Naseema I. et al. v Union of India and others; Sathianath an T.K. and Ajayakumar Meenoth v State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY, THE 05TH DAY OF SEPTEMBER 2019 / 14TH BHADRA, 1941** ## **WP(C).No.3251 OF 2019(F)** ## **PETITIONER/S:** |**1**|**NASEEMA I.,**| |---|---| ||**AGED 59 YEARS,**| ||**W/O. K.RASHEED, SANAM, CHINGOH P.O.,**| ||**ALAPPUZHA-690 532.**| |**2**|**V.V. RAMACHANDRAN,**| ||**AGED 63 YEARS,**| ||**S/O. V.C.VELAYUDHAN, SREERAGAM, T.C.12/1252(1),**| ||**VANCHIYOUR P.O., TRIVANDRUM-695 035.**| |**3**|**RAMANUJAN THAMPI K.V.,**| ||**AGED 64 YEARS,**| ||**S/O. S.KOCHAPPANPILLAI, CHANDRIKAPADMAM,**| ||**KUNNATHOOR P.O., KOLLAM-690 540.**| |**4**|**C.B. MOHANDASAN,**| ||**AGED 63 YEARS,**| ||**S/O. C.BALAKRISHNAN NAIR, KRISHNALEELA,**| ||**BEHIND POOVANI TEMPLE, KOLAZHY P.O.,**| ||**THRISSUR-680 010.**| |**5**|**T.V.GEORGE,**| ||**AGED 59 YEARS,**| ||**S/O. T.S.VARKEY, THANUPARAMBIL HOUSE,**| ||**MIDAYIKKUNNU P.O., KOTTAYAM-686 605.**| |**6**|**K.V.ABDUL AZEEZ,**| ||**AGED 57 YEARS,**| ||**S/O. BAPPU HAJI, THAWBA, SPW ROAD,**| ||**THAIKKATTUKARA P.O., ALUVA, ERNAKULAM-683 106.**| |**7**|**DR. JOSEPH ABRAHAM,**| ||**AGED 65 YEARS,**| ||**S/O. A.V.ABRAHAM, ALUMKALTHAMEPRATH,**| ||**H.NO.160A/KMC/XIX, ANNANKUNNU, NEAR CMS COLLEGE,**| ||**KOTTAYAM P.O.-686 001.**| W.P.(C) Nos.3251 & 3602 of 2019 2 **8 P.SASIKUMAR, AGED 59 YEARS, S/O. P.NARAYANAN NAIR, AMRUTHA, VATTALOOR P.O., MAKKARAPARAMBA, MALAPPURAM P.O.,-676 507.** **BY ADVS. SRI.RAJIT SMT.PARVATHY MANOJ** ## **RESPONDENT/S:** - **1 UNION OF INDIA, REPRESENTED BY JOINT SECRETARY, MINISTRY OF RURAL DEVELOPMENT, MAHATMA GANDHI NREGA DIVISION, KRISHI BHAVAN, NEW DELHI - 110 001.** - **2 STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, THIRUVANANTHAPURAM - 695 001.** - **3 ADDITIONAL CHIEF SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT ANNEX, THIRUVANANTHAPURAM, KERALA - 695 001.** - **4 MISSION DIRECTOR, MAHATMA GANDHI NATIONAL RURAL EMPLOYMENT GENERATION SCHEME, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM - 695 001.** **R1 BY SRI. P.VIJAYAKUMAR, ASG OF INDIA R2 TO R4 BY SRI. C.M. NAZAR, SPECIAL GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-08-2019, ALONG WITH WP(C).3602/2019(A), THE COURT ON 05-09-2019 DELIVERED THE FOLLOWING:** W.P.(C) Nos.3251 & 3602 of 2019 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY THURSDAY, THE 05TH DAY OF SEPTEMBER 2019 / 14TH BHADRA, 1941** **WP(C).No.3602 OF 2019(A)** ## **PETITIONER/S:** **1 SATHIANATHAN T.K., AGED 61 YEARS, THIYYAKANDY POYIL HOUSE, P.O. ERAMANGALAM, BALUSSERY, KOZHIKODE - 673 612. 2 AJAYAKUMAR MEENOTH, SHIVASHREE, DHARMADAM P.O., THALASSERY, KANNUR - 670 106. BY ADVS. DR.K.P.PRADEEP SRI.SANAND RAMAKRISHNAN SMT.NEENA ARIMBOOR SRI.T.T.BIJU SMT.T.THASMI SMT.ANJANA KANNATH** ## **RESPONDENT/S:** |**1**|**THE STATE OF KERALA**| |---|---| ||**REPRESENTED BY ITS CHIEF SECRETARY,**| ||**GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM - 695 001.**| |**2**|**UNION OF INDIA,**| ||**REPRESENTED BY ITS SECRETARY,**| ||**MINISTRY OF RURAL DEVELOPMENT,**| ||**DEPARTMENT OF RURAL DEVELOPMENT,**| ||**MGNREGA DIVISION, KRISHI BHAWAN,**| ||**NEW DELHI - 110 001.**| |**3**|**THE ADDITIONAL CHIEF SECRETARY,**| ||**LOCAL SELF GOVERNMENT DEPARTMENT**| ||**GOVERNMENT OF KERALA,**| ||**THIRUVANANTHAPURAM - 695 001.**| W.P.(C) Nos.3251 & 3602 of 2019 4 **4 MISSION DIRECTOR, MGNREGA, DEPARTMENT OF RURAL DEVELOPMENT, MAHATHMA GANDHI NREGA STATE MISSION, 5TH FLOOR, SWARAJ BHAVAN, NANTHANCODE, KOWDIYAR P.O., THIRUVANANTHAPURAM - 695 003. 5 THE SELECTION COMMITTEE FOR APPOINTMENT AS OMBUDSPERSONS UNDER MGNREG ACT, REPRESENTED BY ITS CHAIRMAN, ADDITIONAL CHIEF SECRETARY (HEALTH), GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 6 PROF P.K. SASI, SORRYA, PALLITHARA ROAD, WEST NALLUR, FEROKE KOZHIKODE - 673 631. 7 P. LAKSHMANAN, THIURUVATHIRA, P.O., KOOVERY, KANNUR - 670 581. R1 & R3 TO R5 - SRI. C.M. NAZAR, SPECIAL GOVERNMENT PLEADER R2 BY ADV. SRI.N.S.DAYA SINDHU SHREE HARI, CGC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-08-2019, ALONG WITH WP(C).3251/2019(F), THE COURT ON 05-09-2019 DELIVERED THE FOLLOWING:** W.P.(C) Nos.3251 & 3602 of 2019 5 ## **JUDGMENT** The captioned writ petitions are materially connected in respect of an order passed by the State Government dated 22.01.2019, whereby the draft rank list prepared by the Selection Committee for consideration for appointment as Ombudsman under the Mahatma Gandhi National Rural Employment Guarantee (MGNREG) Act, 2005 (for brevity, 'the Act, 2005'), published in the Kerala Gazette No.5 dated 10.04.2018, as per notification dated 14.03.2018 is cancelled. It is thus seeking to quash Ext.P10, and for other related and consequential reliefs, the writ petitions are filed. Therefore, I heard them together and propose to deliver this common judgment. The facts and documents contained in W.P.(C) No.3251 of 2019 are relied upon to dispose of the writ petitions. Material facts for the disposal of the writ petition are as follows: 2. The Act 2005 was enacted with an objective for the enhancement of livelihood security of the households in rural areas of the country by providing at least one hundred days of guaranteed wage employment in every financial year to every household whose adult members volunteer to do unskilled manual work. The provisions of the Act are such that, the State W.P.(C) Nos.3251 & 3602 of 2019 6 Governments are appointed as a key functionality. Thereupon, by virtue of Sec.4, it is required to formulate a scheme for providing not less than one hundred days of guaranteed wage employment in every financial year to every household. Anticipating flaws that are inevitable in the implementation of the Scheme, Sec.19 is incorporated in the Act, requiring the State Government to determine appropriate grievance redressal mechanisms at the Block, District and Grama Panchayat levels for dealing with any complaint by any person in respect of implementation of the Scheme. This is to be done by Ombudspersons appointed as per Sec.30, Schedule I of the Act. 3. The Ombudspersons shall be governed by the Guidelines issued by the Union of India as per Sec.27 of the Act, which is produced as Ext.P1. Ext.P2 letter was forwarded by the 1[st] respondent to the State Governments and other Local Self Government Institutions and other Departments, requiring them to fill up vacancies of Ombudsperson in a time bound manner. Thereupon, Ext.P3 order is issued by the State Government on 30.05.2017 to re-constitute the Selection Committee for preparing a panel of suitable persons for consideration for appointment as Ombudspersons under W.P.(C) Nos.3251 & 3602 of 2019 7 the Act. Accordingly, Ext.P4 newspaper advertisement dated 04.07.2017 was issued and during the interregnum, the guidelines were revised as per Ext.P5 dated 28.08.2017. 4. Pursuant to Ext.P4 notification, respondents 3 and 4 issued Ext.P6 notice dated 27.12.2017, requiring the applicants to appear for an interview on 10.01.2018. Thereafter, Ext.P7 draft rank list was prepared by the Selection Committee on 14.03.2018. According to the petitioners, after 30 days of issuing Ext.P6, a notification was published in the Gazette No.15 approving Ext.P7, produced as Ext.P8. However, the case of the petitioners is that, they did not receive any appointment letter pursuant to Ext.P8 for over six months, following which, Ext.P9 representation was preferred on 13.11.2018. 5. Though no action was taken on Ext.P9 representation, the 2[nd] respondent issued Ext.P10 order dated 22.01.2019, cancelling Ext.P7 notification on the ground that the selection procedure adopted by the Selection Committee in preparing the draft rank list was not in accordance with the revised Guidelines dated 28.08.2017. These are the basic background facts projected by the petitioners in the said writ petition. W.P.(C) Nos.3251 & 3602 of 2019 8 6. The subject issues raised in W.P.(C) No.3602 of 2019 are also same and an additional contention is raised by the petitioners therein that respondents 6 and 7 are disqualified by virtue of the Guidelines, since they are seeking re-appointment, which is not contemplated as per the Guidelines. So also, as per the original Guidelines, selection of suitable persons for inclusion in the panel shall be based on consideration of eminent standing and impeccable integrity with at least twenty years of experience in public administration, law, academics, social work or management, as per the documents furnished along with the application, and experience in working with people or community organization shall be a mandatory qualification. However, as per the revised Guidelines, selection of suitable persons for inclusion in the panel shall be based on consideration of eminent standing and impeccable integrity with at least ten years of experience in public administration, law, academics, social work or management, as per the documents furnished along with the application and experience in working with people or community organization shall be a mandatory qualification. In all other respects, the Guidelines are typical in W.P.(C) Nos.3251 & 3602 of 2019 9 nature. 7. A detailed counter affidavit is filed by the 2[nd] respondent in W.P.(C) No.3251 of 2019, with an adoption memo, refuting the allegations and claims and demands raised by the petitioners. Among other contentions, it is stated that, as per the Government notification dated 14.03.2018, notice was given by the Government for objections and suggestions from public with respect to the draft rank list prepared by the Selection Committee for consideration for appointment as Ombudsman under the Act, 2005. Ext.P8 Gazette Notification published on 10.04.2018 is not a final rank list, but a formal call for objections raised, if any, and the Gazette notification states that the rank list is prepared by the Selection Committee for consideration of appointment as Ombudsman under the Act, 2005, and notice is given inviting any objections or suggestions with respect to the draft ranked list from any person within thirty days from the date of publication of the notification in the Official Gazette. Therefore, according to the 2[nd] respondent, the Gazette Notification is not a final list as claimed by the petitioners and it is up to the State Government to decide upon final selection and hence the contention W.P.(C) Nos.3251 & 3602 of 2019 10 otherwise advanced by the petitioners cannot be sustained. 8. It is also pointed out that, as per paragraph 2.2.3 of the revised Guidelines issued by the Government of India specifically states that those appointed as Ombudspersons should have impeccable integrity, and as the Government is committed on appointing such persons with impeccable integrity, it was decided to obtain a “No Vigilance & Departmental Enquiries pending or initiated Certificate” in respect of the persons included in the draft rank list from the Head of Offices where they served earlier and also from the Vigilance Department. Further proceedings were affected due to the delay in getting clearances from the concerned Departments. However, during the course of a close scrutiny of the proceedings of the Selection Committee revealed that the Committee has not adhered to the revised Guidelines for appointment of Ombudsman issued by the Government of India, while preparing the rank list. 9. As per Clause 2.2.1 of the Guidelines, no written test or examination shall be conducted while an interview and an internal marking system should be evolved by the Selection Committee to rank persons in W.P.(C) Nos.3251 & 3602 of 2019 11 order of preference. But, no proof of internal marking system evolved was produced by the Selection Committee along with its recommended panel, and the minutes of the Selection Committee held on 10.01.2018 is produced as Ext.R2(a). That apart, Clause 2.2.10 of the revised Guidelines states that “there shall be no reappointment”. But, it is observed that the persons placed in first place in the draft ranked list in Kozhikode, Kannur and Kasaragod Districts have served as Ombudsman earlier. Therefore, according to the 2[nd] respondent, the preparation of the rank list is in violation of the above two clauses and the selection procedure prescribed by the Government of India. Hence, the cancellation of the rank list became inevitable. 10. That apart, it is pointed out that, a letter was issued by the Ministry of Rural Development to all the States in the country requesting to inform status on appointment of Ombudspersons and formulation of Grievance Redressal Rules. It is also pointed out that, consequent to the publication of the draft list, one Sathianathan T.K. filed objection pointing out that Prof. Sasi P.K. included as 1[st] rank in the draft list of Kozhikode District has earlier served as Ombudsman, W.P.(C) Nos.3251 & 3602 of 2019 12 and therefore, not qualified as per Clause 2.2.10. Other contentions are also raised by the petitioners. 11. A reply affidavit is filed by the petitioners in W.P.(C) No.3251 of 2019, reiterating the stand adopted in the writ petition and also producing additional documents. 12. I have heard Sri. Rajit and Dr. K.P. Pradeep, respective counsel appearing for the petitioners, Sri. C.M. Nazar, learned Special Government Pleader, Sri. Daya Sindhu Shree Hari N.S., learned CGC and Smt. S. Krishna, representing the ASGI, Sri. P. Vijayakumar. Perused the pleadings and the documents on record. 13. The sole question to be considered is, whether any manner of interference is warranted to the Government Notification dated 22.01.2019, cancelling the draft select list prepared under the Act, 2005, for appointing Ombudspersons. Even though various contentions are raised by the petitioners, nowhere any allegations of _malafides_ are raised. It is an admitted fact that, as per Ext.P8 notification published in the Gazette, objections or suggestions were invited by the State Government, addressed to the Additional Chief Secretary to Government, Local Self Government Department, and it is clearly specified in Ext.P8 that W.P.(C) Nos.3251 & 3602 of 2019 13 it is a draft ranked list. 14. Case projected by the petitioners is that, there is no rhyme or reason for cancellation of the list and the attempt of the State Government is to appoint persons of their choice. In my considered opinion, the original Guidelines were revised and amendments are made, including clauses, by which the qualification prescribed of twenty years is limited to ten years, which thus means, the applicants who are having experience as is prescribed in the revised Guidelines are also entitled to appointment, whereas as per the earlier Guidelines, only persons who have experience of twenty years alone were permitted to apply. Therefore, as per the revised Guidelines, more number of persons are entitled to apply for the post. But, when the Selection Committee prepared the draft list, the revised Guidelines were not taken note of, and certain discrepancies have taken place, overlooking the provisions of the Guidelines. 15. I do not think petitioners have made out any case of arbitrariness, illegality or any other objectionable action on the part of the State Government in cancelling the list. It is also clear from Ext.P8 that it was only a draft list, so none of W.P.(C) Nos.3251 & 3602 of 2019 14 the petitioners can make claim that they were appointed and, therefore, they have an accrued right or interest against the appointments to be made as per Act, 2005. Having not received any appointment letter after Ext.P8 draft notification, petitioners cannot claim, as of right, that they are entitled to get appointment and they are to be selected from the draft list published by the State Government. Anyhow, petitioners are not having a case that they are not qualified. In that view of the matter, when a new notification is issued by the State Government for selection of Ombudspersons, petitioners are also entitled to apply for the same. 16. However, a specific point is raised by the petitioners in W.P.(C) No.3602 of 2019, in respect of re-appointment in accordance with Clause 2.2.10 as per the revised Guidelines that the Ombudsman shall be appointed for tenure of two years extendable not more than twice by one year each based on a performance appraisal process or till the incumbent attains the age of 68 years, whichever is earlier, and there shall be no re-appointment. 17. A similar question was considered by this Court in respect of re-appointment in the case of members of the Consumer Disputes Redressal Forum, as W.P.(C) Nos.3251 & 3602 of 2019 15 per the Consumer Protection Act, 1986, in ' _**K.N. Radhakrishnan v. State of Kerala**_ ' [2018 (1) KHC 750 : 2018 (1) KLT 720], wherein, it was held that the reappointment prescribed under the Act is in respect of a person holding the office of a 'member' and any person who has held the office earlier, and if qualified to be applied when a notification is invited, the reappointment restriction will not stand in the way of a qualified person submitting application for appointment. It is as good as a fresh appointment. In that view of the matter, I think it is only fit and proper to hold that merely because a person has held a post as Ombudsperson earlier, that will not stand in the way of him applying when fresh applications are invited by the State Government. 18. Having evaluated the facts and circumstances put forth by the respective counsel, I am of the considered opinion that, petitioners have not made out any case justifying interference under Article 226 of the Constitution of India. Therefore, the writ petitions have no sustenance, so far as the challenge made against the notification dated 22.01.2019, issued by the State Government cancelling the draft ranked list is concerned, however, subject to the finding W.P.(C) Nos.3251 & 3602 of 2019 16 rendered in the matter of re-appointment clause of the revised Guidelines. The writ petitions are accordingly dismissed. **Sd/-** **SHAJI P.CHALY** **JUDGE** W.P.(C) Nos.3251 & 3602 of 2019 17 ## **APPENDIX OF WP(C) 3251/2019** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE GUIDELINES ISSUED BY THE 1ST RESPONDENT DATED 16.01.2014.** **EXHIBIT P2 TRUE COPY OF THE LETTER SENT BY THE 1ST RESPONDENT TO THE PRINCIPAL SECRETARIES/SECRETARY/COMMISSIONER DEPARTMENT OF RURAL DEVELOPMENT/ PANCHAYATI RAJ, ALL STATES/UTS, NO.J-11011/21/2008-REVII DATED 10.03.2017. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 30.05.2017, G.O.(MS) NO.107/2017/LSGD, ISSUED BY THE 2ND RESPONDENT. EXHIBIT P4 TRUE COPY OF NEWSPAPER ADVERTISEMENT DATED 04.07.2017. EXHIBIT P5 TRUE COPY OF THE REVISED GUIDELINES ISSUED ON 28.08.2017. EXHIBIT P6 TRUE COPY OF THE NOTICE DATED 27.12.2017. EXHIBIT P7 TRUE COPY OF THE NOTIFICATION NO.144/DD2/2017/LSGD ISSUED BY THE 2ND RESPONDENT, DATED 14.03.2018 INTIMATING THE DRAFT RANK LIST PREPARED BY THE SELECTION COMMITTEE. EXHIBIT P8 TRUE COPY OF THE NOTIFICATION DATED 14.03.2018. EXHIBIT P9 TRUE COPY OF THE REPRESENTATION PREFERRED BEFORE THE 2ND RESPONDENT. EXHIBIT P10 TRUE COPY OF THE ORDER DATED 22.01.2019 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P11 TRUE COPY OF THE LETTER ISSUED BY THE MINISTRY OF RURAL DEVELOPMENT TO THE STATE GOVERNMENTS, DATED 01.05.2017 REITERATING THE IMPORTANCE OF THE OMBUDSMEN. EXHIBIT P12 TRUE COPY OF THE LIST APPROVED BY THE 3RD RESPONDENT FORWARDED TO THE STATE GOVERNMENT FOR APPROVAL.** W.P.(C) Nos.3251 & 3602 of 2019 18 **RESPONDENTS' EXHIBITS:** **EXHIBIT R2(A)** **TRUE COPY OF THE MINUTES OF SELECTION COMMITTEE MEETING HELD ON 10.01.2018.** //TRUE COPY// P.S. TO JUDGE St/- W.P.(C) Nos.3251 & 3602 of 2019 19 ## **APPENDIX OF WP(C) 3602/2019** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER NO J-11011/21/2008NREGA DATED 7-9-2009 WITH ANNEXURE ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE REVISED GUIDELINES AS ON 16-01-2014 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE GUIDELINES NO.J11011/21/2008-NREGA(PT.) DATED 28-08-2017 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE SELECTION NOTIFICATION FOR OMBUDSMAN ISSUED BY THE MISSION DIRECTOR, MAHATMA GANDHI NREGA STATE MISSION, KERALA.** **EXHIBIT P5 TRUE COPY OF APPLICATION SUBMITTED BY THE 1ST PETITIONER IN RESPONSE TO EXT P4. EXHIBIT P6 TRUE COPY OF THE APPLICATION SUBMITTED BY THE 2ND PETITIONER IN RESPONSE TO EXT.P4. EXHIBIT P7 TRUE COPY OF THE NOTIFICATION NO 144/DD2/2017/LSGD DATED 14-3-2018 ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT P8 TRUE COPY OF THE GOVERNMENT ORDER NO.GO(RT)NO.1266/2012/LSGD DATED 03/05/2012. EXHIBIT P9 TRUE COPY OF THE OBJECTION FILED BY THE 1ST PETITIONER DATED 31-3-2018 TO THE 1ST RESPONDENT.** **EXHIBIT P10 TRUE COPY OF THE NOTIFICATION NO.144/DD2/2017/LSGD DATED 22-01-2019.** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R2 (a) TRUE COPY OF THE MINUTES OF SELECTION COMMITTEE MEETING HELD ON 10-01-2018.** //TRUE COPY// P.S. TO JUDGE St/-