K. K. NAIR v. STATE OF KERALA — 1984 DIGILAW 128 (KER)

Judgment :- 1. A new district, the 13th in the State-Pathanamthitta District-came into being on 1-11-1982. The very decision for the creation of the new district brought in its wake, political, legal and constitutional problems. The decision of the Government was challenged, unsuccessfully as it turned out in Madhusoodanan Nair v. Governor of Kerala. 1983 KLT 43. 2. An office of the Deputy Director for the District was established in Pathanamthitta under the Government Order dated 2-9-1983. The Office functioned there for a short time. A formal inauguration of the office was done by the Minister for Education on 25-11-83 at a public meeting, which, according to the petitioner (in O. P. 10823 of 1983) was attended by "thousands of people in and around Pathanamthitta". The life of the office at Pathanamthitta was, however, a short one. The Government passed an order on 7-12-83 shifting the office to Thiruvalla with immediate effect. The Deputy Director was directed to implement that decision by a communication dated 9-12-83. This decision in turn, generated divergent reactions among the people of the newly formed District. The Member of the Legislative Assembly for the Pathanamthitta Constituency expressed, through legal channel the resentment at the new decision and raised the issue of legality of the action, by filing a writ petition, O. P. No. 10823 of 1983, on 19-12-83. On the petition for a direction not to take any steps for shifting the office this court observed as follows: "Notice. It is submitted by the Addl. Advocate General that the office has already been shifted to Thiruvalla. But it is made clear that the shifting of the office will be subject to the result of the O. P. Post O. P. for hearing on 18-1-84". 3. Yet another writ petition was filed on 27-12-1983. The petitioners were the General Secretary of the District Formation Working Committee, Pathanamthitta and the President of the Kerala Education Department Ministerial Staff Association, Trivandrum, who also happened to be an Upper Division Clerk in the office of the District Education, Pathanamthitta. According to them, the Office had not been shifted to Thiruvalla. There was only a transfer of some files and records from the Pathanamthitta Office. They challenged the action of the Government as vitiated by mala fides. A petition, CMP. No. 34328 of 1983, for maintaining the status quo regarding the proposed shifting of the office was also moved. According to them, the Office had not been shifted to Thiruvalla. There was only a transfer of some files and records from the Pathanamthitta Office. They challenged the action of the Government as vitiated by mala fides. A petition, CMP. No. 34328 of 1983, for maintaining the status quo regarding the proposed shifting of the office was also moved. On 27-12-1983, this court gave an interim direction to maintain 'status quo' as prayed for. 4. Soon thereafter, frayed feelings of the rival sections got reflected in diverse public statements. The statement of Shri. Thomas, the member representing the Legislative Assembly constituency of Thiruvalla is Ext. P5 dated 11-1-1984. It contained a threat that he would withdraw the support to the Ministry, if there was a further shift of the office from Thiruvalla. 5. In the mean time, the order dated 7-12-1983 was ratified by the Council of Ministers on 27-1-1984. With that, there was no scope for one of the contentions raised by the petitioners in the original petition: that a decision taken under Ext. P1 could not be varied otherwise than by a decision of the Council of Ministers. 6. The legality of the decision, even on the basis that it was a decision taken by the Council of Ministers was the subject-matter of attack even thereafter. The point of attack, shorn of unnecessary details, is that extraneous considerations weighed with the Government in reaching the decision for shifting the office from Pathanamthitta to Thiruvalla. Shri Rajan Babu appearing on behalf of the petitioners in O.P. No. 11050 of 1983, forcefully projected that case, keeping a legal trajectory, in that endeavour. Giving an analysis of the contentions contained in the counter-affidavit, he stressed the point that only one reason, namely, the heavy concentration of educational institutions in Thiruvalla, was put forward as the basis of the new decision. If that is demonstrated to be unsustainable, and the basic assumption proved to be non-existent, the decision has to go according to counsel. Statistical data was furnished under Exts. P7 and P8 (list of educational office in Pathanamthitta District, and list of schools within 10 kms. around Pathanamthitta respectively) supplemented by a map of the District, Ext. P9. The argument pressed that way was indeed, prima facie attractive. Statistical data was furnished under Exts. P7 and P8 (list of educational office in Pathanamthitta District, and list of schools within 10 kms. around Pathanamthitta respectively) supplemented by a map of the District, Ext. P9. The argument pressed that way was indeed, prima facie attractive. Particularly so, when counsel stressed the sentence in Para.6 of the counter affidavit reading: "The decision to shift the office at Thiruvalla was taken purely for administrative reasons. It was said that the concentration of all the office at the District Headquarters of the newly formed district could not be in the interest of all the sections of the public within the jurisdiction of the District, besides in and around to Thiruvalla so as to a heavy concentration of educational institutions which require easy access to the office of the Deputy Director. For that reason it was considered necessary that the Office though happened to be inaugurated at Pathanamthitta should be shifted to Thiruvalla which in addition, as more facilities of transport and other conveniences which are required for the purposes". (emphasis supplied) Counsel rightly emphasised that the existence of travel facilities for those passing along Thiruvalla from other regions, would be an irrelevant consideration in the location of an office like the Deputy Director of Education. 7. There was understandable zeal on the part of the petitioner in O.P. 10823/83, to see that Pathanamthitta did not lose one important public office. Many arguments in support of that cause, were put forward in that contention. The legal argument however, is the same as the one already indicated earlier. 8. A formation of a new District, and the location of an office, are essentially matters to be decided by the Government of the day. Courts, unequipped as they are with the information on administrative and other aspects, do not generally oversee such decisions or consider the wisdom or lack of it, underlying the same. That was the approach adopted by this court way back in 1969 when Malappuram District was formed. (See Balakrishnan v. Union of India, 1969 KLT. 693). No doubt, there has been significant developments even in the area of administrative law thereafter. Totally arbitrary and perverse decision may not escape scrutiny by a court of law merely on the ground that it pertains to the administrative field. (See Balakrishnan v. Union of India, 1969 KLT. 693). No doubt, there has been significant developments even in the area of administrative law thereafter. Totally arbitrary and perverse decision may not escape scrutiny by a court of law merely on the ground that it pertains to the administrative field. That is clear from the decision of the Supreme Court in State of Rajasthan v. Union of India AIR. 1977 SC. 1361. Para.29 of the decision is particularly relevant in the context. It reads: "Nevertheless, if all the grounds of action taken are disclosed to the public by the Union Government and its own disclosure of grounds reveals that a constitutionally or legally prohibited or extraneous or collateral purpose is sought to be achieved this Court will not shirk its duty to act in the manner in which the law may then oblige it to act". The approach of the court in relation to that question has been indicated by a Bench of this court even in the very case where the formation of Pathanamthitta District itself was under challenge, 1983 KLT 43 supra. This Court observed: "May be the impugned order is politically motivated. It is difficult for the court to intervene in matters which are completely within the executive powers of the Government and which is purely an administrative matter unless there is a patent abuse of powers. There as pointed out in Balakrishnan v. Union of India (1969 KLT 693) the court should keep aloof from matters which brings court into immediate and active relation with party contests. It will be a judicial intervention into an essentially political contest". The question is whether a patent abuse of powers is made out in the present case. 9. The learned Additional Advocate General appearing on behalf of the State pointed out that the sentence extracted above from the counter-affidavit is only one wherein justification of the decision is given. In particular, he drew my attention to the passages contained in Para.8 of the counter-affidavit reading: "Government had to consider all relevant factors like the facilities available at Thiruvalla, the proximity to a large number of educational institutions and also the desire of the public in finally taking a decision to order of shifting the office from Pathanamthitta to Thiruvalla. In particular, he drew my attention to the passages contained in Para.8 of the counter-affidavit reading: "Government had to consider all relevant factors like the facilities available at Thiruvalla, the proximity to a large number of educational institutions and also the desire of the public in finally taking a decision to order of shifting the office from Pathanamthitta to Thiruvalla. It is respectfully submitted that these are valid considerations, which would weigh with the authorities in arriving at a conclusion as to the location of an important public office which is meant to cater a large section of the public of the District, especially of a district which is educationally much advanced and which can foster a very large number of different educational institutions concentrated in and around to Thiruvalla". 10. The above and other aspects dealt with in the counter-affidavit would show that the decision of the Government is not rested on a single factor, as was attempted to be made out by the petitioners. Other factors too are claimed to have been considered before the decisions was taken. In the light of the principles gatherable from the judicial decisions. I am of the view that the decision cannot be interfered with by this court under Art.226 of the Constitution. As noted earlier, it is not within the functioning of this court to consider the adequacy of the reasons or the propriety of the decision. It cannot be said that the decision is a totally perverse one or a patent abuse of the executive powers. 11. An attempt was made to show that the MLA. from Thiruvalla unduly influenced the ultimate decision. Much arguments were addressed on what was characterised as a delicate equilibrium of the Ministry and the understandable undue influence which even a single member could wield in such difficult situation in the sphere of policy making. A threat of a single member could normally be ignored as a dust in the balance, but in critical situations, it may have a dominant effect, argued counsel. If such dominant effect produced an unjust decision, according to the petitioners, a patent abuse of power could be postulated. T am not inclined to accept the above contention having regard to the factual matrix of the case. The influence of a member of an Assembly in the decision making process of a Government is well understood. If such dominant effect produced an unjust decision, according to the petitioners, a patent abuse of power could be postulated. T am not inclined to accept the above contention having regard to the factual matrix of the case. The influence of a member of an Assembly in the decision making process of a Government is well understood. In a sense, an accusing finger was pointed towards Shri. K. K. Nair, by the petitioner in 1983 KLT 43 supra. Shri. K. K. Nair was one of the respondents in that writ petition. Notwithstanding the fact that his political position had been noted, the administrative decision was upheld by this court. What is good for the gander should be good for the goose too. The decision of the Council of Ministers cannot be assailed for the reason that the Thiruvalla M L A. by his public statement Ext. P5 brought upon the Government, pressure or persuasion. A policy decision is to be made by the Government, as noted earlier. It is well known that "policy making must have for its canvas not only a broad spectrum of consequences, several of them imperceptible and indefinable. but also multiple choices and a host of interests, pulls and leverages exerting in different direction. A policy maker would at once realise that his effort at resolving one issue would give rise to several others and that what he is embarking upon may indeed be a never ending game" (See "Policy Making in Government", Publications Division, Ministry of Information and Broadcasting, Government of India, Page 3). Literature on the science of policy making, has reckoned political influences as relevant factors in the formulation of policy. The idea is expressed in the above publication at page 6 in the following words: "Often a policy is the outcome of political compromise among policy makers none of whom had in mind what eventually may have emerged as the agreed policy by way of a solution. In fact, at times a policy may be the result not of a problem but of an opportunity and on other occasions a policy may come up not as a result of a conscious decision but of an unpredicted occurrence." A senior member of the Indian Civil Service, and a former Cabinet Secretary of the Government of India, Shri S. S. Khers. while writing "On Relationships" in relation to a Legislator and the policy making in Government observed: "It is perfectly within his proper function to exercise pressure, within the political sphere. It is not valid for him to try and exercise any pressure upon any official high or low. This is one of the basic disciplines of sound administration, and any successful breach of it tends to multiply and extend, damaging the whole working of the administrative apparatus. The legislator is also more often than not engaged in political bargaining, but again within the political sphere". (See "Policy Making in Government", Publications Division, Ministry of Information and Broadcasting, Government of India, Page 133). 12. In the present case, there is no allegation of the legislator exercising any pressure on the officials. The pressure he exerted was in a permitted sphere. 13. In the light of the above discussion, the main contention relating to the shifting of the educational offices from Pathanamthitta to Thiruvalla, has to be repelled. The challenge against the order dated 7-12-1983 as ratified by the Council of Ministers on 27-1-84 for the shifting of the office, has to be rejected. I do so. 14. In the light of the interim orders passed by this court, a difficult situation had arisen at any rate as regards the staff of the office. Their grievances were highlighted by counsel for the petitioner in OP. No. 11050 of 1983. The direction of this court passed on 27-12-83 to maintain the status quo, and the fact that the shifting of the office had not progressed in a substantial manner at any rate, have resulted in some difficulty and some confusion, particularly in relation to those who had to work in the office. There appears to be some force in their contention that they have been denied their salary for no fault of theirs. May be the petitioners had also an anxiety to see that the office is not shifted from Pathanamthitta. In as much as the shifting is now held to be legal and permissible, they have necessarily to get reconciled with the new situation. It is desirable that the question of payment of salary and other dues to the staff of the office is considered by the Government in a proper perspective, with due regard to the background of the situation, and if need be with some amount of sympathy. It is desirable that the question of payment of salary and other dues to the staff of the office is considered by the Government in a proper perspective, with due regard to the background of the situation, and if need be with some amount of sympathy. I direct the Government to take a decision in relation to the disbursement of the salary and other emoluments of the staff, within a period of one month from today. Any grievance arising out of the ultimate decision of the Government, could, no doubt be redressed by resorting to appropriate remedies, if redressal is justified, ft is to be hoped that a satisfactory solution would be evolved by the Government. 15. Subject to the above observations the writ petitions are dismissed. There will be no order as to costs.