Partly allowed

N.Sudhakran v. State of Kerala

Kerala HC13 Aug 2012WA/1366/2012

Case brief

AI extract

What is this about?

This writ appeal addresses rival claims for an agricultural window ration card. The Division Bench set aside a preliminary order due to lack of natural justice and remanded the matter to the Government to decide based on comparative merits of experience. The appeals were dismissed with the case remanded back to the Government for final consideration.

What did the court decide?

Impugned judgment of the Single Judge was vacated; the case was remanded to the Government to decide the rival claims after affording proper opportunity of hearing.

N.Sudhakran Vs State of Kerala — Consumer Protection | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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MONDAY, THE 13TH DAY OF AUGUST 2012/22ND SRAVANA 1934

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WA.No. 1366 of 2012 ()

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AGAINST THE ORDER/JUDGMENT IN WPC.NO.15160/2012 DATED 02-07-2012

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APPELLANT(S)/APPELLANT:

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N.SUDHAKRAN, 'SANTHASUDHA', BEACH ROAD, KOVALAM, THIRUVANANTHAPURAM.

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BY ADVS.SRI.M.GOPIKRISHNAN NAMBIAR

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SRI.P.GOPINATH MENON SRI.P.BENNY P.THOMAS SRI.K.JOHN MATHAI

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RESPONDENT(S)/RESPONDENTS:

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1. STATE OF KERALA,

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REPRESENTED BY THE SECRETARY TO GOVERNMENT,

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FOOD & CIVIL SUPPLIES DEPARTMENT,

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GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2. THE DISTRICT COLLECTOR,

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THIRUVANANTHAPURAM-695 001.

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3. M.MUHAMMED KABIR, AGED 49 YEARS, S/O.MUTHUMEERAN PILLA, CHENKALAYIL HOUSE, VIZHINJAM P.O., THIRUVANANTHAPURAM-695 521.

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R1 & R2 BY GOVERNMENT PLEADER SRI. JAMES MATHEW KADAVAN

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R3 BY ADVS. SRI.K.JAJU BABU

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SRI.K.A.SHAMSUDEEN SRI.T.S.SHYAM PRASANTH

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 13-08-2012, ALONG WITH WA. NO.1488/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Kss

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THOTTATHIL B.RADHAKRISHNAN &

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K.VINOD CHANDRAN, JJ.

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W.A.Nos.1366 & 1488 of 2012

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Dated this the 13^th day of August, 2012

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JUDGMENT

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Thottathil B.Radhakrishnan, J.

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N.Sudhakaran and M.Muhammed Kabir were rival applicants for the allotment of an AWD. Muhammed Kabir was a workman in an AWD and Sudakaran was a workman in an ARD. Going by the materials on record, (see the comparative table of qualifications extracted in paragraph 4 of Ext.P5 judgment), experience is a criterion for consideration. The experience of the two rivals are also stated therein.

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Ext.P5 judgment was issued by a learned Single Judge, directing that the District Collector should reconsider the 'comparative suitability' of Sudhakaran and Muhammed Kabir in the light of the observations contained in that judgment. The direction was to re-evaluate the comparative merits of those two persons in the light of the observations made in that judgment

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W.A.Nos.1366 & 1488 /12

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and to pass fresh orders. Obviously, therefore, the District Collector stood obliged to make a comparative evaluation of the experience held out by the two applicants. That direction was unsuccessfully challenged by Sudhakaran before the Division Bench. Among other things, in that appeal, Sudhakaran had contended, going by the pleadings therein, that Ext.P5 judgment amounts to rewriting the statutory rules as to prescriptions of eligibility conditions. The Division Bench issued Ext.P6 cautiously limiting the procedure to be, to first consider the dispute about the solvency certificate, and thereafter; depending upon the outcome of the genuineness of the solvency certificate of Muhammed Kabir; to proceed with the enquiry indicated in Ext.P6 judgment of the Division Bench and Ext.P5 judgment of the learned single Judge. This means that the Bench kept intact the responsibility of the District Collector to make a comparative reevaluation of the merits of the rival candidates. Obviously, as noted earlier, this included the requirement that the District Collector shall evaluate the comparative experience held out by

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the two candidates; one as a workman of an ARD and the other as a workman of AWD.

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W.A.Nos.1366 & 1488 /12

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Now, giving our anxious consideration to the views expressed by the learned single Judge in Ext.P5, it may be justifiable to say that the Kerala Rationing Order contains prescriptions which are indicative of the disqualifications, rather than providing yardsticks for comparative evaluation. But, at the same time, we do not see that Ext.P5 is rendered laying down the nature in which the comparative evaluations has to be made. If we are to read that judgment as having done it, those prescriptions may not, stircto senso , fit into the setting of the Rationing Order as it now stands. In the fitness of things, the indications in Ext.P5 can only be treated as direction to the District Collector to consider the matter on re-evaluation, leaving fair room for the competent authority to consider all relevant aspects.

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Having regard to the nature of the factors indicated by the learned single Judge in Ext.P5 and taking into consideration the sweep, authority, responsibilities and duties of the Government, as the ultimate repository of power to control the

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W.A.Nos.1366 & 1488 /12

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procurement and distribution of rationed articles under the public distribution system, we are of the view that it is appropriate that the case in hand is decided by the Government.

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In fact, following Exts.P5 and P6, the District Collector decided that Sudhakaran is eligible to be granted the licence. Muhammed Kabir filed an application before the learned single Judge alleging contempt of the directions contained in Ext.P5. Pending that, the District Collector appears to have appeared before the Court. He says that it was then that he understood that there was an erroneous approach, though there was no act on his side except in accordance with his good faith . In that situation, he issued an order dated 27.06.2012, whereby he vacated the earlier order and held that Muhammed Kabir is more eligible than Sudhakaran. Unfortunately, that was without notice to Sudhakaran. Therefore, he filed W.P.(C).No.15160 of 2012 alleging that the aforesaid order has been issued by the District Collector without affording an opportunity of hearing and that the District Collector did not have the power of review.

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W.A.Nos.1366 & 1488 /12

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The learned single Judge has, by the impugned order taken the view that the said order has been issued by the District Collector in violation of principles of natural justice. Accordingly, without further proceedings in the Contempt of Court Case, the orders of District Collector was quashed and an order was passed, imposing costs payable personally by the District Collector.

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In the light of what we have noted above regarding the contents and effect of Exts.P5 and P6 judgments, we are clear in our mind that those judgments only lead to a further hearing by the competent authority, also requiring the identification and application of the yardsticks which are relevant to a process of making a choice to grant AWD licence; nothing more.

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In the fitness of things and having regard to the indications given by the learned single Judge in Ext.P5, regarding the yardsticks, we think that it would only be appropriate in the interest of the field occupied by the Rationing Order that the case in hand, that is to say, the rival claims between Sudhakaran and

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W.A.Nos.1366 & 1488 /12

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Muhammed Kabir is decided by the Government which is the ultimate revisional authority and the rule making authority. To facilitate such process, we vacate the impugned judgment, including the order for costs and direct the parties N.Sudhakaran and M.Muhammed Kabir to mark appearance in the office of the Principal Secretary to Government in the Food and Civil Supplies Department, Government Secretariat, Thiruvananthapuram at 11.00 a.m. on 10.09.2012, so that the said office can fix an appropriate date of hearing to ensure that the parties are given appropriate opportunity of hearing by the authority competent at the level of the Government in accordance with the provisions of

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the Rationing Order, unless otherwise ordered by the Government.

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The present arrangement as regards the management of the AWD concerned would continue as of now. Further arrangement shall depend on the Government's decision following this judgment. The Government will make an endevour to pass final orders within a period of 45 days from the date of receipt of a copy of this judgment or appearance of parties in terms of the

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W.A.Nos.1366 & 1488 /12

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aforesaid direction, whichever is later.

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Writ Appeals ordered accordingly.

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THOTTATHIL B.RADHAKRISHNAN, Judge.

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K.VINOD CHANDRAN, Judge.

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mns/13.08.12

N.Sudhakran v. State of Kerala

Case brief

What is this about?

What did the court decide?

N.Sudhakran v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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