Joseph Rajan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **TUESDAY, THE 5TH DAY OF MARCH 2013/14TH PHALGUNA 1934** ## **WP(C).No. 17949 of 2012 (P)** **---------------------------** **PETITIONER(S):** **--------------------------** **JOSEPH RAJAN. F, AGED 56 YEARS, S/O.A .FRANCIS, SECRETARY, ADVISORY BOARD (KAAPA), KERALA ANTISOCIAL ACTIVITIES PREVENTION ACT , ELAMAKKARA, PADAM ROAD, KOCHI -682 026 RESIDING AT KANNETTIL, T.C 3/321-1, GREEN VALLEY MUTTADA P.O., THIRUVANANTHAPURAM-695 025** ## **BY ADV. SRI.P.NANDAKUMAR** **RESPONDENT(S):** **----------------------------** **STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, HOME (SSA) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM -695 001** ## **BY GOVERNMENT PLEADER SRI.MANILAL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C)NO.17949/2012** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** **EXT.P1:TRUE COPY OF THE KERALA ANTI-SOCIAL ACTIVITIES (PREVENTION) ADVISORY BOARD (CONDITIONS OF SERVICE OF CHAIRMAN MEMBERS AND STAFF ) RULES 2010 PUBLISHED ON 17/1/2011** **EXT.P2:TRUE COPY OF THE ORDER DTD 30/4/2010 ISSUED BY THE RESPONDENT ON 30/4/2011 EXT.P3:TRUE COPY OF THE ORDER DTD 24/2/2011 ISSUED BY THE RESPONDENTS** **EXT.P4:TRUE COPY OF THE AGREEMENT DTD 01/04/2011 ENTERED INTO BETWEEN THE APPLICANT AND THE RESPONDENT.** - **EXT.P5:TRUE COPY OF THE CIRCULAR DTD 19/7/2010** **EXT.P6:TRUE COPY OF THE AMENDMENT DTD 13/7/2012 PUBLISHED IN THE EXTRA ORDINARY GAZETTE ON 16/7/2012** **EXT.P7:TRUE COPY OF THE NOTICE DATED 16/11/2012 ISSUED BY THE RESPONDENT.** ## **RESPONDENTS' EXHIBITS : NIL** ## **/TRUE COPY/** ## **P.A.TO.JUDGE** **sts** ## A.M.SHAFFIQUE, J. ---------------------------------W.P(C) No.17949 OF 2012 ---------------------------------Dated this the 5[th] day of February, 2013 ## JUDGMENT The petitioner is working as Secretary to the Advisory Board of the Kerala Antisocial Activities Prevention Act, 2007 (hereinafter referred to as KAAPA). Ext.P1 is the rules framed by the Government in respect of appointment to various categories of posts. The petitioner while working as the Deputy Secretary to Government, Department of Home, was given additional charge of the Secretary in terms of Ext.P2. Petitioner reached the age of superannuation on 31.3.2011. As per Ext.P1 rules, the manner in which appointment is made to the post of Secretary is by way of deputation from the post of Deputy Secretary or Deputy Registrar from Government Secretariat/High Court/ Accountant General's Office or by way of contract appointment for a period of three years, from persons who retired from the aforesaid posts. 2. The petitioner was qualified to be appointed as he retired from the post of Deputy Secretary from Government Secretariat. He was given a contract appointment for a period of three years with effect from 3.3.2011. Ext.P3 is the said appointment order. W.P(C) No.17949 OF 2012 2 Clauses (a), (b) and (c) to Ext.P3 namely the conditions by which he is appointed on contract basis for 3 years from 1.4.2011 reads as under: - “a) Since the appointment will be on contract basis, he shall execute an agreement in the form prescribed in Appendix I Part I KSR. His pay and allowances on contract appointment shall be fixed as per Rule 100 Part III KSR as in the case of reemployed pensioners. - b) During the period of contract appointment,he shall be governed by the Leave Rules in Appendix VIII, KSR. - c) The appointment will be initially for three years.” The agreement executed by the petitioner with the Government is produced as Ext.P4. The service of the petitioner could be terminated in terms of clause 3 of the said agreement which reads as under. 3. The service of the party of the first part may be terminated as follows:- (1) At the end of the three years. (2) By the Government without previous notice if the Government are satisfied on medical evidence that the party of the first part is unfit and is likely for a considerable period to continue unfit by reason of ill health for the discharge of his duties in India. PROVIDED always that the decision of the Government that the party is likely to be unfit shall be conclusively binding on the party of the first part. (4) By the Government or their officers having proper authority without any previous notice if the W.P(C) No.17949 OF 2012 3 party of the first part shall be guilty of any insubordination, intemperance or other misconduct or of any breach of non-performance of any of the provisions of these presents or of any rules pertaining to the public service to which he may belong. (5) By six calendar months' notice in writing given at any time during service under this Agreement (except the first year thereof) either by him to the Government or their authorized officer to him without cause assigned.” 3. In the meantime, Government had amended the rules as per notification dated 13.7.2012. Petitioner is aggrieved by a note to the said amendment which inter alia indicates that a person in contract employment will not be eligible for further appointment and if a person who is deputed to the said post is appointed, the service of the person in contract employment could be terminated by the Government. The petitioner challenges the note with reference to the above rule. The note in ## vernacular reads as under: ക�റ�പ�- കര�ര ക�ല�വധ�ക�ശ�ഷ� പ�നര ന�യമനത�ന� അര�ത ഉണ��യ�ര�ക�നതല �തത�� കര�ര ക�ല�വധ�ക�ള�ല ഈ തസത�കയ�ശലക� ഡ&പ'(ശ)ഷന വ'വസയ�ല ഉശ,'�ഗസഡര ന�യമ�ക�ന മ�റയശക� കര�ര അ��സ�നത�ല ന�യമ�ച�)0ള ഉശ,'�ഗസഡ1 ശ2വന� 2രക�ര�ന� ത3പത�കരമല എന� ക�ണ�ന അവ2രത�ശല� കര�ര അ��സ�നത�ല ന�യമ�ച ഉശ,'�ഗസഡന പ�ര�ച0വ���ന 2രക�ര�ന� അധ�ക�ര� ഉണ��യ�ര�ക�നത�ണ�. W.P(C) No.17949 OF 2012 4 4. Subsequently the petitioner was served with a notice dated 16.11.2012 calling upon him to give an explanation within fifteen days, and intimating him that in terms of the amended rules governing the issue, Government has decided to appoint a person on deputation and therefore, he is asked to show cause why his service should not be terminated. 5. The petitioner challenges the above action of the Government specifically on two grounds. One is that, the 'Note' to the amendment is unconstitutional and in violation of Article 14 of the Constitution of India and therefore, liable to be declared void. Secondly, since the petitioner's appointment is for a tenure of three years it cannot be disturbed and he can be removed from service only on the basis of the contractual terms as evident from Ext.P4. 6. The learned counsel for the petitioner also relied upon the judgment of the Supreme Court in **P.Venugopal v. Union of India [(2008)5 SCC 1]** in order to contend for the position that a one man legislation amounts to discrimination and therefore invalid. Reference is also made to the judgment of the Supreme Court in **H.L.Trehan and others v. Union of India and others** W.P(C) No.17949 OF 2012 5 **(AIR 1989 SC 568)** for the proposition that giving a post decisional hearing will not amount to compliance of natural justice. It is argued that when the Government have already taken a decision to appoint a person on deputation to the said post of Secretary, there is no point in issuing notice calling upon the petitioner to show cause why his service should not be terminated, since the Government had already taken a decision in that regard. 7. Counter affidavit is filed by the respondent inter alia contending that in so far as the petitioner's appointment is on contract basis, Government has the power to amend the rules and when the amendment has come into effect, the petitioner will be bound by the amended rules. Merely for the reason that he was appointed for a period of three years on the basis of a contract, does not mean that he is entitled to continue in service for the entire period and it is open for the Government to frame rules governing the said appointment as well and the petitioner will be bound by the said rules. In so far as the contention regarding one man legislation is concerned, it is contended by the respondent that the amendment differentiates between two W.P(C) No.17949 OF 2012 6 categories of persons, one is persons who are appointed by deputation and secondly persons who are appointed on contract basis after retirement. Therefore the classification made by the Government in regard to persons already in service in various departments and those who are appointed on contract basis after the age of superannuation is based on an intelligible differentia. For that reason, it is contended that the 'Note' is not intended to effect one individual and it is of general application. 8. The learned Special Government Pleader also relied upon the judgment of the Supreme Court in **Roshan Lal Tandon & another v. Union of India and another (AIR 1967 SC 1989)** to contend for the position that once a person is appointed to the post or office he acquires the status of a Government employee and his rights and obligations are no longer determined by consent of both parties but by statute or statutory rules which may be framed and altered unilaterally by the Government. The argument is that even though petitioner's was a contract employment, rules can be framed by the Government to restrict the appointment unilaterally which cannot be termed as invalid and the legislative power of the Government cannot be W.P(C) No.17949 OF 2012 7 questioned. It is also contended that on the basis of the aforesaid judgment the petitioner has no vested contractual right in regard to the terms of the service. **Arun Kumar Roy v. Union of India and others [(1986)1 SCC 675** is relied upon to contend that the conditions of service of an employee under the Government who enters service on a contract will be governed by the service conditions and thereafter it will not be permissible for him to rely upon the terms of contract which are not in consonance with the rules governing the service. 9. Having regard to the factual situation and the judgments relied upon by the learned counsel appearing for either side, the question that arises for consideration is whether the 'Note' in Ext.P6 is unconstitutional and that it is against the provisions of the rules. 10. No doubt as per Ext.P1 rules, a person who has retired from service could be appointed on contractual basis for a period of three years and going by the rules, definitely he could have completed the three year period. 11. But by the interdiction in the form of an amendment to the Rules which is brought into force with effect from 13.7.2012 W.P(C) No.17949 OF 2012 8 as Ext.P6, if a person on deputation is appointed to the posts of Secretary, petitioner's services could be terminated by the Government. The question is whether this is a one man legislation as found by the Supreme Court in _P.Venugopal's case_ (supra). 12. The factual situation that arises in the judgment of the Supreme Court in P.Venugopal's case is clear from paragraph 5 of the said judgment which reads as under: “5. The Act provides for constitution of a governing body by the Institute from amongst its members in such manner as may be prescribed by the Regulations to exercise such power and discharge such functions as the Institute may, by Regulations, made in this behalf confer or impose upon it. Under Regulation (sic Section)25, the Institute is required to carry out such directions as may be issued to it from time to time by the Central Government for the efficient administration under the Act. Section 26 deals with the disputes between the Institute and the Central Government in the matter of exercise of its powers and discharge of its functions under the Act and makes the decision of the Central Government final. Thus the Act designed the Institute to be an autonomous statutory body of national importance subject to limited control in respect of specified matters. Sub-Section (1-A) with its proviso added to Section 11 of the AIIMS (Amendment) Act, 2007 reads as follows: “11.(1-A) The Director shall hold office for a term of five years from the date on which he enters upon his office or until he attains the age of sixty-five years, whichever is earlier. Provided that any person holding office as a W.P(C) No.17949 OF 2012 9 Director immediately before the commencement of the All-India Institute of Medical Sciences and the Post-Graduate Institute of Medical Education and Research (Amendment) Act, 2007, shall insofar as his appointment is inconsistent with the provisions of this sub-section, cease to hold office on such commencement as such Director and shall be entitled to claim compensation not exceeding three months' pay and allowances for the premature termination of his office or of any contract of service....” 13. From the aforesaid judgment it could be seen that an amendment had been incorporated to Section 11 of the AIIMS Act. By incorporating sub section (1-A) the term of office of the Director is fixed as five years from the date on which he enters office or he attains the age of 65 years whichever is earlier. The proviso indicated that any person holding office as a Director immediately before the commencement of the Amendment Act 2007, shall if his appointment is inconsistent with the provisions of sub section cease to hold office on such commencement. This the Supreme Court considered as one man legislation because the whole purpose was to terminate the appointment of a person who was holding office during the relevant time. Apparently it was so. In paragraph 12 the Supreme Court held as under: “12. A government servant entering into a government service does not forego his fundamental rights. On the other hand, because of his status as a W.P(C) No.17949 OF 2012 10 person in public employment, he acquires additional rights constitutionally protected. The State or other public authorities are not, therefore, entitled to make and impose laws governing the service conditions of an employee which manifestly deprive him of the privileges of that status. A person in public employment is endowed with a status not merely subjecting him to liabilities and obligation but also protecting him against any arbitrary, unreasonable and unequal treatment. Such a person is also entitled to constitutional remedies whether under Article 32 or under Article 226 of the Constitution.” Reference is also made to Constitution Bench judgment in ## **D.S.Reddi, Vice-Chancellor, Osmania University v. Chancellor[(AIR 1967 SC 1305)]** and in paragraph 38, 39 and 40 it is held as under: 38. In _D.S.Reddi,_ the facts of that case are somewhat similar to that of the writ petitioner. In that decision, D.S.Reddi was already a ViceChancellor for the past seven years and had not challenged the fixation of term from five years to three years. He was aggrieved by the second amendment in the University Act whereby Section 13A was introduced to make the provision of Section 12 (2) providing for inquiry by an Hon'ble Judge of the High Court/Supreme Court and hearing before premature termination of the term of the ViceChancellor inapplicable to the incumbent to the office of the Vice-Chancellor on the commencement of the second Amendment. The core contention of D.S.Reddi was that this amendment was only for his removal and therefore was a case of “naked discrimination” as it also deprived the protection of Section 12(2) to him when Section 12(2) was applicable to all other Vice-Chancellors and there being no distinction in this regard between the Vice- W.P(C) No.17949 OF 2012 11 Chancellor in office and the Vice-Chancellors to be appointed. In that situation, the plea of the respondent Government was that the provision similar to Section 13-A was also incorporated in two other enactments relating to Andhra University and Shri Venkateswara University and was, therefore, not a one-man legislation. It was further contended by the State that it was always open and permissible to the State Legislature to treat the Vice-Chancellor in office as a class in itself and make provisions in that regard. All the contentions on behalf of the State Government were rejected by the Constitution Bench judgment of this Court in _D.S.Reddi_ and it was held that it was a clear case of “naked discrimination” for removal of one man and by depriving him of the protection under Section 12(2) of the Act without there being any rationality of creating a classification between the Vice-Chancellor in office and the ViceChancellor to be appointed in future. 39. It was further held in _D.S.Reddi_ that such a classification was not founded on an intelligible differentia and was held to be violative of Article 14 of the Constitution of India. Accordingly, the provision of Section 13-A was held to be ultra vires and unconstitutional and hit by Article 14 of the Constitution. Similarly in the present case, the impugned proviso to Section 11(1-A) itself states that it is carrying out premature termination of the tenure of the writ petitioner. It is also admitted that such a premature termination is without following the safeguards of justifiable reasons and notice. It is thus a case similar to _D.S.Rreddi_ and other decisions cited above that the impugned legislation is hit by Article 14 as it creates an unreasonable classification between the writ petitioner and the future Directors and deprives the writ petitioner of the principles of natural justice without there being any intelligible differentia. 40. In view of our discussion made hereinabove and for the reasons aforesaid, we are of the view that this writ petition is covered by the decisions of this Court in _D.S.Reddi_ and _L.P.Agarwal_ and the impugned W.P(C) No.17949 OF 2012 12 proviso to Section 11(1-A) of the AIIMS Act is, therefore, hit by Article 14 of the Constitution. Accordingly, we hold that the proviso is ultra vires and unconstitutional and accordingly it is struck down. The writ petition under Article 32 of the Constitution is allowed. In view of our order passed in the writ petition, the writ petitioner shall serve the nation for some more period i.e. up to 2.7.2008. We direct the AIIMS Authorities to restore the writ petitioner in his office as Director of AIIMS till his period comes to an end on 2.7.2008. The writ petitioner is also entitled to his pay and other emoluments as he was getting before premature termination of his office from the date of the order of termination. Considering the facts and circumstances of the present case, there will be no order as to costs.” 14. The first question is whether such a factual situation arises in the present case. I do not think so. On a perusal of the amendment it could be seen that the amendment indicates a classification between persons on deputation and persons to be appointed on contractual basis after the age of superannuation. Rule 5(1-A) is amended in order to incorporate clauses 1 and 2 which indicates that in respect of appointment of Secretaries, the first option is for persons from deputation from various departments and only in the absence of the first category that retired persons will be appointed. Similar amendments were made to other posts also. In respect of the post of Secretary, a W.P(C) No.17949 OF 2012 13 'Note' is included indicating that when persons are appointed to the post of Secretary by way of deputation, the Government could terminate the service of the retired person, who is appointed on contract basis. Therefore, it cannot be stated that this was intended only for the petitioner. In Ext.P1 rules there was an option available to the Government either to appoint on deputation basis or to appoint on contractual basis. That eventuality had been corrected. By Ext.P6 it is made clear that the priority is for appointing persons on deputation and the note only indicates that if a person is appointed as Secretary by deputation, the Government will have the right to terminate the service of the person who is appointed after his retirement on contract basis. 15. In that view of the matter, there is substantial difference in the factual circumstances indicated in _Venugopal's_ case with that of the amendment now sought for. Hence I am of the view that the 'Note' to Ext.P6 cannot be struck down as in violation of fundamental rights. 16. Further, it is also clear from the judgments relied upon by the Special Government Pleader that Government is entitled W.P(C) No.17949 OF 2012 14 to frame rules relating to service conditions of its employees. It cannot be disputed that the petitioner is bound by the rules. Hence the Government is entitled to terminate the service of the petitioner and rule cannot be termed as discriminatory in any manner. 17. The other argument is relating to the tenure of service. Even though the petitioner is appointed on a contract basis for a period of three years, the rules will supersede the contractual provisions and therefore as far as the petitioner is concerned the situation has changed when the rules had come into force. In that view of the matter petitioner cannot insist that his appointment should only be governed by the terms of Ext.P4 contract. Hence, I do not think that the petitioner has any legal right to enforce the contract in view of the amendment to the rules by way of Ext.P6. 18. The petitioner has a case that Ext.P7 notice is without any basis as there is no reason to call upon the petitioner to give an explanation when the Government had already decided to appoint a person on deputation. Apparently, if we go by the rule position as it is, once the Government decides to appoint a W.P(C) No.17949 OF 2012 15 person on deputation the service of the petitioner could be terminated. There is no reason to issue a notice calling upon him for giving any explanation in that regard. Thus Ext.P7 can only be treated as a notice informing the mind of the Government to appoint a person on deputation. In that view of the matter, I do not think that the petitioner is entitled for any relief as prayed for. Accordingly, the writ petition is dismissed. A.M.SHAFFIQUE, JUDGE. cms