Dr. Muhammed Anees Al-Riyas v State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 27TH DAY OF JULY 2011 / 5TH SRAVANA 1933 ## **WP(C).No. 20138 of 2011** ## **PETITIONER** DR.MUHAMMED ANEES AL-RIYAS, MANIMUNDA HOUSE, KOODATHAI BAZAR P.O., THAMARASSERY (VIA), KOZHIKODE DISTRICT - 693 573. ADV.SRI.ANIL K NARENDRAN ## **RESPONDENTS** : 1. STATE OF KERALA, - REP. BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695001 2. DIRECTOR OF INDIAN SYSTEMS OF MEDICINE, AROGYA BHAVAN, THIRUVANANTHAPURAM 695001 3. STATE MISSION DIRECTOR, NATIONAL RURAL HEALTH MISSION (NRHM), RCH BUILDING, DIRECTORATE OF HEALTH SERVICES, GENERAL HOSPITAL JUNCTIOIN, THIRUVANANTHAPURAM 695035. 4. THE STATE PROGRAMME MANAGER (NRHM), STATE PROGRAMME MONITORING SUPPORT UNIT, NRHM, DIRECTORATE OF HEALTH SERVICES, THIRUVANANTHAPURAM- 695035. 5. DR.SPENCER JONES.S., - S/O.DR.STANLEY JONES, 103, ENJAKKAL RESIDENTS ASSOCIATION,, VALLAKKADAVU P.O., THIRUVANANTHAPURAM 695008. BY GOVERNMENT PLEADER SRI.A.J.VARGHESE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27-07-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 20138 of 2011 ## **APPENDIX** PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF DEGREE CERTIFICATE DATED 6.12.2010 ISSUED TO THE PETITIONER BY THE UNIVERSITY OF KERALA. - EXT.P2: TRUE COPY OF REGISTRATION CERTIFICATE DATED 31.7.2009 ISSUED TO THE PETITIONER, BY THE TRAVANCORE-COCHIN MEDICAL COUNCIL FOR INDIAN SYSTEMS OF MEDICINE. - EXT.P3: TRUE COPY OF G.O.(Rt.)NO.684/2011/H&FWD DATED 23.2.2011 ISSUED BY THE 1ST RESPONDENT. - EXT.P4: TRUE COPY OF NOTIFICATION DATED 4.1.2011, ISSUED BY THE 3RD RESPONDENT. - EXT.P5: TRUE COPY OF THE PRINT OUT OF ONLINE APPLICATION SUBMITTED BY THE PETITIONER, ON 1.7.2011. - EXT.P6: TRUE COPY OF HALL TICKET DATED 22.2.2011 ISSUED BY THE 4TH RESPONDENT. - EXT.P7: TRUE COPY OF THE RANK LIST OF MEDICAL OFFICER (SIDDHA), DATED NIL, PUBLISHED IN THE WEBSITE www.arogyakeralam.gov.in, ON 15.6.2011. - EXT.P8: TRUE COPY OF APPLICATION DATED 17.6.2011 SUBMITTED BY THE PETITIONER BEFORE PUBLIC INFORMATION OFFICER IN THE OFFICE OF THE 3RD RESPONDENT. - EXT.P9: TRUE COPY OF REPLY DATED 22.6.2011 SEND BY THE STATE PUBLIC INFORMATION OFFICER IN THE OFFICE OF THE 3RD RESPONDENT. - EXT.P10: TRUE COPY OF REPRESENTATION DATED 2.7.2011 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. - EXT.P11: TRUE COPY OF REPRESENTATION DATED `NIL' SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. TKS ## **C.T.RAVIKUMAR, J.** ---------------------------- W.P.(C)No.20138 of 2011 ---------------------------Dated 27[th] July, 2011 ## **JUDGMENT** As per Ext.P4 notification dated 4.1.2011 issued by the State Mission Director of National Rural Health Mission (NRHM) applications were invited for appointment to various posts including 17 posts of Medical Officer (Sidha) in the Districts of Trivandrum, Kollam, Alappuzha, Idukki, Ernakulam, Kozhikode, Malappuram & Kannur. The petitioner responded to the said notification. Evidently, the notification was for effecting appointments on contract basis. Ext.P5 would reveal that the petitioner submitted an application for getting appointment in Kozhikode District. On 5.3.2011 a written test was conducted. Thereafter, an interview was conducted on the same day itself. On 15.6.2011 Ext.P7 rank list was published. Admittedly, the name of the petitioner also figured in Ext.P7 rank list. The petitioner has grievances against Ext.P7. Firstly it is contended that going by the notification, District wise rank lists are to be published. However, it is contended that only a single rank list was published in respect of the category of Medical Officer (Sidha). Going by Ext.P4, selection has to be conducted based on qualifications, experience and performance in the written test and interview. The contention of the petitioner is that if the selection WP(C).No.20138/2011 2 was conducted strictly adhering to clause 3 in Ext.P4 the petitioner would have obtained a higher position in the rank list. It is contended that though the appointment is proposed to be effected on contract basis there is a likelihood of making the appointments regular at a later point of time. Shortly after the publication of Ext.P7 list the petitioner has submitted an application before the Public Information Officer attached to the Office of the third respondent to get information as to whether Ext.P7 rank list was published following the communal rotation. The further contention of the petitioner is that going by Ext.P9, it is evident that communal rotation was not followed while preparing the rank list. It is in the said circumstances that the petitioner has submitted yet another representation viz.,Ext.P10 dated 2.7.2011 and that was followed by Ext.P11 representation dated nil. The further contention of the petitioner is that the buildings for the temporary Sidha Dispensaries are yet to be ready and despite this situation the respondents are taken steps to issue orders of appointment. The said undue hasty action, according to the petitioner, is only to see that persons holding higher ranks in the list are getting appointment. In short, the sum and substance of the contention of the petitioner is that the written test and interview were conducted in an improper manner adopting nepotism and political patronage. WP(C).No.20138/2011 3 Clause 3 in Ext.P4 would reveal that the selection would be based on qualifications, experience and performance in the written test and interview. The list was prepared on its consideration and merit was not at all taken into account. 2. As already noticed hereinbefore, the petitioner who participated in the said selection process is also included in the rank list of 91 candidates and his name appears against serial No.88. It is after participating in the said selection process that the petitioner is challenging the process of selection. In paragraph 5 of the writ petition it is stated thus:- _“There were 20 questions in the question paper and the questions were not based on the syllabus or related subjects. The invigilator who was in the examination hall informed the candidates that they can change the answer already marked if they feel that it is a wrong answer.”_ It is with the said vague allegation that the petitioner is attempting to challenge the selection process in which he had participated and he was assigned to rank No.88. I am of the view that a person who participated in the selection cannot challenge the selection process with such vague allegations. Going by the said position of law, an unsuccessful candidate cannot turn around and challenge the selection process. Here is a case WP(C).No.20138/2011 4 wherein the petitioner cannot be described as an unsuccessful candidate as his name is also included in the rank list and, therefore, the grievance of the petitioner can only be that on account of his own assessment he should have been given a higher rank in the list. However, after conducting the selection process the respondents assessed him and placed him only at Sl.No.88. I am of the view that on the basis of the vague allegation as has been extracted above this Court cannot interfere with the selection process. At the outset, it would appear that the action on the part of the respondents in conducting the examination for 91 candidates and then immediately after its conclusion conducting the interview is improper and irregular. True that, shortly after the conclusion of the written test they commenced the interview. However, it is evident that all the 91 persons who participated in the written test were subjected to interview. In other words, it is not a case wherein only successful candidates in the written test alone were permitted to partake in the interview. After conducting the written test and the interview they prepared Ext.P7 list. Considering the fact that the appointments are effected only on contract basis, in other words, not on regular basis, I cannot come to any conclusion that the selection process is vitiated on account of resorting to such a method. Evidently, the WP(C).No.20138/2011 5 method of selection consisted of a written test and interview. The persons who appeared in the written test were permitted to participate in the interview. It is based on their performance in the written test as also in the interview that a list was prepared. Merely because of his own assessment the petitioner is meritorious cannot be a reason for this Court to interfere with the selection process. True that, in Ext.P4 the respondents have made it clear that after the selection process the candidates would be placed on merit in the District wise rank list. Ext.P7 cannot be construed as a District wise rank list. All the candidates have been included therein. But that alone cannot be a reason for this Court to interfere with the selection process. The petitioner did not have a case that a person who applied in a particular District is being given appointment in another District in which he is not an applicant. If any of the candidates were considered for appointment in a District which is not opted by him, necessarily the petitioner would have a grievance. Therefore, since in Ext.P4 itself it is made clear that the appointments of the 17 Medical Officers are to be effected in Trivandrum, Kollam, Alappuzha, Idukki, Ernakulam, Kozhikode, Malappuram & Kannur Districts and required the applicants to specify the District of his/her choice, I am of the view that the persons whose names are figured in WP(C).No.20138/2011 6 Ext.P7 list can only be considered for appointment in the particular District in which he/she had preferred in terms of the application. I am of the view that such a direction be enough to rectify the mistake committed by the respondents in not preparing separate District wise rank lists. However, it is made clear that it will be open to the respondents to split up Ext.P7 in such a manner to arrange the candidates in the order of merit by preparing District wise rank list. For that purpose, necessarily the choice of all the candidates have to be taken into account. 3. The learned counsel for the petitioner relied on the decision of the Hon'ble Apex Court in _**Ramesh Kumar**_ v. _**High Court of Delhi and another**_ **((2010) 3 SCC 104)** and the Full Bench decision of this Court in _**Saurabh Jain**_ v. _**State of Kerala**_ **(2011 (1) KLT 888)** . Relying on the former decision the learned counsel for the petitioner submitted that since the respondents have changed the selection process in the midst of the selection process it is liable to be interfered with. The latter decision is relied on by the petitioner to canvass the position that estoppel cannot be a defence available to the State when its action is challenged on the ground of violation of any fundamental right or the provisions of the Constitution. As already noticed hereinbefore, in Ext.P4 WP(C).No.20138/2011 7 itself the respondents have made it clear that the selection would be conducted based on a written test and interview. Admittedly, they have conducted a written test and interview and it is based on the marks scored by each of the candidates at the written test as also in the interview that Ext.P7 list was prepared. The contention of the petitioner is that clause 3 thereunder was not followed and if the qualifications, experience and performance in the written test and interview was properly assessed he would have been assessed at a higher rank. There is nothing before this Court to arrive at a conclusion that the qualification, experience and performance at the written test and interview were not taken into consideration for preparing Ext.P7. I am of the view that in view of the decision of the Hon'ble Apex Court in _**K.A.Nagamani**_ v. _**Indian Airlines and others**_ **((2009) 5 SCC 515)** the contentions of the petitioner are not sustainable. Admittedly, the petitioner has participated in the selection process. As noticed hereinbefore, he cannot be described as an unsuccessful candidate. Even in the case of an unsuccessful candidate the Hon'ble Apex Court held that after participating in selection process unsuccessfully a person cannot be permitted to turn around and challenge the process of selection. In this case, I am of the view that the petitioner, as already WP(C).No.20138/2011 8 noticed, cannot be considered as an unsuccessful candidate among the 91 candidates appeared for the written test and interview. He was assigned rank No.88. The position of the petitioner as regards Kozhikode District is not known. I am of the view that the direction I have given earlier hereinbefore, would definitely redress the grievance of the petitioner to certain extent. In other words, the challenge against the selection process made by the petitioner with the averments referred to hereinbefore is liable to fail. In view of the said position obtained in this case, this writ petition is disposed of with a direction to the respondents to do the needful in view of the direction made hereinbefore. Sd/C.T.RAVIKUMAR Judge TKS