Koshy George Palottu Madom v. State of Kerala & State Farming Corporation of Kerala Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **TUESDAY, THE 29TH DAY OF SEPTEMBER 2020 / 7TH ASWINA, 1942** ## **WA.No.558 OF 2018** **AGAINST THE JUDGMENT IN WPC 20018/2016 OF HIGH COURT OF KERALA** ## **APPELLANT:** **KOSHY GEORGE PALOTTU MADOM, EDAMON PO, KOLLAM DISTRICT. BY ADVS. DR.K.P.SATHEESAN (SR.) SRI.P.MOHANDAS (ERNAKULAM) SRI.K.SUDHINKUMAR SRI.S.VIBHEESHANAN** ## **RESPONDENTS:** |**1**||**STATE OF KERALA**|||| |---|---|---|---|---|---| |||**REPRESENTED BY THE SECRETARY,**|||| |||**AGRICULTURE DEPARTMENT,GOVERNMENT SECRETARIAT,**|||| |||**THIRUVANANTHAPURAM. 695001**|||| |**2**||**THE MANAGING DIRECTOR**|||| |||**STATE FARMING CORPORATION OF KERALA LTD,**|||| |||**VETTITHITTA PO, PUNALUR, KOLLAM. 689696**|||| |||**R1 BY SRI RANJITH THAMPAN, ADDITIONAL A.G**|||| |||**R2 BY SRI DENIZEN**|**KOMATH (SC)**||| |**THIS **|**WRIT APPEAL HAVING **||**BEEN FINALLY HEARD **||**ON**| |**29-09-2020, **||**THE COURT ON THE **|**SAME DAY **|**DELIVERED **|**THE**| |**FOLLOWING:**|||||| W.A.No.558/2018 -2- ## **JUDGMENT** ## **T.R.RAVI, J.** The appellant was included in the select list for appointment to the post of Manager (Operations) under the 2[nd] respondent. The select list was approved by the Board of Directors of the 2[nd] respondent and forwarded to the Government for sanction. Since the elections were due, the Government accorded sanction subject to the condition that posting orders need be issued only after the Code of Conduct is over. When posting orders were not issued even after the Code of Conduct period was over, the appellant approached this Court praying for the issuance of a writ of mandamus to the 2[nd] respondent, directing them to issue an appointment order to the appellant. The writ petition was dismissed by a learned Single Judge and the judgment is challenged in this appeal. 2. Heard Sri K.Sudhinkumar on behalf of the appellant, W.A.No.558/2018 -3- Sri R.Renjith Thampan, Additional Advocate General on behalf of the 1[st] respondent and Sri Denizen Komath, Standing Counsel for the 2[nd] respondent. 3. The 2[nd] respondent had issued a notification on 14.1.2016, inviting applications for the appointment to the post of Manager (Operations). Pursuant to an application submitted by the appellant, he was interviewed on 24.2.2016. He was ranked 1[st] in the rank list prepared as Ext.P1 and the Board of Directors resolved to make appointment from the rank list and sent Ext.P2 letter dated 2.3.2016, seeking the approval from the Government for the appointment. The rank list and the resolution of the Board of Directors were forwarded along with Ext.P2. Permission was granted by the Government as per Ext.P3 letter dated 1.4.2016, on condition that the posting order should be issued only after the election process was over. On 8.4.2016, the Board of Directors resolved to accord sanction for appointment after the election process was over, as indicated in Ext.P3. When no appointment was made, the appellant submitted Ext.P5 W.A.No.558/2018 -4- representation before the Managing Director and thereafter approached this Court for a direction to the 2[nd] respondent to pass orders on Ext.P5. On 23.6.2016, an interim order was issued by this Court, directing the 2[nd] respondent to provisionally issue an appointment letter to the appellant, subject to the result of the Writ petition. Writ Appeal No.1663 of 2016 filed by the 1[st] respondent against interim order was dismissed as per judgment dated 10.4.2017. 4. The 2[nd] respondent filed counter affidavit detailing the facts which led to the initiation of the selection process. Subsequently, an additional counter affidavit was filed by the 2[nd] respondent, wherein it is stated that the appellant did not have the necessary 9 years experience, which is mandatory for appointment. It is stated that the post of Manager (Operations) was lying vacant for more than 16 years and the process of appointment was opted at the fag end of the term of the previous Government in a hurried manner with ulterior motives. Ext. R2(c) letter dated 18.4.2017 was produced, which shows that the W.A.No.558/2018 -5- Government had directed to take steps to abolish the post of Manager (Operations) and for withdrawing the sanction already given for appointment of the appellant. It was also stated that the 1[st] respondent had accorded sanction to conduct an investigation against the previous office bearers and persons involved in the process of selection to the post of Manager (Operations). 5. A statement and a counter affidavit has been filed on behalf of the 1[st] respondent. It is stated _inter alia_ that prior sanction of the Government is necessary for making appointment to the post in managerial cadre, that the post of Manager (Operations) has not been filled up for more than 16 years and has been lying vacant for more than 6 years even without anybody being put in charge, that a complaint has been filed by the local MLA before the Minister of Agriculture alleging largescale corruption in the selection of the appellant and a report was called for by the Government. It is further contended that the appellant did not have an indefeasible right for appointment, W.A.No.558/2018 -6- merely for the fact that he was included in the rank list. It is also stated that the post is not necessary for the efficient functioning of the Corporation. Ext.R1(a) Government order dated 22.10.2001 is relied on to say that the Government had ordered that the posts lying vacant for more than one year should be abolished forthwith. The appellant has filed a reply affidavit stating that the post of Manager (Operations) is required for the functioning of the Corporation and it will not be beneficial for the Corporation to keep the post vacant. It is stated that he has got 9 years experience under the previous employers and supporting certificates have also been produced. 6. The learned Single Judge considered the entire facts as borne out by the records and found that even though the appellant had been included in the rank list, he did not have the qualification prescribed in the notification. The learned Judge found that by operation of the Government Order Ext.R1(a) dated 22.10.2001, the post of Manager (Operations) which was lying vacant for six years stood abolished and when approval was W.A.No.558/2018 -7- sought for as per Ext.P2 letter, the fact that the post was lying vacant all these years was not even mentioned. The learned Judge found that Ext.P3 letter by which the approval was granted cannot take the place of a Cabinet decision and confer authority on the 2[nd] respondent to make appointment to the post, which had earlier been abolished. The learned Judge also found that the appellant did not have any indefeasible right for appointment, particularly in the light of the fact situation. 7. The counsel for the appellant reiterates the contentions that were taken before the learned Single Judge and contends that the learned Judge ought not to have interfered with the finding of the interview committee, which found that the appellant was eligible for appointment. It is contended that the appellant had produced all the certificates to show his experience and qualification before he joined duty and the said certificates were verified before the appointment orders were issued to him. It is contended that the local MLA who had made the complaint was on enimical terms with the previous Board of the W.A.No.558/2018 -8- Corporation. Personal allegations are also made against the MLA, however, without making him a party to the writ petition. According to the Counsel, the learned Single Judge exceeded his jurisdiction since the correctness of the selection process was not under challenge. 8. The Additional Advocate General appearing for the State points out, that the petitioner did not have the necessary qualifications, that a post which had already been abolished is sought to be filled up without getting prior approval from the Government and without placing the fact that the post was lying vacant for several years before the Government while seeking approval for the appointment, that there was no obligation on the respondents to make an appointment in the circumstances and that the employer cannot be compelled to make an appointment to a post which is not necessary according to the employer. It is submitted that even if the applicant was fully qualified, he does not have any indefeasible right to appointment and it is for the appointing authority to decide whether a post which is lying W.A.No.558/2018 -9- vacant should be filled up or not. 9. We have considered the arguments on either side. The writ petition has been filed praying for a writ of mandamus or order or direction to the 2[nd] respondent to issue appointment order to the petitioner as Manager (Operations). It is well settled that a mandamus for appointment as such will very rarely be issued by invoking the extraordinary jursidiction under Article 226 of the Constitution of India. The next prayer is for a direction to the 2[nd] respondent to consider and pass appropriate orders on Ext.P5 representation filed by the petitioner. Even though there is no statutory duty on the part of the 2[nd] respondent to consider Ext.P5 representation, it may still be possible for this Court to issue such a direction in exercise of the extraordinary jurisdiction under Article 226, having regard to the fact that a selection process was over. The third prayer is for a declaration that the petitioner is entitled to be appointed to the post of Manager Operations on the basis of his ranking in the select list; which is akin to a mandmus for appointment. W.A.No.558/2018 -10- 10. Annexure I produced along with a verified petition by the Government Pleader is the notification issued calling for applications for the post of Manager (Operations). Annexure 1 clearly says that the applicant should have experience in managing similar farms/estates and it is further stated that similar farms/estate means large-scale plantations of rubber tea, coffee, cardamom and oil palm and that the experience shall not be below the capacity of Assistant Manager. The appellant has produced Exts.P13 to P15 certificates in support of the claim that he has the necessary experience. Ext.P13 would show that the appellant joined the Kerala State Horticultural Products Development Corporation Ltd. as Assistant Manager on 14.9.1998 and continued in the post till 11.12.2000. It is further stated that he has been working as a Regional Manager in various Regional Offices from June,1999 onwards. The above Certificate is not sufficient to show that the appellant has experience of managing a large scale plantation as Assistant Manager or above during that period when he was with the W.A.No.558/2018 -11- Corporation. On the other hand, the Certificate indicates that the appellant was working in the Regional Offices and not in a plantation. Ext.P14 will show that the appellant has worked as Assistant Manager in M/s. Harrison Malayalam Ltd. from 6.8.2008 to 31.3.2009. Ext.P15 shows that it has been issued on 19.7.2017, and hence could not have been available before the Selection Committee at the time the appellant was interviewed and is seen to have been issued only 2 days prior to the date on which the appellant entered office on the basis of the interim order issued by this Court. Ext.P15 shows that the appellant was working as an Executive Trainee in the Travancore Rubber & Tea Co. Ltd. between 9.1.2006 and 31.7.2008 and as an Executive between 1.6.2009 and 31.10.2014. There is no material available to show that either the designation of Executive Trainee or that of Executive are posts in the level of Assistant Manager or above. The document further shows that the appellant was working as Manager (Field Operations) between 1.11.2014 and 18.7.2017, a portion of which alone can be considered towards the experience W.A.No.558/2018 -12- specified in Annexure 1. An attempt was made to rely on Ext.P12 Memorandum issued by the Travancore Rubber & Tea Co. Ltd. on 10.6.2009, to say that the post of Executive is equivalent to that of an Assistant Manager. Ext.P12 does not speak anything about the post of Executive being equal to that of an Assistant Manager. The document only narrates the duties which the appellant had to perform on being appointed as an Executive. Going by the above documents, the appellant has about 10 months experience as per Ext.P13, 71/2 months experience as per Ext.P14 and about 15 months experience as per Ext.P15, which can be reckoned as experience as required in Annexure I. As such there is no ground made out for interference with the finding of the learned Single Judge that the appellant did not have the necessary experience as stipulated in the notification. 11. The counter affidavit shows that the post of Manager (Operations) fell vacant on 21.6.2000 and that no person was appointed to that post for over 16 years. It is further stated that till the year 2010, another Manager was put in charge of the post W.A.No.558/2018 -13- and that between 2010 and 2016, the post was lying vacant. The notification was issued on 14.1.2016. Last date for submission of application was 27.1.2016. Interview was conducted on 24.2.2016 and select list was drawn up on 29.2.2016 and by Ext.P1 dated 29.2.2016, the Managing Director was directed to seek aproval of the Government for the appointment. Ext.P2 letter seeking approval is sent on 2.3.2016 and the Code of Conduct for Election came into force on 4.2.2016. Despite the Code of Conduct being in force, by Ext.P3 the Secretary to Government approved the appointment of the appellant with a rider that appointment order should be issued only after the election process is over. On 8.4.2016, the 2[nd] respondent also passed Ext.P4 resolution in terms of Ext.P3. There was a prohibition for making appointments with effect from 4.2.2016, which continued till 21.5.2016. When such a prohibition was in force, the same cannot be bypassed by issuing a direction to make an appointment on a future date, after the prohibition ceases to exist. What cannot be done directly cannot be W.A.No.558/2018 -14- permitted to be done indirectly. We can hardly approve the manner in which the entire process of selection and appointment to the post of Manager (Operations) was carried out. Admittedly the post fell vacant on 21.6.2000. Ext.R1(a) Government Order issued on 22.10.2001 specifically says that post which is lying vacant for more than one year should be abolished forthwith. The order clearly applies to the post of Manager (Operations) with which we are concerned. A post which stood abolished for the reason of it being vacant for more than one year (sixteen years to be specific), was sought to be filled up by the 2[nd] respondent and approval taken from the Government without bringing to its notice that the post was long vacant. A very curious explanation was sought to be given for justifying the decision to fill up the post of Manager (Operations) i.e. since the post of General Manager, who was looking into the activities in connection with the estate/factory was going to retire shortly, it was necessary to have a capable personnel with adequate experience to entrust the supervision of routine activities in all the four estates, factory W.A.No.558/2018 -15- and the re-planting activities. We are not able to countenance the above explanation that since the post of General Manager is becoming vacant, a post in the cadre of Manager which is much below that of the General Manager, has to be filled up, that too with a person who does not have enough experience. A person who did not have the necessary experience as per the notification was sought to be selected and orders of approval for appointment were issued by the Government and the same endorsed in a resolution of the 2[nd] respondent, also when the Code of Conduct was in force. 12. When, by operation of the Government Order Ext.R1(a) dated 22.10.2001, the post of Manager(Operations) which was lying vacant for sixteen years stood abolished, there was no manner in which the same could have been treated as a vacancy and sought to be filled up by the 2[nd] respondent, who is bound by the Government orders in this regard. If at a later point of time the 2[nd] respondent noticed the error and sought to correct the same by deciding not to fill up the post despite the W.A.No.558/2018 -16- selection process undertaken, it is not the function of this Court to exercise its extraordinary jurisdiction under Article 226 and direct the respondent to fill up the post. The respondents are well within their rights to decide not to fill up a post or to abolish a post, even after the selection process is over. There is no vested right available to a person who is ranked in the select list to get appointed. All that is required is that the State must give some justifiable, non-arbitrary reason for not filling up the post. The courts would normally not question the justification but the justification must be reasonable and should not be an arbitrary, capricious or whimsical exercise of discretion vested in the State. (See _**Dinesh Kumar Kashyap v. South East Central Railway** reported in_ _**[**_ **(2019) 12 SCC 798]** . In _**Balakrushna Behera v. Satya Prakash Dash** reported in_ **[(2008) 1 SCC 318],** the Hon'ble Supreme Court in paragraph 10 held as follows: "The first and foremost question is whether the Court can direct the State Government by a writ of mandamus to appoint a person against a post which has been abolished by the State Government. Our answer to this question is in the negative. The respondent even after selection W.A.No.558/2018 -17- has no indefeasible right to be appointed on the post because a selection does not confer a right of getting appointment which can be enforced by filing a writ petition under Article 226 of the Constitution. In this view we are supported by a Constitution Bench decision of this Court in _**Shankarsan Dash**_ **v.** _**Union of India**_ **[(1991) 3 SCC 47** ." 13. We do not think it is necessary to cite any more decisions on the legal questions involved. The learned Single Judge has dealt with the issues of law in extenso and in the light of the law laid down by the Hon'ble Supreme Court, we do not find any reason to interfere with the judgment of the learned Single Judge. The appeal fails and is dismissed. The parties will bear their respective costs. ## Sd/- **K. VINOD CHANDRAN JUDGE** Sd/- **T.R. RAVI JUDGE** dsn