Dr. Asha Arjunan v. Regional Cancer Centre, Thiruvananthapuram and Others

W.P.(C).No.16433 of 2020 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 23[RD] DAY OF NOVEMBER 2022 / 2ND AGRAHAYANA, 1944** ## **WP(C) NO. 16433 OF 2020** ## **PETITIONER:** DR.ASHA ARJUNAN MD, DNB AGED 47 YEARS D/O. V. ARJUNAN, USHAS, NO.13, TILAK NAGAR, PAROTTUKONAM, NALANCHIRA P. O., THIRUVANANTHAPURAM - 695 015. BY ADV SURYA BINOY ## **RESPONDENTS:** 1 REGIONAL CANCER CENTRE REPRESENTED BY ITS DIRECTOR, MEDICAL COLLEGE P. O., THIRUVANANTHAPURAM - 695 011. 2 THE DIRECTOR REGIONAL CANCER CENTRE, MEDICAL COLLEGE P. O., THIRUVANANTHAPURAM - 695 011. 3 ADDITIONAL DIRECTOR (ACADEMIC) AND CONVENER OF SENIOR STAFF SELECTION COMMITTEE REGIONAL CANCER CENTRE, MEDICAL COLLEGE P. O., THIRUVANANTHAPURAM - 695 011. 4 PROFESSOR AND HEAD OF DIVISION DEPARTMENT OF RADIATION ONCOLOGY, REGIONAL CANCER CENTRE, THIRUVANANTHAPURAM - 695 011. BY ADVS. SRI.T.A.SHAJI (SR.) SRI.ATHUL SHAJI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.10.2022, THE COURT ON 23.11.2022 DELIVERED THE FOLLOWING: W.P.(C).No.16433 of 2020 2 ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = =** ## **W.P.(C).No.16433 of 2020** **= = = = = = = = = = = = = = = = Dated this the 23[rd] day of November, 2022** ## **JUDGMENT** 1.The challenge in this writ petition is against Exhibit P17 proceedings of the Director, Regional Cancer Centre, Thiruvananthapuram dated 7/2/2020. The petitioner also seeks promotion as Additional Professor with effect from 21/2/2017. The petitioner joined service on 21/02/2006 as Lecturer in Radiotherapy. She was promoted as Assistant Professor in Radiotherapy on 21/02/2009 and to the post of Associate Professor in Radiation Oncology with effect from 21/2/2013. The dispute raised in this writ petition is with regard to the promotion to the post of Additional Professor for the year 2017. It is submitted that the petitioner was eligible for promotion to the post of Additional Professor with effect from 21/02/2017. Going by the service regulations governing the first respondent, the Senior Staff Selection Committee is required to assess a candidate's suitability for promotion on the basis of performance appraisals, confidential reports as W.P.(C).No.16433 of 2020 3 well as an interview. It is submitted that for the assessment year 2017, the performance appraisal and confidential reports which were relevant were for the years 2013 to 2017. It is submitted that the petitioner's confidential reports for the years 2015, 2016 and 2017 were missing from the office of the 4[th] respondent. It is the specific case of the petitioner that the petitioner's confidential report was consistently excellent and the records for the year 2013 and 2014 are produced in support of the said contention. It is submitted that since the confidential reports were found missing, an attempt was made to prepare the confidential reports by an officer, who was never the Head of the Department at the relevant time. The petitioner was given C and D grades in the said confidential reports and was resultantly denied the promotion for the year 2017. The petitioner approached this Court against the denial of promotion and by Exhibit P13 judgment dated 25/07/2019, the respondents were directed to reconsider the claim of the petitioner for promotion to the post of Additional Professor, taking note of Exhibits P5(a) and P5(b) confidential reports therein and after following the due procedure, as provided in W.P.(C).No.16433 of 2020 4 the service rules. It is submitted that this Court had in the judgment clearly held that the confidential reports for the year 2015, 2016 and 2017, which had been prepared by an officer who was not the Head of the Department and who had no direct knowledge of the performance of the petitioner during the said period could not be relied upon to deny promotion to the petitioner. It is submitted that thereafter the petitioner was called for interview for the post of Additional Professor with effect from 21/02/2018 and was found eligible for such promotion. W.P.(C).No.16588 of 2019 was, therefore, closed recording that the petitioner had been offered promotion as Additional Professor in Radiation Oncology in respect to the year 2018. Thereafter, pursuant to Exhibit P13 judgment, the petitioner's claim for promotion from 21/2/2017 was again considered. Exhibit P16 proceedings were issued and the petitioner was found not fit for promotion as Additional Professor with effect from 21/02/2017. The petitioner filed Contempt of Court No.2318 of 2019 alleging non-compliance of the directions contained in Exhibit P13 judgment. She was again directed to appear for an interview W.P.(C).No.16433 of 2020 5 on 23/01/2020 for reconsidering her claim for promotion in the year 2017. Thereafter, Exhibit P17 order was passed. It is stated in the order as follows:- “3) Accordingly, the Senior Staff Selection Committee of the Regional Cancer Centre was again convened for reconsideration of the eligibility of Dr. Asha Arjunan, Additional Professor, Radiation Oncology Department, Regional Cancer Centre, Trivandrum for Flexible Complementation Promotion (FCP) as Additional Professor afresh, with reference to 21/02/2017. The Committee, therefore, meticulously examined the claim of the Dr. Asha Arjunan, in its meeting held on 23 01/2020. She was heard in person. All her claims were considered. After an elaborate consideration of all the relevant inputs, the Committee recommended as follows: 4) “The Committee examined and considered the self assessment pertaining to academic & research achievements/activities and confidential reports during the assessment period (2013-2017) and performance in the interview conducted on 23/01/2020. The Committee unanimously found the candidate not eligible for promotion to the post of Additional Professor, based on performance in the assessment period and the interview conducted today (23/01/2020)” 5) The Proceedings of the Senior Staff Selection Committee of its meeting held on 23/01/2020, has been examined in detail. On the basis of the findings of the Senior Staff Selection Committee that Dr. Asha Arjunan was not eligible for Flexible Complementing Promotion as Additional Professor with effect from 21/02/2017 ie. on her first eligible date, it is hereby decided to decline the claim of Dr. Asha W.P.(C).No.16433 of 2020 6 Arjunan for FCP as Additional Professor with effect from 21/02/2017 and ordered accordingly. “ 2.The learned counsel for petitioner submits that the entire exercise is vitiated by mala fide and extraneous considerations and that the proceedings issued are liable to be set aside on that short ground. It is contended that the decision not to promote the petitioner with effect from 21/2/2017 was apparently a premeditated decision taken by the respondents and that the same is clearly vitiated by colourable exercise of power. It is contended that the Senior Staff Selection Committee, which met on 19/07/2019, had specifically considered the petitioner's performance and she was recommended for promotion for the year 2018 based on her very good performance in the interview and on fulfilling other criteria. It is submitted that therefore the finding recorded in Exhibit P17 that the petitioner's performance in the interview was so abysmal as to make her completely ineligible for promotion is clearly a statement made only to deny the promotion to the petitioner. It is submitted that read along with the earlier proceedings that is, Exhibit P16 W.P.(C).No.16433 of 2020 7 and the fact that the respondents had been required to reconsider the suitability of the petitioner for promotion in 2017 repeatedly by this Court would lead to the inescapable conclusion that the respondents had taken a premeditated decision not to grant the petitioner the promotion for the year 2017 and it is therefore contended that the findings of the Senior Staff Selection Committee being vitiated by mala fides and extraneous considerations cannot be accepted and Exhibit P17 is liable to be set aside. 3.A detailed counter affidavit has been placed on record by the respondents. It is submitted therein that the petitioner had been required by the Convener, Senior Staff Selection Committee to appear for an interview on 25/04/2018 for considering her eligibility for Flexible Complementing Promotion as Additional Professor. The Senior Staff Selection Committee held on 12/5/2018 considered the question of suitability of the petitioner and did not recommend the petitioner for promotion with effect from 21/2/2017 for the reason of “lack of concepts of processes in patient care, W.P.(C).No.16433 of 2020 8 grossly inadequate research and publication records”. It is submitted that the petitioner was informed of the rejection by Exhibit P12, which was challenged in W.P.(C).No.28630 of 2018. However, the petitioner was assessed for the next year and the Senior Staff Selection Committee held on 19/07/2019 recommended her for promotion as Additional Professor based on very good performance in interview, a total of three publication but not fulfilling criteria, an additional academic qualification, many completed projects and an original research paper under review. It is stated that by Exhibit P13 judgment Exhibit P12 was set aside and the petitioner's claim for promotion was directed to be considered, taking note of the confidential reports for the year 2013 and 2014 and after following due procedures as per the rules. It is stated that thereafter the Staff Selection Committee met on 12/10/2019 to reconsider the eligibility of the petitioner, but found that the petitioner was not eligible to be promoted in 2017. The petitioner filed Contempt of Court Case No.2318 of 2019 and this Court opined that the recommendation that the subject knowledge as on the date of the first assessment cannot be W.P.(C).No.16433 of 2020 9 reassessed was not in terms of the judgment and the Senior Staff Selection Committee was again convened on 23/01/2020 to reconsider the eligibility of the petitioner for Flexible Complementing Promotion as Additional Professor afresh with reference to 21/02/2017. It is submitted that the said Committee considered only the Annual Confidential Reports for the year 2013 and 2014 for determining the eligibility of the petitioner and her subject knowledge was assessed in detail by all the members of the Committee. - 4.It is stated that the Committee recommended as follows:- “ the committee examined and considered the self assessment pertaining to academic and research achievements/activities and confidential reports during the assessment periods (201317) and performance in the interview conducted on 23/01/2020. The committee unanimously found the candidate not eligible for promotion to the post of Additional Professor based on the performance in the assessment period and the interview conducted today (23.1.2020)”. W.P.(C).No.16433 of 2020 10 - 5.It is stated that the rejection was clearly on the basis of the poor performance of the petitioner in the interview and that only the annual confidential reports for the years 2013 and 2014 were considered by the Committee. - 6.The learned counsel appearing for the respondents would contend that the subjective satisfaction of the Staff Selection Committee cannot be interfered with by this Court in exercise of its extraordinary original jurisdiction and that since the procedure had been fully followed while considering the petitioner for promotion for the year 2017, the petitioner can have no further grievance in the matter. - 7.A reply affidavit has also been placed on record by the petitioner wherein it is specifically contended that the rejection of the petitioner's claim for promotion with effect from 21/02/2017 on the ground of poor performance in interview is clearly indicative of the mala fides, since the very same Staff Selection Committee had on 19/07/2019 found that the petitioner had performed exceptionally well in the W.P.(C).No.16433 of 2020 11 interview. It is stated that the discrepancy in the reason stated for the denial of promotion in paragraph 12 of the counter affidavit and in the extract from the minutes is itself indicative of the arbitrariness and the extraneous consideration. It is contended that there was no fixed weightage provided for the interview and that all the material, which was considered by the Senior Staff Selection Committee on 19/07/2019 to find the petitioner fit for promotion was available and relevant on 23/01/2020 also. It is contended that the petitioner had performed extremely well in the interview and had answered all questions put to her. - 8.Relying on a decision of the Apex Court in **State of Maharashtra and others vs Pratapsingh Dayalsingh** **Rajput** [1998) 9 SCC 515], it is contended that a decision not to promote an officer must be informed by proper reasons which must be recorded at least in the minutes. A decision of a Division Bench of the High Court of Karnataka in **C.Channe Gowda vs High court of Karnataka** [ILR 2004 Karnataka 4633] is also relied on to contend that where there was no W.P.(C).No.16433 of 2020 12 adverse remarks in any of the service records, the rejection of the claim for promotion on completely subjective criteria without any recording of reasons is bad in law. It is contended that the petitioner had not acquired any additional qualifications between 2017 and 2018 and all the material which was considered for granting the petitioner promotion for the year 2018 were in existence for the previous year as well. It is submitted that all the 19 papers referred to in Exhibit P19, which was the document forwarded by the respondents to the Kerala University of Health Sciences were published during the period 2013 to 2017 and the petitioner was identically situated with regard to eligibility of promotion for the year 2017 as she was in 2018. It is submitted that it is only on account of the fact that the respondents had taken a decision not to promote the petitioner in 2017 that Exhibit P17 proceedings had been issued. The decision of the Apex Court in **Ratnagiri Gas and Power Pvt.Ltd v. R.D.S Projects Ltd. and others** [AIR 2013 SC 200] is also relied on to contend that where the contention is with regard to legal malice or malice in law, the question which requires to be W.P.(C).No.16433 of 2020 13 considered is only whether there was any proper material for the authority concerned to reach the conclusion which has been arrived at. It is contended that malice in law only means exercise of power for purpose foreign to those for which it is in law intended. 9. I have heard the learned counsel for the petitioner as well as the learned counsel of the respondents at considerable length. The learned counsel for the petitioner has taken me in detail through the contentions raised in the writ petition, specifically with regard to the findings of the Senior Staff Selection Committee which met on 19/07/2019 as opposed to the findings of the Staff Selection Committee which met on 23/01/2020. It is contended that a prior decision had been taken by the respondents not to grant the petitioner promotion as Additional Professor in the year 2017. It is submitted that though this Court had specifically found that the rejection of her claim for promotion was wrong, the respondents had been taking the adamant stand that she would not be promoted in 2017. For the year 2018, she was W.P.(C).No.16433 of 2020 14 found eligible on account of other parameters as also due to her excellent performance in the interview. Though it is true that the performance in the interview is a matter of subjective satisfaction of the respondents, I fail to see how a person who was found to have performed exceedingly well in the interview held for the promotion to the very same post on 19/07/2019 can be said to have fared so abysmally in the interview held on 23/01/2020 so as to dis-entitle her to promotion in spite of all other criteria being equal. This Court in normal circumstances would not examine the subjective satisfaction of a Board interviewing a candidate for promotion. However, a Division Bench of this Court in **Razia K.I (Dr) v. University of Kerala, Tvm and others** [2022 (2) KHC 623] has held that illegality committed in the process of selection can be a ground to challenge the selection process itself and where it is seen from the materials on record that the award of marks in the interview was without basis or rationale, the appointment is liable to be interfered with. In the instant also, where the respondents have been repeatedly declining the claim of the petitioner for promotion in the year W.P.(C).No.16433 of 2020 15 2017 on one reason or another and in view of the fact that the petitioner was found fully eligible and fit for the post in the next year, the contention of the petitioner that the finding recorded by the selection committee was without any basis or rationale whatsoever is liable to be accepted. On a consideration of the pleadings and the materials on record, I am of the opinion that the rejection of the claim of the petitioner for promotion w.e.f. 21.2.2017 is not based on any materials or rationale and is therefore vitiated by malice in law. In the result, Exhibit P17 order is set aside. There will be a direction to the respondents to grant the petitioner retrospective promotion from 21/02/2017 and to release all consequential benefits to her. The writ petition is ordered accordingly. sd/- ## **Anu Sivaraman, Judge** sj W.P.(C).No.16433 of 2020 16 ## **APPENDIX OF WP(C) 16433/2020** PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE ORDER NO.5239/ADMN.1/2009/RCC DATED 21.04.2009. EXHIBIT P2 A TRUE COPY OF THE ORDER NO.1908/ADMN.1/2014/RCC DATED 27.01.2014. EXHIBIT P3 TRUE COPY OF THE RELEVANT EXTRACT OF SERVICE RULES APPLICABLE TO THE 5TH RESPONDENT. - EXHIBIT P4 TRUE COPY OF THE RESOLUTION OF THE GOVERNING BODY OF THE 5TH RESPONDENT DATED 07.08.2002. - EXHIBIT P5 TRUE COPY OF THE CIRCULAR NO.2030/2002/ADMN.1/RCC DATED 22.10.2002. - EXHIBIT P6 TRUE COPY OF THE ORDER NO.2030/ADMN.1/2012/RCC DATED 24.12.2012 OF THE 2ND RESPONDENT. - EXHIBIT P7 TRUE COPY OF THE CONFIDENTIAL REPORT PERTAINING TO THE PETITIONER'S PERFORMANCE FOR THE YEAR 2013. - EXHIBIT P8 TRUE COPY OF THE CONFIDENTIAL REPORT PERTAINING TO THE PETITIONER'S PERFORMANCE FOR THE YEAR 2014. - EXHIBIT P9 TRUE COPY OF THE CONFIDENTIAL REPORT PERTAINING TO THE PETITIONER'S PERFORMANCE FOR THE YEAR 2015. W.P.(C).No.16433 of 2020 17 - EXHIBIT P10 TRUE COPY OF THE CONFIDENTIAL REPORT PERTAINING TO THE PETITIONER'S PERFORMANCE FOR THE YEAR 2016. - EXHIBIT P11 TRUE COPY OF THE CONFIDENTIAL REPORT PERTAINING TO THE PETITIONER'S PERFORMANCE FOR THE YEAR 2017. - EXHIBIT P12 TRUE COPY OF THE LETTER NO.RCC/378/2018ADMN.I DATED 21.05.2018 INTIMATING THE DENIAL OF PROMOTION TO THE PETITIONER TO THE POST OF ADDITIONAL PROFESSOR IN RADIATION ONCOLOGY ISSUED BY THE ADMINISTRATIVE OFFICER, RCC. - EXHIBIT P13 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 25.07.2019 IN WPC 28630 OF 2018. - EXHIBIT P14 TRUE COPY OF THE PROCEEDINGS OF THE DIRECTOR DATED 17.10.2019. - EXHIBIT P15 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 21.11.2019 IN W.P. (C) NO.16588 OF 2019. - EXHIBIT P16 TRUE COPY OF THE PROCEEDINGS BEARING NO.RCC/1703/2019-ADMN.1 DATED 05.11.2019. - EXHIBIT P17 TRUE COPY OF THE PROCEEDINGS OF REGIONAL CANCER CENTRE, THIRUVANANTHAPURAM DATED 07.02.2020. - EXHIBIT P18 TRUE COPY OF THE COUNTER - AFFIDAVIT FILED BY THE 3RD RESPONDENT FILED ON 06.03.2020 IN CCC 2318 OF 2019 ALONG WITH ANNEXURE R1 THEREOF. - EXHIBIT P19 TRUE COPY OF THE DOCUMENT FORWARDED BY THE RESPONDENT TO KUHS DATED 19.10.2019. W.P.(C).No.16433 of 2020 18 EXHIBIT P20 TRUE COPY OF THE REQUEST FOR INFORMATION FILED BY THE PETITIONER UNDER THE RTI ACT BEFORE THE RESPONDENTS DATED 18.05.2018. EXHIBIT P21 TRUE COPY OF THE RESPONSE FURNISHED BY THE PUBLIC INFORMATION OFFICER DATED 16.06.2018. True copy PS to Judge