The Kerala High Court has ruled that an illegal appointment will not get legitimised or sanctified by efflux of time.
The Justice V.G. Arun while annulling the appointment of General Manager of Kochi Metro emphasised that hard cases cannot be allowed to make bad law.
Brief Facts of the Case and Submissions
The writ petition has been filed by the person who came second in the interview. He has presented challenge to the appointment by KMRL on the ground that the concerned person (respondent no. 6 herein) didn't meet the age criteria required in the notification.
He drew Court's attention to the fact that in challenge to the appointment in previos writ on the ground of non-possession of eduactional qualification requirement by the respondent no. 6, the Interview Committee was directed to review the credentials and experience of the selected candidate through an exercise of due diligence, particularly with respect to the certificate of experience produced by that candidate. The selection was accordingly cancelled.
The news about the irregularity in the selection process and interference by the Court, strengthened his suspicion of foul play in the selection process which prompted him to file for an RTI report. The information so received revealed that respondent no. 6 had not attained the notified minimum age of 45 years as on 01.09.2020, his date of birth being 19.09.1975.
Previously, during the selection as well, he sensed something amiss from the bearing and demeanour of some of the members in the Interview Committee.
His Counsel has submitted that the 6th respondent having not attained the minimum age prescribed, acceptance of application, shortlisting of his name and selection are ex facie illegal. The the Scrutiny Committee suggested his name for the interview despite him not fulfilling a required criteria. The folly was repeated by the Interview Committee as not only is the decision to interview the 6 th respondent illegal, but also reeks of mala files, evidenced by the huge difference in marks awarded to the 6th respondent and the other candidates, he contended.
Accusing the Committee of favouritism, he averred that KMRL being a public authority falling within the definition of 'State' under Article 12 of the Constitution of India, the officers of the first respondent cannot dole out favours to persons of their choice. Reliance was placed on Shankar K. Mandal & Ors Vs. State of Bihar & Ors, 2003 Latest Caselaw 239 SC to further argue that when the cut off date is stated in the notification, candidates should satisfy the prescribed qualification relating to age with reference to the notified date.
Learned Senior Counsel for respondent no. 6 refuted the allegation of favoritism and contended that the writ petition is liable to be rejected on the ground of delay. He submitted that the petitioner has no locus standi as he failed to obtain required marks in the interview. He placed reliance on Dr.Umakant Saran v. State of Bihar and others to submit that only a person having legal right can be termed as an aggrieved person entitled to challenge the selection of the appointed candidate.
He averred that non attainment of the minimum notified age is of no avail as suitability being the prime consideration, minor deviation in qualification with reference to age is not substantial enough to render the selection irregular.
Stating that Court will not be justified in interfering with the selection and appointment, in exercise of the power of judicial review, he contended that his client outperformed every other candidate to secure his place as confirmed the Committee.
High Court's Analysis
The Court was presented with the question as to whether the Committees are bestowed with the power to alter the qualifications after the selection process has commenced?
It mentioned Ashok Kumar Sharma & Ors Vs. Chander Shekhar & ANR, 1997 Latest Caselaw 234 SC to note that when prescription regarding age is stipulated in the notification, qualification based on age can only be in accordance with such stipulation.
In this view, the Court observed that the irrefragable position is that the Scrutiny and Interview Committees had no authority to deviate from the notified qualification with respect to the minimum age of a candidate, whether it be for nineteen days or one day.
Noting that the shady selection of respondent no. 6 casts a cloud of suspicion over the selection process, the Court cited Secretary, State of Karnataka & Ors Vs. Umadevi & Ors , 2006 Latest Caselaw 193 SC to state that being a public body, the action of KMRL has to be transparent and above suspicion.
Having found the appointment of the 6th respondent to be illegal, this Court cannot shirk away from its responsibility by reason of delay in challenging the appointment, it remarked rejecting contention that petitioner has no locus standi.
The writ was thus allowed.
Case Title: SURESH GEORGE vs KOCHI METRO RAIL LTD.
Case Details: WP(C) NO. 13351 OF 2021
Coram: Justice V.G. Arun
Read Judgement Here:
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