Nisha A.B vs State Of Kerala
2021 Latest Caselaw 2865 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                     PRESENT

               THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

    WEDNESDAY, THE 27TH DAY OF JANUARY 2021 / 7TH MAGHA, 1942

                          WP(C).No.21794 OF 2020(Y)


PETITIONER:

               NISHA A.B
               AGED 43 YEARS
               W/O. ASHOK KUMAR T.V., RESIDING AT 2B, ASSET CHIRAAG,
               VIYYUR, THRISSUR-680010.

               BY ADVS.
               SRI.P.RAMAKRISHNAN
               SMT.PREETHI RAMAKRISHNAN (P-212)
               SRI.T.C.KRISHNA
               SRI.C.ANIL KUMAR
               SMT.ASHA K.SHENOY
               SRI.PRATAP ABRAHAM VARGHESE

RESPONDENTS:

      1        STATE OF KERALA
               REPRESENTED BY ITS SECRETARY, DEPARTMENT OF TAXES,
               MINISTRY OF FINANCE, GOVERNMENT SECRETARIAT,
               THIRUVANANTHAPURAM-695001.

      2        KERALA STATE FINANCIAL ENTERPRISES LIMITED,
               CORPORATE OFFICE, BHADRATHA, THRISSUR-680020,
               REPRESENTED BY ITS MANAGING DIRECTOR.

               R2   BY   ADV.   SRI.M.GOPIKRISHNAN NAMBIAR
               R2   BY   ADV.   SRI.K.JOHN MATHAI
               R2   BY   ADV.   SRI.JOSON MANAVALAN
               R2   BY   ADV.   SRI.KURYAN THOMAS
               R2   BY   ADV.   SRI.PAULOSE C. ABRAHAM
               R2   BY   ADV.   SRI.RAJA KANNAN


               GI BIJOY CHANDRAN

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-01-
2021, THE COURT ON 27-01-2021 DELIVERED THE FOLLOWING:
 WP(C).No.21794 OF 2020(Y)

                                       2



                           ANU SIVARAMAN, J.

= = = = = = = = = = = = = = W.P.(C).No.21794 of 2020 = = = = = = = = = = = = = = = Dated this the 27th day of January, 2021

This writ petition is filed seeking the following reliefs:

i) A writ of certiorari or any other appropriate writ or order quashing and setting aside Exhibits P6 and P8,

ii) A writ of mandamus or any other appropriate writ or order directing the respondents to consider the petitioner for promotion to the post of Deputy General Manager (IT).

iii) Direct 2nd respondent to consider Exhibit P4 representation and to reinstate the petitioner in the specialized AGM (IT) post.

2. Heard the learned counsel for the petitioner and the learned

Government Pleader as well as the learned Standing Counsel

appearing for the 2nd respondent.

3. It is submitted by the learned counsel for the petitioner that

the petitioner was appointed as Assistant General Manager (IT)

('AGM' for short) in the 2nd respondent on 02.12.2009. It is stated

that by Ext.P7 dated 23.06.2018, the Government had accepted a

proposal for organisational restructuring in the 2nd respondent and

a new post of Deputy General Manager (IT) ('DGM' for short) was WP(C).No.21794 OF 2020(Y)

created. It is contended that prior to Ext.P7, a decision had been

taken by the Board of Directors that the newly created post of DGM

(IT) would be filled up by giving preference to in-house personnel

who have adequate domain knowledge and technical qualification

(B.Tech/MCA). It was further decided to recruit two experienced

persons from outside for hardware and network management in the

cadre of Officer Grade II.

4. The learned counsel for the petitioner submits that the

petitioner had MCA qualification and was functioning as the Head of

the IT Department in the 2nd respondent. It is submitted that there

was never any complaint of lack of expertise or competence on the

part of the petitioner. While so, it is submitted that Ext.P8 order was

issued by the Government changing the method of appointment to

the post of DGM (IT) as direct recruitment alone and prescribing

qualifications of B.Tech and BE for such appointment. It is

contended that on further enquiries, the petitioner was told that a

decision had been taken by the Board of Directors of the 2 nd

respondent to modify the method of appointment to the post of

DGM (IT) and the qualifications were also provided. It is contended WP(C).No.21794 OF 2020(Y)

that it was only to eliminate the petitioner from the field of choice

that the qualifications and the method of appointment have been

modified. It is further contended that in the absence of any

allegation of any short coming in the petitioner's service as Head of

the IT Department, the change of the qualification and method of

appointment to eliminate the petitioner's chance of appointment is

per se illegal and unsustainable.

5. A counter affidavit has been placed on record by the 2 nd

respondent. It is contended that it was by Ext.P1, that the new cadre

of AGM was created in the company and the qualifications for the

post of AGM (IT) was B.Tech Computer Science/Information

Technology or MCA or its equivalent in Information Technology

from a recognized University, with not less than five years post

qualification experience in supervisory/managerial position

handling IT related activities of a Government/reputed company or

Institution. It is submitted that by Ext.P2 appointment order, the

petitioner had been specifically informed that she was liable to be

transferred to any of the offices of the establishment to carry out

the duties allotted to her. It is stated that the Board of Directors in WP(C).No.21794 OF 2020(Y)

its 536th meeting held on 27.05.2020, noted that the expertise and

skill currently available in the IT Department was not adequate to

manage and lead the digital transformation proposed to be

undertaken by the company and therefore, the Board resolved by

Ext.R2(a) resolution to modify the selection procedure. It is stated

that the said modification and the proposal were forwarded to the

Government and the Government gave sanction for such

modification. It is stated that Ext.P7 Government order stands

superseded by Ext.P8. All the allegations of mala fides are denied and

it is contended that the fixing of qualifications and method of

appointment are the prerogative of the employer and in the

absence of any established mala fides, this Court would not be

justified in interfering with such fixation of qualifications or

method of appointment. It is contended that the newly created post

of DGM (IT) is intended to be a pivotal post in the digitalisation

process and that the Board of Directors of the 2 nd respondent found

that the appointment of a duly qualified and experienced person

was necessary for a proper functioning of the said post as intended

by the company.

WP(C).No.21794 OF 2020(Y)

6. The learned Government Pleader also supports the

contentions of the learned counsel for the 2 nd respondent. It is

contended that there is no error of jurisdiction in the issuance of

Ext.P8 order, since the Government had acted upon the

recommendations of the Board of Directors of the company which is

the authority to consider the question of adequacy of qualification

and method of appointment to posts under the establishment. It is

submitted that the petitioner has only raised vague allegations of

mala fides and since the petitioner has no vested right for

appointment to the post of DGM (IT), the contentions cannot be

accepted.

7. The learned Standing Counsel for the 2nd respondent places

reliance on decisions of the Apex Court in Maharashtra Public

Service Commission v. Sandeep Shriram Warade and Others [AIR

2019 SC 2154], J. Rangaswamy v. Government of Andhra Pradesh and

Others [1990 (1) SCC 288], Nagaland Public Service Commission v.

State of Nagaland and Others [2017 (13) SCC 498] and Chief Manager,

Punjab National Bank and Another v. Anit Kumar Das [2020 SCC

online SC 897].

WP(C).No.21794 OF 2020(Y)

8. I have considered the contentions advanced on all sides. The

post of DGM (IT) was created by Ext.P7 Government order which did

not specify the method of appointment or the qualifications for the

post. It appears that the Board of Directors had initially decided that

if persons with adequate qualifications and expertise are available

in the establishment itself, they should be given preference for

appointment to the newly created posts. Though no resolution of

the Board of Directors is produced by the petitioner, the contention

that such a decision had been taken by the Board of Directors is not

denied by the respondents. Even so, it appears that in May 2020, the

specific issue with regard to how the newly created posts should be

filled up, was considered by the Board of Directors of the 2 nd

respondent. Though the learned counsel for the petitioner would

contend that the issue was taken out of agenda, from a reading of

Ext.R2(a) it is clear that the matter was considered by the Board of

Directors and a decision was taken to alter the method of

appointment and the qualifications prescribed for the post of DGM

(IT). The contention of the petitioner appears to be that the

qualification was changed specifically to make the petitioner

ineligible for appointment as DGM (IT). However, I find that the WP(C).No.21794 OF 2020(Y)

change in qualification is not only with respect to the educational

qualification. The qualifications with regard to experience have also

been enhanced by the respondent and the attempt apparently is to

find a well qualified and experienced person to man the post of DGM

(IT). The contention raised by the petitioner that she had been

transferred as AGM to make her ineligible to apply for the post of

DGM (IT), also cannot be accepted since it is not in dispute before

me that the petitioner does not have the qualification as provided in

Ext.P8 for appointment to the post of DGM (IT). In the light of the

judgments of the Apex Court which lay down that it is for the

employer to decide on the questions of qualifications and method of

appointment to posts under them, in the best interests of the

orgainisation, I am of the opinion that this Court would not be

justified in interfering with Ext.P8 order.

The writ petition fails and the same is, accordingly, dismissed.

Sd/-

ANU SIVARAMAN JUDGE

SVP WP(C).No.21794 OF 2020(Y)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF G.O.(MS)NO.95/08/TD DATED 8.5.2008.

EXHIBIT P2 TRUE COPY OF APPOINTMENT LETTER DATED 2.12.2009 ISSUED TO THE PETITIONER.

EXHIBIT P3 TRUE COPY OF TRANSFER ORDER ALONG WITH THE RELIEVING LETTER ISSUED TO THE PETITIONER.

EXHIBIT P4 TRUE COPY OF REPRESENTATION DATED 16.7.2020 SUBMITTED BY THE PETITIONER BEFORE THE CHAIRMAN, K.S.F.E.

EXHIBIT P5 TRUE COPY OF LETTER DATED 16.7.2020 FROM THE 2ND RESPONDENT TO THE PETITIONER.

EXHIBIT P6 TRUE COPY OF ADVERTISEMENT PUBLISHED IN MALAYALA MANORAMA DAILY ON 30.9.2020.

EXHIBIT P7 TRUE COPY OF GOVERNMENT ORDER GO(MS)47/2018/TAXES DATED 23.6.2018 ALONG WITH TYPED COPY

EXHIBIT P8 TRUE COPY OF GOVERNMENT ORDER GO (MS) 72/2020/TAXES DATED 15.9.2020.

RESPONDENT'S/S EXHIBITS:

EXHIBIT R2(a) A TRUE COPY OF THE 536TH MEETING OF THE BOAD OF DIRECTORS DATED 27/5/2020

EXHIBIT R2(b) A TRUE COPY OF THE MINUTES OF 420TH MEETING OF THE BOARD OF DIRECTORS HELD ON 16/2/2011