Dr. Jasmine Alex Arthanakunnel Nirmalalayam v State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE THE CHIEF JUSTICE MR.ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU MONDAY, THE 12TH DAY OF MARCH 2018 / 21ST PHALGUNA, 1939 WA.No. 1774 of 2017 IN WPC. 1994/2017 AGAINST THE JUDGMENT IN WP(C) 1994/2017 of HIGH COURT OF KERALA DATED 17-08-2017 ------- ## APPELLANT(S)/PETITIONER DR.JASMINE ALEX ARTHANAKUNNEL NIRMALALAYAM, VALLICHIRA P.O, KOTTAYAM 686 574 BY ADVS.SRI.SANTHOSH MATHEW SRI.ARUN THOMAS SRI.JENNIS STEPHEN SRI.ALPHIN ANTONY SRI.VIJAY V. PAUL SMT.MARIA ROY SMT.VEENA RAVEENDRAN ## RESPONDENT(S)/RESPONDENTS: ## 1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, SOCIAL JUSTICE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001 2. THE SECRETARY TO GOVERNMENT SOCIAL JUSTICE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001 ## 3. T.B SURESH MEMBER(WAYANAD), KERALA STATE COMMISSION FOR PROTECTION OF CHILD RIGHTS,'SREEGANESH', T.C 14/2036,VANCROSS JUNCTION, THIRUVANANTHAPURAM- 695 034 WA.No. 1774 of 2017 -2- ## 4. SREELA MENON N MEMBER(KOZHIKODE), KERALA STATE COMMISSION FOR PROTECTION OF CHILD RIGHTS,'SREEGANESH', T.C 14/2036,VANCROSS JUNCTION, THIRUVANANTHAPURAM- 695 034. ## 5. SYAMALA DEVI MEMBER(KASARAGOD), KERALA STATE COMMISSION FOR PROTECTION OF CHILD RIGHTS,'SREEGANESH', T.C 14/2036,VANCROSS JUNCTION, THIRUVANANTHAPURAM- 695 034 ## 6. M.P ANTONY MEMBER(ERNAKULAM), KERALA STATE COMMISSION FOR PROTECTION OF CHILD RIGHTS,'SREEGANESH', T.C 14/2036,VANCROSS JUNCTION, THIRUVANANTHAPURAM- 695 034 ## 7. C.J ANTONY MEMBER(KOLLAM) KERALA STATE COMMISSION FOR PROTECTION OF CHILD RIGHTS,'SREEGANESH', T.C 14/2036,VANCROSS JUNCTION, THIRUVANANTHAPURAM- 695 034 8. SRI.BIJI JOSE MEMBER(IDUKKI), KERALA STATE COMMISSION FOR PROTECTION OF CHILD RIGHTS,'SREEGANESH', T.C 14/2036,VANCROSS JUNCTION, THIRUVANANTHAPURAM- 695 034 Addl.9. SELECTION COMMITTEE FOR APPOINTMENT OF MEMBERS OF THE STATE COMMISSION FOR PROTECTION OF CHILD RIGHTS GOVERNMENT OF KERALA THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY-695001. R1 & 2 BY ADV. ADVOCATE GENERAL SRI.C.P.SUDHAKARA PRASAD R1,R2 BY ADV. GOVERNMENT PLEADER R7,R 8 BY ADV. SRI.B.KRISHNA MANI R4 BY ADV. SRI.T.B.HOOD R4 BY ADV. SMT.M.ISHA R5 BY ADV. SRI.M.SASINDRAN R3 BY ADV. SRI.P.C.SASIDHARAN R6 BY ADV. SRI.KURIAN GEORGE KANNANTHANAM (SR.) R6 BY ADV. SRI.TONY GEORGE KANNANTHANAM THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 12-03-2018, A/W WA NO.1931/17 & CON. CASE, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **Antony Dominic, C.J. & Dama Seshadri Naidu, J.** --------------------------------------------------------W.A.Nos.1774, 1931 & 2257 of 2017 --------------------------------------------------------Dated this the 12[th] day of March, 2018 ## **JUDGMENT** ## **Antony Dominic, C.J.** These appeals arise from the judgment of the learned Single Judge in WPC No.1994 of 2017. 2. W.A.No.1774 of 2017 is filed by the writ petitioner whereas W.A.Nos.1931 & 2257 of 2017 are filed by respondent Nos.5 and 3 in the writ petition respectively. In the writ petition, the petitioner/appellant in W.A.No.1774 of 2017 challenged Ext.P3, a notification issued by the Government of Kerala on 10.1.2017, inviting application for appointment of members of the Kerala State Commission for Protection of Child Rights (hereinafter referred to as 'the Commission' for short) constituted under the Commission for Protection of Child Rights Act, 2005 (hereinafter called the 'Act' for short). The petitioner also sought a direction requiring the Secretary to Government, Social Justice Department to W.A.Nos.1774/2017 & con.cases - 2- proceed with the selection and appointment to the post of members of the Commission on the basis of the applications that were received in response to Ext.P1, the notification issued on 8.11.2016. By the judgment under appeal, the learned Single Judge disposed of the writ petition setting aside Ext.P3 notification and as a consequence thereof, the learned Single Judge sustained the appointment of four members of the Commission who had submitted their application in response to Ext.P1 notification and directed the State and the Secretary of the Social Justice Department to fill up the consequent two vacancies of the members of the Commission from among the applicants who responded to Ext.P1 and included in the wait list. It is this judgment which is challenged by the writ petitioner and respondents 3 and 5 in the writ petition whose appointments got invalidated as a consequence of setting aside Ext.P3 notification. 3. We heard the counsel for the appellants, the learned Advocate General appearing for the State and the Secretary to Social Justice Department and also the W.A.Nos.1774/2017 & con.cases - 3- contesting respondents. 4. The relevant facts which required to be noticed are that the Commission is constituted in terms of Section 17 of the Act. Sub Section 2 states that the State Commission shall consist of a Chair Person who is a person of eminence and has done outstanding work for promoting the welfare of children and six members, out of which atleast two shall be women, from the fields enumerated in Section 17(2)(b), to be appointed by the State Government from amongst persons of eminence, — ability, integrity, standing and experience in (i) education; (ii) child health, care, welfare or child development; (iii) juvenile justice or care of neglected or marginalized children or children with disabilities; (iv) elimination of child labour or children in distress; - (v) child psychology or sociology; and (vi) laws relating to children. Eligibility for appointment and norms of selection have been prescribed in Rule 3 and Rule 3(a) of the W.A.Nos.1774/2017 & con.cases - 4- National Commission for Protection of Child Right Rules, 2006 which in terms of Section 24 of the Act are made applicable to the State Commission also. Kerala State has also framed Kerala State Commission for Protection of Child Rights Rules 2012('State Rules' for short). Suffice it to say that Rule 3 lays down the eligibility of the candidates for appointment as Chair person and members and Rule 4 prescribes that selection procedure shall be completed on the basis of merit and interview. Sub Rule (4) also provides that the Selection Committee, the constitution of which is specified in Rule 4, shall also prepare a wait list of two persons for each of the posts which shall be valid for three months. 5. The facts show that the term of the members of the Commission was expiring on 9.1.2017 and that in order to make appointment to the post of members, the first respondent issued Ext.P1 notification on 8.11.2016 inviting applications from qualified candidates. By this notification six vacancies are notified for appointment and apart from the qualifications to be satisfied by the W.A.Nos.1774/2017 & con.cases - 5- candidates, the terms of appointment etc. are also specified. It is also made clear that the applications along with other documents should reach the Secretary to Government, Social Justice Department before 5 p.m. on 30.11.2016. 6. Subsequently on 10.1.2017, the State of Kerala issued Ext.P3 notification, again inviting applications for appointment to the six vacancies indicated in Ext.P1 and also directing that the applications shall reach the Special Secretary to the Social Justice Department before 5 p.m. on 20.1.2017. It was on the issuance of Ext.P3 that on 18.01.2017, the appellant in W.A.No.1774 of 2017 filed WPC No.1994 of 2017 which came up for admission before this Court on 19.1.2017. On 19.1.2017, this Court passed an interim order directing that further proceedings pursuant to Ext.P3 shall not be finalised. However, from the facts disclosed by the State, we find that among the candidates who had responded to Exts.P1 and P3 notifications, the eligible candidates were interviewed by the Selection Committee constituted W.A.Nos.1774/2017 & con.cases - 6- under Rule 4(1) of the State Rules on 22.2.2017 and 3.3.2017 and, according to the learned Advocate General, 54 candidates appeared for the interview which included 11 candidates who submitted their applications in pursuance to Ext.P3. 7. Based on the interview and on assessment of the relative merit of the aforesaid 54 candidates, on 3.3.2017, the select list and wait list were finalised and accordingly, party respondents in W.A.No.1774 of 2017, two of whom are the appellants in the other appeals, were appointed by Ext.R2(b) order dated 29.4.2017. Subsequently, various interim orders were passed by this Court, including an order of injunction restraining the selected candidates from functioning as members of the Commission. It would also appear from the judgment that during the course of hearing, the files were produced by the State and that after closure of hearing, I.A.No.12725 of 2017 was filed by the appellant in W.A.No.1774 of 2017 for amendment of the writ petition, incorporating additional pleadings, grounds and reliefs. By order dated W.A.Nos.1774/2017 & con.cases - 7- 17.8.2017, the learned single Judge dismissed the amendment application as belated, which is seen recorded in paragraph-19 of the judgment under appeal. 8. The writ petition was disposed of setting aside Ext.P3 notification mainly on the ground that the reasons which were assigned by the State in its affidavits to sustain the notification, are not seen recorded in the files that were produced before this Court. Further, on account of the absence of such reasons, the learned Single Judge also inferred mala fides on the part of the Secretary of Social Justice in having ordered the issuance of Ext.P3. Accordingly, the learned Single Judge invalidated the appointment of the appellants in W.A.Nos.1931 & 2257 of 2017 and on that basis directed the State to make appointments to the two vacant posts from the wait list prepared in terms of Rule 4(4) of the State Rules. In other words, the learned Single Judge sustained the selection and appointment of the remaining four members who submitted their applications in response to Ext.P1 notification. It is this judgment which W.A.Nos.1774/2017 & con.cases - 8- is under challenge before us. 9. We shall, firstly, deal with W.A. Nos.1931 and 2257 of 2017 filed by respondent Nos.5 and 3 in W.P.(C) No.1994 of 2017. 10. These two appellants submitted their applications for appointment as members of the Commission in response to Ext.P3 Notification issued on 10.01.2017. Accordingly, they appeared for the interview that was held on 22.02.2017 and 03.03.2017 and got selected and were eventually appointed as members of the Commission as per Ext.R2(b) order dated 29.04.2017. In the judgment under appeal, the learned single Judge held that Ext.P3 Notification was illegal and as a consequence thereof, also held that, the appointment of the appellants were illegal. It is the correctness of this finding of the learned single Judge which is questioned in these appeals. Thus, the validity or otherwise of the appointment of the appellants in these two appeals will depend upon our decision as to whether Ext.P3 advertisement issued by the Government was a legal one W.A.Nos.1774/2017 & con.cases - 9- or not. 11. A reading of the judgment under appeal shows that, pursuant to the directions of the learned single Judge, the relevant files were produced by the State before this Court and from the files, it was disclosed that it was on the basis of the order that was passed by the Minister for Social Welfare that Ext.P3 Notification was issued. The learned single Judge further found that there was no reason whatsoever mentioned in the files for issuing a further Notification again inviting applications in addition to Ext.P1 Notification. On the basis of such a factual finding from the files produced by the State has been recorded by the learned single Judge, an inference of mala fides was also drawn against the Minister. 12. Aggrieved by the findings against the Minister, W.A. No.1756 of 2017 was filed by the State, seeking only to expunge the adverse inferences drawn by the learned single Judge. This writ appeal was disposed of by the Division Bench of this Court by judgment dated 24.08.2017 expunging the observations. The State has W.A.Nos.1774/2017 & con.cases - 10- not challenged the factual finding recorded by the learned single Judge that the files did not contain any reasons justifying the issuance of Ext.P3 Notification. Such a contention was not even argued before us. 13. However, State has filed three affidavits before this Court. The first counter affidavit is dated 10.04.2017. In that affidavit it is stated that in response to Ext.P1 Notification, 103 applications were received and that as the number of applications received were not sufficient to complete the selection procedure, the Government issued Ext.P3 fresh Notification inviting applications. It is also stated that 51 new applications were received in response to Ext.P3 and, as such, taking into consideration the 154 applications received in response to both the Notifications, the Government proceeded further by short listing candidates, called them for interview etc. The second counter affidavit is dated 05.07.2017. In paragraphs 7 and 8 of the counter affidavit also, they have stated the very same reasons. In addition, they have also explained the marks secured by the selected W.A.Nos.1774/2017 & con.cases - 11- candidates and the appellant in W.A. No.1774 of 2017. 14. An additional counter affidavit dated 31.07.2017 was also filed on behalf of the second respondent where also the aforesaid contentions were reiterated and for convenience, we extract paragraphs 3, 4 and 5 of the affidavit which read as under: “3. It is submitted that the petitioner has raised the contention that Exhibit P3 notification was issued with ulterior motive of enabling some candidates who had not submitted their applications pursuant to Exhibit P1 to apply for the post. The contention of the petitioner is factually incorrect and legally unsustainable. It is brought to the kind notice of this Hon'ble Court that the Government received 103 applications pursuant to Exhibit P1 notification to fill up the post of six Members in the Kerala State Commission for the Protection of Child Rights. The applications received by the Government were scrutinised and the applications submitted by ineligible and unqualified applicants were excluded. It is submitted that a short list of eligible applicants was prepared. Only 40 applicants out of 103 applicants were found eligible and qualified to be considered as per the statutory rules and regulations. As per the selection procedure a list of 18 Candidates has to be prepared including wait list of 12 candidates. Moreover, sufficient candidates from all districts are also not seen included in the short list. When the competent authority found that there are only 40 candidates eligible to be considered, the respondents decided to extend the time limit fixed for submitting applications by Exhibit P3 notification dated W.A.Nos.1774/2017 & con.cases - 12- ## 12.01.2017. 4. It is submitted that pursuant to Exhibit P3 notification dated 12.01.2017, the Government received 51 fresh applications also. The aforesaid 51 applications were also scrutinised and short listed by the Government. After short listing the applications, it was found that only 11 candidates are eligible to be considered. It is submitted that altogether the Government received 154 applications (103 + 51) and 51 applicants were found eligible for interview and they were short listed by the Government. As per the orders passed by this Hon'ble Court, three more candidates were provisionally admitted for interview and thus the total number of eligible candidates became 54 (51 + 3). 5. It is submitted that the Selection Committee considered the aforesaid 54 candidates and thereafter selected six candidates out of the 54 candidates. A wait list of 12 persons was also prepared in accordance with statutory rules. It is submitted that out of the six candidates selected, four persons were selected from 103 applications received by the Government earlier, pursuant to Exhibit P1 notification. It is submitted that only two candidates were selected from 51 applications received as per Exhibit P3 extended notification.” 15. The law is trite that an order issued by the Government should survive or perish on the reasons stated therein and that the Government cannot supply reasons to sustain an order through its affidavits. This principle has been explained by the Apex Court in **Mohinder Singh Gill & Another v. Chief Election** W.A.Nos.1774/2017 & con.cases - 13- ## **Commissioner, New Delhi & Ors. [1978 (1) SCC** **405]** . Insofar as this case is concerned, even if it is assumed that Ext.P3 being a Notification need not contain reasons thereof, such reasons should have found a place in the relevant files of the Government. The factual correctness of the absence of reasons in the file of the Government is not even contested by the Government. In such a situation, the belated explanation offered by the State through the affidavits filed before this Court cannot validate Ext.P3 in any manner. If that be so, the conclusion recorded by the learned single Judge with regard to the illegality of Ext.P3 deserves to be upheld and we do so. Resultantly W.A. Nos.1931 and 2257 of 2017 are dismissed. 16. Having thus dealt with W.A.No.1931 of 2017 and W.A.No.2257 of 2017, we have to turn our attention to W.A.No.1774 of 2017 filed by the writ petitioner. In so far as this writ appeal is concerned, the contention urged is that since Ext.P3 notification has been set aside and the two appointees who gained entry into the selection W.A.Nos.1774/2017 & con.cases - 14- process through Ext.P3 notification also being unseated from office, the selection and appointment of the remaining four candidates, who responded to Ext.P1 notification and participated in the selection process along with the candidates who responded to Ext.P3 and got selected, should also be unseated and a fresh selection process should be initiated by the appointing authority confining the field of choice to the candidates who applied in response to Ext.P1. According to the counsel, in the selection process so conducted, select list and wait list have to be prepared and on that basis, fresh appointment of six members of the commission shall be made. However, this plea raised before us is disputed by the learned Advocate General and also the counsel appearing for the selected candidates. According to them, irrespective of our decision on Ext.P3, the selection and appointment of the candidates who applied in response to Ext.P1 is legal and therefore, there is no reason whatsoever, to set aside their appointment and to order a fresh selection process confining the field of W.A.Nos.1774/2017 & con.cases - 15- choice to those who applied in response to Ext.P1. 17. We have considered the submissions made. As we have already stated, in response to Ext.P1, 103 candidates applied, out of which, 40 alone were found to be eligible for consideration. In response to Ext.P3 notification, 51 candidates applied, of whom, 11 candidates alone were found eligible for consideration. In addition to the aforesaid 51 candidates, three more candidates came into the selection process through the interim orders obtained by them in the writ petitions filed before this Court. Thus, there were 54 candidates who were interviewed by the selection committee constituted in terms of Rules 4 (1) of the State Rules, on 22.2.2017 and 3.3.2017. It was on that basis, select list and wait list were prepared. Admittedly, 11 candidates gained entry into the selection process, on the basis of their applications made pursuant to Ext.P3. These 11 candidates have been rendered ineligible as a consequence of the quashing of Ext.P3 notification, which conclusion of the learned Single Judge has been upheld W.A.Nos.1774/2017 & con.cases - 16- by us. This therefore means that those 11 candidates were ineligible to be considered and the field of choice will have to be confined to the remaining 43 candidates. 18. In this background, the question that arises for consideration is whether the selection and appointment of the 4 candidates who had applied in response to Ext.P1 would get vitiated on account of the fact that, in the interview they competed along with 11 ineligible candidates who had applied in response to Ext.P3. If we accept this contention of the writ petitioner, necessarily, their selection process will have to be interfered with. According to us, it is not possible to accept the contentions of the writ petitioner. As we have already stated, the ineligibility of the 11 candidates arose only on account of the illegality of Ext.P3 notification which has been set aside by us for the sole reason that the files did not disclose any reason for issuing such a notification. This, therefore, means that the selected candidates had to compete in the selection process with a larger number of rival candidates and as a result, they had to undergo W.A.Nos.1774/2017 & con.cases - 17- more rigorous selection process. It is in such a selection process, the four candidates came out successful and eventually got appointed as members. Their selection would not be vitiated for the reason that they had to compete with a larger number of candidates in the selection process. Therefore, we cannot accept the plea of the appellant in Writ Appeal No.1774 of 2017 that as a consequence of our conclusion regarding the illegality of Ext.P3, the selection and appointment of four candidates who got selected and appointed pursuant to Ext.P1 should also be set aside. Therefore, that plea of the learned counsel for the appellant cannot be accepted. 19. Then the surviving question is whether the selection of these four persons who applied in response to Ext.P1 should be interfered with on the ground of their ineligibility or for the reason that they did not satisfy the statutory prescriptions in that regard. Insofar as this aspect of the matter is concerned, the writ petitioner had approached this Court with the plea to quash Ext.P3 and to direct the official respondents to proceed with the W.A.Nos.1774/2017 & con.cases - 18- selection process confining to the candidates who applied in response to Ext.P1 Notification. In other words, what the writ petitioner wanted was that the selection should be finalised on the basis of Ext.P1 Notification. The writ petition did not contain any pleadings or grounds as regards the ineligibility of the candidates who responded to Ext.P1 or got selected and appointed from among them. Subsequently, after the hearing of the writ petition concluded on 04.08.2017, writ petitioner applied for amendment of the pleadings by I.A.No.12725 of 2017, which was filed on 8.8.2017. It was for that reason, the learned Single Judge by order dated 17.8.2018 dismissed the I.A. as belated. 20. The affidavit filed in support of the I.A, does not contain any reason for the delay in filing the application for amendment and in the light of the averments contained in the affidavit in support of the I.A.No.12725 of 2017, the learned Single Judge was perfectly justified in dismissing the I.A. True, in this appeal, the appellant had filed I.A.No.1068 of 2017 with a prayer to allow W.A.Nos.1774/2017 & con.cases - 19- amendment of the writ petition and this Court allowed the amendment application by order dated 30.8.2017 permitting amendment of the writ petition by incorporating additional statement of facts, grounds and reliefs. However, we do find that no such amendment has been carried out in the writ petition and instead, without any order from this Court, the amendment has been incorporated in the memorandum of appeal and an amended writ appeal memorandum has been filed. That was clearly impermissible, for, not only such amendment was not allowed by this Court but also that law does not permit a litigant to incorporate pleadings, grounds or reliefs in an appeal without the same being supported by pleadings, grounds and reliefs in the writ petition. This view we have taken, is fully supported by the conclusions contained in the judgment of a Division Bench of this Court in **Baby Joseph and others v. Kerala State Electricity Board, Tvm and others [2016 (4) KHC 251],** wherein paragraph 11, it has been held thus: “11. In an appeal filed under Section 5 of W.A.Nos.1774/2017 & con.cases - 20- the Kerala High Court Act, 1958 admission of additional evidence is permissible, by invoking the provisions under Order XLI Rule 27 of the Code of Civil Procedure, 1908. However, such power can be exercised only in cases where the appellant has established grounds necessary for such exercise, as contemplated under Order XLI Rule 27 of the CPC. Therefore, the writ petition should contain the basic pleadings necessary for admission of such additional evidence and the appellant has also to satisfy the Court that, though such an issue was raised in the writ petition, notwithstanding the exercise of due diligence such documents were not within his knowledge or could not after the exercise of due diligence, be produced before the learned Single Judge at the time when the judgment appealed against was pronounced. This is for the reason that, in an intra-Court appeal filed under Section 5 of the Kerlala High Court Act, the appellant cannot be permitted to expand the scope of the writ petition by raising grounds which were neither urged nor pressed into service before the learned Single Judge. In that view of the matter, in the absence of any pleadings in the writ petition as to the technical feasibility or violation of any technical and safety standards, the appellants cannot be permitted raise such a contention for the first time in this writ appeal, placing reliance on the additional documents produced along with IA No.753/2016.” 21. As we have already stated, the learned counsel for the appellant has a contention that the notification issued does not contain the statutory prescriptions, W.A.Nos.1774/2017 & con.cases - 21- particularly with regard to the eminence required of the candidates. True, the statute contains the requirement of eminence and Ext.P1 notification does not contain such a prescription. Though such a contention has been seriously argued before us, the reply to this by the learned Advocate General is a plea of estoppel. 22. Having considered the rival submissions made, we are of the view that what is contended by the learned Advocate General is fully supported by the judgments of the Apex Court in **Union of India and others v. S.Vinodh Kumar and others (2007 (8) SCC 100), Dhananjay Malik and others v. State of Uttaranchal and others [2008 (4) SCC 171] and Ashok Kumar and another v. State of Bihar and others [2017 (4) SCC 357]** . In that view of the matter, we are not persuaded to think that this Court will be justified in accepting the plea now raised by the learned counsel for the appellant in W.A.No.1774 of 2017. Resultantly, we do not find any merit in W.A.No.1774 of 2017. In the light of our conclusions, the writ appeals W.A.Nos.1774/2017 & con.cases - 22- would stand dismissed and the judgment of the learned Single Judge is confirmed. **Sd/ANTONY DOMINIC Chief Justice** **Sd/DAMA SESHADRI NAIDU Judge** kns/- //True Copy// P.S. to Judge