In the High Court of Kerala at Ernakulam v. Kerala Lok Ayuktha & Neeshma Joseph

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE V.GIRI** **WEDNESDAY, THE 22ND OCTOBER 2008 / 30TH ASWINA 1930** **WP(C).No. 9112 of 2008(I)** **-----------------------------------** ## **PETITIONER(S):** - **-----------------------** **1. THE PROGRAMME COMMITTEE CONVENOR, GOVERNMENT MODEL BOYS VHSS, KOLLAM.** **2. THE DEPUTY DIRECTOR OF EDUCATION, THIRUVANANTHAPURAM.** **3. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM.** **BY GOVERNMENT PLEADER SMT.M.R.SREELATHA** ## **RESPONDENT(S):** **------------------------** **1. KERALA LOK AYUKTHA, THIRUVANANTHAPURAM REPRESENTED BY ITS REGISTRAR.** **2. NEESHMA JOSEPH, AGED 15 YEARS, REP. BY HER FATHER SRI.M.J.JOSEPH, C-6, DEVASWOM LANE, PATTOM, THIRUVANANTHAPURAM, PIN-695 004.** ## **ADV. SRI.PIRAPPANCODE V.S.SUDHIR FOR R2** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.( C) NO.9112/2008** ## **APPENDIX** ## **PETITIONERS EXHIBITS** ## **P1:- COPY OF THE COMPLAINT NO.24/08 .** **P2:- COPY OF THE STATEMENT FILED BY THE 2ND PETITIONER.** **P3:- COPY OF THE IA. 38/08.** **P4:- COPY OF THE ORDER DT. 10.1.08.** **P5:- COPY OF THE ORDER DT. 25.1.08.** ## **P6:- COPY OF THE IA. NO.150/08.** **P7:- COPY OF THE ORDER DT. 7.3.08.** **P8:- COPY OF THE GOVT. ORDER DT. 1.1.08.** ## **RESPONDENT'S EXHIBITS** **R2(a):- COPY OF THE CERTIFICATE ISSUED TO THE 2ND RESPONDENT FROM HER SCHOOL CERTIFYING THAT SHE SECURED FIRST PLACE IN BHARATANATYAM IN THE SCHOOL LEVEL COMPETITION.** **R2(b):- COPY OF THE CERTIFICATE ISSUED TO THE 2ND RESPONDENT FROM HER SCHOOL, CERTIFYING THAT SHE SECURED FIRST PLACE IN KUCHUPPUDI IN THE SCHOOL LEVEL COMPETITION.** **R2(c):- COPY OF THE RECEIPT SHOWING THAT AN AMOUNT OF RS. 500/- WAS PAID AS APPEAL FEE.** **R2(d):- COPY OF THE NEWS REPORT IN THE MALAYALA MANORAMA DAILY DT. 30.3.08, THAT THE 2ND RESPONDENT HAD SECURED A GRADE FOR BHARATANATYAM AND KUCHUPPUDI IN THE KERALA STATE SCHOOL KALOLTSAVAM.** **R2(e):- COPY OF THE TABULATION SHEET, CONTAINING THE MARKS GIVEN BY EACH OF THE THREE JUDGES TO THE PARTICIPANTS OF BHARATANATYAM IN THE REVENUE DISTRICT SCHOOL KALOLTSAVAM.** **R2(f):- COPY OF THE RESULTS SHOWING AKHILA ASHOK AS HAVING SECURED RANK NO.1.** **R2(g):- COPY OF THE TABULATION SHEET PERTAINING TO MOHINIYATTOM, CONDUCTED IN CONNECTION WITH THE THIRUVANANTHAPURAM REVENUE DISTRICT SCHOOL KALOLTSAVAM 2008.** **R2(h):- COPY OF THE RESULTS PERTAINING TO MOHINIYATTOM, CONDUCTED IN CONNECTION WITH THE THIRUVANANTHAPURAM REVENUE DISTRICT SCHOOL KALOLTSAVAM 2008.** ## **W.P.(C) NO.9112/2008** **R2(i):- COPY OF THE NEWS ITEM PUBLISHED IN THE MALAYALA MANORAMA DAILY DT. 28.3.08 SHOWING THE PARTICIPATION OF ARATHY SUDHAKARAN IN THE STATE SCHOOL KALOLTSAVAM AND THE FACT THAT SHE HAD NOT OBTAINED ANY GRADE.** **R2(j):- COPY OF THE LETTER NO.9559/N/2005/P.V. DT. 15.10.05 OF THE GOVERNMENT ADDRESSED TO THE DIRECTOR OF PUBLIC INSTRUCTIONS INFORMING HIM OF THE SCORE LEVEL, FOR GRANTING GRADES VIZ. A,B,C,D AND E AND AGAIN THE APPENDIX CONTAINING THE DETAILS FOR THE CONDUCT OF THE KERALOLSAVAM.** _**/**_ **TRUE COPY/** ## **P.S. TO JUDGE** **tss** **==> picture [314 x 77] intentionally omitted <==** ## JUDGMENT The Director of Public Instructions, Deputy Director of Education and the Programme Committee Convenor, Government Model Boys VHSS, Kollam are the petitioners in this writ petition. They challenge the proceedings of the Lok Ayukta in complaint No.24/2008. The second respondent, a student in the Xth standard of St.Mary's Higher Secondary School, Pattom, had participated in the District Youth Festival held from 1[st] January to 4[th] January, 2008. Going by Ext.P1 complaint, the second respondent had participated in the events of Bharathanattyam and Kuchipudy. She got third prize and A Grade in Bharathanattyam and A Grade in Kuchipudy. Going by the guidelines relating to the award of marks for events which are staged in the Youth Festival inter alia determining the eligibility of participants in the Youth Festival at higher levels as mentioned in Ext.P2, only the student who comes out first in any event held in the Revenue District level is entitled to participate at the next WPC.9112 /2008 2 level. The second respondent secured A Grade in Kuchipudy and third prize and A Grade in Bharathanattyam and was therefore not eligible as per the guidelines, to participate in the next level. It is at this juncture that she filed Ext.P1 complaint before the Lok Ayukta. 2. Ext.P2 objection was filed by the Deputy Director of Education. It seems that on 9.1.2008 the Upa Lok Ayukta passed an order dismissing the complaint. But it is found from Ext.P4 that as per order in I.A.No.38/2008 the Upa Lok Ayukta proceeded to allow the application for review and permitted the complainant to take part in Bharathanttyam and Kuchipudy in the Kerala State School Kalolsavam which had taken place at Kollam from 10.1.2008 onwards. 3. Pursuant to the order passed by the Upa Lok Ayukta the second respondent was so permitted to participate in the Bharathanattyam and Kuchipudy. By Ext.P5 order dated 25.1.2008 the Upa Lok Ayukta closed the complaint observing that nothing further remains to be done in the complaint. Ext.P6 application was then filed by the second respondent pointing out that the second respondent had participated in the Kerala State WPC.9112 /2008 3 School Kalolsavam and had obtained 5[th] prize and A Grade in Bharathanattyam and A Grade in Kuchipudy. But the certificates in this regard have not been issued. By order dated 7.3.2008 the Upa Lok Ayukta passed Ext.P7 requiring the respondents in the complaint to issue certificates within one week from the date of receipt of the order. Exts.P1, P4 and P7 have been challenged in this writ petition. 4. A counter affidavit has been filed by the second respondent. I heard learned Government Pleader Smt. M.R.Sreelatha and Sri.Pirappancode V.S.Sudheer, learned counsel for the second respondent. Learned Government Pleader submits that the entire proceedings before the Lok Ayukta are without jurisdiction. It is submitted that a reading of the complaint does not reveal any mal administration on the part of any authority. Significantly no mal administration is found either in Ext.P4 order or in Ext.P7 order. As per the guidelines regulating conduct of Youth Festival only the first prize winner in the revenue district is entitled to participate in the State level. The aggrieved person is entitled to file an appeal before the appellate body constituted as per the guidelines. That was not WPC.9112 /2008 4 done by the second respondent. Learned counsel for the second respondent submits that there was mal administration and the mode of assessment of marks at the revenue District level left a lot to be desired. It was contended that at any rate, the orders passed by the Lok Aukta do not warrant any interference. Ultimately justice has been done. It is further pointed out that since pursuant to Ext.P4 the second respondent had participated in the State level, it would only be appropriate that the certificate evidencing participation be issued. 5. The proceedings before the Lok Ayukta are governed by the provisions of the Kerala Lok Ayukta Act. The lok Ayukta is a statutory body and can exercise only such powers that are vouchsafed to it by the Act. What could be investigated by the Lok Ayukta is a grievance, as the term is defined under section 2 (h) of the Act. Section 7 of the Act provides for matters which could be investigated by the Lok Ayukta and the Upa Lok Ayukta. Obviously Lok Ayukta and the Upa Lok Ayukta are high power bodies competent to investigate allegations against even against the Chief Minister. Matters which cannot be subjected to investigation are provided under section 8. Section 14 of the WPC.9112 /2008 5 Act provides for the consequences where the Lok Ayukta is satisfied that a complaint involving an allegation against the public servant is substantiated. This court has repeatedly held that the Lok Ayukta has jurisdiction to pass an order in terms of section 14 of the Act only, when it is satisfied that the complaint involving an allegation against public servant is substantiated and that mal administration has been proved. See the judgment of the Division Bench in **Kamalu vs. State of Kerala (2000(3) KLT 227 and State of Kerala vs. Bernard 2002(3) KLT 254).** Orders in the nature of mandatory directions cannot be passed by the Lok Ayuka. The principle has been followed by this court in **George vs. Salara Kumari (ILR 2001(4) Ker. 442).** Keeping in mind the principle laid down in the above mentioned decision it will have to be held the direction in Ext.P4 should not have been issued by the Upa Lok Ayukta. Ext. P1 complaint does not even make an allegation of mal administration by any official. Ext.P4 order does not reflect the satisfaction of the Upa Lok Ayukta that there has been mal administration by any public servant which requires to be redressed by the Lok Ayukta. In the circumstances, I am constrained to observe that Ext.P4 order is WPC.9112 /2008 6 without jurisdiction. Once Ext.P4 order is susceptible to an interference by this court, obviously Ext.P7 which can only be in consequence of Ext.P4 is also rendered unsustainable. 6. There is yet another factor which requires consideration. It seems that on 9.1.2008 the complaint was dismissed but on 10.1.2008, on a review filed by the complainant, Ext.P4 order was passed directing the complainant to be permitted to participate in Bharathanattyam and Kuchipudy. If at all an order could have been passed obviously it could only be of an interim nature at that stage, which means that Lok Ayukta should thereafter have considered whether such an order was either necessary or justified. That was not done. The complaint was closed, finding that no further orders are necessary, as per Ext.P5. It was then reopened and the Upa Lok Ayukta passed Ext.P7 order. In my view, these orders are unsustainable in law. For all these reasons, the writ petition is allowed. Ext.P4 and P7 are quashed. It is declared that complaint No.24/08 on the files of the Lok Ayukta cannot be maintained under the provisions of the Kerala Lok Ayukta Act 1999. V. GIRI, JUDGE **.** ## pmn/ WPC.9112 /2008 7