KOSHY GEORGE v. STATE OF KERALA and STATE FARMING CORPORATION OF KERALA LTD.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY, THE 22ND DAY OF FEBRUARY 2018 / 3RD PHALGUNA, 1939** **WP(C).No. 20018 of 2016** **------------------** **PETITIONER(S) ------------** **KOSHY GEORGE, PALOTTU MADOM, EDAMON P.O, KOLLAM DISTRICT.** **BY DR.K.P.SATHEESAN, SENIOR ADVOCATE. ADVS. SRI.P.MOHANDAS (ERNAKULAM), SRI.S.VIBHEESHANAN, SRI.K.SUDHINKUMAR, SRI.ELIAS KURIAN, SMT.SHYNI GEORGE.** ## **RESPONDENT(S):** **------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, AGRICULTURE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM -695 001.** **2. THE MANAGING DIRECTOR, STATE FARMING CORPORATION OF KERALA LTD, VETTITHITTA P.O, PUNALUR, KOLLAM- 689 696.** **R1 BY GOVT. PLEADER SRI.JAFAR KHAN. Y. R2 BY SRI.DENIZEN KOMATH, SC.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/01/2018, ALONG WITH W.P.(C)NO.1130 OF 2015 AND W.P.(C) NO.2937 OF 2016, THE COURT ON 22/02/2018 DELIVERED THE FOLLOWING:** **rs.** **WP(C).No. 20018 of 2016 (B)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**EXHIBIT P1**|**TRUE COPY OF THE RANKED LIST AND MARK SHEETS**| |---|---| ||**OF THE CANDIDATES PUBLISHED BY THE 2ND**| ||**RESPONDENT ON 29-02-2016.**| |**EXHIBIT P2**|**TRUE COPY OF THE LETTER WRITTEN BY THE 2ND**| ||**RESPONDENT TO THE FIRST RESPONDENT DATED**| ||**02-03-2016.**| |**EXHIBIT P3**|**TRUE COPY OF THE SANCTION ORDER ISSUED BY THE**| ||**FIRST RESPONDENT TO THE 2ND RESPONDENT DATED**| ||**01-04-2016.**| |**EXHIBIT P4**|**TRUE COPY OF THE DECISION TAKEN AT THE 294TH**| ||**BOARD MEETING OF THE STATE FARMING**| ||**CORPORATION OF KERALA LIMITED DATED 08-04-2016.**| |**EXHIBIT P5**|**TRUE COPY OF THE REPRESENTED FILED BY THE**| ||**PETITIONER BEFORE THE 2ND RESPONDENT DATED**| ||**07-06-2016.**| |**EXHIBIT P6**|**TRUE COPY OF THE OFFICE ORDER DATED 17/06/1997.**| |**EXHIBIT P7**|**TRUE COPY OF THE REPLY OBTAINED BY THE PETITIONER**| ||**UNDER RIGHT TO INFORMATION ACT DATED 24/09/2016.**| |**EXHIBIT P8**|**TRUE COPY OF THE RANKED LIST SUBMITTED BY THE MANAGING**| ||**DIRECTOR TO THE BOARD DATED 29/02/2016.**| |**EXHIBIT P9**|**TRUE COPY OF THE OFFICE ORDER DATED 17/06/1997 OBTAINED BY**| ||**THE PETITIONER UNDER RIGHT TO INFORMATION ACT.**| |**EXHIBIT P10**|**TRUE COPY OF THE REPLY OBTAINED BY THE PETITIONER UNDER**| ||**RIGHT TO INFORMATION ACT DATED 01/12/2017.**| |**EXHIBIT P11**|**TRUE COPY OF THE REPLY OBTAINED UNDER RIGHT TO INFORMATION**| ||**ACT DATED 23/11/2017.**| |**EXHIBIT P12**|**TRUE COPY OF THE LETTER GIVEN BY THE TRAVANCORE RUBBER &**| ||**TEA CO. LTD. DATED 10/06/2009.**| |**EXHIBIT P13**|**TRUE COPY OF THE CERTIFICATE ISSUED BY THE ADMINISTRATIVE**| ||**OFFICER OF THE KERALA STATE HORTICULTURAL PRODUCTS**| ||**DEVELOPMENT CORPORATION LTD.**| |**EXHIBIT P14**|**TRUE COPY OF THE SERVICE CERTIFICATE ISSUED BY HARRISONS**| ||**MALAYALAM LTD. DATED 31/03/2009.**| |**EXHIBIT P15**|**TRUE COPY OF THE SERVICE CERTIFICATE ISSUE BY THE**| ||**TRAVANCORE RUBBER AND TEA COMPANY LTD. DATED 19/07/2017.**| **....2/-** **WP(C).No. 20018 of 2016 (B)** ## **RESPONDENT'S EXHIBITS:** |**ANNEXURE I**|**COPY OF THE NOTIFICATION FOR THE POST OF GENERAL MANAGER**| |---|---| ||**(OPERATION) DATED 14/01/2016.**| |**ANNEXURE R1A**|**COPY OF THE LETER NO.112/PU/16/AGRI DATED 16/08/2016**| ||**OF THE GOVERNMENT TO THE DIRECTOR OF AGRICULTURE.**| |**ANNEXURE R1B**|**COPY OF THE LETTER NO.112/PU/16/AGRI DATED 16/08/2016**| ||**OF THE GOVERNMENT TO THE MANAGING DIRECTOR, STATE**| ||**FARMING CORPORATION OF KERALA LTD.**| |**EXT.R1A**|**COPY OF THE GO(P) NO.1208/2001/FIN. DATED 22/10/2001.**| |**EXT.R1B**|**COPY OF THE COMPLAINT DATED 20/07/2016.**| |**EXT.R1C**|**COPY OF THE JUDGMENT IN WA NO.1663/2016.**| |**EXT.R1D**|**COPY OF THE REPORT DATED 15/11/2016.**| |**EXT.R1E**|**COPY OF THE REPORT DATED 11/05/2017.**| |**EXT.R2A**|**COPY OF THE COMMUNICATION DATED 07/06/2016.**| |**EXT.R2B**|**COPY OF THE COMMUNICATION FROM THE GOVERNMENT**| ||**DATED 13/07/2016.**| |**EXT.R2B TO EXT.R2D FILED ALONG WITH COUNTER AFFIDAVIT DATED 20/10/2017**|| |**EXT.R2B**|**COPY OF THE REPORT OF THE ENQUIRY SUBMITTED BY THE**| ||**VIGILANCE OFFICER (FINANCE) AND SECRETARY, SPECIAL**| ||**VIGILANCE CELL, DIRECTORATE OF AGRICULTURE,**| ||**THIRUVANANTHAPURAM.**| |**EXT.R2C**|**COPY OF THE INTIMATION ISSUED FROM THE OFFICE OF**| ||**1ST RESPONDENT DATED 18/05/2017.**| |**EXT.R2D**|**COPY OF THE LETTER RECEIVED BY THIS RESPONDENT'S OFFICE**| ||**FROM THE GOVERNMENT DATED 28/06/2017.**| ||**//TRUE COPY//**| ||**P.S. TO JUDGE**| |**rs.**|| ## _**P.V.ASHA, J.**_ -------------------------W.P(C) No.20018 of 2016-B, W.P(C).No.1130 of 2015-M a n d W.P(C).No.2937 of 2016-N ------------------------------------------- _Dated this the 22[nd] day of February, 2018_ ## _**JUDGMENT**_ ## **W.P(C) No.20018 of 2016** The writ petition is filed seeking a direction to the respondents to appoint the petitioner as Manager (Operations) in the State Farming Corporation of Kerala Ltd., based on Ext.P3 order issued by the 1[st] respondent on 01.04.2016. Government subsequently found that the post was remaining vacant for a long period and therefore it was liable to be abolished and hence appointment cannot be made to such a post. Petitioner was appointed provisionally on the basis of the interim order passed in this case. 2. The State Farming Corporation of Kerala Ltd. (hereinafter referred to as `the Corporation') issued a notification dated 14.01.2016, inviting applications for appointment to the post of Manager (Operations) 2 W.P(C) No.20018 of 2016-B, W.P(C).No.1130 of 2015-M & W.P(C).No.2937 of 2016-N from among qualified hands. The petitioner submitted application for the same and appeared in the interview held on 24.2.2016. In Ext.P1 rank list he was ranked No.1. The Board of Directors resolved to make appointment from the rank list and authorised the 2[nd] respondent to seek approval from the Government for appointment. As per Ext.P2 letter dt.2.3.2016, the Managing Director had addressed the Government, forwarding the rank list as well as the resolution of the Board of Directors seeking approval for appointment from the rank list. Thereupon, as per Ext.P3 letter, the Government intimated permission to make appointment subject to the condition that the posting order would be served to the candidate only after the election process was over. Thereafter, the matter was placed before the Board of Directors on 8.4.2016 when it was resolved to accord sanction to serve order of appointment to the selected candidate after the election process was over. As the petitioner was not given appointment even after election was over, he submitted Ext.P5 representation before the Managing Director requesting for orders of appointment. Thereafter, he approached this Court seeking a direction to the 2[nd] respondent to issue appointment order to him as Manager (Operations) and to pass orders on his representation Ext.P5. On 23.06.2016 an interim order was passed in this 3 W.P(C) No.20018 of 2016-B, W.P(C).No.1130 of 2015-M & W.P(C).No.2937 of 2016-N case directing the 2[nd] respondent to provisionally issue an appointment letter to the petitioner, who is the 1[st] rank holder in the select list for appointment as Manager (Operations) subject to the result of the writ petition. The 1[st] respondent took up the matter in Writ Appeal No.1663/2016 which was dismissed as per judgment dt.10.4.2017 observing that the direction was subject to the result of the writ petition and in conformity with Exts.P3 and P4. 3. The 2[nd] respondent filed a counter affidavit on 23.06.2016 stating that the post of Estate Manager as well as that of Manager(Operations) were lying vacant and as the General Manager who was looking into the activities in connection with estate/factory was going to retire shortly, it was necessary to have a capable personnel with adequate experience to entrust supervision of the routine activities in all the four estates, factory and the re-planting activities. It was stated that the Board of Directors in its 284[th] meeting held on 30.12.2014 resolved to fill up the vacancy of Manager (Operations), by direct recruitment. As it was found that recruitment to the post cannot be avoided, based on the resolution in its 285[th] meeting held on 07.03.2015, the vacancy was notified in newspapers on 29.07.2015. As sufficient number of candidates did not apply, it was re- 4 W.P(C) No.20018 of 2016-B, W.P(C).No.1130 of 2015-M & W.P(C).No.2937 of 2016-N notified on 14.01.2016. Out of 10 applications received pursuant to that, six candidates were shortlisted. The Subcommittee constituted for selection conducted the interview and prepared Ext.P2 rank list with the petitioner as the first rank holder; the Board approved it subject to approval of the Government and subject to the decisions in the pending cases. The Government, as per its letter dated 01.04.2016 communicated its decision to permit the 2[nd] respondent to make appointment on condition that posting order shall be issued only after election. The Corporation therefore as per Ext.R2(a) letter dated 07.06.2016, addressed the Government again, after the election, seeking permission to make appointment. 4. In the additional counter affidavit filed in October, 2017, the 2[nd] respondent stated that the petitioner did not have 7 years experience, which was mandatory for appointment. It was stated that the selection was made to a post which was lying vacant for more than 16 years; the process of appointment was opted at the fag end of the term of the previous Government in a hurried manner with corrupt motives. Ext.R2(c) letter dt.18.5.2017 was produced stating that the Government had directed to take steps to abolish the post of Manager (Operations) withdrawing the sanction already given for appointing the petitioner. It is stated that the 1[st] respondent 5 W.P(C) No.20018 of 2016-B, W.P(C).No.1130 of 2015-M & W.P(C).No.2937 of 2016-N 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. The 1[st] respondent filed a statement and thereafter a counter affidavit. It was stated that as per the provisions in the memorandum of association of the Corporation, prior sanction from Government is necessary for making appointment to the posts in managerial cadre. The post of Manager (Operations) in the 2[nd] respondent Corporation had been lying vacant for more than 6 years. It was stated that a notification inviting applications was earlier issued on 29.7.2015. However, that notification was cancelled though 55 persons had responded. Another notification was issued on 14.1.2016 to which there were only 10 persons who responded. After shortlisting, 6 candidates were interviewed and a rank list was forwarded to the Government when the Government had directed that appointment need be made after the election. It is stated that the proposal for appointment was resubmitted before the Government thereafter. It is stated that the petitioner filed this writ petition while the Government was examining the proposal. It is stated that complaints were filed by the local MLA Shri K.B.Ganeshkumar before the Minister for Agriculture on 14.7.2016 and 6 W.P(C) No.20018 of 2016-B, W.P(C).No.1130 of 2015-M & W.P(C).No.2937 of 2016-N 20.07.2016 alleging large scale corruption in the selection of the petitioner. Thereupon, a report was called for and Government directed the Director of Agriculture to conduct an enquiry through the internal Vigilance Wing of the department, as per Ext.R1(a). It is stated that the petitioner was working as an Estate Manager and he does not have any vested right for appointment on account of mere inclusion in the rank list. 6. In the counter affidavit filed thereafter, it is stated that the 2[nd] respondent Corporation had in its meeting held on 30.12.2014 decided to fill up the post of Manager (Operations) at a time when there was no internal candidates available for appointment to the said post. The post of Manager (Operations) in the Corporation fell vacant on 21.6.2000 and no person was appointed to the said post since then. However, charge arrangement was given for the period from 22.6.2000 to 2010. From 2010 onwards the post was not handled by anybody. It is stated that the post of Manager (Operations) is not necessary for the efficient functioning of the Corporation. As per Ext.R1(a) order- G.O(P) No.1208/2001/Fin. dt.22.10.2001, the Government had ordered that posts lying vacant for more than one year should be abolished forthwith. Therefore, it is stated that the post of Manager (Operations) should have been treated as abolished in the 2[nd] 7 W.P(C) No.20018 of 2016-B, W.P(C).No.1130 of 2015-M & W.P(C).No.2937 of 2016-N respondent Corporation. It is stated that in Ext.R1(b) complaint submitted by the local MLA it was alleged that Sri Mohanan Pillai, the previous Chairman of the Corporation had received a sum of Rs.25 lakhs towards bribe for the appointment of Manager (Operations) and Tapping Supervisors in the Corporation. The internal vigilance conducted an inquiry into the complaint and submitted Ext.R1(b) report. As per the report, the post was lying vacant from 2001 onwards and nobody was put in charge of the post since the year 2010; therefore it was found that the attempts to make appointment in the said post in a hurried manner without obtaining prior sanction of the Government, points out the corruption involved. It is stated that under clause 38 of the Articles of Association of the 2[nd] respondent, prior approval of Governor is necessary for appointment to managerial posts like General Manager, Company Secretary, Chief Accounts Officer, Personnel Manager, etc. which are not under the purview of the PSC. It is stated that Ext.P3 Government letter cannot be treated as permission from Governor under Article 166 of the Constitution and that no permission was granted by Governor for appointment. It is stated that in the report Ext.R1(e) submitted by the Vigilance Wing into the allegations against appointment of Tapping Supervisors there was no finding as to corruption. 8 W.P(C) No.20018 of 2016-B, W.P(C).No.1130 of 2015-M & W.P(C).No.2937 of 2016-N However prima facie case of corruption was found in the matter of appointment of Manager (Operations). It was stated that Government was proposing to direct the Vigilance and Anti corruption Bureau to conduct a thorough investigation into the matter. Therefore, it is stated that Ext.P3 letter issued by the Government granting permission for appointment was liable to be withdrawn. 7. The petitioner filed a reply affidavit producing Ext.P6 office order dt.17.06.1997, which prescribes the duties and responsibilities of Manager (Operations), according to which, the Manager (Operations) would be head of the sales and purchase of the Corporation. Therefore, petitioner asserts that as the main function of the Corporation itself is sales and purchases, it would not be beneficial to the Corporation to keep the post vacant. Furnishing Ext.P7 reply received from the Public Information Officer on application under Right to Information Act, it was pointed out that the duties attached to the post of Manager (Operations) were being entrusted to several persons from time to time and that after 2010 the duties were split up and were being assigned to different persons simultaneously. It is stated that their names are not found in the duty roster for the period after 2010 because of this splitting up of duty. Pointing out the names of persons 9 W.P(C) No.20018 of 2016-B, W.P(C).No.1130 of 2015-M & W.P(C).No.2937 of 2016-N who were put in charge of the post it was stated that the post was not abolished and was not liable to be abolished. It was stated that the Government found it necessary to appoint a person permanently instead of giving fractional arrangements. The petitioner also stated that he was working in a private company in the same capacity before submitting application for the post in the Corporation. Producing certificates he asserts that he has got 9 years' experience under the previous employers; he had produced certificates of experience of more than 7 years before joining duty. It was stated that the rank list was prepared by an interview board mostly consisted of Government officials, after evaluating the comparative merits of candidates and the selection was not tainted by corruption, as alleged. 8. Along with I.A.No.1817/2018 the notifications issued by the Corporation in the year 2015 as well as 2016 were produced as Annexure I. In the notification issued in 2015, the qualification prescribed was : degree of recognised university or equivalent qualification and 9 years experience in managing similar farm/estate. At the same time in the notification published in the year 2016, qualification prescribed was : a degree of a recognised University or equivalent qualification and 9 years experience in managing similar farm/estate. It was also stated that similar Farm/Estate 10 W.P(C) No.20018 of 2016-B, W.P(C).No.1130 of 2015-M & W.P(C).No.2937 of 2016-N means large scale plantations of Rubber, Tea, Coffee, Cardamom and Oil Palm and experience shall not be below the capacity of Assistant Manager. 9. The learned Government Pleader pointed out that the explanation in the second notification would indicate that it was intended for appointment of a particular person having the qualification prescribed therein. As against the requirement of 9 years' experience in managerial cadre, Ext.P15 certificate issued in the case of the petitioner shows that the petitioner was an executive trainee for the period from 9.1.2006 to 31.7.2008; an executive from 1.6.2009 to 31.10.2014 and as Manager, Field operations from 1.11.2014 to 18.7.2017 in Travacncore Rubber and Tea Co.Ltd. It was therefore argued that the petitioner did not have the requisite qualification of 9 years' experience in managerial cadre. Producing Ext.P12 letter of that company the petitioner claimed that he was performing managerial duties, which is seriously disputed by the learned Government Pleader, pointing out the designation itself. 10. The learned Senior counsel for the petitioner pointed out that the petitioner was appointed as Manager (Operations) on the basis of the interim order passed on 23.06.2016; even though the State filed W. A.1663 of 2016, it was dismissed on 10.04.2017, seeing that the directions are 11 W.P(C) No.20018 of 2016-B, W.P(C).No.1130 of 2015-M & W.P(C).No.2937 of 2016-N subject to the result of the case, taking note of Exts.P3 and P4. It was argued that the petitioner was the only person who was having the prescribed qualifications and hence he was ranked 1; there cannot be any abolition of the post and there is no basis for the allegations of corruption. It was also pointed out that the complainant himself was the previous Chairman of the Corporation. 11. The learned Government Pleader argued that the order regarding abolition of post was upheld in the judgment in W.P(c).No.4069/2009 and when there was a deemed abolition, no appointment could have been made. Referring to the dictionary meaning of 'vacancy' it was argued that when the post was not occupied by anybody for a long period of 16 years, it cannot be said that there was any void to be filled up. The judgment of the Supreme Court in **U.P. BhumiSudhar Nigam Ltd v. Shiv Narain Gupta** : 1994 Suppl (2) SCC 541: 1994 KHC 982, **State of Bihar and Ors. v. Suprabhat Steel Ltd. & Ors.** : (1999)1 SCC 31: 1999 KHC 944 (Para.7), 2015 KHC 4585 , **Takshila Seas and Resort Pvt. Ltd., Patna v. State of Bihar & Ors.** : 2016 KHC 4325, 2010 KHC 401, **Balakrushna Behera & Anr. v. Satya Prakash Dash** : 2008 KHC 4014 were relied on asserting that court cannot direct appointment against a post 12 W.P(C) No.20018 of 2016-B, W.P(C).No.1130 of 2015-M & W.P(C).No.2937 of 2016-N which is abolished, as held in **M.Ramanatha Pillai v. State of Kerala** : 1973 KHC 251. The judgment in **Usha K. v. State of Kerala & Ors.** : 2008 (1) KHC 191, **Sakeena V.A v. State of Kerala & Ors.** : 2014 KHC 557 (para.8), **Punjab Water Supply & Sewerage Board v. Ranjodh Singh & Ors.** : 2007 KHC 3073 and judgment in W.A.2094/2016 were also relied on asserting that Government can review the appointment if it was found erroneous later and that court cannot direct appointments. 12. Having heard the contentions on both sides, it is necessary to examine whether appointment can be directed by this Court to the post of Manager (Operations). The Board of Directors resolved to make appointment and proceeded with the selection and thereafter got a Government letter permitting the Corporation to make appointment after selection. The objections now raised are (i) since the post was lying vacant since 2001, appointment should not have been made as, such posts are liable to be abolished in the light of Ext.R1(a) order; (ii) prior approval is necessary for appointment to the post of Manager (Operations) and Ext.P3 letter cannot confer authority to make appointment (iii) the petitioner does not have the requisite qualification of 9 years' experience. W.P(C) No.20018 of 2016-B, W.P(C).No.1130 of 2015-M & W.P(C).No.2937 of 2016-N 13 13. First of all I will examine whether the petitioner is having the requisite qualification. The qualification prescribed for appointment to the post of Manager (Operations) as seen from Annexures I notification produced along with I.A **.** 1817/2018 and the staff pattern fixed for the 2[nd] respondent corporation is Degree of a recognised University or equivalent qualification and 9 years' experience in managing similar farm. Though when applications were invited in 2015, as evident from Annexure I, the notified qualification was 9 years' experience in managing similar farms, along with Degree, it was modified when applications were invited in 2016, as can be seen from Annexure I itself, with an explanation that similar farms would mean large scale plantations of rubber, tea, coffee cardamom and oil palm and experience should not be below the capacity of Assistant Manager. Ext.R1(d) enquiry report dated 15.11.2016 produced along with the counter affidavit of the 1[st] respondent shows that the only certificate produced by the petitioner at the time of interview, was the one issued from HORTICORP, according to which he had worked as Assistant Manager for 2 years from 1998-2000. As per the report, he did not produce certificate to prove experience for the remaining 7 years, though he claimed that he worked in Managerial cadre in Travancore Rubber and Tea company Ltd. and it was 14 W.P(C) No.20018 of 2016-B, W.P(C).No.1130 of 2015-M & W.P(C).No.2937 of 2016-N stated therein subsequently that he had produced certain documents by which he was appointed in various posts in that institution for the period from 2009 onwards, which cannot be reckoned as experience. Along with I.A.1691/2018, the petitioner produced Exts.P12 to P15 claiming to be the proof of his experience. But Ext.P12 certificate produced by the petitioner is one issued on 10.6.2009 which provides for the duties which were to be performed by the petitioner when he worked as an executive in Manikal Estate under the Travancore Rubber and Tea Co. Ltd. Ext.P14 would show that he worked as Assistant Manager for the period from 6.8.2008 to 31.3.2009 in Harrisons Malayalam. However, Ext.P12 certificate would only show that the petitioner worked as an executive. The very same company has issued Ext.P15 certificate in 2017, where it is certified that the petitioner worked as Executive Trainee from 9.1.2006 to 31.7.2008, as executive from 1.6.2009 to 31.10.2014 and as Manager from 1.11.2014 to 18.7.2017. That means as on 27.01.2016, the last date fixed for receipt of application, as seen from Annexure I, his experience as Manager was only from 01.11.2014 to 27.01.2016 i.e for about 15 months, about 8 months in Harrison Malayalam as Assistant Manager, covered by Ext.P14, and as Assistant Manager in HORTICOP for about 2 years and 3 months from 15 W.P(C) No.20018 of 2016-B, W.P(C).No.1130 of 2015-M & W.P(C).No.2937 of 2016-N 14.9.98 to 11.12.2000, covered by Ext.P13 i.e, about 4 years. That would show that the petitioner was not qualified even after reckoning his experience as Assistant Manager. Moreover, these certificates including those issued in 2017 are produced before this Court, instead of producing it at the time of selection. Therefore, even without going into the question whether the post was liable to be abolished and was not necessary to be filled up, the inclusion of the petitioner, who did not have the requisite experience and who did not produce the requisite certificate before the selection committee, as No.1 in the rank list can only be found illegal. In these circumstances, I find force in the submission of the learned Government Pleader that the revision of the first notification with an explanation to similar experience as experience in large scale plantations of Tea, cardamom etc. was specified with the intention to give appointment to a particular person. 14. In the above circumstances, it can be seen that though the petitioner was included in the rank list, the petitioner did not have even the qualification prescribed and was not liable to be included in the rank list Ext.P1. On that ground itself, the petitioner is liable to be non suited. It is settled law that mere inclusion in the rank list will not confer any vested right on a person 16 W.P(C) No.20018 of 2016-B, W.P(C).No.1130 of 2015-M & W.P(C).No.2937 of 2016-N included in it to get appointment. Appointment can be made only of persons who are having qualification, in case there is requirement of a person to man the vacant post. The petitioner who did not have the requisite 9 years' experience therefore is not entitled to get any relief from this Court. 15. As per the staff pattern, the method of appointment provided for appointment as Manager (Operations) is by promotion of Estate Manager with 5 years' experience in the post. From the counter affidavit of the respondents as well as the enquiry report Ext.R1(d) it is seen that appointment to the post of Manager (Operations) was being made only by way of promotion till 2000 and it was for the first time that proceedings were initiated for direct recruitment in the year 2015 and 2016. Such a decision to resort to direct recruitment was taken by the Director Board in the year 2014. It is also seen from the enquiry report that the post was remaining vacant from 21.6.2000 and till that time that post was manned by persons appointed on promotion. Admittedly, from 22.6.2000 onwards additional charge was given to perform the duties attached to the post of Manager (Operations) upto the year 2010 and from 2010 onwards nobody is given even the additional charge. It is also to be noted that as per clause 38 of Articles of association of the 2[nd] respondent, prior approval of the Governor is necessary for appointment to the post of Manager (Operations). In this case they did not get prior approval of the Government; Government 17 W.P(C) No.20018 of 2016-B, W.P(C).No.1130 of 2015-M & W.P(C).No.2937 of 2016-N granted permission by issuing a letter, after the selection was over, after issuing 2 notifications one in 2015 and one in 2016. The 2[nd] respondent company proceeded with the selection and after drawing a rank list as contained in Ext.P1 addressed the Government with letter Ext.P2. In Ext.P2 also it is stated that the post of Manager (Operations) is one to be filled by promotion of Estate Manager with 5 years' experience. In case there is no eligible candidate from among the Estate Managers/in the absence of eligible candidates for internal recruitment the post can be filled by direct recruitment. Writ petitions were pending before this Court by internal candidates claiming appointment as Manager (Operations). But in the absence of Estate Managers and on account of the age limit prescribed, for direct recruitment, they are ineligible for promotion as well as for direct recruitment. Ext.P3 is the letter informing the 2[nd] respondent that Government decided to permit the Corporation to make appointment to the post of Manager (Operations), after the election process is over. According to the learned Government Pleader, there is no cabinet decision which grants permission to make such an appointment and a Govt. letter cannot take the place of a cabinet decision or an order of the Governor under Article 166. The requirement of prior approval by way of cabinet decision was necessary 18 W.P(C) No.20018 of 2016-B, W.P(C).No.1130 of 2015-M & W.P(C).No.2937 of 2016-N in the case when the Corporation decided to make appointment in a post which was lying vacant since the year 2001 and when Government had by way of a cabinet decision, directed that all posts lying vacant over one year should be abolished forthwith and any exception can be given only by council of Ministers. Ext.R1(a)-G.O.(P)No.1208/2001/Fin dated 22.10.2001 reads as follows: “The cabinet sub committee on measures in White Paper on State Finances, has recommended among other things that posts kept vacant over one year should be abolished. Government have accepted the recommendation and order that all posts lying vacant over one year should be abolished forthwith. Council of Ministers alone can grant exceptions where found absolutely necessary. By Order of Governor Krishnankutty Secretary” But the Director Board did not even state that the post was lying vacant for all these years when approval was sought as per Ext.P2 letter. In the light of Ext.R1(a) order, the post of Manager (Operations) cannot be filled up in the absence of a cabinet decision granting exception and another decision granting prior approval. As rightly pointed out by Sri.Jaffar Khan, the learned Government Pleader, Ext P3 cannot take the place of a cabinet decision and confer authority on the 2[nd] respondent to make appointment. W.P(C) No.20018 of 2016-B, W.P(C).No.1130 of 2015-M & W.P(C).No.2937 of 2016-N 19 16. It is settled law that it is upto the Government/employer to decide whether a post has to be filled up or not. In the judgment in **M.Ramanathapillai v. State of Kerala Air 1973 SC 2641** , the Apex Court while considering the validity of termination of service of a Vigilance Commissioner before expiry of his term on account of abolition of the post, upheld the action of the Government and held that the abolition of a post is a matter which is entirely within the power of the Government in the interest of internal administration. Power to create or abolish a post is a matter of Government policy and it is dictated by the exigencies of circumstances and administrative necessity. There the Government decided that there was no need to have a Vigilance Commissioner on abolition of the post w.e.f 28.2.1970. In this case also, if there is a cabinet decision which mandates abolition of post or in the absence of cabinet decision granting prior approval for appointment of Manager (Operations) the Corporation cannot proceed with the selection even on the basis of Ext.P3 letter when that letter is not supported by a cabinet decision. 17. In **A.Umarani v. Coop. Societies, (2004) 7 SCC 112** , while considering the validity of orders issued by Government regularising illegal appointments, even in the absence of posts, the Apex Court held as follows: 20 W.P(C) No.20018 of 2016-B, W.P(C).No.1130 of 2015-M & W.P(C).No.2937 of 2016-N “49. It is trite that appointments cannot be made on political considerations and in violation of the government directions for reduction of establishment expenditure or a prohibition on the filling up of vacant posts or creating new posts including regularisation of daily-waged employees. (See Municipal Corpn., Bilaspur v. Veer Singh Rajput.) 18. Following the judgment in **Umarani** 's case (supra) the Apex ## Court in **Punjab Water Supply & Sewerage Board v. Ranjodh Singh,** **(2007) 2 SCC 491,** while considering the effect of circular letters issued by the Government in respect of regularisation, held as follows : “14. Once it is held that the terms and conditions of service including the recruitment of employees were to be governed either by the statutory rules or rules framed under the proviso to Article 309 of the Constitution of India, it must necessarily be held that any policy decision adopted by the State in exercise of its jurisdiction under Article 162 of the Constitution of India would be illegal and without jurisdiction.” ## In paragraph 19, following Umarani's case it was held as follows: “19. In the instant case, the High Court did not issue a writ of mandamus on arriving at a finding that the respondents had a legal right in relation to their claim for regularisation, which it was obligated to do. It proceeded to issue the directions only on the basis of the purported policy decision adopted by the State. It failed to notice that a policy decision cannot be adopted by means of a circular letter and, as noticed herein before, even a policy decision adopted in terms of Article 162 of the Constitution of India in that behalf would be void. Any departmental letter or executive instruction cannot prevail over statutory rule and constitutional provisions. Any appointment, thus, made without following the procedure would be ultra vires.” It is settled law that it is upto the Government/employer to decide whether a post has to be filled up or not. As per the Articles of Association there 21 W.P(C) No.20018 of 2016-B, W.P(C).No.1130 of 2015-M & W.P(C).No.2937 of 2016-N should be prior approval for appointment to the post in managerial cadre. Therefore, the proceedings initiating selection process itself should have been initiated only after getting approval from the Government/Governor, especially when Ext.R1(a) order continues to be in force. In **State of Bihar** **v. Suprabhat Steel Ltd., (1999) 1 SCC 31,** the Apex Court while considering the eligibility for exemption, considered the effect of a notification issued by the Government which went contrary to the general industrial policy which was approved by the cabinet held as follows: **“7.** xxxxxComing to the second question, namely, the issuance of notification by the State Government in exercise of power under Section 7 of the Bihar Finance Act, it is true that issuance of such notifications entitles the industrial units to avail of the incentives and benefits declared by the State Government in its own industrial incentive policy. But in exercise of such power, it would not be permissible for the State Government to deny any benefit which is otherwise available to an industrial unit under the incentive policy itself. The industrial incentive policy is issued by the State Government after such policy is approved by the Cabinet itself. The issuance of the notification under Section 7 of the Bihar Finance Act is by the State Government in the Finance Department which notification is issued to carry out the objectives and the policy decisions taken in the industrial policy itself. In this view of the matter, any notification issued by government order in exercise of power under Section 7 of the Bihar Finance Act, if is found to be repugnant to the industrial policy declared in a government resolution, then the said notification must be held to be bad to that extent. Xxx” 19. Similar issue came up for consideration in **Lloyd Electric &** ## **Engg. Ltd. v. State of H.P., (2016) 1 SCC 560** , regarding the rate of W.P(C) No.20018 of 2016-B, W.P(C).No.1130 of 2015-M & W.P(C).No.2937 of 2016-N 22 ## Central Sales Tax, in view of the industrial policy of the State to realise only ## @1%. It was held that the department cannot take a decision contrary to the ## policy which is taken by the cabinet. In para 14 it was held as follows: 14. xxx The State Government cannot speak in two voices. Once the Cabinet takes a policy decision to extend its 2004 Industrial Policy in the matter of CST concession to the eligible units beyond 31-3-2009, up to 31-3-2013, and the Notification dated 29-5-2009, accordingly, having been issued by the Department concerned viz. Department of Industries, thereafter, the Excise and Taxation Department cannot take a different stand. What is given by the right hand cannot be taken by the left hand. The Government shall speak only in one voice. It has only one policy. The departments are to implement the government policy and not their own policy. Once the Council of Ministers has taken a decision to extend the 2004 Industrial Policy and extend tax concession beyond 31-3-2009, merely because the Excise and Taxation Department took some time to issue the notification, it cannot be held that the eligible units are not entitled to the concession till the Department issued the notification xx” 20. In the judgment in **Takshila Seas and resorts Pvt Ltd v. State of Bihar and another: 2016 KHC 4325** , the Patna High Court found that the policy decision of the State Government taken by the council of Ministers would override any notification to the contrary issued by the department. As pointed out by the learned Government Pleader, in the absence of an exception granted by the council of Ministers, as provided in Ext.R1(a) order and in the absence of prior approval also by way of cabinet decision, the proceedings initiated for filling up the post of Manager (Operations) is illegal. 21. In this case the petitioner has sought for a direction to the 23 W.P(C) No.20018 of 2016-B, W.P(C).No.1130 of 2015-M & W.P(C).No.2937 of 2016-N respondents to appoint him on the basis of the rank list. It is settled law that mere inclusion in a rank list does not confer any indefeasible or vested right on a candidate for appointment, as held in a catena of judgments. A Constitution Bench of the Apex Court in **Shankarsan Dash v. Union of** **India: (1991) 3 SCC 47 :AIR 1991 SC 1612** after discussing a series of earlier judgments held as follows: “7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner.” 22. The aforesaid judgment was followed in **U.P. Bhumi Sudhar** **Nigam Ltd. v. Shiv Narain Gupta** , 1994 Supp (2) SCC 541. In **Balakrushna Behera v. Satya Prakash Dash [(2008) 1 SCC 318]** _**,**_ the Apex Court while considering a case which arose out of a contempt case alleging non-appointment in a University found that prior approval of Government was necessary for all appointments of teaching staff as per Utkal University first Statute and, that too, is subject to availability of funds. According to State Government the posts of Lecturers were abolished in 24 W.P(C) No.20018 of 2016-B, W.P(C).No.1130 of 2015-M & W.P(C).No.2937 of 2016-N view of the re-structuring and no appointment was possible. Following **Sankarsan Das** 's case, the Apex Court held that the court cannot by a writ of mandamus direct the State Government to appoint a person against a post which is already abolished. It was held as follows: “10. 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 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: AIR 1991 SC 1612.” 23. It was also held that even after selection a person could not have any indefeasible right to be appointed in the post as selection does not confer any vested right to get appointment which can be enforced under Article 226 of the Constitution of India. 24. In **Sakeena v. State of Kerala & others** : 2014 KHC 557, this Court found that the Government has power to cancel an appointment when it is found irregular. In the judgment in **Usha K. v. State of Kerala: 2008(1) KHC 191,** this Court found that the Government can correct its earlier decision if it is in violation of law. 25. Apart from that as it is seen that all the proceedings initiated for 25 W.P(C) No.20018 of 2016-B, W.P(C).No.1130 of 2015-M & W.P(C).No.2937 of 2016-N appointment to the post were without getting prior approval from the Government and as at present the Government is of the view that there is no necessity to fill up the post of Manager (Operations), no relief is liable to be granted to the petitioner under Article 226 of the Constitution. Accordingly, the writ petition is dismissed. ## **W.P.(C) No.1130/2015** 26. Even though writ petition No.1130/2015 was posted on several days, there was no representation for the petitioner. The petitioner is seeking promotion to the post of Manager (Operations), while challenging Ext.P7 order, by which the request of the petitioner for re-designation of the post of Manager (Operations) to General Manager Commercial was rejected. Method of recruitment to the post of Manager (Operations) is by promotion from the post of Estate Manager with 5 years experience in the feeder category. 27. The petitioner had been working as Commercial Officer. His request was to promote him to the post of Manager (Operations). It was found that the petitioner was not eligible for promotion as he was a commercial officer which is not in the feeder category. It appears that he requested for re-designation of the post of Manager (Operations) apparently 26 W.P(C) No.20018 of 2016-B, W.P(C).No.1130 of 2015-M & W.P(C).No.2937 of 2016-N because the post held by him is not the feeder category. 28. Therefore, when admittedly the petitioner is not holding the post of Estate Manager, which is the only feeder category from which promotion can be made to the post of Manager(Operations), his claim for promotion to that post is unsustainable. 29. The questions whether a post has to be re-designated or not or how it should be re-designated are not matters to be considered by this Court under Article 226 of the Constitution of India. 30. Therefore, I do not find any reason to interfere with Ext.P7 order or for granting any of the reliefs prayed for in the writ petition. Accordingly, the writ petition is dismissed. W.P(C).No.2937/2016 31. The very same petitioner in W.P(c).No.1130/2015 has filed this writ petition. In this writ petition, the petitioner seeks a direction to the Corporation to finalise the proceedings for selection for appointment to the post of Manager (Operations) initiated as per Ext.P9 decision, by way of direct recruitment. He has also prayed for a declaration that he is entitled to be appointed to the post. 32. There was no representation for the petitioner. The first relief W.P(C) No.20018 of 2016-B, W.P(C).No.1130 of 2015-M & W.P(C).No.2937 of 2016-N 27 sought has become infructuous. The second relief is not liable to be granted in the light of the judgment in W.P(C).No.1130/2015. Hence this writ petition is also dismissed. Sd/- **(** _**P.V.ASHA, JUDGE)**_ _rtr/_