Kerala High Court
Deepa C. Das vs Deepa M.M on 4 January, 2019
Author: V.Chitambaresh
Bench: V.Chitambaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
&
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
FRIDAY ,THE 04TH DAY OF JANUARY 2019 / 26TH AGRAHAYANA, 1940
WA.No. 676 of 2018
AGAINST THE JUDGMENT OF THE LEARNED SINGLE JUDGE DATED 20-02-2018
IN WPC 6151/2017
APPELLANT/3RD RESPONDENT:
DEEPA C. DAS
PALLIMAKKAL HOUSE, KONATHUKUNNU, VALLIVATTOM P.O.,
THRISSUR - 680 123.
BY ADV. SRI.GEORGE POONTHOTTAM (SR.)
RESPONDENTS/PETITIONER & RESPONDENTS 1 AND 2:
1 DEEPA M.M.,
W/O. SUDHI P.P., PONNNACHUPARAMBIL HOUSE,
CHERAI P.O., ERNAKULAM DISTRICT - 683 514.
2 HIGH COURT OF KERALA
REPRESENTED BY ITS REGISTRAR GENERAL,
HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 031.
3 THE REGISTRAR GENERAL
HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 031.
ADDL.R4 T.S JASMINE,
MOONLIT, THUNDAPARAMBIL (H), DESABHIMANI ROAD,
KALOOR, KOCHI-17. (ADDL.R4 IS IMPLEADED AS PER
ORDER DATED 15/11/2018 IN IA.01/2018)
BY ADVS.
SMT.APARNA RAJAN
SRI.C.S.DIAS FOR R2 AND R3
SRI.S.P.ARAVINDAKSHAN PILLAY
SMT.K.N.REMYA
SMT.LAKSHMI RAMADAS
W.A.Nos.676/2018, 779/2018,
&
1340/2018 2
SMT.L.ANNAPOORNA
SMT.N.SANTHA
SRI.K.A.BALAN
SRI.N.N.SUGUNAPALAN (SR.)FOR R2 AND R3
SRI.PETER JOSE CHRISTO
SRI.P.RAVINDRAN (SR.) FOR R1
SRI.S.A.ANAND
SRI.SREEDHAR RAVINDRAN
SRI.V.VARGHESE
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 17.12.2018, ALONG
WITH WA.779/2018, WA.1340/2018, THE COURT ON 04.01.2019 PASSED
THE FOLLOWING:
W.A.Nos.676/2018, 779/2018,
&
1340/2018 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
&
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
FRIDAY, THE 04TH DAY OF JANUARY 2019 / 26TH AGRAHAYANA, 1940
WA.No. 779 of 2018
AGAINST THE JUDGMENT DATED 20-02-2018 IN WPC 6151/2017 PASSED BY
THE LEARNED SINGLE JUDGE OF THIS COURT
APPELLANT/THIRD PARTY:
NISHAD.N.G
AGED 38 YEARS,RESIDING AT
NISABHAVAN,VENGANOOR.P.O,THIRUVANANTHAPURAM,
KERALA-695523.
BY ADV. SRI.JOHNSON GOMEZ
ADV.SRI.C.UNNIKRISHNAN (KOLLAM)
ADV.SRI.S.BIJU
RESPONDENT/RESPONDENTS 1 TO 3 AND PETITIONER:
1 HIGH COURT OF KERALA
REPRESENTED BY ITS REGISTRAR GENERAL,
HIGH COURT OF KERALA,ERNAKULAM,KOCHI-31.
2 THE REGISTRAR GENERAL,
HIGH COURT OF KERALA,ERNAKULAM,KOCHI-31.
3 DEEPA C.DAS
PALLIMAKKAL(H),KONATHUKUNNU,VALLIVATTOM.P.O,
THRISSUR-680123.
4 DEEPA.MM
PONNACHUPARAMBIL(HOUSE),CHERAI.P.O,ERNAKULAM,
PIN-683514.
W.A.Nos.676/2018, 779/2018,
&
1340/2018 4
BY ADVS.
SRI.C.S.DIAS FOR R1 AND R2
SRI.N.N.SUGUNAPALAN (SR.)FOR R1 AND R2
ADV.SRI.GEORGE POONTHOTTAM FOR R3
ADV.SMT.APARNA RAJAN FOR R4
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 17.12.2018 ALONG
WITH W.A.NOS.676 OF 2018 AND 1340 OF 2018, THE COURT ON
04.01.2019 PASSED THE FOLLOWING:
W.A.Nos.676/2018, 779/2018,
&
1340/2018 5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
&
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
FRIDAY ,THE 04TH DAY OF JANUARY 2019 / 26TH AGRAHAYANA, 1940
WA.No. 1340 of 2018
AGAINST THE JUDGMENT OF THE LEARNED SINGLE JUDGE DATED
20.02.2018 IN WPC 6151/2017
APPELLANTS/RESPONDENTS 1 & 2 IN W.P.(C) NO.6151 OF 2017:
1 HIGH COURT OF KERALA
REPRESENTED BY ITS REGISTRAR GENERAL,
HIGH COURT OF KERALA, ERNAKULAM - 682031.
2 REGISTRAR GENERAL
HIGH COURT OF KERALA, ERNAKULAM - 682031.
BY ADV. SRI.N.N.SUGUNAPALAN (SR.)
BY ADV.C.S.DIAS
RESPONDENTS/PETITIONER AND 3RD RESPONDENT IN W.P.(C) NO.6151 OF
2017:
1 DEEPA M.M
AGED 42 YEARS, WIFE OF SRI. SUDHI P.P., RESIDING AT
PONNACHUPARAMBIL HOUSE, CHERAI P.O., ERNAKULAM -
683514.
2 DEEPA C. DAS
AGED 32 YEARS, WIFE OF SRI. BINEESH P.V., RESIDING
AT PALLIMAKKAL HOUSE, KONATHUKUNNU, VALLIMATTOM
P.O., THRISSUR - 680123.
W.A.Nos.676/2018, 779/2018,
&
1340/2018 6
ADV.GEORGE POONTHOTTAM FOR R2
SR.ADV.SRI.P.RAVINDRAN FOR R1
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 17.12.2018 ALONG
WITH W.A.NOS.676 OF 2018 AND 779 OF 2018, THE COURT ON
04.01.2019 PASSED THE FOLLOWING:
W.A.Nos.676/2018,779/2018
&
1340/2018 7
"CR"
V.CHITAMBARESH
&
R.NARAYANA PISHARADI, JJ.
**************************
W.A.Nos.676 of 2018, 779 of 2018
&
1340 of 2018
----------------------------------------------
Dated this the 4th day of January, 2019
JUDGMENT
R.Narayana Pisharadi, J Has an appointing authority, in the absence of any specific rule providing for ratio or quota or percentage to be maintained with regard to stream of selection to a post, the discretion to resort to any of the multiple methods of recruitment prescribed?
2. Cataloguers form the foundation of a library. Accessibility to information is made quick and easy by the systematic organisation of data by them. The controversy in the case pertains to selection to the post of Cataloguer in the Kerala High Court Service.
W.A.Nos.676/2018,779/2018 & 1340/2018 8
3. The High Court of Kerala published Ext.P1 notification dated 14.08.2013, inviting applications for appointment to the post of Cataloguer by direct recruitment. The existing vacancy notified was only one. But, it was provided in the notification that the rank list prepared shall remain in force for a minimum period of two years from the date on which it is brought into force and shall continue to remain in force until the publication of a fresh list or till the expiry of three years, whichever is earlier. It was also provided that vacancies that may arise during the period of validity of the rank list shall also be filled up from the list. After selection process, the High Court published Ext.P2 rank list dated 15.11.2014.
4. The Kerala High Court Service Rules, 2007 (hereinafter referred to as 'the Rules') provide that appointment to the post of Cataloguer shall be by promotion from the category of Senior Grade Library Assistant, by transfer or direct recruitment. A degree of a University and a degree or diploma in Library Science are the qualifications prescribed for appointment to the post of W.A.Nos.676/2018,779/2018 & 1340/2018 9 Cataloguer in the Kerala High Court Service. On the date of publication of Ext.P1 notification, there was no person in the High Court Service who was eligible and qualified for appointment to the post of Cataloguer by promotion or by transfer.
5. The first person in Ext.P2 rank list did not join duty. Therefore, the second person in the rank list was appointed to the vacancy which was existing and notified. The next vacancy arose on 09.10.2015. Meanwhile, the writ petitioner, who is working as Computer Assistant Grade-II in the High Court and who was already a graduate, obtained Bachelor's Degree in Library and Information Science. She made Ext.P3 representation dated 06.10.2015 to the High Court for appointing her to the post of Cataloguer by transfer. As per Ext.P4 official memorandum dated 16.07.2016, the High Court rejected Ext.P3 representation. As per Ext.P5 order dated 18.07.2016, the High Court appointed the third respondent in the writ petition, whose name was in the rank list, in the existing vacancy. The writ petitioner made Ext.P6 representation dated 30.07.2016 to the W.A.Nos.676/2018,779/2018 & 1340/2018 10 High Court for reviewing the order rejecting Ext.P3 representation. As per Ext.P7 official memorandum dated 19.09.2016, the High Court rejected the request made by the writ petitioner for review of Ext.P4 order.
6. As per Ext.P8 official memorandum dated 22.05.2017, the High Court invited willingness, from qualified persons in the High Court Service, for appointment by transfer to the post of Cataloguer. As per Ext.P9 submission dated 29.05.2017, the writ petitioner expressed her willingness to be appointed to the post of Cataloguer by transfer. However, as per Ext.P10 official memorandum dated 03.07.2017, she was informed that the Hon'ble the Chief Justice had ordered to modify the earlier order for filling up the then existing vacancy by appointment by transfer.
7. The writ petition was filed on 01.08.2017. The main reliefs prayed for in the writ petition are to quash Ext.P10 and to appoint the writ petitioner to the post of Cataloguer in the vacancy to which the third respondent was appointed as per W.A.Nos.676/2018,779/2018 & 1340/2018 11 Ext.P5 order.
8. While the writ petition was pending, as per Ext.R2(5) order dated 24.08.2017, the High Court appointed another person from the rank list to the post of Cataloguer, in the vacancy which arose by sanctioning of an additional post by the government.
9. The learned Single Judge found that filling up of the vacancies in the post of Cataloguers which arose in the years in 2015 and 2017 by direct recruitment, when qualified hands were available for appointment by transfer, is illegal. Accordingly, the learned Single Judge quashed Exts.P4, P5, P7 and P10 orders and declared that the appointment of person from the rank list as per Ext.R2(5) order is illegal. The learned Single Judge also set aside the appointments made to the post of Cataloguer from the year 2015 onwards and directed the High Court to make appointment to the vacancies which arose from 2015 onwards by transfer of qualified hands as on the respective dates on which the vacancies arose.
W.A.Nos.676/2018,779/2018 & 1340/2018 12
10. Aggrieved by the judgment of the learned Single Judge, the High Court has filed W.A.No.1340 of 2018 and the third respondent in the writ petition has filed W.A.No.676 of 2018 and the person who got appointment as per Ext.R2(5) order has filed W.A.No.779 of 2018.
11. We have heard learned counsel for the parties.
12. Learned Senior Counsel Sri.P.Ravindran, who appeared for the writ petitioner, has contended that once qualified persons became available for appointment by promotion or by transfer, no appointment by direct recruitment should have been made. It is contended that appointment by direct recruitment can be resorted to only if eligible candidates are not available for appointment by promotion or by transfer. It is also contended that when there is no ratio or percentage or quota prescribed by the Rules, whenever a vacancy arises, it shall be filled up only in accordance with the order in which the methods of appointment are given in the Rules.
13. There is no merit in the above contentions. These W.A.Nos.676/2018,779/2018 & 1340/2018 13 contentions will not hold good when the Rules do not stipulate any ratio or percentage or quota to be maintained in respect of various methods of appointment. When the rules do not prescribe any ratio or percentage or quota, the appointing authority has the discretion to choose from the multiple methods of appointment prescribed.
14. In Nilangshu Bhusan Basu v. Deb K.Sinha : AIR 2001 SC 3654, the Hon'ble Supreme Court has held as follows :
"We feel that once the rules permit recruitment to a post either by direct recruitment or by promotion leaving the decision to the appropriate authority, it will be difficult to say or lay down that process of recruitment by promotion must necessarily be adopted first. As a matter of fact, it would amount to legislating a provision in the Statute. In absence of any rule to that effect, it would be an administrative function of the appointing/appropriate authority to take a decision as to which method should be adopted for recruitment on any particular post. It may depend on various factors relevant for the purpose. ...... There is no basis to come to a W.A.Nos.676/2018,779/2018 & 1340/2018 14 conclusion that process of promotion must necessarily be adopted first and in the event of non availability of suitable candidate, the direct recruitment can be resorted to. ...... We don't find that there has been violation of Article 16 of the Constitution in any manner as sought to be argued on behalf of the respondents. We further find no ground for the High Court to have held that first the process for promotion should be resorted to and in case no candidate fit to be promoted was available then alone direct recruitment could be resorted to. It is not a correct approach. The order of the High Court is not sustainable". (emphasis supplied)
15. The decision in Nilangshu Bhusan Basu (supra) is an authority for the proposition that, when multiple methods of appointment are provided, in the absence of any rule with regard to ratio or quota to be maintained among various modes of appointment, the appointing authority has the discretion to resort to any one of them. In State of A.P v. Sadanandam : AIR 1989 SC 2060, it has been held that mode of recruitment and the category from which the recruitment to a service should be W.A.Nos.676/2018,779/2018 & 1340/2018 15 made are all matters which are exclusively within the domain of the executive and it is not for judicial bodies to sit in judgment over the wisdom of the executive in choosing the mode of recruitment or the categories from which the recruitment should be made as they are matters of policy decision falling exclusively within the purview of the executive.
16. Learned Senior Counsel Sri.P.Ravindran would rely upon the decision of the Hon'ble Supreme Court in S.S.Sodhi v. State of Punjab : (1999) 2 SCC 694 in support of the contention that where more than one method of appointment is prescribed by the rules, the appointment shall be made only in accordance with the order of preference given therein. This decision has no application to the facts of the present case. This decision relates to a case in which it was specifically provided by the rules that, when no suitable candidate is available for appointment by promotion to a post in the service, such post shall be filled in by direct recruitment or by transfer, as the appointing authority may decide in that behalf. It was in the W.A.Nos.676/2018,779/2018 & 1340/2018 16 context of such a specification stipulation in the rules concerned that the Hon'ble Supreme Court held that, in the matter of appointment to a post governed by such rules, the appointing authority will first consider the candidates who are eligible for such appointment by promotion and if no suitable candidate is available for such appointment by promotion, then the post may be filled in by direct appointment or by transfer, as the appointing authority may decide in this behalf.
17. Learned Senior Counsel Sri.P.Ravindran invited the attention of this Court to Article 229(2) of the Constitution of India and contended that the Rules framed by the Chief Justice of the High Court shall be subject to the provisions of any law made by the Legislature of the State. Article 229(1) of the Constitution of India provides that appointments of officers and servants of a High Court shall be made by the Chief Justice of the Court or such other Judge or officer of the Court as he may direct. Article 229(2) of the Constitution of India provides that subject to the provisions of any law made by the Legislature of the State, the W.A.Nos.676/2018,779/2018 & 1340/2018 17 conditions of service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or officer of the Court authorised by the Chief Justice to make rules for the purpose. Learned Senior Counsel also invited our attention to Rule 37 (2) of the Rules and Rule 5 of the Kerala State and Subordinate Services Rules, 1958 and contended that the rules made by the Chief Justice of the High Court regarding the conditions of services of the employees would apply only subject to the general rules framed by the government.
18. Article 229 of the Constitution of India makes the Chief Justice of the High Court the supreme authority in the matter of appointment of officers and staff of the High Court. The unequivocal purpose and obvious intention of the framers of the Constitution in enacting Article 229 is that in the matter of appointments of officers and servants of a High Court, it is the Chief Justice or his nominee who is to be the supreme authority. Clause (1) read with Clause (2) of Article 229 confers exclusive W.A.Nos.676/2018,779/2018 & 1340/2018 18 power on the Chief Justice to frame rules not only in the matter of appointments but also with regard to prescribing the conditions of service of officers and servants of a High Court. This is subject to any legislation by the State Legislature but only in respect of conditions of service. In the matter of appointments even the Legislature cannot abridge or modify the powers conferred on the Chief Justice under Clause (1) (See M.Gurumoorthy v. Accountant General, Assam : AIR 1971 SC 1850). As to the appointment of officers and servants, neither the legislature nor the executive could interfere with the Chief Justice's exclusive power. No doubt, this power is subject to any law made by the State Legislature. But that is only in respect of the conditions of service of officers and servants of the High Court. The powers conferred on the Chief Justice under Clause (1) of Article 229 cannot be abridged or modified in the matter of appointment (See Vakkom N. Vijayan v. Chief Justice : 1994 (1) KLT 280 (FB).
19. Rule 37 (2) provides that subject to the Rules, the W.A.Nos.676/2018,779/2018 & 1340/2018 19 Kerala Service Rules, the Government Servants Conduct Rules, the General Provident Fund (Kerala) Rules and the rules regulating the services for the time being in force applicable to the officers under the rule making power of the Governor or Government of Kerala, as the case may be, shall govern the members of the Service in the matter of their pay, allowances, leave, leave salary, pension and other conditions of service. The first proviso to Rule 37(2) states that except with regard to salaries, allowances, leave and pension, the Chief Justice shall exercise the powers vested in the Governor or the Government under any of the aforesaid rules. A plain reading of Rule 37 (2) shows that the rules regulating the conditions of services of the employees of the State and Subordinate Services shall govern the members of the High Court Service only subject to the provisions contained in the Kerala High Court Service Rules. The proviso to the Rule indicates that the Chief Justice shall, except with regard to salaries, allowances, leave and pension, exercise the powers vested in the Governor or the Government under any W.A.Nos.676/2018,779/2018 & 1340/2018 20 of the Rules referred to in Rule 37.
20. Rule 5 of the Kerala State and Subordinate Services Rules, 1958 provides that where the normal method of recruitment to any service, class or category is neither solely by direct recruitment nor solely by transfer but is both by direct recruitment and by transfer, - (a) the proportion or order in which the Special Rules concerned may require vacancies to be filled by persons recruited direct and by those recruited by transfer shall be applicable only to substantive vacancies in the permanent cadre; (b) a person shall be recruited direct only against a substantive vacancy in such permanent cadre, and only if the vacancy is one which should be filled by a direct recruit under the Special Rules referred to in clause (a), and (c) recruitment to all other vacancies shall be made by transfer. This rule is not applicable to the facts of the case for the simple reason that the Special Rules, that is, the Kerala High Court Service Rules do not provide any proportion or order in which the vacancies in the category of Cataloguer shall be filled up by fixing W.A.Nos.676/2018,779/2018 & 1340/2018 21 ratio or percentage for different methods of recruitment/ appointment. This is clear from Note - 3 to Rule 5 which provides that whenever a ratio or percentage is fixed for different methods of recruitment/ appointment to a post the number of vacancies to be filled up by candidates from each method shall be decided by applying the fixed ratio or percentage to the cadre strength of the post to which the recruitment/ transfer is made and not to the vacancies existing at that time.
21. Sub-rule (2) of Rule 7 of the Rules, which was in force at the relevant time, provided that the rank list prepared for appointment by direct recruitment shall continue to be in force for a minimum period of two years and shall continue to operate till a new rank list is published or the expiry of three years, whichever is earlier. Ext.P1 notification also contained a stipulation to that effect. True, a candidate included in the rank list does not have any vested right for appointment. No doubt, mere selection does not give any right to the selected candidate to be appointed. But, he has a right to be considered for W.A.Nos.676/2018,779/2018 & 1340/2018 22 appointment. The appointing authority cannot ignore the select panel or decline to make the appointment on its whims and fancies. When a person is selected and included in the rank list and if there is a vacancy which can be offered to him, keeping in view his merit position, then ordinarily, there is no justification to ignore him for appointment. There has to be a justifiable reason to decline appointment to a person who is in the select list (See R.S.Mittal v. Union of India : (1995) Suppl (2) SCC 230 and Dinesh Kumar Kashyap v. South East Central Railway:
MANU/SC/1353/2018).
22. An order passed by an administrative authority, exercising discretion vested in it, cannot be interfered in judicial review unless it is shown that exercise of discretion itself is perverse or illegal. Courts, while exercising the power of judicial review, do not sit in appeal over the decisions of administrative bodies. If an authority has exercised his discretion in good faith and not in violation of any law, such exercise of discretion should not be interfered with by the Court merely on the ground that it W.A.Nos.676/2018,779/2018 & 1340/2018 23 could have been exercised differently. In making the appointments or regulating the other service conditions of the staff of the High Court, the Chief Justice exercises an administrative power with constitutional backing. This power has been entrusted to the safe custody of the Chief Justice in order to ensure the independence of the judiciary. True, the powers under Article 229(2) of the Constitution cannot be exercised by the Chief Justice in an unfettered and arbitrary manner. Appointments should be made giving adherence to the provisions of Article 14 and Article 16 of the Constitution and/or such Rules as made by the legislature. But, the discretion exercised by the Chief Justice cannot be open to challenge, except on well known grounds. The decision of the Chief Justice in administrative matters can be challenged only when it is shown that the discretion has been exercised arbitrarily or in violation of the provisions of law or when it is shown that it is vitiated by mala fides. In order to enable a judicial intervention, it would require a very strong and convincing argument to show that the power W.A.Nos.676/2018,779/2018 & 1340/2018 24 has been abused (See Renu v. District and Sessions Judge :
AIR 2014 SC 2175). In the instant case, no such ground has been made out by the writ petitioner.
23. Consequently, the writ appeals are allowed and the impugned judgment is set aside. The writ petition is dismissed. No costs.
(sd/-) V.CHITAMBARESH, JUDGE (sd/-) R.NARAYANA PISHARADI, JUDGE jsr/31/12/2018 True Copy PS to Judge