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2017 Supreme(Ker) 887

IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.B. SURESH KUMAR, J.
Dr. Jasmine Alex – Petitioner
Versus
State of Kerala Rep. by Secretary to Government, Social Justice Department – Respondent
WP (C) No. 1994 of 2017
Decided On : 17-08-2017

Advocates Appeared:
For the Petitioners: Santhosh Mathew, Arun Thomas, Jennis Stephen, Alphin Antony, Vijay V. Paul and Maria Roy.
For the Respondents: Renjith Thampan, P.C. Sasidharan, T.B. Hood, M. Isha, M. Sasindran, Kurian George Kannanthanam, Tony George Kannanthanam, B. Krishna Mani, Rahul Venugopal, N.V. Sandhya and Siju Rajan.

Headnote:

APPOINTMENT - Kerala State Commission for Protection of Child Rights - Commissions for Protection of Child Rights Act, 2005 - Section 17, Rules 3, 4 - The judgment discusses the selection process for the appointment of members in the Kerala State Commission for Protection of Child Rights under the Commissions for Protection of Child Rights Act, 2005. It examines the validity of Ext.P3 notification, which extended the last date for submission of applications, and the subsequent appointments made by the Government. The court emphasizes the need for fair and transparent selection procedures and highlights the disqualifications for appointment as a member of the Commission. It also addresses the issue of political patronage in appointments and the importance of public interest in such selections.

Fact of the Case:

The case relates to the selection process for the appointment of members in the Kerala State Commission for Protection of Child Rights. The petitioner challenges the validity of Ext.P3 notification, which extended the last date for submission of applications, and the subsequent appointments made by the Government. The petitioner alleges that Ext.P3 notification was issued with the ulterior intention of appointing candidates in whom the Government is interested, and seeks directions to complete the selection process initiated pursuant to Ext.P1 notification, ignoring the applications received pursuant to Ext.P3 notification.

Finding of the Court:

The court found that the enlargement of the outer time limit prescribed for submission of the applications by virtue of Ext.P3 notification was not done bona fide. The court quashed Ext.P3 notification and all further proceedings thereto, directing the respondents to fill up the consequent vacancies of the Members of the Commission from among the applicants pursuant to Ext.P1 notification who are included in the wait list.

Issues: The main issues revolved around the validity of Ext.P3 notification, the fairness and transparency of the selection process, and the disqualifications for appointment as a member of the Commission. The court also addressed the issue of political patronage in appointments and the importance of public interest in such selections.

Ratio Decidendi: The court emphasized the need for fair and transparent selection procedures, highlighted the disqualifications for appointment as a member of the Commission, and addressed the issue of political patronage in appointments. The judgment also underscored the importance of public interest in such selections, stating that all actions of public functionaries must be guided by reason and not whim, caprice, or personal predilections.

Final Decision: The writ petition was allowed, and Ext.P3 notification and all further proceedings thereto were quashed. Respondents 1 and 2 were directed to fill up the consequent vacancies of the Members of the Commission from among the applicants pursuant to Ext.P1 notification who are included in the wait list.

JUDGMENT :

1. This matter relates to the selection process undertaken by the State Government for appointment of members in the Kerala State Commission for Protection of Child Rights ('the Commission') constituted under the Commissions for Protection of Child Rights Act, 2005 ('the Act').

2. On 08.11.2016, applications have been invited by the Government for appointment as Members of the Commission as per Ext.P1 notification. The number of vacancies notified were six. It is specified in Ext.P1 notification that the applications should reach the Government before 5.00 p.m. on 30.11.2016 and that belated applications will not be entertained under any circumstances. The petitioner is one of the candidates applied for appointment as the Member of the Commission in response to Ext.P1 notification. On 12.01.2017, the Government notified in newspapers that the time stipulated in Ext.P1 notification for submission of applications is extended till 20.01.2017. In the notice published by the Government in this connection, it is mentioned that further details regarding the same are available in the website mentioned therein. In the website mentioned in the notice published on 12.01.2017, another notification on the same lines of Ext.P1 was made available. Ext.P3 is the said notification. The only change brought about in Ext.P3 notification was as regards the last date fixed for submission of applications. The last date fixed for submission of applications in terms of Ext.P3 notification was 20.01.2017. The case of the petitioner is that Ext.P1 notification was one issued sufficiently in advance in anticipation of the vacancies that would arise in the Commission on 07.01.2017 with a view to ensure the uninterrupted functioning of the Commission and there was, therefore, absolutely no reason at all for the Government to extend the last day fixed for submission of the applications beyond 07.01.2017. According to the petitioner, Ext.P3 notification is one issued with the ulterior intention of appointing candidates in whom the Government is interested, as members of the Commission. It is the specific case of the petitioner that in the light of the provisions contained in the Act and the Kerala State Commission for Protection of Child Rights Rules, 2012 ('the Rules'), persons of the choice of the Government cannot be appointed as Members of the Commission. The petitioner, therefore, challenges Ext.P3 notification as arbitrary and vitiated by malice. The petitioner also seeks directions to the Government to complete the selection process initiated pursuant to Ext.P1 notification, ignoring the applications received pursuant to Ext.P3 notification.

3. On 19.01.2017, this Court passed an interim order directing the respondents to refrain from finalising the proceedings pursuant to Ext.P3 notification for a period of two months and the said order was extended later, from time to time. Despite the said interim order, the vacancies of the Members in the Commission were filled up by the Government on 29.04.2017. The persons who were appointed as Members of the Commission on 29.04.2017 were, thereupon, impleaded by the petitioner as additional respondents 3 to 8 in the writ petition.

4. Three counter affidavits have been filed on behalf of the Government in this matter. In the first counter affidavit dated 18.04.2017, it was contended by the Government that that Ext.P3 notification was issued since 103 applications received pursuant to Ext.P1 notification were not sufficient for a competitive selection. It is stated in the said counter affidavit that 51 more applications have been received pursuant to Ext.P3 notification and the short list of the candidates for selection has been prepared from among the 154 applications received pursuant to both Exts.P1 and P3 notifications. The second counter affidavit dated 05.07.2017 was in fact filed by the Government explaining the circumstances which led to the appointment of additional respondents 3 to 8 as Members o
































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