N. Nagaresh, J.

1. Appellant, who is the petitioner in W.P.(C) No. 11058/2017, challenges the judgment of the learned Single Judge in W.P.(C) No. 11058/2017.

2. Facts are not much in dispute. The Department of Industries & Commerce, Government of Kerala, published Ext. P1 notification stating that Government is in the process of reviving State Level Public Enterprises (SLPEs, for short) by incorporating professional management and that candidates desirous of engaging in a prospective career in Public Sector environment may apply. Neither the posts/positions nor the name of SLPEs were disclosed in the notification, though various industrial sectors to which appointments are proposed, were indicated. The applications were to be made to the Secretary, Public Sector Restructuring and Internal Audit Board (RIAB, for short) and the last date for submission of applications was stipulated as 15.07.2016.

3. The appellant, who was working as General Manager (Marketing) in Handicrafts Development Corporation of Kerala Limited (HDCKL, for short), applied for the post of Managing Director in the Sector Traditional and Welfare Sector Units. The HDCKL falls in this Sector. The 4th respondent, who was working as Manager in Kerala Electrical and Allied Engineering Company Ltd., also submitted application pursuant to Ext. P1 notification. However, while the selection process was going on, the 4th respondent was deputed and appointed as Managing Director in HDCKL as per Ext. P5 order dated 30.07.2016.

4. At the end of the selection process for appointment of Managing Director in HDCKL, one Mr. Vinod was placed at Rank No. 1 and the appellant at Rank No. 2, as is seen from Ext. P2 select list. The 4th respondent was not included in the select list. Though ranked No. 1 for appointment in HDCKL, the aforesaid Vinod T.K. opted the post of Managing Director in Kerala Artisan Development Corporation Ltd. and was appointed as such, pursuant to a Government Order dated 04.10.2016. The appellant states that since the candidate at Rank No. 1 declined the post, the appellant who is Rank No. 2 should have been appointed as Managing Director, HDCKL. But, respondents 1 and 2 are permitting the 4th respondent to continue in the post on deputation illegally, thereby denying what is legitimately due to the appellant. The appellant hence sought to quash Ext. P5 order and to direct the respondents to appoint the appellant in the place of the 4th respondent. The respondents contested the writ petition filing counter affidavits and statement.

5. The 2nd respondent-Additional Chief Secretary, Industries Department, defended the writ petition and justified the appointment given to the 4th respondent on the ground that the 4th respondent was appointed so since he was included in an earlier select list prepared by a Selection Committee during the year 2012. The 4th respondent also argued that he was selected in an identical selection process earlier and was a top rank holder. It was on that basis that the 4th respondent was appointed following due procedure. The 4th respondent argued that contrary to the contentions of the petitioner, there is no period fixed for validity of the select list for appointment for Managing Directors in Public Sector undertakings. Since the 4th respondent was appointed against a vacancy after a due selection process, the petitioner cannot be appointed against the same vacancy.

6. The learned Single Judge heard the matter and found that the appellant does not have a case that selection and appointment of Managing Directors of PSUs are governed by any Rule or Regulation. After an appreciation of the contents in the Government Orders at Exts. P10, R2(a), R2(b) and P9, the learned Single Judge came to a conclusion that Ext. R2(b) Government Order fixing a two year validity period for select list will not apply to the post in question. On merits of selection, the learned Single Judge found that even in the subsequent selection process, the 4th respondent had secured 59 marks whereas, candidates ranked at 1 and 2 scored only 57 and 51 marks respectively. It was consequent on the decision of the Selection Committee to exclude candidates with lesser marks in the interview that the 4th respondent was ousted.

7. The learned Single Judge also found that the proceedings for appointment of the 4th respondent were initiated even before Ext. P1 notification was issued and hence, the appellant cannot insist that the appointment of the 4th respondent was illegal. Regarding the argument of the appellant that the 4th respondent was appointed as Managing Director, HDCKL, only by way of deputation and hence, it cannot be taken as an appointment to hold that the vacancy is being filled on a permanent basis, the learned Single Judge held that any officer holding lien on a substantive post can be appointed on deputation and even Article 17 of the Articles of Association of the Company does not envisage any permanent appointment of anybody as Managing Director. On these premises, the learned Single Judge held that the appointment of the 4th respondent is not one liable to be interfered with under Article 226 of the Constitution of India. The writ petition was hence dismissed.

8. We have heard Senior Advocate Kurian George Kannanthanam assisted by Advocate Harish Gopinath representing the appellant, learned Senior Government Pleader Sri. Antony Mukkath appearing for respondents 1 and 2 and Senior Advocate T.A. Shaji assisted by Advocate Namitha Jyothish representing the 4th respondent.

9. The learned Senior Counsel Sri. Kurian George Kannanthanam pointed out that though the appellant may not have an indefeasible right for appointment due to his inclusion in the select list, when the vacancy is filled up, the appellant indeed has a right to get appointed since he was the eligible candidate available from Ext. P2 select list. In this regard, it may be noted that the learned Single Judge, on analysing the pleadings, has come to a conclusion that the 4th respondent was included in the 2012 select list and that the proceedings to appoint him from the 2012 select list were initiated even before the issuance of Ext. P1 Notification. In fact, Ext. P1 Notification did not state that vacancy of Managing Director in HDCKL is going to be filled up through the said selection process. In the circumstances, we do not find the judgment of the learned Single Judge is bad on that score.

10. The learned Senior Counsel further argued that the 4th respondent is an unsuccessful candidate in 2016 selection and preferring a non-meritorious candidate over a rank holder is unjustified. The learned Single Judge has noted that appointment of the 4th respondent was in pursuance of an earlier selection in which the 4th respondent was placed at a sufficiently high rank. The learned Single Judge further noted that even in the subsequent 2016 selection, the 4th respondent scored total 59 (55+4) marks whereas, the appellant scored only 51 (45+6). It was on the basis of the decision of the Selection Committee to exclude candidates who scored less than 5 marks in the interview that the 4th respondent was excluded from the list. Whether the Selection Committee could have made such a prescription is a moot question. The 4th respondents appointment was pursuant to 2012 selection, against which the appellant raised no grievance. The merit or rank of candidates, who appeared in two different selection proceedings, cannot be compared to come to a conclusion as to which candidate is more meritorious. In the circumstances, the appellant cannot be heard to contend that the 4th respondent is less meritorious.

11. As regards the argument that appointment of the 4th respondent was not from a select list which was published in 2012, but was merely on the basis of a note of the Minister for Industries, the learned Single Judge has gone through the files leading to the appointment of the 4th respondent and has found that the 4th respondents appointment cannot be said to be one circumventing the process of selection. We find no reason to interfere with the said finding of the learned Single Judge.

12. The further argument raised on behalf of the appellant is that the select list prepared pursuant to 2012 selection proceedings cannot be valid beyond the prescribed time and that even in the absence of any prescribed time, the validity can only be for one year. We are unable to agree to this proposition. The learned Single Judge has found that the two year validity period for select lists stipulated in Ext. R2 (b), would not apply to the appointment in question. In the absence of prescription of period of validity of a select list, appointments can be made from the list within a reasonable time, till a new select list comes into force. The argument in this regard is therefore not sustainable.

13. We find one more serious deficiency in the writ petition filed by the appellant. The appointment sought to be challenged is to the post of Managing Director, HDCKL. The Company HDCKL is not made a party to the writ petition. The learned counsel for the appellant argued that the selection was made by the 3rd respondent-RIAB and Ext. P5 appointment order was issued by the 1st respondent-State, and since the appellant was not challenging any action of the Company, it need not have been impleaded. We find the reasoning too far-fetched. When the appointment of Managing Director of a Company is under challenge, the most affected party will be the Company itself along with the appointee. The fact that the Company had no role in the selection process and appointment will not make the Company an uninterested party. We therefore find that the writ petition is bad for non-joinder of necessary party also.

For all the above facts, we find no reasons to interfere with the judgment of the learned Single Judge in W.P.(C) No. 11058/2017. The Writ Appeal is hence dismissed.