Kerala High Court
Stateof Kerala vs P.Krishnan Nair on 18 November, 2016
Author: Anil K. Narendran
Bench: Mohan M.Shantanagoudar, Anil K.Narendran
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR.MOHAN M.SHANTANAGOUDAR
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
WEDNESDAY, THE 8TH DAY OF FEBRUARY 2017/19TH MAGHA, 1938
WA.No. 3 of 2017 () IN WP(C).23107/2016
-----------------------------------------
AGAINST THE JUDGMENT IN WP(C) 23107/2016 of HIGH COURT OF KERALA
DATED 18-11-2016
APPELLANT/FIRST RESPONDENT:
-----------------------------------------------
STATEOF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT IN THE
DEPARTMENT OF LAW, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM -695001.
BY ADVOCATE GENERAL SRI C.P. SUDHAKARAPRASAD
ADV. SRI.MANU V.
RESPONDENT(S)/PETITIONER AND 2ND RESPONDENT:
------------------------------------------------------------------------------
1. P.KRISHNAN NAIR
AGED 67 YEARS, S/O.PARAMESWARAN PILLAI,
SUJI BHAWAN, OLLIKKONAM, NETTICHIRA,
NEDUMANGADU P.O, THIRUVANANTHAPURAM-695 541.
2. KERALAADVOCATE CLERKS WELFARE FUND COMMITTEE
REPRESENTED BY ITS SECRETARY,
OFFICE OF THE KERALAADVOCATES CLERKS WELFARE FUND COMMITTEE,
THIRUVANANTHAPURAM -695 001.
R1 BY SRI.GEORGE VARGHESE (PERUMPALLIKUTTIYIL)
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 18.1.2017, THE
COURT ON 8.2.2017 DELIVERED THE FOLLOWING:
"CR"
MOHAN M. SHANTANAGOUDAR, CJ &
ANIL K. NARENDRAN, J.
--------------------------------------------------
W.A.No.3 OF 2017
--------------------------------------------------
DATED THIS THE 8th DAY OF FEBRUARY, 2017
JUDGMENT
ANIL K. NARENDRAN, J.
This appeal arises out of the judgment of the learned Single Judge dated 18.11.2016 in W.P.(C).No.23107/2016.
2. The appellant is the 1st respondent in that Writ Petition filed by the 1st respondent herein seeking for a declaration that the nomination of the said respondent as a member from among the members of Advocates Clerks of the Kerala Advocates' Clerks Welfare Fund Committee as per Ext.P4 is liable to be given effect to and consequential proceedings issued in furtherance of the same. The 1st respondent has also sought for a writ of mandamus commanding the appellant to give effect to his nomination as a member of the Kerala Advocates Clerks Welfare Fund Committee in terms of Section 4 of the Kerala Advocates' Clerk Welfare Fund Act, 2003 and allow him to perform duties as a member of the said Committee.
3. After considering the rival submissions, the learned W.A.No.3/17 -2- Single Judge by the impugned judgment allowed the Writ Petition. Consequently, the appellant State and the 2nd respondent Kerala Advocates' Clerks Welfare Fund Committee are directed to pass appropriate orders on the basis of the nomination made by the Government on 22.3.2016 and 31.3.2016, as evident from Ext.P4 order of the Government in the note file, and the whole exercise is directed to be completed within one month from the date of receipt of a copy of the judgment.
4. Feeling aggrieved by the judgment of the learned Single Judge, the appellant/State is before this Court in this appeal.
5. We heard the arguments of the learned Advocate General appearing for the appellant State and the learned counsel for the 1st respondent/writ petitioner.
6. The 1st respondent is a member of the Kerala Advocates' Clerks Welfare Fund Scheme, who has been issued with Ext.P1 certificate of registration. He has been working as an Advocate Clerk since 1976 at Nedumangad in W.A.No.3/17 -3- Thiruvananthapuram district. He was the President of the Kerala Advocates' Clerks Association, Nedumangad Unit for nine years and functioned as the District Secretary of the Kerala Advocates' Clerks Association, Thiruvananthapuram district for five years. He left the State Committee of the Kerala Lawyers Clerks Association for three years and acted as its General Secretary for another three years. He was also a member of the State Executive Committee for two years.
7. The Kerala Advocates' Clerks Welfare Fund Committee, the 2nd respondent herein, has been constituted under Section 4 of the Kerala Advocate Clerks Welfare Fund Act, 2003 (hereinafter referred to as 'the Act'). As per sub-section (1) of Section 4 of the Act, the Government may, by notification, establish with effect from such date as may be specified therein, a Committee to be called the Kerala Advocates' Clerks Welfare Fund Committee. As per sub-section (2), the said Committee shall be a body corporate having perpetual succession and a common seal with the power to acquire, hold and dispose of property and shall by the said name, sue and be sued. W.A.No.3/17 -4-
8. Going by sub-section (3) of Section 3, the Committee shall consist of the members enumerated under clauses (a) to (f) of the said sub-section. Clause (e) to sub-section (3) provides that such committee shall consist of three members to be nominated by the Government from among Advocate Clerks. As per sub-section (4), a member nominated under clause (e) of sub-section (3) shall hold office for a term of three years or until he ceases to be a member of the Advocates' Clerks Association, whichever is earlier. As per sub-section (5), a member nominated under clauses (b) and (d) and appointed under clause (f) of sub- section (3) shall hold office during the pleasure of the Government.
9. Section 5 of the Act deals with disqualification and removal of nominated members of the Committee, if he becomes of unsound mind; or is adjudged as insolvent; or is absent without leave of the Committee for more than three consecutive meetings; or is a perpetual defaulter to the Fund (in case he is a member of the Fund) or has committed breach of trust; or is convicted by a criminal court for an offence involving moral W.A.No.3/17 -5- turpitude, unless such conviction has been set aside on appeal.
10. One Sri Pala Gopalakrishnan Nair was renominated as a Government nominee in the Welfare Fund Committee under clause (e) of sub-section (3) of Section 4 of the Act on 26.3.2015. He died on 19.1.2016 resulting a vacancy of a nominated member in the Welfare Fund Committee from among advocate clerks. According to the 1st respondent, he submitted application before the Government for being nominated as a member of the Welfare Fund Committee under clause (e) of sub- section (3) of Section 4 of the Act and accordingly, he was nominated as a member of that Committee by virtue of order dated 22.3.2016, as discernible from Ext.P3 communication and Ext.P4 file note obtained under the Right to Information Act. However, on account of ensuing State General Election in 2016, such nomination was not notified and no action ensued thereon.
11. According to the 1st respondent, once he has already been nominated to the Welfare Fund Committee as discernible from Exts.P3 and P4, what is required is to give effect to such nomination. On account of the delay on the part of the appellant W.A.No.3/17 -6- State in issuing necessary notification in terms of Section 4 of the Act, the 1st respondent approached this Court in W.P.(C). No.23107/2016 seeking various reliefs.
12. By an interim order dated 11.7.2016, the learned Single Judge directed the appellant and the 2nd respondent to give effect to the nomination of the 1st respondent as a member of the Kerala Advocates' Clerks Welfare Fund Committee within 15 days. Seeking an order to vacate the said interim order, the appellant State filed I.A.No.14625/2016 which was opposed by the 1st respondent/writ petitioner by filing a counter affidavit. The 1st respondent has also produced a copy of his application dated 9.2.2016 before the Chief Minister, Government of Kerala, as Ext.P5 along with I.A.No.16592/2016.
13. The learned Single Judge after considering the rival contentions arrived at a conclusion that going by the Business Rules of the Government of Kerala, the action of the Government is complete when the signature of the Officers of the Government is affixed on the file note as provided under Rule 12 of the Business Rules. The Chief Minister signed the decision on W.A.No.3/17 -7- 22.6.2016 and the same is authenticated by the officials of the Department concerned, as evident from Ext.P4 file note. Therefore, the decision of the Government has come into force when it was signed by the Chief Minister and signatures were affixed by the officials as provided under Rule 12 of the Business Rules. The learned Single Judge has also repelled the contention of the State that till such time the order is communicated, there is no order in the eye of law.
14. Accordingly, the learned Single Judge allowed the Writ Petition with a direction to the appellant State and the 2nd respondent Committee to pass appropriate orders on the basis of the nomination made by the Government on 22.3.2016 and 31.3.2016, as evident from Ext.P4 order of the Government passed on the note file and complete the whole exercise within one month from the date of receipt of a copy of the judgment.
15. The issue that arises for consideration in this appeal is as to whether the note prepared as per Ext.P4 file note nominating the 1st respondent to the Kerala Advocates' Clerks Welfare Fund Committee has become final so as to enable him to W.A.No.3/17 -8- seek a writ of mandamus commanding the State and the 2nd respondent Committee to implement the same.
16. Ext.P4 would show that the then Chief Minister noted in the note file on 22.3.2016 that the 1st respondent is nominated to the Committee of the 2nd respondent as a Government nominee. Thereafter the file is seen signed by various officials in the Law Department on 31.3.2016, wherein it is stated that the Government have decided to nominate the 1st respondent as a member of the 2nd respondent Committee, in the vacancy on the death of the existing member Late N.Gopalakrishnan Nair. It is further stated in Ext.P4 that, since the Election Code of Conduct has already come into force, permission of the Election Commission is required and therefore the file shall be put up seeking the permission of the Election Commission.
17. On 2.4.2016, the file is seen by the Chief Electoral Officer and the Additional Law Secretary to Government. Then the file was referred to the State Modal Code of Conduct (MCC) Co-ordination Committee, to be chaired by the Chief Secretary, for proper examination as per the provisions of the Modal Code of W.A.No.3/17 -9- Conduct and thereafter for re-submission with the views of the Committee to the Chief Electoral Officer. In the MCC Co- ordination Committee held on 5.4.2016 in the Conference Hall of the Chief Secretary permission was deferred stating that 'there is no urgency'. This is signed by the Chief Secretary and other members on 6.4.2016 and 7.4.2016.
18. Another note was put up on 25.7.2016, after the elections are over, as per which, the Law Department decided to ascertain the views as to whether follow up action pursuant to the decision to nominate the 1st respondent can be taken. A note was put up by the Additional Secretary to Government, Law Department on 24.6.2016, wherein it was directed to circulate the file to the Law Minister after putting up a circulation note. Accordingly, the matter was placed before the Law Minister on 28.6.2016.
19. Relying on the judgment on this Court in Nature Lovers Forum v. State of Kerala (2016 (1) KLT 75) the respondent would contend that the Government have taken a decision by virtue of the nomination made by the Chief Minister W.A.No.3/17 -10- on 22.3.2016, which decision was authenticated by the Chief Minister/Law Minister, and therefore, it has become an order of the Government, which decision is also authenticated as per the Rules of Business of Government prescribed under Article 166 of the Constitution of India.
20. Relying on the decision of this Court in Abdul Rasheed v. State of Kerala (2008 (4) KLT 664), the respondent would contend that, the decision taken by the Chief Minister was in accordance with law, especially in view of the provisions under Rule 7 of the Rules of Business wherein it is stated that the council shall be collectively responsible for all executive orders issued in the name of the Government in accordance with these Rules, whether such orders are authorised by an individual Minister on a matter appurtenant to his port folio or as a result of decision at the meeting of the counsel or otherwise. Therefore, it was contended that, since an order has already been passed by a Minister nominating the 1st respondent, the successor Government ought to have taken consequential action based on the said decision taken on 22.3.2016 by issuing W.A.No.3/17 -11- necessary notification.
21. We are unable to accept the aforesaid contention raised by the learned counsel for the respondent in view of the law laid down by the Apex Court in Shanti Sports Club v. Union of India (2009 (15) SCC 705), a decision relied on by the learned Advocate General, in which the Apex Court, after referring to its earlier decision in State of Bihar v. Kripalu Shankar (1987(3) SCC 34), reiterated that Article 166(1) requires that all executive action of the State Government shall be expressed to be taken in the name of the Governor. This clause relates to cases where executive action has to be expressed in the shape of a formal order or notification. It prescribes the mode in which an executive action has to be expressed. Noting by an official in the departmental file will not, therefore, come within this Article nor even noting by a Minister. Every executive decision need not be laid down under Article 166 (1) but if it takes the form of an order it has to comply with Article 166(1). Article 166(2) states that orders and other instruments made and executed under Article 166(1) shall be W.A.No.3/17 -12- authenticated in the manner prescribed. While clause (1) relates to the mode of expression, clause (2) lays down the manner in which the order is to be authenticated and clause (3) relates to the making of the rules by the Governor for the more convenient transaction of the business of the Government. After analysing the aforesaid clauses of Article 166 of the Constitution, the Apex Court observed that Article 166, therefore, makes it clear that the noting in a file get culminated into an order affecting right of parties only when it reaches the Head of the Department and is expressed in the name of the Governor, authenticated in the manner provided under Article 166(2). (See: Para.45 at page 729 of SCC).
22. In Shanti Sports Club's case (supra), the Apex Court after a detailed discussion held that, the noting recorded in the official files by the officers of the Government at different levels and even the Ministers do not become decisions of the Government unless the same is sanctified and acted upon by issuing an order in the name of the President or Governor, as the case may be, authenticated in the manner provided in Articles 77 W.A.No.3/17 -13- (2) and 166(2) and is communicated to the affected persons. In the said decision, the Apex Court has stated in categorical terms that, the notings and/or decisions recorded in the file do not confer any right or adversely affect the right of any person and the same can neither be challenged in a court nor made basis for seeking relief. Even if the competent authority records a noting in the file, which indicates that some decision has been taken by the authority concerned, the same can always be reviewed by the same authority or reversed or overturned or overruled by higher functionary/authority in the Government.(See: Para.52 at pages 731 and 732 of SCC).
23. In State of Uttaranchal v. Sunil Kumar Vaish 2011 (8) SCC 670, the Apex Court has reiterated that a noting recorded in the file is merely a noting simplicitor and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, can such noting be treated as a decision of the Government. Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as W.A.No.3/17 -14- a decision of the Government, unless it is sanctified and acted upon by issuing an order in accordance with Articles 77(1) and (2) or Articles 166(1) and (2) of the Constitution. The Apex Court has stated in categorical terms that, the noting in the file or even a decision gets culminated into an order affecting the right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, and authenticated in the manner provided in Article 77(2) or Article 166(2). A noting or even a decision can always be reviewed/ reversed/overruled or overturned and the court cannot take cognizance of the earlier noting or decision for exercise of the power of judicial review.
24. Viewed in the light of the law laid down by the Apex Court in the decision referred to supra, conclusion is irresistible that the notings on Ext.P4 file note regarding nomination of the 1st respondent as a member of the Kerala Advocates' Clerks Welfare Fund Committee in terms of Section 4 of the Kerala Advocates Clerks Welfare Fund Act, cannot be treated as a decision of the Government unless the same is sanctified and W.A.No.3/17 -15- acted upon by issuing an order in the name of the Governor, authenticated in the manner provided in Article 166(2) and communicated to the affected person.
25. The notings on Ext.P4 file note, even if it is treated as a decision, recorded in the file note, do not confer any right on the 1st respondent to claim nomination as a member of the Welfare Fund Committee, as it is always open to the Minister concerned or the Government to review/reverse the noting/decision recorded in the file note. The noting in Ext.P4 file note, even if it is taken as a decision, gets culminated into an order affecting the right of the 1st respondent only when it is expressed in the name of the Governor and authenticated in the manner provided in Article 166(2) of the Constitution. In that view of the matter, this Court cannot take cognizance of the notings in Ext.P4 file note either for exercise of the power of judicial review or for granting any discretionary reliefs under Article 226 of the Constitution of India.
26. Relying on the judgment of the Apex Court in State of Bihar v. Sunny Prakash (2013 (3) SCC 559), the learned W.A.No.3/17 -16- counsel for the 1st respondent would contend that merely because of change of elected Government and the decision of the previous Government not expressed in the name of the Governor in terms of Article 166 of the Constitution, valid decision cannot be ignored and it is not open to the State to contend that those decisions do not bind them. In the said decision, the Apex Court was dealing with a case regarding implementation of a proceedings of the Government of Bihar regarding an agreement between the Bihar State University and College Employees Federation, wherein it was decided that the strike will be called off by the Employees Federation on accepting certain demands made by the said Federation. Pursuant to the said decision, certain communications were issued by the Deputy Secretary to Government, Higher Education Department, Government of Bihar; the Deputy Director, Human Resources Development Department, Government of Bihar; etc. to the Vice Chancellors of the Universities and also to the General Secretary of the Employees Federation, by which they were informed that the facilities which have been provided for Government staff shall W.A.No.3/17 -17- also be sanctioned to the non-teaching staff of the Universities and the subordinate affiliated Colleges. The Apex Court found that the decisions contained in the orders dated 1.2.1988 and 18.12.1989 were honoured by the State Government itself in its subsequent letters/correspondences, but also directed the Employees Federation to call off the strike immediately in the interest of the student community. It was in that factual matrix, the Apex Court held that, if at all the two decisions contained in the orders dated 1.2.1988 and 18.12.1989 were not acceptable to the newly elected Government, it was open to it to withdraw or rescind the same formally. In the absence of such withdrawal or rescission of the two orders dated 1.2.1988 and 18.12.1989, it is not open to the State of Bihar and the State of Jharkhand, which has been created after re-organisation of State of Bihar, to contend that those decisions do not bind them. It was in that context, the Apex Court observed that, merely because of change of elected Government and the decision of the previous Government not expressed in the name of Governor in terms of Article 166 of the Constitution, valid decision cannot be ignored W.A.No.3/17 -18- and it is not open to the State to contend that those decisions do not bind them. Therefore, the principle laid down in the decision of the Apex Court in Sunny Prakash's case (supra), which is entirely on a different factual matrix, has no application to the facts of the case on hand.
27. In the instant case, no Government notification was issued nominating the 1st respondent as a member of the Kerala Advocates' Clerks Welfare Fund Committee in terms of clause (e) of sub-section (3) of Section 4 of the Act. The pleadings and materials on record would also show that the 1st respondent was not selected for being nominated as a member of the Welfare Fund Committee after undergoing any selection process. Merely for the reason that, consequent to the introduction of the Right to Information Act, 2005, the 1st respondent is entitled to seek information as defined in clause (f) of Section 2 of the said Act from any public authority as defined under clause (h) of Section 2 in the form of a communication, such communication or copy of the file note furnished along with such communication cannot be treated as the decision of the Government on that noting in the W.A.No.3/17 -19- file communicated to the affected party. Noting in the file, at the most can be treated as the notes made during the course of discussion. Such notings are transitory/temporary, but not final. Such file noting will get culminated into an order only when it is expressed in the name of the Governor and authenticated in the manner provided in Article 166(2) of the Constitution of India.
28. In that view of the matter, we find no reason to sustain the impugned judgment of the learned Single Judge.
29. In the result, this Writ Appeal is allowed setting aside the impugned judgment of the learned Single Judge, thereby dismissing W.P.(C).No.23107/2016.
No order as to costs.
Sd/-
MOHAN M. SHANTANAGOUDAR, CHIEF JUSTICE Sd/-
ANIL K.NARENDRAN, JUDGE dsn True copy P.S. to Judge