IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 20TH JULY 2009 / 29TH ASHADHA 1931 WA.No. 355 of 2007() -------------------- AGAINST THE JUDGEMENT IN WPC.25078/2006 Dated 22/01/2007 .................... APPELLANT(S): RESPONDENTS: ----------------- 1. COCHIN PORT TRUST, REPRESENTED BY ITS SECRETARY, KOCHI-682009. 2. STAFF SELECTION COMMITTEE FOR SELECTION OF CLASS I POSTS, COCHIN PORT TRUST, REPRESENTED BY ITS CHAIRMAN, PORT TRUST, KOCHI-682009. 3. DEPARTMENTAL PROMOTION COMMITTEE FOR CLASS I POSTS, COCHIN PORT TRUST, REPRESENTED BY ITS CHAIRMAN, PORT TRUST, KOCHI-682009. 4. SECRETARY, COCHIN PORT TRUST, COCHIN-9. BY ADV. SRI.A.M.SHAFFIQUE, SENIOR ADVOCATE SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR RESPONDENT(S): PETITIONER: ------------------- 1. S. MOHANDAS, WELFARE OFFICER, COCHIN PORT TRUST, WILLINGDON ISLAND, COCHIN. ADDL. 2. P.S.MOHAMMED NAZEER, SHED WRITER TRAFFIC DEPARTMENT, COCHIN PORT TRUST, COCHIN – 9. (ADDL.R2 IS IMPLEADED AS PER ORDER DT.12.6.2009 IN I.A.NO.192/2009) BY ADV. M/S. SRI.N.SUKUMARAN FOR R1 SRI.S.SHYAM SRI.N.K.KARNIS BY ADV.SRI.K.JAJU BABU FOR ADDL.R2 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. ------------------------------- W.A.No. 355 of 2007 ------------------------------- Dated this the 20th July, 2009 J U D G M E N T Raman, J. The first appellant is the first respondent in W.P.(C) No.25078 of 2006, which is the Cochin Port Trust. The writ petitioner, first respondent herein, who was working as Welfare Officer in the Cochin Port Trust, aspiring for promotion to the post of Industrial Relations Officers, which is the next higher post, applied for the same. There was no other competing candidate. He was called for the interview by the Departmental Promotion Committee, but virtually he was not selected, which was the challenge in the writ petition. In the hierarchy of the posts in the Welfare Department, the Welfare Inspector's Post is perhaps the initial post available and the next promotion post is that of Welfare Officer and then the Industrial Relations Officer. The WA.No.355 of 2007 2 method of appointment of Industrial Relations Officer is either by way of promotion by selection or in the absence of suitable candidates by direct recruitment. The qualification prescribed for the post of Industrial Relations Officer is as follows:- “Master's Degree in social work/Labour welfare/Personnel Management/Industrial Relations or Degree with Diploma in any one of the above subjects or Degree in Law with Labour laws as an elective subject. Exp: 5 years in a managerial capacity dealing with Labour. Desirable : Knowledge of Malayalam.” Ext.P1 is the copy of the extract of recruitment rules relevant for our purpose. The method of appointment prescribed in column 11 of Ext.P1 is promotion failing which direct recruitment. In column 12, it is also stated that the promotion has to be made from Welfare Officer with three years regular service in the grade. As a matter of fact, the petitioner's work as Welfare Officer was quite satisfactory. But, when the Departmental Promotion WA.No.355 of 2007 3 Committee met, he was interviewed and found that he was not suitable to be selected for the post of Industrial Relations Officer. 2. The petitioner challenged the decision of the selection committee on several grounds. He contended that this was for the first time that an interview was held for the post of Industrial Relations Officer and that unless the recruitment rules so provides for conducting the interview, normally no such interview shall be insisted upon. He also relied on Government of India's Circular, Ext.P3. According to him, in his case alone, interview was held, which is indicative of the malafide nature of the selection. The learned Single Judge found that so long as the post is a selection post and in the absence of anything to show that there is a better method of selection and the Departmental Promotion Committee itself having the power to regulate their own procedures, it cannot be said to be beyond its powers in the matter of conduct of an interview, especially taking note of the fact that it is a selection post. Therefore, the WA.No.355 of 2007 4 learned Single Judge accepted the stand of the Cochin Port Trust that the Departmental Promotion Committee shall not be deprived of its basic authority to take such steps as are necessary to assess the suitability of the candidates or the comparative merit of the candidates, unless such a step or procedure is expressly prohibited by the law that governs the selection. Turning to the next contention as to whether the interview held by the Departmental Promotion Committee, holding that the petitioner was unsuitable, suffers from any legal infirmity, the learned Single Judge proceeded to refer to the particulars furnished in the form of a statement which showed the C.R. Gradings of the petitioner for the past several years. In 2003- 2004, he was graded “excellent”, in 2004-2005 and in 2005- 2006, he was graded “very good”. Thus, his performance as a Welfare Officer was not merely average, but beyond average. He also possessed the requisite qualification, viz., Basic Degree and LL.B. with Labour Law as the elective subject. In such circumstances, the learned judge further probed into the matter WA.No.355 of 2007 5 to find whether there were any convincing reasons for supporting the finding of the Departmental Promotion Committee that he was not suitable, and in that regard, it was held that unless there exists materials to hold that he does not deserve to be selected for the post, it is rather difficult to accept the finding that he is not suitable. It is based on the interview alone that he was denied promotion to the next higher post. According to the learned Single Judge, though the interview was held on 5.8.2006 and 8.8.2006, as evidenced by Exts.R1(a) and R1(b) produced in the case, there was nothing to show what transpired at the time of interview and the manner in which the Departmental Promotion Committee assessed the suitability of the candidate by means of the interview. Files were perused which did not show any indication as to what transpired at the time of interview. It does not show the modus employed by the members of the Departmental Promotion Committee. It was not known from the files as to whether any questions were put to interview the candidate, whether he answered all, what WA.No.355 of 2007 6 answers he had given, and whether any other technic was employed to assess his ability. Therefore, in such circumstances, the learned Single Judge found that the Departmental Promotion Committee has only made a subjective satisfaction and did not interview the candidate and the conclusion was made in an objective manner. The learned Single Judge even went to hold that the interview was only a farce. In those circumstances, the interview was held to be infirm and arbitrary and a declaration was made to that effect. The learned Single Judge also directed the respondents to forthwith promote the petitioner as Industrial Relations Officer. 3. Sri.Jayasankar A.K., the learned counsel appearing for the appellant, Cochin Port Trust, challenges the judgment on many grounds. He referred to Ext.R1(a) proceedings of the Departmental Promotion Committee and contended that the committee has perused the service particulars and CR dossiers of the candidate available in the feeder category. WA.No.355 of 2007 7 Only the petitioner, Sri.S.Mohandas, has fulfilled the requirement of three years experience as Welfare Officer, and hence he fulfills the minimum required qualifications and experience in the feeder category. Therefore, the Departmental Promotion Committee decided to interview him, in order to assess the suitability for Industrial Relations Officer. Thereafter, on the next day, a Board meeting was fixed and the petitioner was interviewed and proceedings were marked as Ext.R1(b). In that proceedings, it is observed that there was only one post of Industrial Relations Officer and the Port Trust has to discharge very vital nature of duties including dealing with all trade union matters, maintenance of cordial industrial relations, dealing with employees grievances, representing Port Management before conciliation officers, holding bilateral discussions with unions on various charter of demands of union, overall supervision of welfare, etc. and that the Departmental Promotion Committee members interviewed the candidate with a view to assess his abilities, with reference to the nature of the duties as above, and the qualities to be WA.No.355 of 2007 8 possessed by a candidate. After perusal of the service records, CR dossiers and personal interview, the committee concluded that the petitioner was not suitable for promotion to the post of Industrial Relations Officer. Therefore, the counsel contends that the interview was not a mere farce, but the candidate was assessed with reference to the qualities and attributes to be possessed, having due regard to the post to which selection is made, it is only thereafter that the committee found him to be unsuitable, and hence in such a situation, the decision of the expert could not have been interfered with by this Court. He also contended that the Departmental Promotion Committee is not required to give any reason and the mere fact that the Departmental Promotion Committee did not express in so many words, the reasons for not selecting the petitioner, will not vitiate the interview also. According to him, high officials of the Port Trust are included in the Departmental Promotion Committee and in the absence of any other candidate competing for selection, there cannot even be a slightest allegation of WA.No.355 of 2007 9 arbitrariness against the petitioner, and there is nothing for any comparative assessment of one candidate over the other. The only solution for the Cochin Port Trust, in such circumstances, would be go for direct recruitment. Therefore, according to him, selection conducted was in an objective manner. True that it cannot be discernible from the files as to what were the questions and what were the answers. But in the absence of anything to show that there was a mala fide in the matter of selection, the decision rendered by such a high body, that too, after perusing the service records, CR dossiers etc. along with his performance in the interview, would leave the matter there. 4. The learned counsel appearing for the appellant placed reliance on the decision of the Supreme Court in Major General I.P.S Dewan v. Union of India and Others (1995 (3) SCC 383); State of Rajasthan v. Sriram Verma and Another (1996 (6) SCC 493); Nutan Arvind (Smt) V. Union of India and another (1996 (2) SCC 488) and Ravinder v. WA.No.355 of 2007 10 State of Haryana (1995 Supp (4) SCC 447). He contended that even if the proceedings of the Departmental Promotion Committee are infirm, this Court could not have directed the petitioner to be promoted. 5. Per contra, the learned senior counsel appearing for the first respondent-petitioner, supporting the judgment of the learned Single Judge and placing reliance on the decision reported in Badrinath v. Government of Tamil Nadu and others (2000 (8) SCC 395), contended that in appropriate cases like this, this Court is not powerless and it is only appropriate that the direction to promote the candidate was rightly given by the learned Single Judge. 6. We have heard the parties at length. The admitted facts are that the first respondent-writ petitioner is fully qualified for the post of Industrial Relations Officer, having possessed all the requisite experience for the post. He had excellent service records as a Welfare Officer. His immediate WA.No.355 of 2007 11 superiors who had assessed him and graded him periodically has rated him excellent and very good in the past three years of his service. The Departmental Promotion Committee, no doubt, consists of very high officials and there is no mala fides on the part of the Departmental Promotion Committee in not selecting the petitioner. But it is seen in Ext.R1(b) that the three factors based on which the Departmental Promotion Committee came to the conclusion that he was not suitable for the post are his service records, his CR dossiers and interview. When admittedly the earlier two, his service records and CR dossiers have nothing to indicate any thing against him, and as there are positive grades given in his favour, those materials could not have gone against him. The only other factor which remain for holding him as not suitable can only be the interview. The various qualities and attributes to be possessed for the post of Industrial Relations Officer, no doubt, has been stated by the Departmental Promotion Committee in its proceedings. But are they different from the post of Welfare Officer? Both posts are WA.No.355 of 2007 12 in the same department and the Welfare Officer's post is a feeder category for promotion. There is only one channel of promotion and further the posts of Welfare Inspector, Welfare Officer and Industrial Relations Officer are all in the same channel. In such circumstances, while assessing the qualities or attributes to be possessed in the given said of facts, one should satisfy that based on records produced the qualities to be possessed are objectively assessed and they are different from the post he held. In this case, the marks awarded to him by the Departmental Promotion Committee is not known. If, as a matter of fact, he had participated along with other candidates, necessarily, a comparative merit will have to be assessed, and it could be done only by awarding marks to different candidates who had appeared for the interview. If the petitioner had possessed marks below the same, probably he should have been found to be unsuitable. Unsuitability itself is a negative factor. Therefore, when there is only one candidate and to say that he is unsuitable, something more should have been available on the file to sustain WA.No.355 of 2007 13 the conclusion. The view taken by the learned Judge in such circumstances does not call for any interference. Thus after setting aside the decision made by the Cochin Port Trust, the learned Single Judge has directed the petitioner to be promoted. Normally, this could not have been done. Even assuming in a rare case it could have been done, it should be shown that this is a rare case. In all cases whereever the promotion is denied, it will be contended as a rare case. 7. In State Bank of India and others v. Mohd. Mynuddin (AIR 1987 SC 1889), it was held by the Apex Court that whenever promotion to a higher post is to be made on the basis of merit, no officer can claim promotion to the higher post as a matter of right by virtue of seniority alone with effect from the date on which his juniors are promoted. It is not sufficient that in his confidential reports it is recorded that his services are 'satisfactory'. An officer may be capable of discharging the duties of the post held by him satisfactorily but he may not be fit WA.No.355 of 2007 14 for higher post. Before any such promotion can be effected it is the duty of the management to consider the case of the officer concerned on the basis of the relevant materials. If promotion has been denied arbitrarily or without any reason, ordinarily the Court can issue a direction to the management to consider the case of the officer concerned for promotion, but it cannot issue a direction to promote the officer concerned to the higher post without giving an opportunity to the management to consider the question of promotion. But the Court is not by its very nature competent to appreciate the abilities, qualities or attributes necessary for the task, office or duty of every kind of post in the modern world and it would be hazardous for it to undertake the responsibility of assessing whether a person is fit for being promoted to a higher post which is to be filled up by selection. It is only when the process of selection is vitiated on the ground of bias, mala fides or any other similar vitiating circumstance, other considerations will arise. WA.No.355 of 2007 15 8. A Division Bench of this Court in Kerala Agricultural University and another v. V.K.Gopinathan Unnithan & another (1996 (1) KLJ 257) held that the Court cannot issue a writ of mandamus directing the appointment of a candidate who is included in the select list, following the decision of the Apex Court in State of Kerala v. A.Lakshmikutty & Others (AIR 1987 SC 331). 9. In this case, it cannot be said that there was any deliberate exclusion of the petitioner from being considered. Despite the fact that he was the only candidate available, the Departmental Promotion Committee, in its proceedings on the first day, is satisfied about the qualifications possessed by him and decided to interview him. Petitioner has no case of any personal malice against any of the Board members constituting the Departmental Promotion Committee. It is only because of absence of records to conclude the objective assessment made that this Court has interfered in the matter. If that be so, this WA.No.355 of 2007 16 Court ought to have left the matter to the appellant herein for interviewing the candidate among qualified hands and then to take a decision. The second part of the direction contained in the judgment is therefore set aside. In the result, the appeal is partly allowed. No costs. P.R.RAMAN, JUDGE P.BHAVADASAN , JUDGE. nj.