that they have misused their office, qua the regularity of the selection process, which was undertaken by the University. As an extension of this argument, he contends that any direction by the Upa Lok Ayukta, as regards the regularity of the selection cannot affect the rights of the selectees to hold their office, which action or the status enjoyed by them, was not the subject matter of an investigation in the complaint in the first instance. The argument is no doubt, attractive to an extent. Mr.Kurup is right in his submission that the selectees would become 'public servants' only when they join duty and a complaint raising an `allegation' into the regularity of the selection would not, by itself encompass such 'public servants' who get the status only on completion of the selection process. But, it cannot be gainsaid that the Upa Lok Ayukta, which directs an investigation to be W.P.(C).No.33916 of 2008 & con. Cases.
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conducted in the matter of selection undertaken to various posts in the University would definitely, subject to the availability of the materials in that regard, be entitled to arrive at a finding that the selection was vitiated. If the Upa Lok Ayukta affirms that the selection is bad, then it would also have jurisdiction to issue appropriate directions, within the parameters of the Act, to see that no undeserving person derives benefit from such an irregular selection. I do not propose to indicate the manner in which such direction could be issued by the Upa Lok Ayukta at this stage, because those are matters in which the parties may join issue at a later point of time, pursuant to the direction, which I propose to issue. But, I only take this opportunity to make it clear that a body like the Lok Ayukta should not be rendered powerless to see that justice is done, notwithstanding the fact that it has legitimately arrived at a conclusion that the selection undertaken by the University is otherwise vitiated. For W.P.(C).No.33916 of 2008 & con. Cases.
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the present, the matter should be allowed to rest there.
34. Mr.Gopalakrishna Kurup further submtis that the question as to whether the Upa Lok Ayukta could issue a direction to set aside the selection, was also considered by this court in {2008(4) KLT 839}. He submits that certain observations made in the said judgment would indicate the absence of jurisdiction of Upa Lok Ayukta in this regard. I do not propose to express any final opinion in this regard. Firstly, the observations made by this court in {2008(4) KLT 839} was essentially in the context of considering the powers of Upa Lok Ayukta to implead any person in a representative capacity and also permit the incorporation of a relief which would operate against persons, who are not eo-nominee parties. As a consequence of impleadment, they are made parties in a representative capacity. Secondly the nature of the directions which the Upa Lok Ayukta would be called upon to issue could have been relevant only at a later W.P.(C).No.33916 of 2008 & con. Cases.
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stage of the proceedings.
35. Mr.Gopalakrishna Kurup further points out with reference to Section 9(3) of the Act that whenever the Lok Ayukta proposes to conduct an investigation under the Act, a copy of the complaint shall be forwarded to the 'public servants' and the competent authority in this regard. He further submits that a competent authority in relation to a University has not been specified by the Government. May be, it was a lacuna on the part of the Rule making authority. But, I am of the view that the power conferred on the Lok Ayukta to conduct an investigation in terms of Section 8 read with Section 9 would not be dependent on the rule making authority specifying that they are public servants. Assuming that there is such a lacuna, it could only be a curable irregularity which will not affect the substratum of the jurisdiction exercised by the Upa Lok Ayukta.
W.P.(C).No.33916 of 2008 & con. Cases.
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36. The fairly elaborate discussion, which I have undertaken above, leads me to certain conclusions which I think, it is appropriate to summarize as hereunder:
(i) The Upa Lok Ayukta has jurisdiction to entertain, investigate and proceed with the complaint NO.572/08 filed by the complainant (2nd respondent in W.P.(C) No.32034/08) and file a report in terms of Section 12(3) of the Act.
(ii) The persons, who have been selected are eligible to be impleaded in the proceedings before the Upa Lok Ayukta eo-nominee and in doing so, the complainant would be entitled to bring it to the notice of the Upa Lok Ayukta the fact that all of them have been arrayed as respondents in W.P.(C)No.37082/07 and represented by counsel before this court.
W.P.(C).No.33916 of 2008 & con. Cases.
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(iii) It will be open to the Upa Lok Ayukta, considering the number of persons, who are to be served, to see that notice on them is served through the University Registry.
(iv) The issue regarding the non-availability and non-production of OMR sheets relating to the selection in question would be liable to be considered by the Upa Lok Ayukta and the Upa Lok Ayukta would be entitled to summon and compel the attendance of any person, including any person, who has not been hitherto made a party, to trace the missing/non-
produced OMR sheets or issue such other directions, as are necessary.
37. What I have indicated above, are the parameters that may be borne in mind by the Upa Lok Ayukta, and this I have done so in the light of the fact W.P.(C).No.33916 of 2008 & con. Cases.
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that, in my view, the matter requires reconsideration by the Upa Lok Ayukta. These directions, I propose to issue are essentially for the reason that the final directions which the Upa Lok Ayukta has issued declaring respondents 1, 3 and respondents 10 to 13 before it, as having indulged in nepotism, favouritism and political patronage; were so issued without specific allegations qua such persons being incorporated as part of the pleadings and without them getting sufficient opportunity to defend their actions individually or as members of the selection committee. Further the vitiating factors as regards the selection would be different in the case of a written examination and interview by a selection committee. It would be appropriate that specific allegations separately relatable to each part of the selection process, is brought on record so that the concerned public servant would be in a position to answer the same. An opportunity is, therefore, to be given to the W.P.(C).No.33916 of 2008 & con. Cases.
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complainant to extensively amend the complaint at a future date, subsequent to the completion of certain proceedings in relation to which I now propose to issue directions hereunder.
38. A perusal of the proceedings before the Upa Lok Ayukta would show that the soft copy regarding the evaluation conducted by the outside agency was actually produced before the Upa Lok Ayukta. But it was opened and considered essentially because the Upa Lok Ayukta felt that it is secondary evidence, within the meaning of Section 65(b) of the Evidence Act. I am of the view that the question as to whether the evaluation has, in any manner, been influenced or tinkered with or has been otherwise vitiated, is a matter that has to be specifically considered by the Upa Lok Ayukta, and it would only be appropriate that an expert body first considers these materials and places its opinion before the Upa Lok Ayukta. Further definite information could possibly be W.P.(C).No.33916 of 2008 & con. Cases.
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given by an expert in this regard, if OMR sheets are made available. The non-production of the OMR sheets, as I have repeatedly stated above, is therefore, a matter which should definitely engage the serious attention of the Upa Lok Ayukta and with respect, it has been very seriously frowned upon by the Upa Lok Ayukta even in the impugned order. But, in the light of the view which I have taken as regards the absence of specific allegations qua respondents 1 and 3 and respondents 10 to 13 (and absence of the selectees on the party array), the matter requires reconsideration by the Upa Lok Ayukta. It also follows that in doing so, the Upa Lok Ayukta would be entitled, legitimately, to consider the absence of such OMR sheets or the failure on the part of the University to produce the same as a matter of serious concern. I do not propose to dilate on this aspect because according to me, a high powered body should first conduct an enquiry or investigation arising from the missing of OMR sheet relating to the W.P.(C).No.33916 of 2008 & con. Cases.
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selection in question and a report of such body should be made available to the Upa Lok Ayukta, which obviously would be entitled to proceed further. I also remind myself of the fact that W.P.(C)No.37082/07 has been instituted by one of the candidates, who participated in the selection. This court would be called upon to consider the contentions raised therein at a later point of time. The materials which, will come to light, pursuant to the investigation which I propose to order, would be helpful to this court at the time of disposal of W.P.(C)No.37082/07.
39. The following directions are issued:
(1) The order dated 30.9.2008 of the Upa Lok Ayukta in Complaint No.572/08 shall stand set aside, for the reasons mentioned above and to the limited extent mentioned above.
(2) The Government shall, within one month from the date of receipt of a copy of this judgment, constitute a High Power Committee consisting of the following four members to conduct an W.P.(C).No.33916 of 2008 & con. Cases.
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enquiry and investigation into those aspects, which would be highlighted in the following paragraphs.
(3) The said Committee shall be headed by Mr.N.Sukumaran, Former District and Sessions Judge. The team shall include a serving Inspector General of Police.
It shall also comprise an expert in the field of Software and Computers. The software expert may be chosen by the Chairman. The 4th member of the team shall be a Government servant, holding a rank not lower than the Principal Secretary of one of the Departments of Government, viz., Higher Education Department, General Education Department or the Home Department, as the case may be.
(4) The team, as directed above, shall
require an investigation to be
conducted into the following aspects, among others.
(a) Whether OMR sheets relating to the written examination conducted as part of the selection to the post of Assistant Grade II held on 3.7.2005 were delivered to the W.P.(C).No.33916 of 2008 & con. Cases.
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Kerala University and if so delivered, when it was so done.
(b) If they have been so delivered at the University, the whereabouts of the same and the reasons for the non-production of the same before the Upa Lok Ayukta by the University officials, in spite of the same being summoned.
(c) If the OMR sheets are missing, then the persons, who are responsible for not having taken adequate precaution or who were responsible or who are otherwise guilty for the missing of such OMR sheets.
(d) To cause a verification to be done as regards the evaluation undertaken and completed by the outside agency M/s.Secure Printers, Hyderabad; Obviously, the investigation team will be entitled to summon the representatives of the evaluation agency and see that a verification is done effectively.
(e) The details regarding the decision taken by the University for W.P.(C).No.33916 of 2008 & con. Cases.
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preparing a short list of 2114 candidates.
(f) Reasons for the delay in the conduct of interview, in spite of the completion of the written examination in 2005.
(g) Details regarding the assessment of hand writing, done by the outside agency, who had evaluated the hand writing of the candidates.
(h) The details of the decision taken by the University as regards the constitution of the selection committee, who had conducted interview of the candidates.
(i) The procedure adopted by the members of the selection committee in awarding marks to the individual candidates, who had participated in the interview.
(j) A thorough investigation into the allegations that persons who had an official say in the affairs of the University had influenced the aggregation of the marks secured by the candidates, who had appeared in the interview and that W.P.(C).No.33916 of 2008 & con. Cases.
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this was with an intention to pull up the candidates who had not fared well in the written examination, within the zone of consideration.
(k) Whether the interview conducted by the selection committee was otherwise regular, disciplined and proper.
(l) To verify the correctness of the answer key which was published by the University, after the conclusion of the selection and in doing so, the delay in publishing the answer key in spite of the fact that the written examination was conducted in September, 2005 shall be probed into.
40. The committee constituted as per the direction mentioned above in paragraph 3 above, will oversee the investigation to be conducted by such persons in the police force as are deemed appropriate by the committee. It is made clear that the committee would be entitled to approach this court seeking a W.P.(C).No.33916 of 2008 & con. Cases.
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clarification on any one of the aspects mentioned or any other aspects which may arise in the course of the investigation by making an appropriate motion in W.P. (C)No.37082/07, which will continue to remain on the files of this court.
41. On conclusion of the investigation, the report shall be compiled by the High Power Committee constituted as directed above and the same shall be produced before this court in W.P.(C)No.37082/07 and shall also be produced before Upa Lok Ayukta in Complaint No.575/08.
42. Copies of the said report shall be made available to the complainant or any one of the contesting respondents in the complaint, on a request made by them. The complainant would be at liberty to seek an amendment of the complaint in such manner as he deems fit in this regard.
43. The Upa Lok Ayukta shall, thereafter, treat the investigation report as one compiled and W.P.(C).No.33916 of 2008 & con. Cases.
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submitted before it in terms of Section 9 of the Lok Ayukta Act and shall be entitled to rely on the same for further enabling it to draw up a final report under Section 12(3) of the Act.
44. If the complainant chooses to amend the complaint and implead the selectees as he is permitted to do herein above, then the contesting respondents shall be allowed to file counter affidavits. The parties shall be entitled to adduce such further evidence as they deem fit.
45. On the conclusion of the proceedings, the Upa Lok Ayukta shall, thereafter, proceed to draw up a final report in terms of Section 12(3) of the Act, which needless to say, will have the consequences as contemplated by the statute.
46. The High Power Committee shall also be entitled to call for any materials from any person, including any one of the candidates, who had appeared for the selection, as also the complainant before the W.P.(C).No.33916 of 2008 & con. Cases.
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Upa Lok Ayukta. It is up to them to sift and verify the materials made available to them and decide upon the appropriate course of action.
47. All the writ petitions, except W.P.(C) No.37082/07 are disposed of as above.
48. This judgment shall be treated as an order in W.P.(C)No.37082/07, which shall be posted for further hearing, after the completion of the steps, which are mentioned above. None of the selected candidates shall be further promoted during the pendency of final disposal of W.P.(C)No.37082/07, except after getting orders from the court.
The High Power Committee shall see that the investigation, as mentioned above, is completed within a period of four months from the date of receipt of a copy of this judgment. The expenses incurred by the High Power Committee for their meetings including clerical expenditure required by them shall be borne by the University of Kerala, who shall make the payment W.P.(C).No.33916 of 2008 & con. Cases.
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on a communication sent to them by the Chairman of the High Power Committee. Except Mr.N.Sukumaran, other members are 'public servants'. Therefore, I do not think it is appropriate to fix any remuneration for the services which they would render as members of the committee. But, in the first instance, the University shall deposit an amount of Rs.1 lakh with the Chairman of the Committee, Mr.N.Sukumaran, to enable the committee to meet its expenditure. The remuneration of Mr.N.Sukumaran will be decided at a later stage.
Sd/-
(V.GIRI) JUDGE sk/ //true copy//