Anjana S. and others v. Kerala Financial Corporation and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN`** ## **`TUESDAY, THE 27[TH] DAY OF SEPTEMBER 2022 / 5TH ASWINA, 1944`** ## **`WP(C) NO. 25188 OF 2021`** ## **`PETITIONERS:`** ``` 1ANJANA.S. AGED 35 YEARS ASWATHY, NEDUMPURATHU PALACE ROAD, MATHIBHAGOM, THIRUVALLA P.O.PATHANAMTHITTA, PIN-689 101. ``` - `2 LINEKKER M.R, MENACHERY HOUSE, PALAKKAL, THRISSUR, PIN-680 027.` - `3 NIMMY V.U, NIMMY BHAVAN, KIZHAKKUMBHAGOM, CHITHARA P.O.KOLLAM, PIN691 559.` ``` 4SOOSAN BABU P, EDATHARA VEEDU, POONJAM CODE, KATTAKODE P.O.KATTAKADA, PIN-695 572. ``` - `5 SREENISHA K.C, AREEKARA HOUSE,M AVITANALLUR P.O, NADUVANNUR (VIA) KOZHIKODE, PIN-673 614.` ``` 6RIJI.T.J, W/O SETHUNATH E.M, EDATHALASSERY HOUSE, POICKATTUSSERY, CHENGAMANAD P.O.ERNAKULAM, PIN-683 578 ``` - `7 MANIKUTTAN NAIR.S, DEVANANDANAM, CETTIVILAKATHUVEEDU, MNRA B/48, KUDAPPANAKUNNU P.O.TRIVANDRUM, PIN-695 043.` - `8 RATHEENDRAN M.T, S/O THILAKAN M.T, MUTHAMPARAMBIL HOUSE, VALAPPAD BEACH P.O.THRISSUR, PIN-680 567.` - `9 NISHA S, S.S. BHAVAN, AZHANTHAKUZHY, NILAMEL P.O. KOLLAM, PIN-691 535.` ``` 10RENJITH P, ``` ``` WP(C) NO. 25188 OF 2021 ``` ``` 2 ``` ``` UTHRAM, VATTAPPUL, NANNIYODE, PACHA P.O, PALODE, THIRUVANANTHAPURAM, PIN-695 562. ``` ``` 11SAINAS RASHEED, PRINCE MANZIL , ARAMPUNNA, ELAMPAL P.O, PUNALUR, KOLLAM, PIN-691 322. 12SUBITHA K.P, D/O GOPI K.P, KUNDOZHIPURAKKAL HOUSE, VALIYAKUNNU P.O.VALANCHERY, MALAPPURAM , PIN-676 552. ``` ``` BY ADVS. V.R.GOPU G.RAJAN POTAYIL URMILA.M.G ``` ## **`RESPONDENTS:`** ``` 1KERALA FINANCIAL CORPORATION REPRESENTED BY ITS MANAGING DIRECTOR, VELLAYAMBALAM, THIRUVANANTHAPURAM-695 033. 2KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM-695 004. 3THE STATE OF KERALA REPRESENTED BY THE SECRETARY, P & ARD, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 4THE SECRETARY TO GOVERNMENT(FINANCE) FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. 5THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. BY ADVS. M.R.VENUGOPAL ``` ``` WP(C) NO. 25188 OF 2021 ``` ``` 3 ``` ``` SHRI.P.C.SASIDHARAN, SC, KPSC ADVOCATE GENERAL OFFICE KERALA S. MUHAMMAD ALIKHAN DHANYA P.ASHOKAN(K/001671/2000) ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 25188 OF 2021 ``` ``` 4 ``` ## **JUDGMENT** Dated this the 27[th] day of September, 2022 ## - This writ petition is filed seeking the following reliefs: i. To declare that Regulation 9 (iii) of KFC Staff Regulation 1966 to the extent to which it gives absolute power to the Board to deviate from the normal rule of 1:1 ratio as “the Board may by resolution to make appointments by promotion to a vacancy or vacancies to which appointments are to be made by direct, recruitment, if the Board thinks that such deviation from the prescribed ratio is necessary for administrative efficiency or convenience”, as ultra vires. ii. To issue a writ in the nature of mandamus or appropriate writs or direction commanding the 1[st] respondent to report existing vacancies and arising vacancies to the post of Assistant Manager to 2[nd] respondent as per Ext.P-7 till the expiry of Ext.P-1 ranked list so as to comply with 1:1 ratio prescribed by regulation 9 (iii) of KFC Staff Regulation 1966 for appointment by direct recruitment. iii. To issue a direction to the 1[st] and 4[th] respondents from reducing the existing vacancies to the post of Assistant Manager by restructuring the Staff Structure of the 1[st] respondent corporation till the pendency of the writ petition and also direct the 1[st] respondent to fill up all the vacancies from Ext. P-1 ranked list. ``` WP(C) NO. 25188 OF 2021 ``` ``` 5 ``` 2. Heard the learned counsel for the petitioners, the learned Standing Counsel appearing for the 1[st] respondent, the learned Standing Counsel appearing for the 2[nd] respondent as well as the learned Government Pleader appearing for respondents 3 to 5. 3. It is submitted by the learned counsel for the petitioners that the petitioners are persons included in Ext.P1 ranked list prepared for appointment to the post of Assistant Manager in the 1[st] respondent Corporation. It is submitted that Ext.P1 was drawn up on the basis of a notification issued in the year, 2016 and the qualification for appointment as per the said notification was as follows:-[CA/ICWA/MBA(Finance)/MA(Economics) First Class/M.com First Class along with Degree/diploma in Computer Science/Computer Application recognised by Government]. 4. It is submitted that the cadre strength for the post of Assistant Manager in KFC is fixed as 42 and that there is a ratio of 1:1 between direct recruits and promotees as per the regulations notified by the 1[st] respondent. Regulation 9(iii) of the KFC Staff Regulations grants power to the Board of the 1[st] respondent to fill up the vacancies which are to be filled up by direct recruitment through transfer or deputation of officers holding similar posts in other ``` WP(C) NO. 25188 OF 2021 ``` ``` 6 ``` financial institutions or the Government. 5. The learned counsel for the petitioners would contend that the power granted to the Board of the 1[st] respondent to depart from the fixed ratio of 1:1 is completely arbitrary being unguided and unbridled, and that all the vacancies of Assistant Managers are liable to be filled up from Ext.P1 ranked list. It is submitted that only 8 vacancies have been reported to the PSC for filling up from Ext.P1 list. It is further submitted that after the reporting of 8 vacancies to the PSC, 12 vacancies have arisen between 31/5/2020 and 1/8/2021 by retirement in the cadre of Assistant Manager. Details of the said vacancies and the retirements are given in para 8 of the writ petition. It is contended that since there are 18 such vacancies available for the period from 30/6/2020 to 31/5/2023 and since Ext.P1 ranked list expires only in the month of December 2023, all the vacancies can be filled up by direct recruitment. It is stated that if the quota of 1:1 is applied 50% of the 42 posts will have to be filled up by direct recruitment and since 34 vacancies out of the 42 have already been filled up by promotion all the arisen vacancies are liable to be filled up by making appointments from Ext.P1 list. 6. A counter affidavit has been placed on record by the 1[st] ``` WP(C) NO. 25188 OF 2021 ``` ``` 7 ``` respondent. It is contended that the question with regard to departure from the fixed ratio by regulation 9(iii) of the KFC staff regulations has been considered by a Division Bench of this Court in WA No.1010 of 2018 and it has been held that the ratio for direct recruitment and promotions are not separate watertight compartments and the regulations provide power in the Board to depart from the ratio in case the board finds it fit to do so. It is submitted that the power is granted to the Board to depart from the ratio and to effect promotions or deputations to ensure flexibility and to adapt to the changing situations. It is further contended that the qualifications for appointment to the post of Assistant Manager in the 1[st] respondent stands amended by the Board with the concurrence of the PSC and the approval of the Government by Ext.R1(a) GO dated 20/7/2018. It is submitted that the qualifications have now been revised and the revised qualifications are as follows:- - i. Graduation with First Class from a UGC recognised University. ii. CA (Intermediate) or ICWA (Intermediate) Note:-First Class Degree means with 60% or above marks in aggregate. 7. It is therefore contended that the appointments to the post of Assistant Manager in vacancies which arise after 20/7/2018 have ``` WP(C) NO. 25188 OF 2021 ``` ``` 8 ``` to be made in accordance with the amended qualifications and that no further appointments are liable to be made from Ext.P1 ranked list. 8. A counter affidavit has been placed on record by the 2[nd] respondent as well. It is submitted that Ext.P1 list was published on 15/12/2020 and is to remain in force for 3 years. It is submitted that the petitioners are included in the list. The 1[st] respondent had reported 9 vacancies that is 8 vacancies + 1 non joining duty vacancy for the post of Assistant Manager from the corporation and the commission advised 9 candidates against the said vacancies strictly abiding by the rules of reservation and rotation. It is stated that no other vacancy is pending advice. It is further contended that the question with regard to applying of the quota is not an issue for the commission to answer and that since all the vacancies reported to the commission have been duly advised, there is no merit in the contentions raised. 9. The 4[th] respondent has also placed a counter affidavit on record. Referring to the validity of regulations, it is contended that Section 48 of State Financial Corporation Act, 1951 Act provides power in the Board of Corporation to frame regulations. It is ``` WP(C) NO. 25188 OF 2021 ``` ``` 9 ``` submitted that since KFC Staff Regulations, 1966 was formulated as per Section 48 of the SFCs Act, 1951 with prior approval of the State Government, the decision of the Board in fixing the ratio between promotion and direct recruitment is final and valid. It is further contended that there is no illegality in the grant of the power to the Board which itself is the regulation framing authority to depart from the ratio if found necessary. It is further contended that since the qualification stands amended the further vacancies which are pointed out by the petitioners cannot be filled up from Exts.P1 ranked list. It is pointed out that there is no challenge raised by the petitioners as against Ext.R1(a) order amending the qualification. 10. Detailed reply affidavits have also been placed on record by the petitioners. It is contended by the learned counsel for the petitioners that since Ext.R1(a) Government order refers to the amendment of the special rules until special rules are framed and appropriately amended, the amended qualifications cannot be pressed himself into service. 11. I have considered the contentions advanced, the petitioners being persons included in a rank list prepared for appointment to the post of Assistant Manager cannot be said to have ``` WP(C) NO. 25188 OF 2021 ``` ``` 10 ``` any indefeasible right for appointment from the list. The right for appointment can only be in accordance with the existing circumstances and the availability of vacancies as also the qualifications for the post as provided from time to time. It is admitted that Ext.R1(a) order of the Government permitting the change of qualifications to the post of Assistant Manager was issued only on 20/7/2018 and it could not have any retrospective effect. If that be so the vacancies which where in existence as on 20/7/2018 would have to be filled up from Ext.P1 rank list. That apparently has been done. It is the specific case of KFC that 8 vacancies were reported before the amendment of the qualification. Though the KFC requested to the PSC to issue advise only against 3 of such vacancies which stood reported before the Board of the KFC and taken a decision to change the qualification, the PSC did not comply with such request and has insisted on making advises against all of the 8 vacancies which stood reported before the amendment to the qualification that is on 20/7/2018. 12. With regard to the contentions of the petitioners that further vacancies are liable to be reported, I am of the opinion that in view of the specific contention as contained in the writ petition itself ``` WP(C) NO. 25188 OF 2021 ``` ``` 11 ``` that the vacancies are those that arise between 31/5/2020 and 31/5/2023 that is after the date of issuance of Ext.R1(a), the contention that all such vacancies are liable to be reported to be filled up from Ext.P1 rank list cannot survive. It is pertinent to note that Ext.R1(a) order is also not under challenge. 13. Both the learned counsel for the petitioners as well as the learned counsel appearing for the 1[st] respondent relied on a decision of the Full Bench of this Court in **Mohanan K.R v. Director of Homeopathy and others [2006 KHC 855]** . I am clear in my mind that the ratio of the decision is to the effect that where the qualifications are amended prospectively, the vacancies which are in existence as on the date of an amendment to the qualifications in question have to be filled up in accordance with the pre-amended rules and the vacancies arisen thereafter will have to be filled in accordance with the amended rules. In the above factual situation, the petitioners who have undergone selection on the basis of the unamended rules and have been included in the ranked list cannot contend that appointments have to be made to all arising vacancies disregarding the amendment of the qualification. The decision taken not to report any further ``` WP(C) NO. 25188 OF 2021 ``` ``` 12 ``` vacancies to the PSC for advise from Ext.P1 list cannot be held to be bad in law in the light of Ext.R1(a). This writ petition, therefore fails, and is accordingly dismissed. **Sd/ANU SIVARAMAN JUDGE** ska ``` WP(C) NO. 25188 OF 2021 ``` ``` 13 ``` ## **`APPENDIX OF WP(C) 25188/2021`** ## `PETITIONER EXHIBITS` - `Exhibit P1 TRUE COPY OF THE RANKED LIST NO 444/OLE/2020 (CATEGORY NO 282/2016) NOTIFIED BY THE 2ND RESPONDENT` - `Exhibit P2 TRUE COPY OF THE QUESTIONNAIRE AND ITS REPLY DATED 23.6.2021` - `Exhibit P3 TRUE COPY OF THE APPOINTMENT CHART GENERATED FROM THE OFFICIAL WEBSITE OF THE 2ND RESPONDENT PSC` - `Exhibit P4 TRUE COPY OF THE EXTRACT OF THE REGULATION 9 (111) OF KFC STAFF REGULATION 1966.` - `Exhibit P5 TRUE COPY OF THE ORDER DATED 24.12.2014 ISSUED TO ONE SURESHKUMAR BY THE APPELLATE AUTHORITY.` - `Exhibit P6 TRUE COPY OF THE JUDGMENT IN WPC NO 33682 OF 2010 DATED 12.7.2013` - `Exhibit P7 TRUE COPY OF THE CIRCULAR NO ADVICE 3/116/2020/P & ARD DATED 12.9.2020` - `Exhibit P8 TRUE COPY OF THE LEGAL NOTICE DATED 4.10.2021` - `Exhibit P9 TRUE COPY OF THE EXTRACT OF MINUTES DATED 24/3/2017 RECIVED UNDER RTI ACT.` - `Exhibit P10 TRUE COPY OF THE REPLY DATED 23/6/2021 GIVEN BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT RECEIVED UNDER RTI ACT` - `Exhibit P11 TRUE COPY OF THE LIST OF PROBABLE VACANCIES IN THE POST OF ASSISTANT MANAGER AND ABVOE FROM 29/9/2016` ``` WP(C) NO. 25188 OF 2021 ``` ``` 14 ``` ``` TO 31/5/2023 ``` ## `RESPONDENT'S EXHIBITS` ``` Exhibit R1(A)TRUE COPY OF THE GO(MS).NO.266/2018/FIN DATED 20/7/2018 ``` ``` Exhibit R1(B)TRUE COPY OF THE RESOLUTION DATED 24/1/2019 OF THE BOARD OF DIRECTORS OF THE KFC ``` // True Copy // PA To Judge