Manilal K.K. v. State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 21[ST] DAY OF JUNE 2021 / 31ST JYAISHTA, 1943** ## **WP(C) NO. 27088 OF 2020** ## **- PETITIONER :** MANILAL.K.K., AGED 70 YEARS S/O.KRISHNAN C.A., KOMAROTH HOUSE, WELCOME ROAD, AYYAPPANKAVU NORTH P.O, ERNAKULAM - 682018. BY ADVS. SRI.P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR ## **- RESPONDENTS :** 1 THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM - 695001, 2 THE ADDITIONAL CHIEF SECRETARY DEPARTMENT OF FINANCE, SECRETARIAT, THIRUVANANTHAPURAM – 695001. 3 THE PRINCIPAL SECRETARY DEPARTMENT OF AGRICULTURE DEVELOPMENT AND FARMERS WELFARE, SECRETARIAT, THIRUVANANTHAPURAM - 695001. 4 THE PRINCIPAL SECRETARY DEPARTMENT OF PUBLIC ENTERPRISES, SECRETARIAT, THIRUVANANTHAPURAM - 695001. 5 THE SECRETARY DEPARTMENT OF LAW, SECRETARIAT, THIRUVANANTHAPURAM – 695001. 6 THE CENTRAL WAREHOUSING CORPORATION SIRI INSTITUTIONAL AREA, HAUSKHAS, NEW DELHI- 110016, REPRESENTED BY THE SECRETARY. WP(C) NO. 27088 OF 2020 -: 2 :- 7 THE STATE WAREHOUSING CORPORATION WAREHOUSING CORPORATION ROAD, P.B.NO.1727, KOCHI - 682016, REPRESENTED BY ITS CHAIRMAN. 8 P.H. ASHARAF I.P.S. (RTD) AGED 66 YEARS MEHAR, HOUSE NO. 27/2811, VIDYANAGAR, KADAVATHRA P.O, ERNAKULAM - 682020. BY ADVS. SRI.RANJITH THAMPAN,ADDL.ADVOCATE GENERAL SRI.MAJNU KOMATH, SC, K.S.W.C. SRI.V.M.KRISHNAKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.3.2021, THE COURT ON 21.6.2021 DELIVERED THE FOLLOWING: WP(C) NO. 27088 OF 2020 -: 3 :- ## **JUDGMENT** The prayers in this writ petition as amended are as follows :- - “i) To issue a writ of certiorari or other appropriate writ, order or direction to call for the records leading to Exhibit P8 and quash the same. - ii) Issue a writ of Quo warranto calling upon the 8[th] respondent under what authority he is continuing to hold the post of Managing Director of the 7[th] respondent Corporation as his extension as per Exhibit P8 order is illegal and unsustainable.” 2. The petitioner, who is a retired employee of the 7[th] respondent Corporation has filed this writ petition. The contention is that the Managing Director of the Corporation is the Chief Executive of the Organisation and an upper age limit of 65 years is fixed for Managing Directors of public sector undertakings in the State of Kerala by Exts.P1 and P2 orders. It is stated that the 3[rd] respondent has illegally extended the service of the 8[th] respondent beyond 65 years and that such extension was without seeking the opinion of respondents 4 and 5 and that it is contrary to Exts.P1 and P2. The order extending the term for a further period of one year is under challenge in the amended writ petition. WP(C) NO. 27088 OF 2020 -: 4 :- 3. I have heard the learned counsel for the petitioner quite in extenso as well as Sri.RanjithThampan, the learned Additional Advocate General appearing for the Government, Sri.Majnu Komath, the learned counsel for the 7[th] respondent, the ASGI for the 6[th] respondent and Sri.V.M.Krishnakumar, the learned counsel for the 8[th] respondent. 4. It is submitted by the learned counsel for the petitioner that Ext.P1 guidelines had been issued by the State Government with regard to age limit of Chairman and Managing Directors of public sector undertakings. The upper age limit was 65. By Ext.P2, the upper age limit fixed for Chairman was enhanced to 75 and the age limit for Managing Directors of public sector undertakings remained as 65. It is submitted that the 8[th] respondent, a retired IPS officer was appointed as Managing Director of the 7[th] respondent by Ext.P3 dated 11.1.2017. His terms and conditions of service were fixed by Ext.P4. His period of appointment was extended by a further period of one year from 11.1.2018 by Ext.P5. Further extensions were granted by Exts.P6 and P7. However, even though the 8[th] respondent attained the age of 65 on 17.11.2020, Ext.P8 proceedings were issued by the Government on 5.11.2020 extending the period of appointment WP(C) NO. 27088 OF 2020 -: 5 :- of the 8[th] respondent for one more year from 18.11.2020, which is under challenge. It is further submitted that a Public Enterprises Selection Board has been constituted by the State of Kerala by Ext.P9 and Managing Directors of public sector undertakings are to be appointed through the said selection mechanism. It is submitted that Exts.P10, P11 and P12 orders and circular of the Government are also in force and that the appointment of the 8[th] respondent without following due procedure is in contravention of the said orders as well. 5. Relying on the decisions of this Court in **Jaleel P. P.** v. **P. K. Muralikrishnan and others** [2014 (1) KHC 672], in **Menghani B.** v. **Union of India and others** [2014 (2) ILR Kerala 176] and in **Premkumar** v. **Mahatma Gandhi University** [2018 (1) KLT 907], the learned counsel for the petitioner contended that where a person holds a public office without due qualifications, a writ of quo warranto would issue at the instance of any citizen to require him to vacate such office. 6. A detailed counter affidavit has been placed on record by the 3[rd] respondent. It is submitted that the petitioner has no locus standi to maintain a writ petition with the prayers as sought for and that the writ petition is not maintainable. It is submitted that the WP(C) NO. 27088 OF 2020 -: 6 :- Kerala State Warehousing Corporation is a creature of statute and is not a public sector undertaking which comes under the purview of Exts.P1 and P2 or Exts.P9 to P12. It is further contended that the Corporation was running at a huge loss when the 8[th] respondent was appointed as a member of the Director Board and Managing Director on 11.1.2017. It is submitted that from the very inception of the 8[th] respondent's service as Managing Director, the Corporation showed improvements in its financial situation and achieved a record working profit of 6.57 Crores during 2017-18. It is submitted that the working profit has been enhanced in 2018-19 and 2019-20 and the arrears of retirement benefits of employees has been completely wiped out due to the good performance of the Corporation. It is submitted that the Corporation is at rank No.11 among the profit making public sector undertakings in the State on the basis of review of public enterprises in Kerala conducted by the bureau of public enterprises and published in February, 2020. It is submitted that the 8[th] respondent is a retired IPS Officer and considering the request of the Director Board of the State Warehousing Corporation, the Agricultural Department in the State had considered the request for extension of the term after due consultations with the Central Warehousing WP(C) NO. 27088 OF 2020 -: 7 :- Corporation as well. It is submitted that vigilance clearance has also been obtained by the Government for extension of the term of the 8[th] respondent and Exts.P1 and P2 Government Orders as well as all relevant aspects have been considered by the Government while taking a policy decision after due deliberations of the Cabinet of Ministers extending the term of the 8[th] respondent. The contention that the 4[th] and 5[th] respondents were not aware of the extension is denied and it is stated that the decision to extend the term was taken after considering all relevant aspects. It is further submitted that Ext.P1 order is applicable for Government companies incorporated under the Companies Act and is not applicable to statutory corporations where appointments are governed by statutory provisions. It is contended that the Public Enterprises Selection Board constituted as per Ext.P9 had considered the issue and held that direct appointments made by administrative departments either by deputation or otherwise need not be placed for consideration of the Board for ratification or approval. It is submitted that sanctions for extension had been accorded after following all due procedure as provided in the statute and that the challenge raised is completely devoid of merits. WP(C) NO. 27088 OF 2020 -: 8 :- 7. The 7[th] respondent has also placed a statement and an additional statement on record. The contentions of the 3[rd] respondent are reiterated by the 7[th] respondent as well. The progress achieved by the 7[th] respondent during the tenure of the 8[th] respondent have been highlighted in the statement. It is submitted that when the 8[th] respondent was initially appointed as Managing Director of the Corporation on 17.1.2017, the Public Enterprises Selection Board was not in existence. After constitution of the Board, it was specifically clarified by the Board that appointments already made need not be placed for ratification before the Board. It is further submitted that the appointments as well as the extensions have been granted in tune with the statutory provisions as provided in the Warehousing Corporations Act, 1962 and after following all due procedure provided therein. It is, therefore, contended that the challenge is devoid of merits. 8. I have considered the contentions advanced. At the very first instance, the question whether a writ of quo warranto and a writ to quash an order of extension of appointment can be sought for collaterally was raised by the learned Additional Advocate General. However, in view of the fact that the parties have joined issues on the WP(C) NO. 27088 OF 2020 -: 9 :- legality of Ext.P8 order of extension and detailed pleadings have been placed on record and contentions advanced, the propriety of the prayers need not detain this Court. 9. In **Menghani B.** v. **Union of India and others** [2014 (2) ILR Kerala 176], a Division Bench of this Court held that a person who has no animosity or hidden agenda can maintain a writ of quo warranto on the ground of lack of qualification. In **Jaleel P. P.** v. **P. K. Muralikrishnan and others** [2014 (1) KHC 672], it was held that though a public interest litigation is not maintainable against an appointment, a writ petition seeking issuance of a writ of quo warranto would lie when appointment is made contrary to statutory provision. In **Premkumar** v. **Mahatma Gandhi University** [2018 (1) KLT 907], this Court held that when a person holding public office lacks the eligibility criteria or when the appointment is contrary to statutory rules, a writ of quo warranto can be issued. 10. The Warehousing Corporations Act, 1962 provides for the constitution of a Central Warehousing Corporation as well as State Warehousing Corporations. Section 18 provides for the establishment of State Warehousing Corporations. Section 20 provides that the general superintendence and management of the WP(C) NO. 27088 OF 2020 -: 10 :- affairs of a State Warehousing Corporation shall vest in a Board of Directors consisting of five Directors nominated by the Central Warehousing Corporation and five Directors nominated by the State Government and a Managing Director appointed by the State Government in consultation with the directors nominated by the Central and State governments and under intimation to the Central Warehousing Corporation. It was under this statutory provision that the 8[th] respondent was appointed as Managing Director of the State Warehousing Corporation in 2017. The Warehousing Corporations Act provides for the qualification for appointment of Directors including the Managing Director as well as the procedure to be followed for removal of such Managing Director. The State Warehousing Corporation, being as a creature of statute, the appointment of the Managing Director of such corporation has to be specifically in terms of such statute. If that be so, Exts.P1 and P2 which provide for an age limit of 65 years in the case of Managing Directors of public sector companies incorporated under the Companies Act can have no application in the case of appointment of a Managing Director in the 7[th] respondent Corporation. Ext.P2, which is a modification to Ext.P1, also has no application in the WP(C) NO. 27088 OF 2020 -: 11 :- present case. Ext.P9 which is a Government Order issued for constitution of a Public Enterprises Selection Board would also evidently not apply to the appointment of a Managing Director to the 7[th] respondent, which is a matter which is specifically regulated by statute. 11. In the instant case, I am unable to find any statutory violation or lack of eligibility criteria in the order extending the term of the 8[th] respondent. Moreover, it is specifically contended that the decision to grant extension was taken following the due procedure prescribed by statute for appointment of a Managing Director and was supported by a Cabinet decision where all aspects of the mater were considered. The reasons which weighed with the Director Board and the Government are also adverted to in the pleadings. In the above factual situation, I am of the opinion that the prayers sought for by the petitioner are not liable to be granted. The writ petition fails and the same is, accordingly, dismissed. **Sd/ANU SIVARAMAN JUDGE** Jvt/19.4.2021 WP(C) NO. 27088 OF 2020 -: 12 :- ## **APPENDIX** PETITIONER ANNEXURE - EXHIBIT P1 TRUE PHOTOSTAT COPY OF GO(MS) NO.19/2015/ PLANNING, DATED 11.05.2015 ALONG WITH ENGLISH TRANSLATION. - EXHIBIT P2 TRUE PHOTOSTAT COPY OF GO(MS) NO.27/2019/ PLANNING, DATED 04.11.2019 ALONG WITH ENGLISH TRANSLATION. - EXHIBIT P3 TRUE PHOTOSTAT COPY OF GO(RT)NO.26/2017/AD DATED 11.01.2017. - EXHIBIT P4 TRUE PHOTOSTAT COPY OF GO(MS)NO.110/2017/AD, DATED 23.09.2017 OF THE 3RD RESPONDENT ALONG WITH ENGLISH TRANSLATION. - EXHIBIT P5 TRUE PHOTOSTAT COPY OF GO(MS)NO.68/2018/AD, DATED 11.05.2018 OF THE 3RD RESPONDENT ALONG WITH ENGLISH TRANSLATION. - EXHIBIT P6 TRUE PHOTOSTAT COPY OF GO(MS)NO.40/2019/AD, DATED 07.03.2019 OF THE 3RD RESPONDENT ALONG WITH ENGLISH TRANSLATION. - EXHIBIT P7 TRUE PHOTOSTAT COPY OF GO(MS)NO.22/2020/AD, DATED 20.02.2020 OF THE 3RD RESPONDENT ALONG WITH ENGLISH TRANSLATION. - EXHIBIT P8 TRUE PHOTOSTAT COPY OF GO(MS)NO.85/2020/AGRI, DATED 05.11.2020 OF THE 3RD RESPONDENT ALONG WITH ENGLISH TRANSLATION. - EXHIBIT P9 TRUE PHOTOSTAT COPY OF G.O.(Ms).No.82/86/plg., DATED 16-12-1986 ISSUED ON BEHALF OF THE 4TH RESPONDENT. WP(C) NO. 27088 OF 2020 -: 13 :- EXHIBIT P10 TRUE PHOTOCOPY OF G.O(Ms).No.16/2018/P&EA DATED 26-05-2018. EXHIBIT P11 TRUE PHOTOCOPY OF G.O(Ms).No.29/2018/P&EA, DATED 22-10-2018. EXHIBIT P12 TRUE PHOTOSTAT COPY OF CIRCULAR No.PLGEA-BPE3/ 146/2018-PLGEA, DATED 28-05-2019.