Majeed K S, Shaji B and K. V. VALSALADASAN v. Kerala State Electricity Board and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 9[TH] DAY OF DECEMBER 2022 / 18TH AGRAHAYANA,** ## **1944** ## **WP(C) NO. 30839 OF 2022** ## **PETITIONER/S:** 1 MAJEED K S., AGED 59 YEARS PEN NO.704022) S/O. SAYED MOHAMMED, EXECUTIVE ENGINEER (RETIRED) KERALA WATER RESOURCES DEPARTMENT, RESIDING AT PARAYIL HOUSE, KARUKADOM, KOTHAMANGALAM, ERNAKULAM DISTRICT686691. PH:9447863513 2 SHAJI.B., AGED 59 YEARS PEN NO.668756 S/O. (LATE) R. BHASKARAN, EXECUTIVE ENGINEER (RETIRED) KERALA WATER RESOURCES DEPARTMENT, RESIDING AT POURNAMI, TC 2/1222 POTTAKUZHI, PATTOM, THIRUVANANTHAPURAM695004 PH:9447303940 3 K.V. VALSALADASAN, AGED 58 YEARS EL 1037651 S/O. MALIKAYIL SANKARA MARAR, EXECUTIVE ENGINEER (RETIRED) KERALA STATE ELECTRICITY BOARD LIMITED., RESIDING AT VRINDAVANAM, KUTTIKKOL.P.O., KALLIASSERRY, KANNUR-670562 PH:9846308299 BY ADVS. ELVIN PETER P.J. K.R.GANESH GOURI BALAGOPAL ABHIJITH.K.ANIRUDHAN SREELEKSHMI A.S. ANU JOSEPH ## **RESPONDENT/S:** 1 KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VAIDYUTHI BHAVANAM, PATTOM P.O., THIRUVANANTHAPURAM - 695 004. W.P.(C) No.30839 of 2022 -2- - 2 THE CHAIRMAN & MANAGING DIRECTOR, KERALA STATE ELECTRICITY BOARD LIMITED, VAIDYUTHI BHAVANAM PATTOM P.O., THIRUVANANTHAPURAM 695 004. - 3 THE SECRETARY, KERALA STATE ELECTRICITY BOARD LTD., VAIDYUTHI BHAVANAM, PATTOM P.O., THIRUVANANTHAPURAM - 695 004. - 4 THE CHIEF ENGINEER (CIVIL CONSTRUCTION) NORTH, KERALA STATE ELECTRICITY BOARD LTD., VAIDYUTHI BHAVANAM, GHANDI ROAD, KOZHIKODE-673011 5 PAULOSE GEORGE CONSTRUCTION CO. (P) LTD., ENGINEERS & CONTRACTORS AISWRYA TOWERS, PUTHENCRUZ ROAD, KARIMUGAL.P.O., KOCHI-682303, ERNAKULAM DISTRICT BY ADVS. REJI RAJENDRAN Riji Rajendran **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON** **30.11.2022, THE COURT ON 09.12.2022 DELIVERED THE FOLLOWING:** W.P.(C) No.30839 of 2022 -3- ## **JUDGMENT** Dated this the 9[th] day of November, 2022 Petitioners 1 and 2 retired as Executive Engineers in the Kerala Water Resources Department in April and July, 2019 and the third petitioner as Executive Engineer in the Kerala State Electricity Board Ltd in May, 2020. After retirement, the petitioners got appointment with M/s.Poulose George Construction Pvt. Ltd/ 5th respondent, a Company engaged in undertaking heavy engineering and civil works including construction of dams, tunnels, powerhouses, regulator-cum-bridges, bridges etc. Based on an e-tender conducted by the 4[th] respondent, the 5th respondent has been awarded the work - “execution of civil works of Olikkal-(5MW) and Poovaramthodu (3MW) Small Hydro Electric Projects”. Accordingly, the 5th respondent Company was ## W.P.(C) No.30839 of 2022 -4- issued with Ext.P2 work order dated 15.06.2022 and thereupon, an agreement was executed on 01.09.2022 between the 4thand 5[th] respondents. In their capacity as experienced Officers of the 5th respondent Company, the petitioners have multifarious roles in the execution of the work. While the petitioners were thus engaged in their duties, the 4[th] respondent was informed that the petitioners cannot associate with the work being executed by the 5[th] respondent Company, since tender condition No.5.4.5 prohibits engagement of employees who had earlier worked with the Board or the Government. According to the petitioners, Clause 5.4.5 militates against their fundamental right guaranteed under Article 19(1)(g) of the Constitution of India and is therefore, ultra vires. Hence, this writ petition seeking the following reliefs; “(i)Issue a writ of certiorari calling for the records leading to Ext.P1 and quash W.P.(C) No.30839 of 2022 -5- paragraph 5.4.5 as ultravires, unconstitutional and violative of Article 14, Article 19(1)(g) and Article 21 of the constitution of India. (ii) Declare that paragraph 5.4.5 of Ext.P1 is unconstitutional, ultravirres the Constitution of India and unenforceable; (iii) Grant such other reliefs as this Hon'ble Court deems fit in the interests of justice.” 2. Adv.Elvin Peter appearing for the petitioners contended that Article 19(1)(g) of the Constitution of India confers a fundamental right on the petitioners to practice any profession or to carry out any occupation, trade or business. That fundamental right is subject only to reasonable restrictions imposed by law. The only law on the point, as far as the petitioners are concerned, is Rule 106 of Part III of the Kerala Service Rules, as per which, if a pensioner wishes to accept any commercial employment before the expiry of two years from ## W.P.(C) No.30839 of 2022 -6- the date of retirement, he has to obtain previous sanction from the Government. It is contended that, even under Rule 106, there is only restriction against acceptance of employment without prior sanction and there is no absolute prohibition, as has been invoked through Clause 5.4.5 of the Notice Inviting e-tender. It is pointed out that even under Rule 10 of the Central Civil Services (Pension) Rules, 1972, the requirement is only of a pensioner obtaining prior sanction from the Government if he wishes to accept any commercial employment before the expiry of one year from the date of retirement. 3. Relying on the decision in **O** _**l ga Tellis**_ _**and others v. Bombay Municipal corporation and others [AIR 1986 SC 180]**_ , it is contended that the fundamental rights are sacrosanct and there can be no estoppel against the Constitution. It is contended that the State and its W.P.(C) No.30839 of 2022 -7- instrumentalities cannot impose any restriction on a fundamental right without an enactment. To buttress this contention, reference is made to the decision in _**St.Joseph's Hospital Trust v. Kerala University of Health Sciences [2012 (4)**_ _**KLT 444]**_ , wherein a Division Bench of this Court held that the State cannot exercise executive powers if a right under Article 19 is involved, as executive powers are anathema in an area where the right is under Article 19. 4. Adv.Reji Rajendran appearing for the Kerala State Electricity Board questioned the maintainability of the writ petition on the ground that a term in a contract entered between the 5[th] and 4[th] respondents cannot be challenged at the instance of third parties to the contract. The limited scope for interference in contractual disputes was highlighted with the aid of the Apex Court decisions in _**Jagdish Mandal v.**_ W.P.(C) No.30839 of 2022 -8- _**State of Orissa [(2007) 14 SCC 517] and Silppi Constructions Contractors v. Union of India**_ ## _**[(2019) SCC OnLine SC 1133]**_ . 5. It is contended that neither the petitioners nor the 5th respondent raised any grievance regarding the tender conditions in Ext.P1 until after execution of the agreement and commencement of the work. Ext.P1 tender for the execution of civil works of Olikkal and Poovaramthodu Small Hydro Electric Projects was invited on 15.01.2022. Letter of acceptance was issued to the 5th respondent on 02.06.2022 and work order issued on 15.06.2022. The agreement of execution of both projects was executed by 5[th] respondent on 01.09.2022 and the work commenced on 19.09.2022. The 5[th] respondent having willingly executed the agreement containing the Clause under challenge, the petitioners, who are only persons engaged by the 5[th] respondent, cannot W.P.(C) No.30839 of 2022 -9- challenge that condition. Moreover, Clause 5.4.5 of the conditions of bid and contracts does not impose a blanket restriction on the employment of retired personnel, since the condition is applicable only for the subject work. 6. A cooling period is prescribed by the Board only for large works like the work awarded under Ext.P1. The restriction is included in tender conditions to safeguard the interest of the organisation. As employees of the 5th respondent, the petitioners can utilise their expertise for any other work undertaken by the company. As such, challenge on the premise that there is an absolute bar against employing retired personnel like the petitioners in any of the works awarded by the Board and thereby the fundamental rights of the petitioner under Article 19(1)(g) of the Constitution is affected, is baseless. ## W.P.(C) No.30839 of 2022 -10- 7. Clause 5.4.5 which the petitioners contend to be violative of Article 19(1)(g) of the Constitution of India, reads as under; _“The contractor shall not recruit or attempt to recruit staff and labour from amongst the Board personnel or any person previously in service of the Board or of the Government. The contractor shall remove any workmen or subcontractor or employees in the service from work/site at the instance of directions from the Engineer in charge or other officer in charge.”_ The Board has clarified that the above Clause is applicable only for the contract awarded under Ext.P1. The limited prohibition against engaging the petitioners, for the instant work cannot be held to be violative their rights to practice their profession or to carry on any occupation of their choice. The decisions relied on the petitioners would apply only in cases where the ## W.P.(C) No.30839 of 2022 -11- fundamental right is violated. Rule 106 of Part III KSR also have no application since the Rule require sanction for taking up employment before the expiry of two years. In the instant case, the restriction is only against engaging the services of the petitioners for a particular work. Being the tendering authority, the Board can impose conditions essential for safeguarding its interest. The Board, in its wisdom, having found the imposition of a condition like Clause 5.4.5 to be necessary for safeguarding its interest, it is not for this Court to hold the condition to be illegal, more so, when the contractor has not challenged the condition. As rightly contended by the learned Counsel for the Board, even in cases where the terms of a contract is challenged by the contractor, the scope for interference under Article 226 is very limited. Being so, I find no reason to entertain W.P.(C) No.30839 of 2022 **==> picture [23 x 8] intentionally omitted <==** this writ petition initiated through strangers to the agreement. In the result, the writ petition is dismissed. **Sd/V.G.ARUN JUDGE** scl W.P.(C) No.30839 of 2022 -13- ## **APPENDIX OF WP(C) 30839/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE E TENDER NO. CECCN/02/2021-22 DATED 15/01/2022 ISSUED BY THE 4TH RESPONDENT. Exhibit P2 TRUE COPY OF THE ORDER NO. CECCN/DB/O&P-WORKS /2022-23/375 DATED 15/06/2022 ISSUED BY THE 4TH RESPONDENT. Exhibit P3 TRUE COPY OF THE BOARD ORDER B.O(EB) NO. 1664/2002 (ESST.VII/7629/2002) DATED 10.12.2002.