Jincy T.C. v. Oonnukal Service Co-Operative Bank Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** ## **WEDNESDAY, THE 22ND DAY OF JULY 2020 / 31ST ASHADHA, 1942** ## **WP(C).No.8456 OF 2016(F)** ## **PETITIONER:** **JINCY T.C., ARACKAKUDIYIL HOUSE, OONNUKAL P.O., KOTHAMANGALAM.** **BY ADVS. SRI.P.P.JACOB SRI.T.P.GOPAKUMAR** ## **RESPONDENTS:** **1 THE OONNUKAL SERVICE CO-OPERATIVE BANK LTD.NO.E.58 OONNUKAL P.O., KOTHAMANGALAM, PIN - 686 693, REPRESENTED BY ITS SECRETARY. 2 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (G) ERNAKULAM, CIVIL STATION, B-2 BLOCK, 5TH FLOOR, KAKKANADU, KOCHI - 682 030.** **R1 BY ADV. SMT.K.AMMINIKUTTY R1 BY ADV. SRI.N.RAGHURAJ** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.07.2020, ALONG WITH WP(C).10297/2016(J), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** ## **WEDNESDAY, THE 22ND DAY OF JULY 2020 / 31ST ASHADHA, 1942** ## **WP(C).No.10297 OF 2016** ## **PETITIONERS:** **1 THE OONNUKAL SERVICE CO-OP.BANK LTD. NO.E-58,OONNUKAL P.O, KOTHAMANGALAM, ERNAKULAM DISTRICT-686 693, REPRESENTED BY ITS SECRETARY. 2 THE COMMITTEE, THE OONNUKAL SERVICE CO-OP.BANK LTD., NO. E-58, OONNUKAL P.O, KOTHAMANGALAM, ERNAKULAM DISTRICT- 686 693, REPRESENTED BY ITS PRESIDENT.** **BY ADVS. SRI.N.RAGHURAJ SMT.K.AMMINIKUTTY** ## **RESPONDENTS:** - **1 JINCY T.C., ARACKAKUDIYIL HOUSE, OONNUKAL P.O, KOTHAMANGALAM,ERNAKULAM DISTRICT - 686 693.** - **2 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), ERNAKULAM - 682 030.** - **3 THE KERALA CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM - 695 001.** **R1 BY ADV. SRI.P.P.JACOB BY GOVT. PLEADER SMT.MABLE C. KURIAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.07.2020, ALONG WITH WP(C).8456/2016(F), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = W.P.(C) Nos.8456 & 10297 of 2016 = = = = = = = = = = = = = = = = = = Dated this the 22[nd] day of July, 2020** ## **JUDGMENT** Two questions of very frequent occurrence and which have been answered in a plethora of decisions have arisen in these writ petitions. The issues are:- (1) If more vacancies than the number of posts notified for selection exists, can appointments to the non-notified vacancies be made from the very same select list. (2) Does the administrator/Administrative Committee have the power to make regular appointments in a Society. The precedents on the above are categoric in their answer, “No”. 2. Coming to the necessary facts, one Jincy T.C., who is the petitioner in W.P.(C) 8456/2016, had been employed in the Oonnukal Service Cooperative Bank Ltd. on temporary basis, with effect from 04.07.2009. The Society issued a notification W.P.(C) Nos.8456 & 10297 of 2016 :- 2 :- dated 30.11.2010 notifying among others, the vacancy of three Peons out of which one was reserved for the physically handicapped. Based on the written test and interview, Jincy was ranked no.4, in the General Category. Persons ranked 1 and 2 were appointed in the General Category and the one vacancy reserved for physically handicapped was filled up from its quota. 3. Contending that, as per the staff strength of the Society there are several vacancies available and claiming appointment in the Society, Smt.Jincy filed ARC 45/2013 before the Co-operative Arbitration Court. The reliefs sought in the ARC read thus:- _“i) Pass an award directing the respondents to absorb the petitioner in any of the available posts of peon/attender considering the long continuous service rendered by the petitioner in the respondent bank._ _ii) Pass an award directing the respondents to appoint the petitioner in the available vacancy of peon/attender from the rank list published enlisting the petitioner as fourth rank in any of_ W.P.(C) Nos.8456 & 10297 of 2016 :- 3 :- _the vacancies immediately._ _iii) Issue such other reliefs which may deem fit and proper allowing the petitioners to continue in the service of the first respondent as regular employees.”_ 4. Pending the ARC, Smt.Jincy claimed that a resolution has been passed by the Committee appointing her to the post of Peon. Recording the submission and further observing that the Society and its Committee, who were the defendants in the ARC, have not raised any objection regarding the appointment as claimed by Smt.Jincy, an award was passed approving the appointment of Smt.Jincy as Peon. 5. Challenging the award, the Society and its Committee filed appeal before the Co-operative Tribunal as Appeal No.73/2014, raising various challenges including the statement in the award that the appointment of Smt.Jincy was not objected to by the Society. The Tribunal set aside the award of the Arbitration Court and dismissed the ARC on recording the submission of Smt.Jincy that she was ## W.P.(C) Nos.8456 & 10297 of 2016 :- 4 :- appointed as Peon. It was further directed that she shall be entitled to continue in service till the resolution of the Committee, whereby she was appointed, is declared void and her service terminated as per law. 6. On the complaint of Smt.Jincy, the Joint Registrar passed an order directing the Society to permit her to join the post of Peon. 7. In WP(C) No.10297/2016, the Society and its Committee challenges the judgment of the Tribunal and also the order passed by the Joint Registrar. Smt.Jincy T.C. filed W.P.(C) No.8456/2016 seeking implementation of the direction of the Joint Registrar. 8. Heard Sri.N.Raghuraj, learned counsel for the Society, Sri.P.P.Jacob, learned counsel for Smt.Jincy T.C and Smt.Mable C. Kurian, learned Government Pleader. 9. The right of Smt. Jincy for appointment and the validity of the alleged appointment, are the questions to be answered. W.P.(C) Nos.8456 & 10297 of 2016 :- 5 :- 10. Ext.P1 notification inviting applications for appointment, specified the number of vacancies of Peon as three, out of which one was reserved for the physically handicapped. Therefore, in the general category, the number of vacancies were only two. It is not in dispute that persons ranked 1 and 2 were appointed from the list. In view thereof, the process of selection of Peons, as was notified came to an end and the rank list worked itself out. Smt.Jincy could not claim any right to seek for appointment from the said select list merely pointing out that going by the staff pattern more vacancies are available. Filling up of vacancies over and above the notified vacancies, from the rank list prepared for the notified vacancies, is not permissible under law. The various judgments of the Apex Court in the said regard have been considered by a three Judges Bench of the Apex Court in _**Rakhi Ray v. High Court of Delhi [(2010) 2 SCC 637]**_ and it was held thus:- W.P.(C) Nos.8456 & 10297 of 2016 :- 6 :- _“12. In view of above, the law can be summarised_ _to the effect that any appointment made beyond_ _the number of vacancies advertised is without jurisdiction, being violative of Articles 14 and 16(1) of the Constitution of India, thus, a nullity, inexecutable and unenforceable in law. In case the vacancies notified stand filled up, the process of selection comes to an end.”_ 11. The Apex Court categorically held that once the notified vacancies are filled up, the currency of the select list expires and any appointment made from the said list beyond the number of vacancies advertised is a nullity, inexecutable and unenforceable. The principle has been followed by this Court in various judgments, _**Sreejith v. Mukkom Service Co-operative Bank [2018 (5) KHC 571]**_ being one among them. In the present case, the three notified vacancies having been filled up, the select list expired. Therefore, the claim of the petitioner seeking appointment from the said select list could W.P.(C) Nos.8456 & 10297 of 2016 :- 7 :- only be turned down. So also the appointment order relied on by Jincy is a nullity and is unenforceable in law for the reason stated above. 12. With reference to the length of life of the select list it is also to be noticed that, as per the notification, the period of validity of the list was two years. The select list was published on 27.12.2010 and its validity expired on 26.12.2012. The alleged appointment is in November 2013 which is beyond the life of the list. The appointment lacks legality on that ground also. 13. The appointment of the petitioner is bad for yet another reason. The term of the elected committee had expired on 06.12.2012 and thereafter a part-time administrator was appointed. On 05.03.2013, part-time administrator was replaced by an Administrative Committee. It is thereafter that Smt.Jincy filed ARC 45/2013 and the administrative committee resolved to appoint Smt.Jincy. The administrator/administrative committee has no power to effect regular appointments in a Co-operative Society. [See _**Raghavan Nair v. Joint Registrar of Co-op. Societies**_ W.P.(C) Nos.8456 & 10297 of 2016 :- 8 :- _**(1998 (2) KLT 1068)**_ and _**Rajan N. v. State of Kerala (2016 (2) KHC 805)**_ ]. Therefore, Smt.Jincy cannot claim any right on the basis of the appointment order issued by the Administrative Committee. 14. Before the Arbitration Court, the president of the newly elected committee which assumed office pending the ARC had filed an affidavit challenging the claim of Smt.Jincy that she has been appointed in the Society pending the ARC. So also the new committee had passed resolution dated 06.12.2013 canceling the illegal appointment made by the Administrative Committee. For the reasons stated supra, Smt.Jincy is not entitled to appointment from the select list relied upon by her. The appointment given to Smt.Jincy is bad in law. 15. The order of the Joint Registrar dated 21.01.2016 directing appointment of Smt.Jincy is hereby quashed. The judgment of the Tribunal, insofar as it permitted Smt.Jincy to continue in service, is set aside. The relief of regularisation sought in the ARC having not been considered thus far by the authorities, without expressing anything W.P.(C) Nos.8456 & 10297 of 2016 :- 9 :- on merits, I restore ARC 45 of 2013 and direct the Arbitration Court to adjudicate and pass orders on the said relief in accordance with law. The writ petitions are ordered accordingly. **Sd/SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge ## **APPENDIX OF WP(C) 8456/2016** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE PHOTOCOPY OF THE RANK LIST PUBLISHED BY THE FIRST RESPONDENT DATED 27.12.2010.** **EXHIBIT P2** **TRUE PHOTOCOPY OF THE AWARD IN A.R.C 45/2013 DATED 25.01.2014.** **EXHIBIT P3 TRUE PHOTOCOPY OF THE JUDGMENT IN A.P.73/2014 DATED 16.01.2016.** **EXHIBIT P4 TRUE PHTOCOPY OF THE LETTER SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT DATED 13.07.2015.** **EXHIBIT P5 TRUE PHOTOCOPY OF THE REPRESENTATION FILED BEFORE THE SECOND RESPONDENT BY THE PETITIONER DATED 31.07.2015.** **EXHIBIT P6 TRUE PHOTOCOPY OF THE ORDER ISSUED BY THE SECOND RESPONDENT DATED 21.01.2016.** ## **APPENDIX OF WP(C) 10297/2016** ## **PETITIONER'S/S EXHIBITS:** **Ext.P1 TRUE PHOTOCOPY OF THE NOTIFICATION 30.11.2010, PUBLISHED IN DESHABHIMANI DAILY DATED 02.12.2010 AND ITS ENGLISH TRANSLATION** **Ext.P1(A) TRUE PHOTOCOPY OF THE ERRATUM NOTIFICATION PUBLISHED IN DESHABHIMANI DAILY DATED 03.12.2010 AND ITS ENGLISH TRANSLATION** **Ext.P2 TRUE PHOTOCOPY OF THE RANK LIST FOR THE POST OF PEON PUBLISHED BY THE 1ST PETITIONER ON 27.12.2010** **Ext.P3 TRUE PHOTOCOPY OF THE PLAINT IN A.R.C.45/2013 DATED 15.06.2013 FILED BY THE 1ST RESPONDENT** APPNENDIX-W.P.(C) Nos.8456 & 10297 of 2016 -2- |**Ext.P4**|**TRUE PHOTOCOPY OF THE RESOLUTION NO.30**| |---|---| ||**DATED 06.12.2013 AND ITS ENGLISH**| ||**TRANSLATION**| |**Ext.P5**|**TRUE PHOTOCOPY OF THE AFFIDAVIT DATED**| ||**12.12.2013 FILED BY THE 1ST PETITIONER IN**| ||**A.R.C.45/2013**| |**Ext.P6**|**TRUE PHOTOCOPY OF THE AWARD DATED**| ||**25.01.2014 IN A.R.C. NO.45/2013**| |**Ext.P7**|**TRUE PHOTOCOPY OF THE APPEAL NO.73 OF 2014**| ||**FILED BY THE PETITIONERS BEFORE THE 3RD**| ||**RESPONDENT**| |**Ext.P8**|**TRUE PHOTOCOPY OF THE JUDGMENT DATED**| ||**16.01.2015 IN APPEAL NO.73/2014 OF THE 3RD**| ||**RESPONDENT**| |**Ext.P9**|**TRUE PHOTOCOPY OF THE ORDER BEARING**| ||**NO.C.R.P(1)6985/15 DTD. 21.01.2016 OF THE**| ||**2ND RESPONDENT.**| -----