State of Kerala & Others v. Bindu Bhaskar & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 1ST FEBRUARY 2010 / 12TH MAGHA 1931 WA.No. 168 of 2009() -------------------AGAINST THE JUDGEMENT IN WPC.14914/2007 Dated 08/01/2009 .................... APPELLANTS/RESPONDENTS 1 TO 3: - -------------- 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVT. SOCIAL WELFARE (C), DEPT. SECRETARIAT, THIRUVNANTHAPURAM. 2. THE KERALA STATE SOCIAL WELFARE BOARD, REP. BY ITS SECRETARY, SASTHAMANGALAM, THIRUVANANTHAPURAM. 3. THE CHAIRPERSON, KERALA STATE SOCIAL WELFARE BOARD, SASTHAMANGALAM, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.NANDAKUMAR. P. RESPONDENT(S)/PETITIONERS & 4TH RESPONDENT:: --------------- 1. BINDU BHASKAR, U.D. CLERK, (UNDER ORDERS OF TERMINATION OF SERVICE), KERALA STATE SOCIAL WELFARE BOARD, SASTHAMANGALAM, THIRUVANANTHAPURAM, RESIDING AT MALATHI NIVAS, KALACHANAZHIKOM, CHIRAYINKEEZ PO THIRUVANANTHAPURAM. 2. S. JAYASREE , U.D. CLERK, (UNDER ORDERS OF TERMINATION OF SERVICE), KERALA STATE SOCIAL WELFARE BOARD, SASTHAMANGALAM, THIRUVANANTHAPURAM, RES. AT KRISHNALAYAM TC NO. 19/1083, (1) THERIVILA, THAMALAM, POOJAPPURA P.O., THIRUVANANTHAPURAM. 3. BEENA JACOB, U.D. CLERK, (UNDER ORDERS OF TERMINATION OF SERVICE), KERALA STATE SOCIAL WELFARE BOARD, SASTHAMANGALAM, THIRUVANANTHAPURAM, RES. AT BEENA NIVAS T.C. 5/1816, OOLAMPARA JUNCTION, PEROORKADA P.O., THIRUVANANTHAPURAM. WA.No. 168 of 2009() 2 4. J. PRAKASHKUMAR, DRIVER (UNDER ORDERS OF TERMINATION OF SERVICE), KERALA STATE SOCIAL WELFARE BOARD, SASTHAMANGALAM, THIRUVANANTHAPURAM, RES. AT PRAKASH BHAVAN, PUNAKKODE, MANALUVILA, MARAYAMUTTOM P.O., NEYYATTINKARA,THIRUVANANTHAPURM 5. C.P. MUHAMMED, PEON, KERALA STATE SOCIAL WELFARE BOARD, SASTHAMANGA, THIRUVANANTHAPURAM RES AT CHENTHARA HOUSE, PERUMBAVOOR P.O., ERNAKULAM DISTRICT. 6. THE CENTRAL SOCIAL WELFARE BOARD , REP. BY ITS EXECUTIVE DIRECTOR, SAMAJ KALYAN BHAVAN, B-12, UITAB INDUSTRIAL AREA, NEW DELHI 110 016. ADV. SRI.THOMAS J.ANAKKALUNKAL,CGC FOR R6 SRI.K.R.B.KAIMAL, SENIOR ADVOCATE FOR R1 TO R5 SRI.B.UNNIKRISHNA KAIMAL FOR R1-5 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ.** ---------------------------------------W.A.No.168 of 2009 ---------------------------------------Dated 1[st] February, 2010 ## **JUDGMENT** ## _**Balakrishnan Nair, J.**_ The appellants were respondents 1 to 3 in the Writ Petition. Respondents 1 to 5 herein were the writ petitioners. The brief facts of the case are the following: 2. Respondents 1 to 3 were Upper Division Clerks and the fourth respondent was a Driver, directly recruited by the second appellant Board. The fifth respondent was a Peon, who was appointed in a resignation vacancy. The Peon, who resigned, was appointed along with respondents 1 to 4. 3. The sixth respondent is a Board, stated to be functioning under the control of the Union of India. The second appellant functions as the State unit of the said Central Board. Ext.P1 are the rules governing the composition and functioning of the State Welfare Boards, like the second appellant. The appointments to various posts, which are sanctioned by the Central Board, can be made by the State Board. The State Board is authorised to order promotions and also to take disciplinary proceedings against the staff, subject to the rules of the State Government concerned. The expenditure incurred for the W.A.No.168/2009 2 establishment of the office of the State Board will be equally shared by the Central Board and the State Government concerned. As evident from Ext.P2 dated 25.2.2005, the Central Board approved the creation of certain posts, which included three posts of Upper Division Clerk, two posts of Driver and two posts of Sweeper under the State Board. As evident from Ext.P3 dated 03.01.2003, the State Government approved the amendments to the prescription of qualifications and method of appointment to the posts under the second appellant. As per Ext.P3, the qualifications prescribed for the post of Upper Division Clerk are Degree with pass in Account Test (Lower) and knowledge in computer operation. Lower Division Clerks with five years' experience and who passed the Account Test or equivalent, were eligible for promotion. The second appellant addressed Ext.P4 communication dated 21.5.2005 to the Employment Exchange to sponsor candidates for the posts of Lower Division Clerk/Typist, Upper Division Clerk and Driver. There was no response from the Employment Exchange. So, reminders were sent. One of them is Ext.P5 dated 17.6.2005. Since the efforts to make recruitment through the Employment Exchange did not yield any results, the Chairperson of the second appellant moved the Central Board by Ext.P6 communication dated 17.6.2005, seeking permission to make direct recruitment after advertising the posts in the dailies. The said request of the Chairperson was allowed by the W.A.No.168/2009 3 Central Board by Ext.P7 communication dated 12.7.2005, subject to the stipulations mentioned therein. Thereafter, the second appellant published Ext.P8 notification in Mathrubhumi daily, Thiruvananthapuram edition dated 10.8.2005, inviting applications for the posts of Statistical Assistant, Upper Division Clerk, Driver and Peon. By Ext.P9, the second appellant moved the State Government to nominate a representative of the Social Welfare Department to be in the Selection Committee, going to be constituted, to make selection for direct recruitment of the staff. Pursuant to that request, by Ext.P10 dated 15.10.2005, the State Government nominated Smt.Baby Raman, Additional Secretary to Government, Social Welfare Department, to be the representative of the Social Welfare Department in the Selection Committee. The second appellant completed the selection process and appointed respondents 1 to 4 in their respective posts by Exts.P11 to P14 orders dated 19.11.2005. A Peon was also appointed along with them. He resigned and in his place the fifth respondent was appointed by Ext.P15 order, on 31.1.2006. In fact, the aforementioned appointments were made by the Chairperson. 4. Later, the 2[nd] appellant Board met and ratified those appointments, as evident from Ext.P16 minutes of the meeting held on 21.2.2006. Still later, the second appellant was reconstituted and the present Board took charge. The inspection conducted by the officers W.A.No.168/2009 4 of the Social Welfare Department brought to light certain alleged irregularities in the aforementioned appointments. Based on them, the Government requested the second appellant to take necessary action to terminate the appointees from service after following the due procedure, like serving notice on them etc. Based on the above direction of the Government, respondents 1 to 5 were served with Exts.P21 to P25 notices, calling upon them to show cause why their services should not be terminated. They submitted Exts.P26 to P30 reply. Thereafter, the Chairperson of the second appellant issued Exts.P31 to P35 proceedings dated 5.5.2007, terminating the services of respondents 1 to 5 under the Board. The Chairperson took the view that the explanation offered by the said respondents was not satisfactory and therefore consequential order of termination was passed. 5. Challenging Exts.P21 to P25 show cause notices and Exts.P31 to P35 orders, the Writ Petition was filed. The writ petitioners also sought consequential relief of reinstatement in service with continuity of service and full back wages. They contended that the action in this case was taken based on the dictation of the Government. They, in their reply, explained every grounds put to them. But, without considering them, by a non-speaking order, their services were terminated. Therefore, they pray for quashing the W.A.No.168/2009 5 impugned notices/orders. 6. The Board and its Chairperson, who are appellants 2 and 3 herein, filed a detailed counter affidavit, resisting the prayers in the Writ Petition. They produced the instructions issued by the Government and pointed out the various irregularities in the selection process. They pointed out that the selection was vitiated by favouritism. For the purpose of making appointments of persons of their choice, the advertisement was issued giving the Box Number only, that is without disclosing the identity of the employer. Further, none of the Upper Division Clerks was qualified as per the notification, as they have not cleared the Account Test. There was no stipulation in the notification that relaxation would be granted to the said qualification. But, unqualified persons were selected and appointed. The learned Single Judge, after hearing both sides, took the view that the contentions presently urged in the counter affidavit were not those included in the show cause notices. It was also found that the termination orders were bald and cryptic without referring to any of the contentions taken by the incumbents, but only repeated the ritualistic words that explanation was not satisfactory and proceeded to order termination. The learned Judge relied on the decision of the Apex Court in _**Mohinder Singh Gill and another**_ v. _**The Chief Election Commissioner, New Delhi and others**_ (AIR 1978 S.C. 6 W.A.No.168/2009 851), to hold that the reasons, which do not find a place in the show cause notices or in the termination orders, cannot be pressed into service by pleading them in the affidavit filed before this Court. Ultimately, the Writ Petition was allowed, quashing the impugned notices and also the proceedings terminating respondents 1 to 5 from service. Feeling aggrieved by the said judgment, the appellants have preferred this appeal. 7. We heard Sri.P.Nandakumar, learned Government Pleader, who appeared for the appellants and also Sri.K.R.B.Kaimal, who appeared for the contesting respondents 1 to 5. The learned Government Pleader submitted that as the advertisement inviting applications was published using Box Number and without disclosing the fact that a Governmental agency is inviting the applications, only very few candidates applied. Further, advertisement was given only in one newspaper and that too in Thiruvananthapuram edition. Even in the notification, there was no stipulation regarding relaxation of any qualification. So, persons without Account Test qualification did not apply for the post of Upper Division Clerk. But, at the time of selection, relaxation was granted and appointments were made. For the post of Upper Division Clerk, there were only 18 valid applications and only five appeared for interview. So, this poor response was because of the non-disclosure of the identity of the employer. Other W.A.No.168/2009 7 alleged irregularities in the selection, which were unsuccessfully canvassed before the learned Single Judge were also placed before us. The learned senior counsel appearing for the contesting respondents on the other hand, pointed out that the grounds taken in the appeal and those in the counter affidavit were never put to the appointees while the show cause notices were served on them. They were not given a chance to place their version. Further, all the grounds taken in the show cause notices were properly explained by them, but, they were not considered objectively and no reasoned order was passed. The Chairperson acted under the dictation of the Government. Therefore, the learned Single Judge rightly interfered in the matter. 8. In answer, the learned Government Pleader submitted that in any view of the matter, the appellants should have been given liberty to proceed against the appointees in accordance with law. Further, in the place of respondents 1 to 5, after their termination, other persons had worked and therefore, the direction to pay back wages was not justified. It was a wrong exercise of discretion, it is pointed out. 9. We considered the rival submissions made at the Bar and went through the pleadings and the materials on record. The notices, Exts.P21 to P25, issued to respondents 1 to 5 are identically worded. Translation of the opening paragraph of Ext.P21 show cause W.A.No.168/2009 8 notice issued by the State Board reads as follows: _“ As the Government are convinced, in the light of the decisions of the finance committees mentioned above and the records leading to your appointment as U.D. Clerk that you have been appointed as U.D. Clerk in the Board office, during the tenure of the previous Board, in violation of the rules governing appointment to the Board irregularly, the same has to be rectified. Your appointment to the Board is irregular and against the rules for the following reasons.”_ From the above, it is clear that the Government and not the State Board, are convinced of the irregularities in the appointment and therefore, the same has to be rectified. Going by Ext.P1, we find no basis for the State Government to interfere with the administration of the Board. Ext.P1 Rules do not authorise the State Government to issue any directions. Therefore, the decision of the Government regarding the irregularities and the consequential rectification of the irregularities by the State Board, in tune with the views of the Government, are not supported by any of the provisions of Ext.P1. In other words, the Government, which have no role to play, found that the appointments were irregular and under its dictation the Board has issued Ext.P21 and similar notices. Therefore, we are of the view that those notices are illegal and ultra vires. They are the results of the Board acting under the dictation of the Government. If the notice itself is illegal, the dependent proceedings setting aside the appointments concerned are also illegal. We also notice that impugned W.A.No.168/2009 9 orders are non-speaking orders, as they do not deal with the contentions of the employees raised in their replies. The attempt to sustain the impugned orders by supplying new reasons, which do not find a place in the show cause notices, in the counter affidavit cannot be supported. We, therefore, find no reason to interfere with the quashing of the impugned orders by the learned Single judge. 10. Having regard to the facts of the case, we think, if the Board wants to take further action in the matter, the same should be permitted. Of course, the Government which pays 50% of the amount for the expenses of the Board, can bring to its notice any irregularities in its functioning. If those irregularities are found to be genuine, it is only appropriate that the Board takes action on them. So, in this case, the second appellant Board may advert to the various materials placed before it by the Government and decide for itself whether any action is warranted in this case. If it thinks fit to take further action against the appointees, it may do so, after issuing show cause notices, containing the grounds, based on which action is proposed. They shall be given an opportunity to represent and also a chance for personal hearing. The Board may thereafter, if it proceeds further, pass a speaking order dealing with the contentions of respondents 1 to 5. The respondents 1 to 5 brought to our notice that they were already reinstated in service W.A.No.168/2009 10 pursuant to the interim order passed by this Court in this Writ Appeal on 24.2.2009. 11. Regarding the direction to release full salary, we think, having regard to the facts of the case, including the fact that some persons, though they may be temporary hands or daily wage hands, have actually worked in the place of respondents 1 to 5 and received wages, appropriate modification is warranted. Normally, when the termination is found to be illegal, reinstatement with back wages can be ordered. But, there is yet another principle also, which has to be borne in mind that if there is no work, there shall be no pay. But, having regard to the circumstances of this case, we order that the entitlement of back wages will be confined to 50% of the wages payable to them for the period when respondents 1 to 5 were kept out of service. Subject to the above directions, the Writ Appeal is dismissed. **K.BALAKRISHNAN NAIR** ## **Judge** **P.N.RAVINDRAN Judge** TKS