Point of Law: Election to legislative assembly – Investigation - Proceedings for judicial review, the court could examine an error of fact touching the merit of decision only if it has a direct nexus to the decision making process.

JUDGMENT :

P.B.Suresh Kumar, J.

Ext.P8 report submitted by the Kerala Lok Ayukta to the Chief Minister of the State under Section 12(3) of the Kerala Lok Ayukta Act, 1999 (the Act) in a complaint lodged by the first respondent against the petitioner and others, is under challenge in this proceedings under Article 226 of the Constitution.

2. The relevant facts are the following; The petitioner was elected to the Kerala Legislative Assembly in the election held on 16.05.2016 and has been a member of the Council of Ministers of the State since 25.05.2016. The case of the first respondent in the complaint is that the petitioner has violated the oath of office by abusing his position as a Minister and indulging in favouritism and nepotism in appointing the fifth respondent as the General Manager of the Kerala State Minorities Development Finance Corporation (the Corporation). The prayer in the complaint was therefore, for an investigation into the matter and to submit a report to the competent authority with its recommendations as provided for under Section 12(3) of the Act. There was also a prayer for a declaration under Section 14 of the Act that the petitioner is not entitled to continue as a Minister.

3. It is alleged by the first respondent in the complaint that the Corporation is one constituted by the Government of Kerala for the welfare of the minorities; that the academic qualification prescribed by the Government for appointment to the post of General Manager was Graduation with MBA or CS/CA/ICWAI; that the said qualification was prescribed after thorough deliberation and with the approval of the Council of Ministers; that persons possessing the said qualification were holding the office of the General Manager ever since its establishment; that immediately on assumption of office by the petitioner as the Minister in charge of the Minority Development Department, which is the administrative department of the Corporation, the Government issued an order on 18.08.2016 modifying the educational qualification prescribed for appointment to the post of General Manager by adding B.Tech with PGDBA (Post Graduate Diploma in Business Administration) as an alternative educational qualification based on a note issued by the petitioner directing such a modification. It is also alleged in the complaint that though a query was raised by the General Administration Department of the State Government on the said note of the petitioner that the concurrence of the Finance Department is required for modifying the qualification for the post since the original qualification was prescribed with the concurrence of the Finance Department, the petitioner intervened and directed the file to be placed before the Chief Minister so as to get over the query, and the Government Order dated 18.08.2016 was issued thereafter with the orders of the Chief Minister. It is further alleged in the complaint that there was no proposal from the Corporation to the Government for modifying the educational qualification for the post; that educational qualifications for the post was modified by the petitioner with a view to facilitate the appointment of the fifth respondent, a cousin of the petitioner who possess only the additional qualification added by the Government in terms of the order dated 18.08.2016; that immediately thereupon, on 25.08.2016, the Corporation issued a notification inviting applications for appointment to the post of General Manager; that the fifth respondent has though applied for selection pursuant to the said invitation, he did not turn up for the interview and no one was appointed pursuant to the said invitation and the said selection process was later cancelled. It is further alleged in the complaint that after sometime, the fifth respondent submitted a request to the Managing Director of the Corporation for appointment as General Manager on deputation basis; that the Managing Director of the Corporation forwarded the said request to the Governme