Dismissed

P. Chandrasekharan, IPS (Retired) v. State of Kerala

Kerala HC23 Mar 2018WP(C)/3682/2018

Case brief

AI extract

What is this about?

Retired IPS officer challenged removal as Chairman of Kerala Devaswom Recruitment Board following legislative amendment reducing tenure and altering qualifications. Court dismissed petition ruling no compensation due as officer superannuated and faced only restriction from re-nomination.

What did the court decide?

Petitioner's claim for compensation for salary during the remaining tenure was not allowed.

P. Chandrasekharan, IPS (Retired) Vs State of… — Pension and Retirement Benefits | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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FRIDAY, THE 23RD DAY OF MARCH 2018 / 2ND CHAITHRA,1940

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WP(C).No. 3682 of 2018

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---------------------

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PETITIONER :

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P. CHANDRASEKHARAN, IPS (RETIRED) PALLATH, TC NO. 42/2276, GREEN STREET, SASTHA NAGAR, PANGODE, THIRUMALA P.O, THIRUVANANTHAPURAM.

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BY ADV.SRI.S.MANU

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RESPONDENT :

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STATE OF KERALA REPRESENTED BY SECRETARY, REVENUE - DEVASWOM DEPARTMENT, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001.

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BY SENIOR GOVERNMENT PLEADER SRI.V.MANU

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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bp 6/4/2018

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WP(C).No. 3682 of 2018 (I) -------------------------

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1 TRUE COPY OF THE GAZETTE NOTIFICATION DATED 17.8.2015 IN ENGLISH EXHIBIT P2 TRUE COPY OF THE GO DATED 13.3.2015 EXHIBIT P3 TRUE COPY OF THE KERALA DEVASWOM RECRUITMENT BOARD (AMENDMENT)ACT EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 22.7.2017 SUBMITTED BY THE PETITIONER TO THE RESPONDENT EXHIBIT P5 TRUE COPY OF THE REMINDER DATED 16.11.2017 SENT BY THE PETITIONER

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RESPONDENT'S EXHIBITS : NIL.

//TRUE COPY//

P.A. TO JUDGE

bp 6/4/2018

“C.R”

P.V.ASHA, J.

W.P(C) No.3682 of 2018-I

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Dated this the 23^rd day of March, 2018

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JUDGMENT

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The petitioner, who was the Chairman of the Devaswom Recruitment Board, has filed this writ petition seeking a declaration that his removal from the post of Chairman of the Kerala Devaswom Recruitment Board (hereinafter referred to as the `Board' for short) by the enactment of Act 22 of 2016 is illegal and for a direction to the respondents to disburse him all the monetary benefits admissible to him as Chairman of the Board for a total period of 5 years from 16.3.2015.

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The petitioner was an officer in the Indian Police Service. While he was working as Director General of Fire Force, he applied for voluntary retirement from Indian Police Service in anticipation of his appointment as Chairman of the Board. The Board came into force on 1.3.2014. As per Ext.P2 notification dated 13.3.2015, issued under Sections 3(1) and (3) of the Kerala Devaswom Recruitment Board Ordinance, 2015,

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the Government of Kerala constituted the Board with the petitioner as Chairperson and 4 others as Members. The Ordinance was thereafter replaced by Act 16 of 2015, which came into force from 01.03.2014. Sub Section 3 of Section 3 of the Act 2015 provided as follows:

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“3. Constitution of the Board:- xxxx xxxxx xxxxx

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xxxx xxxxx xxxxx

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(3) The Board shall consist of six members nominated by the Government, who belongs to Hindu religion and having faith in God and temple rituals. One person who is or has been holding a post not below the rank of Secretary to Government shall be the Chairperson and among other members one shall be a woman and one shall be a member belonging to Scheduled Caste or Scheduled Tribe.

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xxxx xxxxx xxxxx”

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Therefore under Section 3(3), out of the six members who are to be nominated by the Government to the Board, a person who is or has been holding the post of Secretary to Government could become the Chairperson of the Board. Under Section 5, the tenure of the Chairman and members was fixed as 5 years from the date on which they assumed office or till they attained 65 years. Subsection 6 of Section 5 provides that a person once appointed as Chairman or member is not eligible for re-appointment.

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Whileso, the Act 2015 was amended by Ext.P3 - Act 22 of 2016, whereby only a person who is or has been a District Judge or qualified to be appointed as District Judge shall be appointed as

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W.P(C) No.3682 of 2018-I

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Chairperson. Section 5 of Act 15 was amended reducing the tenure of the Chairman and members to three years. Apart from that Section 5 of Ext P3 amendment Act 16 of 2016 provided as follows:

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“5. Special provision relating to the existing Chairperson and Members of the Board:--Notwithstanding anything contrary contained in the principal Act, the existing Chairperson and members of the Board shall cease to hold office as such from the date of commencement of the Kerala Devaswom Recruitment Board (Amendment) Act, 2016.”

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Therefore, Ext.P3 enactment resulted in automatic cessation of Chairmanship of the petitioner and of membership to others. This writ petition is filed alleging that the petitioner was prematurely terminated from the Chairmanship of the Board where he could have continued till the

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expiry of the 5 years from the date on which he joined and he was incapacitated from enjoying the benefits flowing out of his appointment in Ext.P2 and he is disabled from becoming a member/Chairman of the Board. He therefore claims that he is entitled to be compensated by payment of salary till the date of expiry of 5 years. He alleged that the purpose behind the amendment is only to oust him.

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The respondents have filed a statement denying the allegations.

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It is stated that the qualification of the Chairperson and Members of the Board was amended by Act 22 of 2016 Amendment Act. It is stated that

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W.P(C) No.3682 of 2018-I

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Section 3 of the 2015 Act only provided for constitution of the Board and nomination of the Members of the Board. As per Ext.P2 order Government constituted the Board nominating the petitioner as Chairperson. According to the respondents, the legislature deemed it fit to amend the qualifications prescribed for membership to the Board and to provide a special provision for cessation of the office of the then members of the Board. Accordingly, the petitioner had to demit the office as the Member and Chairman of the Board. It is stated that the petitioner had to demit the office by operation of the legislation. The petitioner cannot claim that he should be compensated. The petitioner, who was a Member of the Indian Police Service, voluntarily retired from service and he had enjoyed all the benefits arising out of the said service. It is pointed out that there is no restriction for any future employment to the petitioner, on account of his appointment as Chairperson/Member of the Board even though he is not eligible for a further nomination to the Board.

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Relying on the judgments in Justice K.K.Narendran v. State of Kerala :1994 KHC 461: 1994(2) KLT 1004, Venugopal P. v. Union of India: ( 2008) 5 SCC 1 and State of Kerala & Anr. v. Prof. T.V.Balan & Anr: 2016 (1) KHC 617, Sri. S. Manu, the learned Counsel for the

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petitioner, argued that the petitioner is liable to be compensated, since the amendment was brought about for displacing him and he was unable to complete the 5 year tenure.

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On the other hand, the learned Government Pleader relying on the judgments of this Court in Sam Zacharias & Ors. v. State of Kerala &. Ors: 2010 (1) KHC 301, State of Himachal Pradesh v. Kailash Mahajan & Ors. (1992) 2 SCC 351 , Hari Hara Krishnan v. State of Kerala: 2014 (4) KLT 576 , etc. argued that the claim of the petitioner is liable to be rejected.

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Having heard the rival contentions of Sri. S.Manu, the learned Counsel for the petitioner and Sri. V.Manu, the learned Senior Government Pleader, I will examine the same with reference to the judgments relied on.

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It is seen that even though the petitioner took charge as Chairman of the Board after availing voluntary retirement, he crossed the age of superannuation while he was continuing as Chairman. Therefore, he has not suffered any loss on account of voluntary retirement. However, it is true that the petitioner would have been able to complete his five year tenure as Chairman of the Board based on Ext.P2 order, which was issued in terms of Ext.P1 Act. But when Ext.P1 is amended by Ext.P3 amendment

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Act, District Judges alone can hold the post of Chairman. Apart from that Section 5 of Ext.P3 Act provided for cessation of the existing members of the Board. The petitioner is not challenging the amendment Act, apparently because he does not dispute the competence of the Government to bring about the same.

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Then the question to be examined is whether the petitioner is liable to be compensated. In Justice K.K. Narendran's case ( supra ), a retired Judge of this Court, was appointed as a Member of the Kerala Public Men's Corruption (Investigation and Enquiries) Commission on 17.03.1990. By virtue of Section 6(1) of the Act, he was entitled to continue till 22.8.1993, when he was to attain the age of 70 years. However, by Ordinance No.8 of 1991, the Commission itself was dissolved. As per the 2^nd proviso to Section 6 of the Act, a Member shall be ineligible for reappointment as a member or for further employment to any office under the Government of Kerala or in any Authority, Corporation, Company, Society or University, on his cessation from the office. The contention therein was that the petitioner was entitled to security of tenure until removed from office in accordance with the provision in the Act. From paragraph 7 of the judgment it is seen that the relevant provisions

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under Section 6 of the Act relating to the term of office, which the Division

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Bench considered were the following:

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“6. Term of office and other conditions of service of members - (1) A person appointed as member shall hold office for a term of five years from the date on which he enters upon his office or till he attains the age of seventy years whichever is earlier:

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Provided that:-

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a) a member may, by writing under his hand addressed to the Governor, resign his office;

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b) a member may be removed from office in the manner provided in S.7.

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On ceasing to hold office, a member shall be ineligible for reappointment as member or for further employment to any office of profit under the Government of Kerala or in any Authority, Corporation, Company, Society or University referred to in clause (j) of S.2.

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Explanation:-The re-assumption of office, by a member as Judge of the Supreme Court or High Court, as the case may be, on his ceasing to hold office as such member shall not be deemed to be further employment to any office of profit referred to in this sub-section.

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A member shall have the like status, shall be entitled to the same salary, allowances and pension and shall be subject to the same conditions of service, as a Judge of the High Court of Kerala:

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xxxx xxxx xxxx

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Provided also that the allowances payable to, and other conditions of service of, a member shall not be varied to his disadvantage after his appointment.”

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Apart from the proviso to Section 6 which provides that the allowances

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payable shall not be varied to the disadvantage after one's appointment, there is a specific provision for payment of salary under Section 9 of that

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Act which read as follows:

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“Right of a member for salary and allowances and other benefits:A member appointed on his assuming charge becomes entitled to the salary and allowances and other benefits conferred by the Act and these rules including pensionary benefits for the whole of the term to which he

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is entitled to continue as a member as per S.6 of the Act. In case a member is not able to complete his full term of office as per the terms of his appointment otherwise than by resignation or by removal under S .7 of the Act or by his death, he shall be entitled to get the salary, allowances and other benefits for his full term of office had be continued as member but for the termination of appointment for any reason whatsoever”.

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In the above background the Division Bench of this Court held as follows:

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“11. The above provisions of law as governing the position of the petitioner are crystal clear to the effect that his appointment as a member of the Commission was of a permanent character with a fixed tenure and a public employment entitling him to continue in law till the attainment of 70 years - till August 22,1993, giving him status, salary, allowances and pension as those of a Judge of the High Court of Kerala. These rights and privileges could not be varied to his disadvantage afterwards. It is obvious that under the guise of dissolution of the said Commission, under S. 10 of the Amending Act 4 of 1992, the summary removal of the petitioner as a member of the Commission, is not justifiable in view of the aspect that it is firstly not by the procedure established by law and secondly, it results into disruption of vested rights and privileges on his appointment retrospectively by necessary implication, which is not also legislatively permissible.”

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Provisions similar to proviso to Section 6 or section 9 are absent in Ext.P1 Act. Similarly, the disability which incurs on a member of the Board is confined to re-appointment as is clear from subsection 6 of Section 5 of Ext.P1; whereas in the case of Justice Narendran the disability was against holding any office of profit. Regarding entitlement of salary, subsection 7 of Section 5 provides that the Chairperson and members shall be full-time officers and shall be eligible for such allowances as may be prescribed.

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It is pertinent to note that the judgment in Justice Narendran 's case ( supra ) was distinguished in the judgment in Sam Zacharia 's case

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( supra ), relied on by the learned Government Pleader. There the Cooperative Service Examination Board was re-constituted as per S.80B of the Kerala Co-operative Societies Act, 1969. The petitioners who became the members of the Board as per Government Order dated 01.03. 2006 had to vacate office when the Board was reconstituted on 06.06.2007 pursuant to the amendment to sub-r.(1) of R.182B of the Rules effected on 01.06. 2007. A proviso was added to Rule 182 B fixing minimum qualification for the Chairman as post graduation with a minimum approved teaching experience of 15 years in any Government or other approved colleges. Out of the other two members one shall be a woman with a degree in Law with a minimum of 5 years experience as legal practitioner and the other one shall be an eminent Co-operator who had served in the Board of Management of a reputed and financially sound Co-operative Society. The amendment as well as re-constitution was challenged alleging that their fixed tenure cannot be curtailed and monetary benefits cannot be deprived of. After analysing the provisions contained in the Act and Rules, a learned Single Judge of this Court found that the amendment was to the qualification for appointment to the Board and upheld the amendment. The judgment in Justice Narendran 's case was distinguished as follows:

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“12. As already noticed, though the appointment is for a fixed tenure, the fact remains that such officiation does not, in any manner, create any vested right unlike on the facts of Justice K.K.Narendran (supra). In the legislation that fell for consideration in that case, there were inhibitions even in later appointments. In the case in hand, as already found, there is no inhibition by legislation to the members of the Board having any other avocation. No restrictions are imposed about future employment. The restriction, if at all, is only regarding the drawal of the entire salary as a member, if the member is also drawing pension. So much so, the plea that the petitioners are entitled to be paid full salary for five years is also not sustainable.”

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The learned counsel also relied on the judgment of the Apex

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Court in Venugopal P. v. Union of India: (2008) 5 SCC 1, especially

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refering to paragraph 12 of the judgment which read as follows:

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“12. A government servant entering into a government service does not forego his fundamental rights. On the other hand, because of his status as a person in public employment, he acquires additional rights constitutionally protected. The State or other public authorities are not, therefore, entitled to make and impose laws governing the service conditions of an employee which manifestly deprive him of the privileges of that status. A person in public employment is endowed with a status not merely subjecting him to liabilities and obligation but also protecting him against any arbitrary, unreasonable and unequal treatment. Such a person is also entitled to constitutional remedies whether under Article 32 or under Article 226 of the Constitution.”

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It was a case where Director of the All India Institute of Medical Sciences was sought to be sent out by way of amendment of the rule incorporating a proviso to Section 11 by the AIMS amendment Act 2007, by which the tenure of the Director was limited to five years from the date of entry or at the age of 65 years with retrospective effect. By way of proviso it also provided for cessation of office of those Directors holding office as on the date of amendment with a provision for compensation equal to three

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months' pay. That amendment was under challenge in that case and the amendment was effected pending several judicial proceedings. The peculiar factual circumstances in that case is clear from paragraphs 30 and 31 of the judgment, where the Apex Court found that the amendment was effected when the directions issued by the Delhi High Court to allow the petitioner to continue till 2008, interim order not to take any adverse decision against him, etc. were in force. That judgment cannot be applied to the facts of present case in question.

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The next judgment relied on by the learned Counsel for the petitioner is Prof. T.V.Balan 's case ( supra ). It was a case where the members of Ombudsman for Loal Self Government Institutions who were appointed for a term of five years in July 2000 had to vacate office consequent to amendment brought about by 2001 Act to the provisions of S.271G of the Kerala Panchayat Raj Act, reducing the tenure of Ombudsman to 3 years. The amendment was upheld by this Court in another case. The petitioners therein claimed compensation towards curtailment of their tenure and for carrying the disability for further appointments. Under Subsection (8) of Section 271G of the Act, a member, after ceasing to hold office as such, shall not be eligible for re-appointment as member or for

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further appointment in any office of profit in any Corporation, Company, Society, or University under the control of the Government of Kerala to maintain the purity of the office. This Court found that the restrictions were brought in the statutory scheme with a laudable object and for maintaining the dignity of the high office of the Ombudsman. Following the judgment of the Apex Court in Justice S. K. Ray v. State of Orissa and Others :: 2003 (4) SCC 21, where the Apex Court directed compensation to the petitioner therein for curtailment of the tenure and the disability incurred to hold any office of profit, consequent to the amendment of the provisions of Orissa Lokpal and Lokayuktas Act, 1970, it was held that the members of Ombudsman were also entitled to be compensated by payment of salary for the rest of the tenure. In this case the disability is only to become a member of the Board only. No other disability is attached to the petitioner in the present case. As the petitioner was not a District Judge he cannot aspire to become a Chairman. But he is free to take up any employment or any other assignment. It is relevant to note that in Justice Ray 's case ( supra ) the disability incurred was to hold any office of profit. In para 10 of the judgment the Apex Court observed that compensation was to be made towards the disabilities that one has to carry, on account of an appointment.

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In Prof. T. V. Balan' s case also this Court directed compensation on account of such disability and not towards loss of salary for the remaining tenure.

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In State of Himachal Pradesh v. Kailash Mahajan & Ors. ( supra ) relied on by the learned Government Pleader, the Apex Court was considering the claim of Chairman and Members of the Board constituted under Electricity (Supply) Act of the Himachal Pradesh State Electricity Board. By way of Ordinance issued in 1990, the age limit for holding the office of the Members of the Electricity Board was amended and it was proposed that no person above the age of 55 years could be appointed and continued as Chairman or Member of the Electricity Board and by virtue of this ordinance, the existing incumbents' tenure was curtailed. The contentions were raised as against the prescription of a different age limit which curtailed the tenure of the incumbent of the post. The amendment was challenged on the ground of malafides, alleging that the sole purpose was to remove the petitioner therein. Para.17 of the judgment reads as follows:

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“17. Mere curtailment of the term as Chairman of the Board without any mention about his inability or professional competence, so as to affect his reputation in any manner, no injury had taken place so as to complain of violation of Article 21 of the Constitution. The plea of interference with judicial power was negatived. The plea of violation of Article 19 that the

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provision of compensation is illusory was negatived.”

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14. Regarding the allegation of malafides the Apex Court held as

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follows:

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“28. If the law is settled that no mala fides could be attributed to the Legislature, an argument that the amendment has been passed only with a view to punish the first respondent is not available to the first respondent. The next submission of the learned counsel is that in the place of first respondent, Chauhan had come to be appointed as Chairman, therefore, he ought to have been impleaded as a party. The effect of non-immpleading Chauhan will be fatal to the writ petition as liad down in State of Kerala v. Miss Rafia Rahim as well as Padamraj Samarendra v. State of Bihar . In both the cases where the petitioners were challenging the selection, it was held the selectees were necessary parties as they were affected by the decisions of the court. Therefore, if they are not impleaded no relief could be granted in favour of the writ petitioners even though on merits the petitioners could succeed.”

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In Hari Hara Krishnan v. State of Kerala :2014 (4) KLT 576 this Court considered the validity of amendment brought about to Section 39 of the Hindu Religious and Charitable Endowments Act, 1951, which reduced the tenure of non-hereditary trustees from 5 years to 3 years. The amendment was challenged on the ground that the sole purpose was for substituting the petitioner with persons of choice of the Government. A Division Bench of this Court found that there is no reason to infer that the provision is invalid on any ground and the petitioners cannot claim the benefit of doctrine of legitimate expectation; the plea of malafides also will not lie against legislation. This Court held that this legislation can be validly challenged only on the ground of lack of legislative competence and violation of

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fundamental rights and the petitioners did not have a case that there was any violation of fundamental right by virtue of the amendment or that it lacks legislative competence.

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In the judgment in Ray v. State of Orissa: ( 2003) 4 SCC 21, which was followed in Prof. T.V.Balan's case the Apex Court was considering the validity of the amendment effected to Section 5 of the Orissa Lokpal and Lokayukta Act, 1995. The petitioner, who was holding the office of the Lokpal ceased to hold the same on issuance of Orissa Lokpal and Lokayukta (Repeal) Ordinance, 1992. He had been disabled for further appointment or employment under the State or for any appointment under an office in any such local authority, corporation, Government company or society registered under the Societies Registeration Act, 1860. The question which came up for consideration in that case was whether the appellant was entitled to any compensation for loss of salary for the remaining period. Referring to the provisions contained in Lokpal and Lok Ayukta Act it was held as follows in paragraphs 9 and 10:

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“9. There are two ways of understanding the effect of abolition of the office of Lokpal, which resulted in curtailment of the tenure of the office of the appellant. One is that the appellant having held the office at least for some time is subject to all the restrictions arising under the provisions of the Act, including those which debar him from holding any office on his ceasing to be Lokpal. The other point of view could be that on the abolition of the post the restrictions as to holding of office on the appellant ceasing to be the Lokpal will not be attached to him. The

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latter view, if taken, would lead to incongruous results because the incumbent in the office of the Lokpal, having functioned as such at least for some time, would have dealt with many matters and, therefore, to maintain the purity of that office, the restrictions imposed under the Act should be maintained. The only other reasonable way, therefore, is to interpret the provisions to the effect that even when such restrictions continue to be operative on abolition of the office, the incumbent in office should be reasonably compensated not for deprivation of the office but for attachment of the restrictions thereafter.

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The learned counsel for the respondents contended that loss of employment in such a situation is only a contingency of service and the right to abolish the post is available with the Government in the same manner as the right to create a post and a person whose post has been abolished should not be entitled to salary. In our view, these arguments have absolutely no relevance to the question which we have examined. The crux of the matter in this case is the effect of the disqualification of not holding any office after ceasing to hold the office of the Lokpal. He is deprived of all other offices or business interest when he holds the office of the Lokpal and the office, which he holds, is also denied to him by reason of the Repealing Act. If the argument of the learned counsel for the respondents is accepted, it would lead to incongruity and would baffle all logic.”

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However, the Apex Court did not find that the abolition of the post was illegal. In all these cases it is found that there is a disqualification incurred in the incumbents of the posts on account of the amendment effected. As far as the present case is concerned, the petitioner is an IPS Officer who retired voluntarily. Even if he had not retired voluntarily he could not have continued in that post for a period after cessation of his Chairmanship in the Board. By the time he ceased to be the Chairperson of the Board he had already attained the age of superannuation. It is open to the petitioner to apply for or accept any appointment/assignment other than one in the Board. Just because the petitioner became disqualified for a further appointment or further nomination for the same under the Board, it cannot be said that the

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petitioner is entitled to be compensated. There is no challenge in the writ petition as against the provisions contained in the Act. Admittedly, because the petitioner is very well aware of the fact that there cannot be any valid challenge against the legislation, though the petitioner has indirectly alleged that it is only for the purpose of substituting him that the legislation has been enacted, it is settled law that there cannot be any allegation of malafides as against the legislation and legislation cannot be interfered with on such grounds. On the basis of such a legislation the petitioner has ceased to be a Member, and since the petitioner did not incur any disqualification other than from becoming a member of the Board, there is no liability for the Government to compensate the petitioner. Hence, the judgments relied on by the learned counsel for the petitioner cannot be applied to the facts and circumstances of this case.

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In the above circumstances, I do not find any merit in the claim of the petitioner for compensation. Hence the writ petition is dismissed.

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Sd/- (P.V.ASHA, JUDGE)

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rtr/

P. Chandrasekharan, IPS (Retired) v. State of Kerala

Case brief

What is this about?

What did the court decide?

P. Chandrasekharan, IPS (Retired) v. State of Kerala

Case brief

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What the court decided

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