Partly allowed

Sudhir Rajan v. the Indian Institute of Management

Kerala HC7 Nov 2012WP(C)/16342/2009

Case brief

AI extract

What is this about?

The High Court quashed orders cancelling appointments of junior assistant candidates who possessed earlier contractual service and total graduation marks exceeding the minimum, allowing their reinstatement on merit.

What did the court decide?

Quashing of orders cancelling appointments of petitioners Shudhir Rajan and the second petitioner, and declaring them entitled to the posts they were initially selected for.

Sudhir Rajan Vs the Indian Institute of Management — Service and Employment | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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WEDNESDAY, THE 7TH DAY OF NOVEMBER 2012/16TH KARTHIKA 1934

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WP(C).No. 16342 of 2009 (K)

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PETITIONER(S):

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SUDHIR RAJAN,"AMMINI",KONANGATH, P.O.MUKKAM KOZHIKODE-673 602. BY ADV. SRI.P.C.SASIDHARAN

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RESPONDENT(S):

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1.THE INDIAN INSTITUTE OF MANAGEMENT, KOZHIKODE REP.BY ITS DIRECTOR KUNNAMANGALAM KOZHIKODE.

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2.THE CHIEF ADMINISTRATIVE OFFICER, THE INDIAN INSTITUTE OF MANAGEMENT KUNNAMANGALAM KOZHIKODE.

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ADDL. 3.UMESH KUMAR P, PERAMGOTTE HOUSE, NIT CAMPUS P.O, KOZHIKODE-673 601.

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ADDL.R3 IS IMPLEADED AS PER ORDER DT.19.8.2009 IN I.A.NO.10156/09.

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R,R BY ADV. SRI.MOHAN PULIKKAL R,R BY ADV. SMT.MANJU RAJAN R,R BY ADV. SRI.SEBASTIAN THARAKAN R,R3 BY ADV. SRI.K.JAJU BABU R,R1&2 BY ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI R,R1 BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 0711-2012, ALONG WITH WPC. 21795/2009, WPC. 22094/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 16342 of 2009

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1: COPY OF LETTER DATED 21.1.2004.

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EXHIBIT P2: COPY OF EXTENSION ORDER DATED 17.1.2006.

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EXHIBIT P3: COPY OF EXPERIENCE CERTIFICATE.

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EXHIBIT P4: COPY OF APPOINTMENT ORDER DATED 26.5.2009.

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EXHIBIT P5: COPY OF COMMUNICATION ISSUED BY THE RESPONDENT DATED 8.6.2009.

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EXHIBIT P6: COPY OF COMMUNICATION ISSUED IN THIS REGARD DATED 4.6.2011.

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EXHIBIT P7: COPY OF REPLY FURNISHED BY THE PETITIONER DT.12.6.2011.

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EXHIBIT P8: COPY OF ORDER ISSUED BY THE 2ND RESPONDENT DT.23.6.2011.

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EXHIBIT P9: COPY OF ORDER ISSUED BY THE SENIOR ADMINISTRATIVE OFFICER DATED 24.6.2011.

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RESPONDENTS' EXHIBITS:

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EXHIBIT R2(a): COPY OF ADVERTISEMENT DATED 16.1.2009 ISSUED BY THE 1ST RESPONDENT.

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EXHIBIT R2(b): COPY OF ELIGIBILITY CRITERIA DTED 21.1.2009 ISSUED BY THE 1ST RESPONDENT.

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EXHIBIT R2(c): COPY OF MEMO DATED 17.7.09 ISSUED BY THE 2ND RESPONDENT TO KAVITHA.K.P.

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EXHIBIT R2(d): COPY OF MEMO DATED 24.7.2009 ISSUED BY THE 2ND RESPONDENT TO KAVITHA.K.P.

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/TRUE COPY/

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PS TO JUDGE

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A.M.SHAFFIQUE, J.

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W.P(C).No. 16342 of 2009, W.P(C).No. 21795 of 2009 & W.P(C).No.22094 of 2009

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Dated this the 8^th day of November, 2012 JUDGMENT

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These Writ Petitions arise out appointments made on the basis of a select list prepared by the Indian Institute of Management, Kozhikode (for short, 'the IIMK') for the post of Junior Assistant. The petitioner in W.P(C).No.16342 of 2009 was first in the rank list and the petitioner in W.P(C).No.22094 of 2009 was the second. The petitioners in W.P(C).No.21795 of 2009 were third and fourth in the rank list.

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As per communication dated 26.5.2009, the petitioners in W.P(C).Nos. 16342 and 22094 of 2009 were appointed to the said post. Subsequently, when certain complaints had arisen in regard to the criteria for eligibility and selection of the candidates, an enquiry was conducted by IIMK and orders were issued cancelling the appointments of the aforesaid candidates. This came to be challenged in the above Writ Petitions.

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In W.P(C).No. 21795 of 2009, the contention is that

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WP(C).16342, 21795 & 22094/09

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since the appointments of the selected two candidates were cancelled, being the third and fourth candidates, they are to be appointed to the above posts.

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Heard the learned counsel appearing for the petitioners and respondents.

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In regard to W.P(C).No. 16342 of 2009, the selection was cancelled when it was found that the petitioner was not qualified as he did not have the minimum of 55% marks for graduation. The petitioner had only 53.37% marks. It seems that the Committee, considering the applications, had given relaxation to the minimum marks, considering the experience and qualification of the candidate. According to the petitioner, in addition to graduation, he is also a Law Graduate and he had obtained appointment on contract basis in the IIMK as per Exhibit P1 dated 21.1.2004 and until the selection was made for the post of Junior Assistant, he was working in the said department. Taking into consideration the aforesaid facts, such relaxation was given to the petitioner and several others. It is not in dispute that the IIMK, during the said selection process, had given such relaxation for seven such experienced persons. The appointment order was issued on 26.5.2009 and clause 6 of the said order read as under:

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WP(C).16342, 21795 & 22094/09

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“6. You will be required to take an oath of allegiance to the Constitution of India (or make a solemn affirmation to that effect) and also an oath of secrecy in the prescribed form on your reporting for duty. You will have to maintain the confidentiality of the information available in the Institute. Any information on the Institute can be disclosed only with prior written permission of the competent authority of the Institute. If any declaration given or information furnished by you proves to be false, and if it is found that you have willfully suppressed any material information or if the Institute is satisfied that you were ineligible for recruitment to the post in the first instance itself or for proven misconduct, you will be liable to be removed from service without notice and such other action as the appointing authority may deem necessary.”

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In fact, since Exhibit P5 order was issued without hearing

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the petitioner, an opportunity of being heard was given by virtue of an interim order passed by this Court and Exhibit P8 is the final order, which is under challenge.

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The argument of the learned counsel for the petitioner is that since there is no misrepresentation of fraud on the part of the petitioner and the Selection Committee themselves have

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WP(C).16342, 21795 & 22094/09 4

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given adequate relaxation, unless the relaxation given is withdrawn, it may not be proper on the part of the Chief Administrative Officer to issue Exhibit P5 order, which inter alia cancels the appointment of the petitioner. The main contention urged by the petitioner is that he being appointed to the said post in the said institution from 2004 and the Selection Committee having decided to grant relaxation for the marks, and in the absence of any fraud or misrepresentation on his part, it may not be proper for the department to cancel the appointment.

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It is not in dispute that if fraud is played by a person, the appointment order will become null and void. In this case, admittedly, there is no fraud played by the petitioner. The relaxation of minimum marks was given by the selection committee, the test was conducted and appointment order was issued to the petitioner, which was later cancelled as per Exhibit P8 order. The appointment order was given in 2009 and thereafter, on the basis of certain complaints, though Exhibit P5 order has been issued, by the intervention of this Court, after giving an opportunity of being heard to the petitioner, Exhibit P8 order was passed cancelling the appointment. In Exhibit P8 the main reason stated is that the Committee's action in relaxing the

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WP(C).16342, 21795 & 22094/09

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minimum qualifying marks was irregular. In a particular situation, that position may be correct, but when relaxation of marks had been given to about seven persons by the committee, considering their experience in the field and once their appointments are made after the selection procedure, it may not be correct on the part of the authorities concerned to subsequently cancel the appointment. It is not a case that a specific rule prescribes the minimum qualification. The question is whether the committee had the power to relax the qualification. It is not stated in Ext.P5 or P8 that the committee had no power to relax the qualification. In that view of the matter, I do not think that the IIMK is justified in passing Exhibits P5 and P8 orders. Therefore, those orders are liable to be quashed.

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With reference to W.P(C).No.22094 of 2009, the only ground on which the petitioner's appointment was cancelled was that she did not have 55% marks for her graduation. The petitioner has produced Exhibit P10, which clearly shows that she has 56.4285% marks for her graduation. In the counter affidavit filed by the IIMK it is seen that they have taken into consideration the marks of the subjects alone for computing the qualifying 55% marks. That being the situation, the finding of the authority is

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WP(C).16342, 21795 & 22094/09

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absolutely incorrect. When the qualifying marks is stated to be 55% for graduation, the entire marks ought to have been taken into consideration and limiting the same to the marks for subjects alone is bad in law. In that view of the matter, there is no justification in passing Exhibit P1 order dated 24.7.2009 and hence, the said order is liable to be set aside.

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Since, I have already allowed W.P(C).Nos.16342 and 22094 of 2009, though the petitioners in W.P(C).No.21795 of 2009 are stated to be third and fourth in the rank list, they may not have any right to claim appointment. Even otherwise, in a case when the notified vacancy is only two and two were selected and appointed even if the appointments are lateron cancelled or terminated, the persons in the waiting will not get any vested interest to claim appointment. It is absolutely within the discretion of concerned department to decide whether the persons ranked as third and fourth in the rank list should be appointed or not. In that view of the matter, the petitioners in W.P(C).No.22094 of 2009 will have no right to seek appointment on the basis of the select list.

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In the result, W.P(C).Nos. 16342 and 22094 of 2009 are allowed by quashing Exhibits P5 and P8 in W.P(C).No.16342 of

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WP(C).16342, 21795 & 22094/09

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2009 and Exhibit P1 order in W.P(C).No.22094 of 2009 and the petitioners are entitled for appointment to three respective posts for which they were selected.

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W.P(C).No.21795 of 2009 is dismissed.

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A.M.SHAFFIQUE, JUDGE

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vgs

Sudhir Rajan v. the Indian Institute of Management

Case brief

What is this about?

What did the court decide?

Sudhir Rajan v. the Indian Institute of Management

Case brief

What is this about?

What did the court decide?

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