Jayachandran.R v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 11TH DAY OF JUNE 2019 / 21ST JYAISHTA, 1941 WP(C).No.13387 of 2019** ## **PETITIONER/S:** **JAYACHANDRAN.R AGED 46 YEARS S/O.K.P.RAMACHANDRAN PILLAI, PUTHUVEETTIL VARAMBIL, NEENDAKARA.P.O., KOLLAM-691582.** **BY ADV. SRI.C.UNNIKRISHNAN (KOLLAM)** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, TRIVANDRUM-01** - **2 PRINCIPAL SECRETARY, INDUSTRIES DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM-01** - **3 PRINCIAPAL SECRETARY DEPARTMENT OF PLANNING AND ECONOMIC AFFAIRS, GOVERNMENT SECRETARIAT, TRIVANDRUM-01** - **4 KERALA PUBLIC ENTERPRISES SELECTION BOARD, REPRESENTED BY MEMBER SECRETARY, 5TH FLOOR, ANNEX-1, SECRETARIAT, TRIVANDRUDM-01.** - **5 THE KERALA MINERALS & METALS LTD, CHAVARA, KOLLAM.** **BY ADV. GOVERNMENT PLEADER** **SR. GP. BIJOY CHANDRAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.13387 of 2019 2 ## **JUDGMENT** This writ petition is filed seeking the following reliefs:- _A) To declare that Exts.P5 & P9 are arbitrary, unreasonable and unconstitutional. B) To quash the Ext.P5 & P9 order issued by the respondents by the issuance of a writ of certiorari or other appropriate writ, order or direction. C) Issue a writ of Mandamus or an appropriate writ of such nature directing the respondents to include other branches of engineering & MBA as the essential qualification for the post of Managing Director of the 5[th] Respondent Company. D) In the alternative, issue a writ of Mandamus or an appropriate writ of such nature directing the respondents directing MBA to be prescribed as a general essential qualification for the appointment of Managing Directors in PSUs. E) To direct the respondents to consider the Exts.P1 to P4 representation filed by the petitioner forthwith._ 2. Heard the learned counsel for petitioner, the learned Senior Government Pleader appearing for the State of Kerala as well as the learned Standing Counsel appearing for the 5[th] respondent Company. 3. The learned counsel for the petitioner would contend that the fixation of qualification for appointment to the post of Managing Director in the 5[th] respondent by Ext.P5 Government Order WP(C).No.13387 of 2019 3 and the procedure for conduct of selection to the said post by Ext.P9 are vitiated, as much as fixation of qualification is arbitrary and without any logical nexus to the duties and responsibilities of Managing Director of the Company. 4. It is contended that the petitioner has B.Tech in Electronics & Communication and also possessed MBA. It is stated that he had submitted representations before the Kerala Public Enterprises Selection Board as well as the State by Exts.P1 to P4. The contention is that the post of Managing Director in KMML is to be filled up by appointing persons who have MBA qualification and that the fixing of qualification as B.Tech in Chemical Engineering is illegal and is intended to avoid the persons like the petitioner who are otherwise eligible for selection and appointments. 5. Learned counsel for the petitioner would WP(C).No.13387 of 2019 4 contend that Ext.P13 communication would show that the qualifications for appointment to the post of Managing Director in Public Sector Undertakings under the State Government is Graduation in Engineering (Mechanical, Chemical, Industrial Production, Electrical, Electronic, Textiles) after undergoing a full time course and a minimum of 15 years post qualification experience including in senior management post. It is stated that MBA from a recognized university is a required additional qualification. It is contended that in the Central Government Public Sector Undertakings also the qualification is graduation with MBA or LLB. It is, therefore, contended that the fixation of qualification for B.Tech in Chemical Engineering for appointment to the post of Managing Director in the 5[th] respondent is completely unsustainable and the selection on the basis of Ext.P5 Government Order fixing the WP(C).No.13387 of 2019 5 qualification on Ext.P9 inviting application prescribed is to be set aside. 6. A statement has been placed on record by the respondents. It a contended therein that the 5[th] respondent is a State Government undertaking and the appointment of Managing Directors of State Public Sector Undertakings is to be made on the advice of the State Public Enterprises Selection Board which was reconstituted by order dated 13.12.2018. It is stated that the vacancies of Managing Directors in Public Sector Undertakings which were lying vacant had been quoted to the Kerala Public Enterprises Selection Board(KPESB) in February, 2019 and the administrative departments of the State of Kerala finalized and submitted eligibility criteria in respect of the 9 positions. It is stated that the second meeting of the reconstituted KPESB had decided to notify the vacancies with the WP(C).No.13387 of 2019 6 prescribed qualifications, and Ext.P9 notification was accordingly issued in respect of the 5[th] respondent Company. 7. It is stated that the qualification and experience prescribed for Managing Director of the 5[th] respondent is B.Tech in Chemical Engineering with good academic record from a recognized University and possession of a minimum 20 years experience of which five years should be independent charge of a Company or a large department in an organization of repute. Further it is prescribed in Ext.P9 that the candidates should presently be working at the level of Managing Director/Director/General Manager and knowledge in Finance, Production, Marketing etc. is desirable. It is stated that the fixation of qualification has been done after considering the ground realities and the necessities for the post of Managing Director in KMML and that there is no WP(C).No.13387 of 2019 **==> picture [8 x 9] intentionally omitted <==** allegation based as to any malafide exercise of the power to prescribe the qualification. 8. The learned Senior Government Pleader would rely on a decision of the Apex Court _,_ in _**Official Liquidator v. Dayanand and Others**_ **[(2008)10 SCC** **1,]** to contend that the creation and abolishment of posts and prescription of the source and mode of recruitment and qualification and criteria of selection are matters which fall within the exclusive domain of the employer and that this Court should be extremely cautious in interfering with the exercise of such discretion by the employer. It is contended that in the absence of any allegations as to malafides it is not open for this Court to consider the adequacy of a qualification prescribed by the employer. 9. The learned counsel for the petitioner would also rely on the decisions of the Apex Court in _**Basavaiah Vs. H.L.Ramesh and Ors**_ **[(2010)8 SCC** WP(C).No.13387 of 2019 8 **372]** _**and in Chandigarh Administration vs. Usha Kheterpal Waie and Others**_ **[(2011)9 SCC 645]** _**.**_ The decisions relied on by the learned counsel for the petitioner are also authority on the point that the prescription of qualification for appointment to a post is a matter for the employer to consider and decide. However, the learned counsel for the petitioner would contend that where the fixation of qualification is completely unreasonable and arbitrary, this Court would be empowered to exercise jurisdiction and to consider the adequacy of the qualification prescribed. 10. I have considered the contentions advanced on either side. The petitioner challenges the prescription of qualification by Ext.P5 order. Ext.P5 specifically provides that the essential qualification would be B.Tech in Chemical Engineering with the prescribed experience. Knowledge in Finance, Production, Marketing etc. WP(C).No.13387 of 2019 9 are desirable. It is stated that these qualifications have been prescribed after considering the requirements of the post and taking note of the business the Company is engaged in. The contention of the petitioner is that in several PSUs, MBA is a prescribed qualification. The function of prescribing qualification for post is essentially with the employer. In the instant case the post is that of Managing Director in a State Public Sector Undertaking. It is for the State Government to take an appropriate decision as to what the qualification for the post should be. The Government has taken an informed decision by Ext.P5 which has been notified in Ext.P9 and the statement discloses that as many as 16 applications have been received, pursuant to Ext.P9. The contention of the petitioner is only that MBA should have been included as an essential qualification and that the petitioner who holds WP(C).No.13387 of 2019 **==> picture [16 x 9] intentionally omitted <==** the qualification of B.Tech in Electrical and Electronic Engineering with an MBA should also be considered for appointment. I am unable to accept the contentions for the simple reason that the competent authority has exercised its discretion and has prescribed the qualification required for the post. On the absence of any sustainable grounds being raised by the petitioner, I am of the opinion that the prescription of the qualifications for a post falls outside jurisdiction of this Court. The writ petition fails and the same is accordingly dismissed. Sd/- **ANU SIVARAMAN** **JUDGE** spk WP(C).No.13387 of 2019 11 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE KERALA PUBLIC ENTERPISES SELECTION BOARD DATED 18.03.2019** - **EXHIBIT P2 TRUE COPY OF THE REPRESENTATION DATED 18.03.2019 SUBMITTED BY THE PETITIONER BEFORE THE CHIEF SECRETARY** - **EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 18.03.2019 SUBMITTED BY THE PETITIONER BEFORE THE INDUSTRIES SECRETARY** - **EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 18.03.2019 SUBMITTED BY THE PETITIONER BEFORE THE PLANNING AND ECONOMIC AFFAIRS SECRETARY** - **EXHIBIT P5 TRUE COPY OF THE GO(MS)NO.15/2019/P&EA DATED 08.03.2019 PRESCRIBING THE MINIMUM QUALIFICATION OF MD OF KMML** - **EXHIBIT P6 TRUE COPY OF THE GO(MS)NO.13/2019/P&EA DATED 08.03.2019 PRESCRIBING THE MINIMUM QUALIFICATION OF MD OF KEALA STATE MINERAL DEVELOPMENT CORPORATION LTD** - **EXHIBIT P7 TRUE COPY OF THE GO(MS)NO.12/2019/P&EA DATED 07.03.2019 PRESCRIBING THE MINIMUM QUALIFICATION OF MD OF MALABAR CEMENTS** - **EXHIBIT P8 TRUE COPY OF THE GO(MS)NO.14/2019/P&EA DATED 8.03.2019 PRESCRIBING THE MINIMUM QUALIFICATION OF MD OF TRAVANCORE CEMENTS** - **EXHIBIT P9 TRUE COPY OF THE NOTIFICATION NO.01/01/2019-KPESB DATED 08/03/2019 FOR APPOINTMENT OF MD IN KMML** WP(C).No.13387 of 2019 12 ## **EXHIBIT P10** **TRUE COPY OF THE NOTIFICATION NO.01/07/2019- KPESB DATED 08/03/2019 FOR APPOINTMENT AS MD IN KERALA ARTISANS DEVELOPMENT CORP.** **EXHIBIT P11** **TRUE COPY OF THE NOTIFICATION NO.01/08/2019 -KPESB DATED 08/03/2019 FOR APPOINTMENT AS MD IN KERALA STATE HANDLOOM DEVELOPMENT CORPORATION LIMITED** - **EXHIBIT P12** **TRUE COPY OF THE NOTIFICATION NO.01/09/2019- KPESB DATED 08/03/2019 FOR APPOINTMENT AS MD IN ARALAM FARMING CORPORATION (KERALA) LIMITED** - **EXHIBIT P13** - **TRUE COPY OF THE NOTIFICATION ISSUED BY THE GOVERNMENT OF KERALA IN 2012 INVITING ONLINE APPLICATION TO THE POST OF MDS IN PSUS** - **EXHIBIT P14 TRUE COPY OF THE NOTIFICATION NO.6/20/2018-PESB ISSUED BY GOVERNMENT OF INDIA THROUGH THE PUBLIC ENTERPRISES SELECTION BOARD IN THE CASE OF STATE TRADING CORPORATION OF INDIA LTD.** - **EXHIBIT P15** **TRUE COPY OF THE NOTIFICATION NO.6/30/2018-PESB ISSUED BY GOVERNMENT OF INDIA THROUGH THE PUBLIC ENTERPRISE SELECTION BOARD IN THE CASE OF BENGAL CHEMICALS AND PHARMACEUTICS LTD.** - **RESPONDENT'S/S EXHIBITS:** - **ANNEXURE R2(A) TRUE COPY OF THE GOVERNMENT ORDER** - **ANNEXURE R2(B) TRUE COPY OF THE GOVERNMENT ORDER DATED**