Madras High Court
K.Mahalingam vs S.Viswanathan on 20 April, 2021
W.A.No.847 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:20.04.2021
CORAM:
THE HONOURABLE MR. JUSTICE M.SATHYANARAYANAN
AND
THE HONOURABLE MR. JUSTICE P.RAJAMANICKAM
W.A.No.847 of 2021
K.Mahalingam ....Appellant
Vs
1.S.Viswanathan
2.The Chairman
Chennai Port Trust
Chennai 01.
3.The Deputy Chairman
Chennai Port Trust, Chennai 01.
4.The Secretary,
Chennai Port Trust,
Chennai 01.
5.The Chief Mechanical Engineer,
Chennai Port Trust, Chennai 01. ..Respondents
Prayer:- Writ Appeal filed under Clause 15 of the Letters Patent against
the order passed in W.P.No.30413/2013 dated 27.11.2020 passed by this
Court.
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W.A.No.847 of 2021
For Appellant : Mr.M.Radhakrishnan
For RR1 : Ms.M.Dharani for Mr.K.Raja
JUDGMENT
[Order of the Court was made by M.SATHYANARAYANAN, J.]
The 5th respondent in W.P.No.20413 of 2013, subsequently got
impleaded vide order dated 03.12.2014 in M.P.Nos.1 and 2 of 2014.
2. The 1st respondent herein had filed the said Writ Petition praying
for issuance of a Writ of Certiorarified Mandamus calling for the records
pertaining to the impugned order passed by the 2nd respondent herein,
vide proceedings dated 24.06.2013 and quash the same with
consequential direction, directing the official respondents to promote him
to the post of Deputy Chief Mechanical Engineer (Mechanical) from
24.06.2013, with all monetary and other attendant benefits. The Writ
Petition, after contest, came to be allowed with the following direction
and it is relevant to extract the operative portion of the order:
''26. Accordingly, this Writ Petition is allowed to the
extent of setting aside the selection of the 5th respondent by the
Services Selection Committee and his consequent appointment
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W.A.No.847 of 2021
as DCME by the respondent Port Trust. The respondents 1 to 4
are directed to carryout the whole selection process once over
and assess the merit and ability of the candidates based on the
relevant service records and other records, as mandated under
the rules / regulations and select the most meritorious
candidate based on their merit and ability in accordance with
law by recording reasons and assessing their merit and ability
in a manner known to law. However in the circumstances of
the case, there shall be no order as to costs.''
3. The 5th respondent, aggrieved by the same, came forward to file
this Writ Appeal.
4. The learned counsel appearing for the appellant / 5th respondent
would submit that this Court, vide order dated 10.07.2020, had quashed
the impugned order and issued appropriate direction to carry out the
whole selection process in strict compliance of the rules of the Port Trust
and in the light of the fact that there was no representation on behalf of
the 5th respondent / appellant herein on that day, the Review Application
in R.A.No.57 of 2020 was filed by the 5th respondent stating among other
things that he has not been served with notice in the Writ Petition and
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W.A.No.847 of 2021
was not given any opportunity before passing the order and accordingly
taken note of the said submission, the Review Application filed by the 5th
respondent / appellant herein was allowed by recalling the order dated
10.07.2020 and thereafter, the Writ Petition was heard again.
5. The primordial submission made by the learned counsel
appearing for the appellant by drawing attention of this Court to
paragraph no.5 of the counter affidavit filed on behalf of the official
respondents 1 to 4 / respondents 2 to 5, herein by submitting that the
persons who are eligible for applying to the post of Deputy CMA
(Mechanical), is Officers holding the analogous posts or the post of
Superintending Engineer and equivalent posts in the respective discipline
of Mechanical and Electrical Engineering in the scale of pay of
Rs.24900-20200(pre-revised Rs.13000/18250) with 3 years regular
service in the grade in the respective discipline in a Major Port Trust or
Superintending Engineer and equivalent posts in the respective discipline
of Mechanical and Electrical Engineering Department with 2 years
regular service in the grade and a combined regular service of 7 years in
the scales of pay of Rs.20600-46500 (Pre-revised Rs.10750-16750) and
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W.A.No.847 of 2021
Rs.24900-50500 (pre-revised Rs.13000-18250) in the respective
discipline in a Major Port Trust and admittedly, the 1st respondent herein
did not have the required service and however, his name was included in
the panel in compliance of the Ministry's letter No.F.PR-12012/3/2009-
P.E.I dated 27.10.20210.
6. It is the further submission of the learned counsel appearing for
the appellant by drawing the attention of this Court to paragraph no.7 of
the counter and would submit that the controlling / administrative
Ministry in subsequent Letter NO.F.No.PR-12912/3/2009-PE.I dated
22.04.2013, had stated that the required qualification is relaxed by two
years and it will be applicable when officers with required qualifying
service are not available / not found suitable for consideration to the
higher post and the said relaxation will be valid upto 31.03.2015.
7. The learned counsel appearing for the appellant has drawn the
attention of this Court to paragraph nos.5 and 7 of the counter affidavit
and would submit that in the light of the fact that three candidates with
required qualification are available, namely, Mr.Saroj Kumar Das,
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W.A.No.847 of 2021
Mr.K.Mahalingam / appellant herein and Mr.K.Subramani, the extension
of relaxation of the qualification in terms of the Ministry's subsequent
communication dated 22.04.2013, cannot have application to the case of
the writ petitioner and therefore, the Writ Petition filed at the instance of
a non qualified persons, ought not to have been entertained at all. It is
the further submission of the learned counsel appearing for the appellant
that in the absence of any allegation as to malafide in the selection
process by the Selection Committee and arbitrariness involved in the
selection process, the learned Judge ought not to have looked into the
relevant records and arrived at a finding, which have not even pleaded by
the official respondents 2 to 5 and further points out that in compliance
of the impugned order, which is the subject matter of challenge in this
Writ Appeal, the appellant / 5th respondent in the Writ Petition was
reverted to the post of Superintending Engineer and also attained the age
of superannuation on 31.01.2021 and hence prays for interference.
8. This Court has carefully considered the rival submission and
also perused the materials placed before it.
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9. Now coming to the issue relating to the eligibility on the part of
the 1st respondent/writ petitioner, a perusal of paragraph no.5 of the
counter affidavit filed on behalf of the respondents 2 to 5 herein would
disclose that in terms of Ministry's letter dated 27.10.2020, the eligibility
criteria in the feeder cadre may be relaxed in deserving cases while
filling the post of Head of Departments and Deputy Head of Departments
and such relaxation will be available upto 31.03.2013 and in respect of
the 1st respondent, eligibility criteria has been relaxed and it is to be
noted at this juncture that as per the proceedings of the Review Service
Selection Committee for drawing of panel for the post of Deputy Chief
Mechanical Engineer (Mechanical) in the pay scale of Rs.32900 – 58000,
dated 19.06.2013, the appellant was found to be eligible for one post of
Deputy Chief Mechanical Engineer (Mechanical).
10. The contention of the said proceedings would also disclose that
applications were invited from the officers of all Major Ports vide office
Notification dated 18.05.2012 of the Selection Committee and held the
meeting on 19.06.2013 and by that time, the Ministry, vide
communication dated 27.10.2020, has relaxed the eligibility criteria in
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deserving cases and relaxation will be available upto 31.03.2013. In the
light of the fixation of such relaxation upto 31.03.2013, this Court is of
the considered view that the official respondents 2 to 5 had rightly
granted relaxation in respect of the 1st respondent and therefore the
submission made in this regard is rejected.
11. Now coming to the issue relating to absence of malafide or
arbitrariness on the part of the Selection Committee, the records should
not have been summoned and with regard to the selection of the
appellant / 5th respondent should not have been done, this Court has also
perused the impugned order, which is the subject matter of challenge in
this Writ Petition.
12. The learned Judge had summoned the records and it is relevant
to extract paragraph nos.21 and 22 of the order dated 27.11.2020 made in
W.P.No.30413 of 2013:
''21. The Counter as well as the additional counter of
the official respondents / Port Trust reveal that the
candidature of various persons were considered and based
on their merit and ability, annual confidential report, and
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other service records, the names of the persons were placed
in the order of their individual merit in which the 5th
respondent's name found place above the petitioner.
However, the counter of the official respondents is silent as
to the manner in which the merit and ability of the
candidates have been adjudged. The drawal of panel for the
post of DCME on the basis of regulations as drawn by the
Services Selection Committee has been placed before the
Court. However, a perusal of the same does not reveal the
gradations awarded to the candidates and the marks
awarded to them under the relevant heads of consideration
so as to grade them to arrive at their subjective merit and
ability. The minutes drawn by the Services Selection
Committee is bereft of details and the marks awarded to
each of the candidates under various heads to cumulatively
arrive at their merit does not find place in the minutes or
annexures of the meeting of the Services Selection
Committee. The merit list, alleged to have been drawn by
the Committee, reveals a very sorry state of affairs, as it
merely lists the name of the persons in the order of seniority,
barring the one individual, who stood first in the list and
who later withdrew his willingness for the said post.
22.Further, the statement showing the sequential
listing of the candidates on the basis of the respective merit,
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who fell within the zone of consideration with regard to
their annual confidential reports, vigilance cases and other
charges returns a blank, as no marks have been awarded. In
fact, certain facts relating to the community certificate
verification of the 5th respondent, which were well within the
knowledge of the official respondents does not find place in
the statistical statement relating to the candidates provided
to the Services Selection Committee.''
13. The learned Judge has also taken note of the fact that the
community certificate issued in favour of the 5th respondent / appellant,
who belongs to the Scheduled Caste Community, had been cancelled by
the State Level Scrutiny Committee, as not being genuine, against which
the 5th respondent preferred W.P.No.3518 of 2020 and this Court has
ordered the parties to maintain Status Quo and the said fact do not find
place in the statement showing the details of the officers with regard to
their service particulars and other particulars relating to their candidature.
14. The learned Judge has also taken note of the fact that the check
list placed before the Committee as also the details of the individual
officers does relating to their ACRs work, conduct and vigilance
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W.A.No.847 of 2021
particulars does not disclose the fact about the pending verification of the
community certificate of the 5th respondent and such a crucial detail has
not been placed before the Selection Committee. The official
respondents also did not provide any reason as to why no such details has
been provided and the said finding has been recorded in paragraph no.23
of the impugned order.
15. The learned Judge further found that the official respondents 2
to 5 herein/ respondents 1 to 4 in the writ petition have not averred
anywhere in the counter affidavit that the selection was based on merit
and ability and that the candidates, whose candidature were placed before
the Services Selection Committee, were assessed on their merit on the
basis of ACR and Vigilance Records and only on arriving at a subjective
finding.
16. Though an attempt was made by the learned counsel appearing
for the appellant by submitting that the merit may not be the criteria, in
the light of the fact that the Review Selection Committee has done the
said exercise, the finding rendered by the learned Judge in this regard in
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paragraph no.24 also do not warrant interference. The appellant / 5th
respondent wants to make a challenge to the eligibility of the 1st
respondent / writ petitioner in a collateral proceedings and the same is
impermissible in law and also in the light of the fact that the relaxation of
the eligibility criteria in favour of the 1st respondent / writ petitioner was
done prior to the cut off date on 31.03.2013, as per the Ministry's
communication dated 27.10.2020.
17. In the light of the above facts and circumstances and reasons
assigned, this Court is of the considered view that there is no error
apparent on the face of the record and infirmity in the reasons assigned
by the learned Judge and finds no merit in this Writ Appeal.
18. In the result, the Writ Appeal is dismissed, confirming the
order dated 27.11.2020 made in W.P.No.30413/2013. No costs.
[M.S.N., J.,] [P.R.M., J]
20.04.2021
Index : No
Internet : Yes
sk
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W.A.No.847 of 2021
To
1.The Chairman
Chennai Port Trust
Chennai 01.
2.The Deputy Chairman
Chennai Port Trust,
Chennai 01.
3.The Secretary,
Chennai Port Trust,
Chennai 01.
4.The Chief Mechanical Engineer,
Chennai Port Trust, Chennai 01.
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W.A.No.847 of 2021
M.SATHYANARAYANAN, J.,
and
P.RAJAMANICKAM, J.,
sk
W.A.No.847 of 2021
20.04.2021
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