Allowed

P.M.Abdul Rahim, v. Kerala State Womens Development Corporation Kswdc

Kerala HC22 Mar 2022WP(C)/841/2022

Case brief

AI extract

What is this about?

The Kerala High Court held that termination of service without prior notice or departmental enquiry was illegal because the petitioners' appointment, though irregular due to mark manipulation, was not illegal (bis eorum) and they could not be treated as if appointed illegally.

What did the court decide?

Impugned orders of termination and communication directing termination are set aside.

P.M.Abdul Rahim, Vs Kerala State Womens… — Pension and Retirement Benefits | Kerala HC (2022)

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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 V.G.ARUN

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TUESDAY, THE 22^ND DAY OF MARCH 2022 / 1ST CHAITHRA, 1944

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WP(C) NO. 564 OF 2022

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PETITIONER/S:

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MAHESH L. AGED 45 YEARS S/O.SREEKANTAN NAIR, T.C.17/560, CHOTHI, MNRA -90, CHENGALLOOR, POOJAPPURA P.O., THIRUVANANTHAPURAM - 695 012. BY ADVS. M.FATHAHUDEEN JELSON J.EDAMPADAM HARISH GOPINATH M.P.SEETHA(K/648/2008)

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RESPONDENT/S:

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1 STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, WOMEN AND CHILD DEVELOPMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 KERALA STATE WOMEN'S DEVELOPMENT CORPORATION REPRESENTED BY ITS MANAGING DIRECTOR, KSRTC BHAVAN, ATTAKULANGARA P.O., THIRUVANANTHAPURAM - 695 023. 3 THE MANAGING DIRECTOR KERALA STATE WOMEN'S DEVELOPMENT CORPORATION, KSRTC BHAVAN, ATTAKULANGARA P.O., THIRUVANANTHAPURAM - 695 023. 4 CENTER FOR MANAGEMENT DEVELOPMENT REPRESENTED BY ITS DIRECTOR, V.RAMAN PILLAI ROAD, NEAR GOVERNMENT GUEST HOUSE, ELANKOM NAGAR, THYCAUD, THIRUVANANTHAPURAM - 695 014. BY ADVS. LATHA ANAND VISHNU S.ARIKKATTIL DEEPU LAL MOHAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON

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15.03.2022 ALONG WITH WP(C) 842/2022, THE COURT ON 22.03.2022,

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DELIVERED THE FOLLOWING:

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W.P.(C) Nos.564 & 841 of 2022

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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 V.G.ARUN

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TUESDAY, THE 22^ND DAY OF MARCH 2022 / 1ST CHAITHRA, 1944 WP(C) NO. 841 OF 2022

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PETITIONER/S:

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P.M.ABDUL RAHIM, AGED 58 YEARS S/O. AHAMED HAJI, MANAGER, THE KERALA STATE WOMEN'S DEVELOPMENT CORPORATION LTD., REGIONAL OFFICE NIRMAL ARCADE, ERANHIPALAM P.O, KOZHIKODE 673 006, RESIDING AT BITHU RAHMA, KUNNIKKAL, THAMARASSERY P.O, KOZHIKODE , PIN 673 573. BY ADV ABDUL SALIM M.

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RESPONDENT/S:

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1 KERALA STATE WOMENS DEVELOPMENT CORPORATION KSWDC DEPARTMENT OF WOMEN AND CHILDREN, GOVERNMENT OF KERALA, 1ST FLOOR, TRANSPORT BHAVAN, EAST FORT, ATTAKULANGARA P.O, PIN 695 023, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING DIRECTOR.

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2 MANAGING DIRECTOR, THE KERALA STATE WOMEN'S DEVELOPMENT CORPORATION LTD., 1ST FLOOR, TRANSPORT BHAVAN, EAST FORT, ATTAKULANGARA P.O, PIN 695 023, THIRUVANANTHAPURAM.

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3 PRINCIPAL SECRETARY TO GOVERNMENT, SOCIAL JUSTICE, WOMEN AND CHILD DEVELOPMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, 695 001.

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4 THE PRINCIPAL SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001

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5 STATE OF KERALA,

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W.P.(C) Nos.564 & 841 of 2022

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REPRESENTED BY ITS CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001 *6 CENTER FOR MANAGEMENT DEVELOPMENT REPRESENTED BY ITS DIRECTOR, V.RAMAN PILLAI ROAD, NEAR GOVERNMENT GUEST HOUSE, ELANKOM NAGAR, THYCAUD, THIRUVANANTHAPURAM - 695 014. BY ADVS. LATHA ANAND VISHNU S.ARIKKATTIL DEEPU LAL MOHAN

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OTHER PRESENT:

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GP VENUGOPAL V; SR.GP.PREMCHAND R. NAIR

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R6 IMPLEADED AS PER ORDER DATED 22.03.22 IN I.A.NO.1 OF 2022

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.03.2022 ALONG WITH WP(C) 564/2022, THE COURT ON 22.03.2022, DELIVERED THE FOLLOWING:

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W.P.(C) Nos.564 & 841 of 2022

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JUDGMENT

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Dated this the 22^nd day of March, 2022

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The petitioner in W.P.(C) No.564 of 2022 is working as Manager (Recovery) and the petitioner

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in W.P.(C) No.841 of 2022, as Manager in the Kerala State Women's Development Corporation Ltd ('the Corporation'). For the purpose of convenience, the documents are referred to as described in W.P.(C) No.841 of 2022. The facts leading up to the filing of the writ petitions are as under;

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The Corporation had issued Ext.P2

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notification inviting applications for the post of Manager (Projects), Manager (Recovery) and Manager. The petitioners applied for the notified posts and attended a written test conducted by the Centre for Management Development. Thereafter, the petitioners were called for

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W.P.(C) Nos.564 & 841 of 2022

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interview conducted by a selection committee consisting of the Chairperson, Managing Director, Additional Secretary to the Government (Department of Social Justice), one Director and a Subject Expert. Based on their performance in the written test and interview, the petitioners secured first rank for the post of Manager and Manager (Recovery) respectively. After obtaining the Government's approval as per Ext.P5, appointment orders dated 25.02.2016 and 26.02.2016 were issued to the petitioners. Accordingly, the petitioners joined service and continued in their post for more than six years. To their dismay, by Ext.P1 order dated 04.01.2022, the Managing Director of the Corporation terminated the petitioners' service. The alleged reason for termination is an irregularity committed during the course of selection which came to light during the enquiry conducted by a Committee constituted for the

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W.P.(C) Nos.564 & 841 of 2022

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purpose. Based on the Committee's report, the Government had issued Ext.P9 communication dated 22.12.2021, requiring the Managing Director of the Corporation to terminate the petitioners. The writ petitions are filed seeking to quash Ext.P9 communication and Ext.P1 order.

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Heard Senior Advocates N.N.Suganapalan

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and Kurian George Kannanthanam for the

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petitioners, Advocate Vishnu S.Arikkattil for the Corporation, Senior Government Pleader

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V.Venugopal for the State and Adv.Deepu Lal Mohan for the additional 6^th respondent.

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The learned Senior Counsel put forth the following contentions;

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The petitioners have the requisite

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qualification for appointment to the notified posts. They had secured maximum marks based on

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their performance in the written test and

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interview. The interview marks were fixed at 50 and there is no material to show that the total

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W.P.(C) Nos.564 & 841 of 2022

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marks for interview was converted to 10 based on

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any decision of the Board or the selection committee. The conversion of interview marks to 10 and fixing of bench mark at 70% was after the interview and publication of rank list. The

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Corporation had thus committed an illegality by altering the procedure, after commencement of the selection process. The petitioners were appointed

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by the first respondent Corporation after obtaining the Government's approval. There is no material to show that the alleged wrong computation of marks was at the petitioners' instance. In any event, termination of the petitioners being stigmatic, they should have been issued with notice and afforded an opportunity of hearing. No such opportunity was afforded since the order of termination was issued on the dictate of the Government, without independent application of mind by the Managing Director of the Corporation.

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W.P.(C) Nos.564 & 841 of 2022

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Learned Standing Counsel for respondents

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1 and 2 contended that the impugned order

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warrants no interference, since the petitioners had secured appointment through illegal means. The written test for the notified post was held on 27.09.2015 and those candidates, who had secured 40% marks out of 80, were shortlisted and interviewed on 19.01.2016. In the meeting of the Board of Directors held on 11.02.2016, it was resolved to prepare the select list of candidates who had secured more than 70% total marks. Accordingly, the select lists appended to Ext.R2(c) decision was drawn up and forwarded to the Government for approval. By Ext.P5, the Government granted sanction for effecting appointment from the list. As a matter of fact, the rank list placed before the Board of Directors was prepared on the basis of distorted scores. The total score was arrived at by adding the score of the written test with the aggregate

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W.P.(C) Nos.564 & 841 of 2022

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of the scores given by each member of the interview board out of 10, instead of adding the

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average score out of 10. Thus, for the purpose of arriving at the percentage of marks from out of 90, the interview marks from out of 50 was

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reckoned. It is based on such manipulated score sheet that the petitioners were shown to have secured 77% and 72% respectively. The actual marks scored by the petitioners are 40.3/90 (44.8% ) and 40/90 (44%) only. This manipulation

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was unearthed during the enquiry conducted by the Special Team constituted as per Ext.R3(g) order.

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As the anomalies in the selection process had been noticed by the financial inspection wing of the Government of Kerala way back in 2017 itself,

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the probation of the petitioners was never declared. The petitioners were therefore fully aware of the enquiry and possibility of further action. The categorical findings of the enquiry

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committee at Ext.R3(i) had prompted the

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W.P.(C) Nos.564 & 841 of 2022

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Government to direct termination of the petitioners. As the petitioners had entered service through illegal means, prior notice is not necessary and even otherwise, the manipulation of marks being undisputed, issuance of notice and subsequent enquiry would be a futile exercise. The principles of natural justice need not be complied with in such circumstances. Reliance is placed on the decision

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in Asok Kumar Sonkar v Union of India and others

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[(2007) 4 SCC 54] to buttress the contention that a court of law would not insist on compliance of useless formality, if the result would remain the same even thereafter.

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The learned Government Pleader adopted

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the arguments of the Standing Counsel and contended that issuance of notice before termination would have served no purpose since the manipulation of marks cannot be explained or

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W.P.(C) Nos.564 & 841 of 2022

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wished away.

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From the arguments advanced, the

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following undisputed facts emerge; The

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petitioners have the requisite qualification and had secured maximum marks based on their performance in the written test and interview. In the interview, each member had given marks out of 10, totaling 50 marks. The total marks was later converted to 10. There is no material on record to show that, either the Board of Directors or the Selection Committee had taken a decision to

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convert the interview marks to 10. Later, by decision dated 11.02.2016, the Board decided to prepare the select list of candidates who had secured total marks above 70%. While computing the 70% of 90 (80+10) marks, the interview marks of the candidates out of 50, instead of 10, was

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reckoned. Such computation had resulted in the petitioners securing more than 70% marks. Had the interview marks out of 10 been taken, their

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W.P.(C) Nos.564 & 841 of 2022

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percentage will be less than 70%. Hence, there occurred an irregularity in the selection process. But, as contended by the Senior Counsel, the same methodology was adopted in the case of all candidates and hence, the petitioners did not gain any undue advantage over the others. Moreover, it was the Managing Committee that had finalised the process of selection and published the rank list, which in turn was approved by the Government. There is absolutely no material to show that the alleged irregularity was at the instance of the petitioners. In such circumstances, it is to be considered whether the service of the petitioners could have been terminated by reason of such irregularity alone.

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In this regard, it is pertinent to note the 'clear distinction' between an 'illegal appointment' and an 'irregular appointment'. An 'illegal appointment' occurs when the provisions of Articles 14 and 16 of the Constitution of

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W.P.(C) Nos.564 & 841 of 2022

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India and statutory rules are not complied with. In such cases, the question of exercising equity

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jurisdiction or granting relief based on misplaced sympathy does not arise. On the other hand, an 'irregular appointment' is one which is done in accordance with the selection procedure, but suffering from want of compliance of one of the elements in the process of selection which does not go to the root of the process. An irregular appointment can be regularised, whereas an illegal appointment cannot be. (see Satya

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Prakash and others v. State of Bihar and others [(2010) 4 SCC 179] ). In Asok Kumar Sonkar, the appellant was found to have been appointed illegally, as he had not acquired the requisite qualification on the date of submission of application. In that context, the Apex Court held as under;

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“It is not a case where appointment was irregular. If an appointment is irregular,

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W.P.(C) Nos.564 & 841 of 2022

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the same can be reguarlised. The court may not take serious note of an irregularity within the meaning of the provisions of the Act. But if an appointment is illegal, it is non est in the eye of law, which renders the appointment to be a nullity.”

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petitioners are concerned, there is no iota of doubt that the appointments are irregular and not

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illegal. Being so, the termination of the petitioners' service after six years of their appointment, that too without prior notice, affording opportunity to submit explanation and

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without conducting a departmental enquiry, is patently illegal and unsustainable.

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For the aforementioned reasons, the writ

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petitions are allowed and the impugned orders are set aside.

Sd/-

V.G.ARUN JUDGE

Scl/

W.P.(C) Nos.564 & 841 of 2022

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APPENDIX OF WP(C) 564/2022

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PETITIO Exhibit	NER EXHIB P1	ITS TRUE COPY OF THE NOTIFICATION ISSUED BY THE 3RD RESPONDENT, INVITING APPLICATIONS.
Exhibit	P2	TRUE COPY OF THE LETTER DATED 25/02/2016, OF THE SECRETARY TO GOVT.
Exhibit	P3	TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER.
Exhibit	P4	TRUE COPY OF THE GOVERNMENT LETTER, ISSUED BY THE 1ST RESPONDENT.
Exhibit	P5	TRUE COPY OF THE PROCEEDINGS DATED 04/01/2022, ISSUED BY THE 3RD RESPONDENT.
RESPOND	ENT EXHIB	ITS
Exhibit	R3(a)	TRUE COPY OF THE RELEVANT PAGE OF THE BOARD DECISION DATED 30/10/2014.
Exhibit	R3(b)	TRUE COPY OF THE LETTER DATED 21/11/2014 ISSUED BY THE 3RD RESPONDENT.
Exhibit	R3(c)	TRUE COPY OF THE RELEVANT PAGE OF THE BOARD DECISION DATED 11/02/2016 AND THE SCORE/RANK LISTS OF THE POSTS OF MANAGER (RECOVERY), MANAGER, AND MANAGER (PROJECTS).
Exhibit	R3(d)	TRUE COPY OF THE LETTER DATED 25/02/2016 ISSUED BY THE GOVERNMENT.
Exhibit	R3(e)	TRUE COPY OF THE TABULATION OF SCORE OF INTERVIEW FOR THE POST OF MANAGER (RECOVERY).
Exhibit	R3(f)	TRUE COPY OF THE FINAL REPORT SUBMITTED BY THE FINANCIAL INSPECTION WING.
Exhibit	R3(g)	TRUE COPY OF THE GOVERNMENT ORDER G.O. (RT) NO.221/2019/SJD DATED 24/04/2019.
Exhibit	R3(h)	TRUE COPY OF THE LETTER FORM THE GOVERNMENT DATED 29/04/2019.
Exhibit	R3(i)	TRUE COPY OF THE REMINDER LETTER DATED 04/10/2021 ISSUED BY THE 3RD RESPONDENT.

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W.P.(C) Nos.564 & 841 of 2022

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Exhibit R3(j)	TRUE COPY OF MEMBER COMMIT	THE TEE.	FINDINGS OF THE 3
Exhibit R3(k)	TRUE COPY OF 15/09/2020 IS RESPONDENT.	THE SUED	LETTER DATED BY THE 3RD
Exhibit R3(i)	TRUE COPY OF 06/01/2022.	THE	EMAIL DATED
Exhibit R3(m)	TRUE COPY OF 06/01/2022.	THE	EMAIL DATED

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W.P.(C) Nos.564 & 841 of 2022

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APPENDIX OF WP(C) 841/2022

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PETITIO Exhibit	NER P1	EXHIBITS THE PHOTOCOPY OF THE ORDER NO.KSWDC/EA1/1173/16 DATED 04.-01.2022 ISSUED BY THE 2ND RESPONDENT MANAGING DIRECTOR.
Exhibit	P2	TRUE COPY OF THE NOTIFICATION PUBLISHED BY THE MANGING DIRECTOR, INVITING APPLICATION.
Exhibit	P3	TRUE COPY OF THE MEMO DATED 11.09.2015 ISSUED TO THE PETITIONER FOR ATTENDING THE WRITTEN TEST.
Exhibit	P4	TRUE COPY OF THE MEMO DATED 01.01.2016 ISSUED TO THE PETITIONER FOR ATTENDING THE INTERVIEW.
Exhibit	P5	TRUE COPY OF THE LETTER NO. 1948/B3/2016/SJD DATED 25.02.2016 ISSUED TO THE MANAGING DIRECTOR.
Exhibit	P6	TRUE COPY OF THE ORDER NO.KSWDC/EA1/MGR/7623/2016/1173 DATED ON 26.02.2016 ISSUED BY THE MANAGING DIRECTOR.
Exhibit	P7	TRUE COPY OF THE ORDER NO. KSWDC/EA1/MGR/7623/2016/144 DATED 0N 03.03.2016 PERMITTING THE PETITIONER TO JOIN THE SERVICE AS MANAGER ISSUED BY THE MANGING DIRECTOR.
Exhibit	P8	TRUE COPY OF THE CERTIFICATE DATED 24.12.2020 ISSUED BY THE MANAGING DIRECTOR.
Exhibit	P9	TRUE COPY OF THE PHOTOCOPY OF THE COMMUNICATION NO. W.C.D.D. B3/21/2021 W.C.D.D. DATED 22.12.2021 ISSUED BY THE PRINCIPAL SECRETARY OF THE WOMEN AND CHILD DEVELOPMENT DEPARTMENT.
RESPOND	ENT	EXHIBITS
Exhibit	R1	a TRUE COPY OF THE RELEVANT PAGE OF THE BOARD DECISION DATED 30.10.2014
Exhibit	R1	b TRUE COPY OF THE LETTER DATED 21.11.2014 ISSUED BY THE 3RD RESPONDENT

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W.P.(C) Nos.564 & 841 of 2022

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Exhibit	R2 c	TRUE	COPY OF THE	RELEVENT PAGE OF
		BOARD SCORE MANAG AND M	DEVISION DA /RANK LISTS ER (RECOVERY ANAGER )PROJ	TED 11.2.2016 AND THE OF THE POSTS F ), MANAGER MANAGER, ECTS)
Exhibit	R2 e	TRUE	COPY OF EAMI	L DATED 22.12.2020
Exhibit	R2 f	TRUE FINAL FINAN	COPY OF THE REPORT SUBM CIAL INSPECT	RELEVANT PAGES OF THE ITTED BY THE ION WING
Exhibit	R2 g	TRUUE 221/2	COPY OF THE 019 SJID DAT	GOVERNMENT (RT) NO ED 24.04.2019
Exhibit	R2 h	TRUE GOVER	COPY OF THE NMENT DATED	LETTER FROM THE 29.4.2019
Exhibit	R2 i	TRUE 4.10.	COPY OF REMI 2021 ISSUED	NDER LETTER DATED BY THE 3RD RESPONDENT
Exhibit	R2 j	TRUE MEMBE	COPY OF THE R COMMITTEEq	FINDINGS OF THE 3
Exhibit	R2 k	TRUE 19.4.	COPY OF THE 2021	PROCEEDINGS DATED

P.M.Abdul Rahim, v. Kerala State Womens Development Corporation Kswdc

Case brief

What is this about?

What did the court decide?

P.M.Abdul Rahim, v. Kerala State Womens Development Corporation Kswdc

Case brief

What is this about?

What did the court decide?

What the court decided

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