W.A. No. 1203 of 2013 in WP(C).19734/2012

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **MONDAY, THE 9TH DAY OF SEPTEMBER 2013/18TH BHADRA, 1935** **WA.No. 1203 of 2013 () IN WP(C).19734/2012 --------------------------------------------** **AGAINST THE JUDGMENT IN WP(C) 19734/2013 of HIGH COURT OF KERALA DATED 29-07-2013.** **APPELLANT /4TH RESPONDENT IN THE WPC:** **-------------------------------------** **DR.D.NARAYANA, NOW WORKING AS DIRECTOR, GULATHI INSTITUTE OF FINANCE AND TAXATION (GIFT), PAPPANAMCODE.P.O., THIRUVANANTHAPURAM-695 018.** **BY ADVS.SRI.C.P.SUDHAKARA PRASAD (SR.) SRI.S.RAMESH SRI.NAVEEN.T SMT.POOJA SURENDRAN.** **RESPONDENT(S)/WRIT PETITIONER & RESPONDENTS 1 TO 3 IN THE WPC:** **---------------------------------------------------------------** **1. JOSE SEBASTIAN, AGED 53 YEARS, S/O. LATE O. DEVASIA, AASHIANA T.C. 64/426, SNEHAPURI, KARUMOM.P.O., THIRUVANANTHAPURAM-695 002.** **2. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **3. THE SECRETARY, TAXES(C) DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **4. GULATHI INSTITUTE OF FINANCE AND TAXATION(GIFT), PAPPANAMCODE.P.O.,THIRUVANANTHAPURAM-695 018. REPRESENTED BY THE REGISTRAR.** **R1 BY SRI.D.GANESH KUMAR** **R2 & R3 BY ADVS. SRI.P.C.IYPE, ADDL. ADVOCATE GENERAL & SENIOR GOVERNMENT PLEADER SRI.SOJAN JAMES & SPECIAL GOVERNMENT PLEADER SRI.SUJITH MATHEW JOSE & SENIOR GOVERNMENT PLEADER SRI.CYRIAC KURIAN. R4 BY ADVS. SRI.K.P.ABDUL AZEES & SRI.K.P.ABDUL AZEEZ.** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 09-09-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WA.No. 1203 of 2013 () IN WP(C).19734/2012** ## **APPENDIX** ## **PETITIONER'S ANNEXURES :-** **ANNEXURE A1 : TRUE COPY OF CALL LETTER FOR INTERVIEW DATED 27-12-2011.** ## **RESPONDENTS ANNEXURE :-** **ANNEXURE R4(a) : TRUE COPY OF THE E-MAIL COMMUNICATION DATED 30TH AUGUST, 2013.** **//TRUE COPY//** **==> picture [73 x 7] intentionally omitted <==** **----- Start of picture text -----**<br> P.A TO JUDGE<br>**----- End of picture text -----**<br> **amk** ## **K.M.JOSEPH & A.HARIPRASAD, JJ.** ## **------------------------------------------------** ## **W.A No.1203 OF 2013** ## **------------------------------------------------Dated this the 9[th] day of September, 2013.** ## **J U D G M E N T** ## **K.M.Joseph, J.** Appellant is the 4[th] respondent in the writ petition. The writ petition is filed seeking the following prayers :- - _“ 1. Issue appropriate writ, order, direction quashing Ext.P2 order dated 23-2-2012 issued by the 2[nd] respondent._ _2. Issue appropriate writ, order or direction to the 1[st] and 2[nd] respondent to appoint the petitioner as the Director of the 3[rd] respondent by giving retrospective effect to the date on which the 4[th] respondent has been appointed illegally, within time stipulated by this Honourable Court._ _3. Issue any other appropriate writ or order which this Honourable Court may deem fit, just and proper, in the facts and circumstances of the case and sufficient for the redressal for the grievances of the petitioner.”_ 2. The case of the writ petitioner was briefly as follows : He is working as Associate Professor under the Public Finance wing of Gulathi Institute of Finance and Taxation (hereinafter referred to as 'the Institute'). It is an autonomous institution formed by Government of Kerala with financial assistance from Government of India. First respondent issued **W.A No.1203 OF 2013 2** Ext.P1 notification dated 4-11-2011 calling for applications from candidates for the appointment for the post of 'Director'. Last date of submitting application was 9-12-2011. Among the qualifications fixed it is indicated that the applicant must not be more than 55 years as on 1-1-2012. It is stated that as per the notification, 5 persons applied (learned counsel for the writ petitioner points out that it is a mistake). Instead of submitting a panel of eligible candidates as required as on 29-11-2011, the Selection Committee submitted the name of the appellant as the single suitable candidate on the basis of constitution of Search Committee. The appellant was ordered to be appointed by Ext.P2. According to the writ petitioner, he was the only eligible candidate. He has been working in the Institution for the past 18 years. He has authored two books in Public Finance related areas. He also referred to other achievements. Ext.P4 purports to be the bio-data of appellant. His qualification does not have anything to do with public finance and taxation which is the area of operation of the 3[rd] respondent Institution. Ext.P5 purports to be a report from Centre for Development Studies dated 3-5-2012 issued by Public Information Officer under the RTI Act produced to show that the appellant barely escaped from a case of sexual harassment on technical grounds. With these allegations in brief the writ petitioner had approached this court. Counter affidavit is filed by the institution, Government and the appellant. 3. The learned Single Judge was pleased to allow the writ petition. **W.A No.1203 OF 2013 3** The learned Single Judge took the view that under the Government Order Ext.R3(B), the Search Committee had to suggest to the Government three suitable names for appointment as 'Director'. 55 years was fixed as the age limit. The appellant did not respond to Ext.P1 notification. He had no case that he was unaware of Ext.P1 or that he had applied in time. Four applicants were interviewed on 11-1-2012 at 3 P.M. The appellant was not present at 3 P.M on 11-1-2012 as is evident from the averments in the counter affidavit filed by him. What was the date on which the resume was collected is not set out. Likewise, the other persons, who were contacted in the search mode and from whom resume were collected is not disclosed. The procedure adopted by the Search Committee deviates from Ext.P1 notification and was found to be arbitrary and illegal. After having issued a notification Search Committee could not have scouted for talent and that too even before the candidates who applied pursuant to the notification were interviewed. The appellant was over aged and he could not apply. The action of the Search Committee was found to be arbitrary and illegal in giving up the procedure that has been adopted by issuing Ext.P1 notification. The minutes of the Search Committee also does not disclose whether all the four candidates who were interviewed were found not qualified to be appointed. The Search Committee does not minute that none of the applicants possess the qualifications or experience. It is only stated that they are not suited. There is no authority to waive the upper age limit fixed in **W.A No.1203 OF 2013 4** Ext.P1 notification. On this basis the prayer of the writ petitioner to quash the appointment of the appellant is allowed. No doubt the prayer in the writ petition that the writ petitioner be appointed has not been granted. 4. We heard the learned Senior counsel for the appellant, learned counsel appearing on behalf of the writ petitioner, the learned Government Pleader and also the learned counsel appearing for the institute. 5. According to the learned Senior counsel for the appellant, the writ petition itself was not maintainable. The writ petitioner was not qualified. He has not challenged the proceedings of the Search Committee (Ext.R3(C)), by which it was found that none of the four applicants were suitable. There is no challenge to the proceedings of the Search Committee. The writ petition filed by an unqualified person who had applied unsuccessfully can only be treated as public interest litigation. It is submitted that it is settled by the decisions that public interest litigation is not maintainable in service matters. Once it is not in dispute that the writ petitioner was not qualified, he poses a question as to how the court can be persuaded to go into the validity of the appellant's appointment by Ext.P2. Further he would submit that the Government of Kerala which is the appointing authority under Ext.R3(A) to the post of Director by Ext.R3(B) constituted two persons namely Prof.M.Govinda Rao and Sri.K.M.Chandrasekhar as Search Committee to make recommendation by giving a panel of three names, so that the Government could make the **W.A No.1203 OF 2013 5** appointment to the post of Director from the said names. He would point out that the concept of Search Committee is that essentially a body is entrusted with the task of finding out suitable names and it is not either unknown or impermissible in this context. He relied on the decision of this court in _**I.L.R**_ ## _**1986(2) Kerala 342, (T.K.Mathew Vaidyan v. Kerala Minerals and Metals**_ _**Ltd. and another).**_ He would also point out that what is required under Rule 6 of Ext.R3(A) and what is provided in regard to the post of 'Director' is as follows :- ## _“_ _**6. Constituents of the Society** :-_ _The society shall consist of :_ _(i) x x x x x_ - _(ii) The Chairman of the GIFT may be appointed by the Government from among renowned scholars/experts in the field of Public Finance and Policy, Management, Development Economics and Taxation Laws. The -_ - _Director shall be a full time salaried officer, and shall be appointed by the Government, from among renowned scholars in the field for public finance and policy, management, Development Economics and Taxation Laws._ - _(iii) In case of temporary vacancy arising in above posts, the Government shall have the right to fill such vacancies on a temporary basis.”_ He would point out briefly that Ext.R3(A) does not contemplate fixing the age limit of 55 years and it so happened that it was decided by the committee that they will go in for a notification and it was how Ext.P1 came to be issued. Ext.P1 notification reads as follows :- **W.A No.1203 OF 2013 6** ## “ **NOTIFICATION** _Subject : Appointment to the post of Director, Gulati Institute of Finance and Taxation (GIFT)_ _Government of Kerala invites applications for the post of “Director”,Gulati Institute of Finance and Taxation (GIFT), an autonomous institution formed by the Government of Kerala with financial assistance from the Government of India. Applicants who fulfill the criteria and are willing to take up the responsibilities mentioned below, may apply._ _1. Age : Applicants should not be more than 55 years old as on 01/01/2012._ _2. Experience and qualification : The applicant should be a renowned scholar and mentor in the filed of Public Finance/Developmental Economics, and should fulfill the following academic and professional requirements :_ - _A. The applicant should have 'Not less than 10 (ten) years experience' in the field of academics and research._ - _B. The applicant should be in the rank of an 'Associate Professor' or 'Professor' who is academically and professionally qualified to hold the post of a 'ProVice-Chancellor', as per UGC Norms._ - _C. The applicant should have a history of guiding research students in his academic career._ - _D. The applicant himself should have handled research projects in his professional career._ - _E. Research contributions should be in the field of Economics or Public Finance._ - _F. It would be desirable if the applicant has prior experience in similar institutions._ _3. Grade : The grade of the 'Director, GIFT' will be equivalent to that of a 'Pro-Vice-Chancellor' as per UGC norms contemplated in GO(P) No.58/2010VH. Edn, dated 27-03-2010, of the Government of Kerala._ **W.A No.1203 OF 2013 7** _4. Pay Scale : The pay band of the 'Director, GIFT' is Rs.37400-67400 + Rs.12000 Academic Grade Pay._ - _Role of the Director in the institution :_ - _A. The Director, GIFT would be responsible for building it into a national level institution on par with global standards, with a strong focus on public finance, development economics and indirect taxes._ - _B. The Director should be able to strongly guide research level programs. In the above mentioned fields._ - _C. The Director should also be able to provide guidance to the various consultancy assignments undertaken by the institute._ - _D. The Director will be responsible for coordinating training programs conducted by the institute._ - _E. The Director will be responsible for all the administrative and financial matters._ _6. Term of appointment : Period of appointment will be for a fixed tenure of five years._ _7. Last date of application : Applications should reach the designated address not later than 09 December, 2011._ _8. How to apply : Interested candidates may send their curriculum- vitae by registered post to : The Commissioner, Commercial Taxes, Public Office Building, Vikas Bhawan P.O.,Thiruvananthapuram, Kerala PIN - 695 033._ - _The following superscription should be made on the envelope:_ _“APPLICATIONS FOR THE PROCESS OF SELECTION TO THE POST OF DIRECTOR, GIFT.”_ _9. For more info on the institute and relevant notifications, please visit www.gift.kerala.gov.in_ **W.A No.1203 OF 2013 8** _By order of the Vice-Chairman, Kerala State Planning Board & Chairman, Search Committee.”_ They included the qualification as to age which we have already adverted to. Applications were invited. Four persons were called for the interview. The Committee found on a perusal of the C.V and also on after interviewing them that they were not suitable. The writ petitioner was also found not suitable. In such circumstances, he contends that if what was constituted by the Government was a Search Committee and not a Selection Committee it must have free play in its joints to devise its method to suggest the names. The appellant was found qualified and at least the Search Committee thought so. The views of the Search committee had found endorsement at the hands of the Government which is the appointing authority. If that be so he would submit that the learned Single Judge should not have interfered with the appointment of the appellant. He would submit that once after making the advertisement by Ext.P1, no candidates were found suitable, there is no obligation or duty on the part of the Search Committee to again issue the notification. It could not be said that a notification had to be issued over and again for inviting applications. In fact, it is the appellant's case that there was no duty to issue Ext.P1. 6. Per contra, the learned counsel for the writ petitioner would submit that the learned Single Judge was fully justified in interfering with the selection. According to him he was the only qualified person. He would further submit that it is true that the writ petitioner does not fulfill the qualification **W.A No.1203 OF 2013 9** indicated under Clause (c) of Ext.P1 notification namely he does not have history of guiding research students in the Academic career. At any rate he would submit that the writ petitioner cannot be treated as s public interest litigant. He points out that the writ petitioner was an applicant pursuant to Ext.P1 notification. He approached this court pointing out that he was qualified. He even sought a direction that after setting aside Ext.P2 order of appointment that he should be appointed. Even if no candidates were found suitable from out of the four who applied including himself still the committee was obliged to notify the post all over again. He would support the judgment of the learned Single Judge in this regard. In this context even a contention was raised by the learned counsel for the writ petitioner that even though the Government has constituted a Search Committee under Ext.R3(B) it must be treated as a Selection Committee. He would point out that in the interview cards issued Search Committee is described as Selection Committee and what is involved is selection. They are bound to be act in a fair manner. 7. Additional Advocate General appeared. The files were made available. It is submitted that the Government stands by Ext.P2 order of appointment. 8. As far as the service matters are concerned it is settled law by now that a writ petition will not lie by way of public interest litigation. No doubt a Writ of quo-warrant may lie. The concept of _locus standi_ would be that **W.A No.1203 OF 2013 10** the writ petitioner seeking a writ of Certiorari cannot be a public interest litigant. Present writ petitioner seeks Writ of Certiorari to quash Ext.P2. The writ petitioner no doubt cannot be treated as a complete outsider. It cannot be held that he has nothing to do with the process. Strictly speaking it may not be possible to say at first blush that he is a public litigant as such. The reasons are not far to seek. Admittedly he is one among the four who had applied. He has approached this court contending that he was the only qualified person. However the question was raised once it is found that he is not qualified on his own showing by virtue of the admission made that he does not possess qualification mentioned in Clause (c) as aforesaid, whether the court should have interfered with the appointment of the appellant at his instance. Could it not be said that he assumes the garb of a public interest litigant. Could it not be said that once he was found to be unqualified without a matter of any debate at all that he would be in the shoes of a public interest litigant. There would be no difference between a complete stranger and a person who without the shadow of any doubt is not qualified. In fact learned senior counsel for the appellant would pointed out that this issue is no longer res integra. In this connection learned senior counsel for the appellant draws out attention to the following observations of the Apex Court reported in _**B. Sreenivasa Reddy v. Karnataka**_ _**Urban Water Supply & Drainage Board Employees' Assn. And others [(2006) 11 SCC 731]**_ _“78. The High Court, in the instant case, was not exercising_ **W.A No.1203 OF 2013 11** _certiorari jurisdiction. Certiorari jurisdiction can be exercised only at the instance of a person who is qualified to the post and who is a candidate for the post. This Court in Umakant Saran (Dr.) v. State of Bihar held that the appointment cannot be challenged by one who himself is not qualified to be appointed. In Kumari Chitra Ghosh v. Union of India a Constitution Bench of this Court held as under: (SCC p.234, para 12)_ _“12. The other question which was canvassed before the High Court and which has been pressed before us relates to the merits of the nominations made to the reserved seats. It seems to us that the appellants do not have any right to challenge the nominations made by the Central Government. They do not compete for the reserved seats and have no locus standi in the matter of nomination to such seats. The assumption that if nominations to reserved seats are not in accordance with the rules all such seats as have not been properly filled up would be thrown open to the general pool is wholly unfounded.”_ 9. Per contra learned counsel for the Writ Petitioner draws our attention to the judgment of the Apex Court reported in _**Yadav v. State of U.P [2011 (2) KLT SN 67 (C.No.87) SC]**_ wherein the Apex Court has inter alia held that if an unsuccessful candidate challenges the selection process, he is bound to implead at least some of the successful candidates in a representative capacity. On the basis of the said observation learned counsel for the writ **W.A No.1203 OF 2013 12** petitioner seeks to join issue with the appellant and points out that Writ Petition could be maintained even though the writ petitioner was unsuccessful. According to him, if a fair selection had been made he would have succeeded and also having regard to the law laid down by the Apex Court, an unsuccessful candidate can challenge selection and the only condition is that he must make successful candidates as parties. 10. We are afraid that the aforesaid contention of the learned counsel for the a writ petitioner does not appear to be correct. We do not think that there is any conflict between the two principles. As far as certiorari jurisdiction is concerned, on going by what the Apex Court has held in (2006) 11 SCC 731, unless a person is qualified and is also a candidate he cannot maintain the Writ Petition seeking certiorari. In the facts of this case we have already noted that the Writ Petitioner did not satisfy the criteria of guiding research students which is shown as one of the qualifications. In fact there is not much dispute about that. If undisputedly the Writ Petitioner did not satisfy the qualification or did not possess the qualification, it is the decision of the Apex Court in (2006) 11 SCC 731 which would apply. The person must be qualified and must be a candidate in order to maintain the Writ petition seeking to quash selection by writ of certiorari. After being qualified it may transpire that the selection may result in his not being selected. Then certainly it will be open to such a person to seek the protection of the court. But that is not the position here. In such **W.A No.1203 OF 2013 13** circumstances, we are of the view that we have to proceed on the basis that Writ Petitioner was not qualified though he was a candidate. Going by the judgment report in (2006) 11 SCC 731 the petition is not maintainable. We would think that in such circumstances, it may not have been appropriate to entertain the writ petition at the instance of the writ petitioner in this case. 11. At any rate we are also persuaded to consider the claim of the writ petitioner for more reason than one. In the first place, let us examine the surviving complaint which the writ petitioner can possibly have after coming to the conclusion that he is not qualified. We must here take the view that the learned Single Judge was not justified in finding that in Ext.R3(C) minutes of the committee has not categorically found that four candidates were not qualified. We must not over look that the post involved is the post of Director of the Institution. The authority to appoint is vested with the Government. The Director going by Ext.R3(A) must be a renowned scholar in the field of Public Finance and Policy, Management, Development Economics and Taxation Laws. The Select Search Committee itself consisted of two persons : Prof.M.Govinda Rao, member of Economic Advisory Council to the Prime Minister of India and Director, National Institute of Public Finance and Policy, Government of India, New Delhi and Sri.K.M.Chandrasekhar, Vice Chairman of the Kerala State Planning Board and formerly Cabinet Secretary, Government of India, which assists in the formulation of budget submits the learned counsel for the institute **W.A No.1203 OF 2013 14** Sri.K.P.Abdul Azeez. The Commissioner of the Commercial Tax was to render all necessary assistance. It is specifically stated in Ext.R3(C) that the committee found that the candidates were unsuitable for the position. In this context we must consider one aspect. Out of the four candidates who were found unsuitable, only one, namely the writ petitioner has approached this court and the other three candidates who were found unsuitable have no case that they are suitable. As far as the writ petitioner himself is concerned we have already found that even on his own showing he was unsuitable. The Committee has found the four candidates unsuitable. If that is so we cannot agree with the learned Single judge that it is not specifically found by the Committee that they were not found to be qualified. Therefore, we can safely proceed on the basis that the committee which was a Search Committee has found all four applicants pursuant to Ext.P1 to be unsuitable. 12. We are of the view that making a selection by the mode of the Search Committee cannot be called in question. In this regard we must notice that Ext.R3(B) is a Government Order by which Search Committee was constituted. There is no challenge to Ext.R3(B). We cannot hold that the employment of the word 'Search Committee' in Ext.R3(B) was without meaning. The Government has deliberately used the words 'Search Committee'. Therefore, when Government constituted a Search Committee and no doubt making it clear that they should make recommendations of three names, the **W.A No.1203 OF 2013 15** Government had left it free to the committee to suggest three suitable names. The Committee must be treated as being left free. 13. It is free to find out three suitable names for being considered. We would think that view expressed by the Bench of this court in _**I.L.R 1986(2)**_ _**Kerala 342, (T.K.Mathew Vaidyan v. Kerala Minerals and Metals Ltd. and another)**_ represents the modern view which is necessary in many situations. It is true that in respect of all public appointments there must be fairness in the manner of making appointments. But we must pose the question as to whether in the case of all posts is it necessary or expedient to notify the post, calling for applications or is it not permissible at least in certain key posts to search by adopting the method of scouting for talent or searching for talent by other methods. As far as the post of Director is concerned he must be a renowned person in the fields which have mentioned. The concept of Search Committee cannot be said to fall foul of constitutional values. At any rate we have already noticed that there is no challenge to Ext.R3(B) by which Government decide to constitute a Search Committee. 14. The question we may consider even at the hands of the writ petitioner in this case is whether after issuing the notification calling for applications and finding the said efforts did not bear fruit was it incumbent for the committee to again notify. There is nothing in Ext.R3(A) which contemplates notification for the post of Director. We have searched for any **W.A No.1203 OF 2013 16** provision which mandates that the appointment must be preceded by publicity being given. As far as the case in D.S Minha's case, **(** _**A.I.R 1984 S.C 363)** ,_ the bye laws provided for publicity being given. That is the not to say however that the appointment to the post of Director can be done in any manner as the committee chooses. Nobody under our constitutional scheme of things can ever plead that it has unbridled and absolute freedom to do as it wishes. But the question is whether having regard to the requirements of the post of Director, a fresh notification was necessary. We are of the view that it may not be appropriate to bind the committee to the procedure of reissuing a notification and going through the process of calling for applications. The first attempt drew a blank as we have already seen. No doubt we find from the files that a decision was taken to give publicity by publishing the notification in national papers which led to Ext.P1. But we are of the view that after it did not yield the result and what was contemplated was a search operation by the Search Committee, the Search Committee could have proceeded to collect the information from any other source and proceeded to make the appointment. In paragraph 9 of the counter affidavit of the institute stated as follows :- _“ 9. The allegation of sexual harassment raised against me is without any bonafides. While I was appointed as Director of GIFT by Ext.P2 order, as a matter of fact, there was no such allegation even. When I applied for VRS on 1[st] March, 2012, the Director, Centre fore Development Studies has_ ## **W.A No.1203 OF 2013 17** _granted it on the same day. I got a notice from the Committee against sexual harassment on 23[rd] March, 2012 without a copy of the complaint. To that I sent a reply that there is no complaint sent to me for giving a reply. The second notice also did not carry a copy of the complaint. From that it is clear that the allegation was made with a malafide intention to tarnish my image and the Committee constituted to enquire into the matter could not find any evidence against me. Because there is no substance in the allegation, a copy of the complaint was not given to me. From that it is clear that the said allegation is a motivated one which has no semblance of truth.”_ We scanned the files. We also perused Ext.R3(C) minutes of the Committee. Therein it is inter alia stated as follows :- _“ 1. The committee met in the Chamber of Shri.K.M.Chandrasekhar, Vice Chairman, Kerala State Planning Board and Chairman of the Search Committee at 3.00 PM today. The committee evaluated the resumes of the four candidates who had applied in response to the advertisements. Dr.Jose Sebastian, Dri.N.Ramalingam, Dr.Mariamma A.K and Dr. Jose Jacob were interviewed in that order. The committee found that all the candidates mentioned above were unsuitable for the position of Director._ ## **W.A No.1203 OF 2013 18** _2. The committee evaluated the resume of Dr.D.Narayana received in search mode and proceeded to interview him. The committee found that Dr.D.Narayana had the requisite academic and research credentials with adequate international exposure. The committee also felt that he has the capability to provide academic leadership to the institute. The committee also noted that the prescribed age of the applicant specified in the advertisement is “ not more than 55 years old as on 01-01-2012” and that Dr.Narayana is 59 years old. The rules and regulations of the institute were referred to. It was found that the rules do not prescribe any condition with regard to age.”_ 15. We could not find out any material in the files made available to us to indicate that any candidates other than the appellant was sought to be contacted and that they expressed their lack of interest in joining as Director. The case as sought to be made out by the 3[rd] respondent in the paragraph 9, we have extracted. We are certainly troubled by the said aspect of the matter. We notice from the files that actually the name of the appellant was suggested by one of the members of the Selection Committee namely Prof.M.Govinda Rao. He asked the Commissioner to call for the C.V of the appellant. No doubt, the appellant's C.V was called for. Moreover he was asked to come on 11-1-2012 and it also appears that he was also interviewed. We are also troubled by the statement contained in Ext.R3(C) that the C.V of the four candidates who were **W.A No.1203 OF 2013 19** applied pursuant to Ext.P1 were examined by the Committee and the contradiction flowing from Paragraph 9 of the counter. On a perusal of the files it is also clear that this examination of the C.V was not done at any point of time earlier than 11-01-2012 when the committee met. Thereafter, they had only the name of the appellant apart from the four candidates. 16. The learned counsel for the institute on being asked about the discrepancy in the pleadings namely that several persons were contacted over the internet and they express their lack of interest, the learned counsel point out that actually Prof.M.Govinda Rao had contacted four persons. Sri.K.P.Abdul Azeez, learned counsel even made available of the names. He also expressed his readiness to have affidavit of Prof.M.Govinda Rao filed on the said lines. An affidavit was filed by the 4[th] respondent namely the Registrar. Therein it was inter alia stated as follows : _“8. In the process of selection, I understand that the Search Committee on close examination of their curriculum vitaes thought that they did not have a profile or competency to head a Policy Research Institute like the one as envisaged. Therefore, by consensus among the members of the search Committee, it was decided to explore suitable candidates on search mode during the third week of December, 2011. As such, Dr. Govinda Rao, Member, Fourteenth Finance Commission and Director, National Institute of Public Finance & Policy, contacted Prof. M.H. Suryanarayana, Indidra Gandhi Institute for Development Research,_ **W.A No.1203 OF 2013 20** _Mumbai, Prof. Pinaki Chakraborty of National Institute of Public Finance & Policy and Prof D. Nartayana Centre for Development Studies, Thiruvananthapuram. In addition to this, Dr.Bhattacharya, Professor, Centre for Social Sciences Studies, Kolkatta and Prof. A. Chakraborty, Institute of Development Studies Kolkatta were also contacted by me after taking instruction from Sri. Suman Billa, IAS, Commissioner, Commercial Taxes. Only Prof. D. Narayana expressed his willingness to submit the Curriculum Vite for selection to the post of Director GIFT on search mode. Therefore, he was interviewed on 11 January 2012 and recommended for the post.”_ Also annexure R4(a) an email communication attaching the letter from Dr. Govinda Rao was also produced, which according to him, affirmed the matters that transpired in the selection to the post of Director, GIFT. In R4(a) dated 30.8.2013, we noticed that it is stated inter alia as follows : _“On close examination of their Cvs, it was thought that they did not have the profile or competence to head a policy research institution, and who is required to work closely with the Government and provide policy guidance on the fiscal matters. Therefore, it was necessary to explore additional candidates. Three more candidates were approached to ascertain their interest and availability and they were Prof. M.H. Suryanarayana of Indira Gandhi Institute for Development Research, Mumbai, Prof. Pinaki Chakraborty of National Institute of Public Finance & Policy, New Delhi and Prof._ **W.A No.1203 OF 2013 21** _D.Narayana of Centre for Development Studies. Of the three, only Prof. D.Narayana expressed his willingness to be considered for the position.”_ Thereupon, affidavit was filed by the then Commissioner for Commercial Taxes wherein it is inter alia stated as follows : _“In response to the notification published through newspaper inviting applications to the post of Director, only four persons applied for the post. The Curriculum vitae were forwarded to me by the above said candidates. In in turn conveyed the details of the curriculum vitae to the members of he search committee on during the later half of December 2011. The members were not fully satisfied with the curriculum vitae of the four applicants as the same were not up to their expectations. Therefore, they explored the possibilities of getting better candidates through search mode. A few more persons were also contacted, but only Prof. D. Narayana, Centre for Development Studies, who had the requisite academic and international exposure was prepared to take up the assignment. Interview was conducted on 11.01.2012. All the four applicants appeared for the interview and in addition, Prof. D. Narayana was also interviewed. Search committee selected Prof. D. Narayana as better candidate for the post of Director.”_ We have already noted that in the files produced by the learned Government Pleader do not disclose the aforesaid facts as such. In the circumstances of this **W.A No.1203 OF 2013 22** case, we do not wish to proceed the matter any further except to record our dissatisfaction of the manner in which the so called Search Committee proceeded in the matter after Ext.P1 notification did not yield necessary results. Learned counsel for the 3[rd] respondent would point out that Prof.M.Govinda Rao is a busy man. He is the member of the Prime Minister's Advisory Council. He also said that Sri.K.M.Chandrasekhar is also a busy man. We are constrained to remark that if they want to make a genuine attempt of getting the right man then such a job should be entrusted to persons who have the time for the purpose for which they are appointed. We are constrained also to note that from the files made available though there were suggestion that they should meet earlier they could meet for the first time only and last time on 11-01-2012. No doubt it would appear that from the files that Prof.M.Govinda Rao has suggested the name of the appellant and it is possible that he was searching, but we must reason that allowing free play in its joints and flexibility to the Search Committee should not allow it to be denigrated to the position where it will act with caprice and will follow no procedure at all. Such committee must devise a method by which it will devote its time, co-ordinate with each other and make concerted efforts so that the best talent is discerned and a panel of names is made available to the Government. In fact it is a panel of names which was contemplated by the Government in Ext.R3(B). 17. We may also notice that the appointment of the appellants was **W.A No.1203 OF 2013 23** frowned upon by the learned Single Judge on the ground that he was 59 years age. In this context the stand of the appellant and the institute is that Ext.R3(A) does not contemplate the maximum age limit. No doubt the maximum age limit fixed in Ext.P1 notification is 55 years. It is true that the appellant did not apply. But we would think that in so far as the Ext.R3(A) does not contemplate the maximum age limit and in so far as the appellant was found to be otherwise suitable by the Search Committee, it may not be appropriate to consider the matter. We further notice that the appellant was appointed for a period of one year. Subsequently, the appointment has been extended and it will expire on 5-9-2013. 18. Even though it is true that the writ petitioner does have a case that the appellant is not qualified, and the appellant would point out that he has Ph.D in Developmental Economics, we are of the view that all such matters fall in the province of the experts. Unless the lack of suitability is palpable which is not so in this case, the court shall not interfere with the task entrusted to the experts. We have made various observations expressing our concern about the methodology of the Search Committee. But that does not however improve the case of the writ petitioner. We have already held that even though not exactly an outsider or stranger, the writ petitioner is admittedly not qualified. The writ petitioner has not been granted the relief of appointment to the post of Director. There is no appeal filed by him. His only case is that the **W.A No.1203 OF 2013 24** matter should be re-notified which we have found may not be necessary. It is brought to our notice by learned senior counsel for the appellant that on the expiry of the term on 4.9.2013 what has happened is he has been relieved with effect from 4.9.2013 and Dr.Jose Jacob, Director of National Savings, Thiruvananthapuram is put into full additional charge of the post of Director of the Institute with effect from 4.9.2013. In fact learned Senior counsel for the appellant would point out that he was a candidate who had applied pursuant to Ext.P1 and was already found unqualified by Ext.R3(C). It is not a matter which we should detain us as admittedly the extended term of the appellant came to an end on 4.9.2013. 19. Then the learned counsel for the Writ Petitioner would point out that a fresh and fair selection may be directed. Learned Government Pleader would submit that a fresh selection in accordance with the relevant rules will be done at the earliest. We record the said submission. In view of the position, as we have already found, we find that the learned Single Judge should not have interfered in this matter. The Writ Appeal is allowed. The judgment of the learned Single Judge will stand set aside. **Sd/-** **K.M.JOSEPH, JUDGE.** **Sd/-** amk **A.HARIPRASAD, JUDGE. //True copy//** **P.A to Judge**