IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 25TH JUNE 2008 / 4TH ASHADHA 1930 WP(C).No. 13437 of 2008(Y) ---------------------------------------- PETITIONER: -------------------- D.VIJAYAKUMARI, JOINT DIRECTOR OF TREASURIES, DIRECTORATE OF TREASURIES, THIRUVANANTHAPURAM. BY ADV. SRI.M.V.BOSE SRI.VINOD MADHAVAN SMT.NISHA BOSE RESPONDENTS: ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. SHRI.E.K.PRAKASH, DIRECTOR OF TEASURIES, THIRUVANANTHAPURAM. 3. THE DIRECTOR, VIGILANCE AND ANTI-CORRUPTION BUREAU, THIRUVANANTHAPURAM. 4. SMT.J.C.LEELA., JOINT DIRECTOR OF TERASURIES, DIRECTORATE OF TREASURIES, THIRUVANANTHAPURAM. BY SPL. GOVERNMENT PLEADER SRI.,MANOJKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/06/2008 ALONGWITH WPC.NO.14673 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.13437/2008 Y APPENDIX EXT.P1: COPY OF G.O.(RT) NO.7153/06/FIN. DTD. 26/10/2006 ISSUED BY THE 1ST RESPONDENT DECLARING THE PROBATION OF THE PETITIONER. EXT.P2: COPY OF THE FINAL SENIORITY LIST OF JOINT DIRECTORS OF TREASURY IN THE KERALA TREASURY SERVICE FROM 01/01/2004 TO 31/12/2004. EXT.P3: COPY OF THE G.O.(RT) NO.3183/07/FIN. DTD. 12/04/2007. EXT.P4: COPY OF REPRESENTATION DTD. 13/07/2007 BEFORE THE CHIEF MINISTER OF KERALA FROM THE PETITIONER. EXT.P5: COPY OF G.O.(RT) NO.5532/07/FIN. DTD. 21/07/2007. EXT.P6: COPY OF THE CIRCULAR NO.10609/C1/02/VIG DTD.9/01/2003 ISSUED BY THE VIGILANCE DEPARTMENT. EXT.P7: COPY OF THE REPRESENTATION DT.D 23/01/2008 SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT. EXT.P8: COPY OF JUDGMENT DTD. 11/02/2008 IN WP(C) NO. 3852/2008. EXT.P9: COPY OF REPORT APPEARED IN MATHRUBHUMI DTD. 5/04/2008. EXT.P10: COPY OF REPORT APPEARED IN MATHRUBHUMI DTD. 14/04/2008. EXT.P11: COPY OF REPORTS DTD. 17/04/2008 APPEARED IN MATHRUBHUMI. EXT.P12: COPY OF ORDER DTD. 19/04/2008 ISSUED BY 2ND RESPONDENT. EXT.P13: COPY OF G.O.(RT) NO.111/08/VIG. DTD. 8/05/2008. EXT.P14: COPY OF ORDER DTD. 19/05/2008 G.O.(RT) NO.4490/08/FIN. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss V.GIRI, J. ------------------------- W.P.(C).No.13437 of 2008 & W.P.(C).No.14673 of 2008 ------------------------- Dated this the 25th day of June, 2008. JUDGMENT The parties in these writ petitions are common and disposal of W.P.(C).No.14673/08 would resolve the issue in W.P.(C).No.13437/08. Hence, they have been heard together and are being disposed of by this common judgment. I will refer to W.P.(C).No.14673/08, for the sake of convenience. W.P.(C).No.14673/08 2. The petitioner is a Joint Director in the Department of Treasuries. The post of Vigilance Officer in the Department is filled up, in accordance with Ext.P6 circular issued pursuant to G.O.(P) No.34/97/Vig. Dated 11.06.1997. Ext.P6 reads as follows: “Government in the G.O referred to above had issued order to set up a 'Vigilance Cell' in all departments and Public Sector Undertakings and to designate a senior officer preferably number two level in each organisation as the Vigilance Officer to head the Vigilance Cell. It was aimed at strengthening the Vigilance set up in each organisation so as to initiate the battle against corruption from within the organisation. Now it has come to the notice of Government that several departments/Public Sector Undertakings have not W.P.(C).NO.13437/08 & con.case :: 2 :: designated 'Vigilance Officer' as directed by Government. Government therefore reiterate the necessity of the matter and direct all Heads of Departments/Chief Executives of Public Sector Undertakings to designate a senior officer in their organisation as the 'Vigilance Officer' to head the Vigilance Cell as per the order in the Government order cited. The details of the officers should be reported to the Vigilance Department and the Director of Vigilance of Anti-corruption Bureau, Thiruvananthapuram. Departments under which Public Sector Undertakings are functioning may forward the list of Vigilance officers in a consolidated form.” 3. While functioning as the Joint Director, the petitioner was put in additional charge of Director. Her name was recommended by the Director to the post of Vigilance Officer. While so, by Ext.P9 order, she was relieved from the charge of Establishment Section and Vigilance Section and the 4th respondent was put in charge of the same. This was challenged by the petitioner in W.P.(C).No.13437/08. An order of stay was passed. There is a controversy as to whether the stay order was complied with by the respondents. That is the subject matter of a Contempt of Court Case and it need not be dealt with herein. 4. While so, by Ext.P12 order, the Government appointed the 4th respondent as the Vigilance Officer to head the Vigilance Cell in the Department of W.P.(C).NO.13437/08 & con.case :: 3 :: Treasuries and the same has been challenged in W.P. (C).No.14673/08. 5. Counter affidavits have been filed by respondents 1 and 2 as well as by the 4th respondent. 6. I heard learned counsel for the petitioner Sri.M.V.Bose, the learned Special Government Pleader Sri.Manoj Kumar and learned counsel for the 4th respondent Sri.V.Jayakumar. 7. Appointment to the post of Vigilance Officer in the Department of Treasuries is not comprehended by the Special Rules for the service. Admittedly, it is an ex-cadre post. The method of filling up the post of Vigilance Officer is purely governed by Ext.P6 circular and the Government Order referred to therein. The circular only says that a 'Senior Officer in the Department, preferably at the second level should be appointed as Vigilance Officer'. The post of the Joint Director is in the second level in the Department. Obviously, the petitioner was eligible to be considered. There is a dispute as to whether the 4th respondent is eligible to be considered. 8. According to the petitioner, the 4th respondent has not been confirmed in the post of Joint Director and therefore, she ought not to have W.P.(C).NO.13437/08 & con.case :: 4 :: been considered. This is one of the grounds on which the appointment of the 4th respondent is challenged. 9. Since Statutory Rules and Executive Orders do not really lay down any specific prescription as to the qualification of the Vigilance Officer or the method of appointment to the said post, one will have to see whether the Government has acted in a fair and reasonable manner in proceeding to appoint the 4th respondent. 10. Admittedly, the 4th respondent has been a Joint Director. The declaration of her probation in the post of Joint Director is not a sine qua non for considering her for the post of Vigilance Officer. No doubt, Ext.P6 circular says that 'a senior officer at the second level should normally be appointed'. But, it does not say that the Department should go by the seniority amongst the officers at the second level, while considering the question of appointment as Vigilance Officer. Therefore, it cannot be said that the Government acted illegally or even improperly in considering the 4th respondent and appointing her as Vigilance Officer. As rightly pointed out by the learned Government Pleader and Sri.V.Jayakumar, there is no infraction of any Statutory Rule, nor is there is any contravention of any rule, which has the force W.P.(C).NO.13437/08 & con.case :: 5 :: of law, involved in the appointment of the 4th respondent as Vigilance Officer. 11. Sri.Bose, learned counsel submits that the petitioner's name was originally recommended by the Director of Treasuries and apparently it was not opposed by any person in the department. She had been given charge for the post of Vigilance Officer earlier. She was relieved from the said post for extraneous reasons by the Director under Ext.P9. Ext.P9 was stayed by this court under Ext.P10. In view of the fact that the petitioner's name had been recommended, the Government should have, at least, put her on notice regarding any factor which is subsequently detected or identified as standing in the way of appointing her as Vigilance Officer, it is contended. Deferring to the request made by Sri.Bose, I had called for the records leading to Ext.P9 and I have perused the same. 12. No doubt, the petitioner's name was originally recommended and it went through the hierarchy of the officers in the Department of Home Affairs. But, ultimately, the Hon'ble Minister of Home Affairs, apparently taking note of the fact that the appointment is in the Department of Treasuries, directed that the file be sent to the Finance W.P.(C).NO.13437/08 & con.case :: 6 :: Department. This has been done. Subsequently, by letter dated 27.3.2008, the Finance Department required the Director of Treasuries to forward the names of persons other than the name already forwarded. The 4th respondent's name was then forwarded. It again went through the very same process of verification. Ultimately, Ext.P12 order was issued appointing the 4th respondent as Vigilance Officer. 13. Having gone through the files, in my view, there has been deliberation by the Director. It does not seem to be a hasty decision. The officers, who normally are involved in the decision making process, have been involved in the instant case also. The Government has obviously considered the competence of the 4th respondent and if the Government had considered the 4th respondent as better choice than the petitioner, then, in the absence of any statutory infraction, it is not possible for this court to interfere with the wisdom of the Government in taking a decision. I am unable to accept the contention of Sri.Bose, who has submitted that Ext.P12 violates Articles 14 and 16 of the Constitution of India. The petitioner has no right in terms of any statutory rules or a vested right, otherwise to be considered W.P.(C).NO.13437/08 & con.case :: 7 :: for an ex-cadre post of Vigilance Officer. Nevertheless, her name was also considered. Reasons have been given in the counter affidavits filed by the 1st respondent as to why the Government later preferred another person. I do not propose to go into the correctness of the said reasoning. In my view, the Government had considered the case in a proper manner and had ultimately decided upon and thought it fit to appoint the 4th respondent. If the Government's choice is not otherwise illegal, then it cannot be interfered with, on the ground that the Government could have displayed better wisdom. 14. I do not find any violation of any constitutional provisions, by reason of the order in question. 15. Sri.Bose then contended that hitherto, the precedent followed in the matter of appointment of Vigilance Officer was to appoint a senior most Joint Director and therefore, there must be some reason why such precedents have been ignored in this case. 16. Learned Government Pleader submitted that, at the best, it could have been a case where the senior most among the Joint Directors is not appointed. But there is no such practice, which has the force of law. Even earlier, other persons would W.P.(C).NO.13437/08 & con.case :: 8 :: have been considered. According to him, the petitioner is the senior most Joint Director. As noted above, Ext.P6 which, even according to the petitioner, governs the situation. It says that only a senior officer with adequate seniority at the second level be preferred. The 4th respondent satisfies these requirements. The fact that her probation in the post of Joint Director has not been declared does not disable her from being considered in terms of Ext.P6. 17. Sri.Bose then contends that the Government should have waited till the disposal of W.P.(C). NO.13437/08 before passing an order appointing a Vigilance Officer on a regular basis. 18. The order of stay passed in W.P.(C). NO.13437/08 did not stand in the way of the Government in passing an order appointing a person as Vigilance Officer on a regular basis. I do not find any impropriety on the part of the Government in passing the order. No other contentions have been urged. 19. In the result, I do not find any ground to interfere with Ext.P12. W.P.(C).NO.14673/08 is dismissed. W.P.(C).NO.13437/08 & con.case :: 9 :: W.P.(C).NO.13437/08 The issue raised for consideration in this writ petition really does not survive for consideration, in the light of the fact that the Government had, later passed an order appointing the 4th respondent as the Vigilance Officer. The writ petition is, therefore, closed as infructuous. Sd/- (V.GIRI) JUDGE sk/ //true copy//