Jayachandran Nair K.V. v. Chief Secretary, Government of Kerala, Kerala State Electricity Board Limited 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 ``` ``` FRIDAY, THE 22[ND] DAY OF JULY 2022 / 31ST ASHADHA, 1944 ``` ## **`WP(C) NO. 23819 OF 2022`** ## **`PETITIONER:`** ``` JAYACHANDRAN NAIR K.V. AGED 53 YEARS, S/O.KARUNAKARAN NAIR, CHIEF EDITOR, TRAVANCORE EXPRESS ONLINE CHANNEL, 24/816/3, VASANTHA BHAVAN, METTUKADA, THYCAUD (POST), THIRUVANANTHAPURAM - 695 014. ``` ``` BY ADVS. R.T.PRADEEP M.BINDUDAS K.C.HARISH ``` ## **`RESPONDENTS:`** ``` 1CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001. 2KERALA STATE ELECTRICITY BOARD LIMITED REPRESENTED BY ITS CHAIRMAN & MANAGING DIRECTOR, VYDHYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM, PIN - 695 004. 3CHAIRMAN & MANAGING DIRECTOR KERALA STATE ELECTRICITY BOARD LIMITED, VYDHYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM, PIN - 695 004. 4DR.RAJAN N.KHOBRAGADE IAS CHAIRMAN & MANAGING DIRECTOR, KERALA STATE ELECTRICITY BOARD LIMITED, VYDHYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM, PIN - 695 004. 5DR.B.ASHOK IAS, SECRETARY, AGRICULTURE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001. ``` **2** ## **W.P.(C)No.23819 of 2022** ``` 6M.G.SURESH KUMAR PRESIDENT, KERALA STATE ELECTRICITY BOARD OFFICERS ASSOCIATION, T.C.NO.25/2969, MALLOOR ROAD, VANCHIYOOR, VANCHIYOOR P.O., THIRUVANANTHAPURAM - 695 035. ``` ``` BY ADV G.KEERTHIVAS SRI.N.MANOJ KUMAR, STATE ATTORNEY SRI K.P. HARISH, SR. GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.P.(C)No.23819 of 2022** **3** ## **JUDGMENT** Dated this the 22[nd] day of July, 2022 ## **Shaji P.Chaly, J.** The petitioner has filed this public interest writ petition challenging Exhibit P3 order by which Dr.B.Ashok IAS – the 5[th] respondent, is transferred out as Chairman-cum-Managing Director of the Kerala State Electricity Board Ltd. in violation of protection of tenure of two years, on completion of one year. The Board, which is under financial ruin with an accumulated loss of Rs.14,600/- crores since 2007 onwards, had made profit during the one year tenure of the 5[th] respondent of an amount of Rs.1,422/- crores. This is achieved by the professionalism and sheer hard-work of 5[th] respondent by putting at bay the sabotage activities of 6[th] respondent and his officers organisation. The 6[th] respondent who is the uncrowned prince of an organization which has got assets worth of crores and yearly subscription of around Rs.25 lakhs and ill-gotten money of 8 to 10 crores yearly and running a co-operative society engaged in real estate **W.P.(C)No.23819 of 2022** **4** business is in fact running the Board to his whip resulting in mismanagement and corruption. The 5[th] respondent is appointed by the Government to rescue the Board and the lone person came to the helm of affairs beyond the reach of 6[th] respondent. The 6[th] respondent bribing the higher-ups in Government and facing disciplinary proceedings has succeeded in shifting the 5[th] respondent by Exhibit-P3 which is under challenge in this writ petition. It is submitted by the petitioner that he has no personal or private interest in the matter. However it is submitted that, in view of the public interest involved, he has filed the writ petition with the noble intention of protecting the disciplined function of the Kerala State Electricity Board Limited and, therefore, seeks the following reliefs: - i. To issue a writ of certiorari or any other appropriate writ, order or direction calling upon the records pertaining to Exhibit-P3 and quash the same. - ii. to issue a writ of mandamus or any other appropriate writ order or direction to 1[st] respondent to allow the 4[th] respondent to continue as Chairman cum Managing Director of 2[nd] respondent dehors ExhibitP3. **W.P.(C)No.23819 of 2022** **5** 2. In support of the prayers, the petitioner has inter alia raised the following grounds: A. The position is no longer resintegra that probono litigation is permissible with respect to the conditions of service of constitutional post. The 3[rd] respondent being a member of All India Service, in terms of Article 312 of Constitution, probono litigation is maintainable as members of All India Service occupying covetable post under the Government as they are members of service envisaged by the constitution. B. The service of 5[th] respondent brought laurels to the Board in garnering profit for the last financial year giving a ray of hope that the Board can sustain rendering service to the entire population of the State. Hence the service of the 5[th] respondent has to be sustained in the Board at least for the completion of his tenure for a period of 2 years. Hence the removal of 5[th] respondent from the service of Board before the expiry of tenure of 2 years by Exhibit-P3 is arbitrary, perverse, unreasonable and violative of Article 14 of the Constitution of India. - C. The 5[th] respondent proved himself to be capable and successful in streaming the Board from persons like the 6[th] respondent by securing the paramount interest and welfare of the Board as well as electricity consumers of **6** ## **W.P.(C)No.23819 of 2022** the State. - D. The endeavour of the 5[th] respondent to downsize the operating staff of the Board and to filter the Board from the act of mismanagement and to discipline the errant officers requires at least one more year. Hence public interest demands continuation of 5[th] respondent in the office as Chairman-cum-Managing Director of the Board. - E. Exhibit-P3 is vitiated by mala fides as the government was constrained to transfer the 5[th] respondent by succumbing to the influence exerted by 6[th] respondent. 3. We have heard Sri.R.T.Pradeep, learned counsel appearing for the petitioner and learned Senior Government Pleader Sri.K.P.Harish for the Chief Secretary, Government of Kerala and perused the pleadings and the material on record. 4. The reliefs sought for by the petitioner extracted above, would show that the petitioner is seeking a writ of certiorari to quash Exhibit P3 order dated 14.07.2022 by which the 5[th] respondent ie., Dr.B.Ashok IAS, Chairman-cumManaging Director of Kerala State Electricity Board Ltd. is transferred and posted as Secretary, Agriculture Department vice the 4[th] respondent Dr.Rajan N.Khobragade IAS. **W.P.(C)No.23819 of 2022** **7** 5. The intrinsic facts put forth by the petitioner would clearly show that it is a service matter. So the primary question arising for consideration is whether the public interest writ petition is maintainable at all. The petitioner is employed as a Lineman Grade-I in Electrical Section, Poojappura of Kerala State Electricity Board Ltd., which is a company constituted under sub-section(1) of section 5 of the Electricity (Supply) Act, 1948, which is now replaced by the Electricity Act, 2003. The KSEB Ltd. is a company formed by the Government of Kerala and it is engaged in generation, transmission, distribution and trading of electricity. Therefore, it can be seen that the petitioner is not a person aggrieved by Exhibit P3 order passed by the State Government transferring Dr.B.Ashok IAS. 6. It is a settled position in law that except a writ of quo warranto, no public interest litigation is maintainable in service matters. - (i) In **Ashok Kumar Pandey v. State of W.B** . [(2004) 3 SCC 349], it was held as follows by the Hon'ble Apex Court: **W.P.(C)No.23819 of 2022** **8** “14. The court has to be satisfied about: (a) the credentials of the applicant; (b) the prima facie correctness or nature of information given by him; and (c) the information being not vague and indefinite. The information should show gravity and seriousness involved. Court has to strike a balance between two conflicting interests: (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the court cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the executive and the legislature. The court has to act ruthlessly while dealing with imposters and busybodies or meddlesome interlopers impersonating as publicspirited holy men. They masquerade as crusaders of justice. They pretend to act in the name of pro bono publico, though they have no interest of the public or even of their own to protect. 15. Courts must do justice by promotion of good faith, and prevent law from crafty invasions. Courts must maintain the social balance by interfering where necessary for the sake of justice and refuse to interfere where it is against the social interest and public good. (See **State of Maharashtra v. Prabhu** ((1994) 2 SCC 481 = 1994 SCC (L&S) 676) and **A.P. State Financial Corpn. v. Gar Re-Rolling Mills** [(1994) 2 SCC 647 = AIR 1994 SC 2151]. No litigant has a right to unlimited draught on the court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be misused as a licence to file misconceived and frivolous petitions. [See **Buddhi Kota Subbarao (Dr)** v. **K. Parasaran** [(1996) 5 SCC 530 = 1996 SCC (Cri) 1038 = JT 1996 (7) SC 265]. Today people rush to courts to file cases in profusion under this attractive name of public interest. They must inspire confidence in courts and among the **9** ## **W.P.(C)No.23819 of 2022** public.” ## (ii) In **B.Srinivasa Reddy v. Karnataka Urban Water Supply and Drainage Board Employees Association and others** , [(2006) 11 SCC 731], it was held as follows: “49. The law is well settled. The High Court in exercise of its writ jurisdiction in a matter of this nature is required to determine, at the outset, as to whether a case has been made out for issuance of a writ of quo warranto. The jurisdiction of the High Court to issue a writ of quo warranto is a limited one which can only be issued when the appointment is contrary to the statutory rules.” ## (iii) In **Hari Bansh Lal v. Sahodar Prasad Mahto and others** , [(2010) 9 SCC 655], the Apex Court considered the very same question after conducting a repeated survey of its earlier decisions in public interest litigation _vis-a-vis_ service matters and held as follows: “16. Writ of quo warranto lies only when appointment is contrary to a statutory provision. In High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat, (three-Judge Bench) Hon'ble S.B. Sinha, J. concurring with the majority view held: "22. The High Court in exercise of its writ jurisdiction in a matter of this nature is required to determine at the outset as to whether a case has been made out for issuance of a writ of certiorari or a writ of quo warranto. The **W.P.(C)No.23819 of 2022** **10** jurisdiction of the High Court to issue a writ of quo warranto is a limited one. While issuing such a writ, the Court merely makes a public declaration but will not consider the respective impact of the candidates or other factors which may be relevant for issuance of a writ of certiorari. (See R.K. Jain v. Union of India, SCC para 74.) 23. A writ of quo warranto can only be issued when the appointment is contrary to the statutory rules. (See Mor Modern Coop. Transport Society Ltd. v. Govt. of Haryana)" (iv) In **Girjesh Shrivastava and Others v. State of Madhya Pradesh and Others** [(2010) 10 SCC 707], after taking into account the various judgments rendered by the Apex Court, ## has held as follows:- “14. However, the main argument by the appellants against entertaining WP (C) No.1520 of 2001 and WP(C)No. 63 of 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. It is common ground that dispute in this case is over selection and appointment which is a service matter. 15. In **Duryodhan Sahu (Dr.) v. Jitendra Kumar Mishra** (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 "18. … 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". Same reasoning applies here as a public interest **W.P.(C)No.23819 of 2022** **11** litigation has been filed when the entire dispute relates to selection and appointment. 16. In **B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees' Association and others** , reported in (2006) 11 SCC 731 (2), this Court held that in service matters only the nonappointees can assail the legality of the appointment procedure (See SCC p.755, para 51 of the Report). 17. This view was very strongly expressed by this Court in **Dattaraj Nathuji Thaware v. State of Maharashtra** , (2005) 1 SCC 590, by pointing out that despite the decision in _**Duryodhan Sahu**_ , 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**_ (SCC p. 596, para 16). 18. Same principles have been reiterated in **Ashok Kumar Pandey v. State of W.B.** , (2004) 3 SCC 349, at page 358 Para 16.” 7. Having considered the facts, law and the circumstances discussed above, we are of the definite opinion that the writ petitioner has not made out any case so as to interfere with Exhibit P3 order since the writ petitioner is not an aggrieved person pursuant to Exhibit P3 order passed by the State Government, transferring the 5[th] respondent - Dr.B.Ashok IAS, from the post of the Chairmancum-Managing Director of KSEB Ltd. to the post of Secretary, Agriculture Department. The discussion also shows that except a writ of quo warranto, a public interest writ petition **12** ## **W.P.(C)No.23819 of 2022** in a service matter is not maintainable under law. The subject issue raised by the petitioner is purely a service matter and the petitioner has sought for a writ of certiorari to quash Exhibit P3 order and since the petitioner is not an aggrieved person consequent to Exhibit P3 order passed by the Government, we have no hesitation at all to hold that the writ petition is not maintainable in law. Accordingly, the writ petition is dismissed as not maintainable. Pending interlocutory applications, if any, shall stand closed. Sd/- **S.Manikumar Chief Justice** Sd/- **Shaji P.Chaly Judge** ## **vpv** **13** ## **W.P.(C)No.23819 of 2022** ## **`APPENDIX OF WP(C) 23819/2022`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1 ``` ``` TRUE COPY OF PETITION DATED 4/4/2022 BEFORE THE INCOME TAX DEPARTMENT. ``` ``` Exhibit P2TRUE COPY OF ORDER DATED 23/5/2022 IN WP(C) NO.13862/2022. Exhibit P3 ``` ``` TRUE COPY OF G.O.(RT) NO.2965/2022/GAD DATED 14/7/2022 BY 1ST RESPONDENT. ``` //TRUE COPY// P.A. TO JUDGE