Josy Joseph and others v LIC of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** ## **FRIDAY, THE 22ND DAY OF JANUARY 2021 / 2ND MAGHA, 1942** ## **WP(C).No.10617 OF 2014(B)** ## **PETITIONERS:** |**1**|**JOSY JOSEPH**| |---|---| ||**DEVELOPMENT OFFICER, SR.NO.536834,**| ||**LIC OF INDIA, PUNALUR BRANCH, PUNALUR.**| |**2**|**SHAJY THOMAS THELLY**| ||**DEVELOPMENT OFFICER, NO.66878,**| ||**CITY BRANCH OFFICE, LIC OF INDIA, PATTOM,**| ||**THIRUVANANTHAPURAM.**| |**3**|**P.KRISHNAKUMAR**| ||**DEVELOPMENT OFFICER, NO.538532,**| ||**LIC OF INDIA, BRANCH OFFICE, PUNALUR.**| ||**BY ADVS.**| ||**SRI.N.DHARMADAN (SR.)**| ||**SMT.D.P.RENU**| ## **RESPONDENTS:** |**1**|**LIC OF INDIA**| |---|---| ||**REPRESENTED BY THE SENIOR DIVISIONAL MANAGER,**| ||**DIVISIONAL OFFICE, PATTOM P.O.,**| ||**THIRUVANANTHAPURAM - 695 001.**| |**2**|**CHAIRMAN**| ||**LIC OF INDIA, 'YOGAKSHEMA',**| ||**CENTRAL OFFICE, FORT, MUMBAI - 400 001.**| |**3**|**SELECTION COMMITTEE**| ||**CONSTITUTED BY THE LIC,**| ||**REPRESENTED BY THE ZONAL MANAGER,**| ||**ZONAL OFFICE, 153,**| ||**ANNA SALAI,**| ||**CHENNAI - 600 002.**| |**4**|**SRI.BHUVANA CHANDRAN V.B.**| ||**DEVELOPMENT OFFICER, LIC OFFICE,**| ||**RANNI, PATHANAMTHITTA DISTRICT - 689 673.**| WP(C).No.10617 OF 2014 2 **5 SIR.SURESH KUMAR N. DEVELOPMENT OFFICER, LIC OFFICE, ATTINGAL, THIRUVANANTHAPURAM - 695 101.** **R1 BY ADV. SRI.S.EASWARAN SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.10617 OF 2014 3 ## **JUDGMENT** **Dated this the 22nd day of January 2021** The petitioners are stated to be working as Development Officers in the services of Life Insurance Corporation of India (LIC), at the time when the Writ Petition was filed. They impugn the selection conducted and the consequent rank list published by the LIC for the purpose of effecting promotions to the post of Assistant Branch Manager on various grounds, but primarily that Regulation No.7(3) of the “LIC Staff Regulations, 1960,” (“Regulations” for short hereinafter) have been violated and that the process of selection was contrary to the provisions of the “Life Insurance Corporation of India Promotion of Development Officers to the Cadre of ABM (S)(Amendment) Rules, 2009,” (“Rules” for short), a copy of which is appended to this writ petition. 2. The petitioners allege that the selection and the final appointments have been conducted and effected by the LIC in a malafide manner, handpicking persons of their choice, thereby denying brilliant and capable officers their legitimate promotion which, they say has been managed by deliberately awarding them lesser marks in the interview. The petitioners, therefore, pray that Ext.P3 – WP(C).No.10617 OF 2014 4 which, according to them, is a list of candidates identified by the LIC pursuant to the selection process - be set aside and they be directed to be promoted as Assistant Branch Manager with effect from 19.2.2014, in preference to the persons included in the said list. 3. I have heard Sri. N. Dharmadan, learned Senior Counsel instructed by Smt. D.P. Renu, learned counsel appearing for the petitioners and Sri.S.Easwaran, learned Standing Counsel appearing for the LIC. 4. Sri.N.Dharmadan **,** learned Senior Counsel, began his submissions by showing me that both direct recruitments and promotions in the services of the LIC are governed by Regulation 7(3) of the Regulations and that, as per it, promotions are to be made based on merit and suitability of the candidates and seniority. He further pointed out that the said Regulation makes it incumbent that merit and suitability be adjudged through assessment of confidential reports and/or through an interview. The learned Senior Counsel submitted that, however, contrary to the mandatory tenor of the Regulations, the LIC has calculatingly jetisonned excellence and credentials of the candidates by awarding them much lesser marks than what they were entitled to, thus eliminating them from the process capriciously and for confutative reasons. WP(C).No.10617 OF 2014 5 5. Sri.N.Dharmdan explained his clients’ position by showing me that the answers given by the Public Information Officer of the LIC - which has been made available under the Right to Information Act, as per Ext.P7 annexed to this writ petition - would show that out of the eighty nine candidates who were invited to take part in the interview, sixty, including the petitioners, were given below 9 marks out of 25, and that this is egregiously improper because, going by the “Rules” and in particular Rule 2(J) thereof, only a candidate who obtains 9 or more marks in the interview would be eligible to be considered for promotion; thus demonstrating that this cut-off has been manipulated by the Selection Committee to eliminate persons who were not within their subjective choice. 6. The learned Senior Counsel further submitted that, in fact, the process now adopted by the LIC is in clear violation of the Regulations as also the “Rules,” because the Annual Confidential Reports of the various candidates, including that of his clients, have never been intimated to them and therefore, that reliance on the same for the purpose of evaluating their performance or competence was illegal. 7. Sri.N.Dharmadan finally contended that the impugned selection process is vitiated also for the adscititious reason that Rule WP(C).No.10617 OF 2014 6 2(J) of the “Rules” makes it obligatory on the part of the Zonal Manager to interview all those candidates who had been awarded lesser than 9 marks in the interview conducted by the Selection Committee, but that, in this case, this has not been done, as is manifest from Ext.P7 answers obtained by his clients under the Right to Information Act. 8. The learned Senior Counsel thus prayed that, for the afore reasons, this Court set aside the selection as also Ext.P3 list and direct the LIC to appoint the petitioners to the post of Assistant Branch Manager, with effect from the year 2014. 9. In reply, Sri.S.Easwaran, learned Standing Counsel for the LIC, submitted that the petitioners obtain no cause or locus to maintain this writ petition, because they have chosen to participate in the selection process being fully aware of the mandates of the “Regulations” and the “Rules” and cannot, thereafter, be allowed to turn around and allege that the procedure is bad. Sri. S.Easwaran submitted that, as is ineluctable from Rule 2(J) of the “Rules,” all candidates were notified and made fully aware that it is only they secured more than 9 marks in the interview, will they be considered for promotion; and therefore, that since the petitioners have all admittedly obtained less than such marks, they cannot stale any claim WP(C).No.10617 OF 2014 7 for promotion, particularly for the year 2014. 10. Sri. S. Easwaran relied upon the judgments of the Hon'ble Supreme Court in _**Union of India and others v. Colonel G.S.Grewal [(2014) 7 SCC 303]** and_ _**Ashok kumar and another v. State of Bihar and another [(2017) 4 SCC 357]**_ in support of this contentions and argued that once the petitioners had taken part in the selection process, they obtain no locus to challenge it. 11. Sri. S. Easwaran submitted that the afore is pertinent because, the 2[nd] petitioner has subsequently been promoted as an Assistant Branch Manager in the year 2015; while the 1[st] petitioner, when offered so in the year 2016, refused it, thus predicating that the latter is, resultantly, ineligible to claim promotion any further. 12. Sri. S. Easwaran then asserted that it has been averred in the counter affidavit filed on behalf of his client that the Zonal Manager had reviewed the performance of each candidate who had secured less than 9 marks and more than 19 marks in the interview, as per the stipulations in Rule 2(J) of the “Rules” and therefore, that the petitioners can no longer plead any prejudice or detriment. 13. The rival contentions of the parties being so indited, it now becomes upon me to consider whether the petitioners would WP(C).No.10617 OF 2014 8 be entitled to reliefs as prayed for in this writ petition. 14. The facts, which are _ad idem_ between the parties, are that the selection process was governed exclusively by the “Regulations” and the “Rules”; that Regulation 7(3) of the Regulations mandate that promotions shall be based on merit, suitability and seniority; and that it will have to be judged by confidential reports and/or interview **.** 15. It is thus indubitable - it being conceded - that the LIC was entitled to hold an interview of the candidates for evaluating their merit and suitability and for such purpose, it was enjoined to follow the “Rules” **.** As per Rule 2(J) of the said Rules, candidates who aspire to be promoted as an Assistant Branch Manager, is required to obtain at least nine marks in the interview; with a further rider that those who are awarded marks below 9 above or above 19 by the selection committee, would have their performance in the interview suitably reviewed by the Zonal Manager. The latter provision, of course, is to ensure that no candidate is put to a subjective prejudice or becomes entitled to an undeserved benefit, on account of the predilections of the members of the Interview Board and because the Zonal Manager, who is in charge of their performance as a Supervisory Authority, WP(C).No.10617 OF 2014 9 will have a better view on their past performance also. 16. That said, the irony is that the real problem faced by the petitioners in this case is on account of the first part of Rule 2(J) of the Rules. I say this because, whatever be the marks that may have been allotted to them for their performance after assessment of their annual confidential reports and even assuming that they are given full marks for the same, they would still be not eligible to be selected or to be appointed as an Assistant Branch Manager, if they did not obtain a minimum of nine marks out of twenty five in the interview. 17. This certainly gives a fair share of subjective discretion to the members of the Interview Committee, but unfortunately, the petitioners have chosen not to challenge these Rules before participating in the process or even in this writ petition. 18. When there is no challenge to these Rules, I am bound to follow the same and can, therefore, only assess whether the procedure thereunder have been properly followed. 19. In the afore perspective, the contentions of Sri.N.Dharmadan, learned Senior Counsel, that the assessment of the Annual Confidential Reports of his clients had not been properly done, would be of little relevance because it is admitted that all of WP(C).No.10617 OF 2014 10 them got only seven marks out of twenty five in the interview. Therefore, as I have already said above, even if all of them are granted 75 marks for their Annual Confidential Reports - which is the maximum, they would still run the risk of being eliminated from the race to be promoted to the post of Assistant Branch Manager, if they are not able to secure a minimum of nine marks in the interview which, unfortunately, has been so in the case at hand. 20. Of course, Sri.N.Dharmadan, learned Senior Counsel submits that the award of a uniform mark of seven to all his clients and even to 57 others, which is luculent from Ext.P7, would throw a cloud on the entire process, since no reasonable man can believe that 60 among the 89 persons would only be entitled to such marks and no more in the interview. 21. Even though there may appear some force in the afore submissions of Sri.N.Dharamadan, there is one obstacle in the path of the petitioners, because Ext.P7 does not say that sixty candidates obtained seven out of twenty marks each during the interview, but that they obtained less than nine. It may be true that the petitioners have all secured seven marks uniformly but this, by itself, cannot persuade me to believe that the other fifty WP(C).No.10617 OF 2014 11 seven have also been given only seven mark. It is, therefore, possible that the marks given to the sixty candidates mentioned in Ext.P7 vary from 1 to 8. 22. That said, the petitioners having conceded that all of them have secured less than nine marks in the interview and because there is no challenge to the Rules qua the minimum cutoff placed in Rule 2(b) thereof, I cannot go into the controversy - sought to be impelled by them in any further detail, even if I am to find something in the submissions made on behalf of the petitioner that “all does not appear to be well”. 24. Be that as it may, since the petitioners have admittedly received less than nine marks in the interview, they would not be eligible to be considered for promotion as per the Rules, but there is still a surviving question; whether the review by the Zonal Manager, as per Rule 2(J) of the Rules, has been properly done. 25. On this issue, Sri.N.Dharamadan, learned Senior Counsel, submits that, except for a superficial and formal record of compliance, the Zonal Manager does not appear to have made any effort to discharge his obligations under the said Rule, which is demonstrable from Ext.P7 answers obtained by his clients under the Right to Information Act, wherein, it is apodictically stated that WP(C).No.10617 OF 2014 12 the said officer did not interview any of the candidates who obtained less than nine or more than nineteen marks in the interview process. 26. Here again, I am afraid that I cannot find favour with the petitioners, since the provisions of Rule 2(J) of Ext.P2 Rules, does not make it mandatory on the part of the Zonal Manager to interview such candidates but vests in him a discretion to do so, if he feels it necessary, while the performance of the candidates in the interview is evaluated by him. 27. This being so, the counter affidavit on record filed on behalf of the LIC, says that the competent Zonal Manager had made an evaluation, but that he did not find any reason to intervene with the interview process. 28. In the conspectus of the above, there can be little doubt that the petitioners, who see themselves as meritorious and deserving candidates, have lost the race at the alter of the interview process, because they have not been awarded nine marks, even though they may have expected much more than that. 29. However, as I have already said above, in the absence of any challenge to the “Rules” and since the petitioners were WP(C).No.10617 OF 2014 13 ― aware that they are liable to be eliminated in spite of their ― performance reflected through their annual confidential reports in the event they do not secure at least nine marks in the interview, they cannot now be heard to complain that the award of seven marks to them is capricious or malicious, particularly when there is not even a whispering allegation of malafide exercise of power urged in this writ petition against the LIC or against the Interview Committee. In that view, the judgments cited by Sri.Easwaran, namely Colonel **G.S.Grewal** _(supra)_ and **Ashok Kumar** _(supra)_ would certainly persuade me to find against the petitioners. Thus, I have no other option but to dismiss this writ petition and I so order. Sd/- **DEVAN RAMACHANDRAN, JUDGE** smf/rp WP(C).No.10617 OF 2014 14 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** |**EXHIBIT P1**|**EXHIBIT P1. TRUE COPY OF NOTIFICATION DATED**| |---|---| ||**20.12.2013 ISSUED BY LIC (RELEVANT**| ||**PORTION).**| |**EXHIBIT P2**|**EXHIBIT P2. TRUE COPY OF THE RELEVANT**| ||**PORTION OF NOTIFICATION DATED 12.12.2013 BY**| ||**LIC.**| |**EXHIBIT P3**|**EXHIBIT P3. TRUE COPY OF THE SELECT LIST**| ||**DATED 26.02.2014 PUBLISHED BY LIC.**| |**EXHIBIT P4**|**EXHIBIT P4. TRUE COPY OF SCORE SHEET OF THE**| ||**1ST PETITIONER.**| |**EXHIBIT P5**|**EXHIBIT P5. TRUE COPY OF THE JUDGMENT IN**| ||**O.P.(CAT)2173/2012 DATED 09.07.2012 OF THIS**| ||**HON'BLE COURT.**| |**EXHIBIT P6**|**EXHIBIT P6. TRUE COPY OF CANCELLATION ORDER**| ||**DATED 11.03.2014 BY THE LIC.**| |**EXHIBIT P7**|**EXHIBIT P7. TRUE COPY OF LETTER DATED**| ||**02.04.2014 FROM THE LIC.**| |**EXHIBIT P8**|**EXHIBIT P8. TRUE COPY OF THE JUDGMENT IN**| ||**W.A.568/2007 DATED 29.03.2007 OF THIS**| ||**HON'BLE COURT.**| |**EXHIBIT P9**|**EXHIBIT P9. TRUE COPY OF APPEAL DATED**| ||**12.03.2014 BY 1ST PETITIONER.**| **//TRUE COPY// PA TO JUDGE**