B.S. Ibrahim v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 2ND SEPTEMBER 2010 / 11TH BHADRA 1932 WP(C).No. 21999 of 2010(Y) -------------------------- PETITIONER(S): - --------------- B.S.IBRAHIM, SECRETARY, JANATHA DAL (S) PANCHAYAT COMMITTEE, BEDIADKA PANCHAYAT, MOOKKAMPARA HOUSE, BEDIADKA, PERADALA.P.O, KASARGOD-671 551. BY ADV. SRI.KALEESWARAM RAJ RESPONDENT(S): - --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF LOCAL SELF GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PANCHAYATS, THIRUVANANTHAPURAM. 3. COMMISSIONER FOR RURAL DEVELOPMENT, THIRUVANANTHAPURAM. 4. DISTRICT COLLECTOR, KASARGOD. 5. STATE DELIMINATION COMMISSION, REPRESENTED BY THE SECRETARY, STATE DELIMINATION COMMISSION, THIRUVANANTHAPURAM. 6. STATE ELECTION COMMISSION, REPRESENTED BY THE SECRETARY, STATE ELECTION COMMISSION, THIRUVANANTHAPURAM. BY ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM FOR R6 BY ADV. SRI.MURALI PURUSHOTHAMAN,SC,DELIMITATIO FOR R5 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.N.RAVINDRAN, J.** ------------------------------- ## **W.P.(C) No.21999 of 2010** ------------------------------- ## **Dated this the 2[nd] day of September, 2010** ## **J U D G M E N T** The petitioner, a resident of Bediadka Grama Panchayat in Kasargod District has filed this writ petition challenging Ext.P7 final Delimitation Order issued by the State Delimitation Commission on 6.5.2010, in respect of Bediadka Grama Panchayat. Ext.P7 is challenged mainly on the ground that Delimiation Commission is not properly constituted. It is contended that two among the members of the Delimitation Commission, viz., Smt.Sarada Muraleedharan and Sri.K.R.Muraleedharan, are not Secretaries to Government, and therefore, the constitution of the Delimitation Commission offends Section 10 of the Kerala Panchayat Raj Act, 1994. 2. Sri.Murali Purushothaman, the learned standing counsel appearing for the State Delimitation Commission, has filed a statement dated 19.7.2010. It is stated in paragraph 4 thereof that the Delimitation Commission originally constituted by the Government as per G.O.(P) No.135/2009/LSGD dated 20.7.2009 consisted of the following persons. 1. Sri.P.Kamalkutty, State Election Commissioner, Kerala (Chairman) 2. Smt.Sarada Muraleedharan, Executive Director, Kudumbasree Mission (Member) W.P.(C) No.21999 of 2010 2 3. Sri.B.S.Mavoji, Commissioner for Entrance Examination (Member) 4. Smt.Ishita Roy, Secretary to Government, Finance (Expenditure) Department (Member) 5. Sri.M.N.Gunavardhanan, Secretary to Government, Water Resources Department (Member) It is stated that later, Sri.B.S.Mavoji and Smt.Ishita Roy were substituted by K.R.Muraleedharan, Director of Panchayats and V.R.Padmanabhan, Secretary to Government, as per G.O.(P) No.28/2010/LSGD dated 9.2.2010. It is also stated that Sri.M.N.Gunavardhanan, Secretary to Government, Water Resources Department, while being a member of the State Delimitation Commission retired from Indian Administrative Service and in his place, Sri.X.Anil, IAS, Director (CPMU), Planning and Economic Affairs Department was appointed as a member. It is also stated that Smt.Sarada Muraleedharan who belongs to the 1990 I.A.S. Batch was Secretary to Government from June 2006 onwards before she was appointed as Executive Director of Kudumbasree Mission and Sri.K.R.Muraleedharan who belongs to the 1994 I.A.S. Batch was Secretary to Government from 24.9.2009 onwards before he was appointed as Director of Panchayats. The learned Standing Counsel for the fifth respondent has also produced a Civil list of Officers of the Indian Administrative Service (Kerala Cadre) to demonstrate that W.P.(C) No.21999 of 2010 3 Smt.Sarada Muraleedharan and Sri.K.R.Muraleedharan are officers drawing salary in the scale of pay of Secretary to Government. 3. Section 10(1)(a) of the Kerala Panchayat Raj Act, 1994, which deals with the constitution of Delimitation Commission reads as follows:- **10. Division of Panchayats into constituencies** .--(1) The Government shall by notification in the Gazette, constitute a Delimitation Commission consisting of the State Election Commission as the Chairman and four Officers, not below the rank of Secretary to Government, as members. The said Delimitation Commission shall, as soon as may be after fixing the strength of a Panchayat at any level under Section 6 and after determining the number of seats to be reserved for Scheduled Castes, Scheduled Tribes and for Women, (a) divide every Panchayat into as many constituencies as there are seats and fix the boundaries of such constituencies. (Provisos omitted as they are not relevant) (emphasis supplied) Section 10(1) of the Kerala Panchayat Raj Act, 1994, stipulates that the Delimitation Commission shall consist of the State Election Commission as the Chairman and four officers, not below the rank of Secretary to Government, as members. The main contention of the petitioner which was reiterated by Sri.Kaleeswaram Raj, the learned counsel appearing for the petitioner, is that at least two out of 5 W.P.(C) No.21999 of 2010 4 members of the Delimitation Commission, viz., Smt.Sarada Muraleedharan and Sri.K.R.Muraleedharan are not officers of the rank of Secretary to Government (they are the Executive Director of Kudumbasree Mission and the Director of Panchayats respectively) and therefore, the Delimitation Commission is not properly constituted. The contention of the petitioner is that the four members of the Delimitation Commission other than the Chairman shall be Secretaries to Government. It is also contended that it is desirable that such Secretaries should also be from departments other than the Local Self Government department. 4. The State Delimitation Commission presently in office consists of the following members. Sri.P.Kamalkutty, State Election Commissioner, Kerala(Chairman); Smt.Sarada Muraleedharan, Executive Director, Kudumbasree Mission; Sri.K.R.Muraleedharan, Director of Panchayats; Sri. V.R.Padmanabhan, Secretary to Government, Scheduled Castes/Scheduled Tribes Development Department and Sri.X.Anil, IAS, Director (CPMU), Planning and Economic Affairs Department. It is evident from the statement filed by the fifth respondent that Smt.Sarada Muraleedharan and Sri.K.R.Muraleedharan are IAS officers of the rank of Secretary to W.P.(C) No.21999 of 2010 5 Government. In my opinion, the expression ' _**not below the rank of Secretary to Government**_ ' does not convey the meaning that the officers appointed by the State Government as members of the State Delimitation Commission should be holding office as Secretary to Government. All that section 10(1) states is that they shall not be below the rank of Secretary to Government. In other words, the emphasis is on the position which the officers appointed as members of the State Delimitation Commission hold. It is evident from the statement of the fifth respondent that all the four persons referred to above are IAS officers and one of them is presently holding office as Secretary to Government and two were former Secretaries to Government. 5. A similar situation arose in **Ajithkumar v. State of** **Kerala** (2004 (1) KLT 260) wherein the appointment of the Administrator in the Guruvayoor Devaswom was challenged. It was held that the word 'rank' which proceeds the words 'Deputy Collector' does not indicate that the person appointed as Administrator should be from revenue service and the only thing is that he should be in the same position of a Deputy Collector. The same is the situation in the case on hand. Apart from the fact that all the four persons referred W.P.(C) No.21999 of 2010 6 to above are members of the Indian Administrative Service and three among them also hold or have held office as Secretary to Government at some stage or other, they are all drawing salary in scale of pay of Secretary to Government. The words ' _**not below the rank of Secretary to Government**_ ' occurring in Section 10 do not mean that only Secretaries to Government can be members of the State Delimitation Commission. As held by the Division Bench in **Ajithkumar's** case (supra) all that the said words mean is that four members of the State Delimitation Commission shall be in the same position of Secretary to Government. In other words, the words ' _**not below the rank of Secretary to Government**_ ' do not exclude members of the Indian Administrative Service who have previously held office as Secretary to Government and are on assignment to excadre posts like Executive Director of Kudumbasree Mission, Director of Panchayats etc. and are drawing the salary in the scale of pay of Secretary to Government or members of the Indian Administrative Service who are holding posts other than that of Secretaries to Government, but are drawing salary in the scale of pay of Secretaries to Government. The challenge to the constitution of the State Delimitation Commission cannot therefore be sustained. W.P.(C) No.21999 of 2010 7 I accordingly hold that there is no merit in the writ petition. The writ petition fails and is dismissed. **P.N.RAVINDRAN, Judge.** ## **nj.**