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2013 DIGILAW 630 (KER)

Venugopal v. Aneesh Kumar

2013-07-23

C.T.RAVIKUMAR, THOTTATHIL B.RADHAKRISHNAN

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ORDER : Thottathil B. Radhakrishnan, J. 1. The judgment sought to be reviewed was rendered holding that it is only a servant of Government of Kerala, who is not below the rank of Deputy Collector, who can be appointed as administrator in terms of S. 14 of the Guruvayur Devaswom Act, 1978, for short, the 'G.D. Act' and that the Legislature has made specific prescription in identifying the field of choice from which the Guruvayur Devaswom Managing Committee could appoint the administrator. One review petition is by the third respondent in the Writ Petition who was held to be not a servant of Government of Kerala and who is not one who can be held to be in the rank of Deputy Collector in the service of the Government of Kerala. The other is instituted with leave, by an officer in the Postal Department of the central Government, who pleads that the phrase "officer of Government" in S. 14 of the G.D. Act includes an officer of Central Government and therefore, the decision on the Writ Petition confining the field of choice to servants of Government of Kerala needs to be reviewed. We have heard respective learned senior counsel for the review petitioners, the learned counsel for the private respondent (writ petitioner), the Senior Government Pleader and the standing counsel for the Guruvayur Devaswom. 2. Relying on Gurugobinda Basu Vs. Sankari Prasad Ghosal and Others, , Divya Prakash Vs. Kultar Chand Rana and Another, , State of Gujarat and Another Vs. Raman Lal Keshav Lal Soni and Others, and Biharilal Dobray Vs. Roshan Lal Dobray, , it was argued by Senior Advocate O.V. Radhakrishnan that the phrase "officer of Government" has been erroneously understood by this Court while interpreting S. 14(1) of the G.D. Act. Kultar Chand Rana and Another, , State of Gujarat and Another Vs. Raman Lal Keshav Lal Soni and Others, and Biharilal Dobray Vs. Roshan Lal Dobray, , it was argued by Senior Advocate O.V. Radhakrishnan that the phrase "officer of Government" has been erroneously understood by this Court while interpreting S. 14(1) of the G.D. Act. Further, making reference to the National Forest Policy, 1988 Resolution, he argued that the activities of the establishment Kerala Forest Research institute, where the third respondent in the Writ Petition is employed, are essentially connected to duties and responsibilities of the State Government and that Institute which is an institution under the Kerala State Council for Science, Technology and Environment is to be treated as parts of governmental function and therefore, when it was shown that the said incumbent was drawing pay in a scale above that of the scale of pay of Deputy Collector, there was no reason to hold that he is not an officer of Government not below the rank of Deputy Collector for the purpose of S. 14(1) of the G.D. Act. Elucidating on this, reference was made to judgment dated 6th July 2011 - T.N. Godavarman Thirumulpad v. Union of India (2011 - LAWS (SC-7-14) = Lafarge Umiam Mining Pvt. Ltd. Vs. Union of India (UOI) and Others, to point out that it has been declared by the Apex Court that National Forest Policy, 1988 which lays down far-reaching principles must be taken as the road map to ecological protection and improvement under the forest and environmental laws referred to in that precedent. Making reference to Pashupati Nath Sukul and Others Vs. Nem Chandra Jain and Others, it was argued that when expressions "Government" and "officer of Government" are not defined, the provisions of the General Clauses Act would apply and "Government" or "the Government" shall include both the Central Government and any State Government. Reference was made to Mohinder Singh Vs. State of Haryana and Others, and Madhukar Madhukar G.E. Pankakar Vs. Jaswant Chobbildas Rajani and Others, to argue that the concept of "officer under Government" has to be understood in a wider perspective. Hari Nandan Sharan Bhatnagar Vs. Reference was made to Mohinder Singh Vs. State of Haryana and Others, and Madhukar Madhukar G.E. Pankakar Vs. Jaswant Chobbildas Rajani and Others, to argue that the concept of "officer under Government" has to be understood in a wider perspective. Hari Nandan Sharan Bhatnagar Vs. S.N. Dixit and Another, was referred to, to point out that all officials working in the same scale of pay in a department, although holding posts with different designations, shall be deemed to be holding posts in the same grade, because their rank in the same department will be the same and equal to one another. N.C. Dalwadi Vs. State of Gujarat, was also referred to, in the context of the question as to what is rank and grade. It was also argued that the finding in the judgment sought to be reviewed that such a litigation could be entertained at the instance of a devotee of Guruvayur temple, is not sustainable because, the matter relates to service and appointment and cannot be agitated in the Public interest Litigation regime. 3. Senior Advocate N.N. Sugunapalan argued that the word "the" not being prefixed to "Government" in S. 14(1) of the G.D. Act, the field of choice does not get confined to servants of the Government of Kerala and the servants of the Central Government would also fall within the field of choice. Reference was made to the provisions of the General Clauses Act, 1897 and the law stated in Rampratap Jaidayal Vs. Dominion of India, and Assistant Director, Central Intelligence Vs. Th. Harnam Chand and Others and the law laid down by the Hon'ble Supreme Court in Tejmohammed Hussainkhan Pathan Vs. V.J. Raghuvanshi and another, . 4. Per contra, the learned counsel for the private respondent (writ petitioner) argued that there is no error apparent on the face of the record of the judgment or any other ground warranting interference. 5. Firstly, we shall deal with the contention that the term of "Government" in S. 14(1) of the G.D. Act is not confined to servants of Government of Kerala and therefore, the field of choice would take in servants of the Central Government as well. The word "Government" is not defined in that Act. The G.D. Act being a State Act, the Kerala Interpretation and General Clauses Act, 1125, for short, the 'Kerala I. & G.C. Act', will apply. The word "Government" is not defined in that Act. The G.D. Act being a State Act, the Kerala Interpretation and General Clauses Act, 1125, for short, the 'Kerala I. & G.C. Act', will apply. "Government" is defined in S. 2(15) of the Kerala I. & G.C. Act. The G.D. Act, being one which came into force after the commencement of the Constitution (Seventh Amendment) Act, 1956, applying Clause (c) of S. 2(15) of the Kerala I. & G.C. Act, the word "Government" in S. 14 of the G.D. Act means the "Government of the State of Kerala". The prescription in S. 2 of the Kerala I. & G.C. Act is, among other things, that in all enactments passed after the commencement of that Act, unless there is anything repugnant in the subject or context, the definitions in S. 2 would apply. No argument is advanced; nor could there be any; that there is anything repugnant in the subject or context of S. 14(1) of the G.D. Act, which is under consideration, being considered herein. The legislative device used in Clause (15)(c) of S. 2 of Kerala I. & G.C. Act is "shall mean". Hence, it shall mean what is expressly stated to mean; nothing beyond; nothing less. Therefore, there is no room for any interpretation or construction which would go beyond such legislative prescription. 6. Rampratap (supra) and Assistant Director, C.I. (supra) were rendered applying the provisions of the General Clauses Act, 1897, the Central Act, wherein the term "Government" or "the Government" shall include both the Central Government and any State Government. S. 3 of the General Clauses Act applies the definitions therein to that Act and to all Central Acts and Regulations made after the commencement of that Act. Therefore, the prescribed definitions in the General Clauses Act do not apply to a state Act. As already noted, the Act under consideration is a State Act and therefore, it is the Kerala I. & G.C. Act that applies. We see that an argument was raised in a case, namely, Moideen Vs. Assistant Wild Life Warden, that S. 4A of the General Clauses Act states that certain definitions in S. 3 (which includes 'Government') shall apply, unless there is anything repugnant in the subject or context, to all Indian laws. 7. We see that an argument was raised in a case, namely, Moideen Vs. Assistant Wild Life Warden, that S. 4A of the General Clauses Act states that certain definitions in S. 3 (which includes 'Government') shall apply, unless there is anything repugnant in the subject or context, to all Indian laws. 7. In deciding that case, the learned Judge noted that S. 4A of the General Clauses Act does not refer to "the Government" but only to "Government". We, however, see that S. 4A of the General Clauses Act does not impact the interpretation or definition of any expression in any Act or Regulation made by the State of Kerala. This is because, S. 4A(1) vividly applies only to "Indian laws", S. 3(29) of the General Clauses Act defines "Indian law" to mean any Act, Ordinance, Regulation, rule, order, bye-law or other instrument as described therein which has the force of law in any Part A State or Part C State or Part thereof. S. 2(41) of the General Clauses Act defines "Part A State", "Part B State" and "Part C State" with reference to the inclusions in the First Schedule to the Constitution of India, only laws in force, in any Part A State or Part C State would fall within S. 4A(1) of the General Clauses Act. No law made by a Part B State, therefore, falls within the term "Indian law" as defined in S. 3(29) of the General Clauses Act. 8. Tejmohammed Hussainkhan Pathan (supra) arose for consideration in the context of contrasting the terms "the Government" and "the State Government" in two clauses of the Section of the Act that fell for consideration therein. That judgment cannot be applied as a precedent to the issue in hand, more particularly, in view of the finding above, applying the Kerala I. & G.C. Act. 9. The different other submissions made on behalf of the review petitioners as to the concept of "officer under Government" vis-a-vis "officer of Government", based on the precedents referred to in paragraph 3 above, also do not merit acceptance. The interpretation of the term "Government" in S. 14(1) of the G.D. Act, as already found, has necessarily to be applying the specific meaning given to that term in the Kerala I. & G.C. Act. The interpretation of the term "Government" in S. 14(1) of the G.D. Act, as already found, has necessarily to be applying the specific meaning given to that term in the Kerala I. & G.C. Act. The contextual setting of the phrase "officer of the Government" in S. 14(1) of the G.D. Act can be understood only to mean an officer borne on a State service regulated by the provisions of the Kerala Public Services Act and the Rules framed thereunder. There is nothing in the National Forest Policy, 1988 Resolution or in the pronouncement of the Hon'ble Supreme Court in T.N. Godavarman Thirumulpad (supra) giving any indication as to the quality of office and the jural relationship between the Government servant or officer of Government and, the Government of the State of Kerala. The said Policy and precedent taken together stands among the declared obligations of persons dealing with the management of forests and implementation of environmental laws. It does not aid the case of the review petitioners to expand the scope of the term "officer of Government not below the rank of Deputy Collector" occurring in S. 14(1) of the G.D. Act. Any attempt to bring within the zone of such phraseology, any class of officers beyond those who are in Government service, that is to say, in the service of the Government of the State of Kerala, would exceed the specific legislative prescription, Similarly, some of the precedents cited were rendered with reference to the provisions in the General Clauses Act (Central Act). As already held, they do not apply to the interpretation of the words in the G.D. Act. 10. Beyond the aforesaid is the fact that there is no error apparent on the face of the record of the judgment sought to be reviewed, as regards the aforesaid issues. Equally, we do not find that there is any error apparent, as regards the finding that the Writ Petition was eligible to be entertained, having regard to the law laid by the Apex Court in Guruvayur Devaswom Managing Commit. and Another Vs. C.K. Rajan and Others, . For the aforesaid reasons, the applications for review fail. They are accordingly dismissed.