Enathu Service Co-operative Bank Ltd. v. Sachu R.S. and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE SATHISH NINAN FRIDAY, THE 6TH DAY OF JULY 2018 / 15TH ASHADHA, 1940 WA.No. 2405 of 2015 IN WPC. 16095/2015 AGAINST THE JUDGMENT IN WP(C).NO.16095/2015 OF HIGH COURT OF KERALA DATED 13-08-2015 APPELLANTS/RESPONDENTS 1 & 2: 1 THE ENATHU SERVICE CO-OPERATIVE BANK LTD. NO.2529,ENATHU P.O., ADOOR-PIN-691 526, REPRESENTED BY ITS SECRETARY. 2 THE SECRETARY, ENATHU SERVICE CO-OPERATIVE BANK LTD. NO.2529,ENATHU P.O., ADOOR-PIN-691 526. BY ADVS.SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENTS/PETITIONER & RESPONDENTS 3 TO 5: 1. SACHU R.S, AGED 20 YEARS, S/O. RAGHAVAN G., SACHU BHAVANAM, ENATHU P.O., ADOOR TALUK, PATHANAMTHITTA-PIN-691 526. 2. THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES(GENERAL) REVENUE TOWER, ADOOR, PATHANAMTHITTA-691 526. 3. THE JOINT REGISTRATION OF CO-OPERATIVE SOCIETIES(GENERAL) CIVIL STATION, PATHANAMTHITTA-PIN-689 645. 4. GOVERNMENT OF KERALA REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695 001. ## ADDITIONAL RESPONDENT: 5. SHAIJU JOHN, AGED 36 YEARS, S/O. P M YOHANNAN, RESIDING AT PALATHADAM PUTHEN VEEDU, ELANGAMANGALAM, ENATHU P.O, PATHANAMTHITTA – 691 526. (ADDITIONAL 5TH RESPONDENT IS IMPLEADED AS PER ORDER DT.6.7.2018 IN I.A.NO.834/2017) R1 BY ADV. SRI.NOBEL RAJU R1 BY SRI.KRISHNA PRASAD. S R2 TO R4 BY SPECIAL GOVERNMENT PLEADER SRI.K.S.MOHAMAD HASHIM. ADDL.R5 BY ADV. SRI.K.RAMAKUMAR (SR.) ADDL.R5 BY ADV. SRI.S.M.PRASANTH ADDL.R5 BY ADV. SRI.T.RAMPRASAD UNNI THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ALONG WITH W.A.NOS.2435 & 2459 OF 2015 ON 04-07-2018, THE COURT ON 06-07-2018 DELIVERED THE FOLLOWING: ## “CR” ## V. CHITAMBARESH & SATHISH NINAN, JJ. = = = = = = = = = = = = = = = = = = = = = = = = ## W.A.Nos.2405, 2435 & 2459 of 2015 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 6[th] day of July, 2018 ## Judgment ## Chitambaresh, J. 1.The Enathu Service Co-operative Bank Ltd. [hereinafter referred to as 'the bank'] took steps to fill up the six posts lying vacant out of the total sanctioned posts of fifteen being a class III society. The managing committee of the bank by Resolution No.15 dated 20.4.2015 decided to fill up the post of Junior Clerk by candidates belonging to Scheduled Castes/Scheduled Tribes. The managing committee of the bank by Resolution No.745 dated 28.3.2015 decided to fill up the post of Data Entry Operator by candidates who are physically handicapped. The above resolutions were forwarded to the Co-operative Service Examination Board ['the Board'] who alone could conduct WAs.2405,2435 & 2459/2015 -: 2 :- written examination for direct recruitment to the posts aforesaid. 2.The bank also issued a notification dated 22.4.2015 inviting applications from eligible candidates for appointment to one post of Attender, two posts of Peon and one post of Night Watchman totalling to four in number. The bank could resort to direct recruitment by itself since posts above the category of Junior Clerks alone need be filled up by conducting written examination by the Board. The writ petitions were filed challenging the notification dated 22.4.2015 on the specious plea that the principles of reservation have not been adhered to by the bank. The reservation was not specifically spelt out in the notification as it has already been extended to the recruitment covered by the resolutions of the bank earlier stated. 3.The learned single Judge has invalidated the notification by WAs.2405,2435 & 2459/2015 -: 3 :- the judgment titled Vinodkumar T.R. and another v. Enathu - Service Co operative Bank [2015 KHC 778] inter alia observing as follows: “51. In the present instance, Ext.P8 notification does not satisfy the statutory mandate of providing horizontal reservation to the physically challenged persons. It has, on the contrary, reserved a specific post exclusively for the physically challenged; in my considered view, it is impermissible. The method adopted by the respondent Bank results in deprivation of opportunity to the candidates of all sections to compete for one post. Further, even concerning SC/ST candidates, a post vacant in presenti has not been reserved. As is evident from Ext.R1(a), only a future vacancy has been reserved. This arrangement, too, fails to pass the statutory muster.” The bank has filed these writ appeals reiterating that the WAs.2405,2435 & 2459/2015 -: 4 :- principles of reservation were scrupulously followed in taking steps for filling up the vacant posts in consonance with the statute and the circulars. 4.The principles of reservation applicable to the present recruitment exercise are contained in Sections 80(4) and 80(5) of the Kerala Co-operative Societies Act, 1969 ['the Act'] which are extracted below: ## “ 80. Officers, etc. of Co-operative Societies.- (4) Notwithstanding anything contained in sub-section (1) or sub-section (2), ten percent of the posts of employees of every society shall be reserved for appointment from persons belonging to the scheduled castes and scheduled tribes where the method of appointment to such posts is by direct recruitment. (5) Notwithstanding anything contained in sub-section (1) or (2) three percent of the total posts of employees of every society shall be WAs.2405,2435 & 2459/2015 -: 5 :- reserved for physically handicapped persons having disability of forty percent or above, as certified by the medical board and the procedure of appointment shall be such as may be prescribed. Provided that in societies where there are more than ten and less than thirty three employees including cadre and sanctioned posts, there shall be reserved a minimum of one employee belonging to physically handicapped persons.” The tenth post (of Junior Clerk) has been reserved for Scheduled Castes/Scheduled Tribes evident by Resolution No.15 dated 20.4.2015 which satisfies the ten percent as enjoined in Section 80(4) of the Act. The resolution preceded the notification dated 22.4.2015 for the posts of Attender, Peon and Night Watchman and it cannot be said that 'a post vacant in presenti has not been reserved'. The highest of the posts remaining vacant has been earmarked for Scheduled WAs.2405,2435 & 2459/2015 -: 6 :- Castes/Scheduled Tribes by the bank which cannot be found fault with by those harping for reservation. 5.The eleventh post (of Data Entry Operator) has been reserved for physically handicapped persons evident by Resolution No.745 dated 28.3.2015 which satisfies the proviso to Section 80(5) of the Act. The reservation has been so made since there are more than ten and less than twenty three employees in sanctioned posts (see: Jayaprakash v. - Joint Registrar of Co operative Societies [2013(4) KLT 788]). The Government has empowered the Registrar to identify the posts which can be reserved for persons with disabilities in accordance with which Circular No.54/2011 dated 14.7.2011 has been issued. The circular identifies the posts of Clerk, Typist and Peon/Attender as available for reservation to persons with disabilities and a Data Entry Operator is in the same rank as Typist. In fact the post of Junior Clerk/Junior Cashier/Appraiser/Typist/Data Entry WAs.2405,2435 & 2459/2015 -: 7 :- Operator falls in the same category and has the same scale of pay and emoluments under the Act. The circular has been issued in terms of Section 32 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ['the Disabilities Act']. The statutory provision is as under: “ 32. Identification of posts which can be reserved for persons with disabilities.Appropriate Governments shall- (a) identify posts, in the establishments, which can be reserved for the persons with disability; (b) at periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the developments in technology.” 6.The bank has reserved the post of Data Entry Operator (equivalent to the post of Clerk or Typist) for physically WAs.2405,2435 & 2459/2015 -: 8 :- handicapped persons after identifying the said post as per Section 32 of the Disabilities Act. Such an identification is essential and Resolution No.745 dated 28.3.2015 of the bank is in order even if it deprives the able-bodied candidates from applying to the post. The criticism for reserving a 'specific post exclusively for the physically challenged' has been made without reference to Circular No.54/2011 and Section 32 of the Disabilities Act. There is no rationale or justification in directing the physically handicapped candidates to compete with the able-bodied candidates for the same post. Manual typewriters are replaced by desktop computers and the same can be easily handled by physically handicapped candidates working as Data Entry Operators. It transpires that the Board did conduct examinations pursuant to the resolutions dated 28.3.2015 and 20.4.2015 of the bank and the publication of the rank list has been stayed. We notice that the notification dated 22.4.2015 of the bank has been set aside solely on WAs.2405,2435 & 2459/2015 -: 9 :- the ground of reservation and all other contentions in the writ petitions were repelled. Only the bank has filed these writ appeals challenging the adverse finding as regards the reservation and we are satisfied that there is no infringement in that regard. We set aside the impugned judgment and dismiss the writ petitions making it clear that the bank can continue the recruitment process from the stage at which it was halted. The writ appeals are allowed. No costs. Sd/- V. CHITAMBARESH, JUDGE Sd/SATHISH NINAN, JUDGE Sha/050718 -true copy- PS to Judge