IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 11TH AUGUST 2009 / 20TH SRAVANA 1931 WP(C).No. 15027 of 2008(L) ------------------------------------ PETITIONER(S): --------------- 1. K.V.SREENIVASAN, AGED 38, S/O.VELAYUDHAN, KOTTAMPULLY HOUSE, S.N.COLONY, KOORKANCHERRY P.O., TRICHUR, NOW WORKING AT SOUTH MALABAR GRAMIN BANK, KARIYACHIRA BRANCH. 2. A.K.JAYADEVAN, AGED 38, S/O.KUTTAPPAN, AKKODAPPILLY HOUSE, ERIYAD P.O. KODUNGALLUR, NOW WORKING AT SOUTH MALABAR GRAMIN BANK, KODUNGALLUR. 3. V.R.SANTHOSH, AGED 38, S/O.RAMAN, VENKITINGIL HOUSE, PERINJANAM, CHAKKARAPADAM P.O., TRICHUR, NOW WORKING AT SOUTH MALABAR GRAMIN BANK, KAIPAMANGALAM. BY ADV. SRI.T.M.CHANDRAN SRI.S.SUJITH RESPONDENT(S): ----------------------- 1. SOUTH MALBAR GRAMIN BANK, HEAD OFFICE AT MALAPPURAM, REPRESENTED BY CHAIRMAN. 2. GENERAL MANAGER, SOUTH MALABAR GRAMIN BANK, MALAPPURAM. 3. BRANCH MANAGER, SOUTH MALABAR GRAMIN BANK, KARIYACHIRA, TRICHUR DISTRICT. 4. BRANCH MANAGER, SOUTH MALABAR GRAMIN BANK, KODUNGALLUR. 5. BRANCH MANAGER, SOUTH MALABAR GRAMIN BANK, KAIPAMANGALAM, TRICHUR DISTRICT. WP(C).No. 15027 of 2008(L) -2- ADDL.R6 - CHEKKINI C., FULL TIME MESSENGER, SOUTH MALABAR GRAMIN BANK, KOKKALLUR, KOZHIKODE DIST. ADDL.R7 - DAMODARAN V.T. FULL TIME MESSENGER, SOUTH MALABAR GRAMIN BANK, KOTTALIDA, MALAPPURAM DIST. ADDL. R8 - GEETHA K. FULL TIME MESSENGER, SOUTH MALABAR GRAMIN BANK, VAZHIKKADAVU, MALAPPURAM DIST. ADDL.R9 - UNNI P. FULL TIME MESSENGER SOUTH MALABAR GRAMIN BANK, WADAKKANCHERRY, TRICHUR ADDL. R10 - VELAYUDHAN.K., FULL TIME MESSENGER, SOUTH MALABAR GRAMIN BANK, MANNUKKAD. ADDL. R11 - VELAYUDHAN V.T. FULL TIME MESSENGER, SOUTH MALABAR GRAMIN BANK KODARAM, KOZHIKODE ADDL. R6 TO R11 ARE IMPLEADED AS ADDL. R6 TO R11 VIDE ORDER DATED 17.6.2008 IN I.A. NO. 7360 OF 2008. BY ADVS. SMT.S.KARTHIKA,SC,SOUTH MALABAR GRAMIN FOR R1-5 MR.K.K.MOHAMED RAVUF FOR ADDL.R6 MR.DEVAN RAMACHANDRAN,SC,SOUTH M.G.BAN FOR RPTS. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/08/2009, ALONG WITH WPC NO. 20910 OF 2008 WPC NO. 15587 OF 2008 WPC NO. 18471 OF 2008 WPC NO. 14333 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 15027 of 2008(L) APPENDIX PETITIONERS' EXHIBITS: EXT.P1 - TRUE COPY OF DETAILS OF APPOINTMENT AND THE PERIOD OF DUTY OF PETITIONER NO.1 EXT.P2 - TRUE COPY OF DETAILS OF APPOINTMENT AND THE PERIOD O DUTY OF PETITIONER NO. 2 EXT.P3 - TRUE COPY OF DETAILS OF APPOINTMENT AND THE PERIOD OF DUTY OF PETITIONER NO.3 EXT.P4 - TRUE COPY OF LETTER DATED 22.8.2007 ENQUIRING ABOUT DETAILS OF DAILY WAGED WORKERS. EXT.P5 - TRUE COPY OF PARTICULARS DATED 3.4.2008 OF P.F. CONTRIBUTION. EXT.P6 - TRUE COPY OF DETAILS DATED 30.6.2003 OF BONUS PAID. EXT.P7 - TRUE COPY OF LETTER DATED 12.9.2007 APPRECIATING THE WORK OF PETITIONER NO.3. EXT.P8 - TRUE WRITTEN COPY OF RECRUITMENT NOTICE DATED 27.3.2008. EXT.P9 - TRUE COPY OF SELECT LIST DATED 13.5.2008. EXT.P10 - TRUE COPY OF PROCEEDINGS OF THE GENERAL MANAGER DATED 12.5.2008. EXT.P11 - TRUE COPY OF CIRCULAR NO. 37/07 DATED 3.12.2007 ISSUED BY THE SAID TWO UNIONS. // TRUE COPY // PA TO JUDGE rhs S. SIRI JAGAN, J ............................................... W.P(C) Nos. 15027, 15587, 18471, 20910 of 2008 & 14333 of 2009 ................................................. Dated this the 11th day of August, 2009 J U D G M E N T In all these writ petitions, petitioners are challenging a select list prepared for appointment to the post of Full Time Messenger in South Malabar Gramin Bank and appointments made thereto. Therefore all these writ petitions are heard together and are disposed of by this common judgment. The rank of parties and exhibits referred to in this judgment are as obtaining in W.P(C) 15027 of 2008, unless otherwise indicated. 2. All the petitioners claim to be either working presently as part time messengers or to have worked as part time messengers at some point of time in the Bank. The bank invited applications for recruitment to the post of Full Time Messenger/ Driver cum Messenger in the bank, by Ext.P8 notification. Pursuant to the notification, the Bank prepared a list of candidates selected, which is Ext.P9. Petitioners are challenging Ext.P9 select list. The contention raised is that the selection itself was a farce. Only a show of an interview was conducted. Irrelevant questions were W.P(C) Nos. 15027, 15587, 18471, 20910 of 2008 & 14333 of 2009 -2- asked in the interview which had nothing to do with assessment of relative merits of the candidates. According to the petitioners, the select list consists only of persons nominated by the unions. Petitioners being not members of any unions have been excluded is their allegation. The contention raised is that the persons selected do not possess the qualifications prescribed, particularly the age qualification. They would further submit that as per the notification, preference was to be given to persons who have been working in the bank. But petitioners who are working in the bank presently and have more service than those who have been included in Ext.P9 list have been excluded. A further contention is raised to the effect that although the age limit fixed in Ext.P8 is 18 to 26 years, all the persons included in Ext.P9 list are far beyond the maximum age limit of 26 years. Some of them are even at the verge of the age of superannuation. According to them, such wholesale relaxation in age, qualification, that too beyond all reasonable limits, is patently illegal and unsustainable. 3. A counter affidavit has been filed by the bank wherein it is contended that in so far as Ext.P8 notification makes provision for relaxation in age in appropriate cases, the discretion exercised by W.P(C) Nos. 15027, 15587, 18471, 20910 of 2008 & 14333 of 2009 -3- the bank in the matter of age relaxation cannot be questioned by the petitioners. It is submitted before me that it is only in order to give a chance to the persons who have been working for long periods in the bank to get permanent employment that the bank has adopted this particular mode of selection. They would submit that there is nothing malafide in such selection. It is also pointed out that in so far as the petitioners have not chosen to challenge Ext.P8 notification inviting applications, the relaxation given in accordance with the notification, bona fide, cannot be questioned by the petitioners. Further it is pointed out that after having participated in the selection process, based on Ext.P8, knowing fully well about the conditions for such selection, the petitioners cannot after finding them excluded from selection turn around and challenge the selection itself. It is further submitted that none of the petitioners are within the age limit prescribed and therefore even if the select list is set aside, the petitioners would not be benefitted in any manner, since the result would only be to exclude them also from the zone of consideration for selection. 4. I have considered the rival contentions in details. 5. It is not disputed before me that the field is covered by W.P(C) Nos. 15027, 15587, 18471, 20910 of 2008 & 14333 of 2009 -4- rules framed by the Government of India in that regard. The said rules are the Regional Rural Banks (Appointment and Promotion of Officers and Other Employees) Rules, 1988. The 3rd schedule to the said rules prescribes the qualifications, method of appointment etc for various posts in Regional Rural Banks. For the post of messenger the qualifications, mode of selection etc. are as follows: 7. a) Name of the post : Messenger, Messenger-cum- sweeper (Full or part time) and Security guard. b) Classification : Group 'C' c) Source of recruitment : 100% by direct recruitment d) Qualifications and eligibility : VIII Standard pass from the school recognized by Government e) Age : Between 18 years and 26 years (relaxation in the case of scheduled castes/scheduled tribes candidates or candidates belonging to other categories in accordance with the instruction/orders issued by the central Government) f) Mode of selection : The Selection of the candidates shall be made by the committee on the basis of interview. g) Committee : The committee for selecting candidates shall consist of the following persons, namely :- I) The Chairman of the concerned Regional Rural Bank or in his absence the General manager of that bank- Chairman II) Two senior most officer of W.P(C) Nos. 15027, 15587, 18471, 20910 of 2008 & 14333 of 2009 -5- the regional rural bank or in their absence two officers nominated by the Board-members. III) A director nominated by the National bank - member.” 6. Ext.P8 notification inviting applications does not tally with the above said rules applicable. In the same the educational and age qualifications prescribed are as follows: “5. Qualification & Eligibility VIII standard pass from a school recognised by Government Relaxation will be provided in the case of candidates who have work experience in the relevant field in South Malabar Gramin Bank. For the post of driver cum messenger, in addition to the above, the candidate should possess a permanent valid driving license or motor car or jeep. 6. Age 18 to 26 years. Relaxation will be provided in age limit by 5 years in the case of candidates belonging to SC/ST and three years in the case of OBC 5 and 10 years in the case of physically handicapped persons. Also relaxation will be provided in the case of candidates who have work experience in that relevant field in South Malabar Gramin Bank.” 7. The rules do not provide for any preference to those who have work experience in the relevant field in the South Malabar Gramin Bank. So also the rules do not provide for relaxation of age qualification in the case of candidates who have work experience in the relevant field in the South Malabar Gramin Bank. Both are included in Ext.P8 notification inviting applications. The bank cannot alter the qualifications prescribed by the rules while making selection. Selection and appointment can only be strictly in W.P(C) Nos. 15027, 15587, 18471, 20910 of 2008 & 14333 of 2009 -6- accordance with the statutory rules framed for that purpose. Therefore I am of opinion that the relaxation and preferences provided in Ext.P8 are against rules and the same are illegal and unsustainable. For that reason alone, the selection is liable to be set aside. 8. Consequent to direction of this court dated 26.5.2009, the bank has produced a list of selected candidates giving their names, date of birth, communal status, qualification and particulars as to whether the selected persons are registered with employment exchange or not. From the same, I find that except Sl. nos. 1, 2 and 3 no other candidate satisfies the age qualification. I am surprised to find that some of the persons selected are on the verge of retirement, being 55, 56 and 57 years old. Even assuming that age relaxation is permissible such wholesale relaxation in age qualification is beyond all limits of permissibility. The Supreme Court has in fact held that such wholesale relaxation in age qualification cannot be permitted in law. In Kendriya Vidyalaya Sangathan and Others v. Sajal Kumar Roy and Others 2006(8) SCC 671 held thus: “The respondents are not members of the Scheduled Caste or Scheduled Tribe. Age-limit is prescribed for appointment to the general category of employees. The W.P(C) Nos. 15027, 15587, 18471, 20910 of 2008 & 14333 of 2009 -7- upper age-limit for appointment to the post of LDC is 25 years. The advertisement also says so. The second part of Article 45 of the Education Code for Kendriya Vidyalayas provides for relaxation. Such relaxation can be granted for the purpose specified i.e. in favour of those who answered the descriptions stated therein. Relaxation of age-limit even in relation to the Scheduled Caste and the Scheduled Tribe candidates or the retrenched Central Government employees, including the defence personnel is, however, not automatic. The appointing authorities are required to apply their mind while exercising their discretionary jurisdiction to relax the age-limits. Discretion of the authorities is required to be exercised only for deserving candidates and upon recommendations of the Appointing Committee/Selection Committee. The requirements to comply with the rules were required to be complied with fairly and reasonably. They were bound by the rules. The discretionary jurisdiction could be exercised for relaxation of age provided for in the rules and within the four corners thereof. As the respondents do not come within the purview of the exception contained in Article 45 of the Education Code, the Tribunal and consequently the High Court committed a manifest error in issuing the aforementioned directions.” In the decision of Ami Lal Bhat (Dr.) v. State of Rajasthan 1997(6) SCC 614 has held thus: “In our view this kind of an interpretation cannot be given to a rule for relaxation of age. The power of relaxation is required to be exercised in public interest in a given case; as for example, if other suitable candidates are not available for the post, and the only candidate who is suitable has crossed the maximum age-limit; or to mitigate hardship in a given case. Such a a relaxation in special circumstances of a given case is to be exercised by the administration after referring that case to the Rajasthan Public Service Commission. There cannot be any wholesale relaxation because the advertisement is delayed or because the vacancy occurred earlier especially when there is no allegation of any mala fides in connection with any delay in issuing an advertisement. This kind of power of wholesale relaxation would make for total W.P(C) Nos. 15027, 15587, 18471, 20910 of 2008 & 14333 of 2009 -8- uncertainty in determining the maximum age of a candidate. It might be unfair to a large number of candidates who might be similarly situated, but who may not apply, thinking that they are age-barred. We fail to see how the power of relaxation can be exercised in the manner contended.” In Food Corpn. of India and others v. Bhanu Lodh and others 2005(3) SCC 618 opined thus: “12....... Even assuming that there is a power of relaxation under the Regulations, we think that the power of relaxation cannot be exercised in such a manner that it completely distorts the Regulations. The power of relaxation is intended to be used in marginal cases where exceptionally qualified candidates are available. We do not think that they are intended as an “open sesame” for all and sundry. The wholesale go-by given to the Regulations, and the manner in which the recruitment process was being done, was very much reviewable as a policy directive, in exercise of the power of the Central Government under Section 6(2) of the Act. That is the reason why by para 3 of the communication dated 6.11.1995, the Central Government said.” 9. Age relaxation given in this case is squarely one of the kind prohibited by the Supreme Court in the above decisions. For that reason also the select list consisting of persons who are way over the upper age limit cannot be sustained in law. 10. The learned counsel for the bank raises another technical objection to the effect that the selected persons are not on record and therefore without hearing them their selection cannot be interfered with. But I find that in W.P.(C) No. 15027 of 2007 the W.P(C) Nos. 15027, 15587, 18471, 20910 of 2008 & 14333 of 2009 -9- petitioner has, with permission of this court, impleaded some of the selected persons as respondents in a representative capacity and has also taken out notice to all effected persons by publication in the newspaper, pursuant to which South Malabar Gramin Bank Staff Association has got themselves impleaded in the writ petition as an additional respondent. Even otherwise the Supreme Court has in several decisions held that in cases of totally unsustainable selections, the principle of natural justice is not applicable. In the decision of M.P. State Co-op. Bank Ltd. v. Nanuram Yadav 2007(4) KLT SN 21(C.No. 20) SC, the Supreme Court held thus: “It is clear that in the matter of public appointments, the following principles are to be followed: 1) The appointments made without following the appropriate procedure under the Rules/Government Circulars and without advertisement or inviting applications from the open market would amount to breach of Arts.14 & 15 of the Constitution of India. 2) Regularisation cannot be a mode of appointment. 3) An appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularization. 4) Those who come by back door should go through that door. 5) No regularization is permissible in exercise of the statutory power conferred under Art.162 of the Constitution of India if the appointments have been made in contravention of the statutory Rules. 6) The Court should not exercise its jurisdiction on misplaced sympathy. 7) If the mischief played so widespread and all pervasive, affecting the result, so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection, it will neither be W.P(C) Nos. 15027, 15587, 18471, 20910 of 2008 & 14333 of 2009 -10- possible nor necessary to issue individual show-cause notice to each selectee. The only way out would be to cancel the whole selection. 8) When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place and the entire selection has to be set aside.” Again in the decision of Sreejith v. Kerala State Co- operative Employees Pension Board 2001(1) KLT SN 20 (Case No. 21) SC', the Supreme Court again held thus: “Persons who got selection to a post by illegal methods are liable to be sent out without following the principles of natural justice. There is no substance in the plea taken by the appellant that they had no knowledge about the fraud and manipulations. Any direction to comply with the principles of natural justice in the sense to afford them a hearing will not be a futile exercise of power. Persons who got the orders of appointment by resort to backdoor methods should be sent out through backdoor itself. The entire selection is vitiated. When the selection has been made without interview, fake and ghost interviews, tampering with the final records, fabricating documents, forgery, an inference that all was motivated by extraneous considerations can be drawn. The entire selection thus is arbitrary and is liable to be set aside. The plea that innocent candidates should not be penalised for the misdeeds of others is not applicable to such cases. The effect of setting aside the selection would mean the selectees will have no right to go to the office. It is highly regrettable that the holders of public offices, both big and small, have forgotten that the offices entrusted to them are sacred trust. Such offices are meant for use and not abuse. When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place as fraud unravels everything.” In the decision of Biswa Ranjan Sahoo & Ors. v. Sushanta Kumar Dinda & Ors. JT 1996 (6) S.C. 515 Supreme Court held W.P(C) Nos. 15027, 15587, 18471, 20910 of 2008 & 14333 of 2009 -11- thus: “3. A perusal thereof would indicate the enormity of mal-practices in the selection process. The question, therefore, is: whether the principle of natural justice is required to be followed by issuing notice to the selected persons and hearing them? it is true, as contended by Mr. Santhosh Hegde, learned senior counsel appearing for the petitioners, that in the case of selection of an individual his selection is not found correct in accordance with law, necessarily, a notice is required to be issued and opportunity be given. In a case like mass mal-practice as noted by the Tribunal, as extracted hereinbefore, the question emerges: whether the notice was required to be issued to the persons affected and whether the needed to be heard? Nothing would become fruitful by issuance of notice. Fabrication would obviously either be not known or no one would come forward to bear the brunt. Under these circumstances, the Tribunal was right in not issuing notice to the persons who are said to have been selected and given selection and appointment. The procedure adopted are in flagrant breach of the rules offending Articles 14 and 16 of the Constitution.” Again in the decision of Union of India and Others v. O.Chakradhar 2002(3) SCC 146 the Supreme Court held thus: “The nature and the extent of illegalities and irregularities committed in conducting a selection have to be scruitnized in each case so as to come to a conclusion about future course of action to be adopted in the matter. If the mischief played is so widespread and all-pervasive, affecting the result, so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection, it will neither be possible nor necessary to issue individual show-cause notices to each selectee. The only way out would be to cancel the whole selection. Motive behind the irregularities committed also has its relevance.” 11. In this case, I have no doubt whatsoever in mind that in W.P(C) Nos. 15027, 15587, 18471, 20910 of 2008 & 14333 of 2009 -12- view of the infirmities found herinbefore, the select list is totally unsustainable and cannot be supported by any reasoning whatsoever, especially since the same is totally against the statutory rules prescribed for such selection and the notification inviting applications itself is totally against the rules prescribed. 12. For all the above reasons, the selection now made is totally unsustainable. Accordingly the selection as evidenced by Ext.P9 is set aside. The bank is directed to make fresh selection in accordance with the Regional Rural Banks Appointment and Promotion of Officers and Other Employees Rules, 1988, the applicability of which for such selection is not disputed before me by the bank. The writ petition is disposed of as above. S. SIRI JAGAN, JUDGE rhs