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2025 DIGILAW 241 (KER)

M. NAVAS v. STATE OF KERALA

2025-02-12

D.K.SINGH

body2025
JUDGMENT : D.K. SINGH, J. 1. Heard Mr. V. Varghese, learned Counsel for the petitioner, Ms Jeona, learned Counsel representing Mr. P. C. Sasidharan, learned Standing Counsel for the 2nd respondent, Mr. K. V. Krishnakumar, learned Standing Counsel for the 3rd and 4th respondents and Ms. Mary Beena Joseph, learned Senior Government Pleader. 2. The petitioners are before this Court since 2016 in three successive writ petitions in respect of not granting appointments to them on the post of Scientist B in Jawaharlal Nehru Tropical Botanic Garden and Research Institute, Thiruvananthapuram (hereinafter referred to as ‘JNTBGRI’ for short) after they got selected. 3. The petitioners are working as Technical Officers Grade - V and IV, respectively, in the service of JNTBGRI. The JNTBGRI is working under the Kerala State Council for Science Technology and Environment, Thiruvananthapuram. The Chief Minister of the State is the president of the said Council. The Chief Secretary and the Vice Chairman of the State Planning Board are the Vice Presidents. The Secretary to Finance Department of the State is one of the members of the State Council. 4. The petitioners’ educational qualifications are M.Sc. and Ph. D. Degrees. The JNTBGRI issued the notification on 22.12.2010 inviting applications for various posts, including Scientist-C, Scientist-B, etc. The 2nd petitioner applied for the post of Scientist-B in pursuance to the notification in Exhibit P-1 dated 22.12.2010. However, the respondents did not make the selection for the posts advertised vide the notification dated 22.12.2010. 5. The 4th respondent, five years thereafter issued the notification dated 11.09.2015 inviting applications for appointment to various posts such as Scientist-B, C, E1 and Librarian. A corrigendum was issued on 27.09.2015. The internal as well as the candidates from the open market could have applied for the posts advertised vide the notification in Exhibit P-2 dated 11.09.2015. Vide the corrigendum dated 27.09.2015 in Exhibit P-2(a), age relaxation has been granted to the internal candidates up to 50 years, and educational qualification, i.e. M.Sc. was relaxed in respect of the internal candidates. 6. The petitioners applied in pursuance to the notification dated 11.09.2015, read with corrigendum dated 27.09.2015, for the post of Scientist-B. The qualification as per the Rules for the post of Scientist-B is Ph. D. (Science) or First-Class M. Tech/ME. 7. The petitioners were short-listed, and they faced the interview for the selection. 6. The petitioners applied in pursuance to the notification dated 11.09.2015, read with corrigendum dated 27.09.2015, for the post of Scientist-B. The qualification as per the Rules for the post of Scientist-B is Ph. D. (Science) or First-Class M. Tech/ME. 7. The petitioners were short-listed, and they faced the interview for the selection. The petitioners’ names were included in the select list published by the 4th respondent on 31.08.2016. 8. Despite the petitioners having secured their place in the select list, they were not appointed. The petitioners were informed that they were not being appointed as there was an interim order operating in W.P. (C) No. 30799 of 2015. It appears that the said interim order operating in W.P. (C) No. 30799 of 2015 was vacated on 11.07.2016. The Institution itself was deleted from the array of the parties, and therefore, the interim order operating in the said writ petition would not have any impact on filling up the posts of Scientist-B in the 4th respondent Institution, i.e. JNTBGRI. 9. In paragraph No. 11 of the writ petition, it has been specifically stated that the respondents had already made appointments to all other posts notified in Exhibit P-2 notification for which the selection was made by the same Interview Board. However, the petitioners were not appointed. In the counter affidavit filed on behalf of the 2nd respondent, there is no denial to the said averment made in paragraph No. 11 of the writ petition. After the 4th respondent Institution was deleted from the array of parties in W.P. (C) No. 30799 of 2015, there was no impediment to giving appointments to the petitioners on the post of Scientist-B. However, the 4th respondent issued a letter dated 23.09.2016 in Exhibit P-10 to the petitioners stating that W.P. (C) No. 30799 of 2015 was still pending before this Court. 10. 10. When the 4th respondent was not a party in the said writ petition inasmuch as the 4th respondent was deleted from the party array vide the Order dated 11.07.2016 passed by this Court in W.P. (C) No. 30799 of 2015, the ground taken by the 4th respondent that the said writ petition was still pending before this Court was nothing but a smoke screen created for not giving the appointments to the petitioners despite the petitioners had been selected along with other persons for the posts which were advertised vide Exhibit P-2 notification dated 11.09.2015 read with Exhibit P-2(a) corrigendum dated 27.09.2015. 11. Aggrieved by the communication dated 23.09.2016 in Exhibit P-10 issued by the 4th respondent, petitioners and two others approached this Court by filing W.P. (C) No. 31811 of 2016 and W.P. (C) No. 24780 of 2016. The respondents filed their counter affidavit in W.P. (C) No. 31811 of 2016 and the said counter affidavit was adopted in W.P. (C) No. 24780 of 2016. 12. The only objection taken in the counter affidavit filed on behalf of the 3rd and 4th respondents was that there was an interim order in W.P. (C) No. 30799 of 2015 and age relaxation granted to the internal candidates vide the corrigendum dated 27.09.2015 was not proper. It was also said that the desirable qualifications were not required. 13. This Court disposed of the W.P. (C) Nos. 31811 and 24780 of 2016 vide Exhibit P-15 common Judgment dated 08.10.2018. The operative part of the said Judgment reads as under: “20. As rightly pointed out by the learned counsel for the respondents, mere inclusion in the rank list does not confer any infeasible right on the petitioners to get appointment. At the same time, the respondents do not have any license to act arbitrarily. The respondents do not have any case that they do not require any Scientist-B or that it has decided not to fill up any vacancy. Appointments to all other posts were made long back. At the same time, the respondents do not have any license to act arbitrarily. The respondents do not have any case that they do not require any Scientist-B or that it has decided not to fill up any vacancy. Appointments to all other posts were made long back. As it is stated that a committee has already been constituted, to look into the alleged irregularities, I am of the view that the Executive Committee of the 2nd respondent has to take a decision in the matter with respect to the appointments, having regard to the fact that the candidates, who have undergone a similar process of selection, on the basis of the very same notification, after enjoying the relaxation of age limit, qualification, etc are already appointed long back. Therefore these writ petitions are disposed of with a direction to the 2nd respondent to take a decision on the question of appointment of Scientist-B pursuant to the notification dated 11.09.2015 read with corrigendum notification dated 27.09.2015 as expeditiously as possible, at any rate within a period of three months from the date of receipt of a copy of this judgment. In case the decision is to proceed with the selection, the matter shall not be delayed any further.” 14. From the reading of the operative portion of the aforesaid Judgment, it is evident that this Court was of the view that the respondents did not have any license to act arbitrarily. Mere inclusion in the rank list may not confer any indefeasible right to the petitioners to get an appointment, but, at the same time, the respondents, being the public authority, must act reasonably, fairly, in a just and proper manner and not in an arbitrary manner. It was also noted that it was not the case of the respondents that they did not require any Scientist-B or they had decided not to fill up the vacancies. It was also noted that the appointments were made to all other posts which were advertised vide the notification dated 11.09.2015 read with corrigendum dated 27.09.2015. This Court directed the Executive Committee of the 2nd respondent to take decisions in the matter in respect to the appointments of the petitioners, having regard to the fact that the candidates who have undergone a similar process of selection on the basis of the very same notifications after enjoying the relaxation of age, educational qualifications etc. This Court directed the Executive Committee of the 2nd respondent to take decisions in the matter in respect to the appointments of the petitioners, having regard to the fact that the candidates who have undergone a similar process of selection on the basis of the very same notifications after enjoying the relaxation of age, educational qualifications etc. are already appointed long back. 15. Despite the clear direction issued and findings recorded by this Court that the persons who had applied for other posts in pursuance to the same notification and had undergone similar process of selection after enjoying the relaxation of age, educational qualifications etc. were appointed, the Executive Committee of the 2nd respondent in its meeting dated 07.06.2019 passed the resolution not to appoint anyone in Scientist-B category on the basis of the selection made in pursuance to the notification dated 11.09.2015 read with corrigendum dated 27.09.2015. Thereafter, a formal order was passed in pursuance to the decision taken by the Executive Committee on agenda item No. 51.13 in its meeting held on 07.06.2019, mentioned above. 16. As per the said formal order, a Committee was constituted by the 2nd respondent on 11.07.2016 to verify the irregularities in the appointments, promotions and selections during the years 2015 and 2016 in the Institution. It was also stated that the Committee, in its report dated 28.03.2017, found many irregularities related to appointments and promotions done in the 3rd respondent Institution during the years 2015 and 2016. On the basis of the findings of the Committee, the Executive Committee examined the report in detail and decided not to appoint anyone in the Scientist-B category in pursuance to the selection made based on the notification dated 11.09.2015 read with corrigendum dated 27.09.2015. 17. As per the Minutes dated 07.06.2019 in Exhibit P-16, even if it is believed that the Committee has submitted the report, the report was in respect of all the appointments and promotions made in 2015-2016 and not confined to the post of Scientist-B. When all other candidates selected for other posts were appointed despite the report of the Committee, this Court finds no justifiable reasons coming forth from the respondents for not granting appointments to the petitioners. Moreover, this plea was never taken by the respondents in W.P. (C) Nos. 31811 and 24780 of 2016. Moreover, this plea was never taken by the respondents in W.P. (C) Nos. 31811 and 24780 of 2016. Reasons are being found not to grant appointments to the petitioners on one pretext or the other. The ingenious reasons have no basis and substance. When the report relied on was not only in respect of the selection of Scientist-B but, it was in respect of all other posts which were advertised on 11.09.2015 read with corrigendum dated 27.09.2015 and other appointments, selections and promotions made during 2015-2016, this Court is unable to fathom the logic, reasoning and view of the Executive Committee to annul the selection only for the post of Scientist-B and for no other posts which were also advertised in the same notification. 18. The petitioners and two others have thereafter filed W.P. (C) Nos. 10916 of 2020 and 19713 of 2019 impugning the decision taken in compliance with the Judgment dated 08.10.2018 in Nos. 31811 and 24780 of 2016. This Court vide the Judgment dated 20.06.2022 set aside the decision dated 07.06.2019 taken by the Executive Committee in Exhibit P-16 so far as not giving appointments to the petitioners to the post of Scientist-B was concerned and directed the Executive Committee to reconsider the matter afresh and pass appropriate orders specifically taking note of the findings contained in the Judgment in W.P. (C) Nos. 31811 and 24780 of 2016. 19. In compliance of the Judgment dated 20.06.2022 passed in W.P. (C) Nos. 10916 of 2020 and 19713 of 2019, the Executive Committee has passed the impugned order in Exhibit P-30 dated 20.08.2022 stating therein that the Executive Committee has overall managerial powers over the affairs of the 2nd respondent and the constituent institutions. The selection made in pursuance to the notification dated 11.09.2015, read with corrigendum dated 27.09.2015, was not approved by the Executive Council, and the then Director, without authority, published the rank list. It was also stated that the selection from issuing the corrigendum was vitiated as ineligible candidates were included in the select list. It is, therefore, stated that since the selection was not transparent and fair, the petitioners could not be appointed to the post of Scientist-B and a fresh selection was directed to be conducted. 20. It was also stated that the selection from issuing the corrigendum was vitiated as ineligible candidates were included in the select list. It is, therefore, stated that since the selection was not transparent and fair, the petitioners could not be appointed to the post of Scientist-B and a fresh selection was directed to be conducted. 20. This Court fails to understand that when the notification was issued for several posts and selection for all posts, including Scientist-B, was made in pursuance to the notification dated 11.09.2015 read with corrigendum dated 27.09.2015, how the other persons got appointed against various posts and, only the petitioners were not appointed. Now, it is said that the Director included ineligible persons in the select list and the corrigendum was not authorized. This Court in its Judgment in W.P. (C) Nos. 31811 and 24780 of 2016 dated 08.10.2018 had specifically held that when other selected candidates got appointed to various posts advertised vide the notification dated 11.09.2015 read with corrigendum dated 27.09.2015, not giving appointments to the petitioners alone would amount to arbitrary exercise of powers. 21. Ingenious reasons are being found one after another to deny the appointment to the petitioners for reasons best known to the second respondent. In three communications, the second respondent has stated different reasons for not appointing the petitioners despite them being selected for the post of Scientist-B along with other candidates for other posts. 22. Now, at this stage, finding the reasons that the corrigendum was not properly issued and the Executive Committee did not approve the select list, whereas the other candidates got appointed to various other posts, it appears that the respondents have decided not to appoint the petitioners at any cost for the reasons best known to them, and this is nothing but an arbitrary and mala fide exercise of the powers by the second respondent. 23. It is true that mere inclusion in the select list would not clothe a candidate with the right to get an appointment. However, once the selection is made by a competent authority, unless and until there are overwhelming reasons for not granting the appointment, the appointment should be granted. The candidates who got selected in the selection process to hold a public post will have legitimate expectations of getting an appointment unless the selection is vitiated or for reasons such as fraud, bias, etc. The candidates who got selected in the selection process to hold a public post will have legitimate expectations of getting an appointment unless the selection is vitiated or for reasons such as fraud, bias, etc. There are no such reasons coming forth in the three communications, one after another, issued by the 2nd respondent for not appointing the petitioners, particularly when the other candidates have been appointed on other posts which were advertised vide the notification dated 11.09.2015 read with corrigendum dated 27.09.2015. 24. The Supreme Court in Shankarsan Dash v. Union of India, 1991 KHC 956 held that a different policy can be adopted only in the special circumstance of the unavailability of a qualified candidate. The relevant portion of the said judgment reads as under: “7. 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 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. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha, (1974) 1 SCR 165 : AIR 1973 SC 2216 , Miss Neelima Shangla v. State of Haryana, (1986) 4 SCC 268 : AIR 1987 SC 169 , Jitendra Kumar v. State of Punjab, (1985) 1 SCR 899 : AIR 1984 SC 1850 .” 25. In Tej Prakash Pathak v. Rajasthan High Court, 2024 KHC Online 6611 the Constitution Bench of the Supreme Court on the issue of the constitutional basis for the doctrine that ‘rules of the game’ (rules of the process of selection and appointment) must not be changed throughout the recruitment process, held thus: “The doctrine proscribing change of rules midway through the game, or after the game is played, is predicated on the rule against arbitrariness enshrined in Art.14 of the Constitution. Art.16 is only an instance of the application of the concept of equality enshrined in Art.14. In other words Art.14 is the genus while Art.16 is a species. Art.16 gives effect to the concept of equality in all matters relating to public employment. These two articles strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles alike to all similarly situate and not to be guided by any extraneous or irrelevant considerations. In all its actions, the State is bound to act fairly, in a transparent manner. This is an elementary requirement of the guarantee against arbitrary State action which Art.14 of the Constitution adopts. A deprivation of the entitlement of private citizens and private business must be proportional to a requirement grounded in public interest.” 25.1 On the issue of denial of appointment after placement in the select list, the Constitutional Bench opined thus in paragraph 41 of the judgment: “..........The State or its instrumentality cannot arbitrarily deny appointment to a selected candidate. Therefore, when a challenge is laid to State’s action in respect of denying appointment to a selected candidate, the burden is on the State to justify its decision for not making appointment from the Select List.” 26. The stand of the respondents is wholly unjustifiable, and it is nothing but a mala fide exercise of the powers. Not granting appointments to the petitioners stating different reasons one after another despite being selected long back is nothing but a completely arbitrary exercise of powers by the 2nd respondent. 27. In view thereof, the present writ petition is hereby allowed. The impugned communication in Exhibit P-30 is hereby set aside and the respondents are directed to appoint the petitioners to the post of Scientist-B forthwith.