Eldo P. Mathai v. Keerampara Service Co-operative Bank Ltd & Ors.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 25TH MARCH 2011 / 4TH CHAITHRA 1933 WP(C).No. 9598 of 2011(Y) ------------------------- PETITIONER(S): - --------------- ELDO.P.MATHAI,PANAYIL HOUSE,CHOORAKKODU KARA,PATTIMATTOM POST,PATTIMATTOM VILLAGE, KUNNATHUNADU TALUK. BY ADV. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY RESPONDENT(S): --------------- 1. THE KEERAMPARA SERVICE CO-OPERATIVE BANK LTD.NO.214,KEERAMPARA POST,KOTHAMANGALAM, PIN-686691. 2. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES,ERNAKULAM,PIN-682011. 3. SIMY PAUL,PADICKAKUDIYIL HOUSE, KURUPPUMPADY,THURUTHY POST,ERNAKULAM, PIN-683545. BY GOVT. PLEADER SRI. BASANT BALAJI. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.N. RAVINDRAN, J.** ------------------------------- ## **W.P.(C) No.9598 of 2011** ------------------------------- ## **Dated this the 25[th] day of March, 2011** ## **J U D G M E N T** The petitioner, a graduate in History who possesses Junior Diploma in Corporation and a person seeking employment has filed this writ petition mainly seeking a declaration that the first respondent bank cannot make appointments to vacancies which arose subsequent to the publication of Ext.P1 notification except by initiating a fresh selection process. The brief facts of the case are as follows:- 2. The first respondent bank initiated steps to fill up the vacancy of Junior Clerk that existed in the bank. In view of the stipulations contained in rule 182 of the Kerala Co-operative Societies Rules, 1969 it reported the vacancy to the Co-operative Service Examination Board (hereinafter referred to as 'the Board' for short). The Board thereafter invited applications for appointment to one vacancy of Junior Clerk in the first respondent bank by issuing Ext.P1 notification dated 21.7.2008. By that notification, applications were invited to fill up vacancies in other co-operative societies also. Pursuant to Ext.P1, many candidates applied. A written test was conducted by the Board and thereafter a list of successful candidates was forwarded by the Board to the first respondent bank. The first respondent bank conducted an interview and published a ranked list. W.P.(C) No.9598 of 2011 2 From that ranked list, two persons were also appointed as Junior Clerks. It is contended that as the notified vacancy has been filled up, the ranked list published pursuant to Ext.P1 notification cannot have efficacy and therefore, no further appointments can be made from that list. This writ petition is filed alleging that notwithstanding the constitutional embargo in filling up the vacancies that arose subsequent to the notification, steps are afoot to appoint the third rank holder in the ranked list as Junior Clerk. In this writ petition, the petitioner seeks the following reliefs:- 1. Declare that the 1[st] respondent bank is not legally entitled to make appointments to the vacancies which arose subsequent to Ext.P1 notification except by resorting to the process of issuing a fresh notification and issuing a fresh selection process. 2. Issue a writ in the nature of Mandamus or any other appropriate writ, direction or order commanding the 1[st] respondent not to appoint the 3[rd] respondent to the post of Jr. Clerk in the 1[st] respondent bank. 3. Issue such other writ, direction or order as are just and necessary in the facts and circumstances of the case to meet the ends of justice. 3. I heard Sri.Mathew John, learned counsel appearing for the petitioner and Sri.Basant Balaji, learned Government Pleader appearing for the official respondents. The learned counsel for the W.P.(C) No.9598 of 2011 3 petitioner contended that as only one vacancy was notified by Ext.P1 notification and the said vacancy was filled up, no further vacancy other than the one notified can be filled up. The learned counsel also contended that the mere fact that clause (7) of sub-rule (4) of rule 182 of the Kerala Co-operative Societies Rules prescribes a life of two years for the ranked list, does not mean that the ranked list can be operated to fill up the second vacancy, when only one vacancy was notified. The learned counsel contended that in such circumstances, the first respondent society cannot operate the existing ranked list, as it would amount to denial of opportunity to candidates who qualified after Ext.P1 notification was issued and to those who did not offer themselves earlier as only one vacancy was notified. The learned counsel relied on the decision of a learned single Judge of this Court in **Dr.Dimpi v. Divakaran & Another v. Mahatma Gandhi University and Another** (2007 (1) KLJ 545) and the decision of the Division Bench of this Court in **Deepthy Vijayakumar v. Joint Registrar** (2008 (4) KLT 321) in support of the said contention. 4. In **Dr.Dimpi v. Divakaran & Another** (supra) this Court considered the question whether it was open to the Mahatma Gandhi University to fill up more vacancies than the notified number W.P.(C) No.9598 of 2011 4 of vacancies. After analysing the statutory provisions and the case law on the point, a learned single Judge of this Court held following the decision of this Court in **Rajmohan v. The State of Kerala and Others** (1997 (1) ILR 199) that when one vacancy was notified, the mere fact that the ranked list was valid for one year cannot be a reason to hold that more than the notified number of vacancies can be filled up. In **Deepthy Vijayakumar** (supra) a Division Bench of this Court considered the question whether a co-operative society to which rule 182 of the Kerala Co-operative Societies Act has no application could have made appointments in excess of the notified number of vacancies from the ranked list published pursuant to a notification inviting applications for appointment to two vacancies. Relying on the decision of the Apex Court in **Ashok Kumar and Ors. v. Chairman, Banking Service Recruitment Board and Ors.** (1969 (1) SCC 283), the Division Bench held that filling up of vacancies that arose after the notification violates Articles 14 and 16(1) of the Constitution of India. The Division Bench was however dealing with a case prior to the introduction of section 80B in the Kerala Co-operative Societies Act and rule 182 in the Kerala Co-operative Societies Rules. 5. Rule 182(4) of the Kerala Co-operative Societies Rules W.P.(C) No.9598 of 2011 5 ## which is relevant for the purpose of this case reads as follows:- **“** _**182** (4) In respect of recruitment to societies covered by section 80B of the Act, the following procedure shall be followed:-_ _i) The society shall report the vacancy to the Cooperative Service Examination Board and the applications for appointment shall be invited by the Co-operative Service Examination board, by notification in two vernacular dailies, having wide circulation in the area. The notification shall include the details of number of vacancies, qualifications required for the post, age and reservation, if any, the mode of application, method of appointment and other required details. The Co-operative Service Examination Board may collect application fee along with the application at the rate fixed by the Registrar of Co-operative Societies from time to time. The Examination Board shall process the applications and prepare the list of candidates to be called for the written test. One copy of the prepared list shall be published in the notice Board of the Examination Board and one copy shall be sent to the society for publication in its notice board. The society shall publish it in the notice board and copies thereof in the branch offices of the society. The arrangements for the written test shall be made by the Examination Board._ _ii)The Examination Board shall conduct the written examination of the candidates and furnish a list of eligible candidates to be interviewed to the committee of the society within a period of three months from the date of requisition by the society. The list so furnished shall not contain the mark secured by the candidates;_ W.P.(C) No.9598 of 2011 6 _iii) The maximum marks for written examination shall be 80 and those who secure 40% of the marks shall only be eligible to be included in the list for interview._ _iv) The maximum marks for interview shall be 15._ _iv A) Candidates of home district shall be awarded 5 marks over and above the marks for interview as grace marks._ _v) On receipt of the list from the Examination Board, the committee shall conduct interview of the candidates within two months from the date of such receipt and return the list to the Examination Board noting the marks secured by each candidates, in the interview within a period of two weeks._ _vi) On receipt of the list from the society, the Examination Board shall note down the marks secured by each of the candidate in written examination and return consolidated list with the total marks obtained by each candidate. This shall be done within a period of one week._ _vii)On the basis of the consolidated list so received from the Examination Board, the committee shall prepare the rank list of candidates and publish the same in the notice board of the society. The society shall send one copy of the rank list so published to the Examination Board also. The board shall examine the correctness of such rank list and report to the Registrar, the irregularities, if any. The list shall be valid for a period of two years from the date of publication of the same by the society._ _viii) All appointments to the vacancies shall be made by the committee from the select list so published within one month from the date of such publication_ W.P.(C) No.9598 of 2011 7 _and shall be reported to the Examination Board._ _ix)Expenses, if any, incurred over and above the fees collected by the Examination Board, shall be borne by the society concerned._ 6. Clause (vii) of sub-rule (4) of rule 182 stipulates that the ranked list prepared on the basis of the select list received from the Board shall be valid for a period of two years from the date of publication. Clause (viii) states that all appointments to the vacancies shall be made by the committee from the select list so published within one month from the date of such publication and that fact reported to the Examination Board. Clause (viii) as originally framed did not contain the stipulation that appointments have to be made within one month from the date of publication or that that fact shall be reported to the Examination Board. The words ' _within one month_ ' and _'shall be reported to the Examination Board'_ were inserted by SRO 1185 of 2003 published in the Kerala Gazette Extra Ordinary No.48 dated 23.12.2003. As noticed above, clause (vii) of sub-rule (4) of rule 182 of the rules stipulates that ranked list shall be in force for a period of 2 years. Clause (viii) also stipulates that vacancies shall be filled within one month from the date of publication. W.P.(C) No.9598 of 2011 8 If, as contended by the petitioner, a co-operative society cannot fill up vacancies other than those which are notified, the stipulation in the rule that the ranked list shall have a validity of two years will become superfluous. A Division Bench of this Court has in **Kodakara Farmers Service Co-op. Bank Ltd. v. Neena** (2010 (1) KLT 541) considered a similar contention and held that all vacancies arising during the period of validity of the ranked list published in terms of clauses (vii) & (viii) of sub-rule (4) of rule 182 of the Kerala Cooperative Societies Rules can be filled up only from the ranked list thus published. Faced with that situation, the learned counsel for the petitioner contended that the Division Bench which decided Kodakara Farmer's case (supra) did not refer to the decision of the Division Bench of this Court in **Deepthy Vijayakumar v. Joint Registrar** (2008 (4) KLT 321), and therefore, the matter requires to be examined by a larger Bench of this Court. I am afraid the said submission is without any merit. 7. As noticed earlier, the Division Bench which decided **Deepthy Vijayakumar v. Joint Registrar** (supra) was not dealing with a case governed by rule 182(4) of the rules. The Division Bench which decided Kodakara Farmer's case was dealing with a case falling W.P.(C) No.9598 of 2011 9 under the said rule. In such circumstances, as the petitioner has not questioned the validity of rule 182(4) and stipulations therein, I am of the opinion that it is not necessary for this Court to examine the correctness of the decision of the Division Bench of this Court in **Deepthi Vijayakumar's** case (supra) or in **Kodakara Farmer's** case (supra). The two decisions were rendered in different fact situations. I, therefore, find no merit in the writ petition. The writ petition fails and is accordingly dismissed. **P.N. RAVINDRAN, JUDGE.** nj.