Kerala High Court
Sunil Mathew K vs Union Of India And Others on 14 January, 2011
C.R
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
MONDAY, THE 10TH DAY OF APRIL 2017/20TH CHAITHRA, 1939
WP(C).No. 17150 of 2011 (P)
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PETITIONER:
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SUNIL MATHEW K.
UDYAMCHIRAYIL, MANEED P.O., PIRAVOM,, ERNAKULAM,
PIN-686 726, RESIDING AT, VALIYENNAMPLATH HOUSE,
CHEVAYUR, KOZHIKODE.
BY ADV.SRI.K.PAUL KURIAKOSE
RESPONDENTS:
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1. UNION OF INDIA AND OTHERS
THE SECRETARY, DEPARTMENT OF COMMERCE,
MINISTRY OF COMMERCE AND INDUSTRY, UDYOG BHAVAN,
NEW DELHI-110 107.
2. THE SPICES BOARD, REPRESENTED BY ITS
CHAIRMAN, SUGANDHA BHAVAN, N.H.BYE-PASS,
POST BOX NO.2277, KOCHI-682 025.
3. THE SELECTION COMMITTEE,
REPRESENTEDE BY THE CHAIRMAN, SPICES BOARD,
SUGANDHA BHAVAN, N.H.BYE-PASS,, POST BOX NO.2277,
KOCHI-682 025.
4. MR.BABU.K.C., KAROTE HOUSE,
THIRUVAMKULAM P.O., ERNAKULAM DISTRICT, PIN-682 305,
NOW WORKING AS THE DIRECTOR, (FINANCE), SPICES BOARD,
SUGANDHA BHAVAN,, N.H.BYE-PASS, POST BOX NO.2277,
KOCHI-682 025.
R2 BY ADV. SMT.K.RADHAMANI AMMA, SC, SPICES BOARD
R2 BY ADV. SRI.ANTONY MUKKATH, SC, SPICES BOARD
R1 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
10-04-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WPC No.17150 of 2011
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1 PHOTOSTAT COPY OF NOTIFICATION NO.ADVT/7/10/DTD.1.12.2010.
EXT.P2 PHOTOSTATA COPY OF THE APPLICATION FORM SUBMITTED BY THE
PETITIONER.
EXT.P3 PHOTOSTAT COPY OF THE LIST OF CANDIDATES CALLED FOR THE
INTERVIEW FOR THE POST OF DIRECTOR (FINANCE), OBTAINED AS PER RIGHT TO
INFORMATION ACT, 2005.
EXT.P4 PHOTOSTAT COPY OF PROCEEDINGS OF THE THIRD RESPONDENT
SELECTION COMMITTEE DATED 14.1.2011.
EXT.P5 PHOTOSTAT COPY OF THE MEMORANDUM DTD.17.1.2011 OF THE 2ND
RESPONDENT GOT AS PER RIGHT TO INFORMATION ACT, 2005.
RESPONDENT'S EXHIBITS:
EXT.R2(a) TRUE COPY OF RECRUITMENT RULE SENT BY THE 2ND RESPONDENT TO
THE MINISTRY FOR APPROVAL AND NOTIFICATION.
EXT.R2(b) TRUE COPY OF PROCEEDINGS DATED 28.5.2010 OF THE CHAIRMAN OF
THE 2ND RESPONDENT.
EXT.R2(C) TRUE COPY OF APPOINTMENT ORDER DTD.31.3.2010 OF
SRI.S.KANNAN.
EXT.R2(d) PHOTOCOPY OF THE SPICES BOARD RECRUITMENT RULES ALONG with
the SCHEUDLE.
EXT.R2(e) PHOTOCOPY OF THE GOVERNMENT LETTER NO.5/18/97-EP (AGRI-V)
DATED 28.9.1998.
EXT.R2(f) PHOTOCOPY OF THE PROCEEDINGS OF CHAIRMAN NO.CPS 83 98 DATED
28.9.1998.
EXT.R2(g) PHOTOCOPY OF THE SPICES BAORD RECRUITMENT REGULATIONS, 2010.
TRUE COPY
P.S.TO JUDGE
css/
C.R.
Dama Seshadri Naidu, J.
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WPC No.17150 of 2011
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Dated this the 10th day of April 2017
JUDGMENT
Introduction:
In a recruitment to an executive post, the Selection Committee applies regulations not yet enforced, relaxes the age of a candidate, and appoints him. The candidate next in rank questions it. Under the regnant regulations no relaxation is possible. Pending the writ petition, the candidate earlier appointed also retires. But the next candidate, the writ petitioner, is still eligible. If the Court declares the earlier appointment illegal, can it direct the employer to appoint the challenger despite the long delay? The answer: Yes. Facts:
2. The Spices Board, the second respondent, a statutory body under the Spices Board Act 1986, published Ext.P1 notification inviting applications from eligible candidates to fill up various posts, including the post of Director (Finance). When nineteen persons had WPC No.17150 of 2011 2 applied to the post of Director, the Board shortlisted seven names holding that they had fulfilled the eligibility criteria. Later, the Selection Committee, constituted by the Board, conducted interviews and, through Ext.P4 rank list, declared that three persons were found eligible: Babu K.C., the fourth respondent, placed at rank No.1; Sunil Mathew K., the petitioner, at rank No.2; and another person at rank No.3. Eventually, it issued Ext.P5 offer letter to Babu, who soon thereafter joined the service.
3. Sunil, the petitioner, has a grievance: The notification prescribes the maximum age of 45 as on 1.12.2010, but Babu, the successful appointee, crossed that age by then. Though there was no provision for age relaxation in the notification, the Selection Committee illegally relaxed Babu's age by nine years and six months, and appointed him the Director (Finance). So the writ petition.
Submissions:
Petitioner's:
4. Sri Paul Kuriakose, the learned counsel for Sunil Mathew, has submitted that Babu was not qualified because, by the time the Board issued Ext.P1 notification, he was barred by age. He has, first, WPC No.17150 of 2011 3 contended that the notification does not provide for any relaxation.
He has, in the alternative, contended that for two other posts in the notification five years' relaxation was provided. If that were taken as applicable to the post of Director (Finance), still, over four years remained beyond the relaxable age. Therefore, Babu's appointment, he contends, is unsustainable for it falls foul of not only the notification but also the service regulations governing the employer- Board.
The Spice Board's:
5. The learned Standing Counsel for the Spices Board and the Selection Committee, the second and third respondents, on the other hand, has submitted that even when there is no specific mention about the relaxation, say, of age in the notification, the service rules or regulations holding the field will determine the issue. In elaboration, he has submitted that the Ext.R2(a) regulations prescribed the method of age relaxation in recruitment. According to him, for any post, the Board can relax the age of a prospective candidate up to ten years as is evident from Regulation-7. He has also contended that Sunil, in the first place, has not been qualified to WPC No.17150 of 2011 4 hold the post. To be specific, Sunil's experience does not accord with what was required in the notification. Thus, on both counts, the learned Standing Counsel contends that Sunil's objection remains unsustainable.
6. First, Babu's age stood relaxed under the Regulations of 2010 and, second, Sunil himself is disqualified because of his lacking the experience. Therefore, the learned Standing Counsel has urged this Court to dismiss the writ petition.
7. Heard Sri Paul Kuriakose, the learned counsel for the petitioner, and Sri Antony Mukkath, the learned Standing Counsel, besides perusing the record.
Issues:
8. The 1996 Regulations hold the field. Under those regulations, a candidate's age cannot be relaxed. But the Selection Committee relaxed the age and appointed a candidate. The candidate next in rank challenged it. Pending the writ petition, the successful appointee also retired. Now these are the issues:
71Has the Selection Committee acted illegally in appointing a candidate barred by age?
WPC No.17150 of 2011 5 72If the appointment was illegal, could it affect the retired employee's service?
73Can the Court, now, after a lapse of considerable time, direct the employer to appoint the challenger, if he is qualified? 74Can the employer, which put the challenger in the 2nd rank of the selection list, contend that he is not qualified? Discussion:
Issue No.1:
9. Indeed, the issue lies in a narrow compass: there are no disputed questions of fact. The cardinal question is whether Babu's appointment violated the conditions and eligibility prescribed in Ext.P1 notification, as well as the regnant service regulations.
10. True, the Board has also raised a collateral issue about the Sunil's alleged lack of qualification to hold the post. I will examine whether the Board can take that plea having accepted Sunil's qualification and shortlisted his name at No.2 in the selection.
(a) The Age Relaxation?
11. It is hardly gainsaid that Babu crossed 45 years by 1.12.2010, the cut-off date in Ext.P1 notification. But the Board subjected him to interview along with other candidates, including WPC No.17150 of 2011 6 Sunil, and short listed him as having secured the top rank. In the Selection Committee's Ext.P4 proceedings, it is found recorded:
"The Committee, therefore, felt that relaxation in upper age limit in his case by a further period of 4 years and 6 months is appropriate in addition to the normal age relaxation for candidates working in Govt Organizations/Govt. Undertakings."
(emphasis added)
12. The learned standing counsel has drawn my attention to the Board's pleadings in paragraph-3 of the counter affidavit: The Board is empowered to relax the age of a suitable candidate up to ten years. The Board traces its power to Ext.R2(a)--the Spices Board (Recruitment) Regulations, 2010. Regulation 1 mandates that the Regulations will come into force with effect from the date the Government "approves and notifies" them, though.
13. As seen from Regulation 7, no doubt, the Board possesses the power to relax a candidate's age by ten years. But absent any evidence before this Court that the Central Government has approved and notified the regulations, could the Board press into service the regulations, including the one dealing with the age relaxation?
WPC No.17150 of 2011 7
14. Even the Selection Committee's Ext.P4 proceedings belie the Board's contention that they had the power to relax the age by ten years. First, admittedly, Babu's age was barred by 9= years. Though there was no provision in Ext.P1 vis-`-vis the post of Director (Finance) relaxing the age, I may assume that five years, the limit of relaxation for other posts, could be applied to this post as well. Still, Babu's age exceeds by 4= years more. In that context, the Selection Committee's comment in the Ext.P4 proceedings is instructive: "The Committee, therefore, felt that relaxation in upper age limit in his case by a further period of 4 years and 6 months is appropriate in addition to the normal age relaxation for candidates working in Govt. Organizations/Govt. Undertakings."
15. The Selection Committee admits that the usual relaxation for Babu, working in a Government undertaking, is five years. But it decided to relax his age more: 4= years. By what means?
(b) By What Power has the Board Acted?
16. The Spice Board has two cardinal contentions: (1) That 2010 Regulations have been followed, lack of Government's approval notwithstanding; and (2) The post of Joint Director was upgraded as that of Director (Finance) only under the 2010 Regulations. WPC No.17150 of 2011 8
17. As I found it difficult to ascertain when the post of Joint Director had been upgraded as that of Director, I asked the learned Standing Counsel to place the necessary material before this Court to support his contention. As a result, he filed an additional counter affidavit along with certain additional documents. As seen from Ext.R2(e) proceedings, the Board upgraded the post of Joint Director (Finance) to that of Director (Finance). It happened on 28th September 1998, when the Regulations of 1996 were holding the field.
18. First, there were 1996 Regulations. Later came 2010 regulations. The 1996 Regulations (Ext.R2(d)) came into force "from the date on which they were approved by the Spice Board." On the other hand, Ext.R2(a) Regulations of 2010 must come into force only from the date they are "approved and notified by the Government." So it cannot be said that the post was upgraded under Ext.R2(a) Regulations which came later, and which never were approved by Government. This finding could have peacefully resolved the tangle. But it was not to be.
WPC No.17150 of 2011 9
(c) The Discrepancy:
19. The petitioner's counsel, ever vigilant, has drawn my attention to the discrepancy in two copies of the same documents:
first, Spice Board along with their counter affidavit produced a copy of the 2010 Regulations: Ext.R2(a). Under Clause 1(2), the Regulations specify thus: They [the Regulations] shall be deemed to have come into force with effect from the date they are approved and notified by the Government".
20. For mysterious reasons, the Board filed the same document once again. This time, with its additional counter affidavit: Ext.R2(g). Clause 1(2) reads diametrically opposite to the same Clause in Ext.R2
(a): They [the Regulations] shall be deemed to have come into force with effect from the date they are approved by the Board (at its meeting held on 12.7.2010). Perplexed at this contradiction, I passed the matter over till afternoon to enable the learned standing counsel to get instructions and to explain the seeming contradiction.
21. In the afternoon, the learned Standing counsel has said that despite his best efforts he could not contact the officials. But he has, fairly, submitted that the Board relies on only Ext.R2(a), and this Court may not take Ext.R2(g) into account.
WPC No.17150 of 2011 10
22. That said, I must acknowledge that both documents have now become part of the record. Once any party to the proceedings, be it the Government or a private entity, files any material before the Court, in its summary jurisdiction, this Court implicitly relies on them. It does not indulge in any rowing enquiry with a suspicious eye. Even, in this case, I accepted on their face value all the documents filed on either side. Now comes a document purported to be a copy of another document already filed. There ought to be no changes at all. Unfortunately, the second document contains a contradiction that has the potential of turning the entire case on its head: The whole dispute hinges on whether 2010 regulations came into force the moment the Board approved them or only after the Government approves them. Going by Ext.R2(a), they should come into force only when they are approved and, further, notified by the Government. The second document, supposedly a copy, contradicts it.
23.Examined closely clause 1(2) of Ext.R2(g), the latter document, exhibits anachronism. It records that the regulations "shall be deemed to have come into force" with effect from the date WPC No.17150 of 2011 11 "they are approved by the Board". In the same clause, in parenthesis the clause mentions "at its meeting held on 12.7.2010".
24. If there had been a board meeting on 12.7.2010 and it had approved the regulations, there could have been no occasion, still, to mention that the regulation should be effective from the date "they are approved".
25. The learned Standing Counsel fairly conceded that the Court need not consider the second document. But, all the same, this Court's judicial conscience still remains disturbed. I wonder, rather loud, how the officials could remain lax and inattentive even in matters imperative and solemn: the judicial proceedings. I reckon they ought to have been circumspect and doubly sure about the document's authenticity before they make it part of a court record.
26. Before proceeding further, I deem it appropriate to direct the Board to enquire into the lapse: its producing a second document with contradiction. It should ascertain which is the correct document and, then, proceed departmentally against the erring employee whose negligence must have resulted in this contradiction, and a contradiction with severe legal consequences, at that. WPC No.17150 of 2011 12
27. Leaving that there, now, I may proceed further with the matter.
28. Given the Board's assertion in Ext.R2(a) that the Regulations will come into force only after the Government approves and notifies them, I must conclude that the recruitment was governed by 1996 regulations. Further, we need not hesitate to conclude that in 2008 "the Joint Director" was upgraded to be "the Director" under 2006 Regulations--not under 2010 Regulations. Regulations and Age Relaxation:
29. Going by 1996 regulations, the age relaxation, perhaps, could be five years. True, the notification itself did not speak of any relaxation. But the Selection Committee seems to have felt that the relaxation should apply. Therefore, its extending the age beyond those five years--to be precise 4= years here--to Babu and appointing him as the Director need to be examined. The Regulations - A Comparison:
30. First issued were the 1988 Regulations [Ext.R2(d)]; then the 1996 Regulations; and finally 2010 Regulations [Ext.R2(a)]. Though the 1996 Regulations were not filed on record, during the arguments, the learned Standing Counsel handed over a copy. Since WPC No.17150 of 2011 13 it is an essential document, the Court received it. I treat it as Ext.R2
(h). All three Regulations have different norms about the age relaxation:
1988 Regulations 1996 Regulations 2010 Regulations Age & Qualification
1.. A person whose age exceeds1..... (no change) 1. A person whose age exceeds the age specified in column-6 of age specified under column-8 the schedule may not ordinarily2. The Appointing Authoritythe the schedule may not be appointed to the servicemay recruitment. qualifications when a Board'sordinarilyby relax the educationalof be appointed to the employee is considered forservice direct recruitment.
Provided that the appointingpromotion, in individualThe upper age limit is relaxable for Government servants, ex-
authority may relax the upper agedeserving cases service men and persons limit in the case of candidates belonging to Scheduled belonging to Scheduled Castes/Scheduled Tribes and Caste/Scheduled Tribes, upto other Backward Classes..... In five years, and shall also have case of Officials from power in its discretion to relax Commodity Boards the age limit the upper age limit, up to a may be relaxed up to ten years. maximum of five years, in individual deserving cases 2. The Appointing Authority may relax the educational
2. The Appointing Authority may qualifications when Board's relax the educational employees are considered for qualification and age limits, promotion, in individual when a Board's employee is deserving cases.
considered for promotion, in individual deserving cases 3. The Appointing Authority may also relax the .....
31. Indisputably the 1996 Regulations superseded the 1988 Regulations. And 2010 Regulations have not yet come into force because the Government is yet to approve them. So, the age relaxation must be governed by 1996 Regulations. WPC No.17150 of 2011 14
32. As seen from the above table, the employees from other Commodity Boards, as Babu was, have no benefit of age relaxation. This obvious fact accepted, we must hold that the selection committee illegally relaxed Babu's age, by about a decade. Though Sunil filed the writ petition immediately -- in 2011--six years passed before it could be taken up for disposal. Meanwhile, as a matter of later development, Babu, the successful appointee, retired from service. Both the learned counsel told me that the post still lies vacant. And Sunil, who could have been the successful candidate, has not been barred by age to be appointed to the post. Issue No.2: Does the Illegal Appointment Affect the Service of the Appointee, now Retired?
33. I am informed that Babu, pending this writ petition, retired. It is inequitable, at this juncture, to disturb Babu's appointment. First, he had no say in his appointment, now declared illegal. Second, passing time has made the position irreversible. Therefore, I am not inclined to hold on that count affecting the fourth respondent's career, including his terminal benefits. WPC No.17150 of 2011 15 Issue No.3: Can the Court, now, after a lapse of considerable time, direct the employer to appoint the challenger, if he is qualified?
34. But the fact remains that once the appointment is held to be illegal, the legal consequences flowing therefrom should be accepted. If no appointments were made, the person in next rank should be reckoned on the top ranker's disqualification. Indeed, Sunil stood second and he still has age to occupy the post. Though there has been delay in the disposal of this writ petition, to be precise about six years; the delay on the court's part cannot visit Sunil, who is otherwise diligent, with adverse consequences. Courts and Delays:
35. Courts and delays are correlatives: They occur together. The reasons are a legion. They range from infrastructural inadequacies to insufficient adjudicators to protracted procedures to plain misplaced priorities. The rule established by the general concurrence of the Common-Law Courts, holds the American Supreme Court in Mitchell v. Overman1, is that where the delay in rendering a judgment or a decree arises from the act of the court-- that is, where the delay has been caused either for its convenience 1 103 US 62 (1881) WPC No.17150 of 2011 16 or by the multiplicity or press of business, either the intricacy of the questions involved, or of any other cause not attributable to the laches of the parties--the judgment or the decree may be entered retrospectively, as of a time when it should or might have been entered up. Mitchell relies on the maxim actus curiae neminem gravabit2, which has been well said to be founded in right and good sense and to afford a safe and certain guide for the administration of justice. It holds that the duty of the court is to see that the parties shall not suffer by the delay. A nunc pro tunc3 order should be granted or refused as justice may require because of the circumstances.
36. In Becker v King4 the District Court of Appeal of Florida has observed that courts from very ancient times have exercised the inherent power of entering judgments nunc pro tunc so the rights of a litigant, who is himself not at fault should not be impaired or lost. The Black's Law Dictionary quotes the American Federal Civil Procedure to explain this Latin expression: When an order is signed 2 An act of the Court shall prejudice no one 3 Now for then 4 307 So. 2d 855 (Fla.Dist.Ct.App.1975 (as quoted in http://www.duhaime.org) WPC No.17150 of 2011 17 nunc pro tunc as of a specified date, it means that a thing is now done which should have been done on the specified date.
37. Given the enormous--and inevitable, too--delays in judicial adjudication, most of the times, the winner turns out to be the actual loser, as is the case now. Babu was not qualified. Yet, he got appointed and retired, as well. Sunil is qualified; he has been fighting for years; much of his career has been spent in waiting, and his getting the relief now is a poor solace. A pyrrhic victory5.
38. An aggrieved person comes to court, files a case, and presses his cause. The court, initially, appreciates only a prima facie case. The counsel less articulate or the time inadequate, the court remains unimpressed. The party may not get an interim direction--to preserve the cause, to insulate the case from the vagaries of the marching time. The case gets its turn for hearing many years later; the petitioner has been all eager to have the case disposed of at the earliest, though. Can we say the petitioner has lost out in his race against time? And close the case that the case has become `infructuous'?
5 Avictory that is not worth winning because the winner has lost so much in winning it. (Cambridge Dictionary) WPC No.17150 of 2011 18
39. Interim order or no interim order, unless the blame rests with the petitioner, the delay in the Court's disposing the matter should not hurt him. If mere delay with nothing more were to defeat a person's right, it would only put a premium on those who take delight in delaying and dragging the proceedings.
40. I, therefore, hold that the petitioner is eminently entitled to the post, and the authorities must consider his name to the vacancy, forthwith.
Issue No.4: Can the employer, which put the challenger in the 2nd rank of the selection list, contend that he is not qualified?
41. True, the Selection Committee examined Sunil's qualifications, including experience. It placed him at Rank No.2. Now, the Board, the employer, contends that Sunil is not qualified. Is the Board estopped by conduct? Yes. But what follows then assumes importance.
42. Indeed, the Board has been estopped by conduct. That said, I must also acknowledge a stark problem: Can the Court compel the employer to appoint an unqualified person, if he were? Determining an issue to be illegal or a person to be disqualified has a WPC No.17150 of 2011 19 statutory flavor, for the determination is with reference to an act, rule, or regulation. Trite to hold that there can be no estoppel against a statute. So a judicial directive to an employer to appoint a candidate should always imply that the appointment must be in accordance with law. And the candidate, too, should be eligible.
I, therefore, hold that the Board should appoint Sunil in the vacancy subject to his eligibility, as declared in the Ext.P1. Summary:
75Has the Selection Committee acted illegally in appointing a candidate barred by age?
Yes.
76If the appointment was illegal, could it affect the retired employee's service?
No. 77Can the Court, now, after many years, direct the employer to appoint the challenger, if he is qualified? Yes.
78Can the employer, which put the challenger in the 2nd rank of the selection list, contend that he is not qualified? WPC No.17150 of 2011 20 It cannot. But, to be appointed, the challenger ought to be qualified.
The writ is allowed in the manner stated above. No order on costs.
Sd/- Dama Seshadri Naidu, Judge css/ true copy P.S.TO JUDGE