IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 17TH NOVEMBER 2011 / 26TH KARTHIKA 1933 WP(C).No. 13819 of 2011(B) ---------------------------------- PETITIONER(S): ------------------- PRIYANKA.V.K., D/O. ASHOKAN, AGED 22 YEARS, NO OCCUPATION, RESIDING AT THAYYIL HOUSE, NARIPATTA.P.O., PIN-673506,KOZHIKODE DISTRICT. BY ADV. SRI.R.SURENDRAN RESPONDENT(S): -------------------- 1. KERALA STATE ELECTRICITY BOARD, VAIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM PIN-695004, REPRESENTED BY ITS SECRETARY. 2. THE CHAIRMNA, KERALA STATE ELECTRICITY BOARD, VAIDYUTHI BHAVANAM, PATTOM THIRUVANANTHAPURAM-695004. 3. THE SPORTS CO-ORDINATOR, KERALA STATE ELECTRICITY BOARD, VAIDYUTHI BHAVANAM, PATTOM,THIRUVANANTHAPURAM-695004. R1-3 BY SRI.P.SANTHALINGAM, SENIOR ADVOCATE ADV. SRI.K.S.ANIL, SC, KSEB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 13819/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF RANK LIST PREPARED BY THE SELECTION COMMITTEE FOR BASKETBALL (WOMEN) TEAM FOR KSEB, SHOWING THE MARKS AND RANK. P2: COPY OF ORDER DATED 06/10/2010 ISSUED BY THE FIRST RESPONDENT. P3: COPY OF LETTER DATED 30/11/2010 ISSUED BY THE CANDIDATE ANUSHA ANTO AND ADDRESSED TO THE CHIEF ENGINEER (HRM), KSEB, THIRUVANANTHAPURAM. P4: COPY OF NOTE DATED 18/12/2010, SUBMITTED BY THE THIRD RESPONDENT TO THE SECOND RESPONDENT AND THE ORDER ISSUED BY THE SECOND RESPONDENT. P5: COPY OF ORDER DATED 16/02/2011 ISSUED BY THE FIRST RESPONDENT. RESPONDENT'S EXHIBITS: R1(a):COPY OF THE NOTIFICATION NO.SPORTS CELL/SOR/35/2010 DATED 31/07/2010 ISSUED BY K.S.E.BOARD. /TRUE COPY/ P.A. TO JUDGE. svs K.SURENDRA MOHAN, J = = = = = = = = = = = = = WP(C).No.13819 of 2011-B. = = = = = = = = = = = = = Dated this the 17th November, 2011. J U D G M E N T The petitioner has filed this writ petition challenging Ext.P4 proceedings of the second respondent by which she has been denied appointment to the service of the first respondent in the sports quota. According to the petitioner, pursuant to Ext.R1(a) notification, she had applied for appointment under the sports quota. Accordingly, she underwent the selection process which includes a trial selection as well as interview. Thereafter, Ext.P1 rank list was prepared wherein she has been placed as rank No.3. The person who was ranked No.1 did not join, as evidenced by Ext.P3 for the reason that she obtained appointment in the service of Central Railways. Therefore, the petitioner who was ranked No.3 had to be appointed. Her appointment was recommended by the Sports Co-ordinator WP(C).No.13819/2011-B. 2 also as per Ext.P4. But, the second respondent has, by an endorsement, that is under challenge in this writ petition, denied her the appointment that was, according to her, legitimately due to her. Therefore, she has filed this writ petition challenging the said action of the respondents. 2. A counter-affidavit has been filed on behalf of the respondents producing the notification, Ext.R1(a). It is pointed out that clause 3.6 of the notification provides that the Board is entitled to restrict the number of candidates to be selected under each discipline. It is further averred that the denial of appointment to the petitioner was on the basis of genuine and tenable grounds, as disclosed by the endorsement of the second respondent in Ext.P4. According to the respondents, the Basketball team of the second respondent is ranked just below the team of Indian Railways and is considered to be a very prestigious team. In order to maintain the standard of the team, only the best available players are recruited. The team is maintained by WP(C).No.13819/2011-B. 3 the first respondent expending considerable amounts of money and therefore, it is contended that the appointment of the petitioner was denied on a consideration of all relevant aspects. The learned Senior Counsel who represents the first respondent further points out that inclusion of the name of the petitioner in Ext.P1 rank list does not confer a right on her for any appointment. It is up to the first respondent to decide whether to appoint her or not, taking into account all the relevant aspects. Therefore, the respondents pray for the dismissal of this writ petition. 3. I have heard Sri.R.Surendran who appears for the petitioner and Sri.P.Santhalingam, Senior Advocate who appears for the respondents. 4. According to the counsel for the petitioner, clause 3.1 of Ext.R1(a) specifically provides that the selection of the candidates for appointment would be determined by the total marks obtained on the basis of the achievements of each candidate. The endorsement in Ext.P4 shows that the WP(C).No.13819/2011-B. 4 second respondent has taken into account the marks obtained by the petitioner in the selection trials. On the basis of the said marks, the authority has decided that instead of selecting the petitioner it was better to select a better candidate after holding a fresh selection in which she could also participate. The above procedure, according to the petitioner's counsel, is violative of the professed procedure that the authorities had notified as per Ext.R1(a). Therefore, it is contended that the impugned action is unsustainable. 5. The learned Senior Counsel on the other hand points out that inclusion of the name of the petitioner in Ext.P1 rank list does not confer any right of appointment on her. It is up to the respondents to decide whether they should appoint any person at all. Therefore, it is contended that the impugned proceedings do not violate any rights of the petitioner. 6. I have heard the counsel at length. I have also WP(C).No.13819/2011-B. 5 considered the rival contentions anxiously. Clause 3.1 of Ext.R1(a) reads as follows: “The selection of candidates for appointment will be determined by the total marks obtained on the basis of achievements in the field of sports/games as given in para (1) above, field selection trials and final interview.” Clause 3.6 of Ext.R1(a) reads as under: “The Board may, on recommendations of the apex committee restrict the number of candidates to be selected under each discipline.” It is certainly true that the selection procedure stipulated by clause 3.1 provides that the appointment would be determined by the total marks obtained on the basis of achievements in the field of sport/games namely, the total marks in field selection trials and final interview. It is not in dispute that Ext.P1 rank list has been prepared in compliance with clause 3.1. However, clause 3.6 confers powers on the Board to restrict the number of candidates to be selected. I notice that clause 3 deals with the selection WP(C).No.13819/2011-B. 6 procedure while appointment is stipulated by clause 5. Clause 5.1 reads as follows: “The selected sports person will be appointed against posts commensurate to their educational qualifications. The Board reserves the right to employment commensurate with qualification and the same is not liable to be questioned in any manner. They shall represent the Board in various tournaments for a period of five years from their date of joining duty and their appointment shall be purely provisional and shall be regularised only on completion of the requisite contractual obligations.” (emphasis supplied). The above clause reserves the Board's the right to grant employment to a candidate, commensurate with his or her qualification and the same is held not liable to be questioned in any manner. Since Ext.R1(a) has reserved the right of the Board to make an appointment even after the selection procedure is complete, the said right cannot be denied to the Board. The counsel for the petitioner on the other hand contends that the scope of the above clause is totally different and goes only to the extent of conferring WP(C).No.13819/2011-B. 7 power on the Board to appoint a person ranked in Ext.P1 to any suitable post, on an evaluation of his or her qualification. Be that as it may, even in the absence of any provision, it is trite that a power to appoint also presupposes a power not to appoint. The appointing authority certainly has the power to decide not to appoint a person or to insist that a better person is desirable. The petitioner has no case that the selection and ranking in Ext.P1 was not completed in accordance with clause 3. Therefore, it has to be held that the Board has the right not to appoint any person, in exercise of the above right. 7. The next question is whether the impugned decision in Ext.P4 is arbitrary or unsustainable. The endorsement in Ext.P4 of the second respondent is extracted below: “Ms.Priyanka has received only 47.5 in games. The other two had 62.8 and 60. No.44 had better marks. Rather than select Priyanka it will be better to select a good candidate in the next selection trials. She can also compete.” WP(C).No.13819/2011-B. 8 The second respondent has taken note of the fact that the petitioner as well as the persons ranked below her were not possessed of sufficient marks so as to be attractive enough to entitle them to an appointment in the sports quota straightaway. Since a good candidate was necessary, a fresh selection has been ordered, with the rider that the petitioner can also participate. It cannot be said that the decision is arbitrary. The same is supported by the reason that the second respondent was desirous of recruiting a good candidate after a fresh selection which would offer him a better field of choice. The petitioner does not allege any malafides against the second respondent. In the above circumstances, I do not find any infirmity in the impugned action of the second respondent. The writ petition fails and is accordingly dismissed. No costs. K.SURENDRA MOHAN, (Judge) Kvs/-