Premakumari V vs State Of Kerala
2024 Latest Caselaw 4450 Ker

Kerala High Court

Premakumari V vs State Of Kerala on 6 February, 2024

                                    1
WPC 26810/23



                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                THE HONOURABLE MR.JUSTICE BASANT BALAJI
    TUESDAY, THE 6TH DAY OF FEBRUARY      2024 / 17TH MAGHA, 1945
                        WP(C) NO. 26810 OF 2023


PETITIONER/S:


     1         PREMAKUMARI V., AGED 45 YEARS, D/O. VIKRAMAN NAIR,
               RESIDING AT POONTHOTTATHIL HOUSE, NEELAMPEROOR HOUSE
               P.O., ALAPPUZHA DISTRICT, PIN - 686534
     2         SARITHAKUMARI M., AGED 36 YEARS, W/O. BINU V.,
               RESIDING AT PILLARKADU HOUSE, NEELAMPEROOR P.O.,
               ALAPPUZHA DISTRICT, PIN - 686534
     3         MAYA ANILKUMAR, AGED 37 YEARS, W/O. ANILKUMAR S.,
               RESIDING AT THONNOORILCHIRA HOUSE, NEELAMPEROOR
               P.O., ALAPPUZHA DISTRICT, PIN - 686534
               BY ADVS. J.VISHNU JAYAPALAN, ANU BALAKRISHNAN
               NAMBIAR


RESPONDENT/S:


     1         STATE OF KERALA, REPRESENTED BY THE SECRETARY TO
               GOVERNMENT, DEPARTMENT OF WOMEN & CHILD
               DEVELOPMENT, SECRETARIAT, STATUE,
               THIRUVANANTHAPURAM, PIN - 695001
     2         THE DIRECTOR DIRECTORATE OF WOMEN AND CHILD
               DEVELOPMENT, POOJAPPURA, THIRUVANANTHAPURAM, PIN -
               695012
     3         THE DISTRICT WOMAN AND CHILD WELFARE OFFICER,
               DISTRICT WOMEN AND CHILD DEVELOPMENT OFFICE, GOVIND
               COMMERCIAL COMPLEX, ALAPPUZHA, PIN - 688001
     4         THE CHILD DEVELOPMENT PROJECT OFFICER, VELIYANADU
               BLOCK, KIDANGARA P.O, ALAPPUZHA, PIN - 686102
                                       2
WPC 26810/23

     5         LEKHA G. FATHER'S NAME AND AGE UNKNOWN TO
               PETITIONERS, MALICKAL PARAMPIL, EARA, NEELAMPEROOR,
               PIN - 686534
     6         SUJATHA C. N.,. FATHER'S NAME AND AGE UNKNOWN TO
               PETITIONERS, PUTHUVEED, CHERUKARA P.O., KAVALAM,
               PIN - 688506
     7         SATHYA T. J. FATHER'S NAME AND AGE UNKNOWN TO
               PETITIONERS, AAPPICHERRY, KAINADY P.O., KAINADY,
               PIN - 688506
     8         MOLAMMA THOMAS, FATHER'S NAME AND AGE UNKNOWN TO
               PETITIONERS, MUNDAKAPPADAM, CHERUKARA P.O., KAVALAM,
               PIN - 688506
     9         BINDHU BIJU, FATHER'S NAME AND AGE UNKNOWN TO
               PETITIONERS, MUNDAKAPPADAM, CHERUKARA P.O.,
               KAVALAM, PIN - 688506
    10         REHANAMOL FATHER'S NAME AND AGE, UNKNOWN TO
               PETITIONERS, KIZHAKKUMVELIL, NEELAMPEROOR P.O.,
               NEELAMPEROOR, PIN - 686534
               BY ADV BIJU ABRAHAM..R5 to R6


OTHER PRESENT:


               GP SMT PRINCY XAVIER


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 06.02.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
                                       3
WPC 26810/23




                               JUDGMENT

(Dated this the 6th February 2024)

The petitioners applied to the post of 'Anganwadi helpers'

pursuant to the notification issued by the 4th

respondent. Ext.P5 is the Government Order dated 22.12.2012

which prescribes the members to be included in the selection

committee for appointment of 'Anganwadi

Workers/Helpers'. The total number of members in the

selection committee for appointing 'Anganwadi Helpers' is 11,

out of which 5 are to be social workers and 3 are to be women.

The social workers are to be nominated by the District Social

Welfare Officer from among persons, who have special

knowledge in child development.

2. The grievance of the petitioners is that when the

selection committee was constituted, the same was not in tune

with Ext.P5 as the nominated persons were to be by the District

Social welfare officer. Instead, the 4th respondent sent a letter

to the Grama Panchayat asking for a list of persons to be

nominated for the selection committee. The panchayath

forwarded Ext.P7 to the 4th respondent, and the 4th respondent

simply forwarded the said list to the 3rd respondent, who

accepted it without any inquiry, and was included in the

selection committee as the nominated person. The nomination

is bad since the 4th respondent has not independently considered

the conditions as stated in paragraph (IV) of Ext.P5 G.O. It is

submitted that 25 candidates attended the interview and 8

members of the selection committee were present , out of which

5 were nominated social workers by the Panchayath accepted

by the 3rd respondent. Therefore, the selection committee was

illegally constituted with persons of their choice.

3. A rank list was published on 25.6.203, whereby

respondents Nos.5 to 10 were selected. Though the petitioners

were more fully qualified than respondents Nos.5 to 10, they

were excluded from the rank list as they do not have political

considerations. Therefore, this Writ Petition is filed for the

following reliefs:

(i) Issue a Writ of certiorari calling for records leading up to Exhibit P7, Exhibit P8, Exhibit P11, and Exhibit P12 and quash the same;

(ii)Declare that the selection of respondents 5 to 10 on the basis of an illegally constituted selection committee are void ab initio;

(iii)Issue a Writ of Mandamus directing the respondents 1 to

4 to cancel the appointments made in pursuance to the Exhibit P11 rank list;

(iv)Issue a Writ of Mandamus to the respondents 1 to 4 to conduct a fresh recruitment to the post of Anganwadi Helpers strictly in accordance with law and after constituting a selection committee as per Exhibit P5 G.O.;

(v)To grant such other reliefs as this Honourable Court may deem fit in the circumstances of this case."

4. A Ward member of the Panchayath gave a complaint

on 15.7.20223 to the 3rd respondent seeking immediate

interference and for cancellation of the appointment as the

selection committee was illegally constituted. In response to

the complaint, the 3rd respondent issued a communication dated

5.8.2023 produced as Ext.P12 in which it is admitted that the

4th respondent has nominated the social workers against the

Rules. Since the 4th respondent has simply forwarded the list

of nominated social workers to the Panchayath, an explanation

is also sought regarding this.

5. A counter affidavit is filed by the 4th respondent

denying the averments in the writ petition. The petitioners are

unsuccessful candidates in the selection process carried

out pursuant to Ext.P1 notification. It was contended that after

participating in the selection process and having been

successful in the selection, the petitioners could not challenge

the selection process subsequently and regarding the

constitution of the committee. Anganwadi helpers/ workers

are appointed through the selection process conducted in the

ICDS project. The selection committee comprises the

President of the Grama Panchayath as chairperson and the

Child Development Project Officer as its convenor. The

Medical Officer, Secretary of Panchayath, District Program

Officer of the District ICDS Cell, a representative of the block

panchayath, and 5 other social workers are members. As per

the Government Order, social workers are to be nominated by

the District Officer. In Alappuzha district, there are 72 Grama

panchayaths and 6 Municipalities. As the District Officer is not

familiar with the social workers in each local body, necessary

inputs could be called from the concerned Child Development

Project Officer (CDPO). The CDPOs approached the local

authority to procure a list of social workers. The Panchayath,

being well versed with social welfare workers of the

panchayath, furnished a list of social workers. After obtaining

the list, further enquiry is conducted by the CDPO. Ext.R4(a)

is the report submitted by the Supervisor of the 4th respondent

regarding the merit and ability of the social workers

nominated. The list was forwarded to the 3rd respondent for

inclusion in the selection committee. The petitioners do not

have a case regarding the merit and ability of the Social

Workers included in the selection committee.

6. The challenge is to Ext.P7 and P8, P11 and P12 as they

are not maintainable at the petitioners' instance. The

petitioners' contention that experience has been overruled in

preparing the rank list was denied. The marks commensurate

to the experience were given to the petitioners. The petitioners

are included in the rank list based on the marks received in the

interview, taking into consideration different aspects as seen

from Ext.R4(c). The 1st petitioner is placed as rank No.7

and the 2nd petitioner in 19, and the 3rd petitioner in

24. The Selection interview was conducted on 25.5.2023, and

the District Officer approved the rank list on 15.6.2023. The

ICDS officer received the approved rank list on 26.6.2023, and

the rank list was published on the very same day. Appointment

orders were issued on 11.7.2023 and, therefore, prayed for

dismissal of the Petition.

7. Counter affidavit was filed by respondent Nos.5 to 10,

in which it is contended that after participating in a selection

process, the unsuccessful candidate cannot later turn down and

challenge the selection process. Respondent Nos.5 to 10, as

well as the petitioners, participated in the selection process, and

the Selection Committee awarded marks in accordance

with prescribed norms and rules. Selection was carried out on

personal verification of the details of each candidate. The

selection is conducted by a group of persons, constituted as a

Committee and not by a single person. Merely because the

nomination of the social workers was through a list supplied by

the Panchayath, it cannot be said that the constitution is bad.

8. Heard the counsel, Shri.Vishnu Jayapalan for the

petitioners, Shri.Biju Abraham for respondent Nos.5 to 10 and

the Government Pleader Shri. Tony Augustine for respondent

Nos.1 to 4.

9. The main contention raised by the petitioners is that

going by paragraph (IV) of Ext.P5, the Social Workers are

nominated by the District Social Welfare Officer. Still, instead

of nominating such persons, the 4th respondent requested the

Panchayath to forward a list of social workers as per Ext.P6 and

the Panchayath as per the decision taken on 11.8.2022,

forwarded a list of 5 persons to be included in the Selection

Committee. Thus, the constitution of the Selection Committee

is against paragraph (IV) of Ext.P5 and, therefore, is bad in

law. Because the very constitution is bad in law, the selection

itself is bad and the rank list is liable to be set aside.

10. As per Ext.P7, a list was forwarded by the local

panchayath to the 4th respondent recommending names of the

5 persons who are to be included in the selection committee in

the place of social workers. Upon getting the names from the

Panchayath, a report was obtained, and Ext.R4(a) is the

report. A perusal of the said report would reveal that an inquiry

was conducted in respect of the 5 persons who have been

recommended by the local Panachayth and finding that they are

qualified to be included in the selection committee, the 3rd

respondent approved the same as per Ext.P8. The selection was,

thereafter, conducted. The petitioners, as well as respondent

Nos.5 to 10, participated, and Ext.R4(c) would reveal the

marks awarded to each candidate under 3 heads. The

petitioners are included in the rank list along with respondent

Nos.5 to 10. It is based on the rank list, and taking into

consideration that communication, the final list was drawn. It

is to be noted that the notification was published on 3.2.2023,

and the interview on 25.5.2023. The petitioners participated in

the interview, and the rank list was approved by the District

Woman and Child Welfare Officer on 15.6.2023 and published

on 26.6.2023. Based on the rank list, appointment orders were

issued on 11.7.2023. Till the appointment orders were given to

the candidates, the petitioners did not have any complaints

regarding the constitution of the selection committee and the

rank list. It is only after one month of issuing the appointment

orders that they have approached this Court.

11. The counsel for the petitioners relied on judgment of

the apex court in Dr.( Major) Meeta Sahai v. State of Biar

and others (2019) 20 SCC 17, Professor (Dr.) Sreejith P.S.

V. Dr. Rajasree M.S. And others (2022 SCC OnLine SC

1473) and Ghanashyam Sharma v. State of Sikkim, (2022

SCC OnLine Sikk 105).

12. In Dr.( Major) Meeta Sahai's case (supra), the

question was whether a candidate, after participating in the

selection process, can, after the recruitment process, challenge

the selection process. In the said judgment, it was held in

paragraphs 15 to 19 as follows:

15. Furthermore, before beginning analysis of the legal issues involved, it is necessary to first address the preliminary issue. The maintainability of the very challenge by the appellant has been questioned on the ground that she having partaken in the selection process cannot later challenge it due to mere failure d in selection. The counsel for the respondents relied upon a catena of decisions of this Court to substantiate his objection.

16. It is well settled that the principle of estoppel prevents a candidate from challenging the selection process after having failed in it as iterated by this Court in a plethora of judgments including Manish Kumar Shahi v. State of Bihar, observing as follows: (SCC p. 584. para 16)

"16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the appellant is not entitled to challenge the criteria or process of selection. Surely, if the appellants' name had appeared in the merit list, he would not have even dreamed of challenging the selection. The [appellant] invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the appellant clearly disentitles him from

questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition."

The underlying objective of this principle is to prevent candidates from trying another shot at consideration, and to avoid an impasse wherein every disgruntled candidate, having failed the selection, challenges it in the hope of getting a second chance.

17. However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process.

18. The question of permissibility of giving weightage for "work experience" in government hospitals is also not the bone of contention in this case. Medicine being an applied science cannot be mastered by mere academic knowledge. Longer experience of a candidate adds to his knowledge and expertise. Similarly, government hospitals differ from private hospitals vastly for the former have unique infrastructural constraints and deal with poor masses. Doctors in such non-private hospitals serve a public purpose by giving medical treatment to swarms of patients, in return

for a meagre salary. Hence, when placing emphasis on the requirement of work experience, there is no dispute on such recognition of government hospitals and private hospitals as distinct classes. Instead such recognition ensures that the doctors recruited in not-so-rich States like Bihar have the requisite exposure to challenges faced in those regions.

19. The appellant has thus rightly not challenged the selection procedure but has narrowed her claim to only against the respondents'; interpretation of "work experience" as part of merit determination. Since interpretation of a statute or rule is the exclusive domain of courts, and given the scope of judicial review in delineating such criteria, the appellant's challenge cannot be turned down at the threshold. However, we are not commenting specifically on the merit of the appellant's case, and our determination is alien to the outcome of the selection process. It is possible post what is held hereinafter that she be selected, or not."

13. The apex court, while considering the question as to

whether there is any estoppel after participating in the selection,

held that the appellants have not challenged the selection

procedure but only the interpretation of the word 'work

experience'. In such circumstances, it was held that it cannot

be held that there is estoppel.

14. In Professor Dr.Sreejith's case (supra), the question

was regarding the constitution of the search committee for

recommendation of names to the post of Vice Chancellor of a

University. In the said case, only one name was

recommended to be appointed as a Vice Chancellor, and as per

the UGC Regulations, the Vice Chancellor shall be appointed

out of the panel of the names recommended by the search

committee. In such circumstances, it was held that the

recommendation was bad.

15. In Ghanashyam Sharma's case (supra), the selection

committee was constituted with the Chief Secretary, the

Principal Chief Conservator-cum-Principal Secretary, Forest,

Environment and Wildlife Management Department, a

Professor of Indian Institute of Science, Bangalore and the

Special Secretary, Department of Personnel (DOP) to be

nominated by the State Government for selection of

Chairperson of State Pollution Control Board. Since the

Secretary, DOP, has demitted the office on the date of the

interview, the special Secretary, DOP, was made a part of the

selection committee. In such a situation, it was held that even

though the person may be qualified, the Rule did not envisage

the inclusion of the special Secretary. In such circumstances, it

was held that the selection of the Vice Chancellor was bad in

law.

16. As far as this case is concerned, the persons nominated

as social workers were after a due report on their ability, merit,

and capability. The 3rd respondent could not make the

nomination, as she was not aware of the credentials of the social

workers in that area. It is for that reason that the help of the

Panchayath was obtained through the 4th respondent.

Therefore, it cannot be said that the nomination of the helpers

recommended by the 4th respondent, verified by the

Panchayath through an enquiry and nominated by the 3rd

respondent, is not in order. It is also a settled proposition of

law that having participated in a selection process and after

being unsuccessful, cannot turn around and challenge the

process on the ground that the selection is bad in law. It was

held Tajvir Singh Sodhi v. State (UT of J&K), (2023 SCC

online SC 344) as follows.

"67. Thus, Courts while exercising the power of judicial review cannot step into the shoes of the Selection Committee or assume an appellate role to examine whether the marks awarded by the Selection Committee in the viva-voce are excessive and not corresponding to their performance in such test. The assessment and evaluation of the performance of candidates appearing before the Selection Committee/Interview Board should be best left to the members of the committee. In light of the position that a Court cannot sit in appeal against the decision taken pursuant to a reasonably sound selection process, the following grounds raised by the writ petitioners, which are based on an attack of subjective criteria employed by the selection board/interview panel in assessing the suitability of candidates, namely, (i) that the candidates who had done their post-graduation had been awarded 10 marks and in the viva-voce, such PG candidates had been granted either 18 marks or 20 marks out of 20. (ii) that although the writ petitioners had performed exceptionally well in the interview, the authorities had acted in an arbitrary manner while carrying out the selection process, would not hold any water.

68. The next aspect of the matter which requires consideration is the contention of the writ petitioners to the effect that the entire selection process was vitiated as the eligibility criteria enshrined in the Advertisement Notice dated 5th May, 2008 was recast vide a corrigendum dated 12th June, 2009, without any justifiable reason.

In order to consider this contention, regard may be had to the following case law:

i) In Manish Kumar Shahi v. State of Bihar, (2010) 12 SCC 576, this Court authoritatively declared that having participated in a selection process without any protest, it would not be open to an unsuccessful candidate to challenge the selection criteria subsequently.

ii) In Ramesh Chandra Shah v. Anil Joshi, (2013) 11 SCC 309, an advertisement was issued inviting applications for appointment for the post of physiotherapist. Candidates who failed to clear the written test presented a writ petition and prayed for quashing the advertisement and the process of selection. They pleaded that the advertisement and the test were ultra vires the provisions of the Uttar Pradesh Medical Health and Family Welfare Department Physiotherapist and Occupational Therapist Service Rules, 1998. After referring to a catena of judgments on the principle of waiver and estoppel, this Court did not entertain the challenge for the reason that the same would not be maintainable after participation in the selection process.

iii) xxxxxxxxxxxxx

69. It is therefore trite that candidates, having taken part in the selection process without any demur or protest, cannot challenge the same after having been declared unsuccessful. The candidates cannot approbate and reprobate at the same time. In other words, simply because the result of the selection process is not palatable to a candidate, he cannot allege that the process of interview was unfair or that there was some lacuna in the process. Therefore, we find that the writ petitioners in these cases, could not have questioned before a Court of law, the rationale behind recasting the selection criteria, as they willingly took part in the selection process even after the criteria had been so recast. Their candidature was not withdrawn in light of the amended criteria. A challenge was thrown against the same only after they had been declared unsuccessful in the selection process, at which stage, the challenge ought not to have been entertained in light of the principle of waiver and acquiescence.

Xxxxx xxxxx xxxxx xxxx xxxx Xxxxxx xxxxx xxxxxx xxxxxxx xxxxxx

88. The criteria for evaluation of a candidate's performance in an interview may be diverse and some of it may be subjective. However, having submitted to the interview process with no demur or protest, the same cannot be challenged subsequently simply because the candidate's personal evaluation of his performance was higher than the marks awarded by the panel."

Therefore, in light of the observations made in this

judgment as well as the judgments cited above, the petitioners

are not entitled to any relief from this court. Consequently, the

Writ Petition stands dismissed.

SD/-

BASANT BALAJI, JUDGE

dl/

APPENDIX OF WP(C) 26810/2023

PETITIONER EXHIBITS

Exhibit P1 A TRUE COPY OF THE NOTIFICATION DATED 03.02.2023 ISSUED BY THE 4TH RESPONDENT Exhibit P2 A TRUE COPY OF THE APPLICATION SUBMITTED BY THE 1ST RESPONDENT DATED 16.02.2023 Exhibit A TRUE COPY OF THE EXPERIENCE CERTIFICATE DATED P2(a) 18.04.2023 ISSUED TO THE 1ST PETITIONER BY THE 4TH RESPONDENT Exhibit P3 A TRUE COPY OF THE APPLICATION SUBMITTED BY THE 2ND RESPONDENT DATED 21.02.2023 Exhibit A TRUE COPY OF THE EXPERIENCE CERTIFICATE DATED P3(a) 24.04.2023 ISSUED TO THE 2ND PETITIONER BY THE 4TH RESPONDENT Exhibit P4 A TRUE COPY OF THE APPLICATION SUBMITTED BY THE 3RD RESPONDENT DATED 17.02.2023 Exhibit A TRUE COPY OF THE EXPERIENCE CERTIFICATE DATED P4(a) 24.04.2023 ISSUED TO THE 3RD PETITIONER BY THE 4TH RESPONDENT Exhibit P5 A TRUE COPY OF PER G.O(MS)NO.74/2012/SJD DATED 22.12.2012 ISSUED BY THE SOCIAL JUSTICE DEPARTMENT Exhibit P6 A TRUE COPY OF THE LETTER NO.ICDS/VLD/386/2022 DATED 30.07.2022 SENT BY THE 4TH RESPONDENT TO THE PRESIDENT/SECRETARY, NEELAMPEROOR GRAMA PANCHAYAT Exhibit P7 A TRUE COPY OF THE DECISION NO.9 (1) DATED 11.08.2022 TAKEN IN THE NEELAMPEROOR GRAMA PANCHAYAT COMMITTEE MEETING Exhibit P8 A TRUE COPY OF THE ORDER NO.W.C.D/A.L.P/A2- 209539/22 DATED 06.10.2022 ISSUED BY THE 3RD RESPONDENT Exhibit P9 A TRUE COPY OF THE ATTENDANCE SHEET OF THE CANDIDATES Exhibit P10 A TRUE COPY OF THE ATTENDANCE SHEET OF THE SELECTION COMMITTEE MEMBERS

Exhibit P11 A TRUE COPY OF THE RANK LIST OF ANGANWADI HELPERS Exhibit P12 A TRUE COPY OF THE LETTER NO. WCD/ALP/A2-797/23 ISSUED BY THE 3RD RESPONDENT DATED 05.08.2023

RESPONDENT EXHIBITS

Exhibit True copy of the report of the enquiry submitted R4(a) by the Supervisor of the 4th respondent dated 14.09.2023 in file no. 386/2022 s Exhibit True copy of the GO (MS) No. 58/2008/SJD dated R4(b) 22.10.2008 issued by the Social Justice (B) Department. D Exhibit True copy of the short list prepared after R4(c) certificate verification showing the marks awarded for experience and other criteria. Exhibit True copy of the ranked list approved on R4(d) 15.06.2023 showing the roster of appointment