R.S. Sasikumar v. Anupama T.V., IAS, Returning Officer, Kerala State Council for Child Welfare and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 10[TH] DAY OF NOVEMBER 2022 / 19TH KARTHIKA, 1944** ## **WP(C) NO. 8274 OF 2020** ## **PETITIONER:** R.S.SASIKUMAR AGED 72 YEARS NIRMALYAM, KRA 7, NEMOM, THIRUVANANTHAPURAM-695020. BY ADVS. GEORGE POONTHOTTAM (SR.) SMT.NISHA GEORGE ## **RESPONDENTS:** 1 ANUPAMA T.V. IAS RETURNING OFFICER, KERALA STATE COUNCIL FOR CHILD WELFARE, (DIRECTOR OF WOMEN AND CHILD DEVELOPMENT) NEAR GOVERNMENT MODEL SCHOOL, HOUSING BOARD, THYCAUD, THIRUVANANTHAPURAM-695014. 2 J.S.SHIJUKHAN, MEMBER NO.834, KERALA STATE COUNCIL FOR CHILD WELFARE, RESIDING AT SHIJU MANZIL, PATHAMKAL, MANCHA P.O., NEDUMANGAD, THIRUVANANTHAPURAM-695541. 3 AZHIKKODE CHANDRAN, MEMBER NO.780, KERALA STATE COUNCIL FOR CHILD WELFARE, RESIDING AT AZHIKKODE VEEDU, S.N.ROAD, PALLIMUKKU P.O., KANNUR DISTRICT-670503. 4 R.RAJU, MEMBER NO.518, KERALA STATE COUNCIL FOR CHILD WELFARE, RESIDING AT CHARUVILA VEEDU, THOTTUVARAM, KUZHIYILMUKKU, ATTINGAL P.O., THIRUVANANTHAPURAM695101. 5 M.K.PASUPATHI, MEMBER NO.801, KERALA STATE COUNCIL FOR CHILD WELFARE, RESIDING AT MANAMPALLIMANA, CHETTUPUZHA **W.P.(C) No. 8274 of 2020** 2 P.O., THRISSUR DISTRICT-680012. 6 O.M.BALAKRISHNAN, MEMBER NO.507, KERALA STATE COUNCIL FOR CHILD WELFARE, RESIDING AT KARIMTHALAM, ANGOLE P.O., KASARGODE DISTRICT-671121. 7 MEERA DARSAK, MEMBER NO.1876, KERALA STATE COUNCIL FOR CHILD WELFARE, RESIDING AT ARADHANA, CHAVAYOOR P.O., CALICUT DISTRICT-673017. 8 ADV. YESUDAS PARAPPILLY, MEMBER NO.2186, KERALA STATE COUNCIL FOR CHILD WELFARE, RESIDING AT PARAPPILLY HOUSE, KOONAMBAVU, KOLLAM DISTRICT-691574. 9 KERALA STATE COUNCIL FOR CHILD WELFARE, NEAR GOVERNMENT MODEL SCHOOL, HOUSING BOARD, THYCAUD, THIRUVANANTHAPURAM-695014, REPRESENTED BY ITS GENERAL SECRETARY. 10 ADDL. R10. SUPERINTENDENT OF POST OFFICES THIRUVANANTHAPURAM SOUTH DIVISION, FORT.P.O., THIRUVANANTHAPURAM. (IS SUO MOTU IMPLEDED AS ADDITIONAL RESPONDENT 10 AS PER ORDER DATED 20-052022 IN WP(C) 8274 OF 2020). BY ADVS. GOVERNMENT PLEADER SRI.T.A.SHAJI (SR.) SRI.K.JAJU BABU (SR.) MANU S., ASG OF INDIA SMT.M.U.VIJAYALAKSHMI SRI.ATHUL SHAJI ADVOCATE GENERAL OFFICE KERALA SRI.P.G.PRAMOD, GOVERNMENT PLEADER(GP-50) **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.08.2022, THE COURT ON 10/11/2022 DELIVERED THE FOLLOWING:** **W.P.(C) No. 8274 of 2020** 3 ## **V.G.ARUN (J)** ## **----------------------** ## **W.P.(C) No. 8274 of 2020** ## **---------------------------------** **Dated this the 10[th] day of November, 2022** ## **JUDGMENT** The Kerala State Council Child Welfare (‘the Council’ for brevity) is a society registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955. The Council was registered on 14/9/1960 and its by-laws were formulated by the Executive Committee on 25/6/1999 and confirmed by the General Body on 16/1/2000. The Council is formed with the objective of formulation and implementation of schemes for the interest and welfare of children, to establish institutions for the rehabilitation of orphaned, destitute, mentally and physically handicapped children, to cooperate with national and international bodies, connected with the welfare of children, to cooperate with Government and non-governmental agencies and organisations rendering similar services, to administer funds and schemes relating to child welfare etc. The area of operation of the **W.P.(C) No. 8274 of 2020** 4 Council extends to the whole of the State of Kerala and it functions through the District Councils for Child Welfare established in each revenue district. The Council generates funds through various methods, including sale of children’s day stamps and grants from the State and the Central Governments. The Governor of Kerala is the Patron of the Council, the Chief Minister is the President and the Minister for Social Welfare, the first Vice President. The Secretary to Government in charge of Social Welfare, Director of Public Instructions, Director of Health Services and Director of Social Welfare are _ex-officio_ members of the Council. The general body of the Council consists of life members, honorary members, representative members, corporate members, institutional members, ordinary members, nominated members and _ex-officio_ members. The office bearers of the Council are the President, two Vice Presidents, General Secretary, Joint Secretary and Treasurers. The Executive Committee of the Council consist of the office bearers, three members elected from among the Council members, Secretaries of the District Councils and the _ex-offico_ members. The day to day administration of the Council is managed by the Standing Committee consisting of the elected office bearers and executive committee members. The term of the executive committee is three years. The election of office bearers and **W.P.(C) No. 8274 of 2020** 5 executive committee members has to be conducted by a Returning Officer appointed for the purpose, based on a resolution of the Standing Committee taken two months prior to the expiry of the term of the existing committee. On receipt of the resolution, the Secretary, Social Welfare Department should, within fifteen days, appoint a Government official as Returning Officer. Only life members have voting rights. 2. The petitioner is one among the more than 2000 life members of the Council. As the term of the existing committee is due to end by 30/12/2019, the incumbent committee decided to conduct election to the next Executive Committee and forwarded it to the Secretary, Social Welfare Department. Based on the resolution, the Government issued GO(Ord) N0.7181 of 2019 dated 16/12/2019, appointing the first respondent, who was the Director of Women and Child Development Department then, as Returning Officer. Thereafter, the first respondent issued Ext.P3 election notification dated 27/2/2020, proposing to conduct the election of office bearers and Executive Committee members of the Council on 28/3/2020. The writ petition was filed at that stage, alleging violation of Clause 47 of the Ext.P2 bye-laws. On 25/3/2020 this court passed an order making it clear that declaration of result of the election will be provisional and subject to further orders. Thereafter, by Ext.P10 order dated 28/3/2020, **W.P.(C) No. 8274 of 2020** 6 respondents 2 to 8, the only candidates in the fray, were declared elected. Thereupon, the writ petition was amended and contains the following reliefs now; _i). Issue a writ of certiorari calling for the records leading to Exhibit P3 and all further steps taken thereafter and to quash the same;_ _ii). Issue a writ declaring that non-compliance in giving of intimation of election as provided under clause47(2) of Exhibit-P2 bye-laws will vitiate all actions taken for the conduct of election to the office bearers and executive members as the actions are in violation of mandatory requirements by a public servant appointed by the Government to perform a public duty ;_ _iii). Issue a writ declaring that no right is accrued on respondents 2 to 8 by facilitating them to contest in the election without intimating the members regarding the election as provided under clause 47(2) of the byelaws;_ _iii(a). Issue a writ declaring that the elections having been conducted without notice as mandated in the byelaw, the declaration of result as per Exhibit P10 a nullity in the eye of law;_ ## 3. Senior Advocate George Poonthottam appearing for the petitioner contended that the election was notified and conducted in a secretive and illegal manner with the nefarious objective of ensuring that only persons owing allegiance to the present ruling dispensation **W.P.(C) No. 8274 of 2020** 7 gets elected. For this purpose, the procedure prescribed under Clause 47 of Ext.P2 bye-laws was given a complete go by. To buttress this contention attention was drawn to the relevant Clause 47 of the bylaws. Being contextually relevant Clause 47 is extracted hereunder; ## **47.Election of office Bearers and Executive Committee Members of the Council** A resolution to appoint a Returning Officer to elect the office bearers and executive committee members for the next, term(three years) shall be passed by the Standing committee before two months of the expiry of the existing term of the committee and the same sent to the Secretary to Govt.holding charge of Social Welfare Dept.within 7 days by registered post. Copies of the resolution shall be sent to all members of the executive committee within 7 days. (b) After receipt of the resolution the Secretary to Govt.holding charge of Social Welfare shall within 15 days appoint a Govt.Officer as Returning Officer. The Returning Officer shall be paid remuneration by the Council as decided by the Secretary to Govt.,Social Welfare. All assistance for the conduct of the election shall be extended by the council. (c)(1). **The Returning Officer in consultation with the General Secretary shall decide the date of conduct of the election. The election date shall be before the expiry of the term of the existing executive Committee. The Returning Officer shall** **W.P.(C) No. 8274 of 2020** 8 **notify the election date and the procedure for the conduct of election as well as publish the draft voters list 30 days before the date of election.** (2). **The Returning Officer shall inform all members in person by post under certificate of posting about the details of election of office bearers and executive committee members at least twenty one(21) days before the date of election.** (3). Vacancies shall be filled through election. (4). Election to each place shall be conducted by secret ballot as specified in the Bye-law. 5). In the Notification of the Returning Officer it shall be specified the time, date and the place where the contesting candidates should submit the nominations. Nomination shall be proposed by a life members and Seconded by another life member. Only life members are eligible to contest in the election. The last date of submitting the nomination shall be before(14) days before the date of election. (6). Those who got membership before the date of passing the resolution for the conduct of election by the standing committee alone have the right of voting. A list of such members shall be prepared by the General Secretary and furnished to the Returning Officer. **The Returning Officer shall publish the voters list in the offices of the council and the District Councils thirty days(30) before the date of election and complaints regarding the voters list be examined and finalised within five days.** After **W.P.(C) No. 8274 of 2020** 9 taking a decision on the complaints, final list shall be exhibited in the notice board of the Council and all District Councils before twenty one (21) days of the date of election. (7). Candidates shall submit the Nomination's in the form prescribed by the Council. Each candidate shall sign a declaration that he is willing to contest the election and it should be given along with the nomination. (8). The nominations can be sent to the Returning Officer by the candidate or the person who proposed him or the person who seconded his candidature, in person or by registered post. Nominations received before the specified time and date prescribed by the Returning Officer alone will be considered. 4. It is contended that, as per Clause 47C(1) the Returning Officer, in consultation with the General Secretary, should notify the election date and the procedure for the conduct of election, thirty dates prior to the date of election. The Returning Officer has to publish the voters list in the offices of the Council and the District Councils as provided in Clause 47(6) and complaints regarding voters list has to be examined and finalised within five days. The election notification dated 27/2/2020 was not sent to the District Council Offices, either thirty days before the date of election or even thereafter. Likewise, the draft voters list was also not sent to the **W.P.(C) No. 8274 of 2020** 10 District Council offices. As a result, the life members in Districts other than Thiruvananthapuram, where the Council’s head office is situated, had no knowledge about the ensuing election. 5. As per Clause 47(2) of the bylaws, the Returning Officer should inform the members in person by post about the details of election of office bearers and Executive Committee members, at least twenty one days prior to the date of election. Most of the life members, including the petitioner, received the information regarding the procedure of election through post only after 11/3/2020, the last date fixed for submission of nominations. In the meanwhile, on 11/3/2020, the petitioner had occasion to visit the State Council Office at Thiruvananthapuram and was surprised to know that the process of election had commenced, the draft voters list had been finalised and 11/3/2020 was the last date for submission of nominations. Then and there the petitioner submitted a complaint to the Governor of Kerala, the Patron of the Council and thereafter filed the writ petition. 6. It is contended that the requirement of Clause 47(2) is to inform the members twenty one days before the date of election and not to send a copy of the election notification exactly twenty one days before the date of election. The dictionary meaning of the word 'inform' is to make the person informed conversant about certain facts **W.P.(C) No. 8274 of 2020** 11 or details. Therefore, the life members ought to have been made conversant about the process of election twenty days prior to the date of election. 7. The Senior Counsel took strong exception to the vague and evasive manner in which the Returning Officer’s counter affidavit is couched. It is submitted that even in the further affidavit filed as per the directions of this court the Returning Officer refused to divulge the details sought for. It is pointed out that, except vaguely stating that the election notification and draft voters lists were published at the District Centres on 27/2/2020, absolutely no material is placed before this court to prove that crucial aspect. Even according to the Returning Officer, the election notification was sent to the life members through certificate of posting only on 7/3/2020. The Returning Officer's stand, as reflected through the counter affidavit, is that her duty was to only to send the election notification through post and she need not bother about the date on which the notifications were received by the life members. It is contended that, even the elected members or the Council has not been able to controvert the petitioner's allegation that the election notification and preliminary voters list were not published at the District Offices and the details regarding election was not informed to the members within the time stipulated. As such, this court is bound to interfere and **W.P.(C) No. 8274 of 2020** 12 correct the illegality. 8. Adv. P.G.Pramod, learned Government Pleader appearing for the Returning Officer, raised a preliminary objection regarding the maintainability of the suit. It is contended the Council being a Society registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, a writ petition challenging election of its office bearers is not maintainable and the petitioner's remedy is to file a civil suit, especially in view of the disputed questions of fact involved. The petitioner _locus standi_ to file the writ petition is challenged on the premise that he is not an aggrieved person. It is submitted that admittedly the petitioner had visited the State Council Office on 11/3/2020, the last date for submitting nominations. Being so if the petitioner was desirous of contesting the election, he could have submitted his nomination and participated in the election. Instead, the petitioner chose to upset the process of election by filing this writ petition. No interference is warranted at the instance of such a person, particularly when, from among more than 2000 life members, the petitioner alone has challenged the election. The fact that 107 objections were received to the draft voters list is sufficient to disprove the allegation that the draft voters list was not published in the prescribed manner. The Returning Officer having published the election notification on 27/2/2020, the requirement of **W.P.(C) No. 8274 of 2020** 13 thirty days notice under Clause 47 (C)1 stood satisfied. Thereafter, the Returning Officer had informed all members about the details of election by sending a copy of the notification under certificate of posting on 7/3/2020. The date of election being 28/3/2020, the requirement of informing the members twenty one days before the election was thus complied with. It is practically impossible for the Returning Officer to ensure that each member had received the intimation twenty one days before the date of election. Reference is made to the decision in **Kunhikrishnan v. Secretary, Nadapuram S.Co-op.Bank Ltd.** ( **1987 (1) KLT 201)** to point out the distinction between 'notice' and 'intimation'. It is contended that 'notice' connotes something more than a mere declaration or intimation and the requirement under section 47(2) being only intimation, at best, the requirement can only be treated as directory and not mandatory. Reliance is placed on the Apex Court decision **Avtar Singh Hit v. Delhi Sikh Gurdwara Management Committee and Others** ( **2006 8 SCC 487)** to contend that in the absence of exceptional or extraordinary circumstances, recourse to the extraordinary remedy under Article 226 of the Constitution is not justified, more so, when the petitioner has other efficacious remedy. The Division Bench decision in **Raghavan M.V. And Others v. Returning Officer and Others** ( **ILR 2009 Kerala 886)** is pressed into service to argue that **W.P.(C) No. 8274 of 2020** 14 the High court will be loath to entertain a writ petition when disputed questions of fact are involved. 9. Adv. Athul Shaji appearing for respondents 2 to 8 reiterated the contentions of the Government Pleader and added that his clients having been elected in accordance with the provisions of the byelaws, this court will not be justified in interfering based on the challenge raised by a disgruntled member. 10. Adv.M.U.Vijalakshmi appearing for the Council also put forth similar contentions as the Government Pleader and also submitted that, the multifarious functions undertaken by the council is essential to have an elected committee at its helm of affairs and unseating of the incumbent committee will adversely impact the activities of the Council. 11. The contention that the Child Welfare Council being a society, the writ petition filed challenging the election of its office bearers is not maintainable, cannot be countenanced since, going by the functions of the Council and its constitution, it has has all the trappings of ‘other authority’ under Article 12 of the Constitution of India. Moreover, the challenge against election is based on the alleged non compliance of the prescribed procedure by the Returning Officer. In this regard, it is to be noted that the Returning Officer is a senior **W.P.(C) No. 8274 of 2020** 15 Government Official and is appointed under a Government Order itself indicates that the Council is exercising public functions. In this context, the fact that the Returning Officer is being represented by the Government Pleader also assumes relevance. As per the bylaws, the source of funds of the Council include grants from the Government. The Chief Minister is the President and the Minister for Social Welfare the first Vice-president. Four senior most Government Officials are _ex-officio_ members. All of them have a say in the administration of the Council. Pertinently, many of the activities carried out by the Council, Ammathottil, giving orphans in adoption, conduct of care homes etc are definitely public functions. As such, merely because it is an institution registered the Travancore Cochin Literary Scientific and Charitable Societies Act, the public law remedy cannot be denied. Having carefully gone through the decisions cited by the Government Pleader, I am of the considered opinion that the dictum laid down therein does not apply to the facts of this case. As such, I have no hesitation to hold the writ petition to be maintainable. 12. The other contention is that the proper remedy is to file a suit, in view of the disputed questions of fact involved. Here the crucial question is whether any of the factual averments in the writ petition have been specifically denied by the Returning Officer. In this **W.P.(C) No. 8274 of 2020** 16 regard, it will be apposite to refer to certain portions of the counter affidavit filed by the first respondent. In answer to the allegation that the election notification and the draft voters list were not published in the District Council offices, all that is stated is that the election notification was published in the 14 District Council offices and in the office of the first Returning Officer along with voters list. In view of this assertion, the original files pertaining to the proceedings of election were called for and perused. As the records did not reveal the steps taken for publication in the manner claimed by the first respondent, the Government Pleader was directed to get specific instructions as to the manner in which the election notification and draft voters list were sent and published at the 14 District Centres. Thereafter, the first respondent filed an affidavit dated 2/8/2022 stating as under ; “Since transferred out from the post of Director of the Women and Child Development I have no direct access to the records kept in the offices of the Kerala State Child Welfare Council or to the records kept in the Directorate of Women and Child Development. However, I am sure that arrangements were made to publish the notification in the notice board of the office of the WCD Directorate, Kerala State Child Welfare Council and the 14 district offices of the Council and the publication in the **W.P.(C) No. 8274 of 2020** 17 Directorate was made in my presence.” 13. As this court was not satisfied with the evasive statements in the affidavit, the first respondent was directed to state the manner in which the election was conducted in clear terms. Thereafter, when the writ petition was taken up for consideration on 12/8/2022, the Government Pleader submitted on instructions that the first respondent is not in possession of any material other than what is pointed out in the earlier affidavit. The first respondent did not even attempt to ascertain the details sought by this Court. As such, this court can only infer that the election notification and draft voters list were not sent to or published, in time, in the 14 District Centres. 14. As regards the petitioner's averment that the procedure mandated under Clause 47(2) of the by-laws was not complied with by informing the petitioners about the details of election 21 days prior to the election date, the answer is that the notification has been sent to all life members by registered post on 7/3/2020. It is also stated that, as to what actually happened to the posted articles after posting is beyond the control of the respondent. In this regard it may be pertinent to note the statement submitted on behalf of the Superintendent of Post Offices, Thiruvananthapuram.Therein, it is clearly stated that the posted articles were booked on 7/3/2020. The **W.P.(C) No. 8274 of 2020** 18 petitioner has produced Exts.P5 to P8 postal covers, a perusal of which shows that the postal articles sent by the Returning Officer was received by at least some of the life members after 11/3/2020, the last date for submission of nomination. In this context, I find merit in the argument of the Senior Counsel that, the requirement under Clause 47(2) is not merely of sending the intimation 21 days in advance, but of ensuring that the election details are informed to the life members, prior to twenty one days of the election. 15. The Returning Officer having failed to comply with the above mandatory requirements, the members were denied the opportunity to file objections to the draft voters list and to file nominations for contesting the election. As a result, no candidate, other than respondents 2 to 8, could submit nominations. In such circumstances, the unopposed election of respondents 2 to 8 cannot be held to be a free and fair election. When a patently illegal election, in complete derogation of the democratic principles, is brought to the notice of this court, it is impossible to turn a blind eye towards the illegality, especially in view of the multifarious activities undertaken by the Council for the betterment of the life and living conditions of orphaned and destitute children. The administration of such an organisation should definitely be in the hands of the best among its members. As **W.P.(C) No. 8274 of 2020** 19 such an opportunity was denied to the members in the election under challenge, the same is liable to be set aside. The fact that the petitioner is the only person who raised the objection or that having reached the State Council office on 11/3/2020, he could have submitted the nomination, are not sufficient to dissuade this court from exercising the extraordinary jurisdiction under Article 226. 16. For the aforementioned reasons, the election to the Kerala State Council for Child Welfare conducted pursuant to Ext.P3 election notification dated 27/2/2020 is declared illegal and the declaration of results as per Ext.P10 is set aside. It is for the Secretary, Department of Social Welfare to appoint a Government official as a Returning Officer and conduct election of office bearers and executive committee members of the Council at the earliest and at any rate within three months. Till such time, the Secretary, Social Welfare Department, shall, in consultation with the other _ex offico_ members of the Council, appoint a suitable officer in the Government to adminster the affairs of the Council. Sd/- ## **V.G.ARUN, JUDGE.** dpk **W.P.(C) No. 8274 of 2020** 20 ## **APPENDIX OF WP(C) 8274/2020** |PETITIONER EXHIBITS|| |---|---| |EXHIBIT P1|TRUE COPY OF THE IDENTITY CARD ISSUED BY| ||THE KERALA STATE COUNCIL FOR CHILD WELFARE| ||TO THE PETITIONER DATED 24.11.1993.| |EXHIBIT P2|TRUE COPY OF THE BYELAWS OF KERALA STATE| ||COUNCIL FOR CHILD WELFARE DATED NIL.| |EXHIBIT P3|TRUE COPY OF THE NOTIFICATION| ||NO.WCD/D2/337388/19 DATED 27.02.2020 ISSUED| ||BY THE 1ST RESPONDENT.| |EXHIBIT P4|TRUE COPY OF THE COMPLAINT NO.CWPC/3/2020| ||DATED 11.03.2020 SUBMITTED BY THE| ||PETITIONER BEFORE THE GOVERNOR OF KERALA.| |EXHIBIT P5|TRUE COPY OF THE POSTAL COVER DESPATCHED| ||FROM THE OFFICE OF THE RETURNING OFFICER| ||CONTAINING THE SEAL AND ADDRESS.| |EXHIBIT P6|TRUE COPY OF THE POSTAL COVER DESPATCHED| ||FROM THE OFFICE OF THE RETURNING OFFICER| ||CONTAINING THE DATE, SEAL AND ADDRESS DATED| ||12.03.2020.| |EXHIBIT P7|TRUE COPY OF THE POSTAL COVER DESPATCHED| ||FROM THE OFFICE OF THE RETURNING OFFICER| ||CONTAINING THE DATE, SEAL AND ADDRESS DATED| ||12.03.2020.| |EXHIBIT P8|TRUE COPY OF THE POSTAL COVER DESPATCHED| ||FROM THE OFFICE OF THE RETURNING OFFICER| ||CONTAINING THE DATE, SEAL AND ADDRESS DATED| ||13.03.2020.| |Exhibit P9|TRUE COPY OF THE COMMUNICATION NO.WCD/D2-| ||20776/2021 DATED 17.12.2021 ISSUED BY THE| ||DIRECTOR OF CHILD WELFARE.| |RESPONDENT ANNEXURES|| |Annexure R10(b)|Copy of Annexure 'A' of Postal Manual Vol V| 21 ## **W.P.(C) No. 8274 of 2020** Annexure R10(a) copy of track report of one article (RL195893785IN) booked at Business Post Centre, Thycaud on 07.03.2020 ANNEX.R-9(A): COPY OF THE RECEIPT ISSUED BY THE POSTAL DEPARTMENT.