Soman @ Ayathil Soman vs State Of Kerala

S. Manikumar, CJ.

Petitioner has sought for the following reliefs:

i. Quash Exhibit P-7 & P-10 by issuing a writ of certiorari or other appropriate writ, order or direction.

ii. Direct the 3rd respondent to finalise the investigation against the Respondent and submit final report without any further delay and within a time limit to be

prescribed by this Hon'ble Court.

iii. Direct the first respondent to take further necessary action to finalise the departmental proceedings initiated against the 5th respondent based on Exhibit P-9

report, at the earliest and within a time limit to be prescribed by this Hon'ble Court.

iv. Direct the first respondent to give sanction to 2nd respondent to conduct a detailed enquiry regarding illegal procurement of raw cashew by the 5th respondent

while he was the MD of CAPEX, on the basis of the findings in Exhibit P-9.

Before adverting to the merits of this case, at the outset, we observe that instant writ petition relates to service matter and as per the decisions of

the Hon'ble Supreme Court, public interest litigation is not maintainable in service matters.

Let us consider few decisions on this aspect:

In Girjesh Shrivastava and others v. State of Madhya Pradesh and others, reported in 2010 (10) SCC 707, appointments were challenged in PIL, on

the grounds of contravention of rules, regarding reservation of ex-servicemen. The High Court allowed the writ petition and ordered cancellation of

appointments, and dismissed the review petitions also. While considering the issue, as to whether the matter ought to have been taken, as service

dispute and not PIL, the Hon'ble Supreme Court, after considering a catena of decisions, at paragraphs 14 to 19 has held as follows:-

“14. However, the main argument by the appellants against entertaining WP (C) 1520/2001 and WP(C) 63/2002 is on the ground that a PIL in a service matter is not

maintainable. This Court is of the opinion that there is considerable merit in that contention.

It is common ground that dispute in this case is over selection and appointment which is a service matter.

In the case of Dr. Duryodhan Sahu and others vs. Jitendra Kumar Mishra and others (1998) 7 SCC 273, a three judge Bench of this Court held a PIL is not

maintainable in service matters. This Court, speaking through Srinivasan, J. explained the purpose of administrative tribunals created under Article 323-A in the

backdrop of extraordinary jurisdiction of the High Courts under Articles 226 and 227. This Court held ""if public interest litigations at the instance of strangers are

allowed to be entertained by the (Administrative) Tribunal, the very object of speedy disposal of service matters would get defeated"" (para 18). Same reasoning

applies here as a Public Interest Litigation has been filed when the entire dispute relates to selection and appointment.

In B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees' Association and others, reported in (2006) 11 SCC 731 (II), the Hon'ble

Apex Court held that in service matters only the non-appointees can assail the legality of the appointment procedure (See para 61, page 755 of the report).

This view was very strongly expressed by this Court in Dattaraj Nathuji Thaware v. State of Maharashtra and others, reported in (2005) 1 SCC 590, by pointing out

that despite the decision in Duryodhan Sahu (supra), PILs in service matters 'continue unabated'. This Court opined that High Courts should 'throw out' such

petitions in view of the decision in Duryodhan Sahu (supra) (Para 16, page 596).

Same principles have been reiterated in Ashok Kumar Pandey v. State of W.B., reported in (2004) 3 SCC 349, at page 358 (Para 16).â€​

In Soma Velandi v. Dr.Anthony Elangovan, reported in 2010 (4) CTC 8, following Gurpal Singh v. State of Punjab, reported in JT 2005 (5) SC 389,

a Hon'ble Division Bench held that PIL is not maintainable in service matters.

In  Bholanath  Mukherjee  and  others  v. Ramakrishna Mission Vivekananda Centenary College and others, reported in 2011

(5) SCC 464, before the Hon'ble Supreme Court, a direction to set aside the appointment of the 3rd respondent therein, as Principal, was sought for, as

the 3 rd respondent was junior, to them, and did not have the requisite qualification. Reiterating the legal position that PIL is not maintainable in service

matters, the Hon'ble Apex Court declined to entertain the challenge to the notices issued to Ramakrishna Mission to reconstitute the committees.

Though the present writ petition has been filed by a practicing advocate, we wish to incorporate the views of the Hon'ble Apex Court, while

entertaining Public Interest Writ Petition, in Ayaaubkhan Noorkhan Pathan v. State of Maharashtra and others, reported in 2013 (4) SCC 465. At

paragraphs 14 and 15, the Hon'ble Apex Court, observed as follows:-

“14.This Court has consistently cautioned the courts against entertaining public interest litigation filed by unscrupulous persons, as such meddlers do not

hesitate to abuse the process of the court. The right of effective access to justice, which has emerged with the new social rights regime, must be used to serve basic

human rights, which purport to guarantee legal rights and, therefore, a workable remedy within the framework of the judicial system must be provided. Whenever any

public interest is invoked, the court must examine the case to ensure that there is in fact, genuine public interest involved. The court must maintain strict vigilance to

ensure that there is no abuse of the process of court and that, “ordinarily meddlesome bystanders are not granted a Visa. Many societal pollutants create new

problems of non-redressed grievances, and the court should make an earnest endeavour to take up those cases, where the subjective purpose of the lis justifies the

need for it. (Vide: P.S.R. Sadhanantham v. Arunachalam & Anr., AIR 1980 SC 856; Dalip Singh v. State of U.P. & Ors., (2010) 2 SCC 114; State of Uttaranchal v.

Balwant Singh Chaufal & Ors., (2010) 3 SCC 402; and Amar Singh v. Union of India & Ors., (2011) 7 SCC 69).

Even as regards the filing of a Public Interest Litigation, this Court has consistently held that such a course of action is not permissible so far as service matters

are concerned. (Vide: Dr. Duryodhan Sahu & Ors. v. Jitendra Kumar Mishra & Ors., AIR 1999 SC 114; Dattaraj Natthuji Thaware v. State of Maharashtra, AIR 2005 SC

540; and Neetu v. State of Punjab & Ors., AIR 2007 SC 758)â€​

In Tmt.Sumathi and four others v. State, rep. by the Chief Secretary to the Government of Tamil Nadu, Chennai and 15 others (W.P.No.25704/2013, Decided on

13.03.2014), a Hon'ble Division Bench of this Court, held that PIL is not maintainable in service matters.

In a latest decision in Tmt.P.Lakshmi v. State, rep. by the Chief Secretary, (W.P.No.25704/2013 Decided on 13.03.2014), the Hon'ble First Bench of this Court, held

that writ petition is not maintainable in service matters.â€​

However, perusal of Exhibit P10 G.O(O)No.136/2021/ID dated 2.2.2021 shows that there were allegations against 5th respondent, the then

Managing Director, CAPEX and that pending contemplation of enquiry, he was suspended vide G.O.(Rt).No.437/2019/ID dated 29.5.2019. Vide G.O.

(Rt). No.860/2019/ID dated 3.9.2019, Joint Secretary to Finance Department, has been appointed as the investigating Officer and after investigation,

he has submitted report dated 7.1.2020. Subsequently, 5th respondent has sought for payment of subsistence allowance. Finance Department has

recommended that disciplinary action be decided by the Administrative Department, but he cannot continue as Managing Director.

The Law Department has opined that the 5th respondent has been found to be guilty of the charges, however, the enquiry proceeding is still

pending. The Law Department has recommended to give a reasonable opportunity to 5th respondent to explain on his part.

Perusal of Exhibit P10 dated 2.2.2021 shows that an opportunity of hearing was also given to the 5th respondent.

However, vide Exhibit P10 G.O(O)No.136/2021/ID dated 2.2.2021, pending disposal of the disciplinary proceedings, 5th respondent has been

reinstated as MD, CAPEX, subject to certain conditions. Paragraphs 6 and 7 of Exhibit P10 dated 2.2.2021, are reproduced:

In view of the opinion by the Finance Department that the disciplinary proceedings and punishment against Shri Rajesh can be decided by the administration

department and further opinion by the Law Department that the disciplinary proceedings against the delinquent employee shall be finalised rather than keeping him

under suspension and the nature of punishment shall be decided by the administration department, the government has examined the issue of suspension of Shri R.

Rajesh in detail.

Accordingly the suspension of Shri R Rajesh is cancelled and he is reinstated as Managing Director, Capex on condition that if it is found that the Government has

sustained loss in the subject raw cashew nut deal and if the allegations against Shri.R Rajesh on the basis of report by the Accountant General and further

investigation therein is proved, the same shall be realized from the concerned persons and appropriate criminal proceedings shall follow.

Though at the outset, we observed that a public interest litigation would not be maintainable in service matters, we wonder as to how, despite the

opinion given by the Finance Department and the Law Department, Government have issued Exhibit P10 Government Order dated 2.2.2021

reinstating Mr. R. Rajesh, in the same Department as Managing Director, CAPEX, where he was prima facie found to have indulged in irregularities

in procuring cashew at a higher rate than the procurement rate fixed by the Government of Kerala and that on the said allegation, he was also placed

under suspension.

In normal circumstances, if any enquiry into grave allegations are pending against a government servant, for which suspension is resorted and for

any reason, reinstatement has to be ordered, he would be normally placed in any insignificant place, or not the place from where he was suspended.

Quite contrary to the norms, Government of Kerala seemed to have reinstated 5th respondent in the same place, where he was alleged to have

procured cashew at a higher rate than the rate fixed the Government of Kerala.

Principal Secretary to the Government, Industries Department, is directed to explain as to what prompted him to post respondent No.5 in the same

place.

Post on 26.8.2021.