IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 355 of 2007()
1. COCHIN PORT TRUST,
... Petitioner
2. STAFF SELECTION COMMITTEE FOR
3. DEPARTMENTAL PROMOTION COMMITTEE FOR
4. SECRETARY,
Vs
1. S. MOHANDAS,
... Respondent
For Petitioner :SRI.A.M.SHAFFIQUE (SR.)
For Respondent :SRI.N.SUKUMARAN
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :20/07/2009
O R D E R
P.R.RAMAN & P.BHAVADASAN, JJ.
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W.A.No. 355 of 2007
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Dated this the 20th July, 2009
J U D G M E N T
Raman, J.
The first appellant is the first respondent in W.P.(C)
No.25078 of 2006, which is the Cochin Port Trust. The writ
petitioner, first respondent herein, who was working as Welfare
Officer in the Cochin Port Trust, aspiring for promotion to the post
of Industrial Relations Officers, which is the next higher post,
applied for the same. There was no other competing candidate.
He was called for the interview by the Departmental Promotion
Committee, but virtually he was not selected, which was the
challenge in the writ petition. In the hierarchy of the posts in
the Welfare Department, the Welfare Inspector’s Post is perhaps
the initial post available and the next promotion post is that of
Welfare Officer and then the Industrial Relations Officer. The
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method of appointment of Industrial Relations Officer is either by
way of promotion by selection or in the absence of suitable
candidates by direct recruitment. The qualification prescribed for
the post of Industrial Relations Officer is as follows:-
“Master’s Degree in social work/Labour
welfare/Personnel Management/Industrial Relations
or Degree with Diploma in any one of the above
subjects or Degree in Law with Labour laws as an
elective subject.
Exp: 5 years in a managerial capacity dealing
with Labour.
Desirable : Knowledge of Malayalam.”
Ext.P1 is the copy of the extract of recruitment rules relevant for
our purpose. The method of appointment prescribed in column
11 of Ext.P1 is promotion failing which direct recruitment. In
column 12, it is also stated that the promotion has to be made
from Welfare Officer with three years regular service in the grade.
As a matter of fact, the petitioner’s work as Welfare Officer was
quite satisfactory. But, when the Departmental Promotion
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Committee met, he was interviewed and found that he was not
suitable to be selected for the post of Industrial Relations Officer.
2. The petitioner challenged the decision of the
selection committee on several grounds. He contended that this
was for the first time that an interview was held for the post of
Industrial Relations Officer and that unless the recruitment rules
so provides for conducting the interview, normally no such
interview shall be insisted upon. He also relied on Government
of India’s Circular, Ext.P3. According to him, in his case alone,
interview was held, which is indicative of the malafide nature of
the selection. The learned Single Judge found that so long as
the post is a selection post and in the absence of anything to
show that there is a better method of selection and the
Departmental Promotion Committee itself having the power to
regulate their own procedures, it cannot be said to be beyond its
powers in the matter of conduct of an interview, especially
taking note of the fact that it is a selection post. Therefore, the
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learned Single Judge accepted the stand of the Cochin Port Trust
that the Departmental Promotion Committee shall not be
deprived of its basic authority to take such steps as are necessary
to assess the suitability of the candidates or the comparative
merit of the candidates, unless such a step or procedure is
expressly prohibited by the law that governs the selection.
Turning to the next contention as to whether the interview held
by the Departmental Promotion Committee, holding that the
petitioner was unsuitable, suffers from any legal infirmity, the
learned Single Judge proceeded to refer to the particulars
furnished in the form of a statement which showed the C.R.
Gradings of the petitioner for the past several years. In 2003-
2004, he was graded “excellent”, in 2004-2005 and in 2005-
2006, he was graded “very good”. Thus, his performance as a
Welfare Officer was not merely average, but beyond average. He
also possessed the requisite qualification, viz., Basic Degree and
LL.B. with Labour Law as the elective subject. In such
circumstances, the learned judge further probed into the matter
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to find whether there were any convincing reasons for supporting
the finding of the Departmental Promotion Committee that he
was not suitable, and in that regard, it was held that unless
there exists materials to hold that he does not deserve to be
selected for the post, it is rather difficult to accept the finding
that he is not suitable. It is based on the interview alone that
he was denied promotion to the next higher post. According to
the learned Single Judge, though the interview was held on
5.8.2006 and 8.8.2006, as evidenced by Exts.R1(a) and R1(b)
produced in the case, there was nothing to show what transpired
at the time of interview and the manner in which the
Departmental Promotion Committee assessed the suitability of
the candidate by means of the interview. Files were perused
which did not show any indication as to what transpired at the
time of interview. It does not show the modus employed by the
members of the Departmental Promotion Committee. It was
not known from the files as to whether any questions were put to
interview the candidate, whether he answered all, what
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answers he had given, and whether any other technic was
employed to assess his ability. Therefore, in such
circumstances, the learned Single Judge found that the
Departmental Promotion Committee has only made a subjective
satisfaction and did not interview the candidate and the
conclusion was made in an objective manner. The learned
Single Judge even went to hold that the interview was only a
farce. In those circumstances, the interview was held to be
infirm and arbitrary and a declaration was made to that effect.
The learned Single Judge also directed the respondents to
forthwith promote the petitioner as Industrial Relations Officer.
3. Sri.Jayasankar A.K., the learned counsel
appearing for the appellant, Cochin Port Trust, challenges the
judgment on many grounds. He referred to Ext.R1(a)
proceedings of the Departmental Promotion Committee and
contended that the committee has perused the service particulars
and CR dossiers of the candidate available in the feeder category.
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Only the petitioner, Sri.S.Mohandas, has fulfilled the requirement
of three years experience as Welfare Officer, and hence he fulfills
the minimum required qualifications and experience in the feeder
category. Therefore, the Departmental Promotion Committee
decided to interview him, in order to assess the suitability for
Industrial Relations Officer. Thereafter, on the next day, a Board
meeting was fixed and the petitioner was interviewed and
proceedings were marked as Ext.R1(b). In that proceedings, it
is observed that there was only one post of Industrial Relations
Officer and the Port Trust has to discharge very vital nature of
duties including dealing with all trade union matters, maintenance
of cordial industrial relations, dealing with employees grievances,
representing Port Management before conciliation officers,
holding bilateral discussions with unions on various charter of
demands of union, overall supervision of welfare, etc. and that
the Departmental Promotion Committee members interviewed
the candidate with a view to assess his abilities, with reference
to the nature of the duties as above, and the qualities to be
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possessed by a candidate. After perusal of the service records,
CR dossiers and personal interview, the committee concluded that
the petitioner was not suitable for promotion to the post of
Industrial Relations Officer. Therefore, the counsel contends
that the interview was not a mere farce, but the candidate was
assessed with reference to the qualities and attributes to be
possessed, having due regard to the post to which selection is
made, it is only thereafter that the committee found him to be
unsuitable, and hence in such a situation, the decision of the
expert could not have been interfered with by this Court. He
also contended that the Departmental Promotion Committee is
not required to give any reason and the mere fact that the
Departmental Promotion Committee did not express in so many
words, the reasons for not selecting the petitioner, will not
vitiate the interview also. According to him, high officials of the
Port Trust are included in the Departmental Promotion
Committee and in the absence of any other candidate competing
for selection, there cannot even be a slightest allegation of
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arbitrariness against the petitioner, and there is nothing for any
comparative assessment of one candidate over the other. The
only solution for the Cochin Port Trust, in such circumstances,
would be go for direct recruitment. Therefore, according to him,
selection conducted was in an objective manner. True that it
cannot be discernible from the files as to what were the questions
and what were the answers. But in the absence of anything to
show that there was a mala fide in the matter of selection, the
decision rendered by such a high body, that too, after perusing
the service records, CR dossiers etc. along with his performance
in the interview, would leave the matter there.
4. The learned counsel appearing for the appellant
placed reliance on the decision of the Supreme Court in Major
General I.P.S Dewan v. Union of India and Others (1995
(3) SCC 383); State of Rajasthan v. Sriram Verma and
Another (1996 (6) SCC 493); Nutan Arvind (Smt) V. Union
of India and another (1996 (2) SCC 488) and Ravinder v.
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State of Haryana (1995 Supp (4) SCC 447). He contended that
even if the proceedings of the Departmental Promotion
Committee are infirm, this Court could not have directed the
petitioner to be promoted.
5. Per contra, the learned senior counsel appearing
for the first respondent-petitioner, supporting the judgment of
the learned Single Judge and placing reliance on the decision
reported in Badrinath v. Government of Tamil Nadu and
others (2000 (8) SCC 395), contended that in appropriate
cases like this, this Court is not powerless and it is only
appropriate that the direction to promote the candidate was
rightly given by the learned Single Judge.
6. We have heard the parties at length. The
admitted facts are that the first respondent-writ petitioner is fully
qualified for the post of Industrial Relations Officer, having
possessed all the requisite experience for the post. He had
excellent service records as a Welfare Officer. His immediate
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superiors who had assessed him and graded him periodically has
rated him excellent and very good in the past three years of his
service. The Departmental Promotion Committee, no doubt,
consists of very high officials and there is no mala fides on the
part of the Departmental Promotion Committee in not selecting
the petitioner. But it is seen in Ext.R1(b) that the three factors
based on which the Departmental Promotion Committee came to
the conclusion that he was not suitable for the post are his
service records, his CR dossiers and interview. When
admittedly the earlier two, his service records and CR dossiers
have nothing to indicate any thing against him, and as there are
positive grades given in his favour, those materials could not
have gone against him. The only other factor which remain for
holding him as not suitable can only be the interview. The
various qualities and attributes to be possessed for the post of
Industrial Relations Officer, no doubt, has been stated by the
Departmental Promotion Committee in its proceedings. But are
they different from the post of Welfare Officer? Both posts are
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in the same department and the Welfare Officer’s post is a feeder
category for promotion. There is only one channel of promotion
and further the posts of Welfare Inspector, Welfare Officer and
Industrial Relations Officer are all in the same channel. In such
circumstances, while assessing the qualities or attributes to be
possessed in the given said of facts, one should satisfy that
based on records produced the qualities to be possessed are
objectively assessed and they are different from the post he held.
In this case, the marks awarded to him by the Departmental
Promotion Committee is not known. If, as a matter of fact, he
had participated along with other candidates, necessarily, a
comparative merit will have to be assessed, and it could be done
only by awarding marks to different candidates who had
appeared for the interview. If the petitioner had possessed
marks below the same, probably he should have been found to be
unsuitable. Unsuitability itself is a negative factor. Therefore,
when there is only one candidate and to say that he is unsuitable,
something more should have been available on the file to sustain
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the conclusion. The view taken by the learned Judge in such
circumstances does not call for any interference. Thus after
setting aside the decision made by the Cochin Port Trust, the
learned Single Judge has directed the petitioner to be promoted.
Normally, this could not have been done. Even assuming in a
rare case it could have been done, it should be shown that this
is a rare case. In all cases whereever the promotion is denied, it
will be contended as a rare case.
7. In State Bank of India and others v. Mohd.
Mynuddin (AIR 1987 SC 1889), it was held by the Apex Court
that whenever promotion to a higher post is to be made on the
basis of merit, no officer can claim promotion to the higher post
as a matter of right by virtue of seniority alone with effect from
the date on which his juniors are promoted. It is not sufficient
that in his confidential reports it is recorded that his services are
‘satisfactory’. An officer may be capable of discharging the
duties of the post held by him satisfactorily but he may not be fit
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for higher post. Before any such promotion can be effected it is
the duty of the management to consider the case of the officer
concerned on the basis of the relevant materials. If promotion
has been denied arbitrarily or without any reason, ordinarily the
Court can issue a direction to the management to consider the
case of the officer concerned for promotion, but it cannot issue a
direction to promote the officer concerned to the higher post
without giving an opportunity to the management to consider the
question of promotion. But the Court is not by its very nature
competent to appreciate the abilities, qualities or attributes
necessary for the task, office or duty of every kind of post in the
modern world and it would be hazardous for it to undertake the
responsibility of assessing whether a person is fit for being
promoted to a higher post which is to be filled up by selection. It
is only when the process of selection is vitiated on the ground of
bias, mala fides or any other similar vitiating circumstance, other
considerations will arise.
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8. A Division Bench of this Court in Kerala
Agricultural University and another v. V.K.Gopinathan
Unnithan & another (1996 (1) KLJ 257) held that the Court
cannot issue a writ of mandamus directing the appointment of a
candidate who is included in the select list, following the decision
of the Apex Court in State of Kerala v. A.Lakshmikutty & Others
(AIR 1987 SC 331).
9. In this case, it cannot be said that there was any
deliberate exclusion of the petitioner from being considered.
Despite the fact that he was the only candidate available, the
Departmental Promotion Committee, in its proceedings on the
first day, is satisfied about the qualifications possessed by him
and decided to interview him. Petitioner has no case of any
personal malice against any of the Board members constituting
the Departmental Promotion Committee. It is only because of
absence of records to conclude the objective assessment made
that this Court has interfered in the matter. If that be so, this
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Court ought to have left the matter to the appellant herein for
interviewing the candidate among qualified hands and then to
take a decision. The second part of the direction contained in
the judgment is therefore set aside.
In the result, the appeal is partly allowed. No costs.
P.R.RAMAN, JUDGE
P.BHAVADASAN , JUDGE.
nj.