IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 30TH JUNE 2009 / 9TH ASHADHA 1931 WP(C).No. 33916 of 2008(K) --------------------------------------- PETITIONER: ------------------- DR.M.K.RAMACHANDRAN NAIR, FORMER VICE CHANCELLOR, UNIVERSITY OF KERALA, AMRITHA BHAVAN, T.C. 8/708, PUTHENKADA JN., THIRUMALA P.O., THIRUVANANTHAPURAM - 695 006. BY ADVS. MR.S.V.RAJAN, MR.S.ARUN RAJ, SMT.SHIBI. K.P. RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE UNIVERSITY OF KERALA, REPRESENTED BY ITS REGISTRAR, THIRUVANANTHAPURAM. 3. SUJITH S.S., THRIVENI, NELLANADU, VENJARAMOODU, NEDUMANGADU, THIRUVANANTHAPURAM. R1 BY SR. GOVT. PLEADER MR.HOOD.T.B., R2 BY MR.M.RAJAGOPALAN NAIR, SC, KERALA UTY., R3 BY ADV. MR.GEORGE POONTHOTTAM. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/06/2009, ALONG WITH W.P.(C). NO. 32009/2008 AND CONNECTED CASES,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.33916/2008-K: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE COMPLAINT NO. 572/2008 DTD. 26/05/2008 FILED BY THE R.3. BEFORE THE KERALA LOK AYUKTA. EXT.P.2: COPY OF THE WRITTEN OBJECTION FILED BY PROF. K.A. HASHIM, REGISTRAR, UNIVERSITY OF KERALA BEFORE THE LOK AYUKTA. EXT.P.3: COPY OF THE ORDER DTD. 30/09/2008 OF THE KERALA LOK AYUKTA IN COMPLAINT NO. 572/2008. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. V.GIRI, J. ---------------------------------------- W.P.(C).Nos.33916, 32009, 32034, 35279 & 35426 of 2008, 298 of 2009 & W.P.(C).No.37082 of 2007 ---------------------------------------- Dated this the 30th day of June, 2009. JUDGMENT The challenge in these writ petitions, except the last mentioned, is against an order passed by the Kerala Upa Lok Ayukta, on a complaint filed by the 2nd respondent in W.P.(C)No.32034/08, a former member of the Senate of the Kerala University, alleging that selection to the post of Assistant Grade II in the Kerala University was vitiated by serious irregularities in the conduct of the selection and favouritism and nepotism indulged in by original respondents 1 and 2 in the matter of selecting the candidates, who were ultimately appointed. The complaint was treated as an `allegation' within the meaning of Section 2(b) of the Kerala Lok Ayukta Act {for short “the Act”}. 2. The complaint originally listed only the Vice Chancellor and the Registrar of the University as W.P.(C).No.33916 of 2008 & con. Cases. :: 2 :: respondents 1 and 2. The Pro-Vice Chancellor was impleaded suo motu by the Upa Lok Ayukta, at one point of time and two persons, petitions 1 and 2 in W.P. (C)No.298/09 were impleaded as respondents 4 and 5, in a representative capacity. The complainant was directed to take out notice of the complaint by paper publication. The 3rd respondent in W.P.(C)No.298/09, a Section Officer, working in the University got himself impleaded in the proceedings before the Upa Lok Ayukta. The University of Kerala was, at one point of time, impleaded as a respondent, but was later deleted from the party array. Four members of the Syndicate were impleaded as respondents 10 to 13, essentially on the ground that they were members of the selection committee. One of the candidates, who appeared in the selection, but who was unsuccessful and who in turn, had challenged the entire selection process conducted by the University in W.P.(C)No.(37082/07, got herself impleaded as additional 8th respondent in the W.P.(C).No.33916 of 2008 & con. Cases. :: 3 :: proceedings before the Upa Lok Ayukta. Certain among the contesting respondents filed counter affidavits at different stages of the proceedings. The maintainability of the complaint was raised as a preliminary issue by respondents 10 to 13, and it was directed to be considered by the Upa Lok Ayukta. The University had raised the question of jurisdiction before the Upa Lok Ayukta. The petitioners in W.P.(C) No.35426/08, who were not eo-nominee parties before the Upa Lok Ayukta, had approached this court earlier challenging the action taken by the Upa Lok Ayukta in impleading two among the selected candidates, petitioners 1 and 2 in W.P.(C)No.298/09, in a representative capacity competent to represent the other candidates in the proceedings before the Upa Lok Ayukta. Their challenge was, to a considerable extent, accepted by this court. The Upa Lok Ayukta proceeded to draw up a report under Section 12(3) of the Act, inter alia, recommending that appropriate W.P.(C).No.33916 of 2008 & con. Cases. :: 4 :: legal proceedings be initiated against respondents 1, 3 and additional respondents 10 to 13 as they are guilty of favouritism, nepotism and political patronage in the selection conducted to determine the suitability of the candidates as Assistant Grade II in the University. There was a further recommendation that the rank list in question and all appointments made in accordance with the rank list be set aside and the Vice Chancellor of the University should constitute a new selection board including all the members of the present selection committee and conduct a fresh test for all candidates who applied, without insisting on a fresh application. 3. The University has challenged the order passed by the Upa Lok Ayukta in W.P.(C)No.35279/08. The Vice Chancellor has challenged the same in W.P. (C)No.33916/08. The Pro-Vice Chancellor has instituted W.P.(C)No.32034/08. Persons who were impleaded in a representative capacity and the Section W.P.(C).No.33916 of 2008 & con. Cases. :: 5 :: Officer of the University has come up in W.P.(C) No.298/09. Five among the selected candidates, who are not parties before the Lok Ayukta have approached this court in W.P.(C)No.35426/08. 4. One of the candidates, who had appeared, but was not selected, as mentioned above, has comprehensively challenged the entire selection process in W.P.(C)No.37082/07. I have proceeded to consider the challenge against the order passed by the Upa Lok Ayukta and since considerable materials were placed before the Upa Lok Ayukta to demonstrate that the selection, as such, was vitiated and in effect, the upholding of the order of the Upa Lok Ayukta would satisfy the grievances projected by the petitioner in W.P.(C)No.37082/07 and further on account of the fact that petitioner therein also was a party to the proceedings before the Upa Lok Ayukta and therefore a party in the other writ petitions, all these writ petitions have been heard together. But, this judgment will W.P.(C).No.33916 of 2008 & con. Cases. :: 6 :: dispose of only those writ petitions involving a challenge against the order passed by the Upa Lok Ayukta and the judgment will only be treated as an order in W.P.(C)No.37082/07. 5. The facts as narrated by the petitioners, who have mounted the challenge against the order passed by the Upa Lok Ayukta, are similar and therefore, I will narrate the undisputed facts, as narrated by the learned counsel in all these writ petitions. I will refer to the order of the Upa Lok Ayukta, as has been marked in W.P.(C)No.32034/08, for the sake of convenience. 6. The Kerala University invited applications from eligible persons for selection to the post of Assistant Grade II as per notification dated 3.3.2005. Selection consisted of a written examination in an OMR format, an assessment of the hand writing carrying 5 marks and an interview to be conducted by a selection committee to be constituted by the University. Going W.P.(C).No.33916 of 2008 & con. Cases. :: 7 :: by the version now placed on record by the University, more than 35000 candidates had applied in response to the notification. The written examination was held on 3.7.2005. An outside agency by name M/s.Secure Print Limited, Hyderabad (hereinafter referred to as the Outside Agency) was entrusted with the task of setting question papers. Written examination was conducted for 100 marks (Later scaled down to 75, which is also a subject matter of controversy). Going by the version given by the University and which does not seem to be seriously disputed, the candidates were required to give their answers in an OMR sheet. The OMR sheet was in two parts, one of the parts contained the details of the candidate. Going by the normal procedure adopted in these cases, that part which contains the details will be torn away from the remaining part and this will be retained by the University. The answer sheet in the OMR format will then be sent to the Outside Agency. The said answer sheets are then W.P.(C).No.33916 of 2008 & con. Cases. :: 8 :: scanned and the marks obtained by individual candidates are tabulated. The OMR answer sheets were forwarded to the Outside Agency without much delay, after the conduct of the examination in the year 2005 itself. Obviously, the outside agency would have completed the evaluation of the answer sheets within a short time and it seems that the outside agency had tabulated the marks obtained by the candidates and had prepared a list of candidates along with the marks. It further seems that the soft copy of the evaluation and the results were forwarded by the outside agency to the University in the year 2005 itself. One of the areas of controversy, which was considered by the Upa Lok Ayukta was whether the OMR sheets which would have been scanned by the outside agency as such were retained by the outside agency or forwarded to the University. I should note here that the Upa Lok Ayukta has found as a fact that going by the materials on record, apart from the soft copy, giving the evaluation W.P.(C).No.33916 of 2008 & con. Cases. :: 9 :: of the marks and the marks obtained by the candidates, the OMR sheets, in 7 bundles, were forwarded to the University in the year 2005 itself. 7. There was a significant hiatus for which, no reasonable explanation is forthcoming, between the completion of the written examination and the commencement of the next step forming part of the selection process. It seems that a short list of 2114 candidates was published only on 9.7.2007 i.e. two years after the conduct of the examination and evaluation by the outside agency. These candidates were interviewed from 12.11.2007 to 29.2.2008. A provisional rank list consisting of 1412 candidates was published on 8.4.2008. The maximum marks that can be secured at the time of interview was fixed as 25. But, as stated above, the written examination was conducted with a maximum marks of 100, which was later scaled down to 75. 5 marks was set apart for the hand writing of the candidate. The hand writing of the W.P.(C).No.33916 of 2008 & con. Cases. :: 10 :: candidate was assessed at the time when they participated in the written examination and the same was assessed by a panel of persons outside the University. The marks obtained by a candidate in the written examination, interview and the hand writing were aggregated to form the basis of the result of the examination, which was published by the University. 8. The answer key as adopted in the written examination was published only on 25.5.2008 and on 26.5.2008, the instant complaint was filed by the 2nd respondent before the Lok Ayukta. The Upa Lok Ayukta considered the complaint on 2.6.2008; notice was directed to be issued. On 13.6.2008, the Upa Lok Ayukta passed an order suo motu impleading the Pro- Vice Chancellor as additional 3rd respondent. Thereafter on 4.7.2008 the Upa Lok Ayukta passed an order impleading two among the selected candidates as respondents 4 and 5 in a representative capacity. On 18.7.2008, the complainant filed an application for W.P.(C).No.33916 of 2008 & con. Cases. :: 11 :: amending the complaint and incorporating additional reliefs 4 to 6, which read as follows: (1) Declare that respondents 1 to 3 are unfit to hold the public offices, which they are now holding. (2) Declare that the candidates, whose names appear in the Ext.P3 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. (3) To allow the complainant to realise compensation from the respondents as fixed by the Hon'ble Lok Ayukta. 9. The order passed by the Upa Lok Ayukta allowing the application for amendment was challenged before this court in W.P.(C)No.22835/08. This court passed an order of stay of all further proceedings pursuant to the order, allowing the amendment and impleading additional respondents 4 and 5 in a representative capacity. W.P.(C).No.33916 of 2008 & con. Cases. :: 12 :: 10. As I indicated at the outset, the members of the selection committee had raised an objection as against the continuance of the proceedings against them on the ground that they are not 'public servants' within the meaning of Section 2(h) of the Lok Ayukta Act. Apprehending that their objections in this regard will not be considered independently by the Lok Ayukta, they had approached this court in W.P.(C) No.27469/08. By judgment dated 17.9.2008, the petitioners therein were directed to appear before the Upa Lok Ayukta and file their written objections detailing their objections as regards the jurisdiction of the Upa Lok Ayukta to the effect that they are 'public servants' and therefore, not comprehended by the provisions of the Act. It was observed that the Upa Lok Ayukta would certainly look into their objections and take a decision before proceeding further. The objections raised by the aforementioned respondents were looked into and the Upa Lok Ayukta had passed W.P.(C).No.33916 of 2008 & con. Cases. :: 13 :: an order rejecting their objections and found that they are 'public servants'. They have challenged the said order in W.P.(C)No.32009/08. 11. As I have mentioned above, petitioners 1 and 2 in W.P.(C)No.289/09, two of the selected candidates eo-nominee impleaded by the Lok Ayukta had raised a contention before the Lok Ayukta that the Lok Ayukta has no jurisdiction to implead any person in a representative capacity. It was contended that, at any rate, the Lok Ayukta had no jurisdiction to set aside a list or direct appointments already effected, to be cancelled. The Lok Ayukta had originally passed an order directing that petitioners 1 and 2 in W.P.(C) No.289/09 be treated as having been impleaded in a representative capacity and also directed a paper publication to be taken out in this regard. This order passed by the Lok Ayukta was challenged by the petitioners in W.P.(C)No.35426/08 before this court in W.P.(C)No.22835/08. They had also challenged the W.P.(C).No.33916 of 2008 & con. Cases. :: 14 :: order passed by the Lok Ayukta allowing an amendment, inter alia, incorporating a relief by way of a declaration that the select list should be set aside. This court granted a stay of further proceedings before the Lok Ayukta on the strength of such impugned orders. The said interim order has been marked as Ext.P5 in W.P.(C)No.35426/08. 12. The Lok Ayukta proceeded to consider the contentions raised by the complainant as also by the University. The contentions raised by the members of the selection committee, respondents 10 to 13 were also considered. Oral evidence was adduced before the Lok Ayukta. The Lok Ayukta passed a specific order directing the OMR sheets relating to the written test to be produced before it. Though originally the University had undertaken to produce the same, later it was specifically represented that such OMR sheets were not available. The soft copy of the results along with hard copy thereof were produced before the Lok W.P.(C).No.33916 of 2008 & con. Cases. :: 15 :: Ayukta. But the Lok Ayukta did not, on its own, go through such materials, but proceeded to enter an adverse finding against the University for non- production of the OMR sheets, in spite of specific directions. The Lok Ayukta also went into the question as to whether Clause (d) in the 2nd Schedule to the Lok Ayukta Act stood in the way of the Lok Ayukta considering the complaint, as the issue related to the appointment of certain 'public servants'. The Upa Lok Ayukta also went into the question as to whether respondents 10 to 13 were 'public servants' and if so, whether their actions can also be scrutinized and appropriate directions issued by the Lok Ayukta in this regard. The Upa Lok Ayukta also perused the records relating to the interview conducted by the members of the selection committee and drew inferences from the marks awarded in the interview and the aggregation of the marks secured by the individual candidates in the written examination, interview and hand writing test. W.P.(C).No.33916 of 2008 & con. Cases. :: 16 :: The Upa Lok Ayukta came to the conclusion that there is an unexplained failure on the part of the University in producing the OMR sheets, which, on the basis of the materials on record, according to the Upa Lok Ayukta, were despatched by the outside evaluation agency to the competent officer of the University. It was further found that there seems to have been a deliberate attempt on the part of the members of the selection committee to pull up persons, who had not fared well in the written examination to come within the zone of consideration by awarding them unreasonably high marks in the interview. Incongruities arising from the assessment of the handwriting of the individual candidates apparently for the purpose of enabling those persons to include in the zone of consideration were also found and noted by the Upa Lok Ayukta. These findings were rendered by the Upa Lok Ayukta after summoning the outside agency. But it was found by the Upa Lok Ayukta that the second W.P.(C).No.33916 of 2008 & con. Cases. :: 17 :: respondent Registrar was not a member of the Selection Committee and he was only a paid employee of the University and he was not responsible for the selection. He was, therefore, exonerated from any culpability. The Upa Lok Ayukta, thereafter, held that the entire selection as evidenced by the select list produced before it should be held to be vitiated. Direction was issued to initiate action against respondents 1 and 3 and against respondents 10 to 13. A direction was also issued to set aside the rank list and take steps to prepare a fresh select list after undertaking a procedure de novo. This has been challenged by different persons, as mentioned above. 13. As I stated at the outset the 8th respondent before the Upa Lok Ayukta, one of the candidates who had appeared in the selection had filed a written petition before this court as W.P.(C)No.37082/07 challenging the entire selection on several grounds. This includes the manner in which the written W.P.(C).No.33916 of 2008 & con. Cases. :: 18 :: examination was conducted, the constitution of the selection committee and alleged manipulations in the drawing up of final marks. I have not heard the parties finally in W.P.(C)No.37082/07, as on hearing the other writ petitions, I am satisfied that a final disposal of the said writ petition should be deferred by a certain period. I will deal with that aspect at a later stage. 14. Pleadings in these cases are, to a certain extent, repetitive and therefore, I will encapsulate the contentions taken up by the petitioners and the respondents, to understand the issues. 15. According to the petitioners: (A) The second schedule to the Lok Ayukta Act enumerates the matters in which the Lok Ayukta cannot conduct an investigation in terms Section 8(1) of the Act. This includes action taken in respect of appointment, removal, pay, discipline, superannuation or other matters and other conditions of service of 'public servants'. What is involved in the present case, it is contended, is the action taken in W.P.(C).No.33916 of 2008 & con. Cases. :: 19 :: respect of appointment of Assistant Grade II in the University. They are, therefore, exempted from an investigation under Section 8(1) of the Act. (B) Assuming that the complaint in question could have been proceeded with, the Lok Ayukta had acted without jurisdiction in directing the select list to be set aside without the selected candidates on the party array. This court had, on an earlier occasion, held that the Lok Ayukta cannot invoke the powers under Order I Rule 8 of the CPC and direct the impleadment of any person in a representative capacity. This court had, in the decision in Nithin v. University of Kerala {2008(4) KLT 839)}, which is a judgment inter parte, held that the Lok Ayukta cannot take any proceedings in a representative capacity, nor can the judgment of the Lok Ayukta bind the persons, who are not eo-nominee parties before it. If that be so, the direction now issued by the Lok Ayukta to set aside the select list is one rendered in the absence of the affected persons on the party array. W.P.(C).No.33916 of 2008 & con. Cases. :: 20 :: This is illegal, it is contended. That findings of favouritism, nepotism and political patronage have been entered into by the Upa Lok Ayukta, without there being any materials on record and without the parties joining issues as such, on the said aspects. (C) Members of the syndicate cannot be considered as 'public servants', as they are not specifically enumerated in Section 2(o) of the Act and consequently a direction to initiate action against respondents 10 to 13, the petitioners in W.P.(C) No.32009/08 will have to be treated as one without jurisdiction. (D) The University should have been a party, before entering into the investigation in the manner in which it has been done. That the University was originally a party, later it was directed to be deleted from the party array. This action on the part of the Upa Lok Ayukta is illegal. (E) Specific allegations have not been taken up before the Lok Ayukta or incorporated as part of the pleadings qua the persons impleaded or even the persons, who were originally on the party array and therefore, a proper W.P.(C).No.33916 of 2008 & con. Cases. :: 21 :: investigation could not have been undertaken by the Upa Lok Ayukta as contemplated by Section 9 of the Act. The mandatory provision under Section 9(3) of the Act requiring the Upa Lok Ayukta to conduct any investigation under the Act only after forwarding a copy of the complaint to the competent authority qua the 'public servants' in question has been violated by the Upa Lok Ayukta. 16. Thus, the aforementioned are the submissions made by the counsel for the petitioners in the above writ petitions, except W.P.(C)No.37082/07 viz., Senior Counsel M/s. K.Ramakumar, M.K.Damodaran, T.Krishnanunni, and Mr.K.Gopalakrishna Kurup, Mr.Pirappankode Sudheer along with Mr.Rajagopalan Nair and Mr.S.V.Rajan. 17. Per contra, it has been submitted by Sri.George Poonthottam and by Mr.Babu Varghese, learned counsel appearing for the complainant and the petitioner in W.P.(C)No.37082/07 that the restraint on W.P.(C).No.33916 of 2008 & con. Cases. :: 22 :: the Lok Ayukta in conducting an investigation into the matters which have been enumerated in the second schedule to the Act is only “when the complaint contains a `grievance' and not when the complaint contains an `allegation' as such”. This vital distinction is discernible from the reading of the statutory provisions. It is further contended that the allegation is regarding inadequate opportunity having been given to the parties before the Lok Ayukta to adduce evidence in support of their contentions. The orders passed by the Upa Lok Ayukta, at different points of time, will show that the parties were aware of the parameters of the investigation, which the Upa Lok Ayukta had drawn up and the kind of materials, which should have been made available to the respondents to resist the relief prayed for in the complaint. The allegation regarding the Upa Lok Ayukta being bereft of jurisdiction to proceed against any person in a representative capacity is also misconceived in the W.P.(C).No.33916 of 2008 & con. Cases. :: 23 :: present case because, the primary purpose was conducting an investigation into the mal- administration, which had vitiated the entire selection. Apart from the technical contentions which are alleged to have been taken up by the counsel for the petitioners challenging the orders of the Upa Lok Ayukta, it is a fact that specific findings have been arrived at by the Upa Lok Ayukta as regards the political patronage, favouritism and nepotism