Mahesh L vs State Of Kerala
2022 Latest Caselaw 3370 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
              THE HONOURABLE MR.JUSTICE V.G.ARUN
 TUESDAY, THE 22ND DAY OF MARCH 2022 / 1ST CHAITHRA, 1944
                     WP(C) NO. 564 OF 2022
PETITIONER/S:

            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)

RESPONDENT/S:

    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
        THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
15.03.2022 ALONG WITH WP(C) 842/2022, THE COURT ON 22.03.2022,
DELIVERED THE FOLLOWING:
 W.P.(C) Nos.564 & 841 of 2022

                                  -2-



           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MR.JUSTICE V.G.ARUN
 TUESDAY, THE 22ND DAY OF MARCH 2022 / 1ST CHAITHRA, 1944
                        WP(C) NO. 841 OF 2022
PETITIONER/S:

            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.

RESPONDENT/S:

     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.
     2      MANAGING DIRECTOR,
            THE KERALA STATE WOMEN'S DEVELOPMENT
            CORPORATION LTD., 1ST FLOOR, TRANSPORT BHAVAN,
            EAST FORT, ATTAKULANGARA P.O, PIN 695 023,
            THIRUVANANTHAPURAM.
     3      PRINCIPAL SECRETARY TO GOVERNMENT,
            SOCIAL JUSTICE, WOMEN AND CHILD DEVELOPMENT
            DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM,
            695 001.
     4      THE PRINCIPAL SECRETARY TO GOVERNMENT,
            FINANCE DEPARTMENT, SECRETARIAT,
            THIRUVANANTHAPURAM-695 001
     5      STATE OF KERALA,
 W.P.(C) Nos.564 & 841 of 2022

                                -3-


            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

OTHER PRESENT:

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

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

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

                                     -4-



                                JUDGMENT

Dated this the 22nd day of March, 2022

The petitioner in W.P.(C) No.564 of 2022 is

working as Manager (Recovery) and the petitioner

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;

The Corporation had issued Ext.P2

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

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

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.

2. Heard Senior Advocates N.N.Suganapalan

and Kurian George Kannanthanam for the

petitioners, Advocate Vishnu S.Arikkattil for the

Corporation, Senior Government Pleader

V.Venugopal for the State and Adv.Deepu Lal Mohan

for the additional 6th respondent.

3. The learned Senior Counsel put forth the

following contentions;

The petitioners have the requisite

qualification for appointment to the notified

posts. They had secured maximum marks based on

their performance in the written test and

interview. The interview marks were fixed at 50

and there is no material to show that the total W.P.(C) Nos.564 & 841 of 2022

marks for interview was converted to 10 based on

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

Corporation had thus committed an illegality by

altering the procedure, after commencement of the

selection process. The petitioners were appointed

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.

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

4. Learned Standing Counsel for respondents

1 and 2 contended that the impugned order

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

of the scores given by each member of the

interview board out of 10, instead of adding the

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

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

was unearthed during the enquiry conducted by the

Special Team constituted as per Ext.R3(g) order.

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,

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

committee at Ext.R3(i) had prompted the W.P.(C) Nos.564 & 841 of 2022

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

in Asok Kumar Sonkar v Union of India and others

[(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.

5. The learned Government Pleader adopted

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

wished away.

6. From the arguments advanced, the

following undisputed facts emerge; The

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

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

reckoned. Such computation had resulted in the

petitioners securing more than 70% marks. Had the

interview marks out of 10 been taken, their W.P.(C) Nos.564 & 841 of 2022

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.

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

India and statutory rules are not complied with.

In such cases, the question of exercising equity

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

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;

"It is not a case where appointment was irregular. If an appointment is irregular, W.P.(C) Nos.564 & 841 of 2022

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."

8. As far as the appointment of the

petitioners are concerned, there is no iota of

doubt that the appointments are irregular and not

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

without conducting a departmental enquiry, is

patently illegal and unsustainable.

For the aforementioned reasons, the writ

petitions are allowed and the impugned orders are

set aside.

Sd/-

V.G.ARUN JUDGE Scl/ W.P.(C) Nos.564 & 841 of 2022

APPENDIX OF WP(C) 564/2022

PETITIONER EXHIBITS Exhibit P1 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.

RESPONDENT EXHIBITS 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.

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

Exhibit R3(j) TRUE COPY OF THE FINDINGS OF THE 3 MEMBER COMMITTEE.

Exhibit R3(k) TRUE COPY OF THE LETTER DATED 15/09/2020 ISSUED BY THE 3RD RESPONDENT.

Exhibit R3(i) TRUE COPY OF THE EMAIL DATED 06/01/2022.

Exhibit R3(m) TRUE COPY OF THE EMAIL DATED 06/01/2022.

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

APPENDIX OF WP(C) 841/2022

PETITIONER EXHIBITS Exhibit P1 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. RESPONDENT 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 W.P.(C) Nos.564 & 841 of 2022

Exhibit R2 c TRUE COPY OF THE RELEVENT PAGE OF BOARD DEVISION DATED 11.2.2016 AND THE SCORE/RANK LISTS OF THE POSTS F MANAGER (RECOVERY), MANAGER MANAGER, AND MANAGER )PROJECTS) Exhibit R2 e TRUE COPY OF EAMIL DATED 22.12.2020 Exhibit R2 f TRUE COPY OF THE RELEVANT PAGES OF THE FINAL REPORT SUBMITTED BY THE FINANCIAL INSPECTION WING Exhibit R2 g TRUUE COPY OF THE GOVERNMENT (RT) NO 221/2019 SJID DATED 24.04.2019 Exhibit R2 h TRUE COPY OF THE LETTER FROM THE GOVERNMENT DATED 29.4.2019 Exhibit R2 i TRUE COPY OF REMINDER LETTER DATED 4.10.2021 ISSUED BY THE 3RD RESPONDENT Exhibit R2 j TRUE COPY OF THE FINDINGS OF THE 3 MEMBER COMMITTEEq Exhibit R2 k TRUE COPY OF THE PROCEEDINGS DATED 19.4.2021