IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 29TH SEPTEMBER 2011 / 7TH ASWINA 1933 WP(C).No. 193 of 2007(W) ------------------------------- PETITIONER(S): -------------------- ANILA I., D/O. BALAKRISHNAN NAIR, CHANGAVILAYIL HOUSE, S.V.M.POST, KARUNAGAPPALLY. BY SRI.P.SANTHALINGAM, SENIOR ADVOCATE ADVS.SMT.K.USHA SRI.S.SHARAN RESPONDENT(S): --------------------- 1. THE DISTRICT COLLECTOR, KOLLAM. 2. THE AKSHAYA OFFICER, DISTRICT PROJECT OFFICER, KOLLAM. * 3. (RAMACHANDRAN), THE VICE PRESIDENT, JILLA PANCHAYAT, KOLLAM - CHAIRMAN, INTERVIEW BOARD. (DELETED) * 4. (K.SUNIL KUMAR), (DELETED) OFFICER - IN - CHARGE, KERALA STATE AUDIO VISUAL AND REPROGRAPHIC CENTRE, ANCHUKALLUMOODU, KOLLAM. ** THE NAMES OF THE 3RD AND 4TH RESPONDENTS ARE DELETED AS PER ORDER DATED 04/01/2007 IN I.A. NO.225/2007. 5. SUMA CHANDRAN, PUNNATHOTTATHUKARA, S.V.M.POST, KOZHIKODE, KARUNAGAPPALLY, KOLLAM. 6. DEPUTY SUPERINTENDENT OF POLICE, THIRUVANANTHAPURAM. 7. THE REGISTRAR, LOK AYUKTHA, THIRUVANANTHAPURAM. 8. STATE OF KERALA, REP. BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. R1-2, R6 & R8 BY GOVT. PLEADER SRI.ANTONY MUKKATH R5 BY ADV. SRI.MILLU DANDAPANI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO.193/2007 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE RELEVANT EXTRACT OF THE NORMS PREPARED BY STATE INFORMATION TECHNOLOGY MISSION. P2: COPY OF THE AKSHAYA SWR SHORT LISTED AND WAITE LISTED APPLICANTS FOR INTERVIEW. P3: COPY OF THE INSPECTION REPORT DATED 29/07/2005. P4: COPY OF THE ENQUIRY REPORT OF LOK AYUKTA SINGED BY DEPUTY SUPERINTENDENT OF POLICE. P5: COPY OF THE COMMON ORDER NO.1806/2005 DATED 09/12/2005 BEFOE THE LOK AYUKTA. P6: COPY OF THE JUDGMENT DATED IN WPC. NO.35327/2005 DATED 18/07/2006 IN THE HONOURABLE HIGH COURT OF KERALA. P7: COPY OF THE AFFIDAVIT DATED 05/08/2006 FILED BY THE PETITIONER BEFORE THE HONOURABLE LOK AYUKTA, THIRUVANANTHAPURAM. P8: COPY OF THE COMMON ORDER IN I.A. NO.507/2006 IN COMPLAINT NO.18061/05 DATED 20/12/2006 IN THE HONOURABLE LOK AYUKTA. RESPONDENT'S EXHIBITS: R5(a):COPY OF DULY FILLED APPLICATION FORM SUBMITTED BY THE 5TH RESPONDENT ON 10/06/2006. R5(b):COPY OF THE PROCEEDINGS NO.AKSHAYA/KLM/12[H]/05 DATED 27/08/2005 OF THE 1ST RESPONDENT. R5(c):COPY OF ORDER NO.AKSHAYA/KLM/12/05 DATED 28/09/2005 OF THE 1ST RESPONDENT. R5(d):COPY OF ORDER NO.AKSHAYA/KLM/21/05 DATED 14/12/2005 OF THE 1ST RESPONDENT. R5(e):COPY OF SCHEDULE C OF DESCRIPTION OF MINIMUM SPECIFICATION ISSUED BY THE 1ST RESPONDENT. R5(f):COPY OF INVOICE NOS. 1246, 1248, 1249 DATED 07/07/2005, INVOICE NOS.3484, 3490 DATED 20/12/2005 AND INVOICE NO.3506 DATED 21/12/2005 OF WINTECH SYSTEMS & SERVICES, PULLIMAN JUNCTION, KARUNAGAPPALLY, ISSUED TO THE 5TH RESPONDENT. svs ............2/-.... ...2... WPC. NO.193/2007 R5(g):PHOTOGRAPHS OF AKSHAYA E-CENTRE ERECTED BY THE 5TH RESPONDENT. R5(h):COPY OF CERTIFICATE DATED 22/12/2005 ISSUED BY THE ASSISTANT DISTRICT CO-ORDINATOR, AKSHAYA PROJECT, KOLLAM, TO THE 5TH RESPONDENT. /TRUE COPY/ P.A. TO JUDGE. svs S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.193 of 2007 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of September, 2011 J U D G M E N T This writ petition is a sequel to an earlier writ petition No.35327/2005, in which I passed Ext.P6 judgment which speaks for itself. It reads as under: “The petitioner herein is one of the three complainants in Complaint No. 1806/2005 before the Kerala Lok Ayukta. She is aggrieved by Ext.P4 order of the Lok Ayukta. The issue involved in the complaint was the validity of the selection of the 5th respondent herein for allotment of Akshaya Computer Centre at Panickerkadavu in Kollam District. According to the petitioner the petitioner was more qualified than the 5th respondent of the said allotment and the selection of 5th respondent was against the norms. The Lok Ayukta chose to get the matter enquired into along with some other complaints regarding allotment of Akshaya Centres in other parts of Kollam District and obtained a report from the Deputy Superintendent of Police, attached to the Kerala Lok Ayukta. It is purportedly based on the report of the Deputy Superintendent of Police, that the Lok Ayukta dismissed the complaint of the petitioner. The petitioner would submit that the Lok Ayukta clearly erred in rejecting the complaint of the petitioner on the basis of some observations by the Deputy Superintendent of Police, against the first complainant in complaint No. 1806/2005. The petitioner would submit that on the face of it the Lok Ayukta has either misread or wrongly understood the report of the Dy. Supdt. of Police to dismiss the claim of the petitioner. The petitioner therefore seeks quashing of Ext.P4 order of the Kerala Lok Ayukta. 2. The 5th respondent has filed a counter affidavit vehemently opposing the writ petition. According to the counsel for the 5th respondent, there is no adverse remarks against the 5th respondent in the report of the Deputy Superintendent of Police and as is discernible from the report itself, marks were awarded to the candidates by five different examiners and the 5th respondent got higher marks based on W.P.(C)No.193 of 2007 -2- her qualifications which was the basis for selection as per the notification invoking applications. The 5th respondent would specifically point out the fact that the petitioner has not chosen to implead the 5th respondent as a party to the complaint whereas she has impleaded the 5th respondent in this Writ Petition. The counsel would further submit that the Deputy Superintendent of Police had absolutely no business to consider whether the petitioner or the 5th respondent is qualified. As such, the findings entered into by him are totally uncalled for. He would further submit that the findings are against the facts available on record. 3. I have considered the rival contentions in detail. From Ext.P4 order of the Lok Ayukta I find that they were carried away by the observations against the first complainant in the report of the Deputy Superintendent of Police in arriving at the conclusions they reached. In fact they rightly noted the findings against the 1st complainant, viz. V.Thara. Thereafter it is stated as follows in Ext.P4. “Similarly the cases of Lalitha and Anila were enquired into. It was also found that the claims put forth by them were false”. A copy of the enquiry report was originally produced in an incomplete form along with writ petition as Ext.P3. Subsequently the petitioner has produced a copy of the same along with a memo. I have gone through the entire report of the Deputy Superintendent of Police. It is true that there was some adverse findings against the said Smt. V. Thara. But I do not find any adverse remarks whatsoever against the petitioner in that report. On the other hand, I do find certain adverse remarks against the 5th respondent. I particularly refer to the following passage in the said report. “On a perusal of the application form submitted by Smt. Suma Chandran it is seen that in Col.No.21 it is stated that she own a Computer Centre and in Col.No.22 (a) and (b) it is stated that status of building is OWN and year of incorporation is 1995. It is pertinent to note that her date of birth mentioned in Col.No. 16 is 19/5/1978 ie. when she started the Computer Centre ten years age (1995) she was only 17 years old. Ext.H is the copy of the application form. On questioning she admitted that she did not pass B.Com., so the qualification is only P.D.C. She studied three months course of W.P.(C)No.193 of 2007 -3- Computer application. On the other hand the 2nd rank holder Smt.Anila is a graduate and having post graduate Diploma in computer application. On further questioning 1st rank holder Smt. Suma Chandran deposed that she got married only five year back. Her husband is running a Tutorial College and he is having the experience in conducting Tutorial College only and she furnished the experience of her husband as hers. For the purpose of getting allotted the Centre she rented out a room at Panikkarkadavu and registered at Karunagappally Panchayath for the centre, only on 19/7/05, ie after furnishing the application for the Akshya Centre. When the rank list was published Smt. Anila, the 3rd complainant came to know that even though she was more qualified, she was not selected. So she filed an appeal before the Dist.Collector, Kollam. This was got enquired through W8 Sri. Sunilkumar. Sri. Sunilkumar enquired and reported the above facts. Ext.1 is the copy of the report. When questioned Sri. Sunil Kumar has stated that even though Smt. Suma Chandran claims that she is conducting a computer centre at Panikkar Kadavu since 19/7/05, he could not find the computer cnetre functioning physically. She had secured records for the purpose and somehow managed to come in the first rank. Enquiry conducted revealed that Smt. Anila the petitioner is a Degree holder and passed post graduate diploma course in computer application. Smt. Suma Chandran the first rank holder in only P.D.C and passed computer awareness course only. The first rank holder do not have previous experience. But the 2nd rank holder have 4 years experience and conducting computer centre. Even though petitioner Anila scored more marks in the primary assessment the interview Board did not consider her. Even though Smt. Anila (W3) was personally heard by the District Collector for the appeal her competency and enquiry report of W8, K. Sunil Kumar were not considered and rejected her appeal”. W.P.(C)No.193 of 2007 -4- Further, in the concluding portion of the report, it is stated as hereunder : “This is clear maladministration and favouritism. Therefore, I may suggest that a Vigilance Enquiry may be ordered regarding the allotment of Akshaya Centres at (1) Ramankulangara to Anand.T.A. (2) Panikarkadavu to Suma Chandran and (3) Altharavila Junction to Anilkumar. In order to unearth the maladministration, favouratism and corruption, if any committed, to fix up the responsible officers/persons and to take legal action against them”. Going by the above, I am satisfied that as far as the petitioner is concerned, the findings in Ext.P4 are not correct. Therefore, the Lok Ayukta should consider the matter again in the light of the above said observations in the report of the Deputy Superintendent of Police. Since the 5th respondent is not a party in the complaint, the Lok Ayukta shall issue notice to the 5th respondent also while considering the matter afresh. Accordingly, I quash ext.P4 order and direct the Lok Ayukta to consider the matter afresh after hearing the petitioner as well as the 5th respondent. The Writ Petition is disposed of as above. After remand as directed in Ext.P6 judgment, the Kerala Lok Ayukta took up the matter again and passed Ext.P8 order which reads as follows: “The issue raised in the petitions relates to the appointment of Akshaya Computer Centre for providing computer knowledge to the public. The appointment made by the selection committee which is not shown to have been actuated by malafides is the issue before us. As at present advised the challenge is in respect of the appointment of the training centers. That falls squarely within clause (d) of second Schedule to the Kerala Lok Ayukta Act 1999. Hence it is outside the jurisdiction of this forum. Consequently we refuse to make any investigation into the selection relating to the appointment of Akshaya Computer Centre. The petitions are dismissed.” W.P.(C)No.193 of 2007 -5- That order is under challenge in this writ petition. 2. I have heard both sides. 3. The Lok Ayukta had earlier considered the complaint of the petitioner as within their jurisdiction and disposed of the matter by Ext.P5 order on merits which was set aside by me earlier. Nobody has raised any contention regarding the maintainability of the complaint under the Kerala Lok Ayukta Act, 1999 and the Lok Ayukta had disposed of the complaint assuming jurisdiction by a very detailed order. As such I do not think that the Lok Ayukta could have after remand by this Court dismissed the complaint on the ground that the Lok Ayukta did not have jurisdiction to deal with the matter. Clause (d) of the Second Schedule to the Kerala Lok Ayukta Act,1999 relied upon by the Lok Ayukta reads thus: “(d) Action taken in respect of appointment, removal, pay, discipline, superannuation or other matters relating to conditions of service of public servants but, not including actions relating to claims for pension, gratuity, provident fund or to any claims which arises on retirement, removal or termination of service.” The selection and appointment of persons for running W.P.(C)No.193 of 2007 -6- Akshaya Computer Centres are not any aspect relating to appointment, removal etc. of public servants. As such the order of the Lok Ayukta is clearly unsustainable. Accordingly Ext.P8 order of the Lok Ayukta is quashed. The Lok Ayukta is directed to reconsider the complaint of the petitioner on merits in accordance with the observations in Ext.P6 judgment which has been quoted above and pass appropriate orders thereon, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. Till fresh orders are passed, the interim order passed in this writ petition would continue to be in force. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/