The court allowed the petition, holding that the petitioner's appointment as Vice-Chancellor by statutory mandate prevented a violation of conduct rules prohibiting additional employment, rendering the show cause notice legally unsustainable.
The original petition allowed; impugned order set aside and show cause notice Annexure A8 quashed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
FRIDAY, THE 20TH DAY OF OCTOBER 2023 / 28TH ASWINA, 1945
OP(KAT) NO. 170 OF 2023
PETITIONER/S:
DR CIZA THOMAS,
AGED 56 YEARS
W/O DR T. JOHN THARAKAN, PRINCIPAL (RETD) GOVERNMENT
ENGINEERING COLLEGE, BARTON HILL, THIRUVANANTHAPURAM-
695035, RESIDENT OF K.P-7/240A, EASWARAN THAMPI NAGAR,
KALLAYAM P.O., THIRUVANANTHAPURAM, KERALA, PIN -
695043
BY ADVS.
NISHA GEORGE
A.L.NAVANEETH KRISHNAN
GEORGE POONTHOTTAM (SR.)
O.P.(KAT) No.170/2023
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RESPONDENT/S:
1 THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 6950012 THE ADDITIONAL SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 6950013 THE DIRECTOR OF TECHNICAL EDUCATION, DIRECTORATE OF TECHNICAL EDUCATION, PADMAVILASOM ROAD, FORT P.O., THIRUVANANTHAPURAM, PIN - 6950234 THE ACCOUNTANT GENERAL (A&E), OFFICE OF THE ACCOUNTANT GENERAL, THIRUVANANTHAPURAM., PIN - 691001 BY ADVS.SHRI.ASOK M.CHERIAN, ADDL. ADVOCATE GENERAL
T.S.SHYAM PRASANTH
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY
HEARD ON 11.10.2023, THE COURT ON 20/10/2023 DELIVERED THE
FOLLOWING:
O.P.(KAT) No.170/2023
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A.MUHAMED MUSTAQUE & SHOBA ANNAMMA EAPEN, JJ.
O.P.(KAT) No.170/2023
Dated this the 20th day of October, 2023
J U D G M E N T
A.Muhamed Mustaque, J.
The petitioner, (Prof.) Dr. Ciza Thomas while officiating as Senior
Joint Director at the Directorate of Technical Education Kerala, was
appointed as the Vice Chancellor of the University temporarily by the
Chancellor of APJ Abdul Kalam Technological University. This resulted
in initiating disciplinary action by the Government of Kerala. A show
cause notice was issued as a prelude to disciplinary action on 10/3/2023
O.P.(KAT) No.170/2023
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pointing out that the petitioner has violated Rule 48 of Government
Servants Conduct Rules, 1960.
2. The petitioner questioned show cause notice before the
Tribunal. The Tribunal refused to interfere with the matter.
3. The simple point in this case is as to the legality of the
show cause notice.
4. The Tribunal or the Court shall not interfere in normal
circumstances with the show cause notice or disciplinary action.
However, there is an exemption to this normal rule. The show cause
notice itself is ex facie arbitrary or issued without authority; or also
issued on a misconceived interpretation of law that defines the conduct
Rules. The very purpose of disciplinary action is to probe into the
allegations levelled against the delinquent employee in the charge memo
and find guilt or non-guilt after inquiry. The Court, while entertaining
O.P.(KAT) No.170/2023
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a challenge against a show cause notice, if can form an opinion on an
adjudication of pure question of law that the validity of show cause
notice can be decided, nothing prevents the Court from deciding upon the
challenge made against the show cause notice. The Tribunal or the Court
is the final arbiter on the point of law. If a decision on pure question
of law would settle the fate of the show cause notice, the Court can
very well entertain the challenge and decide. The Court at this stage
should be circumspect from probing into factual foundation in the show
cause notice and should desist evaluating the facts for taking a
decision.
5. In the light of the law as above, we shall now refer to the
relevant portion of the Rule 48 in Government Service Conduct Rules,
1960 which reads thus:
O.P.(KAT) No.170/2023
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O.P.(KAT) No.170/2023
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O.P.(KAT) No.170/2023
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6. The object of the above rule is to prevent an employee from
directly or indirectly engaging in any trade or business or from
undertaking any new employment, while he is continuing to be a Government
servant. That means, if the Government servant voluntarily acts to
engage any trade or business, or take any employment of any other nature,
that cannot be done without previous sanction from the Government.
7. The petitioner’s appointment as the Vice Chancellor was
consequent upon the office becoming vacant due to a court order
sustaining the challenge of appointment of Doctor Rajashri who did not
possess requisite qualification as per the UGC Regulations 2018. The
Governor of Kerala is the Chancellor of the University. The Governor
has the power to appoint and fill the office of the Vice Chancellor for
a period not exceeding 6 years, by virtue of Section 13(7) of the APJ
Technological University Act, 2015 (Act 17 of 2015). The Governor has
to act on the recommendation of the Government. The Governor, having
O.P.(KAT) No.170/2023
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found that some of the recommendees of the Government do not possess
necessary qualification to tide over the situation, appointed the
petitioner to occupy the office of the Vice Chancellor temporarily. This
Court, on a challenge made by the Government against the appointment of
the petitioner, justified the action of the Chancellor in W.A.
No.1847/2022.
8. The appointment of the petitioner by the Chancellor, who is
the Governor of Kerala, admittedly, is by invoking the statutory
provisions. Rule 48 of the UGC Regulations does not contemplate any
violation of Government servant’s conduct if such an appointment is made
through the process of law. The rule only contemplates taking up of
employment by the Government servant by his own volition. If proper
interpretation of law is accorded as above, it can be seen that show
cause notice is misconceived and legally unsustainable. The Government
servant can only be proceeded for disciplinary action against violation
O.P.(KAT) No.170/2023
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of any existing rules or law. If the appointment is made invoking
statutory provisions in another service, and not based on the individual
application of the Government servant, that will not amount to violation
of Rule 48. Based on the interpretation of Rule 48 as above, we are of
the view that the show cause notice is unsustainable. Further, we note
that in a challenge made by the Government, we had justified the
appointment of the petitioner as the Vice Chancellor. The legality of
her appointment cannot be reopened as inter party judgment would bind
the Government as well. The learned Additional Advocate General Shri
Asok M.Cherian’s argument is that it is not the legality of the
appointment but the conduct of the petitioner which is the subject matter
of the disciplinary action. We are afraid to accept this argument for
the reason that the conduct of the petitioner in taking up the post of
Vice Chancellor temporarily as explained earlier was not on her desire
or application but made by the Chancellor invoking statutory provisions.
O.P.(KAT) No.170/2023
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Thus, the original petition is allowed. The impugned order is set aside
and we quash Annexure A8 before the Tribunal.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
SHOBA ANNAMMA EAPEN
JUDGE
ms
The words “Government Service Conduct Rules” in the first sentence
of para.5 and “UGC Regulations” in the second sentence of para.8 of the
judgment dated 20/10/2023 in OP(KAT).No.170/2023 are suo motu corrected
and substituted with “Government Servants’ Conduct Rules” as per order
dated 27/10/2023 in OP(KAT).No.170/2023.
Sd/- Deputy Registrar
O.P.(KAT) No.170/2023
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APPENDIX OF OP(KAT) 170/2023
PETITIONER ANNEXURES
Annexure-A1TRUE COPY OF THE G.O.(RT)NO.320/2023/HEDN
DATED 06.03.2023 OF GOVERNMENT OF KERALA.
Annexure-A2TRUE COPY OF THE NOTIFICATION NO.GS6-
2838/2022 DATED 03.11.2022 OF THE PRINCIPAL
SECRETARY TO GOVERNOR/CHANCELLOR GOVERNOR'S
SECRETARIAT, KERALA RAJ BHAVAN
Annexure-A2(a)TRUE COPY OF THE COVERING LETTER NO.
GS6.2838/2022DATED 03.11.2022 OF THE
PRINCIPAL SECRETARY TO GOVERNOR/CHANCELLOR
GOVERNOR'S SECRETARIAT KERALA RAJ BHAVAN
Annexure-A3TRUE COPY OF THE REQUEST AND ITS REPLY
DATED 04.11.2022 RECEIVED THROUGH E-MAIL.
Annexure-A4TRUE COPY OF THE JUDGMENT DATED 29.11.2022
IN W.P.(C) NO. 35656/2022 OF THE HON'BLE
HIGH COURT OF KERALA.
Annexure-A5TRUE COPY OF THE ORDER DATED 13.12.2022 IN
W.A.NO. 1847/2022 OF THE HON'BLE HIGH COURT
OF KERALA.
Annexure-A6TRUE COPY OF G.O.(RT)NO.271/2023/HEDN DATED
28.02.2023 OF GOVERNMENT OF KERALA.
Annexure-A7TRUE COPY OF THE INTERIM ORDER DATED
01.03.2023 IN O.A.NO. 339/2023 OF THE
HON'BLE KAT,
O.P.(KAT) No.170/2023
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Annexure-A8TRUE COPY OF THE SHOW CAUSE NOTICE NO.HEDN-
G1/181/2022-HEDN DATED 10.03.2023 BY THE
1ST RESPODNENT.
Annexure-A9TRUE COPY OF THE LETTER NO.
E2305571/BDS1/2022/FIN DATED 31.12.2022 OF
THE ADDITIONAL SECRETARY TO GOVERNMENT
(FINANCE)
Annexure-A10TRUE COPY OF THE LETTER NO. C4/81/2022-HED
DATED 04.02.2023 OF THE ADDITIONAL
SECRETARY TO GOVERNMENT OF KERALA, HIGHER
EDUCATION DEPARTMENT.
Annexure-A11TRUE COPY OF THE JUDGMENT DATED 16.02.2023
IN W.A.NO. 1847 OF 2022 OF THE HON'BLE HIGH
COURT OF KERALA.
Exhibit-P1TRUE COPY OF THE ORDER NO. GS6-2838/2022(2)
DATED 31.03.2023 ISSUED FROM THE GOVERNORS
SECRETARIAT
Exhibit-P2TRUE COPY OF O.A. NO. 435/2023 FILED BEFORE
THE KERALA ADMINISTRATIVE TRIBUNAL,
ERNAKULAM ON 16.03.2023 ALONG WITH ITS
ANNEXURES.
Exhibit-P3TRUE COPY OF THE INTERIM ORDER DATED
17.03.2023 IN O.A. NO. 435/2023 PASSED BY
THE KERALA ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM
Exhibit-P4TRUE COPY OF THE REPLY TO THE SHOW CAUSE
NOTICE DATED 22.03.2023 SUBMITTED BY THE
PETITIONER ALONG WITH ACKNOWLEDGE DATED
22.03.2023
O.P.(KAT) No.170/2023
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Exhibit-P5TRUE COPY OF THE REPLY STATEMENT IN O.A.NO.
435 OF 2023 FILED ON BEHALF OF THE 1ST AND
2ND RESPONDENTS DATED 22.3.2023 BEFORE THE
KERALA ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM
Exhibit-P6TRUE COPY OF THE REJOINDER DATED 27.03.2023
IN O.A.NO. 435 OF 2023 FILED BY THE
APPLICANT BEFORE THE KERALA ADMINISTRATIVE
TRIBUNAL, THIRUVANANTHAPURAM
Exhibit-P7TRUE COPY OF M.A. NO. 568/2023 IN O.A.NO.
435 OF 2023 FILED BY THE APPLICANT BEFORE
THE KERALA ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM, ALONG WITH ITS ANNEXURE
Exhibit-P8TRUE COPY OF THE ORDER DATED 30.03.2023 IN
O.A.NO. 435 OF 2023 PASSED BY THE HON'BLE
KERALA ADMINISTRATIVE TRIBUNAL
Exhibit-P9TRUE COPY OF THE NOTICE NO. HEDN-
G1/181/2022-HEDN DATED 30.3.2023 ISSUED BY
THE GOVERNMENT
Exhibit-P10TRUE COPY OF THE LETTER NO.
KTU/VCO/2023/1932 DATED 31.3.2023 ISSUED BY
THE PETITIONER AS THE VICE CHANCELLOR OF
APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY
Exhibit-P11TRUE COPY OF THE PRINTOUT OF THE E-MAIL
COMMUNICATION DATED 31.03.2023 ISSUED BY
THE PETITIONER
Exhibit-P12TRUE COPY OF THE PROCEEDINGS NO.
E2/466/22/G.E.C.B.H DATED 31.03.2023 ISSUED
FROM THE GOVERNMENT ENGINEERING COLLEGE,
O.P.(KAT) No.170/2023
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Exhibit-P13TRUE COPY OF THE CHARGE MEMO AND STATEMENT
OF ALLEGATIONS DATED NIL ISSUED FROM THE
HIGH EDUCATION DEPARTMENT
Exhibit-P14TRUE COPY OF THE CERTIFICATE OF
APPRECIATION DATED 30.03.2023 ISSUED BY THE
HON'BLE GOVERNOR OF KERALA
Exhibit P15TRUE COPY OF THE ORDER NO. P1/12380/23 /DTE
DATED 22.08.2023 ISSUED BY THE DIRECTOR OF
TECHNICAL EDUCATION
Exhibit P16TRUE COPY OF THE COMMUNICATION
NO.P1/12380/23/ DTE DATED 22.08.2023 ISSUED
BY THE DIRECTOR OF TECHNICAL EDUCATION
3 issues framed by the court
Whether a government appointee made unavoidable by court order in lieu of a qualified incumbent violates Rule 48 of Government Servants' Conduct Rules by undertaking dual employment.
Whether the Administrative Tribunal can decide the legality of a show cause notice based on a pure question of law without probing factual foundation.
Whether a show cause notice issued against a petitioner for assuming office mandated by statutory provisions and court directions is legally sustainable.
DR CIZA THOMAS
THE STATE OF KERALA
THE ADDITIONAL SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT
THE DIRECTOR OF TECHNICAL EDUCATION
THE ACCOUNTANT GENERAL (A&E)
A.MUHAMED MUSTAQUE
SHOBA ANNAMMA EAPEN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court