IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 17TH DECEMBER 2009 / 26TH AGRAHAYANA 1931 WP(C).No. 5882 of 2009(E) -------------------------------------- PETITIONER(S): --------------------------- V.K. MAHANUDEVAN, SUPERINTENDING ENGINEER, SIRUVANI PROJECT CIRCLE, WATER RESOURCES DEPARTMENT, PALAKKAD. BY ADVS. SMT.S.KARTHIKA, MR.M.S.UNNIKRISHNAN, SMT.K.P.GEETHA MANI, MR.M.R.ANISON. RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REP. BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ADDITIONAL CHIEF SECRETARY, WATER RESOURCES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE CHIEF ENGNEER, IRRIGATION AND ADMINISTRATION DEPARTMENT, PUBLIC OFFICE BUILDING, OPPOSITE MUSEUM, THIRUVANANTHAPURAM. 4. C.N. SANTHY, CHIEF ENGINEER, INVESTIGATION AND DESIGN, IDRB, IRRIGATION, DEPARTMENT, VIKAS BHAVAN, THIRUVANANTHAPURAM. Kss ..2/- ...2.... WPC.NO.5882/2009 E 5. R.RAJESEKHARAN NAIR, CHIEF ENGINEER, PROJECT II, IRRIGATION DEPARTMENT, PUBLIC OFFICE BUILDING, OPPOSITE MUSEUM, THIRUVANANTHAPURAM. 6. THE SECRETARY TO GOVT. LAW DEPARTMENT, SECRETARAIT, THIRUVANANTHAPURAM. *ADDL.R7 TO R9 ARE IMPLEADED: R7. V.SUBHASH, SON OF K.VELAYUDHAN, WORKING AS EXECUTIVE ENGINEER, ADDDITIONAL IRRIGATION DIVISION, THRISSUR, RESIDING AT PATTIRETHU, KADAKKAD, PANDHALAM. R8. R.UNNIKRISHNAN, WORKING AS EXECUTIVE ENGNEER, INLAND NAVIGATION DIVISION, WATER RESOURCES DEPARTMENT, KOLLAM HAVING HIS PERMANENT RESIDENCE AT SREE SIVAM, MANAYILKULANGARA, KOLLAM. (*ADDL.R7 & R8 ARE IMPLEADED AS PER ORDER DTD. 28/10/2009 IN I.A.NO.13383/09.) R9. B.JAYARAMAN, EXECUTIVE ENGINEER, MINOR IRRIGATION DIVISION, WATER RESOURCES DEPARTMENT, THIRUVANANTHAPURAM. (*ADDL.R9 IS IMPLEADED AS PER ORDER DTD.28/10/2009 IN I.A.13386/09) R1 TO R3 BY GOVERNMENT PLEADER MR. P.NANDAKUMAR R4 & R5 BY ADVS. MR.S.P.ARAVINDAKSHAN PILLAY, SMT.N.SANTHA, MR.S.A.ANAND, MR.K.A.BALAN, MR.PETER JOSE CHRISTO. ADDL.R7 & R8 BY ADVS.MR.P.B.SURESH KUMAR, MR.K.P.SUJESH KUMAR, MR.K.N.SASIDHARAN NAIR, SMT.SANDHYA RADHAKRISHNAN, SMT.M.SRUTHY. ADDL.R9 BY ADV. MR.KALEESWARAM RAJ. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/12/2009, THE COURT ON 17/12/2009 DELIVERED THE FOLLOWING: Kss WPC.NO.5882/2009 E APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE JUDGMENT DTD. 25/02/1987 IN O.P.9216/86. P2: COPY OF THE JUDGMENT DTD. 11/11/2005 IN O.P.5596/03. P3: COPY OF THE JUDGMENT DTD. 25/01/2006 IN W.A.134/06. P4: COPY OF THE ORDER DTD. 7/04/2006 IN R.P.263/2006. P5: COPY OF THE JUDGMENT DTD. 28/02/2006 IN W.A.410/2006. P6: COPY OF THE ORDER DTD. 17/08/2007 IN SLP 7033/2007. P7: COPY OF THE ORDER DTD. 3/08/2007 IN SLP 9657/2006. P8: COPY OF THE COMMUNICATION DTD. 9/10/2007. P9: COPY OF THEG.O.(RT) 269/06/WRD DTD. 28/02/2006. P10: COPY OF THE ORDER IN I.A.3/2009. P11: COPY OF THE G.O.(RT) 50/2009/WRD DTD. 16/01/2009. P12: COPY OF THE REPLY AFFIDAVIT DTD. 11/02/2009. P13: COPY OF INFORMATION RECEIVED BY THE PETITIONER UNDER RIGHT TO INFORMATION ACT ON 25/03/2009. P14: COIPY OF THE NOTE PLACED BEFORE THE CABINET ON 6/01/2009. P15: COPY OF THE DECISION TAKEN BY THE CABINET ON 6/01/2009. P16: COPY OF THE NOTE PLACED BEFORE THE CABINET ON 14/01/2009. P17: COPY OF THE DECISION TAKEN BY THE CABINET ON 14/01/2009. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss ANTONY DOMINIC, J. ================ W.P.(C) NO. 5882 OF 2009 (E) ===================== Dated this the 17th day of December, 2009 J U D G M E N T The issue raised in this writ petition concerns the claim of the petitioner for being promoted to the post of Chief Engineer. 2. Petitioner is a Graduate in Civil Engineering, with MBA and M. Phil. He belongs to Thandan Community, a Scheduled Caste, in the State. He entered service as Assistant Executive Engineer on 24.12.1986 and was promoted as Executive Engineer in December, 1996. Soon after his entry into service, dispute arose regarding his SC status, which was the subject matter of O.P.No.9216/86. That Original Petition filed by the petitioner herein was disposed of by Ext.P1 judgment dated 25.2.1987, upholding the claim of the petitioner that he belonged to Thandan community. 3. Again enquiry was initiated which was challenged by the petitioner before this court by filing O.P.No.534/91. That Original Petition was disposed of interdicting the authorities from continuing further enquiries. The respondents in that case filed W.A.No.1300/99. The Writ Appeal was allowed and the judgment WPC 5882/09 :2 : of the learned single judge was set aside. Though the petitioner filed R.P.No.236/99 seeking review of the judgment in the writ appeal, the review petition was dismissed. 4. Again the petitioner was proceeded against, but however, the finding that the petitioner did not belong to Thandan Community was challenged by him before this court in O.P.No.5596/2003. That Original petition was disposed of by Ext.P2 judgment dated 11th November, 2005, quashing the impugned orders and directing that in case any benefits have been withheld, the same shall be released to the petitioner within 2 months from the date of production of a copy of the judgment. Thereafter, by Ext.P9 order dated 28.2.2006, the petitioner was promoted as Executive Engineer. 5. In the meantime State and other respondents filed W.A.No.134/06 against Ext.P2 judgment. That writ appeal was dismissed by Ext.P3 judgment and R.P.No.263/06 filed by the appellants in the writ appeal was also dismissed by Ext.P4 order. Against Ext.P2 judgment some of the third parties filed W.A. No.410/06 and that was also dismissed by Ext.P5 judgment. Later, against Ext.P5 judgment the 4th respondent herein filed WPC 5882/09 :3 : SL.P.No.7033/07 before the Apex Court and the SLP was dismissed by Ext.P6 order dated 17.8.2007 on the ground of delay. The State filed SLP.No.6008/06 against Ext.P3 judgment in W.A No.134/06 and leave was granted but however without any interim order. First appellant in W.A. No.410/06 filed SLP.No.9657/06. In that case also leave was granted and the appeal which has been numbered as C.A.No.3468/09 is still pending. In that appeal, the Apex Court had initially passed an order to maintain status quo but however the said order was later vacated by Ext.P7 order. 6. While so, two vacancies of Chief Engineer arose on 31.7.2007 and 30.11.08. It is stated that in view of Ext.P7 order of the Apex Court, the Principal Secretary to SC/ST Development issued Ext.P9 letter requiring the authorities to take action as directed by this court in Ext.P2 judgment. It is stated that on 6.1.2009, the appellant in C.A. No.3468/09 filed an interlocutory application, with a prayer to stay promotion of the petitioner to the post of Chief Engineer. On 6.1.2009 itself the issue relating to the promotion to the post of Chief Engineer came up before the Cabinet and Ext.P14 is the Cabinet Note. WPC 5882/09 :4 : From Ext.P15 proceedings of the Cabinet, it is seen that it was decided to place the matter in the next Cabinet meeting, after ascertaining the views of the Law Department. 7. Accordingly the matter was referred to the Law Department and Ext.P13 opinion was furnished to the effect that since the appeals filed against the High Court judgment regarding the caste status of the petitioner are pending before the Apex Court, it may not be proper to consider the petitioner to an important post. As decided in the Cabinet meeting held on 6.1.2009, the matter was again placed before the Cabinet in its meeting held on 14.1.2009 and Ext.P16 is the Cabinet Note. Ext.P17 decision of the cabinet shows that it was decided to promote respondents 4 and 5 as Chief Engineer. In pursuance to Ext.P17 decision, Ext.P11 order was issued on 16.1.2009, promoting respondents 4 and 5 to the post of Chief Engineer. 8. Petitioner submitted that coming to know of the Cabinet decision of 14.1.2009, he filed I.A.No.3/09 in C.A. No.3469/09 arising out of SLP.No.6008/06 with a prayer to order promotion of the petitioner to the post of Chief Engineer and to stay the promotion of respondents 4 and 5 superseding WPC 5882/09 :5 : petitioner's seniority. In that I.A., Government filed reply affidavit, a copy of which is Ext.P12. The application came up before the Apex Court on 17.2.2009. After hearing parties, Ext.P10 order was passed, stating that “we express no opinion in regard to this grievance at this stage. However, liberty is granted to the applicant to raise all his grievance as permissible under law in appropriate proceedings before appropriate forum”. It was thereupon that this writ petition has been filed, praying to quash Ext.P11 and to direct respondents 1 to 3 to promote the petitioner to the post of Chief Engineer from the date on which respondents 4 and 5 were promoted, if necessary, by reverting them. Consequential reliefs are also sought for. 9. First respondent has filed counter affidavit dated 30th March, 2009. It is stated that the post of Chief Engineer is coming under Kerala Engineering Services (Civil and General Branch) Rules and that as per Rule 3(a), the method of appointment is by promotion from Superintending Engineer(Civil and General) Branch. It is stated that under Rule 3(b), promotions and appointments by transfer shall be made from a select list of eligible officers prepared on the basis of merit and ability, WPC 5882/09 :6 : seniority being considered only where the merit and ability are equal and that persons included in the select list shall be ranked in the order of their inter-se seniority. Under Rule 28A of KS&SSR, appointment by promotion or transfer shall be made on the basis of merit and ability and that merit and ability shall be assessed by the competent authority in the Government to make such appointments. It is stated that Chief Engineer being the head of the department, Government is the competent authority to make appointments. 10. It is admitted that two vacancies of Chief Engineer arose on 31.7.2007 and 30.11.2008 and that a panel of 5 persons including the petitioner was forwarded to the Government. It is stated that after considering the merit and ability of the persons included in the panel, Government selected respondents 4 and 5 to the post of Chief Engineer, after elaborately considering the merits of the persons included in the proposed list. It is admitted that on 14.1.2009, the Joint Secretary of Law Department had given his opinion that since the Civil Appeal filed by the Government is pending consideration of the Apex Court, it is not appropriate to promote the petitioner. However, according to the WPC 5882/09 :7 : respondents, seeking the views of the Law department is only an administrative measure and is not binding on the Government. It is stated that based on the deliberations in the meeting, the Cabinet decided to fill up the two posts of Chief Engineer by promoting respondents 4 and 5. 11. In so far as the Cabinet Note referred to by the petitioner is concerned, it is stated that the Note of the concerned Minister will not confer any right on the petitioner to get promotion to the post of Chief Engineer. In effect what is canvassed by the Government is that the post is a selection post and that the merit and suitability of the persons included in the list was assessed and that it was based on such assessment of merit that respondents 4 and 5 were selected and appointed to the post of Chief Engineer. Party respondents have also filed their counter affidavits, supporting the stand taken by the Government in its counter affidavit. 12. The contention of the petitioner is that he was the senior most candidate included in the list submitted to the Cabinet. In the note prepared in terms of Rules of Business and Secretariat Manual for the cabinet meeting held on 6.1.2009, the WPC 5882/09 :8 : petitioner was recommended to be promoted and that the said Cabinet Note did not even contain any recommendation to appoint the 5th respondent. It is stated that however, the matter was deferred for further consideration to seek opinion of the Law Department. According to him, it was only on account of Ext.P13 legal opinion of the Law Department that in Ext.P16 Cabinet Note, the name of the 5th respondent was recommended to be promoted and he was overlooked. 13. It is contended that this court had already declared his caste status and directed that any benefit that is withheld shall be released and that the said judgment has not been stayed by the Apex Court. It is stated that the pendency of the appeals was irrelevant and therefore the decision not to promote him and to promote respondents 4 and 5 has been taken, on irrelevant and extraneous considerations. On this ground petitioner contended that the impugned decision is arbitrary and violative of his fundamental rights. It is also his contention that if Ext.P13 opinion of the Law Department is eschewed, the only material available before the appointing authority was the Cabinet note, which did not contain anything against the petitioner and therefore on that WPC 5882/09 :9 : material, he could not have been overlooked. It is submitted that the decision to supersede the petitioner is a perverse decision and for that reason also the impugned decision is vitiated. 14. The main argument of the Learned Government Pleader is that the Court cannot sit in appeal over the decision of the selection committee. According to him, in view of the Kerala Engineering Services (Civil and General Branch) Special Rules and the provisions of KS & SSR, the Chief Engineer being the head of the Department, Cabinet is the appointing authority. It is stated that the Cabinet considered the candidature of all those included in the list submitted to it and that assessing the merit and ability of each one of them, respondents 4 and 5 were selected and were promoted by the impugned order. It is contended that the Cabinet having assessed the relative merit and ability of the candidates, this Court should not sit in appeal over the decision of the Cabinet which played the role of a Selection Committee. According to him, being a selection post, the petitioner, one of the eligible candidates, has only a right to be considered and he having been duly considered, none of his rights have been violated. Answering the case of the petitioner that no reasons have been given for WPC 5882/09 :10 : selecting respondents 4 and 5 in preference to him, learned Government Pleader contended that so long as the rules do not require the Selection Committee to give reasons for selecting a particular candidate, the Committee is not obliged to give reasons. 15. On behalf of the party respondents, it was contended that unlike the provisions of Rule 28(b)(i)(4) of the KS&SSR , Rule 28(A) thereof do not provide that confidential records shall be the criteria for assessment of merit. 16. Now that I have noticed the contentions raised by the parties, I shall now proceed to deal with those contentions. Broadly, the points that arise for determination are two. First is regarding the scope of interference with the decision of a Selection Committee and the second is whether, within the limited scope of interference that is available to this Court, the decision of the Selection Committee to promote respondents 4 and 5 can be said to be an arbitrary or perverse exercise of power warranting interference. 17. On the first point, the learned Government Pleader relied on the following judgments:- WPC 5882/09 :11 : Dalpat Abasaheb Solunke v. B.S.Mahajan [(1990) 1 SCC 305], National Institute of Mental Health and Neuro Sciences v. K.Kalyana Raman (1992 Supp(2) SCC 481), Major General I.P.S. Dewan v. Union of India (1995(3) SCC 383), Durga Devi v. State of H.P (AIR 1997 SC 2618), Sasi v. State of Kerala (2004(2) KLT 778), M.V.Thimmaiah v. UPSC (2008(2) SCC 119), K.A. Nagamani v. Indian Airlines [2009(5) SCC 515] and Council of Civil Service Unions and others v. Minister for the Civil Service (1984(3) All ER 935). 18. The principles laid down in these judgments can be summarised as follows:- (1) It is not the function of the Court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates and that whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee, which alone has the expertise on the subject (2) that the decision of the Selection Committee can be interfered with only on limited grounds such as illegality or patent WPC 5882/09 :12 : and material irregularity in the constitution of the Selection Committee or its procedure, vitiating the selection or proved malafides, affecting the selection etc. (3) that in the absence of any rule or regulation requiring the Selection Committee to record reasons, Selection Committee is not obliged to give reasons why they are selecting a person or why they are not selecting a person and a selection made without recording reasons cannot be found fault with. (4) that the Selection Committee cannot be an exemption to the principle of 'fairness' or 'fair procedure' in the administrative action and that the decision taken by it should be reasonable, without being guided by extraneous or irrelevant consideration. (5) that the court cannot arrogate to itself the power to judge the comparative merits of the candidates and consider the fitness and suitability for appointment, which is the function of the Selection Committee. (6) that merely because a qualified, competent and eligible person is available in the State service, Government is not bound to promote and appoint him if he is not suitable for the WPC 5882/09 :13 : post and that suitability in service parlance is not the mere qualification, competence and eligibility: it necessarily partakes an element of desirability in larger public interest. (7) that normally, the recommendations of the Selection Committee cannot be challenged except on the ground of malafides or serious violation of the statutory rules and that the Courts cannot sit as an Appellate Authority to examine the recommendations of the Selection Committee like a Court of appeal and courts rarely sit as a court of appeal to examine selection of candidates nor is it the business of Court to examine each candidate and record its opinion. (8) that the grounds of judicial review can conveniently be classified into illegality, irrationality and procedural impropriety. 19. These judgments reiterate the well established principle that if a post is to be filled up by a selection process, an eligible candidate has a fundamental right to be considered. If he has been duly considered, and on relevant considerations, if the Selection Committee does not find him suitable or meritorious enough to hold the higher post, the Court will uphold the discretion exercised by the Selection Committee and will not WPC 5882/09 :14 : assume the role of an appellate court. On the other hand, these judgments itself show that if for no valid reason, an eligible candidate is not considered or that the decision of the Selection Committee is vitiated for extraneous considerations, malafides, irrationality or other forms of illegality, the Court is not deprived of its power to judicially review the decisions of the Selection Committee. Therefore, these judgments cannot and should not be understood as giving total immunity to Selection Committee and its decisions from judicial review. 20. It should be recognised that there is considerable discretion to Selection Committees in the matter of selection of personnel for senior executive posts, which involves assessment of personal qualifications like supervisory control, decision making and capacity to inspire confidence in the subordinates etc. It may also be that assessment of these qualifications may not be completely objective in character and the element of subjectivity has necessarily to enter the process of such assessment. It is also true that unless such subjectivity degenerates into extraneous or whimsical choice of the undeserving ignoring the deserving with manifest superiority, or where relevant materials are ignored and WPC 5882/09 :15 : irrelevant materials are taken into account, this Court shall not interfere with the selection process. Therefore, if the Selection Committee adopts a policy of pick and choose, ignoring the merit and capabilities and chooses persons, unrelated to the performance assessment and capacity, such selection and elimination will not satisfy the standards laid down in Articles 14 and 16 of the Constitution of India. In other words, the discretion of the Selection Committee is not a licence for arbitrary selection and capricious rejection of the deserving. 21. It may also be appropriate to state that availability and exercise of power are two different aspects and if an authority conferred with power abuses it, Court will step in and tell him, that power conferred is meant to be exercised in a legal manner and is not to be abused by it. Therefore, if complaint of elimination of a deserving senior is made, the endeavour of the Court will be to find out whether the elimination of the senior is justified or is arbitrary. To this extent, within the limitations of judicial review, Court is entitled to probe, and if the Court concludes that the petitioner got a fair deal at the hands of the Selection Committee, Court shall stop further probe at that stage. WPC 5882/09 :16 : 22. In this case, if I am to accept the contention of the learned Government Pleader, this Court will have to concede that the Selection Committee is not subject to any code of conduct of general application in dealing with the rights of the employees. What is claimed by the learned Government Pleader seems to be an unbridled power, an unguided discretion and a right to act according to its whims and fancies. In my considered view, no such unguided discretion, no such unbridled power and no such freedom to be free from ascertainable standards of general application can be claimed by any authority in a constitutional set up. Applying the aforesaid principles, I am not prepared to accept that when a Government servant complains that his rightful claims have been overlooked and thus his fundamental rights are violated, this Court should throw its hands up in despair and remain a silent and helpless spectator. On the other hand, confining itself within the self imposed parameters laid down for invoking its power of judicial review, the Court is entitled to examine and find out as to whether the petitioner got a fair deal at the hands of the Selection Committee, in as much as whether the decision of the Selection Committee was vitiated for, WPC 5882/09 :17 : malafides, extraneous considerations or was one which could not have been taken by a reasonable mind on the materials available before it. 23. Now that the first and the main objection has thus been dealt with, I shall proceed and examine whether the decision of the Selection Committee to promote respondents 4 and 5 in preference to the petitioner, is vitiated, warranting to be interfered with. 24. Before going to the merits of the contentions, I must first record that in answer to a querry to him, the learned Government Pleader fairly submitted that the only material available before the Cabinet on 6/1/2009 and on 14/1/2009 was the cabinet notes. 25. The post of Chief Engineer comes under the Kerala Engineering Services (Civil and General Branch) Special Rules. Rule 3(b) of the Special Rules providing for promotion and the preparation of the select list, being relevant, reads as under:- 3(b): “Promotion and appointments by transfer shall be made from select lists of eligible officers prepared on the basis of merit and ability, seniority being considered only where merit and ability are approximately equal. Persons included in a select list shall be ranked in the order of their seniority.” WPC 5882/09 :18 : Rule 28(A) of Part II KS & SSR also have been relied on by both sides and therefore is extracted for reference. 28A. Notwithstanding anything contained in these rules or in the Special Rules, in the case of appointment to the post of Heads of Departments, direct recruitment shall be resorted to in the absence of suitable persons for appointment by promotion or by transfer. Appointment by promotion or by transfer shall be made on the basis of merit and ability, seniority being considered only when merit and ability are approximately equal. Merit and ability shall be assessed by the authority competent in the Government to make such appointments. Provided that the lists for consideration for appointment by promotion or by transfer to the posts shall not ordinarily consist of members of service who do not have at least one year of service before