Dr. P. Sureshkumar v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE GOPINATH P.`** ``` MONDAY, THE 3[RD] DAY OF JUNE 2024 / 13TH JYAISHTA, 1946 ``` ``` WP(C) NO. 24945 OF 2016 ``` ## **`PETITIONER:`** ``` DR.P.SURESHKUMAR, AGED 49 YEARS ``` ``` DIRECTOR, INSTITUTE OF HUMAN RESOURCE DEVELOPMENT (IHRD), PRAJO'E TOWERS, VAYUTHAKADU, THIRUVANANTHAPURAM 695 014. ``` ``` BY ADVS. SRI.K.JAJU BABU (SR.) SRI.BRIJESH MOHAN SMT.M.U.VIJAYALAKSHMI ``` ## **`RESPONDENTS:`** - **`1 SHRI. VINOD KUMAR S, AGED 40 YEARS, S/O A. SREEKANTAN PILLAI, T.C 27/1024, CHEMPRA PILLA VEEDU, VANCHIYOOR P.O, THIRUVANANTHAPURAM - 695 035.`** - **`2 DR. K.M. ABRAHAM CFA, I.A.S ADDITIONAL CHIEF SECRETARY, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.`** - **`3 B. SRINAVAS I.A.S, (MEMBER, SELECTION COMMITTEE), SECRETARY, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.`** - **`4 PADMASHRI DR. E.J. JEMMIS, (CHAIRMAN, SELECTION COMMITTEE), PROFESSOR, INDIAN INSTITUTE OF SCIENCE, BANGALORE - 560 076.`** - **`5 DR. SURESH DAS, (MEMBER, SELECTION COMMITTEE), EXECUTIVE DIRECTOR, KERALA STATE COUNCIL FOR SCIENCE, TECHNOLOGY'S ENVIRONMENT, SASTHRA BHAVAN, PATTOM, THIRUVANANTHAPURAM - 695 004.`** - **`6 DR. P.B. SUNIL KUMAR, (MEMBER, SELECTION COMMITTEE), PROFESSOR, DEPARTMENT OF PHYSICS, INDIAN INSTITUTE OF TECHNOLOGY, MADRAS - 600 036.`** WP(C) NO. 24945 OF 2016 2 ``` 7STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT OF KERALA, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. ``` ``` BY ADV SRI.R.T.PRADEEP ``` ``` SMT. THUSHARA JAMES (SR. GP) ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) NO. 24945 OF 2016 3 ## JUDGMENT The petitioner has approached this Court challenging Ext.P5 order of the Kerala Lok Ayukta upon Complaint No.859/16 B and seeking a declaration that Ext.P4 complaint is not maintainable before the Lok Ayukta in the light of the provisions contained in Section 8 of the Kerala Lok Ayukta Act, 1999. 2. The petitioner was selected and appointed as the Director of the Institute of the Human Resources Development (hereinafter referred to as ‘IHRD’) by the Government of Kerala as per Ext.P1. The selection and appointment of the petitioner as per Ext.P1 was subject matter of W.P(C)No.11745 of 2016 before this Court, where the State filed Ext.P3 counter affidavit contending that the selection and appointment of the petitioner as per Ext.P1 is correct and legal. W.P(C)No.11745 of 2016, which was filed by one of the candidates was subsequently dismissed as withdrawn on 21.10.2016. A total stranger, namely the 1[st] respondent filed Ext.P4 complaint before the Lok Ayukta leading to Ext.P5 proceedings, which reads as follows:- “Heard Sri. Suhas Balachandran, Learned Counsel for the complainant. We conducted a preliminary enquiry which has convinced us regarding the existence of a case WP(C) NO. 24945 OF 2016 4 meriting investigation by us into the allegations of corruption, nepotism and bias, which, according to the complainant, taints the appointment given to the 6[th] respondent. Complainant is admitted to file. Issue notice to the respondents. Forward a copy of this complaint to the Hon'ble Minister, Department of Education, Government of Kerala, Secretariat, Thiruvananthapuram in his capacity as competent Authority for the 1[st] respondent Secretary. Post on 04-08-2016.” The learned counsel appearing for the petitioner would submit that the issue raised in the writ petition is covered in favour of the petitioner by a Division Bench judgment of this Court in Kamalu v. State of Kerala [2000 KHC 616]. The learned counsel appearing for the petitioner also submits that the petitioner has presently completed his term and is no longer the Director of the IHRD. 3. Having considered the contentions raised and having regard to the law laid down by this Court in Kamalu (supra), I am of the view that the petitioner is entitled to succeed. In Kamalu (supra), this Court held as follows:- “22. The scheme of the above definitions will make it clear that it is the Kerala Lok Ayukta who may investigate any action which is taken by or with the general or specific approval of, the six dignitaries/officers mentioned in subs.(1) of S.7. Admittedly, it is not the grievance of the fourth respondent that the conduct of the petitioners which is complained of before the Kerala Lok Ayukta satisfies the WP(C) NO. 24945 OF 2016 5 tests laid down in sub-s.(1) of S.7 of the Act so as to vest the Kerala Lok Ayukta with jurisdiction. We may in this connection refer to S.8 dealing with matters which are not subject to investigation. S.8 reads as under: "8. Matters not subject to investigation.- (1) Except as hereinafter provided the Lok Ayukta or an Upa Lok Ayukta shall not conduct any investigation under this Act, in the case of a complaint involving a grievance in respect of any action, if such action relates to any matter specified in the Second Schedule. (2) The Lok Ayukta or an Upa Lok Ayukta shall not investigate- (a) any action in respect of which a formal and public inquiry has been ordered with the prior concurrence of the Lok Ayukta or an Upa Lok Ayukta, as the case may be; (b) any action in respect of a matter which has been referred to inquiry under the Commissions of Inquiry Act, 1952 (Central Act 60 of 1952); (c) any complaint involving an allegation made after the expiry of five years from the date on which the action complained against is alleged to have taken place: Provided that a complaint referred to in clause.(c) may be entertained by the Lok Ayukta or an Upa Lok Ayukta as the case may be, after the expiry of the period referred to in the said clause, if the complainant satisfies that he had sufficient cause for not making the complaint within the period specified in that clause. (3) In the case of any complaint involving a grievance, nothing in this Act shall be construed as empowering the Lok Ayukta or an Upa Lok Ayukta to question any administrative action involving the exercise of a discretion, except where he is satisfied that the elements involved in the exercise of the discretion are absent to WP(C) NO. 24945 OF 2016 6 such an extent that the discretion are absent to such an extent that the discretion can prima facie be regarded as having been improperly exercised. The Second Schedule referred to in S.8(1) reads as under: SECOND SCHEDULE (See S.8(1)) - (a) Action taken for the purpose of investigating crime relating to the security of the State. - (b) Action taken in the exercise of powers in relation to determining whether a matter shall go to a court or not. (c) Administrative action taken in matters, which arise out of the terms of a contract governing purely commercial relations of the administration with customers or suppliers except where the complainant alleges harassment or gross delay in meeting contractual obligation. (d) Action taken in respect of appointment, removal, pay, discipline, superannuation or other matters relating to conditions of service of public servants, but not including actions relating to claims for pension, gratuity, provident fund or to any claims which arises on retirement, removal or termination of service. (e) Grant of honours and awards". Item (d) in the above Second Schedule deals with the action taken in respect of appointment, removal, pay, discipline, superannuation or other matters relating to conditions of service of public servants which is outside the purview of the powers of the Lok Ayukta or an Upa Lok Ayukta in view of the specific bar contained in sub-s. (1) of S.8. What is permitted to be investigated is only the actions relating to claims for pension, gratuity, provident fund or to any claims which arise on retirement, removal or termination of service, which is not the case before us.” WP(C) NO. 24945 OF 2016 7 It is thus clear that matters relating to appointment are outside the purview of investigation by the Lok Ayukta. On this short ground, the petitioner is entitled to relief. The writ petition will therefore stand allowed. It is declared that Ext.P4 complaint is not maintainable before the Lok Ayukata in terms of the provisions contained in Section 8 of the Lok Ayukta Act, 1999. As a consequence of the aforesaid declaration, Ext.P5 proceedings of the Lok Ayukta will stand quashed. Sd/GOPINATH P. JUDGE DK WP(C) NO. 24945 OF 2016 8 ## **`APPENDIX OF WP(C) 24945/2016`** ## **`PETITIONER EXHIBITS`** ``` EXHIBIT P1 ``` ``` EXHIBIT P2 ``` ``` EXHIBIT P3 ``` ``` COPY OF ORDER G.O (MS) NO 61/2016/H. EDN DATED 29-02-2016 ``` ``` COPY OF THE WP(C) NO 11745/2016 EXCLUDING THE EXHIBITS) FILED BEFORE THIS HON'BLE COURT. ``` ``` COPY OF COUNTER AFFIDAVIT (EXCLUDING THE EXHIBITS) IN WP(C) NO 11745/2016 FILED BY THE DEPUTY SECRETARY, HIGHER SECONDARY DEPARTMENT FILED BEFORE THIS HONOURABLE COURT. ``` ``` EXHIBIT P4COPY OF THE COMPLAINT NO.859 OF 2016 (EXCLUDING THE EXHIBITS) SUBMITTED ON 06-06-2016 BY THE 1ST RESPONDENT BEFORE THEHON'BLELOKAYUKTA, THIRUVANANTHAPURAM. EXHIBIT P5COPY OF ORDER DATED 28-06-2016 IN COMPLAINT NO.859/2016 ALONG WITH NOTICE DATED 11-07-2016 ISSUED BY THE HONOURABLEKERALALOKAYUKTA, THIRUVANANTHAPURAM. ```