James Mathew and Sajimon Salim v. The State of Kerala and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR`** ``` & ``` ``` THE HONOURABLE MR. JUSTICE SHAJI P.CHALY ``` ``` MONDAY, THE 20[TH] DAY OF JUNE 2022 / 30TH JYAISHTA, 1944 ``` ## **`WP(C) NO. 11503 OF 2021`** ## **`PETITIONER:`** - `1 JAMES MATHEW AGED 60 YEARS,SON OF LATE K. POULOSE, OCCU:RETIRED ACF, KALATHIL HOUSE, KALANJOOR P.O., PATHANAMTHITTA, PIN – 689 694.` - `2 SAJIMON SALIM AGED 42 YEARS, SON OF SALIM, OCCUP: PRIVATE, KINATTINKARAYIL HOUSE, KUMILY P.O, IDUKKI, PIN – 685 509.` ``` BY ADV C.J.ANTONY LOYED ``` ## **`RESPONDENTS:`** - `1 THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695 001.` - `2 THE PRINCIPAL SECRETARY FOREST AND WILDLIFE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANATHAPURAM,PIN – 695 001.` - `3 THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS AND HEAD OF FOREST FORCES, FOREST HQ, VAZHUTHAKKADU, THIRUVANANTHAPURAM, PIN – 695 014.` - `4 THE ACCOUNTANT GENERAL (G&SSA) KERALA, THIRUVANANTHAPURAM, PIN – 695 001.` - `5 THE CHIEF ELECTION COMMISSIONER OF INDIA NIRVACHANSADAN, ASHOKA ROAD, NEW DELHI, PIN – 110 001,` - `6 THE CHIEF ELECTION COMMISSIONER KERALA, ELECTION DEPARTMENT, KERALA LEGISLATIVE COMPLEX, VIKASBHAVAN P.O. THIRUVANANTHAPURAM, PIN - 695 033.` **2** ## **W.P.(C)No.11503 of 2021** ``` 7UNION OF INDIA THROUGH, THE SECRETARY TO GOVT. OF INDIA, MINISTRY OF ENVIRONMENT FORESTS AND CLIMATE CHANGE, INDIRA PARYAVARAN BHAVAN, JORBAGH ROAD, NEW DELHI, PIN – 110 003. ``` - `8 THE JOINT SECRETARY AND CHIEF VIGILANCE OFFICER MINISTRY OF ENVIRONMENT FOREST AND CLIMATE CHANGE, INDIRA PARYAVARANBHAVAN, JORBAGH ROAD, NEW DELHI, PIN – 110 003.` - `9 P.K. KESAVAN IFS, THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS AND HEAD OF FOREST FORCES, FOREST HQ,` ``` VAZHUTHAKKADU,THIRUVANANTHAPURAM, PIN – 695 014. ``` - `10 DEVENDRA KUMAR VERMA IFS THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS AND HEAD OF FOREST FORCES (IN-CHARGE), FOREST HQ, VAZHUTHAKKADU, THIRUVANANTHAPURAM, PIN – 695 014.` ``` BY ADVS. ``` ``` SRI.T.P.SAJAN, SPECIAL GOVERNMENT PLEADER SHRI.DEEPU LAL MOHAN, SC, ELECTION COMMISSION OF INDIA SMT.B.BINITHA ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.P.(C)No.11503 of 2021** **3** ## **JUDGMENT** Dated this the 20[th] day of June, 2022 ## **Shaji P. Chaly, J.** This writ petition is filed as a public interest litigation by a retired Forest official and another, seeking the following reliefs: - “1. to issue a writ of mandamus or any other writ or direction commanding the 1[st] respondent to revoke the Government Order No.1750/2021 GAD dated 30.4.2021. 2. to issue a writ of mandamus directing the 4[th] respondent to abstain from giving payslip to Shri.Devendra Kumar Verma in his capacity as PCCF & HoFF.” 2. According to the petitioners, on 12.02.2021, the Chief Election Commissioner of India announced general elections in five States including Kerala and from the very same day, the Model Code of Conduct for the State of Kerala has come into force. The case projected by the petitioners is that the then Existing Principal Chief Conservator of Forests, the 9[th] respondent, has applied for a paid leave from 03.05.2021 to 31.05.2021 and upon such an application, the leave was **4** ## **W.P.(C)No.11503 of 2021** sanctioned. It is the case of the petitioners that there is a well defined procedure in the matter of selection of the Principal Chief Conservator of Forests and the Head of Forest Force. However, the Government has not followed the same and added to that, the 10[th] respondent was due to retire on superannuation on 31.05.2021, who suggested that he may be granted an enhanced pay scale of Rs.2,25,000/- during the period he holds the office. 3. It is also submitted that Exhibit P1 order was released on the same day and usually when a superior officer goes on leave for a short duration, his charge will be held by any one of the subordinate officers; however, quite contrary to the usual practice, the 9[th] respondent has recommended the subordinate officer to his post with an enhanced scale of pay. With the above background facts, it is contended that Exhibit P1 Government Order dated 30.04.2021, which gives the 10[th] respondent full additional charge with apex pay scale equivalent to Head of Forest Force is a colourable exercise of power. **W.P.(C)No.11503 of 2021** **5** 4. That apart, it is contended that the appointment of the Principal Chief Conservator of Forests and Head of Forest Force is always through a cabinet approval, which procedure was completely bypassed and therefore, the appointment is illegal and unjustifiable. That apart, it is contended that ten Deputy Conservators of Forests are holding full additional charge of Conservator of Forests/Chief Conservator of Forests and none of them are given the pay of the higher post. But Exhibit P1 Government Order dated 30.04.2021 contains a decision to give additional charge and pay and regularise it as a regular appointment and sanctioned an enhanced scale of pay, which is against the Service Rules and precedents followed in the Department. 5. A statement is filed by the third respondent/the Principal Chief Conservator of Forests, which is signed by the 9[th] respondent, basically contending as follows: “3. It is submitted that the petitioner had served in the Kerala Forest Department as Range Forest Officer and after being promoted as Assistant Conservator of Forests, till his retirement, he served as Divisional Forest Officer in various forest divisions. During the service period, Mr. James Mathew got involved in several activities **6** ## **W.P.(C)No.11503 of 2021** unbecoming of a Government servant and as a result of this, several disciplinary actions were initiated against him. He had to face 12 disciplinary cases during his service period, out of which in 6 cases he was punished, in two cases he was warned and in four cases he was exonerated. On a couple of occasions, Mr.James Mathew was placed under suspension as part of disciplinary proceedings. Model Code of Conduct came into effect on 12.02.2021, with the declaration of elections to the Legislative Assembly in Kerala. 4. It is submitted that as per the G.O. (Rt)No.1750/2021/GAD dated 30.04.2021, Shri. P.K. Kesavan IFS, PCCF & HoFF was sanctioned earned leave for a period of 29 days from 03.05.2021 to 31.05.2021 with permission to prefix holidays on 01.05.2021 and 02.05.2021. Shri. Devendra Kumar Verma IFS, PCCF (WL) & Chief Wildlife Warden was given full additional charge of the post of PCCF & HoFF and Shri. Devendra Kumar Verma IFS was also granted the apex scale of Rs.2,25,000/- during the period of this additional charge. Thus it is not true that Shri. Devendra Kumar Verma was appointed as PCCF &HoFF. 5. It is submitted that Shri.Devendra Kumar Verma IFS was not appointed as PCCF & HoFF and the Government order issued is not in violation of any established Rules and Procedure, as is contented in the writ petition. Nowhere in any of the Act or Rules, it is mentioned that PCCF & HoFF of Kerala Forest Department has to be appointed in consultation with Chief of the Forest Department of Kerala, Tamil Nadu and Karnataka. Moreover, in this case, as per the Government Order, Shri.Devendra Kumar Verma IFS was not appointed as PCCF &HoFF but was given full additional charge of the post of PCCF &HoFF. 6. It is submitted that in the Government Order, it is clearly mentioned that the PCCF & HoFF as per Letter No.IFSI-177/2021 dated 30.03.2021 applied for leave and suggested that Shri. Devendra Kumar Verma IFS, who is **W.P.(C)No.11503 of 2021** **7** the second senior most IFS Officer in the cadre, may be given the charge of PCCF & HoFF during the period of absence of Shri, P.K.Kesavan IFS. This issue was under the consideration of the Government from the date (30.03.2021) on which the request was sent to Government by Shri. P.K.Kesavan IFS, PCCF & HoFF. Since the Government Order sanctioning leave was not issued even when the proposed leave was to begin, a revised request was submitted on 30.04.2021. The fact is that the Government issued necessary orders only on 30.04.2021. It is not an appointment, Instead, it is the usual practice when an officer proceeds on leave, another officer will be directed to hold the charge. Similarly, in this case also Shri.Devendra Kumar Verma IFS was directed to hold the full additional charge of PCCF & HoFF during the period of absence of Shri. P.K.Kesavan IFS.” 6. It is also submitted that the allegations made in the writ petition are baseless and without any supporting materials and documents. It is further submitted that Exhibit P1 Government Order is issued to facilitate smooth conduct of business of the Department and the 9[th] respondent had to avail earned leave on personal grounds. That apart, it is submitted that the 10[th] respondent - Sri.Devendra Kumar Verma IFS is given the temporary charge of the Conservator of Forests by enhancing the pay by Rs.600/-. It is also submitted Sri.Devendra Kumar Verma was stagnating at the basic pay of Rs.2,24,400/- from 01.07.2019 and by giving him an **8** ## **W.P.(C)No.11503 of 2021** enhancement of Rs.600/-, he received the scale of pay of Rs.2,25,000/- and that too for one month. Other contentions are also raised and ultimately it is submitted that the petitioners have not made out any case for interference with Exhibit P1 order issued by the Government in public interest. 7. We have heard Sri.Antony Loyed, learned counsel for the petitioners, Sri.T.P.Sajan, learned Special Government Pleader for Forest Department, Smt.B.Binitha, learned Government Pleader for the officials of the State and Sri.Deepu Lal Mohan, learned standing counsel for the Chief Election Commissioner of Kerala and perused the pleadings and material on record. 8. Discussion of facts made above would make it clear that Exhibit P1 order issued by the State Government is in regard to the service conditions of an official of the State Government. It is well settled in law that no public interest writ petition is maintainable in a service matter except a writ of quo warranto. In order to arrive at a logical conclusion, we are inclined to refer to the following decisions of the Apex **W.P.(C)No.11503 of 2021** **9** ## Court: (i) In **Girjesh Shrivastava and others v. State of Madhya Pradesh and others** , reported in (2010) 10 SCC 707, appointments were challenged in PIL, on the grounds of contravention of rules, regarding reservation of exservicemen. The High Court allowed the writ petition and ordered cancellation of appointments, and dismissed the review petitions also. While considering the issue, as to whether the matter ought to have been taken, as service dispute and not PIL, the Hon'ble Supreme Court, after considering a catena of decisions, at paragraphs 14 to 19 has held as follows:- “14. However, the main argument by the appellants against entertaining WP (C) 1520/2001 and WP(C) 63/2002 is on the ground that a PIL in a service matter is not maintainable. This Court is of the opinion that there is considerable merit in that contention. 15. It is common ground that dispute in this case is over selection and appointment which is a service matter. 16. In the case of **Dr. Duryodhan Sahu and others vs. Jitendra Kumar Mishra and others** (1998) 7 SCC 273, a three judge Bench of this Court held a PIL is not maintainable in service matters. This Court, speaking through Srinivasan, J. explained the purpose of administrative tribunals created under Article 323-A in the backdrop of extraordinary jurisdiction of the High Courts under Articles 226 and 227. This Court held "if public interest litigations at the instance of strangers are allowed to be entertained by the (Administrative) Tribunal, the very object of speedy disposal of service matters would get defeated" (para 18). Same reasoning applies here as a Public Interest Litigation has been filed when the entire dispute relates to selection and appointment. 17. In **B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees' Association and** **W.P.(C)No.11503 of 2021** **10** **others** , reported in (2006) 11 SCC 731 (II), the Hon'ble Apex Court held that in service matters only the nonappointees can assail the legality of the appointment procedure (See para 61, page 755 of the report). 18. This view was very strongly expressed by this Court in **Dattaraj Nathuji Thaware v. State of Maharashtra and others** , reported in (2005) 1 SCC 590, by pointing out that despite the decision in _**Duryodhan Sahu**_ (supra), PILs in service matters 'continue unabated'. This Court opined that High Courts should 'throw out' such petitions in view of the decision in _**Duryodhan Sahu**_ (supra) (Para 16, page 596). 19. Same principles have been reiterated in **Ashok Kumar Pandey v. State of W.B.** , reported in (2004) 3 SCC 349, at page 358 (Para 16).” (ii) In **Soma Velandi v. Dr.Anthony Elangovan** , reported in (2010) 4 CTC 8, following **Gurpal Singh v. State of Punjab** , reported in JT 2005 (5) SC 389, a Hon'ble Division Bench held that PIL is not maintainable in service matters. (iii) In **Ayaaubkhan Noorkhan Pathan v. State of Maharashtra and others** , reported in [(2013) 4 SCC 465], at paragraphs 14 and 15, the Hon'ble Apex Court, observed as follows: “14. This Court has consistently cautioned the courts against entertaining public interest litigation filed by unscrupulous persons, as such meddlers do not hesitate to abuse the process of the court. The right of effective access to justice, which has emerged with the new social rights regime, must be used to serve basic human rights, which purport to guarantee legal rights and, therefore, a workable remedy within the framework of the judicial system must be provided. Whenever any public interest is invoked, the court must examine the case to ensure that there is in fact, genuine public interest involved. The court must maintain strict vigilance to ensure that there is no abuse of the process of court and that, “ordinarily meddlesome bystanders are not granted a Visa. Many societal pollutants create new problems of non-redressed grievances, and the court should make an earnest **W.P.(C)No.11503 of 2021** **11** endeavour to take up those cases, where the subjective purpose of the lis justifies the need for it. (Vide: **P.S.R. Sadhanantham v. Arunachalam & Anr.** , AIR 1980 SC 856; **Dalip Singh v. State of U.P. & Ors.** , (2010) 2 SCC 114; **State of Uttaranchal v. Balwant Singh Chaufal & Ors.** , (2010) 3 SCC 402; and **Amar Singh v. Union of India & Ors.** , (2011) 7 SCC 69). 15. Even as regards the filing of a Public Interest Litigation, this Court has consistently held that such a course of action is not permissible so far as service matters are concerned. (Vide: **Dr. Duryodhan Sahu & Ors. v. Jitendra Kumar Mishra & Ors.** , AIR 1999 SC 114; **Dattaraj Natthuji Thaware v. State of Maharashtra** , AIR 2005 SC 540; and **Neetu v. State of Punjab & Ors.** , AIR 2007 SC 758)” (iv) In **Vishal Ashok Thorat and Ors. v. Rajesh Shrirambapu Fate and Ors.,** reported in AIR 2019 SC 3616, the Hon'ble Supreme Court reiterated the settled proposition of law that PIL in service matters is not maintainable.” 9. Therefore, it is clear that the writ petition is not maintainable. We are also of the considered opinion that Exhibit P1 order was issued by the State Government to protect the public interest by granting the temporary charge to the 10[th] respondent by enhancing the pay of Rs.600/- to the already existing pay of the 10[th] respondent and that too, for a period of one month. Taking into account the aforesaid factual and legal aspects, we have no hesitation to hold that the petitioners **12** ## **W.P.(C)No.11503 of 2021** have not made out any case for interference exercising the power of discretion conferred under Article 226 of the Constitution of India. Needless to say, the writ petition fails. Accordingly, it is dismissed. Pending interlocutory applications, if any, shall stand closed. Sd/- **S.Manikumar Chief Justice** Sd/- **Shaji P.Chaly Judge** **vpv** **W.P.(C)No.11503 of 2021** **13** ## **`APPENDIX OF WP(C) 11503/2021`** ## `PETITIONER EXHIBITS` ``` EXHIBIT 1A TRUE COPY OF THE GO NO. 1750/2021 GAD, DATED 30/04/2021 ISSUED BY GENERAL ADMINISTRATION (AIS-C) DEPARTMENT, GOVT. OF KERALA. EXHIBIT 2A TRUE COPY OF THE LETTER DATED 15/05/2021 SENT BY THE FIRST PETITIONER TO THE ACCOUNTANT GENERAL (G&SSA) AND THE ACCOUNTANT GENERAL (A&E) INTIMATING ABOUT THE ILLEGALITY IN GO DATED 30/04/21. EXHIBIT 3A TRUE COPY OF THE LETTER DATED 16/05/2021 SUBMITTED BEFORE THE CHIEF SECRETARY GOVT. OF KERALA BY THE SECOND PETITIONER INTIMATING THE ILLEGALITY IN G.O. DATED 30/04/21. EXHIBIT 4NEWS REPORT REGARDING THE ILLEGAL APPOINTMENT PUBLISHED IN MALAYALA MANORAMA DATED 16/05/2021 & TRANSLATION IN TO ENGLISH. ``` //TRUE COPY// P.A. TO JUDGE