JUDGMENT : S. MANIKUMAR, J. 1. Aggrieved by an order dated 25.02.2011 in Complaint No. 1337 of 2010 (Exhibit-P3), wherein Upa Lok Ayukta has held that a complaint involving grievance in respect of an action taken by Kerala University, the petitioner herein, in respect of an appointment, is maintainable before the Lok Ayukta, instant writ petition has been filed for the following reliefs: “(a) Issue a writ of certiorari or any other appropriate writ, order or direction, calling for the records leading to Exhibit-P3 and quash the same. (b) Issue any other appropriate writ, order or direction, declaring that Exhibit-P1 complaint is not maintainable before the Lok Ayukta.” 2. Brief facts are as under: Pursuant to a notification dated 21.04.2008, respondent herein submitted an application for appointment to the post of Technical Assistant in the Department of Malayalam Lexicon in Kerala University. According to the petitioner, 25 applications were received for appointment. The application of the respondent was rejected for the reason that he did not possess the required technical qualification. It is stated that since there is only one candidate available possessing the required qualification against four vacancies, Syndicate has decided to re-notify the post and accordingly, a fresh notification was issued on 18.03.2010. 3. Respondent has filed Complaint No. 1337 of 2010 dated 03.08.2010 (Exhibit-P1) challenging the action of Kerala University in re-notifying the selection to the post of Technical Assistant. In the complaint, he has stated that he was one of the applicants to the post in question and he possess the prescribed qualifications for the post. His grievance is that he cannot apply to the post afresh, since he is over aged. Hence, he has sought for a recommendation to be given to the competent authority to enable him to get appointment. 4. Challenging the maintainability of Exhibit-P1 complaint, petitioner has submitted preliminary objections before the Lok Ayukta. According to them, subject matter of the complaint cannot be subjected to investigation under Section 8 of the Kerala Lok Ayukta Act, 1990. The Upa Lok Ayukta considered the question of maintainability and by order dated 25.02.2011 (Exhibit-P3) held that the complaint is maintainable. 5. Challenging the maintainability of Exhibit-P1 complaint, petitioner has submitted preliminary objections before the Lok Ayukta. According to them, subject matter of the complaint cannot be subjected to investigation under Section 8 of the Kerala Lok Ayukta Act, 1990. The Upa Lok Ayukta considered the question of maintainability and by order dated 25.02.2011 (Exhibit-P3) held that the complaint is maintainable. 5. Relying on the decision in Kamalu vs. State of Kerala, 2000 (3) KLT 227 , the petitioner has contended that a complaint involving grievance in respect of an action taken regarding appointment is excluded from the jurisdiction of Lok Ayukta as per Section 8 of the Act. Merely because, certain allegations were made against the University, that will not confer jurisdiction on Lok Ayukta, in matters relating to appointment. 6. Opposing the above contentions, respondent has filed a counter affidavit contending, inter alia, that he is a post graduate in Malayalam Language and Literature [M.A.] has a Post Graduate Diploma in Journalism and also passed State Eligibility Test. Further, he was employed in Cultural and Lexicographical Research Institute under Dr. B.C. Balakrishnan from 10.6.1993 to 8.10.1998 as Editorial Assistant in the Research Wing of the said Institute vide certificate issued by Dr. B.C. Balakrishnan, Director of the said Institute dated 14.10.1998 [Exhibit-R(a)]. He has further contended that pursuant to notification dated 21.04.2008 published by Kerala University, applications were invited to the post of Technical Assistant with four vacancies, in respect of persons aged less than 40, who had the following qualifications viz. M.A. in a related language or equivalent oriental, a minimum three years' experience in Lexicon work. Since he had the required qualification, he applied to the post. At the time of submission of the application, he was aged 39. Even as per the notification, the maximum age within which an application could be made was 40. 7. The respondent has further contended that, he was not called for the interview based on his application and no effective steps were taken for appointment based on the notification dated 21.04.2008. As per the letter dated 24.06.2010, which he obtained under the Right to Information Act, a reply was given that the petitioner had received 25 applications to the post of Technical Assistant. However, nobody was appointed or interviewed, since out of 25 applications, 24 did not possess required qualifications/experience as stipulated in the notification. As per the letter dated 24.06.2010, which he obtained under the Right to Information Act, a reply was given that the petitioner had received 25 applications to the post of Technical Assistant. However, nobody was appointed or interviewed, since out of 25 applications, 24 did not possess required qualifications/experience as stipulated in the notification. Hence, the petitioner had decided to re-notify the vacancies. Left with no other alternative, respondent filed Exhibit-P1 complaint before Upa Lok Ayukta. Upa Lok Ayukta, after considering the complaint, was convinced of the malafides with which the petitioner functioned. The plea that Lok Ayukta does not have jurisdiction to consider the complaint was also met by Lok Ayukta, by giving reasons. According to the respondent, as per Section 8(1) of the Lok Ayukta Act, Lok Ayukta is barred from conducting any investigation in respect of a complaint involving a grievance mentioned in the Second Schedule. However, the Lok Ayukta has absolute right to investigate the allegations levelled against the petitioner. The bar under Section 8(1) of the Act is restricted only in respect of complaints involving grievance in respect of any action if such action relates to any matter specified in the Second Schedule. For the abovesaid reasons, the respondent prayed for dismissal of the writ petition. 8. Heard learned counsel for the parties and perused the material available on record. 9. Notification dated 21.04.2008 produced along with Exhibit-P1 complaint dated 03.08.2010 reads thus: “UNIVERSITY OF KERALA No. Ad.DIII.1.3643/86 Dated: 21.04.2008 NOTIFICATION Subject: Filling up of the posts of Technical Assistant in the Department of Malayalam Lexicon. Applications in the prescribed Form are invited from qualified candidates for appointment to the posts of Technical Assistant in the Department of Malayalam Lexicon. Name of the Post: Technical Assistant Number of Vacancy: Four Scale of Pay: Rs. 9190-15510 Age Limit: Not more than 40 years as on 01.01.2008 and usual relaxation of age to SC/ST. 5 Years and OBC-3 years. Age is relaxable in the case of those who have worked as Editorial Assistants in the University. Age Bar will not be applicable to the staff of the University. Registration Fee: Rs. 500/- (Including the cost of application) Registration Fee for SC/ST candidates: Rs. 125/- Qualification: General Title: MA in a related language or equivalent oriental Technical: A minimum of three years experience in Lexicon work. Age Bar will not be applicable to the staff of the University. Registration Fee: Rs. 500/- (Including the cost of application) Registration Fee for SC/ST candidates: Rs. 125/- Qualification: General Title: MA in a related language or equivalent oriental Technical: A minimum of three years experience in Lexicon work. The Application form and further details can be had from University’s website www.keralauniversity.edu The application form shall be accompanied by Demand Draft or University Pay-in-Slip towards Registration Fee. The Demand Draft should be drawn from State Bank of Travancore/State Bank of India/ District Co-operative Banks in favour of Finance Officer, University of Kerala, Payable at Thiruvananthapuram. The last date for receipt of completed application in the University Office is 04.08.2008. The Candidates may send their application to the Deputy Registrar (Admn.II), University of Kerala, University Buildings, Palayalam Thiruvananthapuram-34. University Buildings Thiruvananthapuram K.A. HASIM REGISTRAR.” 10. Preliminary objections filed by the petitioner to Exhibit-P1 complaint are reproduced as hereunder: “BEFORE THE HONOURABLE LOK AYUKTA, THIRUVANANTHAPURAM Complaint No. 1337 of 2010(B) Complainant: N.R. Anilkumar Respondents: The Vice Chancellor, University of Kerala and Others. Preliminary objections filed by the second respondent for himself and for and on behalf of the first and third respondents in the above case. 1. The Complaint is not maintainable under the Kerala Lok Ayukta Act, 1999. The subject matter of the complaint is not a matter subjected to investigation under Section 8 of the Act. 2. The issue involved in the complaint is an action taken in respect of appointment in the respondent university. The action has not been completed and the appointment has yet been made. So the complaint is not at all maintainable at this stage. 3. The averments and allegations contained in the complaint are not true to facts. The action initiated by the university in making appointments to the post of Technical assistants in the Department of Lexicon is based on utmost bonafides. Ulterior motives alleged against the respondents are absolutely false and incorrect. 4. The complainant is not qualified to be appointed as the Technical assistant and he does not satisfy the norms and eligibility criteria prescribed by the University for the appointment to the said post. So it is humbly prayed that this Hon'ble forum may be pleased to accept this objections and dismiss the complaint and thus justice rendered. 4. The complainant is not qualified to be appointed as the Technical assistant and he does not satisfy the norms and eligibility criteria prescribed by the University for the appointment to the said post. So it is humbly prayed that this Hon'ble forum may be pleased to accept this objections and dismiss the complaint and thus justice rendered. REGISTRAR All the facts stated above are true and correct to the best of my knowledge, information and belief. REGISTRAR.” 11. Order dated 25.02.2011 (Exhibit-P3) passed by Upa Lok Ayukta in Complaint No. 1337 of 2010, is extracted hereunder: “KERALA LOK AYUKTA PRESENT THE HON'BLE MR. JUSTICE G.SASIDHARAN, UPA LOK AYUKTA FRIDAY THE 25TH DAY OF FEBRUARY, 2011 COMPLAINT NO. 1337/2010-B Complainant: N.R. Anil Kumar Respondents: The Vice Chancellor, University of Kerala, Thiruvananthapuram. By Advocate: Sri. N.S. Lal ORDER: University of Kerala issued a notification dated 24.04.2008 inviting applications from eligible candidates to be appointed in the post of Technical Assistant in the Department of Lexicon. According to the complainant four vacancies were notified and he gave application. The complainant would allege that the respondents took a decision for inviting application afresh by issuing other notification. The grievance of the complainant is that he may not be in a position to give application as per the subsequent notification because he became overage. The relief prayed for by the complainant is to give recommendation to the competent authority by sending a report that injustice was caused to the complainant and that has to be redressed. 2. The second respondent filed a petition saying that this complaint is not maintainable and that it may be dismissed for that reason. According to the 2nd respondent the grievance of the complaint is a matter which this forum cannot investigate. Learned counsel appearing for the respondents submits that as per section 8(1) of the Kerala Lok Ayukta Act, the Lok Ayukta or Upa Lok Ayukta shall not conduct any investigation in respect of the matters mentioned in the second schedule. The submission is that as per clause (d) in the second schedule action taken in respect of appointment is excluded from the jurisdiction of this forum. The submission is that as per clause (d) in the second schedule action taken in respect of appointment is excluded from the jurisdiction of this forum. On going through section 8(1) of the Act, it could be seen that the prohibition for conducting investigation under the Act is only in respect of complaints involving grievance in respect of any action if such action relates to any matter specified in the second schedule. On going through the complaint it is seen that there are "allegations" as defined in the Act. In paragraph No. 5 of the complaint it is said that the respondents in taking decision for making appointment by issuing fresh notification are activated in the discharge of their official function by personal interest and improper motives. Further down in paragraph No. 6, it is said that the respondents decision to re-notify the vacancies is with ulterior motive that their candidates would acquire the required qualification for the post. In the light of the above allegations, it is not possible to say that the complaint is one involving “grievance” alone. That being the position, there is no merit in the contention raised by the second respondent that the complaint is not maintainable. It is found that the complaint is maintainable. Learned standing counsel wants adjournment of the case for filing detailed statement. For statement, adjourned to 19.4.2011. Sd/- JUSTICE G.SASIDHARAN, UPA LOK AYUKTA.” 12. The Kerala Lok Ayukta Act, 1999 is an Act to make provision for the appointment and functions of certain authorities for making enquiries into any action (including any omission and commission in connection with or arising out of such action) relatable to matters specified in List II or List III of the Seventh Schedule to the Constitution of India taken by or on behalf of the Government of Kerala or certain public authorities in the State of Kerala in certain cases and for matters connected therewith or ancillary thereto. Section 2(a) of the Act defines what “action” means. As per Section 2(b) of the Act “allegation” in relation to a public servant, means any affirmation that such public servant:- (i) has abused his position as such public servant to obtain any gain or favour to himself or to any other person or to cause undue harm or hardship to any other person. As per Section 2(b) of the Act “allegation” in relation to a public servant, means any affirmation that such public servant:- (i) has abused his position as such public servant to obtain any gain or favour to himself or to any other person or to cause undue harm or hardship to any other person. (ii) was actuated in the discharge of his functions as such public servant by personal interest or improper or corrupt motives. (iii) is guilty of corruption, favouritism, nepotism or lack of integrity in his capacity as such public servant. 13. Section 7 of the Act, which speaks about the matters which may be investigated by Lok Ayukta and Upa Lok Ayukta, is extracted hereunder: “7. Matters which may be investigated by the Lok Ayukta and the Upa-Lok Ayuktas: (1) Subject to the provisions of this Act, the Lok Ayukta and one of the Upa-Lok Ayuktas, as may be nominated by the Lok Ayukta for the purpose, may investigate any action which is taken by or with the general or specific approval of:- (i) the Chief Minister (ii) a Minister (iii) a Member of the State Legislature (iv) a Secretary (v) an office bearer of a political party at the State Level (vi) an officer referred to in sub-clause (iii) of clause (d) of section 2. In any case where a complaint involving a grievance or an allegation is made in respect of such action and where there is difference of opinion between the Lok Ayukta and the Upa-Lok Ayukta as so nominated, the action shall be investigated by the Lok Ayukta and both the Upa-Lok Ayuktas together and the decision of the majority therein shall prevail. (2) Subject to the provisions of this Act, an Upa- Lok Ayukta may investigate any action which is taken by, or with the general or specific approval of, any public servant not being the Chief Minister or a Minister or a Member of the State Legislature or a Secretary or an office bearer of a political party at State Level or an officer referred to in sub-clause (iii) of clause (d) of section 2, in any case where a complaint involving a grievance or an allegation is made in respect of such actions or such action can be or could have been in the opinion of the Upa-Lok-Ayukta, the subject of a grievance or an allegation. (3) Notwithstanding anything contained in sub-sections (1) and (2), the Lok Ayukta or an Upa-Lok Ayukta may investigate any action taken by or with the general or specific approval of a public servant, if it is referred to him by the Government. (4) The Lok Ayukta may, by general or special order, assign to each of the Upa-Lok Ayuktas the matters which may be investigated by them under this Act. (5) Notwithstanding anything contained in sub-sections (1) to (4), when an Upa-Lok Ayukta is unable to discharge his functions owing to absence, illness or any other cause, his functions may be discharged by the other Upa-Lok Ayukta, and in the absence of both, by the Lok Ayukta. (6) Notwithstanding anything contained in any other provision of this Act, no investigation made by an Upa-Lok Ayukta under this Act and no action taken or things done by him in respect of such investigation shall be open to question on the ground only that such investigation relates to a matter which is not assigned to him by such order. (7) For the removal of doubts, it is hereby clarified that the term Lok Ayukta wherever it is used in this Act, in relation to any of the persons referred to in sub-section (1), shall mean the Lok Ayukta and as the case may be, one or both of the Upa-Lok Ayuktas as provided in that sub-section.” 14. Section 8 of the Act, which specifically bars the matters not subjected to investigation, is extracted hereunder: “8. Matters not subject to investigation:- (1) Except as hereinafter provided, the Lok Ayukta or an Upa-Lok Ayukta shall not conduct any investigation under this Act, in the case of a complaint involving a grievance in respect of any action, if such action relates to any matter specified in the Second Schedule. (2) The Lok Ayukta or an Upa-Lok Ayukta shall not investigate:- (a) any action in respect of which a formal and public inquiry has been ordered with the prior concurrence of the Lok Ayukta or an Upa-Lok Ayukta, as the case may be. (b) any action in respect of a matter which has been referred to inquiry under the Commissions of Inquiry Act, 1952 (Central Act 60 of 1952). (b) any action in respect of a matter which has been referred to inquiry under the Commissions of Inquiry Act, 1952 (Central Act 60 of 1952). (c) any complaint involving an allegation made after the expiry of five years from the date on which the action complained against is alleged to have taken place: Provided that a complaint referred to in clause (c) may be entertained by the Lok Ayukta or an Upa-Lok Ayukta, as the case may be, after the expiry of the period referred to in the said clause, if the complainant satisfies that he had sufficient cause for not making the complaint within the period specified in that clause. (3) In the case of any complaint involving a grievance, nothing in this Act shall be construed as empowering the Lok Ayukta or an Upa-Lok Ayukta to question any administrative action involving the exercise of a discretion, except where he is satisfied that the elements involved in the exercise of the discretion are absent to such an extent that the discretion can prima-facie be regarded as having been improperly exercised.” “SECOND SCHEDULE [See section 8 (i) (a)] (a) action Taken For The Purpose of Investigating Crime Relating To The Security Of The State. (b) action taken in the exercise of powers in relation to determining whether a matter shall go to a court or not. (c) administrative action taken in matters which arise out of the terms of a contract governing purely commercial relations of the administration with customers or suppliers except where the complainant alleges harassment or gross delay in meeting contractual obligation. (d) action taken in respect of appointment, removal, pay, discipline, superannuation or other mattes relating to conditions of service of public servants but, not including actions relating to claims for pension, gratuity, provident fund or to any claims which arises on retirement, removal or termination of service. (e) grant of honours and awards.” 15. (d) action taken in respect of appointment, removal, pay, discipline, superannuation or other mattes relating to conditions of service of public servants but, not including actions relating to claims for pension, gratuity, provident fund or to any claims which arises on retirement, removal or termination of service. (e) grant of honours and awards.” 15. Conjoint reading of Section 8 with Second Schedule of the Kerala Lok Ayukta Act, 1999, makes it manifestly clear that Lok Ayukta or Upa Lok Ayukta has no jurisdiction to conduct any investigation under the Act, in the case of a complaint in respect of any action taken in respect of appointment, removal, pay, discipline, superannuation or other matters relating to conditions of public servants but, not including actions relating to claims for pension, gratuity, provident fund or to any claims which arises on retirement, removal or termination of service. 16. Section 8(1) of the Act has two parts. One relating to an action taken in respect of appointment, removal, pay, discipline, superannuation or other matters relating to conditions of service. 17. Reading of the Schedule also makes it clear that it deals with subjects right from entry into service, till a public servant is superannuated. 18. Second part of the Schedule deals with claims relating to pension, gratuity, provident fund or to any claims which arise on retirement, removal or termination of service. 19. First part of the Schedule deals with the stages from appointment till superannuation, which are wholly excluded from the purview of Section 8 of the Act, whereas the second part of the Schedule deals with claims relating to pension, gratuity, provident fund etc., which are post retirement or out of employment due to removal or termination, as the case may be. 20. Issuance of a notification for appointment is certainly a matter in relation to an action taken in respect of appointment. Appointment includes various stages; prescription of qualifications for a post to be notified, decision to notify, notification issued, process of selection until an order of appointment is issued. Contention of the respondent that Lok Ayukta or Upa Lok Ayukta can conduct an investigation in relation to an action in respect of appointment is not tenable. In our view, Lok Ayukta or Upa Lok Ayukta, as the case may be, has no jurisdiction to entertain a complaint on the above subject. Contention of the respondent that Lok Ayukta or Upa Lok Ayukta can conduct an investigation in relation to an action in respect of appointment is not tenable. In our view, Lok Ayukta or Upa Lok Ayukta, as the case may be, has no jurisdiction to entertain a complaint on the above subject. Our conclusion is also fortified by a decision of a Hon'ble Division Bench of this Court in Kamalu vs. State of Kerala, 2000 (3) KLT 227 , wherein at paragraph (22), this Court held thus: “22. The scheme of the definitions will make it clear that it is the Kerala Lok Ayukta who may investigate any action which is taken by or with the general or specific approval of, the six dignitaries/officers mentioned sub-section (1) of S.7. Admittedly, it is not the grievance of the fourth respondent that the conduct of the petitioners which is complained of before the Lok Ayukta satisfies the tests laid down in sub-section (1) of Section 7 of the Act so as to vest the Kerala Lok Ayukta with jurisdiction. We may in this connection refer to S.8 dealing with matters which are not subject to investigation. S.8 reads as under: “............ Item (d) in the above Schedule deals with the action taken in respect of appointment, removal, pay, discipline, superannuation or other matters relating to conditions of service of public servants which is outside the purview of the powers of the Lok Ayukta or an Upa Lok Ayukta in view of the specific bar contained in sub-section (1) of S.8. What is permitted to be investigated is only the actions relating to claims for pension, gratuity, provident fund or to any claims which arise on retirement, remove or termination of service, which is not the case before us.” 21. In the light of the above discussions and decision, order of Upa Lok Ayukta dated 25.02.2011 in Complaint No. 1337 of 2010, requires interference. Accordingly, the order is set aside. Writ petition is allowed.