Kerala High Court
Civic Responsibilities And ... vs State Of Kerala on 23 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943
WP(C). No.13062 OF 2020(S)
PETITIONERS:
1 CIVIC RESPONSIBILITIES AND EMPOWERMENT ASSOCIATION
(CREA), HAVING REGISTERED OFFICE PRESENTLY AT VAZHOOR,
KOTTAYAM DISTRICT, PIN-685 504,
REPRESENTED BY ITS SECRETARY MR.SHIBU JACOB,
AGED 49 YEARS, S/O.JACOB, THAKADIYEL, VAZHOOR P.O.,
KOTTAYAM DISTRICT.
2 PAULOSE.V.J., AGED 41 YEARS,
S/O. JOSEPH, VADAKKEATTATHU HOUSE, MULAKULAM VILLAGE,
PERUVA P.O., VAIKOM TALUK, KOTTAYAM, PIN-686 610.
BY ADVS. SHRI P.M.JOSHI
SMT. SIJI K.PAUL
SRI. PAULOSE.V.J. (PARTY)
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 PRINCIPAL SECRETARY TO GOVERNMENT,
DEPARTMENT OF INDUSTRY, GOVERNMENT OF KERALA
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
3 JOINT SECRETARY FOR MINING AND GEOLOGY (MATTER),
DEPARTMENT OF INDUSTRY, GOVERNMENT OF KERALA
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
4 DIRECTOR VIGILANCE AND ANTI CORRUPTION BUREAU,
THIRUVANANTHAPURAM-695 001.
5 THE CHAIRMAN, (DELETED)
PUBLIC SERVICE COMMISSION, PATTOM,
THIRUVANANTHAPURAM-695 004.
RESPONDENT NO.5 IS DELETED FROM THE ARRAY OF PARTIES AS
PER ORDER DATED 12/08/2020 IN WPC.
WP(C):13062/2020 2
6 MR.C.K.BAIJU,
DIRECTOR-IN-CHARGE, MINING AND GEOLOGY DEPARTMENT,
THIRUVANANTHAPURAM.
R1 TO R4 BY SRI. SURIN GEORGE IPE,
SR. GOVERNMENT PLEADER
R6 BY ADVS. SRI.P.RAVINDRAN (SR.)
SRI.ELVIN PETER P.J.
SRI.K.R.GANESH
SMT.N.R.REESHA
SMT.T.S.LIKHITHA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-03-2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C):13062/2020 3
"C.R"
JUDGMENT
Shaji P. Chaly, J
Instant Public Interest Litigation is filed by an association, registered
under the Travancore-Cochin Literary, Scientific and Charitable Societies
Registration Act, 1955 and a member of the said association, seeking to
quash Exhibit-P9 order, G.O.(Rt.) No.258/2020/ID, dated 20.03.2020,
issued by the Government of Kerala, Department of Industry (A), Mining
and Geology, by which 6th respondent, viz. Mr. C.K.Baiju, a Senior Deputy
Director, Department of Mining and Geology, has been temporarily given
the full charge and responsibilities as the Director, Mining and Geology.
2. Petitioners have sought for a writ of mandamus commanding
respondents 1 to 4, to take disciplinary action against the 6 th respondent
Mr. C.K. Baiju, in the cases where disciplinary action is recommended, but
pending consideration of the respondents.
3. Petitioners have also sought for a mandamus commanding
respondents 1 to 3, to issue necessary orders to the 6 th respondent,
removing him from the charge of Director, Mining and Geology
Department forthwith.
4. Petitioners have further sought for a mandamus directing the 2nd
respondent, viz., the Principal Secretary to the Government, Department
of Industry, Thiruvananthapuram, to publish the details of the assets of Mr.
C.K. Baiju, respondent No.6, in the website of the Department of
Industries or in the website of the Department of Mining and Geology.
5. The basic contentions advanced are that Mr.C.K.Baiju,
respondent No.6, is a corrupt officer, facing departmental disciplinary
action, in a number of cases. According to the petitioners, 6 th respondent
was a Senior Geologist in the District Geology and Mining Department,
Kottayam for quite some time. During that period, he used to indulge in
corrupt practices by illegally granting quarrying permits, not monitoring
licence conditions etc. Several instances were pointed out by the
petitioners and according to them, the President of Kuravilangad Grama
Panchayat has submitted a petition to the Hon'ble Minister for Home and
Vigilance, which was forwarded to the Director of Vigilance and Anti
Corruption Bureau (VACB), Thiruvananthapuram. There, the allegation
was that the Senior Geologist of Kottayam District allowed the permit
holders to extract more sand by not monitoring them properly and not
intimating the Panchayat authorities about the permit, and thereby caused
annoyance to the public, within the Kuravilangad Grama Panchayat area.
6. As a result, the Director of VACB vide letter No. (QV 4/13/KTM)
19827/13 directed the Deputy Superintendent of Police, VACB, Kottayam
Unit, to conduct a quick verification. Accordingly, the VACB conducted a
quick verification and in the report, it was prima facie revealed that the
allegations are true, and thereupon, recommended departmental action
against the 6th respondent. Similarly, alleging irregularities committed by
the 6th respondent, the authorities of Vijayapuram Grama Panchayat,
Kottayam, in connection with the removal of huge quantity of soil by
private persons, VACB conducted a surprise check, detected irregularities,
and found that 6th respondent was responsible for the same.
7. Likewise, in Mulakulam and Velloor Grama Panchayats, in
Kottayam districts, on the allegation that brick kilns are functioning,
violating the rules and regulations issued by the licensing authority, VACB
conducted a surprise check. However, Mr. C.K.Baiju neither inspected or
caused to inspect the functioning of those brick kilns for enforcing the
licence conditions. Accordingly, the Director of VACB has recommended
departmental action against Mr. C.K. Baiju.
8. Similarly, in the matter of illegal quarrying and excavation of
stones in Kizhuthiri, Ramapuram Panchayat, VACB, Eastern Region,
Kottayam conducted an enquiry, and as per its report dated 27.02.2017, it
is evident that using the permit issued by the Geology Department, for 8.9
Ares of land, quarrying was conducted in 2 Acres of land and excavated
90,000 cubic feet stone. The report further revealed that using the pass for
carrying 500 loads of stone, 18,000 loads of stone were transported, and
thereby, the Government have lost royalty in that regard.
9. Petitioners have further stated that the report submitted by the
Director, VACB, to the Additional Chief Secretary, Vigilance (B),
Department of Vigilance, on 24.01.2015 contains the details regarding the
vigilance cases of Mr. C.K.Baiju and he was referred to in the report as
'Suspicious Officer'. Mr. C.K. Baiju was promoted as the Deputy Director
in the year 2015 and, after assuming duty as the Deputy Director in the
Directorate of Mining and Geology, on 21.07.2016, the Vigilance
Department conducted a raid in his house and seized unaccounted
money. Pursuant to the same, a case has been registered before the
Enquiry Commissioner and Special Judge, Thiruvananthapuram. Narrating
all these aspects, 2nd petitioner has submitted Exhibit-P2 complaint dated
04.11.2019 along with documents forming material proof to the Hon'ble
Minister of Kerala for Industries with copies to various authorities like the
Hon'ble Chief Minister, Chairman of the Public Service Commission,
Secretary to the Industries Department etc.
10. Petitioners have further stated that two circulars have been
issued by the Department of Personnel Administration Reform (Advisory
C) dated 23rd June, 2003 and 8th January, 2007, evident from Exhibits-P4
and P5, by which, as per the Kerala Public Service Commission
(Consultation) Regulations, 1957, consultation must be done with the
Commission in mandatory cases before giving promotion or appointment
to a person. However, in many cases, the information required by the
Commission was not provided by the concerned departments, as a result
of which, the Commission could not advise properly and hence, many
culprits escaped from punishment.
11. Petitioners have pointed out that as per the Kerala Civil Services
(Classification, Control and Appeal) Rules, 1960, employees of the
Geology Department are listed in Schedule-I.
12. Petitioners have further stated that a complaint is pending
before the Kerala Lok Ayukta, in regard to the corrupt practices exercised
by Mr. C.K.Baiju. While matters stood thus, Mr. C.K. Baiju was given
additional charge of the Director of Mining and Geology Department on
28.11.2015, but on 18.04.2018, he was removed from the said post and
reverted back to the post of Deputy Director, as the matter was taken up in
the Kerala Legislative Assembly.
13. Petitioners have further stated that on the basis of Exhibit-P2
complaint dated 04.11.2019, 2nd petitioner was served with Exhibit-P6
reply dated 29.01.2020 from the office of the Principal Secretary to the
Government, Department of Industry, respondent No.2, informing that the
Government will take a decision, after obtaining the views of the Public
Service Commission.
14. Petitioners have also submitted that consequent to the Vigilance
Case S.C. 47/14/KTM, which recommended disciplinary action against
Mr. C.K.Baiju, in the meeting held on 30.05.2016, by the Departmental
Promotion Committee (DPC), name of one Mr. T. K. Ramakrishnan was
recommended to the post of Additional Director, Department of Mining and
Geology, and thereafter, by order dated 4.1.2018, two increments of
Mr.C.K.Baiju were withheld with cumulative effect. Further, it was informed
that in Case No. E&C/5498/16/ERK of VACB, Mr. CK.Baiju was found to
have committed gross violation, in the matter of facilitating unauthorised
excavation of rock in Ramapuram Panchayat, Kottayam district, and the
Superintendent VACB, Eastern Region, by letter dated 29.02.2017, has
recommended the Director, Mining and Geology, to take appropriation
disciplinary action against the 6th respondent, evident from Exhibit-P7.
15. Similarly, the Principal Secretary to the Government, by
Exhibit-P8 letter dated 22.05.2019, on the recommendation of the
Vigilance, issued an indictment memo to Mr. C.K.Baiju, through the
Director of Mining and Geology Department, and the said file is pending
decision. That apart, it was informed that a case in connection with
disproportionate amassment of wealth by Mr. C.K.Baiju is also pending
consideration. However, since the amassment of wealth is only 6.79%, the
criminal case could not be registered and decided to continue with the
disciplinary proceedings against him.
16. Petitioners have further stated that though the Departmental
Promotion Committee, in the meeting convened on 23.10.2019,
considered the name of Mr. C.K.Baiju to the post of Additional Director,
Department of Mining and Geology, the promotion was rejected, due to
the disciplinary action against him.
17. The paramount contention advanced by the petitioners is that to
the utter surprise and dismay, as per Exhibit-P9 impugned order dated
20.03.2020, Government have appointed the 6th respondent as the
Director, Mining and Geology Department, in the guise that he had to be
appointed due to dearth of IAS level officer and accordingly he is
temporarily given the full authority and responsibility of the Director of
Mining and Geology Department. The foundation of the case putforth by
the petitioners is revolved around the above said factual aspects.
18. The point raised by the petitioners is that the State Government
have no authority to appoint Mr. C.K.Baiju to the post of the Director,
Mining and Geology Department, and confer with the full charge of the
same, being a corrupt officer and having appointed to a key administrative
post of the Mining and Geology Department, it would be sending a wrong
message to the society; moreover it would give a new precedent that a
officer against whom disciplinary action pending has even been inducted
to a key post of the Government, which would encourage others also to
indulge in corrupt practices; apart from that, by occupying the key post,
Mr. C.K.Baiju would promote corruption and escape from all such cases
against him, particularly when, his tenure of service would expire on
31.05.2021; the appointment of Mr. C.K.Baiju, to the key post, is against
public interest and, therefore, any member of the public is entitled to bring
it to the notice of the Court, so as to avoid further damage to the public
property, as well as to maintain a corruption free department of Mining
and Geology.
19. The State and its officials have filed a detailed counter affidavit
justifying the stand adopted in Exhibit-P9 impugned order dated
20.03.2020. Among other contentions, respondents 1 to 3 have contended
that Government have given Exhibit-P6 reply to the petition dated
29.01.2020 on the complaint dated 04.11.2019, wherein it was stated that
the Government would take a decision in consultation with the Vigilance
and in cases recommending departmental action, only after consultation
with Kerala Public Service Commission. In a Vigilance case, SC
47/14/KTM, Vigilance have recommended departmental action against the
officer and the Government, after considering the defense statement, and
the report of the Director, Mining and Geology Department, have decided
to finalise the disciplinary action, by barring two annual increment with
cumulative effect as per G.O.(Rt.) No.6/2018/ID dated 4.1.2018 under the
provisions of KCS(CC&A) Rules, 1960. The review petition submitted by
Mr. C.K.Baiju to review the decision of the Government in G.O(Rt.)
No.6/2018/ID dated 04.01.2018 also has been rejected by the
Government vide G.O.(Rt.) No.439/2018/ID dated 12.04.2018.
20. Being aggrieved by the orders of the Government, 6th
respondent had filed O.A. No.598/2018 before the Kerala Administrative
Tribunal to set aside the above said orders and to grant promotion to the
higher post as the orders were issued, without observing the procedure
under Rule 15 (11) of the KCS(CC&A) Rules, 1960, wherein it is provided
that any deviation from the recommendation/findings of the formal enquiry
officer should be specified and communicated to the delinquent officer for
his explanation, before taking a final decision discarding the enquiry
report. In the order dated 9.4.2019, Kerala Administrative Tribunal (KAT)
had directed the Government to issue a show cause notice, as provided
under Rule 15(11) of the Kerala Civil Service (Classification, Control and
Appeal) Rules, 1960, providing a copy of the enquiry report to the
applicant and also the provisional findings of the disciplinary authority on
each charges with reasons as to why, it intends to differ with the findings
of the enquiry officer and also directed the 1 st respondent to issue copy of
the order.
21.It was further directed that the 1st respondent shall thereupon
conclude the disciplinary proceedings, within a further period of two
months. After scrutinizing all the documents submitted by the 6th
respondent, the Government have decided to take a tentative decision to
finalise the disciplinary action initiated against the 6 th respondent, by giving
a minor penalty as per Rule 11(1)(i) of the KCS(CC&A) Rules, 1960 and
forwarded the file to Vigilance Department for advice and as the Vigilance
had concurred with the decision of the Government, physical file of the
same has been forwarded to the KPSC for their concurrence. However till
date, the decision of the Kerala Public Service Commission has been
received by the Government. Since Vigilance Case bearing No. SC
47/14/KTM was pending against the 6th respondent, his name was not
considered for the post of Additional Director in the DPC meeting
convened on 30.05.2016.
22. It is further contended that the issue is now pending before the
Government in File No.A1/249/2017/ID. As a part of taking departmental
action against the officer, a memo of charges was served on him and he
has submitted the statement of defence. It is further submitted that in the
DPC(Hr) meeting convened on 23.10.2019, the 6 th respondent was not
considered for the post of Additional Director. When the Additional Director
of Mining and Geology Department applied for leave prior to retirement
(LPR), on 22.02.2020, the Government temporarily appointed the senior-
most Deputy Director, the 6th respondent, to the post of Director, vide
Exhibit-P9 order dated 20.03.2020. According to the said respondents, the
posting of the 6th respondent is only temporary in nature and he has given
only the charge of the said post. In that view of the matter, Exhibit-P9
impugned order would never be deemed as permanent in nature.
23. It was also submitted that the Additional Director of Mining and
Geology Department had applied for LPR vide application dated
22.02.2020. Since, there was dearth of IAS Officers to be appointed as
Director of Mining & Geology, the senior-most Deputy Director, Mining and
Geology Department, 6th respondent, was given full additional charge of
the Director of the said department temporarily as per order dated
20.03.2020. Hence, the Government being the appointing authority to the
post in question, it is well within the domain of the Government to make
such a temporary arrangement.
24. That apart, it was contended that the complaints filed against
Mr. C.K.Baiju and the proceedings before the Kerala Lok Ayukta are not
terminated and, therefore, the contentions putforth by the petitioners at
this stage, cannot stand against the Government making due
appointments, in accordance with law.
25. Respondent No.6 has filed a counter affidavit and an additional
counter affidavit, refuting the allegations made by the petitioners and
explaining that on receipt of report dated 08.11.2011 submitted by an
L.D.Clerk in the office of the Senior Geologist, Kottayam, stating that the
official seal of the Assistant geologist is reported to be missing, the 6 th
respondent immediately served a memo dated 21.11.2011 to the two
assistant Geologists in the District Office, Kottayam directing them to find
out the official seal and also sought for explanation. Pursuant to the same,
explanation was submitted by one of them stating that she is not aware of
the fact that the seal is missing. Thereafter a joint inspection of the
quarries operating in Changanassery, Kottayam and Kanjirappally taluks
on 29.09.2011, 30.09.2011 and 01.10.2011 etc. was conducted along with
the Panchayat authorities. Pursuant to the inspection, a report is stated to
have been submitted by all the concerned officers, who participated, with
their signature and official seal.
26. It was further contended that for the above said purpose, one
among the Assistant Geologists carried the official seal to the inspection
site and was placed inside the official vehicle, which was later found
missing. Hence, he submitted a report to the Director of Mining and
Geology on 26.02.2013 narrating the circumstances which lead to the
missing of the seal. In this context, it was stated that after the 6 th
respondent received the report of the L.D.Clerk on 8.11.2011, an
application dated 7.5.2012 was received under the Right to Information
Act, 2005, submitted by the 2nd petitioner, inter alia, seeking for information
as to whether any official seal from the District Office of the Geologist was
found missing during the period between 01.11.2011 and 01.05.2012. On
receipt of the said application, the 6 th respondent, without any delay,
served a reply dated 5.6.2012 to the 2nd petitioner. The reply given was
within the period of 30 days, stipulated under the RTI Act. In order to
ensure that the missing seal does not reach the hands of any miscreants,
he filed a complaint dated 25.02.2013 before the District Police Chief,
Kottayam. The District Police Chief conducted investigation and during the
course of the complaint, it is understood that the 2 nd petitioner was
also summoned.
27. It was further contended that after summoning the 2 nd petitioner
by the District Police Chief, he filed a complaint before the State
Commission under the Right to Information Act, who thereafter issued a
notice dated 7.5.2013, to the 2nd petitioner calling for his explanation.
Pursuant to the same, the 6th respondent submitted another report dated
21.05.2013 before the State Information Commission. Thereafter, notice
dated 7.10.2013 was issued to the 6th respondent from the office of the
State Information Commission, directing him to appear before the
Commission with all the required documents. On 23.10.2014, the
commission issued order directing the Government to initiate disciplinary
action against the 6th respondent for the reason that he ought to have
initiated action for retrieving the missing official seal of the Assistant
Geologist effectively and that the action of the 6th respondent in stating the
name of the 2nd petitioner in the complaint filed before the police was
intended to deprive the 2nd petitioner of the information he sought for.
28. It was further contended that there was no case that the 6 th
respondent did not serve the information sought for by the 2 nd petitioner in
his application. Hence, it is clear that the order passed by the State
Information Commission directing to initiate disciplinary action against the
6th respondent is clearly an abuse of power and colourable exercise which
was beyond the scope of the power conferred upon the State
Commission. In such circumstances, the 6th respondent has filed W.P.(C)
No.29280 of 2014, in which an interim order staying all further proceedings
pursuant to the order issued by the State Commission under the Right to
Information Act, 2005 directing to initiate disciplinary proceedings against
the 6th respondent was passed by this court and on 12.06.2015, the
interim order was extended until further orders.
29. It was further contended by the 6th respondent that the penalty of
barring two increments with cumulative effect was imposed by the
Government as per Government Order (Rt.) No.6/2018/ID dated 4.1.2018,
in a disciplinary proceedings initiated against him in which, the enquiry
officer in his report, exonerated the 6th respondent completely from all the
charges. In spite of that, the Government, without issuing notice to the 6 th
respondent, dissented from the findings of the enquiry officer and imposed
the penalty as per the above said Government order and it was also
affirmed in a review filed by him. Challenging G.O.(Rt.) No.6/2018/ID
dated 04.01.2018 and G.O.(Rt.) No.439/2018/ID dated 12.04.2018 issued
by the Government, dismissing the review petition filed by the 6 th
respondent, he approached the Kerala Administrative Tribunal by filing
O.A. No.598/2018. By Exhibit-R6(b) order dated 9.4.2019, the said original
application was allowed, setting aside the two Government orders and
further Government was directed to issue a show cause notice to the 6 th
respondent assigning the reasons for dissenting from the findings
recorded by the enquiry officer in his report, and after receiving a reply
from the 6th respondent, Government was further directed to finalise the
proceedings, within a period of two months.
30. It was further contended that the time fixed by the Kerala
Administrative Tribunal for issuing the show cause notice expired on
21.05.2019 and no action was initiated. Hence, the 6 th respondent
approached the Tribunal with Cont. Petition (Civil) No.85/2019, in which
notice was issued. The contempt petition is still pending.
31. From the above, it is clear that the Government order dated
4.1.2019 imposing a penalty of barring two increments with cumulative
effect has been set aside by the Tribunal and there is no penalty imposed
on the 6th respondent. In the order dated 28.07.2020, this Court has stated
that the 6th respondent was superseded by the Departmental Promotion
Committee on 30.05.2016. It was also stated that the supersession of the
6th respondent by the DPC was not on the ground of imposition of any
penalty, but it was due to the pendency of disciplinary action initiated
against him as per memo of charges No.10266/A1/2015/ID dated
19.08.2015. The said disciplinary action culminated in the exoneration of
the 6th respondent by the enquiry officer in his report.
32. Apart from the above, the 6th respondent has contended that
minor penalty imposed on him does not dis-entitle him from being
considered for regular promotion to the post of Director, Mining and
Geology Department, even in the year 2015, during which period, Exhibit-
R6(d) order dated 19.03.2015 was passed against him.
33. Referring to Rule 28(b)(i)(7), Note (ii) of the Kerala State and
Subordinate Service Rules, 1958, it was contended that even in the case
of an officer against whom minor penalty is imposed in a disciplinary
proceedings, the Departmental Promotion Committee has to consider the
claim of the officer for regularising promotion on its merits, which specifies
that if the officers against whom departmental proceedings are taken for
imposition of minor penalty and who had been provisionally included in the
select list, are fully exonerated of the charges, their cases for promotion on
the basis of such inclusion in the select list shall be considered. If the
officers are not fully exonerated of the charges, the DPC may decide each
case on its own merits.
34. Therefore, the sum and substance of the contentions putforth by
Mr.C.K.Baiju is that, taking into account the above said provision, the
Departmental Promotion Committee considered the claim of the 6 th
respondent for promotion to the category of Deputy Director of Mining and
Geology Department, in its meeting held on 20.04.2015, and included in
the select list, evident from Exhibit-R6(e).
35. In the additional counter affidavit filed by the 6 th respondent,
apart from reiterating the submissions in the earlier counter affidavit, it is
contended that the 2nd petitioner has an axe to grind against him.
36. A reply affidavit is filed by the petitioners to the counter affidavit
of the 6th respondent, wherein it is stated that the acquittal of the accused
in C.C. No.27/2012 on the file of the Chief Judicial Magistrate Court,
Kottayam, was never known to the petitioners. However, it is seen from
the judgment that 6th respondent was PW1 in the said case and the
accused were acquitted consequent to the nature of evidence let in by
Mr. C.K.Baiju in favour of the accused, and due to a fault occurred on the
part of PW9. The other allegations that the 2 nd petitioner has personal
animosity against Mr. C.K.Baiju are all denied.
37. Heard the learned counsel Mr. P.M.Joshi, appeared for the
petitioners, Mr. K.V.Sohan, learned State Attorney, Mr. Surin George Ipe,
learned Senior Government Pleader, and Mr. P.Ravindran, learned Senior
Counsel appearing for the 6th respondent - Mr. C.K.Baiju, assisted by Adv.
Mr. K.R.Ganesh, and perused the pleadings and material on record.
38. Exhibit-P9 impugned order dated 20.03.2020 issued by the Joint
Secretary, Department of Industry (A), is extracted hereunder:
"Government of Kerala
Conclusion
Department of Industry, Mining & Geology, matter of
employment, Mr. C.K.Baiju, Senior Deputy Director,
Department of Mining & Geology, has been temporarily
given the full responsibility of Director of Mining & Geology
------------------------------------------------------------------------------
Department of Industry (A)
G.O.(Rt.) No.258/2020/ID
Dated, Thiruvananthapuram, 20/03/2020
------------------------------------------------------------------------------
Reference:- G.O(Rt.) No.1134/2020/G.Admn. Dated
12.03.2020
ORDER
As per reference order, all authority of the Mining &
Geology Department was given to Sri. Premkumar, IAS,
but due to the dearth of IAS level officers, it is not
convenient to appoint such an officer as the Director of
Mining & Geology Department alone. Therefore, it is
ordered that Mr. C.K.Baiju, the Senior Deputy Director of
the Department of Mining & Geology has been temporarily
given the full authority and responsibility of the Director or
Mining & Geology.
By the order of the Governor
MOHANRAJ M,
JOINT SECRETARY."
39. Before considering the submissions advanced, let us consider
Rule 28(b)(i)(7) and the note thereof of the Kerala State and Subordinate
Service Rules, 1958.
40. It was in exercise of the powers conferred by the proviso to
Article 309 of the Constitution of India and all other powers thereto
enabling, and in supersession of the rules on the subject, the Governor of
Kerala have framed the Kerala State and Subordinate Service Rules,
1958, in respect of the members of the State and Subordinate Services.
Rule 28(b)(i)(7), Note II of the said Rules, 1958 reads thus:
"28(b)(i) Promotion and appointment by transfer
according to merit and ability.- Appointments to posts in a
selection category or grade in a service or class, other than
Heads of Departments, which shall be made under Rule
28A, shall be made from a select list prepared from among
the members eligible for appointment to such category or
grade in accordance with these rules and the Special Rules,
on the basis of merit and ability, seniority being considered
only when merit and ability are approximately equal. The
select list shall be prepared in the manner indicated herein.
xx xxx xxxx
(7) The "Select List" shall be prepared from among the
eligible officers on the basis of merit and ability, seniority
being a consideration only when all the qualifications are
equal. The number of names to be included in the "Select
List" shall be the same as the estimated number of
vacancies likely to arise during the next year. Supplemental
lists may be prepared in case the lists already prepared get
exhausted before the close of the year to which they relate,
so as to obviate the necessity for convening meetings of
Departmental Promotion Committees at short notice or
keeping of posts unfilled and thereby causing administrative
inconvenience. Persons selected for inclusion in the Select
List according to their seniority in the feeder category. When
the Special Rules provide for a definite ratio or order of
preference from the feeder categories, persons from each
feeder category shall be included in separate lists and
appointment shall be made in accordance with the ratio or
order or preference prescribed by such Special Rules for
each feeder category.
Note.- (i) Officers under suspension and officers against
whom criminal proceedings are pending in a Sessions Court
or in any other higher Court for grave offences like murder,
dacoity, etc; and Officers against whom departmental
proceedings are taken for the imposition of a major penalty
under the disciplinary rules applicable to them should not be
included in the select list. But the suitability of such an Officer
for promotion should be assessed at the relevant time by the
Departmental Promotion Committee and a finding reached
whether, if the Officer had not been suspended or the
criminal proceedings/departmental proceedings had not
been pending against him, he would have been
recommended/selected for promotion. Where a select list is
prepared the Departmental Promotion Committee shall also
make a finding as to what the position of the Officer in that
list would have been but for the suspension or the criminal
proceedings/departmental proceedings against him. "The
findings as to the suitability and the place in the select list of
the officer should be recorded separately and attached to the
proceedings. The proceedings of the Departmental
Promotion Committee need only contain a note. "The
findings are recorded in the attached sheet of paper". The
authority competent to fill the vacancy should be separately
advised to fill the vacancy only on a temporary basis.
Officers against whom vigilance or departmental proceedings
are taken after the charges have prima facie been
established in a preliminary enquiry should not be included in
the select list. But, the cases of such Officers should also be
assessed. The question of including them in the select list
shall be considered when the result of the enquiry is known.
However Officers against whom departmental proceedings
are taken for the imposition of a minor penalty may be
included in the select list provisionally if they are found
suitable but for the pendency of disciplinary proceedings
initiated against them.
(ii) The vacancy that would have gone to the Officer but for
his suspension or the criminal proceedings/departmental
proceedings against him for the imposition of a major penalty
should be filled only on a temporary basis by the next person
in the approved list. If the Officer concerned is completely
exonerated, he will be promoted thereafter to the post filled
on a temporary basis, the arrangements made previously
being reversed. If the exoneration is not complete, the
Departmental Promotion Committee may decide each case
on its merits. Where, however, the post which would have
gone to the Officer but for his suspension or the criminal
proceedings/ departmental proceedings against him, ceases
to exist before the conclusion of the disciplinary proceedings,
he will be promoted to the first vacancy that may be available
in future if he is found fit for promotion at that time. If the
officers against whom departmental proceedings are taken
for imposition of a minor penalty and who have been
provisionally included in the select list are fully exonerated of
the charges, their cases for promotion on the basis of such
inclusion in the select list shall be considered. If the
Officers are not fully exonerated of the charges, the
Departmental Promotion Committee may decide each case
on its own merit."
41. Contentions were advanced by the respective counsel in
accordance with the pleadings putforth and as deliberated above.
42. Altogether, there were eight cases initiated against the 6th
respondent - Mr.C.K.Baiju. The first among them, relate to an allegation
pertaining to excessive excavation of sand in Kuravilangad Grama
Panchayat and in that, consequent to the enquiry report QV 4/13/KTM
dated 23.10.2013, disciplinary proceedings were initiated, which even
according to Mr. C.K.Baiju culminated in inflicting minor penalty.
43. Though the second allegation of unauthorised functioning of
brick kilns at Mulakulam and Velloor Grama Panchayats was raised and
departmental action was initiated, it culminated in an order of exoneration
of Mr. C.K.Baiju, evident from Exhibits-R1(b) and R1(f).
44. The third allegation of illegal quarrying in Kizhuthiri, Ramapuram
Grama Panchayat, memo of charges was issued against Mr. C.K.Baiju
and he has submitted a statement of defense, which is pending
finalisation, and the memo of charges is marked as Exhibit-P11 produced
along with the reply affidavit filed to the counter affidavit of the 6 th
respondent. In the memo of charges, the basic allegation is that Mr.
C.K.Baiju granted quarrying permit in respect of a land included in Survey
Nos.200/6 and 209/6 (village not mentioned), which is not certified in the
survey map by the revenue authorities and, therefore, violative of the
rules. In the site inspection, it was revealed that quarrying was done upto
a distance of 35 metres from the public road overlooking the provisions of
the Kerala Minor Mineral Concession Rules, and thereby committed
serious violations of the rules and regulations, and therefore alleged
dereliction of duty and,accordingly, to face disciplinary action as per the
Kerala Civil Service (Classification, Control and Appeal) Rules, 1960.
45. The 4th allegation was regarding vigilance raid conducted in the
residence of Mr. C.K.Baiju on 29.07.2019, in which, the Government
dropped prosecution in respect of amassment of wealth, disproportionate
to the asset, since the differential income was only 6.79%, which is less
than 10%, the requisite percentage necessary for launching prosecution,
evident from Exhibit-R6(g) produced along with the counter affidavit of the
6th respondent, but the departmental action is pending.
46. The 5th allegation was with respect to a departmental
proceedings initiated on the basis of a vigilance enquiry in SC 47/14/KTM,
in which, after the enquiry proceedings, punishment of bar of two
increments were imposed with cumulative interest. Later, as per the order
in O.A. No.598/2018, the said order was quashed by the Kerala
Administrative Tribunal, evident from Exhibit-R6(b) produced along with
the counter affidavit of Mr. C.K.Baiju. However, the Tribunal had given
liberty to the State Government to take appropriate action in accordance
with law.
47. Reading of Exhibit-R6(b) order dated 9.4.2019 in O.A.
No.598/2018 of the Kerala Administrative Tribunal, Thiruvananthapuram,
makes it clear that the proceedings are found vitiated from the point of
disagreement by the disciplinary authority with Annexure-A8 enquiry
report, and it was thereupon that, the impugned orders were set aside and
consequentially, the State Government was given the liberty to call for an
explanation from Mr.C.K.Baiju, as to why the tentative decision to differ
from the findings of the enquiry officer should not be confirmed.
Accordingly, the State Government was directed to issue a show cause
notice as provided under Rule 15(11) of the Kerala Civil Services
(Classification, Control and Appeal) Rules, 1960, provide a copy of the
enquiry report to Mr. C.K.Baiju and also the provisional findings of the
disciplinary authority on each charges with reasoning and show as to why
it intends to differ with the findings of the enquiry officer. The State
Government was also directed to issue a show cause notice, within a
period of one month from the date of receipt of a copy of the order of the
Tribunal and the applicant was directed to submit his explanation within
the period prescribed in the show cause notice and the State Government
was directed to finalise the entire disciplinary proceedings, within a further
period of two months.
48. It is surprising to note that the order of the Tribunal is dated
9.4.2019, and almost two years have elapsed. Even according to
Mr.C.K.Baiju, it is still pending with the Kerala Public Service Commission,
for concurrence and finalisation.
49. Yet another allegation against Mr. C.K.Baiju is with respect to
Exhibit-P2 order of the State Information Commission dated 27.09.2014,
directing action against him, based on the complaint of the 2 nd petitioner,
since information sought for by the 2nd petitioner under the Right to
Information Act, 2005 was not given in terms of law and consequential
action on the part of Mr. C.K.Baiju, to trap the 2 nd petitioner in a theft case.
According to the learned Senior Counsel for the 6 th respondent, the State
Information Commission does not have power to issue any such direction.
However, on a reading of the said order, what we could gather is that
there was rampant allegations made by the 2 nd petitioner against
Mr. C.K.Baiju and on enquiry, it was found that there was deep seated role
played by Mr. C.K.Baiju, in the matter of loss of official seal from the office
of the Geologist, Kottayam and the role played in implicating the 2 nd
petitioner in a theft case. It was accordingly, in exercise of the power
conferred on the State Information Commission under Section 20(2) of the
Right to Information Act, 2005, the Commission decided to order a
detailed enquiry against Mr.C.K.Baiju, the Senior Geologist, Mining and
Geology Department, and recommended disciplinary action against him
under applicable service rules.
50. In our view, the facts and circumstances unearthed in that
context, persuaded the State Information Commission, to forward a copy
of the order to the Principal Secretary to the Government, Department of
Industry, and to the Director, Mining and Geology Department. Anyhow,
the subject matter of the said proceedings is stayed by this Court as per
order in W.P.(C) No.29280 of 2014 dated 19.03.2015 and therefore we are
not expressing any opinion on the merits of the said aspect .
51. On analyzing the facts and situations as above, it is clear that
various proceedings were initiated against Mr. C.K.Baiju, respondent No.6,
and one of them ended in exoneration of the charges. One disciplinary
action was quashed by the Kerala Administrative Tribunal and apparently,
in two of them, even according to Mr. C.K.Baiju, penalties were imposed,
and two proceedings are pending.
52. The appointment to the posts in the Department of Mining and
Geology was originally guided by the Kerala Geology Service Special
Rules published as per S.R.O.No.114/82, by which, the service is
constituted and categorised from Category (1) to (4). Category (1) -
Director of Mining and Geology, Category (2) - Deputy Director of Mining
and Geology, Category (3) - Senior Chemist, and Category (4) - Geologist.
To the post of Director, Mining and Geology Department, the method of
appointment is by promotion from the category of Deputy Director of
Mining and Geology and in the absence of suitable candidates for
promotion, by direct recruitment. The Deputy Director of Mining and
Geology is a promotion post from the category of Geologist and in the
absence of suitable candidates by promotion, by direct recruitment.
Likewise, the manner in which promotions are done to the other posts are
also specified in the Special Rules.
53. Rule 3(b) of the Special Rules for State Service deals with the
manner in which the promotion has to be effected. It clearly specifies that
promotion and appointment by transfer shall be made from the select list
prepared from among eligible officers on the basis of merit and ability,
seniority being considered only where merit and ability are approximately
equal, and persons included in the select list shall be ranked in the order
of their seniority, subject to the provisions of Rule 28(b)(i), Part II of the
Kerala State and Subordinate Service Rules, 1958. Anyhow, the Special
Rules, 1982 were superseded by the Special Rules, 2009, published as
per SRO No.647/2009 dated 28th July, 2019, whereby, Rule 2 deals with
constitution. The said rule provides eight categories of posts starting from
Additional Director of Mining and Geology and ending with Audit Officer.
Therefore, it is clear that as per the Kerala Geology Service Special Rules,
2009, there is no post of Director. However, the Additional Director of
Mining and Geology is a promotion post from the category of Deputy
Director of Mining and Geology and, in the absence of suitable candidates,
for promotion, by direct recruitment. Likewise, the manner in which the
promotion to be undertaken to the other posts are also specified in the
Kerala Geology Service Special Rules, 2009.
54. It is pertinent to note that instead of Rule 3(b) of the Special
Rules for the Kerala Geology Service, 1982, a note is provided to Rule 3
dealing with the method of appointment from each category, which
specifies that promotion and appointment by transfer shall be made from
the select list prepared from among eligible officers on the basis of merit
and ability, seniority being considered only where merit and ability are
approximately equal.
55. As is pointed out by the learned Senior Counsel appearing for
the 6th respondent, the select list shall be prepared and a consequential
rank list shall be made in the order of seniority, subject to the provisions of
Rule 28(b)(i) in Part II of the Kerala State and Subordinate Service Rules,
1958. At the risk of repetition, Rule 28(b)(i)(7) dealing with preparation of
selection list, reads thus:
"(7) The "Select List" shall be prepared from among
the eligible officers on the basis of merit and ability,
seniority being a consideration only when all the
qualifications are equal. The number of names to be
included in the "Select List" shall be the same as the
estimated number of vacancies likely to arise during
the next year. Supplemental lists may be prepared in
case the lists already prepared get exhausted before
the close of the year to which they relate, so as to
obviate the necessity for convening meetings of
Departmental Promotion Committees at short notice or
keeping of posts unfilled and thereby causing
administrative inconvenience. Persons selected for
inclusion in the Select List according to their seniority
in the feeder category. When the Special Rules
provide for a definite ratio or order of preference from
the feeder categories, persons from each feeder
category shall be included in separate lists and
appointment shall be made in accordance with the
ratio or order or preference prescribed by such
Special Rules for each feeder category."
56. Thus, reading of the abovesaid provision makes it clear that the
officers under suspension and the officers against whom, disciplinary and
criminal proceedings are pending in Sessions Court or in any other higher
courts for grave offenses like murder, dacoity, etc., and officers against
who departmental proceedings are taken for imposition of a major penalty
under the disciplinary rules, applicable to them, should not be included in
the select list, but the suitability of such an officer for promotion should be
assessed at the relevant time by the DPC and a finding reached whether if
the officer had not been suspended or the criminal/departmental
proceedings had not been pending against him, he would have been
recommended or selected for promotion.
57. A conjoint reading of the provisions of Special Rules, 2009 and
the Kerala State and Subordinate Service Rules, 1958, would make it
clear that there should be a select list prepared for the purpose of effecting
promotion. But, in the case on hand, no such exercise was undertaken by
the State Government, evident from Exhibit-P9 impugned order.
Moreover, the sole reason assigned therein to appoint Mr. C.K.Baiju is that
there is dearth of IAS level officers and since it is not convenient to appoint
an IAS Officer, Mr. C.K.Baiju is temporarily given the full authority and
responsibility of the Director, Mining and Geology Department, which order
is dated 20.03.2020, and still Mr. C.K.Baiju continues to hold the full
authority and responsibility of the Director of Mining and Geology, which
according to us can never be termed as a temporary arrangement .
58. It is significant to note that as per the Special Rules, 2009, there
is no post of Director, Mining and Geology Department, and we are unable
to understand as to how, the State Government have appointed
Mr. C.K.Baiju to a post which is not existing, in accordance with the Rules,
2009. That apart, the State Government have completely overlooked the
Note to Rule 3 of the Special Rules, 2009, and the provisions of the Kerala
State and Subordinate Service Rules, 1958, discussed above, while
appointing Mr. C.K.Baiju to the post of Director, Mining and Geology, even
though the said appointment is seen to have been made temporarily.
Now, more than one year has elapsed and the 6 th respondent continues to
be in the said post. Nowhere from the impugned order, it is discernible as
to why the provisions of the rules discussed above was given a go-bye by
the State Government to appoint an officer tainted with serious allegations
of corrupt practices, to a non existing post of Director, which would
significantly and apparently demonstrates the influence wield by the said
person with the upper echelons of the State Government, and therefore,
we find force in the contentions advanced in that regard by the petitioners.
59. Since Exhibit-P9 did not contain any of the requirements
contemplated under law, we called for the original files from the State
Government, in regard to the enquiry proceedings, and accordingly, the
files were produced before us. Files pertaining to the appointment of Mr.
C.K.Baiju, giving additional charge of the Director, Mining and Geology
Department, were also called for.
60. We have gone through the files extensively and elaborately, and
found that even in the enquiry reports, there is prima facie finding, to
suggest that ways and means were found out to inflict minor penalties like
barring of increments etc. In one of the enquiry reports, it is seen that the
enquiry officer has found fault with the provisions of the Kerala Minor
Mineral Concession Rules, 2015 and the loopholes contained thereunder
to culminate in the matter of grant of permits and excessive mining
operations done by the permit holders. It is also seen from the records
that no select list is prepared before passing the impugned order
Exhibit-P9, by the State Government, which absolutely violates the Special
Rules, 2009, as well as the provisions of the Kerala State and Subordinate
Service Rules, 1958.
61. Even though an attempt is made by the learned Senior Counsel
appearing for the 6th respondent, to canvas the proposition that there is no
appointment made to the post of Director, and Exhibit-P9 order is only a
temporary charge given to Mr. C.K.Baiju, we are unable to agree with the
said submission, especially due to the fact that a tainted officer is
continuing in service, in the post of Director, for the past nearly one year
and secondly, the Government have not stated, as to why there is dearth
of IAS officers to be appointed in a top level post of the Director/Additional
Director, in the Department of Mining and Geology, which is a key post,
also concerning environmental issues, and always to be dealt with
allegations of corrupt practices of the officers in the department.
62. Perusal of the files relating to Exhibit-P9 order dated
20.03.2020, by which the 6th respondent, Mr. C.K.Baiju, has been given
additional charge as the Director, Mining and Geology Department, does
not disclose any discussion on the adequacy of the IAS officers, at the
time of appointment, in the State of Kerala. Reasons assigned in the
counter affidavit filed by the Government of Kerala, are not supported in
the files. At this juncture, it is relevant to consider, as to whether an order
impugned in a writ petition, can be justified by the reasons in the counter
affidavit. On the said aspect, let us consider a few decisions.
(i) In Mohinder Singh Gill and Another v. Chief Election
Commissioner, New Delhi and Others reported in (1978) 1 SCC
405, the Hon'ble Supreme Court held thus:
"8. The second equally relevant matter is that when a
statutory functionary makes an order based on certain
grounds, its validity must be judged by the reasons so
mentioned and cannot be supplemented by fresh reasons in
the shape of affidavit or otherwise. Otherwise, an order bad in
the beginning may, by the time it comes to court on account
of a challenge, get validated by additional grounds later
brought out. We may here draw attention to the observations
of Bose J. in Commissioner of Police, Bombay v.
Gordhandas Bhanji (AIR 1952 SC 16):
"Public orders, publicly made, in exercise of a statutory
authority cannot be construed in the light of
explanations subsequently given by the officer making
the order of what he meant, or of what was in Ms mind,
or what he intended to, do. Public orders made by
public authorities are meant to have public effect and
are intended to effect the actings and conduct of those
to whom they are addressed and must be construed
objectively with reference to the language used in the
order itself."
9. We must, in limine, state that-anticipating our decision on
the blanket ban on litigative interference during the process of
the election, clamped down by Article 329(b) of the
Constitution-we do not propose to enquire into or pronounce
upon the factual complex or the lesser legal tangles, but only
narrate the necessary circumstances of the case to get a hang
of the major issues which we intend adjudicating. Moreover,
the scope of any actual investigation in the event of
controversion in any petition under Article 226 is ordinarily
limited and we have before us an appeal from the High Court
dismissing a petition under Article 226 on the score that such
a proceeding is constitutionally out of bounds for any court,
having regard to the mandatory embargo in Article 329(b). We
should not, except in exceptional circumstances, breach the
recognised, though not inflexible, boundaries of Article 226
sitting in appeal, even assuming the maintainability of such a
petition. Indeed, we should have expected the High Court to
have considered the basic jurisdictional issue first, and not last
as it did, and avoided sallying forth into a discussion and
decision on the merits, self-contradicting its own holding that
it had no jurisdiction even to entertain the petition. The
learned Judges observed:
"It is true that the submission at serial No. 3 above in
fact relates to the preliminary objection urged on behalf
of respondents 1 and 3 and should normally have been
dealt with & St but since the contentions of the parties
on submission No.1 are inter-mixed with the
interpretation of Article 329(b) of the Constitution, we
thought it proper to deal with them in the order in
which they have been made."
This is hardly a convincing alibi for the extensive per
incuriam examination of facts and law gratuitously made by
the Division Bench of the High Court, thereby generating
apprehensions in the appellant's mind that not only is his
petition not maintainable but he has been damned by
damaging findings on the merits. We make it unmistakably
plain that the election court hearing the dispute on the same
subject under section 98 of the R.P. Act, 1951 (for short, the
Act) shall not be moved by expressions of opinion on the
merits made by the Delhi High Court while dismissing the writ
petition. An obiter binds none, not even the author, and
obliteration of findings rendered in supererogation must alley
the appellant's apprehensions. This Court is in a better
position than the High Court, being competent, under certain
circumstances, to declare the law by virtue of its position
under Article 141. But, absent such authority or duty, the High
Court should have abstained from its generosity. Lest there
should be any confusion about possible slants inferred from
our synoptic statements, we clarify that nothing projected in
this judgment is intended to be an expression of our opinion
even indirectly. The facts have been set out only to serve as a
peg to hang three primary constitutional issues which we will
formulate a little later."
(ii) In State Govt. Houseless Harijan Employees Association
v. State of Karnataka and Ors., [(2001) 1 SCC 610], after
considering the decision in Mohinder Singh Gill's case (cited
supra), the Hon'ble Supreme Court held thus:
"48. The basis on which the learned Single Judge
dismissed the appellant's writ petition was that there
was no approval of the appropriate Government to the
acquisition, namely, the absence of the third factor
noted above. This was not the ground on which
withdrawal from the acquisition had been made and it
was not open to the State Government to justify its
decision on any other ground.
49. Besides, what had been stated in the affidavit of
the State-respondents is "the petitioner society has not
submitted any housing scheme and as such there could
not have been prior approval from the Government" In
other words, the fact of prior approval has not been
denied. What is said is because no housing scheme had
been submitted by the appellant" there could not have
been prior approval."
(iii) In Pavanendra Narayan Verma v. Sanjay Gandhi P.G.I.
of Medical Sciences and Ors., (AIR 2002 SC 23), the Hon'ble
Apex Court held thus:
"6. The respondents have submitted that the inquiry
was held merely to assess the appellant's fitness for
being continued on probation. The respondents
claimed to have received various complaints regarding
the discharge of the appellant's duties an in order to
give the appellant an opportunity of placing the true
facts before the respondent the summary inquiry was
held so that the suitability of the appellant for being
confirmed in the post of Joint Director (Material
Management) could be fairly assessed. It was also
submitted that the order was not stigmatic nor punitive
and that no statement in the counter affidavit would
change that position.
34. That an affidavit cannot be relied on to improve or
supplement an order has been held by a Constitution
Bench in Mohinder Singh Gill v. The Chief Election
Commissioner, New Delhi (cited supra).
"...when a statutory functionary makes an
order based on certain grounds, its validity
must be judged by the reasons so mentioned
and cannot be supplemented by fresh reasons
in the shape of affidavit or otherwise..."
35. Equally an order which is otherwise valid cannot be
invalidated by reason of any statement in any affidavit
seeking to justify the order. This is also what was held
in State of Uttar Pradesh v. Kaushal Kumar
Shukla (supra):
"The allegations made against the respondent
contained in the counter-affidavit by way of a
defence filed on behalf of the appellants also
do not change the nature and character of the
order of termination."
(iv) In Union of India (UOI) and Ors. v. G.T.C. Industries
Limited, Bombay [(2003) 5 SCC 106], the Hon'ble Supreme Court
held thus:
"14. Counsel for the appellants failed to displace the
finding recorded by the High Court on this point.
Contention of the counsel for the Union of India that
the order of the Collector should be sustained by
ignoring the submissions/statements of Shri Sailo as
there was other sufficient material on record to sustain
and justify the said order cannot be accepted. it may
not be possible for us to separate or disentangle the
submissions of Shri Sailo from other material evidence
on record. it is well settled that a quasi-judicial order
has to be judged on the basis of reasoning contained
therein and not on the basis of pleas put forward by
the person seeking to sustain the order in its counter
affidavit or oral arguments before the Court."
(v) In State of Punjab and Ors. v. Bandeep Singh & Ors.
reported in (2016) 1 SCC 724, at paragraph (4), the Hon'ble
Supreme Court held thus:
"4. There can be no gainsaying that every decision of
an administrative or executive nature must be a
composite and self sustaining one, in that it should
contain all the reasons which prevailed on the official
taking the decision to arrive at his conclusion. It is
beyond cavil that any Authority cannot be permitted to
travel beyond the stand adopted and expressed by it in
the impugned action......."
(vi) In United Air Travel Services v. Union of India (UOI)
reported in (2018) 8 SCC 141, the respondent therein made an
attempt to justify the order of disqualification, which was not stated
in the latter. After considering the decision in Mohinder Singh
Gill's case (cited supra), the Hon'ble Supreme Court repelled the said
contention. At paragraphs 9, 10, 11 and 12, the Hon'ble Apex Court
observed thus:
"9. A bare perusal of the aforesaid letter would show that
the reason cited for disqualification was non-compliance with
the very clauses of which exemption had been granted to
the petitioners.
10. The learned Additional Solicitor General appearing for
the respondents could not dispute the aforesaid position but
sought to canvas that the reasons were wrongly
communicated in the rejection letter, and there was actually,
some other reason for the rejection. The aforesaid plea can
hardly be countenanced in view of the reasons referred to
and communicated.
11. The learned counsel for the petitioner has, thus, rightly
drawn our attention to the Constitution Bench judgment of
this Court in Mohinder Singh Gill v. Anr. v. The Chief
Election Commissioner, New Delhi and Ors. (1978) 1
SCC 405 to submit that such a plea cannot be accepted. We
may note that this is a well settled legal position in many
judicial pronouncements of this Court, but it is not necessary
to revert to the same............
Orders are not like old wine becoming better as they
grow older."
12. The aforesaid legal position, thus, makes the stand
of the respondent unsustainable, resulting in quashing
of the impugned letters of rejection."
63. To substantiate his contention that a writ of certiorari would lie
against an appointment made, learned counsel for the petitioners invited
our attention to the decision in Kumar Padma Prasad v. Union of India
(UOI) and Ors. [(1992) 2 SCC 428], wherein the Hon'ble Supreme Court
had considered an issue with respect to the appointment of a Judge of
High Court, allegedly in violation of Articles 217(1) and 217(2) of the
Constitution of India, and ultimately quashed the appointment and the
Union of India was directed not to administer Oath or affirmation under
Article 219 of the Constitution of India to the Judge designate.
64. That apart, the learned counsel for the petitioners has also relied
on the decision in Centre for PIL and Others v. Union of India (UOI)
and Others reported in (2011) 4 SCC 1, wherein the Hon'ble apex Court
held that though the Government is not accountable to the courts in
respect of policy decisions, they are accountable for the legality of such
decisions. Paragraphs 34 to 37 of the said judgment read thus:
"Is Writ of Quo Warranto invocable ?
34. Shri K.K. Venugopal, learned senior counsel appearing
on behalf of respondent No. 2, submitted that the present
case is neither a case of infringement of the statutory
provisions of the 2003 Act nor of the appointment being
contrary to any procedure or rules. According to the learned
counsel, it is well settled that a writ of quo warranto applies
in a case when a person usurps an office and the allegation
is that he has no title to it or a legal authority to hold it.
According to the learned counsel for a writ of quo warranto
to be issued there must be a clear infringement of the law.
That, in the instant case there has been no infringement of
any law in the matter of appointment of respondent No. 2.
35. The procedure of quo warranto confers jurisdiction and
authority on the judiciary to control executive action in the
matter of making appointments to public offices against the
relevant statutory provisions. Before a citizen can claim a
writ of quo warranto he must satisfy the Court inter - alia that
the office in question is a public office and it is held by a
person without legal authority and that leads to the inquiry
as to whether the appointment of the said person has been
in accordance with law or not. A writ of quo warranto is
issued to prevent a continued exercise of unlawful authority.
36. One more aspect needs to be mentioned. In the present
petition, as rightly pointed by Shri Prashant Bhushan,
learned counsel appearing on behalf of the petitioner, a
declaratory relief is also sought besides seeking a writ of
quo warranto.
37. At the outset it may be stated that in the main writ
petition the petitioner has prayed for issuance of any other
writ, direction or order which this Court may deem fit and
proper in the facts and circumstances of this Case. Thus,
nothing prevents this Court, if so satisfied, from issuing a
writ of declaration. Further, as held hereinabove,
recommendation of the HPC and, consequently, the
appointment of Shri P.J. Thomas was in contravention of the
provisions of the 2003 Act, hence, we find no merit in the
submissions advanced on behalf of respondent No. 2 on
non - maintainability of the writ petition. If public duties are to
be enforced and rights and interests are to be protected,
then the Court may, in furtherance of public interest,
consider it necessary to inquire into the state of affairs of the
subject matter of litigation in the interest of justice [See --
Ashok Lanka v. Rishi Dixit, 2005 KHC 1154 : 2005 (5) SCC
598 : AIR 2005 SC 2821]."
65. Learned counsel for the petitioners has also relied on the
decision in State of Punjab v. Salil Sabhlok and Others [(2013) 5 SCC
1], to contend that merely because, an element of service matter is
involved in a writ petition, it cannot be said that the party initiating action is
not aggrieved and has no locus standi to initiate legal action in the court of
law. Evaluating the facts and circumstances, the Hon'ble Supreme Court
found that the writ petition was filed in a matter affecting the interests of
general public and, therefore, any member of public could espouse the
cause of general public, so long as his bona fides are not doubted. It was
accordingly held that the subject matter of the writ petition could not be
said as a service matter and the High Court was right in entertaining a writ
petition as a Public Interest Litigation.
66. On the other hand, learned Senior Counsel for the 6th
respondent has invited our attention to the decisions of the Hon'ble
Supreme Court in State of Uttaranchal v. Balwant Singh Chaufal and
Others [(2010) 3 SCC 402], Hari Bansh Lal v. Sahodar Prasad Mahto
and Others [(2010) 9 SCC 655], and Girjesh Shrivastava and Others v.
State of Madhya Pradesh and Others [(2010) 10 SCC 707], to canvas
the proposition that no Public Interest Litigation is maintainable in service
matters and only the affected persons are entitled to seek remedy in
service matters.
67. On consideration of the facts and circumstances, we are of the
opinion that sufficient public interest is involved in the matter at hand, and
that Mr. C.K.Baiju, respondent No.6, was appointed to the post of Director,
Mining and Geology Department, even though styled as temporary and
giving charge, is overlooking all canons of law and beyond comprehension
of the normal procedure followed in the matter of promotion, especially
due to the fact that he is a tainted officer facing charges and imposed with
penalty, and thus, violated fair play and equal opportunity. Moreover, the
Government functions as a trustee of the citizens and, therefore, duty
bound to protect the general interests of the public. Whenever the
Government overlooks its duty and obligations, the constitutional courts
shall not be hesitant to step in and correct such patent illegality, in larger
public interest. We are also of the opinion that the key post of a Director or
Additional Director in the Department of Mining shall always be held by a
person not only with ability and merit but with the highest order of integrity
too. Instant case is one, where the State Government was unmindful of
such a moral principle. Apart from that, the basic requirement of law, as
discussed above, is merit and ability, which according to us, shall give way
to seniority, however, it is totally lacking in the case at hand. Therefore, we
find force in the contentions advanced by learned counsel for the
petitioners, and the decisions relied upon, to arrive at a safe conclusion
that Exhibit-P9 order dated 20.03.2020 cannot be sustained under law,
and liable to be interfered with.
In the light of the above discussion and decisions, we quash
Exhibit-P9 order, G.O.(Rt.) No.258/2020/ID dated 20.03.2020 issued by
the Joint Secretary, Department of Industry (A), and direct the State
Government, to take immediate steps to terminate the services of the 6 th
respondent viz., Mr. C.K.Baiju, from the post of Director, Mining and
Geology Department, granted as per Exhibit-P9, forthwith. Accordingly,
this writ petition is allowed to that extent. The issues raised relating to
other aspects in the writ petition are left open being subject matter of
enquiry and adjudication appropriately. Registry is directed to return the
original files produced, to the office of the Advocate General after securing
proper acknowledgment.
Sd/-
S. Manikumar
Chief Justice
Sd/-
Shaji P. Chaly,
Judge
krj
APPENDIX
PETITIONER'S/S EXHIBITS:
P1 COPY OF THE REGISTRATION CERTIFICATE DATED 16.03.2016 ISSUED
TO 1ST RESPONDENT FOR THE REGISTRAR OF SOCIETIES ERNAKULAM
AND TRANSLATION.
P1 A THE TRUE ENGLISH TRANSLATION OF EXHIBIT P1.
P2 COPY OF COMPLAINT DATED 04.11.2019 WITH MATERIALS AND
TRANSLATION.
P3 COPY POSTAL RECEIPT EVIDENCING THE SENDING OF EXHIBIT P2
COMPLAINT.
P4 COPY OF CIRCULAR DATED 23.06.2003.
P4 A THE TRUE ENGLISH TRANSLATION OF EXHIBIT P4.
P5 COPY OF CIRCULAR 8TH JANUARY 2007 NO.6649/UPC 2003.
P5 A THE TRUE ENGLISH TRANSLATION OF EXHIBIT P5.
P6 COPY OF THE REPLY DATED 29.01.2020 ISSUED BY 2ND RESPONDENT
FROM THE OFFICE OF THE 2ND RESPONDENT.
P6 A THE TRUE ENGLISH TRANSLATION OF EXHIBIT P6.
P7 COPY OF THE LETTER DATED 27.02.2017 ISSUED BY THE
SUPERINTENDENT, VIGILANCE AND ANTI CORRUPTION BUREAU.
P7 A THE TRUE ENGLISH TRANSLATION OF EXHIBIT P7.
P8 COPY OF THE LETTER DATED 22.05.2019 OF PRINCIPAL SECRETARY TO
THE GOVERNMENT.
P9 COPY OF THE ORDER GO(RT)NO.258/2020/ID DATED 20.03.2020.
P9 A THE TRUE ENGLISH TRANSLATION OF EXHIBIT P9.
P10 COPY OF THE MEMO OF CHARGES DATED 04-05-2012 AND ITS ENGLISH
TRANSLATION.
P11 COPY OF THE MEMO OF CHARGES DATED 18-5-2019 ISSUED TO THE
6TH RESPONDENT.
P11A THE TRUE ENGLISH TRANSLATION OF EXHIBIT P1.
P12 COPY OF THE STATEMENT OF CHARGES DATED 18-5-2019 ISSUED TO
THE 6TH RESPONDENT.
P12A THE TRUE ENGLISH TRANSLATION OF EXHIBIT P1.
P13 COPY OF THE APPLICAITON DATED 15-6-2020 SUBMITTED TO THE
INDUSTRIES (A) DEPARTMENT.
P13A THE TRUE ENGLISH TRANSLATION OF EXHIBIT P13.
P14 COPY OF THE REPLY DATED 2-7-2020 ISSUED FROM THE INDUSTRIES
(A) DEPARTMENT
P14A THE TRUE ENGLISH TRANSLATION OF EXHIBIT P14.
P15 COPY OF THE REPLY DATED 23-7-2020 ISSUED FROM KERALA PUBLIC
SERVICE COMMISSION.
P15A THE TRUE ENGLISH TANSLATION OF EXHIBIT P15.
P16: COPY OF THE APPLICATION DATED 29.6.2020 SUBMITTED TO THE
VIGILANCE DIRECTOR WITH ENGLISH TRANSLATION.
P17: COPY OF THE REPLY DATED 7.8.2020 FROM THE VIGILANCE DIRECTOR
WITH ENGLISH TRANSLATION.
P18:- COPY OF THE STATUS REPORT RECEIVED FROM THE WEBSITE OF LOK
AYUKTA.
RESPONDENTS' EXHIBITS:
R6 (A) COPY OF THE INTERIM ORDER DATED 12.6.2015 IN WPC NO-
29280/2014 OF THIS HON'BLE COURT
R6 (B) COPY OF THE ORDER DATED 9.4.2019 IN O.A. 598/2018 OF THE
KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM,
(ADDITIONAL BENCH AT ERNAKULAM)
R6 (C) COPY OF THE MINUTES OF THE MEETING OF THE DEPARTMENTAL
PROMOTION COMMITTEE DATED 30.5.2016 PHOTOCOPY OF THE
COMMUNICATION NO.
R6 (D) COPY OF THE ORDER G.O.(RT) NO-248/2015/ID DATED 19.3.2015
ISSUED BY THE GOVERNMENT
R6 (E) COPY OF THE MINUTES OF THE DEPARTMENTAL PROMOTION
COMMITTEE DATED 20.4.2015
R6 (F) COPY OF THE ORDER G.O.(RT) NO.1012/2014/ID DATED 17.9.2014
R6 (G) COPY OF THE ORDER NO VIG-B1/764/2018 VIG.DATED 29.7.2019
R6 (H) COPY OF THE LETTER NO-NOC-36893/2019/DVACB DATED 10.12.2019
OF THE DIRECTOR OF VIGILANCE & ANTI CORRUPTION BUREAU.
R6 (I) COPY OF THE COMMUNICATION DATED 11/9/2020 ISSUED BY THE
STATE PUBLIC INFORAMTION OFFICER.
R6 (J) COPY OF THE DETAILS OF THE VIGILANCE CASES AND
DEPATMENTAL PROCEEDINGS GIVEN BY THE STATE PUBLIC
INFORMATION OFFICER ALONG WITH EXT.P6(I).
R6 (K) COPY OF THE JUDGMENT IN CC NO.27/2012 DATED 31/10/2020 OF
CHIEF JUDICIAL MAGISTRATE COURT, KOTTARAKKARA.
R6 (L) COPY OF THE INVESTIGATION REPORT FILED BY THE INVESTIGATING
REPORT FILED BY THE INVESTIGATING AGENCY BEFORE THE LOK
AYUKTA IN COMPLAINT NO.447/2015 A.
R1(A) COPY OF THE GOVERNMENT ORDER G.O.(Rt) NO.248/2015/ID DATED
19/5/2015.
R1(B) COPY OF THE GOVERNMENT ORDER G.O.(Rt)NO.1012/2014/ID DATED
17/9/2014.
//TRUE COPY//
P.A. TO C.J.
