Kerala High Court
Dr. D.Narayana vs State Of Kerala on 21 February, 2012
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
WEDNESDAY, THE 13TH DAY OF JULY 2016/22ND ASHADHA, 1938
WP(C).No. 25012 of 2015 (B)
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PETITIONER(S):
-------------
DR. D.NARAYANA,
S/O.LATE B.G.KAYARTHAYA, T.C. 11/786 (A4),
KRISHNA NAGAR, ULLOOR, PATTOM,
THIRUVANANTHAPURAM - 695 004.
BY ADVS.SRI.M.P.PRAKASH
SRI.K.P.ABDUL AZEES
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY ITS CHIEF SECRETARY,
SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
2. CHIEF SECRETARY TO GOVERNMENT OF KERALA,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
3. SECRETARY TO GOVERNMENT,
TAXES (C) DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
4. GULATI INSTITUTE OF FINANCE AND TAXATION (GIFT),
REPRESENTED BY ITS REGISTRAR,
PAPPANAMCODE P.O., THIRUVANANTHAPURAM - 695 018.
* ADDITIONAL R5 IMPLEADED
5. DR.JOSE SEBASTIAN, S/O.LATE O.C.DEVASIA,
AGED 57 YEARS, AASHIANA, TC 64/426,
SNEHAPURI, KARUMOM P.O., THIRUVANANTHAPURAM,
PIN - 695 002.
* IS IMPLEADED AS PER ORDER DTD.6.6.2016 IN IA.17840/15
R1-R3 BY ADV. SRI.RANJITH THAMPAN,
ADDL. ADVOCATE GENERAL
R4 BY ADVS. SRI.K.SHAJ
SRI.SERGI JOSEPH THOMAS
R5 BY ADV. SRI.D.GANESH KUMAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 13-07-2016, ALONG WITH WPC. 27671/2015, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
msv/
WP(C).No. 25012 of 2015 (B)
----------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
-----------------------
EXT.P-1: DETAILED CURRICULUM VITAE OF THE PETITIONER
EXT.P-2: A TRUE COPY OF THE G.O DATED 21.2.2012 ISSUED BY THE
IST RESPONDENT
EXT.P-3: A TRUE COPY OF THE RELEVANT RULES FOR THE CENTRE FOR
TAXATION STUDIES
EXT.P-4: A TRUE COPY OF THE RULES OF THE GULATI INSTITUTE OF
FINANCE AND TAXATION (GIFT)
EXT.P-5: A TRUE COPY OF THE G.O DATED 23.2.2012 ISSUED BY THE
IST RESPONDENT
EXT.P-6: A TRUE COPY OF THE G.O DATED 4.9.2013 ISSUED BY THE
IST RESPONDENT
EXT.P-7: A TRUE COPY OF THE JUDGEMENT DATED 9.9.2013 IN
W.A.NO.1203/2013 OF THIS HON'BLE COURT.
EXT.P-8: A TRUE COPY OF THE REVISED NOTIFICATION
EXT.P-9: A TRUE COPY OF THE RELEVANT PAGE OF THE GOVERNMENT
NOTE FILE
EXT.P-10: A TRUE COPY OF THE GOVERNMENT NOTE FILE CONTAINING THE
NOTE OF THE MINISTER FOR FINANCE, LAW AND HOUSING
EXT.P-11: A TRUE COPY OF THE NOTIFICATION DATED NIL FOR
SELECTION TO THE POST OF DIRECTOR IN THE
4TH RESPONDENT.
EXT.P-12: A TRUE COPY OF THE G.O. DTD.17.5.2013 ISSUED BY THE
1ST RESPONDENT.
EXT.P-13: TRUE COPY OF THE LETTER DTD.28.9.2012 ISSUED BY
INFORMATION OFFICER OF THE 4TH RESPONDENT.
EXT.P-14: TRUE COPY OF THE NOTIFICATION DTD.4.11.2011.
EXT.P-15: TRUE COPY OF THE NOTIFICATION ISSUED IN 2014.
msv/
-2-
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WP(C).No. 25012 of 2015 (B)
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RESPONDENT(S)' EXHIBITS:
------------------------
EXT.R1(a): TRUE COPY OF THE GOVERNMENT ORDER G.O.(MS) NO.31/09/TD
DTD.25.2.2009.
EXT.R4(a): TRUE COPY OF GOVERNMENT ORDER G.O.(MS) NO.31/09/TD
DTD.25.2.2009.
//TRUE COPY//
P.S.TO JUDGE
Msv/
ALEXANDER THOMAS, J.
==================
W.P.(C).Nos.25012 & 27671 of 2015
==================
Dated this the 13th day of July, 2016
J U D G M E N T
Both these Writ Petitions relate to the matters in connection with the selection to the post of Director of the respondent-Gulati Institute of Finance and Taxation (for short 'GIFT') and therefore, these cases are disposed of through this common judgment. Initially, the facts in W.P(C).No.25012/2015 could be dealt with. The exhibits referred to in this judgment would be in relation to those exhibits produced and marked in W.P(C).No.25012/2015 unless it is explicitly indicated otherwise.
2. It is stated that the petitioner in W.P(C).No.25012/2015 was the Reserve Bank of India (RBI) Chair Professor at the Centre for Development Studies (CDS), Thiruvananthapuram, from 2001-12 and that earlier he was Fulbright Fellow of Havard University during 1994-95. That earlier he was the Visiting Professor of the University of Montreal and is currently the Technical Advisor to the Kerala State Planning Board. His curriculum vitae is referred to in W.P.(C).25012/15&C.C. - : 2 :-
Ext.P-1. That earlier the 1st respondent-State Government had constituted the Centre for Taxation Studies (CTS) in 1991 for undertaking research, training consultancy and publication in the area of public economics and the said body was registered as a society under the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955. It it stated that Ext.R-1(e) is that Memorandum of Association and Rules and Regulations of the CTS and Ext.P-3 is the copy of the Service Rules for the CTS framed under Rule 11 Chapter XXII of Ext.R-1(e) Memorandum of Association and Rules of CTS. That by Ext.R-1(a) Government Order, G.O(MS).No.31/2009/TD dated 25.2.2009, the Government approved the proposal for upgradation and elevation of the CTS and to rename it as Gulati Institute of Finance and Taxation (GIFT) and to register as such under the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955, and by the said Government Order dated 25.2.2009, the Government has also accorded sanction to the Memorandum of Association and the Rules and Regulations of the 4th respondent-Institute (viz., GIFT) and sanction was also accorded by the State Government to enter into a tripartite agreement with Government of India and Government of W.P.(C).25012/15&C.C. - : 3 :-
Kerala and GIFT as per the Memorandum of Association mentioned therein etc.
3. It is now informed from the Bar by the learned Government Pleader appearing for the 3rd respondent-State as well as by the learned Standing Counsel for the 4th respondent-Institute that in the place of previous Rules and Regulations of CTS, the new Memorandum of Association and the Rules and Regulations of the 4th respondent-GIFT was duly registered by the Registrar under the above Act on 14.10.2009 whereby the amended Memorandum of Association and Rules as per Ext.P-4 was duly registered by the Registrar notified as per the provisions of the above said Act. Though the petitioner has specifically pleaded that the CTS and R4- GIFT are two distinct legal entities and bodies and there are no specific and precise contra pleadings in that behalf by the official respondents. It is now appraised from the Bar on behalf of the official respondents that original registration number of CTS continued and amendments were duly made for effecting the upgradation and elevation of the previous body as GIFT with its new Memorandum of Association and Rules as per Ext.P-4, etc. It is also brought to notice that as per Ext.R-1(b) Government Order, G.O(Rt).
W.P.(C).25012/15&C.C. - : 4 :-
No.873/2009/TD dated 1.10.2009, the Government had granted approval to the constitution of the new governing body of the 4th respondent-GIFT. It appears from a reading of Ext.P-4 that consequent to Ext.R-1(b) Government Order dated 1.10.2009, the new Memorandum of Association and Rules as per Ext.P-4 was duly framed for the new body and it is those rules which were duly registered and incorporated with the aforementioned Registrar on 14.10.2009 by amendment of the previous Memorandum of Association a per Ext.R-1(e).
4. By Ext.R-1(d) GO(Ms).No.39/2011/TD dated 28.2.2011, the respondent State Government had accorded sanction for creation of the post of Director (Full Time) for the 4th respondent GIFT in the scale of pay of Rs. 37,400- 67,000/- + AGP Rs. 12,000/- as well as some other posts, including Professor, Assistant Professor, etc. as mentioned therein. It is clear from a reading of Rule 6(ii) of Ext.P-4 rules that the Director of GIFT shall be appointed by the State Government, from among renowned scholars in the field of public finance and policy, management, Development Economics, Taxation Laws, etc. That apart, it is further reiterated in Rule 21(v)(a) of Ext.P-4 Rules that the appointment to W.P.(C).25012/15&C.C. - : 5 :-
the post of Director would also require prior approval of the Government and this Clause appears to be superfluous, as Rule 6(ii) of Ext.P-4 rules very clearly and explicitly mandates that the appointing authority for the post of Director of GIFT shall be the Government. The aforementioned scale of pay of Rs.37,400-67,000 + AGP Rs.12,000/- made applicable for the post of Director GIFT, is the one prescribed for the post of Pro Vice Chancellor of Universities as per Clause 7.1 of Ext.R-1(c) G.O(P).No.58/2010/H.Edn. dated 27.3.2010 issued by the State Government. Further it appears that the competent authorities of the respondent State Government had issued Ext.P-14 selection notification dated 4.11.2011 [Ext.P-1 in W.P.(C).No.27671/2015] inviting applications for selection to the post of Director of the 4th respondent GIFT, etc. It was stipulated therein that the applicants should not be more than 55 years of age as on 1.1.2012 and that the last date for application is 9.12.2011. It is also stipulated in Clause 2 thereof that the applicant should be renowned scholar in the field of public finance/Development Economics. It is also inter alia stipulated therein that the applicant should be in the rank of an Associated Professor or Professor, who is academically and professionally qualified to hold the post of "Pro W.P.(C).25012/15&C.C. - : 6 :-
Vice Chancellor" as per the University Grants Commission (UGC) norms and further that the applicant should have a history of guiding research students in his academic career. It is also clearly stated in Clause 3 thereof that the Grade of Director GIFT will be equivalent to that of a Pro Vice Chancellor as per UGC norms contemplated in G.O(P) No.58/2010/ H.Edn. dated 27.3.2010 [viz Ext.R-(c) G.O referred to earlier].
5. Later, the Government, as per G.O. dated 29.9.2011, had constituted a Search Committee comprising of its Chairman, Sri.K.M.Chandrasekhar, former Union Cabinet Secretary to Government of India and the then Vice Chairman of the Kerala State Planning Board as well as Prof.Govinda Rao, Director of National Institute of Public Finance & Policy of the Government of India, to suggest three suitable names to the Government for being considered for appointment as Director of GIFT. There were four candidates including the 5th respondent herein [who is also the petitioner in W.P.(C).No.27671/2015] had submitted their applications in pursuance of Ext.P-4 dt. 4.11.2011 and after in-depth consideration of their cases, the Search Committee came to the conclusion that all the four of them are unsuitable for the W.P.(C).25012/15&C.C. - : 7 :-
position of Director of GIFT. The Search Committee thereafter made their own attempts to search out and suggest a suitable person for selection as Director of GIFT and it appears that they had, on their own, contacted the petitioner as well as 2 other persons for considering their suitability for appointment as Director of GIFT. The two other persons had shown their disinclination for the selection and thereupon the Search Committee had unanimously found that the petitioner is the suitable person for selection as Director of GIFT. The petitioner was at that time 59 years old (his date of birth is 12.1.1953). But the Committee opined that the new rules and regulations of the 4th respondent GIFT did not prescribe any condition in that regard and accordingly, they recommended to the State Government that the petitioner is suitable person to be appointed as Director of GIFT, etc. The State Government had thereupon considered the matter and had accepted the said recommendation of the Search Committee and had appointed the petitioner as Director of GIFT as per Ext.P-5 G.O(Rt) No.138/2012/TD dated 23.2.2012 with immediate effect and it appears that the petitioner had taken charge of the said responsibility on 5.3.2012. Though the said appointment as per W.P.(C).25012/15&C.C. - : 8 :-
Ext.P-5 did not contain any explicit restriction on the tenure of the said appointment, Ext.P-14 selection notification dated 4.11.2011 had clearly stipulated in Clause 6 thereof that the period of such appointment will be for a fixed tenure of five years. However, later the Government had issued Ext.P-12 G.O.(Rt.)No. 399/2013/TD dated 17.5.2013 stating therein that the initial appointment of the petitioner as per Ext.P-5 was only for a period of one year and that the said appointment was extended for a further period of six months from 5.3.2013, viz., until 4.9.2013. The selection and appointment of the petitioner to the post of Director of the respondent GIFT was challenged by contesting respondent No.5 by instituting a Writ Petition, as W.P.(C). No.19734/2012 to the limited extent of quashing the aforecaptioned G.O dated 23.2.2012. A learned Single Judge of this Court as per judgment dated 29.7.2013 had allowed W.P.(C).No. 19734/2012 [produced as Ext.P-2 in W.P.(C).No.25012 of 2015] to the limited extent of quashing the aforecaptioned G.O. 23.2.2012 [which is now produced as Ext.P-5 herein], whereby the petitioner herein was appointed as Director of GIFT and this was mainly on two grounds, viz., firstly that the petitioner had indisputably crossed the W.P.(C).25012/15&C.C. - : 9 :-
upper age limit of 55 years as on 1.1.2012, as stipulated in Ext.P-14 selection notification dated 4.11.2011 and secondly on the ground that the Search Committee exceeded its jurisdiction in going in for a search mode having found that all the four candidates, who had responded to the selection notification, were unsuitable and that the Search Committee should not have made a search on their own, to find out the suitable candidate, etc. It is also relevant to note that there was no prayer in the aforenoted W.P.(C).No. 19734/2012 filed by the 5th respondent herein so as to challenge the decision of the competent authority, by which they had found that he was unsuitable to hold the post of Director. It appears that in view of these aspects, the learned Single Judge had only granted the relief of quashing the appointment of the petitioner herein and had not issued any direction in the matter of the claim of the 5th respondent herein that he is entitled for appointment as Director of GIFT.
6. Aggrieved by the judgment of the learned Single Judge in W.P.(C).No.27671 of 2015, the petitioner herein had preferred W.A.No.1203/2013, which was allowed by the Division Bench of this Court as per Ext.P-7 judgment rendered on 9.9.2013. The Division W.P.(C).25012/15&C.C. - : 10 :-
Bench of this Court took note of the crucial fact that the expert Search Committee consisting of very eminent persons had found that all the four candidates including the 5th respondent herein were unsuitable to hold the post of Director of GIFT. The Division Bench further held that the 5th respondent herein is not having the specific qualification of experience of guiding research students in his academic career as stipulated in Clause 2-C of notification dated 4.11.2011 (Ext.P-14 herein). As a matter of fact, even the 5th respondent herein had candidly admitted before the Division Bench of this Court in that writ appellate proceedings that he is not having the aforestated qualification and this can be found in para 6 on pages 8 and 9 of Ext.P-7 judgment [see pages 69-70 of the paper book of W.P.(C).No.25012/2015]. In that specific view of the matter, their Lordships of the Division Bench held that as what was sought was a certiorari against the impugned selection and appointment of the petitioner herein, the 5th respondent herein cannot sustain his prayer for quashment of the appointment of the selected candidate as the 5th respondent herein is not having the aforestated specific qualification and therefore, he cannot make a challenge against the impugned selection process in view of the W.P.(C).25012/15&C.C. - : 11 :-
rulings of the Apex Court in cases as in B.Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees' Assn reported in (2006) 11 SCC 731, para 78 and Kumari Chitra Ghosh v. Union of India (Constitution Bench ruling) reported in (1969) 2 SCC 228, para 12. The finding of the Division Bench that the writ petitioner therein (5th respondent herein) did not satisfy the vital criteria of guiding research students, is adverted to in para 6 and para 10 of Ext.P-7 judgment. Further the Division Bench also found that the action in relying on the Search Committee as well as the procedure adopted by the said Search committee is fully in order and is within the broad parameters of the jurisdiction of such bodies, which are invested with the responsibility to search and suggest suitable names to the Government in respect of positions which are of high responsibilities, like in the instant case and that there was nothing wrong in the action of the Search Committee in taking steps to find out a suitable person, after having found that all the applicants, who had responded to the notification, were unsuitable, etc. The Division Bench also found that there was nothing in Ext.R-3(a) rules therein (viz., Ext.P-4 rules herein), which in any way prescribes any upper age for the post of Director of GIFT W.P.(C).25012/15&C.C. - : 12 :-
and that no illegality or impropriety was detected by the Search Committee or by the State Government in recommending and appointing the name of the petitioner herein as Director, in spite of the fact that he had crossed the age of 59 as on cut of date in question. Very crucially the Division Bench has acknowledged the asserted stand of the respondent State Government referred to in para 7 of Ext.P-7 judgment that "the State Government stands by Ext.P-2 order of appointment" viz, Ext.P-5 herein. Though the Division Bench held therein that the Search Committee should be given sufficient flexibility and free play in its joints to discharge its high function of suggesting suitable names to the State Government for filling up such posts of very high responsibility, their Lordships also underscored the necessity that such flexibility should not allow the Search Committee to be denigrated to the position where it will act with caprice and will follow no procedure at all and that such a high powered expert Search Committee must devise a method by which it will devote its time, co-ordinate with each other and make concerned efforts so that the best talent is discerned and a panel of names is made available to the Government, etc. In the light of these conclusive findings, more particularly regarding the lack of W.P.(C).25012/15&C.C. - : 13 :-
qualification of the writ petitioner therein (5th respondent herein), the Division Bench has set aside the impugned judgment of the learned Single Judge in W.P.(C).No.19734/2012. It may be noted that Ext.P-7 judgment was rendered on 9.9.2013, whereas the extended term of the petitioner herein as Director of GIFT in terms of Ext.P-12 G.O. had expired on 4.9.2013 and he was thereupon consequently relieved from that responsibility on 4.9.2013 itself as per Ext.P-6 G.O. Therefore, the Division Bench took note of the submissions made on behalf of the State Government that fresh selection in accordance with the relevant rules will be made at the earliest. The Bench made it clear that the learned Single Judge should not have interfered with the impugned selection process and had accordingly set aside the impugned judgment and had allowed the appeal as indicated above.
7. Thereafter, the State Government had issued Ext.P-15 selection notification inviting applications for selection to the post of Director GIFT [which is also Ext.P-5 in W.P.(C).No.27671/2015) wherein the last date of receipt of application was 28.2.2014 and it was also stipulated therein that applicants should not be more than 65 years of age as on 1.1.2014. It was also made clear that the W.P.(C).25012/15&C.C. - : 14 :-
grade of Director, GIFT will be equivalent to that of a Pro Vice Chancellor and further that as regards the pay scale, it is made clear therein that the pay band of Director will be aforementioned scale of pay including academic grade pay as mentioned earlier for the post of Pro Vice Chancellor. It appears that since the aforestated Ext.P-15 notification was not advertised in the "Economic & Political Weekly" (EPW) and in the media list of Information and Public Relations Department of Government of Kerala, the State Government had issued a revised notification as per Ext.P-8 stipulating that the last date of application will be 15.8.2014. However, all the other aforementioned conditions in Ext.P-15 have not been in any way altered in Ext.P-8, which was issued subsequently. It has been made clear in Ext.P-8 that the appointment will be on regular basis or on deputation basis and if it is on deputation basis, the period will be five years, etc. It is further made clear therein that the Search Committee will reserve the right to contact the qualified hands, who have not responded to the advertisement for the post, etc. The Government had issued G.O(Rt) No.968/2013/TD dated 11.12.2013 [Ext.P-4 in W.P.(C).No. 27671/ 2015] constituting a Search Committee for the above said selection W.P.(C).25012/15&C.C. - : 15 :-
consisting of Sri.E.K.Bharat Bhushan, Chief Secretary to Government of Kerala and one Sri.K.K.George, Chairman, Centre for Social Economic & Environmental Studies (CSES) who were to suggest Government suitable names in the fields concerned for being considered for Full Time appointment as Director of GIFT. Later one Sri.Brajamohan Misra, Principal Advisor, Department of Economic Policy Research, Reserve Bank of India, Mumbai, was also included as subject expert to aid the Search Committee in the above process of selection. About 47 candidates including the petitioner herein and the 5th respondent herein had responded to the above said Ext.P-8 notification and the Search Committee shortlisted the names of 5 candidates, who were invited for interview on 23.1.2015 in the chambers of the Chief Secretary to State Government. Two of them, though based in Trivandrum, had informed about their personal inconvenience to attend the interview and wanted a change of date which was declined by the committee, as it was found by them that those candidates have exhibited their lack of seriousness and enthusiasm for the post in spite of their being based in Thiruvananthapuram and had accordingly rejected their request for another opportunity for the interview. Yet another had informed the W.P.(C).25012/15&C.C. - : 16 :-
Committee that he is not attending the interview. The Committee conducted the interview of the remaining two candidates, ie the petitioner herein and the 5th respondent herein, and based on their review of their profiles in details and on the basis of the personal interview, the Committee suggested the names of two persons by including the petitioner herein as No.1 in the merit assessment and the 5th respondent herein as No.2 thereof. These aspects are evident from Ext.P-9 (8 &9) given on pages 95 and 96 of the paper book of the W.P.(C).
8. The administrative Department concerned in the State Government which is invested with the responsibility of having control and supervision over the respondent GIFT, is the Government in the Taxes Department. The State Government authorities in the Taxes Department considered the recommendations made by the Search Committee recommending the name of the petitioner herein and opined in para No.169 of Ext.P-9 file notes that the GIFT is an autonomous institution under the Government of Kerala and that though there is no specific provision in the Rules of Business regarding the procedure to be adopted for appointment of the head of the autonomous institution W.P.(C).25012/15&C.C. - : 17 :-
like GIFT, the procedures prescribed for appointment to the post of head of the department/Director in other institutions have to be adopted and that the matter is accordingly to be placed before the Council of Ministers of the State Government for taking a decision on the question of selection and appointment to the post of Director, GIFT. In para 170 of Ext.P-9 file notes the Taxes Department sought the approval of the competent authority of the State Government regarding the approval of the Cabinet to be obtained for appointment of the petitioner herein, who stood first as per the list furnished by the Search Committee, as Director, GIFT on regular basis in the scale of pay concerned on the basis of the selection made by the Search Committee constituted for the purpose and in para 171 of Ext.P-9 file notes, it was pointed out that the matter may be circulated to the Chief Minister for orders on the above matters. These file endorsements are seen made by the Additional Secretary to Government in the Taxes Department. Thereafter, the matter was placed before the Chief Secretary and the Principal Secretary to Government (Taxes Department) and it was opined that the State has to prepare for migration to the Goods and Services Tax (GST) regime by the 1st of April, 2016 and that the W.P.(C).25012/15&C.C. - : 18 :-
Director of GIFT has to play a major role in capacity building of the stake holders and advising the State Government and that proposal at para 170 of the file notes may be approved and the matter may be placed for consideration of the Council of Ministers, etc. This was fully endorsed and concurred by the Chief Secretary and the Principal Secretary, Taxes Department on 28.1.2015, as can be seen from Ext.P-9(7) produced on page 94 of the paper book of the W.P.(C).
9. It appears that instead of placing the files before the Chief Minister for orders regarding consideration of the matter by the Council of Minister as referred to in para 171 of the file notes at Ext.P-9(5) and Ext.P-9(7) as mentioned above, the file was placed before the Finance Minister for further consideration as can be seen from Ext.P-10 file notes which contains paras 178-181 of the said file notes in continuation of Ext.P-9 file notes. In Ext.P-10 file note proceedings, the Minister for Finance on 23.2.2015 takes the stand that Rule 13 of the Service Rules of the respondent-GIFT states that the retirement age of the Institute shall be 60 for academic staff and 55 for others and that retirement age of staff on deputation from other department will be covered from which they have been W.P.(C).25012/15&C.C. - : 19 :-
deputed to the Institute and that Rule 4 (1) defines academic staff as those who are engaged for academic work and shall include Director, Registrar, etc., and that the petitioner has completed the age of 60 as on 1.1.2014 as his date of birth is 1.12.1953 and that the choice was made only from two candidates, who turned up for the interview and that three days short notice for the interview would have been the reason for lower turn out. It even further proceeds to say that it is not clear from the details as to whether the petitioner's qualifications are in one of the fields of specialisations mentioned in the selection notification and that it is not legally proper to select the petitioner for appointment as Director of the GIFT. These aspects are stated in para 179 of Ext.P-10 file notes. Para 180 of Ext.P-10 further takes a view that in order to wider the selection, a fresh selection process may be initiated immediately indicating the upper age limit of 57 years to open candidates so that the candidate selected will get atleast three years tenure and deputation candidates as per GIFT service Rules and wide publicity may be given for such fresh notification. A mere reading of Ext.P- 10 file notes of the Minister for Finance would clearly indicate that it proceeds with premise as if Ext.P-3 Service Rules of the erstwhile W.P.(C).25012/15&C.C. - : 20 :-
body CTS is the Service Rules for the respondent-GIFT and that therefore the Director's superannuation age is 60 by importing Ext.P-3 Service Rules of the CTS. Further even the date of birth of the petitioner is seen erroneously shown as 1.12.1953 whereas his correct age as per Ext.P-1 curriculum vitae is 12.1.1953. Aspects regarding the so called lower turn out of the candidates for the interview is seem to be an attempt to sit in judgment of the considered view of the Expert Search Committee headed by the Chief Secretary and the other experts concerned. The further doubts expressed regarding academic speciality of the petitioner appears to go quite contrary to the conclusive findings of the Division Bench of this Court in Ext.P-7 judgment more particularly in para 18 thereof wherein the Division Bench adverted to this specific aspect regarding the academic field of the petitioner and takes the considered view that all those aspects are matters which fall within the province of the experts as the then Expert Search Committee consisting of a former Cabinet Secretary and the expert concerned (one Professor M.Govinda Rao) had clearly found that the petitioner is qualified and suitable for the high position of Director of GIFT. Further, the Division Bench therein clearly held that unless W.P.(C).25012/15&C.C. - : 21 :-
lack of suitability is so palpable which is not so in this case the Court shall not interfere with the task done by experts. It is also relevant to note that the State Government had taken the clear and precise stand that they are fully standing by Ext.P-2 order of appointment given to the petitioner (Ext.P-5 herein) and the said submission of the Government is recorded in para 7 of Ext.P-7 judgment. It is only in the light of the aforesaid directives of the Finance Minister rendered on 23.2.2015 as disclosed in Ext.P-10 (see page 97 of the paper book) that the Principal Secretary to Government (Taxes) had ordered in para 182 of Ext.P-10 file note proceedings (see page 98 of the paper book of the Writ Petition) to comply with the directives of the Finance Minister in issuing fresh selection notification. It is only on the basis of the above said decision rendered by the Finance Minister in Ext.P-10 that the Government had issued Ext.P-11 selection notification dated 9.6.2015 [which is Ext.P-7 in W.P.(C).No.27671/2015] again inviting applications for selection to the post of Director of GIFT. It is these impugned proceedings at Exts.P-10 and P-11 selection notification that are essentially under challenge in the above proceedings in W.P(C).No.25012/2015 and the prayers in that Writ W.P.(C).25012/15&C.C. - : 22 :-
Petition (Civil) are as follows:
"(i) To call for records leading to Ext.P10 and P11 and quash the same by issuance of a writ of certiorari or any other appropriate writ, direction or order;
(ii) To declare that the denial of appointment to the petitioner as Director, Gulati Institute of Finance and Taxation after finding the petitioner suitable by the Search Committee constituted by the 1st respondent pursuant to Ext.P8 Notification is illegal, arbitrary, unreasonable, ultravires of the rules of business of the Government of Kerala, violative of principles of natural justice and Articles 14 and 16 of the Constitution;
(iii) To issue a writ of mandamus or any other writ, direction or order commanding the respondents to appoint the petitioner as the Director, Gulati Institute of Finance and Taxation, within a time fame that may be fixed by this Hon'ble Court.
(iv) To issue such other writ, direction or order which this Hon'ble Court may deem just and proper in the facts and circumstances of the case, and
(v) To award compensatory cost."
10. The main grounds urged by the petitioner are that going by the specific provisions in the Rules of Business framed under Article 166 of the Constitution of India, matter of this nature could have been decided only by the Council of Ministers after getting requisite order from the Chief Minister and that the said specific procedures mandated as per the business rules framed under the provisions of Article 166 of the Constitution of India has been blatantly violated and by passed inasmuch as the final decision in that regard has been rendered unilaterally by the individual Minister W.P.(C).25012/15&C.C. - : 23 :-
concerned (Finance Minister) as evident from Ext.P-10 proceedings. Therefore, it is urged that the impugned Exts.P-10 and P-11 proceedings are liable to be set aside on these grounds alone and the matter is remitted to the competent authority of the State Government so that the matter may restart from where it was so ordered by the Chief Secretary in Ext.P-9 by placing the matter for necessary orders of the Chief Minister and then to have a final decision in the matter by the Council of Ministers as mandated in the Rules of Business, etc. Further, it is urged that the three specific grounds stated in the impugned Ext.P-10 rejection proceedings are based on irrelevant, arbitrary and ultra vires considerations inasmuch as even going by the submissions now sought to be advanced by the official respondents, the memorandum of association of the erstwhile body (CTS) was amended in terms of the provisions contained in the Act and a new memorandum of association has been duly registered on 1.10.2009 as per Ext.P-4 bye laws which automatically leads to the situation that the provisions in the memorandum of association of erstwhile body (CTS) as per Ext.R-1(e) gets effaced and replaced. That on account of this effacement of Ext.R-1(e) memorandum of association, W.P.(C).25012/15&C.C. - : 24 :-
Ext.P-3 service rules of erstwhile CTS which was framed under the enabling powers under Rule 11(29) of Ext.R-1(e) will also get automatically effaced more particularly in view of the fact that no specific provision has been made in the new memorandum of association and rule of GIFT as per Ext.P-4 that the previous rules framed under Ext.R-1(e) will continue to govern until the same is replaced or altered by new rules framed under Ext.P-4, etc. It was pointed out that even if the registration of erstwhile body (CTS) and the new body (GIFT) is one and the same, it is the specific stand of the official respondents as evident from Ext.R-1(a) Government Order that the change involved not mere renaming of the body but upgradation and elevation of the old body as a new one wherein the new body is subject to the tripartite participation of new institution (GIFT) as well as the State Government and Government of India.
Moreover, the nature and position of the governing body like the governing body in the new Body as per Ext.P-4 is quite distinct and is qualitatively and substantially of a different nature compared to the one envisaged in Ext.R-1(e) for the old body (CTS). That both Exts.P-8 and P-11 in this Writ Petition as well as Exts.P-5 to P-7 in W.P.(C).No.27671/2015 would clearly show that the new body is an W.P.(C).25012/15&C.C. - : 25 :-
autonomous body governed by the Government of Kerala with the financial assistance of Government of India. That such tripartite involvement was conspicuously absent in the setting up of previous body as per Ext.R-1(e) for CTS. Therefore, in the light of these aspects, it is urged that the old service rules as per Ext.P-3 will not automatically apply to the new institution covered by Ext.P-4. Further that it is certainly open to the competent authority among official respondents either to adopt the old rules on the basis of resolution which is also absent in this case or at best they could have by way of a defacto practice adopted some of the provisions in the old rules as deemed fit and proper in that regard by such consistent defacto practice on a case to case basis or otherwise, especially for the lower category of posts and personnel. Those old rules as per Ext.P-3 could govern the service conditions of administrative personnel and such other staff in the absence of any specific rules framed under Rule 10 (XXIX) of Ext.P-4 Rules. That the most vital aspect of the matter is that Rule 21(iv) of Ext.P-4 clearly mandate that notwithstanding anything contained in any of those articles, the State Government may from time to time issue such directions or instructions as the Government may consider W.P.(C).25012/15&C.C. - : 26 :-
necessary in regard to the affairs of the conduct of the business of the Society or the Governing Body thereof and in like manner, vary and annul any such direction or instructions and the Governing Body shall duly comply with and give immediate effect to the directions or instructions so issued, etc. That in the light of this provision and in the light of the powers conferred to the State Government as the appointing authority to the post of Director of GIFT as conferred by Rule 6(ii) of Ext.P-4, the State Government has consciously laid down some of the norms for selection to the post of Director of GIFT as evident from Ext.P-14 as well as Ext.P-8. It is by taking into consideration these aspects that the Division Bench found in Ext.P-7 judgment that Ext.R-3(e) rules therein (Ext.P-4 herein) does not provide for any upper age limit for the post of Director and there was nothing wrong or illegal on the part of the authority concerned in selecting the petitioner as Director of GIFT as per Ext.P-5, even though Ext.P-14 selection notification dated 4.11.2011 provided that the applicants should not have crossed the age of 55 years as on 1.1.2012. Further it is urged that the ostensible ground projected in Ext.P-10 is that superannuation age for the post of Director of GIFT is 60 years and that it is to achieve this purpose so W.P.(C).25012/15&C.C. - : 27 :-
as to ensure that the selected candidate, the incumbent for the post of Director shall not continue in service beyond the age of 60 years that the decision in Ext.P-10 was taken which led to Ext.P-11 whereas this ostensible purpose is totally frustrated and given a go by in the actual decision taken in Ext.P-11 wherein it is shown that the incumbent selected as Director of GIFT could continue to the age of 65 and that the upper age limit of such interested applicants could not be more than 60 as on 1.8.2015. Thus it is urged by the learned counsel for the petitioner that it is nothing short of legal malice and colourable exercise of power and is also ultra vires for the various reasons stated hereinabove.
11. The official respondents 1 to 3 (State authorities concerned) have filed their counter affidavit dated 25.11.2015 in this Writ Petition to resist the pleas of the petitioner. It is stated therein that as per Ext.R-1(a) G.O(MS).No.31/09/TD dated 25.2.2009, Government has decided to upgrade and elevate the old body (CTS) as a new body with the name Gulati institute of Finance and Taxes (GIFT) and that it has been decided to register the said institution as such under the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955, and that sanction is W.P.(C).25012/15&C.C. - : 28 :-
also accorded to Ext.P-4 memorandum of association and rules for the new body and that sanction is also accorded to the new body (GIFT) in entering into tripartite participation with Government of India and State Government as laid down in the memorandum of association. That Ext.R-2(a) Government Order was issued only later for the purpose of granting approval for the newly constituted governing body of GIFT, etc. That the old service rules as per Ext.P-3 would certainly apply to the new institution and that therefore the retirement age for the post of Director of GIFT shall be 60 years of age as it has been included as one post among the academic staff of erstwhile CTS. That the expert search committee consisting Chief Secretary and others (constituted as per G.O(Rt).No.968/2013/TD dated 11.12.2013) have considered various aspects of the selection and their recommendations were duly placed in which the petitioner herein was shown as No.1 in the merit list and the contesting 5th respondent herein [petitioner in W.P.(C).No.27671/2015] was No.2 thereof, that since the petitioner herein had crossed the age of 60, he was ineligible to be appointed as Director of GIFT and therefore the impugned decision was taken as per Ext.P-9 to go in for a fresh selection which resulted in Ext.P-11 selection notification dated W.P.(C).25012/15&C.C. - : 29 :-
9.6.2015. Accordingly, official respondents 1 to 3 endeavour to justify the impugned rejection proceedings as per Exts.P-10 and P-
11. Further the contention of the petitioner that the Minister for Finance should not have dealt with the files as per Ext.P-10 is also rebutted and the pleas of the petitioner that the said action of the Minister for Finance is tainted by reasonable likelihood of bias inasmuch as he was also the Chairman of GIFT at the relevant time is also resisted and rebutted by pleading that the said Minister for Finance was having the portfolio control over the functioning of the Administrative Department concerned (Taxes Department) which in turn has administrative control and supervision over the GIFT and that therefore there was no question of any bias on the part of the said authority in taking the impugned decision and further it is also urged in the counter affidavit that there is absolutely no violation of provisions of rules of business as alleged by the petitioner. It is further stated in para 10 of the counter affidavit that the fixation of the upper age limit of 65 years as on 1.1.2014 in Ext.P-8 was clearly wrong as any incumbent in the post of Director of GIFT had necessarily to superannuate on his/her attaining the age of 60 years going by Ext.P-3 rules of CTS which are applicable to GIFT as well.
W.P.(C).25012/15&C.C. - : 30 :-
The official 4th respondent (GIFT) has also filed a separate counter affidavit which particularly follows the line of the submissions and contentions as the one raised by the State Government in their counter affidavit.
12. The additional respondent No.5 has also filed a separate counter affidavit dated 3.7.2016 in this W.P.(C). It is relevant to note that the interests of both the petitioner herein as well as R-5 herein would coincide to the extent that both of them sail together in impugning Exts.P-10 and P-11 have ordered for a fresh selection.
The divergence in their stand is that whereas the petitioner herein would also challenge the rejection of his candidature ordered as per Ext.P-10, contesting respondent No.5 appears to toe the line of the official respondents to the limited extent that Ext.P-9 has found that the petitioner is ineligible to hold the post of Director of GIFT as the superannuation age for that post is 60 years. The line adopted by R-5 is that the decision in Ext.P-9 to the extent it excludes the petitioner should be upheld and the decision therein to the extent it orders for a fresh selection should be set aside by this Court and in line with that, contesting respondent No.5 has raised his submissions and contentions in his counter affidavit. It is contended that the W.P.(C).25012/15&C.C. - : 31 :-
reasoning given in Ext.P-10 that Ext.P-3 rules for CTS would also be applicable for the respondent GIFT is correct and therefore the superannuation age for the post of Director of GIFT is 60 and that if that be so, R-5 herein, who is serial No.2 in the list prepared by the Search Committee, should necessarily be selected and appointed as Director of GIFT and that there was no justification to go for a fresh selection. It is also urged by him that the task entrusted with the Search Committee was only to suggest a panel of three names and that therefore the Search Committee was convinced that only two names are to be included, then it should have been only a panel of two names and that showing the order of merit priority in the list forwarded by them by placing the petitioner as serial No.1 and R-5 herein only as serial No.2 thereof, is also illegal and improper, etc. The petitioner herein has filed his separate reply affidavits to the counter affidavits of the respondent State authorities, R-4 GIFT as well as R-5, reiterating his contentions as to how the grounds urged by those respondents to defeat his claim are not tenable or sustainable, etc.
13. In the reply affidavit filed to the counter affidavit of additional R-5 in W.P.(C).No.25012/2015 it has been disclosed as W.P.(C).25012/15&C.C. - : 32 :-
per Ext.P-13 RTI proceedings dated 28.9.2012 issued by the respondent GIFT that R-5 was appointed as Research officer and his post was subsequently re-designated as Associate Professor and his core area of activity is co-ordinate research works in the areas of revenue augmentation, public expenditure management and policy formulation and that course sessions and training programmes are handled by other faculty members of the institute and that as per the part of VAT implementation, he has been engaging some sessions in the training/public awareness programmes organized by GIFT and further that the institute is not affiliated to any of the Universities and as such, no Ph.D or M.Phil programmes are officially launched in GIFT and that R-5 has not applied for research guide-ship in any of the University, etc. Accordingly, the petitioner contends not only that R-5 herein does not have research guide ship, but also that he is not having requisite teaching experience as he was appointed only as Research Officer with core focus to coordinate research works in the areas concerned though the said post was subsequently re-designated as Associate Professor, etc.
14. The 5th respondent in W.P.(C).No.25012/2015 is the writ petitioner in the second Writ Petition, viz., W.P.(C).No. 27671/2015.
W.P.(C).25012/15&C.C. - : 33 :-
The basic approach in the Writ Petition filed by the petitioner in W.P.(C).No.27671/2015 is broadly in line with his submissions and contentions as R-5 in W.P.(C).No.25012/2015. Accordingly, it is contended that he should have been selected and appointed as Director of GIFT pursuant to the selection notification in question [Ext.P-8 in W.P.(C).No.25012/2015], since additional respondent No.4 in that W.P.(C). [petitioner in W.P.(C).No.25012/2015] could not continue as Director of GIFT, as he had crossed the superannuation age of 60 years, etc. In the light of these aspects, the prayers raised in W.P.(C).No. 27671/2015 are as follows:
"1. Issue writ of mandamus or any other direction, order, commanding respondents No.1 and 2 to appoint the petitioner as Director of Gulati Institute of Finance and Taxation (GIFT), Thiruvananthapuram.
2. To call for the records leading to Exhibit P7 and thereby issuing a writ of certiorari or any other appropriate writ, direction or order by quashing Exhibit P7 notification.
3. Petitioner is to be granted such other reliefs, which are appropriate and incidental to this writ petition."
15. Official respondents 1 and 2 (State authorities) as well as official No.3 (GIFT) have filed separate counter affidavits in this W.P.(C). also, in line with the submissions and contentions in the other W.P.(C). and mainly urging that their action in, not only finding the candidate with serial No.1 in the Search Committee list as W.P.(C).25012/15&C.C. - : 34 :-
ineligible as he had crossed the superannuation age of 60 years as well as their action in going for a fresh selection as per the impugned notification are both correct. Additional respondent No.4 in W.P.(C).No.27671/2015 [petitioner in W.P.(C).No.25012/ 2015] has also filed his separate counter affidavit in the matter urging the same contentions and submissions as raised by him in the W.P.(C). filed by him and thus resisting the pleas in the latter W.P.(C).
16. Heard Sri.M.P.Prakash, learned counsel for the writ petitioner in W.P.(C).No.25012/2015, who is also the learned counsel appearing for the said party, who is arrayed as additional R- 4 in W.P.(C).No.27671/2015, as well as Sri.Ranjith Thampan, learned Addl. Advocate General, instructed by Sri.Viju Abraham, learned Senior Government Pleader appearing for the official respondents [State authorities concerned in both the W.P.(C)s.], Sri.Sergi Thomas, learned Standing Counsel for GIFT appearing for the respondent GIFT both the W.P.(C)s. and Sri.D.Ganesh Kumar, learned counsel, who is appearing for R-5 in W.P.(C).
No.25012/2015 as well as for the said party, who is the petitioner in W.P.(C).No.27671/2015.
17. At the outset, it may be relevant to refer to some of the W.P.(C).25012/15&C.C. - : 35 :-
aspects relating to the issues as to whether there is any prescribed upper age limit for the post of Director of GIFT and also as to whether there is any superannuation age prescribed for the post of GIFT, etc. In that regard it may be apposite to refer to some of the conclusive findings rendered by the Division Bench of this Court in Ext.P-7 judgment in relation to the selection process covered by the earlier selection notification as per Ext.P-14 dated 4.11.2011:-
"It is submitted that the Government stands by Ext.P-2 order of appointment" (see para 7 of Ext.P-7) (Ext.P-2 therein is Ext.P-7 herein).
"In such circumstances, we are of the view that we have proceeded on the basis that writ petitioner was not qualified though he was a candidate. Going by the judgment reported in (2006) 11 SCC 731, the petition is not maintainable. We would think that in such circumstances, it may not have been appropriate to entertain the writ petition at the instance of the writ petitioner in this case"
(see para 10 of Ext.P-7) "We are of the view that making selection by the mode of the Search Committee cannot be called in question" (see para 12 of Ext.P-7) "The concept of Search Committee cannot be said to fall foul of constitutional values;"
(see para 13 of Ext.P-7) "But we would think that in so far as the Ext. R3(A) Rules does not contemplate the maximum age limit and in so far as the appellant was found to be otherwise suitable by the Search Committee, it may not appropriate to consider the matter." (see para 17 of Ext.P-7) "In view of the position, as we have already found, we find that the learned Single Judge should not have interfered in the matter. The writ appeal is allowed. The judgment of the learned Single Judge will stand set aside". (see para 19 of Ext.P-7) "Even though it is true that the writ petitioner does have a case that the writ appellant is not qualified, .... we are of the view that all such matters fall in the province of the experts. Unless the lack of suitability is palpable, which is not so in this case, the court shall not interfere with the task entrusted to the experts" (see para 18 of Ext.P-7).
W.P.(C).25012/15&C.C. - : 36 :-
" Then the learned counsel for the Writ Petitioner would point out that a fresh and fair selection may be directed. Learned Government Pleader would submit that a fresh selection in accordance with the relevant rules will be done at the earliest. We record the said submission. In view of the position, as we have already found, we find that the learned Single Judge should not have interfered in this matter. The Writ Appeal is allowed. The judgment of the learned Single Judge will stand set aside." (see para 19 of Ext.P-7
18. Therefore, one thing is quite crystal clear like the day light in that it has been fully concluded by the Division Bench in Ext.P-7 judgment (which is indeed an inter-parties judgment as between all the parties herein) that there is no upper age limit prescribed for the post of Director of GIFT as per the rules governing the field. The State Government had also fully supported as stood by the order of appointment given to the petitioner as Director of GIFT as per Ext.P-5 herein, which is evident from a mere reading of para 7 of Ext.P-7 judgment. True that upper age limit for recruitment to any post as on the cut of date in question that may be mentioned in the selection notification, is distinct from the age of superannuation, if any, prescribed for the post to which selection is carried out. But one thing that is staring at all the parties, who are bound by the inter-parties judgment as well as this Court (which is bound by the relevant findings rendered by the Division Bench in Ext.P-7 judgment) is that, if indeed the State Government had any case that there was a superannuation age that was applicable for the post of W.P.(C).25012/15&C.C. - : 37 :-
Director of GIFT, then certainly they should have taken the clear and cogent stand before the Division Bench that the age of superannuation for the post in question flows from any particular provision of the rule that they would place reliance on and that if that be so, then none could have continued as Director of the institution beyond such superannuation age, if so prescribed, more particularly as Ext.P-4 rules of GIFT do not envisage any provision for reemployment of retirees and that, therefore, the State Government should have certainly urged that an upper age limit for selection to the post of Director would flow as a natural corollary or at least by necessary implication from the aspect regarding such prescribed superannuation age, if any. On the other hand, though Ext.P-14 selection notification dated 4.11.2011 stated that the applicants should not have crossed the age of 55 years as on 1.1.2012 and though the petitioner, whose date of birth being 12.1.1953, had crossed the age of 55 years as on 1.1.2012 (and had attained the age of 60 years on 12.1.2013), the State Government unequivocally and unambiguously took up the stand before the Division Bench in Ext.P-7 writ appellate proceedings that they are fully standing by and the vindicating their appointment W.P.(C).25012/15&C.C. - : 38 :-
order as per Ext.P-5 dated 23.2.2012 given in favour of the petitioner as Director of GIFT. It is also relevant to note that the respondent State Government had also granted extension of the said appointment covered by Ext.P-5 for a further period of 6 months as per Ext.P-12 dated 17.5.2013, at a point of time when the petitioner had already attained the age of 60 years as on 12.1.2013. Even quite independently from the above said stand taken by the respondent State Government in Ext.P-7 that they are fully standing by the appointment order given to the petitioner herein, their Lordships of the Division Bench had also on their own, come to the considered conclusion that there is no upper age stipulation as far as the post of Director of GIFT is concerned.
Therefore, though the provision for upper age limit for recruitment to a post as on the relevant cut of date is distinct from the provision for superannuation age for the same post in question, the issues in this regard as far as this case is concerned, are so inextricably and intimately interwoven with each other that this Court prime facie is unable to fathom as to the correctness of the stand taken in the impugned Ext.P-10 proceedings to rake up this issue as to the eligibility or otherwise of the candidates, vis-a-vis the W.P.(C).25012/15&C.C. - : 39 :-
superannuation age, when the issues as to whether the superannuation age and upper age limit for the post in question are so intimately connected with each other.
19. Further, it may be noted that it has been specifically stipulated in Ext.P-14 selection notification dated 4.11.2011 that the applicant should be in the rank of "Associate Professor or Professor, who is academically and professionally qualified to hold the post of a 'Pro-Vice Chancellor' as per the U.G.C norms". It is also stipulated therein that the grade of Director, GIFT will be equivalent to that of 'Pro-Vice Chancellor' as per the UGC norms contemplated in G.O(P) No.58/2010/H.Edn. dated 27.3.2010 [Ext.R-1(c)] issued by the State Government. In Ext.P-14 notification issued by the respondent State authorities, it has been consciously decided to adopt the academic and professional qualifications for the post of Pro-Vice Chancellor as per the UGC norms. The relevant norms are contained in UGC (Minimum Qualifications for Appointment of Teachers and Other Academic Staff in the Universities and Colleges and other measures for Maintenance of Standards in Higher Education (Regulations), 2010 framed under the provisions of the UGC Act, which has been published as per notification dated 30.6.2010 in Gazette of India, W.P.(C).25012/15&C.C. - : 40 :-
which is UGC Notification dated 30th June, 2010 published in Gazette of India dated 18.9.2010 and the said norms were in currency at the time of issuance of Ext.P-14 dated 4.11.2011. Regulation 2.1.0 of those UGC Regulations prescribe that the revised scales of pay and other service conditions including age of superannuation in central Universities and other institutions maintained and/or funded by the UGC shall be strictly in accordance with the decision of the Department of Education of the Government of India in the Ministry of Human Resources Development, as contained in Appendix-1 thereof. Clause 8(f) of the aforestated Appendix 1 of the regulations (which contains the aforestated Government of India in the Ministry of Human Resource Development (Department of Higher Education, letter dated 31.8.2008) stipulated that the superannuation age of the teachers in such Central Education Institutions, has already been enhanced to 65 years vide the said Department of Higher Education's earlier letter dated 23.3.2007 and further that the Central Government has already authorized the Central Universities vide Department of Higher Education's letter dated 30.3.2007 to enhance the age of superannuation of Vice W.P.(C).25012/15&C.C. - : 41 :-
Chancellor of Central Universities from 65 to 70 years etc, and that re-employment of teachers beyond the age of superannuation of 65 could be done selectively for an initial limited period of 3 years at the first instance and then for another period of two years purely on the basis of merit, experience etc. Thus it can be seen that as per the said UGC regulations, the superannuation age of teaching faculty in the grade of Assistant Professor, Associate Professor etc, is 65 years of age and that of the Vice Chancellor is 70 years and even the teachers could be re-employed upto a maximum age of 70 years, subject to their merit and speciality etc. Regulation 7.1.0 of the UGC regulations 2010 stipulates that "Pro-Vice Chancellor may be a whole time Professor of the University and shall be appointed on the recommendation of the Vice Chancellor" and that Regulation 7.2.0 thereof stipulates that "Pro-Vice Chancellor shall hold the office for a period which is co terminus that of Vice Chancellor". Therefore, going by the UGC regulations, a Professor who has not attained the superannuation age of 65 years can be appointed as Pro-Vice Chancellor (PVC) as per those norms. Therefore, even going by the prescription in Ext.P-14, at best it could be said that the upper age limit for the post of Director of GIFT should be that the applicant W.P.(C).25012/15&C.C. - : 42 :-
should not have crossed the age of 65 years as on the cut off date that is adopted for the selection in question. Ext.P-14 clearly stipulates that the tenure of the period of appointment of Director of GIFT shall be for a period of five years. If the UGC norms are appropriately read into the prescriptions in Ext.P-14, at best it could be understood that the upper age limit could be 65 years as on the relevant cut off date and going by the further prescriptions in Ext.P- 14, the selected incumbent's fixed period of tenure shall be for a period of five years from the date of appointment. It is also clear from a mere reading of Ext.P-14, that those prescriptions therein have been made on the basis of the recommendations of the High Powered Search Committee consisting of the former Union Cabinet Secretary (Sri.K.M.Chandrashekharan) and other member (viz., Prof.M.Govinda Rao) who is a member of the Prime Minister's Advisory Council. It is after the acceptance of these considered recommendations of that high powered body, the State Government had chosen to issue and publish Ext.P-14 selection notification. As the post of Director of GIFT is of a very high responsible nature, Government would have thought it fit that, if at all there is an upper age limit, it could be 65 years (though 55 years is explicitly W.P.(C).25012/15&C.C. - : 43 :-
mentioned in Ext.P-14) and that going by the various requirements of the Government to have an eminent person as their Advisor in the capacity as Director of GIFT, they would have thought it fit, that even, those aspect regarding the upper age limit, if any, could be dispensed with, in a given case, etc, by virtue of the enabling overriding powers conferred on the State Govt. as per Rule 21(iv) of Ext-P-4 GIFT Rules. At best, the Government could have raised some contentions of this nature. The fact of the matter remains that the Division Bench of this Court has categorically concluded in Ext.P-7 judgment that there is no upper age limit for the post of Director of GIFT as per the rules governing the field. There is yet another interesting aspect of this matter as the UGC norms which are seen adopted in Ext.P-14, clearly stipulate that "only a person in the rank of Professor can be appointed as Pro-Vice Chancellor", whereas Ext.P-14 selection notification mentions that either "an Associate Professor or Professor who is academically and professionally qualified as Pro-Vice Chancellor, should be the norm". There appears to be inherent contradiction in this prescription in opting for either an Associate Professor or Professor as once the UGC norms are adopted, one could only go for a person in the rank of Professor, for W.P.(C).25012/15&C.C. - : 44 :-
the post of Pro-Vice Chancellor and not in the rank of Associate Professor. This may have some implication regarding the qualifications of R-5 as well as the prescription in Ext.P-14 is concerned. But that issue need not detain this Court any further, in as much as, the Division Bench has clearly found that R-5 herein was not having one of the qualifications of Research Guideship as far as Ext-14 selection is conerned, which was also an aspect, which was fully admitted by R-5 herein before the Division Bench in Ext.P-7 judgment as can be seen from a reading of para 6 and para 10 of that judgment. It may also be pertinent to note that a Full Bench of this Court, in the case Radhakrishna Pillai v. Travancore Devasom Board (W.P. (C).No.25253 of 2012, judgment dated 23.2.2016) reported in 2016 (2) KLT 245 (FB) had conclusively held in para 17 thereof that irrespective as to whether any of the State University Acts enacted under Entry 25 of List III of the Statutes framed thereunder are amended in line with the UGC regulations,2010 or not in view of the adoption by the State of Kerala with effect from 18.9.2010, the Universities and affiliated colleges in the State of Kerala are bound to comply with the UGC regulations, 2010 etc. Therefore, once by Ext.P-14, the State W.P.(C).25012/15&C.C. - : 45 :-
Government has adopted the UGC norms, in the matter of academic and professional qualifications of PVC for that selection to the post of Director, GIFT, the same would have binding force. But the specific prescription in Ext.P-14 regarding the adoption of UGC norms in the matter of academic and professional qualifications for the post of Pro-Vice Chancellor, has been given a go-by in the subsequent notifications issued as per Ext.P-15 and Ext.P-8 and even thereafter at Ext.P-11. Therefore, prima facie, it is seriously open to doubt as to whether there could even be an upper age limit of 65 years for the post of Director by the force of the application of any rule etc. Unless, the Government takes a conscious decision to stipulate any relevant upper age limit, as they deem fit and proper in the selection process in question. In Ext.P-8, the upper age limit prescribed is 65 years as on 1.1.2014 with the further condition that the selected incumbent will have a fixed tenure for a period of five years from the date of his appointment. Therefore, substantially, there does not appear to be much difference in the prescription in Ext.P-8, compared to the prescription in Ext.P-14 which had stipulated the adoption of the UGC norms as stated above.
21. The stand of the official respondents in Ext.P-10 is that, W.P.(C).25012/15&C.C. - : 46 :-
the age of superannuation prescribed for CTS as per the old rules in Ext.P-3 will continue to govern the state of affairs in GIFT and that even the post of Director of GIFT should be treated as an academic post as envisaged in the old rules and that therefore, by the force of the old rules, no incumbent can continue beyond the age of 60, which is urged as the age of superannuation for that post. Though it is specifically pleaded by the petitioner in W.P.(C).No.27671 of 2015 the old body (CTS) and the new body (GIFT) are distinct and separate bodies, the official respondents have only raised a contra pleading in their counter affidavits that GIFT has been created by the upgradation of the old body (CTS) and renaming of the latter as the former. There is no pleading anywhere asserted in by the official respondents that the registration of CTS still continues etc. However, the official respondents have submitted across the bar that consequent to Exts.R-1 (a) and R-1 (b) Government Orders, the decision of the Government was to upgrade and elevate the old body as a new body with the tripartite participation of Government of India, Government of Kerala and the new body (GIFT) and register the new body as such under the Travancore Cochin Literary Scientific and Charitable Societies Act, 1955. It is not even clear W.P.(C).25012/15&C.C. - : 47 :-
from a reading of Ext.R-1 (a) or R-1(b) Government Orders as to whether GIFT was separately registered as a new society distinct and separate from the old body (CTS). However, the submission made by the official respondents, across the bar, on the basis of instructions is that the registration of CTS continued as such and the Memorandum of Association of the old body was duly amended and substituted by the new Memorandum of Association of the new body and this was permitted by the Registrar of Societies as per proceedings dated 14.10.2009 pursuant to Exts.R-1 (a) and R-1(b) Government Orders. Therefore, the submission now pointed out before this Court, is that the old Memorandum of Association as per Ext.R-1(e) of the old body (CTS) was duly amended and replaced by the new Memorandum of Association and Rules as per Ext.P-4 for the upgraded and elevated new body re-nomenclatured as `GIFT'. The inevitable consequence is that the old Memorandum of Association as per Ext.R-1 (e) gets effaced and erased by the substitution of the new Memorandum of Association as per Ext.P-4. Therefore, prima facie, this Court is of the considered opinion that it is seriously open to doubt as to whether the old service rules as per Ext.P-3 framed under enabling provisions under Rule II(XXIX) of the W.P.(C).25012/15&C.C. - : 48 :-
old Memorandum and Rules as per Ext.R-1 (e) of the old body, will continue to have any efficacy after coming into force of the amended new Memorandum of Association and Rules as per Ext.P-4 of the new body (GIFT). This is all the more so, when there is no express or implicit saving clause provided in the new Ext.P-4 Memorandum and Rules providing that the old rules if any, will continued to have governed the field until the same is duly replaced or amended by rules or provisions made as per the enabling provisions as per Rule 10 (XXIX) of Ext.P-4 rules. This aspect is also to be viewed in the crucial perspective that the new body is not a mere re-nomenclatured version of the old body, but is an upgraded and elevated body even going by what is clearly envisaged by the Government in Exts.R-1(a) and R-1 (b) Government Orders and unlike the old body, the new body partakes a tripartite participation of the Government of Kerala, Government of India and the new body (viz.,GIFT) and the crucial fact disclosed in Exts.P-14, P-15, P-8 and P-11 is that the new body is an autonomous body created by the State Government with the financial assistance of the Government of India. Moreover, after the amendment of the new registered Memorandum of Association and Rules as per Ext.P-4 on 1.10.2009 W.P.(C).25012/15&C.C. - : 49 :-
which was registered on 14.10.2009, the State Government had subsequently issued Ext.R-1 (d) G.O. dated 28.2.2011, creating the post of Director of GIFT in the scale of pay mentioned therein which is in the grade pay of the Pro-Vice Chancellor of such Universities as envisaged in Ext.R-1 (c) G.O. dated 27.3.2010. This Court does not propose to pronounce any final opinion on these crucial aspects of the matter in the light of the manner in which the writ petitions are proposed to be finally disposed as per this common judgment. This is more particularly so, as the matter is proposed to be remitted for effective consideration of the competent authorities of the State Government.
22. The next crucial issue is as to whether the impugned decision taken unilaterally by the Minister for Finance as per the impugned Ext.P-10 proceedings (which automatically lead to the impugned Ext.P-11 selection notification, was beyond his competence as per the provisions contained in Rules of Business of State Government framed under Article 166 (3) of the Constitution of India and if so, whether the final decision on those matters could have been taken only by the Council of Ministers as endorsed and opined by the Chief Secretary and the Principal Secretary to W.P.(C).25012/15&C.C. - : 50 :-
Government, Taxes in Ext.P-9. At the outset it is to be noted that during the course of the submissions of these matters, the learned Advocate General on the basis of instructions from the official respondents had fairly submitted before this Court that the view taken by the Chief Secretary as referred to in Ext.P-9 that the final decision on the matter therein should have been taken by the Council of Ministers and for that purpose, the matter should have been placed before the Chief Minister for orders etc, is correct and proper in as much as the matters relating to the selection and appointment to the post of Director of GIFT is that of the appointment to the Head of the Department of an autonomous institution and that accordingly the matter may be remitted to the competent authority of the respondent State Government so as to take a proper and final decision in that regard afresh by the Council of Ministers in the light of the provisions contained in the Rules of Business framed by the Government of Kerala by virtue of the enabling powers conferred under Article 166 of Constitution of India. Apart from this submission made by the learned Additional Advocate General, on behalf of respondent State Authorities, this Court had independently also heard the submissions of the rival W.P.(C).25012/15&C.C. - : 51 :-
parties herein so as to render an independent decision by this Court on this crucial issue. Article 166 of the Constitution of India (corresponding to Article 77 of the Constitution of India) dealing with Conduct of Business of the State Government reads as follows:-
"Art.166. Conduct of business of the Government of a State:- (1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.
(2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor. (3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his direction."
23. In exercise of the powers conferred under the aforestated Art.116, the Government of Kerala, has framed the Rules of Business of that Government. Rules 7, 8, 9, 14 and 29 of the said Rules read as follows:
"Rule 7. The Council shall be collectively responsible for all executive orders issued in the name of the Governor in accordance with these rules, whether such orders are authorised by an individual Minister on a matter appertaining to his portfolio or as the result of discussion at a meeting of the Council, or otherwise.
Rule 8. Subject to the orders of the Chief Minister under Rule 14, all cases referred to in the second Schedule shall be brought before the Council in accordance with the provisions of the Rules contained in Part II.
W.P.(C).25012/15&C.C. - : 52 :-
Provided that no case in regard to which the Finance Department is required to be consulted under Rule 10 shall, save in exceptional circumstances under the directions of the Chief Minister, be discussed by the Council unless the Finance Minister has had an opportunity to consider it.
Rule 9. Without prejudice to the provisions of Rule 7, the Minister in charge of a Department shall be primarily responsible for the disposal of the business appertaining to that Department."
xxx xxx xxx Rule 14. All cases referred to in the Second Schedule shall be sumitted (sic) to the Chief Minister after consideration by the Minister in charge, with a view to obtaining his orders for circulation of the case under rule 15 or for bringing it up for consideration at a meeting of the Council.
xxx xxx xxx Rule 29. If any question arises as to the Department to which a case properly belongs, the matter shall be referred for the decision of the Chief Secretary who will, if necessary, obtain the orders of the Chief Minister."
Further, Rule 34(1)(iii)(b) provides that the classes of cases mentioned therein shall be submitted to the Chief Minister before the issue of orders in the matter of proposals for appointments, postings and promotions of Heads of Departments. The provisions contained in the Second Schedule of the aforestated Rules of Business are referable to Rules 8, 14 and 34 as can be seen from the heading of that Schedule. The said Second Schedule W.P.(C).25012/15&C.C. - : 53 :-
explicitly states that it deals with cases to be brought before the Council of Minister. Rules 24 of the Second Schedule provides as follows:
"Rule 24. Proposals involving any important alternation in the conditions of service of the members of any All India Service or the State Service or in the method of recruitment to the service or post to which appointment is made by the Government."
Therefore, a mere reading of Rule 24 of the Second Schedule makes it clear that proposals involving any important alteration in the method of recruitment to the service or post to which appointment is made by the Government, is a matter which should necessarily be decided by the Council of Ministers, even if it is a matter, which may otherwise be comprised with any of the aspects covered by Rule 34. This is all the more clear from the crucial aspect that it is clearly declared in those Rules that the provisions in the Second Schedule are referable, not only to the provisions contained in Rules 8 and 14, but also to that contained in Rule 34. A mere perusal of Exts.P-14, P-15/P-8 and Ext.P-11 would show that some of the important terms and conditions regarding the qualifications and other conditions regulating the selection process for the post of Director, GIFT, have been varying in all these notifications. A comparative tabular column regarding those aspects flowing out W.P.(C).25012/15&C.C. - : 54 :-
from Ext.P-14, Ext.P-15/P-8 and P-11 are given below for easy comparative examination.
COMPARISON OF QUALIFICATIONS NOTIFIED
Ext. P-14 Ext. P-15/P-8 Ext. P-11
1. Should not be more than Should not be more than 65 Should not have
55 years old as on years as on 01.01.2014 completed 60 years as on
01.01.2012 01.08.2015. Term for 3
years, extendable up toof 5
years or till completionage
65 years of
whichever is earlier
2. The applicantscholar beof
should a
renowned
mentor in the fieldand The applicantscholar
should be a
renowned
mentor/ Administrator and The applicant shouldin bethea
renowned scholar
in field of Public Finance and
Public Finance/ Develop- the field of Public Finance Policy/Management/
mental Economics and Policy/ Management / Developmental
Developmental Economics / Economics/Taxation Laws/
Taxation Financial Administration
and should possess Ph.D in
one of the above fields.
3. The applicant should have The applicant should have The applicant should have
`not less than 10 years `not less than 10 years in `not less than 10 years in
experience in the field of the field of academics and the field of academics and
academics and research research or financial research or financial
administration administration
4. The applicant should be in The applicant should be The applicant should be
the rank oforan Associate academically and academically and
Professor Professor professionally qualified with professionally qualified with
who is academically and adequate professional adequate professional
professionally qualified to experience in the relevant experience in the field of
hold the post of a Pro- fields. Development Economics/
Vice Chancellor as per Public Finance and Policy/
Management/Taxation/
UGC Norms. Financial Administration in
Government.
5. The applicant ofshould have
a
research studentsguiding
history
in his
academic career.
6 The applicant himself
should
research projectshandled
have
professional career.in his
7. should be incontributions
Research Qualification should be in
the field of the field of Develop -ment
Economics or Public Economics/ Public Finance
Finance. and Policy/ Management/
Taxation/ Financial
Administration in Govt.
W.P.(C).25012/15&C.C. - : 55 :-
8. It would be desirable if the the
the applicantinhassimilar
prior It would be desirable ifprior
applicant has It will be desirable ifprior
applicant has
experience experience in similar experience in similar
institutions. institutions in Govt. /quasi institutions in
Govt./institutions Government/quasi Govt.
institutions
There appears to be no constancy even, not only in the norm relating to the upper age limit, but also as to the cut of date on which such upper age limit is to be reckoned in these notifications. As per the relevant regulations to be followed for the posts and services directly under the State Govt., the age limits in any selection notification is to be reckoned with reference to the first day of January, of the year in which the applications are invited, whereas in respect of the selection process initiated by some other entities, they even follow the norm that the age limit is to be reckoned as on 31st day of December of the year in which the selection notification is issued. Whereas in the various selection notifications issued by the State Government for the post of Director of GIFT, there does not appear to be any constancy in this regard, as can be seen from Exts.P-14, P-15/P-8 and P-11. In Ext.P-14 the upper age limit is to be reckoned as on 1.1.2012 even though the said notification is issued on 4.11.2011. As per the provisions contained in the Kerala Public Services (Date for Determination of W.P.(C).25012/15&C.C. - : 56 :-
Age for Eligibility for Appointment) Regulations Rules, 1977, framed under the enabling powers under the Kerala Public Service Act, the upper age limit is to be reckoned as on first day of January of the year in which applications are invited for the post in question. Since Ext.P-14 selection notification has been issued on 4.11.2011, it is not fathomable as to the rationale for stipulating that the upper age limit is to be reckoned as on first of January of the year which is succeeding to the year in which applications are invited. In Ext.P-15 notification, which was replaced later by Ext.P-8, (in which the last date for submission of the application was 28.2.2014), the upper age limit is to be reckoned as on the first day of the January 2014, which appears to be in tune with the State Government norms. Whereas when it comes to Ext.P-11 notification dated 9.6.2015, the age limit is to be reckoned as on the first day of the month of May, in the year in which applications are invited, even though the selection notification is issued on 9.6.2015. The reasons for the vagaries are not fathomable to this Court. Moreover, even the insistence of the upper age limit has also been varying as can be seen from cursory examination of the above said tabular details. Various other qualifications have also been constantly been altering W.P.(C).25012/15&C.C. - : 57 :-
from time to time, upon the issuance of respective selection notifications as mentioned above. Even though the post of Director of GIFT is not explicitly covered in the Rules of Business and even though the said post is not covered by any statutory rule or statutory regulations framed by the State Government, one thing is indisputable inasmuch as it is explicitly and categorically stipulated in Ext.P-4 rules for GIFT framed and approved by the State Government, more particularly, from Rule 6(ii) thereof that the appointing authority for the post of Director of GIFT is none other than the Government of Kerala. Therefore, since many crucial aspects relating to the selection process for the post of Director of GIFT have been the subject matter of alterations and changes at the time of issuance of various selection notifications and as the non- statutory rules approved by the Government of Kerala clearly stipulate that the appointing authority for the post of Director of GIFT is the State Government, there can be no doubt in any view of the matter that the matters in relation to Ext.P-9 and P-10 would certainly come within the sweep and ambit of "proposals involving any important alternation .... ... in the method of recruitment to the service or post to which appointment is made by the Government". Moreover, a perusal of the W.P.(C).25012/15&C.C. - : 58 :-
Rules of Business would also make it clear that the stand taken by the Chief Secretary in Ext.P-9 that the matter being one which relates to appointment to the head of department of an autonomous institution, is to be decided by the Council of Ministers, is also right and proper. In this view of the matter, the final decision rendered in the impugned Ext.P-10 proceedings by the Finance Minister, by by- passing the decision at the hands of the Council of Ministers, after getting orders of the Chief Minister, as envisaged in the Rules of Business, is certainly beyond the competence of the said individual Minister, who is having administrative control over the administrative department concerned (Taxes Department), which in turn had supervision and control over the respondent GIFT.
24. It will also be pertinent to refer to some of the important case laws on the subject rendered by the Apex Court in relation to the aspects flowing from the Rules of Business, so that the issue is clinchingly and clearly decided. In the case K.K.Bhalla v. State of M.P reported in 2006 (3) SCC 581, the Apex Court has held as follows in para 64 thereof:
"64. The purported policy decision adopted by the State as regards allotment of land to the newspaper industries or other societies was not a decision taken by the appropriate Ministry. If a direction was to be issued by the State to JDA, it was necessary to be done on proper application of mind by the Cabinet, the Minister W.P.(C).25012/15&C.C. - : 59 :-
concerned or by an authority who is empowered in that behalf in terms of the Rules of the Executive Business framed under Article 166 of the Constitution. Such a direction could not have been issued at the instance of the Chief Minister or at the instance of any other officer alone unless it is shown that they had such authority in terms of the Rules of the Executive Business of the State. We have not been shown that the Chief Minister was the appropriate authority to take a decision in this behalf. ...... ..."
Further, in the ruling in Madras Rubber Factory (MRF) v. Manohar Parrikkar & Ors. reported in 2010 (11) SCC 374, it has been held by the Apex Court in paras 73, 77, 91, 92, and 107 thereof, as follows:
"73. We also subscribe to and uphold the view of the High Court that Business Rules 3, 6, 7 and 9 are mandatory and not directory and any decision taken by any individual Minister in violation of them cannot be termed as the decision of the State Government. We are fortified in our view by several decisions of this Court.
xxx xxx xxx "77. The decision of the Constitution Bench in Chitralekha [AIR 1964 SC 1823] has been misinterpreted. In that case this Court was considering a controversy in regard to an order which was not expressed in the name of the Governor in terms of Articles 166(1) and (2). In that context, this Court observed that it is a settled law that the provisions of Article 166 of the Constitution are only directory and not mandatory in character. The context clearly shows that the observation that the provisions of Article 166 of the Constitution are only directory and not mandatory, referred only to clauses (1) and (2) of Article 166 and did not refer to clause (3) which was not under consideration at all. Chitralekha [AIR 1964 SC 1823], therefore, cannot be relied upon to support the contention that the Business Rules made under clause (3) of Article 166 are directory.
xxx xxx xxx '91. The Rules of Business framed under Article 166(3) of the Constitution are for convenient transaction of the business of the Government and the said business has to be transacted in a just and fit manner in keeping with the said Business Rules and as per the requirement of Article 154 of the Constitution. Therefore, if the W.P.(C).25012/15&C.C. - : 60 :-
Council of Ministers or the Chief Minister has not been a party to a decision taken by an individual Minister, that decision cannot be the decision of the State Government and it would be non est and void ab initio. This conclusion draws support from the judgment of this Court in Haridwar Singh v. Bagun Sambrui [(1973) 3 SCC 889. This Court in the said case was dealing with the Business Rules of the State of Bihar framed under Article 166(3) of the Constitution of India and the observations of this Court on the issue apply to the case on hand in all force. This Court observed: (SCC pp. 895-96, paras 14-16) "14. Where a prescription relates to performance of a public duty and to invalidate acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, such prescription is generally understood as mere instruction for the guidance of those upon whom the duty is imposed. ...
15. Where however, a power or authority is conferred with a direction that certain regulation or formality shall be complied with, it seems neither unjust nor incorrect to exact a rigorous observance of it as essential to the acquisition of the right or authority. ...
16. Further, Rule 10(2) makes it clear that where prior consultation with the Finance Department is required for a proposal, and the Department on consultation, does not agree to the proposal, the Department originating the proposal can take no further action on the proposal. The Cabinet alone would be competent to take a decision. When we see that the disagreement of the Finance Department with a proposal on consultation, deprives the Department originating the proposal of the power to take further action on it, the only conclusion possible is that prior consultation is an essential prerequisite to the exercise of the power."
xxx xxx xxx
92. As observed by us earlier, these observations apply equally to the case on hand and in light of this view, we have no difficulty in holding that the Business Rules framed under the provisions of Article 166(3) of the Constitution are mandatory and must be strictly adhered to. Any decision by the Government in breach of these Rules will be a nullity in the eye of the law. .....
xxx xxx xxx
107. Thus, from the foregoing, it is clear that a decision to be the decision of the Government must satisfy the requirements of the Business Rules framed by the State Government under the provisions of Article 166(3) of the Constitution of India. In the case W.P.(C).25012/15&C.C. - : 61 :-
on hand, as has been noticed by us and the High Court, the decisions leading to the notifications do not comply with the requirements of the Business Rules framed by the Government of Goa under the provisions of Article 166(3) of the Constitution and the notifications are the result of the decision taken by the Power Minister at his level. The decision of the individual Minister cannot be treated as the decision of the State Government and the notifications issued as a result of the decision of the individual Minister which are in violation of the Business Rules are void ab initio and all actions consequent thereto are null and void."
25. Therefore, it is clear from a reading of the above said landmark decisions of the Apex Court on the above point that the Apex Court has even went to the extent of holding in K.K.Bhalla's case supra that impugned direction therein could not have been issued even at the instance of the Chief Minister or at the instance of any of the officer alone, unless it is shown that they had such authority in terms of the Rules of the Executive Business of the State framed under Art.166(3) of the Constitution of India and that since it could not be established before the court that the Chief Minister was the appropriate authority to take appropriate decision in that regard, the impugned decision was interdicted by the Apex Court. Further, the Apex Court has also equally categorically held in Manohar Parrikar's case supra that the Rules of Business framed under Art.166(3) of the Constitution of India are mandatory even though the provisions regarding authentication of the decision W.P.(C).25012/15&C.C. - : 62 :-
making process of the Government as envisaged in Clause 2 of Art.166 may be directory and that the such Rules of Business framed under Art.166(3) must be strictly adhered to and that any decision by the Government in breach of these rules will be nullity in the eyes of law. Further, it has been held in Manohar Parrikar's case supra that the decision of the individual minister cannot be treated as the decision of the State Government and the impugned notification issued therein as a result of the decision of the individual Minister, which are in violation of the Rules of Business, are void ab intio and all actions consequent thereto are null and void. The upshot of the above discussion is that the impugned decision taken by the individual minister concerned (viz., Minister for Finance), as referred in Ext.P-10 is in breach of the mandatory provisions contained in the Rules of Business framed by the Government of Kerala and therefore as held by the Apex Court in the aforestated rulings, the said impugned decision is null and void and nullity in the eye of law.
26. It is also to be noted that the ostensible purpose for which the impugned decision at Ext.P-10 was rendered was on the premise that there is indeed an age of superannuation of 60 years W.P.(C).25012/15&C.C. - : 63 :-
for the post of Director of GIFT and it is for achieving this ostensible purpose that the consequential impugned Ext.P-11 notification was issued. A mere perusal of Ext.P-11 would show that it is clearly stipulated therein, like the broad day light, that the incumbent selected as Director of GIFT could continue upto the age of 65, which is nothing but defeating the very ostensible purpose that was purported to be achieved in the impugned Ext.P-10 proceedings, which led to the interference with the considered decision of the Search Committee, that furnished merit panel of names of the candidates concerned. Therefore, in the light of these aspects, the issue is as to whether the impugned decision at Ext.P-10 is vitiated by malice in law.
27. The position regarding the concept of legal malice has been dexterously stated in para 5-081 of the authoritative treatise, De Smith's "Judicial review" 6th Edition (London, Sweet & Maxwell 2007, South Asian Edition) page 266 thereof, wherein it has been inter alia stated by the learned author that "a power is exercised fraudulently, if its repository intends for improper purpose, to achieve an object other than that which he claims to be seeking and the intention may be to promote another public interest or private interest", etc. Therefore, if the intention is even to promote W.P.(C).25012/15&C.C. - : 64 :-
another public interest, the exercise of power can be described as fraud on the power or colourable exercise of power or is vitiated by legal malice, if the repository of that power intends, by the impugned action, to achieve an object other than that which is claimed to be seeking. In the celebrated ruling of the 1925 AC 338 = 94 LJ PC 65, in Sydney Municipal Council v. Campbell reported in 1925 AC 338 = 94 LJ PC 65, their Lordships of the Privy Council dealt with a case where, under the relevant statute, the Sydney Municipal Council was empowered to acquire land "for carrying out improvements in or remodeling any portion of the city". The Municipal Council therein had acquired land for expanding a street, but however, it turned out that the real object of the acquisition was to get the benefit of probable increase in value of the land as a result of the proposed extension of the high way, a purpose which was beyond the object of the statute. No plan for improving or remodeling was proposed or considered by the Sydney Municipal Council. It was held in the said ruling by their Lordships of the Privy Council that power was exercised with ulterior object and hence it was ultra vires. In Westminster Corporation v. London & North Western Rail Company, 1904-I-CHD 759-p.767, Vaugham William stated thus: "You are W.P.(C).25012/15&C.C. - : 65 :-
acting malafide, if you are seeking to acquire land for a purpose not authorised by the Act". Therefore, it is by now well established that even if the intended purpose that is actually sought to be achieved is another public interest, the exercise of power can be said to be vitiated by malice, if the repository of that power by the impugned action intends to achieve an object other than that which is claiming to be seeking. In the light of these aspects, this Court has no hesitation to hold that the impugned decision at Ext.P-10 is vitiated by malice in law, colourable exercise of power, etc.
28. An incidental aspect of the matter, which is quite crucial, also deserves consideration for resolution by this Court. Sri.M.P.Prakash, the learned counsel for the writ petitioner in W.P. (C).No.25012/ 2015 on the basis of the averments and contentions raised in the pleadings in that case, has urged that the Minister for Finance was also appointed as the Chairman of the GIFT as per Ext.P-4 rules and that therefore he should not have dealt with the matter pursuant to Ext.P-9, as his involvement in that regard as per Ext.P-10 would vitiate the decision making process as the same is tainted by reasonable likelihood of bias. Earlier, as per the provisions contained in Ext.R-1(e) memorandum and rules of the W.P.(C).25012/15&C.C. - : 66 :-
erstwhile body (CDS), the incumbent holding the office as Minister for Finance was the ex-officio Chairman of the GIFT by virtue of his official capacity as holding the office of the Minister for Finance. Now as per the new rules, as per Ext.P-4, a renowned scholar/expert in the field of Public Finance & Policy, Policy Management, Development Economics and Taxation Law is to be appointed by the Government as the Chairman of GIFT. The then incumbent, who was holding the office as Minister for Finance, was holding the office as the Chairman of the GIFT at the relevant time. As the Minister of Finance, who also holding the office of the Chairman of GIFT, it cannot be said that such incumbent holding office as Minister is in any way legally disentitled from partaking in the decision making process in the matter of selection and appointment to the high position of Director of GIFT. It is not in dispute that the position of Director of GIFT is high advisory position, wherein the incumbent concerned is to render high quality advice to those in governance of the state of affairs of the Government of the day and such high functionaries of the Government would include members of Council of Ministers including the Finance Minister as well as other officials concerned W.P.(C).25012/15&C.C. - : 67 :-
intimately with the matters concerning policy formulation and implementation in the aforesaid designated fields concerned. As the Chairman of the GIFT, the incumbent is necessarily invested with the duty to take active interest in the better functioning of GIFT so that the said body renders its advisory role in the field of policy formulation and advice in such key areas affecting the financial governance of the State. Therefore, irrespective as to whether the incumbent in the office of the Chairman of GIFT is holding that position on an ex-officio basis as Minister for Finance or as to whether he is otherwise nominated or appointed to that position as Chairman of GIFT, such an incumbent as in the present case, is certainly expected to pay close attention and take keen interest in the betterment of such a high powered advisory institution. Moreover, the incumbent holding office as Minster for Finance is invested with the heavy responsibility of governance as a member of the Council of Ministers, which is placed with highest level executive Government in the Constitutional scheme of affairs, to render his duties to the best interests of the affairs of the State, especially in matters intimately connected with finance and related policy aspects and its implementation. Therefore, this Court has no hesitation to W.P.(C).25012/15&C.C. - : 68 :-
hold not only that there is nothing wrong in the Minister for Finance, even if he is the Chairman of the GIFT, to have an active partaking and participation in the decision making process for selection and appointment to the post of Director of GIFT, but also that such an incumbent is duty bound to ensure that he devotes his best energies and attention to such key matter involving selection and appointment of such a post. Therefore, the contention raised by the learned counsel for the petitioner that the involvement of the Minister for Finance in the impugned decision making process as referable to Ext.P-10 would stand vitiated for the sole reason that it is tainted by the reasonable likelihood of bias is, to say the least, untenable and unsustainable. But these findings of the court are not in any way remotely meant to convey in any manner that the Minister for Finance is indeed the final authority in the matter which emanated from Ext.P-9 onwards. Though the file notes in Ext.P-9 appear to suggest that the proposal was to place the matter before the Council of Ministers after getting orders from the Chief Minister in that regard, that cannot be meant to either explicitly or implicitly lead to the forwardal the matter to the Council of Ministers through the Chief Minister, by totally bye-passing the Minister for Finance.
W.P.(C).25012/15&C.C. - : 69 :-
The Minister for Finance is certainly is one of the key fulcrum in the governance of the financial affairs of the State and therefore the file indeed should have been placed before him for his considered remarks to be rendered with his insight and experience, not only in the functioning of the Government but also with regard to his exposure and insight in the affairs of the functioning of the respondent GIFT. Therefore, in view of these matters, the said contention raised by the petitioner in W.P.(C).No.25012/2015, imputing reasonable likelihood of bias due to the mere participation of the Minister for Finance is only to be repelled. However, as already held herein above, he indeed cannot be the final authority in this regard and the matter in that regard, with his considered view, should have been forwarded to the Chief Minister for orders for placing the matter in the Council of Ministers for its considered final decision in the matter. In the light of the above discussion, as it has already been held that the impugned Ext.P-10 proceedings is the nullity in the light of the violation of the mandatory provisions contained in the Rules of Business framed under Art.166(3) of the Constitution of India, the impugned Ext.P-10 proceedings are liable to be interdicted and the consequential decision, which led to the W.P.(C).25012/15&C.C. - : 70 :-
issuance of the impugned Ext.P-11 selection notification also deserves to be rescinded. In that view of the matter, the impugned Ext.P-10 proceedings stand quashed and consequentially, the impugned Ext.P-11 notification would also stand quashed. The matter in relation to Ext.P-9 will stand remitted to the competent authority of the Government to restart from the stage where it had stopped at Ext.P-9. As already held herein above, the competent official of the State Government, viz., the Chief Secretary or the Principal Secretary to Government (Taxes), should ensure that the files in the matter are forwarded to the Minister for Finance for his considered views and remarks in the matter so as to enlighten the Chief Minister and the members of the Council of Ministers regarding the proposal furnished by the Chief Secretary and the Principal Secretary to Government (Taxes) as referred to in Ext.P-9 in the matter of proposal for selection and appointment to the post of Director of GIFT as mentioned in those proceedings. In this process, it will be open to the Minister for Finance to secure considered opinion of any competent official so as to appraise him of the different perspectives and insights involved in the decision making process in the matter. Thereafter, it shall be ensured in W.P.(C).25012/15&C.C. - : 71 :-
accordance with the provisions of Rules of Business that the matter is forwarded to the Chief Minister for orders so that the matter is placed for the considered decision of the Council of Minsters as envisaged in the aforestated provisions of the Rules of Business framed under Art.166(3) of the Constitution of India. In this decision making process, it will be open to the State Government to decide on all issues of the matter including as to the eligibility and qualifications of the two candidates, who are included in the panel/ merit list furnished by the higher powered Search Committee and on any other matters in connection with the selection and appointment to the post of Director of GIFT.
29. The petitioner in W.P.(C).No.27671/2015 urged that the Search Committee was invested with the limited task of suggesting a panel names to the State Government for selection and appointment to the post of Director of GIFT and therefore they went in wrong in furnishing a merit list of two candidates by placing him only as No.2 therein. In view of legal principles flowing from the decision of the Division Bench in Ext.P-7, it is only to be held that the Search Committee is a high powered body which has multifarious responsibility and powers so as to identify the best W.P.(C).25012/15&C.C. - : 72 :-
talents for the post in question and it has to be given sufficient free play in the joints of its functioning and therefore there is nothing illegal or improper on the part of the high powered Search Committee in preparing a panel of names by showing the order of priority of merit as assessed in the considered view of that high powered expert Search Committee, so as to facilitate proper considered decision at the hands of the authorities concerned of the State Government. Though the impugned proceedings use the terminology, "merit list", furnished by the Search Committee, it is in substance and essence only a panel of names furnished by the high powered Search Committee with the order of priority of merit as assessed and decided by the Search Committee so as to facilitate proper decision at the hands of the State Government and in that view of the matter, the above said contention raised by the petitioner in W.P.(C).No.27671/2015 is also only to be repelled.
30. Before parting with this case and in continuation of the enlightened views expressed by their Lordships of the Division Bench Ext.P-7 writ appellate judgment, this Court would only venture to observe not only that the Government and the authorities that be should have necessary flexibility and free play in their joints W.P.(C).25012/15&C.C. - : 73 :-
in taking such a decision involving appointment to such a high powered potion, which involves duties and functions as an eminent adviser to the State Government, but it should also be ensured that such procedure in the words of their Lordships of the Division Bench, "equally should not be allowed to be denigrated to the position where one would act with caprice and will follow no procedure at all". In continuation of those observations of their Lordships of the Division Bench, this Court would only hasten to add that the position involved in the selection process is not merely that of an ordinary position in the Government, but is one involving heavy duties and functions as one befitting an eminent adviser who is to render high quality advice and guidance to those invested with high Constitutional and administrative responsibility of the carrying on the affairs of the State and its financial governance. Therefore, the process involved should be, to say the least, to achieve the objective to ensure that those in governance of the State should secure the services of an eminent adviser of such exalted position as Dr.K.N.Raj or Dr.I.S.Gulathi, etc, and the process should not be belittled so as to fulfill the "quests of job seekers".
31. In this context it may be apposite to refer to the W.P.(C).25012/15&C.C. - : 74 :-
observations in para 16 of the judgment of their Lordships of the Supreme Court in the case Kalyani Mathivanan v. K.V.Jeyaraj & Ors. reported in (2015) 6 SCC 363, p.373-374, regarding the contents of the interesting article titled, "Why Socrates should be in the Boardroom in Research Universities" published in 2010 by Amanda H.Goodall, Leverhulme Fellow, Warwick Business School, which reads as follows:
"16. The High Court also relied on an article titled "Why Socrates should be in the Boardroom in Research Universities", published in 2010 by Amanda H. Goodall, for determining the case and observed as follows: (K.V. Jeyaraj case [2014 SCC Online Mad 2701], SCC OnLine Mad para 47) "47. In an interesting article, titled "Why Socrates should be in the Boardroom in Research Universities', published in 2010 by Amanda H. Goodall, Leverhulme Fellow, Warwick Business School, the author points out two contrasting events that happened in 2003 and 2004. It is common knowledge that Cambridge University came into existence in 1209 and almost about 800 years later, a distinguished anthropologist, by name Alison Richard, was appointed as the 344th President or Vice-Chancellor of Cambridge. She was an acclaimed academician. In contrast to what happened at Cambridge in 2003, Oxford University appointed in 2004, a person by name John Hood, who was not an academic but was only a businessman. He became the first head of Oxford University, ever since the year 1230, to be elected to the Vice- Chancellorship from outside the University's current academic body. The paper authored by Amanda Goodall considered the question as to why Cambridge and Oxford chose such different individuals to lead their ancient and reputed institutions. The central theme of the paper was as to whether there was a relationship between University performance and leadership by an accomplished researcher. Eventually, after analysing the statistics from about 100 universities throughout the world, the author came to the conclusion, supported by evidence that research universities should be led by top scholars. The conclusions reached by the author could be summarised as follows:
(i) That the best universities in the world are led by more established scholars;
W.P.(C).25012/15&C.C. - : 75 :-
(ii) That scholar leaders are considered to be more credible leaders in universities, commanding greater respect from their academic peers.
(iii) That setting an organisation's academic standards is a significant part of the function of the Vice-Chancellor and hence one should expect the standard bearer to first bear that standard.
(iv) That a leader, who is an established scholar, signals the institution'spriorities, internally to its faculties and externally to potential new academic recruits, students, alumni, donors and the media.
(v) That since scholarship cannot be viewed as a proxy for either management experience or leadership skills, an expert leader must also have expertise in areas other than scholarship.
(emphasis in original)"
Though the above said observations of the Apex Court are in relation to the post of Vice Chancellor in the University, those observations therein are only meant to be contextually and appropriately appreciated in the background of the duties and functions to be discharged by the Director of GIFT.
32. Since the decision making process to be rendered by the authorities of the State, requires detailed consultation and discussions and as the matter pertains to the domain of the Council of Ministers, this Court would desist from stipulating any time frame for the final decision to be rendered in this matter, consequent on the remit, except to observe that the competent authorities of the State Government may bear in mind that the disputations have been pending for a long time since 2011 onwards, and therefore it is only W.P.(C).25012/15&C.C. - : 76 :-
in the best interest of those in governance of the State, that they will render a early decision in the matter, without much delay.
Both the Writ Petitions are disposed of with the above said observations.
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THOMAS, JUDGE
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P.S. to Judge