Nisha A.B. v. State of Kerala and Kerala State Financial Enterprises Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 27TH DAY OF JANUARY 2021 / 7TH MAGHA, 1942** ## **WP(C).No.21794 OF 2020(Y)** ## **PETITIONER:** **NISHA A.B AGED 43 YEARS W/O. ASHOK KUMAR T.V., RESIDING AT 2B, ASSET CHIRAAG, VIYYUR, THRISSUR-680010.** **BY ADVS. SRI.P.RAMAKRISHNAN SMT.PREETHI RAMAKRISHNAN (P-212) SRI.T.C.KRISHNA SRI.C.ANIL KUMAR SMT.ASHA K.SHENOY SRI.PRATAP ABRAHAM VARGHESE** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF TAXES, MINISTRY OF FINANCE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 KERALA STATE FINANCIAL ENTERPRISES LIMITED, CORPORATE OFFICE, BHADRATHA, THRISSUR-680020, REPRESENTED BY ITS MANAGING DIRECTOR.** **R2 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR R2 BY ADV. SRI.K.JOHN MATHAI R2 BY ADV. SRI.JOSON MANAVALAN R2 BY ADV. SRI.KURYAN THOMAS R2 BY ADV. SRI.PAULOSE C. ABRAHAM R2 BY ADV. SRI.RAJA KANNAN** ## **GI BIJOY CHANDRAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-012021, THE COURT ON 27-01-2021 DELIVERED THE FOLLOWING:** **WP(C).No.21794 OF 2020(Y)** **2** ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = W.P.(C).No.21794 of 2020** **= = = = = = = = = = = = = = = Dated this the 27[th] day of January, 2021** This writ petition is filed seeking the following reliefs: _i) A writ of certiorari or any other appropriate writ or order quashing and setting aside Exhibits P6 and P8,_ _ii) A writ of mandamus or any other appropriate writ or order directing the respondents to consider the petitioner for promotion to the post of Deputy General Manager (IT)._ _iii) Direct 2nd respondent to consider Exhibit P4 representation and to reinstate the petitioner in the specialized AGM (IT) post._ 2. Heard the learned counsel for the petitioner and the learned Government Pleader as well as the learned Standing Counsel appearing for the 2[nd] respondent. 3. It is submitted by the learned counsel for the petitioner that the petitioner was appointed as Assistant General Manager (IT) ('AGM' for short) in the 2[nd] respondent on 02.12.2009. It is stated that by Ext.P7 dated 23.06.2018, the Government had accepted a proposal for organisational restructuring in the 2[nd] respondent and a new post of Deputy General Manager (IT) ('DGM' for short) was **WP(C).No.21794 OF 2020(Y)** **3** created. It is contended that prior to Ext.P7, a decision had been taken by the Board of Directors that the newly created post of DGM (IT) would be filled up by giving preference to in-house personnel who have adequate domain knowledge and technical qualification (B.Tech/MCA). It was further decided to recruit two experienced persons from outside for hardware and network management in the cadre of Officer Grade II. 4. The learned counsel for the petitioner submits that the petitioner had MCA qualification and was functioning as the Head of the IT Department in the 2[nd] respondent. It is submitted that there was never any complaint of lack of expertise or competence on the part of the petitioner. While so, it is submitted that Ext.P8 order was issued by the Government changing the method of appointment to the post of DGM (IT) as direct recruitment alone and prescribing qualifications of B.Tech and BE for such appointment. It is contended that on further enquiries, the petitioner was told that a decision had been taken by the Board of Directors of the 2[nd] respondent to modify the method of appointment to the post of DGM (IT) and the qualifications were also provided. It is contended **WP(C).No.21794 OF 2020(Y)** that it was only to eliminate the petitioner from the field of choice that the qualifications and the method of appointment have been modified. It is further contended that in the absence of any allegation of any short coming in the petitioner's service as Head of the IT Department, the change of the qualification and method of appointment to eliminate the petitioner's chance of appointment is _per se_ illegal and unsustainable. 5. A counter affidavit has been placed on record by the 2[nd] respondent. It is contended that it was by Ext.P1, that the new cadre of AGM was created in the company and the qualifications for the post of AGM (IT) was B.Tech Computer Science/Information Technology or MCA or its equivalent in Information Technology from a recognized University, with not less than five years post qualification experience in supervisory/managerial position handling IT related activities of a Government/reputed company or Institution. It is submitted that by Ext.P2 appointment order, the petitioner had been specifically informed that she was liable to be transferred to any of the offices of the establishment to carry out the duties allotted to her. It is stated that the Board of Directors in **WP(C).No.21794 OF 2020(Y)** **5** its 536[th] meeting held on 27.05.2020, noted that the expertise and skill currently available in the IT Department was not adequate to manage and lead the digital transformation proposed to be undertaken by the company and therefore, the Board resolved by Ext.R2(a) resolution to modify the selection procedure. It is stated that the said modification and the proposal were forwarded to the Government and the Government sanction for such gave modification. It is stated that Ext.P7 Government order stands superseded by Ext.P8. All the allegations of _mala fides_ are denied and it is contended that the fixing of qualifications and method of appointment are the prerogative of the employer and in the absence of any established _mala fides,_ this Court would not be justified in interfering with such fixation of qualifications or method of appointment. It is contended that the newly created post of DGM (IT) is intended to be a pivotal post in the digitalisation process and that the Board of Directors of the 2[nd] respondent found that the appointment of a duly qualified and experienced person was necessary for a proper functioning of the said post as intended by the company. **WP(C).No.21794 OF 2020(Y)** **6** 6. The learned Government Pleader also supports the contentions of the learned counsel for the 2[nd] respondent. It is contended that there is no error of jurisdiction in the issuance of Ext.P8 order, since the Government had acted upon the recommendations of the Board of Directors of the company which is the authority to consider the question of adequacy of qualification and method of appointment to posts under the establishment. It is submitted that the petitioner has only raised vague allegations of _mala fides_ and since the petitioner has no vested right for appointment to the post of DGM (IT), the contentions cannot be accepted. 7. The learned Standing Counsel for the 2[nd] respondent places reliance on decisions of the Apex Court in _**Maharashtra Public Service Commission v. Sandeep Shriram Warade and Others [AIR 2019 SC 2154], J. Rangaswamy v. Government of Andhra Pradesh and Others [1990 (1) SCC 288], Nagaland Public Service Commission v. State of Nagaland and Others [2017 (13) SCC 498]**_ and _**Chief Manager, Punjab National Bank and Another v. Anit Kumar Das [2020 SCC online SC 897].**_ **WP(C).No.21794 OF 2020(Y)** **7** 8. I have considered the contentions advanced on all sides. The post of DGM (IT) was created by Ext.P7 Government order which did not specify the method of appointment or the qualifications for the post. It appears that the Board of Directors had initially decided that if persons with adequate qualifications and expertise are available in the establishment itself, they should be given preference for appointment to the newly created posts. Though no resolution of the Board of Directors is produced by the petitioner, the contention that such a decision had been taken by the Board of Directors is not denied by the respondents. Even so, it appears that in May 2020, the specific issue with regard to how the newly created posts should be filled up, was considered by the Board of Directors of the 2[nd] respondent. Though the learned counsel for the petitioner would contend that the issue was taken out of agenda, from a reading of Ext.R2(a) it is clear that the matter was considered by the Board of Directors and a decision was taken to alter the method of appointment and the qualifications prescribed for the post of DGM (IT). The contention of the petitioner appears to be that the qualification was changed specifically to make the petitioner ineligible for appointment as DGM (IT). However, I find that the **WP(C).No.21794 OF 2020(Y)** **8** change in qualification is not only with respect to the educational qualification. The qualifications with regard to experience have also been enhanced by the respondent and the attempt apparently is to find a well qualified and experienced person to man the post of DGM (IT). The contention raised by the petitioner that she had been transferred as AGM to make her ineligible to apply for the post of DGM (IT), also cannot be accepted since it is not in dispute before me that the petitioner does not have the qualification as provided in Ext.P8 for appointment to the post of DGM (IT). In the light of the judgments of the Apex Court which lay down that it is for the employer to decide on the questions of qualifications and method of appointment to posts under them, in the best interests of the orgainisation, I am of the opinion that this Court would not be justified in interfering with Ext.P8 order. The writ petition fails and the same is, accordingly, dismissed. Sd/- **ANU SIVARAMAN JUDGE** SVP **WP(C).No.21794 OF 2020(Y)** **9** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1** **TRUE COPY OF G.O.(MS)NO.95/08/TD DATED 8.5.2008.** - **EXHIBIT P2** - **TRUE COPY OF APPOINTMENT LETTER DATED 2.12.2009 ISSUED TO THE PETITIONER.** - **EXHIBIT P3** - **TRUE COPY OF TRANSFER ORDER ALONG WITH THE RELIEVING LETTER ISSUED TO THE PETITIONER.** - **EXHIBIT P4 TRUE COPY OF REPRESENTATION DATED 16.7.2020 SUBMITTED BY THE PETITIONER BEFORE THE CHAIRMAN, K.S.F.E.** - **EXHIBIT P5 TRUE COPY OF LETTER DATED 16.7.2020 FROM THE 2ND RESPONDENT TO THE PETITIONER.** - **EXHIBIT P6 TRUE COPY OF ADVERTISEMENT PUBLISHED IN MALAYALA MANORAMA DAILY ON 30.9.2020.** - **EXHIBIT P7 TRUE COPY OF GOVERNMENT ORDER GO(MS)47/2018/TAXES DATED 23.6.2018 ALONG WITH TYPED COPY** - **EXHIBIT P8** - **TRUE COPY OF GOVERNMENT ORDER GO (MS) 72/2020/TAXES DATED 15.9.2020.** - **RESPONDENT'S/S EXHIBITS:** - **EXHIBIT R2(a) A TRUE COPY OF THE 536TH MEETING OF THE BOAD OF DIRECTORS DATED 27/5/2020** - **EXHIBIT R2(b) A TRUE COPY OF THE MINUTES OF 420TH MEETING OF THE BOARD OF DIRECTORS HELD ON 16/2/2011**