Judgment
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WPC 17694/2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE BASANT BALAJI WEDNESDAY, THE 31ST DAY OF JANUARY 2024 / 11TH MAGHA, 1945 WP(C) NO. 17694 OF 2023 PETITIONER/S:
D'CRUZ ANISHA, D.* [AGED 39 YEARS] D/O.DARIOUS D'CRUZ, KARUKASSERIL HOUSE, KULANGARA BHAGOM, PANAMANA, KOLLAM DISTRICT , PIN – 691583 *(AGE OF THE PETITIONER IS CORRECTED AS "34" IN THE CAUSE TITLE AND AFFIDAVIT OF WPC AS PER ORDER DATED 06-07-2023 IN IA 1/2023)
BY ADVS. A.ARUNA, JISHA SHAJI RESPONDENT/S:
1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF INDUSTRIES, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2 KERALA MINERALS AND METALS LIMITED, REPRESENTED BY THE MANAGING DIRECTOR, SANKARAMANGALAM, CHAVARA, KOLLAM, PIN - 691583 3 THE MANAGING DIRECTOR KERALA MINERALS AND METALS LTD., SANKARAMANGALAM, CHAVARA, KOLLAM, PIN - 691583 4 THE CHAIRMAN KERALA MINERALS AND METALS LTD., SANKARAMANGALAM, CHAVARA, KOLLAM, PIN - 691583 5 CENTRE FOR MANAGEMENT DEVELOPMENT REPRESENTED BY ITS DIRECTOR, THAYCAUD, THIRUVANANTHAPURAM, PIN - 695014 6 THE DIRECTOR CENTRE FOR MANAGEMENT DEVELOPMENT THAYCAUD, THIRUVANANTHAPURAM, PIN - 695014
BY SC, SRI S. CHANDRASEKHARAN NAIR, FOR R5 AND 6 OTHER PRESENT:
GP SRI. TONY AUGUSTINE, SC SMT LATHA ANAND THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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WPC 17694/2023
JUDGMENT (Dated this the 31st day of January 2024)
A Notification was issued by the 5th respondent as per Ext.P1 for filling up of vacancy on contract basis for one year of ‘Legal officer’ in the 2nd respondent company. The petitioner submitted an application pursuant to Ext.P1 and she was issued with Ext.P3 Admit Card for written examination on 27.4.2023. Thereafter, on 2.5.2023 the petitioner received an email from the 5th respondent to appear for an interview on 9.5.2023. The petitioner appeared for the interview and submitted all required documents/ certificates for verification and after verification, the petitioner appeared before the interview board, comprising of 3 persons.
2. On 17.5.2023, the petitioner received the appointment order, through email from the 5th respondent, which is produced as Ext.P5 and the petitioner promptly replied, accepting the
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WPC 17694/2023 appointment to the post of legal officer evident from Ext.P6. On 18.5.2023, the petitioner presented herself before the 3rd respondent and after completing the formalities, an endorsement was made by an officer in charge which directs the staff of the 2nd respondent to arrange for further action which can be seen from Ext.P7. Immediately, the petitioner was prevented from joining the office by the 3rd respondent, citing the reason that the 4th respondent wanted to verify her certificates, and she would be informed within 2 days. Thereafter, nothing was heard and therefore, she filed Ext.P8 representation to the 3rd respondent and Ext.P9 representation to the 6th respondent seeking permission to join the post. Another representation was also filed on 26.5.2023 to the 3rd respondent which was accepted by the Deputy Manager at the MD’s office.
3. In the meanwhile, the 2nd respondent has issued a notification dated 6.11.2020 for recruiting regular hands to the
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WPC 17694/2023 post of legal officer. The petitioner also applied to the said post pursuant to Ext.P12 notification and the proceeding for recruitment for regular hand is still in progress. Therefore, she has approached this court for a declaration that the petitioner is entitled to join, work and continue as a legal officer as directed in Ext.P5 appointment order. A further declaration is also sought that she is entitled to get salary from 18.5.2023 onwards and interest at the rate of 18% p.a. from 18.5.2023 till disbursement. Yet another prayer of the petitioner is for a declaration that she is entitled to get regularised in the service as legal officer with all benefits.
4. A counter is filed by respondent Nos.2 to 4 controverting the allegations in the Writ Petition. The main contention raised is that Ext.P5 is issued by 5th respondent and not by the 2nd respondent. There is no privity of the contract between the petitioner and 2nd respondent and they are not bound to appoint the petitioner as she has no legal right to claim
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WPC 17694/2023 appointment. On the approval granted by the Board of Directors of the respondent company, the services of 5th respondent was availed for getting manpower support pursuant to Memorandum of Understanding (MOU) entered into between respondent Nos.2 and 5. As per the MOU, the 5th respondent was to provide manpower support to the 2nd respondent. The 2nd respondent was to pay the 5th respondent a consolidated amount including the expenses for payment of remuneration/salary to the manpower supplied. The cost of remunerating the manpower is fixed by 5th respondent and is to be paid by 2nd respondent along with the professional fee due to the 5th respondent.
5. The serving Legal Officer of the company was about to retire from the service of the company on 30.4.2023, which was notified on 6.11.2020, but it could not be taken forward due to the direction by the Government to refer all the recruitments to the newly constituted Public Enterprise
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WPC 17694/2023 Recruitment and Selection Board. In such circumstances, it was decided to seek the services of the 5th respondent for manpower support as a stop-gap arrangement for filling up post of a Legal Officer.
Accordingly, Ext.R2(c) e-mail communication was sent as directed by the Board of Management. Consequently, Ext.R2(d) work order was issued for recruiting legal officer on a temporary period of one year. The appointment order was issued by the 5th respondent and not by the 2nd respondent, and it does not give any legal obligation to the 2nd respondent to offer the appointment to the petitioner. The work order was given to the 5th respondent for manpower support for filling up the post of legal officer on a stop-gap arrangement, as the serving legal officer was about to retire on 30.4.2023. The company had already made arrangements by giving charge of the legal section to the company Secretary, who is serving at the AGM level and who also possesses a Degree in law. The company is not performing
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WPC 17694/2023 well in terms of profit for the last few months and implemented several measures to control the cost of production. As such, the company has decided to give additional charge to another LLB- qualified officer to look into the company’s legal section and not to appoint a contract employee as a legal officer. The petitioner cannot claim any right for regularisation as steps have already been initiated for appointment to the regular post of legal officer.
6. A reply affidavit is filed to the counter filed by respondent Nos.2 to 4. It is stated that Ext.P1 recruitment is made through the 5th respondent for the 2nd respondent on the basis of the MOU signed between respondents Nos.2 and 5. Clause 10 of the Ext.R2(a) would show that the approval of the Managing Director or an authorized officer of KMML is required before finalising the list of candidates. It is after the 2nd respondent’s approval, Ext.P5 list is issued. Therefore, the 2nd respondent cannot take a stand that they are not bound by
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WPC 17694/2023 Ext.P5. The 2nd respondent has appointed persons to the post of Civil Engineer and Marketing Executive during the same time, and the refusal is only with respect to the petitioner.
7. An additional counter affidavit is filed by respondent Nos 2 to 4 controverting averments in reply affidavit to which another reply is filed by the petitioner producing Ext.P13, which is the official Facebook post of KMML on 11.8.2023 showing that the company earned much profit and dividends are also given.
8. Heard.Smt.Aruna A. for the petitioner, the Government Pleader for the 1st respondent, standing counsel, Smt.Latha Anand for respondent Nos.2 to 4 and Shri .S.Chandrasekharan Nair for respondent Nos. 5 and 6.
9. The main contention raised by the counsel for the petitioner is that after issuance of Ext.P5 Appointment Order to the petitioner on 17.5.2023, she accepted the same on the very
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WPC 17694/2023 same day as per Ext.P6 and went to the office of the 2nd respondent on 18.5.2023. After verification of certain documents, the petitioner was allowed to join as per endorsement in Ext.P7 and while the procedures being done abruptly the petitioner was directed to come after 2 days as the 4th respondent wants to verify the details of the certificates of the petitioner. She further submits that it is due to the facts the trade unions of the 2nd respondent affiliated the Ruling Party of the State and objected to the appointment of the petitioner as the father of the petitioner was officiating post of the General Secretary of another trade union belonging to the opposite party. It is acting on the said whims and fancies of the members of the trade union affiliated to the ruling party that she is denied appointment, though she became successful in the written and the interview and became Rank no.1. She further argues that once the appointment is done and it is accepted by her and acted upon by the respondents by permitting her to join the post by
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WPC 17694/2023 making endorsement on Ext.P7, the respondent Nos.2 to 4 cannot now turn around and deny joining duty.
10. The counsel for the petitioner relies on judgments of apex court in The Director of Indian System of Medicine and another etc. v. Dr.Susmi C.T. and another etc. (2021 (9) SCR 573) and also Duglus Charley v. Kerala State Road Transport Corporation [(2021)2 KLT 788].
11. The standing counsel appearing for respondents submits that a perusal of Ext.P5 shows that the appointment order is issued by the 5th respondent and not by the 2nd respondent. Therefore, there is no privity of contract between the petitioner and the 2nd respondent. Ext.P5 is only an offer, as she finds a place in the rank list. The 2nd respondent is not bound to accept the petitioner as a legal officer as there is no contract nor a communication directly to the petitioner by the 2nd respondent. A decision was taken not to engage any
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WPC 17694/2023 contract employee to the post of Legal Officer due to the reduction of profit of the company and also on the fact that the recruitment to the regular post is in the pipe line as per Ext.P12.
12. The counsel for respondent Nos.2 to 4 relied on a judgment of the apex court in S.S. Balu v. State of Kerala and others [(2009) 2 SCC 479].
13. Ext.P1 notification is issued by the 5th respondent on behalf of the 2nd respondent. General instruction (1)shows that the selected candidate will be placed at KMML through Centre for Management Development. Pursuant to Ext.P1, the petitioner attended written exam on 27.4.2023 and also personal interview on 9.5.2023. The petitioner was issued with Ext.P5 offer of appointment by the 5th respondent. On the basis of Ext.P5, the petitioner replied expressing her willingness to accept the job and on 18.5.2023, she went to the office of the 3rd respondent and was allowed to join duty, which
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WPC 17694/2023 can be seen from the endorsement on Ext.P7 itself, which reads as follows:
“DM (P&A/DP) Please arrange for further action.” 14. It is after accepting the petitioner to the post of Legal Officer on contract basis that the petitioner was prevented from occupying the post. Therefore, it can be safely concluded that the petitioner was accepted as Legal Officer by respondent Nos.2 to 4 as Legal Officer on contract basis for one year. After having accepted the petitioner as legal officer on contract basis, respondent Nos.2 to 4 cannot deny her occupying the post and continuing as legal officer for a term of one year on contract basis. The contentions of respondent Nos.2 to 4 that Ext.P5 appointment letter is issued by 5th respondent that the 2nd respondent has no privity of contract, cannot stand as the 5th respondent is only a manpower agency for conducting
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WPC 17694/2023 examination for recruiting manpower to the office of the 2nd respondent. The principal employer is the 2nd respondent. This is evident from Ext.R2(a) MOU between respondent Nos.2 and 5. Ext.R2(a) would show that as per the terms of MOU for the assignment undertaken by the 5th respondent, a total amount of Rs.28,67,400/- including GST is paid to the 5th respondent by the 2nd respondent. This amount is for conducting examinations and interviews and to provide manpower as required by the 2nd respondent in different posts, including the post of Legal Officer. Ext.R2(d) is the work order regarding the engagement of manpower through CMD -Legal officer. It specifies the nature of work to recruit one legal officer through the Centre for Management Development (CMD) initially for a period of one year. It also states that there are 2 phases, (i) the 1st covers all activities till recruitment and (ii) administration of support manpower to KMML. The contract value of the work shows as 5,40,000/-. Thus, it can be seen that
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WPC 17694/2023 public money is involved to the tune of 5 lakhs of rupees for recruiting legal officers on a contract basis. Having spent so much money on recruitment of posts and having selected a candidate and after issuing an appointment order asking the candidate to join a particular day and after the candidate joined, the 2nd respondent cannot wash their hands stating that there is no privity of contract between the 2nd respondent and the petitioner and that they are under any obligation to give appointment to the petitioner as the entire exercise is done by the 5th respondent.
15. At this juncture, it is to be noted that Ext.P1 notification is issued on the basis of the decision of the Board of Directors of the 2nd respondent company which is evident from Ext.R2(c) which specifically states that the Board directs the Management to approach the Centre for Management Development for approval of recruitment to the post of legal officer. Once the Board has taken a decision to recruit a person,
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WPC 17694/2023 the Board alone can make changes to the recruitment process or deny appointment to the petitioner. To a specific query, put to respondents Nos.2 to 4 as to whether the Board has taken such a decision and the answer was negative. In such circumstances, it can only be held that the recruitment process right from Ext.P1 to P7 is in order and the respondents cannot deny the appointment of the petitioner on the ground that there is no privity of contract between the petitioner and the 2nd respondent and the contract is between the petitioner and 5th respondent.
16. The reliance placed by the counsel for the petitioner The Director of Indian System of Medicine (supra) is of much of relevance to the facts of this case. In paragraph 25 and 26 it reads as follows:
“25. The right of selected candidates (as those in a ranked list are) was explained by a five-judge bench of this court in Shankersan Dash v. Union of India in the following manner:
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WPC 17694/2023
"It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection, they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies, However, it does not mean that the State has the licence of acting in m arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted....."
26. It, is therefore, as against vacancies that are reported to the F KPSC, that the candidates have some semblance of a right. However, as far as those not reported are concerned, the candidates cannot claim a right per se. It is possible that in given situations, the state may be lethargic, or even may not wish to report vacancies. In such situations, undoubtedly the individuals awaiting appointment may have recourse to Judicial remedies. In such proceedings, the government or the concerned agency can furnish a suitable explanation. If that is found to be arbitrary, appropriate directions may follow. However, the procedure in all such cases, would be to consider the state’s response. In the present case, the KAT in this court’s opinion, entirely misdirected itself in making an inquiry whether vacancies had arisen in June 2017, with promotion of some Medical Officers. As the department explained, those promotions could not automatically result in vacancies, having regard to the fact that excess number of Medical Officers were on the rolls.
Furthermore, the KAT in our opinion, should not have inquired into the matter, once it was reported that all vacancies that could be reported, had been reported-as is evident from the reply filed by the department, as well as the tabular chart in it.”
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WPC 17694/2023
17. It is settled proposition of law that mere inclusion in the selection list does not conform appointment on the candidates an indefeasible right to get appointment, but coming into the facts of this case, it can be seen that after having figured in the rank list, the petitioner was issued with an appointment order and after endorsing on the appointment order by the competent officer to join duty thereby accepting as a legal officer, the respondent Nos.2 to 4 cannot thereafter, deny the appointment.
Therefore I am of the considered opinion that the petitioner is entitled to succeed in the petition and it is declared that the petitioner is entitled to join and work as a Legal Officer in the office of the 2nd respondent on the basis of Ext.Nos.P5 and P7.
In the result, the Writ Petition is allowed, and there will be a direction to respondent Nos.2 to 4 to permit the petitioner to
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WPC 17694/2023 join as Legal Officer for a period of one year from the date on which she enters into the office or till such time the recruitment as per Ext.P12 is finalized and a permanent Legal Officer is appointed, whichever is earlier.
The counsel for the petitioner submits the grounds raised by the petitioner regarding the regularisation may not be gone into and may be left open. This court has only gone into the question as to whether the contract appointment of the petitioner as the legal officer for one year is correct or not. Therefore, all those contentions regarding regularisation are left open.
Sd/- BASANT BALAJI JUDGE
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WPC 17694/2023
APPENDIX OF WP(C) 17694/2023
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE NOTIFICATION NO. CMD/KMML/03/23 DATED 29.03.2023 ISSUED BY THE 5TH RESPONDENT.
Exhibit P2 TRUE COPY OF THE ADVERTISEMENT WITH RESPECT TO THE POST OF LEGAL OFFICER PUBLISHED IN MALAYALA MANORAMA DAILY DATED 29.03.2023.
Exhibit P3 TRUE COPY OF THE ADMIT CARD DATED 18.04.2023 ISSUED TO THE PETITIONER BY THE 5TH RESPONDENT.
Exhibit P4 TRUE COPY OF THE E-MAIL DATED 02.05.2023 SENT BY THE 5TH RESPONDENT IN HER MAIL ID LETSLEXRANK@GMAIL.COM.
Exhibit P5 TRUE COPY OF THE APPOINTMENT ORDER NO.
CMD/DS/789/2023 DATED 17.05.2023 ISSUED TO THE PETITIONER BY THE 6TH RESPONDENT.
Exhibit P6 TRUE COPY OF THE E-MAIL DATED 17.05.2023 SEND TO THE PETITIONER AT 2.41 PM BY THE 5THRESPONDENT TOGETHER WITH ITS REPLY SENT BY THE PETITIONER AT 3.14 PM ON THE SAME DAY.
Exhibit P7 TRUE COPY OF THE EXT.P5 WITH THE ENDORSEMENT FROM THE OFFICE OF THE 3RD RESPONDENT.
Exhibit P8 TRUE COPY OF THE REPRESENTATION DATED 23.05.2023 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT.
Exhibit P9 TRUE COPY OF THE REPRESENTATION DATED 23.05.2023 SUBMITTED BY THE PETITIONER TO THE 6TH RESPONDENT.
Exhibit P10 TRUE COPY OF THE NON-INVOLVEMENT OFFENCE CERTIFICATE DATED 21.05.2023 ISSUED BY THE STATION HOUSE OFFICER, CHAVARA POLICE STATION.
Exhibit P11 TRUE COPY OF THE REPRESENTATION DATED 26.05.2023 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT.
Exhibit P12 TRUE COPY OF THE NOTIFICATION DATED 06.11.2020 ISSUED BY THE 2ND RESPONDENT.
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WPC 17694/2023 Exhibit P19 True coy of the newspaper report dated 23.06.2023 appeared in Malayala Manorama Exhibit P14 True copy of the communication no.
CMD/DS/863A/2023 dated 31.05.2023 issued by the 5th respondent Exhibit P15 True copy of the newspaper article appeared in Manorama daily on 26.07.2023 Exhibit P17 True copy of the news article appeared in The Hindu daily (online) on 13.08.2023 Exhibit P18 true copy of the relevant portion of the News Paper report dated 31.07.2023 downloaded from the Hindu online portal Exhibit P16 True copy of the relevant pages of the Annual Report 2021-22 of the Kerala Minerals and Metals Limited Exhibit P13 True copy of the newspaper report appeared in Manorama daily on 12.02.2023 Exhibit P13 True copy of the post shared in the official facebook page on 11.08.2023 of the KMML
RESPONDENT EXHIBITS
Exhibit R2(a) True copy of the undated MOU between the 2nd respondent and the 5th respondent Exhibit R2(b) True copy of the Government direction dated 26.07.2021 Exhibit R2(c) True copy of the email dated 07.03.2023 Exhibit R2(d) True copy of the work order dated 28.03.2023