Leelavathy R. Tharuvly and Hinduja V. L. Sreeraghavam v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **WEDNESDAY, THE 1[ST] DAY OF DECEMBER 2021 / 10TH AGRAHAYANA, 1943** ## **WP(C) NO. 29289 OF 2017** ## **PETITIONERS:** 1 LEELAVATHY.R THARUVALY HOUSE, KARUKAMANI,CHITTOOR COLLEGE P.O.,PALAKKAD. 2 HINDUJA V.L. SREERAGHAVAM, KOTTATHALA P.O.,KOTTARAKKARA - 691 507. BY ADVS. SRI.BRIJESH MOHAN SRI.K.JAJU BABU SR. SMT.RESMI G. NAIR ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT,PLANNING AND ECONOMIC AFFAIRS DEPARTMENT,GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM - 695 001. 2 KERALA PUBLIC SERVICE COMMISSION PATTOM, THIRUVANANTHAPURAM - 695 004,REPRESENTED BY ITS SECRETARY. 3 THE REGIONAL OFFICER KERALA PUBLIC SERVICE COMMISSION,REGIONAL OFFICE, ERNAKULAM - 682 030. 4 THE GREATER COCHIN DEVELOPMENT AUTHORITY POST BOX NO.2012, COCHIN - 682020.REPRESENTED BY ITS SECRETARY. 5 BESHY KURIAKOSE SOUGHT TO BE IMPLEADED BY ADVS. GOVERNMENT PLEADER K.P.SATHEESAN (SR.) SRI.P.MOHANDAS (ERNAKULAM) SRI.S.VIBHEESHANAN WP(C) NO.9195/2019 & RP.294/2020 &W.P(C)29289/2017 2 SRI.V.RAJASEKHARAN NAIR SRI.K.SUDHINKUMAR SRI.S.K.ADHITHYAN SRI.SABU PULLAN SRI.GOKUL D SUDHAKARAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.12.2021 ALONG WITH W.P.(C) No.9195/2019 AND R.P.NO.294/2020 IN WP(C) NO.29289/2017 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.9195/2019 & RP.294/2020 &W.P(C)29289/2017 3 ## **COMMON JUDGMENT** The 3[rd] respondent- PSC in W.P.(C)No.9195/2019, invited applications to fill up three posts of Deputy Town Planner, GCDA., by Ext.P2 notification dated 12/8/2014. GCDA is arrayed as the second respondent. The method of appointment was by way of direct recruitment. The qualification prescribed, inter alia, was Post Graduate Degree or Diploma in Town and Country Planning or Regional Planning/City Planning or equivalent. It was provided that five years experience in the field of Town and Country Planning or Regional Planning/City Planning was essential, with each qualification. It was also provided that the experience certificate shall be produced in the prescribed format. In the selection process, the petitioner stood ranked No.4 in the open category. Enquiry revealed that rank Nos.1 and 2 were advised towards the first and third vacancies, under open competition. As per the Scheme, the first and third seats were set apart for open vacancies and the second seat for Ezhava vacancy. The first and second rank holders are arrayed as the 4[th] and 5[th] respondents. The petitioner contended that the second vacancy, being the reserved post, was allotted to rank No.6. It was stated that though the advice memos were issued to respondents 4 and 5, appointment orders were not issued on the ground that, they did not possess the prescribed qualification of five year mandatory period of experience. The advice memos issued to the 4[th] and 5th respondent were produced as Exts.P5 and P6 respectively. WP(C) NO.9195/2019 & RP.294/2020 &W.P(C)29289/2017 4 2. The 4[th] and 5[th] respondents, on the strength of Exts.P5 and P6 advice memos filed W.P.(C)No.29289/2017 contending that, there was delay in their appointment, in spite of the publication of the rank list and advice memos issued to them. A copy of W.P.(C) No.29289/2017 was produced in this writ petition as Ext.P7. The counter filed by the 4[th] respondent in W.P.(C) No.29289/2017 was produced as Ext.P8. The GCDA, in their counter affidavit, took up the stand that 4[th] and 5th respondents were advised by the PSC, but those candidates did not possess the requisite experience. 3. Ext.P3 was a Circular No.23514/B.P.E./87/Plg.Trivandrum, dated 5/7/1988 issued by the Planning and Economic Affairs Department, permitting relaxation in experience in the case of SC & ST candidates, for appointment to public sector undertakings. According to the petitioner, the advice memos were issued on the strength of Ext.P3 Circular, since the 4[th] and 5[th] respondents belonged to SC community. It is affirmed in the writ petition that GCDA was not public sector undertaking and hence, not covered by Ext.P3. According to the petitioner, it is a local self Government Department, constituted as a specialized agency for implementing development projects in Kochi. 4. When the W.P.(C) No.29289/2017 came up for admission, the GCDA, to support their contention that PSC cannot relax the condition for selection, relied on the judgment of this Court in W.P(C) No.19330/2015. Negativing this contention, the learned Judge before whom W.P.(C) No.29289/2017 came up, expressed the view that the judgment in W.P.(C) No.19330/2015 required reconsideration. The matter was hence referred to the Division Bench. At that juncture, the writ WP(C) NO.9195/2019 & RP.294/2020 &W.P(C)29289/2017 5 petitioner herein got himself impleaded in W.P.(C) No.29289/2017. In the meanwhile, the judgment in W.P.(C) No.19330/2015 was challenged by the Public Service Commission in W.A.No.2327/2017. W.P.(C) No.29289/2017 was posted along with W.A.No.2327/2017. By Ext.P10 interim order, the Division Bench directed that the GCDA shall provisionally appoint the 4[th] and 5[th] respondents as Deputy Town Planners, in the light of Ext.P3, subject to the final outcome in W.P. (C) No.29289/2017. 5. Challenging Ext.P10 interim order, GCDA filed SLP No.16185/2019. A stay was granted by the Hon'ble Supreme Court on 19/7/2019. The petitioner also challenged Ext.P10 in SLP No.30461/2019. Since stay was granted in SLP No.16185/2019, no stay was granted in SLP No.30461/2019. Subsequently, SLP No.16185/2019 was withdrawn by the GCDA, for reasons known to them. When SLP No.30461/2019 came up for hearing, the Apex Court refused to interfere in Ext.P10 order, on the premise that the SLP was filed challenging an interim order. The Hon'ble Apex Court directed the petitioner to approach this Court seeking appropriate reliefs. 6. In the meanwhile, Respondents Nos. 4 and 5 were given posting orders which were produced by them along with interlocutory application in W.P. (C)No.29289/2017. The appointment order issued to the respondents 4 and 5 was produced as Ext.P15. 7. The writ petitioner also filed a review petition as R.P.No.294/2020 in W.P(C) No.29289/2017 seeking to review the judgment in W.P.(C) No.29289/2017 dated 17/2/2020 by which, on the basis of the submissions made by the writ WP(C) NO.9195/2019 & RP.294/2020 &W.P(C)29289/2017 6 petitioners therein, that they were appointed and no further orders were required, the writ petition was closed, recording their appointments. 8. In W.P.(C) No.9195/2019, the prayers sought by the writ petitioner is for a direction to the 3[rd] respondent to produce the advice memos issued to respondents 4 and 5 for appointment as Deputy Town Planners in GCDA and to quash the same, to issue a writ of mandamus or other order or directing the 3[rd] respondent to advice the petitioner as he was rank No.4, under open merit, for appointment to the post of Deputy Town Planners in GCDA and, to declare that 4[th] and 5[th] respondents cannot claim the benefit of Ext.P3 circular for getting appointment in GCDA and also for other ancillary reliefs. 9. Heard W.P.(C) No.9195/2019 along with R.P.No.294/2020 in W.P.(C) No.29289/2017, since both are interlinked and common facts arise in both the cases. 10. Though notice was served on 4[th] and 5[th] respondents, counter affidavit was filed only by the 4[th] respondent. The 5[th] respondent did not participate in the present proceedings. It was submitted at the time of hearing that, 5[th] respondent had rejoined her original post and hence not interested in the proceedings. 11. The 4[th] respondent filed a counter affidavit reiterating the facts mentioned in the writ petition and denied the contention that Ext.P3 circular cannot be made applicable without amendment to the Special Rule. It was contended that, this Court in Ext.P8 judgment had taken the view that Ext.P3 was only an instruction to the Heads of Public Sector Undertakings giving liberty to them, to make relaxation in qualifications in appropriate proceedings. Ext.P8 judgment WP(C) NO.9195/2019 & RP.294/2020 &W.P(C)29289/2017 7 related to appointments in KSRTC. It was further stated that the fourth respondent was employed elsewhere and thereafter joined GCDA. If she loses the job, she will be thrown to street and will be left jobless. It was contended that Ext.P3 was validly made applicable to GCDA and to that extent, the contention was not sustainable. It was also contended that, if at all the petitioner has to be given appointment, it could be done only after the 3[rd] respondent, who was also the member of the Scheduled Caste community, was granted appointment. However, the 3[rd] rank holder was not arrayed as party to the proceedings. Denying the contention that Ext.P3 cannot be made applicable to GCDA in view of the fact that GCDA was not a public sector undertaking and it comes under the local self Government Institutions, it was stated that in Government Departments also, Ext.P3 has been made applicable and in appointments under the Government also, the members of SC & ST community were extended the benefits of Ext.P3 circular. Even prior to Ext.P5, Government had issued U.O note dated 27/12/1977, a copy of which was produced as Ext. R4(a). It was contended that the relaxation granted in respect of experience to SC & ST community candidates was just and proper, in view of the decision reported in S _**tate of Madhya Pradesh and another v. Kumari Nivedita Jain and others (1981 (4) SCC 296)**_ . It was also contended that the petitioner had experience of 2½ years working in the Hydrographic Survey Wing-I. She had also worked in other institutions evidenced by Ext.R4(b) and R4(c). Considering Exts.R4(b) and Ext.R4(c), she had more than five years of experience. It was contended that the challenge raised against the petitioner after lapse of two years after publication of rank list cannot be sustained. WP(C) NO.9195/2019 & RP.294/2020 &W.P(C)29289/2017 8 The petitioner was guilty of latches and delay and hence the writ petition was liable to be dismissed on that ground alone. The 4[th] respondent was fully qualified for appointment as Deputy Town Planner and has been working in the institution for the past one and half years. 12. One of the preliminary contention set up by the 4th respondent was that the writ petition was highly belated and since it was filed after a lapse of two years from the date of publication of the rank list. It was liable to be dismissed on that ground alone, it was argued. 13. It seems that when the reference order was passed by this court in W.P. (C) No.29289/2017, the writ petitioner got himself impleaded in the matter. Thereafter, he has been perusing the proceedings. Right from the beginning his contention was that, the respondents 4 and 5 were not qualified and the PSC did not have the authority to invoke Ext.P3 Government Order. It was also contended that no relaxation in experience can be granted by virtue of Ext.P3. Against Ext.P10 interim order, the writ petitioner had preferred an SLP, which was closed by Ext.P13 order on 5/2/2020. He was directed to move the court below. Immediately thereafter, R.P.No.294/2020 was filed in W.P.(C) No.29289/2017 on 10/3/2020. Closely thereafter, the present writ petition was filed on 22/6/2020. Evidently, the petitioner has been pursuing his remedies, even before filing the writ petition. Having considered this, it cannot be held that the present writ petition is bad for delay. 14. Another preliminary objection raised by the 4[th] respondent was that the third rank holder in Ext.P1 rank list was not made a party and if at all any relief was WP(C) NO.9195/2019 & RP.294/2020 &W.P(C)29289/2017 9 to be granted to the writ petitioner, it could be done only after the third rank holder, who was also member of the Schedule Caste Community, was offered appointment. Without impleading the third rank holder, the writ petition was not maintainable, it was contended 15. In reply to the above contention, the learned senior counsel for the petitioner invited my attention to para 4 of the reply affidavit filed by the writ petitioner. In the reply affidavit it was asserted that though respondents Nos. 4 and 5 were advised, respondent No.5 did not join duty. The said NJD vacancy was reported to the PSC against which rank number 3 was appointed. However, rank number 3 also refused to join duty. Naturally, the next eligible candidate is the 4[th] rank holder, who is the writ petitioner. 16. In the light of the above precise affirmation,which is not denied by any of the parties,it is clear that the third respondent is not a necessary party to the above proceedings. Consequently, the preliminary objection is not legally sustainable. 17. On merits, the learned senior counsel advanced three specific contentions. It was contended that the PSC was not competent to relax the Rule, even if Ext.P3 was applicable in the present case. It was also contended that even assuming that Ext.P3 was applicable, relaxation could not have been invoked after the selection process had commenced. PSC was not competent to change the Rules after the selection process had started. The third contention advanced by the learned senior counsel was that Ext.P3 applies only to Public Sector Undertakings. GCDA, not being public Sector Undertaking, Ext.P3 was not applicable. WP(C) NO.9195/2019 & RP.294/2020 &W.P(C)29289/2017 10 18. The learned senior counsel specifically contended that even assuming that Ext.P3 is applicable to the facts of the case, it does not authorize PSC to unilaterally relax the condition. Ext.P3 is a circular dated 5/7/1988 issued by the Planning and Economic Affairs (BPE) Department wherein, it was noted that in the case of certain public sector undertakings, experience for SC and ST candidates was insisted upon. It was held that qualification of experience will not be applicable in the case of Scheduled Caste and Scheduled Tribe candidates for recruitment to any post in the Public Sector Undertakings under the State Government. Thereupon, the Chief Executives of all Public Sector Undertakings may review the relevant special rules/executive orders of the respective undertaking, in which “experience” has been prescribed as one of the qualifications for recruitment to any post with a view to providing that such “experience” qualifications will not be applicable in case of Scheduled Caste/Scheduled Tribe candidates. Scheme should also be drawn up by each Public Sector Undertaking to give appropriate training, wherever necessary. 19. Evidently, Ext.P3 is a direction to the Chief Executives of all Public Sector Undertakings to make necessary changes in the Special Rules/Administrative Orders to give effect to the above Circular. It did not authorize the PSC unilaterally, that too in the absence of any change in the special rules/regulations/notifications issued, to relax the provision for experience and to extent it to respondents 4 and 5. In Ext.P8 judgment, this court had referred to this aspect and had held that PSC circular was not intended to the PSC and it was WP(C) NO.9195/2019 & RP.294/2020 &W.P(C)29289/2017 11 intended to the public sector undertakings, giving them liberty to cause appropriate relaxation. However, it was mandatory as far as the Chief Executive of the PSU concerned to make necessary changes. 20. The learned senior counsel for the writ petitioner invited my attention to Ext.P2 notification, wherein it was provided that five year experience was essential with each qualification mentioned. Regarding the backward communities and the SC & SC candidates,it was mentioned that age relaxation would be provided. It was mentioned that such candidates are eligible for ususal relaxation. Apart from that , there was absolutely no provision regarding relaxation of experience in the case of SC & ST candidates, notwithstanding the fact that Ext.P3 circular was issued way back in 1988. Relying on it, learned senior counsel contended that after the notification was issued and after the selection process has commenced, there could not have been a change in the Rules. To substantiate the argument, the learned senior counsel referred to a catena of decisions including **K.Manjusree v. State of Andhra Pradesh And Another (2008) 3 Supreme Court Cases 512)** , P _**.K.Ramachandra Iyer & others v. Union of India and Others(AIR 1984 Supreme Court 541)**_ , _**Umesh Chandra Shukla v. Union of India and others (AIR 1985 SC 1351)**_ , _**Durgacharan Misra v. State of Orissa and Others ( AIR 1987 Supreme Court 2267)**_ as well as the judgment of the Supreme Court in _**Civil**_ _**Appeal No.1961/2019 in Sanjay K.Dixit and Ors. v. State of Uttar Pradesh and Ors.**_ In all the decisions, court uniformly held that Rules must be declared at the commencement of the recruitment process and selection criteria cannot be changed afterwards of starting the process of selection. The above decisions held WP(C) NO.9195/2019 & RP.294/2020 &W.P(C)29289/2017 12 that the Rule of game cannot be changed after the game has started. This being the consistent view, the relaxation given by the PSC, on the basis of Ext.P3 which was not a stipulation provided in Ext.P2, notification cannot be justified at all. 21. Advancing further, the learned senior counsel contended that PSC has no authority to decide the question of equivalency. To supplement this, the learned senior counsel relied on the decisions reported in _**KPSC & another v. Abdul Rasheed K.and others(2007 (3) KHC 480)**_ and _**Suma V KPSC and Others (2011 (1) KHC 16)(FB)**_ . In both the cases, it was held that the PSC has no power to impose qualifications other than the qualification imposed by the appointing authority and the recruiting agency is not vested with any power to deviate from the qualifications prescribed in the notification. 22. Yet another specific contention raised by the learned senior counsel was that, above all, the GCDA was not a public sector undertaking. Hence, Ext.P3 circular was not applicable to GCDA. To support this, learned senior counsel specifically invited to the attention of this Court to Para 7 of the writ petition, wherein it was mentioned that GCDA has come into existence on 24/1/1976 under the Madras Town Planning Act of 1920 and Travancore Town Planning Act IV of 1108 read with G.O(MS)No.19/76/LA and SWD dated 23/1/1976. It was a body coming under the local self Government Department of the Government of Kerala. Hence, the second respondent was not a public sector undertaking and Ext.P3 circular is not applicable. To further supplement this, learned senior counsel contended that GCDA, in fact, had set up the same contention in the earlier proceedings,. The counter affidavit filed by the 4[th] respondent in W.P.(C) WP(C) NO.9195/2019 & RP.294/2020 &W.P(C)29289/2017 13 No.29289/2017 was pressed into service to support it. The learned senior counsel further relied on Ext.P17, which was an application to the Public Information Officer, Planning and Economic Affairs Department, seeking certain information under the Right to Information Act. In Ext.P17, one specific question was whether GCDA was a public sector undertaking, and if so , to give the structure of it. To this, by Ext.P18, the State Public Information Officer of the above Department replied that it was not a public sector undertaking and details were not available with the department. Ext.P18 enclosed the list of public sector undertakings and its controlling department, wherein GCDA does not find its place. The above materials undoubtedly indicate that the PSC was not a pubic sector undertaking and to that extent, Ext.P3 was not applicable to it. 23. The learned counsel for respondents 4 and 5, though tried to salvage this position by contending that, it being the department of the Government, Ext.P3 would apply in the light of the decision reported in State of Madhya Pradesh and another v. Kumari Nivedita Jain (supra). However, that decision does not apply to the facts of the present case. 24. The facts disclosed above clearly lead to a position that the respondents 4 and 5 were wrongly appointed for all the reasons mentioned above. The learned senior counsel relying on the decisions in _**Deepa E.V v Union of India and Others (2015(4) KHC 17**_ ), _**Ashok Kumar Sonkar v. Union of India and Others (2007) 4 SCC 54)**_ and _**Ramesh Kumar v. High Court of Delhi and another [2010)3 Supreme Court Cases 104]**_ contended that once the candidate is appointed without qualification, he can be removed from service. The above WP(C) NO.9195/2019 & RP.294/2020 &W.P(C)29289/2017 14 decisions squarely apply to the facts of this case. 25. As mentioned earlier, as per the interim order in W.P.(C)No.29289/2017, dated 28/3/2019 passed by the learned Division Bench, the 4[th] respondent was directed to provisionally appoint the petitioners therein as Deputy Town Planner, being rank Nos 1 and, .2 in view of Ext.P3 Circular. However, it was provided that the same would however abide by the final verdict in the writ petition. 26. The above order was challenged by the GCDA in SLP and obtained the stay of the above interim order. The review petitioner also filed SLP No.30461/2019 against the above order. Since there was an interim stay in the SLP filed by the writ petitioner, no separate stay was granted. Thereafter, the GCDA withdrew their SLP. In the absence of any stay,the writ petitioners in W.P. (C) No.29289/2017 were issued with appointment orders. They reported this before the learned Single Judge and the learned Single Judge on the above submission, closed the writ petition. The learned Single Judge had noted that in the light of the orders of appointment, the writ petitioners did not seek any further orders. Though the court had taken note of the pendency of IA No.1/2020 in W.P. (C) No.29289/2017 filed by third parties, to get themselves impleaded and oppose the closing of the writ petition pointing out that the appointment was given on the basis of the interim order, the court declined to accept the contention of the impleading petitioners on a premise that there was no reference to any order passed by the court in the order of appointment. The review petition is preferred on the ground that the learned Single Judge, who passed the above judgment closing WP(C) NO.9195/2019 & RP.294/2020 &W.P(C)29289/2017 15 W.P.(C) No.29289/2017, was not justified in closing it. 27. It seems that the GCDA gave appointment orders to the petitioners in W.P.(C) No.29289/2017, in the light of the directions given by the Division Bench in the above writ petition and having regard to the fact that the interim stay was not in force. Though the learned Judge had noted that there was no reference to any interim order in the appointment order, it seems to be not correct . Along with the review petition, the appointment order dated 17/1/2020 was produced as Annexure 6. The second reference in the appointment order of the Secretary, GCDA related to the interim order of this court in W.P.(C) No.29289/2017 dated 28/3/2019. The appointment order also referred to the pendency of the proceedings and it was stated that the appointment was subject to the final orders of this Court. It is also to be noted that in the interim order dated 28/3/2019, the Division Bench directed that the appointment to be made subject to the final orders in the writ petition. 28. In the light of the above specific facts, before closing the writ petition on 17/2/2020 on the basis of the submission by the learned counsel for the writ petitioner, matter ought to have been heard. Since the appointments were subject to the interim orders of this court, justifiably this court should have passed final orders clarifying this. 29. In the light of the decision of this court in W.P.(C) No.9195/2019, W.P. (C) No.29289/2017is liable to be dismissed. The appointment of the respondents in W.P.(C) No.9195/2019 is held as illegal. Consequently, W.P.(C) No.29289/2017 seeking direction for their appointment is not sustainable and is dismissed. WP(C) NO.9195/2019 & RP.294/2020 &W.P(C)29289/2017 16 Consequently, the interim order will have no legal basis. 30. Having considered the above, I am inclined to hold that the writ petitioner in W.P.(C) No.9195/2019 is liable to succeed. The appointment of respondents 4 and 5 pursuant to Ext.P2 notification, as the Deputy Town Planner in GCDA, stands set aside. It is declared that they cannot claim the benefits under Ext.P3 circular for getting appointment in GCDA, since GCDA is not a public sector undertaking. There will be a direction to the PSC to issue forthwith advice memo, whereupon steps shall be taken to appoint the petitioner as the Deputy Town Planner in GCDA forthwith. Appointment order shall be issued within three weeks from the date of receipt of a copy of this judgment. . In the result, W.P.(C) No.9195/2019 is allowed. R.P.No. No.294/2020 in W.P. (C) No.29289/2017 is allowed. Judgment in W.P.(C) No. 29289/2017 dated 17/2/2020 is recalled and the writ petition stands dismissed in the light of the reasons stated in the common judgment. Sd/- ## **SUNIL THOMAS** ## **Judge** dpk WP(C) NO.9195/2019 & RP.294/2020 &W.P(C)29289/2017 17 ## **APPENDIX OF WP(C) 29289/2017** |PETITIONER EXHIBITS|| |---|---| |EXHIBIT-P1:|COPY OF THE NOTIFICATION DATED 12.08.2014| ||ISSUED BY THE 2ND RESPONDENT.| |EXHIBIT-P2:|COPY OF THE RANK LIST PUBLISHED BY THE 2ND| ||RESPONDENT ON 10.10.2017.| |EXHIBIT-P3:|COPY OF THE ADVISE MEMO ISSUED BY THE 3RD| ||RESPONDENT ON 12.06.2017 TO THE 1ST| ||PETITIONER.| |EXHIBIT-P4:|COPY OF THE ADVICE MEMO ISSUED BY THE 3RD| ||RESPONDENT ON 12.06.2017 TO THE 2ND| ||PETITIONER.| |EXHIBIT-P5:|COPY OF THE CIRCULAR DATED 05.07.1988 ISSUED| ||BY THE PLANNING AND ECONOMIC AFFAIRS (BPE)| ||DEPARTMENT.| |EXHIBIT P6|TRUE COPY OF THE ORDER NO- 5050/ ESTT-| ||1/2017/GCDA DATED 28.1.2020 ISSUED BY THE 4TH| ||RESPONDENT TO THE 1ST PETITIONER.|