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2025 DIGILAW 991 (KER)

Sheena v. R. VS The Union Of India

2025-04-11

N.NAGARESH

body2025
JUDGMENT : N.NAGARESH, J. The petitioner in W.P.(C) No.19841/2024 is aggrieved by the hostile and discriminatory action shown against her by the employer in the matter of promotion and service conditions. The petitioner seeks to command respondents 2 to 4 to publish the result of the DPC held on 29.05.2023 for selection to the post of Administrative Officer. 2. The petitioner states that she commenced her service as Assistant at the Central Secretariat in the Ministry of Information and Broadcasting. She was sent on deputation to Debts Recovery Tribunal, Ernakulam and Coimbatore. On 10.09.2012, she joined the IIM, Kozhikode as Assistant. She was promoted to the post of Assistant Administrative Officer on 02.07.2019. Respondents 5 and 6, who joined as Assistant Administrative Officers on 04.03.2020 and 23.03.2020, are juniors to the petitioner. 3. The petitioner states that there occurred a retirement vacancy of an Administrative Officer on 01.06.2023. The petitioner was the only eligible candidate for promotion to the post. The 2 nd respondent relaxed the eligibility conditions and allowed respondents 5 and 6 to participate in the selection.The petitioner objected to grant of relaxation. 4. The petitioner states that as per the Recruitment Rules, 2019, relaxation in the qualifying service can be made only to an extent of three months. Respondents 5 and 6 were granted relaxation exceeding the said period. For respondents 5 and 6, the relaxation granted is one year. It is illegal, contends the petitioner. The petitioner states that she has been subjected to hostile discrimination on the ground of gender and cast. 5. The petitioner therefore seeks to command respondents 2 to 4 to publish the result of the DPC held on 29.05.2023 for selection to the post of Administrative Officer and to declare that respondents 5 and 6 are not qualified as on 01.01.2023 to be considered for promotion to the post of Administrative Officer and also to declare that respondents 5 and 6 are not entitled to the relaxation provided in Ext.P1 OM as the cut off date provided in the Recruitment Rules, 2019 is always the Calendar Year and was never shifted to the Financial Year. 6. W.P.(C) No.22722/2024 has been filed by the petitioner who was appointed to the post of Chief Purchase Officer in the IIM, Kozhikode on 22.03.2021. 6. W.P.(C) No.22722/2024 has been filed by the petitioner who was appointed to the post of Chief Purchase Officer in the IIM, Kozhikode on 22.03.2021. The petitioner is seeking to quash Ext.P20 Memorandum of Charge and to restrain the respondents from initiating any proceedings on the basis of Ext.P20. 7. In Ext.P20, it has been alleged that the petitioner, while working as Chief Purchase Officer, had interfered in administrative matters questioning a superior officer; that the petitioner submitted a representation regarding service matters of erstwhile CAO of IIMK on CPGRAMS of the Ministry; that the petitioner, on 01.12.2023, behaved in a way which is disorderly and being discourteous to a senior officer; that the petitioner acted in a way interfering and causing disturbance to the healthy work atmosphere of the institute and that the petitioner acted in negligent manner in not following instructions to ensure the quality of the supplied goods and materials received from private suppliers and not following the approved process for tendering, amounting to dereliction of duty and misconduct. 8. The petitioner in W.P.(C) No.19841/2024 has advanced various legal grounds to show that respondents 5 and 6 are not qualified to be considered for promotion to the post of Administrative Officer occurred on 01.06.2023. In W.P. (C) No.22722/2024, the petitioner has advanced various grounds to urge that the disciplinary enquiry proceedings initiated against the petitioner as per Ext.P20 Memorandum of Charge, are illegal and unsustainable. 9. The Standing Counsel representing the IMMK raised a preliminary objection as regards maintainability of the writ petition, urging that the IIMK is neither State nor an instrumentality of the State. In view of the said objection, the arguments were advanced by either side on the issue of maintainability of the writ petitions. 10. The counsel for the petitioners submitted that as per Section 5, President is the visitor of IIMK and the President is instrumental in decision making. The Government of India has deep and pervasive control over the affairs of the IIMK. The IIMK is governed by statutes. There is substantial financial aid from the Government. The IIMK has adopted CCS (CCA) Rules, which would further establish that the IIMK is a wing of the State. 11. The Government of India has deep and pervasive control over the affairs of the IIMK. The IIMK is governed by statutes. There is substantial financial aid from the Government. The IIMK has adopted CCS (CCA) Rules, which would further establish that the IIMK is a wing of the State. 11. The counsel for the petitioners relied on the judgment of the Hon’ble Apex Court in Ramesh Ahluwalia v. State of Punjab and others [(2012) 12 SCC 331] to hold that the test is that the body in question must be financially, functionally and administratively dominated by or under pervasive control of Government to fall within the definition of 'State'. The judgment of the Apex Court in Rajbir Surajbhan Singh v. Chairman, Institute of Banking Personnel Selection, Mumbai [ (2019) 14 SCC 189 ] was relied on to submit that a private body is also amenable to jurisdiction under Article 226. 12. The Standing Counsel representing the IIMK, on the other hand, placed reliance on the judgment of the Apex Court in Army Welfare Education Society, New Delhi v. Sunil Kumar Sharma and others [2024 SCC OnLine SC 1683] to contend that a private unaided minority institution might be touching the spheres of public functions by performing a public duty, but even then its employees have no right of invoking the writ jurisdiction of the High Court. 13. I have heard the learned counsel for the petitioners and the learned Standing Counsel appearing for the IIM. 14. After hearing the parties, I find that the specific issue as to whether a writ petition is maintainable against IIMK came up for consideration before this Court in the judgment in Shiny George Ambat v. Union of India [ 2023 (4) KLT 365 ]. A learned Single Judge of this Court considered various judgments pronounced by the Hon’ble Apex Court and the provisions of Indian Institutes of Management Act, 2017. After considering the issues exhaustively, this Court held that a writ would definitely be maintainable for enforcing the performance of a statutory duty or a public duty. This Court noted that though the Constitution of the Governing Body of IIMK appears to be by way of nomination, the institute is specifically intended to be an autonomous institution. The Institute is not a creature of the statute since it was a a society. This Court noted that though the Constitution of the Governing Body of IIMK appears to be by way of nomination, the institute is specifically intended to be an autonomous institution. The Institute is not a creature of the statute since it was a a society. The funds made available by the Government to IIMs do not constitute a substantial amount so as to meet even a major portion of expenditure. 15. This Court further noted that there are no statutory rules with regard to the service conditions of the employees of the Institute. The provision for placing the accounts before the C & AG and to obtain prior approval from the Government in case of alienation of immovable property, would not be sufficient to hold that there is deep and pervasive state control of the affairs of the Institute so as to bring it within the ambit of Article 12. This Court categorically found that with the 2017 Act, the Institute became a wholly autonomous body with no substantial governmental interference in its internal administration and that no writ can be issued against the IIM, Kozhikode. As the issue involved is covered by a judgment of this Court in Shiny George Ambat (supra), following the said judgment, the writ petitions are dismissed holding that a writ petition is not maintainable against IIM, Kozhikode in respect of service matters of its employees.