WA No. 1708 of 2018 (The High Court of Kerala at Ernakulam)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** ## **&** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY ,THE 27TH DAY OF NOVEMBER 2018 / 6TH AGRAHAYANA, 1940** **WA.No. 1708 of 2018** **AGAINST THE ORDER/JUDGMENT IN WP(C) 25423/2016 of HIGHCOURT** ## **APPELLANTS/PETITIONERS 1,2 AND 5 TO 7:** - **1 JOY ISSAC.P AGED 40 YEARS NELLAL HOUSE, KEEZHILLAM P.O.,ERNAKULAM - 685 541.** - **2 ANIL KUMAR .K, ATTIYIL SARPPA PARAMBIL, PERINGARA.P.O., THIRUVALLA, PATHANAMTHITTA-689 108.** - **3 ZAKEER .M, ERAYIMMANTHURA, PULLUVILA P.O., MOOSA ROAD, CHAVAKKAD, THRISSUR-680514 (CORRECT ADDRESS:ERAYIMMANTHURA, PULLUVILA P.O. NEYYANTINKARA, THIRUVANANTHAPURAM-695 526.** - **4 JUSTIN THOMSON.T, CHIRATHALAVILAKATHU VEEDU, DHANUVACHAPURAM P.O., NEYYATTINKARA, THIRUVANANTHAPURAM-695 503** - **5 PRATHAPACHANDRAN.N.B., NEELAKANDASADHANAM, VELLATHOOVAL P.O., IDUKKI-685 563.** ## **BY ADV. SRI.ARJUN RAGHAVAN** ## **RESPONDENT/RESPONDENTS:** - **1 THE PHARMACEUTICAL CORPORATION (INDIAN MEDICINES) KERALA LTD.(OUSHADHI)** - **REPRESENTED BY ITS MANAGING DIRECTOR, KUTTANELLOOR PO 680014** - **2 THE MANAGING DIRECTOR, PHARMACEUTICAL CORPORATION (INDIAN MEDICINES) KERALA LTD. (OUSHADHI), KUTTANELLOOR P.O., THRISSUR DISTRICT - 680014.** - **3 ADDL.R3. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, 6TH FLOOR, ANNEX - II, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001. (ADDL.R3 IS IMPLEADED AS PER ORDER DATED 19.09.2018** **WA.No. 1708 of 2018** **2** **IN IA 1/2018.)** **BY ADVS. SMT.J.SURYA E.K.MADHAVAN SMT.P.VIJAYAMMA V. KRISHNA MENON ADDL. SMT.K.R.DEEPA-SR.GP, R3** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 27.11.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **WA.No. 1708 of 2018** **3** **'C R'** ## **JUDGMENT** ## **R.Narayana Pisharadi, J** The appellants are aspirants for appointment to the post of General Worker in the Pharmaceutical Corporation (Indian Medicines) Kerala Limited (hereinafter referred to as 'the Corporation'), a government company. They participated in the interview conducted by the Corporation for selection to that post. They came to know that their names have been included in the select list prepared by the Corporation for appointment. They were under expectation that the Corporation would soon appoint them to the post. When they did not get any orders of appointment, they filed W.P(C) No.25423/2016 against the Corporation and its Managing Director, seeking a writ of mandamus to appoint them to the post of General Worker in the Corporation. They could not succeed in the writ petition. They have now come up in appeal. **WA.No. 1708 of 2018** **4** 2. Brief facts of the case are as follows: The Director Board of the Corporation decided to fill up 10 vacancies in the post of General Worker by appointing persons selected from candidates sponsored by the Employment Exchange. A selection committee was constituted for that purpose. The appellants participated in the interview conducted by the selection committee from 1.3.2016 to 3.3.2016. As per Ext.P3 proceedings, the selection committee prepared a select list of candidates. But, Smt.S.Nisha, who was Deputy Secretary in the Health Department and who was a member of the selection committee as government nominee, was absent when the selection committee conducted the interview and prepared the select list. The appellants are persons included in the select list. In the meeting held on 5.3.2016, the Board of Directors of the Corporation approved the select list prepared by the selection committee. However, in the meeting held on 6.9.2016, the Board of Directors of the Corporation, decided to constitute a sub committee to examine the legality of the selection conducted and to submit a report. As per Ext.R1(d) proceedings dated 4.1.2017, the sub committee found that selection of candidates by the selection committee was not legal and the sub committee **WA.No. 1708 of 2018** **5** recommended the matter to be placed before the government for consideration. 3. The learned Single Judge found that, absence of the government nominee in the selection committee which conducted interview of the candidates and prepared the select list, is a fundamental defect which vitiates the selection process. The learned Single Judge disposed of the writ petition giving liberty to the Corporation to fill up the vacancies in the post of General Worker by conducting fresh selection from the candidates who were already sponsored by the Employment Exchange. 4. We have heard the learned counsel for the appellants and the learned Standing Counsel for the Corporation. We have also heard the learned Government Pleader. 5. At the outset, we may point out that no rank list or select list was published by the Corporation. Ext.P3 is not a rank list or select list. It is only a copy of the proceedings of the selection committee. But, it is true that Ext.P3 contains the names of the persons selected by the committee for appointment. There is also no dispute with regard to the fact that in the meeting held on 05.03.2016, the Board of Directors of the Corporation decided to fill up the vacancies by appointment of **WA.No. 1708 of 2018** **6** the candidates selected by the committee. 6. The principle that persons merely selected for a post do not thereby acquire a right to be appointed to such post is well established by judicial precedents. A candidate who finds a place in the select list for appointment to a civil post does not acquire an indefeasible right to be appointed to such post in the absence of any specific rule entitling him for such appointment. He could be aggrieved by his non-appointment only when the administration does so either arbitrarily or for no bona fide reasons (See Union Territory of Chandigarh v. Dilbagh Singh : AIR 1993 SC 796). A person who is selected, does not, on account of being empanelled alone, acquire any indefeasible right of appointment. Empanelment is at the best a condition of eligibility for purposes of appointment. By itself, it does not amount to selection or create a vested right to be appointed unless relevant service rules provide to the contrary (State of Bihar v. Secretariat Assistant Successful Examinees Union : AIR 1994 SC 736). Mere entry in the select list of the name of a candidate does not give him the right to be appointed. It may happen that the authority concerned may not fill up any vacancies. In such a case, a candidate, even if he is the first in **WA.No. 1708 of 2018** **7** the list, will not have a right to be appointed. Existence of vacancies does not give a legal right to a candidate to be selected for appointment (See State of Haryana v. Subash Chander Marwaha : AIR 1973 SC 2216). 7. It is also well-settled that appointment to a post from a select list cannot be enforced by a writ of mandamus (See Jatinder Kumar v. State of Punjab: AIR 1984 SC 1850). 8. In **Shankarsan Dash v. Union of India : AIR 1991 SC 1612** , the issue was considered by the Constitution Bench and it was held as follows: _"It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for_ **WA.No. 1708 of 2018** **8** _appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted."_ 9. The question, therefore, arises whether the decision taken by the Corporation not to fill up the vacancies from the list of persons prepared by the selection committee, is bona fide and on proper and justifiable reasons. 10. The Corporation decided not to make any appointment from the list prepared by the selection committee for two reasons. One of the reasons is that the Board of Directors approved the select list on 5.3.2016, after the Model Code of Conduct came into existence in connection with the general elections to the Kerala Legislative Assembly. The Corporation has taken the view that the decision taken by the Board of Directors on 5.3.2016 approving the select list was against the Model Code of Conduct. 11. We are of the view that the selection process conducted by the Corporation is not vitiated on account of violation of the Model Code of Conduct which came into existence on 4.3.2016. The decision to fill up 10 vacancies in the post of General Worker in the Corporation had been taken by the Board **WA.No. 1708 of 2018** **9** of Directors as early as on 27.11.2015. The selection committee was constituted by the Board of Directors on 11.2.2016. The interview was conducted by the selection committee from 1.3.2016 to 3.3.2016. Therefore, it is evident that the selection process had begun much before the Model Code of Conduct came into existence. Merely for the reason that the Board of Directors approved the selection list on 5.3.2016, after the Model Code of Conduct came into existence, it cannot be found that the selection process was vitiated. 12. Policy decisions taken prior to the issuance of the election notification could be implemented and necessary steps for implementation of the same could be continued even during the subsistence of the election notification (See Rajaji Mathew Thomas v. Election Commission of India : ILR 2011 (2) Ker 30 and Babu v. Election Commission of India : 2006 (2) KLT 137). The object of Model Code of Conduct is not to stop all governmental activities in the State pending elections. Merely for the reason that a normal governmental function would also result in some benefit to the public at large, that would not come within the ambit of the Model Code of Conduct (See Intelligence Decisions Systems v. Chief Election Commissioner : 2006 (2) KLT **WA.No. 1708 of 2018** **10** 454). 13. It is also relevant here to note that the Chief Electoral Officer, as per Ext.R1(c) letter dated 11.3.2016, had informed the Managing Director of the Corporation that steps for issuing appointment orders to the candidates shall be adjourned till the completion of the election process. There was no direction given by the Chief Electoral Officer to the effect that no appointment shall be made from the selection list already prepared or that the select list shall be cancelled. The direction given was only to defer the appointment till the completion of the election process. 14. The other ground for non-appointment of candidates from the select list is that the selection committee which conducted interview of the candidates and prepared the list did not include the nominee of the government. At this juncture, it is necessary to take note of two government circulars on the subject. 15. Circular No.14896/BPE-2/91/Plg dated 28.2.1992 issued by the Planning and Economic Affairs (BPE) Department deals with selection of persons for appointment to the posts in public sector undertakings. Clause (iv) of this circular insists that “recruitment to vacancies should be made by “Committees” set **WA.No. 1708 of 2018** **11** up by the Board of Directors with not less than 3 members and at least one of them being a Government representative”. This circular was clarified by issuing another circular dated 23.2.1998 (No.898/BPE-2/98/Plg). It is stated in the circular dated 23.2.1998 that the selection committee shall contain not less than 3 Directors and one of them shall be the Government Director representing the Administrative Department in the Secretariat of the undertaking concerned. It is further stated in this circular that individual undertakings need approach Government to nominate a Government representative for the selection committee only if the Government Director (representing the Administrative Department of the undertaking in the Government Secretariat) is unable to attend the meeting of the committee for any reason. 16. The factual position is not in dispute. There is no dispute with regard to the fact that Smt.S.Nisha, who was the Deputy Secretary in the Health Department and who was the government representative in the selection committee, did not participate in the selection process. The affidavit filed by the Managing Director of the Corporation in the Writ Appeal discloses that it was only on the morning on 01.03.2016, that is, the date **WA.No. 1708 of 2018** **12** of commencement of the interview, that Smt.Nisha informed him over telephone that she had been promoted as Joint Secretary and transferred from the Health Department and therefore, she could not form part of the selection committee. On getting such information, the Corporation should have postponed the interview but the selection process continued without the government nominee in the selection committee. 17. Learned counsel for the appellants contended that absence of the government nominee in the selection committee did not affect the validity of the selection process. Learned counsel placed heavy reliance upon the decision of the Hon'ble Supreme Court in Ishwar Chandra v. Satyanarain Sinha (AIR 1972 SC 1812) in support of his contention. The dictum laid down by the Apex Court in this decision is that, if for one reason or the other, one of the members of a selection committee could not attend the committee, it does not make the meeting of the other members illegal. It has also been held that where there is no rule or regulation or any other provision for fixing the quorum, the presence of the majority of the members would constitute it a valid meeting and matters considered thereat cannot be held to be invalid. **WA.No. 1708 of 2018** **13** 18. Learned counsel for the appellants also invited our attention to the decision of the Apex Court in Punjab University v. Vijay Singh Lamba (AIR 1976 SC 1441). It has been held in this decision that 'quorum' denotes the minimum number of members of any body of persons whose presence is necessary in order to enable that body to transact its business validly so that its acts may be lawful. It has been further held that whenever a committee is scheduled to meet, due notice of the meeting has to be given to all the members of the committee and it is left to each individual member whether or not to attend a particular meeting and if any member considers the matter which is to be discussed or determined in a particular meeting is of such importance that he must make his voice heard and cast his vote, it is open to him and indeed he is entitled to attend the meeting and make his presence felt. 19. Learned counsel for the appellants also placed reliance upon the decision of the Delhi High Court in Kavita Meena v. Government of National Capital Territory of Delhi: MANU/DE/2177/2012 in support of his contention that absence of one of the members of a selection committee would not vitiate the selection process. In this decision it has been held that the **WA.No. 1708 of 2018** **14** main thing to be seen is whether all the members of the selection committee have been given valid notice of the meeting or not. It has been also held that when all the members of the selection committee were duly notified of the interview and some of them could not attend the interview, the result of the interview cannot be vitiated provided a majority of the members of the selection committee were present in the interview. 20. The decisions referred to above do not deal with the effect of absence of a member of the selection committee in the selection process in a case where the constitution of the selection committee itself is based on administrative instructions issued by the government and where the presence of a member, who is government nominee, in the selection process is made mandatory. 21. On the other hand, the decision of the Hon'ble Supreme Court, in State of Andhra Pradesh v. Dr. Mohanjit Singh : 1988 (Supp) SCC 562, squarely applies to the facts of the present case. In that case, we find that there was a government order dated 21.09.1976 wherein there was a specific requirement to the following effect:- _"The presence of at least one representative of the University and the representative of the Director of_ **WA.No. 1708 of 2018** **15** _Higher Education in the Selection Committee meeting should be regarded as essential for completing the quorum."_ In the above case, the representative of the Director of Higher Education was not present whereas two representatives of the management and two professors of the University had participated in the selection process. It was held that ratification of the decision by the District Education Officer at a later point in time could not validate the proceedings of the selection committee as there was no quorum. The Apex Court has observed thus: _"Ratification by the District Education Officer at a later point of time cannot validate the proceedings of the selection committee as there was no quorum and in its absence, the committee was not entitled to transact business. The government order makes it clear that the selection committee is intended to function as a body. In case all the members were present at the selection there would have been scope for exchange of views when the candidates appeared and the selection would have been in terms of the scheme. Once a decision is taken and the absentee member is called upon to ratify the conclusion already reached, it becomes a_ **WA.No. 1708 of 2018** **16** _very different type of activity. We are, therefore, not prepared to accept the decision of the Administrative Tribunal on principle that the subsequent ratification constituted valid selection"._ (emphasis supplied) 22. In the instant case, the list prepared by the selection committee was approved by the Board of Directors. But, it does not validate the selection process conducted by the committee which did not meet the requirements of the constitution of the committee. In the light of the dictum laid down by the Apex Court in Mohanjit Singh (supra), it has to be held that the selection list was prepared not by a validly constituted selection committee and that it is a fundamental defect which vitiates the selection process. 23. In the instant case, constitution of the selection committee is based on Circular dated 28.02.1992 issued by the government for streamlining the procedure for appointments to the posts in public sector undertakings. The selection committee can have no valid existence without adherence to the provisions contained in the circular dated 28.02.1992. Clause (iv) of the circular specifically states that recruitment to vacancies should be made by “Committees” set up by the Board of Directors with not **WA.No. 1708 of 2018** **17** less than three members and at least one of them being a government representative. Therefore, it is mandatory that the selection committee shall consist of at least three members and one of them shall be the nominee of the government. It is clear from the government circular that the selection committee is intended to act as a body. Absence of the nominee of the government makes the constitution of the selection committee invalid. Any selection process conducted by such invalid committee is also invalid and it cannot be later validated by approval of the Board of Directors. We agree with the finding of the learned Single Judge that absence of the government representative in the selection committee is a fundamental defect which vitiates the selection process. 24. Learned counsel for the appellants contended that the Board of Directors of the Corporation had approved the selection list and therefore, the Corporation is estopped from not acting upon the list. There is no merit in this contention. If a particular modality is prescribed to do a certain act, any action in defiance or ignorance of such modality cannot be protected or preserved on the plea of estoppel. **WA.No. 1708 of 2018** **18** 25. In the circumstances mentioned above, we are not persuaded to find that the decision taken by the Corporation, not to make appointment from the selection list, is not bona fide. It is not actuated by extraneous reasons. It cannot be said that the decision is arbitrary. Learned Single Judge has protected the interest of the appellants, as far as it is possible, by directing that fresh selection, if any, conducted by the Corporation to fill up the vacancies in the post of General Worker shall be from candidates already sponsored by the Employment Exchange. We see no ground to interfere with the impugned judgment _._ Consequently, we dismiss the appeal. No costs. Sd/- **V.CHITAMBARESH, JUDGE** Sd/- **R.NARAYANA PISHARADI, JUDGE** lsn/jsr