May Consider Ratifying Appointment Of Ex-Officio Secretary Who Appointed Dr Thomas Isaac As KKEM Advisor: State To Kerala HC

The Advocate General (AG) K. Gopalakrishna Kurup on Monday (July 28) told the Kerala High Court that the state government can consider passing a simplicitor order ratifying the appointment of the Ex-Officio Secretary who had signed the government order appointing former Finance Minister Dr. Thomas Isaac as advisor to the Kerala Knowledge Economy Mission (KKEM).

The Division Bench of Chief Justice Nitin Jamdar and Justice Basant Balaji was hearing a public interest litigation challenging an order passed by the Ex-Officio Secretary, Department of Planning and Economic Affairs (Development & Innovation), appointing Respondent No.5 Dr Thomas Isaac as an advisor to coordinate the activities of the Vinjana Keralam a part of the Kerala Knowledge Economy Mission (KKEM). 

For context, KKEM is an initiative of the Kerala Development and Innovation Strategic Council (KDISC), which aims to provide employment to the educated.

As per the order, Dr. Thomas Isaac would render his service free of charge and the only monetary liability on the government would arise if the appointee uses his own vehicle for travel, in which case he would be reimbursed a maximum of Rs. 70,000/- as fuel charges and driver charges.

Earlier, the Court had appointed Adv. Anjali Menon as amicus curie to assist the Court in the case. The Amicus had stated that there is no such government department as mentioned in the title of the order and the Ex-Officio Secretary who has signed the order on behalf of the Governor had no authority to issue such an order. 

When the case came up for consideration, the amicus submitted before the Court that the appointment was challenged on three main grounds. One, the appointment was an act of nepotism by the present government; two, there is no department as the "Planning, Finance, Development and Innovation department" whose ex-officio secretary has issued the order; and three, the ex-officio Secretary cannot represent the government and issue the impugned order.

The Court thought it fit to consider only the second and third grounds, and considered submissions regarding the same.

The Advocate General, on the other hand, submitted that the confusion regarding the second ground came in because of an incorrect translation of the order submitted by the petitioner in the case from vernacular language into English

"The learned Advocate General has also drawn our attention to the details of the sub-departments within the Department of Planning and Economic Affairs, which, inter alia, includes the Kerala Development & Innovation Strategic Council. Learned Advocate General further submits that it is correct that the Kerala Development & Innovation Strategic Council is not a main department under the Rules of Business, but it is a part of the Department of Planning and Economic Affairs. Therefore, according to the learned Advocate General, no capital can be made out of this translation and misdescription," the court in its order notes.

He stated that the correct department was the Department of Planning and Economic Affairs, not 'Planning, Finance, Development and Innovation department'.

Regarding the eligibility of the ex-officio secretary to issue the impugned order, the Court opined that it is not proper to look into the same as the said person was not a party in the petition. However, it orally noted that there was no specific order appointing the said person as the ex-officio secretary, defining the terms of his service or the salary that he draws.

Noting that there is salary being drawn by the appointee, the Court orally observed: "So it seems more like a policy decision where there is some sort of a project or a mission envisaged one person will be given reimbursement of the fuel charges. That is what this document says, I think it speaks for itself in this manner. As far as the salary is concerned, it is free of charge. What happens if the State ratifies all this and says that maybe it is an official order issued by the State?"

Thus, the Court observed that the controversy regarding the appointment of the Ex-Officio Secretary can be rectified if the government can issue another order ratifying the appointment order. It observed:

"As regards the authority of the Ex-Officio Secretary to issue Ext.P1 order, the contention by the learned Amicus Curiae is that this particular Ex-Officio Secretary has no authority to represent the Government and thus he could not have issued this order. This would entail scrutinising the nature of the post held by the said Ex-Officio Secretary, including the manner of his appointment, powers, and other relevant details. The Ex-Officio Secretary has not joined as a Party Respondent, and an enquiry into the validity of his power and the legality of his status cannot be carried out in his absence. Learned Advocate General submits that, irrespective of the controversy, to put a quietus, the State may consider issuing a simplicitor order of ratification if this is the only ground raised in this petition". 

Thereupon, the AG submitted that he can go before the Council of Ministers and sought two weeks' time for issuing the order.

The case is next posted on 18 August.

Case Number: WP(C) No. 45335/ 2024

Case Title: Navas A. v. State of Kerala 

Click To Read/Download Order