IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 23RD NOVEMBER 2011 / 2ND AGRAHAYANA 1933 WP(C).No. 24718 of 2010(L) ------------------------------------- PETITIONER(S): ----------------------- A.SANTHOSH KUMAR, ARD NO.42, PARASSALA GRAMA PANCHAYATH, RESIDING AT BHAGAVATHIVILASOM BANGLOW, MURIYANKARA,NEDUVAMVILA, PARASSALA.P.O, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. BY ADVS. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SMT.DHANYA CHANDRAN RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, FOOD AND CIVIL SUPPLIES DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 1. 2. THE COMMISSIONER OF CIVIL SUPPLIES, COMMISSIONERATE OF CIVIL SUPPLIES, PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM - 1. 3. THE DISTRICT COLLECTOR, COLLECTORATE, KUDAPPANAKUNNU CIVIL STATION, THIRUVANANTHAPURAM - 1. 4. THE DISTRICT SUPPLY OFFICER, CIVIL STATION BUILDING, KUDAPPANAKUNNU, THIRUVANANTHAPURAM - 1. VPV 5. SMT.A.L. ANANDAKUMARI,ANGANVADI TEACHER, NEDUVANVILA, RESIDING AT CHANDRAVILASAM BANGLOW, NEDUVANVILA, PARASSALA.P.O. - 695 502, NEYYATTINKARA,THIRUVANANTHAPURAM DISTRICT R1 TO R4 BY GOVERNMENT PLEADER SRI. JOSEPH GEORGE R5 BY ADV. SRI.S. MOHAMMED AL RAFI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VPV WPCNO.24718/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF ORDER NO.CS-1-3536/05 DATED16.8.05 ISSUED BY THE 4TH RESPONDENT. EXT.P2: COPY OF ORDER NO.CS-1/958/07 DATED 3.3.07 ISSUED BY THE 4TH RESPONDENT. EXT.P3: COPY OF REPRESENTATION SUBMITTED BY THE 5TH RESPONDENT BEFORE THE CHIEF MINISTER OF KERALA DATED 1.9.08. EXT.P4: COPY OF REPRESENTATION SUBMITTED BY THE 5TH RESPONDENT BEFORE THE CHIEF MINISTER OF KERALA DATED 31.10.08 EXT.P5: COPY OF PROCEEDINGS NO.CS.1-3039/08 DATED 4.12.08 ISSUED BY THE 3RD RESPONDENT. EXT.P6: COPY OF ORDER NO.CS.A8-22592/09 DATED 24.11.09 ISSUED BY THE 2ND RESPONDENT. EXT.P7: COPY OF REGISTERED FAMILY SETTLEMENT DATED EXECUTED BY PETITIONER'S PARENTS AND GRAND PARENTS AS EARLY AS ON 25.5.1992. EXT.P8: COPY OF APPEAL SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT DATED 8.1.2010. EXT.P9: COPY OF ORDER NO.G.O.(MS)NO.200/2010/F&CSD DATED 21.6.2010 ISSUED BY THE GOVERNMENT. EXT.P10: COPY OF JUDGMENT DATED 30.1.93 IN O.S.NO.767/92 OF 1ST ADDL. MUNSIFF, NEYYATTINKARA. EXT.P11: COPY OF ORDER NO.CS1-3471/2003 DATED 5.12.03 ISSUED BY THE 4TH RESPONDENT. EXT.P12: COPY OF ORDER NO.CS1/2304/04 DATED 23.7.04 ISSUED BY THE 4TH RESPONDENT. EXT.P13: COPY OF CONSENT LETTER DATED 11.8.2010 OF THE MOTHER OF THE PETITIONER. EXT.P14: COPY OF CONSENT LETTER DATED 11.8.2010 OF THE SISTER OF THE PETITIONER. VPV WPCNO.24718/2010 RESPONDENT'S EXHIBITS: EXT.R5(A): COPY OF THE PROCEEDINGS NO.A1-29809/03 DATED 25.8.2004 ISSUED BY THE TAHSILDAR, NEYYATTINKARA. EXT.R5(B): COPY OF THE LETTER DATED 2/9/2004 ISSUED BY THE TAHSILDAR, NEYYATTINKARA. EXT.R5(C): COPY OF THE LEGAL HEIRSHIP CERTIFICATE ISSUED BY TAHSILDAR, NEYYATTINKARA ON 1.2.2008. /TRUE COPY/ P.A. TO JUDGE VPV ANTONY DOMINIC, J. ================ W.P.(C) NO. 24718 OF 2010 ===================== Dated this the 23rd day of November, 2011 J U D G M E N T The challenge in the writ petition is against Exts.P6 and P9. Briefly stated, the facts of the case are that the petitioner's father late Sri.Appukuttan Nair was appointed as ARD No.42 of Parassala Grama Panchayat. While so, Sri.Appukuttan Nair expired on 2/12/98. Subsequently, by Ext.P1 order dated 16/8/2005, Smt. B.Leela Bai, wife of Appukuttan Nair and the mother of petitioner and the 5th respondent was appointed as ARD. 2. It appears that due to old age and being incapable of running the ARD, Smt.Leela Bai nominated the petitioner in terms of the proviso to Clause 45(2) of the Kerala Rationing Order. Accordingly, by Ext.P2 order dated 3/3/2007, the petitioner was appointed as ARD. 3. The 5th respondent, the sister of the petitioner made Ext.P3 complaint dated 1/9/2008 to the Chief Minister complaining that the appointment of the petitioner was irregular in as much as the same was done without obtaining her consent. Subsequently, she also made Ext.P4 complaint dated 31/10/08 again addressed WPC No. 24718/10 :2 : to the Chief Minister, complaining that her mother's appointment by Ext.P1 was also without obtaining her consent in terms of the proviso to Clause 45(2) of the Kerala Rationing Order. Based on the complaints, enquiry was conducted by the District Collector and Ext.P5 report was made to the Government. It appears that subsequently, the 5th respondent again made further complaints and the proceedings resulted in Ext.P6 order passed by the 2nd respondent holding that the appointment of the petitioner was irregular in as much as the appointment of his mother by Ext.P1 was in violation of the proviso to Clause 45(2) of the Kerala Rationing Order. Petitioner filed Ext.P8 appeal to the 1st respondent, which was rejected by Ext.P9. It is in these circumstances, the writ petition is filed. 4. Learned counsel for the petitioner contended that the 5th respondent is an Anganvadi teacher and therefore is ineligible to be considered for appointment eventhough she is a legal heir of Sri.Appukuttan Nair. It was also contended that in Ext.P6, the 2nd respondent proceeded accepting the statement of the 5th respondent that she came to know of her mother's appointment only on 21/11/2008. It is submitted that not only that this was WPC No. 24718/10 :3 : factually incorrect, in as much as the 5th respondent resides close to the shop, but also that she had already made Ext.P4 complaint on 31/10/2008. Therefore, it is contended that even the complaint made by the 5th respondent was highly belated. However, it is also submitted that the consent of the legal heirs required to be obtained as per the first and second proviso to Clause 45 will apply only in a case if the legal heir is also eligible to be appointed as an ARD on the death of the appointee. On these contentions, counsel for the petitioner seeks to get the impugned orders invalided. 5. However, counsel for the 5th respondent submits that being a legal heir, the 5th respondent's consent ought to have been obtained at the time when her mother was appointed by Ext.P1. It is submitted that she was unaware of the appointment and she came to know of the appointment only on 21/11/2008 when she got information to that effect in response to an application made under the Right to Information Act. Therefore, it is contended that the appointment of the mother being irregular, the nomination of the petitioner and his appointment by Ext.P2 are also irregular. WPC No. 24718/10 :4 : 6. I have considered the submissions made. 7. Admittedly, it was the father of the petitioner and the 5th respondent who was originally appointed as the ARD. He died without making nominations. It was thereupon that the mother was appointed by Ext.P1 order of 16/8/2005. During her lifetime, on account of her ill health and incapacity to continue the ARD, she made nomination and it is on that basis that the petitioner was permanently appointed by Ext.P2 order dated 3/3/2007. It is this appointment which is now invalidated by Exts.P6 and P9. A reading of these orders show that the ground on which the appointment is invalidated is that the appointment of the mother was made without the consent of the 5th respondent, one of the legal heirs of the deceased Appukuttan Nair. 8. First of all, though the 5th respondent is also a legal heir, a reading of Ext.P6 shows that even according to the 5th respondent, she made complaint only after November, 2008, which means that the first complaint made by the 5th respondent was more than three years subsequent to the appointment of the deceased mother of the parties. The specific case of the petitioner, which is also not contradicted, is that the 5th WPC No. 24718/10 :5 : respondent is a resident of a neighboring property. Therefore, even if she was not initially informed of the appointment of her mother, it is improbable to think that she was unaware of the appointment. If that be so, if she had any complaint in the matter, one would have expected her to make complaint within a reasonable time. She having not done that, the complaint made by her is highly belated and should not have been taken cognizance of. 9. That apart, even in the statement made by the 5th respondent before the 2nd respondent, there is a factual incorrectness in as much as Ext.P4 complaint was made by her objecting to the appointment of her mother and that complaint is dated 31/10/2008. It is inspite of it that she made an assertion that she came to know of it when she got an information regarding the appointment only on 21/11/2008, in response to a query made under the Right to Information Act. Therefore, not only that there is delay in the matter, but also the factual assertion made was also erroneous. 10. Counsel for the 5th respondent contended that even if appointment is made, such appointment is liable to be invalidated WPC No. 24718/10 :6 : if there is any disagreement among the legal heirs. In support of this plea, he relied on the second proviso to Clause 45(2). First and second proviso to Clause 45(2) of the Kerala Rationing Order reads thus:- Clause 45(2) “[Provided that the authorised retail distributor shall nominate a member of his family for appointment as the authorised retail distributor, in the event of his being incapable of running the ration business, owing to old age or illness or in the event of his death. The nominee shall be appointed, as a temporary licensee forthwith, on the death of the licensee, without insisting on the proof of financial stability, production of legal heirship certificate etc. The willingness of the nominee shall be obtained by the authorised retail distributor before his/her nomination. The above appointment shall be made permanent, on production of satisfactory proof of financial stability of the nominee. If, the authorised retail distributor dies, without exercising his nomination as provided above, the district supply officer shall appoint any of the legal heirs, nominated jointly by all the other legal heirs, as a temporary authorised retail distributor. Such temporary appointment shall be made permanent, only on production of Legal Heirship Certificate from the concerned authority and after conducting such enquiry, as the District Supply Officer WPC No. 24718/10 :7 : may consider necessary, regarding the financial position of such person and also on executing necessary agreement, as provided under this order.] [Provided further that in the case of disputes regarding heirship or in the event of disagreement among legal heirs either before the appointment, or after the appointment District Supply Officer may cancel the appointment if already ordered, call for applications and make fresh appointments as provided for under these rules.]” 11. True, a reading of the second proviso give an impression that even if subsequent to the appointment of an ARD, there is disagreement among the legal heirs, District Supply Officer is entitled to take steps for cancellation of appointment and to invite applications. However, a reading of the first proviso shows that when a nomination is made by an existing ARD, that on account of the old age and illness he is incapable of running the shop, the nominee shall be initially appointed as a temporary licencee. Thereafter, the appointment is to be made permanent on production of satisfactory proof of financial stability of the nominee. Therefore, when the appointment is made permanent, that appointment is made on the nominee's own eligibility. WPC No. 24718/10 :8 : Therefore, such permanent appointment is not liable to be invalidated even in a case where there is disagreement among the legal heirs. 12. On the other hand, the second proviso relied on by the learned counsel can have relevance only when the appointment remains a temporary one. If that be so, since Ext.P2 appointment of the petitioner is as a permanent ARD, I do not think the 5th respondent can call any aid to second proviso to Clause 45(2) and seek to justify Exts.P6 and P9. 13. Moreover, learned counsel for the 5th respondent referred me to Ext.R5(a) and contended that a legal heirship certificate was obtained by the petitioner excluding her and that it was based on such legal heirship certificate, the appointment was secured. However, neither of the impugned orders make reference to Ext.R5(a) legal heirship certificate, nor is there any statement that the appointment of the petitioner was on the basis of the said legal heirship certificate. On the other hand, petitioner's appointment being on the basis of the nomination made by his mother, cannot be dependent upon Ext.R5(a). Therefore, even if there is substance in what is contended, the WPC No. 24718/10 :9 : legal heirship certificate which is stated to have been obtained cannot invalidate the appointment of the petitioner. Exts.P6 and P9 will stand set aside. Writ petition is allowed. Sd/- ANTONY DOMINIC, JUDGE Rp //True Copy// PA to Judge