Ibe y Susan Issac v. Anicadu Service Co-operative Bank Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **THURSDAY, THE 3RD DAY OF JANUARY 2013/13TH POUSHA 1934** ## **WA.No. 924 of 2010 ( ) IN WP(C).6384/2010** **------------------------------------------** **AGAINST THE ORDER/JUDGMENT IN WP(C).6384/2010 DATED 11-03-2010** **APPELLANT(S)/PETITIONER IN THE ACCOMPANYING PETITION FOR SPECILA LEAVE TO APPEAL :** **IBEY SUSAN ISSAC, D/O. ISSAC CHANDY, CHIRATTAMANNIL HOUSE,NOOROMAVE.P.O,PUNNAVELI PATHANAMTHITTA.** **BY ADV. SRI.S.SUBHASH CHAND** ## **RESPONDENT(S)/PETITIONER AND RESPONDENT IN THE WRIT PETITION :** **1. THE ANICADU SERVICE CO-OPERATIVE BANK LTD.NO. A-113,REPRESENTED BY ITS,PRESIDENT NOOROMAVE.P.O,ANICADU,PATHANAMTHITTA - 689 589.** **2. JOINT REGISTRAR OF CO-OPERATIVD SOCIETIES (G),PATHANAMTHITTA.** **R1 BY SRI.P.N.MOHANAN** **R2 GOVERNMENT PLEADER SRI. D. SOMASUNDARAM** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 03-01-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **BP** ## **WA.No. 924 of 2010 ( )** ## **APPENDIX** ## **PETITIONER'S ANNEXURES :** - **A1: COPY OF THE COVERING LETTER ISSUED BY THE APPELLAT.** - **A2: COPY OF THE DD FOR THE AMOUNT OF RS. 100/- SUBMITTED BY THE APPEALLANT.** - **A3: COPY OF THE CALL LETTER DT 24/8/2009 ISSUED TO THE APPELLANT BY RESPONDENT NO.1 BANK.** - **A4: COPY OF THE CIRCULAR DT 7/6/1991 ISSUED BY THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM** - **P5: COPY OF THE CIRCULAR DT 23/3/1999 ISSUED BY THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM.** - **P6: COPY OF THE STATUTORY PETITION DT 15/10/2009 SUBMITTED BY THE APPEALLANT ALONGWITH OTHERS BEFORE RESPONDENT NO.2** - **P7: COPY OF THE JUDGMENT DT 16/11/2009 PASSED BY THIS HON'BLE COURT IN WPC NO. 32754/2009(L)** ## **RESPONDENT'S ANNEXURES :** **NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE** ## **BP** S.SIRI JAGAN & C.K.ABDUL REHIM,JJ. ------------------------------WA.NO. 924 of 2010 --------------------------------Dated this the 3rd day of January, 2013 ## JUDGMENT ## Siri Jagan,J. The appellant in this writ appeal is challenging the judgment of a learned single judge of this court in WP(C). No.6384/10. She was not a party to the writ petition. But it so happened that the order of the Joint Registrar of Co-operative Societies, which was under challenge in that writ petition, was passed at the instance of the appellant on a complaint made by her. But the writ petition was filed without impleading her as a party to the writ petition which was allowed and the order passed in favour of the appellant was set aside by the learned Single Judge. Therefore the appellant filed I.A.No.388/10 seeking leave to file writ appeal against the judgment of the learned Single Judge which was allowed and leave was granted. Consequently the writ appeal has been numbered, which has later been admitted. The bone of contention between the parties relate to appointment to a post of peon in the 1[st] respondent Co- WA.924 /2010 2 operative Bank. The bank issued a notification inviting applications for 3 posts of Peon in the bank by Ext.P1 notification. As per that notification the last date for submitting applications was on 5.5.2009. At the instance of a member of the Society the very act of the bank in making appointments to the post was under challenge in WP(C).No.13901/09. That writ petition was allowed, against which WA No. 2066/09 was pending. After issuing Ext.P1 notification one more vacancy of peon arose in the bank on 31.8.2009, on account of one incumbent availing of voluntary retirement from service. Subsequently the bank completed the selection process and published Ext.P4 rank list of 10 persons. From the said rank list 4 persons were appointed to 4 vacancies including the one which arose on 31.8.09 subsequent to the last date fixed in Ext.P1 notification for submitting applications for selection to the 3 notified vacancies. The appellant filed a complaint against the appointment to the 4[th] post before the Registrar of Co-op societies on the ground that only the notified vacancies could have been filled up pursuant to the selection. By Ext.P10 order the Joint Registrar held that no WA.924 /2010 3 appointments could have been made to vacancies other than the notified vacancies and therefore appointment to the 4[th] vacancy from the rank list was illegal. The 1[st] respondent bank filed the writ petition challenging Ext.P10 order of the Joint Registrar of Co-op. Societies. While that writ petition was being argued it was pointed out that a final decision in the W.A.No.2066/2009 would materially affect the decision in the writ petition. Relying on the decision of the Division Bench in **Kodakara Farmers** ## **Service Co-operative Bank Ltd. vs. Neena ( 2010 (1) KLT** **541),** the learned Single Judge allowed the writ petition setting aside Ext.P10 order, but making it clear that the appointment made by the bank to 4 posts of Peon pursuant to Ext.P3 judgment shall be subject to the final order in WA.No.2066/09. The appellant is challenging that judgment. 2. The contention of the appellant is that it is settled law that no appointment can be made to vacancies other than the notified vacancies, unless there is a specific rule for preparation of a rank list, keeping the same alive for a specified period for appointment from the rank list to vacancies arising during the WA.924 /2010 4 period of currency of the rank list. It is submitted that in the case of appointment to sub staff in Co-operative Societies, there is no provision of law which enables Co-operative Societies to prepare a rank list of selected persons to the post of sub staff and to make appointments from the list to vacancies which arose during the period of currency of the rank list. It is submitted that reliance by the learned single judge on the decision of the Division Bench in **Kodakara Farmers Service Co-operative Bank Ltd. vs. Neena ( 2010 (1) KLT 541)** is inapposite because the decision applies to appointments in accordance with Rule 182(4) of the Co-operative Societies Rules, which in turn is the procedure prescribed for appointment in Co-operative banks as per section 80B of the Co-operative Societies Act through Cooperative Service Examination Board. The post of sub staff is expressly excluded from the purview of section 80B and consequently the procedure prescribed in Rule 182(4) is clearly inapplicable for appointment to the post of sub staff in Cooperative Societies. The contention is that the post of peon comprises of the sub staff of Co-operative Societies and therefore WA.924 /2010 5 Rule 182(4) does not apply for recruitment to the post of peons. Therefore the procedure of preparing a rank list of successful candidates to be kept alive for a specified period and of making appointments from the list to vacancies arising during the currency of rank list is not applicable to the post of peons. Consequently there cannot be any preparation of a rank list, keeping it alive for a specified period and appointment to vacancies which arose during the currency of the rank list in excess of the notified vacancies. Therefore the decision in **Kodakara Farmers Service Co-operative Bank Ltd. vs.** **Neena ( 2010 (1) KLT 541)** is clearly distinguishable is the contention raised by the learned counsel for the appellant. The learned counsel for the appellant relies on decisions of the Supreme Court and that of this court wherein it has been categorically held that in the absence of Rules providing for preparation of a rank list to be kept alive for a specified period and for appointments to vacancies which arose during the currency of the rank list, no appointment could have been made to vacancies other than the notified vacancies. The appellant WA.924 /2010 6 relies on the Division Bench decision of this court in **Deepthy Vijayakumar vs. Joint Registrar (2008(4) KLT 321),** and the decision of the Supreme Court in **Rakhi Ray and others vs. High Court of Delhi and others (2010(2) SCCC 637)** and **Thrissur District Co-operative Bank Lrtd. vs. Delson Davis** **(2002(1) KLT 852 (SC)** in support of the said contention. The appellant therefore submits that the appointment to the 4th post which has not been notified as per Ext.P1 notification inviting applications to the post of peons in the 1[st] respondent Bank is clearly illegal and unsustainable. 3. Learned counsel for the 1[st] respondent submits that by implication sub rule (4) of Rule 182 has been made applicable to appointments to the post of sub staff as well. The reasoning of the learned counsel for the 1[st] respondent is that under sub rule 5 of Rule 182 in respect of societies and posts not covered by section 80B of the Act, the appointment shall be made by the committee after conducting a written examination and interview as per the guidelines issued by the Registrar. The Registrar has issued guidelines in respect of the same, which forms part of sub WA.924 /2010 7 rules (1) to (4) of Rule 182 also and therefore by implication of the procedure prescribed in sub Rule 1 to 4 of Rule 182 applies to appointment of the post of sub staff also. Sub Rules 1 to 4 of Rule 182 prescribes for preparation of a rank list and keeping it alive for a period of two years, in which case vacancies which arose after the notification also can be filled up from the rank list pursuant to the notification, which only has been done by the 1[st] respondent in this case, is the contention. 4. We have heard learned Special Government Pleader (Co-operative Societies) also. On a consideration of the arguments raised we are inclined to agree with the counsel for the appellant. In view of the decisions quoted by the learned counsel for the appellant, two of which relate to appointments in Co-operative Societies themselves, it is settled law that in the absence of any Rules for preparation of a rank list and appointment to vacancies which arose subsequent to the notification from the rank list during the currency of the rank list, no appointments can be made to vacancies in excess of the notified vacancies. Reliance by the learned Single Judge on the WA.924 /2010 8 decision in **Kodakara Farmers Service Co-operative Bank Ltd. vs. Neena ( 2010 (1) KLT 541)** is clearly inapposite. As pointed out by the learned counsel for the appellant that decision was in the context of the sub rules 1 to 4 of Rule 182 of the Kerala Co-operative Societies Rules, which specifically provide for preparation of a rank list and appointment to vacancies, which arose during the currency of the rank list from the rank list so prepared, which is applicable only to selection made by the Co-operative Service Examination Board to posts covered by Section 80B of the Co-operative Societies Act. The post of peon has not been brought within the purview of the Examination Board under section 80B. The interpretation put to Sub Rule (5) of Rule 182 by the counsel for the 1[st] respondent does not appeal to us. Under rule 182 (5) a separate procedure has been prescribed for selection to the post not covered by section 80(3)(a) and 80B of the Co-operative Societies Act. The selection and appointment has to be made after conducting the written examination and interview as per the guidelines issued by the Registrar. The Registrar has in fact issued Ext.A5 circular WA.924 /2010 9 laying down the guidelines for selection and appointment which specifically prescribe that the notification inviting applications should specifically mention the number of vacancies available. That circular does not postulate preparation of a rank list and keeping it alive for a specified period and making appointments to subsequent vacancies arising during the currency of the rank list, in excess of the notified vacancies, from the rank list prepared. Therefore evidently there is no Rule enabling the 1[st] respondent bank to prepare a rank list pursuant to Ext.P1 notification and to make appointments to vacancies, which arose in excess of the notified vacancies also from the rank list so prepared keeping the rank list alive for a specified period. Therefore the appointment made by the 1[st] respondent to the 4[th] post of Peon in the 1[st] respondent bank is clearly unsustainable. As such Ext.P10 order of the Joint Registrar is perfectly valid and proper. Consequently quashing of that order by the learned single Judge is unsustainable. Accordingly we allow the appeal setting aside the judgment dated 11.3.2010 of the learned Single Judge in WP(C).6384/10 and restoring Ext.P10 order of the Joint WA.924 /2010 10 Registrar of Co-operative Societies. The writ appeal is allowed as above. S.SIRI JAGAN, JUDGE C.K.ABDUL REHIM, JUDGE pmn/ WA.924 /2010 11