IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 11TH FEBRUARY 2009 / 22ND MAGHA 1930 OP.No. 20622 of 2002(E) ----------------------- PETITIONER(S): PETITIONER ------------------------- PHILIP M.PHILIP, JUNIOR SYSTEMS ANALYST, MODEL TECHNICAL HIGHER SECONDARY SCHOOL, KAPRASSERY, NEDUMBASSERY P.O., ALUVA. BY ADV. SRI.S.RAMESH BABU RESPONDENT(S): RESPONDENTS -------------------------- 1. INSTITUTE OF HUMAN RESOURCE DEVELOPMENT REPRESENTED BY ITS DIRECTOR, PRAJOE TOWERS, VAZHUTHACAUD, TRIVANDRUM-14. 2. REGHUKUMAR P., LECTURER IN COMPUTER APPLICATIONS, COLLEGE OF ENGINEERING, ADOOR. ADV. SRI.N.N.SUGUNAPALAN, SC, IHRD, FOR R1 SRI.G.S.REGHUNATH FOR R2 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 11/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.No. 20622/02. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE ORDER DTD.5.12.01. P2. COPY OF THE CIRCULAR DTD.26.6.01. P3. COPY OF THE PROVISIONAL CERTIFICATE DTD.17.4.01. P4. COPY OF THE CIRCULAR DTD.12.7.2001. P5. COPY OF THE CIRCULAR DTD.19.11.2001. P6. COPY OF THE ORDER DTD.25.6.2002. P7. COPY OF THE REPRESENTATION DTD.22.1.20O02. RESPONDENT(S)' EXHIBITS: R1A. COPY OF THE PROCEEDINGS DTD.25.10.99 BY R1. B. COPY OF THE REPRESENTATIONS FROM THE EMPLOYEES ORGN. C. COPY OF -DO- D. COPY OF THE CIRCULAR DTD.12.7.01. E. COPY OF THE PROCEEDINGS DTD.3.11.2001. F. COPY OF THE CIRCULAR DTD.19.11.2001. G. COPY OF THE APPLICATION OF THE PETITIONER DTD.3.12.2001. R2A. COPY OF THE REPRESENTATION BY THE EMPLOYEES' UNION DTD.1.7.2001. B. COPY OF THE SENIORITY LIST. C. COPY OF THE ORDER DTD.20.2.2001. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 20622 of 2002 ================== Dated this the 11th day of February, 2009 J U D G M E N T The issue raised by the petitioner in this original petition is regarding the validity of the selection made to the post of Lecturer in Computer Applications in the Institute of Human Resources Development (IHRD), the 1st respondent herein, which is an institute owned and controlled by the Government of Kerala. 2. Under Ext.R1(a) amendment to the Service rules applicable to appointment to various posts in the 1st respondent, ten per cent of the sanctioned posts were reserved for selection from among the qualified IHRD employees. By Ext.P2 circular dated 26.6.2001, the 1st respondent invited applications for the post of Lecturer in Computer Applications in the 10 per cent reserved category, in respect of two vacancies. The last date prescribed for submission of the applications for the posts, for which the applications were invited by Ext.P2 circular, was 31.7.2001. It was specifically mentioned therein that the applications received after the due date and defective applications will not be considered under any circumstances. The petitioner being in possession of the required qualifications, applied pursuant thereto. As on that date the 2nd respondent was not qualified for even applying to the post in so far as he did not possess First Class Degree in Computer o.p.20622/02 2 Applications, which was the requisite qualification prescribed for the post. By Ext.P4, the last date fixed for submission of filled up applications was extended upto 15.9.2001. Again in Ext.P4, it was specifically mentioned that the request for further extension of time will not be entertained under any circumstances. In Ext.P4, it was also mentioned that the qualification prescribed for the post shall be one acquired by the candidates on or before 31.8.2001. The 2nd respondent had not acquired the requisite qualifications even as on that date. Subsequently, by Ext.P5, Exts.P2 and P4 circulars were cancelled and fresh applications were invited for various posts including the post of Lecturer in Computer Applications. Although the reason for cancellation of Exts.P2 and P4 stated in Ext.P5 was that the governing body had resolved to relax the qualifications for certain categories of posts, which are reserved for internal candidates, qualifications for the post of Lecturer in Computer Applications were not relaxed. It continued to be the same as before in Exts.P2 and P4. Subsequently, based on Ext.P5, applications were received. Both the petitioner and the 2nd respondent applied and by Ext.P6, the 2nd respondent was selected. The petitioner is challenging Exts.P5 and P6 on the ground that the entire exercise was for enabling the 2nd respondent to acquire the qualifications prescribed for the post and therefore, malafide and liable to be quashed. o.p.20622/02 3 3. Counter affidavits have been filed by respondents 1 and 2. The 1st respondent has categorically denied the allegations of malafides. According to them, the situation arose only as a result of the decision of the governing body of the IHRD. Since Ext.P2 was in respect of various posts and, for some of the posts the governing body decided to relax qualifications, selection to all posts was postponed till the governing body took a decision in the matter and it is under the above circumstances, Ext.P5 was issued cancelling the earlier circulars, Exts.P2 and P4. According to them, the first postponement was pursuant to Exts.R1(b) and R1(c) and, the cancellation of Exts.P2 and P4 was on the basis of the representations received from the IHRD employees for relaxation of qualifications. According to them, there is no malafides involved in the process. They would submit that there was no intention to favour the 2nd respondent in postponing the selection by cancelling Exts.P2 and P4. The 2nd respondent also supports the contentions of the 1st respondent in his counter. 4. I have considered the rival contentions in detail. 5. In Exts.R1(a) amendment special rules it has been specifically stated that there shall no relaxation with regard to the minimum qualification for the internal candidates. The governing body themselves made the special rules. I wonder what made the governing body to depart from the said specification in the special rules so as to o.p.20622/02 4 relax qualifications and postpone the selection, even assuming that it was not for the purpose of favouring the 2nd respondent. Further, in Ext.R1(b) which is dated 1.7.2001 the seal bears the date of receipt as 5th June, 2001. Exts.R1(c) is dated 4.7.2001 and the seal contains the date 5.7.2001. But Ext.R1(c) received on 5.7.2001 bears the inward number 6793 whereas Exts.R1(b) purported to have been dated 1.7.2001 and shown as having received on 5.6.2001, is given the inward number 6794. The 1st respondent was not able to explain the discrepancy to me. It is also a mystery as to why when the qualifications in respect of only four posts were relaxed, why should the selection for the entire 17 posts advertised as per Ext.P2 had to be postponed. The 1st respondent also could not answer the question as to whether there was any dearth of qualified candidates in the IHRD employees at the relevant time. As such, the action of the 1st respondent appears to be suspect. Even then I am not inclined to interfere with the selection now made in view of the fact that the petitioner had not chosen to challenge Ext.P5 at the appropriate time. In fact he chose to participate in the selection pursuant to Ext.P5 and only when he found that he was not selected, he turned around and challenged that notification and selection pursuant thereto. It is settled law that such challenge cannot be countenanced under law. In view of such circumstances, despite the circumstances mentioned o.p.20622/02 5 above, I am not inclined to interfere with the selection now made by Ext.P6. Accordingly, the original petition is dismissed. Interlocutory applications stand closed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================= O.P.No. 20622 of 2002-E ================= J U D G M E N T 11th February, 2009