State of Kerala represented by Secretary to Government, Social Justice Department, Government Secretariat, Thiruvananthapuram - Appellants vs. Dr. Jasmine Alex, Arthanakunnel Nirmalalayam, Vallichira P.O., Kottayam-686574, and others (Respondents)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE THE CHIEF JUSTICE MR.NAVANITI PRASAD SINGH & THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 24TH DAY OF AUGUST 2017/2ND BHADRA, 1939** **WA.No. 1756 of 2017 () IN WP(C).1994/2017 -------------------------------------------** ## **AGAINST THE JUDGMENT IN WP(C) 1994/2017 DATED 17-08-2017** **APPELLANT(S)/RESPONDENTS 1 & 2 IN WP(C): ---------------------------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, SOCIAL JUSTICE DEVELOPMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2. THE SECRETARY TO GOVERNMENT, SOCIAL JUSTICE DEPARTMENT, GOVERNMENT SECRETARIAT,** **THIRUVANANTHAPURAM-695001.** **BY ADVOCATE GENERAL SRI.C.P. SUDHAKARA PRASAD ADDL. ADVOCATE GENERAL SRI, RANJITH THAMPAN** **RESPONDENT(S)/PETITIONER & ADDL,3RD RESPONDENT IN WP(C): --------------------------------------------------------** **1. DR. JASMINE ALEX, ARTHANAKUNNEL NIRMALALAYAM, VALLICHIRA.P.O,KOTTAYAM-686574.** **2. T.B.SURESH, MEMBER(WAYANAD), KERALA STATE COMMISSION FOR PROTECTION OF CHILD RIGHTS,"SREEGANESH",T C 14/2036, VANCROSS JUNCTION, THIRUVANANTHAPURAM-695034.** **3. SREELA MENON.N,MEMBER(KOZHIKODE), KERALA STATE COMMISSION FOR PROTECTION OF CHILD RIGHTS"SREEGANESH",T C 14/2036, VANCROSS JUNCTION,THIRUVANANTHAPURAM-695034.** **4. SYAMALA DEVI, MEMBER(KOZHIKODE), KERALA STATE COMMISSION FOR PROTECTION OF CHILD RIGHTS"SREEGANESH",T C 14/2036, VANCROSS JUNCTION, THIRUVANANTHAPURAM-695034.** **WA.No. 1756 of 2017** **- 2 -** **5. M.P.ANTONY, MEMBER(KOZHIKODE), KERALA STATE COMMISSION FOR PROTECTION OF CHILD RIGHTS"SREEGANESH",T C 14/2036, VANCROSS JUNCTION, THIRUVANANTHAPURAM-695034.** **6. C.J.ANTONY, MEMBER(KOLLAM), KERALA STATE COMMISSION FOR PROTECTION OF CHILD RIGHTS"SREEGANESH",T C 14/2036, VANCROSS JUNCTION, THIRUVANANTHAPURAM-695034.** **7. SR. BIJI JOSE, MEMBER(IDUKKI), KERALA STATE COMMISSION FOR PROTECTION OF CHILD RIGHTS"SREEGANESH",T C 14/2036, VANCROSS JUNCTION, THIRUVANANTHAPURAM-695034.** **R4 BY ADV. SRI.M.SASINDRAN R1 BY SRI.SANTHOSH MATHEW R BY SRI.ARUN THOMAS** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 24-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sou.** ## **Navaniti Prasad Singh, CJ & Raja Vijayaraghavan V, J** -------------------------------------------------------------- W.A. No. 1756 of 2017 --------------------------------------------------------------Dated this the 24[th] day of August, 2017 ## J U D G M E N T ## Navaniti Prasad Singh, CJ The State of Kerala and the Secretary to the Government in the Department of Social Justice have filed this appeal being aggrieved by certain observations made by the learned Single Judge in the judgment dated 17.8.2017 passed in W.P(C). No.1994 of 2017. The first respondent in this appeal is the writ petitioner. Rest of the respondents are the respondents to the writ petition. There are other writ appeals arising from the said judgment, which have been filed or which are to be filed. But for the moment, we are not concerned, nor are we dealing with those appeals. Nothing said in this order would in any manner prejudice the contentions raised in those appeals. 2. We heard learned Advocate General in support of this appeal and Sri. Santhosh Mathew learned counsel for the writ petitioner/first respondent and with their consent we are disposing of this appeal at this stage itself. 2 _**W.A.1756/17**_ 3. As required by the Commission for Protection of Child Rights Act, 2005 ('the Act' for short), the Central Rules and the State Rules framed thereunder, the State had to constitute a State Commission for protection of child rights as contemplated under Section 17 of the Act. Section 17(2) thereof enumerates the members of the said State Commission. The constitution would be of seven persons including the Chairperson. Apart from the Chairman, who is to be a person of eminence and has done outstanding work for promoting the welfare of children, the other six members are to be persons of eminence, ability, integrity, standing and experience in various fields such as (i) education; (ii)Child health, care, welfare or child development; (iii) Juvenile justice or care of neglected or marginalised children or children with disabilities; (iv) elimination of child labour or child in distress; (v)child psychology or sociology; (vi) laws relating to children. An overall view of the provision would detail the specific qualifications of the eminent persons who have to be selected. Out of the above, two shall be women. We need not delve as to why this is essential. By this, we mean persons of eminence specialising in the fields aforesaid because they are entrusted with the duty of child care and would be dealing with rights of children. This Body, 3 _**W.A.1756/17**_ ie., the State Commission, has to be a group of persons with special knowledge as noted above and persons of eminence because they have to look after the interest of the seedlings that would grow into future generation. It is not an easy task and commoners, without being derogative, are not expected to be included in the said Commission. The legislature has carefully chosen the expressions and neither the executive nor the Courts can withdraw the vitality and life from those words. What is required of the executive and the courts is to rely upon the said guiding principles as laid down in sub section (2) of Section 17 of the Act and the Rules framed in furtherance thereof and to secure the objective sought to be achieved in matter of such selection. This is all the more necessary if we refer to Section 13 of the Act, which enumerates the functions of the Commission. This Commission had the power to make enquiries and act as a Civil Court as well, which can be seen from section 14(2) of the Act. 4. If we read section 17(2) of the Act along with Rule 3 of the State Rules being the Kerala State Commission for Protection of Child Rights Rules, 2012 which provides for eligibility, we will find that the pedestal is raised even higher. This is the guiding principle for exercise of power, which, as we 4 _**W.A.1756/17**_ have noticed, are relevant for constituting the Commission. 5. What happened in the present case is that the State Commission was to be constituted. The file was put up before the Minister in charge of Social Justice, who also happens to be the Minister for Health. It was ordered that in accordance with the Act and the Rules made thereunder, advertisements be issued for selection and appointment of the six members of the State Commission under the Act. Accordingly, Ext.P1 notification was issued on 8.11.2016. There were, in all, 103 applications. Upon scrutiny, 40 were found to be valid and complete for consideration. As six members are to be selected, 40 _prima facie was_ sufficient number, but nevertheless it appears that the Minister was of the view that the date for filing applications be extended, effectually allowing more applications. The file noting is only to extend the date and gives no reason in support thereof. Accordingly, Ext.P3 notification was issued on 10.1.2017 and further applications were received. Upon extension, 51 fresh applications were received and when they were processed, only 11 were found complete for consideration and thus the total number for consideration was 51. It is at this stage, the writ petition was filed by the writ petitioner, who herself was an applicant and 5 _**W.A.1756/17**_ who had made an application pursuant to Ext.P1. Her submission initially was that issuance of Ext.P3 was wholly without jurisdiction. An interim order was passed restraining the State from finalising the process for selection of the members pursuant to Ext.P3, which clearly meant that the applicants pursuant to Ext.P3 were not to be considered. However, it appears that out of the 51 applications, six persons were selected, out of whom, two were persons who had responded to Ext.P3. The writ petition was then amended. Ultimately, the matter was heard by the learned Single Judge. All the parties including the selected persons were heard and by the judgment aforesaid, the Court clearly held that issuance of Ext.P3 was not a correct exercise of power and discretion and therefore, selection made pursuant thereto were invalidated. Thus, Ext.P3 was set aside and the selection of respondents 3 and 5 in the Writ Petition was invalidated. The selection of the four other members was not interfered with. The writ petitioner's non-selection was also not interfered with. While doing so, in paragraph 17, 18, and 20, the learned Single Judge observed inter alia thus : “17. xxx xxx xxx If the files do not disclose any reason, the courts would only presume that the decision is not one taken bonafide in such cases. xxx xxx xxx 6 _**W.A.1756/17**_ the only inference possible is to hold that the enlargement of the time limit by the Minister was intended to appoint the additional third respondent as the Member of the Commission and the same was not an exercise of power in good faith for the purpose for which power was conferred on the Minister. 18. xxx xxx xxx In so far as it is found that Ext.P3 notification is not one issued in good faith for the purpose for which power has been conferred on the Minister, xxx xxx xxx. 20. xxx xxx xxx since it is found that the enlargement of the outer time limit prescribed for submission of the applications by virtue of Ext.P3 notification was not done bonafide, xxx xxx xxx” The learned Advocate General submits that such observations made were totally uncalled for, especially when the Minister herself was not a party and was not before the Court, they need to be expunged. Hence the appeal by the State. 6. Two preliminary questions arise. Firstly, whether the State was correct in approaching this Court in an intra court appeal and secondly, in the absence of an appeal by the Minister concerned, could any relief be granted on an application by the State. The first contention is based on two judgments of the Apex Court namely, **Shivdeo Singh and others v. State of Punjab and others** [AIR 1963 SC 1909] and **Ram Janam Singh v. State of Uttar Pradesh and another** [AIR 1994 SC 1722] wherein, inter alia the issue was with regard to right of a person against whom certain orders were passed without he being made a party to the 7 _**W.A.1756/17**_ proceedings. In both the cases, the Apex Court held that such a person had a right either to seek a review, which power inherits in all courts or appeal against the same, even though he was not a party. The next is whether, wherein such a situation a review is available, without resorting to the same, could appeal be directly entertained. 7. We have considered the matter. In our view, in the facts of this case, there being other appeals also before us, it would not be appropriate to ask the party to first seek a review and then come in appeal. The appeal is thus to be entertained. So far as second part is concerned, whether the party herself should have come in appeal or appeal by the State is by itself sufficient for the purpose of seeking expunction. This matter is settled by the decision of the Apex Court in the case of **State** ## **of Maharastra v. Public Concern for Governance Trust** **and others** [(2007) 3 SCC 587] and in particular what is stated and noted in paragraph 20 of the reports, where also, under similar manner the High Court had spoken adversely upon conduct of the then Chief Minister of Maharastra and it is the State that had filed appeal and sought expunction of the remarks as made against the Chief Minister. The similar objection was taken, which can be seen from paragraph 16 of 8 _**W.A.1756/17**_ the reports and the Court held that an application for the State could be maintained for expunging remarks as made against the Chief Minister, who was not a party to the proceedings. Thus, there is no difficulty in this Court hearing the matter in appeal filed by the State with the solitary plea of expunging the observations as indicated above. 8. Before elaborating further, we would quote what the Apex Court had observed in the last referred to judgment in paragraph 20 itself. “20. In our view, the observations and strictures made by the High Court and are extracted in paragraphs supra certainly reflects on the functioning of the office of the Chief Minister and day today discharge of the duties of the Chief Minister. As rightly pointed out by learned Solicitor General, after the endorsement 'please put up', is made the file may or may not be approved by the concerned department and it is clear that the said notations are not approval of the contents of the representation and in our view, no other meaning could be taken. The observations/strictures made and the inference drawn by the High Court from the notation please put up made by the Chief Minister are not warranted and are required to be expunged as rightly contended by learned senior counsel for the State of Maharashtra. The High Court has, in our view, erred in holding that by making a notation please put up the applicants had blessings of the then Chief Minister. In our opinion, the civil appeal at the instance of the State of Maharashtra is maintainable inasmuch as the observations and strictures made by the High Court shall affect the working and functioning of the office of the Chief Minister of the State of Maharashtra. The submission of learned senior counsel for the first respondent that the first respondent had learnt that these averments had been made on the basis of the recommendations by the Chief Minister or other high functionaries acting at his behest and that all the rules and norms had been disregarded by CIDCO as a consequence of such recommendations as absolutely no 9 _**W.A.1756/17**_ basis whatsoever. The grievances expressed against the then Chief Minister is nothing but imaginary. Except making the endorsement 'please put up' the Chief Minister has not played any other role. The observations and strictures passed by the High Court against the then Chief Minister behind his back and without calling for an explanation from him is wholly illegal, incorrect and unwarranted and that the remarks made by the High Court against the then Chief Minister was most uncharitable and not called for.” 9. This would suffice to expunge all the observations adverse to the interest of the Minister, who was not a party to the litigation. But, however, we may note the fact as argued by the first respondent to justify such observations. It was submitted that two persons, who got selected pursuant to Ext.P3 were not persons who ought to have been selected. One of them had twelve crimes registered against him, though some of them had ended in acquittal there was one conviction on plea of guilt and several crimes were still pending at different stages. 10. The learned Single Judge has proceeded on the principle of **Mohinder Singh Gill and Another v. The Chief Election Commissioner, New Delhi and Others** [(1978) 1 SCC 405] wherein, a classic exposition as made in **Commissioner of Police Bombay v. Gordhandas Bhanji** [AIR 1952 SC 16] was quoted with approval that “a public order publicly made in exercise of a statutory authority cannot be 10 _**W.A.1756/17**_ construed in the light of explanations subsequently given .....”. This principle was sought to be applied after noticing that when the Minister had ordered for a fresh advertisement, no reasons were given to support that order, but at the same time, the counter affidavit filed much later sought to support the same. This explanation was rejected holding that there being no reasons given in the order, it would be presumed to have been passed or taken without _bona fides_ . All we can say is that the principle is of a 'public order publicly made' by a statutory authority. Here, the endorsement was on a Government File. It is neither a public order publicly made nor by a statutory authority for, at that stage the Minister was not exercising statutory authority. It was a plain internal executive action. The principle does not apply nor in law is there any presumption that in the absence of reasons a presumption of act not being bona fide is there. It is nothing but a presumption unknown to law. On these grounds, we are satisfied that those observations, more so made in the absence of the parties, were not called for. 11. We may, however, observe that in the absence of those observations, the result of the writ petition does not change in any manner. Observations were thus not necessary 11 _**W.A.1756/17**_ for deciding the issue at hand. We, therefore, are constrained to delete/expunge the said observations and they shall be deemed to be not part of the records especially when they are made in the absence of the party concerned. In view of the aforesaid, the State appeal as aforesaid, which was for the limited purpose is to be allowed and the judgment of the learned Single Judge, to the extent above, will stand modified. Sd/- Navaniti Prasad Singh, Chief Justice Sd/- Raja Vijayaraghavan V, Judge sou.25/8. // True copy // P.A. to Judge