IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 31ST JULY 2009 / 9TH SRAVANA 1931 WP(C).No. 13012 of 2007(Y) -------------------------- PETITIONER(S): --------------- K.S.MURALEEDHARAN, AGED 43 YEARS, S/O V.KUTTYKRISHNAN NAIR, PAROTTIL HOUSE, PALLIKKURUPPU P.O., THACHAMPARA VIA., PALAKKAD DISTRICT. BY ADV. MR.P.GOPINATH MENON RESPONDENTS: ---------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURARM. 2. THE DIRECTOR OF HEALTH SERVICE, THIRUVANANTHAPURAM. 3. BABY.S., PHARMACIST, I.T.I.CHACKAI, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SMT. SMITHA SUKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/07/2009, ALONG WITH WPC NOS. 29357 OF 2007 & 36336 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 13012 of 2007(Y) APPENDIX PETITIONER'S EXHIBITS: Ext.P1 - TRUE COPY OF THE CIRCULAR/NOTIFICATION NO. 19755/H1/2004/H&FWD DATED 22.9.2004. Ext.P2 - TRUE COPY OF THE DEGREE CERTIFICATES ISSUED TO THE PETITIONER BY THE CALICUT UNIVERSITY. Ext.P3 - TRUE COPY OF THE BIO-DATA OF THE PETITIONER DULY ATTESTED BY THE D.M.O. Ext.P4 - TRUE COPY OF G.O(Ms) NO. 266/89/H&FWD DATED 15.12.1989. Ext.P5 - TRUE COPY OF THE LETTER DATED 3.1.2007 FROM THE FIRST RESPONDENT TO THE SECOND RESPONDENT. Ext.P6 - TRUE COPY OF THE FILE NOTINGS IN FILE NO. 19755/H1/04/H&FWD AT SERIAL NOS. 116 TO 136. Ext.P7 - TRUE COPY OF THE LETTERS DATED 3.2.2007, 20,2.2007, 17.3.2007 AND 21.4.2007 FROM THE GOVERNMENT TO THE DIRECTOR OF HEALTH SERVICES. // TRUE COPY // PA TO JUDGE rhs S. SIRI JAGAN, J ............................................... W.P(C) Nos. 13012, 29357 & 36336 of 2007 ................................................. Dated this the 31th day of July, 2009 J U D G M E N T These three writ petitions raise the same issues, although admittedly a decision in W.P(C) Nos. 29357 of 2007 and 36336 of 2007 in favour of the petitioners would obviate any necessity of considering W.P(C) No. 13012 of 2007 on merits. W.P(C) Nos. 29357 of 2007 and 36336 of 2007 are filed by two candidates who have been selected for appointment to two vacancies in the post of Management Instructor, in the Family and Health Welfare Department of the Government of Kerala. The qualifications and method of appointment for the said post are prescribed by Ext.P1 Government Order dated 15.12.1989. The same are: “ Qualification: i) Masters Degree in Public Administration or Business Administration from a recognised University. ii) Two years training experience in a recognised Institution. iii) Two years experience in supervisory in a reputed establishment preference will be given to those possessing a degree or diploma in education from a recognised university/ Institute or training experience in Health and Family Welfare Fields under W.P(C) Nos. 13012, 29357 & 36336 of 2007 -2- the Health Services Department. Method of Appointment : i) By transfer from among qualified hands in the health services Department. in their absence ii) By direct recruitment Age limit for direct recruitment: Between 19 to 35 years with usual relaxation as per rules.” 2. Applications from among qualified hands in the Health Service Department were invited by the 1st respondent, by issuing Ext.P1 (in W.P(C) No.36336/07) circular dated 22.9.2004. Seven persons applied. An interview was conducted by a selection committee constituted for the purpose. The selection committee drew up a rank list in which the petitioners in the writ petitions were ranked 1 and 2. The rank list was placed before the Government. The Government approved the rank list and decided to appoint the petitioners to the two posts. The Government even decided the places of posting as well. But, in the meanwhile, the 3rd respondent filed O.P. No. 683 of 2006 challenging the selection. While that writ petition was pending she filed a representation dated 17.6.2006 before the Government. In view of that representation further proceedings W.P(C) Nos. 13012, 29357 & 36336 of 2007 -3- in the matter of appointment from the rank list was kept in abeyance. Once the minister decided to keep the matter in abeyance till the High Court decides the W.P(C) No. 683 of 2006. But later the Minister changed her mind and came to the conclusion that the selection was not properly conducted. She also proposed amendment of the recruitment rules on the ground that the existing rules require reconsideration. It is under the above circumstances, the petitioners have filed these writ petitions seeking the following reliefs: “ W.P(C) No. 29357 of 2007 i) Issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to complete the process of selection pursuant to Ext.P2 by issuing appointment orders appointing the petition as Management Instructor in one of the existing vacancies as proposed in Ext.P6. ii) declare that the amendment if any proposed by the Government will have no bearing on the selection already completed pursuant to Ext.P2.” W.P(C) No. 36336 of 2007 i) to issue a writ of mandamus or any other appropriate writ or order directing respondents 1 and 2 to implement the recommendation made by the Selection Committee and the decision taken by the Government for the appointment of Management Instructors pursuant to Ext.P1 Circular and to appoint the petitioner to the post of Management Instructor at once; ii) to issue an appropriate writ or order declaring that the proposed amendment to the qualifications and W.P(C) Nos. 13012, 29357 & 36336 of 2007 -4- method of appointment prescribed in Ext.P3 G.O. for the post of Management Instructor in Health & Family Welfare Centre cannot adversely affect the selection already made by the Selection Committee and approved by the Government for appointment to that post pursuant to Ext.P1 circular;” 3. The contention of the petitioners is that they possess all the required qualifications and experience as per the recruitment rules even today. The selection committee was satisfied about the same. On the basis of the performance in the interview, the petitioners were ranked 1 and 2 in the rank list prepared on the basis of merit. Thereafter the matter was examined twice at the Minister's level. Both times, no body found any fault with the interview or the selection. On 17.6.2006, a representation was received from the 3rd respondent. From thereon, the opinion of the Minister changed. Earlier the Minister approved the rank list. Later she directed to wait till the High Court gives its decision in W.P(C) No. 683/2006 filed by the 3rd respondent. Then came the representation from the 3rd respondent. Again the matter was examined up to the Secretary level and again no fault whatsoever was found in the selection. It is thereafter on 30.10.2006, the Minister suddenly found the selection procedure not transparent. She also found W.P(C) Nos. 13012, 29357 & 36336 of 2007 -5- the qualifications insufficient and directed to put up proposal for amending the qualifications. Petitioners also point out that thereafter the 3rd respondent suddenly got the W.P(C) No. 683 of 2006 dismissed as infructuous citing subsequent developments including stand taken by the Government regarding proposal for amendment of the Rules in question. The petitioner therefore would contend that obviously the decision was only to help the 3rd respondent to stall the appointment of the petitioners. They also point out that even after 3 years no steps whatsoever have been taken to amend the Rules and the posts are kept vacant. 4. A counter affidavit has been filed by the 1st respondent. The contention taken is that the selection was not transparent. The duties and functions of the post required persons of higher qualifications and therefore it was decided to amend the recruitment rules. 5. The learned Government Pleader vehemently opposes the contentions of the petitioner. She submitted that there is nothing wrong in the course adopted by the Minister. According to her, the selection committee did not lay down any procedure for the interview and marks were not awarded for each W.P(C) Nos. 13012, 29357 & 36336 of 2007 -6- candidate to know their relative merits. Because of the importance of the post and the duties and functions attached to the same, it was felt that higher qualifications are necessary for the post. It is under the said circumstances that it was decided to put the selection on hold. She vehemently took serious exception to the allegation of improper motive on the part of the Minister. She would argue that, on the other hand, the notes would clearly reveal that the Minister was doing the same in the best interests of the Government. She points out that as laid down by the Supreme Court in Director, Sree Chithira Thirunal Institute for Medical Science and Technology and another v. M.Pushkaran ILR 2008(1) Kerala Series 183, a candidate included in a ranked list has no right to insist that he should be appointed. According to her, if the Minister wanted to favour the 3rd respondent, she would not have stated that the post calls for higher qualifications. She also argues that it is not because of the representation of the 3rd respondent that the Minister took the impugned decision. The Government Pleader therefore contends that there is no merit in the writ petitions and that they are liable to be dismissed. W.P(C) Nos. 13012, 29357 & 36336 of 2007 -7- 6. I have considered the rival contentions in detail. 7. The petitioners have produced the extracts from the note file of the Government relating to the subject, which they have obtained by resort to proceedings under the Right to Information Act. It makes interesting reading. I shall reproduce the same, produced by the petitioners as as Ext.P5 in W.P(C) No. 29357/07 and Ext.P9 in W.P(C) No. 36336/07. “116. Notes at prepages. In this connection, it may be noted that the selection has been made by a committee duly constituted by Govt. None of the petitioners have challenged this selection process. The dispute is with regard to the qualification possessed by the candidates selected by the Committee. The Committee has selected them, as they possessed the required qualification as per the qln. prescribed by Govt. The two selected candidates are also working in supervisory posts. Further the P&ARD have no objection to make appointment from the said list, and they haven't pointed out that the qualifications possessed by the candidates are inadequate. As per the judgment of the High Court in O.P. No. 31782/99 H also, the status of the University is important and not the individual recognition of degrees. Hence, it appears that there is no objection to make appointment to the post under consideration from the list prepared by the Selection Committee, subject to decision of W.P(C) No. 683/06 filed by Smt. Baby. 117. May be circulated to Minister (H) for orders. sd/- 25.5.2006 V. Susamma Additional Secretary to Govt. Health & Family Welfare Dept. Govt. Secretariat, TVPM Ph. 2327364/3436 W.P(C) Nos. 13012, 29357 & 36336 of 2007 -8- 118. Notes above for perusal. In view of the facts above suggestion at 'x' may be approved. sd/- 25.5.2006 sd/- 14.6.2006 P.K.SREEMATHI TEACHER Minister of Health and Social Welfare 119. Orders on para 118 pre-page may be perused. There are at present two vacancies of management Instructors in H.S. Department. One in Health & Family Welfare Training Centre, Kozhikode and the other at Health & Family Welfare Training Centre, Thiruvananthapuram. 120. The Selection Committee has selected two candidates for appointment to the said post. (1) Smt. P.L.Suchithra, UDC (Hr. Grade) (2) Sri. K.S.Muraleedharan (Hr. Gr.II) and the M(H) has approved the selection. 121. The stations to which they may be posted by transfer appointment may kindly be ordered. 122. May be circulated to M(H) for orders on para 121 ante. sd/- 20/6/06 K.LALITHAMBIKA Under Secretary to Govt. Health & Family Welfare Dept. Govt. Secretariat. 123. The vacancies are at Health & Family Training Centres at Kozhikode & Tvpm. If approved, Smt. Suchithra may be posted at F.W.Trg.Centre, Tvpm and Shri. K.S.Muraleedharan may be posted at F.W.Trg.Centre, Kozhikode as proposed in para 74 Nfs subject to the decision in W.PNo. 683 of 2006 filed by Smt. Baby. W.P(C) Nos. 13012, 29357 & 36336 of 2007 -9- sd/- 20.6.2006. (seal illegible) 124. Para 123 above may be considered. sd/- 26.6.06 VISHWAS MEHTA Secretary Health & Family Welfare Dept. Govt. of Kerala Tvpm Phone 2327865 125. The matter has been considered further in the light of the representation dated 17.6.2006 since received from Smt.S.Baby who is working as Pharmacist grade I in the Health Services Department. The decision of the Hon'ble High Court in W.P(C) No. 683/06 may be awaited for taking further action in this file. In the meanwhile the following points may be clarified: (i) The procedure adopted for selection, including the marklist obtained by all the candidates who attended the interview. (ii) Are all the candidates called for inverview working by supervisory posts if not how they were asked to attend the interview? (iii) Has Smt. P.C. Suchithra got a basic degree from a recognised University? If not, have we considered whether a post Graduate Degree without a basic degree can be accepted? sd/- 14.7.2006 P.K.SREEMATHI TEACHER Minister for Health & Social Welfare. 126. Vide orders of M(H) on para 125 pre-page file submitted for clarification on points mentioned therein. 127. In the light of the orders of M(H) at para 125 c.f., file is submitted for orders/ instructions on points (i) to W.P(C) Nos. 13012, 29357 & 36336 of 2007 -10- (iii) pre page. sd/- 20.7.2006. 126. Orders on Para 125 NF. In response to the circular issued by Govt. inviting applications for selection to two post of Management Instructor seven applications were received from departmental candidates working in the Health Services Department and as per G.O(Rt) No. 3505/2005/H&FWD dated 6.12.2005 a committee was constituted with the following members to select eligible applicants through an interview. 1. Dr. Rajan Khobragade, Additional Secretary, H&FWD 2. Dr. T.K. Kuttamani, Director of Health Service. 3. Smt. V.Susamma, Additional Secretary, H&FWD 127. All the applicants irrespective of eligibility were called for the interview and verification of documents on 20.12.2005 at the Directorate of Health Services. 128. Qualification fixed for the post as per G.O(Ms) No. 266/89/H&FWD dated 15.12.89 are: 1. Masters Degree in Public administration or Business Administration from a recognized University. 2. Two years Teaching experience in a recognized institution. OR 3. Two years' supervisory experience in a reputed establishment. Preference will be given to those possessing a degree or diploma in Education from a recognized University/Institute or training experience in Health & Family Welfare fields under the Health Services Department. 129. The details of qualification and experience possessed by the applicants may be seen at flag (X). On security it was found that all of them have the required qualification. But only two candidates viz.,K.S. Muraleedharan, Health Inspector and Smt.P.L.Suchitra, UDC were having the required experience. W.P(C) Nos. 13012, 29357 & 36336 of 2007 -11- 130. Interview were conducted and the performance was assessed based on the interview performance. The performance of Smt. Suchitra and Shri. K.S. Muraleedharan was upto the mark. Out of these two as Smt. Suchithra possessed preferential qualification, she was ranked 1st and Shri. K.S. Muraleedharan was ranked as 2nd. 131. As circular was issued, the applicants applied for the posts and they were sent notice for interview based on the qualification criteria. The issue regarding basic degree of any of the candidate was not looked into. It was presumed that the candidate having post graduation degree must be having basic degree. 132. The interview Board unanimously felt that the two candidates are having capacity and knowledge required for the posts and accordingly they were ranked and recommended. 133. Statement of Facts in the case has not been forwarded to A.G. Government stand to be taken in the matter may also be kindly ordered. Sd/- V. Susamma (not legible) Sd/- 21.8.2006 DR. RAJAN KHOBRAGASE Additional Secretary Health & Family Welfare Department 134. The post of Management instructor is a gazetted post carrying a scale of pay of Rs. 7450-11475 (Pre revised scale) and the appointing authority of the post is Government. All the seven candidates applied for the post were interviewed and two were selected. It is clear that neither any clear-cut procedure was fixed for the interview nor the interview committee themselves adopted any procedure which is convincing or can be disclosed. The committee is seen to have selected two persons taking into account of the relative merit of the seven persons interviewed. If the details are sought for by any of the W.P(C) Nos. 13012, 29357 & 36336 of 2007 -12- applicants based on the provisions of Right to Information Act we won't have any mark lists or score sheet or respective position in respect of all applicants to be furnished to them. Due to this, the selection procedure adopted cannot be said to be entirely fair and selection based on this procedure cannot be approved. 135. The existing qualification and method of appointment fixed for this post in 1989 require reconsideration. The Management Instructor should be competent to impart training in modern management methods to the supervisory and other senior level staff also. The supervisory experience prescribed now is vague. Since the post is a second level Gazetted post, the experience should be of appropriate level. We have to examine all aspects and prescribe qualification which is in tune with the changed circumstances and requirements and also suggest a fair selection process. 136. Put up proposal accordingly and also take action for informing the position to the High Court in the W.P(C).” sd/- 30.10.2006 P.K. SREEMATHI TEACHER Minister for Health and Social Welfare 8. As is clear from the same, till 30.10.2006 when the Minister made the last note, nobody found anything wrong with either the selection procedure, or the selection or the qualifications or experience of the candidates selected or the necessity to amend the qualifications. Everybody was satisfied that the selection was in order. The Minister struck a different note only on 30.10.2006 and decided to put the selection in cold storage directing to put up proposals for amendment of the W.P(C) Nos. 13012, 29357 & 36336 of 2007 -13- rules. The Minister found that the selection procedure is not transparent because there is no mark list or procedure fixed for the interview. The note file does not even indicate that the 3rd respondent has a case that the petitioners have been unduly favoured. The 3rd respondent in W.P(C) No. 36336/2007, on whose representation the Minister had stalled the appointment of the petitioners, has not even cared to file a counter affidavit. The possible inference from the circumstances is that it is after the representation from the 3rd respondent that the opinion of the Minister changed. The very same Minister who earlier once approved the appointment of the petitioner and later decided to wait till the High Court gives its decision in W.P(C) No. 683 of 2006, did not even wait for the decision of the High Court to decide not to make appointment as per the rank list. I am of opinion that evidently something happened after the Government received the representation from the 3rd respondent. It is curious to note that even before the Government took a final decision in the matter, the 3rd respondent decided to abandon the Writ Petition itself and got it dismissed as infructuous. Except a vague statement in the counter affidavit, respondents 1 and 2 W.P(C) Nos. 13012, 29357 & 36336 of 2007 -14- have not been able to satisfy me that the petitioners do not possess the required qualifications and experience. The documents produced by the petitioners would stand testimony for their possession of the required qualifications. The note file shows that everybody up to the Secretary level of the Government was fully satisfied that the selection was perfectly in order. Except the Minister, nobody had any doubts. In fact, initially the Minister also did not have any doubts as is clear from the note file since on 14.6.2006 she also originally endorsed the proposal for appointment of the petitioners, subject to the decision of W.P(C) No. 683 of 2006 filed by Smt. Baby. Thereafter the places to which the petitioners were to be posted also were fixed. Therefore it is very evident that it is after the receipt of the representation dated 17.6.2006 from the 3rd respondent that the Minister had doubts about the correctness of the selection itself. Even thereafter, the Secretary did not have any doubt. As seen from paragraphs 126 to 132 of the note file, it is clear that even after the Minister wanted clarifications, two additional secretaries did not find any infirmity in the selection. That was on 21.8.2006. It is thereafter on 30.10.2006 that the W.P(C) Nos. 13012, 29357 & 36336 of 2007 -15- Minister decided to put the appointment on hold, on the grounds that selection was not transparent and the qualifications required to be changed. The 3rd respondent got the writ petition dismissed as infructuous on 11.9.2007, as is clear from Ext.P10 copy of the judgment produced in W.P(C) No. 36366 of 2007. 9. Of course, the learned Government Pleader would take the contention that inclusion in the rank list does not give any right to a candidate to insist that he should be appointed. She relies on the decision of the Supreme Court in Director, Sree Chithira Thirunal Institute for Medical Science and Technology and another v. M.Pushkaran ILR 2008(1) Kerala Series 183, in support of that condition. It is true that nobody gets a right for appointment simply because his name is included in the rank list. But in the very decision quoted by the Government Pleader herself, the Supreme Court has stated that while a candidate included in the rank list has no right to insist that he or she should be appointed, at the same time the appointing authority cannot ignore the rank list or decline to make the appointment, without sufficient reason. Here, the qualifications were prescribed in 1989, the vacancies arose in W.P(C) Nos. 13012, 29357 & 36336 of 2007 -16- 2004, applications were invited to the post with those qualifications, and the qualifications were received. No body entertained any doubt regarding the sufficiency of those qualifications. Selection Committee was constituted. Candidates were interviewed and a select list was prepared. Everybody, up to the Secretary level and initially the Minister found nothing wrong with the selection. They decided to appoint the petitioners. They even fixed the stations to which the petitioners should be posted. Thereafter without sufficient reasons they have decided not to approve the select list. It is strange that for amending the qualifications the respondents 1 and 2 were prepared to leave the posts vacant for five years even though according to them these posts are very important. I am of opinion that if the post is important it is better to fill up the vacancies with the candidates possessing the qualifications as per the present recruitment rules rather than keeping the posts vacant. Therefore going by the judgment of the Supreme Court itself, the action of the respondents 1 and 2 is clearly arbitrary. The Government Pleader has not been able to satisfy me that the reasons mentioned by the Minister is sufficient to cancel the W.P(C) Nos. 13012, 29357 & 36336 of 2007 -17- selection. The contention that the selection is bad for not fixing a procedure for selection and not putting marks for each candidate does not appear to be convincing. There were only seven candidates. They were interviewed. The selection committee has prepared a rank list in the order of merit. No circumstances were pointed out for suspecting the transparency of the selection procedure. Even the 3rd respondent who had challenged the selection has not filed any counter affidavit contending that the selection procedure is not transparent and undue favours have been granted to the petitioners. Although the Government wanted to revise the qualifications, even after 3 years no steps have been taken in this regard. Nothing is mentioned as to what were the difficulties faced by the Government in the functioning of the previous incumbents having the