Jayaprakasan N. v District Co-operative Bank Palakkad and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY, THE 24TH DAY OF JUNE 2016/3RD ASHADHA, 1938** **WP(C).No. 11967 of 2016 (U) ----------------------------** **PETITIONER(S): -------------** **JAYAPRAKASAN N., AGED 39 YEARS,S/O. NAGAN C., MARUTHALAPARAMBA HOUSE, PERUVEMBA POST, PALAKKADU DISTRICT-678 531.** **BY ADVS.SRI.K.V.REJANISH SRI.A.S.DHEERAJ** **RESPONDENT(S):** **--------------** **1. DISTRICT CO-OPERATIVE BANK, PALAKKADU, REP. BY ITS GENERAL MANAGER, PALAKKADU P.O., PALAKKAD DISTRICT-678 001.** **2. KERALA PUBLIC SERVICE COMMISSION, REP. BY ITS SECRETARY, PATTOM, TRIVANDRUM-695 021.** **3. VIJAYAN C., AGED 36 YEARS, SECRETARY, CHUNDAKKADU KSHEEOLPADAKA SAHAKARANA SANGAM, KAVUSERY P.O., PALAKKADU DISTRICT-678 543.** **R1 BY SRI.M.SASINDRAN, SC R2 BY SRI.P.C.SASIDHARAN, SC, KPSC R3 BY ADV. SRI.P.N.MOHANAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-06-2016 THE COURT ON 24-06-2016, DELIVERED THE FOLLOWING:** **msv/** ## **WP(C).No. 11967 of 2016 (U)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -----------------------** - **P1 TRUE COPY OF APPLICATION DATED 19-12-2014** - **P2 TRUE COPY OF THE GAZETTE NOTIFICATION DATED 25-11-2014** - **P3 TRUE COPY OF THE VERIFICATION CERTIFICATE DATED 09-04-2015** - **P4 TRUE COPY OFTHE SERVICE CERTIFICATE DATED 04-04-2015** - **P5 TRUE COPY OF INTERVIEW LETTER DATED 01-01-2016** - **P6 TRUE COPY OF THE RANKED LIST NO 64/2016/SS V** **ESPONDENT(S)' EXHIBITS:** - **EXT.R3(a): A TRUE COPY OF THE ADVICE MEMO DTD.24.2.2016 OF THE PSC.** **EXT.R3(b): A TRUE COPY OF TE APPOINTMENT ORDER DTD.23.3.2016.** **EXT.R3(c): A TRUE COPY OF THE COMMUNICATION DTD.30.3.2016 OF THE BANK.** **//TRUE COPY//** **P.S.TO JUDGE** **Msv/** ## **SHAJI P. CHALY, J.** ----------------------------------------------- ## **W.P.(C). No. 11967 of 2016** **-----------------------------------------------** Dated this the 24[th] day of June, 2016 ## **JUDGMENT** This writ petition is filed by the petitioner seeking to set aside the interview dated 20.1.2016 and Ext.P6 rank list published in pursuance to the Gazette notification dated 25.11.2014 in Category No.534/2014 for the post of Peon/Watchman in District Co-operative Bank, Palakkad and for other related reliefs. 2. Brief facts for the disposal of the writ petition are thus:- Petitioner was an applicant to the post of Peon/Watchman in District Co-operative Bank, Palakkad. The application was invited by second respondent for one vacancy. The selection was from the regular employees of the member Societies/Primary Co-operative Societies affiliated to the first respondent Bank. Accordingly, 2 W.P.(C). No. 11967 of 2016 petitioner submitted Ext.P1 application dated 19.12.2014. Gazette notification dated 25.11.2014 is evident from Ext.P2. As per Ext.P2 qualification required for the post was pass in 7[th] standard. But, as per Rule 186 of the Kerala Co-operative Societies Rules, 1969 a further restriction was also incorporated with respect to the qualification to the effect that applicant to the said post should be an under graduate. It is the contention of the petitioner that the restriction so imposed had not been incorporated in Ext.P2 notification. 3. Petitioner is an undergraduate and he is working as a Clerk in Peruvemba Ksheera Vyavasaya Sahakarana Sangam Ltd. Peruvamaba, Palakkad. True copy of petitioner's certificate of verification dated 9.4.2015 issued by the second respondent showing his educational qualifications is produced as Ext.P3. And service certificate dated 4.4.2015 issued by his employer is produced as Ext.P4. W.P.(C). No. 11967 of 2016 3 4. Third respondent was an applicant for the same post and he is working as a Secretary in Chundakkadu Ksheerolpadaka Sahakarana Sangom, Kavassery, Palakkad. Third respondent is a B.Com graduate from Calicut University. It is also contended that it is reliably understood by the petitioner that third respondent has not disclosed his qualification, to the second respondent while submitting his application for the post. Petitioner and third respondent were the only applicants to the post. On 1.1.2016, second respondent without conducting a written test, invited the petitioner for an interview for the post, evident from Ext.P5. Petitioner has also a contention that, petitioner was under the bonafide impression that there will be a written test conducted by the second respondent. That as per the provisions of the Co-operative Societies Act, and its rules the recruitments to the above mentioned post shall only be made after conducting a written test W.P.(C). No. 11967 of 2016 4 and interview. 5. Petitioner attended the interview on 20.1.2016 and thereafter second respondent published Ext.P6 rank list and accordingly third respondent is the first rank holder and petitioner is the second rank holder. The contention of the petitioner is that petitioner has answered all the questions put by the interview board and he had every hope that he would be the first rank holder. That apart, it is contended that the second respondent has deviated from the normal procedure of conducting a written test and interview. Further, it is contended that the third respondent who is a graduate is not entitled to apply for the post even, since Rule 186 of the Co-operative Societies Rules is amended on the date of the notification and the post was restricted to undergraduate. Therefore, it is the contention of the petitioner that the entire process of selection conducted by the second respondent and the list published W.P.(C). No. 11967 of 2016 5 accordingly are illegal and against the provision of the Co-operative Societies Act and Rules. It is thus aggrieved by Ext.P6 rank list, petitioner has filed this writ petition. 6. Third respondent has filed a counter affidavit refuting the allegations and contentions raised by the petitioner in this writ petition. It is contended that second respondent has invited application to select candidates from the Viswakarma community from the employees working in the Primary Societies affiliated to the first respondent. The said vacancy arose during 2007 and it was notified along with general candidates by category No. 177/2007. The rank list was published on 1.3.2011. But, in the said rank list candidates belonging to Viswakarma community was not available. Thus due to the dearth of candidates belonging to Viswakarma community Ext.P2 notification was again published exclusively for candidates belonging to W.P.(C). No. 11967 of 2016 6 Viswakarma community from the employees of Primary Co-operative Societies affiliated to the first respondent. It is thus two applications are received that of petitioner and the third respondent. 7. That part it is contended, the legal position is that, the vacancy arose during 2007, is governed by the qualification then in force. The qualification was amended by SRO 733/2014 with effect from 26.11.2014 prescribing the qualification for the Peon as under graduation. So also, it is contended that Ext.P2 notification was issued on 25.11.2014, a day before amending the qualification. Therefore, it is urged that the contention raised by the petitioner will not survive. It is also contended that as per Rule 3 Part (1) of Rules of procedures of Public Service Commission it is the discretion of the second respondent to select any of the mode such as written examination or interview or both and the petitioner cannot dictate terms on the second W.P.(C). No. 11967 of 2016 7 respondent. That part, it is contended that petitioner participated in the interview without any demour and he got second rank and therefore, the petitioner cannot turn around and contend that the manner in which the selection was conducted is bad. Therefore, it is the contention of the third respondent that the selection conducted by the Public Service Commission is in accordance law and no interference is called for to Ext.P6 rank list. 8. Heard learned counsel for the petitioner, learned standing counsel for the second respondent and learned counsel for third respondent. 9. The predominant contention raised by learned counsel for the petitioner is that on the date of Ext.P2 notification i.e. 25.11.2014 there was an amendment to Rule 186(1) by incorporating a new clause (v) which read thus:- xxxx “(v) Attender-Peon Pass in Standard VII and W.P.(C). No. 11967 of 2016 8 should not acquire any degree Therefore, the contention of the petitioner is that a candidate applying for the post should not be a degree holder. Therefore, the third respondent who is a degree holder was not competent to apply for the post. Learned counsel has also pointed out that SRO No.733/2014 is dated 25.11.2014 by which the amendment was brought to the statute book. The same is the date on which Ext.P2 notification is issued by the second respondent. It is true, the notification SRO No.733/2014 dated 25.11.2014 is published in the Gazette No.2867 dated 26.11.2014. The crux of the contention advanced by learned counsel for the petitioner is that, on a reading of sub Rule 2 of Rule 1 of the said notification it is categoric and clear that the notification will come into force at once. Even though, the said notification is not produced the same is made available across the bar. According to the learned counsel for the petitioner the said W.P.(C). No. 11967 of 2016 9 notification came into force on 25.11.2014, even though published in the gazette dated 26.11.2014 since it is declared that it will come into force at once. Ext.P2 is also dated 25.11.2014. It is in this background learned counsel contends that as on the date of Ext.P2 notification issued by the second respondent the amendment was in force. Therefore, the second respondent was not entitled to even apply for the post. That apart, it is contended by learned counsel that, the effective date of notification will depend upon the stipulation contained thereunder and in the case at hand it came into force on on 25.11.2014. 10. It is also the contention of the counsel that the second respondent has conducted only an interview pursuant to Ext.P2. However, as per the provisions of the Co-operative Societies Rules written test and interview is the procedure to be adopted and therefore, the deviation made by the second respondent from the W.P.(C). No. 11967 of 2016 10 routine procedure makes the selection process illegal and against the provision of the Rules. Accordingly, it is contention of the petitioner that selection made by the second respondent cannot be sustained under law. 11. On the other hand, learned counsel for the third respondent contended that even though, the notification is dated 25.11.2014 it came into force only on 26.11.2014 when it was published in the gazette and therefore on the date of Ext.P2 notification the amendment was not in force. It is therefore, the contention of the learned counsel that the amendment will not apply to Ext.P2 notification and the third respondent even though a graduate was entitled to apply to the post notified. Learned counsel has invited my attention to a Division bench judgment of this Court in **Mahesh Purushothaman v. Manjoor Service Cooperative Bank Limited No. K 73 and others** in W.P.No.569/2015 dated 17.3.2015 and contended that W.P.(C). No. 11967 of 2016 11 the principles of law laid down in the judgment applies clearly to the facts of this case. Paragraph 3 of the said judgment read thus:- “The qualification prescribed in the notification was pass in the 7[th] standard. The last date specified in the notification for receipt of the applications was 27.11.14. While so, by Ext.P2 dated 25.11.14, Rule 186 of the Kerala Co-operative Societies Rules prescribing qualification was amended and as a result, degree holders were made ineligible for the post in question. This amendment was brought into effect from 26.11.14.” 12. On a reading of the said judgment the factual circumstance is clear, wherein the qualification prescribed was pass in 7[th] standard. But, however, the last date specified in the notification for receipt of the applications was 27.11.2014. While so, as per Ext.P2 dated 25.11.2014, Rule 186 of the Kerala Co-operative Societies Rules prescribing qualification was amended and as a result the degree holders became ineligible for the post in question. The said amendment was brought W.P.(C). No. 11967 of 2016 12 into effect from 26.11.2014. There the Division Bench held that the amendment to the recruitment Rules after the notification cannot have any impact on the vacancy, and therefore it was held that the amendment was not binding to the notification so issued. Learned counsel has also invited my attention to the Full Bench judgment of this Court in **Mohanan v. Director of Homeopathy** [2006 (3) KLT 641 (FB). There, the question considered was vacancies which arose subsequent to the amendment of the Special Rules, and held that, such vacancies cannot be filled up from the rank list prepared by the Public Service Commission pursuant to the selection process initiated before the amendment and completed after the amendment. Learned counsel also contended that the vacancy notified that was of the year 2007. During the selection conducted in the year 2011 there was no Viswakarma candidates and it was in the said circumstances the selection was made as per W.P.(C). No. 11967 of 2016 13 Ext.P2. Therefore, it is the contention of the learned counsel for the third respondent that the principles laid down in the Full Bench strictly applies to the instant selection process. Learned counsel for the second respondent supported the arguments advanced by the counsel for the third respondent. 13. I have considered the submission made across the bar, perused the pleadings and documents on record. The question to be decided is with respect to the impact of the amendment of rule 186 (1)(v) vis-a vis Ext.P2 notification inviting application. As discussed earlier, Ext.P2 notification is dated 25.11.2014. SRO 733/2014 is also dated 25.11.2014, which is published in the gazette dated 26.11.2014 with a stipulation that the amendment shall come into force at once. The amendment brought into force with the intention of providing the post to undergraduates. Prior to the amendment, qualification prescribed for the post was as W.P.(C). No. 11967 of 2016 14 follows:- “All other posts with starting pay below 100.” Seventh standard Therefore, it had an appearance that any person with seventh standard and above was entitled to apply for the post. It is for the purpose of providing the post in question to 'undergraduates' such an amendment was brought. More over, the amendment notification is dated 25.11.2014 which is declared to come into force at once, which thus means on publication of the notification in the Gazette, it will come into effect from the date of the notification. Therefore in my considered opinion it came into force with effect from 25.11.2014. i.e., on the date of Ext.P2 notification. Therefore, only undergraduates was entitled to apply for the post in question. Taking into account the factual circumstances and evaluating the same with the judgment of the Division Bench of this Court in **Mahesh Purushothaman** supra, it is clear W.P.(C). No. 11967 of 2016 15 that, the amendment was brought into force just on the previous day of the last date for receipt of the applications i.e on 26.11.2014. From the wording contained in the judgment it is clear that the amendment was brought into force from 26.11.2014, whereas the amendment in question in this case was brought into force at once. Taking into account such a factual situation it can be seen that the law laid down by the Division Bench of this Court in **Mahesh Purushothaman** referred (supra) is different from the factual circumstances involved in this case. Therefore, the question boils down whether the amendment dated 25.11.2014 was applicable to the candidates applying under Ext.P2 notification. In my considered opinion, since the date of application and date of amendment are same it can only be legally presumed that the amendment came into force on the date of notification itself, therefore, the third respondent was not entitled to W.P.(C). No. 11967 of 2016 16 apply for the post. 14. So far as the Full Bench judgment in **Mohanan** cited supra is concerned,the question considered was the vacancies which arose subsequent to the amendment to the special Rules and held that the same cannot be filled up from the rank list prepared by the Public Service Commission. Here, the situation is entirely different. The vacancy was pre-existing and on the date of notification inviting application for the post the amendment was brought into force, therefore, in my view the principles laid down by the Full Bench will not apply to the facts and circumstances of the case. 15. Learned counsel for the petitioner also has a case that the selection conducted by the Public Service Commission by resorting to interview alone cannot be sustained since the Co-operative Societies Rules provides for written test and interview. However, this Court had occasion to consider the question in W.P.(C). No. 11967 of 2016 17 **Navamani v. University of Calicu** t [2013(3) KLT (SN) 25 (C 26) and **Ajith v. State of Kerala** [2006(3) KLT 743] and held that the candidates participated in selection process cannot turn around and say that it was bad. Same is also the legal proposition laid down by a Division Bench of this Court in **Rajani R.V. v Kerala Public Service Commission and others** in O.P.(KAT) 366/2015 dated 8.12.2015. Therefore, the contention advanced by learned counsel for the petitioner accordingly cannot be sustained. 16. However, having found that the amendment to Rule 186 has come into force on 25.11.2014 i.e on the date of Ext.P2 notification, the petitioner was the sole person entitled to apply for the post. More over, the third respondent was unqualified pursuant to the amendment which which came in to force on 25.11.2014 being a graduate. Viewed in that circumstances the third respondent was not entitled to apply for the post and W.P.(C). No. 11967 of 2016 18 participate in the selection. As pointed out earlier, there were only two candidates namely the petitioner and the third respondent applied to the said post. Since the third respondent is unqualified to apply for the post in question, the sole candidate qualified is the petitioner, second rank holder. 17. Therefore, the petitioner is entitled to succeed in this writ petition. Consequentially , there will be a direction to the second respondent to cancel the name of the third respondent from Ext.P6, incorporate the name of the petitioner as the first rank holder and publish a new rank list and advice the petitioner accordingly to the first respondent, at the earliest, and at any rate within a period of one month from the date of receipt of copy of this judgment. ## Writ petition is disposed of accordingly. Sd/- **SHAJI P. CHALY, JUDGE** dlk/17/6/