Latheesh Kumar B. v. Joint Registrar of Co-operative Societies (General), Kasaragod; Assistant Registrar Co-operative Societies, Manjeshwara; The Kumbla Service Co-operative Bank Ltd; Secretary, The Kumbla Service Co-operative Bank Ltd; Reshma S.; Likith Alva

1 WPC 41776/23 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE BASANT BALAJI`** ``` MONDAY, THE 19[TH] DAY OF FEBRUARY 2024 / 30TH MAGHA, 1945 ``` ``` WP(C) NO. 41776OF 2023 ``` ## **`PETITIONER/S:`** ``` LATHEESH KUMAR B. AGED 25 YEARS, S/O. AITHAPPA RAI M.P., KAVYASREE NILAYA, KANCHIKATTE, KUMBLA, KASARAGOD DISTRICT., PIN - 671321 BY ADVS. PUSHPARAJAN KODOTH, K.JAYESH MOHANKUMAR VANDANA MENON, VIMAL VIJAY ``` ## **`RESPONDENT/S:`** ``` 1JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) KASARAGOD, PIN - 671121 2ASSISTANT REGISTRAR CO-OPERATIVE SOCIETIES, MANJESHWARA, ASSISTANT REGISTRAR OFFICE, KUMBALA, KASARAGOD DISTRICT., PIN - 671321 3THE KUMBLA SERVICE CO-OPERATIVE BANK LTD. NO. C-324, P.O. KUMBLA, KASARAGOD DISTRICT. REPRESENTED BY ITS SECRETARY, PIN - 671321 4SECRETARY, THE KUMBLA SERVICE CO-OPERATIVE BANK LTD. NO. C-324, P.O. KUMBALA - 671 321, KASARAGOD DISTRICT., PIN - 671321 5RESHMA S., D/O. SHANKARA, SHANTHIPALLA HOUSE, KUMBLA P.O., KASARAGOD DISTRICT., PIN - 671321 6LIKITH ALVA, S/O. INDUSHEKHARA ALVA, GUDDEMANE, BAMBRANA, P.O.KUMBLA, KASARAGOD DISTRICT., PIN - 671321 BY ADVS. T MADHU Nisha George GEORGE POONTHOTTAM (SR.)(K/000570/1979) C.R.SARADAMANI(S-891) RENJISH S. MENON(K/001486/2021) VRINDA T.S.(K/237/2022) AISWARYA JAYAPAL(K/001566/2023) ``` ## **`OTHER PRESENT:`** ``` GP SRI TONY AUGUSTINE. ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 WPC 41776/23 ## **JUDGMENT** (Dated this the 19[th] day of February 2024) The petitioner is included in Ext.P3 Rank list prepared by the 3[rd] respondent to the post of peon and the petitioner is ranked as serial No.5 in the list. Ext.P1 is the notification by which the applications were invited to the post of the Peon for two vacancies. Rank holders Nos.1 and 2 in Ext.P3 were appointed in the vacancy notified as per Ext.P1. Thereafter, the Bank took steps to fill up 2 more vacancies from Ext.P3 for appointing respondent Nos. 5 and 6, who are ranked as serial Nos.3 and 4 in the Rank list. When this was brought to the petitioner’s notice, he filed a complaint before the 2[nd] respondent, as Ext.P4. But no action was taken up on Ext.P4. 2. The case of the petitioner is that respondents Nos.3 and 4 cannot appoint respondents Nos.5 and 6 to the post of peon, as the notification was only for 2 posts, and by appointing the 3 WPC 41776/23 persons ranked as serial Nos.1 and 2 in the rank list, and the vacancies are filled up, respondent Nos.3 and 4 do not have any right to make any appointment as the notified vacancies have been already filled up, the selection process has come to an end. He has relied on the judgment of this court in W.P.(C) No.3517 of 2022, in which, in a batch of similar cases, this Court had held that when the notified vacancies are filled up, no further appointment can be made. Therefore, this Writ Petition is filed with the following prayers: i) issue a writ of mandamus or any other appropriate order or direction, directing respondents 3 and 4 not to make any appointments to the posts of Peon by appointing respondents 5 and 6 without inviting fresh applications to the post of Peon; ii) declare that respondents 3 and 4 cannot make any appointments to the post of Peon since the notified vacancies has been already filled up; iii) issue a writ of mandamus or any other appropriate order or direction, directing the 2nd respondent to consider Exhibit P4 complaint after hearing the petitioner and also direct the 2nd respondent not to permit the respondents 3 and 4 to fill up the posts of Peon by appointing respondents 5 and 6; 4 WPC 41776/23 iv) declare that the respondents 3 and 4 have no authority to appoint the respondents 5 and 6 to the post of Peon since the selection process comes to an end after the appointment of the notified vacancies; v) issue a writ of mandamus or any other appropriate order or direction, directing the respondents 3 and 4 not to make further appointments to the post of Peons from Ex.P3 ranked list; 3. A counter affidavit is filed on behalf of respondents Nos. 5 and 6, stating that they are candidates included in Ext.P3 rank list for the post of peon. During the pendency of the rank list, 2 more vacancies arose on 1.8.2023 owing to the promotion of 2 persons. As per Rule 182(4)(vii) of the Kerala Cooperative Societies Rules, 1969 (for short ‘the Rules’), the validity of a rank list of the candidates shall be for a period of 2 years from the date of publication of the same by the Examination Board Society and Rule 182(4)(vii) says that the committee shall make all appointments to the vacancies from the Rank list. Ext.P3 rank list was published on 30.6.2023. Applying Rule 182(4)(vii), the said list shall be 5 WPC 41776/23 valid up to 30.6.2025. During the pendency of the list, 2 more vacancies arose. There is no embargo in filling up 2 more vacancies from the list. The counsel relied on judgments of this court in **Kodakara Farmers Co-operative Bank Ltd. v. Neena [2013 (1) KLT 344]** and **Pannivizha Service Cooperative Bank Ltd. v. Smitha T. Pillai (2018 SCC OnlLine Ker 1322).** The respondents prayed for the dismissal of the Writ Petition. 4. The petitioner filed a reply affidavit to the counter affidavit. The main contention is that the appointment is to the post of peon. The decisions relied on by the respondents are with regard to the appointment of junior clerks. The appointment to the post of Junior clerks is governed by Section 80B of the Kerala Co-operative Societies Act (for short ‘the Act’) and Rule 182(4) of the Rules. The appointment to the post of junior clerk is made by conducting a written test, 6 WPC 41776/23 interview, and preparation of a rank list by the Examination Board. Rule 182(4)(vii) of the Rules specifically provides that the period of rank list shall be valid for 2 years from the date of publication by the Society. As far as the post of peon is concerned, it is not brought within the purview of the Examination Board under Section 80B of the Act, and hence, Rule 182(5) of the Rules is not applicable for the appointment. The Bank cannot prepare a rank list and make appointments to vacancies which arose after the appointment of notified vacancies, keeping the rank list alive for 2 years. 5. It is further contended in the reply affidavit that a Division Bench of this court in **Ibey Susan Issac v. Anicadu** **Service Co-operative Bank Ltd., Pathanamthitta [2013(2) KHC 399]** , has held that appointment to the post of peon, over and above the notified vacancy is not permissible under 7 WPC 41776/23 law. Therefore, the judgments relied on by the respondents have no application to the facts of this case. 6. Respondent Nos.3 and 4 also filed a counter affidavit. It is contended that the rank list drawn up for the post of peons to the 3[rd] respondent Society is alive for 2 years. Since the post of peons at the Head office of the society and branch office remain vacant, respondents Nos.5 and 4, who are rank holders Nos.3 and 4, are eligible to be appointed to the said post. 7. As far as Ext.P1 is concerned, the notified vacancies are only for 2 peons, and after conducting the test and interview, Ext.P3 is drawn up, which consists of 20 persons. It is also a fact that rank holders Nos.1 and 2 have already been appointed to the said notification. When 2 appointments are made from the said rank list, the said rank list ceases to operate, and the selection process ends. As far as the post of 8 WPC 41776/23 peon is concerned the Bank itself issues the notification and the interview as well as the test are conducted by the Bank itself. But for the post of clerks, the same is drawn up under Section 80B of the Act and Rule 182(4) of the Rules. The said Act and Rule have no application to the post of peons. The judgments relied on by the counsel for the respondents deal with the rank list prepared to the post of Junior clerks, in which an External Agency conducts the examination and therefore, the rank list is drawn under section Section 80B of the Act and Rule 182(4) of the Rules. Rule 182(4)(vii) specifically provides that the rank List shall be valid for 2 years from the date of publication, but the said Rule and the clause are not applicable to the post of peons. 8. This court has considered similar issue in Ext.P5 judgment in W.P.(C) No.3517 of 2022, wherein a learned Single Judge of this Court, relying on the judgment of the apex 9 WPC 41776/23 court in **State of Orissa v. Rajkishore Nanda (2010 (6) SCC 777),** has held that the vacancies cannot be filled up over and above the number of vacancies advertised as recruitment of candidates over the notified vacancies advertised, is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution of those persons. 9. It is an undisputed fact that the vacancy notified is only 2. Two persons, i.e, the rank holder Nos.1 and 2 were appointed; therefore, the rank list has ended and has no life thereafter. In the said circumstances, respondents Nos.3 and 4 cannot make any appointments from the rank list to respondents Nos.5 and 6, who are rank holders Nos.3 and 4 in the list. Therefore, the petitioner is entitled to relief from this court, and it is declared that respondent Nos.3 and 4 cannot make any appointment to the post of peon since the notified vacancies from Ext.P3 rank list have already been filled up. As 10 WPC 41776/23 there is already an interim order dated 30.12.2023, respondent Nos.5 and 6, who are rank holders No.3 and 4 in Ext.P3 rank list, cannot be appointed by respondent Nos.3 and 4. In the result, this Writ Petition is allowed. Respondent Nos.3 and 4 are directed not to make any further appointment to the post of peons, and it is declared that Ext.P3 rank list has ended as the 2 notified vacancies from the Rank list have been filled up. _Sd/-_ **BASANT BALAJI JUDGE** dl/ 11 WPC 41776/23 ## **`APPENDIX OF WP(C) 41776/2023`** ## `PETITIONER EXHIBITS` - `Exhibit P1 TRUE COPY OF THE NOTIFICATION PUBLISHED IN THE EVENING PAPER KARAVAN DATED 21.11.2022.` - `Exhibit P2 TRUE COPY OF THE CALL LETTER FOR INTERVIEW ISSUED BY THE BANK TO THE PETITIONER DATED 02.06.2023, DIRECTING THE PETITIONER TO APPEAR FOR THE INTERVIEW ON 24.06.2023 AT 10 A.M.` - `Exhibit P3 TRUE COPY OF THE RANKED LIST OF PEONS PUBLISHED BY THE RESPONDENTS 3 AND 4 DATED 30.06.2023` - `Exhibit P4 TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 05.12.2023` - `Exhibit P5 TRUE COPY OF THE JUDGMENT DATED 11.02.2022 IN W.P(C) NO. 3517/2022 ON THE FILE OF THIS HON'BLE COURT` - `Exhibit P6 True copy of the judgment in Ibey Susan Issac Vs. Anicadu Service Co-operative Bank Limited, Pathanamthitta and another, 2013(2) KHC page 399 (DB)` - `Exhibit P7 True copy of the clarification issued by the Senior Concurrent Auditor dated 06.12.2023.` ## `RESPONDENT EXHIBITS` - `ExhibitA copy of the Division Bench judgment in R6(a) Pannivizha Service Co-operative Bank Ltd. v. Smitha T. Pillai, 2018 SCC OnLine Ker 1322.`