Suresh George vs Kochi Metro Rail Ltd. - Kmrl
2022 Latest Caselaw 4496 Ker

                   IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                     PRESENT
                      THE HONOURABLE MR.JUSTICE V.G.ARUN
   TUESDAY, THE 19TH DAY OF APRIL 2022 / 29TH CHAITHRA, 1944
                              WP(C) NO. 13351 OF 2021
PETITIONER/S:

                  SURESH GEORGE
                  AGED 50 YEARS
                  S/O.GEORGE P. KORUTHU, FLATT NO.6B, PHASE III,
                  SILVERLAWNS APARTMENTS, MAROTTECHODU, EDAPPALLY,
                  COCHIN 682 024, KERALA
                  BY ADV JOHN NELLIMALA SARAI

RESPONDENT/S:

       1          KOCHI METRO RAIL LTD. - KMRL
                  4TH FLOOR, JLN METRO STATION, KALOOR, KOCHI PIN 682
                  017 REP. BY ITS MANAGING DIRECTOR
       2          DIRECTOR (FINANCE)
                  KOCHI METRO RAIL LIMITED, 4TH FLOOR, JLN METRO
                  STATION, KALOOR, KOCHI PIN 682 017
       3          CHIEF GENERAL MANAGER (HR, ADMN & TRG)
                  KOCHI METRO RAIL LIMITED, 4TH FLOOR, JLN METRO
                  STATION, KALOOR, KOCHI PIN 682 017
       4          MANAGER (HR)
                  KOCHI METRO RAIL LIMITED, 4TH FLOOR, JLN METRO
                  STATION, KALOOR, KOCHI PIN 682 017
       5          STATE OF KERALA
                  REP. BY ITS PRINCIPAL SECRETARY (TRANSPORT)
                  SECRETARIAT, TRIVANDRUM 695 001
       6          NIREESH CHAKKUMKULANGARA
                  GENERAL MANAGER (MARKETING ALTERNATE REVENUE AND
                  CORPORATE COMMUNICATIONS), KOCHI METRO RAIL LIMITED,
                  4TH FLOOR, JLN METRO STATION, KALOOR, KOCHI PIN 682
                  017
                  BY ADVS.
                  K.JAJU BABU (SR.)
                  K.A.ABDUL SALAM
                  SMT.M.U.VIJAYALAKSHMI, SC, KOCHI METRO RAIL LTD.
                  SUNIL V.MOHAMMED
                  K.A.THANU MOL
                  MANOJ N.

OTHER PRESENT:
          GP VENUGOPAL V.

THIS       WRIT    PETITION    (CIVIL)   HAVING   BEEN   FINALLY   HERAD   ON

21.01.2022, THE COURT ON 19.04.2022 DELIVERED THE FOLLOWING:
 W.P.(C) No.13351 of 2021

                                    -2-



                              JUDGMENT

Dated this the 19th day of April, 2022

The challenge in this writ petition is

against the selection and appointment of the 6th

respondent as General Manager (Marketing,

Alternate Revenue and Corporate Communications)

of the first respondent, Kochi Metro Rail

Limited. The essential facts are as under;

The first respondent had published Ext.P1

advertisement dated 23.09.2020, inviting

applications for appointment to various key

positions, including that of General Manager

(Marketing, Alternate Revenue and Corporate

Communications). Ext.P2 is the copy of the

notification published in the official website of

the first respondent. Relevant portion of the

notification is extracted hereunder for easy

reference;

 W.P.(C) No.13351 of 2021




  Name of the post         General     Manager        (Marketing,
                           Alternate   Revenue    &     Corporate
                           Communications)
  Total       no.      of One
  Posts
  Grade                    E8, Rs.120000-280000(IDA)
  Educational              Graduate in Any discipline with
  Qualification            Masters/post               Graduate
                           degree/diploma in business

administration with specialization as marketing from a recognized university/institute of repute. Experience Minimum 20 years Post qualification experience in the area of marketing including formulation and implementation of Marketing strategy, Market planning, identification of alternate revenue opportunities, property development, client handling, space selling, Institutional marketing, PPP projects structuring, market research studies, marketing campaigns, promotional events, Public Relations etc. Job Description The candidate shall be responsible for all the Marketing, Alternate Revenue activities & also the Corporate communication activities of the company Minimum & Maximum Minimum age 45 & Maximum age 55 Age Limit(as on Years 1st September 2020)

2. The petitioner responded to the

notification by submitting Ext.P3 application. As

the petitioner had the requisite qualification, W.P.(C) No.13351 of 2021

experience and satisfied the age criterion, he

was issued with Ext.P4 call letter for attending

the interview scheduled on 02.12.2020.

Accordingly, the petitioner appeared for the

interview and found that, including himself, only

four persons had been shortlisted. According to

the petitioner, he had performed exceptionally

well in the interview, but sensed something amiss

from the bearing and demeanour of some of the

members in the Interview Committee.

3. While so, appointment to the post of

General Manager (HR, Admn and Trg), notified

under Ext. P1 itself; was subjected to challenge

in WP(C) No.28857 of 2020. The challenge therein

was on the premise that the selected candidate

did not have the notified educational

qualification and experience. The challenge was

upheld by Ext.P9 judgment and the Interview

Committee was directed to review the credentials

and experience of the selected candidate through W.P.(C) No.13351 of 2021

an exercise of due diligence, particularly with

respect to the certificate of experience produced

by that candidate. Accordingly, the review was

conducted, resulting in Ext.P10 Minutes,

cancelling the selection to the post of General

Manager (HR, Admn and Trg).

4. The news about the irregularity in the

selection process and interference by this Court,

strengthened the petitioner's suspicion of foul

play in the selection conducted to the post of

General Manager (Marketing, Alternate Revenue and

Corporate Communications). Thereupon, the

petitioner gathered details about the 6th

respondent under the Right to Information Act,

which revealed the startling fact that the 6th

respondent had not attained the notified minimum

age of 45 years as on 01.09.2020, his date of

birth being 19.09.1975. Hence the writ petition.

5. Heard Adv. John Nellimala Sarai for the

petitioner, Senior Counsel K.Jaju Babu for the W.P.(C) No.13351 of 2021

first respondent and Adv.K.A.Abdul Salam for the

6th respondent.

6. Learned Counsel for the petitioner

contended that the 6th respondent having not

attained the minimum age prescribed, acceptance

of application, shortlisting of his name and

selection are ex facie illegal. Attention is

drawn to Ext.R1(c) proceedings of the Scrutiny

Committee to point out that, even after noticing

that the 6th respondent did not satisfy the

requirement of minimum age, his name was

recommended for interview. The folly was repeated

by the Interview Committee, as revealed from Ext.

R1(b). Not only is the decision to interview the

6th respondent illegal, but also reeks of mala

files, evidenced by the huge difference in marks

awarded to the 6th respondent and the other

candidates. It is contended that, being a public

authority falling within the definition of W.P.(C) No.13351 of 2021

'State' under Article 12 of the Constitution of

India, the officers of the first respondent

cannot dole out favours to persons of their

choice. Relying on the decision in Shankar

K.Mandal v. State of Bihar [(2003) 9 SCC 519], it

is argued 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.

7. Learned Senior Counsel refuted the

allegation of favoritism and contended that the

writ petition is liable to be rejected on the

ground of delay, the 6th respondent having been

selected to the notified post on 17.12.2020,

while the writ petition is filed only on

02.07.2021. It is argued that, having failed to

secure the requisite marks, the petitioner has no

legal right to challenge the 6th respondent's

appointment. Only a person having legal right can W.P.(C) No.13351 of 2021

be termed as an aggrieved person entitled to

challenge the selection of the appointed

candidate. To bolster this contention, reliance

is placed on the decision in Dr.Umakant Saran v.

State of Bihar and others [1973 KHC 471]. It is

submitted that, even though the 6th respondent had

not completed 45 years as on 01.09.2020, he had

crossed the prescribed minimum age as on the date

of notification, date of submission of

application and the last date prescribed for

submission of application. As such, non-

attainment of the minimum notified age is of no

avail. Even otherwise, suitability being the

prime consideration, minor deviation in

qualification with reference to age is not

substantial enough to render the selection

irregular. It is submitted that the Interview

Committee consisting of the Managing Director,

three functional Directors of the Company and an W.P.(C) No.13351 of 2021

external expert, had unanimously selected the 6th

respondent based on his performance and

experience. The selection committee had decided

to relax the minimum age criteria by 19 days

keeping in view the organisation's best interest.

8. Learned Counsel for the 6th respondent

submitted that his client had outperformed the

other candidates and the Committee found him to

be the best suited person with relevant

experience and required skill set. As such, this

Court will not be justified in interfering with

the selection and appointment, in exercise of the

power of judicial review. It is submitted that

the 6th respondent has accepted the appointment

after resigning another high profile post, and

hence, interference with his appointment at this

point of time will cause substantial prejudice.

9. Indubitably, the 6th respondent did not

satisfy the minimum age criteria. After taking

note of this fact, the Scrutiny Committee W.P.(C) No.13351 of 2021

recommended his name and the Interview Committee

selected him, finding the 6th respondent to have

broadly complied with the conditions. The

question is whether the Committees are bestowed

with the power to alter the qualifications after

the selection process has commenced. As held in

Shankar K.Mandal, when prescription regarding age

is stipulated in the notification, qualification

based on age can only be in accordance with such

stipulation. In this context, the following

observation of the Apex Court in Ashok Kumar

Sharma v. Chander Shekhar and another [(1997) 4

SCC 18] assumes relevance;

"The proposition that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone, is a well-established one. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or W.P.(C) No.13351 of 2021

notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it. One reason behind this proposition is that if it were known that persons who obtained the qualifications after the prescribed date but before the date of interview would be allowed to appear for the interview, other similarly placed persons could also have applied. Just because some of the persons had applied notwithstanding that they had not acquired the prescribed qualifications by the prescribed date, they could not have been treated on a preferential basis. Their applications ought to have been rejected at the inception itself. This proposition is indisputable and in fact was not doubted or disputed in the majority judgment. This is also the proposition affirmed in Rekha Chaturvedi v. University of Rajasthan [1993 Supp (3) SCC 168 : 1993 SCC (L&S) 951 : (1993) 25 ATC 234].

The reasoning in the majority opinion that by allowing the 33 respondents to appear for the interview, the recruiting authority was able to get the best talent available and that such course was in furtherance of public interest is, with respect, an impermissible justification. It is, in our considered W.P.(C) No.13351 of 2021

opinion, a clear error of law and an error apparent on the face of the record."

Therefore, 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.

10. As rightly pointed out by the learned

Counsel for the petitioner, the very fact that

the 6th respondent submitted his application

knowing fully well that he did not satisfy the

criterion regarding age, coupled with the act of

the Scrutiny Committee in recommending his name

and that of the Interview Committee in finding

him to be the most suitable candidate, that too

by awarding him 30 marks more than the next

candidate, casts a cloud of suspicion over the

selection process. Being a public body, the

action of the first respondent has to be W.P.(C) No.13351 of 2021

transparent and above suspicion. The following

exposition of the Supreme Court in State of

Karnataka v. Umadevi [(2006) 4 SCC 1] is

contextually relevant;

" The obligation cast on the State under Article 39(a) of the Constitution is to ensure that all citizens equally have the right to adequate means of livelihood. It will be more consistent with that policy if the courts recognise that an appointment to a post in government service or in the service of its instrumentalities, can only be by way of a proper selection in the manner recognised by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualising justice, it is also not possible to shut our eyes to the constitutional scheme and the right of the numerous as against the few who are before the court. The directive principles of State policy have also to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation of the State to one and all and not to a particular group of citizens. We, therefore, overrule the argument based on Article 21 of the W.P.(C) No.13351 of 2021

Constitution."

11. 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. An illegal

appointment will not get legitimised or

sanctified by efflux of time. The contention that

the petitioner has no legal right to challenge

the appointment is liable to be rejected in view

of the admitted position that the petitioner had

participated in the selection process and secured

second rank. The plea of prejudice and hardship

raised on behalf of the 6th respondent cannot

also be countenanced, since hard cases cannot be

allowed to make bad law.

In the result, the writ petition is allowed.

The selection and appointment of the 6th

respondent as General Manager (Marketing,

Alternate Revenue and Corporate Communications),

based on Exts.P1 and P2 notifications, is held to W.P.(C) No.13351 of 2021

be illegal. The first respondent shall take

necessary consequential action within one month

of receipt of a copy of this judgment.

Sd/-

V.G.ARUN JUDGE Scl/ W.P.(C) No.13351 of 2021

APPENDIX OF WP(C) 13351/2021

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE NEWSPAPER ADVERTISEMENT DATED 23.9.2020 Exhibit P2 TRUE COPY OF THE RECRUITMENT NOTIFICATION UPLOADED IN THE 1ST RESPONDENT'S WEBSITE Exhibit P3 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER Exhibit P4 TRUE COPY OF THE INTERVIEW CALL LETTER Exhibit P5 TRUE COPY OF THE RTI APPLICATION DATED 25.3.2021 SENT BY ADV. BIJU CHACKO TO THE FIRST RESPONDENT Exhibit P6 TRUE COPY OF THE REPLY LETTER FOLLOWING THE RTI APPEAL WITH THE ANNEXURES Exhibit P7 TRUE COPY OF THE PETITIONER'S RTI APPLICATION DATED 25.5.2021 TO THE FIRST RESPONDENT'S PIO Exhibit P8 TRUE COPY OF THE FIRST RESPONDENT'S REPLY DATED 23.6.2021 IN REPLY TO THE PETITIONER.

Exhibit P9 TRUE COPY OF THE JUDGMENT IN WP(C) NO.28857/2020 Exhibit P10 TRUE COPY OF THE MINUTES OF THE MEETING DATED 10.5.2021 IN THE LIGHT OF EXT. P9 JUDGMENT Exhibit P11 TRUE COPY OF A NEWS ITEM THAT APPEARED IN THE TIMES OF INDIA DAILY ON 1ST AUGUST 2020 WITH RESPECT TO ONE OF THE SHAM RECRUITMENTS CONDUCTED BY THE FIRST RESPONDENT RESPONDENT'S EXHIBITS:

EXT.R1(a): TRUE COPY OF THE APPLICATION DATED

14.10.2020 SUBMITTED BY THE 6TH

RESPONDENT FOR THE POST OF GENERAL

MANAGER (MARKETING, ALTERNATE REVENUE W.P.(C) No.13351 of 2021

& CORPORATE COMMUNICATIONS).

EXT.R1(B): TRUE COPY OF THE MINUTES OF THE

SELECTION COMMITTEE OF 1ST RESPONDENT

OR SELECTION TO THE POST OF GENERAL

MANAGER (MARC) HELD ON 02.12.2020. EXT.R1(C): TRUE COPY OF THE PROCEEDINGS OF D(F)&

D(P) ON SELECTION OF GENERAL MANAGER

(MARC) OF THE DIRECTOR (PROJECTS) AND

DIRECTOR (FINANCE).

EXT.R1(D): TRUE COPY OF THE OFFER OF APPOINTMENT

VIDE NO.KMRL/FIN/HR/APPT/2020 ISSUED

TO THE 6TH RESPONDENT ON 17.12.2020.

EXT.R1(E):                 TRUE COPY OF THE JOINING ORDER VIDE

                           NO.KMRL/IN/HR/00/IND/2021                     DATED

                           24.02.2021      IN   FAVOUR      OF    THE     6TH

                           RESPONDENT.
EXT.R1(F):                   SCREESHOT     OF   THE    RELEVANT    WEBPAGE

SHOWING THE LAST DATE OF SUBMISSION OF

APPLICATION OF THE 1ST RESPONDENT. EXT.R1(G): TRUE COPY OF THE EDUCATIONAL

QUALIFICATIONS AND EXPERIENCE

SUBMITTED BY THE 6TH RESPONDENT. EXT.R1(H): TRUE COPY OF THE REPLY SUBMITTED BY

THE 6TH RESPONDENT.

EXT.R1(I): TRUE COPY OF EXPERIENCE CERTIFICATE OF

THE 6TH RESPONDENT DATED 9.11.2020.

 W.P.(C) No.13351 of 2021




EXT.R1(J):                 TRUE COPY OF THE REPLY SUBMITTED BY

                           THE   PETITIONER     ON   4.11.2020   TO

                           MR.RATHEESH S.
EXT.R1(K):                 TRUE COPY OF THE REPLY SUBMITTED BY

                           ANOTHER     SHORTLISTED   CANDIDATE   ON

3.11.2020 TO THE CLARIFICATION SOUGHT

TO MR. RATHEESH S.