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K.M. Joseph, Trivandrum and anr. Vs. State of Kerala and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKerala High Court
Decided On
Case NumberO.P. Nos. 1211 and 1792 of 1967
Judge
Reported inAIR1968Ker244; (1969)IILLJ475Ker
ActsConstitution of India - Articles 14, 16, 16(1), 162, 309, 311 and 320(3); Kerala Public Service Commission (Consultation) Regulations, 1957 - Rule 4
AppellantK.M. Joseph, Trivandrum and anr.
RespondentState of Kerala and anr.
Appellant Advocate T.C. Karunakaran,; P.K. Shamsuddin and; V.M. Kurien,
Respondent Advocate Government Pleader (for No. 1),; V. Bhaskaran Nambiar and;
DispositionPetitions allowed
Cases ReferredState. In Ram Manohar Lohia v. State of Bihar
Excerpt:
.....decision of the bombay high court in state of bombay v. in these circumstances, it is better the less is said about his alleged qualifications for the impugned appointment there is no gain-saving the fact that the first respondent was appointed principal in the government service for the sole purpose of pacifying the all kerala private college teachers' association, who had taken up the cause of the first respondent and launched a hunger strike in front of the government secretariat......sc 1293. in that case, vivavoce interviews were conducted for the purpose of recruitment to the state service, and the result of the test was duly published. but in making the appointments, a number of persons who got less marks than the others were selected. therefore, persons who got higher marks and did not get the appointment moved the supreme court for relief complaining violation of article 16(1) of the constitution. upholding their claim, the supreme court said:--'it seems surprising that government should have recommended as many as twenty-four names and the commission should have approved of all these names without a single exception even though in its own judgment some of them did not rank as high as others they had rejected. such a dealing with public appointments is likely.....
Judgment:
ORDER

M.U. Isaac, J.

1. These two Original Petitions arise out of the same facts, and they seek a common relief. The petitioner in O. P. No. 1211 is a first Grade Professor of Zoology in the University College, Trivandrum; and the petitioner in O. P. No. 1792 is a First Grade Professor of Chemistry in Maharaja's College, Ernakulam. Both of them are in the service of the State of Kerala. At the time of filing O. P. No. 1211, the petitioner in this Original Petition was the senior-most in that Grade. According to the petitioner in O. P. No. 1792, there has been a subsequent correction in seniority list of the First Grade Professors, as a result of which he became the seniormost. It is not clear whether there is a controversy between them regarding seniority. However, that question does not arise in these cases. The respondents in both the cases are the same. Arguments were advanced before me only in O. P. No. 1792 of 1967; and it was agreed at the hearing that O. P. No. 1211 can be disposed of in accordance with my judgment in the other case. I shall, therefore, be dealing with the contentions of parties in this judgment with reference to the pleadings and the documents filed in O. P. No 1792.

2. The first respondent in O. P. No. 1792 was formerly the Principal of a private college, called the Guruvayurappan College, at Calicuit. The second respondent is the State of Kerala. By an order of the Government of Kerala. Ext. P-1 dated 10-1-1967, the first respondent was appointed as Principal of the Government College, Calicut, on contract basis for a period of three years from the date of his joining duty. O. P. No. 1211 was filed on 24-4-1967 to quash the said order; and the petitioner in that case obtained from this Court on25-4-1967 an interim order, staying the operation of the said order. Hence Ext. P-1 could not be Implemented, in the meanwhile, a vacancy arose in the Principal's post in the Government College. Kasaragod. The first respondent was, therefore, appointed by the Government to that post, by an order Ext- P-2 dated 8-6-1967. This was also on contract basis; and Ext. C-1 dated 12-6-1967 is a copy of the agreement executed between the respondents, and containing the terms and conditions of the appointment.

By an order Ext. P-3 D/- 20-3-1967, the Government of Kerala have in consultation with the Public Service Commission, prescribed the qualifications for, and the method of recruitment to, the post of Principals in Government Colleges. The post is admittedly a selection post; but the appointment is made by promotion from among 1st Grade Professors, having the prescribed qualifications. The petitioners are the senior-most among the professors in the First Grade; and both of them have the requisite Qualifications. The petitioner in O. P. No. 1792 has also acted as Principal of the Maharaja's College, Ernakulam on an earlier occasion. It is, therefore, claimed by them that both of them have the right to be considered for appointment as Principal, and that one or the other of them would have been appointed as Principal, if the first respondent was not appointed as stated above, when a vacancy arose in that post. The petitioners contend that the appointment of the first respondent as per Exts. P-l and P-2 is null and void on the ground (1) it is violative of Article 16(1) of the Constitution, and (ii) it is a mala fide exercise of executive power of the Government. Accordingly, they have filed these Original Petitions to quash the appointment of the first respondent as College Principal in the service of the Government.

(3) Article 16(1) reads:

'16. Equality of opportunity in matters of Public employment (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State'.

The scope and ambit of the fundamental right guaranteed by this Article have been well settled by a series of decisions of the Supreme Court. In General Manager, Southern Railway v. Rangachari, AIR 1962 SC 36 the Supreme Court said:

'... matters relating to employment cannot be confined only to the initial matters prior to the act of employment. The narrow construction would confine the application of Article 16(1)) to the initial employment and nothing else; but that clearly is only one of the matters relating to employment. The other matters relating to employment would inevitably be the provision as to the salary and periodical increments therein, terms as to leave, as to gratuity, as to pension and as to the age of superannuation. These are all matters relating to employment and they are, and must be deemed to be Included in the expression 'matters relating to employment' in Article 16(1)'.

The Court also said:

'This equality of opportunity need not be confused with absolute equality as such. What is guaranteed is the equality of opportunity and nothing more. Article 16 (1) or (2) does not prohibit the prescription of reasonable rules for selection to any employment or appointment to any office, any provision as to the qualifications for the employment or the appointment to office reasonably fixed and applicable to all citizens would certainly be consistent with the doctrine of the equality of opportunity; but in regard to employment, like other terms and conditions associated with and incidental to it, the promotion to a selection post is also included in the matters relating to employment, and even in regard to such a promotion to a selection post all that Article 16(1) guarantees is equality of opportunity to all citizens who enter service'.

The above passages were quoted with approval by the Supreme Court in Jaisinghani v. Union of India, AIR 1967 SC 1427 and it stated:

'Under Article 16 of the Constitution, there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State or to promotion from one office to a higher office thereunder. Article 16 of the Constitution is only an incident of the application of the concept of equality enshrined in Article 14, thereof. It gives effect to the doctrine of equality in the matter of appointment and promotion'.

4. Reference may also be made to three more decisions of the Supreme Court, which would illustrate the amplitude and application of the fundamental right guaranteed under Article 16(1) of the Constitution. Krishan Chander Nayer v. Chairman, Central Tractor Organisation, AIR 1962 SC 602, is a case, where the Government after terminating the service of a temporary servant, issued an administrative instruction banning his future employment. As a result of this, he was not considered for appointment in Government service, even though he made several applications for the same. Finally, he moved the Supreme Court under Article 32 of the Constitution to remove this ban against his entry into Government service, on the ground that it was violative of his fundamental right under Article 16(1) of the Constitution. After holding that the ban was imposed on the petitioner, without giving him an opportunity to show cause against the said action, and that it had no relation to his suitability for appointment under the Government, the Court said: --

'It is clear, therefore, that the petitioner has been deprived of his constitutional rightof equality of opportunity in matters of employment or appointment to any office under the State, contained in Article 16(1) of the Constitution. So long as the ban subsists, any application made by the petitioner for employment under the State is bound to be treated as waste-paper. The fundamental right guaranteed by the Constitution is not only to make an application for a post under the Government but the further right to be considered on merits for the post for which an application has been made. Of course, the right does not extend to being actually appointed to the post for which an application may have been made. The 'ban' complained of apparently is against his being considered on merits. It is a ban which deprives him of that guaranteed right. The inference is clear that the petitioner has not been fairly treated.'

5. In the High Court of Calcutta v. Amal Kumar Roy, AIR 1962 SC 1704, dealing with a complaint of violation of Articles 14 and 16(1) of the Constitution, the Supreme Court said:--

'It is difficult to see how either of these Articles can be pressed in aid of the plaintiff's case. The plaintiff's case was considered along with that of the others, and the High Court, after a consideration of the relative fitness of the Munsiffs chose to place a number of them on the panel for appointment as Subordinate Judges, as and when vacancies occurred. He had, therefore, along with others, equal opportunity. But equal opportunity does not mean getting the particular post for which a number of persons may have been considered. So long as the plaintiff along with others under consideration, had been given his chance, it cannot be said that he had no equal opportunity along with others, who have been selected in preference to him. Where the number of posts to be filled is less than the number of persons under consideration for these posts it would be a case of many being called and few being chosen. The fact that the High Court made its choice in a particular way cannot be said to amount to discrimination against the plaintiff.'

Lastly, reference may be made to the decision in Channabasavaih v. State of Mysore, AIR 1965 SC 1293. In that case, vivavoce interviews were conducted for the purpose of recruitment to the State service, and the result of the test was duly published. But in making the appointments, a number of persons who got less marks than the others were selected. Therefore, persons who got higher marks and did not get the appointment moved the Supreme Court for relief complaining violation of Article 16(1) of the Constitution. Upholding their claim, the Supreme Court said:--

'It seems surprising that Government should have recommended as many as twenty-four names and the Commission should have approved of all these names without a single exception even though in its own judgment some of them did not rank as high as others they had rejected. Such a dealing with public appointments is likely to create a feeling of distrust in the working of the Public Service Commission which is intended to be fair and impartial and to do its work free from any influence from any quarter.'

6. There can be little doubt on the above authorities that the petitioners are entitled for being considered for the appointment to the post of Principal in accordance with the rules laid down by the Government as per Ext. P-3. But it was contended on behalf of the State that the rule contained in Ext. P-3 applies only to an appointment made by promotion, that the first respondent's appointment was on contract basis and that to such an appointment Ext. P-3 does not apply. It was also contended that the Government has the right to appoint any persons whom it likes to any post in Government service. I find myself unable to accept the above contentions. The State is a creature of the Constitution, which has vested large powers in the State. At the same time, these powers are subject to limitations and regulations. It may look paradoxical that, in matters relating to employment of persons in the service of the State, it has not got as much freedom or right as a private citizen has. Yet it is the actual position. The State's powers are subject to Articles 14, 16, 311 and other relevant provisions contained in the Constitution. The right of a State to make appointments to its service is not arbitrary, as has been contended for in this case. Dealing with such a contention, the Supreme Court in AIR 1967 SC 1427:

'In this context it is important to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is impredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law.'

In the above case, the petitioner challenged the constitutional validity of what was described as the seniority rule in regard to Income-Tax Service, Class I, Grade II and the recruitment to that service as violative of Articles 14 and 16(1) of the Constitution. The Union Government had issued an order, fixing the quota for appointment by direct recruitment and by promotion. However, appointments were made in some years without observing the quota.One of the contentions raised in that case was that this was violative of Article 16(1) of the Constitution. The Solicitor-General on behalf of the Union of India contended that the quota rule was merely an administrative direction, and that a breach of it was not justiciable. The Supreme Court rejected this contention, and stated that, having fixed the quota, there was no discretion left to the Government to alter it according to the exigencies of the situation or to deviate from the quota in any particular year at its own will and pleasure. The Union Government was, therefore, directed to adjust the seniority of the petitioners according to the quota rule. The observations extracted above appear in this context.

7. Ext. P-3 is the rule made by the Government prescribing the qualifications for and the method of appointment to the posts of Principals, Professors Grade I and II in the Arts Science and Training Colleges under the Department of Collegiate Education. It is well settled on the authority of the decision of the Supreme Court in Nagarajan v. State of Mysore, AIR 1966 SC 1942 that a State can act under Article 162 of the Constitution to constitute a service or make rules regarding recruitment to and conditions of, any service, without making a law under Article 309 of the Constitution or making rules under the proviso thereto. Rules made in exercise of the executive power of the Government will also be binding on the Government, until they are cancelled or altered; and any rule made by the Government in this respect must also yield to the constitutional provisions contained on the subject.

Admittedly, the Government has not made any rule for appointment by direct recruitment to any of the posts mentioned in Ext. P-3. If there is any rule, everybody who satisfies the qualifications or conditions prescribed by the said rule, must be able to apply for the post and entitled for being considered for the appointment. That is the right granted under Article 16(1) of the Constitution, Ext. P-3, according to me, contains the whole rule regarding the recruitment to posts mentionad therein. It provides only for appointment by selection from persons having the prescribed qualifications: and by implication it also excludes any appointment by direct recruitment. If this is the meaning and content of Ext. P-3, the appointment of the first respondent is a violation of the rule contained therein. On the other hand, if Ext P-3 applies only to appointment by promotion, and it does not touch upon appointment by direct recruitment as contended for on behalf if the Government, the appointment of a person of the Government's own choice, without brine guided by any known rule or principle will be a clear cast of denial of equality of opportunity for all citizens in matters relating to employment or appointment under the State, and amounts to a violation of Article 16(1) of the Constitution. In either view of the matter, the appointment of the first respondent as principal in Government service is illegal and violative of Article 16(1) of the Constitution.

8. In order to deal with the petitioner's contention that the appointment of the first respondent is vitiated by mala fides, it is necessary to state a few more facts relating to the circumstances under which he was appointed. The Board of Management of the Guruvayurappan College made a number of charges against the first respondent, while he was working as the Principal of this College, and put him under suspension pending enquiry into the said charges. This was on 4-9-1966 It gave rise to serious trouble in the College; and it was compelled to be closed. The Government intervened; and the Board of Management and the Principal entered into an agreement to have all the charges enquired into by a Special Committee, and abide by the finding of the said Committee. It was also agreed that the suspension would be cancelled, and the Principal would take leave pending the enquiry.

Accordingly, an enquiry was conducted by a Committee constituted in accordance with the above agreement. The Committee consisted of a retired District Judge, a retired Director of Public Instruction, and the then Principal of the Agricultural College, Vellayani. Ext. C-7 dated 13-2-1967 is the report of the Committee on the enquiry which it conducted. Ext. C-7 states that, out of 52 charges levelled against the Principal by the Board, only in about half a dozen cases, the findings so against the Principal apart from the observations made in a few other cases. The report also added that, though the terms of reference did not expect the Committee to make any recommendations, it was authorised to do so by Implication, and that, in view of the facts and circumstances acted in the report, the Committee was of the opinion that a censure of the Principal by the Board may be sufficient to meet the ends of justice.

This recommendation was not accepted by the Board. By proceedings, Ext. P-5 dated 12-3-1967, the Board resolved to divest the first respondent of his office as Principal, and allow him to function as Professor of English on the existing salary. The first respondent did not comply with the above resolution of the Board. Then by another resolution, Ext P-6 dated 27-3-1967, the Board of Management terminated the service of the first respondent from the College. This gave rise to greater trouble in the College. The first respondent's cause was also taken up by the All Kerala Private College Teachers' Association, who started a hunger-strike in front of the main gate of the Government Secretariat at Trivandrum. The Government again intervened, and the hunger-strike was called off with effect from l-4-1967, on the basis of certain assurances given by the Government to theCollege Teachers' Association, one among the assurances being that the first respondent would be provided elsewhere without affecting his status and emoluments. Regarding the appointment of the first respondent, the counter-affidavit filed on behalf of the Government puts the matter thus :--

'To honour this commitment, Government had appointed Sri Nambiar in one of the Colleges as Principal on contract basis without detriment to the interests of the officers in service by creating a new post of Principal on Rs. 800-1100. The first respondent had no disqualifications for appointment as Principal.'

9. Thus there is no controversy regarding the circumstances under which the first respondent was appointed Principal in Government Service, and the reasons for making the said appointment. The petitioner in O. P. No. 1792 states in his petition that the first respondent has not even got the minimum qualifications prescribed by the Government in Ext. P-3 for appointment as Principal, and that an appointment by direct recruitment can be made only in consultation with the Kerala Public Service Commission unless it be an appointment on special contract for a period not exceeding five years, and made for the purpose of securing the services of a person having special qualifications. It is, therefore, contended that the appointment of such a person, without even consulting the Public Service Commission, is mala fide. Reliance was made in this context to Clause (d) of Rule 4 of the Kerala Public Service Commission (Consultation) Regulation, 1957, which reads as follows: --

'4. It shall not be necessary for the Commission to he consulted:

x x x x (d) in regard to the making of any appointment to -

(i) any honorary post, or

(ii) any post to which appointment is made on the basis of the terms and conditions of any special contract in order to secure the services of a person having special qualifications.

Provided that in every case of appointment on contract which may involve a total period of service on contract in excess of five years the Commission shall be consulted before the contract is made or renewed.'

It is settled on the authority of the decisions of the Supreme Court in State of U. P. v. Manbodhan Lal, AIR 1957 SC 912 and U.R. Bhatt v. Union of India AIR 1962 SC 1344 that Article 320(3)(c) of the Constitution, which provides that the Public Service Commission shall be consulted on all disciplinary matters affecting a person in the Civil Service of the Government, is not mandatory, and that the non-compliance with the same does not afford a cause of action in a Civil Servant in a Court of law. The same principle must apply in respect of all matters relating to methods of recruitment to civil services and civil posts, which is provided in Sub-clause (a) of Article 320(3), as well as to matters dealt with in the| ether Sub-clauses of Article 320(3). Authority, for this proposition, if needed, is furnished by the decision of the Bombay High Court in State of Bombay v. N.T. Advani, AIR 1963 Bom 13. In that case, it was contended on behalf of the State of Bombay that the appointment of the respondent was invalid, as it was made without consulting the Public Service Commission. The contention was rejected by the High Court applying the principle of the decision in AIR 1957 SC 912. This position was not disputed by the petitioners before me. But the contention is that appointment of a person in violation of the provision contained in Article 320(3) of the Constitution is evidence of the mala fide conduct on the part of the Government in making the appointment.

10. There is a controversy whether the respondent has the requisite minimum qualifications for being appointed as Principal. The minimum qualifications are prescribed in Ext. P-3. There is no dispute that he does not possess the said qualifications. The Government's plea is that the first respondent has been exempted by the University from holding the said qualifications, that he has been a Principal of a College for a number of years, and that he 'had no disqualifications for appointment as Principal.' The Government has no pretention that the appointment was made 'in order to secure the services of a person having special qualifications' as provided in Sub-clause (ii) of Rule 4(d) of the Kerala Public Service Commission Regulation 1957, In the counter affidavit filed by the first respondent he has referred to a number of special qualifications as justifying his appointment. But they cannot be a substitute for the minimum qualification prescribed by the Government as per Ext. P-3.

The first respondent is obviously a highly controversial person. Even the special committee appointed to hold an enquiry into the charges against him held that he was guilty of at least six of the charges, and that a censure by the appointing authority would be a sufficient punishment for him. In these circumstances, it is better the less is said about his alleged qualifications for the impugned appointment There is no gain-saving the fact that the first respondent was appointed Principal in the Government service for the sole purpose of pacifying the All Kerala Private College Teachers' Association, who had taken up the cause of the first respondent and launched a hunger strike in front of the Government Secretariat. It was a price paid to the agitators to buy peace. In so doing, considerations of qualifications, interest of service, the necessity to consult the Public Service Commission under Article 320(3)(a) of the Constitution, and the fundamental right of the petitioners and persons similarly situatedunder Article 16(1) of the Constitution for being considered for the appointment were all ignored.

It has been contended on behalf of the respondents that the petitioners did not lose anything by the first respondent's appointment, because the vacancy was created by deputing a Principal from Government Service to the College from whose service the first respondent was removed by the Board of Management, and that the post to which the first respondent was appointed was one specially created by the Government for this purpose. In my opinion, this makes the position only worse. It will be an abuse of the executive power of the State, if posts are created in public service and appointments are made thereto, for achieving political objects or on considerations which are extraneous and irrelevant to the object for which the power is vested in the State. In Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740 at p. 752 the Supreme Court said:--

'The action of the authority is capable of being viewed in two ways. Where power is misused but there is good faith, the act is only ultra vires, but where the misuse of power is in bad faith, there is added to the ultra vires character of the act, another vitiating circumstance. Courts have always acted to restrain a misuse of statutory power, and the more readily when improper motives underlie it.'

On the facts of this case, I am constrained to come to the conclusion that the appointment of the first respondent as Principal in Government Service was an abuse of the executive power of the Government, and it has to be struck down as illegal and ultra vires of the power of the State.

11. In the result I allow these OriginalPetitions, and quash the orders of the Government Ext. P-1 dated 10-4-1967 appointingthe first respondent Shri N.T. MadhavanNambiar as Principal of the GovernmentCollege, Calicut, and Ext. P-2 dated 8-6-1967 appointing him as Principal of the Government College, Kasaragode, and all proceedings taken by the Government pursuantto the said orders. The State of Kerala willalso pay the costs of the petitioners in thesecases.


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