Kerala High Court
Premakumari V vs State Of Kerala on 6 February, 2024
1
WPC 26810/23
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE BASANT BALAJI
TUESDAY, THE 6TH DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945
WP(C) NO. 26810 OF 2023
PETITIONER/S:
1 PREMAKUMARI V., AGED 45 YEARS, D/O. VIKRAMAN NAIR,
RESIDING AT POONTHOTTATHIL HOUSE, NEELAMPEROOR HOUSE
P.O., ALAPPUZHA DISTRICT, PIN - 686534
2 SARITHAKUMARI M., AGED 36 YEARS, W/O. BINU V.,
RESIDING AT PILLARKADU HOUSE, NEELAMPEROOR P.O.,
ALAPPUZHA DISTRICT, PIN - 686534
3 MAYA ANILKUMAR, AGED 37 YEARS, W/O. ANILKUMAR S.,
RESIDING AT THONNOORILCHIRA HOUSE, NEELAMPEROOR
P.O., ALAPPUZHA DISTRICT, PIN - 686534
BY ADVS. J.VISHNU JAYAPALAN, ANU BALAKRISHNAN
NAMBIAR
RESPONDENT/S:
1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO
GOVERNMENT, DEPARTMENT OF WOMEN & CHILD
DEVELOPMENT, SECRETARIAT, STATUE,
THIRUVANANTHAPURAM, PIN - 695001
2 THE DIRECTOR DIRECTORATE OF WOMEN AND CHILD
DEVELOPMENT, POOJAPPURA, THIRUVANANTHAPURAM, PIN -
695012
3 THE DISTRICT WOMAN AND CHILD WELFARE OFFICER,
DISTRICT WOMEN AND CHILD DEVELOPMENT OFFICE, GOVIND
COMMERCIAL COMPLEX, ALAPPUZHA, PIN - 688001
4 THE CHILD DEVELOPMENT PROJECT OFFICER, VELIYANADU
BLOCK, KIDANGARA P.O, ALAPPUZHA, PIN - 686102
2
WPC 26810/23
5 LEKHA G. FATHER'S NAME AND AGE UNKNOWN TO
PETITIONERS, MALICKAL PARAMPIL, EARA, NEELAMPEROOR,
PIN - 686534
6 SUJATHA C. N.,. FATHER'S NAME AND AGE UNKNOWN TO
PETITIONERS, PUTHUVEED, CHERUKARA P.O., KAVALAM,
PIN - 688506
7 SATHYA T. J. FATHER'S NAME AND AGE UNKNOWN TO
PETITIONERS, AAPPICHERRY, KAINADY P.O., KAINADY,
PIN - 688506
8 MOLAMMA THOMAS, FATHER'S NAME AND AGE UNKNOWN TO
PETITIONERS, MUNDAKAPPADAM, CHERUKARA P.O., KAVALAM,
PIN - 688506
9 BINDHU BIJU, FATHER'S NAME AND AGE UNKNOWN TO
PETITIONERS, MUNDAKAPPADAM, CHERUKARA P.O.,
KAVALAM, PIN - 688506
10 REHANAMOL FATHER'S NAME AND AGE, UNKNOWN TO
PETITIONERS, KIZHAKKUMVELIL, NEELAMPEROOR P.O.,
NEELAMPEROOR, PIN - 686534
BY ADV BIJU ABRAHAM..R5 to R6
OTHER PRESENT:
GP SMT PRINCY XAVIER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 06.02.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
3
WPC 26810/23
JUDGMENT
(Dated this the 6th February 2024) The petitioners applied to the post of 'Anganwadi helpers' pursuant to the notification issued by the 4th respondent. Ext.P5 is the Government Order dated 22.12.2012 which prescribes the members to be included in the selection committee for appointment of 'Anganwadi Workers/Helpers'. The total number of members in the selection committee for appointing 'Anganwadi Helpers' is 11, out of which 5 are to be social workers and 3 are to be women. The social workers are to be nominated by the District Social Welfare Officer from among persons, who have special knowledge in child development.
2. The grievance of the petitioners is that when the selection committee was constituted, the same was not in tune with Ext.P5 as the nominated persons were to be by the District 4 WPC 26810/23 Social welfare officer. Instead, the 4th respondent sent a letter to the Grama Panchayat asking for a list of persons to be nominated for the selection committee. The panchayath forwarded Ext.P7 to the 4th respondent, and the 4th respondent simply forwarded the said list to the 3rd respondent, who accepted it without any inquiry, and was included in the selection committee as the nominated person. The nomination is bad since the 4th respondent has not independently considered the conditions as stated in paragraph (IV) of Ext.P5 G.O. It is submitted that 25 candidates attended the interview and 8 members of the selection committee were present , out of which 5 were nominated social workers by the Panchayath accepted by the 3rd respondent. Therefore, the selection committee was illegally constituted with persons of their choice.
3. A rank list was published on 25.6.203, whereby respondents Nos.5 to 10 were selected. Though the petitioners were more fully qualified than respondents Nos.5 to 10, they 5 WPC 26810/23 were excluded from the rank list as they do not have political considerations. Therefore, this Writ Petition is filed for the following reliefs:
(i) Issue a Writ of certiorari calling for records leading up to Exhibit P7, Exhibit P8, Exhibit P11, and Exhibit P12 and quash the same;
(ii)Declare that the selection of respondents 5 to 10 on the basis of an illegally constituted selection committee are void ab initio;
(iii)Issue a Writ of Mandamus directing the respondents 1 to
4 to cancel the appointments made in pursuance to the Exhibit P11 rank list;
(iv)Issue a Writ of Mandamus to the respondents 1 to 4 to conduct a fresh recruitment to the post of Anganwadi Helpers strictly in accordance with law and after constituting a selection committee as per Exhibit P5 G.O.;
(v)To grant such other reliefs as this Honourable Court may deem fit in the circumstances of this case."
4. A Ward member of the Panchayath gave a complaint on 15.7.20223 to the 3rd respondent seeking immediate interference and for cancellation of the appointment as the selection committee was illegally constituted. In response to 6 WPC 26810/23 the complaint, the 3rd respondent issued a communication dated 5.8.2023 produced as Ext.P12 in which it is admitted that the 4th respondent has nominated the social workers against the Rules. Since the 4th respondent has simply forwarded the list of nominated social workers to the Panchayath, an explanation is also sought regarding this.
5. A counter affidavit is filed by the 4th respondent denying the averments in the writ petition. The petitioners are unsuccessful candidates in the selection process carried out pursuant to Ext.P1 notification. It was contended that after participating in the selection process and having been successful in the selection, the petitioners could not challenge the selection process subsequently and regarding the constitution of the committee. Anganwadi helpers/ workers are appointed through the selection process conducted in the ICDS project. The selection committee comprises the President of the Grama Panchayath as chairperson and the 7 WPC 26810/23 Child Development Project Officer as its convenor. The Medical Officer, Secretary of Panchayath, District Program Officer of the District ICDS Cell, a representative of the block panchayath, and 5 other social workers are members. As per the Government Order, social workers are to be nominated by the District Officer. In Alappuzha district, there are 72 Grama panchayaths and 6 Municipalities. As the District Officer is not familiar with the social workers in each local body, necessary inputs could be called from the concerned Child Development Project Officer (CDPO). The CDPOs approached the local authority to procure a list of social workers. The Panchayath, being well versed with social welfare workers of the panchayath, furnished a list of social workers. After obtaining the list, further enquiry is conducted by the CDPO. Ext.R4(a) is the report submitted by the Supervisor of the 4th respondent regarding the merit and ability of the social workers nominated. The list was forwarded to the 3rd respondent for 8 WPC 26810/23 inclusion in the selection committee. The petitioners do not have a case regarding the merit and ability of the Social Workers included in the selection committee.
6. The challenge is to Ext.P7 and P8, P11 and P12 as they are not maintainable at the petitioners' instance. The petitioners' contention that experience has been overruled in preparing the rank list was denied. The marks commensurate to the experience were given to the petitioners. The petitioners are included in the rank list based on the marks received in the interview, taking into consideration different aspects as seen from Ext.R4(c). The 1st petitioner is placed as rank No.7 and the 2nd petitioner in 19, and the 3rd petitioner in
24. The Selection interview was conducted on 25.5.2023, and the District Officer approved the rank list on 15.6.2023. The ICDS officer received the approved rank list on 26.6.2023, and the rank list was published on the very same day. Appointment 9 WPC 26810/23 orders were issued on 11.7.2023 and, therefore, prayed for dismissal of the Petition.
7. Counter affidavit was filed by respondent Nos.5 to 10, in which it is contended that after participating in a selection process, the unsuccessful candidate cannot later turn down and challenge the selection process. Respondent Nos.5 to 10, as well as the petitioners, participated in the selection process, and the Selection Committee awarded marks in accordance with prescribed norms and rules. Selection was carried out on personal verification of the details of each candidate. The selection is conducted by a group of persons, constituted as a Committee and not by a single person. Merely because the nomination of the social workers was through a list supplied by the Panchayath, it cannot be said that the constitution is bad.
8. Heard the counsel, Shri.Vishnu Jayapalan for the petitioners, Shri.Biju Abraham for respondent Nos.5 to 10 and 10 WPC 26810/23 the Government Pleader Shri. Tony Augustine for respondent Nos.1 to 4.
9. The main contention raised by the petitioners is that going by paragraph (IV) of Ext.P5, the Social Workers are nominated by the District Social Welfare Officer. Still, instead of nominating such persons, the 4th respondent requested the Panchayath to forward a list of social workers as per Ext.P6 and the Panchayath as per the decision taken on 11.8.2022, forwarded a list of 5 persons to be included in the Selection Committee. Thus, the constitution of the Selection Committee is against paragraph (IV) of Ext.P5 and, therefore, is bad in law. Because the very constitution is bad in law, the selection itself is bad and the rank list is liable to be set aside.
10. As per Ext.P7, a list was forwarded by the local panchayath to the 4th respondent recommending names of the 5 persons who are to be included in the selection committee in 11 WPC 26810/23 the place of social workers. Upon getting the names from the Panchayath, a report was obtained, and Ext.R4(a) is the report. A perusal of the said report would reveal that an inquiry was conducted in respect of the 5 persons who have been recommended by the local Panachayth and finding that they are qualified to be included in the selection committee, the 3rd respondent approved the same as per Ext.P8. The selection was, thereafter, conducted. The petitioners, as well as respondent Nos.5 to 10, participated, and Ext.R4(c) would reveal the marks awarded to each candidate under 3 heads. The petitioners are included in the rank list along with respondent Nos.5 to 10. It is based on the rank list, and taking into consideration that communication, the final list was drawn. It is to be noted that the notification was published on 3.2.2023, and the interview on 25.5.2023. The petitioners participated in the interview, and the rank list was approved by the District Woman and Child Welfare Officer on 15.6.2023 and published 12 WPC 26810/23 on 26.6.2023. Based on the rank list, appointment orders were issued on 11.7.2023. Till the appointment orders were given to the candidates, the petitioners did not have any complaints regarding the constitution of the selection committee and the rank list. It is only after one month of issuing the appointment orders that they have approached this Court.
11. The counsel for the petitioners relied on judgment of the apex court in Dr.( Major) Meeta Sahai v. State of Biar and others (2019) 20 SCC 17, Professor (Dr.) Sreejith P.S. V. Dr. Rajasree M.S. And others (2022 SCC OnLine SC 1473) and Ghanashyam Sharma v. State of Sikkim, (2022 SCC OnLine Sikk 105).
12. In Dr.( Major) Meeta Sahai's case (supra), the question was whether a candidate, after participating in the selection process, can, after the recruitment process, challenge 13 WPC 26810/23 the selection process. In the said judgment, it was held in paragraphs 15 to 19 as follows:
15. Furthermore, before beginning analysis of the legal issues involved, it is necessary to first address the preliminary issue. The maintainability of the very challenge by the appellant has been questioned on the ground that she having partaken in the selection process cannot later challenge it due to mere failure d in selection. The counsel for the respondents relied upon a catena of decisions of this Court to substantiate his objection.
16. It is well settled that the principle of estoppel prevents a candidate from challenging the selection process after having failed in it as iterated by this Court in a plethora of judgments including Manish Kumar Shahi v. State of Bihar, observing as follows: (SCC p. 584. para 16) "16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the appellant is not entitled to challenge the criteria or process of selection. Surely, if the appellants' name had appeared in the merit list, he would not have even dreamed of challenging the selection. The [appellant] invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the appellant clearly disentitles him from 14 WPC 26810/23 questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition."
The underlying objective of this principle is to prevent candidates from trying another shot at consideration, and to avoid an impasse wherein every disgruntled candidate, having failed the selection, challenges it in the hope of getting a second chance.
17. However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process.
18. The question of permissibility of giving weightage for "work experience" in government hospitals is also not the bone of contention in this case. Medicine being an applied science cannot be mastered by mere academic knowledge. Longer experience of a candidate adds to his knowledge and expertise. Similarly, government hospitals differ from private hospitals vastly for the former have unique infrastructural constraints and deal with poor masses. Doctors in such non-private hospitals serve a public purpose by giving medical treatment to swarms of patients, in return 15 WPC 26810/23 for a meagre salary. Hence, when placing emphasis on the requirement of work experience, there is no dispute on such recognition of government hospitals and private hospitals as distinct classes. Instead such recognition ensures that the doctors recruited in not-so-rich States like Bihar have the requisite exposure to challenges faced in those regions.
19. The appellant has thus rightly not challenged the selection procedure but has narrowed her claim to only against the respondents'; interpretation of "work experience" as part of merit determination. Since interpretation of a statute or rule is the exclusive domain of courts, and given the scope of judicial review in delineating such criteria, the appellant's challenge cannot be turned down at the threshold. However, we are not commenting specifically on the merit of the appellant's case, and our determination is alien to the outcome of the selection process. It is possible post what is held hereinafter that she be selected, or not."
13. The apex court, while considering the question as to whether there is any estoppel after participating in the selection, held that the appellants have not challenged the selection procedure but only the interpretation of the word 'work experience'. In such circumstances, it was held that it cannot be held that there is estoppel.
16WPC 26810/23
14. In Professor Dr.Sreejith's case (supra), the question was regarding the constitution of the search committee for recommendation of names to the post of Vice Chancellor of a University. In the said case, only one name was recommended to be appointed as a Vice Chancellor, and as per the UGC Regulations, the Vice Chancellor shall be appointed out of the panel of the names recommended by the search committee. In such circumstances, it was held that the recommendation was bad.
15. In Ghanashyam Sharma's case (supra), the selection committee was constituted with the Chief Secretary, the Principal Chief Conservator-cum-Principal Secretary, Forest, Environment and Wildlife Management Department, a Professor of Indian Institute of Science, Bangalore and the Special Secretary, Department of Personnel (DOP) to be nominated by the State Government for selection of Chairperson of State Pollution Control Board. Since the 17 WPC 26810/23 Secretary, DOP, has demitted the office on the date of the interview, the special Secretary, DOP, was made a part of the selection committee. In such a situation, it was held that even though the person may be qualified, the Rule did not envisage the inclusion of the special Secretary. In such circumstances, it was held that the selection of the Vice Chancellor was bad in law.
16. As far as this case is concerned, the persons nominated as social workers were after a due report on their ability, merit, and capability. The 3rd respondent could not make the nomination, as she was not aware of the credentials of the social workers in that area. It is for that reason that the help of the Panchayath was obtained through the 4th respondent. Therefore, it cannot be said that the nomination of the helpers recommended by the 4th respondent, verified by the Panchayath through an enquiry and nominated by the 3rd respondent, is not in order. It is also a settled proposition of 18 WPC 26810/23 law that having participated in a selection process and after being unsuccessful, cannot turn around and challenge the process on the ground that the selection is bad in law. It was held Tajvir Singh Sodhi v. State (UT of J&K), (2023 SCC online SC 344) as follows.
"67. Thus, Courts while exercising the power of judicial review cannot step into the shoes of the Selection Committee or assume an appellate role to examine whether the marks awarded by the Selection Committee in the viva-voce are excessive and not corresponding to their performance in such test. The assessment and evaluation of the performance of candidates appearing before the Selection Committee/Interview Board should be best left to the members of the committee. In light of the position that a Court cannot sit in appeal against the decision taken pursuant to a reasonably sound selection process, the following grounds raised by the writ petitioners, which are based on an attack of subjective criteria employed by the selection board/interview panel in assessing the suitability of candidates, namely, (i) that the candidates who had done their post-graduation had been awarded 10 marks and in the viva-voce, such PG candidates had been granted either 18 marks or 20 marks out of 20. (ii) that although the writ petitioners had performed exceptionally well in the interview, the authorities had acted in an arbitrary manner while carrying out the selection process, would not hold any water.
68. The next aspect of the matter which requires consideration is the contention of the writ petitioners to the effect that the entire selection process was vitiated as the eligibility criteria enshrined in the Advertisement Notice dated 5th May, 2008 was recast vide a corrigendum dated 12th June, 2009, without any justifiable reason.19 WPC 26810/23
In order to consider this contention, regard may be had to the following case law:
i) In Manish Kumar Shahi v. State of Bihar, (2010) 12 SCC 576, this Court authoritatively declared that having participated in a selection process without any protest, it would not be open to an unsuccessful candidate to challenge the selection criteria subsequently.
ii) In Ramesh Chandra Shah v. Anil Joshi, (2013) 11 SCC 309, an advertisement was issued inviting applications for appointment for the post of physiotherapist. Candidates who failed to clear the written test presented a writ petition and prayed for quashing the advertisement and the process of selection. They pleaded that the advertisement and the test were ultra vires the provisions of the Uttar Pradesh Medical Health and Family Welfare Department Physiotherapist and Occupational Therapist Service Rules, 1998. After referring to a catena of judgments on the principle of waiver and estoppel, this Court did not entertain the challenge for the reason that the same would not be maintainable after participation in the selection process.
iii) xxxxxxxxxxxxx
69. It is therefore trite that candidates, having taken part in the selection process without any demur or protest, cannot challenge the same after having been declared unsuccessful. The candidates cannot approbate and reprobate at the same time. In other words, simply because the result of the selection process is not palatable to a candidate, he cannot allege that the process of interview was unfair or that there was some lacuna in the process. Therefore, we find that the writ petitioners in these cases, could not have questioned before a Court of law, the rationale behind recasting the selection criteria, as they willingly took part in the selection process even after the criteria had been so recast. Their candidature was not withdrawn in light of the amended criteria. A challenge was thrown against the same only after they had been declared unsuccessful in the selection process, at which stage, the challenge ought not to have been entertained in light of the principle of waiver and acquiescence.20 WPC 26810/23
Xxxxx xxxxx xxxxx xxxx xxxx Xxxxxx xxxxx xxxxxx xxxxxxx xxxxxx
88. The criteria for evaluation of a candidate's performance in an interview may be diverse and some of it may be subjective. However, having submitted to the interview process with no demur or protest, the same cannot be challenged subsequently simply because the candidate's personal evaluation of his performance was higher than the marks awarded by the panel." Therefore, in light of the observations made in this judgment as well as the judgments cited above, the petitioners are not entitled to any relief from this court. Consequently, the Writ Petition stands dismissed.
SD/-
BASANT BALAJI, JUDGE dl/ 21 WPC 26810/23 APPENDIX OF WP(C) 26810/2023 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE NOTIFICATION DATED 03.02.2023 ISSUED BY THE 4TH RESPONDENT Exhibit P2 A TRUE COPY OF THE APPLICATION SUBMITTED BY THE 1ST RESPONDENT DATED 16.02.2023 Exhibit A TRUE COPY OF THE EXPERIENCE CERTIFICATE DATED P2(a) 18.04.2023 ISSUED TO THE 1ST PETITIONER BY THE 4TH RESPONDENT Exhibit P3 A TRUE COPY OF THE APPLICATION SUBMITTED BY THE 2ND RESPONDENT DATED 21.02.2023 Exhibit A TRUE COPY OF THE EXPERIENCE CERTIFICATE DATED P3(a) 24.04.2023 ISSUED TO THE 2ND PETITIONER BY THE 4TH RESPONDENT Exhibit P4 A TRUE COPY OF THE APPLICATION SUBMITTED BY THE 3RD RESPONDENT DATED 17.02.2023 Exhibit A TRUE COPY OF THE EXPERIENCE CERTIFICATE DATED P4(a) 24.04.2023 ISSUED TO THE 3RD PETITIONER BY THE 4TH RESPONDENT Exhibit P5 A TRUE COPY OF PER G.O(MS)NO.74/2012/SJD DATED 22.12.2012 ISSUED BY THE SOCIAL JUSTICE DEPARTMENT Exhibit P6 A TRUE COPY OF THE LETTER NO.ICDS/VLD/386/2022 DATED 30.07.2022 SENT BY THE 4TH RESPONDENT TO THE PRESIDENT/SECRETARY, NEELAMPEROOR GRAMA PANCHAYAT Exhibit P7 A TRUE COPY OF THE DECISION NO.9 (1) DATED 11.08.2022 TAKEN IN THE NEELAMPEROOR GRAMA PANCHAYAT COMMITTEE MEETING Exhibit P8 A TRUE COPY OF THE ORDER NO.W.C.D/A.L.P/A2- 209539/22 DATED 06.10.2022 ISSUED BY THE 3RD RESPONDENT Exhibit P9 A TRUE COPY OF THE ATTENDANCE SHEET OF THE CANDIDATES Exhibit P10 A TRUE COPY OF THE ATTENDANCE SHEET OF THE SELECTION COMMITTEE MEMBERS 22 WPC 26810/23 Exhibit P11 A TRUE COPY OF THE RANK LIST OF ANGANWADI HELPERS Exhibit P12 A TRUE COPY OF THE LETTER NO. WCD/ALP/A2-797/23 ISSUED BY THE 3RD RESPONDENT DATED 05.08.2023 RESPONDENT EXHIBITS Exhibit True copy of the report of the enquiry submitted R4(a) by the Supervisor of the 4th respondent dated 14.09.2023 in file no. 386/2022 s Exhibit True copy of the GO (MS) No. 58/2008/SJD dated R4(b) 22.10.2008 issued by the Social Justice (B) Department. D Exhibit True copy of the short list prepared after R4(c) certificate verification showing the marks awarded for experience and other criteria. Exhibit True copy of the ranked list approved on R4(d) 15.06.2023 showing the roster of appointment