Alwin James Mathew v. State of Kerala and Steel Industries Kerala Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 6[TH] DAY OF AUGUST 2021 / 15TH SRAVANA, 1943** ## **WP(C) NO. 14716 OF 2019** ## **PETITIONER:** **ALWIN JAMES MATHEW, AGED 29 YEARS S/O.MATHEW, CHELACKAL HOUSE, NECHIPUZHOOR P.O., PALA, KOTTAYAM686574.** **BY ADVS. ROY CHACKO SRI.K.C.VINCENT** ## **RESPONDENTS:** **1 STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF INDUSTRIES, SECRETARIAT, THIRUVANANTHAPURAM. 2 STEEL INDUSTRIES KERALA LIMITED, SILK NAGAR, ATHANI P.O., THRISSUR- 680581, REPRESENTED BY ITS MANAGING DIRECTOR.** ## **BY ADV SMT.LATHA ANAND** ## **OTHER PRESENT:** ## **SUNIL KURIAKOSE - GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 14716 OF 2019** **2** ## **J U D G M E N T** The petitioner has approached this Court impugning Ext.P6 decision taken by the 2nd respondent - Steel Industries Kerala Limited (SIKL for short), cancelling the process of selection to the post of Engineer, which they have initiated through Ext.P3 notification. 2. According to the petitioner, he had earlier worked in the SIKL on contract and therefore, was imminently qualified to have applied and for being selected as an Engineer and that he thus, subjected himself to the selection process, but to be then greeted by Ext.P6 decision, whereby, the SIKL has recorded that they have taken a decision to cancel the entire process and to call for a fresh one. He points out that, consequent to Ext.P6, Ext.P7 notification appears to have been issued and he asserts that this has been done only because the SIKL had not been able to choose the persons of their choice and to include them in the Rank List, consequent to Ext.P3 notification. 3. The petitioner contends that the respondent - SIKL **WP(C) NO. 14716 OF 2019** **3** could not have cancelled the process initiated through Ext.P3 without cogent and justified reason and that this position of law has been declared by the Hon'ble Supreme Court in **East Coast Railway and another v. Mahadev Appa Rao and others [2010 (7) SCC 678].** The petitioner therefore, prays that Exts.P6 and P7 be set aside and the 2nd respondent - SIKL be directed to complete and finalize the selection process pursuant to Ext.P3 notification within a time frame to be fixed by this Court. 4. I have heard Sri.K.C.Vincent, learned counsel for the petitioner; Smt.Latha Anand, learned Standing Counsel for the 2nd respondent and Sri.Sunil Kumar Kuriakose, learned Government Pleader appearing for the official respondents. 5. Smt.Latha Anand, learned Standing Counsel appearing for the 2nd respondent, conceded that a select list pursuant to Ext.P3 notification was prepared and forwarded to the Government by her client; but asserted that the same was not accepted by them. She then added that this was not the only reason why the selection process was decided to be **WP(C) NO. 14716 OF 2019** **4** cancelled and she drew my attention to the counter affidavit filed by her client, wherein, the cause for cancellation of the process has been explained in the following manner:- “3. It is respectfully submitted that the maximum staff strength as per the staff pattern was 164 in number in 2014. The staff pattern was revised in 2015 by adding 32 new posts and thus the Company's maximum staff strength was raised to 196 in number. The revised staff pattern vide G.O.No.139/2015/ID dated 29.09.2015 as against the approved staff strength of 196 in the 2nd respondent company, the present staff strength is only 98. In fact, in the year 2015 the recruitment process was started based on the newly approved staff strength. A written test and interview was also conducted pursuant to Ext.P3 notification. 4. The interview was conducted. Though a list was also prepared, no steps were thereafter taken to make any appointments in the Company. First of all, the financial condition of the Company at that point of time was not very encouraging. Be that as it may, it was later found out that the approved staff strength was not scientifically correct, as it was not pyramidical in nature. For eg. there were two General Managers and there was only one Dy. General Manager under them. Thus, it was not found to be acceptable for the smooth functioning of the Company. The new staff pattern is sent to the Government for approval and the said approval is awaited. It was also decided by the Board of Director of the 2nd respondent in its meeting held on 20.06.2018 to cancel the selection list **WP(C) NO. 14716 OF 2019** **5** and to go for fresh process of appointment after the said staff pattern is approved by the Government and in accordance with the revised staff pattern. In the 197th Board Meeting dated 11.03.2019, six key posts of HR head, finance head, unit heads and one Deputy Manager was decided to be filled up according to the vacancies arose to the respective posts on retirement. All other posts would be filled up only after getting approval from the Government. “ 6. The learned Standing Counsel therefore, prayed that this writ petition be dismissed; adding that the process initiated through Ext.P7 has also been cancelled for various other reasons. 7. In reply, Sri.K.C.Vincent, the learned counsel for the petitioner, submitted that the averments in the counter affidavit afore extracted are not accurate, because even if there was a change in the Staff Pattern, 2nd respondent was obligated to continue with the process as long as vacancies were available in the post in question. He submitted that even under the modified Staff Pattern, sufficient vacancies are available and he alleged that it is only because his client was known to have been included in the top of the list, that they **WP(C) NO. 14716 OF 2019** **6** have now chosen to cancel it, particularly because the others included therein were also not of their choice. He therefore, reiterateingly prayed that this writ petition be allowed. 8. Before I tread forward on the merits of the dialectical contentions of the learned counsel, I certainly deem it appropriate that the declarations of law in **East Coast Railway (supra),** be properly understood. The Hon'ble Supreme Court, in paragraph 14 of the said judgment, has declared the law with respect to the discretion of an Institution to cancel the Rank List in paragraph 14 thereof in the following manner: “14. It is evident from the above that while no candidate acquires an indefeasible right to a post merely because he has appeared in the examination or even found a place in the select list, yet the State does not enjoy an unqualified prerogative to refuse an appointment in an arbitrary fashion or to disregard the merit of the candidates as reflected by the merit list prepared at the end of the selection process. The validity of the State's decision not to make an appointment is thus a matter which is not beyond judicial review before a competent writ court. If any such decision is indeed found to be arbitrary, appropriate directions can be issued in the matter” **WP(C) NO. 14716 OF 2019** **7** 9. It is therefore, clear that even though the State or its instrumentality does not enjoy unqualified right to refuse appoint in an arbitrary manner or to disregard the merit of a candidate as reflected in the select list, they certainly can do so, provided there are justified reasons for it. 10. In other words, it is for the 2nd respondent - SIKL to demonstrate before this Court that there were sufficient reasons for them to have jettisoned the process commenced through Ext.P3 notification. 11. In this context, when I examine the afore extracted averments in the counter affidavit, it is luculent that the specific case of the SIKL is that a new Staff Pattern was settled in the year 2015, enhancing the staff strength and that the process initiated through Ext.P3 was sought to be completed on such basis. They say that, however, on account of their attenuating financial health, it was felt unjustified to include large number of persons in the staff strength and therefore, that they have now approached the Government to settle and frame a new one, with much less personnel. **WP(C) NO. 14716 OF 2019** **8** 12 I notice that the petitioner does not contest these averments but only says that even if the afore is true, then as long as there are vacancies even as per the modified Staff Pattern - now presented by the SIKL before the Government - they become enjoined to select people from the list prepared pursuant to Ext.P3 notification. 13. I am afraid that this assertion of the petitioner cannot find favour with this Court because Ext.P3 notification is stated to have been prepared and published on the edifice of the 2015 Staff Pattern applicable to the SIKL. However, since SIKL now say that their fiscal position cannot handle the number of personnel as shown therein and that they have consequently, approached the Government for a modified Staff Pattern, this Court cannot certainly force the 2nd respondent to still fill up the vacancies as are available in the 2015 Staff Pattern. 14. That being so said, I certainly find favour with the petitioner that Ext.P7 notification has been issued by the SIKL based on the same Staff Pattern; and axiomatically, had **WP(C) NO. 14716 OF 2019** **9** they completed any process pursuant thereto, it would have been surely justified for this Court to intervene and issue appropriate directions. 15. However, it is today stated by Smt.Latha Anand, learned Standing Counsel for SIKL that all processes pursuant to Ext.P7 also has been cancelled for the same reason and therefore, that her client intends to publish any further notification only after the new Staff Pattern is appropriately recognized and sanctioned by the Government. 16. The afore reason stated by the SIKL, in not taking the process pursuant to Ext.P3 to its logical conclusion, certainly falls within the contours of the powers available to them as per the declarations in **East Coast Railway** (supra), and am therefore, of the view that the petitioner cannot be granted any relief on the strength of Ext.P3 notification. In the afore circumstances, I close this writ petition without any further orders; however, directing the SIKL to permit the petitioner to participate in the next ensuing selection process, subject to him satisfying all necessary **WP(C) NO. 14716 OF 2019** **10** qualifications; and making it clear that he shall not be denied appointment merely because he had approached this Court through these proceedings. This writ petition is thus disposed of. **SD/-** **DEVAN RAMACHANDRAN JUDGE** rp **WP(C) NO. 14716 OF 2019** **11** ## **APPENDIX OF WP(C) 14716/2019** ## **PETITIONER EXHIBITS** |**EXHIBIT P1**|**A TRUE COPY OF THE DEGREE CERTIFICATE ISSUED BY THE**| |---|---| ||**KANNUR UNIVERSITY DATED 22.02.2014.**| |**EXHIBIT P2**|**A TRUE COPY OF THE CERTIFICATE DATED 31.03.2015**| ||**ISSUED BY THE 2ND RESPONDENT'S OFFICE.**| |**EXHIBIT P2(A)**|**A TRUE COPY OF THE PLACEMENT ORDER ON CONTRACT**| ||**BASIS DATED 28.10.2015 ISSUED BY THE 2ND**| ||**RESPONDENT'S OFFICE.**| |**EXHIBIT P3**|**A TRUE COPY OF THE ADVERTISEMENT DATED 03.10.2015**| ||**PUBLISHED IN MATHRUBHUMI DAILY, RECEIVED UNDER RTI**| ||**ACT.**| |**EXHIBIT P4**|**A TRUE COPY OF THE INTIMATION LETTER DATED**| ||**31.12.2015.**| |**EXHIBIT P5**|**A TRUE COPY OF THE REPLY DATED 17.05.2019 UNDER RTI**| ||**ACT.**| |**EXHIBIT P5**|**A TRUE COPY OF THE REPLY DATED 03.10.2018 UNDER RTI**| ||**ACT.**| |**EXHIBIT P6**|**TRUE COPY OF THE DECISION OF THEBOARD OF DIRECTORS**| ||**OF THE 2ND RESPONDENT DATED 20.06.2018.**| |**EXHIBIT P7**|**TRUE PRINT OUT OF THE NOTIFICATION DATED 04.09.2019**| ||**ALONG WITH THE RELEVANT PAGES OF THE LIST OF**| ||**VACANCIES.**| |**RESPONDENT EXHIBITS**|| |**EXHIBIT R2 A**|**TRUE EXTRACT OF MINUTES OF MEETING DATED 18/1/2020**| |**EXHIBIT R2 B**|**TRUE EXTRACT OF INDIAN EXPRESS DAILY DATED**| ||**20/2/2020**| |**EXHIBIT R2 C**|**TRUE EXTRACT OF MATHRUBHOOMI DAILY DATED 20/2/2020**|