VINOD KUMAR Vs. KERALA LOK AYUKTA TVM

JUDGEMENT

(1.) The petitioners in this writ petition are presently working as Readers under the 2nd respondent College. The petitioners had responded to a notification issued by the respondents for appointment to the post of Reader in Community Medicine and Reader in Pathology, and the 1st and 2nd petitioners were appointed pursuant to the selection procedure conducted by the College. It is not in dispute that the appointment of the petitioners were approved and The 3rd subsequently their probation in the posts declared. respondent was an applicant to the post of Lecturer [Practice in Medicine and Community Medicine] that was notified in the notification issued by the 2nd respondent College, but was not successful in getting an appointment pursuant to the selection process that followed. It would appear that the 3rd respondent approached the 1st respondent Kerala Lok Ayukta, through Ext.P6 complaint submitted under Section 9 of the Kerala Lok Ayukta Act, 1999. The prayers sought for in the complaint are essentially for an investigation into the allegations levelled against the public servants mentioned in the complaint; for a recommendation to the Government to cancel all the alleged illegal appointments; to recommend to the Government to recover the entire benefits received by the party respondents, who were occupying their respective posts, and for a declaration to the effect that respondents 1 to 3 in the complaint should not continue to hold the posts held by them. There are also other reliefs such as the payment of compensation to the complainant that are prayed for in the said complaint. The petitioners in the writ petition were arrayed as respondents 11 and 12 in Ext.P6 complaint. The allegations in Ext.P6 complaint with regard to the petitioners are to be found in clauses xv and xvii of paragraph 4 of the complaint, which read as under:

(2.) It is the case of the petitioners herein that, on receipt of the complaint from the 3rd respondent, the 1st respondent Lok Ayukta, by Ext.P8 order, issued urgent notice on the complaint, and passed an interim order directing the Secretary for Health, [AYUSH], Health and Family Welfare Department, not to regularise or approve the appointments given to respondents 12 to 19 in the complaint [which included the 2nd petitioner in the writ petition], if such approval or regularisation had not yet been given, without obtaining permission from the Lok Ayukta. The matter then stood posted to 21.8.2015.

(3.) The challenge in the writ petition against Ext.P8 order of the Lok Ayukta is premised primarily on the ground of jurisdiction. It is the specific case of the petitioners that the Lok Ayukta did not have the jurisdiction to entertain a complaint, that was targeted against the appointment of the petitioners herein, since the petitioners were admittedly not 'public servants' as defined under Section 2(o) of the Kerala Lok Ayukta Act, 1999, and further, the Lok Ayukta was not empowered to conduct any investigation under the Act in the case of a complaint involving a grievance in respect of any action which was specifically referred to in the Second Schedule to the Kerala Lok Ayukta Act. Referring to the provisions of the Second Schedule to the above Act, it is pointed out that the excluded types of action for the purposes of Section 8 of the Kerala Lok Ayukta Act would take in actions in respect of appointment, removal, pay, discipline, superannuation or other matters 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 arise on retirement, removal or termination of service. It is pointed out therefore that, although this was a case where the petitioners were not 'public servants' for the purposes of the Act, even if the petitioners were to be treated as 'public servants', for the purposes of the Act, the Lok Ayukta's jurisdiction would be excluded by virtue of the provisions of Section 8 read with the Second Schedule to the Kerala Lok Ayukta Act.