Dr. B.G. Sreedevi v. Kerala State Council for Science, Technology & Environment and Dr. R. Prakash Kumar

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 6TH DAY OF FEBRUARY 2018 / 17TH MAGHA, 1939** **WP(C).No. 14702 of 2017** ## **PETITIONER(S)** **DR. B.G.SREEDEVI, W/O. N.SREENIVASAN, AGED 57 YEARS, SCIENTIST G, NATIONAL TRANSPORTATION PLANNING & RESEARCH CENTER(NATPAC), K.KARAUNAKARAN TRANSPARK ULLOOR-AKKULAM ROAD, THURUVIKKAL P.O, THIRUVANANTHAPURAM 695 031, RESIDING AT TC 6/314(2), 'SREENARAYANEEYAM', ULLOOR-AKKULAM ROAD, PULLIKULAM LANE, CRA-07, THURUVIKKAL P.O, THIRUVANANTHAPURAM 695 031.** **BY ADVS. SRI.SHABU SREEDHARAN** **SRI.S.VIJAYAN SRI.V.PRINCE DEV SRI.M.RAHUL SRI.C.RAJESWARA KUMAR SRI.JINSON OUSEPH SMT.CHITRA VIJAYAN** ## **RESPONDENT(S):** ## **1. KERALA STATE COUNCIL FOR SCIENCE,** **TECHNOLOGY & ENVIRONMENT REPRESENTED BY ITS EXECUTIVE VICE PRESIDENT, SASTHRA BHAVAN, PATTOM P.O, THIRUVANANTHAPURAM 695 004.** **2. DR. R.PRAKASH KUMAR, DIRECTOR, MALABAR BOTANICAL GARDEN & INSTITUTE FOR PLANT SCIENCE (MBGIPS), CURRENTLY HOLDING ADDITIONAL CHARGE AS DIRECTOR, NATPAC, KERALA STATE COUNCIL FOR SCIENCE TECHNOLOGY & ENVIRONMENT, SASTHRA BHAVAN, PATTOM P.O, THIRUVANANTHAPURAM 695 004.** **R1 BY ADV. SRI.GEORGE ZACHARIAH ERUTHICKEL, S.C R2 BY ADV. SRI.B.S.SYAMANTHAK** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Msd.** **WP(C).No. 14702 of 2017 (K)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** |**EXHIBIT P1**|**THE TRUE COPY OF THE APPOINTMENT ORDER**| |---|---| ||**NO.ATPAC/PER/GAI/3580/95 ISSUED BY THE SENIOR**| ||**ADMINISTRATIVE OFFICER, NATPAC.**| |**EXHIBIT P2**|**THE TRUE COPY OF THE ORDER NO.190/2010/KSCSTE**| ||**DATED 15/11/2010 ISSUED BY THE 1ST RESPONDENT.**| |**EXHIBIT P3**|**THE TRUE COPY OF THE RELEVANT PAGES OF RULE**| ||**SFOR APPOINTMENT OF DIRECTORS OF R & D**| ||**INSTITUTIONS OF KCSTE DATED NIL.**| |**EXHIBIT P4**|**THE TRUE COPY OF THE ORDER NO.159/2015/KSCSTE**| ||**DATED 12/11/2015 OF THE 1ST RESPONDENT.**| |**EXHIBIT P5**|**THE TRUE COPY OF THE ORDER NO.97/2017/KSCSTE**| ||**DATED 11/4/2017 OF THE 1ST RESPONDENT.**| |**EXHIBIT P6**|**THE TRUE COPY OF THE ANNUAL ASSESSMENT REPORT**| ||**OF THE PETITIONER FOR THE PERIOD FROM 01-07-2009 TO**| ||**30-06-2010 DATED 15-07-2010.**| |**EXHIBIT P7**|**THE TRUE COPY OF THE ANNUAL ASSESSMENT REPORT**| ||**OF THE PETITIONER FOR THE PERIOD FROM 01-07-2010 TO**| ||**30-06-2011 DATED 30-06-2011.**| |**EXHIBIT P8**|**THE TRUE COPY OF THE ANNUAL ASSESSMENT REPORT**| ||**OF THE PETITIONER FOR THE PERIOD FROM 01-07-2011 TO**| ||**30-06-2012 DATED 02-07-2012.**| |**EXHIBIT P9**|**THE TRUE COPY OF THE ANNUAL ASSESSMENT REPORT**| ||**OF THE PETITIONER FOR THE PERIOD FROM 01-07-2012 TO**| ||**30-06-2013 DATED 15-07-2013.**| |**EXHIBIT P10**|**THE TRUE COPY OF THE ANNUAL ASSESSMENT REPORT**| ||**OF THE PETITIONER FOR THE PERIOD FROM 01-07-2013 TO**| ||**30-06-2014 DATED 14-07-2014.**| |**EXHIBIT P11**|**THE TRUE COPY OF THE ANNUAL ASSESSMENT REPORT**| ||**OF THE PETITIONER FOR THE PERIOD FROM 01-07-2014 TO**| ||**30-06-2016 DATED 24-07-2015.**| |**EXHIBIT P12**|**THE TRUE COPY OF THE ANNUAL ASSESSMENT REPORT**| ||**OF THE PETITIONER FOR THE PERIOD FROM 01-07-2015 TO**| ||**30-06-2016 DATED 19-07-2016.**| |**EXHIBIT P13**|**THE TRUE COPY OF THE PAGES 1 & 10 OF THE MINUTES**| ||**OF THE 43RD EXECUTIVE COMMITTEE DATED 08/12/2015.**| |**EXHIBIT P14**|**THE TRUE COPY OF THE ORDER NO.89/2015/KSCSTE**| ||**DATED 25.07.2015 ISSUED BY THE EXECUTIVE VICE PRESIDENT OF**| ||**KSCSTE.**| **WP(C).No. 14702 of 2017 (K)** ## **RESPONDENT(S)' EXHIBITS :** **EXHIBIT R1(A): TRUE COPY OF THE RULES, REGARDING QUALIFICATIONS AND EXPERIENCE REQUIRED FOR APPOINTMENT OF DIRECTORS IN KSCSTE HEADQUARTERS AND ITS R & D CENTERS, ALONG WITH COPY OF THE ORDER OF THE COUNCIL (K.S.C.S.T.E). EXHIBIT R1(B): TRUE COPY OF THE NOTIFICATION, INVITING APPLICATIONS FOR THE POST OF DIRECTOR, NATPAC, ISSUED BY THE MEMBER SECRETARY TO KSCSTE. EXHIBIT R2(A): A TRUE COPY OF THE REPORT OF TRANSFER OF CHARGE DATED 12.04.2017. //TRUE COPY// P.S.TO JUDGE** ## **Msd.** ## **P.V.ASHA, J.** ## **W.P.(C) No.14702 of 2017** ## **Dated this the 6[th] day of February, 2018** ## **JUDGMENT** The petitioner, who had been working as the Director of National Transportation Planning & Research Centre (NATPAC) under the 1[st] respondent - Kerala State Council for Science, Technology & Environment ('Council' for short), has filed this writ petition challenging Ext.P5 order, by which her services as Director of NATPAC was terminated. 2. The petitioner joined the 1[st] respondent Council as a Scientific Officer in the year 1986. She got promotion as Scientist E2 in the year 2000 and thereafter as Scientist F in the year 2005. While so as per Ext.P2 order dated 15.11.2010 she was appointed as Director of NATPAC for a period of 5 years with immediate effect. As the term of the petitioner was to be over on 14.11.2015, petitioner had submitted a representation before the Chief Minister, who is the President of the Council, requesting for extension of her appointment till her retirement. Considering her appreciable service as Director of NATPAC, the Chief Minister, the President of the 1[st] respondent considered her request and granted approval for extension of her term until her retirement. Ext.P4 order was issued on 12.11.2015, extending the term of her appointment till her retirement on 31.5.2020, subject to W.P.(C) No.14702 of 2017 **==> picture [14 x 9] intentionally omitted <==** ratification of the executive council. 3. Whileso as per Ext.P5 order dated 11.4.2017 of the 1[st] respndent-the Executive Vice President, her services were terminated. It was stated that extension of appointment given to the petitioner was subjected to further scrutiny and violations in rules/procedures mentioned therein were noted. It was further stated that as per General Rules for appointment of Directors of the R&D institutions of the 1[st] respondent, a second tenure of 5 years or extension till superannuation whichever is earlier may be given by the President, with the recommendation of Executive Committee/State Council after a performance review. It was stated that in the case of the petitioner the aforesaid condition was seen violated by issuing order before conducting any performance review as noted in the Rules and without any recommendation by the Executive Committee/State Council. It was further stated that as per judgments of the apex court, appointments can be made only in accordance with rules and therefore the 1[st] respondent after due reexamination decided to terminate service of petitioner from the post of Director with immediate effect and that on termination she will continue as Scientist G as per Rule 3(b) of the General Rules for appointment as Director of R & D institutions of KSCSTE. It was ordered that the 2[nd] respondent would W.P.(C) No.14702 of 2017 **==> picture [14 x 9] intentionally omitted <==** hold additional charge of Director of NATPAC until further orders. The writ petition was filed at that stage. 4. The petitioner has produced the Rules-Ext.P3 which governs the appointment of Directors under the 1[st] respondent namely General Rules for Appointment of Directors of R&D Institutions of KSCSTE. As per rule 1 applications for the post of Director shall be called for through nationally circulated dailies. The notification will be open for a period of 21 days. A committee, consisting of Principal Secretary, STED & Executive Vice President, KSCSTE as Chairman, Director, STED & Member Secretary, KSCSTE as Member and the Joint Secretary, STED & Controller of the Council Head Quarters as Member will screen the applications thus received. After shortlisting candidates with qualification and experience the President shall approve the serachcum-selection committee for appointment, based on the panel forwarded by the Executive Vice President. The panel shall consist of an eminent Scientist Engineer as Chairperson, Executive Vice President as member, Chairman, RC as Member and two subject experts and Secretary to Government of Kerala to be nominated by the President as member. Rule 3 relates to appointment; according to which the appointment is for 5 year tenure with an initial year of probation. On completion of tenure a 2[nd] tenure of 5 years or W.P.(C) No.14702 of 2017 **==> picture [14 x 9] intentionally omitted <==** extension till superannuation whichever is earlier may be given by the President with the recommendation of the Executive Committee/State Council after a performance review. Clause (b) of Rule 3 provides that “in order to accommodate the outgoing Director a post of Scientist will deem to be created, which will be personal to that individual against which he/she will hold the lien”. It further provides under the note that the selection committee might relax the age and experience in appropriate cases. The qualification required for appointment to the post is Masters Degree in Engineering or Technology or Ph.D in Engineering in any branch of Transportation Engineering with specialization in any branch of Transportation Engineering. Experience required is 15 years in a research/academic/R&D institution or organization, of which 10 years should be at a senior level out of which 5 years shall be in the grade of Scientist F or shall be presently holding the grade of Scientist G. It further provides that experience should relate to Transportation, planning and management, highway engineering, water/urban transportation, etc. and managerial experience of a large department or institution with discernible qualification of scientific/technical publications in indexed journals, patents. 5. The petitioner points out that Ext.P5 order of termination was W.P.(C) No.14702 of 2017 **==> picture [14 x 9] intentionally omitted <==** issued without notice and hence in violation of principles of natural justice. It is also pointed out that extension of her tenure was in accordance with rule and there was no procedural violation. Petitioner produced Ext.P13 order by which Executive Committee had in its meeting held on 8.12.2015 ratified the action of the Executive Vice President (Council) extending the term of the petitioner till her retirement. She has also produced Exts.P6 to P12 which are the performance annual assessment reports for the period from 1.7.2009 to 30.6.2016 in which she has been assessed to be an efficient officer managing the institute very well. These reports are signed by the 1[st] respondent -the Executive Vice President. 6. A Counter affidavit is filed on behalf of the 1[st] respondent on 25.5.2007. In this counter affidavit it was stated that extension was granted to the petitioner for the 2[nd] tenure of 5 years without following the provisions in the rules and seeing the erroneous procedure adopted, the 1[st] respondent found it necessary to rectify the same and therefore Ext.P5 order was issued giving additional charge of the post of Director of NATPAC to the 2[nd] respondent. It was also stated that the petitioner was allowed to continue as Scientist G in accordance with rule 3(b) of the Rules as per Ext.R1(b) order. However it was stated that fresh notification for appointment to the post was already issued W.P.(C) No.14702 of 2017 **==> picture [14 x 9] intentionally omitted <==** and the petitioner was also eligible for submitting application for the same. 7. The petitioner filed reply affidavit on 29.5.2017 stating that her extension was already ratified by the Executive Committee and Exts.P6 to P12 annual assessment reports would show that she was assessed for outstanding performance and there was no reason for terminating her appointment in this manner. 8. An additional counter affidavit was filed thereafter by the 1[st] respondent on 30.6.2017 in which it was stated that evaluation of the performance of the petitioner as directed was not made in accordance with section II, Part IX, Rule 1.7 of the Rules and Regulations of the KSCSTE, according to which reporting authority for preparing assessment reports in respect of the Directors of R&D Centre and Directors of Headquarters is the Principal Secretary and Reviewing Authority is the Executive Vice President. But in the case of the petitioner the assessment reports for the year 2009 to 2016 were written by the Executive Vice President alone which is the reviewing authority. It was also stated that the reports were not in accordance with the rules and therefore those reports do not have any validity and evaluation adopting such a procedure is null and void. Therefore it was stated that Ext.P5 order is perfectly valid. W.P.(C) No.14702 of 2017 **==> picture [14 x 9] intentionally omitted <==** 9. Even though an interim order was passed on 28.4.2017 staying all further proceedings pursuant to the order of termination Ext.P5, as the 1[st] respondent sought modification of the interim order, the said order was modified as per order dated 16.5.2017 allowing the 1[st] respondent to receive and process applications pursuant to Ext.R1(b) notification. However it was made clear that any further action would be done by the 1[st] respondent only after obtaining orders from this Court. 10. The 2[nd] respondent also filed a counter affidavit supporting Ext.P5 order and stating that petitioner had joined as Scientist G as per Ext.R2(a) order dated 12.4.2017 and that the writ petition was filed thereafter. It was also stated that Exts.P6 to P12 reports were prepared by the same authority. 11. However, the 2[nd] respondent does not have any claim for appointment as he does not have any qualification for appointment as Director of NATPAC. According to the learned counsel for the petitioner, Ext.P5 order, giving additional charge to the 2[nd] respondent, who is a Botanist, is contrary to the interest of the institution. 12. Heard the learned counsel for the petitioner as well as the learned Standing Counsel for the 1[st] respondent and the learned counsel for the 2[nd] respondent. W.P.(C) No.14702 of 2017 **==> picture [14 x 9] intentionally omitted <==** 13. The petitioner's tenure for the first 5 years as per Ext.P2 order was extended as per Ext.P4 order by the 1[st] respondent-the Executive Vice President on the basis of approval granted by the Chief Minister, President of 1[st] respondent and that extension was granted till her retirement. It was also made clear in that order that the said order was subject to ratification by the Executive Committee. On 8.12.2015 Executive Committee ratified it as evident from Ext.P13 minutes, in a meeting in which the 1[st] respondent was also present. The reason for termination stated in the order of termination is that the extension was granted in violation of the rules/procedures. This order was passed on 11.4.2017 after about 1½ years of the extension. While issuing this order, the respondents did not find it necessary to issue even a notice to the petitioner or to observe the bear minimum principles of natural justice before sending out the petitioner who had been holding the post right from 15.11.2010 onwards, in such arbitrary and unceremonious manner. Ext.P5 order does not contain any allegations against the petitioner or any irregularities in the performance of the petitioner as Director. In Ground F of the writ petition, she has stated that she was in charge of various ongoing projects of several highways which required time bound completion. It is stated that she was heading the Comprehensive Mobility Plan Study for Mass W.P.(C) No.14702 of 2017 **==> picture [14 x 9] intentionally omitted <==** Transportation System (Light Metro) for Thiruvananthapuram and Kozhikode and study for extension of National Highway from Kasaragod to Thiruvananthapuram; apart from that there were 25 consultative studies highly significant for the State of which she has been the Head as Director of NATPACK. The abrupt termination was ordered when all such projects and consultancies were actively in progress, and it would affect the institution adversely. The respondents chose to terminate her service while all those project were in progress, by giving charge to the 2[nd] respondent, who is in no way connected with Transport Engineering or NATPAC. 14. In ground D, petitioner has furnished the qualification she has acquired. She is a B.Tech holder in Civil Engineering, M.Tech holder from IIT, Chennai, Ph.D holder in Pavement Engineering from CUSAT, Kochi. She is also Post Graduate in Urban & Highway Engineering. Apart from these, she has got 32 years of service under the Council out of which 22 years is in NATPAC as Scientist. It is stated that she has done more than 100 projects in the area of Transportation Engineering and she is an expert in Water Transport, Highway Engineering and Road safety. 15. The defect noticed in the order of termination is procedural violations. Rules provided that extension of the tenure of appointment W.P.(C) No.14702 of 2017 **==> picture [20 x 9] intentionally omitted <==** can be made by the President with the recommendation of Executive Committee after a performance review. In the case of the petitioner the annual assessment reports are signed by the Executive Vice President himself. In the first counter affidavit, 1[st] respondent did not have a case that annual assessment reports were not written in accordance with the procedure. However when the 1[st] respondent filed an additional counter affidavit on 30.6.2017, it was stated that the performance appraisal report was in violation of section II, part IX, Rule 1.7 of the Rules and Regulations of the KSCSTE, according to which the Reporting Authority who is to prepare assessment report in respect of the Directors of the R&D Centres and Director of the Head Quarters, is the Member secretary and the Reviewing Authority is the Executive Vice President. In the case of the petitioner there is no remarks by the Reporting Authority but remarks are only by the Reviewing Authority, the Executive Vice President. Even then respondents do not have a case that performance of the petitioner is not proper or there is any complaint against her during her tenure as Director. 16. It is their further contention that Executive Committee's ratification was subsequent to the extension. Rules only provides that the extension should be ordered by the President with the W.P.(C) No.14702 of 2017 **==> picture [19 x 9] intentionally omitted <==** recommendation of the Executive Committee/State Council. Ext.P13 would show that Executive Committee has approved the order Ext.P4 by which extension was granted. Further contention raised at the time of hearing was that in the meeting in which the extension was ratified, the petitioner was also a party to the meeting. Even assuming that the petitioner was present in the meeting, there were altogether seven members in the said meeting. However it is the contention of the petitioner that when the decision is taken with respect to any of the members it is the usual practice that the said member would keep away from those proceedings. In the reply affidavit, the petitioner has pointed out that she kept herself away when the decision was taken regarding the extension of her tenure. 17. Learned counsel for the 1[st] respondent relied on the judgment of the apex court in _**A.Umarani vs.Registrar, Cooperative Societies and others : 2004 (7) SCC 112**_ and _**Marathwada University vs. Seshrao Balwant Rao Chavan : 1989 (3) SCC 132**_ in support of his contention that ratification if at all made subsequently cannot cure an ultra vires action. According to the learned counsel for the respondent since there was no appraisal of the performance of the petitioner in accordance with rules, the recommendation or ratification if at all given by the Executive Committee subsequently cannot validate W.P.(C) No.14702 of 2017 **==> picture [20 x 9] intentionally omitted <==** the action of the respondents. In the judgment in _**Marathwada University's**_ case ( _supra_ ), the Apex Court was considering the dismissal ordered by the Vice Chancellor who did not have the authority to appoint officers. Such power was conferred only on the executive council and not on the Vice Chancellor. It was therefore held that when statute prescribes a particular body to exercise a power it must exercise power in that manner and any ratification by the competent authority cannot validate the action in case original action was without any validity. But in this case the extension was by the competent authority. The dictum laid down in the judgment in _**Marathwada University's**_ case will not therefore apply in the present case. The President of the Council approved the extension. Moreover Ext.P3/R1(a) rules do not provide that there should be prior recommendation by the Exective Committee. Therefore when the competent authority - the State Council granted extension with the approval of the President and such an extension is ratified by the Executive Committee, the extension cannot be cancelled as held by the apex court in _**Kunda Motiram Bodalkar v. Swami Vivekanand Shikshan Sanstha, (2010) 6 SCC 712,**_ while considering the validity of appointment of a Head Master, when there was no other irregularity. In the judgment in _**Ashok Kumar Das v. University of Burdwan,**_ W.P.(C) No.14702 of 2017 **==> picture [20 x 9] intentionally omitted <==** ## _**(2010) 3 SCC 616**_ the apex court after examining the meaning of ## approval and prior approval, held as follows: _15.xxxxSimilarly, if the words used were “with the prior approval of the State Government”, the Executive Council of the University could not determine the terms and conditions of service of the nonteaching staff without first obtaining the approval of the State Government. But since the words used are “with the approval of the State Government”, the Executive Council of the University could determine the terms and conditions of service of the non-teaching staff and obtain the approval of the State Government subsequently and in case the State Government did not grant approval subsequently, any action taken on the basis of the decision of the Executive Council of the University would be invalid and not otherwise._ ## 18. Even assuming that the recommendation was necessary from Executive Committee itself, though its members are members of State Council also, there cannot be any objection in her continuance once decision was taken by the Executive Committee as per Ext.P13 minutes on 08.12.2015, as held by the apex court in _**High Court of**_ ## _**Judicature for Rajasthan v. P.P. Singh, (2003) 4 SCC 239.**_ 19. In _**Umarani's**_ case (supra), the apex court was considering the validity of the orders of regularisation of large number of emplyees of Co-perative Societies who did not have even the basic qualification required for the post and were appointed without issuing even a notification, without observing the principles of reservation and appointed beyond sanctioned strength. The reliance on that judgment by the learned counsel for the respondents is therefore misplaced. The appointment or even the extension of the petitioner who is highly W.P.(C) No.14702 of 2017 **==> picture [20 x 9] intentionally omitted <==** qualified in the field with her vast experience in the field under the respondents cannot be equated to the petitioners in those cases. 20. The action of the respondents evidenced by Ext.P5 order throwing away the petitioner and putting the 2[nd] respondent, a Botanist-the Director of another R and D Centre-Malabar Botanical Gardens and Institution of Plant Science in her place, who admittedly does not have the qualification to hold the post is nothing but malice in law. 21. In the compilation of 'service rules and other relevant rules and regulations' made available by the learned Standing Counsel, Section I deals with Rules and Regulations of the Council. In the preface to this compilation, it is stated that service rules of the Council prepared by a committee constituted for the same was approved by the Executive Committee in its meeting held on 03.10.2003 and ratified by the State Council on 12.03.2004. Rule 1 under Section I provides for the short title, according to which the rules are called as Rules of the Kerala State Council for Science, Technology and Environment (KSCTE). Clause (e) of Rule 2 defines Executive Committee as the body constituted under Rule 24 as Executive Committee of the State Council. In these Rules under Section I there are only 19 rules. However Rule 8 of these rules deals with Executive W.P.(C) No.14702 of 2017 **==> picture [20 x 9] intentionally omitted <==** Committee. As per rule 8.1 there shall be an Executive Committee for the administration and management of the affairs, finances of the State Council and the overseeing of the adminstration of all institutions under the Council and receiving grant in aid. As per Rule 8.3, the Executive Committee shall consist of Executive Vice President (Chairman)(ex-officio), Secretary, Department of Science & Technology, Government of India or his/her nominee, Secretary, Planning, Government of Kerala (ex-officio), Secretary, Finance, Government of Kerala (ex-officio), Directors of two Science & Technology Centres/Institutions under the State Council, one representative each of Industry, Environment and education nominated by the Government from among the members of the Council (exofficio). These compilation of rules do not provide for appointment of Directors. By Ext.R1(a), it is seen that the qualification for the appointment of Directors were amended as per order dated 25.11.2016, retaining all other rules relating to procedure for selection and appointment of Directors which were approved on 01.04.2005. From Ext.P4 order of extension it is seen that it is the President who considered the request of petitioner for extension and approved extension of her term till her retirement. It is the KSCSTE, which examined the matter and extended the term based on the approval by W.P.(C) No.14702 of 2017 **==> picture [20 x 9] intentionally omitted <==** the President, subject to ratification by Executive Committee. As per Ext.P3 rules, a second tenure or extension can be given by the President with the recommendation of the Executive Committee/State Council after a performance review. When it is stated that “the KSCSTE after having examined the matter in detail are pleased to extend the term of appointment xxxx” and it is stated that the “The Hon'ble Chief Minister and President of the KSCSTE considered the request and approved to extend her term of appointment xxxx” it would appear that the approval of President got recommendation by the State Council. Therefore though it is stated that it is subject to ratification by Executive Committee and the Executive Committee has already ratified it, a further ratification was unnecessary when the State Council itself has already recommended and extended it. On that reason also there is nothing illegal in the extension, even assuming that recommendation should precede extension. Ext.P4 order of extension does not suffer from any irregularity as alleged by the respondents. 22. The further contention on performance appraisal is raised referring to the service Rules. Ext.R1(a) rules issued in 2016, refers to the general rules issued in 2004 also. Whatever it may be, in Section II of the compilation of Rules, Part IX deals with 'Annual Assessment Reports of the Employees'. As per Rule 1, these rules are called 'Kerala W.P.(C) No.14702 of 2017 **==> picture [20 x 9] intentionally omitted <==** State Council for Science, Technology and Environment Rules for Annual Asessment Reports of the Employees'. Rule 1.6 provides for the forms in which the assessment reports shall be written. Rule 1.7 provides for tabular form providing for the reporting and reviewing authorities for the respective categories of reportees, which reads as follows: |ows:||| |---|---|---| |Reportee|Reporting Authority|Reviewing Authority| |Member Secretary|Executive Vice-<br>President|President| |Directors of R&D<br>Centres &Director,<br>Council Head Quarter|Member Secretary|Executive Vice-<br>President| |Principal Scientific<br>Officer/Controller of<br>Administration/Registr<br>ar|Director|Member Secretary| 23. As per Rule 1.1 of these rules, the main objective of assessment reports is to record achievements and reveal drawbacks of the employee without fear, favour or illwill and to create confidence in the employees. Assuming that rule 1.7 itself applies in the case of petitioner, there was nothing in the appraisal reports written by the 1[st] respondent, which stood in the way of a recommendation by the executive council for extension of the term of the petitioner. Even in the case of those with adverse reports, opportunity is given to represent against the same and the adverse reports which are not W.P.(C) No.14702 of 2017 **==> picture [20 x 9] intentionally omitted <==** communicated cannot be acted upon. The irregularity if any in the appraisal reports on account of the remarks by the reviewing authority alone or the absence of remarks by the reporting authority cannot be the contribution of the petitioner. If at all there was any irregularity in the performance appraisal, that cannot result in her prejudice after extension was granted. It is to be noted that the performance appraisal was written by the very same officer who issued the orders Exts.P4 as well as P5 ie. by the reviewing authority himself. That too in the absence of any material that the available appraisal was factually erroneous. The contention of the petitioner in the reply affidavit is that the consistent practice adopted under the institutions under the 1[st] respondent is that the appraisal reports are written only by the 1[st] respondent, who always acts as the reporting authority, though he is the reviewing authority as per the rules relied on by the respondents. In the present case, the irregularity in drawing the assessment report is found out as a reason for removing the petitioner from service and to replace her with an incompetent personnel, when it is the bounden duty of the Executive Committee to see that the institution is running efficiently. Therefore the order Ext.P5 can only be seen as an action taken contrary to the interest of the institution. 24. The 1[st] respondent, which is an autonomous body under the W.P.(C) No.14702 of 2017 **==> picture [20 x 9] intentionally omitted <==** control of Government, should have shown the least degree of fairness in its action. The respondents do not have a case that the petitioner is not qualified or not experienced or that any loss was caused on account of any of her actions during her tenure as Director. All the more the action of the respondents in terminating service of the petitioner, who is highly experienced and had been working under the 1[st] respondent right from 1984 in this manner without informing even the reasons they specifically found out, is arbitrary and violative of the principles of natural justice and is hence null and void. As held by the apex court in _**Barium Chemicals Ltd.**_ **v.** _**Company Law Board:AIR 1967 SC 295** ,_ when an order is seen to have been passed on grounds which no one can reasonably arrive at, it can be concluded that the authority did not honestly form its opinion with application of mind to the relevant facts. Similarly, in _**State of UP V Renusagar Power Project: AIR 1988 SC 1737** ,_ the apex court held that if the exercise of the power is manifestly arbitrary, or on non-application of mind to relevant factors the exercise of power will be regarded as manifestly erroneous and such exercise of power will stand vitiated, if it is so arbitrary or unreasonable. In _**Shrilekha Vidyarthi (Kumari) v. State of U.P.: (1991) 1 SCC 212**_ **,** the apex court while condidering the validity of orders of termination of service of Government Counsel W.P.(C) No.14702 of 2017 :20: ## held as follows _:_ _The basic requirement of Article 14 is fairness in action by the State and we find it difficult to accept that the State can be permitted to act otherwise in any field of its activity, irrespective of the nature of its functions when it has the uppermost duty to be governed by the rule of law. Non-arbitrariness, in substance, is only fair play in action. We have no doubt that this obvious requirement must be satisfied by every action of the State or its instrumentality in order to satisfy the test of validity._ ## Srilekha Vidyarthi's case is followed and reiterated in a number of subsequent cases including in _**State of Punjab v. Brijeshwar Singh Chahal, (2016) 6 SCC 1**_ **.** 25. The fact that the petitioner was accommodated as ScientistG, as per Rule 3(b) of Ext.P3/R1(b) rules, cannot validate the action of the respondents and that will not substitute the observance of principles of natural justice or fairness in action consistent with Article 14 of the Constitution of India. At any rate, the order Ext.P5 is bereft of any fairness. I therefore set aside Ext.P5 order. The petitioner shall be reposted as Director, National Transportation Planning & Research Center in tune with Ext.P4 order, without any further delay. The Writ Petition is allowed acordingly. **P.V.ASHA JUDGE** rkc/rtr