Point of Law : Since the appointment of the 7th respondent is made, creating a supernumerary post, there is no other option to the petitioner, than to approach this Court, by filing a writ petition seeking for a writ of quo warranto, which in our view, is in public interest and is maintainable in law.

JUDGMENT :

S. Manikumar, J

Instant Public Interest Litigation is filed for the following reliefs:

(i) Issue a writ, order or direction, in the nature of certiorari, quashing Exhibit-P1 G.O.(Ms.) No.79/2018/G.A.D dated 6.4.2018, issued by the Secretary, General Administration (Compassionate Employment Cell) Department, Thiruvananthapuram; and Exhibit-P3 Appointment Order No. E.C.2/8829/2018 dated 10.04.2018, issued by the Chief Engineer (Administration) to the 7th respondent;

(ii) Issue a writ of quo warranto and such other writ, order or direction, causing removal of the 7th respondent from the Government service and the post/office of the Assistant Engineer (Electronics) in the Public Works Department; and

(iii) Issue a writ, order or direction, in the nature of mandamus, commanding respondents 1, 3 and 4, to recover from the 7th respondent all monies, which were received as salary/ pay/allowances/increments/bonus/any other payment bearing any nomenclature, by him while he was holding the post of Assistant Engineer, from the State Exchequer, within a time frame to be stipulated by this Court.

2. Facts leading to the filing of the instant writ petition are that, respondent No.7, son of a deceased member of Kerala Legislative Assembly from Chengannur Constituency, was appointed to the post of Assistant Engineer (Electronics), Public Works Department, Government of Kerala, vide G.O.(Ms.) No.79/2018/G.A.D dated 6.4.2018 (Exhibit-P1), issued by the 2nd respondent, viz., the General Administration (Compassionate Employment Cell) Department, represented through Secretary, Government Secretariat, Thiruvananthapuram, and Exhibit-P3 appointment order dated 10.04.2018, issued by the Chief Engineer (Administration).

3. Petitioner has further stated that MLA is not a Government servant and that his son, the 7th respondent, does not come under the purview of Exhibit-P4 G.O.(P) No.12/99/P&ARD dated 24.05.1999, issued in respect of compassionate employment.

4. He has further contended that Exhibits-P1 & P3 cannot be issued under Exhibit-P4 scheme, or under any other law in force, and therefore, issued without power, and thus, a nullity.

5. Petitioner has further stated that the post of Assistant Engineer (Electronics), in the 4th respondent Public Works Department, is a Gazetted Post, in the pay-scale of Rs.39,500-83,000/-and that the source of appointment is, either by promotion or by direct recruitment, through Public Service Commission. The duties assigned to the said post are, in accordance with paragraph Nos.105.4 & 202.10 of the PWD Manual [revised as per G.O.(P) No.13/2012/PWD dated 1.2.2012 (Exhibit-P2)].

6. Petitioner has further stated that Public Service Commission, when it comes to the mode of direct recruitment of an Assistant Engineer, conducts a series of tests and thereafter interview, to ascertain the competency and suitability of a person to become an Assistant Engineer. According to the petitioner, once a person passes the standards set out by the PSC, he/she is found suitable and competent, in the eye of law.

7. Petitioner has further stated that the 7th respondent was appointed as per Exhibit-P3 order, which clearly states that “Compassionate Appointment for the Son of Late MLA”. According to the petitioner, Exhibit-P4 is a compassionate scheme, solely applicable to Government servants and that the order in the nature of Exhibit-P3, cannot be said to have been issued in accordance with Exhibit-P4 scheme.

8. According to the petitioner, Exhibits-P1 & P3 orders cannot be said to be a policy. Even if the State Government maliciously defends their act of unconstitutionality, claiming that Exhibits-P1 and P3, as their policy, it is in contravention to Article 16 of the Constitution of India, which cannot stand the test of law.

9. In the above circumstances, petitioner has sought indulgence of this Court, for three reasons, viz., (i) the merit system of equality envisaged by the Constitution, is sabotaged by Exhibits-P1 & P3 orders, (ii)