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1984 DIGILAW 82 (KER)

RAJENDRAN v. K N NARAYANA MENON

1984-03-13

BALAKRISHNA MENON, K.BASKARAN

body1984
Judgment :- 1. Shri T. A. Rajendran, Editor. 'Navab', Fort Cochin, is the petitioner. The respondents 1 to 5 respectively are: (1) Sri K. N. Narayana Menon, Acting Chairman of the Kerala Public Service Commission, (2) Sri K Karunakaran, Chief Minister of Kerala, (3) The Kerala Public Service Commission, represented by its Secretary, (4) State of Kerala, represented by the Chief Secretary, and (5) Governor of Kerala, Raj Bhavan, Trivandrum. The reliefs sought in the writ petition mainly are two, (1) the issue of a writ of quo warranto or other appropriate writ, quashing the appointment of the 1st respondent as the Acting Chairman and Member of the Kerala Public Service Commission under Ext. P2 dated 2-2-1984 and Ext. P1 dated 20-9-1983 respectively and (2) the issue of a writ of certiorari quashing Exts. P1 and P2 2. The substance of the allegation in the writ petition is that the 2nd respondent herein was the 4th respondent in O. P. No. 1141 of 1977 on the file of this Court. In the judgment in that writ petition there was a direction to prosecute him under S 193 IPC. The trial of the case took place in the Court of the Chief Judicial Magistrate, Ernakulam, which was during the material time presided over by the first respondent herein. It is an undisputed fact that the prosecution ended in acquittal of the 2nd respondent as per the judgment given on 12-3-1979 by the first respondent as the then Chief Judicial Magistrate; and that, that acquittal has become final inasmuch as no appeal has admittedly been filed against the said acquittal 3. Ext. P1 is the copy of the order dated 20-9-1983 appointing the first respondent, among others, to be one of the members of the Public Service Commission, under the authority of the 5th respondent-Governor: and Ext. P2 is the order dated 2-2-1984 issued in terms of orders passed by the 5th respondent-Governor authorising the first respondent to discharge the current administrative duties of the Chairman of the Commission till the vacancy caused by the retirement of Sri M. K Hemachandran, Chairman. Kerala Public Service Commission is filled up under the proviso to Regulation.4(1) of the Kerala Public Service Commission (Composition and Condition of Service of Members and Staff) Regulations, 1957. 4. Kerala Public Service Commission is filled up under the proviso to Regulation.4(1) of the Kerala Public Service Commission (Composition and Condition of Service of Members and Staff) Regulations, 1957. 4. The burden of the argument of Sri Rajendran is that it is as a reward for the order of acquittal in respect of the 2nd respondent passed by the first respondent he had been appointed a Member of the Public Service Commission under Ext. P-1 order on 20-9-1983; and so soon thereafter since a vacancy arose on the retirement of Sri. M. K. Hemachandran, who was till then the Chairman of the Commission, authorised him to discharge the current duties of the Chairman. It was also submitted by him that conventionally it was the seniormost Member of the Public Service Commission, who used to be appointed Chairman of the Commission; and Ext. P2 order had been passed in violation of the convention hitherto followed. 5. Under Art.316 of the Constitution, it is the Governor who appoints the Chairman and other members of the Public Service Commission. In the instant case also, Ext. P1 is issued under the authority of the Governor.' So too, the authorisation evidenced by Ext. P2 also was issued under the authority of the Governor. By virtue of the provisions contained in Art.163 of the Constitution, Governor acts as the constitutional head of the State on the advice of the Council of Ministers. In terms of Art.163 (3), "the question whether any, and if so what, advice was tendered by the Ministers to the Governor shall not be enquired into in any Court". The only point raised against the first respondent is that he happened to be the Chief Judicial Magistrate who passed the order of acquittal against the 2nd respondent. We have already noticed that the correctness of the decision in that case has not been canvassed so far and as such it has become final. The presumption therefore would be that the first respondent as Chief Judicial Magistrate had rendered the correct and valid decision. That being the position, the question is whether he is in any way disqualified from being appointed either to be a member of the Commission or from being authorised to discharge the current duties of the Chairman, pending appointment of a Chairman, in the regular course, or for that matter even for being appointed Chairman of the Commission. That being the position, the question is whether he is in any way disqualified from being appointed either to be a member of the Commission or from being authorised to discharge the current duties of the Chairman, pending appointment of a Chairman, in the regular course, or for that matter even for being appointed Chairman of the Commission. We find it difficult to accept the contention of the petitioner that because he had occasion to try a case in which the 2nd respondent was the accused and that case had ended in acquittal he was disqualified from being appointed a member of the Commission or its Chairman. And so far as we could see there is no rule which provides that the seniormost among the members of the Public Service Commission is to be appointed its Chairman. 6. The petitioner submitted that the first respondent ought not to have accepted the post, as it might be misunderstood that the 2nd respondent has favoured him with the office of the member of the Public Service Commission or that of the acting Chairmanship of the Commission, to express his gratitude for having acquitted him in the criminal case. We are not concerned with the moral aspects; nor are we concerned with the impressions or suspicions that might be aroused, on account of the acceptance of the office by the first respondent. We are concerned as to whether there is any illegality or constitutional invalidity in making the appointment by the 5th respondent or in accepting the office by the first respondent. It has to be borne in mind that it is the Governor who makes the appointment and issues the authorisation. Evidently, he could not have and would not have acted solely on the advice of the 2nd respondent but on the advice of the Council of Ministers in term's of Art.163 of the Constitution, though the Court is not entitled to know the nature of the advice given by the Ministers. It would be too much to say that in order to express his sense of gratitude the 2nd respondent must have canvassed among all the Ministers and got the first respondent appointed or influenced the 5th respondent for that matter. 7. Neither mala fides nor constitutional invalidity alleged has been established. This being the position, we do not think there is any ground for this Court to interfere with Exts. 7. Neither mala fides nor constitutional invalidity alleged has been established. This being the position, we do not think there is any ground for this Court to interfere with Exts. PI and P2 either by the issuance of writ of quo warranto or by the issuance of a writ of certiorari assuming that a writ could lie against the action of the Governor in spite of the provisions contained in Art.361 of the Constitution. In this view, the writ petition fails; and is dismissed. A carbon copy of this judgment will be granted to the petitioner on usual terms, if applied for in that behalf.