w w w . L a w y e r S e r v i c e s . i n

C.P. George & Others v/s State of Kerala, Represented by The Secretary To Government, Department of Power, Thiruvananthapuram & Others

    W.A. Nos. 718 & 673 of 2022 & W.P(C). NO. 19531 of 2022
    Decided On, 08 July 2022
    At, High Court of Kerala
    For the Appellant: George Poonthottam, K. Jaju Babu, Sr. Advocates, A.L. Navaneeth Krishnan, Nisha George, Advocate. For the Respondents: Asok M. Cherian, Addl. Advocate General, Antoney Mukkath, Sr. Government Pleader)(B/O), Santhosh Mathew, Arun Thomas, Karthika Maria, Anil Sebastian Pulickel, Vipin P. Varghese, M.U. Vijayalakshmi, Brijesh Mohan, Mathew Nevin, Thomas, Adarsh Mathew, Kevin Mathew George, Merline Mathew, Meera Elsa George, Advocates.

Judgment Text
A.K. Jayasankaran Nambiar, J.

1. As the Writ Appeals and Writ Petition involve a common issue, they are taken up together for consideration and disposed by this common judgment.

2. The issue that arises for consideration in these cases is the legality of a selection process carried out for selection of a member of the Kerala State Electricity Regulatory Commission [hereinafter referred to as the “KSERC”]. Although the selection process is ongoing, a challenge to the same has been laid by persons who have been excluded from the selection process at various stages on account of the shortlisting criteria fixed by the Selection Committee. While the petitioner in W.P.(C).No.19531 of 2022 is aggrieved by his exclusion on account of his not satisfying the age requirement specified in the shortlisting criteria, the appellant in W.A.No.718 of 2022 and the 2nd appellant in W.A.No.673 of 2022 are those who are aggrieved by their exclusion in the subsequent stages of shortlisting, with the latter being excluded on account of non-production of ACR/VC [Annual Confidential Report/Vigilance Clearance] in relation to his previous employment, which too was a criteria adopted by the Selection Committee for shortlisting. The brief facts necessary for disposal of these cases are as follows:

By a notification dated 22.2.2021, the State Government had notified the vacancy to the post of member, KSERC, and had invited applications from those who possessed the qualifications specified in the notification. The petitioner/appellants [save the 1st appellant in W.A.No.673 of 2022, which is an Association] responded to the said notification, and it is the admitted case that the said persons satisfied the eligibility requirements for applying for the post in question. It would appear that when the selection process commenced, W.P. (C).No.9483 of 2021 was preferred by the appellant in W.A.No.718 of 2022, alleging a non-adherence to the proper procedure for selection. In that writ petition, a counter affidavit was filed by the State Government detailing the steps taken by them in connection with the selection process, and taking note of the said counter affidavit, the writ petition was dismissed as evident from Ext.P4 judgment produced in W.A.No.718 of 2022. Thereafter, the selection process continued with the Selection Committee resorting to a shortlisting procedure so as to bring down the list of candidates from the initial number of 95 to 42, 28, 17 and eventually, 5. The petitioner in W.P.(C).No.19531 of 2022 is a person who did not make it to the list of 42, since he did not satisfy the shortlisting criteria of age, in that, he had crossed the age of 61 as on 23.12.2021. The 2nd appellant in W.A.No.673 of 2022 is a person who, although made it to the list of 42 and thereafter to the list of 28, did not make it to the list of 17 inasmuch as he did not satisfy the shortlisting criteria of candidates who had produced their ACRs/VCs in relation to their previous employment. The appellant in W.A.No.718 of 2022 is a person who made it to the list of 17 but was thereafter excluded from the list of 5 persons who were called for physical interview.

3. As already noticed, it was on account of their exclusion at various stages of the shortlisting procedure that the petitioner/appellants approached the writ court. In the judgment impugned in the Writ Appeals, the learned Single Judge dismissed the writ petitions inter alia on the ground that the petitioner having participated in the selection process could not challenge it, that there was no merit in the allegations raised in the writ petition with regard to the manner of conduct of the selection, and lastly that an Association could not file a writ petition on behalf of its members. The separate judgments of the learned Single Judge in the writ petitions are impugned in W.A.No.673 of 2022 and W.A.No.718 of 2022 respectively. W.P.(C).No.19531 of 2022 was directed to be posted along with the aforesaid Writ Appeals by a learned Single Judge of this Court taking note of the similarity in the issue that was being considered. It is thus that these mattes are before us today.

4. We have heard Sri.George Poonthottam, the learned senior counsel duly assisted by Sri.A.L. Navaneeth Krishnan, the learned counsel for the appellants in W.A.No.673 of 2022 and W.A.No.718 of 2022, and Sri.Jaju Babu, the learned senior counsel for the petitioner in W.P.(C).No.19531 of 2022. We have also heard Sri.Asok M. Cherian, the learned Additional Advocate General, duly assisted by Sri.Antony Mukkath, the learned Government Pleader for the official respondents of the State and Sri.Santhosh Mathew, the learned counsel for Sri.B.Pradeep, the respondent in all these cases.

5. On a consideration of the rival submissions, we find that the issue projected in these cases lies in a very narrow compass. We are essentially called upon to decide the legality of the shortlisting procedure adopted by the Selection Committee while identifying a candidate to be selected for the post of member in the KSERC. At the very outset, we might clarify that under ordinary circumstances, we would not have entertained a petition challenging a selection process at a stage when the selection process is underway and yet to be completed. On the facts of these cases, however, we felt, after perusing the files made available before us by the Additional Advocate General, that there was an illegality occasioned at the instance of the Selection Committee, while shortlisting candidates from the list of 28, which they had drawn up from the original list of more than 95 candidates. In other words, while we have not come across any material that would suggest that there was any flaw in the shortlisting criteria adopted for trimming the list from 95 to 42, and thereafter to 28, we do find an irregularity in the shortlisting criteria adopted and implemented while trimming the list further to 17. The petitioner in W.P.(C).No.19531 of 2022 is a person who was excluded on an application of the shortlisting criteria of age, whereby, the Selection Committee had decided that out of the candidates found eligible, it would be desirable to consider only those candidates who had at least five years of tenure in the post of member, KSERC, if appointed. It was in that context that the Selection Committee, at its meeting on 23.12.2021, decided to fix the maximum age limit as 54 to 61 years, meaning thereby that those above 61 years would not be considered for further shortlisting. Inasmuch as we do not find the said criteria adopted by the Selection Committee to be irrelevant or irrational when viewed against the object of the selection process itself, we do not find any merit in the said writ petition, and consequently we dismiss the same.

6. As regards the case of the 2nd appellant in W.A.No.673 of 2022 and the appellant in W.A.No.718 of 2022, we find that the former was a person who was excluded on account of the fact that he had not produced a copy of the ACR/VC in relation to his previous employment along with his application. The latter is a person who had produced the said certificate but did not make the cut to the list of 5 from the list of 17. If we find, as we do, that the insistence on an ACR/VC for the purposes of shortlisting was illegal and thereby the said shortlisting criteria is held to be bad, then it follows that the selection process would have to be put back to the stage at which the list of 28 persons was drawn up and proceeded afresh from that stage. The consequence of that would be that the exclusion of the appellant in W.A.No.718 of 2022 would also have to be set aside, and his candidature would have to be considered along with the others in the list of 28.

7. The reason why we find the shortlisting criteria of production of ACR/VC to be illegal is that although the notification calling for applicants had clearly indicated therein that the applications to be submitted by the candidates had to be accompanied by the ACR/VC in relation to their previous employment, the said requirement was not treated as an essential requirement while considering the validity of applications received at the first instance. This aspect is evident from the Minutes of the meeting of the Selection Committee dated 28.12.2021, where, after noticing that many applicants had not furnished their ACRs/VCs along with the applications, the members of the Committee were inclined to take a lenient view on the matter, and defer a formal decision thereon to the next meeting of the Committee. The Minutes of the said meeting was thereafter approved at the next meeting held on 1.4.2022 and even those candidates who had not supported their applications with copies of their ACRs/VC were considered in the selection process. It is clear therefore that the requirement of furnishing the ACR/VC along with the applications was dispensed with by the Committee,which did not treat it as a mandatory requirement for the purposes of continuing with the selection process. That being the case, we feel that the said criteria could not have been re-introduced and fixed as a shortlisting criteria without giving an opportunity to the applicants to produce such ACR/VC at the stage of the selection process when it was sought to be re-introduced. It would also be apposite at this stage to notice the specific contention of the 2nd appellant in W.A.No.673 of 2022 that, as a matter of fact, his employer had sent the ACR/VC pertaining to him, to the Selection Committee, a contention that is disputed by the respondents.

8. The law relating to the legality of the shortlisting procedure is fairly well-settled through a line of judgments of the Supreme Court. We deem it necessary to refer to only the judgment in B. Ramakichenin alias Balagandhi v. Union of India and Others – [(2008) 1 SCC 362], where, the Court, after referring to the earlier decisions in Madhya Pradesh Public Service Commission v. Navnit Kumar Potdar and Another - [(1994) 6 SCC 293] and Government of Andhra Pradesh v. P. Dilip Kumar and Another - [(1993) 2 SCC 310], observed as follows:

“16. Even if there is no rule providing for short-listing nor any mention of it in the advertisement calling for applications for the post, the selection body can resort to a short-listing procedure if there are a large number of eligible candidates who apply and it is not possible for the authority to interview all of them. For example, if for one or two posts there are more than 1000 applications received from eligible candidates, it may not be possible to interview all of them. In this situation, the procedure of short-listing can be resorted to by the selection body, even though there is no mention of shortlisting in the rules or in the advertisement.

17. However, for valid short-listing there have to be two requirements - (i) it has to be on some rational and objective basis. For instance, if selection has to be done on some post for which the minimum essential requirement is a B.Sc. degree, and if there are a large number of eligible applicants, the selection body can resort to short-listing by prescribing certain minimum marks in B.Sc. and only those who have got such marks may be called for the interview. This can be done even if the rule or advertisement does not mention that only those who have the aforementioned minimum marks, will be considered or appointed on the post. Thus the procedure of short-listing is only a practical via media which has been followed by the courts in various decisions since otherwise there may be great difficulties for the selecting and appointing authorities as they may not be able to interview hundreds and thousands of eligible candidates; (ii) if a prescribed method of short-listing has been mentioned in the rule or advertisement then that method alone has to be followed.”

9. Taking cue from the said observations of the Supreme Court, we find that although we have not been shown any material that would suggest that the shortlisting criteria followed by the Selection Committee to trim the list of 95 persons to 42 and thereafter to 28, suffers from any illegality, we are of the view that, while adopting the criteria of production of ACR/VC, in relation to the previous employment, to trim the list from 28 to 17, the Selection Committee occasioned an illegality because they had dispensed with the requirement of production of ACR/VC at an earlier stage of the selection process. This is not to say that the Selection Committee cannot look into the ACR/VC in relation to the previous employment for the purposes of further shortlisting. We only say that the said shortlisting procedure can be adopted only after affording an opportunity to the candidates to produce the ACR/VC within a reasonable time. Alternatively, if the Selection Committee so feels, they can also proceed to interview all the 28 candidates afresh, for the purposes of

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identifying one candidate for the post in question. The course of action to be followed is a matter that lies within the discretion of the Selection Committee, and we do not wish to hold the Committee to any particular procedure. 10. In the result, we allow the Writ Appeals, to the limited extent above, by setting aside the impugned judgment of the learned Single Judge as also the shortlisting done by the Selection Committee after drawing up the list of 28 persons, and direct the Selection Committee to either proceed with a physical interview of all the persons in the list of 28, to identify the candidate for the post notified, or to proceed with the shortlisting procedure based on production of ACR/VC in relation to the previous employment, after giving those persons in the list of 28, whose ACRs/VCs have not been obtained, a reasonable opportunity to produce the same. The Selection Committee shall proceed with the selection process from the stage of drawing up the list of 28 persons as directed above. 11. We make it clear that we have interfered with the selection process at this stage only because we noticed a glaring irregularity in the same. We felt therefore that it would be in better public interest that the irregularity is set right at this stage rather than await a challenge to the same after the selection process is completed. The Writ Appeals and the Writ Petition are disposed as above.