Allowed

Dr. C.J.John v. Union of India

Kerala HC22 Nov 2021WP(C)/6937/2021

Case brief

AI extract

What is this about?

Petitioners challenged a Government Order creating the Chief Executive Officer post for the Kerala State Mental Health Authority. The court quashed the specific words 'in Administrative Secretariat' added to the mandatory rank of Deputy Secretary as ultra vires Section 52.

What did the court decide?

Government Order Ext.P6 quashed to the extent of directing that the Chief Executive Officer shall be in the rank of Deputy Secretary to the Government; the words 'in Administrative Secretariat' stand

Dr. C.J.John Vs Union of India — Constitutional and Fundamental Rights | Kerala HC (2021)

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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 SUNIL THOMAS

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MONDAY, THE 22ND DAY OF NOVEMBER 2021 / 1ST AGRAHAYANA, 1943

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WP(C) NO. 6937 OF 2021

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PETITIONER/S:

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1 DR. C.J.JOHN

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AGED 41 YEARS

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44/2671, 7TH AVENUE, ASHOKA ROAD, KALOOR P.O., KOCHI,
PIN-682017.

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2DR. A.BASHEER KUTTY,
SARGAM, PRIYADARSHININAGAR, MEDICAL COLLEGE POST,
THIRUVANANTHAPURAM, PIN-695011.

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3 FR. GEORGE JOSHUA, ARCH BISHOP MAR GREGORIOS SNEHAVEEDU, BENEDICT NAGAR, NALANCHIRA, THIRUVANANTHAPURAM-695015.

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BY ADVS.

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MATHEW B KURIAN

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K.T.THOMAS
SRI.NIKHIL BERNY

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RESPONDENT/S:

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1UNION OF INDIA
REP. BY SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT,
NIRMAN BHAVAN, NEAR UDYOG BHAWAN METRO STATION, MAULANA
AZAD RD, NEW DELHI-110011.

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2 STATE OF KERALA,

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REP. BY CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT OF
KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-
695001.

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3THE SECRETARY TO GOVERNMENT,
GOVERNMENT OF KERALA, DEPARTMENT OF HEALTH AND FAMILY
WELFARE, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.

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WP(C) NO. 6937 OF 2021

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4 THE SPECIAL SECRETARY TO GOVERNMENT, GOVERNMENT OF KERALA, GENERAL ADMINISTRATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.

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5 KERALA STATE MENTAL HEALTH AUTHORITY, RED CROSS ROAD, THIRUVANANTHAPURAM-695001, REP. BY ITS SECRETARY.

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6 THE SECRETARY IN CHARGE, KERALA STATE MENTAL HEALTH AUTHORITY, RED CROSS ROAD, THIRUVANANTHAPURAM-695035.

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7 BRANCH OF INDIAN PSYCHIARTIC SOCIETY (KERALA) IMA HOUSE, PALARIVATTOM P.O., KOCHI-682025, REP. BY ITS SECRETARY.

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BY ADVS.

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SRI.JAGADEESH LAKSHMAN, CGC
SHRI.N.MANOJ KUMAR, STATE ATTORNEY
SRI.P.G.PRAMOD, GOVERNMENT PLEADER
LITTO PALATHINGAL

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OTHER PRESENT:

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SRI.V.RAMKUMAR NAMBIAR
GP P.G.PRAMOD

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
22.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 6937 OF 2021

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JUDGMENT

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The petitioners are the Ex-Officio members of the Kerala State Mental Health Authority. Petitioners challenge Ext.P6 and Ext.P7, by which the Government created the post of the Chief Executive Officer of the Kerala State Mental Health Authority. It was stipulated that the Chief Executive Officer of the Kerala State Mental Health Authority shall be in the rank of “Deputy Secretary to the Government in Administrative Secretariat”. By Ext.P7 administrative order dated 04.03.2021, one Under Secretary, who was promoted to the post of Deputy Secretary was appointed as the Chief Executive Officer, subject to the Rules.

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The crux of the contention set up by the petitioners is that Sec.52(3) of the Mental Health Act provides that Chief Executive Officer shall not be below the rank of Deputy Secretary. However, by Ext.P6, the Government constituted State Mental Health authority and created the post of Chief Executive Officer prescribing that he will be “Deputy Secretary to Government in “Administrative Secretariat” According to the petitioners, it was is in violation of the qualification

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WP(C) NO. 6937 OF 2021

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prescribed by Section 52 of the Mental Health Act, 2017. The Government has filed a statement, which was replied by a reply affidavit and an additional statement was also filed.

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Heard the learned counsel for the petitioners, the learned Government Pleader and Sri.V.Ramkumar Nambiar, who as the Amicus Curie, placed on record the entire facts, the significance of the post and legal issues involved and assisted this court very effectively.

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Section 52 (1) of the Mental Health Act, provides that there shall be a Chief Executive Officer of the State Authority not below the rank of “Deputy Secretary to the State Government” to be appointed by the State Government. Section 53 of the Mental Health Act deals with the functions of the Chief Executive Officer of the State Authority. According to the learned counsel for the petitioners, the Officer who is the Chief Executive Officer, shall be in the rank of “Deputy Secretary to the State Government” and not “Deputy Secretary to the Government in Administrative Secretariat”. According to the learned counsel, such an addition in the qualification was done malafide, is ultra vires the Act and was intended to dilute the authority of the Chief Executive Officer.

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WP(C) NO. 6937 OF 2021

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Defending the above, the learned Government Pleader invited my attention to the various provisions of the Mental Health Act, including the duties of the Chief Executive Officer of the State Authority and contended that they are mainly administrative in nature. It was pointed out by the learned Government Pleader that post of Deputy Secretary to Government is not a common cadre rather the post is placed in three different cadres, as Deputy Secretary to Government in the Administrative Secretariat, Finance Secretariat and Law Secretariat. There is no implied bar in the consolidation of the officers in the same rank in other departments as well, such as Finance Department or Law Department, it was contended.

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The learned Amicus Curie referring to the reply, pointed out that Act confers wide power on the Chief Executive Officer, including Administrative control over the various mental health centres and in advising the Government. Such wide powers are conspicuously absent in Section 53 under the present Act. Possibly that might be the basis on which the State Government introduced the term “Administrative Secretariat” in Ext.P6, it was contended. However, the learned Amicus curie also pointed out that the term used in

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WP(C) NO. 6937 OF 2021

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Section 52 is the “Deputy Secretary” and by an administrative order, it cannot be supplemented nor can it be varied or modified.

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It is clear that Section 52 qualifies the Chief Executive Officer as a person in the rank of Deputy Secretary. This court in the course of the proceedings had specifically asked the learned Government Pleader to ascertain and to explain the stage at which the suggestion to incorporate “Administrative Secretariat” in Ext.P6 was mooted. In answer to this, the learned Government Pleader relied on a communication dated 06.11.2021 of the Principal Secretary to the Government addressed to the Advocate General answering the above query of the court that, as per Section 52 (1) of the Mental Health Act, the post of Chief Executive Officer is in the rank of the Deputy Secretary to the Government, and as such created in the Kerala State Mental Health Authority. The functions of the Chief Executive Officer is purely administrative in nature. Therefore, the term “Administrative Secretariat” is included in Ext.P6 Government Order, it was argued.

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Evidently, no valid explanation is forthcoming as to why the term, “Administrative Secretariat” was added in the qualification. The possibility of persons of lesser experience being posted can not be

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WP(C) NO. 6937 OF 2021 7

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ruled out. To that extent, I am not inclined to accept the justification that, since the post of Chief Executive Officer is essentially administrative, the term “Administrative Secretariat” has been added.

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The rank of the concerned Chief Executive Officer as contemplated in the Act is clear and beyond any ambiguity. There is no reason as to why such a suffix is added.

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Having considered this, I am inclined to quash Ext.P6 to the extent of directing that the Chief Executive Officer of the Kerala State Mental Health Authority shall be in the rank of Deputy Secretary to the Government, “Administrative Secretariat” and to that extent, the Government is under obligation to give effect to Section 52 of the Mental Health Act in letter and spirit, considering the complex and sensitive authority vested on it. The words “in Administrative Secretariat” stands quashed. Consequential orders shall be issued by the Government accordingly, within one month from the date of receipt of a copy of this judgment.

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Writ Petition is allowed in part.

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Sd/-

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SUNIL THOMAS, JUDGE

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R.AV

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WP(C) NO. 6937 OF 2021

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APPENDIX OF WP(C) 6937/2021

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`PETITIO` `EXHIBIT`	`NER EXHIBITS` `P1`	`TRUE COPY` `RULES, 20`	`OF THE KERALA STATE MENTAL HEALTH` `12.`
`EXHIBIT`	`P2`	`TRUE COPY` `16.7.2019`	`OF G.O.(P)NO.87/2019/H&FWD DATED` `ISSUED BY GOVERNMENT OF KERALA.`
`EXHIBIT`	`P3`	`TRUE COPY` `4.10.2019`	`OF G.O.(RT)NO.2389/2019/H&FWD DATED` `ISSUED BY GOVERNMENT OF KERALA.`
`EXHIBIT`	`P4`	`TRUE COPY` `29.2.2020`	`OF GO(P)NO.6/2020/H&FWD DATED` `ISSUED BY GOVERNMENT.`
`EXHIBIT`	`P5`	`TRUE COPY` `8.1.2021`	`OF G.O.(P)NO.3/2021/H&FWD DATED` `ISSUED BY GOVERNMENT.`
`EXHIBIT`	`P6`	`TRUE COPY` `16.2.2021`	`OF G.O.(MS)NO.41/2021/H&FWD DATED` `ISSUED BY GOVERNMENT OF KERALA.`
`EXHIBIT`	`P7`	`TRUE COPY` `4.3.2021`	`OF G.O.(RT)NO.1007/2021/GAD DATED` `ISSUED BY GOVERNMENT OF KERALA.`
`EXHIBIT`	`P8`	`TRUE COPY` `SUBMITTED`	`OF REPRESENTATION DATED 6.3.2021` `BY PETITIONERS.`
`EXHIBIT`	`P9`	`TRUE COPY` `ISSUED BY`	`OF G.O.(MS)NO.21 DATED 29.1.2019` `GOVERNMENT OF TAMILNADU.`
`EXHIBIT`	`P10`	`TRUE COPY`	`OF NOTES TO COUNCIL OF MINISTERS`
`EXHIBIT`	`P11`	`TRUE COPY` `DATED 15.`	`OF PROCEEDINGS OF CABINET MEETING` `02.2021.`
`EXHIBIT`	`P12`	`TRUE COPY` `3RD RESPO`	`OF ORDER DATED 18.02.2021 ISSUED BY` `NDENT.`
`EXHIBIT`	`P14`	`TRUE COPY` `SCHEDULE` `GOVERNMEN`	`OF THE RELEVANT EXTRACT OF FIRST` `PART II RULES OF BUSINESS OF` `T OF KERALA.`

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WP(C) NO. 6937 OF 2021

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EXHIBIT P14TRUE COPY OF THE RELEVANT EXTRACT OF THE
WEBSITE OF GENERAL ADMINISTRATION DEPARTMENT,
GOVERNMENT OF KERALA.
RESPONDENT’S/S
EXHIBITS
EXHIBIT R3(A)TRUE COPY OF G.O.(P) NO.11/2018/p&ard DATED
02.06.2018.

Dr. C.J.John v. Union of India

Case brief

What is this about?

What did the court decide?

Dr. C.J.John v. Union of India

Case brief

What is this about?

What did the court decide?

What the court decided

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