IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 19TH NOVEMBER 2008 / 28TH KARTHIKA 1930 WP(C).No. 22835 of 2008(R) PETITIONERS: 1. NITHIN NORBERT, PUTHENVEETIL HOUSE, KATTATHURUTH, VADAKKEKARA P.O., N.PARAVUR, ERNAKULAM. 2. BINU G.,MELA KULAVARTHU MOOLA, THATTINAKAM, NALANCHIRA P.O.,' THIRUVANANTHAPURAM. 3. AJAY D.N., S/O LATE P.M. NARAYANAN NAMBISAN H.NO.CP III/466,NAREEKAMVALLI P.O., MANDUR (VIA), KANNUR 4. SONA RANI A.S., APSARA, VENKAVILA, IRINCHAYAM P.O., NEDUMANGALD, THIRUVANANTHAPURAM. 5. VINOD V.,VINOD BHAVAN, C.POYIL P.O., KANNUR. BY ADV. SRI.K.GOPALAKRISHNA KURUP RESPONDENTS: 1. THE UNIVERSITY OF KERALA,REPRESENTED BY IT'S REGISTRAR, UNIVERSITY CAMPUS, PALAYAM, THIRUVANANTHAPURAM. 2. THE VICE CHANCELLOR & CHAIRMAN, SELECTION BOARD FOR RECRUITMENT OF ASSISTANT GRADE -II, UNIVERSITY CAMPUS, PALAYAM, THIRUVANANTHAPURAM. 3. KERALA LOK AYUKTA, REPRESENTED BY ITS REGISTRAR, THIRUVANANTHAPURAM. 4. SUJITH S.S.,THIRIVENI, NELLANADU, VENJARAMOODU, NEDUMANGAD, THIRUVANANTHAPURAM. 5. NISHIMOL L.I., MOHANAS, PUTHENTHOPPU P.O THIRUVANANTHAPURAM. 6. ANWAR ALI AHAMMED,ANAZ NIVAS, KIZHAKKEKKARA, MOOVATTUPUZHA P.O., ERNAKULAM DISTRICT. R1 & R2 BY STANDING COUNSEL SRI.M.RAJAGOPALAN NAIR R3 BY ADV. SRI.N.NANDAKUMARA MENON (SR.) SRI.P.K.MANOJKUMAR SMT.SUSHYA RAJAN R5 & R6 BY ADV. SRI.N.RAGHURAJ SMT.K.AMMINIKUTTY R4 BY ADV. SRI.GEORGE POONTHOTTAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 4/9/2008, THE COURT ON 19/11/2008 DELIVERED THE FOLLOWING: APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF THE NOTIFICATION PUBLISHED IN MATHRUBHUMI DAILY DATED 6.7.2008. EXT.P2 TRUE COPY OF THE PETITION FILED BY THE FOURTH RESPONDENT. EXT.P3 TRUE COPY OF THE ORDER DATED 18.7.2008 PASSED BY THE THIRD RESPONDENT IN I.A.NO.417/2008 IN COMPLAINT NO.572/2008 BY THE FOURTH RESPONDENT. EXT.P4 TRUE COPY OF THE AMENDED COMPLAINT FILED BY THE THIRD RESPONDENT. EXT.P5 TRUE COPY OF THE ORDER PASSED BY THE THIRD RESPONDENT IN I.A.NO.378/2008 AND 379/2008 IN COMPLAINT NO.572/2008. EXT.P6 TRUE COPY OF THE AFFIDAVIT SUBMITTED BY THE FIFTH RESPONDENT BEFORE THE LOK AYUKTA. EXT.P7 TRUE COPY OF THE OBJECTION FILED BY THE 2ND RESPONDENT IN THE COMPLAINT. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ---------------------------------------------------- W.P.(C) NO. 22835 OF 2008 R ------------------------------------------------------ Dated this the 19th November, 2008 JUDGMENT The questions involved in this Writ Petition are: (1) Whether the Lok Ayukta and the Upa Lok Ayukta appointed under the Kerala Lok Ayukta Act, 1999 have jurisdiction to allow amendment of a complaint or an application; and (2) Whether the Lok Ayukta and the Upa Lok Ayukta have power to invoke Rule 8 of Order I of the Code of Civil Procedure and permit a representative action being taken, empowering one or more parties in the complaint to defend the complaint in a representative capacity on behalf of others who are not parties to the proceedings. 2. The writ petitioners are not parties to the proceedings before the Lok Ayukta. Their grievance is against Exts.P3 and P5 orders passed by the Upa Lok Ayukta. As per Ext.P5 order dated 4th July, 2008, the Upa Lok Ayukta impleaded additional respondents 4 and 5 (respondents 5 and 6 in the Writ Petition) in a representative capacity representing similarly situated persons. By the same order, the Upa Lok Ayukta directed the complainant (respondent No.4 in W.P.(C) NO.22835 OF 2008 2 the Writ Petition) to make a publication to that effect in a leading Malayalam daily requesting such persons who are not made parties to “offer their comments”. It was also held in Ext.P5 that similarly placed persons can also take part in the proceedings. Ext.P3 order dated 18th July, 2008 was passed by the Upa Lok Ayukta allowing the application for amendment of the complaint. 3. In the proceedings before the Lok Ayukta, the Vice Chancellor, the Registrar and the Pro-Vice Chancellor of the University of Kerala are respondents 1 to 3. The complaint was filed alleging large scale irregularities and corrupt practices in the final selection of the candidates for the post of Assistant Grade II in the University of Kerala. It was alleged that the respondents in the complaint had indulged in unfair and corrupt practices by manipulating the marks obtained by certain candidates in the written examination to ensure that those candidates are included in the final select list. The complaint would disclose that the University of Kerala issued a notification inviting applications for the post of Assistant Grade II in March, 2005. Nearly 50,000 candidates applied and appeared for the written test conducted in July, 2005. Till September, 2007, the results were not published by the University, W.P.(C) NO.22835 OF 2008 3 though the valuation conducted by the outside agency was over by October, 2005. The results were published in September, 2007. A Selection Committee was constituted consisting of the Vice Chancellor as the Chairman and four members of the Syndicate as members. The Registrar of the University acted as the Secretary of the Selection Committee. 2114 candidates were called for interview. The interview was conducted during the period from October 2007 to February 2008. The University published a final rank list of selected candidates consisting of 1401 candidates and a supplementary list of 24 candidates. It is alleged that for including the favoured candidates in the top 160 ranks, the marks in the written examination were manipulated. The reliefs prayed for in the complaint originally were the following: 1) To direct the respondents to produce the original mark sheets of the candidates along with the answer sheets in Ext.P3 Selection List and the answer key of the question before this Hon’ble Lok Ayukta. 2) To direct the respondents to furnish the mark list of the written examination of all the candidates as forwarded by the outside agency. 3) To direct the respondent to furnish the marks of the candidates regarding the handwriting examination and interview. 4) To investigate the allegations with specific reference to the list W.P.(C) NO.22835 OF 2008 4 of 25 candidates as stated in the complaint and if found true to declare that the respondents are unfit for holding public office and thereafter to recommend the prosecution of the respondents. 4. As per Ext.P5 order dated 4.7.2008, the Upa Lok Ayukta allowed impleadment of additional respondents 4 and 5 in a representative capacity representing similarly situated persons. Respondents 4 and 5 are persons included in the final select list. Publication in a leading Malayalam daily, as stated above, was also ordered as per Ext.P5. 5. Thereafter, the complainant filed Ext.P2 application dated 14.7.2008, for amendment of the complaint, to incorporate additional averments and additional reliefs to declare that the persons whose names are found in the rank list are unfit to hold the post of Assistant Grade II in the University and to set aside the rank list. The averments sought to be incorporated include an averment that respondents 1 to 3 in the complaint abused their position as public servants to obtain favour for themselves and other persons whose names are included in the final rank list and that respondents 1 to 3 are guilty of corruption, favouritism, nepotism and lack of W.P.(C) NO.22835 OF 2008 5 integrity in their capacity as public servants. It is also alleged that respondents 1 to 3 in the complaint have committed mal- administration in preparing the rank list. The application for amendment was opposed by the respondents in the complaint. They contended that the Lok Ayukta or Upa Lok Ayukta has no jurisdiction to allow amendment of the pleadings. They also contended that there is no allegation in the complaint that the persons who were appointed as per the rank list have abused their position as public servants. The Kerala Lok Ayukta Act does not confer any power and authority to set aside the rank list or to terminate the employment of persons who were selected for appointment. Hence the prayer to incorporate the additional reliefs was opposed. It was also contended that the relief No.6 sought to be incorporated by the amendment would affect the vested rights of the appointees and such a relief cannot be incorporated without bringing in all those persons in the array of parties. 6. The Upa Lok Ayukta held in Ext.P3 order that Rule 3(d) of the Kerala Lok Ayukta (Powers of Civil Courts) Rules, 1999 empowers the Lok Ayukta and Upa Lok Ayukta to allow alteration of the complaints or the applications and this includes the power to W.P.(C) NO.22835 OF 2008 6 allow amendment of the complaint. As regards the objection against the incorporation of additional relief No.6 (to declare that the candidates in the rank list are unfit to hold the post of Assistant Grade II), the Upa Lok Ayukta held as follows: “… The question whether they can be declared unfit to hold the posts need not be considered at this stage. As per Section 14 of the Kerala Lok Ayukta Act where after investigation in the complaint the Lok Ayukta or Upa Lok Ayukta is satisfied that the complaint involving an allegation against the public servant is substantiated and that the public servant should not continue to hold the post held by him, the Lok Ayukta or Upa Lok Ayukta as the case may be shall make declaration to that effect in his report under Sub Section (3) of Section 12. If it is found that the rank list is improperly prepared and the appointments are made illegally it is immaterial whether the Lok Ayukta or Upa Lok Ayukta has the power to cancel the rank list or to terminate the employment of the selectees. According to the Standing Counsel for the University relief No.6 cannot be incorporated without bringing all appointees in the party array. There is no force in this contention also. Additional respondents 4 and 5 were impleaded as the representatives of the appointees. A paper publication was also made in Mathrubhoomi daily dated 6.7.2008 calling upon the appointees to get themselves impleaded in the proceeding, if they are interested.” 7. The additional reliefs incorporated as per Ext.P3 order allowing the amendment, are the following: 5) Declare that the respondents 1 to 3 are unfit to hold the public offices which they are now holding. W.P.(C) NO.22835 OF 2008 7 6) Declare that the candidates whose name appear in the Ext.P3 rank list are unfit to hold the post of Assistant Grade – II in the University of Kerala and the said rank list is to be set aside. 7) And allow the complainant to realize compensation from the respondents as fixed by this Hon’ble Lok Ayukta. 8. The Kerala Lok Ayukta Act, 1999 provides for appointment of Lok Ayukta and Upa Lok Ayukta under Section 3 of the Act for the purpose of conducting investigations and inquiries in accordance with the provisions of the Act. The Lok Ayukta and one of the Upa Lok Ayuktas may exercise powers in respect of matters mentioned in Section 7(1) of the Act. Section 7(2) states that subject to the provisions of the Act, an Upa Lok Ayukta may investigate any action which is taken by, or with the general or specific approval of, any public servant not being the Chief Minister or a Minister or a Member of the State Legislature or a Secretary or an office bearer of a political party at State level or an officer referred to in sub- clause (iii) of clause (d) of Section 2, in any case where a complaint involving a grievance or an allegation is made in respect of such actions or such action can be or could have been in the opinion of the Upa-Lok Ayukta, the subject of a grievance or an allegation. The expression “action”, “allegation”, “grievance” and “public W.P.(C) NO.22835 OF 2008 8 servant” are defined in clauses (a), (b), (h) and (o) of Section 2, which are extracted below for easy reference: (a) “action” means any action including administrative action taken by way of decision, recommendation or finding or in any other manner and includes willful failure or omission to act and all other expressions relating to such action shall be construed accordingly; (b) “allegation”, in relation to a public servant, means any affirmation that such public servant,-- (i) has abused his position as such public servant to obtain any gain or favour to himself or to any other person or to cause undue harm or hardship to any other person; (ii) was actuated in the discharge of his functions as such public servant by personal interest or improper or corrupt motives; or (iii) is guilty of corruption, favouritism, nepotism or lack of integrity in his capacity as such public servant. (h) “grievance” means a claim by a person that he sustained injustice or undue hardship in consequence of mal-administration; (o) “public servant” means a person who is or was at any time,-- (i) the Chief Minister; (ii) a Minister; (iii) a member of the Legislative Assembly of the State of Kerala; (iv) a Government servant; (v) the Chairman and the Vice-Chairman (by whatever name called) or a member of a local authority in W.P.(C) NO.22835 OF 2008 9 the State or a statutory body or corporation established by or under any law of the State Legislature, including a co-operative society, or a Government Company within the meaning of Section 617 of the Companies Act, 1956 (Central Act 1 of 1956) and such other Corporations or Boards, as the Government may, having regard to its financial interest, in such Corporations or Boards by notification, from time to time, specify; (vi) a member of a Committee or Board or Authority or Corporation, statutory or non-statutory, constituted by the Government of Kerala; (vii)a person in the service or pay of,-- (A) a local authority in the State; (B) a statutory Body or a Corporation (not being a local authority) established by or under a State or a Central Act, owned or controlled by the Government of Kerala and any other Board or Corporation as the Government may, having regard to its financial interest therein, specify, by notification in the Gazette from time to time; (C) a Company registered under the Companies Act, 1956 (Central Act 1 of 1956), in which not less than fifty-one percent of the paid up share capital is held by the Government of Kerala or any company which is a subsidiary of such company; (D) a society registered or deemed to have been registered under the Travancore- Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 (XII of W.P.(C) NO.22835 OF 2008 10 1955) or the Societies Registration Act, 1860 (Central Act 21 of 1860), which is subject to the control of the Government of Kerala and which is notified, in this behalf, in the Gazette; (E) a co-operative society; (F) a University ;” 9. Section 9 of the Act provides that subject to the provisions of the Act, any person may make a complaint under the Act to the Lok Ayukta or an Upa Lok Ayukta. The complaint shall be in such form and in such manner as may be prescribed. Section 9 also provides for a preliminary enquiry and for forwarding copies of the complaint to the public servant and the competent authority concerned. It also provides for affording such public servant an opportunity to offer his comments on such complaint. Sub-section (5) of Section 9 confers discretion on the Lok Ayukta or Upa Lok Ayukta to refuse to investigate or discontinue investigation of any complaint involving a grievance or an allegation, in certain circumstances mentioned therein. It is apposite to extract Section 8 of the Act, which reads as follows: “8. Matters not subject to investigation”-- (1) Except as hereinafter provided, the Lok Ayukta or an W.P.(C) NO.22835 OF 2008 11 Upa-Lok Ayukta shall not conduct any investigation under this Act, in the case of a complaint involving a grievance in respect of any action, if such action relates to any matter specified in the Second Schedule. (2) The Lok Ayukta or an Upa-Lok Ayukta shall not investigate— (a) any action in respect of which a formal and public inquiry has been ordered with the prior concurrence of the Lok Ayukta or an Upa-Lok Ayukta, as the case may be; (b) any action in respect of a matter which has been referred to inquiry under the Commissions of inquiry Act, 1952 (Central Act 60 of 1952) (c) Any complaint involving an allegation made after the expiry of five years from the date on which the action complained against is alleged to have taken place; Provided that a complaint referred to in clause (c) may be entertained by the Lok Ayukta or an Upa-Lok Ayukta, as the case may be, after the expiry of the period referred to in the said clause, if the complainant satisfies that he had sufficient cause for not making the complaint within the period specified in that clause. (3) In the case of any complaint involving a grievance, nothing in this Act shall be construed as empowering the Lok Ayukta or an Upa-Lok Ayukta to question any administrative action involving the exercise of a discretion, except where he is satisfied that the elements involved in the exercise of the discretion are absent to such an extent that the discretion can prima facie be regarded as having been improperly exercised.” W.P.(C) NO.22835 OF 2008 12 10. Section 11(2) provides that for the purpose of any investigation (including the preliminary inquiry), the Lok Ayukta or Upa-Lok Ayukta shall have all the powers of a Civil Court, while trying a suit under the Code of Civil Procedure, 1908, in respect of the matters mentioned in clauses (a) to (f). The said clauses are the following: (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of any document; (c) receiving evidence on affidavits; (d) requisitioning any public record or copy thereof from any Court or office; (e) issuing commissions for the examination of witnesses or documents; (f) such other matters as may be prescribed.” 11. Section 12 provides for the report to be made by the Lok Ayukta or Upa-Lok Ayukta. The relevant portion of Section 12 reads as follows: “12. Reports of Lok Ayukta:-- (1) If, after investigation of any action in respect of which a complaint involving grievance has been made, the Lok Ayukta or an Upa-Lok Ayukta is satisfied that such W.P.(C) NO.22835 OF 2008 13 action has resulted in injustice or undue hardship to the complainant or to any other person, the Lok Ayukta or an Upa-Lok Ayukta shall, by a report in writing, recommend to the competent authority concerned that such injustice or hardship shall be remedied or redressed in such manner and within such time, as may be specified in the report and also intimate the complainant about its having made the report. (2) The competent authority to whom a report is sent under sub –section (1) shall, within one month of the expiry of the period specified in the report, intimate or cause to be intimated, as the case may be, to the Lok Ayukta or the Upa-Lok Ayukta the action taken on the report. (3) If, after investigation of any action in respect of which a complaint involving an allegation has been made, the Lok Ayukta or an Upa-Lok Ayukta is satisfied that such allegation is substantiated, either wholly or partly, he shall, by report in writing, communicate his findings and recommendations along with the relevant documents, materials and other evidence to the competent authority and also intimate the complaint about its having made the report. (4) The competent authority shall examine the report forwarded to it under sub-section (3) and, within three months of the date of receipt of the report, intimate or cause to be intimated to the Lok Ayukta or the Upa-Lok Ayukta , as the case may be, the action taken or proposed to be taken on the basis of the report.” 12. Section 14 provides that if it is satisfied that the complaint involving an allegation against the public servant is substantiated W.P.(C) NO.22835 OF 2008 14 and that the public servant concerned should not continue to hold the post held by him, the Lok Ayukta or the Upa-Lok Ayukta, as the case may be, shall make a declaration to that effect in his report under sub-section (3) of Section 12. 13. Section 8 is to be read along with the Second Schedule to the Act. As per Section 8, a Lok Ayukta or an Upa-Lok Ayukta shall not conduct any investigation in the case of a complaint involving a grievance in respect of any action, if such action relates to any matter specified in the Second Schedule. Clause (d) of the Second Schedule is to the following effect: “(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.” Rule 3 of the Kerala Lok Ayukta (Powers of Civil Court) Rules, 1999 states that the Lok Ayukta or Upa-Lok Ayukta shall have the powers of a Civil Court in respect of the matters enumerated therein. It is relevant to quote clauses (c) to (e) of Rule 3(1): W.P.(C) NO.22835 OF 2008 15 “(c) to make, during the pendency of any complaint, any interlocutory order, as may appear to the Lok Ayukta to be just and equitable to meet the ends of justice; (d) to allow alteration of the complaints or applications; (e) to implead as parties, the legal representatives of a deceased party in any complaint pending before it, subject to the provisions of Order XXII of the Code of Civil Procedure, 1908, in so far as they are applicable;” Rule 4(3) reads as follows: “4. Powers of the Lok Ayukta or Upa-Lok ayukta to correct errors:-- …….. …… (3) The Lok Ayukta or an Upa-Lok Ayukta may, at any stage of the proceedings in a complaint either suo-motu or on application, delete the name of any party, improperly joined or, add as party any person who ought to have been joined or whose presence before the Lok Ayukta or an Upa-Lok Ayukta is felt necessary, in order to enable the Lok Ayukta or Upa-Lok Ayukta, as the case may be, in any complaint and the provisions of Rule 10 of Order I of the Code of Civil Procedure, 1908 (Central Act 5 of 1908) shall, as far as may be, apply to such deletion or addition of parties.” 14. The powers of the Lok Ayukta and Upa-Lok Ayukta enumerated in Section 11(2) of the Act and Rule 3 of the Rules, do not as such, provide for instituting a complaint in a representative W.P.(C) NO.22835 OF 2008 16 capacity, either as regards the petitioners or as regards the respondents. The Lok Ayukta or the Upa-Lok Ayukta does not have all the powers of a Civil Court while trying a suit. They have only the powers of a Civil Court as specified in the Act and Rules. Rule 8 of Order I of the Code of Civil Procedure empowers the Civil Court to grant permission to one or more of the parties, to sue or be sued or to defend the suit on behalf of or for the benefit of all the persons interested, where there are numerous persons having the same interest in one suit. The Court may also direct that one or more such persons may, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested. There is no provision in the Lok Ayukta Act or the Rules empowering the Lok Ayukta or Upa-Lok Ayukta to grant such permission or to issue a direction as is provided in clauses (a) and (b) of sub-rule (1) of Rule 8 of Order I of the Code of Civil Procedure. 15. Sri.Nandakumara Menon, learned Senior Advocate appearing for the Lok Ayukta, submitted that Rule 3(c) of the Rules contains, though does not specifically confer, the jurisdiction for the Lok Ayukta and Upa- Lok Ayukta to grant permission as provided in Order I Rule 8 of the Code of Civil Procedure. I am