Ajith Kumar S. v. Kerala Public Service Commission and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **TUESDAY, THE 19TH DAY OF NOVEMBER 2013/28TH KARTHIKA, 1935** **WP(C).No. 3814 of 2011 (B) ---------------------------** - **PETITIONER(S): --------------------------** **AJITH KUMAR.S., S/O.R.SADASIVAN, AGED 38 YEARS, SIVA NIVAS, PALACHIRA.P.O., VARKALA, THIRUVANANTHAPURAM DISTRICT.** **BY ADVS.SRI.ELVIN PETER P.J. SMT.POOJA SURENDRAN** **RESPONDENT(S):** - **----------------------------** **1. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM - 695 004.** **2. THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICE, THIRUVANANTHAPURAM - 695 004.** **3. THE DISTRICT CO-OPERATIVE BANK, THIRUVANANTHAPURAM, EAST FORT, THIRUVANANTHAPURAM- 695 023, REPRESENTED BY ITS GENERAL MANAGER.** - ***ADDL.R4 & R5 IMPLEADED:** - **R4. KUMAR .S., AGED 47 YEARS, S/O.K.SREEDHARAN NAIR,** - **RESIDING AT SANKAR SWATHI NAGAR, PEROORKADA PO, THIRUVANANTHAPURAM - 5.** - **(*ADDL.R4 IS IMPLEADED AS PER ORDER DTD. 7/03/2011 IN I.A.NO.3692/11)** **.2/-** **Kss** **..2....** ## **WPC.NO.3814/2011 (B)** ## ***ADDL.R5 IMPLEADED:** **R5. SAHADEVAN.K.C., S/O.GOVINDAN NAMBIAR, K.C.HOUSE, MALAPATTAM CENTRE, MALAPATTAM PO, KANNUR DISTRICT.** **(*ADDL.R5 IS IMPLEADED AS PER ORDER DTD. 22/11/2011 IN I.A.NO.18300/11)** **R1 & R2 BY STANDING COUNSEL SRI.P.C.SASIDHARAN SRI.ALEXANDER THOMAS R3 BY STANDING COUNSEL SRI.THOMAS ABRAHAM SRI.C.K.JAYAKUMAR SRI.K.G.RADHAKRISHAN ADDL.R4 BY SENIOR ADVOCATE SRI.N.NANDAKUMARA MENON ADVS.SRI.P.K.MANOJKUMAR SMT.HENA BAHULEYAN ADDL.R5 BY ADVOCATE SRI.M.SASINDRAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **WPC.NO.3814/2011 (B)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1: TRUE COPY OF THE B.COM DEGREE CERTIFICATE OF THE PETITIONER.** - **EXHIBIT P2: TRUE COPY OF THE M.B.A. DEGREE CERTIFICATE OF THE PETITIONER.** - **EXHIBIT P3: TRUE COPY OF THE EXPERIENCE CERTIFICATE OF THE PETITIONER ISSUED BY MILCO DAIRY DTD. 13/01/2011.** - **EXHIBIT P4: TRUE COPY OF THE COMMUNICATION DTD. 4/01/2011 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P5: TRUE COPY OF THE STATUS REPORT OF THE SELECTION TO THE POST OF GENERAL MANAGER IN THE TVM DIST.CO-OP.BANK.** - **EXHIBIT P6: TRUE COPY OF THE COMMUNICATION DTD. 1/02/2011 ISSUED BY THE P.S.C.** ## **RESPONDENT'S EXHIBITS & ANNEXURE:** - **EXHIBIT R4(a): THE PHOTOSTAT COPY OF THE SELECT LIST RANK NO.83/11/ SS III CATEGORY NO.402/09 DTD. NIL ISSUED BY THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION.** - **EXHIBIT R4(b): THE PHOTOSTAT COPY OF THE SELECT LIST RANK NO.115/11/ SS III CATEGORY NO.402/09 DTD. NIL ISSUED BY THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION.** - **EXHIBIT R4(c): THE PHOTOSTAT COPY OF THE SELECT LIST RANK NO.116/11/ SS III CATEGORY NO.403/09 DTD. NIL ISSUED BY THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION.** - **EXHIBIT R4(a): (I.A.NO.18300/2011) - A TRUE COPY OF THE RANK LIST PUBLISHED BY THE PUBLIC SERVICE COMMISSION ON 01/07/2011.** **EXHIBIT R4(b):(I.A.NO.15087/2013) A TRUE COPY OF THE COMMUNICATION DTD. 3/09/2013 ISSUED BY THE PUBLIC SERVICE COMMISSION.** - **ANNEXURE 1:THE PHOTOSTAT COPY OF THE COMMUNICATION NO.DIG(2) 4974/10 DTD. 24/01/2011 ISSUED BY THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, TRIVANDRUM, TO THE 4TH RESPONDENT.** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## **K. VINOD CHANDRAN, J. -----------------------------W.P (C) NO. 3814 of 2011 -----------------------------------** Dated, this the 19th day of November, 2013 ## **J U D G M E N T** The petitioner assails the selection made to the post of General Manager, in the 3[rd] respondent Bank on the ground that the notification issued by the Kerala Public Service Commission, does not call for any short listing of the applicants and if on the basis of the experience or qualifications, a short listing had to be done that should have been specified in the notification. The brief-facts required for the disposal of the above Writ Petition is that the post of General Manager which fell vacant in the 1[st] respondent Bank was reported to the 1[st] respondent, for the purpose of effecting recruitment. It is admitted that the filling up of the post of General Manager is to be only by direct recruitment as stipulated in Rule 185 (4) of the Kerala Co-operative Societies Rules 1969 and that the qualifications prescribed are as indicated in Rule 186 (1) (i) (b). The Kerala Public Service Commission, in accordance with the qualification prescribed, invited applications from the persons having qualification of Master's Degree in Business Administration or certified Chartered Accountants, who have minimum 3 years experience in W.P (C) NO. 3814 of 2011 : 2 : Co-operative Institutions/Scheduled Banks/Government/Quasi Government Institutions/Public Limited Companies. However, while short listing, the petitioner's application was rejected despite the petitioner having 5 years experience as a Marketing Manger in a Dairy Co-operative Society as is evidenced by Ext. P6. 2. The petitioner contends that either fresh selection is to be made including the petitioner and similarly placed persons or a fresh notification should be published making it clear as to the experience which is required for the post. The petitioner also relies on a Division Bench decision of this Court in _**District**_ _**Co-operative Bank, Palakad v. Dinesh M. and others [2012 (3) KHC 627].**_ The contention of the Kerala Public Service Commission is that mere experience in a supervisory or managerial capacity in the Institutions specified in sub Rule (1B) is not what is contemplated and the same has to be looked at in consonance with the requirement of the post to which the recruitment is to be made. The recruitment being to the post of General Manager of a District Co-operative Bank, which is the post of a Chief Executive in the Bank, the experience has to be in areas of banking and finance, which is so, even as per the Division Bench judgment and the recruiting agency attempting a short listing on the basis of the requirement to the post to which W.P (C) NO. 3814 of 2011 : 3 : appointment is made cannot at all be found fault with, is the argument. 3. The decision placed reliance on, by both the learned counsel has to be first looked into. The Division Bench Judgment in **Dinesh M (supra)** was concerned with the judgment of a Learned Singe Judge, which directed the appointment of a person who had experience in the Beverages Corporation, to the post of General Manager in a District Co-operative Bank. The Learned Single Judge, in fact, directed appointment of the said person finding the short listing and rejection of his application as bad going by the clear mandate and the Institutions in Rule 186(1)(i)(b) listed out therein. However, the Division Bench reversed the said judgment and held so in para 9 is as follows: _“The educational qualification required for appointment by direct recruitment as General Manager is Master's degree in Business Administration or any other equivalent qualification or membership of the Institute of Chartered Accountants of India. Obviously, the qualification is of such nature that people with these educational qualifications are supposed to be engaged only in managerial work. In the normal course, an MBA degree holder or Chartered Accountant does not take up even a supervisory job and the minimum post they would get is that of Assistant Manager. Further, the experience required under the notification issued by PSC which is an extract from the Rules is in Cooperative Institutions, Scheduled Banks or in Public Limited Companies. We have in another decision adversely commented upon rule 186 (1B) which_ W.P (C) NO. 3814 of 2011 : 4 : _prescribes experience in supervisory cadre as sufficient for appointment as Deputy General Manger of Thrissur Co-operative Bank, directly. In this case, the position is worse because the post is that of General Manager who has to control managers at different levels such as Branch Mangers, Assistant General Managers, and even Deputy General Managers. We do not know how a supervisory cadre man who has not reached the first level of managerial post is allowed to occupy the post of General Manger, who is the manager of managers in a big bank like the first respondent. In the first place, we have to adversely comment upon the Rule because it is self conflicting and is not sufficient to suit the requirement of the high post of General Manager. Supervisory or even managerial cadre experience in sales certainly is not sufficient experience to make a person eligible to be the General Manager of a big Co-operative Bank. Experience should therefore be in the line of banking or financing like investment companies, mutual funds etc. and not in trading companies engaged in marketing of products. The whole confusion arose because of the existence of a Rule made years back, which ultimately end up in selection of thoroughly unqualified persons to hold responsible posts in Cooperative bank, which we are afraid may lead to mismanagement and ruin of the otherwise well-run institutions. Considering the magnitude of operations of District Cooperative Banks and the State Coopertive Bnak and their commitment and responsibility to the members and public at large, we feel the Government should immediately amend the Rules suitable, so that only well-experienced and qualified persons are appointed in high positions in the Banks like Deputy General Managers and General Managers”_ 4. The proposition dilated upon by the Division Bench squarely applies in the instant case and comes to the aid of the Kerala Public Service Commission, insofar as, the Kerala Public W.P (C) NO. 3814 of 2011 : 5 : Service Commission having short listed the candidates on the basis of the requirement with reference to the post to which recruitment is made. Another Division Bench of this Court in W.A. No. 1664/2012 dated 22.02.2013, considered the same issue in a different context and understood **Dinesh M (supra)** as hereunder:- “What was held in the said decision is that though Rule 186(1)(b) does not stipulate that experience should be in banking or financing, the Commission while scrutinizing the application can certainly appreciate the experience with reference to the post to which the selection is made and in the context of their funding that the appellant's experience is not suitable for the employment, the Commission was definitely entitled to reject the application”. 5. The learned counsel appearing for the petitioner however, would rely on Para 11 wherein the Division Bench had directed amendments to be made in the Rule in consonance with the declaration of law of the Division Bench. What the learned counsel for the petitioner attempts to urge is that the rules having not been amended, even if the Kerala Public Service Commission does a short listing, with reference to the requirement of the post, then that should necessarily have been reflected in the notification itself. The notification having not reflected the short listing or the requirement of special experience with reference to W.P (C) NO. 3814 of 2011 : 6 : the post to which appointment is made, there cannot be any direction to appoint the additional 5[th] respondent who has obtained first rank in the selection conducted by the Kerala Public Service Commission. Such a conclusion cannot be countenanced. If the Division Bench was of the opinion that the requirement of the post to which appointment is made cannot be looked into by the Kerala Public Service Commission unless Rules are amended by the Government, then necessarily there would have been a direction to appoint the 1[st] respondent in that case, who was excluded for reason only of his having no managerial experience in the field of banking and finance. Again it is not the 5[th] respondent's selection that is challenged in the Writ Petition, but the rejection of the petitioner's application. If the rejection made by the Kerala Public Service Commission is found to be correct then there is no question of challenging the selection, since then the petitioners would be deprived of their locus standi. The 5[th] respondent's appointment is held up only because of the above Writ Petition and on dismissal of the same his appointment is a natural consequence. Going by the binding precedent of the aforesaid Judgment, as also considering the contention raised by the Kerala Public Service Commission, on the rationale behind the short listing attempted, it is not for this Court to interfere with W.P (C) NO. 3814 of 2011 : 7 : a reasonable short listing attempted by the Kerala Public Service Commission with the requirement of the post in perspective. In the circumstances, the Writ Petition is found to be devoid of merit and the same is dismissed. No costs. **K. VINOD CHANDRAN JUDGE** SB