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2018 DIGILAW 711 (KER)

Abdul Razak v. Union of India

2018-09-05

A.K.JAYASANKARAN NAMBIAR, HRISHIKESH ROY

body2018
JUDGMENT : A.K. JAYASANKARAN NAMBIAR, J. 1. All these Writ Petitions raise a common issue with regard to the legality of the order dated 21.8.2017 of the State Government, which cancelled the select lists drawn up in connection with the selection to the posts of Chairman and Members of the Child Welfare Committees in various Districts in the State of Kerala. The said Government Order, while cancelling the select list drawn up, also cancelled further proceedings pursuant to the notification that invited applications from the candidates for the purposes of filling up of posts notified. For the sake of convenience, the reference to facts and exhibits is from Writ Petition No.31049 of 2017, which is taken as the lead case. 2. The petitioners had responded to Ext.P1 notification dated 4.6.2015, that called for applications from candidates, for filling up the posts of Member and Chairperson of the Child Welfare Committees in eight districts in the State. The statutory provisions prevailing at the time of issuance of Ext.P1 notification were contained in the Juvenile Justice (Care & Protection of Children) Act, 2007 and the Rules made there under (hereinafter referred to as ‘the 2007 Act and Rules’). The petitioners herein, pursuant to the selection process, were included in a select list prepared by the Selection Committee for the Districts of Thiruvananthapuram, Kottayam and Alappuzha respectively. Although the select list prepared by the Selection Committee was forwarded to the State Government, it is not in dispute that the said select list was not published by the State Government and no appointments were made from the said list. The delay in making appointments was apparently on account of the general elections that were notified in the State in 2016. However, when even after the elections, there were no steps taken by the State Government to effect appointments from the select list, one of the candidates who had been short listed for appointment as Member of the Child Welfare Committee in Ernakulam District (Seena Johnson), approached this Court through Writ Petition No.37778 of 2016, which was disposed by judgment dated 21.12.2016 (Ext.P7) directing the State Government to take a decision in the matter of appointment of that candidate within one month. The Writ Appeal that was preferred by the State Government against the said judgment was dismissed by a Division Bench of this Court through Ext.P8 judgment. The Writ Appeal that was preferred by the State Government against the said judgment was dismissed by a Division Bench of this Court through Ext.P8 judgment. A Special Leave Petition that was preferred by the State Government before the Supreme Court also did not meet with success, and the same was dismissed. As Ext.P8 judgment of this Court had thus attained finality, the writ petitioner in that case was appointed as a Member of the Child Welfare Committee in Ernakulam District, taking note of the Contempt Proceedings that had been initiated in the meanwhile alleging non compliance of the directions of the Division Bench in Ext.P8 judgment. 3. In these Writ Petitions, the petitioners who have been included in the same select list, but for different districts, contend that they too must get the benefit of Ext.P8 judgment that was rendered in the case of Seena Johnson since they are persons who are included in the same select list. In the Writ Petition, the prayer is for quashing Ext.P10 Government Order dated 21.8.2017, which cancels the select list, and for a further direction to the respondents to complete the process of appointment, as directed by the Division Bench of this Court in Ext.P8 judgment pertaining to Seena Johnson. 4. Through a counter affidavit filed on behalf of the respondent State Government, the specific case projected by the State Government is that the Juvenile Justice (Care & Protection of Children) Act of 2000 was amended by the provisions of Juvenile Justice (Care & Protection of Children Amendment) Act, 2006 (Act No.33 of 2006). It is stated that, consequent to the amendment of the 2000 Act and Rules, the qualifications prescribed for appointment as Members and Chairperson of the Child Welfare Committee have been modified so as to include, within the zone of consideration, persons having diverse educational qualifications and work experience. The State Government, therefore, thought it prudent to pursue a selection by including candidates from a wider and more diverse pool, and it was therefore that it decided not to make any appointment from the select list prepared by the Selection Committee. It is the definite case of the State Government that they intend to, and have in fact gone in for, a fresh selection process, consequent to a notification issued for the said purpose. It is the definite case of the State Government that they intend to, and have in fact gone in for, a fresh selection process, consequent to a notification issued for the said purpose. The petitioners have filed reply affidavits traversing the averments in the counter affidavit filed on behalf of the State Government. 5. We have heard Sri.K.M.Jamaludheen, the learned counsel for the petitioners in all these petitions and also the learned Advocate General Sri. Sudhakara Prasad duly assisted by Sri.S.Kannan on behalf of the official respondents of the State Government. 6. On a consideration of the facts and circumstances of the case, and the submissions made across the Bar, we find that it is a fact that one of the candidates, from the select list prepared by the Selection Committee pursuant to Ext.P1 notification, has secured appointment consequent to Ext.P8 judgment of this Court, which attained finality through the dismissal of the S.L.P. preferred by the State Government. We feel, however, that merely because an inter partes judgment resulted in the State Government having to appoint Smt. Seena Johnson to the notified post, we are not disabled from considering the legality of the action of the State Government vis-a-vis the other candidates who were included in the same select list, as the said Seena Johnson. It is settled law that the mere inclusion of candidates in a select list will not confer on them any indefeasible right to appointment to a post, in relation to which the select list was drawn. Reference may be made, in this connection, to the judgment of the Supreme Court in State of Andhra Pradesh & Ors. v. D.Dastagiri & Ors. (2003) 5 SCC 373 ), where the court found that, even if the selection process was complete, and the only task remaining was to publish the select list, the candidates who are selected and whose names find place in the select list do not get a vested right to claim appointment based on the select list. In the said case, it was also held that if the State Government took a policy decision not to make any appointment, it was not within the realm of the court to compel the State Government to make an appointment contrary to their policy decision. 7. In the said case, it was also held that if the State Government took a policy decision not to make any appointment, it was not within the realm of the court to compel the State Government to make an appointment contrary to their policy decision. 7. If, as noticed above, the petitioners do not have a right to claim appointment pursuant to the selection process that was initiated, the question arises as to whether the State Government was justified in initiating a fresh process of selection based on the provisions of the amended Act of 2007. In this connection, it is relevant to note the decisions of the Supreme Court in Deepak Agarwal and Another v. State of Uttar Pradesh & Ors. (2011) 6 SCC 725 ) as also State of Tripura & Ors. v. Nikhil Ranjan Chakraborty & Ors. (2017) 3 SCC 646 ) both of which are authorities for the proposition that there is no universal law which mandates that an appointment to a post has to be based on the law as it stood on the date of arising of the vacancy. The said decisions clearly indicate that the law that is to govern appointments is the law prevailing on the date of consideration of the candidature for appointment. In the instant case, while the petitioners had not obtained any vested right for the posts notified, the policy decision of the State Government was to appoint candidates who satisfied the qualifications and work experience prescribed in the 2007 Act and the 2017 Rules. The policy decision of the State Government, being informed by the need for choosing persons from a more diverse pool of qualified and experienced hands, cannot be seen as arbitrary or unreasonable, more so when the appointments contemplated are in public interest, and the steps taken are in conformity with the objects of the Juvenile Justice Act and the Rules. We, therefore, see no reason to interfere with Ext.P10 Government Order dated 21.8.2017 that is impugned in these Writ Petitions. 8. We, therefore, see no reason to interfere with Ext.P10 Government Order dated 21.8.2017 that is impugned in these Writ Petitions. 8. Before parting with these cases, we must also deal with the contention of the learned counsel for the petitioners that, inasmuch as pursuant to Ext.P8 judgment of this Court, a candidate from the same select list had secured appointment as a Member of the Child Welfare Committee in Ernakulam District, it was not open for this Court to take a different view in respect of the other similarly placed candidates from the same select list. We might, at this stage, profitably refer to the decisions of the Supreme Court in M.M. Thomas v. State of Kerala & Anr. (2000) 1 SCC 666 ) as also State of Bihar v. Upendra Narayan Singh & Ors. (2009) 5 SCC 65 ) where the Court, while discussing the scope of the powers of the High Court as a Court of Record under Art.215 of the Constitution, observed that the High Court has inherent powers to correct the records, since a Court of Record is undoubtedly a superior court, which is itself competent to determine the scope of its jurisdiction, and has a duty, as a Court of Record, to itself to keep all its records correctly and in accordance with law. It follows, therefore, that if an apparent error is noticed by this Court, in respect of any order passed by it, this Court has not only the power but also the duty, to correct the error noticed by it. In that sense, the power of this Court under Art.226 is plenary in nature and, in taking the view that we have in respect of the petitioners’ herein, which is different from the view taken by the earlier bench in the case of Seena Johnson we do not feel we have committed any judicial impropriety. This is more so because we find that Ext.P8 decision of the Division Bench of this Court did not notice the binding decisions of the Supreme Court, which clarified that a person, who had merely been included in a select list published by a Selection Committee, did not, merely on account of the said inclusion, obtain an indefeasible right to appointment to the post in question. It might also be relevant to note that, in the instant cases, the select list in question was not even published by the State Government, thereby indicating that the selection process itself had never been finalised. Thus, in any view of the matter, we do not find any merit in these Writ Petitions, in their challenge against Ext.P10 order dated 21.8.2017. The Writ Petitions are therefore dismissed, but with no order as to costs.