IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 12TH DECEMBER 2011 / 21ST AGRAHAYANA 1933 WP(C).No. 17655 of 2006(B) --------------------------------------- PETITIONER(S): ---------------------- M. MUHAMMED KABIR, S/O.MUTHUMEERAN PILLAI, AGED 47, CHENKALAYIL HOUSE, VIZHINJAM. P.O, THIRUVANANTHAPURAM. BY ADV. SRI.K.JAJU BABU, SMT.M.U.VIJAYALAKSHMI. RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, FOOD & CIVIL SUPPLIES DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF CIVIL SUPPLIES, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. 4. SHRI.N. SUDHAKARAN, SANTHASUDHA, BEACH ROAD, KOVALAM, THIRUVANANTHAPURAM. R1 TO R3 BY GOVT. PLEADER MR.NOBLE MATHEW. R4 BY ADV. SRI.P.GOPINATH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C).No. 17655 of 2006(B) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 COPY OF THE APPLICATION SUBMITTED IN THE PRESCRIBED FORM ENCLOSING ALL REQUIRED DOCUMENTS BY THE PETITIONER ON 25/06/2003. EXT.P2 COPY OF THE ORDER DATED 21/06/2004 ISSUED BY THE 3RD RESPONDENT VIDE NO.CS1-566/02. EXT.P3 COPY OF THE ARGUMENT NOTE SUBMITTED BEFORE THE 2ND RESPONDENT BY THE COUNSEL FOR THE PETITIONER DATED 16/02/2005. EXT.P4 COPY OF THE ORDER DATED 27/04/2005 VIDE NO.CS.A3.8044/2004 ISSUED BY THE 2ND RESPONDENT. EXT.P5 COPY OF THE REVISION MEMORANDUM SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 30/07/2005. EXT.P6 COPY OF THE G.O.(MS) NO.144/06/F & CSD. DATED 31/03/2006 ISSUED BY THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE rs S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.17655 of 2006 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of December, 2011 J U D G M E N T The petitioner and the 4th respondent were applicants for appointment as an AWD for Kovalam centre. There were 11 applicants. 10 had the required qualifications. The applications of the 10 applicants were considered by the District Collector by Ext.P2. The 4th respondent was preferred on the ground that he had solvency of Rs.15,75,000/- on his own personally. The petitioner challenges the same before the Commissioner of Civil Supplies. According to him, the fact that the 4th respondent has provided his own solvency is not a reason for holding that the 4th respondent is more eligible than the petitioner since the solvency provided by the petitioner is a joint solvency of his own and that of his wife, which practically amounts to own solvency for all purposes especially for the purpose for which the solvency has been granted, especially when the solvency required is only of Rs.6 lakhs. He further submits that there are other criteria applicable which also W.P.(C)No.17655 of 2006 -2- should have been considered, such as the fact that the petitioner had experience in a wholesale depot whereas the 4th respondent's experience was only in an ARD and the petitioner had storage capacity of over 1500 sq. ft. with three choices, whereas the 4th respondent had only storage capacity of 1200 sq ft. Further the place offered by the petitioner was near to the centre, whereas the place offered by the respondent was 5 k.m. away from the centre. According to the petitioner, these criteria should also have been evaluated and the matter should not have been decided on the basis of solvency alone. But his contentions did not find favour with the Commissioner of Civil Supplies, who by Ext.P4 order, upheld the order of the District Collector. The petitioner filed a revision before the Government which was also rejected by Ext.P6 order upholding the earlier orders. The petitioner is challenging the same in this writ petition seeking the following reliefs: “i) issue a writ of certiorari or other appropriate writ, order of direction calling for the records leading to Exts.P2, P4 and P6 and quash the same; ii) issue a writ of mandamus or other appropriate writ, order or direction, directing the 3rd respondent to appoint the W.P.(C)No.17655 of 2006 -3- petitioner as AWD at Kovalam in pursuant to Ext.P1 forthwith. iii) direct the 3rd respondent to produce notification No.CS1566/02 dated 23.5.03 before this Hon'ble Court; iv) issue such other and further reliefs as this Honourable Court may deem fit and proper in the facts and circumstances of the case;” 2. The contention raised by the 2nd respondent in his counter affidavit is that it is after considering all the relevant criteria that the 4th respondent has been preferred. According to the 2nd respondent, the qualifications of all the 10 applicants were thoroughly verified and all of them were found qualified and since the 4th respondent submitted a self solvency, that over-weighed the qualifications of the others and therefore the 4th respondent was selected and appointed. The 1st respondent also adopts the same contentions. The 4th respondent has also filed a counter affidavit, wherein he would seriously challenge the solvency certificate produced by the petitioner. According to him, in the solvency certificate the value of the property of the petitioner and his wife has been disproportionately over- valued. He submits that it is not even sufficient for holding W.P.(C)No.17655 of 2006 -4- the petitioner qualified insofar as the minimum solvency required was for Rs.6 lakhs, whereas the property offered for solvency was worth less than Rs.6 lakhs. According to the learned counsel for the 4th respondent, there is no reason for this Court to interfere with the concurrent findings of three authorities especially when the petitioner does not allege any malafides whatsoever. According to him, the question as to whether self solvency over-weighs joint solvency was a relevant consideration for selecting the most suitable applicant, which only has been done by the lower authorities. 3. I have considered the rival contentions in detail. 4. I find that every time an ARD or AWD is appointed, one of the persons who have not been selected would come to this Court challenging such appointment. I am of opinion that this is because of want of clearcut guidelines as to how the comparative merit of the applicants have to be evaluated. The Rules and guidelines prescribe only disqualifications. The application requires information regarding the educational qualifications, experience, W.P.(C)No.17655 of 2006 -5- suitability of building, solvency etc. etc. But except in the case of co-operative societies, no other guidelines are prescribed for preference of one over the other. Of course, disqualifications are prescribed. But there is no clearcut guidelines as to how the most suitable from among the qualified applicants have to be selected. When the candidates are expected to give details regarding educational qualifications, solvency, experience, suitability of buildings etc., it must be presumed that all those factors are relevant for the purpose of deciding the most suitable. Here, the only reason stated by the authorities for selecting the 4th respondent is that he had provided self solvency which is superior to the joint solvency of the petitioner. The solvency offered by the petitioner is of a property owned by himself and his wife. As far as the Government is concerned, the purpose of providing solvency is to ensure that if ultimately any amount has to be recovered from the person selected, there should be sufficient security for the same. If that purpose is kept in mind, then self solvency and joint solvency loses all relevance, especially when the fight W.P.(C)No.17655 of 2006 -6- is between self solvency and joint solvency by husband and wife. Apart from that, when educational qualifications are to be stated by the applicants, there must be some relevance for the same. What is the relevance, no guidelines states. The application insists on stating experience. Therefore, necessarily experience is a relevant criterion. If a person is having an experience in an ARD and another has experience in AWD, then for the purpose of selection of an AWD, in normal parlance, experience in AWD would be superior to experience in an ARD. So also when nearness of the storage facilities is one of the information to be furnished, the nearness of that building to the centre is also relevant for easy transportation of food grains. When the storage capacity is to be furnished in the application, then the storage capacity also has some relevance. In the writ petition as well as in the appeal before the Commissioner of Civil supplies and the revision before the Government, the petitioner has given a comparative table of the qualifications of the petitioner and the 4th respondent which reads thus: W.P.(C)No.17655 of 2006 -7- Particulars Petitioner 4th Respondent 1 Educational Qualification S.S.L.C. Passed Upto S.S.L.C. 2 Solvency Rs.16,00,000/- Rs.15,75,000/- 3 Experience Experience of sale of food grains in wholesale Depot (Countersigned Certificate) Experience as ARD Salesman only 4 Suitability of Building Suitable & strong with storage capacity of over 1.50 sq. ft. (3 choices furnished) Not suitable and specious only 1200 sq. ft. capacity - building not in the proper centre. 5 Nearness to Centre Very near Not near - 5 Km. away from the centre 6 Age 45 (unemployed youth) 57 (Not an unemployed youth) The same has not been specifically controverted in the pleadings of the respondent. Of course, now the counsel for the 4th respondent submits that it is a matter to be verified. 5. Admittedly the the lower authorities did not consider any of the other criteria while selecting the 4th respondent in preference to the petitioner, except the fact that the 4th respondent has self solvency and therefore he has been preferred. I am of opinion that, in view of my above findings, the evaluation should have been done on all the relevant criteria and not solvency alone. The lower authorities have not taken pains to do that. They have W.P.(C)No.17655 of 2006 -8- confined themselves to only one criterion the valuation of which itself is very much in doubt. Therefore, I am of opinion that the very fact that the authorities confined themselves to that criterion alone would lend support to the contention of the petitioner that the consideration and decision was arbitrary. In fact it is arbitrary for the other reason that other relevant considerations have not been adverted to by the lower authorities. Therefore, I am of opinion that the District Collector should reconsider the comparative suitability of petitioner and the 4th respondent in the light of the observations hereinbefore made. The contention of the 4th respondent regarding the validity of the solvency certificate of the petitioner has been repelled in the connected writ petition which was disposed of upholding the validity of the same in the absence of any material to substantiate the contentions of the 4th respondent. Therefore, the impugned orders are quashed. The 3rd respondent is directed to re-evaluate the comparative merits of the petitioner and the 4th respondent in the light of W.P.(C)No.17655 of 2006 -9- the observations hereinbefore made and pass fresh orders after affording an opportunity of being heard to the petitioner and the 4th respondent, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment. Till such time, the 4th respondent shall be allowed to continue to run the AWD. Of course, the correctness of the statements in the comparative table furnished by the petitioner is also a matter to be considered by the District Collector, after hearing both sides. The writ petition is disposed of as above. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/