Fr. Mathew Nampiaparambil S.J. v. Government of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **WEDNESDAY, THE 26TH DAY OF FEBRUARY 2014/7TH PHALGUNA, 1935** ## **WP(C).NO. 33726 OF 2006 (M)** **----------------------------------------** ## **PETITIONERS:** **---------------------** **1. FR.MATHEW NAMPIAPARAMBIL. S.J., MANAGER, ST.XAVIER'S COLLEGE, THUMBA, THIRUVANANTHAPURAM.** **2. FR.K.P. MATHEW, PRINCIPAL, ST.XAVIER'S COLLEGE, THUMBA, THIRUVANANTHAPURAM.** **BY ADVS.SRI.V.M.KURIAN, SRI.MATHEW B. KURIAN, SRI.K.T.THOMAS.** ## **RESPONDENTS:** - **-----------------------** **1. GOVERNMENT OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, THIRUVANANTHAPURAM.** **2. SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM.** **3. THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM.** **4. T.T. ALEXANDER, LECTURER, SPL.GRADE IN PHYSICS, SECRETARY, P.T.A, ST.XAVIER'S COLLEGE, THUMBA, THIRUVANANTHAPURAM, RESIDING AT THOOMPUNKAL, NO.5, KAILAS GARDENS, SREEKARYAM P.O., THIRUVANANTHAPURAM.** **5. CYRIL JOHNSON, LECTURER, (EXECUTIVECOMMITTEE MEMBER, P.T.A), SELECTION GRADE, ST.XAVIER'S COLLEGE, THUMBA, THIRUVANANTHAPURAM, RESIDING AT FELBON, KALAVARATHOPE, KAZHAKKOOTTOM P.O, THIRUVANANTHAPURAM.** **Prv.** ## **W.P.(C).NO.33726/2006-M:** **6. THAMPI. Y., LECTURER, SPL.GRADE, (EXECUTIVE COMMITTEE MEMBER, PTA), ST.XAVIER'S COLLEGE, THUMBA, THIRUVANANTHAPURAM, RESIDING AT T.C.08/1127, CHENTHI LANE, MEDICAL COLLEGE P.O., PONGUMMOODU, THIRUVANANTHAPURAM.** **R1 TO R3 BY GOVERNMENT PLEADER SRI. V.K. RAFEEQ, R4 TO R6 BY ADV. SRI.P.C.SASIDHARAN.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** **W.P.(C).NO.33726/2006-M:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** - **EXT.P.1: TRUE COPY OF THE REGISTERED BYE-LAW.** - **EXT.P.2: TRUE COPY OF THE G.O.(MS).NO.133/1990 DTD. 01/06/1990.** - **EXT.P.3: TRUE COPY OF THE G.O.(MS).NO.139/2002 DTD. 10/10/2002.** - **EXT.P.4: TRUE COPY OF THE COMPLAINT NO.773/2005 DTD. 23/03/2005.** - **EXT.P.5: TRUE COPY OF THE OBJECTION DTD. 07/05/2005 FILED BY THE PRINCIPAL.** - **EXT.P.6: TRUE COPY OF THE STATEMENT DTD. 20/06/2005 FILED BY THE DIRECTOR OF COLLEGIATE EDUCATION.** - **EXT.P.7: TRUE COPY OF THE ORDER DTD. 28/12/2005.** - **EXT.P.8: TRUE COPY OF THE OBJECTION DTD. 02/11/2006.** - **EXT.P.9: TRUE COPY OF THE OBJECTION DTD. 02/11/2006 FILED BY THE PRINCIPAL.** - **EXT.P.10: TRUE COPY OF THE MEMO OF THE COUNSEL FOR THE COMPLAINTS DTD.02/11/2006 TOGETHER WITH THE ADDITIONAL DOCUMENTS.** - **EXT.P.11: TRUE COPY OF THE OBJECTION DTD. 06/11/2006 FILED BY THE 1ST PETITIONER.** - **EXT.P.12: TRUE COPY OF THE ORDER DTD. 16/11/2006.** - **EXT.P.13: A TRUE COPY OF THE G.O.(MS).313/87/H. EDN. DTD. 28/12/1987.** ## **RESPONDENTS' EXHIBITS:** - **EXT.R4.(A): TRUE OPY OF THE COMMUNICATION RECEIVED BY 5TH RESPONDENT DTD. 20/02/07.** - **EXT.R4.(B): TRUE COPY OF THE LETTER DTD. 25/01/07.** - **EXT.R4.(C): TRUE COPY OF THE LETTER ISSUED BY THE COLLEGE AUTHORITIES.** - **EXT.R4.(D): TRUE COPY OF THE COMMUNICATION ISSUED BY THE DISTRICT REGISTRAR DTD. 05/02/07.** - **EXT.R4.(E): TRUE COPY OF THE MEMO ISSUED TO SMT. VEENA.** - **EXT.R4.(F): TRUE COPY OF THE NOTICE.** ## **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## **P.R. RAMACHANDRA MENON J.** ~~~~~~~~~~~~~~~~~~~~~~ W.P.(C) No. 33726 of 2006 ~~~~~~~~~~~~~~~~~~~~~ Dated, this the 26[th] day of February, 2014 ## **JUDGMENT** This Writ Petition was originally heard and disposed of on 04.03.2009. On filing review petition [R.P. No. 538 of 2013], pointing out that the decision rendered by a Division Bench of this this Court in **Kamalu Vs. State of Kerala [2000 (3) KLT 227]** holding that the power to deal with the complaint as in this case is exclusively vested upon the 'Upa Lok Ayukta' and not upon the 'Lok Ayukta', was not considered while passing the judgment on 04.03.2009, the review petition stands allowed vide separate order passed today and the judgment dated 04.03.2009 is recalled. Accordingly, the writ petition is taken up and considered afresh today as suggested by the learned counsel for the petitioner and as agreed by the learned Government Pleader. 2. The challenge involved in this Writ Petition is against Ext. P12 order passed by the Lok Ayukta under Section 12(1) of the Kerala Lok Ayukta Act, 1991 (hereinafter referred to as the 'Act') _W.P.(C) No. 33726 of 2013_ : 2 : whereby the Parents-Teachers' Association (hereinafter referred to as 'PTA') functioning in the College has been ordered to be reconstituted in accordance with Exts. P2 and P3 Government Orders and the Bye-laws issued by the Government of Kerala. A direction was also given with regard to the steps to prevent the respondents 2 and 3 therein (petitioners herein) from collecting any amounts from the students, their parents and guardians, over and above the fee and other amounts prescribed for the particular course of study by the Government and the University of Kerala at the time of admission or otherwise and to take stringent disciplinary and penal action against them for any illegal collection of such amounts; making it clear that the orders in this regard should be passed within 'two months' from the date of receipt of the report. Ext. P12 has been challenged on different grounds, including the question of jurisdiction, limitation and the merits as well. 3. Before proceeding with the merits of the case, it is necessary to conceive properly, as to the scope of Ext. P12 proceedings passed by the Lok Ayukta under Section 12 (1) of the Act. Section 12 (1) and 12 (2) of the Act read as follows: _W.P.(C) No. 33726 of 2013_ : 3 : 12. Reports of Lok Ayukta etc:-(1) If, after investigation of any action in respect of which a complaint involving grievance has been made, the Lok Ayukta or an Upa-Lok Ayukta is satisfied that such action has resulted in injustice or undue hardship to the complainant or to any other person, the Lok Ayukta or an Upa-Lok Ayukta shall, by a report in writing, recommend to the competent authority concerned that such injustice or hardship shall be remedied or redressed in such manner and within such time, as may be specified in the report and also intimate the complainant about its having made the report. (2) The competent authority to whom a report is sent under sub-section (1) shall within one month of the expiry of the period specified in the report, intimate or cause to be intimated, as the case may be, to the Lok Ayukta or the Upa-Lok Ayukta the action taken on the report. Sub-section (5) of Section 12 of the Act stipulates that, if the Lok Ayukta or Upa-Lok Ayukta is satisfied over the action taken or proposed to be taken on his recommendations or findings referred to in sub-sections (1) and (3), he shall close the case under intimation to the complainant, the public servant and the competent authority concerned, but where he is not so satisfied _W.P.(C) No. 33726 of 2013_ : 4 : and if he considers that the case so deserves, he may make a 'special report' upon the case to the Governor and also inform the competent authority concerned and the complainant. 5. Unlike the report contemplated under section 12(1), in the case of a report under section 12(3) involving an 'allegation' under section 2(b), much wider power and stringent consequences are contemplated as provided under sections 14 and 15 of the Act. Under Section 14(1), where, after investigation into a complaint, the Lok Ayukta or an Upa-Lok Ayukata is satisfied that the complaint involving an allegation against the public servant is substantiated and that the public servant concerned should not continue to hold the post held by him , the Lok Ayukta or the UpaLok Ayukta , as the case may be, shall make a “declaration” to that effect in his report under sub-section (3) of Section 12. Where the competent authority is the Governor, the Government of Kerala or “ ” the Chief Minister, he or it shall accept the declaration . In other cases, the competent authority concerned shall send a copy of such report to the Government, which shall accept the declaration. Sub-section (2) of Section 14 stipulates that when the declaration so made is accepted, the fact of such acceptance shall _W.P.(C) No. 33726 of 2013_ : 5 : immediately be intimated by registered post, as provided therein, to the public servant concerned, who shall, with effect from the date of intimation of such acceptance be deemed to have resigned/vacated the office/placed under suspension, as provided under sub-clauses (i) to (iii) respectively. From the above, it is evident that, in the case of a report under section '12(1)', the consequence of the report submitted by the Lok Ayukta, obviously, can only amount to a 'recommendation' as specified therein and can never be an order in any manner . Of course, there is a duty upon the competent authority to submit a report to the Lok Ayukta under sub-section(2) as to the 'action taken' and if such action taken report is not to the satisfaction of the Lok Ayukta, the Lok Ayukta can only send a 'special report' to the Governor as provided under sub-section (5) and nothing more . This is more so, since the power of the Lok Ayukta to make a “declaration” in the Report submitted under section 12(3) involving an 'allegation' under section 2(b) and the duty of the Government to accept the said declaration and Report are conspicuously absent in respect of the Report under section 12(1). 6. With regard to the scope of the 'so called orders' being _W.P.(C) No. 33726 of 2013_ : 6 : passed by the Lok Ayukta, it can never be a subject matter of dispute any further, in view of the law declared by a Division Bench of this Court in _**State of Kerala vs. Bernad**_ **(2002 (3) KLT 254** and also by a learned single Judge as per the decision in _**George vs. Saralakumari**_ **(2007(4) KLT 924)** holding that no positive orders can be issued by Lok Ayukata except to the extent as specifically provided under Section 12 of the Act. 7. The wording used under section 12(1) and 12(3) is also of substantial difference, with regard to the scope of recommendation. Section 12(1) says that Lok Ayukta or Upa-Lok Ayukta shall, by a report in writing, 'recommend' to the competent authority. Section 12(3) says that the Lok Ayukta, by report in writing, communicate his 'findings and recommendations' along with the relevant documents, materials and such other evidence to the competent authority. The significance of furnishing the findings, relevant documents, materials and other evidence to the competent authority, apart from the recommendations under section 12(3) report, (which situation is conspicuously absent in the case of a recommendation/report envisaged under section 12 (1)) is presumably in view of the serious consequences to follow; _W.P.(C) No. 33726 of 2013_ : 7 : since the Lok Ayukta is bound to incorporate a “declaration” as well (if it is satisfied that the concerned public servant should not continue to hold the post), which is binding on the Government. On the other hand, the report under section 12(1) is only recommendatory in nature and it cannot lead to any adverse circumstance except that the Lok Ayukta can submit a 'special report' to the Governor under sub section (5) of Section 12, if it is not satisfied with the action taken report submitted by the competent authority. 8. Viewed in the above background, the factual position involved in the present case shows that Ext. P12 order has been passed by the Lok Ayukta 'under Section 12(1)' alerting the competent authority to submit the 'action taken report' as provided under Section 12(2) within the prescribed time. Even though the recommendations of the Lok Ayukta have been given “directing to pass the orders”, as stated in paragraph 18 (3) of Ext.P12, it will only remain as 'recommendation' to be acted upon by the competent authority and it will be for the competent authority to submit appropriate report to the Lok Ayukta, as to the action taken on the report, as provided under section 12(2). The _W.P.(C) No. 33726 of 2013_ : 8 : apprehension expressed by the petitioner as to the serious adverse consequence likely to be followed, are rather misconceived or premature, in so far as it is for the competent authority to take appropriate action on the report submitted by the Lok Ayukta. 9. With regard to the merits involved and the grounds of attack raised by the petitioners against Ext.P12, the first contention is that the petitioners do not come within the purview of the term 'public servant', as defined under section 2(o) (iii) of the Act. However, during the course of hearing, it was submitted by the learned counsel for the petitioners that, this issue was not being pressed for the time being, in view of the decision rendered by a single Bench of this court in _**Varghese vs. M.G. University**_ **(2007(3) KLT 486)** holding that such private managements are also covered under the statute, which issue however, is stated as pending in appeal (W.A.No.1914 of 2007). 10. Referring to the stipulation under Section 8(2)(c), it is further contended by the learned counsel for the petitioners that the matter is barred by 'limitation', as the grievance projected before the Lok Ayukta by the complainants, is mainly with regard to non-adherence to the terms of Ext.P2 Government Order, which _W.P.(C) No. 33726 of 2013_ : 9 : was issued as early as on 01.06.1990. Non compliance with Ext.P2 Government Order dated 01.06.1990, if it is applicable, will give rise to a 'continuing cause of action' unlike a challenge against sustainability of the said Government Order and as such, the plea of limitation is of no consequence. The complainants have projected the alleged malpractices in connection with the collection of funds by the PTA at the instance of the Management, without any regard to Exts. P2 and P3 Government Orders. With regard to the allegation of misappropriation of funds, on the basis of the report submitted by the Superintendent of Police, ( pursuant to the orders given by the Lok Ayukta), a clear finding has been arrived at, that the allegations regarding misappropriation are untenable (paragraph No.16 of Ext.P12). However, there is a finding in the very next paragraph that the concerned respondents (petitioners herein) are collecting funds towards PTA in violation of the norms fixed by the Government of Kerala and the Director of Collegiate Education, which made the Lok Ayukta to give a recommendation to pass an order by the competent authority, to see that the concerned respondents (petitioners herein) are functioning in accordance with the Government Orders and Bye-laws issued by _W.P.(C) No. 33726 of 2013_ : 10 : the Government. These are matters to be considered by the competent authority/Government while considering the report/recommendation made by the Lok Ayukta, in accordance with the law/orders/circulars to the extent they are applicable to the petitioners and before sending the 'action taken report' under section 12 (2). 11. With regard to the contention of the petitioners that they are not bound by Ext.P12, being a 'minority institution', as certified by Ext. P13 and in view of authoritative pronouncement of the legal position by a Full Bench of this Court in _**Benedict Mar**_ _**Gregorios vs. State of Kerala**_ **[1976 K.L.T. 458 (F.B)** ], it is to be noted that, declaration of an Institution as belonging to a minority community will not give a passport to pursue any activity that it thinks fit or proper and in total ignorance of the relevant orders/circulars and other provisions of law, to the extent they are made applicable to them. If the petitioners are aggrieved by application of any such orders/circulars detrimental to their interest or if it infringes their minority rights, it is for them to challenge the same by way of appropriate proceedings, before appropriate forum and it cannot form the subject matter of the present Writ _W.P.(C) No. 33726 of 2013_ : 11 : Petition, which is more confined with the proceedings pursued by the Lok Ayukta in connection with the complaint preferred before the said authority. 12. Ext. P12 order has been passed by the Lok Ayukta relying on Ext. P2 Government Order, as amended by Ext.P3. It is contended by the petitioners that the said Government Orders/proceedings and bye-laws prescribed by the Government are not applicable to the petitioners, being a private management and that they are following their own bye-laws with regard to the constitution and functioning of PTA, as borne by Ext.P1. It is pointed out by the learned counsel for the petitioners that the PTA in the college was constituted in 1981 and Ext.P1 bye-law was formulated as early as in 1988 i.e., much prior to Ext.P2 Government Order. It is further contended by the petitioner that Ext.P2 Government Order and Ext.P3 proceedings do not give any mandate that all existing PTAs should be abandoned or dismantled and that the same has to be reconstituted in accordance with Ext.P2/P3 . 13. Prima facie, the contention of the petitioners that Exts.P2/P3 is not applicable to them being a private management _W.P.(C) No. 33726 of 2013_ : 12 : institution, does not appear to be correct, as the very same orders specifically refer to the fact that they are applicable to the Government/'Private' colleges. But the other question, whether Ext.P2/P3 warrants reconstitution of PTA in accordance with Exts.P2/P3 or whether all the PTAs, which were already in existence at the time of issuance of Exts.P2/P3 had to be wound up or to be re-constituted as a mandatory requirement, is not discernible from Exts.P2/P3. Learned counsel appearing for the contesting respondents 4 and 5 and the learned Government Pleader fairly concede that no such clause is seen incorporated in Exts.P2/P3. But reference is made in the counter affidavit filed by the Director of Collegiate Education filed before the Lok Ayukta, that Circulars have already been issued based on Exts.P2/P3 giving specific instructions to the Principals of the colleges to adhere strictly to the norms prescribed in Exts.P2 /P3 for constitution and functioning of PTA. Placing reliance on the said pleading, which is not stated as controverted by the opposite side , it is submitted by the Government Pleader that there is sufficient material to infer that, after coming into operation of Exts.P2/P3, it was mandatory on the part of the petitioner as well, to have re- _W.P.(C) No. 33726 of 2013_ : 13 : constituted the PTA and to have it functioned in the manner provided therein. 14. Incidentally, it is pointed out that Ext.P2 Government Order was issued as early as on 01.06.1990 and that the challenge raised by the petitioners against the said Government Order in the present Writ Petition (filed after 15 years ) is not sustainable on any head and that, it was for the very same reason that the interim stay already granted by this court on 28.02.2007 was vacated on 22.08.2007 . It is contended by the petitioners that the cause of action to challenge Ext, P2 Government Order arose only when Ext. P12 order was passed by the Lok Ayukta. It is contended by the petitioners in their pleadings filed before the Lok Ayukta, that the scope of Ext.P1 Bye-law of the petitioner management was considered by the General Body of the PTA in the light of Ext. P2 Government Order and since it was found that there was nothing ultravires in Ext. P1 Bye-laws, there was no need to challenge Ext.P2 Government Order. This contention does not hold any water at all. The petitioners were aware of Ext.P2 Government order and the consequence flowing therefrom. If it were actually applicable to them, it was for them to have it _W.P.(C) No. 33726 of 2013_ : 14 : challenged then and there, if aggrieved in any manner. The petitioners are not at all justified in waiting for 15 years till Ext. P12 order was passed for sustaining the challenge. As such, the challenge raised against Ext.P2 Government Order stands dismissed, as hopelessly barred by limitation. 15. However, it is brought to the notice of this Court that Ext. P12 order passed by the Kerala 'Lok Ayukta' is not maintainable, as the power to deal with the complaints of this nature, as preferred by the respondents 4 to 6, stood exclusively vested upon the 'Upa Lok Ayukta', under Section 7 (2) and not with the Lok Ayukta under Section 7 (1). The order passed by the authority without any power and jurisdiction is liable to be declared as nullity, which is the law declared by this Court in **Kamalu Vs. State of Kerala [ 2000 (3) KLT 227]** . The observation made by the Bench in paragraphs 18, 20, 31 and 32 are relevant, which read as follows : 18. Coming to the second question as to whether the Kerala Lok Ayukta had jurisdiction under S. 7(1) of the Act to entertain the complaint filed by the fourth respondent on 23rd March, 2000, making a grievance in respect of an incident of 17.2.2000, we must refer to the scheme of the provisions of _W.P.(C) No. 33726 of 2013_ : 15 : the Act. We have already indicated the scheme of the first six sections while answering the first question. S. 7 is the relevant section on the second question. It reads as under: " **7. Matters which may be investigated by the Lok Ayukta and the Upa Lok Ayuktas.** - (1) Subject to the provisions of this Act, the Lok Ayukta and one of the Upa Lok Ayuktas, as may be nominated by the Lok Ayukta for the purpose, may investigate any action is taken by or with the general or specific approval or- - (i) the Chief Minister; or - (ii) A Minister; or (iii) A Member of the State Legislature; or - (iv) A Secretary; or (v) An office bearer of a political party at the State level; or (vi) An officer referred to in sub-clause (iii) of clause (d) of S. 2. In any case where a complaint involving a grievance or an allegation is made in respect of such action and where there is difference of opinion between the Lok Ayukta and the Upa Lok Ayukta as so nominated, the action shall be investigated by the Lok Ayukta and both the Upa Lok Ayuktas together and the decision of the majority therein shall prevail. (2) Subject to the provisions of this Act, an Upa Lok Ayukta may investigate any action which is taken by, or with the general or specific approval of, any public servant not being _W.P.(C) No. 33726 of 2013_ ## : 16 : the Chief Minister, or a Minister or a Member of the State Legislature or a Secretary or an Office bearer of a political party at State levelsor an officer referred to in sub-clause (iii) of clause (d) of S. 2, in any case where a complaint involving a grievance or an allegation is made in respect of such actions or such action can be or could have been in the opinion of the Upa Lok Ayukta, the subject of a grievance or an allegation. (3) Notwithstanding anything contained in sub-ss. (1) and (2), the Lok Ayukta or an Upa Lok Ayukta may investigate any action taken by or with the general or specific approval or a public servant, if it is referred to him by the Government. (4) The Lok Ayukta may, by general or special order, assign to each of the Upa Lok Ayuktas the matter which may be investigated by them under this Act. (5) Notwithstanding anything contained in sub-ss. (1) to (4), when an Upa Lok Ayukta is unable to discharge his functions owing to absence, illness, or any other cause, his functions may be discharged by the other Upa Lok Ayukta, and in the absence of both, by the Lok Ayukta. (6) Notwithstanding anything contained in any other provisions of this Act, no investigation made by an Upa Lok Ayukta under this Act and no action taken or things done by him in respect of such investigation shall be open to question on the ground only that such investigation relates to a matter which is not assigned to him by such order. _W.P.(C) No. 33726 of 2013_ : 17 : (7) For the removal of doubts, it is hearby clarified that the term 'Lok Ayukta' wherever it is used in this Act, in relation to any of the persons referred to in sub-s. (1) sshall mean the Lok Ayukta and, as the case may be, one or both of the Upa Lok Ayuktas as provided in that sub-section.” 20. Sub-s. (2) of S. 7 dealing with the powers of the Upa Lok Ayuktas specifies that an Upa Lok Ayukta may investigate any action which is taken by, or with the general or specific approval of, any public servant not being (i) the Chief Minister or (ii) a Minister or (iii) a Member of the State Legislature or (iv) a Secretary or (v) an office bearer of a political party at State level or (vi) an officer referred to in sub-clause (iii) of clause (d) of S. 2, in any case where a complaint involving a grievance or an allegation is made in respect of such actions or such action can be or could have been in the opinion of the Upa Lok Ayukta, the subject of a grievance or an allegation. It appears to us, therefore, that the jurisdiction of Upa Lok Ayukta is in respect of any action which is taken by officers/public servants lesser in status than those mentioned specifically in sub-s. (1) of S. 7, namely, (i) the Chief Minister; or (ii) a Minister; or (iii) a Member of the State Legislature, or (iv) a Secretary; or (v) an office bearer of a political party at the State level; or (vi) an officer referred to in sub-clause (iii) of clause (d) of S. 2. As per the Scheme of provisions of S. 7 in respect of higher functionaries, starting with the Chief _W.P.(C) No. 33726 of 2013_ : 18 : Minister, the jurisdiction vests in the Kerala Lok Ayukta under S. 7(1) of the Act. In respect of actions of or by the approval of officers or any public servants excluding the above functionaries covered by sub-s. (1) of S. 7, the jurisdiction has been conferred on the Upa Lok Ayukta. It is true that under sub-s. (3) of S. 7, the Lok Ayukta or an Upa Lok Ayukta may investigate any action taken by or with the general or specific approval of a public servant, if it is referred to him by the Government. If, therefore, there is a reference by the State Government, the test for deciding the question of jurisdiction of the Lok Ayukta or Upa Lok Ayukta would differ. Under subs. (4) of S. 7 of the Lok Ayukta may, by general or special order, assign to each of the Upa Lok Ayuktas the matter which may be investigated by them. It is equally true that under sub-s. (5), if an Upa Lok Ayukta is unable to discharge his functions owing to absence, illness or any other cause, his functions may be discharged by the other Upa Lok Ayukta, and in the absence of both, by the Lok Ayukta. On a plain reading of the scheme of S. 7, it is clear to us that in respect of the complaint filed by the fourth respondent, the Kerala Lok Ayukta cannot exercise jurisdiction since the case does not satisfy the test laid down in sub-s. (1) of S. 7 of the Act. It may be that an Upa Lok Ayukta would be competent to entertain the complaint that was filed by the fourth respondent under sub-s. (2) of S. 7. It is necessary to briefly refer to some of the definitions in the Act in support _W.P.(C) No. 33726 of 2013_ : 19 : of this view. 31. In the view that we have taken, the second question must also be answered in the affirmative, namely, that the complaint filed by the fourth respondent Mr. Joseph Scaria, could not be entertained by the Kerala Lok Ayukta under sub-s. (2) of S. 7 of the Act. On the averments in the complaint of the fourth respondent the complaint would be maintainable before an Upa Lok Ayukta under sub-s. (2) of S. 7 of the Act. 32. In view of the above, the impugned order Ext. P1 dated 27.5.2000 will have to be quashed and set aside. Accordingly, the same is quashed and set aside purely on the ground that the order was without jurisdiction. We have made it clear that we have not examined the merits of the said order. It would be for the Secretary of the Kerala Lok Ayukta who will be entitled to exercise powers in accordance with S. 7(2) of the Act, and such other provisions enabling him to exercise his powers in that behalf. On the facts of the case, the fourth respondent is free to approach the concerned Upa Lok Ayukta for such interim relief as he may be entitled to in accordance with law. This order shall not be construed as expressing any opinion on the merits of the complaint of the fourth respondent or his right to obtain any interim relief on the facts of the case. That question is left open to be decided by the Upa Lok Ayukta in accordance with law. _W.P.(C) No. 33726 of 2013_ : 20 : 16. After hearing the learned counsel for the petitioners and the learned Government Pleader, this Court finds that the petitioners are entitled to succeed to the said extent. It has been categorically observed in the separate order passed today, in the review petition (R.P. No. 538 of 2013) that, in spite of ordering notice in the review petition to the respondents 4 to 6 they have not turned up and as such, no further notice is necessary to have the proceedings finalized, more so in view of the law declared by the Division Bench, in the decision cited supra. Accordingly Ext. P12 is set aside and the matter is remanded to the Lok Ayukta to cause the same to be placed for consideration before the 'Upa Lok ' Ayukta . The proceedings shall be finalized by the 'Upa Lok Ayukta' in accordance with the relevant provisions of law and the dictum laid down by the Division Bench as aforesaid, as expeditiously as possible. It is made clear that the respondents 4 to 6 and other aggrieved parties, if any, who is representing the PTA as on date, will be at liberty to pursue the matter before the 'Upa Lok Ayukta'. A notice of hearing shall be issued by the 'Upa Lok Ayukta' to the respondents 4 to 6 herein and also to the President and Secretary of the Parent Teachers' Association of the _W.P.(C) No. 33726 of 2013_ : 21 : St. Xavier's College, Thumba, Thiruvananthapuram, before finalization of the proceedings as above. The Writ Petition is disposed of accordingly. Sd/- **P. R. RAMACHANDRA MENON, (JUDGE)** kmd