Athulya Murali A.C. v. Kerala Tourism Development Corporation Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN THURSDAY, THE 22[ND] DAY OF SEPTEMBER 2022 / 31ST BHADRA,** **1944** ## **WP(C) NO. 26327 OF 2020** ## **PETITIONER/S:** ATHULYA MURALI A.C. AGED 26 YEARS W/O. VIPIN RAJ V.M., THEKKE URULUMMAL HOSUE, BALUSSERY P.O., KOZHIKODE DISTRICT, PIN-673 612. BY ADVS. K.T.SHYAMKUMAR SRI.HARISH R. MENON SMT.K.N.ABHA SRI.A.G.PRASANTH SMT.NIMMY SHAJI SRI.R.NARENDRAN NAIR ## **RESPONDENT/S:** 1 KERALA TOURISM DEVELOPMENT CORPORATION LTD. MASCOT SQUARE, P.B.NO.5424, THIRUVANANTHAPURAM, PIN-695 033 REPRESENTED BY ITS MANAGING DIRECTOR. 2 KRISHNA TEJA IAS MANAGING DIRECTOR, KERALA TOURISM DEVELOPMENT CORPORATION LTD., MASCOT SQUARE, P.B.NO.5424, THIRUVANANTHAPURAM, PIN-695 033. 3 M.VIJAYAKUMAR CHAIRMAN, KERALA TOURISM DEVELOPMENT CORPORATION LTD., MASCOT SQUARE, P.B.NO.5424, THIRUVANANTHAPURAM, PIN-695 033. 4 K.RAJSHEKHAR PRINCIPAL, INSTITUTE OF HOTEL MANAGEMENT AND CATERING TECHNOLOGY, G.V.RAJA ROAD, KOVALAM, THIRUVANANTHAPURAM, PIN-695 527. 5 RAJMOHAN MANAGER, KERALA TOURISM DEVELOPMENT CORPORATION LTD., MASCOT SQUARE, P.B.NO.5424, THIRUVANANTHAPURAM, PIN-695 033. 6 ABHILASH S. MANAGER GR.IV, KERALA TOURISM DEVELOPMENT CORPORATION LTD., MASCOT SQUARE, P.B.NO.5424, THIRUVANANTHAPURAM, PIN-695 033. W.P.(C) No.26327 of 2020 -2- BY ADVS. SHRI.P.A.AHAMED, SC, KTDC LTD. O.M.SHALINA SRI.K.DHRUV KUMAR SRI.THOUFEEK AHAMED T.V.VINU **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON** **29.03.2022, THE COURT ON 22.09.2022 DELIVERED THE FOLLOWING:** W.P.(C) No.26327 of 2020 -3- ## **JUDGMENT** Dated this the 22[nd] day of September, 2022 The petitioner holds a B.Sc Degree in Hotel Management and Hospitality Administration and is a Post Graduate in Master of Tourism. While the petitioner was working as Assistant Professor in the Department of Hotel Management, Yuvakshetra Institute of Management Studies in Palakkad, the first respondent/Kerala Tourism Development Corporation Ltd (KTDC) issued Ext.P2 notification dated 11.02.2020, calling for applications for the vacant post of Manager Grade IV. As the petitioner had requisite qualification, he applied for the post. Some time later, the petitioner received a copy of Ext.P3 memo dated 03.09.2020 requiring her to appear for a written test at 10.00 on 19.09.2020. It was also informed that if selected in the written test, W.P.(C) No.26327 of 2020 -4- she will have to undergo an interview conducted on 4.00 p.m at the same venue. Accordingly, the petitioner appeared for the written test, the result of which was published at the venue as evidenced by Ext.P4 mark sheet. Among the 9 candidates selected after written test, the petitioner secured the highest mark of 71 out of 80. The 6[th] respondent, who secured the second place, had scored only 60 marks. The 9 candidates were interviewed by a Board consisting of respondents 2 to 5 and Ext.P5 consolidated rank list published. To the petitioner's surprise and dismay, she was ranked No.2 in the list while the 6[th] respondent was given the 1[st] rank. Aggrieved, the writ petition is filed seeking the following reliefs; _“(i). Call for the records leading to the issuance of Exhibit P5 and quash the same to the extent it places the 6[th] Respondent as Rank No: 1 in the Ranked List published by the 1[st] Respondent to the post of Manager Grade IV_ W.P.(C) No.26327 of 2020 -5- _in the 1[st] Respondent Corporation and consequently the appointment granted to the 6[th] Respondent in the said post._ _(ii). Declare that the interview conducted by the 1[st] Respondent as a part of selection for appointment to the post of Manager Grade IV in the 1[st] Respondent Corporation is vitiated by malafides and favouritism._ _(iii) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction directing the 1[st] Respondent to appoint the Petitioner in the post of Manager Grade IV in the 1[st] Respondent Corporation._ _or in the alternative_ _(iv). Issue a writ in the nature of_ _mandamus or any other appropriate writ order or direction directing the 1[st] Respondent to conduct fresh interview to the post of Manager Grade IV on the basis of the marks awarded in Exhibit P4 marksheet.”_ 2. Adv.K.T.Syamkumar, learned Counsel for the petitioner assailed the selection procedure **==> picture [416 x 13] intentionally omitted <==** contentions; In the written test, the petitioner had scored 71 marks out of 80 and there is a W.P.(C) No.26327 of 2020 -6- difference of 11 marks between the petitioner and the 6[th] respondent. The maximum mark for interview being 20, the Interview Board granted very high marks to the 6[th] respondent and deliberately granted lesser marks to the petitioner for getting over the difference in marks in the written test. To suppress this illegality, the interview marks was not published, which itself is indicative of favoritism and nepotism. The Institute of Hotel Management and Catering Technology was assigned with the task of conducting the written test and the 4[th] respondent, the Principal of that Institute was included as a subject expert in the Interview Board. At the time of written test and interview, the 6[th] respondent was a faculty in that institute. The marks of the written test was countersigned by the 4[th] respondent before publishing it and as such, the 4[th] respondent was aware of the marks. Being so, the 4[th] respondent ## W.P.(C) No.26327 of 2020 -7- had prevailed over the other members of the Interview Board to grant higher marks to the 6[th] respondent so as to secure appointment for him. The participation of the 4[th] respondent in the interview itself is sufficient to hold that the award of 1[st] rank to the 6[th] respondent is vitiated by _mala fides_ . 3. Adv.Thouffeq Ahammed, learned Counsel for the 1[st] respondent Corporation stoutly refuted the allegation of mala fides and submitted that the selection process was conducted in a unbiased and transparent manner. It is pointed out that appointments to the first respondent is made following the procedure prescribed in the Recruitment (Qualification and Method of Appointment) Regulations of KTDC Ltd, 2014. In response to Ext.P2 notification, a large number of applications were received, out of which 63 applicants were found qualified. In the written test conducted on 19.09.2020, 43 candidates ## W.P.(C) No.26327 of 2020 -8- participated. Based on the marks in the written test, 9 candidates who had scored more than the cut off mark of 51 in the written test was interviewed on the same day. The 6[th] respondent was selected as he had secured highest marks on consolidation of marks for written test and interview. Thereupon, the petitioner was issued with Ext.R1(d) appointment order and joint at Mascot Hotel, a unit of KTDC on 23.09.2020. In Ext.P2 notification, it is clearly stated that preference will be given to candidates having minimum three years experience in 3 Star and above hotels in a managerial position. The petitioner is having only an aggregate experience of 2 years and 6 months only that too as Front Office Assistant and Guest Service Associate, whereas the 6[th] respondent is having an aggregate of 5 years and 1 month experience in the field of hospitality industry as Captain and Restaurant Manager. A personnel appointed to the managerial W.P.(C) No.26327 of 2020 -9- cadre should have sufficient experience in the practical field and in handling customers with various demands. The members of the Interview Board had awarded marks separately taking into account the practical and on the ground managerial experience of each candidate as reflected from the documents and the answers given during interview. It is contended that having participated in the selection process without demur, the petitioner cannot challenge the selection process on finding that she could not secure first rank. In support of the contention, reliance is placed on the decision in _**Madanlal and others v. State of J. and K and others [(1995) 3 SCC 486], Siraj K.H. v. High Court of Kerala and others [2006 (2) KLT 923] and Swapna Surendran v. Union of India and others [2016(1) KHC 72]**_ . Moreover, the petitioner's performance in the interview was poor, whereas -10- ## W.P.(C) No.26327 of 2020 the 6[th] respondent had performed well. 4. Adv.T.V.Vinu appearing for the 4[th] respondent submitted that the Principal of the Institute was not involved in the conduct of the written test or its evaluation process. Various faculties of the Institute had prepared three sets of question papers for the written test and the Managing Director of the first respondent had selected one question paper from among the three sets. The answer sheets were evaluated by the faculty of the institute and officials in the personnel Division of the first respondent Corporation, at the conference hall of Muscat Hotel based on the answer key. After tabulation of marks, it was sent to the Principal at around 2 pm and being the Head of the Institute, which conducted the written test, the Principal had authenticated the tabulation sheets and had returned it to the Personnel Department of the first respondent in a sealed cover. Apart from W.P.(C) No.26327 of 2020 -11- endorsing the mark sheet, the Principal did not commit the marks obtained by individual candidates to his memory for the purpose of awarding more marks in the interview to any particular candidate. The post of Manager Grade IV being a crucial post in the Hotel business, the skill and experience of the candidates was assessed in the interview based on the following parameters; (i) Managerial & Supervisory Experience; (ii) Practical situation-handling in a managerial capacity; (iii) Practical knowledge & skill, (iv) Managerial traits & leadership skills. Although the petitioner scored good marks in the written test, she did not perform well in the interview. That cannot be a ground for alleging bias or _mala fides_ on the members of the interview board. The allegations are made on unwarranted assumptions and presumptions. ## W.P.(C) No.26327 of 2020 -12- 5. Learned Counsel appearing for the 6[th] respondent adopted the contentions of the other respondents and submitted that his client has secured first rank based on his performance alone and the petitioner does not even have the requisite managerial experience to aspire for the post and cannot therefore challenge the selection and appointment of a better qualified candidate. 6. In reply, learned Counsel for the petitioner submitted that even the 6[th] respondent did not have the managerial experience of three years in a 3 Star or above hotel. If managerial experience was a criteria, there were other candidates who had much more experience than the 6[th] respondent. In spite of such experience, those candidates were awarded lesser marks than the 6[th] respondent. Learned Counsel also allege that only 2 among the 9 candidates were ladies and the manner in which marks were awarded for interview is indicative of a deliberate attempt to oust the ## W.P.(C) No.26327 of 2020 -13- ladies by granting them lesser marks. It is contended that the disparity in the marks obtained for the written test and granted for the interview is relevant factor supporting the contention of _mala fides_ and bias. To buttress this contention, reliance is placed on the Apex Court's decision in _**Jasvinder Singh and others v. State of J and K and others [2003(2) SCC 132] and Sri.Jyotish Kaiborta and others v. State of Assam and others [(2009) 4 SCC 516]**_ . 7. The facts not being in dispute, are not reiterated. The short question is whether the selection and appointment is vitiated by reason of the 4[th] respondent being a member of the interview board and the disparity in the marks obtained for written test and interview. Admittedly, the interview panel consisted of four members, being the Chairman, Managing Director and Marketing Manager of the KTDC along with -14- ## W.P.(C) No.26327 of 2020 these subject experts/4[th] respondent. Being so, it is difficult to accept the contention that the 4[th] respondent had prevailed over the other three members and managed to secure higher marks for the 6[th] respondent and to lessen the marks awarded to the petitioner. Here, it is to be noted that preference is to be given to candidates with experience in a managerial position in three star and above hotels. The petitioner's experience is only as a Front Office Assistant and Guest Service Associate, whereas the 6[th] respondent has got experience in a managerial position, even taking into account the objection raised by the petitioner. The lack of petitioner's experience in a managerial position and the experience of the 6[th] respondent could have contributed to the disparity in marks. The interview board would have also considered the performance of the candidates. The mark for performance in the interview is based on the subjective satisfaction ## W.P.(C) No.26327 of 2020 -15- of the members of the panel. It is not for this Court question the wisdom of the members or to substitute the marks. Even in _**Jasvinder Singh**_ , the Apex Court has observed that there is no guarantee that a person who fared well in written test will or should be presumed to have fared well in _viva voce_ test. As held in _**Madanlal**_ , the assessment on merits made by an expert committee cannot be challenged only on the ground that the assessment was not proper or justified as that would be the function of an appellate body and the constitutional court is not acting as a court of appeal over the assessment of the expert committee. 8. It is also settled by a plethora of decisions, including _**Siraj K.H.**_ , that it is not open for a candidate to turn around and challenge the process of interview as unfair or constitution of a selection committee as illegal, W.P.(C) No.26327 of 2020 -16- only because the result of the interview is not palatable to him/her. Therefore, in spite of the erudite contentions put forth by the learned Counsel for the petitioner, I find no justifiable reason to interfere and set aside the appointment of the 6[th] respondent. **==> picture [381 x 12] intentionally omitted <==** dismissed. **==> picture [34 x 12] intentionally omitted <==** **V.G.ARUN** **JUDGE** Scl/ W.P.(C) No.26327 of 2020 -17- ## **APPENDIX OF WP(C) 26327/2020** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE POSTGRADUATE DEGREE PROVISIONAL CERTIFICATE ISSUED BY IGNOU DATED 20.3.2019. EXHIBIT P1(A) TRUE COPY OF THE B.SC DEGREE CERTIFICATE ISSUED BY IGNOU DATED 14.8.2014. EXHIBIT P2 TRUE COPY OF THE NOTIFICATION DATED 11.2.2020 ISSUED BY THE IST RESPONDENT. EXHIBIT P3 TRUE COY OF THE MEMO DATED 3.9.2020 ISSUED BY THE IST RESPONDENT. EXHIBIT P4 TRUE COY OF THE MARK SHEET EXHIBITED IN THE PREMISES OF THE IST RESPONDENT ON 19.9.2020. EXHIBIT P5 TRUE COPY OF THE RANKED LIST DATED 19.9.2020 ISSUED BY THE IST RESPONDENT. EXHIBIT P6 TRUE COPY OF THE RANKED LIST DATED 12.11.2019 ISSUED BY THE IST RESPONDENT FOR THE POST OF MARKETING EXECUTIVE.