Omana K.S. and another v. Thrissur District Co-operative Bank Ltd. and another

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE SATHISH NINAN TUESDAY, THE 10TH DAY OF JULY 2018 / 19TH ASHADHA, 1940 W.A.No.2258 of 2017 IN WPC.No.20561/2017 AGAINST THE JUDGMENT IN WP(C).NO.20561/2015 OF HIGH COURT OF KERALA DATED 07-08-2015 APPELLANTS/NOT PARTY IN THE WP(C): 1. MAYADEVI T.R., PURAYATH HOUSE, P.O.MUPLIYAM, PEEDIKAPARAMBU, THRISSUR. 2. HAROON K.A., S/O. ABDUL RASHEED, AGED 40 YEARS, KALLUPARAMBIL HOUSE, KATTUNGACHIRA, P.O.IRINJALAKKUDA, THRISSUR. 3. GEETHA P.S., THENGIL HOUSE, PERUNGOTTUKARA, THRISSUR. 4. REKHA V., CHEMMANGATTU HOUSE, IKKA NAGAR, PUTHOORKARA, THRISSUR. 5. RANJINI R., VELLOR HOUSE, (ERATH), PONNUKKARA, THRISSUR. 6. VILASINI V.K., VAKKATH HOUSE, P.O.KANJANI, THRISSUR. 7. AMBILI P.K., MADAPPATTIL HOUSE, P.O. KODANNUR, THRISSUR. BY ADV.SRI.P.N.MOHANAN RESPONDENTS/PETITIONERS & RESPONDENTS: 1. THRISSUR DISTRICT CO-OPERATIVE BANK LTD., HEAD OFFICE, SAHAKARANA SHATHABDI MANDIRAM, KOVILAKKATHUMPADAM P.O., THRISSUR – 680 022, REPRESENTED BY ITS GENERAL MANAGER. WA2258/2017 -2- 2. OMANA K.S., W/O. CHANDRAN, PARAPPURATH HOUSE, MUNDATHIKODE WEST POST, THRISSUR DISTRICT. 3. SUGU K. ILLIYESAN, SECRETARY, DISTRICT COMMITTEE OF KERALA CO-OPERATIVE EMPLOYEES UNION, POTTAYIL LANE, THRISSUR – 4. 4. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM – 695 001. R1 BY SRI.P.C.SASIDHARAN, SC, THRISSUR DISTRICT CO.OPERATIVE BANK LTD. R2 & R3 BY ADV. SRI.M.SASINDRAN R4 BY SPECIAL GOVERNMENT PLEADER SRI.K.S.MOHAMAD HASHIM. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ALONG WITH W.A.NO.2284/2017 ON 6.7.2018, THE COURT ON 10.7.2018 DELIVERED THE FOLLOWING: W.A.2258/2017 ## APPENDIX ## APPELLANTS' ANNEXURES: ANNEXURE A1 CERTIFIED COPY OF THE JUDGMENT DATED 7.8.2015 IN WP(C)NO.20561/2015. ANNEXURE A2 A TRUE COPY OF THE APPOINTMENT ORDER DATED 16.7.2016 ISSUED IN RESPECT OF 5TH APPELLANT. ANNEXURE A3 A TRUE COPY OF THE NOT PRESSED MEMO DATED 12.10.2017 FILED BEFORE THIS COURT. ANNEXURE A4 A TRUE COPY OF THE PETITION DATED 19.10.2017 FOR IMPLEADING. ANNEXURE A5 A TRUE COPY OF THE JUDGMENT DATED 31.10.2017 IN W.A.NO.2048/2015. ANNEXURE A6 A TRUE COPY OF THE ORDER DATED 9.11.2017 ISSUED IN RESPECT OF FOURTH APPELLANT. ## -TRUE COPY- PS TO JUDGE **“CR”** ## **V. CHITAMBARESH & SATHISH NINAN, JJ.** ----------------------------------------------------------------- ## **W.A.Nos.2258 & 2284 of 2017** --------------------------------------------------------------------- Dated this the 10[th] day of July, 2018 ## **JUDGMENT** ## **Chitambaresh, J.** These writ appeals arise out of the judgment in the case titled **Omana K.S. and another v. Thrissur District Cooperative Bank Ltd. and another** [2015 LAB.I.C. 4268]. 2. The Co-operative Bank invited applications from eligible candidates for appointment to the category of part time sweeper in the existing and future vacancies by notification dated 21.05.2015. The English translation of the notification published in the Mathrubhumi Daily dated 21.05.2015 as produced in the writ petition is extracted below for the sake of appreciating the contentions better: “TDCB Thrissur District Co-operative Bank, Head Office, Co-operative Centenary Building, Kovilakathumpadam, Thrissur - 680 022, Ph:2325700 Dated 21.05.2015 __________________________________________________________________ WAs.2258 & 2284 of 2017 2 ## PART TIME SWEEPERS REQUIRED Applications are invited from the eligible candidate who satisfies the age requirement and qualifications as per Section 80 of the Kerala Cooperative Societies Act, 1969 and the Rules, for appointment to the category of part time sweeper in the existing vacancies and the future vacancies. |Number of vacancies|9 (existing)| |---|---| |Pay scale|5,790-13,330| |Age|Should complete 18 years and shall<br>not exceed 40 years as on 1.1.2015.<br>(SC/ST-45<br>years,<br>OBC/Ex-<br>serviceman-43 years)| |Qualification|Should have physical witness for<br>sweeping work, shall not pass SSLC<br>for equivalent examination| Those who intent to apply, shall prepare the application in the white paper and affix a new passport size photo and shall write on the envelope “application for the post of part time sweeper” and submitting the below mentioned address. Address, age, caste and educational qualification shall be submitted. Reservation shall be followed as per the Kerala Co-operative Societies Act and Rules. The list that may be published after the interview, for appointment will be valid for a period of two years from the date of publication. General Manager, Thrissur District Co-operative Bank, Head Office, Co-operative Centenary Building, Kovilakathumpadam, P.O.Thiruvambadi, Thrissur - 680 022. Sd/- General Manager” 3. The Kerala Co-operative Societies Act, 1969 and the Rules have been mentioned twice in the notification - firstly, as regards the age requirement and qualifications and secondly, as regards the reservation to be followed. Other prescriptions are WAs.2258 & 2284 of 2017 3 also stipulated such as the age bracket and also the qualification (which is physical fitness for sweeping work and not having passed SSLC or equivalent examination). The prohibition as regards higher qualification for the post of part time sweeper has since been omitted by amendment to the Rules with effect from 30.12.2017. The learned single Judge has quashed the notification as suffering from the vice of vagueness and hence arbitrary and the relevant part of the impugned judgment is extracted below: “34. As to vagueness, in my considered view, no person of ordinary prudence would ever construe Ext.P2 notification as revealingly informing the discerning reader that the notification, in fact, invites applications from the eligible in-service candidates as well. Thus suffers Ext.P2 from the vice of vagueness. --------” The candidates who were appointed pursuant to the notification have filed these writ appeals after obtaining leave as third parties on the ground that their services have been terminated pursuant to the judgment impugned. 4. A notification can be said to be vague or arbitrary in WAs.2258 & 2284 of 2017 4 the context of Article 14 of the Constitution of India only if the same is unworkable or susceptible to two interpretations at the time of its enforcement. The notification in the instant case prescribes the age requirement and qualifications as per Section 80 of the Kerala Co-operative Societies Act, 1969 which cannot be said to be unclear. Similarly the notification stipulates that the reservation shall be followed as per the Kerala Co-operative Societies Act, 1969 and the Kerala Co-operative Societies Rules, 1969 framed under the Act. The relevant rule for the present recruitment exercise to fill up the vacancies of Part time Contingent Employees (Part time sweepers) in the Apex or Central Societies is Rule 187. The notification when read with reference to the Kerala Co-operative Societies Act, 1969 and the Rules framed thereunder does not create any ambiguity in the mind of the applicants seeking employment. We find that the notification dated 21.12.2010 issued by the Bank during the last recruitment exercise for appointment to the category of part time sweepers was also similarly worded. We are reminded of the following words of the Supreme Court in **State of T.N. v. L.Krishnan** [(1996) 1 SCC 250] in the context of vagueness in a WAs.2258 & 2284 of 2017 5 ## land acquisition notification: “It must be remembered that what is vague is a question of fact to be decided in each case having regard to the facts and circumstances of that case.” The notification dated 21.05.2015 issued by the Bank cannot be said to be vague or unclear or ill-defined when read in the light of the relevant provisions of the Kerala Co-operative Societies Act, 1969 and the Rules framed thereunder. 5. The notification was challenged not only on the ground of vagueness but also on the ground that fifty percent of the vacancies have not been reserved to the employees of the member societies of the Bank. That is a stipulation contained in Rule 187 of the Kerala Co-operative Societies Rules, 1969 which has to be enforced the post notification stage at the time of making appointments. This question does not arise in the challenge to the notification wherein it is categorically stated that the 'reservation shall be followed as per the Kerala Cooperative Societies Act and Rules'. It appears that the Managing WAs.2258 & 2284 of 2017 6 Committee of the Bank filed W.A.No.2048/2015 and obtained a stay of the impugned judgment pursuant to which the appellants were appointed as part time sweepers. The successor Administrator chose to withdraw W.A.No.2048/2015 and the appellants were however given liberty to maintain independent writ appeals which are the one in hand. The appellants whose appointment was even confirmed were terminated from service in implementation of the impugned judgment consequent to the withdrawal of W.A.No.2048/2015. It is the contention of the Administrator that many of the appointees are ineligible and it is the contention of the writ petitioner that Rule 187 of the Rules has not been adhered to in recruitment. We are afraid that all these contentions are beyond the scope of the writ petition wherein the parties have not joined issues and the appointees are also not impleaded. Suffice it to say that the right of any aggrieved candidate to question the appointments in appropriate proceedings is left intact and that these writ appeals are confined to the legality of the notification. We uphold the notification dated 21.05.2015 issued by the Bank for appointment to the category of part time sweepers and dismiss WAs.2258 & 2284 of 2017 7 the writ petition setting aside the impugned judgment. The writ appeals are allowed. No costs. Sd/- **V. CHITAMBARESH, JUDGE** Sd/- **SATHISH NINAN, JUDGE** ncd/sha -true copy- PS to Judge