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Former Judge can be appointed as the chairman of state commission for backward classes – Kerala HC

In the case of S. Subramaniam Vs State of Kerala [WP(C). No 17401 OF 2020] Kerala High Court held that Kerala State Commission for Backward Classes is not under the employment of the Government.

Petitioner is an active participant in the civil society movement like movement against corruption and protest against liquor and narcotic mafia in the State. Petitioner has filed the instant PIL stating that the appointment of 2nd respondent as the Chairperson of Kerala State Commission for Backward Classes has given rise to a situation where a disqualified person has been appointed and is holding the office, without any law removing disqualification. The second respondent in the present case is a retired Hon’ble Judge of Kerala High Court. According to the petitioner, the office of the Chairman of the Kerala State Commission for Backward Classes is a public office and the expenditure for functioning the Commission is chargeable, either from the Consolidated Fund of India or from the Consolidated Fund of Kerala and hence, would amount to an office of profit.

Petitioner further stated that being a writ of quo warranto, it is not necessary to establish that he has been prejudicially affected by any wrongful act of public nature, his fundamental right is infringed, and that he is denied any legal right. The petitioner, in this petition, only seeks for determining as to whether, the appointment of 2nd respondent is in accordance with provisions of Kerala Commission for Backward Classes Act, 1993. The appointment of the 2nd respondent being clearly barred as a person, who has been once appointed as Upa Lok Ayukta, is disqualified from being appointed as a Chairman of the Backward Classes Commission, an appointment to a substantive post under the Government in the absence of the removal of his disqualification.

Court relied on various case like that of Adv. Sreenivasan Venugopalan v. Hon’ble M.M.Pareed Pillai, Retired, C.J., of Kerala High Court and Anr., (AIR 2009 Kerala 148 : 2009 (2) KLT 823), where the Hon’ble Division Bench of this court, held that, “As such, it is necessary to consider whether the office of Lok Ayukta is under the Government, that is to say, whether there exists a relationship of master and servant between the Lok Ayukta and the State. It cannot be disputed that as per the scheme of the Lok Ayukta Act, to discharge the functions and duties of the office, the Lok Ayukta is not controlled by the State Government in any manner. The State Government is not at all empowered to ask the Lok Ayukta to discharge its functions or to perform its duties in the manner which it likes. What is required to be considered, in order to make the first respondent as ineligible is, to find out whether his employment is ‘under the Government’.”

Court observed that, “Contention of the petitioner that the Lok Ayukta is receiving salary and allowances from the State Government and, therefore, under the employment of the Government, is wholly misplaced Merely because, sub-section (3) of Section 3 in the Kerala State Commission for Backward Classes Act, 1993, provides for removal of persons from the Office of Members, for the reasons stated thereunder, that by itself cannot be said that the Government have a control over the Backward Class Commission. On the contrary, as per Section 9 of the Kerala State Commission for Backward Classes Act, 1993, the Commission shall examine requests for inclusion of any class of citizens as a backward class in the lists and hear complaints of over-inclusion or under-inclusion of any backward class in such lists and tender such advice to the Government as it deems appropriate. Section 9 also states that the advice of the Commission shall ordinarily be binding upon the Government.”

 

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