2016 Supreme(Ker) 46
IN THE HIGH COURT OF KERALA AT ERNAKULAM
ASHOK BHUSHAN, A.M. SHAFFIQUE, JJ.
State of Kerala & Anr. - Appellants
Vs.
Prof. T.V Balan Ex-Member, Ombudsman, "Priyendu" & Anr. - Respondents
W.A. Nos. 720, 728, 756 & 775 OF 2014
Decided on : 27-01-2016
Advocate Appeared:
Smt. Girija Gopal
R1 Sri. M.K. Damodaran, Sri. O.V. Maniprasad, Sri. Gilbert George
Headnote:
Kerala Panchayat Raj Act, 1994 - Section 271G - Term of office and conditions of service of ombudsman - Whether petitioner entitle to salary for the period during which they could not complete their tenure of Ombudsman - Held, Existing Ombudsman deemed to have vacated office consequent to statutory amendments in 2001 - While computing the payment of compensation to the petitioners their tenure has to be treated as three years only - Incumbents are entitled to salary for the rest of the term of office, despite the fact that they had not discharged duties attached to that office.
Ashok Bhushan, J.
These writ appeals arise out of a common judgment dated 24.06.2013 passed in four writ petitions. W.A. No.720 of 2014 arises out of W.P.(C) No.25045 of 2006, W.A. No. 728 of 2014 arises out of W.P.(C) No. 36204 of 2001, W.A. No. 756 of 2014 arises out of W.P.(C) No.35084 of 2001 and W.A. No.775 of 2014 arises out of W.P.(C) No. 36197 of 2001.
2. The writ petitioners are the respondents in the appeals. Parties shall be referred to as described in the writ petition. W.A. No.720 of 2014 is being treated as the leading case and facts giving rise to the writ appeal shall suffice in deciding the issues raised in all the appeals.
3. The petitioners who had filed the writ petition were appointed as members of Ombudsman as per Section 271G(2) of the Kerala Panchayat Raj Act, 1994 by Notification dated 29.05.2000. In all, 7 persons were appointed as members of the Ombudsman. All the petitioners joined their offices as members of Ombudsman on 30.05.2000. The provision providing for creating of Ombudsman was incorporated in the Kerala Panchayat Raj Act, 1994 by Act 13 of 1999 by which Chapter XXVB was inserted. Chapter XXVB contained a heading "Ombudsman for Local Self Government Institutions". Section 271G provided for term of office and conditions of Service of Ombudsman. According to Section 271G(4), a person appointed as Ombudsman shall hold office for a term of five years from the date on which he enters upon his office. The provision pertaining to the office of the Ombudsman was inserted by the State Legislature on the recommendation of an Expert Committee namely Dr. Sathya Brata Sen.
4. By Act 12 of 2001 amendments were made in provisions of Section 271G by which a new Section 271G was substituted with effect from 14.09.2001. As a consequence of Act 12 of 2001, the Chairman and Members of the existing Ombudsman constituted under the principal act were deemed to have vacated their office as such. The tenure of Ombudsman were also reduced from 5 years to 3 years. Consequent to Act 12 of 2001 all the petitioners were deemed to have vacated their office. The provisions of Amendment Act 12 of 2001 were challenged in this Court. However, the challenge in O.P. No.21205 of 2000, was repelled by judgment dated 06.09.2000 by this Court. The writ petitions giving rise to these appeals were filed by the members of the Ombudsman. W.P.(C) No.25045 of 2006 was filed by Prof. T.V. Balan with the following prayers:
"I. To declare that the Kerala Panchayat Raj (Amendment) Act, 2001 (Act 12 of 2001) is illegal, unconstitutional and ab initio void;
II. To declare that the petitioner is entitled to get adequate compensation for carrying a burden and disability of not holding any office or position imposed under Section 276G(6) of the Kerala Panchayat Raj Act, after the abrupt cessation of office of Ombudsman.
III. To issue a writ of mandamus order or direction commanding and compelling the respondents to adequately compensate the petitioner for carrying a burden and disability of not holding any office or position imposed under Section 276G(6) of the Kerala Panchayat Raj Act, after the abrupt cessation of office of Ombudsman.
IV. To issue a writ of mandamus, order or direction commanding and compelling the respondents to give an amount equal to the salary and allowances and also other benefits to which the petitioner is entitled as if he had continued as member of Ombudsman from 30.05.2000 for a period of 5 years.
V. To issue a writ of mandamus, order or direction directing the respondents to give the petitioner all pre- requisites including salary, dearness allowance, house rent allowance of Rs.10,000/-, Medical reimbursement and city compensatory allowance etc;
VI. To issue a writ of mandamus, order or direction directing the respondents to give pensionary benefits to the petitioner as if he had functioned as member of Ombudsman for a period of 5 years from 30.05.2000."
Other writ petitions were also filed praying for more or less si