Sunny.K v. Principal Accountant General (Social & General Sector Audit), Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE S.V.BHATTI** ## **&** ## **THE HONOURABLE MR.JUSTICE BASANT BALAJI** **WEDNESDAY, THE 22[ND] DAY OF FEBRUARY 2023 / 3RD PHALGUNA, 1944** **OP (CAT) NO. 163 OF 2016** ## **OA 917/2012 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH PETITIONER/S:** SUNNY.K, AGED 28 YEARS, S/O. KANCHUISE, NIRMALA BHAVAN, PANDAKASALA PURAYIDAM, PULLUVILA P.O., THIRUVANANTHAPURAM-695 526. BY ADVS. SRI.P.NANDAKUMAR SRI.S.ANEESH ## **RESPONDENT/S:** 1 PRINCIPAL ACCOUNTANT GENERAL (SOCIAL AND GENERAL SECTOR AUDIT) KERALA, THIRUVANANTHAPURAM-695 001. 2 PRINCIPAL ACCOUNTANT GENERAL ACCOUNTS ENTITLEMENT KERALA, THIRUVANANTHAPURAM-695 001. 3 NELTO SEBASTIAN AUDITOR, OFFICE OF THE PRINCIPAL ACCOUNTANT GENERAL(SOCIAL & GENERAL SECTOR AUDIT), KERALA, THIRUVANANTHAPURAM-695 001. ## **OP (CAT) NO. 163 OF 2016** -2- 4 ANDREWS S. ACCOUNTANT, OFFICE OF THE PRINCIPAL ACCOUNTANT GENERAL(ACCOUNTS & ENTITLEMENT), KERALA, THIRUVANANTHAPURAM-695 001. 5 MIDHUN WILWET AUDITOR, OFFICE OF THE PRINCIPAL ACCOUNTANT GENERAL(SOCIAL & GENERAL SECTOR AUDIT), KERALA, THIRUVANANTHAPURAM-695 001. 6 SREEJU S. ACCOUNTANT, OFFICE OF THE PRINCIPAL ACCOUNTANT GENERAL(ACCOUNTS & ENTITLEMENT), KERALA, THIRUVANANTHAPURAM-695 001. 7 RENI GRACIOUS ACCOUNTANT, OFFICE OF THE PRINCIPAL ACCOUNTANT GENERAL(ACCOUNTS & ENTITLEMENT), KERALA, THIRUVANANTHAPURAM-695 001. BY ADVS. K.I.MAYANKUTTY MATHER SMT.S.LAKSHMY SRI.SHAFIK M.A. SMT.S.LAKSHMY ## **OTHER PRESENT:** ADV PARVATHY FOR ADV . K.I. MAYANKUTTY MATHER THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 22.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **OP (CAT) NO. 163 OF 2016** -3- ## **S.V.BHATTI** ## **& BASANT BALAJI, JJ.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - ## **O.P. (CAT) NO. 163 OF 2016** - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - ## JUDGMENT (Dated this the 22[nd] day of February 2023) ## Basant Balaji J., The applicant in O.A No.917/2012 on the files of the Central Administrative Tribunal,Ernakulam bench is the petitioner and the respondents are the respondents therein. 2. The O.A. was filed to call for the entire selection records leading to the selection and appointment of respondent Nos.3 to 7 as Meritorious Sports Persons and to set aside the selection and for a declaration that **OP (CAT) NO. 163 OF 2016** -4- selection process conducted by respondent Nos.1 and 2 for appointing respondent Nos.3 to 7 in violation of Annex A6 and A7 circulars. 3. The applicant was a candidate in the selection process undertaken by respondent Nos.1 and 2 for appointment of Meritorious Sports Persons under the stream of foot ball. This selection is in relaxation of the recruiting procedure. Annex. A7 is a letter issued by the Assistant Comptroller and Auditor General to all heads of departments in Indian Audit and Accounts department. The applicant, participated in the selection process, was not selected by the selection committee and respondent Nos.3 to 7 were selected and given appointment as more Meritorious Sports Persons. **OP (CAT) NO. 163 OF 2016** -5- 4. The selection is based on 3 steps. First assessment is at field trials with a maximum of 30 marks, secondly on the basis of certificate awarded by competent sports authorities in proper form with a maximum of 30 marks and finally on the basis of the performance before selection board with a maximum of 20 marks, thus totalling 80 marks. 5. The applicant filed an application under Right to Information Act to get the details of the selection and the manner in which the marks were awarded to the candidates. He was served with copies of the circulars Annex.A6, A7 and also A8 marks awarded by the selection committee. On coming to know that persons whose marks were less than 60% in the field trials were also called for interview and selected for appointment, the **OP (CAT) NO. 163 OF 2016** -6- Original Application was filed alleging that the selection was not in accordance with the norms set out in Annex.A6 and A7 circulars. 6. The reply statement of respondents stated that the selection committee followed the norms prescribed under the head quarters circulars dated 31.3.1989 and 23.2.1993 read with Head Quarters letter dated 11.10.2010. In the letter dated 11.10.2010, it was instructed to give preference to persons currently representing State/India and the committee decided to award marks as per the criteria. Based on the marks obtained in field trials and weightage marks given to the level of participation, shortlisting for the interview was done, i.e., 3 times the number of vacancies, which comes to 18. The shortlisted candidates were interviewed. **OP (CAT) NO. 163 OF 2016** -7- Based on the performance in the interview, the selection committee awarded marks and rank list was prepared. As per Annex.R1(c) Head Quarters letter dated 11.10.2010, the committee decided to award marks as per the criteria prescribed which is extracted hereunder: ●“50 for various levels of participation namely international, national and inter-university. This was further split up as follows and due weightage was given to persons currently representing State/India. 25 for international level of participation. 15 for national level participation 10 for inter-university level participation ● 20 for interview and educational qualification; this was further split into: 15 for interview 5 for higher educational qualification.” **OP (CAT) NO. 163 OF 2016** 7. Rejoinders were filed by the applicant to the statement filed on behalf of respondent Nos.1 and 2 and also respondent Nos.3, 5 and 7. An additional reply has been filed by respondent Nos.1 and 2 to the rejoinder filed by the applicant. In the additional rejoinder filed, it was stated that if the stipulation in Annex.A7 to the effect that candidates scoring more than 60% marks in the field trial are called for interview then against the 6 vacancies, only 6 candidates will participate for interview. Therefore, the head of the department approved a short list of at least 20 persons for the interview which included persons which less than 60% marks in the field trial as normally for an interview more than 3 times the vacancies to be filled up are shortlisted for the interview. The applicant was also called for interview. But in the **OP (CAT) NO. 163 OF 2016** -9- final marks the respondent Nos.3 to 7 were above the applicant and thus they were given appointments. 8. Heard Adv.P Nandakumar for the petitioner, the standing counsel Sri.V V Asokan, Adv.Shafik M A and Adv.Parvathy for the respondents. 9. The main contention raised by the counsel for the petitioner is that as per clause 7 of Annex.A7 a stipulation has been prescribed that candidates scoring more than 60% marks in the field trials are either eligible or will be called for the interview. But when the Annex.A8 was obtained by the petitioner under RTI Act, it is learnt that persons who have scored less than 60% marks in field trials were also called for interview and included in the selection list. According to the counsel **OP (CAT) NO. 163 OF 2016** -10- for the petitioner the said procedure is bad in law. The respondents ought to have called the persons who have scored more than 60% marks in the field trials alone. 10. Ext.R1(b) is a letter issued by the Director to the Principal Accountant General prescribing the guidelines to be followed in the recruitment of Meritorious Sports Persons to Group 'C' posts. Clause 2 of the said letter states that preference may be given to those sports persons who are currently representing States/India. Annex.R1(c) specifies how the marks has to be allocated in respect of certificates awarded by competent sports authorities. The maximum marks allocated is 50 out of which 25 is international level, 15 for national level and 10 for inter-university level. The respondents since found that the candidates are only 6 in **OP (CAT) NO. 163 OF 2016** number, after the elimination process by eliminating persons who scored less than 60% marks in the field trials, was of the opinion that since the vacancy are only 6 at least three times of vacancies should be called for interview for selecting the most competent persons by giving due weightage to the persons who are currently representing States and India. Selection to group 'C' posts under the recruitment of Meritorious Sports Person is with a view to select the most competent persons in the field of sports. It was only with a _bonafide_ intention that the candidates who attended national level sports were given more weightage than inter university persons like the petitioner. 11. The Tribunal held that Annex.Nos.A6 and A7 are guiding instructions and the respondents are expected **OP (CAT) NO. 163 OF 2016** -12- to draw up their own methods of implementation and while doing so they are expected not to violate them, but interpret them in a manner that the recruitment process is uniformly applied to all participants in a fair and open manner. The Tribunal also found that the principles and guidelines laid down are strictly followed. Therefore, the Tribunal was of the opinion that the applicant having participated in the selection process and having given an equal chance with other participants, now cannot challenge the selection process as the persons who are selected are more meritorious than the petitioner. Therefore, the Original Application was dismissed. 12. The counsel for the petitioner relied on a Full bench decision of this Court in **Dr.Cyril Johnson v. State of Kerala and others [2009(4) KHC 404 (FB)]** to **OP (CAT) NO. 163 OF 2016** contend for the proposition that a statutory constituted selection committee should follow the norms for assessing the comparative merits of rival candidates, it has no jurisdiction to relax or vary any of the norms. If statute does not provide norms, appointing authority can lay down administrative instructions and the committee cannot evolve its own norms. He also relied on a decision of Apex Court in **Ramana Dayaram Shetty v. The International Airport Authority of India and others (1979 KHC 621).** 13. Annex.A7 is a letter dated 23.2.1993 prescribing the instructions with regard to the appointment of Meritorious Sports Persons. This was modified by Annex.R1(b) date 11.10.2010. So the selection has to be taken done considering Annex.A7 as **OP (CAT) NO. 163 OF 2016** -14- well as Annex.R1(b). These are only guidelines for the committee while selection process is being done. The respondents in order to show that the selection is transparent, have to maintain the fine and correct balance between Annex.Nos.A6, A7 and R1(c) circulars. In view of this, the participation of candidates is appreciated from the following table: |Sl. No|Name|Party in OP<br>(CAT)|Field Trial|Marks for<br>Certificates|Marks for<br>Certificates|Marks for<br>Certificates|Interview|Higher Education|Total| |---|---|---|---|---|---|---|---|---|---| |||||International|National|Inter University|||| ||||(30)|(25)|(15)|(10)|(15)|(5)|(100)| |1.|Vineeth<br>C. K.*|Appointment<br>not<br>challenged|22.5*||8||10||40.5| |2.|Anees K.|Did not turn<br>up for<br>appointment|12.15||13||13||38.15| ## **OP (CAT) NO. 163 OF 2016** -15- |3.|**Nelto**<br>**Sebastian**|**3rd**<br>**respondent**|16.05||8|2|12||38.05| |---|---|---|---|---|---|---|---|---|---| |4.|**Andrews**<br>**S.**|**4th**<br>**respondent**|12.9|8|8||9||37.9| |5.|**Midhun**<br>**Wilwet**|**5th**<br>**respondent**|13.65||13||11||37.65| |6.|**Sreeju S.**<br>*****|**6th**<br>**respondent**|21.15*||4|2|10||37.15| |7.|**Reni**<br>**Gracious**<br>*****|**7th**<br>**respondent**|21*||8||6|2|37| |8.|Merbin J.||16.2||13||7||36.2| |9.|Satheesh<br>R.*||21.45*||8||4|2|35.45| |10.|**Sunny**<br>**K.***|**Petitioner**|23.4*|||6|4|2|35.4| |11.|Shaji T.<br>T.||12.9||9|3|10||34.9| |12.|Vishak<br>Sukumara<br>n *||21.6*||4|2|7||34.6| |13.|Albin C.<br>T.||12.75||10|4|5||31.75| |14.|Daniel<br>Sebastian||16.2||4|4|6||30.2| |15.|Rineesh<br>Rahiman<br>C. A.||16.05||8||4|2|30.05| |16.|Sarath<br>Gopal S.||12||10|2|6||30| ## **OP (CAT) NO. 163 OF 2016** -16- |17.|Surfas<br>Ahmed<br>A. V.||10.95||9||8||27.95| |---|---|---|---|---|---|---|---|---|---| |18.|Samanathul<br>Nasarin K.||15.3||6||6||27.3| |19.|Shabeer<br>Ali T.||12||8||7||27| |20.|Suneer V.<br>P.||9.9||10||7||26.9| *candidates who secured more than 60% marks in the field trial A perusal of the above table would show that respondent Nos.3 to 7, who were selected, have participated in National events, whereas the petitioner had participated only in inter-university meets. Since the total number of vacancy is only 6 in number, the ratio of 1:3 has to be maintained. It is only for following this principle that 20 candidates were called for interview. If the argument advanced by the counsel for the petitioner is accepted, then only 6 candidates with more than 60% can be called for interview and only 2 candidates can be given **OP (CAT) NO. 163 OF 2016** -17- appointment. The counsel for the respondents submitted that the post is for the current year and it cannot be carry forwarded. Annex.A6 is the circular dated 31.3.1989. Clause 8 of the said circular reads as follows: “8. Vacancies earmarked for sports quota are required to be filled up during the same calendar year. Any vacancies remaining unfilled for want of eligible candidates during a particular calendar year are not to be carried over to the next calendar year. In order to ensure the appointments of meritorious sports persons against sports quota, timely action should be taken by Accountants General etc. concerned. No request for extending the panel for the next year shall be entertained under any circumstances.” It is only to see that the posts are filled in same year, the selection is taken up and completed by following the guidelines in Annex.A6, A7 and R1(c). **OP (CAT) NO. 163 OF 2016** -18- 14. The respondents had only intention to select the meritorious candidate for appointment. That is why a clause has been incorporated in Annex.R1(b) to the effect that preference may be given to those sports persons who are currently representing States/India. When Annex.R1(b) is in force, the selection committee has to follow the said circular also. It cannot be contended that Annex.A7 should alone be a criteria for selection. Hence the decisions cited above are not applicable to the facts of this case. 14. We have gone through the order of the Tribunal as well as the Annexures produced from both sides and we are of the considered view that the Tribunal was justified in dismissing the Original Application holding that the selection process was done applying the **OP (CAT) NO. 163 OF 2016** -19- Rules and no discrimination is shown to any player. There are no grounds to interfere with the order of the Tribunal and consequently, the Original Petition fails and it is dismissed. **Sd/-** **S.V.BHATTI, JUDGE sd/-** **BASANT BALAJI,** **JUDGE** _dl/_ **OP (CAT) NO. 163 OF 2016** -20- ## **APPENDIX OF OP (CAT) 163/2016** PETITIONER ANNEXURES ANNEXURE A1 TRUE COPY OF THE CERTIFICATE OF MASTER'S DEGREE IN PHYSICAL EDUCATION AWARDED BY THE UNIVERSITY OF KERALA ANNEXURE A2 TRUE COPY OF THE RANK CERTIFICATE ISSUED BY THE UNIVERSITY OF KERALA DATED 23.12.2011 ANNEXURE A3 TRUE COPY OF THE CERTIFICATE ISSUED BY THE UNIVERSITY OF KERALA DATED 31.03.2008 ANNEXURE A4 TRUE COPY OF THE CERTIFICATE ISSUED BY THE UNIVERSITY OF KERALA DATED 31.03.2009 - ANNEXURE A5 TRUE COPY OF THE CERTIFICATE ISSUED BY THE UNIVERSITY OF KERALA DATED 02.12.2011 - ANNEXURE A6 TRUE COPY OF THE CIRCULAR DATED 31.03.1989 ISSUED BY C & AG - ANNEXURE A7 TRUE COPY OF THE CIRCULAR DATED 23.02.1993 ISSUED BY C & AG ANNEXURE A8 TRUE COPY OF THE MARK SHEET ANNEXURE MA1 TRUE COPY OF THE MARK SHEET OF THE CANDIDATES FOR SPORTS QUOTA RECRUITMENT 2013 IN THE INDIAN AUDIT AND ACCOUNTS DEPARTMENT, KERALA RECEIVED UNDER RTI ACT ## **OP (CAT) NO. 163 OF 2016** - ANNEXURE R1(A) TRUE COPY OF THE NEWS PAPAER ADVERTISEMENT IN MATHRUBHUMI DAILY DATED 29.12.2011 - ANNEXURE R1(B) TRUE COPY OF LETTER DATED 11.10.2010 ISSUED BY THE DIRECTOR (PERSONNEL) - ANNEXURE R1(C) TRUE COPY OF THE EXTRACT OF THE MINUTES OF THE SELECTION COMMITTEE DATED 10.01.2011 - ANNEXURE R1(D) TRUE COPY OF THE PROPOSAL FOR SPORTS QUOTA RECRUITMENT FOR THE YEAR 2010 DATED 28.01.2010 - ANNEXURE R1(E) TRUE COPY OF THE PROPOSAL FOR SPORTS QUOTA RECRUITMENT FOR THE YEAR 2011 DATED 04.07.2011 - ANNEXURE R1(F) TRUE COPY OF CIRCULAR DATED 29.09.2011 ANNEXURE R1(G) TRUE COPY OF THE EXTRACT OF MINUTES DATED 23.03.2012 - EXHIBIT P1 TRUE COPY OF ORDER IN O.A. NO. 917 OF 2012 DATED 27.01.2016 - EXHIBIT P2 TRUE COPY OF O.A. NO. 917 OF 2012 EXHIBIT P3 TRUE COPY OF M A NO. 417 OF 2014 EXHIBIT P4 TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF RESPONDENTS 1 & 2 ## **OP (CAT) NO. 163 OF 2016** -22- EXHIBIT P5 TRUE COPY OF REJOINDER FILED BY THE PETITIONER AGAINST EXT.P4 EXHIBIT P6 TRUE COPY OF REPLY STATEMENT FILED BY RESPONDENTS 3,5 AND 7 EXHIBIT P7 TRUE COPY OF REJOINDER FILED BY THE PETITIONER AGAINST EXT.P6 EXHIBIT P8 TRUE COPY OF ADDITIONAL REPLY STATEMENT FILED BY RESPONDENTS 1 AND 2 Exhibit P9 TRUE COPY OF ADDITIONAL REJOINDER SUBMITTED BY THE PETITIONER AGAINST EXT.P8