IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 26TH FEBRUARY 2009 / 7TH PHALGUNA 1930 WP(C).No. 38104 of 2008(S) -------------------------- PETITIONER(S): --------------- P.AZAD, S/O.B.KASMIKOYA, AGED.31 YEARS, AGRICULTURAL FIELDMAN, VILLAGE DWEEP PANCHAYATH, AGATHI ISLAND, UNION TERRITORY OF LAKSHADWEEPS, RESIDING AT PATTINIYODA HOUSE, AGATHI ISLAND, UNION TERRITORY OF LAKSHADWEEP. BY ADV. SRI.M.R.RAJENDRAN NAIR, SENIOR ADVOCATE RESPONDENT(S): --------------- 1. M.P.SUBAIDA, MELILAPURA HOUSE, KADAMATH ISLAND, UNION TERRITORY OF LAKSHADWEEP. 2. ABDUL AZEEZ.K.P., KOODATHAPPADA HOUSE, AGATHI P.O., UNION TERRITORY OF LAKSHADWEEP. 3. THE ADMINISTRATOR, UNION TERRITORY OF LAKSHADWEEP, KAVARATHI. 4. SECRETARY GENERAL ADMINISTRATION AND SERVICES, SECRETARIAT, KAVARATHI, UNION TERRITORY OF LAKSHADWEEP. 5. DIRECTOR OF AGRICULTURE, DIRECTORATE OF AGRICULTURE, UNION TERRITORY OF LAKSHADWEEP. R1 & 2 BY ADV. SHRI. ARUN RAJ ADV. SRI.S.RADHAKRISHNAN, SC, LAKSHADWEEP ADMN FOR R3, 4 &5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/02/2009, ALONG WITH WPC NO. 38082 OF 2008 & CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXTS: EXT.P1 TRUE COPY OF ORDER IN F NO.12/37/2005-SERVICES DT.5.9.05 ISSUED BY THE 4TH RESPONDENT. EXT.P2 TRUE COPY OF NOTIFICATION nO.2/12/2006-AGRI(1) DT.2.4.06. EXT.P3 TRUE COPY OF THE MARK LIST OF THE PETITIONER FOR SSLC. EXT.P4 TRUE COPY OF DEGREE CERTIFICATE ISSUED TO THE PETITIONER BY THE UNIVERSITY OF CALICUT. EXT.P5 TRUE COPY OF CERTIFICATE DT.21.8.03 ISSUED BY THE DIRECTOR OF GOVERNMENT EXAMINATIONS, TAMIL NADU. EXT.P6 TRUE COPY OF ORDER IN F NO.12/37/2005-SERTICES DT.28.4.07 ISSUED BY THE 4TH RESPONDENT. EXT.P7 TRUE COPY OF LIST OF CANDIDATES CONSIDERED BY THE SELECTION COMMITTEE ALONG WITH THE BIO DATA. EXT.P8 TRUE COPY OF THE TABULAR STATEMENT SHOWING ALLOCATION OF MARKS FOR EACH CANDIDATE. EXT.P9 TRUE COPY OF SELECT LIST DT.22.7.2007. EXT.P10 TRUE COPY OF REPRESENTATION DT.19.7.07 SUBMITTED BY THE 1ST RESPONDENT. EXT.11 TRUE COPY OF OFFICE MEMO IN F NO.2/12/2006-AGRI(1) DT.28.8.07 ISSUED BY THE 5TH RESPAONDENT ON BEHALF OF 3RD RESPONDENT. EXT.P12 TRUE COPY OF F NO.2/12/2006- AGRI (1) DT.20.8.07. EXT.P13 TRUE COPY OF ORIGINAL APPLICATION 544/2007 FILED BY THE FIRST RESPONDENT. EXT.P14 TRUE COPY OF O.A. 783/07 FILED BY THE SECOND RESPONDENT. EXT.15 TRUE COPY OF F NO.2/12/2006-AGRI DT.30.8.2007 ISSUED BY THE 5TH RESPONDENT. EXT.16 TRUE COPY OF REPLY STATEMENT IN O.A.544/07 FILED BY RESPONDENTS 3 TO 5. EXT.17 TRUE COPY OF REPLY STATEMENT IN O.A. 783/07 FILED DO. DO. EXT.P18 DO. DO. IN O.A. 544/07 BY PETITIONER AND OTHERS. EXT.19 DO. DO. IN O.A. 783/07 DO DO. EXT.20 TRUE COPY OF REJOINDER FILED BY THE FIRST RESPONDENT IN O.A 544/07. EXT.21 DO. DO. BY THE SECOND RESPONDENT IN O.A 783/07. EXT.22 TRUE COPY OF COMMON ORDER DT.18.12.08 IN O.A 544 & 783/07. /TRUE COPY/ K. BALAKRISHNAN NAIR & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C).Nos. 38082, 38104 & 38296 of 2008, 571 & 5012 of 2009 S - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of February, 2009 JUDGMENT Balakrishnan Nair, J. W.P.C. 38104 of 2008 The 5th respondent in O.A.Nos. 544 and 783 of 2007 is the writ petitioner. The respondents 1 and 2 herein were the applicants in those Original Applications. The other respondents herein were the official respondents in them. 2. The brief facts of the case are as follows. The petitioner was a candidate for selection to the post of Agricultural Fieldman, when applications were invited for the same by the Lakshadweep Administration, as per Ext.P2 notification dated 2.4.2006. As per the Recruitment Rules, the age limit prescribed was 18 - 25 years, which was relaxable as per the general orders issued by the Government from time to W.P.(C).Nos. 38082/08 & connected cases 2 time. The inhabitants of Lakshadweep Administration, being members of Scheduled Tribe, were entitled to get relaxation of age limit by five years. Apart from that, there was another order bearing No.F.No.12/56/01-Services dated 3.12.2001, which provided that when the selection is made by open competition by holding a written test, there will be a further relaxation of two years. The qualification prescribed for the post was S.S.L.C. or equivalent qualification with Diploma in Agricultural Science or Certificate in Agriculture (Higher) Course of one year duration from an Institute recognised by the Board of Technical Education of Central/State Government. There is no provision for any experience qualification or any additional desirable qualification as per the Recruitment Rules. 3. At the relevant time, recruitment to Group C and D posts were governed by Ext.P1 circular dated 5.9.2005. It provided for holding of a written test and interview. 4. When the selection process was going on, the Lakshadweep Administration issued Ext.P6 order dated 28.4.2007, as per which written test for Group 'C' posts was done away with, unless the same is W.P.(C).Nos. 38082/08 & connected cases 3 expressly provided in the Recruitment Rules. Apparently it was done, taking into account the allegations of corruption in the matter of holding the written test. The said general order also provided that 85% of the total marks should be assigned to the Essential Qualification stipulated in the Recruitment Rules. 15% of the marks should be assigned for desirable qualifications/experience/higher qualifications, taking into account the provisions of the Recruitment Rules. The same would imply that if the Recruitment Rules do not mention about desirable qualifications/experience/higher qualifications, there cannot be any award of marks for those parameters. 5. The selection proceedings started as provided in Ext.P1. But, after the issuance of Ext.P6, the selection was completed awarding marks as provided in Ext.P6. No test or interview was held. In the rank list published on 22.7.2007, the writ petitioner was Rank No.1 and he secured the highest percentage of marks. The first five persons included in the aforementioned rank list were appointed. The 6th candidate in that list is the first respondent herein. She was the W.P.(C).Nos. 38082/08 & connected cases 4 applicant in O.A. 544 of 2007. O.A.No. 783 of 2007 was filed by one Abdul Azeez, who did not even find a place in the rank list. The first respondent challenged the selection of the writ petitioner and other candidates by filing O.A.No.544 of 2007 before the Ernakulam Bench of the Central Administrative Tribunal. She contended that, in the selection of candidates, extreme favouritism was shown and criteria unknown to the Recruitment Rules have been adopted. Ineligible and over aged candidates were included in the select list. Identical contentions were taken in the connected application, O.A. 783 of 2007. 6. The official respondents resisted the applications, contending that the selection was made following a just and fair procedure. The method of selection contemplated under Ext.P1 gave rise to several allegations of corruption and nepotism and therefore, after several rounds of deliberations and consultations, Ext.P6 has been issued, providing for a fresh procedure, by which arbitrariness could be eliminated. The writ petitioner and other selected candidates also filed reply statement, supporting the impugned proceedings. W.P.(C).Nos. 38082/08 & connected cases 5 7. The Tribunal, after hearing both sides, set aside the selection of the writ petitioner and other candidates and issued the following directions: “Keeping in view the above decisions, if the case of the applicants is analysed, it would be crystal clear that ineligibles have been considered and selected. While selection of two of the selected candidates who are over aged is vitiated on account of such over age. In respect of the others too, the selection is vitiated, as irrelevant considerations were made in the selection (awarding marks for computer course etc., not provided for in the Rules and again, discrimination shown to the applicants, inasmuch as they not having been awarded any such marks for higher qualifications). Thus, the selection cannot be legally sustainable. Accordingly, the selection of candidates vide order dated 30.8.2007 (as available in the records) is quashed and set aside. The respondents shall take suitable tests for fresh selection. It is open to them to conduct the test as hithertofore done, in which event, those who are within the age limit with the additional two years' age relaxation may also be allowed to participate. The selection shall be strictly in accordance with the W.P.(C).Nos. 38082/08 & connected cases 6 stipulations in the Recruitment Rules so far as qualifications and age limit are concerned and on the basis of a uniform norm in respect of awarding of the marks for written test/viva voce if examination is held (or on the basis of the merit in the essential qualifications and experience as already proposed). Those of the applicants who would have crossed the age limit now could also be considered if they fulfilled the age limit on the last date for calling for applications. This order may be complied with, within four months from the date of communication of this order.” The aggrieved petitioner has preferred this writ petition, challenging the said order of the Central Administrative Tribunal dated 18.12.2008, which is produced as Ext.P22 in the writ petition. 8. According to the petitioner, as long as the Recruitment Rules do not provide for any method of selection and the Administration follows a fair procedure, the same cannot be interfered with. Exts.P1 and P6 are Administrative instructions and violation of them does not give any cause of action to the aggrieved party to maintain an Original Application. The writ petitioner has the highest academic marks and W.P.(C).Nos. 38082/08 & connected cases 7 being the most meritorious candidate, he secured the top place in the rank list. He was not given any age relaxation also. Therefore, there was no justification for quashing the selection, it is submitted. W.P.C. 38082 of 2008 9. The petitioner herein was also one of the candidates included in the select list for appointment to the post of Agricultural Fieldman. Aggrieved by the order of the Central Administrative Tribunal mentioned above, a copy of which is produced as Ext.P8, this writ petition is filed by him. According to him, the new guidelines issued by the Lakshadweep Administration on 28.4.2007 concerning the selection were rightly followed in this case. W.P.C. Nos. 38296 of 2008 & 591 of 2009 10. These writ petitions are filed by the candidates, who got appointment pursuant to the selection made as per Ext.P2. They also attack the aforementioned order of the Tribunal and support the contentions of the petitioner in W.P.C. 38104 of 2008. W.P.(C).Nos. 38082/08 & connected cases 8 W.P.C. 5012 of 2009 11. This writ petition is filed by the applicant in O.A. 544 of 2007. The writ petitioner is dissatisfied with the direction of the Tribunal giving option to the Lakshadweep Administration to hold the written test. According to him, this is not an open competition selection and therefore Ext.P1 Circular dated 5.9.2005 mentioned above, providing for a written test is not applicable to the case of applicants for the present selection. In support of that submission, the writ petitioner/applicant relied on Ext.P14 clarification issued by the Lakshadweep Administration on 7.11.2002. Special reference is made to clause (b) of the said Circular, which reads as follows. “If the recruitment examination is open to candidates in Lakshadweep even if only to Scheduled Tribe candidates, it is 'Open Competition' for this purpose. If any department is asking for candidates only from District Employment Exchange, Kavaratti for the competition, then it may not be called as an 'Open Competition', but if the post is advertised along with calling candidates from District Employment Exchange, it will be ' Open W.P.(C).Nos. 38082/08 & connected cases 9 Competition' as any other candidate of Lakshadweep fulfilling the specified conditions can compete.” Relying on the above quoted portion, the petitioner points out that the present selection is not an open competition selection. Therefore, the direction to hold the written test is liable to be set aside, it is submitted. 12. We heard the learned Senior counsel Sri.M.R. Rajendran Nair, the learned counsel Sri. Nagaresh, Sri. E.S.M. Kabeer and Sri. Mohana Kannan for the writ petitioners, who are challenging the order of the Central Administrative Tribunal, setting aside the selection. We also heard Sri. S. Arun Raj, who appeared for one of the applicants, who filed writ petition, W.P.(C).No. 5012 of 2009. We also had the benefit of hearing Mr.S. Radhakrishnan, learned Standing Counsel for Lakshadweep Administration. 13. The respective contentions of the petitioners, which we have already noticed, have been reiterated by the learned counsel. The learned senior counsel also submitted that the Tribunal interfered with the selection, based on grounds not taken in the Original Application. W.P.(C).Nos. 38082/08 & connected cases 10 But, we notice that the Tribunal called for the records, perused the same and after hearing both sides found certain illegalities. If those findings are correct, this Court may not be justified in interfering with them, on the ground that such a contention was not specifically raised in the Original Application. 14. The learned senior counsel also submitted that violation of Ext.P1 circular will not give any cause of action to any candidates, as the said circular contains only administrative instructions. In other words, it is not a statutory order. We find it difficult to accept that contention, in view of the decision of the Apex Court in B.S. Minhas v. Indian Statistical Institute (AIR 1984 SC 363). The Lakshadweep Administration claimed that it will follow the norms contained in Ext.P1, while making the selection to various posts. If they fail to do that, the selection is liable to be set aside, even assuming Ext.P1 is non-statutory. This view is fully supported by the decision of the Apex Court in the aforementioned decision. See the relevant portion of the statement of law made by the Apex Court:- W.P.(C).Nos. 38082/08 & connected cases 11 “22. The next question that arises for consideration is whether the appointment of respondent No.4 as Director of respondent No.1 is illegal because of non-compliance with bye-law 2. Bye-law 2 does require that before appointment, the vacancy in the post of Director should be suitably publicised. In the instant case, it is admitted on both sides that no publicity whatsoever was given in respect of the vacancy. The contention of Shri.Garg, however, is that the bye-law having no force of statute, non-compliance with its requirement cannot in any way affect the appointment of respondent No.4 as Director of respondent No.1. Shri. Tarkunde, however, contended that assuming that the bye-law is not statutory, even so respondent No.1 was bound to comply with it. In support of his contention he strongly relied upon Ramana Dayaram Shetty v. International Airport Authority of India (1979) 3 SCR 1014 : (AIR 1979 SC 1628). The Court in that case held (at p.1635 of AIR): It is a well-settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. This rule was W.P.(C).Nos. 38082/08 & connected cases 12 enunciated by Mr.Justice Frankfurter in Vitarelli v. Seaton (1959) 359 US 535 : 3 L Ed 2d 1012) where the learned Judge said: 'An executive agency must be rigorously held to the standards by which it professes its action to be judged. Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed. This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword.' The aforesaid principle laid down by Mr. Justice Frankfurter in Vitarelli v. Seaton (1959) 3 Law Ed 2d 1012) has been accepted as applicable in India by this Court in A.S. Ahluwalia v. Punjab State (1975) 3 SCR 82 : AIR 1975 SC 984) and in subsequent decision given in Sukhdev v. Bhagatram (1975) 3 SCR 619 :(AIR 1975 SC 1331), Mathew J. quoted the above-referred observation of Mr. Justice Frankfurter with approval.” 15. The next point to be considered is, whether in view of issuance of Ext.P6 on 28.4.2007, the Administration could have followed that for the present selection already notified on 2.4.2006. W.P.(C).Nos. 38082/08 & connected cases 13 We feel that para 1(ii) of Ext.P6 will fully answer the above question. The said portion of Ext.P6 reads as follows: “1(ii). The constitution of the Committee and the criteria for award of marks as above shall be done with the approval of the Hon'ble Administrator before the notification of the posts for recruitment. The constitution of the committee and criteria evolved shall be fair taking into account the RRs so as to make the selection process fair, transparent, objective and rational.” 16. Going by the above quoted portion of Ext.P6 order, it is manifestly evident that the said circular has to apply for future selections and not to the selection notified as per Ext.P2 on 2.4.2006. In this context, we notice the contention of the first respondent herein raised in her writ petition that Ext.P1 will apply only to selection by open competition. Since candidates registered with the Employment Exchange were only eligible, she submitted that it is not to be treated as an open competition selection. We have already extracted above, the relevant portion of Ext.P14, produced in W.P.C. 5012 of 2009, based on which the above submission is made. But, a reading of the W.P.(C).Nos. 38082/08 & connected cases 14 paragraph of the said circular quoted earlier, would show that the claim of the first respondent/applicant is untenable. Even if applications are invited from persons registered with the Employment Exchange, still it is a selection by open competition and therefore, the mandate of Ext.P1 has to be followed. Since the selection was admittedly made not following Ext.P1, it is liable to be set aside. Further, as the selection has to be made after a written test, the candidates are entitled to get additional age relaxation for two years. 17. We are not going to the various other contentions and also the findings of the Tribunal on other points, as the same is unnecessary for the disposal of the cases. But, having regard to the facts of the case, we modify the direction issued by the Tribunal. To make the selection in accordance with Ext.P1 and also to meet the interest of justice, the Lakshadweep Administration shall make a fresh selection to the post of Agricultural Fieldman from among the applicants, who submitted their applications pursuant to Ext.P2. For making the selection the method prescribed in Ext.P1 shall be followed. Further, since it is an open competition selection, there will be an age relaxation W.P.(C).Nos. 38082/08 & connected cases 15 for a further period of two years. It is also clarified that since the Recruitment Rules do not provide for preferential qualification or experience, marks for the same need not be awarded, in the light of paragraph (1)(B)(i) of Ext.P1. We affirm the order of the Tribunal to the extent it set aside the selection. But, it is clarified that the persons selected and appointed can continue in service till a fresh selection is made and the candidates pursuant to that selection join duty. The Lakshadweep Administration shall endeavour to complete the selection as directed above, as expeditiously as possible, in any event, within six months from the date of receipt of a copy of the judgment. 18. The Writ Petitions are disposed of as above. (K. BALAKRISHNAN NAIR) Judge (M.L. JOSEPH FRANCIS) Judge tm W.P.(C).Nos. 38082/08 & connected cases 16