Shameer S v State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **TUESDAY,THE 19TH DAY OF MARCH 2019 / 28TH PHALGUNA, 1940** ## **W.A.No. 1005 of 2013** **AGAINST THE JUDGMENT DATED 15-03-2013 IN WP(C)NO.12121/2011 OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** **SHAMEER S, AGED: 26 YEARS, S/O.SHOUKATH, PLAMOOTTIL HOUSE, VADAKKUNTHALA EAST (P.O.), KARUNAGAPALLY, KOLLAM DISTRICT.** **BY ADV. SRI.V.PHILIP MATHEWS** ## **RESPONDENTS/RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF INDUSTRIES & COMMERCE, KERALA GOVERNMENT SECRETRIAT, THIRUVANANTHAPURAM – 695001.** - **2 THE KERALA MINERALS AND METALS LTD SANKARAMANGALAM, CHAVARA-691 583, KOLLAM, KERALA REPRESENTED BY ITS MANAGING DIRECTOR.** - **3 THE CHAIRMAN, THE KERALA MINERALS AND METALS LTD, SANKARAMANGALAM, CHAVARA-691 583, KOLLAM,KERALA.** - **4 THE MANAGING DIRECTOR, THE KERALA MINERALS AND METALS LTD, SANKARAMANGALAM, CHAVARA-691 583, KOLLAM,KERALA.** - **5 THE DIRECTOR, THE KERALA MINERALS AND METALS LTD, SANKARAMANGALAM, CHAVARA-691 583, KOLLAM,KERALA.** - **6 THE GENERAL MANAGER (P&A), THE KERALA MINERALS AND METALS LTD, SANKARAMANGALAM, CHAVARA-691 583,KOLLAM,KERALA.** W.A.No.1005/2013 2 - **7 IRFAN ALI. K., ASPIN,MULAMKADAKAM,THIRMULLAVARAM P.O., KOLLAM - 691 012.** - **8 ARUN G. NATH, ARUN NIVAS,THATHAMMUNNA, NOORANAD P.O., ALAPPUZHA-690 504.** - **9 G. GOPAKUMAR, KEEZHUVALATHU VEEDU, THAZHATHU KULAKADA P.O, KOTTARAKARA, KOLLAM-691 521.** - **10 KANTHASUBHRAMAIAN B, 12-2-40, 2ND STREET, SURANADI-627 859, TIRUNELVELI DISTT., TAMIL NADU.** - **11 PRADEEP KRISHNAN, AMBADIYIL CHEPRA [P.O], KOTTARAKKARA, KOLLAM -691 520.** - **12 ADERSH S., THIRUVATHIRA, NEAR PODIYAN MUKKU, MUTTPALAM, PERUNGUZHI P.O, CHIRAYINKEEZHU, TRIVANDRUM-695 305.** - **13 MANOJ MUNDADAN, MUNDADAN HOUSE, N.N 371, MANJU LADIES CENTRE, ANGAMALI P.O -683572.** - **14 SAMRAJ S., KALAKKATTU HOUSE, ADINADU NORTH P.O, AYANI SOUTH, KARUNAGAPPALLY, KOLLAM -690 542.** - **15 NAJI HAMZA, TASNEEM HOUSE, VENMANAD P.O, THRISSUR -680 507.** - **16 SHABIN M.N, MADAMBIKKATTILL, ELTHURUTH P.O, THRISSUR -680611.** - **17 SAJAN. J** - **S.S.NIVAS, KUREEPUZHA P.O, PERINAD, KOLLAM -691604.** - **18 ABHILASH.M. ABHILASH NIVAS, VADAKKUM BHAGOM, CHAVARA SOUTH P.O, KOLLAM -691584.** - **19 PRADEEP P.S NARAYANATH, KIZHAKATHIL, MKRA 168, MANAYIL KULAMGARA, THIRUMULLAVARAM P.O, KOLLAM -691 012.** W.A.No.1005/2013 3 - **20 SHIBIN PRASANNAN VETTATHU [H], MUTHUKULAM S.P.O., ALLEPPY -690 506.** - **21 PRAVEEN .C. CHANDRAN CHERANJIL HOUSE, PARAPPURAM P.O, KANJOOR, ALUVA, 683593, ERNAKULAM DISTRICT.** - **22 ARUNDAS M. KONNAYIL VEEDU, VADAKKUM BHAGOM, CHAVARA SOUTH P.O., KOLLAM -691 584.** - **23 SYAM .S. THEERDHOM HOUSE, CHITTACODU, MARANADU P.O, EZHUKONE, KOLLAM -691 505.** - **24 RAHUL GOPAKUMAR INDRANEELAM, VIJAY NAGAR, AYYANTHOLE P.O., THRISSUR -680 003.** - **25 ALEXANDER .P.KURUVILLA, KUZHIYATHU HOUSE, MAMPRA P.O., KODUKULANJI, CHENGANNUR, ALAPPUZHA -689 508.** - **26 VENKATESHWARAN ELANGOVAN 9/10 CLASSIC APPARTMENT, 12TH STREET, 2ND MAIN ROAD, AVADI, CHENNAI -600054, TAMIL NADU.[DELETED]** - **27 ASISH RAJ.S. ASISH MANDIR, KEEZHKOLLA, THEKKETHAMARAVILA, AMARAVILA P.O., TRIVANDRUM -695 122.** - **28 SARATH KUMAR .S ODIYIL VADAKKETHIL, VALIYAPADAM VILANTHARA P.O., SASTHAMCOTTA, KOLLAM -690 521.** - **29 DEEPU S.NAIR NANDANAM, ANTHINADU P.O., PALA, KOTTAYAM -686 651.** - **30 SENTHIL KUMAR P.S 15-16/5, NARASIMAPURAM, 2ND STREET, KAMARAJAR SALAI, MADURAI -625009, TAMIL NADU.** - **31 ANU.N NARANIYAT ILLAM, FAROOK COLLEGE P.O., KOZHIKODE -673 632.** - **32 ANURAJ R. EDAKKATTU, CHITTOR, PONMANA P.O., CHAVARA, KOLLAM -691 583.** W.A.No.1005/2013 4 - **33 VELMURUGAN P.** - **NO.13/51A, ROSHANAL ROAD, NEAR GANGAI AMMAN KOIL, VILLUPURAM, TINDIVANAM -604 001.** - **34 SONY GEORGE SONY NIVAS, ALUMOODU P.O, KOLLAM -691577.** - **35 VISHNU MOHAN T. RAJEEVAM THERAAMBIL, VIYYUR P.O., THRISSUR -680 010.** - **36 PAVAN .T.S S.N.V.HOUSE, KULATHOOKONAM, PUTHENKULAM P.O., KOLLAM -691 302.** - **37 AJMAL K. PEACE COTTAGE, WEST CHERUKULAMBA, CHATTIPARAMBA, MALAPURAM -676 504.** - **38 ALEN GEORGE KANIYAMPARAMPIL HOUSE, BETHANY CHURCH ROAD, THIRUVALLA, PATHANAMTHITTA -689 101.** - **39 S. CHINNATHAMBI H/20/28 TNHB COLONY, LAKSHMIPRAM, MULLAI NAGAR, WEST TAMBARAM, CHENNAI -600042, TAMIL NADU.** - **40 PRAVEEN R. SANTHA NIVAS, ARA NAGAR -134, KAIKULANGARA NORTH, KOLLAM.** - **41 RAJESH R. RAJA BHAVAN, MANAKKARA, BHARANICAVU, SASTHAMCOTTA P.O., KOLLAM -690521.** - **42 STANLEY FRANCIS SHARON HOUSE, NEDUMPANA P.O., KUREEPALLY, KOLLAM -691580.** - **43 VINOD K.S. KARTHIKA, IRIMPANAM P.O., ERNAKULAM -682 309.** - **44 ULLAS KRISHNAN J.N, ASWATHY, TC 21/321, KRA - A - 103, KUNJUVEEDU LANE, KARAMANA, TVM -691002.** - **45 P.B. SREE PARTHAN, T1, [128/16] LAKSMI APARMENTS, VAYUPUKTRA STREET, VIRUGAMBAKKAM, CHENNAI -600092.** W.A.No.1005/2013 5 - **46 SATHYA MOORTHY R.** - **T.V.K, STREET, KOMBAI P.O., UTHAMAPALAYAM, THENI, TAMIL NADU -625 522.** - **47 BIBIN OOMMEN, KARINGAZHAKUNNEL HOUSE, KUMILY P.O., KUMILY, IDUKKI -685509.** - **48 DIVIN GEORGE PUNNAVILA VEEDU, KURA P.O., KOTTARAKKARA -691 557.** - **49 BINU RAJ, CHAITHANYA, KIDANGAYAM, PADANILAM P.O., NOORANA, ALAPUZHA -690 529.** - **50 JO JOSEPH A. ALLUMKAPUZHAYIL, KAVANAD P.O., AIMCOMPU, KOTTAYAM -686 653.** - **51 ARJUN VISHNU .T. THAMARAKULAM [H], MAMPETTA, MOKKOM P.O., KOZHIKODE -673 602.** - **52 DHANEESH K.P. KARAMVALAPPIL HOUSE, KATHIKUDAM P.O, THRISSUR -680 308.** - **53 MANIKANDAN P.M. PADINHARE MELEPPAT [H], TRITHALA P.O., PALAKKAD -679 534.** - **54 SHIYAZ .K. KAIMANGALATH HOUSE, PALAZHI P.O., G.A COLLEGE, KOZHIKODE -673 014.** - **55 PRANAV JAYARAJ, VAISHNAVAM [H], MALEPALLY, EDATHALA [N], ALUVA, ERNAKULAM -683 564.** - **56 RIJU H. DAS, K.H.COTTAGE, KEDAKULAM, ELAKAMON P.O., VARKALA, TRIVANDRUM -695310.** - **57 SIYAD. A, ASEENA MANZIL, BHARATHEEPURAM P.O., PATHADY, ANCHAL, KOLLAM -691330.** - **58 NITHIN A.R. ADAT HOUSE, THAMBANKADAVU P.O., THALIKULAM, THRISSUR -680 569.** W.A.No.1005/2013 6 - **59 HARISH KUMAR P.V., PEEDIKAKUDIYIL [H], MONAPILLY, PUTHENCRUZE P.O., ERNAKULAM -682 308.** - **60 PRAVEEN KUMAR, TUNGUNTLA HOUSE NO: 23-09-55, NEAR RAO, BAHADUR BUILDING, BACK SIDE OF VASAVI, PUBLIC SCHOOL, R. AGRAHARAM, GUNTUR -522003, ANDRA PRADESH.** - **61 SAJITH M.M MANANTHARA HOUSE, ORUMANAYOOR, THRISSUR -680 512.** - **62 SUMESH N. SURESH NARANATHU HOUSE, THRITHALOOR P.O., THRISSUR -680 619.** - **63 ANVAR SADIQ P.P POOLAKKAMPOYIL HOUSE, KUNNAMANGALAM P.O., KOZHIKODE -673 571.** - **64 VIPIN M.V MAYYATTIL, NARAKAL P.O., ERNAKULAM -682 505.** - **65 M. SIDDIQUE JAILANI DOOR NO. 1/424-2, PLOT NO.5, PORIYALAR NAGAR END, NEAR MOSQUE, MADURAI -625 014.** **(ADDITIONAL RESPONDENTS 9 TO 65 ARE IMPLEADED AS PER ORDER DATED 18.5.2016 IN I.A.NO.585/2013)** **(ADDITIONAL RESPONDENT NO.26 IS DELETED AT THE RISK OF THE PETITIONER AS PER ORDER DATED 18.5.2016 IN I.A.NO.716/2015)** **BY ADVS.** **R1 BY SRI.T.RAJASEKHARAN NAIR, SR.GOVT.PLEADER** **R2 TO R6 BY SRI.K.ANAND (SR.) SMT.LATHA ANAND** **R7 BY DR.K.P.SATHEESAN (SR.) SRI.M.R.JAYAPRASAD SRI.ANOOP V.NAIR** **R8 BY SRI.K.SHAJ** **R14, R17, R51, R62 & R64 BY SRI.A.BALAGOPALAN** W.A.No.1005/2013 7 **SRI.A.RAJAGOPALAN SRI.M.N.MANMADAN SRI.M.R.JAYAPRASAD SRI.M.S.IMTHIYAZ AHAMMED SRI.P.MOHANDAS (ERNAKULAM)** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11.03.2019, THE** **COURT ON 19.03.2019 DELIVERED THE FOLLOWING:** W.A.No.1005/2013 8 “CR” ## Judgment ## Chitambaresh, J. - 1.The appellant who holds a First Class Degree in Chemical Engineering put in his application for appointment to the post of Executive Trainee (Chemical) in the Kerala Minerals and Metals Limited. The appellant was served with a Call Letter for written test with a General Instructions to Candidates appended thereto specifying that the nature of the test would be 'objective type'. It was clarified that there would be a total of 100 questions to answer with each question carrying equal mark and that one fourth mark would be deducted for each wrong answer. The following are the details of the category (community), the marks and the rank obtained by the appellant and respondents 7 and 8 in the written test conducted: |Party|Category|Marks|Rank| |---|---|---|---| |Appellant|Muslim|44.75|7| |Respondent No.7|Muslim|21.25|48| |Respondent No.8|OBC|27.75|33| But respondents 7 and 8 were placed above the appellant by W.A.No.1005/2013 9 shrinking the marks obtained in the written test to one half and allotting marks out of 50 for the interview alone as revealed by the tabulation below: |Party|Written test marks|Interview<br>marks|Total marks| |---|---|---|---| |Appellant|22.37|20|42.37| |Respondent No.7|10.62|46|56.62| |Respondent No.8|13.87|44|57.87| 2.The answer elicited by the appellant under the Right to Information Act, 2005 revealed that 100 marks were being allotted to written test and 20 marks were being allotted to interview till the previous year. But the marks for the written test were shrinked to 50 this year (after it was conducted) and the marks for the interview inflated to 50 this year for reasons which are easy to gauge. The appellant who fell out of the race filed the writ petition challenging the selection made by the Company (which is a Government of Kerala Undertaking) as wholly arbitrary. The Company in its counter affidavit averred that the change in the mark allotment this year was made 'with a view to give required weightage to the candidates capability to think on his own feet'. It was also stated that the work environment of an Executive Trainee (Chemical) requires not only 'bookish W.A.No.1005/2013 10 knowledge' but also 'quick thinking and capability' to adapt. The candidates were never informed before that the marks for written test and interview would be 50 each - different from the procedure adopted till the previous year. The manner of computation of marks was let known only after the final results were published and therefore the principles of estoppel do not operate in the challenge. 3.The appellant however omitted to implead all the appointees as eo nomine parties to the writ petition and therefore their appointment cannot be invalidated even if the selection process is declared to be bad. But that cannot be said about respondents 7 and 8 who are very much impleaded though the appellant has given up his claim in the writ petition against the latter being an OBC candidate. The appellant is targeting his claim at the post wherein the 7[th] respondent (who is a Muslim candidate) is accommodated in view of the following averment in the counter affidavit: - “In the quota reserved for Muslims out of the 8 vacancies, all Muslim candidates have been W.A.No.1005/2013 11 considered and appointment was given based on their total score.” The contention in short of the appellant is that he would be placed higher in rank than the 7[th] respondent if the marks for the written test are calculated out of 100 and the marks for the interview calculated out of 20. The appellant has concededly obtained the maximum marks in the written test amongst the Muslim candidates and the interview that followed was allegedly a total farce. The specific case of the appellant is that the 7[th] respondent is the son of a former General Manager and a quixotic procedure was invented solely to appoint him in the post. - 4.The learned single Judge in fact accepted the contentions of the appellant on merits as is evident from paragraphs 14, 15 and 16 of the judgment impugned which are extracted hereunder: “14. On merits, it is possible for the petitioner to contend that there had been some arbitrariness on the part of the official respondents in conducting the aforesaid selection process especially on account of two glaring instances. In Ext.P1 notification, nothing was stated regarding the marks to be awarded in W.A.No.1005/2013 12 written test as well as interview and there was no indication regarding reducing the marks of written test to that of 50. There was also no indication that 50 marks will be awarded during the interview. Therefore, the petitioner did not get an opportunity to challenge the notification at that point of time. The petitioner had come to know about these facts only after Ext.P5 was received by him. Therefore the petitioner had the right to challenge. But the fact remains that the petitioner opted not to implead the other candidates who are in the select list. The petitioner has impleaded only respondents 7 and 8, who, according to him, was not qualified or not eligible. But still if the selection process is declared to be illegal definitely the entire rank list will have to be changed. 15. It may not be doubted that if there is a process evolved by the official respondents under normal circumstances to award only 20 marks for the interview any candidate who applies proceeds on that basis. It is not disputed by the official respondents that only 20 marks was awarded for interview on earlier occasions. Naturally any candidate applying for the post would only proceed on that basis. This procedure had been completely ignored by the Company and without any notification, that procedure had been changed. As a result, the candidates were not put to notice regarding the process of interview. It cannot be disputed that it is open for the management to fix the manner in which the selection will be done. But the said process is to W.A.No.1005/2013 13 be notified properly and if the management was following a procedure of awarding only a maximum of 20 marks for interview, definitely they could not have changed it without proper notification. This apparently had resulted in the allegations raised by the petitioner which has some force. 16. But the fact remains that in the absence of impleading all other candidates who are in the select list, it may not be possible for this Court to adjudicate to set aside the select list as well.” Thus it could be seen that the writ petition was dismissed solely on the ground of non-joinder of all the appointees in view of the decision in K.H.Siraj v. High Court of Kerala and others [(2006) 6 SCC 395]. Siraj's case (supra) is distinguishable since the acceptance of the contention of the appellant therein would result in a total re-arrangement of the select list. It was found therein that - 'the candidates will be displaced from their present ranks, besides some of them may be out of the select list of 70” - which is not so in the case on hand. None of the ranks of the appointees would be affected if the appellant is appointed in the place of the 7[th] respondent since all the Muslim candidates have been considered in the quota for Muslims. The writ petition could not have been dismissed for non-joinder when the claim of the W.A.No.1005/2013 14 appellant was confined to the post wherein the 7[th] respondent was accommodated. It should be noted that the plea of nonjoinder ought to have been raised at the earliest opportunity which is absent in the counter affidavit filed by the Company. The appointment of others cannot be touched in their absence on the party array which defect cannot be cured by impleadment of all the appointees in this writ appeal as a belated afterthought. - 5.We are conscious of the fact that the earlier strict view that marks for interview should not exceed 15% of the total marks has been watered down and everything depends upon the nature of the service. The entire case law on the point has been surveyed in Anzar Ahmed and others v. State of Bihar and others [AIR 1994 SC 141] wherein it was observed as follows: “13. These observations would indicate that the matter of weight to be attached to interview and the allocation of marks for interview vis-a-vis marks for written examination can arise when written examination as well as viva voce test are both accepted as essential features of proper selection and there also no hard and fast rule regarding the precise weight to be given to the viva voce test as against W.A.No.1005/2013 15 written examination, can be laid down and the said weight must vary from service to service according to the requirement of the service.”(emphasis supplied) There was no indication anywhere before that the nature of the service as Executive Trainee (Chemical) warranted selection by allocation of equal marks for the written test as well as the interview. There is no proper explanation as to why the rules of the game were changed in the middle though this issue is pending on reference in Tej Prakash Pathak v. Rajasthan High Court [(2013) 4 SCC 540]. We are convinced that the selection process has not been transparent as was warranted and that the same is vitiated by arbitrariness and nepotism. We are unable to invalidate the entire selection process only because of the reason that all the appointees were not impleaded as parties in the writ petition which was the minimal required. It would be unjust to invalidate the appointment of the 7[th] respondent alone and consider the appellant for appointment when all other appointments have been saved. It is reported that the appellant has now been forced to join in the clerical cadre in the Panchayat Service and his dreams of pursuing a career in Chemical Engineering are shattered. Interest of justice would be met by W.A.No.1005/2013 16 directing the Company to pay a sum of rupees three lakhs as compensation to the appellant for loss of the appointment in the post. The amount shall be paid to the appellant by the Kerala Minerals and Metals Limited within a period of three months from today failing which proceedings in contempt can be initiated. The appellant has sought for moulding the reliefs in the writ petition and appeal and an award of compensation would be a note of caution for the Company in future. The writ appeal is allowed in part. Sd/V. CHITAMBARESH, JUDGE Sd/A.M. BABU, JUDGE **Sha/160319** W.A.No.1005/2013 17 ## **APPENDIX** ## **APPELLANT'S EXHIBITS: NIL** ## **RESPONDENTS' EXHIBITS:** **EXHIBIT R8B - THE PHOTOCOPY OF THE APPOINTMENT ORDER DATED 28.3.2013 ISSUED AT THE INSTANCE OF THE SECOND RESPONDENT COMPANY.** **EXHIBIT R8C – THE PHOTOCOPY OF ORDER NO.148/14 DATED 15.3.2014 ISSUED AT THE INSTANCE OF THE SECOND RESPONDENT COMPANY CONFIRMING THE APPOINTMENT OF THE EIGHTH RESPONDENT.**