IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 11TH AUGUST 2009 / 20TH SRAVANA 1931 WA.No. 634 of 2008() AGAINST THE JUDGMENT IN WPC.28068/2007 Dated 06/12/2007 APPELLANTS: PETITIONERS 1. SOMASEKHARAN CHETTIYAR, AGED 47 YEARS, S/O.JANARDHANAN CHETTIYAR, ASSISTANT MANAGER, KERALA STATE FINANCIAL ENTERPRISES LTD, AZHOOR BRANCH, CHIRAYINKAL, THIRUVANANTHAPURAM. 2. K.SUDHEERAN, S/O.A.KRISHNAN, ASSISTANT MANAGER, KERALA STATE FINANCIAL ENTERPRISES LTD., PARAMATTOM BRANCH, PATHANAMTHITTA. 3. SREELEKHA.V.S., ASSISTANT MANAGER, KERALA STATE FINANCIAL ENTERPRISES LTD., PAPPANAMKODE BRANCH, THIRUVANANTHAPURAM. 4. MARGRET ANTONY, DY.MANAGER, KERALA STATE FINANCIAL ENTERPRISES LTD., VIKAS BHAVAN BRANCH, THIRUVANANTHAPURAM. 5. SHAHIDA BEEVI, ASSISTANT MANAGER, KERALA STATE FINANCIAL ENTERPRISES LTD., VIZINJAM BRANCH, THIRUVANANTHAPURAM. 6. SREEKUMARI AMMA, ASSISTANT MANAGER, KERALA STATE FINANCIAL ENTERPRISES LTD., PALODE BRANCH, THIRUVANANTHAPURAM. 7. MOHANAN.A.S., ASSISTANT MANAGER, VADAKKANCHERRY BRANCH, PALAKKAD. BY ADV. SRI.SIVAN MADATHIL RESPONDENTS: RESPONDENT AND 6,8 PETITIONER IN WPC 1. KERALA STATE FINANCIAL ENTERPRISES LTD., CORPORATE OFFICE, `BADRADHA', THRISSUR-680 020, REPRESENTED BY ITS SECRETARY. 2. THE MANAGING DIRECTOR, KERALA STATE FINANCIAL ENTERPRISES LTD., CORPORATE OFFICE, `BADRADHA', THRISSUR-680 020. 3. DAVIS.A.G., ASSISTANT MANAGER, KSFE LTD., EDAPPAL BRANCH, EDAPPAL. 4. VIMALA.J., ASSISTANT MANAGER, KERALA STATE FINANCIAL ENTERPRISES LTD., PARASSALA BRANCH, THIRUVANANTHAPURAM. 5. AJITHA.K.G., DEPUTY MANAGER, K.S.F.E. LTD., THIRUVANANTHAPURAM MAIN BRANCH. ADV. SRI.S.JAYAKRISHNAN -R3 SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR FOR R1-2 SRI.ANIL D. NAIR FOR R1-2 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11/08/2009, ALONG WITH CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.A. NOS.634, 852, 930 & 1146 OF 2008 --------------------------------------------- Dated this the 11th day of August, 2009 JUDGMENT Balakrishnan Nair, J. This batch of Writ Appeals is filed against the common judgment of the learned Single Judge, disposing of six Writ Petitions filed by the employees of the Kerala State Financial Enterprises Limited. W.A. No.852 of 2008 2. The brief facts of the case are the following: The appellants are Deputy Managers and Assistant Managers of the first respondent- Company. Their next promotion post is Officer Grade IV,now re- designated as Manager Grade IV. Ext.P1 is the Recruitment Rules governing the qualifications and method of appointment to various posts under the first respondent. The method of appointment is by promotion and direct recruitment. 75% of the vacancies are set apart to be filled up W.A. No.634/2008 & Connected Cases 2 by promotion. Selection for the same is based on competitive written test and interview. The promotion exercise involved in this case started by issuance of Ext.P2 notice dated 29.4.2006 calling for applications to take the test. Ext.P3 gives the details of the test, Ext.P3(a) gives the details of the syllabus for promotion test and Ext.P3(b) gives the details of the marks set apart for Paper I and Paper II etc., for the written test. The maximum marks is shown as 100 each and the minimum marks for pass is fixed as 35. Likewise, Ext.P3(b) also contains the marks for group discussion and interview with personality test. The maximum marks for them is 50 each and the minimum marks for pass is 15 each. The petitioners cleared the written test and they were included in Ext.P4 list published on 25.8.2006. Thereafter, interview was held on various dates and finally a panel of successful candidates was published as per Ext.P5. The petitioners were not included in the list, apparently for the reason that they did not get the minimum marks prescribed for interview and/or group discussion. Aggrieved, the petitioners preferred the Writ Petition, challenging Ext.P5 and also seeking consequential reliefs. According to them, Ext.P1 Recruitment Rules did not provide for any group discussion. So, introduction of that element in the selection process was unauthoised, it is submitted. The petitioners also contended that fixation of minimum W.A. No.634/2008 & Connected Cases 3 marks for interview and group discussion was unauthorised. According to them, the percentage of marks fixed for interview and group discussion was on the higher side and the same was violative of their fundamental rights guaranteed under Articles 14 and 16 of the Constitution of India, as declared by the Apex Court in several decisions. Respondents 1 and 2 filed a counter affidavit resisting the prayers in the Writ Petition. The learned Single Judge, after hearing both sides dismissed the Writ Petition on the ground that the petitioners, who participated in the selection process without demur and with open eyes, cannot turn round and challenge the method of selection after having failed in it. The petitioners, feeling aggrieved by the said decision, have preferred this Writ Appeal. 3. We heard Sri. P.M. Pareeth, learned counsel for the appellants. We also heard learned senior counsel Sri. T.P. Kelu Nambiar, instructed by Adv. Sri. R. Ramadas and Dr. K.P. Satheesan who appeared in the connected Writ Appeals. 4. The learned counsel mainly raised the following common grounds: (i) Group discussion was not part of the method of selection provided in Ext.P1 Recruitment Rules, (ii) Ext.P3(b) was, in fact, not W.A. No.634/2008 & Connected Cases 4 circulated among the prospective candidates, (iii) As per the Recruitment Rules, past performance of the candidates, as recorded in their service records, was also to be taken into account and the said element was totally ignored in the selection process , (iv) The prescription of minimum marks for interview and group discussion was unauthorised and prescription of high percentage of marks for interview and group discussion was arbitrary and unconstitutional. 5. The appellants also pointed out that they participated in the selection process without demur and without challenging the infirmities therein, because they thought that there will not be any elimination based on the marks in the interview and group discussion, as there was no elimination in the earlier years. According to them, only when the final list of candidates was published, they found that they were eliminated, deviating from the practice of the previous years. Therefore, participation in the interview should not have been taken as a ground for non suiting the appellants, it is submitted. 6. We heard the learned counsel for the respondents. He supported the decision of the learned Single Judge. W.A. No.634/2008 & Connected Cases 5 7. We notice that as per Ext.P3(b), the syllabus was published along with the minimum marks prescribed for two papers of the written test and also for interview and group discussion. At the appellate stage, the appellants have raised a new ground that Ext.P3(b) was never circulated and that they were not aware of it. The said ground was taken apparently based on an answer given under the Right to Information Act concerning the same by the Information Officer of the first respondent. But, if the candidates were taken by surprise by the syllabus and the cut off marks, they would have definitely raised it as a ground in the Writ Petition. Not only that they did not raise such a ground, but in some of the Writ Petitions, it is specifically pleaded that Ext.P3(b) was published. In W.P. (C) No.27051 of 2007 against which this Writ Appeal is filed, it is specifically stated as follows: “7. ............... Thereafter the details of marks for each paper were also published. A true photocopy of the details of marks for Part-I and Part-II is produced herewith and marked as Exhibit-P3(b).” In view of such pleadings, the present attempt at the appellate stage to canvass that Ext.P3(b) was never circulated cannot be accepted. W.A. No.634/2008 & Connected Cases 6 8. It is true that Ext.P1 Recruitment Rules did not provide for any group discussion. But, we notice that Ext.P3(b) contains that stipulation. These days, for Managerial posts, group discussion is also one of the methods employed for selection. Ext.P3(b) is based on the decision of the Company. We notice that Ext.P1 Recruitment Rules do not have any statutory flavour or backing. It only contains the decision of the Company concerning the qualification and method of appointment to various posts. So, by a subsequent decision, the Company can always vary its earlier decision. Unless Ext.P3(b) contains some other infirmity or illegality, the same cannot be attacked as being at variance with Ext.P1 Recruitment Rules. The prescription in Ext.P3(b) for group discussion being one of the usual methods of employed for selection, we find nothing arbitrary or irrational about it. 9. The next point canvassed is regarding the non consideration of the service records of the incumbents, as stipulated in Ext.P1 Recruitment Rules. But, this time, the scheme of selection was stipulated in Ext.P3(b). For the reasons mentioned earlier, Ext.P3(b) cannot be impugned as being at variance with Ext.P1 because both contains the decisions of the W.A. No.634/2008 & Connected Cases 7 Company. Further, in many cases, decision not to refer to the annual confidential reports is taken as a decision in favour of the employees. When promotion is mainly dependent on the remarks in the annual confidential reports, it is sarcastically remarked that in fact, in such cases, promotion is not ordered by the appointing authority, but by the reporting officer who makes entries in the annual confidential reports. So, no prejudice is caused to the appellants for not having taken into account the service records. 10. The next point canvassed is regarding the different constitutions of the Board which interviewed the candidates. It would have been ideal if the same Board had interviewed all the candidates. But, in this case, two Boards were constituted and, therefore, the chances of variation in evaluation cannot be ruled out. The learned counsel for the respondents tried to justify the constitution of two Boards by saying that the requirements of the Company are clear and were spelt out in advance and, therefore, the Interview Boards will be guided by those considerations and the subjective element will be minimal. But, we notice that in the absence of proper pleadings regarding the prejudice caused and the materials to support that contention, we are not justified in interfering W.A. No.634/2008 & Connected Cases 8 with the selection on the ground that there was change in the constitution of the Board. 11. Finally, it is submitted that prescription of high percentage of marks for interview and group discussion will vitiate the selection. Going by the marks in Ext.P3(b), we notice that the total marks for interview and group discussion is 100 out of the total marks of 300. So, 33% of the marks is set apart for interview and group discussion. We notice that on this point, there are conflicting decisions of the Apex Court. Decisions will vary based on the nature of the post and the relevant rules. There cannot be any rigid prescription regarding the percentage of marks for written test. For Group 'C' and Group 'D' posts, normally the prescription of a lower percentage of marks for interview is preferred. But, for Managerial posts, prescription of a high percentage of marks is tolerated. In some cases, the entire selection based on interview has been approved by courts. Having regard to the facts of the case, we think that sufficient materials are not before us to conclude that prescription of 33.33% of marks for interview and group discussion has vitiated the selection. 12. The persons participating in the selection, normally, will not be W.A. No.634/2008 & Connected Cases 9 permitted to turn round and challenge the selection pointing out the infirmities in the selection procedure, which were notified in advance. But, of course, there can be no waiver of fundamental rights and any selection process can be challenged for violation of Articles 14 and 16 of the Constitution of India. So, we are not finally pronouncing on the above point. But, we are sure that on other grounds, the Writ Appeal must fail. Accordingly, this Writ Appeal is dismissed. W.A. Nos.634, 930 & 1146 of 2008 In view of the judgment in W.A. No. 852 of 2008, these Writ Appeals are also dismissed. (K. BALAKRISHNAN NAIR) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.A. No.634/2008 & Connected Cases 10 K.BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. W.A. NOS.634, 852, 930 & 1146/2008 JUDGMENT 11th August, 2009 W.A. No.634/2008 & Connected Cases 11