ANOOP KUMAR v. VARIYATH KALATHINGAL HOUSE, TANUR P.O., MALAPPURAM DISTRICT, PIN

THE HONOURABLE MR.JUSTICE BASANT BALAJI TUESDAY, THE 6TH DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945 WP(C) NO. 28539 OF 2022 PETITIONER/S: 1 2 3 4 SHYJU AGED 39 YEARS S/O. PERUNDAN VYDYAN, MANAMMEL HOUSE, PANANGATTUR P.O., TANUR, MALAPPURAM DISTRICT, PIN - 676302 SAJEESH AGED 39 YEARS S/O. SOMASUNDARAN, PULIKKAPATTU HOUSE, OZHUR P.O., MALAPPURAM DISTRICT, PIN - 676302 SHEEBA AGED 41 YEARS W/O. RAJESH KUMAR, KURUKKANARI HOUSE, PARIYAPURAM, TANUR P.O., MALAPPURAM DISTRICT, PIN - 676302 SUMESH AGED 39 YEARS S/O. SHANMUKHAN V., AREEPARAMBIL HOUSE, PARIYAPURAM, EAST MUKKOLA, TANUR P.O., MALAPPURAM DISTRICT, PIN - 676302 BY ADV C.M.MOHAMMED IQUABAL RESPONDENT/S: 1 2 3 4 5 STATE OF KERALA REPRESENTED BY THE SECRETARY TO FINANCE DEPARTMENT, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 THE EMPLOYMENT OFFICER, TOWN EMPLOYMENT EXCHANGE, TIRUR P.O., MALAPPURAM DISTRICT, PIN - 676101 TANUR MUNICIPALITY TANUR P.O., MALAPPURAM DISTRICT, REPRESENTED BY ITS SECRETARY., PIN - 676302 THE SECREATRY TANUR MUNICIPALITY, TANUR P.O., MALAPPURAM DISTRICT, PIN - 676302 TANUR MUNICIPAL COUNSEL TANUR MUNICIPALITY, TANUR P.O., MALAPPURAM DISTRICT, REPRESENTED BY ITS CHAIRMAN., PIN - 676302 WPC 25418, 25602, 28539 & 35716/22 4 6 7 8 9 10 11 12 13 SHAMSUDHEEN.K S/O. MOHAMMED ABDUL KADER, KAIJIRAJYARAKATH HOUSE, TANUR P.O., MALAPPURAM DISTRICT, PIN - 676302 SHAMSUDHEEN S/O. JAFFER MUSALIAR, PANATTIL HOUSE, PANANGATTUR P.O., PARIYAPURAM, MALAPPURAM DISTRICT, PIN - 676302 IRSHAD K.P S/O. ISMAIL, KACHEENTEPURAKKAL HOUSE, TANUR P.O., MALAPPURAM DISTRICT, PIN - 676302 VAISAKHAN S/O. SEKHARAN, TAILAPARAMBIL HOUSE, CHIRAKKAL, TANUR, MALAPPURAM DISTRICT, PIN - 676302 RAFEEQ K.P. S/O. IBRAHIMKUTTY, OOTILANTEPURACKAL HOUSE, EDAKADAPPURAM, TANUR P.O., MALAPPURAM DISTRICT, PIN - 676302 NAJUMU .M W/O. MOIDEEN KOYA, MULLAKANEKATH HOUSE, TANUR P.O., MALAPPURAM DISTRICT, PIN - 676302 NARAYANAKUTTY.T S/O. APPUKUTTY, THARAYIL HOUSE, NEDUVA P.O., PARAPPANANGADI, MALAPPURAM DISTRICT, PIN - 676303 IBRAHIM.K S/O. MOIDEENKUTTY, KALATHIL HOUSE, TANUR POST, (VIA) KATTILANGADI, TANUR, MALAPPURAM DISTRICT, PIN - 676302 BY ADVS. HARISH R. MENON, SC, TANUR MUNICIPALITY ELVIN PETER P.J. K.R.GANESH GOURI BALAGOPAL ABHIJITH.K.ANIRUDHAN SREELEKSHMI A.S. ANU JOSEPH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.02.2024, ALONG WITH WP(C).25418/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 25418, 25602, 28539 & 35716/22 5 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. 25602 OF 2022 PETITIONER/S: 1 2 DEENADAYAL AGED 48 YEARS S/O. GANAPATHY, MEERASADANAM HOUSE, KATTILANGADY, TANUR P.O., MALAPPURAM DISTRICT., PIN - 676302 MUKESH V.P. AGED 33 YEARS S/O. VASUDEVAN, VALIYAPARAMBIL HOUSE, KATTILANGADY, TANUR P.O., MALAPPURAM DISTRICT., PIN - 676302 BY ADVS. C.M.MOHAMMED IQUABAL RAIHANATH T.H. RESPONDENT/S: 1 2 3 4 5 6 7 8 TANUR MUNICIPALITY TANUR P.O., MALAPPURAM DISTRICT, REPRESENTED BY ITS SECRETARY, PIN - 676302 THE SECRETARY TANUR MUNICIPALITY, TANUR P.O., MALAPPURAM DISTRICT, PIN - 676302 TANUR MUNICIPAL COUNCIL TANUR MUNICIPALITY, TANUR P.O., MALAPPURAM DISTRICT, REPRESENTED BY ITS CHAIRMAN, PIN - 676302 SHAMSUDEEN K. S/O. MOHAMMED ABDUL KADER, KAIJIRAJYARAKATH HOUSE, TANUR P.O., MALAPPURAM DISTRICT, PIN - 676302 SHAMSUDEEN S/O. JAFFER MUSALIAR, PANATTIL HOUSE, PANANGATTUR P.O., PARIYAPURAM, MALAPPURAM DISTRICT, PIN - 676302 IRSHAD K.P. S/O. ISMAIL, KACHEENTEPURAKKAL HOUSE, TANUR P.O., MALAPPURAM DISTRICT, PIN - 676302 VISAKHAN T. S/O. SEKHARAN, TAILAPARAMBIL HOUSE, CHIRAKKAL, TANUR, MALAPPURAM DISTRICT, PIN - 676302 RAFEEQ K.P. S/O. IBRAHIMKUTTY, OOTILANTEPURACKAL HOUSE, EDAKADAPPURAM, TANUR P.O., MALAPPURAM DISTRICT, PIN - 676302 WPC 25418, 25602, 28539 & 35716/22 6 9 10 11 12 13 14 15 16 17 18 NAJUMU M. W/O. MOIDEEN KOYA, MULLAKANEKATH HOUSE, TANUR P.O., MALAPPURAM DISTRICT, PIN - 676302 VINEESH P. PERALIPATTU HOUSE, TANUR P.O., MALAPPURAM DISTRICT, PIN - 676302 ANOOP KUMAR V. VARIYATH KALATHINGAL HOUSE, TANUR P.O., MALAPPURAM DISTRICT, PIN - 676302 NARAYANANKUTTY T. S/O. APPUKUTTY, THARAYIL HOUSE, NEDUVA P.O., PARAPPANANGADI, MALAPPURAM DISTRICT, PIN - 676303 IBRAHIM K. S/O. MOIDEENKUTTY, KALATHIL HOUSE, TANUR POST, (VIA) KATTILANGADI, TANUR, MALAPPURAM DISTRICT, PIN - 676302 SUNITHA KUMARI S. POOKKAYIL BAZAR, POOKKAYIL P.O., TIRUR, MALAPPURAM DISTRICT, PIN - 676107 RENUKA K.V. PULIYERI HOUSE, TANUR P.O., MALAPPURAM DISTRICT, PIN - 676302 BINDULEKHA R CHITHRALAYAM, TANUR P.O., MALAPPURAM DISTRICT, PIN - 676302 VASU C.T. CHAMMEL THARAMMAL HOUSE, TANUR P.O., MALAPPURAM DISTRICT, PIN - 676302 REJULA E.K. KAPPIKUNNUMMAL HOUSE, TANUR P.O., MALAPPURAM DISTRICT, PIN - 676302 BY ADV HARISH R. MENON, SC, TANUR MUNICIPALITY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.02.2024, ALONG WITH WP(C).25418/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 25418, 25602, 28539 & 35716/22 7 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. 35716 OF 2022 PETITIONER/S: BINDHU.N.V AGED 40 YEARS W/O. SURESH, NAYAR VEETTIL, TRITHALLUR, PURATHUR, PRESENTLY RESIDING AT THEKKEPURATH HOUSE, SCHOOLPADY, PARIYAPURAM P.O., TANUR, MALAPPURAM DISTRICT, PIN - 676302 BY ADV C.M.MOHAMMED IQUABAL RESPONDENT/S: 1 2 3 4 5 6 7 8 9 STATE OF KERALA REPRESENTED BY THE SECRETARY TO FINANCE DEPARTMENT, GOVERNMENT OF KERALA,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 THE EMPLOYMENT OFFICER, TOWN EMPLOYMENT EXCHANGE, TIRUR P.O., MALAPPURAM DISTRICT, PIN - 676101 TANUR MUNICIPALITY TANUR P.O., MALAPPURAM DISTRICT, REPRESENTED BY ITS SECRETARY., PIN - 676302 THE SECRETARY TANUR MUNICIPALITY, TANUR P.O., MALAPPURAM DISTRICT, PIN - 676302 TANUR MUNICIPAL COUNCIL TANUR MUNICIPALITY, TANUR P.O., MALAPPURAM DISTRICT, REPRESENTED BY ITS CHAIRMAN., PIN - 676302 SHAMSUDEEN.K S/O. MOHAMMED ABDUL KADER, KAIJIRAJYARAKATH HOUSE, TANUR P.O., MALAPPURAM DISTRICT, PIN - 676302 SHAMSUDEEN S/O. JAFFER MUSALIAR, PANATTIL HOUSE, PANANGATTUR P.O., PARIYAPURAM, MALAPPURAM DISTRICT, PIN - 676302 IRSHAD K.P. S/O. ISMAIL, KACHEENTEPURAKKAL HOUSE, TANUR P.O., MALAPPURAM DISTRICT, PIN - 676302 VISAKHAN .T S/O. SEKHARAN, TAILAPARAMBIL HOUSE, CHIRAKKAL, TANUR, MALAPPURAM DISTRICT, PIN - 676302 WPC 25418, 25602, 28539 & 35716/22 8 10 11 12 13 RAFEEQ K.P. S/O. IBRAHIMKUTTY, OOTILANTEPURACKAL HOUSE, EDAKADAPPURAM, TANUR P.O., MALAPPURAM DISTRICT, PIN - 676302 NAJUMU.M W/O. MOIDEEN KOYA, MULLAKANEKATH HOUSE, TANUR P.O., MALAPPURAM DISTRICT, PIN - 676302 NARAYANANKUTTY.T S/O. APPUKUTTY,THARAYIL HOUSE, NEDUVA P.O., PARAPPANANGADI, MALAPPURAM DISTRICT, PIN - 676303 IBRAHIM .K S/O. MOIDEENKUTTY, KALATHIL HOUSE, TANUR POST, (VIA) KATTILANGADI, TANUR, MALAPPURAM DISTRICT, PIN - 676302 BY ADV HARISH R. MENON, SC, TANUR MUNICIPALITY OTHER PRESENT: ADV K. R GANESH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.02.2024, ALONG WITH WP(C).25418/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 25418, 25602, 28539 & 35716/22 9 JUDGMENT (Dated this the 6th day of February 2024) [WP(C) Nos.25418/2022, 28539/2022, 25602/2022 and 35716/2022] All these Writ Petitions were heard together and disposed of by a common judgment since the issues arising in all these Petitions are one and the same.

2. For a proper consideration of the Writ Petitions, the facts in W.P.(C) 25418 of 2022, are stated below: The petitioners in W.P.(C) Nos. 25602 and 25418 of 2022 are working as contingent sanitary workers in the 1st respondent municipality for the last so many years. The petitioners in W.P.(C) Nos.28539 and 35716 of 2022 are sponsored by the Employment Exchange to the 3rd respondent Municipality to the post of sanitation works. They were sponsored by the Employment Exchange on the request of the 3rd respondent Municipality. WPC 25418, 25602, 28539 & 35716/22 10

3. As far as the petitioners in the W.P.(C) Nos.25418 and 25602 of 2022 are concerned they approached this court by filing W.P.(C) Nos. 22050 of 2022 as well as 22050 of 2022 and this court by Ext.P8 judgment disposed of the Petitions as follows: “Having considered the contentions advanced and in view of the fact that the petitioners are admittedly working as contingent sanitary workers in the Municipality, I am of the opinion that they should also be considered for appointment Municipality.” the post of permanent sanitary workers In the above view of matter, there will be a direction to the respondents to permit the petitioners also to participate in the selection process and in case they are found suitable, their claim for appointment shall also be duly considered. “

4. Pursuant to the directions of this court, all the petitioners in the Petitions were allowed to participate in the selection process and Ext.P11 rank list was drawn which includes a separate list of the persons who have been allowed as per the directions of this court. On the basis of Ext.P11, Ext.P10 minutes was approved WPC 25418, 25602, 28539 & 35716/22 11 Municipality. Therefore, the petitioners approached this court for quashing Ext.P10 Minutes of the Municipality and for a direction to permit the petitioners to continue in service and to take steps for regularisation in service.

5. A counter affidavit is filed by respondent Nos.1 to 3, denying all the contentions raised in the Writ Petitions. It was contended that the petitioners have no locus standi to file the petition. It is true that they have approached this court and obtained orders seeking direction to these respondents to allow them to participate in the selection process. In compliance with the directions, they were allotted to participate in the interview on 21st to 23rd July 2022. The selection committee consists of the Chairman of the Municipal Council, the Standing Committee Chairman, the Secretary, and the Health Inspector. Out of 118 participants 15 persons were selected by the selection committee based on their experience, native resident, physical fitness, financial status (APL or BPL), WPC 25418, 25602, 28539 & 35716/22 12 literary etc. The committee strictly followed the principles of natural justice and through a transparent process, the rank list was drawn. There is no bias or arbitrariness in the selection process. A rank list was drawn for the general category as well as Muslim, EWS, ETB, Ezhava, SIUC, Nadar OBC, Dhivara, SC, STB, and also those who obtained orders from this court.

6. A counter affidavit is filed on behalf of respondent Nos.10, 11, and 14 to 18.

7. The primary contention raised by the petitioners is that though this court permitted the petitioners in WPC Nos.25418 and 25602 of 2022, the respondents 4 to 18 who have obtained orders from this court as per Ext.P9, were included in the rank list and none of the petitioners were included, which shows that the selection was not transparent. The persons who were sponsored by the Employment Exchange were also not WPC 25418, 25602, 28539 & 35716/22 13 included in the rank list except for few persons in order to fulfill the required communal reservation.

8. It is to be noted that the petitioners have only challenged the decision of the Municipality and not the rank list. Ext.P11 rank list is drawn up after a selection process by giving marks to each of the candidates which is evident from the rank list itself. The selection was conducted by a selection committee which consisted of 5 persons. The committee evaluated each of the candidates and awarded marks, and Ext.P11 rank list was drawn. Unless and until the rank list is challenged, these petitions cannot be sustained. The contention raised by the petitioners is that the seniority of the petitioners who were working in the Municipality was not given weightage.

9. The counsel for the respondents relied on paragraph No.18 of the judgment of the apex court in State of Orissa and WPC 25418, 25602, 28539 & 35716/22 14 another v. Mamata Mohanty (2011 KHC 4118), which reads as follows: “18. APPOINTMENT / EMPLOYMENT WITHOUT ADVERTISEMENT: At one time this Court had been of the view that calling the names from employment Exchange would curb to certain extent the menace of nepotism and corruption in public employment. But, later on, came to the conclusion that some appropriate method consistent with requirements of Art. 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly. Even if the names of candidates are requisitioned from Employment Exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all eligible candidates from the open market by advertising the vacancies in newspapers having wide circulation or by announcement in Radio and Television as merely calling the names from the Employment Exchange does not meet the requirement of the said Article of the Constitution. (Vide: Delhi Development Horticulture Employees’ Union v. Delhi Administration, Delhi and Others, AIR 1992 SC 789; State of Haryana and Others v. Piara Singh and Others, AIR 1992 SC 2130; Excise Superintendent Malkapatnam, Krishna District, A. P. v. K.B.N. Visweshwara Rao and Others, 1996 (6) SCC 216; Arun Tewari and Others v. Zila Mansavi Shikshak Sangh and Others, AIR 1998 SC 331; Binod Kumar Gupta and Others v. Ram Ashray Mahoto and Others, AIR 2005 SC 2103; National Fertilizers Ltd. and Others v. Somvir Singh, AIR 2006 SC 2319; Telecom District Manager and Others v. Keshab Deb, 2008 (8) SCC 402; State of Bihar v. Upendra Narayan Singh and Others, 2009 (5) SCC 65; and State of Madhya Pradesh and Another v. Mohd. Ibrahim, 2009 (15) SCC 214).” WPC 25418, 25602, 28539 & 35716/22 15

10. It was held Tajvir Singh Sodhi v. State (UT of J&K), (2023 SCC online SC 344) as follows.

66. Thus, the inexorable conclusion that can be drawn is that it is not within the domain of the Courts, exercising the power of judicial review, to enter into the merits of a selection process, a task which is the prerogative of and is within the expert domain of a Selection Committee, subject of course to a caveat that if there are proven allegations of malfeasance or violations of statutory rules, only in such cases of inherent arbitrariness, can the Courts intervene.

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. Xxxxxx xxxxxx

68. 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 WPC 25418, 25602, 28539 & 35716/22 16 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. xxxxxxxxxxxx. Xxxxxxxxx Xxxxxxxx