IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 17TH FEBRUARY 2011 / 28TH MAGHA 1932 WP(C).No. 23729 of 2010(M) -------------------------- PETITIONER(S): ----------------------- ANITHAKUMARY K.S, BLUE NILE, SASTHAMKOTTA PO, KOLLAM DISTRICT PRESENTLY KARTHIKA, AKSHAYA NAGAR 89, KADAPPAKADA PO,KOLLAM BY ADV. SRI.K.BABU THOMAS RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT SOCIAL WELFARE DEPARTMENT, SECRETARIAT, TRIVANDRUM 695 001 2. THE DIRECTOR OF SOCIAL WELFARE DIRECTORATE OF SOCILA WELFARE, VIKAS BHAVAN TRIVANDRUM 695 033 ADDL.R3 TO R16 IMPLEADED 3. S.JALAJA, JALAJA BHAVAN, T.C.47/976, RAMACHAMVILA, KARAMANA P.O, TRIVANDRUM (S.JALAJA, SPECIAL INVESTIGATION UNIT, VIGILANCE AND ANTICORRUPTION BUREAU, POOJAPURA). 4. ANITA S LIN, TC 49/2525, TRA-137, THAMALAM, POOJAPURAM, TRIVANDRUM (ANITA S LIN, UDC, DIRECTORATE OF SOCIAL WELFARE). 5. SHIMNA V.S, SANTHA NIVAS, PUNNAMOOD, KALLIYOOR (SHIMNA V.S., UDC, ASST.DIRECTORATE OF PANCHAYATH, TRIVANDRUM). 6. S.JEEJA, “SWARAGE”, T.C. 5/1861, NADAKKAVU LANE, PERRORKADA P.O, TRIVANDRUM 695005 (S.JEEJA, UD CLERK, LAND REVENUE COMMISSIONER, PUBLIC OFFICE BUILDINGS, REGISTRATION DEPARTMENT). 7. K.LAKSHMI, LAKSHMI BHAVAN, ONAMTHURUTH P.O, KAIPUZHA, KOTTAYAM (K. LAKSHMI, WELFARE OFFICER, WOMEN'S PRISON, NEYYATTINKARA). 8. LINCY A.K., CHAITHRAM HOUSE, MANGAD P.O, UNNIKULAMAYA, KOZHIKODE (LINCY A.K., UDC, PWD, N.H.SUB DIVISION, KOZHIKODE. WPC NO.23729/10 -2- 9. SREELATHA R.S, SREENILAYA, SANGEETHA NAGAR, PANGAPPARA P.O, TRIVANDRUM (SREELATHA R.S, SUPERVISOR, ICDS, SWD, VAZHOOR. 10. T.R.SHEELA KUMARI, ANUGRAH, KODUVAZHANNUR P.O, PULIMATH VIA, TRIVANDRUM (T.R. SHEELA KUMARI, SUPERVISOR, ICDS, SWD, KULANADA). 11. THAHIRABEEVI H, T.C. 52/58 (2), KATTAKATH, KARAKKAMANDAPAM, NEMOM, TRIVANDRUM (THAHIRABEEVI H, DEPUTY DIRECTORATE OF PANCHAYATHS, TRIVANDRUM.) 12. TESSY ABRAHAM, W.O. JESTINE K.J. MASTER, SAINIK SCHOOL P.O, TRIVANDRUM 695 585 (TESSY ABRAHAM, HEAD CLERK, KAVALANGAD GRAMA PANCHAYTH, ERNAKULAM). 13. SUNITHA M.V., GOURESAM, T.C. 50/780 (5), DEVINAGAR, KALADY, KARAMAA P.O, (SUNITHA M.V., UDC, CENTRAL STAMP DEPARTMENT, THYCAUD, TRIVANDRUM) 14. PAULIN JOSE, THEKKEDATH, ARPOOKKARA EAST P.O, KOTTAYAM (PAULIN JOSE, SUPERVISOR, ICDS, KANJIRAPPALLY). 15. SUSEELA K. VARICKEMICKAL HOUSE, PLASSAMAL PO, THALAPPALAM, KOTTAYAM, (SUSEELA K., SUPERVISOR, ICDS, SOCIAL WELFARE DEPARTMENT, ERATTUPETTA.) 16. SULAJA, 1/217, JNEO APARTMENT,BYPASS ROAD, WEST HILL, CHUNGAM, KOZHIKODE (SULAJA P, LPSA, GOVT.UPS, WEST HILL P.O, KOZHIKODE.) (ADDL.R3 TO R16 IMPLEADED AS PER ORDER DATED 13/8/2010 IN IA 11343/10.) ADV. SRI.M.V.BOSE FOR ADDL.R SRI.VINOD MADHAVAN FOR ADDL.R SRI.BABU KARUKAPADATH FOR R6 & 13 SMT.M.A.VAHEEDA BABU FOR R6 & 13 SRI.JAGAN GEORGE FOR R6 & 13 SRI.K.A.NOUSHAD FOR R6 & 13 SRI.P.G.PRAMOD FOR R6 & 13 SRI.KANDAMPULLY RAHUL FOR R6 & 13 GOVERNMENT PLEADER SRI.T.K.ARAVINDKUMAR BABU SRI.P.C.SASIDHARAN FOR ADDL.R3,R4&R9 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 9/12/2010, THE COURT ON 17/2/2011 DELIVERED THE FOLLOWING: WPC NO.23729/10 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF NOTICE PUBLISHED IN KERALA KOUMUDI DAILY. EXT.P2: TRUE COPY OF QUALIFICATION CERTIFICATES. EXT.P3: TRUE COPY OF APPLICATION WITH NOC. EXT.P4: TRUE COPY OF LETTER OF THE 2ND RESPONDENT. EXT.P5: TRUE COPY OF LETTER OF THE 2ND RESPONDENT. EXT.P6: TRUE COPY OF LETTER OF THE 2ND RESPONDENT. EXT.P7: TRUE COPY OF LIST OF 14 CANDIDATES. EXT.P8: TRUE COPY OF THE SELECT LIST OF CANDIDATES IN THE WRITTEN TEST. EXT.P9: TRUE COPY OF LIST OF CANDIDATES SUPPLIED BY THE INFORMATION OFFICER OF THE INSTITUTE OF MANAGEMENT IN GOVERNMENT. EXT.P10: TRUE COPY OF THE RANK LIST OF CANDIDATES, BASED ON MARKS SECURED IN THE WRITTEN TEST AND IN THE INTERVIEW FURNISHED IN ADDL.EXT.P9 WITH SL.NO.15 FOR THE PETITIONER. EXTS. OF R1 EXT.R1(a): TRUE COPY OF THE ORDER NO.G.O(MS) NO.03/2009/SWD DT 14.01.2009. EXT.R1(b): A TRUE COPY OF THE MARK SHEET OF THE CANDIDATES. EXTS. OF R5 EXT.R5(a): TRUE COPY OF NOTIFICATION NO.E1/15899/08 ISSUED BY THE DIRECTOR. EXT.R5(b): TRUE COPY OF GOVERNMENT LETTER DT 23.7.2009. EXT.R5(c): TRUE COPY OF NOTES NO.124 EXT.R5(d): TRUE COPY OF NOTES NO.141 EXT.R5(e): TRUE COPY OF ELABORATE NOTES EXT.R5(f): TRUE COPY OF LETTER DT 3.6.2010. WPC NO.23729/10 -2- EXT.R5(g): TRUE COPY OF LETTER DT 6.7.2010. EXT.R5(h): TRUE COPY OF THE APPOINTMENT ORDER NO.E1-15899/08 DT 27.7.2010. EXT.R5(i): TRUE COPY OF THE JUDGMENT DATED 5.8.2010 IN WP(C) NO.23527 OF 2010 (M) EXT.R5(j): TRUE COPY OF THE QUESTIONNAIRE. EXT.R5(k): TRUE COPY OF THE REPLY DATED 21.8.2010 EXTS. OF 6TH AND 13TH RESPONDENTS EXT.R8(a): TRUE COPY OF G.O(MS) NO.67/2008/SWD DT 2.12.2008 ISSUED BY THE 1ST RESPONDENT CREATING 14 PSOTS OFWOMEN PROTECTION OFFICERS. EXT.R3(b): TRUE COPY OF THE RELEVANT PORTION OF THE SELECT LIST PUBLISHED IN PURSUANCE TO THE WRITTEN TEST CONDUCTED ON 21.3.2010. EXT.R3(c): TRUE COPY OF THE ORDER NO.E1/15899/08 DT 27.7.2010 OF THE 2ND RESPONDENT APPOINTING US AS WOMEN PROTECTION OFFICERS IN THE DEPARTMENT. EXTS. OF R3, 4 AND 9 EXT.R3(a): TRUE COPY OF THE APPOINTMENT ORDER ISSUED BY THE DIRECTOR DATED 27/7/2010. EXT.R3(b): TRUE COPY OF THE JOINING REPORT OF THE 9TH RESPONDENT. EXT.R3(c): TRUE COPY OF THE DETAILS FURNSIHED by the IMG DATED 29.9.2010 ALONG WITH THE COVERING LETTER. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 23729 OF 2010 ===================== Dated this the 17th day of February, 2011 J U D G M E N T The issue raised in this writ petition relates to the appointment of Protection Officers created under Section 8 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as 'Act' for short). Section 8 of the Act provides that, the Government shall, by notification appoint such number of Protection Officers in each district as it may consider necessary. Sub Section 2 provides that Protection Officers shall as far as possible be women and shall possess such qualification and experience as may be prescribed. Duties and responsibilities of Protection Officers are those enumerated in Section 9 of the Act. In exercise of the powers conferred under Section 37 of the Act, Central Government have framed the Protection of Women from Domestic Violence Rules 2006 (hereinafter referred to as Rules). Rule 3 which lays down the qualification and experience provide that Protection Officers appointed by the State Government may be of the Government or members of the non Governmental organisations and that they shall have atleast 3 years experience WPC No. 23729/10 :2 : in Social Sector. Rules 8 and 10 also lays down the duties and functions of Protection Officers. 2. In pursuance to the provisions of the Act and the Rules, the Government have issued GO(MS) No.67/2008 SWD dated 2.12.2008 creating 14 posts of Women Protection Officers and the method of appointment is by transfer or through PSC. However, to avoid delay Government ordered that the posts be filled up by transfer. The qualification prescribed for the post are Post Graduate Degree in any subject or LLB and those already in service drawing the scale of pay of Rs.10790-18000 and Class III employees having two years experience are eligible to apply. Subsequently, the Government have issued Ext.R1(a) order dated 14/1/2009, constituting a Selection Committee for selecting candidates. Pleadings show that, thereafter, by order dated 01/06/2010, the Selection Committee constituted as per Ext.R1(a) was reconstituted replacing one of its members. 3. On 3/3/2009, Ext.P1 was issued inviting applications to the post of Protection Officers. This advertisement is based on Ext.R5(a) press release. Several candidates, including the petitioner responded to Ext.P1. While so, on 8/7/2009, the WPC No. 23729/10 :3 : Selection Committee held a meeting. Para 5 and 6 of the counter affidavit filed on behalf of the 1st respondent shows that, in the aforesaid meeting, the Selection Committee decided to conduct a written test and to shortlist 1/3rd of the candidates and to invite them for an interview and a Computer Aptitude Test. It was further decided that the written test shall be conducted by the Institute for Management in Government or some other Government agency. Further, it was also decided to award 70 marks to the written test and 30 marks to interview, out of which 10 marks will be awarded to Computer Aptitude Test. These facts are also mentioned in Exts.R5(b) to R5(e) file notings produced along with the counter affidavit of the 3rd respondent obtained under the Right to Information Act. These documents further show that Government have also agreed to the proposals in this behalf. 4. Accordingly, IMG conducted the written test on 21/3/2010 at Thiruvananthapuram and Ext.P8 is the list of 42 candidates, who were shortlisted. In this list, petitioner's name figures at Sl.No.20. Along with other candidates, by Ext.P4, petitioner was also called for an interview, which was scheduled on 18/6/2010. It is to be stated here that Ext.P4 does not contain WPC No. 23729/10 :4 : any mention of the Computer Aptitude Test. Subsequently, Ext.P5 memo was issued intimating the petitioner that the interview scheduled on 18/6/2010 was postponed. This was followed by Ext.P6 informing that interview will be held on 14/7/2010. For the first time, by Ext.P6, the candidates were informed that the interview will be preceded by an Aptitude Test in Computer. 5. In response to Ext.P6, petitioner and other shortlisted candidates appeared for Computer Aptitude Test and interview. Later, on 23/7/2010, the 2nd respondent published Ext.P7, the list of candidates who were selected in the interview. Obviously, the petitioner's name did not find a place in the list. Exts.P9 and P10 are two documents that were obtained by the petitioner invoking the provisions of the Right to Information Act. Ext.P9 shows the marks obtained by those included in Ext.P7, and according to the petitioner, if the marks for Computer Aptitude Test are excluded, petitioner's name should figure at Sl.No.15. Ext.P10 is the ranked list of the candidates based on the marks secured by them. Ext.R3 (a) is the proceedings of the Director of Social Welfare, appointing the selected candidates at places indicated in the order. Thus, the petitioner did not succeed in getting appointment in the selection WPC No. 23729/10 :5 : process and it is in this background, the writ petition has been filed. 6. The main prayers sought in the writ petition are to quash Exts.P6 and P7 to the extent Computer Aptitude Test has been introduced and the select list that has been prepared based on the interview, which also included the Computer Aptitude Test and writ of prohibition interdicting the respondents from issuing order of appointment to any candidates included in Ext.P7 is also sought for. 7. The main contention raised by the counsel for the petitioner is that the Government order creating the post, or prescribing the qualifications or Ext.P1 notification, on the basis of which applications were made, did not provide for an Aptitude Test in Computer as part of the selection process. Therefore, according to the petitioner, Computer Aptitude Test has been held without any authority of law. It was contended that so long as the appointing authority did not prescribe Computer Aptitude Test, the Selection Committee could not have introduced such a test in the selection process. Finally, it was argued that once the selection process is notified and commenced, an additional test WPC No. 23729/10 :6 : could not have been introduced midstream, particularly after the commencement of the selection process. It is therefore contended that the selection conducted based on the Computer Aptitude test is illegal and calls for interference. 8. All the respondents attempted to justify the selection process. According to the counter affidavits and the arguments raised, qualifications have not been prescribed by the Government in the rules framed and what is contained in Ext.P1 are the qualifications prescribed by an executive order. It is stated that, Ext.P1 did not prescribe the manner in which selection is to be held and therefore, long before the process of selection commenced, the Selection Committee convened its meeting on 8/7/09 and decided the manner in which candidates are to be selected. Respondents contended that it was well within the power of the Selection Committee to assess the suitability of the candidates and decide the manner in which suitability is to be assessed. Further, it was strongly contended that long before the petitioner appeared before the Selection Committee, when Ext.P6 notice was issued calling the petitioner and other short listed candidates to appear for interview, they were made known that WPC No. 23729/10 :7 : the interview will be preceded by an Aptitude Test in Computer. It is stated that knowing it fully well, petitioner appeared before the Selection Committee, subjected herself to the Computer Aptitude Test and interview without any protest and approached this Court only after realising that she failed to succeed in the selection process. It is stated that, by her conduct, she is estopped from challenging the selection process, and therefore, the relief should be declined to her. According to the respondents, many of the candidates have already joined the post and have commenced service and for that reason also, this Court shall not interfere with the selection process and appointment of the 14 candidates. 9. Before I deal with the contentions with reference to the facts pleaded, I shall make reference to the judgments that were cited by the Counsel. In P.Mahendran v. State of Karnataka (AIR 1990 SC 405), the Apex Court has considered the impact of an amendment to the rules of recruitment which were effected subsequent to the commencement of the selection process. In that judgment, the Apex Court held that, a prospective amendment to the recruitment rules made subsequent to the commencement of the selection process, can have no impact on WPC No. 23729/10 :8 : the selection process, which has already commenced, and that, the right of candidates who were qualified for selection and appointment on the date they applied for the post will remain unaffected. Subsequently, the Apex Court in its judgment in Shainda Hasan v. State of U.P. (AIR 1990 SC 1381) considered the issue whether the Selection Committee could have relaxed the qualification or experience in favour of selected candidates. Considering this question, it was held that in the absence of any statutory rules conferring power of relaxation, the Selection Committee could not have relaxed the qualifications or experience laid down in the recruitment rules. 10. A Division Bench of this Court in Sreekumar v. T.D.Board (1993 (1) KLT 740) considered the question whether the method of selection can be altered after the issuance of notification. It was held that, there was nothing in the rule conferring power on the appointing authority to change the method of selection while the selection process is under way. After recognising that the appointing authority was competent to determine the method of selection, it was held that, the method of selection has to be determined by the appointing authority at the WPC No. 23729/10 :9 : time of issuance of the notification for recruitment. This was on the basis that the candidates are entitled to know the method by which the selection is made. In this judgment, reference has been made to the Apex Court judgment in Durgacharan Misra v. State of Orissa (AIR 1987 SC 2267), where it was held that the Public Service Commission cannot prescribe additional requirements for selection either as to eligibility or suitability, has been relied on. Applying this principle, the Division Bench held that the Travancore Devaswom Board cannot prescribe additional requirements for selection either as to eligibility or as to suitability. 11. Reference was also made to the Apex Court judgment in K.Manjusree v. State of A.P. (AIR 2008 SCW 1529). In that case, reference was made to P.K.Ramachandra Iyer v. Union of India (1984 (2) SCC 141), where the Apex Court held that, since no power was conferred on the Selection Board to prescribe the additional qualification of securing minimum marks in the interview, such a restriction imposed by the Selection Board was impermissible and had a direct impact on the merit list. Further, in this judgment, reference was also made to Umesh Chandra WPC No. 23729/10 :10 : Shukla v. Union of India (1985 (3) SCC 721), where dealing with the selection held under the Delhi Judicial Service Rules, 1970, it was held that the Selection Committee had no power to give moderation in the written examination marks by addition of 2% for all candidates. Applying these principles, in Manjusree's case (supra), it was held by the Apex Court that introduction of the requirement of minimum marks for interview, after the entire selection process was completed, would amount to changing the rules of the game after the game was played. On that basis, the Apex Court directed to draw the merit list afresh, without applying the minimum marks for interview. 12. Again in the judgment in Hemani Malhotra v. High Court of Delhi (AIR 2008 SC 2103), the Apex Court held as follows:- 9. From the proposition of law laid down by this Court in the above mentioned case, it is evident that previous procedure was not to have any minimum marks for viva voce. Therefore, prescribing minimum marks for viva voce was not permissible at all after written test was conducted. There is no manner of doubt that the authority making rules regulating the selection can prescribe by rules the minimum marks both for written examination and viva voce, but if minimum marks are not prescribed for viva voce before the commencement of selection process, the authority WPC No. 23729/10 :11 : concerned, cannot either during the selection process or after the selection process add an additional requirement/qualification that the candidate should also secure minimum marks in the interview. Therefore, this Court is of the opinion that prescription of minimum marks by the respondent at viva voce, test was illegal. 13. A Full Bench of this Court had occasion to deal with this very question in the judgment in Keshav Mohan v. University of Kerala (2009(4) KLT 573) where the Full Bench has encapsulated its conclusions in the following manner:- (1) The selection committee, which has been statutorily constituted, should follow the norms for assessing the merit of rival candidates, if such norms are laid down in the statute. The Selection Committee has no jurisdiction or authority to either relax any of the norms or vary the same. (2) If the statute which provides for the constitution of the Selection Committee does not provide for the norms for the selection committee, then it is open to the appointing authority to lay down instructions and guidelines providing for such norms. In such a case, the Selection Committee is bound to follow such administrative instructions in conducting selection. (3) In cases where the norms governing the selection are not laid down either in the statutory provisions or in administrative instructions, the Selection Committee constituted to conduct selection would not have any inherent jurisdiction or authority to evolve its own norms for conducting the selection. If it evolves its own norms, then its action will be without authority and jurisdiction and selection would be vitiated. (4) The dictum laid in Antony P.A. V. Krishnadas M.N. (ILR 2007(1) Ker. 244), which upholds the WPC No. 23729/10 :12 : contrary position does not lay down the correct law and it is hereby overruled. 14. Therefore the well settled position is that if the rules do not enable it, the Selection Committee cannot introduce any norms determining the eligibility or suitability. It also seems settled that once the process of recruitment has commenced, it is impermissible to alter the rules of eligibility or suitability. 15. Now that I have referred to the judgments referred to by the counsel for the petitioner, I shall now proceed to refer to the judgments referred to by the respondents in support of their plea that the petitioner is estopped from challenging the selection process. Union of India v. N.Chandrasekharan {(1998)3 SCC 694} is the judgment rendered by the Apex Court, where it was held that, all candidates were made aware of the procedure for promotion before they sat for the written test and before they appeared before the DPC. It was therefore held that when they found that they were not selected, they cannot challenge the procedure adopted, contending that the marks prescribed for interview and confidential reports are disproportionately high and that the authorities cannot fix a minimum to be secured either at interview or in the assessment of confidential reports. In Siraj v. WPC No. 23729/10 :13 : High Court of Kerala (2006(2) KLT 923), after referring to its previous judgments in the case of Remany v. High Court of Kerala (1996(2) KLT 439) and Madan Lal and others v. State of Jammu and Kashmir and others {(1995) 3 SCC 486}, the Apex Court upheld the view taken by the High Court that the writ petition filed by the appellants/petitioners should be dismissed on the ground of estoppel. 16. However, this contention of the respondents was answered by the counsel for the petitioner by referring to the Apex Court judgment in Ramesh Kumar v. High Court of Delhi (2010 AIR SCW 946), where it was held that, in the absence of any statutory requirement of securing minimum marks in interview, where the candidates have appeared in the selection process, the question of acquiescence would not arise. (vide para 17 of the judgment). 17. In the light of the contentions raised by both sides, two issues arise for consideration. First is whether the Selection Committee was justified in introducing Aptitude Test in Computer as part of the selection process. The second question is whether there is any substance in the contention raised by the WPC No. 23729/10 :14 : respondents that the petitioner having appeared for the Aptitude Test in Computer and interview without protest is estopped from challenging the selection process. 18. Bearing in mind the principles laid down by the Apex Court, I shall now examine the first issue. Although the post of Protection Officers was created, neither the Act nor the Rules prescribed the qualifications or the method of appointment to the post. On the other hand, it was by executive orders the qualification was prescribed. The qualifications so prescribed are reflected in Ext.P1, on the basis of which applications were made by the candidates. Nobody has a case that the executive orders or the Rules framed under the Act enabled the Selection Committee to add or modify the norms of eligibility or selection. On the other hand, the Selection Committee was entrusted only with the task of selecting candidates applying the qualifications and other eligibility laid down by the appointing authority. It is in exercise of that right that the Selection Committee in the meeting held on 8/7/09 decided to conduct written test and interview and also to conduct a Computer Aptitude Test. 19. Here it should also be stated that the Computer WPC No. 23729/10 :15 : Aptitude Test was not included in the executive order issued by the Government prescribing the qualification or in the press note or the advertisement on the basis of which applications were made by the candidates. Further when the candidates appeared for the written test, then also they were unaware of the Computer Aptitude Test. This position continued even in Exts.P4 and P5, by which candidates shortlisted in the written test were called for interview and when it was postponed. The first time the shortlisted candidates came to know that they will have to appear for an Aptitude Test in Computer was when Ext.P6 was issued, calling them for the interview. 20. Therefore, it is clear that selection process commenced without Computer Aptitude Test as part of the recruitment process. The written test was conducted without the candidates knowing that they will have to appear for a Computer Aptitude Test and the candidates were made known of the element of Computer Aptitude Test only when they were called for interview by Ext.P6. Therefore, as far as the candidates are concerned, it cannot be a matter of dispute that the rules of the game, viz., the selection process were changed after the game had begun by WPC No. 23729/10 :16 : Ext.P1 and was played till Ext.P6 was issued. Further, the Selection Committee introduced Aptitude Test in Computer, for which it had no power. In the light of the Apex Court judgments and the judgments of this Court, which in categoric terms laid down that the rules of the game cannot be altered midstream applies on all force to this fact-situation. If that be so, the introduction of Computer Aptitude Test