Vinod Gopalakrishnan v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 11[TH] DAY OF MARCH 2022 / 20TH PHALGUNA, 1943** ## **WP(C) NO. 17883 OF 2020** ## **PETITIONER/S:** VINOD GOPALAKRISHNAN AGED 51 YEARS B4,KALABHAM APARTMENTS, MULLAKAL NAGAR,EROOR WEST, THRIPUNITHURA, ERNAKULAM 682 306 BY ADVS. T.R.JAGADEESH SRI.V.A.VINOD SRI.B.RATHEESH ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY, DEPARTMENT OF INDUSTRIES AND COMMERCE, VIKAS BHAVAN, THIRUVANANTHAPURAM 695 033 2 THE DIRECTOR, DEPARTMENT OF INDUSTRIES AND COMMERCE, SECRETARIAT, THIRUVANANTHAPURAM 695 001 3 KERALA PUBLIC ENTERPRISES SELECTION BOARD, REPRESENTED BY ITS SECRETARY, BUREAU OF PUBLIC ENTERPRISES, 5TH FLOOR, ANEEX I, GOVT. SECRETARIATE, THIRUVANANTHAPURAM 695 001 4 ADDL.R4. KELTRON ELECTRO CERAMICS LIMITED, REPRESENTED BY ITS GENERAL MANAGER, NILA ROAD, THRIKKANNAPURAM, MALAPPURAM DISTRICT-679 571. ADDL.R4 IS IMPLEADED AS PER ORDER DATED 18-0321 IN IA 2/21 BY ADVS. GOVERNMENT PLEADER SMT.M.A.ZOHRA, SC, KELTRON ## **OTHER PRESENT:** GP VENUGOPAL V. **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION** **ON 11.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.17883 of 2020 -2- ## **JUDGMENT** Dated this the 11[th] day of March, 2022 **The Kerala Public Enterprises Selection Board had issued Ext.P1 notification inviting applications for the post of Managing Director in the additional 4[th] respondent, Keltron Electro Ceramics Ltd (KECL). The petitioner participated in the selection process and was ranked No.2. As the first rank holder did not join duty, the petitioner was issued with Ext.P3 letter requiring him to submit a self declaration stating that he is not involved in any criminal case. Accordingly, Ext.P4 was submitted. Later, on enquiry, petitioner came to know that the Government is not intending to proceed with his appointment, since the incumbent, who is on contract employment, is permitted to continue as Managing Director.** **2. Learned Counsel for the petitioner** W.P.(C) No.17883 of 2020 -3- **submitted that, having been ranked No.2 and having been asked to submit self declaration form as part of the process of appointment, the respondents cannot deny appointment to the petitioner and allow a contract appointee to occupy the post. According to the learned Counsel, preference should be given to the petitioner, since he had proved his eligibility for appointment through a due process of selection.** **4. Learned Counsel for the 4[th] respondent submitted that the KECL is a subsidiary of the Kerala State Electronics Development Corporation Ltd (KELTRON) and one Mr.K.Vijayakumar had been working in the post of Managing Director and was to be superannuated on 30.11.2014. In the meanwhile, the management of the 4[th] respondent decided to continue his service and issued Annexure R4(d) letter dated 18.11.2014 appointing** W.P.(C) No.17883 of 2020 -4- **K.Vijayakumar as Managing Director on contract basis for a period of one year. The period was later extended until further orders as per Ext.R4(f) dated 01.12.2016. Thus, as on the date when the first rank holder was to be appointed as Managing Director, K.Vijayakumar was occupying the post of Managing Director. On realising this, the first rank holder did not join duty and his appointment was cancelled by the Government. It is submitted that Ext.P3, requiring the petitioner to submit a self declaration, was sent by mistake and even otherwise, mere issuance of such a letter does not confer any right on the petitioner to demand appointment. It is submitted that the fourth respondent had decided to continue the contract of K.Vijayakumar, since financial position of the Company was not conducive for appointing a full time Managing Director on regular basis. Learned Counsel** W.P.(C) No.17883 of 2020 -5- **pointed out that K.Vijayakumar superannuated on** **30.11.2021 and thereafter, one Mr.R.** **Satheeshkumar, General Manager and Head of Keltron Lighting Division is given the charge of Managing Director of the fourth respondent.** **5. Learned Government Pleader submitted that the appointment to the post of Managing Director and Chief Executive of Public Sector Undertakings are governed by G.O.(MS) No.19/09/Plg. Dated 20/05/2009, which contains a specific clause that, appointment of the MD/CEO of the Government owned company or a PSU shall be at the pleasure of the Government. Even though the first rank holder was issued with appointment order vide GO(Rt) No.985/2019 dated 26.09.2019/ID, he did not join duty on being informed that Mr.K.Vijayakumar to be occupying the post of Managing Director. Thereupon, the Government cancelled the first rank holder's** W.P.(C) No.17883 of 2020 -6- **appointment order. In support of the contention that, mere inclusion in the rank list or even calling for essential details will not confer any right to demand appointment on a candidate, reliance is placed on the decision in** _**Linimol C.V - and another v. Malappuram Co operative Spinning Mills and Others [2017 (3) KHC 367]**_ **.** **6. The fact that, the petitioner was No.2 in the rank list, and the first respondent had not joined duty, is not in dispute. The short question is whether, failure of the first rank holder to accept the appointment would confer any right on the second rank holder to demand appointment. The position stands covered by a series of decision of the Apex Court starting from** _**Shankarsan Dash v. Union of India [AIR 1991 SC 1612]**_ **onwards. In** _**Linimol C.V (supra)**_ **a learned Single Judge of this Court has reiterated the position as under;** W.P.(C) No.17883 of 2020 -7- _“The employer has decided, going by the tenor and terms of the counter affidavit, that it has no intention to make any permanent appointment to the establishment. The employer has every right to decide the manner in which the establishment is to be run, especially due to the fact that it is running at a loss.”_ **7. As far as the instant case is concerned, there is an added fact that, as on the date when the petitioner was issued with Ext.P3, another person was occupying the post of Managing Director. The petitioner has alleged that the other person ought to have been ousted, since he was continuing on contract basis and the petitioner regularly selected. The said contention cannot be countenanced as the other person is not made a party to the writ petition. The appointment itself is subject to the pleasure of the Government and the fourth respondent having taken a conscious decision to continue with the person on contract appointment instead** W.P.(C) No.17883 of 2020 -8- **of a regular hand, this Court cannot interfere with the decision, in exercise of the power of judicial review.** **For the aforementioned reasons, the writ** **petition is dismissed.** Sd/- **V.G.ARUN JUDGE** Scl/ W.P.(C) No.17883 of 2020 -9- ## **APPENDIX OF WP(C) 17883/2020** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF NOTIFICATION 01-06-2019KPESB DATED 08-03-2019 EXHIBIT P2 TRUE COPY OF INTERVIEW LETTER DATED 14-06-2019 EXHIBIT P3 TRUE COPY OF LETTER NO. 7 D3/229/2019 ID DATED 14-03-2020 EXHIBIT P4 TRUE COPY OF SELF DECLARATION DATED 23-03-2020 EXHIBIT P5 TRUE COPY OF POSTAL RECEIPT DATED 1505-2020