Kerala High Court
Dr. Jasmine Alex vs State Of Kerala on 8 November, 2016
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
THURSDAY, THE 17TH DAY OF AUGUST 2017/26TH SRAVANA, 1939
WP(C).No. 1994 of 2017 (Y)
---------------------------
PETITIONER :
----------
DR. JASMINE ALEX, AGED 45 YEARS,
ARTHANAKUNNEL NIRMALALAYAM,
VALLICHIRA P.O, KOTTAYAM - 686 574.
BY ADVS.SRI.SANTHOSH MATHEW
SRI.ARUN THOMAS
SRI.JENNIS STEPHEN
SRI.ALPHIN ANTONY
SRI.VIJAY V. PAUL
SMT.MARIA ROY
RESPONDENTS :
-----------
1. STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT,
SOCIAL JUSTICE DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2. THE SECRETARY TO GOVERNMENT
SOCIAL JUSTICE DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
*ADDL.R3 TO R8 IMPLEADED :
3. T.B.SURESH MEMBER (WAYANAD),
KERALA STATE COMMISSION FOR
PROTECTION OF CHILD RIGHTS,
"SREEGAESH", T.C.14/2036, VANCROSS JUNCTION,
THIRUVANANTHAPURAM - 695034.
WP(C).No. 1994 of 2017 (Y)
---------------------------
4. SREELA MENON N,MEMBER (KOZHIKODE),
KERALA STATE COMMISSION FOR
PROTECTION OF CHILD RIGHTS "SREEGANESH",
T.C.14/2036, VANCROSS JUNCTION,
THIRUVANANTHAPURAM - 695034.
5. SYAMALA DEVI, MEMBER (KOZHIKODE),
KERALA STATE COMMISSION FOR
PROTECTION OF CHILD RIGHTS "SREEGANESH",
T.C.14/2036, VANCROSS JUNCTION,
THIRUVANANTHAPURAM - 695034.
6. M.P.ANTONY, MEMBER (KOZHIKODE),
KERALA STATE COMMISSION FOR
PROTECTION OF CHILD RIGHTS "SREEGANESH",
T.C.14/2036, VANCROSS JUNCTION,
THIRUVANANTHAPURAM - 695034.
7. C.J.ANTONY,MEMBER (KOLLAM),
KERALA STATE COMMISSION FOR
PROTECTION OF CHILD RIGHTS "SREEGANESH",
T.C.14/2036, VANCROSS JUNCTION,
THIRUVANANTHAPURAM - 695034.
8. SR.BIJI JOSE, MEMBER (IDUKKI),
KERALA STATE COMMISSION FOR
PROTECTION OF CHILD RIGHTS "SREEGANESH",
T.C.14/2036, VANCROSS JUNCTION,
THIRUVANANTHAPURAM - 695034.
*ADDL.R3 TO R8 ARE IMPLEADED AS PER ORDER
DT 5/7/2017 IN IA 10460/2017.
R1 & R2 BY SRI. RENJITH THAMPAN, ADGP
R3 BY ADV. SRI.P.C.SASIDHARAN
ADDL.R4 BY ADV. SRI.T.B.HOOD
BY ADV. SMT.M.ISHA
ADDL.R5 BY ADV. SRI.M.SASINDRAN
ADDL.R6 BY SRI.KURIAN GEORGE KANNANTHANAM
SENIOR ADVOCATE
BY ADV. SRI.TONY GEORGE KANNANTHANAM
ADDL. R7 & R8 BY ADVS. SRI.B.KRISHNA MANI
SRI.RAHUL VENUGOPAL
SMT.N.V.SANDHYA
SRI.SIJU RAJAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 04/08/2017, THE COURT ON 17-08-2017
DELIVERED THE FOLLOWING:
bp
WP(C).No. 1994 of 2017 (Y)
---------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
-----------------------
EXHIBIT P1: TRUE COPY OF THE NOTIFICATION DATED
8-11-2016 ISSUED BY THE SECOND RESPONDENT
INVITING APPLICATIONS FOR THE POST OF
MEMBERS OF THE KERALA STATE COMMISSION
FOR PROTECTION OF CHILD RIGHTS.
EXHIBIT P2: TRUE COPY OF THE APPLICATION SUBMITTED BY
THE PETITIONER THROUGH PROPER CHANNEL
ALONG WITH HER BIO-DATA PURSUANT TO
EXHIBIT P1 NOTIFICATION.
EXHIBIT P3: TRUE COPY OF THE NOTIFICATION ISSUED BY
THE SECOND RESPONDENT ON 10-1-2017
INVITING APPLICATION FOR THE POST OF
MEMBERS OF THE KERALA STATE COMMISSION
FOR PROTECTION OF CHILD RIGHTS.
EXHIBIT P4: TRUE COPY OF THE PRESS RELEASE DT
2/5/2017 ISSUED BY KERALA STATE
COMMISSION FOR PROTECTION OF CHILD
RIGHTS.
ADDL.EXT P5: TRUE COPY OF THE ORDER BEARING NO.
G.O.RT/114/2017/SJD DT 6/3/2017 ISSUED BY
THE R1.
ADDL.EXT P6: TRUE COPY OF THE ARTICLE PUBLISHED IN
'DECCAN CHRONICLE' DAILY ON 3/5/2017.
EXHIBIT P7: TRUE COPY OF THE GOVERNMENT ORDER GO(P)
NO. 6/2017/SJD DT 29/4/2017
RESPONDENT(S)' EXHIBITS :
-----------------------
EXT.R2(a): COPY OF THE ORDER DT 5/4/2017 ISSUED BY
THE HON'BLE SUPREME COURT IN WPC 473/2005.
EXT.R2(b): COPY OF THE GAZETTE NOTIFICATION DT
29/4/2017.
EXT.R2(c): COPY OF THE NOTICE TO 12/1/2017 PUBLISHED
IN THE VERNACULAR DAILY.
WP(C).No. 1994 of 2017 (Y)
---------------------------
EXT.R2(d): COPY OF THE INTERIM ORDER PASSED BY THE
HON'BLE APEX COURT IN WPC NO.473/2005
DATED 11/07/2017
EXT.R2(e): COPY OF THE RELEVANT PAGE OF THE
NOTIFICATION DATED 04/10/2012.
EXT.R3(a): COPY OF THE JUDGMENT IN CC NO. 540 OF 2014
DT 24/1/2015
EXT.R7(a): COPY OF THE CERTIFICATE DT NIL.
EXT.R7(b): COPY OF THE CERTIFICATE DT 14/3/88 ISSUED
BY THE NATIONAL COUNCIL FOR VOCATIONAL
TRAINING, MINISTRY OF LABOUR, GOVERNMENT
OF INDIA
EXT.R7(c): COPY OF THE IDENTITY CARD ISSUED BY THE
DIRECTORATE OF SOCIAL WELFARE, GOVERNMENT
OF KERALA.
EXT.R7(d): COPY OF THE CERTIFICATE DT 21/2/2017.
EXT.R7(e): COPY OF THE IDENTITY CARD ISSUED BY THE
SOCIAL JUSTICE DEPARTMENT, GOVERNMENT OF
KERALA.
EXT.R7(f): COPY OF THE NOTIFICATION DT 27/12/2011
RELEVANT PAGES.
EXT.R7(g): COPY OF THE LETTER OF APPRECIATION DT
1/02/2017 ISSUED BY THE KOLLAM SOCIAL
SERVICE SOCIETY.
EXT.R8(a): COPY OF THE CERTIFICATE DT NIL.
EXT.R8(b): COPY OF THE CERTIFICATE DATED NIL.
EXT.R8(c): COPY OF THE CERTIFICATE DATED NIL.
WP(C).No. 1994 of 2017 (Y)
EXT.R8(d): COPY OF THE CERTIFICATE PERTAINING TO HER
PARTICIPATION IN A SEMINAR ON CHILD
LABOUR.
EXT.P8(e): COPY OF THE CERTIFICATE OF APPRECIATION DT
NIL.
//TRUE COPY//
P.A. TO JUDGE
bp
P.B.SURESH KUMAR, J.
= = = = = = = = = = = = = = =
W.P.(C).No.1994 of 2017-Y.
= = = = = = = = = = = = = = =
Dated this the 17th day of August, 2017.
J U D G M E N T
This matter relates to the selection process undertaken by the State Government for appointment of members in the Kerala State Commission for Protection of Child Rights ('the Commission') constituted under the Commissions for Protection of Child Rights Act, 2005 ('the Act').
2. On 08.11.2016, applications have been invited by the Government for appointment as Members of the Commission as per Ext.P1 notification. The number of vacancies notified were six. It is specified in Ext.P1 notification that the applications should reach the Government before 5.00 p.m. on 30.11.2016 and that belated applications will not be entertained under any circumstances. The petitioner is one of the candidates applied for appointment as the Member of the Commission in response to Ext.P1 notification. On 12.01.2017, the Government notified in WP.(C).No.1994/2017-Y. 2 newspapers that the time stipulated in Ext.P1 notification for submission of applications is extended till 20.01.2017. In the notice published by the Government in this connection, it is mentioned that further details regarding the same are available in the website mentioned therein. In the website mentioned in the notice published on 12.01.2017, another notification on the same lines of Ext.P1 was made available. Ext.P3 is the said notification. The only change brought about in Ext.P3 notification was as regards the last date fixed for submission of applications. The last date fixed for submission of applications in terms of Ext.P3 notification was 20.01.2017. The case of the petitioner is that Ext.P1 notification was one issued sufficiently in advance in anticipation of the vacancies that would arise in the Commission on 07.01.2017 with a view to ensure the uninterrupted functioning of the Commission and there was, therefore, absolutely no reason at all for the Government to extend the last day fixed for submission of the applications beyond 07.01.2017. According to the petitioner, Ext.P3 notification is one issued with the ulterior intention of appointing candidates in whom the WP.(C).No.1994/2017-Y. 3 Government is interested, as members of the Commission. It is the specific case of the petitioner that in the light of the provisions contained in the Act and the Kerala State Commission for Protection of Child Rights Rules, 2012 ('the Rules'), persons of the choice of the Government cannot be appointed as Members of the Commission. The petitioner, therefore, challenges Ext.P3 notification as arbitrary and vitiated by malice. The petitioner also seeks directions to the Government to complete the selection process initiated pursuant to Ext.P1 notification, ignoring the applications received pursuant to Ext.P3 notification.
3. On 19.01.2017, this Court passed an interim order directing the respondents to refrain from finalising the proceedings pursuant to Ext.P3 notification for a period of two months and the said order was extended later, from time to time. Despite the said interim order, the vacancies of the Members in the Commission were filled up by the Government on 29.04.2017. The persons who were appointed as Members of the Commission on 29.04.2017 were, thereupon, impleaded by the petitioner as additional respondents 3 to 8 in the writ petition. WP.(C).No.1994/2017-Y. 4
4. Three counter affidavits have been filed on behalf of the Government in this matter. In the first counter affidavit dated 18.04.2017, it was contended by the Government that that Ext.P3 notification was issued since 103 applications received pursuant to Ext.P1 notification were not sufficient for a competitive selection. It is stated in the said counter affidavit that 51 more applications have been received pursuant to Ext.P3 notification and the short list of the candidates for selection has been prepared from among the 154 applications received pursuant to both Exts.P1 and P3 notifications. The second counter affidavit dated 05.07.2017 was in fact filed by the Government explaining the circumstances which led to the appointment of additional respondents 3 to 8 as Members of the Commission. It is stated in the said counter affidavit that during the pendency of the writ petition, as per Ext.R2(a) order, the Apex Court directed all State Governments to fill up the vacancies of Chair Person/Members of the Commission and additional respondents 3 to 8 have been appointed in the light of the said order of the Apex Court. In the third counter affidavit WP.(C).No.1994/2017-Y. 5 dated 01.08.2017, it was contended by the Government that only 40 candidates were found eligible among the 103 applicants pursuant to Ext.P1 notification; that a list of 18 candidates had to be prepared including 12 wait list candidates; that sufficient number of candidates were not available from all districts and that it is in the said circumstances that the last date for submission of the applications was extended by virtue of Ext.P3 notification. It is stated in the said counter affidavit that only two candidates were selected and appointed from among the applicants pursuant to Ext.P3 notification. The particulars of the said two candidates are, however, not disclosed in the said counter affidavit.
5. Separate counter affidavits have been filed by additional respondents 4, 7 and 8 stating that all of them are persons applied for selection pursuant to Ext.P1 notification and there is no illegality, whatsoever, in their selection.
6. A reply affidavit has been filed by the petitioner to the counter affidavit filed by the Government, on 02.08.2017 stating that the Selection Committee was biased for having WP.(C).No.1994/2017-Y. 6 instituted the writ petition challenging the selection process and she was consequently awarded only negligible marks in the interview, though she was better qualified when compared to the other applicants.
7. In the course of proceedings, the petitioner filed an interlocutory application as I.A. No.9018 of 2017 seeking directions to the Government to make available the files relating to the appointment of additional respondents 3 to 8 and pursuant to the order passed on the said interlocutory application, the files relating to the appointment of additional respondents 3 to 8 have been made available.
8. Heard the learned counsel for the petitioner, the learned Additional Advocate General for the State as also the learned counsel for additional respondents 3 to 8.
9. The learned counsel for the petitioner vehemently contended that there was absolutely no reason at all for the Government to issue Ext.P3 notification, especially when the vacancies in the Commission had already arisen and that the same was issued maliciously with a view to induct persons of the WP.(C).No.1994/2017-Y. 7 choice of the Government who have not applied for selection pursuant to Ext.P1 notification as Members of the Commission. Relying on various decisions of the Apex Court, the learned counsel submitted that political patronage as done in the instant case has been deprecated by the Apex Court time and again and therefore, the appointments made pursuant to Ext.P3 notification are liable to be interfered with.
10. Per contra, the learned Additional Advocate General contended that the Selection Committee had to prepare a list of 18 candidates including 12 wait list candidates as per the Rules and fresh applications were invited for the purpose of enlarging the zone of consideration since there were only 40 eligible candidates among the 103 applications received pursuant to Ext.P1 notification. It was pointed out by the learned Additional Advocate General that the Government had no intention at all to flout the orders passed by this Court and the appointments have been made since there was an omission on the part of the Office of the Advocate General in informing the Government about the extension of the interim order dated WP.(C).No.1994/2017-Y. 8 19.01.2017.
11. The Act is an enactment introduced to give effect to the policies adopted by the Central Government in tune with the standards prescribed in the International Convention on the Rights of the Child to which India is a party to take necessary steps to protect the rights of children enumerated in the said Convention. Sub-section (2) of Section 17 of the Act provides that the Commission shall consist of six members to be appointed by the Government from amongst persons of eminence, ability, integrity, standing and experience in the field of (i) education; (ii) child health, care, welfare or child development; (iii) juvenile justice or care of neglected or marginalised children or children with disabilities; (iv) elimination of child labour or children in distress; (v) child psychology or sociology and (vi) laws relating to children. Rule 3 of the Rules dealing with eligibility for appointment as Members of the Commission provides that no person having any past record of violation of human rights or child rights shall be eligible for appointment as Member of the Commission. It also provides that WP.(C).No.1994/2017-Y. 9 no person having been convicted and sentenced to imprisonment for an offence, which, in the opinion of the Government involves moral turpitude, shall be eligible for appointment as Member of the Commission. Rule 3 of the Rules reads thus:
"3. Eligibility for appointment as Chairperson and Members - (1) No person who has not attained the age of 35 years and has not possess ten years experience in the areas stated in clause (b) of sub-section (2) of Section 17 of the Act may be appointed as Chairperson or Member of the Commission.
2. No person having any past record of violation of human rights or child rights shall be eligible for appointment as Chairperson or Member of the Commission.
3. No person having been convicted and sentenced for imprisonment of an offence which in the opinion of the Government involves moral turpitude, shall be eligible for appointment as Chairperson or Member of the Commission.
4. No person having been removed or dismissed from service of the Central Government or a State Government or a body or corporation owned or controlled by the Central Government or a State Government shall be eligible for appointment as Chairperson or Member of the Commission.
5. The Chairperson or Member shall not be a Member of Parliament or be a Member of Legislature of any State and shall not hold any office of trust or profit other than is office as Chairperson or Member. In case he carries on any business or practices any profession, he shall suspend as the case may be such business of practice before he assumes his office. Rule 4 of the Rules dealing with the selection process for appointment of the Members of the Commission provides that the Government shall invite applications from qualified candidates from the public through an advertisement in at least WP.(C).No.1994/2017-Y. 10 two leading national and vernacular dailies. The said rule also provides that the Government shall prepare a short list from the applications so received and the short listed candidates shall be selected on merit and interview by the Selection Committee. The rule further provides that such selected candidates shall be recommended by the Selection Committee to the Government for appointment. It is emphasised in Rule 4 of the Rules that the selection procedure shall be fair and transparent. Rule 4 of the Rules reads thus:
"4. Selection procedure. -- (1) The Chairperson and the members of the Commission shall be appointed on the recommendation of a three Member Selection Committee constituted by the Government under the Chairmanship of the Minister of Social Welfare.
(2) For the purposes of selection of the Chairperson and Members of the Commission, the Government shall invite applications from qualified candidates from the public through an advertisement in at least two leading national and vernacular dailies. The Government shall prepare a short list from the applications so received. The short listed candidates shall be selected on merit and interview by the Selection Committee. Such selected candidates shall be recommended by the Selection Committee to the Government for appointment.
(3) The selection procedure shall be fair and
transparent.
(4) The Selection Committee shall also prepare a WP.(C).No.1994/2017-Y. 11 wait list of two persons for each of the posts. The wait list shall be valid for three months."
When the scheme of the Act is analysed in the backdrop of the circumstances which led to the legislation, it is evident that the contemplation of the legislation is that the members of the Commission shall be persons of eminence, ability, integrity, standing and experience in the fields specified in Section 17 and that they shall be appointed by the Government based on merits from among the applicants who do not suffer from any of the disqualifications mentioned in the statute. It is thus clear that the Government has no discretion at all in the matter of appointing persons as members of the Commission. On the other hand, as made clear in sub-rule (3) of Rule 4 of the Rules, the selection procedure shall be fair and transparent and it is the responsibility of the Government to ensure that appointments are made to the Commission only in accordance with the provisions of the statute.
12. As rightly pointed out by the learned counsel for the petitioner, political patronage in matters relating to appointment into bodies like the Commission in the instant case WP.(C).No.1994/2017-Y. 12 has been deprecated by the Apex Court time and again. The observation made by the Apex Court in Supreme Court Advocates-on-Record Association and another v. Union of India [(2016) 5 SCC 1] reads thus:
"It is necessary to appreciate that the Constitution does not envisage the "spoils system" (also known as the "patronage system") wherein the political party which wins an election gives Government positions to its supporters, friends and relatives as a reward for working towards victory and as an incentive to keep the party in power."
In State of Uttar Pradesh and Others v. All Uttar Pradesh Consumer Protection Bar Association [(2017) 1 SCC 444], the Apex Court has taken note of the fact that political interference in the appointments into bodies like the Commission has detrimentally affected the functioning of such bodies and issued directions to the Union Government to frame Rules even for assessment of the ability, knowledge and experience required to be possessed by the members of the various forums like the Commission in the instant case. The said judgment was rendered in the context of Consumer Protection Act. In the light of the aforesaid decisions, when appointments into bodies like one in the instant case is challenged on the ground of political WP.(C).No.1994/2017-Y. 13 patronage, the same has to be examined with a greater circumspection.
13. In Namit Sharma v. Union of India (2013) 1 SCC 745, the Apex Court, while considering the process of selection for appointment of Information Commissioners under the Right to Information Act, made it clear that the selection process for appointment to such posts should be commenced sufficiently in advance so as to ensure the uninterrupted functioning of the office concerned. Since the vacancies of the Members of the Commission were due to arise on 07.01.2017, the selection process for appointment of the Members of the Commission commenced pursuant to Ext.P1 notification was in tune with the spirit of the directions issued by the Apex Court in Namit Sharma (supra). The specific provision in Ext.P1 notification that the applications received beyond 30.11.2016 will not be considered under any circumstances is also one which goes in tune with the spirit of the said decision of the Apex Court. As such, in a case of this nature, when the competent authority decides to enlarge the time limit fixed for submission of the WP.(C).No.1994/2017-Y. 14 applications for selection beyond the date on which the offices fall vacant, there should certainly be a reason which would justify even the non-functioning of the Commission. As noted above, in the first counter affidavit filed on behalf of the State Government, the stand taken to justify the enlargement of the outer time limit prescribed for submission of applications was that the 103 applications received pursuant to Ext.P1 notification were not sufficient for a competitive selection. In the third counter affidavit filed on behalf of the State Government, the stand taken was that there were only 40 eligible candidates from among the 103 applications received pursuant to Ext.P1 notification for the selection of 18 candidates including 12 wait list candidates and there were no applicants from all the districts. At the time of arguments, the learned Additional Advocate General was not in a position to state the rationale behind the stand taken by the Government in the first counter affidavit that the 103 applications received pursuant to Ext.P1 notification were not sufficient for conducting a competitive selection for appointment of six persons as Members of the Commission. The WP.(C).No.1994/2017-Y. 15 learned Additional Advocate General was also not in a position to state the rationale behind the stand taken by the Government in the second counter affidavit that 40 applicants were not sufficient for a competitive selection based on interview for appointment of six persons as Members in the Commission. It is beyond dispute that there is no requirement under law that there should be applicants from every district for the selection for appointment of Members of the Commission. No explanation, whatsoever, was offered by the learned Additional Advocate General as to the rationale behind the stand taken by the Government as regards the applications from all districts also.
14. Be that as it may, the files relating to the appointment of additional respondents 3 to 8, do not disclose any of the aforesaid reasons stated in the counter affidavits. The files disclose that the Government initiated proceedings for appointment of Members of the Commission sufficiently in advance on 26.09.2016. The files also disclose that a short list of 40 candidates was prepared from among the 103 applications. The files do not disclose any note as regards the shortfall, if any, WP.(C).No.1994/2017-Y. 16 in the number of the applications received or as regards the number of the short listed candidates. It is seen that nevertheless, on 10.1.2017, the Minister for Social Justice, before whom the file was placed, has directed to enlarge the outer limit prescribed for submission of the applications till 20.1.2017 by a fresh notification. Before issuing the direction aforesaid, the Minister had not called for any information or clarification as to the sufficiency of the applications. The said file endorsement of the Minister reads thus :
i. X"XmE^H L^\^U5^V 5N`WfaefULmhXxm %?A"
Xb:_M_:naf5^Im %gIf D`OD_ <HaUx_ 20 Ufx
F`V8_M_AaKD_Hm IdDIxXc" HW5a5.
ii. <HaUx_ 25_H5" 5_G_O %gIf5f{\o^" Ix_gV^G_:nm gW^VGm \_Xmxm DOn^yA_ XNVM_Aa5.
iii. fKdLaUx_ 7_Hm 'aVUcb H?J^HaU H?I?_
Xb`5x_Aa5.
2Mm
f5.f5.hV\< ?`:nV
&gx^7cUa" X^NbYcH`D_Oa"
U5aMm NdL_
As disclosed from the extracted file endorsement, the same does WP.(C).No.1994/2017-Y. 17 not contain any reason to justify the direction issued. It is seen that it is in the light of the said direction issued by the Minister that Ext.P3 notification has been issued.
15. Since Ext.P3 notification is challenged on the ground that the same was intended to appoint candidates who have not applied earlier for selection pursuant to Ext.P1 notification in whom the Government is interested and since the files made available do not disclose the particulars of the candidates who have been appointed as Members of the Commission from among the applicants pursuant to Ext.P3 notification, the learned Additional Advocate General was directed to make available the applications preferred by the selected candidates. From the applications made available pursuant to the said direction, it is seen that additional respondents 3 and 5 are among the applicants who have submitted applications pursuant to Ext.P3 notification. Earlier, in the course of the proceedings, the petitioner has filed two additional documents as Exts.P5 and P6. It is seen from Ext.P5 that the additional third respondent was earlier a member of the WP.(C).No.1994/2017-Y. 18 Wayanad Child Welfare Committee. Ext.P5 is an order by which the Government kept away the additional third respondent and two other members of the Wayanad Child Welfare Committee from functioning as members of the Child Welfare Committee in contemplation of an inquiry into a serious allegation of dereliction of duty. The genuineness of Ext.P5 order has not been disputed by the Additional Advocate General or the learned counsel for the additional third respondent. Ext.P6 is a newspaper report to the effect that the appointments of additional respondents 3 and 4 are under cloud. In Ext.P6 report, it is stated that the additional third respondent is a member of the District Committee of one of the political parties in power in the State. The files disclose that after the selection, police verification reports have been called for in respect of all the selected candidates. Pursuant to the same, the State Police Chief has informed the Government that there is a criminal case pending against the additional fifth respondent. As regards the additional third respondent, the State Police Chief has informed the Government that 12 criminal cases have been registered against him, of which, he was acquitted in six cases WP.(C).No.1994/2017-Y. 19 and convicted in one case. It is also stated in the report that out of the remaining cases, two cases have been compounded and three are pending trial. The particulars of the various cases registered against the additional third respondent which are available in the files disclose that the additional third respondent is an active worker of Communist Party (Marxist). The fact that the additional third respondent is an active worker of the said political party is not disputed by him. In fact, the learned counsel for the additional third respondent was attempting to justify his implication in large number of criminal cases on the ground that he is in active political life. The files also disclose that the additional third respondent has been convicted on a plea of guilty under Sections 143, 147 and 283 read with Section 149 of the Indian Penal Code. The allegation against the accused in the case in which the additional third respondent has been convicted is that the accused therein in prosecution of their common object formed themselves into an unlawful assembly and the unlawful assembly obstructed the vehicles in Vakery- Moodakkolly road on a particular day.
WP.(C).No.1994/2017-Y. 20
16. Non arbitrariness, being a necessary concomitant of the rule of law, it is imperative that all actions of every public functionary, in whatever sphere, must be guided by reason and not whim, caprice or personal predilections of the persons entrusted with the task on behalf of the State and exercise of all power must be for public good. Likewise, it is also imperative that public functionaries at all levels must exercise the powers conferred on them in good faith, fairly for the purpose for which the powers were conferred on them. (See Kumari Shrilekha Vidyarthi and Others v. State of U.P. And Others [(1991) 1 SCC 212]. On the question of public interest involved in the appointment of lawyers, the Apex Court in State of U.P. v. U.P. State Law Officers' Association [(1994)2 SCC 204] has unequivocally declared that the Government or the public body represents public interest and whoever is in charge of running their affairs is no more than a trustee or a custodian of public interest. Protection of public interests in the best possible manner is their primary duty. It follows that public bodies are under an obligation to the society to take the best possible steps WP.(C).No.1994/2017-Y. 21 to safeguard such interests. That obligation in turn casts on them the duty to engage the most competent servants, agents, advisers, etc. This is more so because the claims made by and/or against the public bodies are monetarily substantial and socially crucial with far-reaching consequences. Recognition of power exercisable by the functionaries of the State as a trust which will stand discharged only if the power is exercised in public interest is an important milestone in the development of law in our country. Those exercising power for public good are now accountable for their action, which must survive scrutiny or be annulled on the first principle that the exercise was not for public good in that the same was either mala fide, unfair, unreasonable or discriminatory. (See State of Punjab and Another v. Brijeshwar Singh Chahal and Another [(2016) 6 SCC 1].
17. True, had this been a case where the Minister was confirming the file endorsements, it is unnecessary for the Minister to give any reason for the same. But, in a case like this where the Minister wants more applicants to come on record for WP.(C).No.1994/2017-Y. 22 the selection process and when the Minister issues a specific direction in this regard, according to me, the files should disclose the reason on the basis of which such a decision was taken by the Minister. If the files do not disclose any reason, the courts would only presume that the decision is not one taken bona fide in such cases. Since the files in the instant case do not disclose the reason, on the basis of which the outer time limit for submission of the applications has been extended by the Minister, and since it is not possible to infer the various reasons stated in the counter affidavits from the files and since it has come out that the additional third respondent who is appointed as a Member of the Commission is an active worker of the political party which is in power in the State, the only inference possible is to hold that the enlargement of the time limit by the Minister was intended to appoint the additional third respondent as the Member of the Commission and the same was not an exercise of power in good faith for the purpose for which power was conferred on the Minister.
18. Relying on sub-rule (2) of Rule 3 of the Rules, WP.(C).No.1994/2017-Y. 23 the learned counsel for the petitioner contended that even if it is found that the case in which the additional third respondent has been convicted is a case which does not involve moral turpitude, the additional third respondent is certainly disqualified for appointment as a member of the Commission since the conviction against him would indicate that he is a person having a past record of violation of human rights. In so far as it is found that Ext.P3 notification is not one issued in good faith for the purpose for which power has been conferred on the Minister, the appointment of the additional third respondent is liable to be interfered with on that ground and therefore, it is unnecessary to go into the contention as regards the eligibility or otherwise of the third respondent to hold the office of the Member of the Commission.
19. After the conclusion of the hearing on 04/08/2017, the petitioner filed an application for amendment of the writ petition. By virtue of the said application, the petitioner wants to raise a few additional grounds. The additional grounds sought to be incorporated in terms of the said application were WP.(C).No.1994/2017-Y. 24 mainly, (i) the decision of the selection committee to award marks to the candidates out of 300 without prescribing any criteria is arbitrary, (ii) that the petitioner has been granted 75 marks solely for the reason that she has challenged the selection and (iii) that additional respondents 3 and 4 are persons who are disqualified from holding the office of the member of the Commission. I have dismissed the said application as belated.
20. Though I have dismissed the application preferred by the petitioner for amendment of the writ petition to challenge the entire selection process, since it is found that the enlargement of the outer time limit prescribed for submission of the applications by virtue of Ext.P3 notification was not done bona fide, I have considered the materials on record to ascertain whether the selection of the remaining candidates is vitiated in any manner. There is nothing on record to indicate that the selection made based on the interview conducted by the selection committee consisting of the Minister, Health & Social Justice, Secretary, Social Justice, and Secretary, Law Department is vitiated in any manner. Except the vague pleading in the writ WP.(C).No.1994/2017-Y. 25 petition that the petitioner has been awarded negligible marks by the selection committee since she has challenged the selection procedure, there is no other materials to substantiate the said allegation. True, the files do not disclose the objective norms fixed by the selection committee for assessment of the relative merit of the candidates, but that by itself is also not a ground to interfere with the selection process in the absence of any pleadings and materials that the selection process was vitiated on account of that reason.
In the result, the writ petition is allowed and Ext.P3 notification and all further proceedings thereto are quashed. Respondents 1 and 2 are directed to fill up the consequent vacancies of the Members of the Commission from among the applicants pursuant to Ext.P1 notification who are included in the wait list.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Kvs/-
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