Suresh George v. Kochi Metro Rail Ltd and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 19[TH] DAY OF APRIL 2022 / 29TH CHAITHRA, 1944** ## **WP(C) NO. 13351 OF 2021** ## **PETITIONER/S:** SURESH GEORGE AGED 50 YEARS S/O.GEORGE P. KORUTHU, FLATT NO.6B, PHASE III, SILVERLAWNS APARTMENTS, MAROTTECHODU, EDAPPALLY, COCHIN 682 024, KERALA BY ADV JOHN NELLIMALA SARAI **RESPONDENT/S:** 1 KOCHI METRO RAIL LTD. - KMRL 4TH FLOOR, JLN METRO STATION, KALOOR, KOCHI PIN 682 017 REP. BY ITS MANAGING DIRECTOR 2 DIRECTOR (FINANCE) KOCHI METRO RAIL LIMITED, 4TH FLOOR, JLN METRO STATION, KALOOR, KOCHI PIN 682 017 3 CHIEF GENERAL MANAGER (HR, ADMN & TRG) KOCHI METRO RAIL LIMITED, 4TH FLOOR, JLN METRO STATION, KALOOR, KOCHI PIN 682 017 4 MANAGER (HR) KOCHI METRO RAIL LIMITED, 4TH FLOOR, JLN METRO STATION, KALOOR, KOCHI PIN 682 017 5 STATE OF KERALA REP. BY ITS PRINCIPAL SECRETARY (TRANSPORT) SECRETARIAT, TRIVANDRUM 695 001 6 NIREESH CHAKKUMKULANGARA GENERAL MANAGER (MARKETING ALTERNATE REVENUE AND CORPORATE COMMUNICATIONS), KOCHI METRO RAIL LIMITED, 4TH FLOOR, JLN METRO STATION, KALOOR, KOCHI PIN 682 017 BY ADVS. K.JAJU BABU (SR.) K.A.ABDUL SALAM SMT.M.U.VIJAYALAKSHMI, SC, KOCHI METRO RAIL LTD. SUNIL V.MOHAMMED K.A.THANU MOL MANOJ N. **OTHER PRESENT:** GP VENUGOPAL V. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HERAD ON 21.01.2022, THE COURT ON 19.04.2022 DELIVERED THE FOLLOWING: W.P.(C) No.13351 of 2021 -2- ## **JUDGMENT** Dated this the 19[th] day of April, 2022 The challenge in this writ petition is against the selection and appointment of the 6[th] respondent as General Manager (Marketing, Alternate Revenue and Corporate Communications) of the first respondent, Kochi Metro Rail Limited. The essential facts are as under; The first respondent had published Ext.P1 advertisement dated 23.09.2020, inviting applications for appointment to various key positions, including that of General Manager (Marketing, Alternate Revenue and Corporate Communications). Ext.P2 is the copy of the notification published in the official website of the first respondent. Relevant portion of the notification is extracted hereunder for easy reference; W.P.(C) No.13351 of 2021 -3- |Name of the post|General<br>Manager<br>(Marketing,<br>Alternate Revenue & Corporate<br>Communications)| |---|---| |Total<br>no.<br>of<br>Posts|One| |Grade|E8, Rs.120000-280000(IDA)| |Educational<br>Qualification|Graduate in Any discipline with<br>Masters/post<br>Graduate<br>degree/diploma in business<br>administration with specialization<br>as marketing from a recognized<br>university/institute of repute.| |Experience|Minimum<br>20<br>years<br>Post<br>qualification experience in the<br>area of marketing including<br>formulation and implementation of<br>Marketing<br>strategy,<br>Market<br>planning,<br>identification<br>of<br>alternate revenue opportunities,<br>property<br>development,<br>client<br>handling,<br>space<br>selling,<br>Institutional<br>marketing,<br>PPP<br>projects<br>structuring,<br>market<br>research<br>studies,<br>marketing<br>campaigns, promotional events,<br>Public Relations etc.| |Job Description|The candidate shall be responsible<br>for all the Marketing, Alternate<br>Revenue activities & also the<br>Corporate communication activities<br>of the company| |Minimum & Maximum<br>Age Limit(as on<br>1st<br>September<br>2020)|<br> <br><br>Minimum age 45 & Maximum age 55<br>Years| 2. The petitioner responded to the notification by submitting Ext.P3 application. As the petitioner had the requisite qualification, W.P.(C) No.13351 of 2021 -4- experience and satisfied the age criterion, he was issued with Ext.P4 call letter for attending the interview scheduled on 02.12.2020. Accordingly, the petitioner appeared for the interview and found that, including himself, only four persons had been shortlisted. According to the petitioner, he had performed exceptionally well in the interview, but sensed something amiss from the bearing and demeanour of some of the members in the Interview Committee. 3. While so, appointment to the post of General Manager (HR, Admn and Trg), notified under Ext. P1 itself; was subjected to challenge in WP(C) No.28857 of 2020. The challenge therein was on the premise that the selected candidate did not have the notified educational qualification and experience. The challenge was upheld by Ext.P9 judgment and the Interview Committee was directed to review the credentials and experience of the selected candidate through W.P.(C) No.13351 of 2021 -5- an exercise of due diligence, particularly with respect to the certificate of experience produced by that candidate. Accordingly, the review was conducted, resulting in Ext.P10 Minutes, cancelling the selection to the post of General Manager (HR, Admn and Trg). 4. The news about the irregularity in the selection process and interference by this Court, strengthened the petitioner’s suspicion of foul play in the selection conducted to the post of General Manager (Marketing, Alternate Revenue and Corporate Communications). Thereupon, the petitioner gathered details about the 6[th] respondent under the Right to Information Act, which revealed the startling fact that the 6[th] respondent had not attained the notified minimum age of 45 years as on 01.09.2020, his date of birth being 19.09.1975. Hence the writ petition. 5. Heard Adv. John Nellimala Sarai for the petitioner, Senior Counsel K.Jaju Babu for the W.P.(C) No.13351 of 2021 -6- first respondent and Adv.K.A.Abdul Salam for the 6[th ] respondent. 6. Learned Counsel for the petitioner contended that the 6[th] respondent having not attained the minimum age prescribed, acceptance of application, shortlisting of his name and selection are _ex facie_ illegal. Attention is drawn to Ext.R1(c) proceedings of the Scrutiny Committee to point out that, even after noticing that the 6[th] respondent did not satisfy the requirement of minimum age, his name was recommended for interview. The folly was repeated by the Interview Committee, as revealed from Ext. R1(b). Not only is the decision to interview the 6[th] respondent illegal, but also reeks of _mala files,_ evidenced by the huge difference in marks awarded to the 6[th] respondent and the other candidates. It is contended that, being a public authority falling within the definition of ## W.P.(C) No.13351 of 2021 -7- 'State' under Article 12 of the Constitution of India, the officers of the first respondent cannot dole out favours to persons of their choice. Relying on the decision in _**Shankar**_ _**K.Mandal v. State of Bihar [(2003) 9 SCC 519],**_ it is argued that when the cut off date is stated in the notification, candidates should satisfy the prescribed qualification relating to age with reference to the notified date. 7. Learned Senior Counsel refuted the allegation of favoritism and contended that the writ petition is liable to be rejected on the ground of delay, the 6[th] respondent having been selected to the notified post on 17.12.2020, while the writ petition is filed only on 02.07.2021. It is argued that, having failed to secure the requisite marks, the petitioner has no legal right to challenge the 6[th] respondent’s appointment. Only a person having legal right can ## W.P.(C) No.13351 of 2021 -8- be termed as an aggrieved person entitled to challenge the selection of the appointed candidate. To bolster this contention, reliance is placed on the decision in _**Dr.Umakant Saran v.**_ _**State of Bihar and others [1973 KHC 471]**_ . It is submitted that, even though the 6[th] respondent had not completed 45 years as on 01.09.2020, he had crossed the prescribed minimum age as on the date of notification, date of submission of application and the last date prescribed for submission of application. As such, nonattainment of the minimum notified age is of no avail. Even otherwise, suitability being the prime consideration, minor deviation in qualification with reference to age is not substantial enough to render the selection irregular. It is submitted that the Interview Committee consisting of the Managing Director, three functional Directors of the Company and an W.P.(C) No.13351 of 2021 -9- external expert, had unanimously selected the 6[th] respondent based on his performance and experience. The selection committee had decided to relax the minimum age criteria by 19 days keeping in view the organisation's best interest. 8. Learned Counsel for the 6[th] respondent submitted that his client had outperformed the other candidates and the Committee found him to be the best suited person with relevant experience and required skill set. As such, this Court will not be justified in interfering with the selection and appointment, in exercise of the power of judicial review. It is submitted that the 6[th] respondent has accepted the appointment after resigning another high profile post, and hence, interference with his appointment at this point of time will cause substantial prejudice. 9. Indubitably, the 6[th] respondent did not satisfy the minimum age criteria. After taking note of this fact, the Scrutiny Committee W.P.(C) No.13351 of 2021 -10- recommended his name and the Interview Committee selected him, finding the 6[th] respondent to have broadly complied with the conditions. The question is whether the Committees are bestowed with the power to alter the qualifications after the selection process has commenced. As held in _**Shankar K.Mandal**_ , when prescription regarding age is stipulated in the notification, qualification based on age can only be in accordance with such stipulation. In this context, the following observation of the Apex Court in _**Ashok Kumar**_ ## _**Sharma v. Chander Shekhar and another [(1997) 4**_ _**SCC 18]**_ assumes relevance; _“The proposition that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone, is a well-established one. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or_ W.P.(C) No.13351 of 2021 -11- _notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it. One reason behind this proposition is that if it were known that persons who obtained the qualifications after the prescribed date but before the date of interview would be allowed to appear for the interview, other similarly placed persons could also have applied. Just because some of the persons had applied notwithstanding that they had not acquired the prescribed qualifications by the prescribed date, they could not have been treated on a preferential basis. Their applications ought to have been rejected at the inception itself. This proposition is indisputable and in fact was not doubted or disputed in the majority judgment. This is also the proposition affirmed in Rekha Chaturvedi v. University of Rajasthan [1993 Supp (3) SCC 168 : 1993 SCC (L&S) 951 : (1993) 25 ATC 234]. The reasoning in the majority opinion that by allowing the 33 respondents to appear for the interview, the recruiting authority was able to get the best talent available and that such course was in furtherance of public interest is, with respect, an impermissible justification. It is, in our considered_ W.P.(C) No.13351 of 2021 -12- _opinion, a clear error of law and an error apparent on the face of the record.”_ Therefore, the irrefragable position is that the Scrutiny and Interview Committees had no authority to deviate from the notified qualification with respect to the minimum age of a candidate, whether it be for nineteen days or one day. 10. As rightly pointed out by the learned Counsel for the petitioner, the very fact that the 6[th] respondent submitted his application knowing fully well that he did not satisfy the criterion regarding age, coupled with the act of the Scrutiny Committee in recommending his name and that of the Interview Committee in finding him to be the most suitable candidate, that too by awarding him 30 marks more than the next candidate, casts a cloud of suspicion over the selection process. Being a public body, the action of the first respondent has to be W.P.(C) No.13351 of 2021 -13- transparent and above suspicion. The following exposition of the Supreme Court in _**State of Karnataka v. Umadevi [(2006) 4 SCC 1]**_ is contextually relevant; _“ The obligation cast on the State under Article 39(a) of the Constitution is to ensure that all citizens equally have the right to adequate means of livelihood. It will be more consistent with that policy if the courts recognise that an appointment to a post in government service or in the service of its instrumentalities, can only be by way of a proper selection in the manner recognised by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualising justice, it is also not possible to shut our eyes to the constitutional scheme and the right of the numerous as against the few who are before the court. The directive principles of State policy have also to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation of the State to one and all and not to a particular group of citizens. We, therefore, overrule the argument based on Article 21 of the_ W.P.(C) No.13351 of 2021 -14- _Constitution.”_ 11. Having found the appointment of the 6[th] respondent to be illegal, this Court cannot shirk away from its responsibility by reason of delay in challenging the appointment. An illegal appointment will not get legitimised or sanctified by efflux of time. The contention that the petitioner has no legal right to challenge the appointment is liable to be rejected in view of the admitted position that the petitioner had participated in the selection process and secured second rank. The plea of prejudice and hardship raised on behalf of the 6[th] respondent cannot also be countenanced, since hard cases cannot be allowed to make bad law. In the result, the writ petition is allowed. The selection and appointment of the 6[th] respondent as General Manager (Marketing, Alternate Revenue and Corporate Communications), based on Exts.P1 and P2 notifications, is held to W.P.(C) No.13351 of 2021 -15- be illegal. The first respondent shall take necessary consequential action within one month of receipt of a copy of this judgment. Sd/- **V.G.ARUN JUDGE** Scl/ W.P.(C) No.13351 of 2021 -16- ## **APPENDIX OF WP(C) 13351/2021** |PETITIONER EXHIBITS|PETITIONER EXHIBITS| |---|---| |Exhibit P1|TRUE COPY OF THE NEWSPAPER| ||ADVERTISEMENT DATED 23.9.2020| |Exhibit P2|TRUE COPY OF THE RECRUITMENT| ||NOTIFICATION UPLOADED IN THE 1ST| ||RESPONDENT'S WEBSITE| |Exhibit P3|TRUE COPY OF THE APPLICATION SUBMITTED| ||BY THE PETITIONER| |Exhibit P4|TRUE COPY OF THE INTERVIEW CALL LETTER| |Exhibit P5|TRUE COPY OF THE RTI APPLICATION DATED| ||25.3.2021 SENT BY ADV. BIJU CHACKO TO| ||THE FIRST RESPONDENT| |Exhibit P6|TRUE COPY OF THE REPLY LETTER| ||FOLLOWING THE RTI APPEAL WITH THE| ||ANNEXURES| |Exhibit P7|TRUE COPY OF THE PETITIONER'S RTI| ||APPLICATION DATED 25.5.2021 TO THE| ||FIRST RESPONDENT'S PIO| |Exhibit P8|TRUE COPY OF THE FIRST RESPONDENT'S| ||REPLY DATED 23.6.2021 IN REPLY TO THE| ||PETITIONER.| |Exhibit P9|TRUE COPY OF THE JUDGMENT IN WP(C)| ||NO.28857/2020| |Exhibit P10|TRUE COPY OF THE MINUTES OF THE| ||MEETING DATED 10.5.2021 IN THE LIGHT| ||OF EXT. P9 JUDGMENT| |Exhibit P11|TRUE COPY OF A NEWS ITEM THAT APPEARED| ||IN THE TIMES OF INDIA DAILY ON 1ST| ||AUGUST 2020 WITH RESPECT TO ONE OF THE| ||SHAM RECRUITMENTS CONDUCTED BY THE| ||FIRST RESPONDENT| |RESPONDENT'S|EXHIBITS:| |EXT.R1(a):|TRUE COPY OF THE APPLICATION DATED| ||14.10.2020 SUBMITTED BY THE 6TH| ||RESPONDENT FOR THE POST OF GENERAL| ||MANAGER (MARKETING, ALTERNATE REVENUE| ## W.P.(C) No.13351 of 2021 -17- ||& CORPORATE COMMUNICATIONS).| |---|---| |EXT.R1(B):|TRUE COPY OF THE MINUTES OF THE| ||SELECTION COMMITTEE OF 1ST RESPONDENT| ||OR SELECTION TO THE POST OF GENERAL| ||MANAGER (MARC) HELD ON 02.12.2020.| |EXT.R1(C):|TRUE COPY OF THE PROCEEDINGS OF D(F)&| ||D(P) ON SELECTION OF GENERAL MANAGER| ||(MARC) OF THE DIRECTOR (PROJECTS) AND| ||DIRECTOR (FINANCE).| |EXT.R1(D):|TRUE COPY OF THE OFFER OF APPOINTMENT| ||VIDE NO.KMRL/FIN/HR/APPT/2020 ISSUED| ||TO THE 6TH RESPONDENT ON 17.12.2020.| |EXT.R1(E):|TRUE COPY OF THE JOINING ORDER VIDE| ||NO.KMRL/IN/HR/00/IND/2021<br>DATED| ||24.02.2021 IN FAVOUR OF THE 6TH| ||RESPONDENT.| |EXT.R1(F):|SCREESHOT OF THE RELEVANT WEBPAGE| ||SHOWING THE LAST DATE OF SUBMISSION OF| ||APPLICATION OF THE 1ST RESPONDENT.| |EXT.R1(G):|TRUE COPY OF THE EDUCATIONAL| ||QUALIFICATIONS<br>AND<br>EXPERIENCE| ||SUBMITTED BY THE 6TH RESPONDENT.| |EXT.R1(H):|TRUE COPY OF THE REPLY SUBMITTED BY| ||THE 6TH RESPONDENT.| |EXT.R1(I):|TRUE COPY OF EXPERIENCE CERTIFICATE OF| ||THE 6TH RESPONDENT DATED 9.11.2020.| ## W.P.(C) No.13351 of 2021 -18- EXT.R1(J): TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER ON 4.11.2020 TO MR.RATHEESH S. EXT.R1(K): TRUE COPY OF THE REPLY SUBMITTED BY ANOTHER SHORTLISTED CANDIDATE ON 3.11.2020 TO THE CLARIFICATION SOUGHT TO MR. RATHEESH S.