W.P.(C).Nos.5145 and 5275 of 2022 (Hirash V. v. State of Kerala & KSWDC; Noufal K. v. State of Kerala & KSWDC)

W.P.(C).Nos.5145 and 5275/22 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 10[TH] DAY OF NOVEMBER 2022 / 19TH KARTHIKA, 1944 WP(C) NO. 5145 OF 2022** ## **PETITIONER** HIRASH V AGED 37 YEARS SON OF ALI V., EX-ACCOUNTANT, KERALA STATE WOMEN'S DEVELOPMENT CORPORATION LTD., REGIONAL OFFICE, 2ND FLOOR, NIRMAL ARCADE, BYPASS ROAD, ERNAJIPALAM, KOZHIKODE-673006, RESIDING AT VELUTHEDATH HOUSE, KOOLIMADU, PAZHUR PO, MAVOOR (VIA), KOZHIKODE-673661. BY ADVS. B.ASHOK SHENOY P.S.GIREESH ARJUN R NAIK ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, FINANCE INSPECTION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE KERALA STATE WOMEN'S DEVELOPMENT CORPORATION LTD., REPRESENTED BY ITS MANAGING DIRECTOR, REGISTERED AND CORPORATE OFFICE, 1ST FLOOR, TRANSPORT BHAVAN, EAST FORT, ATTAKULANGARA PO, THIRUVANANTHAPURAM-695023. W.P.(C).Nos.5145 and 5275/22 2 3 ADD.R3. STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, WOMEN AND CHILD DEVELOPMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001 ADDL. R3 IMPLEADED AS PER THE ORDER DATED 05.07.2022 IN I.A. 01/2022. BY ADVS. LATHA ANAND B.ASHOK SHENOY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.10.2022, ALONG WITH WP(C).5275/2022, THE COURT ON 10.11.2022 DELIVERED THE FOLLOWING: W.P.(C).Nos.5145 and 5275/22 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 10[TH] DAY OF NOVEMBER 2022 / 19TH KARTHIKA, 1944 WP(C) NO. 5275 OF 2022** ## **PETITIONER:** NOUFAL K., AGED 37 YEARS S/O. ABDUL AZIZ, EX-COMUTER ASSISTANT, KERALA STATE WOMEN'S DEVELOPMENT CORPORATION LIMITED, REGIONAL OFFICE, 2ND FLOOR, NIRMAL ARCADE, BYPASS ROAD, ERANJIPALAM, KOZHIKODE-673006, RESIDING AT KALLAYI HOUSE, SCHOOL ROAD, PULLUR, KARUVAMBARAM P.O., MANJERI, MALAPPURAM-676123. BY ADVS. B.ASHOK SHENOY P.S.GIREESH ARJUN R NAIK N.N.SUGUNAPALAN (SR.) S.SUJIN ABDUL SALIM M. ## **RESPONDENTS:** 1 STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, FINANCE INSPECTION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE KERALA STATE WOMEN'S DEVELOPMENT CORPORATION LIMITED, REPRESENTED BY ITS MANAGING DIRECTOR, REGISTERED AND CORPORATE OFFICE, 1ST FLOOR, TRANSPORT BHAVAN, EAST FORT, ATTAKULANGARA P.O., THIRUVANANTHAPURAM-695023. W.P.(C).Nos.5145 and 5275/22 4 3 ADDL.R3: STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, WOMEN AND CHILD DEVELOPMENT DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM -695 001(AS PER ORDER DATED 05-07-2022 IN IA 1/2022) BY ADVS. LATHA ANAND B.ASHOK SHENOY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.10.2022, ALONG WITH WP(C).5145/2022, THE COURT ON 10.11.2022 DELIVERED THE FOLLOWING: W.P.(C).Nos.5145 and 5275/22 5 ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = = W.P.(C).Nos.5145 & 5275 of 2022 = = = = = = = = = = = = = = = = Dated this the 10[th] day of November, 2022** ## **JUDGMENT** 1.These writ petitions are filed challenging the termination of service of the petitioners, who were appointed to the post of Accountant and Computer Assistants in the 2[nd] respondent’s Corporation. It is submitted that the petitioners had been engaged after a due process of selection, including a written test and proficiency test in the year 2014, pursuant to a notification issued in 2012. It is contended that they had been continuing in service and they were appointed by the 2[nd] respondent confirmed in their respective post and their probation declared. While so, it is submitted that on 04.01.2022, Exhibit P5 (Ext.P7 in W.P. (C).No.5145 of 2022), communication was issued, terminating their services on the ground that the process of selection was irregular. In the case of the petitioner in W.P.(C).No.5275 of 2022, the order contains an additional ground that the petitioner did not have the prescribed qualification. W.P.(C).Nos.5145 and 5275/22 6 - 2.The learned counsel for the petitioners submits that the order passed by the Corporation was evidently on the basis of a report submitted by a committee constituted by the Government, pursuant to a Government Order dated 24.04.2019, and that the entire procedure is illegal and unsustainable. It is further contended that the very exercise adopted for termination long after the petitioners were appointed and their services were duly regularized is illegal and arbitrary. - 3.A counter affidavit has been placed on record by the 2[nd] respondent Corporation stating that the Government had accorded sanction for filling up the post of Accountant and Computer Assistant. The vacancies were originally notified in January 2011 and again in August 2012 through public notice and also through the Employment Exchange. It is submitted that the qualifications prescribed for the post of Accountant was B.Com, Tally and 5 years work experience while, that for the post of Computer Assistant was Degree, PGDCA and 3 years work experience. It is submitted that the petitioners had applied for the post of Accountant and Computer Assistant respectively by W.P.(C).Nos.5145 and 5275/22 7 Exhibit R2(b), G.O.(MS) No.16/2011/S.W.D dated 18.02.2011. The procedure for conduct of the selection was specifically prescribed by the Government. It was stipulated that the appointment should be made through (i) written test (60% weightage), (ii) computer proficiency test (20% weightage) and (iii) interview (20% weightage). It is submitted that Centre for Management Development was engaged to conduct the written test and such test was conducted. Thereafter, on 07.06.2014 the Board of Directors of the 2[nd] respondent decided to conduct Computer Proficiency Test through the same agency that is the Centre for Management Development, and shortlist can be in the ratio 1:10 for each post. It is submitted that accordingly a combined ranked list of candidates, who appeared for written test and computer proficiency test was prepared, which is produced as Exhibit R2(c). Thereafter, interviews of the shortlisted candidates were held on 27.10.2014 and a ranked list was prepared. However, the ranked list which is produced as Exhibit R2(g) was prepared based solely on the score obtained by the candidates in the interview, without considering the scores obtained in the written test and the proficiency test. It is stated W.P.(C).Nos.5145 and 5275/22 8 that the ranked list was forwarded to the Government, by letter dated 18.11.2014 and the Government had accorded sanction for making appointment by Ext.P2 Order dated 01.12.2014. It is thereafter that the appointments were made. Subsequently, an inspection was conducted by the Finance Inspection Wing of the Government, and irregularities in the recruitment were detected and further action was recommended as evidenced by Ext.R2(g) letter of the Additional Secretary, Finance Department to the Special Secretary, Social Justice Department. Pursuant thereto, a three member committee was constituted, which submitted Ext.R2(h) report on 26.11.2019, based on which Ext.R2(i) letter dated 22.12.2021 was passed, directing the termination of service of the petitioners. It is submitted that the termination of service of the petitioners is a natural consequence of the enquiry conducted into the illegalities in the conduct of the selection, and that in view of the fact that, the facts found in the enquiry stand uncontroverted. there would be absolutely no purpose in issuing any notice to the petitioners, since the illegality had occurred in the conduct of the selection and no role is actually alleged as against the petitioners. It is submitted that since the method of W.P.(C).Nos.5145 and 5275/22 9 conduct of the selection was against the specifically prescribed procedure, the petitioners cannot contend that they have any right to continue in service. 4.The 3[rd] respondent has also filed a counter affidavit on account supporting the contentions raised by the 2[nd] respondent and raising substantially the same contentions. It is contended that since the selection conducted following which the petitioners were appointed were not just irregular, but illegal as well. The very appointment of the petitioners, without following the due procedure as provided in the Government Orders permitting such appointments, would render their appointments void in the eye of law and that the petitioners cannot claim any right on the strength of such void appointments. It is submitted that there is no violation of the principles of natural justice, since a query to be afforded to the petitioners would have only been an empty formality and no useful purpose would have been served by affording such a hearing. 10 W.P.(C).Nos.5145 and 5275/22 - 5.Reliance is placed by the learned Senior Counsel appearing for the 2[nd] respondent on the decisions of the Apex Court in **Muhammed Ashif and Others vs. State of Bihar and Others** 2010) 5 SCC 475] **Satya Prakash and Others vs. State of** [( **Bihar and Others** [(2010) 4 SCC 179] **, Ashok Kumar Sonkar vs. Union of India and Others** [(2007) 4 SCC 54] **and Punjab Urban Planning and Development Authority and Others vs. Karamjit Singh** [AIR 2019 SC 1913] **.** - 6.The learned counsel for the petitioner would on the other hand rely on a judgment of a learned Single Judge of this Court dated 22.03.2022 in W.P.(C).Nos.564 and 841 of 2022 to support the contention that where the procedure followed for selection is shown to be irregular and there is no material to show that the alleged irregularity was at the instance of the petitioners, the termination of the petitioners’ services after 6 years of appointment, that too, without prior notice and affording opportunities to submit explanation and without conducting a departmental enquiry was patently illegal and unsustainable. W.P.(C).Nos.5145 and 5275/22 11 - 7.The learned Senior Counsel appearing for the 2[nd] respondent Corporation immediately contended that the said judgment is pending in appeal before a Bench this Court. It is further contended that this Court in the said judgment had specifically held that the petitioners therein were fully qualified and the issue was only with regard to irregularity in the selection. - 8.I have considered the contentions advanced. The learned Senior Counsel appearing for the 2[nd] respondent would contend that there would be absolutely no purpose served by issuing any notice to the petitioner, since the allegations are with regard to the conduct of the selection itself by the 2[nd] respondent and that all such contentions stand proved in the enquiry conducted at the instance of the Government. It is further contended that what has occurred in the selection process, as is evident from the materials placed on record, is not a mere irregularity in the selection, but a clear illegal selection process and that therefore the appointment itself is rendered void ab initio. W.P.(C).Nos.5145 and 5275/22 12 9.Having considered the contentions advanced on either side, I am of the opinion that the respondents themselves who have conducted the illegal selection, according to them, cannot be heard to contend that the petitioners should suffer the consequences of the illegality committed by them without even being given an opportunity to object to the allegation that they were not entitled to the appointment at all. It is an admitted fact that the selection had been conducted pursuant to a notification issued in the year 2012. The ranked list was prepared, albeit irregularly, without following the procedure prescribed by the Government, by the 2[nd] respondent. The said ranked list was sent up to the State Government for approval. Ext.P2 would show that the list was approved and permission was granted to make appointments, it was pursuant thereto that the petitioners stood appointed. While it may be true that the irregularity or the illegality as pleaded by the 2[nd] respondent in the selection process has been brought to light by inspections or enquires conducted pursuant to the orders issued by the Government, there is no whisper of a pleading that the petitioners had been put on notice or heard at any stage including in the enquiry W.P.(C).Nos.5145 and 5275/22 13 proceedings. While contending that the notice to the petitioners would be an empty formality, it cannot be forgotten that the petitioners had been in service since 2014 and had also been confirmed in service and their probation had been declared in the post held by them. It is evident from the pleadings placed on record in the writ petition itself that the instant case is not one where the petitioners have absolutely no contentions to raise with regard to the cancellation of their appointments as in the cases relied on by the learned Senior Counsel. - 10.In the above factual circumstances, I am of the opinion that the contention that a hearing would be an empty formality cannot be accepted, especially in view of fact that the consequence of the decision taken without hearing the petitioners is that their services are terminated after a considerably long period of time. - 11.In the above view of the matter, I am of the opinion that the contention that the petitioners did not have a right to be heard before the order was passed cannot be accepted. The impugned orders were set aside. This will not stand in the way of W.P.(C).Nos.5145 and 5275/22 14 appropriate action being taken by the respondents, after due notice to the petitioners and after considering their contentions. Writ Petition is ordered accordingly. sd/- **Anu Sivaraman, Judge** sj W.P.(C).Nos.5145 and 5275/22 15 ## **APPENDIX OF WP(C) 5145/2022** PETITIONER EXHIBITS - Exhibit P1 TRUE COPY OF CALL LETTER FOR INTERVIEW NO.KSWDC/EA1/1626/09/5708 DATED 16.10.2014 ISSUED BY 2ND RESPONDENT TO PETITIONER. - Exhibit P2 TRUE COPY OF LETTER NO.16904/B3/2014/SJD DATED 1.12.2014 ISSUED BY 1ST RESPONDENT TO 2ND RESPONDENT. - Exhibit P3 TRUE COPY OF APPOINTMENT ORDER NO.KSWDC/EA1/1629/09 DATED 4.12.2014 ISSUED BY 2ND RESPONDENT TO PETITIONER. - Exhibit P4 TRUE COPY OF THE LETTER NO.KSWDC/EA1/4566/2014 DATED 15.12.2014 ISSUED BY 2ND RESPONDENT TO PETITIONER. - Exhibit P5 TRUE COPY OF LETTER - NO.KSWDC/ROE/ESTT/1449/14 DATED 23.2.2015 ISSUED BY 2ND RESPONDENT'S REGIONAL MANAGER AT ERNAKULAM TO THEIR MANAGING DIRECTOR. - Exhibit P6 TRUE COPY OF ORDER NO.KSWDC/EA1/4566/2014 DATED 7.1.2017 PASSED BY 2ND RESPONDENT. - Exhibit P7 TRUE COPY OF ORDER NO.KSWDC/EA1/4566/2021 DATED 4.1.22 PASSED BY 2ND RESPONDENT AND ISSUED TO PETITIONER. RESPONDENT EXHIBITS - Exhibit R2(a) TRUE COPY OF THE NOTIFICATION PUBLISHED IN THE MATHRUBHUMI DAILY DATED 24/01/2011 Exhibit R2(b) TRUE COPY OF G.O(MS) NO.16/2011/S.W.D. DATED 18/02/2011 W.P.(C).Nos.5145 and 5275/22 16 Exhibit R2(c) TRUE COPY OF THE COMBINED RANK-LIST OF CANDIDATES Exhibit R2(d) TRUE COPY OF THE INTERVIEW SCORE SHEET OF CANDIDATES Exhibit R2(e) TRUE COPY OF THE RANK-LIST Exhibit R2(f) TRUE COPY OF THE LETTER DATED 18/11/2014 ISSUED BY THE 2ND RESPONDENT TOTHE GOVERNMENT Exhibit R2(f) TRUE COPY OF THE LETTER DATED 18/11/2014 ISSUED BY THE 2ND RESPONDENT TO THE GOVERNMENT Exhibit R2(g) TRUE COPY OF THE LETTER DATED 18/11/2014 ISSUED BY THE 2ND RESPONDENT TO THE GOVERNMENT RESPONDENT EXHIBITS Exhibit R2(h) TRUE COPY OF THE REPORT OF THE THREE MEMBER COMMITTEE DATED 26/11/2019 PETITIONER EXHIBITS Exhibit P8 True copy of Mark Sheets maintained by the members of the Interview Committee in relation to the Interview held on 27.10.2014 for the post of Accountant in 2nd respondent, obtained by the provisions of Right to Information Act RESPONDENT EXHIBITS Exhibit R2(i) TRUE COPY OF LETTER DATED 26/12/2019 ISSUED BY THE GOVERNMENT. W.P.(C).Nos.5145 and 5275/22 17 PETITIONER EXHIBITS Exhibit P9 True copy of Government Order - G.O. (Ord) No.221/2019 dated 24.04.2019 issued by 1st respondent RESPONDENT EXHIBITS Exhibit R3(f): A true copy of the letter dated 18/11/2014 Exhibit R3(g): A true copy of the letter dated 07/12/2017 of the additional Secretary,Finance department to the special secretary,social justice department,along with the report of the financial Inspection wing Exhibit R3(i): A true copy of the letter dated 22/12/2021 Exhibit R3(a): A true copy of the notification published in the Mathrubhumi Daily dated 24/01/2011 Exhibit R3(b): A true copy of G.O(MS) No.16/2011/S.W.D dated 18/02/2011 Exhibit R3(c): A true copy of the combined rank-list of candidates who appeared for written test and computer proficiency test for the post of accountant Exhibit R3(d): A true copy of the interview score sheet of candidates Exhibit R3(e): A true copy of the rank-list W.P.(C).Nos.5145 and 5275/22 18 ## **APPENDIX OF WP(C) 5275/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF CALL LETTER FOR INTERVIEW NO.KSWDC/EA11626/5688 DATED 16/10/2014 ISSUED BY 2ND RESPONDENT TO PETITIONER. - Exhibit P2 TRUE COPY OF LETTER NO.16904/B3/2014/SJD DATED 1/12/2014 ISSUED BY 1ST RESPONDENT TO 2ND RESPONDENT. - Exhibit P3 TRUE COPY OF APPOINTMENT ORDER NO.KSWED/EA1/1626/09/6494 DATED 4/12/2014 ISSUED BY 2ND RESPONDENT TO PETITIONER. - Exhibit P4 TRUE COPY OF THE ORDER NO.KSWDA/EA1/4504/14 DATED 28/12/2016 PASSED BY 2ND RESPONDENT. - Exhibit P5 TRUE COPY OF ORDER NO.KSWDA/EA1/4504/2021 PASSED BY 2ND RESPONDENT AND ISSUED TO PETITIONER. RESPONDENT EXHIBITS - Exhibit R3(b): True copy of the application submitted by the petitioner pursuant to notification issued in August 2012 Exhibit R3(h): True copy of the letter dated 07.12.2017 of the Additional secretary,Finance department to the special secretary,Social justice department along with the report of the Financial Inspection Wing. Exhibit R3(f): True copy of the ranked list for the post of Computer assistant. W.P.(C).Nos.5145 and 5275/22 19 Exhibit R3(a): - True copy of the application submitted by the petitioner pursuant to notification issued in January 2011 - Exhibit R3(d): True copy of the combined ranked list of candidates who appeared for the written test and the computer proficiency for the post of computer assistant. Exhibit R3(c): True copy of the GO(MS) No.16/2011/SWD dated 18.02.2011 - Exhibit R3(e): True copy of the Interview score sheet of the candidates who attended the interview held on 27.10.2014 for the past of computer assistant Exhibit R3(g): True copy of the letter No.KSWDC/EA1/1626/09 dated 18.11.2014 Exhibit R3(j): True copy of the letter No.WCD-B3/27/2021WCD dated 22.12.2021 Exhibit R3(i): True copy of the report of the three member committee dated 26.11.2019 PETITIONER EXHIBITS Exhibit P6 True copy of Regulations, Scheme of Evaluation and Course structure syllabus for Post Graduate Diploma in Computer Applications, dated nil, issued by University of Calicut with effect from 2012 Admission W.P.(C).Nos.5145 and 5275/22 20 Exhibit P7 True copy of Order No.GAI/J1/2471/06 dated 29.6.2009 issued by University of Calicut approving the Curriculum, Syllabi and Scheme of Examinations for the B.Sc Information Technology Degree program with effect from Academic Year 2009-2010, appended therewith Exhibit P8 True copy of letter No.16904/B3/2014/SJD dated 1.12.2014 issued by Additional Chief Secretary of 1st respondent to 2nd respondent Exhibit P9 True copy of judgment dated 22.3.2002 of this Hon'ble Court in W.P.(C) Nos.564 of 2022 and 841 of 2022 Exhibit P10 True copy of Government Order - G.O. (Ord) No. 221/2019 dated 24.04.2019 issued by 1st respondent ## **RESPONDENTS EXHIBITS** |EXHIBIT R2(A)|TRUE COPY OF THE NOTIFICATION PUBLISHED<br>IN THE MATHRUBHUMI DAILY DATED 24.1.2011| |---|---| |EXHIBIT R2(B)|TRUE COPY OF THE APPLICATION SUBMITTED BY<br>THE PETITIONER AGAINST NOTIFICATION<br>ISSUED IN JANUARY 2011| |EXHIBIT R2(C)|TRUE COPY OF THE APPLICATION SUBMITTED BY<br>THE PETITIONER.| |EXHIBIT R2(D)|TRUE COPY OF GO(MS) NO.16/2011/SWD DATED<br>18.2.2011| |EXHIBIT R2(E)|TRUEC COPY OF THE COMBINED RANK LIST OF<br>CANDIDATES| W.P.(C).Nos.5145 and 5275/22 21 |EXHIBIT R2(F)|TRUE COPY OF INTERVIEW SCORE SHEET OF<br>CANDIDATES| |---|---| |EXHIBIT R2(G)|TRUE COPY OF THE RANK LIST| |EXHBIT R2(H)|TRUE COPY OF THE LETTER DATED 18.11.2014| |EXHIBIT R2(I)|TRUE COPY OF THE LETTER DATED 7.12.2017<br>OF THE ADDITIONAL SECRETARY, FINANCE<br>DEPARTMENT TO THE SPECIAL SECRETARY,<br>SOCIAL JUSTICE DEPARTMENT ALONG WITH THE<br>REPORT OF THE FINANCIAL INSPECTION WING| |EXHIBIT R2(j)|TRUE COPY OF THE REPORT OF THE THREE<br>MEMBER COMMITTE DATED 26.11.2019| |EXHIBIT R2(K)|TRUE COPY OF THE LETTER DATED 22.12.2021| TRUE COPY PS TO JUDGE