WA Nos. 406 of 2023 & 459 of 2023, Intra Court Appeals, High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 19[TH] DAY OF DECEMBER 2023 / 28TH AGRAHAYANA, 1945** **WA NO. 406 OF 2023** **AGAINST THE JUDGMENT DATED 24/01/2023 IN WP(C) 5881/2020.** ## **APPELLANTS/PETITIONERS 1, 3 AND 4:** - **1 AMAL RAJAPPAN, AGED 26 YEARS S/O RAJAPPAN C.K, CHARAMCHIRAYIL, MOONGAMKUNNU, PALAKKUZHA, MUVATTUPUZHA, PIN - 686662** - **2 JOBY P.T, AGED 27 YEARS S/O THOMAS, PUTHANPURA HOUSE, PUTHUVYPE, ERNAKULAM, PIN - 682508** - **3 SANDEEP SANTHOSH, AGED 28 YEARS, S/O SANTHOSH P.L, PONNUPARAMBIL, MANATTUPARAMBU EAST ROAD, NAYARAMBALAM, ERNAKULAM DISTRICT, PIN - 682509 BY ADV T.N.SREEKALA** ## **RESPONDENTS/RESPONDENTS R1 TO R4 AND 2ND PETITIONER:** - **1 STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY (INDUSTRIES), DEPARTMENT OF INDUSTRIES & COMMERCE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001** - **2 THE TRANSFORMERS AND ELECTRICALS KERALA LIMITED, ANGAMALY SOUTH P.O, ERNAKULAM DISTRICT, PIN: 683 573 ,REPRESENTED BY ITS MANAGING DIRECTOR.** - **3 KERALA INDUSTRIAL AND TECHNICAL CONSULTANCY ORGANISATION, PUTHIYA ROAD, NH BYPASS, VENNALA, KOCHI, PIN 682028, REPRESENTED BY ITS CHAIRMAN.** - **4 THE DIRECTOR, EMPLOYMENT DIRECTORATE, 6TH FLOOR, THOZHIL BHAVAN, VIKAS BHAVAN P.O. KERALA, PIN - 695033** - **5 ARUN.O.R., AGED 29 YEARS S/O RAGHAVAN O.G,** W.A. Nos.406 & 459 of 2023 2 **OLICKA, MEKALADY, KALADY, ERNAKULAM, PIN-683 574** **BY ADVS. Saji Varghese T. G MARIAM MATHAI(M-92)** **spl GP SRI SANTHOSH KUMAR SR ADV SRI RENJITH THAMPAN** **THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING ON 19.12.2023, ALONG WITH WA.459/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A. Nos.406 & 459 of 2023 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 19[TH] DAY OF DECEMBER 2023 / 28TH AGRAHAYANA,** **1945** **WA NO. 459 OF 2023** **AGAINST THE ORDER/JUDGMENT WP(C) 575/2021 OF HIGH COURT** **OF KERALA** ## **APPELLANT/5TH ADDITIONAL RESPONDENT:** **AMAL RAJAPPAN, AGED 26 YEARS S/O RAJAPPAN C.K, CHARAMCHIRAYIL, MOONGAMKUNNU, PALAKKUZHA, MUVATTUPUZHA, PIN - 686662** **BY ADV T.N.SREEKALA** ## **RESPONDENTS/RESPONDENTS 1 TO 4 & WRIT PETITIONERS 1 TO** ## **3:** - **1 THE TRANSFORMERS AND ELECTRICALS KERALA LIMITED, REPRESENTING BY ITS MANAGING DIRECTOR, ANGAMALY SOUTH P.O, PIN - 683573** - **2 KERALA INDUSTRIAL AND TECHNICAL CONSULTANCY ORGANISATION, REPRESENTED BY ITS CHAIRMAN, PUTHIYA ROAD, NH BYPASS, VENNALA, KOCHI, PIN - 682028** - **3 THE EMPLOYMENT DIRECTOR, DIRECTORATEOF EMPLOYMENT, THOZHIL BHAVAN, THIRUVANANTHAPURAM, PIN - 695033** W.A. Nos.406 & 459 of 2023 4 - **4 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, INDUSTRIES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001** - **5 MANOJ C.M., AGED 40 YEARS CHATHANATTU HOUSE, ALAPURAM, KUTTIKATTUKARA P.O., ERNAKULAM, PIN - 683663** - **6 SUNIL P.S., PENATTEL HOUSE, RAMAMANGALAM P.O., MUVATTUPUZHA, ERNAKULAM, PIN - 686663** - **7 SIRAJUDHEEN C.A., CHENKKARA HOUSE, ADIVARAM, NOCHIMA, NAD P.O, ALUVA, ERNAKULAM, PIN - 683563 BY ADVS. K.S.ARUN KUMAR VIJAY SANKAR V.H. AMRUTHA P S JERIN JOSEPH ARYA B. VENUGOPAL Saji Varghese T. G MARIAM MATHAI(M-92) RENJITH THAMPAN (SR.)(K/276/1990)** **THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING ON 19.12.2023, ALONG WITH WA.406/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A. Nos.406 & 459 of 2023 5 ## **AMIT RAWAL & C.S.SUDHA, JJ.** **------------------------------------------------------Writ Appeal Nos.406 of 2023 and 459 of 2023 ---------------------------------------------------Dated this the 19[th] day of December, 2023** ## **J U D G M E N T** ## **Amit Rawal, J.** Two intra court appeals on behalf of unsuccessful writ petitioners, that is, W.P.(C)Nos. 5881 of 2020 and 575 of 2021 have approached this Court against the order of the Single Bench whereby the grievance to set aside the selection without impleading the successful candidates has not been found in their favour. The Transformers and Electricals Kerala Limited (2[nd] respondent in W.P(C).5881/20 & 1[st] respondent in W.P(C).575/21) had sent a requisition to the employment exchange, in purported compliance of the order of the Government dated 28/02/1992 for filling up the post of Operator Grade -III trainees (Electrician, Fitter, Machinist and Welder) as per the seniority maintained in the employment W.A. Nos.406 & 459 of 2023 6 exchange. The Employment Exchange sent the names of 2171 persons registered with them as per the seniority. Names of all the petitioners in the writ petitions were lower in the seniority and therefore not included in that. The petitioners in W.P(C)No.5881/2020 had been manning the same post, but temporarily. They continued till 15/01/2020. In other words, they were not in employment under any means, of respondent No.2 at the time when requisition was sent. Few of the aspirants invoked the jurisdiction of this Court and vide interim order of this Court, they were permitted to participate in the process of selection and were also interviewed but remained unsuccessful. It is pertinent to mention that the petitioners in W.P.(C).No.5881/2020 did not seek such relief, thus for all intends and purposes, they did not participate in the process of selection. 3. The long and short of the grievance before the Single Bench was the selection process initiated by the 2[nd] respondent through Employment Exchange without causing any wide publication was in violation of the fundamental rights as enshrined W.A. Nos.406 & 459 of 2023 7 under Article 16 of the Constitution of India. 4. The learned Single Judge, on consideration of the rival contentions of the parties dismissed the writ petition. It is in this manner we have seized off the intra court appeals. 5. Ms.Sreekala. T.N., the learned counsel appearing on behalf of the appellants, that is the writ petitioners in W.P.(C)Nos. 5881 of 2020 and 575 of 2021, in support of the memorandum of appeals has raised the following submissions:- 5.1 The Government order Ext.R2(c) dated 28.2.1992 was not pleaded in the counter but was attempted to place on record to make out a case beyond pleadings through interlocutory application. The Government order cannot be a sermon for instrumentalities of the State like respondent no.2 for entertaining the applications in the manner and mode as noticed above, that is, by sending requisition to the Employment Exchange. 5.2 No wide publication was done. This is a requirement of the law as per the catena of judgments of the Hon'ble Supreme Court and various other High Courts. W.A. Nos.406 & 459 of 2023 8 5.3 The details of the selected candidates was not disclosed to the petitioners till the last set of pleadings. It is in these circumstances purported objection on behalf of other side of nonimpleadment would not sustain for, the selection was done only after the decision in the writ petitions. In other words, only a rank list was published with the roll numbers without giving the names of the persons. 5.4 The law with regard to sponsoring name by the employment exchange had been under consideration of various courts including the Supreme Court and have been though upheld but initially it was consistently held and observed that the employer requires to cause a wide publication for the aspirants who had, for one reason or the other, not been registered with the employment exchange or were far juniors in the seniority in order to prevent violation of Article 16 of the Constitution of India. In support of the aforementioned contention, the following case laws were cited - **1) Excise Superintendent, Malkapatanam, Krishna District A.P v. K.B.N Vishweshwara Rao and Ors** W.A. Nos.406 & 459 of 2023 9 **[(1996) 6 SCC 216]** **2) State of Bihar v. Upendra Narayana Singh and others [(2009) 5 SCC 65]** - **3) Arun Kumar Nayak v. Union of India and others** **[(2006) 8 SCC 111]** 5.5 When the process of selection is outright violation of fundamental rights, impleadment of the selected candidates would pale into insignificance and would not entail into rejection of the claim set up in the writ petitions. 6. Per contra, Mr.Saji Varghese representing the employer/2[nd] respondent submitted that there was complete adherence to the directions contained in Ext.R2(c) order dated 28/02/1992 of the Government. On receipt of the requisition, employment exchange sent the names of 2171 candidates. Petitioners in the writ petitions were far below in seniority. Few of them were working under temporary employment and officiating the same post which had undergone the process of selection through regular mode. Writ petitions in the absence of the W.A. Nos.406 & 459 of 2023 10 impleadment of the selected candidates without seeking information by invoking the provisions of Right to Information Act, 2005 were not maintainable. Also that there is no challenge to the Government order Ext.R2(c). 7. Similar is the argument of the learned senior counsel, Sri.Renjith Thampan, representing the selected candidates seeking permission of this Court through I.A.No2/2023 for impleadment. 8. On the other hand, Mr.Santhosh Kumar, Special Government Pleader submitted that there has not been any ambiguity on the part of the employment exchange in deviating from the list of seniority as stated in the counter. 9. In rebuttal, Ms. Sreekala T.N, the learned counsel for the appellants relied upon the assertions made in the reply affidavit to the counter filed by respondent nos.2 and 4 to contend that an effort was made to seek information under the Right to Information Act regarding the disclosure of the names of selected candidates or the names of the persons whose roll numbers were reflected in the rank list and the answer given was that they did not have the W.A. Nos.406 & 459 of 2023 11 knowledge. In the absence of such material, there was no occasion for the writ petitioners to implead the selected candidates and therefore the writ petitions cannot be thrown out on this ground. 10. We have heard the learned counsel for the parties and appraised the paper book. The ratio decedendi culled out in the judgment cited _supra_ leaves no manner of doubt that the process of sending requisition to the employment exchange or seeking sponsorship has been a practice, but in order to rule out violation of the provisions of Article 16 of the Constitution of India, it has been laid down that there has to be wide publication for inviting applications for the post advertised for, there may be any aspirants who may not have registered in the employment exchange or far below in the seniority. Concededly no such effort has been made on behalf of the 2[nd] respondent. In our considered view they have been in remiss and faltered with impunity. 11. As far as the grievance of the petitioners in Writ Petition No.575/2021 is concerned, we are of the view that they could not have any cause to challenge the selection as, by virtue of W.A. Nos.406 & 459 of 2023 12 interim order, were given chance to participate in the selection and also for interview. It is settled law that once the candidate(s) participates in the selection process, cannot turn around/volte-face and challenge the same except when there have been cases of glaring ambiguities, irrationality or irregularities. There is no such allegation as evident from the averments in the writ petition. In order to lay credence to our observation, we rely on the judgment in **Anupal Singh and others v. State of Uttar Pradesh through Principal Secretary, Personnel Department and others, (2020) 2 SCC 173** . The ratio culled out in the aforementioned judgment is based upon various principles laid down by the Hon'ble Supreme Court and in paragraph 84.5 it has been held thus- _“ 84.5 Having participated in the interview and when they failed in the final selection, it is not open to the private respondent intervenors to turn around and challenge the revised Notification dated 12/10/2014 and the final select list dated 21/05/2015.”_ 12. Thus the writ appeal bearing no.459/2023 arising against of the judgment dated 24/01/2023 rendered in W.P(C) No.575/2021 is not W.A. Nos.406 & 459 of 2023 13 sustainable and therefore we uphold the judgment of the learned Single Bench, 13. The contention that the petitioners who were working in the same post temporarily had the knowledge of the process of selection though would have some merit, but the employer cannot go unscathed in not adopting the procedure of wide publication. Therefore, they should, in our considered view, be also penalised. We will deal with this aspect at a later point. 14. As regards the objection of the learned senior counsel with regard to non impleadment of the selected candidates, particularly at the stage of the intra court appeal, we are in agreement with the said contention for, the details of the selected candidates in the meantime have already been disclosed vide issuance of appointment letters. But no such effort has been made to implead them. We would not like to put the clock back by unsettling the settled issue, that is, the selection which had already undergone a rigmarole of selection and litigation. Thus we uphold the judgment of the learned Single Bench dated 24/01/2023 in W.P.(C) No.5881/2020. However, we impose a cost of ₹1,00,000/- (Rupees One lakh only) to be paid to the appellants/petitioners in W.P.(C)No.5881/2020 for not causing a wide W.A. Nos.406 & 459 of 2023 14 publication. 15. We hereby make directions that any public instrumentality falling under the category mentioned in the Government Order besides following the procedure of seeking sponsorship from the employment exchange, shall cause a wide publication as and when any process of selection is initiated. Both the Writ Appeals are disposed of accordingly. Sd/- **AMIT RAWAL JUDGE** Sd/- **C.S.SUDHA JUDGE** Jms W.A. Nos.406 & 459 of 2023 15 ## **APPENDIX OF WA 406/2023** PETITIONER EXHIBITS Exhibit TRUE COPY OF THE PETITION TO ACCEPT DOCUMENTS WITH EXHIBITS FILED ON 02.03.2020 BY THE APPELLANTS/PETITIONERS BEFORE THIS HONBLE COURT IN WP(C)NO.5881/2020 Annexure A TRUE COPY OF THE SELECTION LIST OF OPERATOR GRADE III TRAINEE PUBLISHED IN THE WEBSITE OF THE 2ND RESPONDENT ON 17.02.2023, RESPONDENT ANNEXURES Annexure R4(a) LIST OF OPERATOR GRADE III TRAINEES APPOINTED W.A. Nos.406 & 459 of 2023 16 ## **APPENDIX OF WA 459/2023** PETITIONER ANNEXURES Annexure A TRUE COPY OF THE SELECTION LIST OF OPERATOR GRADE III TRAINEE (ELECTRICIAN, FITTER, MACHINIST AND WELDER) PUBLISHED IN THE WEBSITE OF THE 1ST RESPONDENT. ## RESPONDENT ANNEXURES Annexure A1 A TRUE COPY OF THE APPOINTMENT ORDER OF THE 8TH ADDITIONAL RESPONDENT SOUGHT TO BE IMPLEADED DATED 23/02/2023 Annexure A2 A TRUE COPY OF THE RESIGNATION LETTER OF 8TH ADDITIONAL RESPONDENT DATED 25/02/2023 RESPONDENT ANNEXURES Annexure-A3 A TRUE COPY OF THE RESIGNATION LETTER OF SHRI PREMKUMAR, THE 9TH ADDL. RESPONDENT - Annexure-A4 A TRUE COPY OF THE RESIGNATION LETTER OF SHRI. VISHNU M.V, THE 10TH ADDL. RESPONDENT - Annexure-A5 A TRUE COPY OF THE RESIGNATION LETTER OF SHRI. BINU K KOSHY, THE 11TH ADDL. RESPONDENT - Annexure-A6 A TRUE COPY OF THE RESIGNATION LETTER OF SHRI. SOORAJ K S, THE 14TH ADDL. RESPONDENT - Annexure-A7 A TRUE COPY OF THE RELIVING LETTER OF SHRI. JITHIN P R, THE 17TH ADDL. RESPONDENT - Annexure-A8 A TRUE COPY OF THE RESIGNATION LETTER OF SHRI. AJESH M T, THE 19TH ADDL. RESPONDENT Annexure-A9 A TRUE COPY OF THE LETTER OF ACCEPTANCE OF RESIGNATION OF SHRI. W.A. Nos.406 & 459 of 2023 17 JACKSON E O, THE 20TH ADDL. RESPONDENT Annexure-A10 A TRUE COPY OF THE RESIGNATION LETTER OF SHRI. AUGUSTINE LIBIN M V, THE 27TH ADDL. RESPONDENT Annexure-A11 A TRUE COPY OF THE RESIGNATION LETTER OF SHRI. RAGESH T, THE 32ND ADDL. RESPONDENT