Kerala High Court
Bindulal V.S vs State Of Kerala on 22 May, 2024
Author: K. Babu
Bench: K. Babu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
WEDNESDAY, THE 22ND DAY OF MAY 2024 / 1ST JYAISHTA, 1946
WP(CRL.) NO. 281 OF 2024
PETITIONERS:
1 BINDULAL V.S.,
AGED 51 YEARS,
S/O VENUDHARAN, KOLLAMVILAKATHU HOUSE,
AYIROOR, ARUVIPPURAM POST,
THIRUVANANTHAPURAM, PIN - 695126
2 SIDHAN K.N.,
S/O NARAYANAN, KAIPPON(H),
NAYARAMBALAM POST, ERNAKULAM, PIN - 682509
3 AJIKUMAR G.,
AGED 47 YEARS,
D/O GOPINATHAN CHETTIYAR, THADATHARIKATH VEEDU,
KOLLA, KULAPPALLY, PANAVOOR, NEDUMANGAD,
THIRUVANANTHAPURAM, PIN - 695568
4 JOSEPH M. T.,
AGED 42 YEARS,
S/O THOMAS, MALIYEKKAL (H), NAYARAMBALAM,
ERNAKULAM, PIN - 682509
5 BINNY V.,
S/O VIJAYAN E.A, SURYA, KUMBALANPILLY,
CHALIKKAVATTOM, VENNALA POST, ERNAKULAM,
PIN - 682028
6 VINOJ M. G
S/O GOPI M. A., MANNOPPILLY MUGAL, HOUSE, CUSAT
POST, SOUTH KALAMASSERY, ERNAKULAM, PIN - 682022
7 SURESH T. K.,
AGED 44 YEARS,
S/O SUKUMARAN NAIR, THAZHAKUZHIYIL HOUSE,
PULLAVOOR NIT CAMPUS POST, KOZHIKODE, PIN - 673601
8 SUNISH P. K.,
AGED 44 YEARS,
S/O BALAN, CHITHRAPPATTAGIL HOUSE, PILLAVOOR NIT
CAMPUS POST, KOZHIKODE, PIN - 673612
W.P.(Crl) No.281 of 2024
2
9 SELMATH V.U.,
AGED 49 YEARS,
D/O UMMAR, VELUTHEDATH HOUSE, VADAKODE POST,
B.M.C, KAIPPADAMUGHAL, ERNAKULAM, PIN - 682021
10 ABHILASH P.K.,
AGED 43 YEARS,
S/O IMBI CHATHAN, POOLAKKUNAN (H), (H NO. 39),
CHANDAKUNNU POST, NILAMBUR, PIN - 679342
11 MANOJ K. R.,
AGED 46 YEARS,
S/O RAJAN K.K , KALLUKUNNEL HOUSE, KARINILAM
POST, MURUKKUMVAYAL, KOTTAYAM, PIN - 686513
12 MADHU M.J.,
AGED 42 YEARS,
S/O JAYADAS, MUKKADAMANNIL HOUSE,
MUKKOTTUTHARA POST, PALAKKAD, PIN - 678508
13 MUKESH K. V.,
AGED 40 YEARS,
S/O VIKRAMAN K.P., KANICHATTUKUDY HOUSE,
THOTTEKADU, MATTOOR, KALADY POST,
ERNAKULAM, PIN - 683574
14 SANDHYA T.,
AGED 46 YEARS,
D/O DHANANJAYAN V. M., NIVARTHIL HOUSE,
VETTAKKAL POST, CHERATHALA, PIN - 688529
15 RASHEEDA P. M.,
AGED 44 YEARS,
D/O MUHAMMED, PEREPPARAMBIL (HOUSE),
KUNNUSHERRY, ATHANY POST, NEDUMBASSERRY,
ERNAKULAM, PIN - 683585
16 SHANAVAS V.A.,
AGED 34 YEARS, S/O ABDUL KADAR,
VENATTU HOUSE, MADAVANA POST, KODUNGALLUR,
THRISSUR, PIN - 680666
17 SUDHA P.R.,
AGED 46 YEARS,
W.P.(Crl) No.281 of 2024
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D/O RAMU, KILIKOTT HOUSE, KAIPAMANGALAM,
CHALINGAD POST, THRISSUR, PIN - 680681
18 NISSAR P. M.,
AGED 49 YEARS,
D/O AHMED, PALAKKAL HOUSE, PALLILAMKARA,
H.M.T COLONY POST, KALAMASSERY ,
KOCHI, PIN - 683503
19 SHEEJA M. C.,
AGED 47 YEARS,
W/O PRIYA KUMAR, MANALODY HOUSE, KAPPRASSERY,
NEDUMBASSERY POST, PIN - 683585
20 LOVELY V.T.,
AGED 41 YEARS,
D/O THOMAS V.P., PLAPPALLY HOUSE, VADACKAL POST,
ALAPPUZHA, PIN - 688003
21 BEENAKUMARI S.,
AGED 40 YEARS,
D/O SASIDHARAN, ERATTAKKALAYIL, PADUKKOTTUKAL,
THATTAYIL POST, PATHANAMTHITTA, PIN - 691525
BY ADVS.
SRI.V.A.NAVAS
SRI.U.NIDHIN
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY CHIEF SECRETARY, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
2 SECRETARY TO GOVERNMENT,
DEPARTMENT OF VIGILANCE AND ANTI-CORRUPTION,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,
PIN - 695001
3 SECRETARY TO GOVERNMENT,
DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
4 PRINCIPAL SECRETARY,
W.P.(Crl) No.281 of 2024
4
DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
5 COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY -
CUSAT,
REPRESENTED BY ITS REGISTRAR, COCHIN UNIVERSITY
POST, COCHIN, PIN - 682022
6 THE CHANCELLOR,
COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY,
COCHIN UNIVERSITY POST, COCHIN, PIN - 682022
7 THE VICE CHANCELLOR,
COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY,
COCHIN UNIVERSITY POST, COCHIN, PIN - 682022
8 THE DIRECTOR,
DEPARTMENT OF VIGILANCE AND ANTI-CORRUPTION,
P.M.G, VIKAS BHAVAN POST, OPPOSITE KSRTC DIPPO,
THIRUVANANTHAPUARAM, PIN - 695033
BY ADV.
SRI.S.P ARAVINDAKSHAN PILLAI, SC,CUSAT
SRI.RAJESH A.,SPL GP VIG,
SMT.REKHA S.,SR PP
THIS WRIT PETITION (CRIMINAL) HAVING COME UP
FOR ADMISSION ON 22.05.2024, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
W.P.(Crl) No.281 of 2024
5
K.BABU, J.
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W.P.(Crl) No.281 of 2024
---------------------------------------------
Dated this the 22nd day of May, 2024
JUDGMENT
The prayers in this Writ Petition filed under Article 226 of
the Constitution of India are as follows:-
"1. Issue a writ of mandamus or appropriate writ order or
direction, directing the 1st, 2nd and 8th respondent to
constitute a special investigation team and to conduct
investigation in the matter stated in Exhibit P9, in a time
bound manner and in supervision of this Hon'ble Court.
2. Issue a writ of Mandamus or any appropriate writ
order or direction, directing the 8th respondent to take
appropriate legal actions based on the matters raised in
Exhibit P9.
3. This Hon'ble Court may grant leave to the petitioners
from filing the translation of the vernacular documents
produced with the writ petition.
4. Issue appropriate order or directing that this Hon'ble
Court may deem fit and proper in the facts and
circumstances of the case."
2. The petitioners were the applicants for the post of
sweeper-cum-cleaner in the Cochin University of Science and
Technology. The notification for the said post was published in
2008 and written examination was conducted in 2010. A short list
of 750 candidates was published based on the result of the
examination. The selection process was delayed indefinitely due
to the pendency of certain litigations before this Court.
3. A new syndicate took charge of the University on
November 2016. The syndicate proceeded with the selection
process. Final ranked list was published on 28.12.2018. Based on
the final ranked list 97 persons were appointed for the post.
4. The petitioners alleged that there was corruption and
malpractice in this selection process. It is alleged that even one
month prior to the publication of the ranked list, the names of
candidates who would be selected came to be leaked based on
certain communication between some office bearers of an
employees association and one of the candidates who appeared
in the selection process.
5. The Crux of the allegation in the Writ Petition is
narrated in Paragraphs 3 to 6 of the Writ Petition which are
extracted below:-
"3.The final ranked list of the candidates has to be prepared
based on the marks obtained by them in the written test as
well in the interview. Maximum marks that can be granted by
the interview board to a candidate were 20. Accordingly the
interview was conducted by the selection committee in the
month of April to July of 2018. Prior to the interview, the
ruling political party leaders have provided to the selection
committee a list of candidates who must be appointed by
giving maximum marks in the interview and bringing them in
the top of the final ranked list. Keeping it in mind, the new
selection committee has committed fraud and grave
malpractice in the interview process. They have granted
maximum marks out of 20 to the persons whom they have
pre-decided to give employment, though they have less
marks in written examination. On the other hand, lesser
marks were given to the eligible candidates who got higher
marks in the written examination. So the selection committee
has misused their position and has committed fraud and
malpractice in the interview process and made appointments
of undeserved candidates supporting their political line by
granting more marks in the interview than what they actually
deserved. A true copy of the consolidated mark sheet
prepared by the selection committee based on the interview
conducted from the period from 16/4/2018 to 9/7/2018 is
produced herewith and marked as Exhibit P1. A true copy of
the ranked list dated 28/12/2018 published by the 5 th
respondent is produced herewith and marked as Exhibit P2.
From Exhibit P1 it is evident that ineligible candidates having
lesser marks in the written examination were given higher
marks to give employment and the candidate having higher
marks in the written examination were given lesser marks
based on the basis of predetermined policy.
4.The list of the selected candidates after the
interview has to be published on 28/12/2018 and the decision
to publish the ranked list on that date was taken by the
syndicate meeting held on 27/12/2018. But days before the
publication, the details in the ranked list was leaked through
the office bearers of the employees association affiliated to
the ruling political front. Moreover there were incidents when
the office bearers of the Employees organization contacting
the selected candidates and ensuring membership to their
association much before the publication of the ranked list by
the selection committee. This incident indicates the
malpractice and nepotism held in the selection process.
5. Based on leakage of the ranked list, one month
prior to the publication of the ranked list, the candidates and
the public made agitations and strikes against the syndicate
and selection committee. The allegation regarding the
corruption and malpractice conducted by the syndicate was
breaking news in leading dailies and news channels of Kerala.
The copy of the news published in Malayala Manorama daily
dated 27/12/2018, 25/12/2018, 29/12,2018, 01/01/2019 &
02/01/2019 are produced together herewith and marked as
Exhibit P3.
6. One of the candidates named Bhanu, who is
expected to get employment as she is included in the list
given by the political party, came to know that the office
bearers of the employees association has contacted the
selected persons much prior to the publication of the ranked
list. She had made telephone calls from her mobile phone on
25/12/2018 to the said office bearers and enquired about the
malpractice happened in the interview process, which was
recorded by her. Upon the enquiry, it was replied that
maximum marks were given to persons included in the list
supplied from the party office to the Selection committee and
Bhanu was given 17 marks and as her marks was lesser in
written test, she fell short of selection. From these telephone
calls recorded by Bhanu and from other records it is evident
that the selection committee has conducted illegalities and
misused their position and excluded the deserved in the
ranked list and thereby made illegal enrichment to the
undeserved candidates. In this regard Bhanu had filed a
complaint to the Police Cyber Cell as well as to the vice
Chancellor, which was not considered. A true copy of the
Complaint dated 26/12/2018 submitted by Bhanu M.A to the
7 th respondent is produced herewith and marked as Exhibit
P4."
6. I have heard the learned counsel appearing for the
petitioners, the learned Standing Counsel appearing for the
University and the learned Senior Government Pleader appearing
for the Vigilance and Anti-Corruption Bureau.
7. The learned counsel for the petitioners submitted that
petitioner No.1 had filed Ext.P9 complaint before the Director of
Vigilance seeking investigation into the allegations of corruption
and malpractices. But no action was taken.
8. The learned Standing Counsel for the University
submitted that the process of selection was transparent and
lawful.
9. It is submitted by the learned Senior Government
Pleader that the vigilance could not proceed further on Ext.P9
complaint, as they did not get prior approval under Section 17A
of the Prevention of Corruption Act, 1988, from the competent
authority.
10. The approval as provided under Section 17A comes
into play only when the alleged offence is relatable to any
recommendation made or decision take by a public servant in
discharge of his official functions or duties. This Court in
Shankara Bhat and Others v. State of Kerala and Others
[2021(5) KHC 248] held that, it is not that every offence alleged
to have been committed by a public servant under the Act
needed prior approval and that approval under S.17A is required
only when the alleged offences were relatable to any
recommendation made or decision taken by a public servant. In
Shankara Bhat, this Court held that any commission of any
offence or allegation of acts of public servant which is ex facie
criminal or constitute an offence or even demanding illegal
consideration may not be treated as an offence related to any
recommendation made or decision taken by a public servant.
This view was followed by this Court in Jayaprakash J. and
Others v. State of Kerala and Another [2022(1) KHC 206],
Venugopal V. and others v. State of Kerala and Another [2021
KHC 565] and in Abdul Sathar T.A. v. State of Kerala [2023 (1)
KHC 167]. As far as the allegations related to corruption and
malpractice in the selection process in the given case are
concerned this Court finds nothing to show that the said
allegations are anyway relatable to any recommendation made
or decision taken by a public servant. Therefore, I hold that a
prior approval under S.17A is not required.
11. In Venugopal V. and others v. State of Kerala and
Another [2021 KHC 565], this Court held that when a
constitutional Court passes an order to conduct enquiry or
investigation in an offence under the Prevention of Corruption
Act, the bar under Section 17A of the Act does not operate
against the police officer.
12. Having regard to the nature of allegations levelled by
the petitioners, this Court holds that a preliminary enquiry as
mandated in Lalita Kumari v. Government of Uttar Pradesh
[2013 (4) KHC 552] is required. Therefore, the Director VACB
(Respondent No.8) is directed to conduct a preliminary enquiry in
the matter and proceed in accordance with law. The Director shall
complete the preliminary enquiry as expeditiously as possible, at
any rate, within a period of three months from the date of
production of a copy of this judgment.
The Writ Petition is disposed of as above.
Sd/-
K.BABU
JUDGE
VPK
APPENDIX OF WP(CRL.) 281/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE CONSOLIDATED MARK SHEET
PREPARED BY THE SELECTION COMMITTEE
BASED ON THE INTERVIEW CONDUCTED FROM
THE PERIOD FROM 16/4/2018 TO 9/7/2018
Exhibit P2 TRUE COPY OF THE RANKED LIST DATED
28/12/2018 PUBLISHED BY THE 5TH
RESPONDENT
Exhibit P3 THE COPY OF THE NEWS PUBLISHED IN
MALAYALA MANORAMA DAILY DATED
27/12/2018, 25/12/2018, 29/12,2018,
01/01/2019 & 02/01/2019
Exhibit P4 A TRUE COPY OF THE COMPLAINT DATED
26/12/2018 SUBMITTED BY BHANU M.A. TO
THE 7TH RESPONDENT
Exhibit P5 TRUE COPY OF THE COMPLAINT SUBMITTED BY
SRI. RAMESH CHENNITHALA TO THE
CHANCELLOR OF UNIVERSITY (6TH
RESPONDENT) DATED 29/12/2018
Exhibit P6 TRUE COPY OF THE LETTER DATED 29/12/2018
OF THE CHANCELLOR CALLING FOR THE REPORT
FROM THE 7TH RESPONDENT
Exhibit P7 TRUE COPY OF THE JUDGMENT DATED
18/10/2022 IN W.P (C) NO. 9986/2019 OF
THE HON'BLE HIGH COURT OF KERALA
Exhibit P8 TRUE COPY OF THE REPLY DATED 3/1/2023
ISSUED BY THE DEPUTY POLICE
COMMISSIONER, KOCHI CITY TO THE 2ND
PETITIONER
Exhibit P9 THE COMPLAINT FILED BY THE 1ST
PETITIONER DATED 1/6/2023 TO THE 8TH
RESPONDENT REQUESTING TO CONDUCT A
VIGILANCE ENQUIRY
Exhibit P10 TRUE COPY OF LETTER DATED 17/8/2023
ISSUED BY ADDL. CHIEF SECRETARY TO THE
4TH RESPONDENT
Exhibit P11 TRUE COPY OF THE LETTER DATED 11/12/2023
ISSUED BY THE DEPUTY POLICE
SUPERINTENDENT, VIGILANCE AND ANTI
CORRUPTION BUREAU DIRECTORATE,
THIRUVANANTHAPURAM TO THE 1ST PETITIONER
Exhibit P12 TRUE COPY OF THE APPLICATION DATED
15/11/2023 FILED BY THE IST PETITIONER
BEFORE THE OFFICE OF THE 4TH RESPONDENT
UNDER RTI ACT, 2005, ENQUIRING ABOUT THE
CURRENT STATUS OF EXHIBIT P9 COMPLAINT.
Exhibit P13 TRUE COPY OF THE REPLY DATED 18/11/2023
ISSUED BY THE UNDER SECRETARY
