Dismissed

Shameer .S. v. State of Kerala and Others

Kerala HC15 Mar 2013WP(C)/12121/2011

Case brief

AI extract

What is this about?

Petitioner challenged selection process for Executive Trainee (Chemical) alleging mark reduction and favouritism. Court dismissed petition primarily due to non-joinder of candidates in the select list, rendering adjudication on the select list impossible.

What did the court decide?

Writ petition dismissed in view of non-joinder of necessary parties (candidates in the select list).

Shameer .S. Vs State of Kerala and Others — Service and Employment | Kerala HC (2013)

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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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FRIDAY, THE 15TH DAY OF MARCH 2013/24TH PHALGUNA 1934

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WP(C).No. 12121 of 2011 (M)

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PETITIONER(S) :

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---------------------

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SHAMEER .S. S/O.SOUKATH, PALAMOOTTIL HOUSE VADAKKUNATHALA EAST P.O., KARUNAGAPALLY KOLLAM DISTRICT.

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BY ADV. SRI.V.PHILIP MATHEW

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RESPONDENT(S) :

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1. STATE OF KERALA PRINCIPAL SECRETARY, DEPARTMENT OF INDUSTRIES AND COMMERCE, KERALA GOVERNMENT SECRETRIAT THIRUVANANTHAPURAM.

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2. THE KERALA MINERALS AND METALS LTD, SANKARAMANGALAM, CHAVARA-691 583, KOLLAM KERALA REPRESENTED BY ITS MANAGING DIRECTOR.

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3. THE CHAIRMAN,KERALA MINERALS AND METALS LTD, SANKARAMANGALAM, CHAVARA-691 583 KOLLAM, KERALA .

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4. THE MANAGING DIRECTOR, THE KERALA MINERALS AND METALS LTD, SANKARAMANGALAM CHAVARA-691 583, KOLLAM, KERALA .

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5. THE DIRECTOR, THE KERALA MINERALS AND METALS LTD, SANKARAMANGALAM CHAVARA-691 583, KOLLAM, KERALA .

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6. THE GENERAL MANAGER (P& A), THE KERALA MINERALS AND METALS LTD, SANKARAMANGALAM CHAVARA-691 583, KOLLAM, KERALA .

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7. IRFAN ALI. K, ASPIN,

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MULAMKADAKAM, THIRMULLAVARAM P.O., KOLLAM 691 012.

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WP(C).No. 12121 of 2011 (M)

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8. ARUN G. NATH, ARUN NIVAS, THTHAMMUNNA, NOORANAD P.O., ALAPPUZHA-690 504.

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R BY GOVERNMENT PLEADER SRI. NOUSHAD THOTTATHIL R2 TO 6 BY ADVS. SRI. B.S.KRISHNAN, SC SMT.LATHA KRISHNAN R7 BY ADVS. DR.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM) SRI.MATHEW SUNNY SRI.ANOOP.V.NAIR R8 BY ADVS. SRI. K.SHAJ SRI.SAJJU.S SRI.K.JAJU BABU

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 12121 of 2011 (M)

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APPENDIX

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PETITIONER'S EXHIBITS :

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P1: COPY OF THE NOTIFICATION PUBLISHED BY THE R3.

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P2: COPY OF THE CALL LETTER DT 1/11/2010.

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P3: COPY OF THE RANK LIST OF THE WRITTEN TEST CONDUCTED TO THE POST OF EXECUTIVE TRAINEE (CHEMICAL)

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P4: COPY OF THE LETTER DT 24/12011 ISSUED BY THE TH RESPONDENT TO THE PETITIONER

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P5: COPY OF THE BIO DATA OF THE CONDIDATES FOR THE POST OF EXECUTIVE TRAINEE (CHEMICAL)

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P6: COPY OF THE APPLICATION DATED 15/3/2011.

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P7: COPY OF THE REPLY DT 31/03/2011 GIVEN BY THE PUBLIC INFORMATION OFFICER, KMML.

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P8: COPY OF THE REPRESENTATION DT 4/4/2011 SUBMITTED BY PETITIONER TO THE R4.

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P9: COPY OF THE NOTIFICATION DT 16/05/2012 FOR MAKING APPOINTMENTS TO THE POST OF EXECUTIVE TRAINEES IN VARIOUS CATEGORIES.

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RESPONDENT'S EXHIBITS :

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EXT.R8(a): COPY OF CERTIFICATE DT 13/1/2012 ISSUED TO THE EIGHTH RESPONDENT BY THE UNIVERSITY OF KERALA.

//TRUE COPY//

P.A. TO JUDGE

A.M.SHAFFIQUE, J

*** * * * * * * * * * * * *** W.P.C.No.12121 of 2011

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Dated this the 15^th day of March 2013

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J U D G M E N T

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Petitioner is aggrieved by the process of interview in terms of Ext.P1 notification. Ext.P1 was published by the 3^rd respondent inviting applications to fill up among other posts, eight number of posts of Executive Trainee (Chemical). The qualification prescribed for the post was First Class Degree in Chemical Engineering.

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The petitioner applied for the said post and written test was conducted. The petitioner was shown as having rank No.7 for the written test. But after the interview he was not selected. The petitioner has produced Ext.P5, which is the bio-data of all the candidates who have applied for the said post. Petitioner's name is shown as Sl.No.7. The marks obtained by all the candidates for the written test and interview is also shown. The main complaint of the petitioner is that though the written test was conducted for 100 marks,

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in Ext.P5 it is reduced to 50 marks so that half of the marks obtained by the candidates were alone taken into consideration. Normally 20 marks was prescribed as the maximum marks for interview, whereas in Ext.P5 it is seen that marks awarded for interview was out of 50. By adopting such a method, according to the petitioner, the weightage of written test was considerably reduced and the management got an advantage to tilt the total marks by giving exorbitant marks in the interview. It is contended that this process would create a situation where the management will be in a position to control and interfere with the selection process by which the marks in the written test may not have much relevance and what transpires in the interview alone matters. Still further, it is contended that it is possible for the management to show favouritism by awarding higher marks to those persons whom they want to appoint.

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Petitioner has also a case that though he was also a candidate to be included in the community quota of Muslims, the 7^th respondent was included under that category. It is contended that the 7^th respondent did not have sufficient marks in the written test and by giving more marks in the interview, favouritism was shown to him. In regard to the 8^th respondent, it is contended that he was not having a Degree in Chemical Engineering and he was only having a Degree in Bio-Technology with Chemical Engineering as a subject. For these reasons, according to the petitioner, the appointment of respondents 7 and 8 was on account of favouritism, mala fides and bias and therefore the petitioner seeks for a direction to quash the steps taken by respondents 2 to 6 for fixing the marks for the written test for the post of Executive Trainee (Chemical) pursuant to Ext.P1 and to fix the marks for the interview at 20 instead of 50 and for a declaration that the interview and appointment made to the said post in the Company is illegal and

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arbitrary. The petitioner seeks a further direction to command respondents 2 to 6 to give appointment to the petitioner and for other consequential reliefs like considering him under the Muslim community quota as well.

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Counter affidavit is filed by the company inter alia admitting the fact that earlier the procedure was to give 100 marks for the written test and 20 marks for the interview. But the change in mark allotment was done with a view to give required weightage to the candidates who are capable to think on his feet and to give due consideration to his inter personal skills. According to the company, the work environment of Executive Trainee (Chemical) is in a unit categorised as a major accident hazardous factory which requires not only knowledge but also quick thinking and capability to adapt to the environment which is duly assessed in the personal interview. They denied the averment of bias or favourtism or mala fides in respect of the selection process. According to them, by reducing the

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marks obtained out of 100 to 50 is to select successful candidates by giving 50-50 weightage for the written examination and interview and to compute the marks obtained accordingly so that the interview has much wider scope in selecting the candidate especially when the idea was to employ them in a major accident hazardous factory wherein they should have the necessary capability to attend such a unit. It is also contended that respondents 7 and 8 were appointed as Executive Trainee on the basis of their total marks obtained in the written examination and interview. In regard to the allegation with reference to the qualification of 8^th respondent it is contended that majority of the subject studied by the B.Tech Bio-Chemical Engineering candidate are one and the same as that of candidates having B.Tech Chemical Engineering. Therefore, the company considered the 8^th respondent for the post after giving due weightage to his performance in interview and written examination. 8^th respondent is appointed to the said

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post under the O.B.C category which is available for Ezhava candidates and the 7^th respondent was appointed to the said post for the reservation available to OBC candidate in the Muslim community quota.

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Respondents 7 and 8 have also filed counter affidavits inter alia supporting the stand taken by the Company. They have also indicated that they have performed well in the interview and also in the written examination and though their marks in the written test was less than that of the petitioner it is on account of the marks they have obtained in the interview that they were selected and they were entitled for the reservation for O.B.C candidates.

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Heard the learned counsel for the petitioner and learned counsel appearing for the respondents.

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One important point that was urged before this

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Court during the course of arguments by the learned counsel for the respondents is that the writ petition challenging the

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selection process is not maintainable as the other six candidates, who had been selected and appointed have not been impleaded as parties to the writ petition. It is also argued that all the selected candidates including respondents 7 and 8 are concerned, their probation had already been completed and they have been appointed to the said post. Under these circumstances, it is argued that the writ petition is to be dismissed mainly on the ground of non-joinder of necessary parties.

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On a perusal of the writ petition, it could be seen that though the selection process had been challenged, the selected candidates who were already given appointment were not made parties to this writ petition. When the selection process itself is challenged mainly on the ground of awarding of marks in the written test and reducing it to an average of 50 and then fixing the maximum of 50 marks for interview, necessarily if an adjudication is required in the matter, it will definitely tilt the rank list prepared by

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respondents 2 to 6. That being the position, it may not be possible for this Court to properly adjudicate the case in the absence of all the affected parties.

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The main contention urged by the learned counsel for the petitioner is that even though the persons selected in the rank list were not made parties, still he is entitled to challenge the selection procedure in view of the fact that he is only challenging the appointment of respondents 7 and 8. I do not think that such a contention could be urged by the petitioner. There cannot be a piecemeal challenge to the select list prepared by the official respondents. When a selection procedure is under challenge, definitely the persons who are affected by the said judgment are to be made parties to the lis.

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Learned counsel for the 8^th respondent has also brought to my notice the judgment of the Supreme Court in K.H.Siraj v. High Court of Kerala and Others [2006(6)

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SCC 395) in which the Supreme Court has held that all

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candidates of the select list should have been impleaded as parties to the writ petition and the defect of not impleading all the candidates could not be cured by publication in newspaper. That also is a case where a procedure under Rule 148 of the High Court Rules was complied with. Still, the Supreme Court formed an opinion that the persons in the select list ought to have been made parties to this lis. Paragraph 75 in the said judgment is relevant in this regard which reads as under:

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“75. The writ petitions have also to fall on the ground of absence of necessary parties in the party array. Though the appellantpetitioner contend that they are only challenging the list to a limited extent, acceptance of their contention will result in a total rearrangement of the select list. The candidates will be displaced from their present ranks, besides some of them may also be out of the select list of 70. It was, therefore, imperative that all the candidates in the select list should have been impleaded

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as parties to the writ petitions as otherwise they will be affected without being heard. Publication in the newspaper does not cure this defect. There are only a specified definite number of candidates who had to be impleaded, namely 70. It is not as if there are a large unspecified number of people to be affected. In such cases, resort cannot be made to Rule 148 of the Kerala High Court Rules. That rule can be applied only when very large number of candidates are involved and it may not be able to pinpoint those candidates with details. In our view, the writ petitions have to fail for non-joinder of necessary parties also.”

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On the other hand learned counsel for petitioner submits that Siraj 's case (Supra) does not apply to the facts of this case and he relies upon the following judgments: i) Government of Andhra Pradesh v. G. Jaya Prasad Rao, [(2007) 11 SCC 528]. Paragraph 28 and 29 is relied upon which reads as under:

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28. An allegation was also made by some of the persons who have been given ad hoc promotion under the scheme of accelerated promotion for not being made parties. However, they were permitted as intervenors. Learned counsel for the intervenors was also heard in the matter. He invited our attention to a decision of this Court in Union of India v. E.S. Soundara Rajan on the question of discrimination and in that case the argument of discrimination among the Railway officials was not upheld. It was also pointed out by learned counsel for the intervenors that the present appeals as well as the original applications filed before the Andhra Pradesh Administrative Tribunal and the High Court should be dismissed on the question of nonjoinder of necessary parties. Mr Varma, learned Senior Counsel for the respondents submitted that since the validity of the Rule has been challenged, therefore the petition before the A.P. Administrative Tribunal or the writ petition before the High Court cannot be dismissed on the ground of non-joinder of

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necessary parties. It was also submitted by him that when the question of validity of the Rules is concerned, it is not necessary to implead all the persons likely to be affected while challenging the validity of the Rules and in support thereof Mr Varma invited our attention to the following decisions of this Court:

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( i ) Makhanlal Waza v. State of J&K ( ii ) GM, South Central Rly. v. A.V.R. Siddhantti ( iii ) A. Janardhana v. Union of India

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29. It is true that when the validity of the rules is challenged it is not necessary to implead all persons who are likely to be affected as party. It is not possible to identify who are likely to be affected and secondly, the question of validity of the rule is a matter which is decided on merit and ultimately, if the rule is held to be valid or invalid, the consequence automatically flows. Therefore, the original applications filed before the Andhra Pradesh Administrative Tribunal or for that matter before the High Court does not suffer from the vice of non-joinder of

W.P.C.No.12121/2011

necessary party.

ii) B.Gopala Iah & Others v. Government of Andhra Pradesh Repd. by Secretary, Education Department, Hyderabad and Another [AIR 1969 AP 204]

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I do not think the above judgments have any application to the facts of the present case. This is not a case challenging any rule. The selection procedure is challenged which if found to be wrong would change the select list itself and cannot be confined to OBC candidates alone. Siraj's case therefore squarely applies to the case on hand.

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According to the learned counsel for the petitioner, he should be given an opportunity to implead all the selected candidates. It can be seen that the selection process had been completed two years back. No doubt, the petitioner had approached this Court immediately after the select list was published. But the fact remains that the

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persons who had already obtained appointment about two years back cannot be displaced on account of making them a party to the lis at this point of time and then disturbing the select list.

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On merits, it is possible for the petitioner to contend that there had been some arbitrariness on the part of the official respondents in conducting the aforesaid selection process especially on account of two glaring instances. In Ext.P1 notification, nothing was stated regarding the marks to be awarded in written test as well as interview and there was no indication regarding reducing the marks of written test to that of 50. There was also no indication that 50 marks will be awarded during the interview. Therefore, the petitioner did not get an opportunity to challenge the notification at that point of time. The petitioner had come to know about these facts only after Ext.P5 was received by him. Therefore the petitioner had the right to challenge. But the fact remains

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that the petitioner opted not to implead the other candidates who are in the select list. The petitioner has impleaded only respondents 7 and 8, who, according to him, was not qualified or not eligible. But still if the selection process is declared to be illegal definitely the entire rank list will have to be changed.

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It may not be doubted that if there is a process evolved by the official respondents under normal circumstances to award only 20 marks for the interview any candidate who applies proceeds on that basis. It is not disputed by the official respondents that only 20 marks was awarded for interview on earlier occasions. Naturally any candidate applying for the post would only proceed on that basis. This procedure had been completely ignored by the company and without any notification, that procedure had been changed. As a result, the candidates were not put to notice regarding the process of interview. It cannot be disputed that it is open for the management to fix the

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manner in which the selection will be done. But the said process is to be notified properly and if the management was following a procedure of awarding only a maximum of 20 marks for interview, definitely they could not have changed it without proper notification. This apparently had resulted in the allegations raised by the petitioner which has some force.

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But the fact remains that in the absence of impleading all the other candidates who are in the select list, it may not be possible for this Court to adjudicate to set aside the select list as well.

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In regard to respondents 7 and 8, they were given higher marks in the interview which apparently tilted the scale in favour of them. This is clear from the rank list prepared by the official respondents. There is reason to doubt the manner in which respondents 7 and 8 had been appointed. But the fact remains that they were appointed in OBC category and this Court will not be in a position to set

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aside their appointments on account of the reasons stated above. In regard to the challenge regarding qualification of the 8^th respondent, if the management is of the opinion that Bio-Chemical is equivalent to Chemical Engineering, as such candidates study all the subjects of Chemical Engineering, I do not think that this Court will be justified in interfering with his appointment. That apart, he has got appointment under OBC Ezhava quota, which cannot be claimed by the petitioner.

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Petitioner has a claim that he should have been considered under OBC Muslim quota and therefore his claim is only against the 7^th respondent who is appointed as OBC Muslim. This claim again is based on the wrong selection procedure and method of giving marks which is applicable to all. That apart to claim OBC quota one has to produce the caste certificate which the petitioner has not produced, other than stating that he was a Muslim. So he was considered under General category.

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In view of the above findings I am inclined to dismiss the writ petition. Accordingly the writ petition is dismissed.

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(sd/-)

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(A.M.SHAFFIQUE, JUDGE)

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jsr

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W.P.C.No.12121/2011 19

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Shameer .S. v. State of Kerala and Others

Case brief

What is this about?

What did the court decide?

Shameer .S. v. State of Kerala and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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