Pannivizha Service Co-operative Bank Ltd. v. Smitha T. Pillai

_**[C.R.]**_ # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **& THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 11TH DAY OF JANUARY 2018 / 21 ST POUSHA, 1939** **WA.No. 2517 of 2015 IN WPC. 19353/2015** **(AGAINST THE JUDGMENT IN WP(C) 19353/2015 OF HIGH COURT OF KERALA, DATED 15-09-2015)** ## **APPELLANT/2ND RESPONDENT:** **PANNIVIZHA SERVICE CO-OPERAIVE BANK LTD. NO.891, ADOOR, REPRESENTED BY SECRETARY, PATHANAMTHITTA DISTRICT-689 645.** **BY ADV.SRI.P.N.MOHANAN** ## **RESPONDENTS/PETITIONERS/RESPONDENTS 1 & 3:** **1. SMITHA T. PILLAI, AGED 36 YEARS, W/O. KRISHNAKUMAR, MANGALATH HOUSE, THEKKUMMURI, PERINGANADU P.O., PATHANAMTHITTA DISTRICT-689 645.** **2. JOINT REGISTRAR (GENERAL), CO-OPERATIVE SOCIETIES, MINI CIVIL STATION, PATHANAMTHITTA-689 645.** **3. KERALA CO-OPERATIVE SERVICE EXAMINATION BOARD, 2ND FLOOR, KERALA STATE CO-OPERATIVE BANK BUILDING, OVER BRIDGE JUNCTION, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY/CHAIRMAN, PIN-695 001.** - **R1 BY ADV. SRI.RAJU JOSEPH (SR.) SRI.J.JULIAN XAVIER** - **R3 BY ADV. SMT.S.L.SYLAJA, SC, CO-OPERATIVE SERVICE EXAMINATION BOARD R2 BY SMT. K.R.DEEPA, GOVERNMENT PLEADER** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 11-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ss **P.N.RAVINDRAN, J &** _**[C.R.]**_ **R.NARAYANA PISHARADI, J -------------------------------------------------------W.A.No.2517 of 2015** --------------------------------------------------------Dated this the 11[th] day of January, 2018 ## **JUDGMENT** ## _**P.N.Ravindran, J**_ The appellant is the second respondent in W.P.(C) No.19353 of 2015, a writ petition filed by the first respondent herein under Article 226 of the Constitution of India, praying for a writ in the nature of mandamus commanding the appellant bank to appoint her as Junior Clerk based on her rank in Ext.P2 rank list. By judgment delivered on 15.09.2015, the learned single judge allowed the writ petition. The appellant has, aggrieved thereby, filed this writ appeal. The brief facts of the case as follows: 2. By a notification dated 21.11.2011, the appellant bank invited applications from eligible persons for appointment by direct recruitment to the post of Junior Clerk. The number of vacancies notified was 01. In terms of the stipulations contained in Section 80(B) of the Kerala Co-operative Societies Act, 1969, the Kerala Co-operative Service Examination Board, joined as the third respondent in the writ petition and in the writ appeal, conducted a written test on 16.06.2012 and forwarded a list of eligible candidates to the appellant bank for the purpose of conducting the interview. The appellant bank thereafter conducted an interview **W.A.No.2517 of 2015** 2 and published Ext.P2 rank list on 02.07.2013. The writ petitioner secured the second rank in the selection. From Ext.P2 rank list, Raji. S, the first rank holder was appointed as Junior Clerk by order passed on 05.08.2013 and she joined duty. 3. Shortly after Ext.P2 rank list came into force, yet another vacancy of Junior Clerk arose in the appellant bank on 18.02.2014. The managing committee of the appellant bank that met on 29.07.2014 resolved to notify that vacancy and fill it up by appointing persons with disability. A notification inviting applications was also issued. On coming to know of the fact that a vacancy of Junior Clerk has arisen on 18.02.2014, the writ petitioner submitted Ext.P4 representation dated 13.05.2015 to the Joint Registrar of Cooperative Societies (General), Pathanamthitta (the first respondent in the writ petition), wherein, relying on the decision of the Division Bench of this court in _**Kodakara Farmers Service Co-operative Bank Limited v. Neena**_ (2010(1) KLT 541), she contended that she is entitled to be appointed as Junior Clerk in the vacancy that arose on 18.02.2014. She also contended that the decision taken by the Managing Committee on 29.07.2014 to fill up the vacancy by appointing persons with disability, after conducting a written test **W.A.No.2517 of 2015** 3 and interview is illegal. She thereafter submitted Ext.P5 representation dated 26.02.2015 to the Secretary and President of the appellant bank, wherein, relying on the decision of the Division Bench of this court in _**Kodakara Farmers Service Co-operative Bank Limited v. Neena**_ (supra) she requested that she may be appointed as Junior Clerk. She thereafter filed W.P.(C)No.19353 2015 in this court, seeking the following reliefs: _i. To issue a writ of mandamus or any other appropriate writ, order or direction directing the 2[nd] respondent to forthwith appoint the petitioner as junior clerk under the 2[nd] respondent in the light of her qualification and rank in the ranked list._ _ii. To issue a writ of mandamus or any other appropriate writ, order or direction directing the 1[st] respondent to issue an order under Section 66A of the Cooperative Societies Act, 1969 (Kerala) appointing the petitioner as junior clerk under the 2[nd] respondent bank in the light of availability of the vacancy that has arisen during the validity of the ranked list._ 4. She contended that as a vacancy of Junior Clerk has come into existence on 18.02.2014, during the currency of the rank list, she is entitled to be appointed as Junior Clerk. The appellant bank resisted the writ petition by filing a counter affidavit dated 15.07.2015. Though the appellant bank admitted the fact that a **W.A.No.2517 of 2015** 4 vacancy of Junior Clerk has come into existence, it contended that it has taken a decision to fill up that vacancy by appointing persons with disability and has also taken steps to fill up that vacancy. The appellant bank also contended that this court has in _**Jayaprakash v. Joint Registrar**_ (2013(4) KLT 788) declared that any society which employs more than 10 employees has to reserve the 11[th] or the 12[th] post for persons with disability, if the said post is a post identified to be filled up by appointing persons with disability. 5. The petitioner filed a reply affidavit dated 30.08.2015 wherein she contended that after Ext.P2 rank list was published, the appellant bank had taken steps to appoint 03 Peons and that it could have very well reserved one among the 03 vacancies of Peons to be filled up with a person having disability. She also referred to the fact that a person with disability has filed W.P.(C) No.18708 of 2014 and that the said writ petition is pending before this court. 6. The learned single Judge considered the rival contentions and held by the impugned judgment that the petitioner is entitled to be appointed against the vacancy which arose on 18.02.2014 (wrongly referred to as 08.02.2014 in the impugned judgment) based on the rank assigned to her in Ext.P2 rank list. **W.A.No.2517 of 2015** 5 The second respondent in the writ petition has, as stated earlier, filed this writ appeal, aggrieved by the said judgment. 7. We heard Sri.P.N.Mohanan, learned counsel for the appellant, Sri.Raju Joseph, learned Senior Counsel appearing for the first respondent/writ petitioner, Smt.Sri.K.R.Deepa, learned Senior Government Pleader appearing for the Joint Registrar of Cooperative Societies and Smt.S.L.Shylaja, learned Standing Counsel appearing for the third respondent. Sri.P.N.Mohanan, learned counsel for the appellant raised two main contentions. The first is that in the light of the decision of the Apex Court in _**Kodakara**_ _**Farmers Service Co-operative Bank Ltd. v. Neena [2013(1) KLT 344]**_ whereby the decision of the Division Bench of this court in _**Kodakara Service Co-operative Bank Ltd. v. Neena [2010(1) KLT 541]**_ was reversed, the writ petitioner cannot contend for the position that the rank list is valid and current for a period of two years or that it does not cease to operate when the notified vacancies are filled up. The second contention raised is that unlike the Kerala Public Service Commission (hereinafter referred to as the Commission for short) which is mandated by Rule 14 of the Kerala Public Service Commission Rules of Procedure to advise **W.A.No.2517 of 2015** 6 candidates against the vacancies reported during the currency of the ranked list, there is no provision in the Kerala Co-operative Societies Act, 1968 (hereinafter referred to as the Act for short) or the Rules framed thereunder, which obliges the appellant bank to fill up all the vacancies that arise during the currency of the rank list, in addition to the vacancies mentioned in the notification inviting applications. 8. It is not in dispute that the rank list has a validity period of two years. Rule 182(4)(vii) of the Kerala Co-operative Societies Rules, 1969 (the Rules for short) stipulates that the list shall be valid for a period of two years from the date of its publication by the society. The very same rule also mandates the publication of the rank list within twenty days from the date of receipt of the consolidated mark list. Rule 182(4)(vii) of the Rules also obliges the society to make appointments from the rank list so published, within one month from the date of such publication and report to the Examination Board. Rule 182(4) of the Rules reads as follows:- _(4) In respect of recruitment to societies covered by Section 80B of the Act, the following procedure shall be followed:(i) The Society shall report the vacancy to the Co-operative Service Examination Board and the applications for appointment shall be invited by the Co-operative Service Examination Board, by notification in two vernacular dailies,_ **W.A.No.2517 of 2015** 7 _having wide circulation in the area. The notification shall include the details of number of vacancies, qualifications required for the post, age and reservation, if any, the mode of application, method of appointment and other required details. The Co-operative Service Examination Board may collect application fee along with the application at the rate fixed by the Registrar of Co-operative Societies from time to time. The Examination Board shall process the applications and prepare the list of candidates to be called for the written test. One copy of the prepared list shall be published in the notice board of the Examination Board and one copy shall be sent to the society for publication in its notice board. The society shall publish it in the notice board and copies thereof in the branch offices of the society. The arrangements for the written test shall be made by the Examination Board._ _(ii) The Examination Board shall conduct the written examination of the candidates and furnish a list of eligible candidates to be interviewed to the committee of the society within a period of three months from the date of requisition by the society. The list so furnished shall not contain the mark secured by the candidates;_ _(iii) The maximum marks for written examination shall be 80 and those who secure 40% of the marks shall only be eligible to be included in the list for interview;_ _Provided that in case of candidates belonging to Scheduled Caste or Scheduled Tribe, those who secure 30% of marks and above shall be included in the list._ _Provided further that the total number of candidates to be called for interview shall be ten times the number of posts_ **W.A.No.2517 of 2015** 8 _advertised to be filled up in each category. If there are more candidates who secure not less than forty per cent marks in the written examination and if the candidate who secured forty per cent or above marks are less than ten times as above, all of the candidates shall be called for interview._ _(iv) The maximum marks for interview shall be 15; Provided that the minimum marks for interview shall be 3. (iv A) Candidates of home district shall be awarded 5 marks over and above the marks for interview as grace marks. Explanation.- For the purpose of this item, candidates of home district means the candidates belonging to the district or districts to which the area of operation of the society extends. (v) On receipt of the list from the Examination Board, the committee shall conduct interview of the candidates within two months from the date of such receipt and return the list to the Examination Board noting the marks secured by each candidates, in the interview within a period of two weeks;_ _(vi) On receipt of the list from the society, the Examination Board shall note down the marks secured by each of the candidate in written examination and return consolidated list with the total marks obtained by each candidate. This shall be done within a period of one week._ _(vii) On the basis of the consolidated list so received from the Examination Board, the committee shall prepare the rank list of candidates and publish the same in the notice board of the society within a period of twenty days from the date of receipt of such consolidated mark list. The society shall send one copy of the rank list so published to the Examination Board also. The Board shall examine the correctness of such rank list and_ **W.A.No.2517 of 2015** 9 _report to the Registrar, the irregularities, if any. The list shall be valid for a period of two years from the date of publication of the same by the society._ _(viii) All appointments to the vacancies shall be made by the committee from the select list so published; within one month from the date of such publication and shall be reported to the Examination Board._ _(ix) Expenses, if any, incurred over and above the fees collected by the Examination Board, shall be borne by the society concerned.”_ 9. Interpreting the aforesaid rule, a Division Bench of this court held in _**Kodakara Farmers Service Co-operative Bank Ltd.** (supra)_ that the very purpose of keeping the select list prepared by the society, based on the examination conducted by the Examination Board, valid for two years, is to enable the society to fill up the vacancies arising during the currency of the list. The Division Bench held that if the contention of the Kodakara Farmers Service Co-operative Bank Ltd. that only the notified vacancies can be filled up from the select list is accepted, there is no reason why the rule should provide for keeping the list valid for two years from the date of its publication. It was held that the prescription of a validity period for the list is to enable the society to fill up the vacancies arising during the period of its validity, as otherwise every **W.A.No.2517 of 2015** 10 time a vacancy arises after the notified vacancies are filled up, the Examination Board will have to conduct an examination and the society will have to conduct an interview and repeat the process every time a vacancy arises. 10. Though on appeal filed by the Kodakara Farmers Service Co-operative Bank Ltd., the Apex Court reversed the decision of the Division Bench, such reversal of the judgment of this court was not after placing a different interpretation on Rule 182(4)(vii) above referred to. The Apex Court interfered with the judgment of the Division Bench only for the reason that when the employer bank has taken a conscious decision not to fill up the vacancies on account of computerisation and financial constraints and the six notified vacancies had been filled up, the High Court could not have upset the order passed by the Government whereby the Government set aside the direction issued by the Joint Registrar of Co-operative Societies to fill up all the existing vacancies. 11. The learned single Judge has, in the impugned judgment, considered the principles of merger and held that as the judgment of the Apex Court that reversed the decision of the Division Bench does not rest on the interpretation placed by the **W.A.No.2517 of 2015** 11 Apex Court on rule 182(4)(vii) of the Rules, merely for the reason that the decision of the Division Bench in _**Kodakara Farmers Service Co-operative Bank** (supra)_ was reversed, it does not _ipso facto_ follow that even in cases where the employer has not taken a conscious decision not to fill up the vacancies, which arise after the publication of the rank list and during its period of validity, such vacancies cannot be filled up by appointing candidates from the rank list. In the instant case, the appellant bank has not taken a decision not to fill up the vacancies that arose after the publication of Ext.P2 rank list and during its period of validity. On the other hand, it had taken a conscious decision to fill up the vacancy that arose on 18.02.2014 and had also taken steps to have the said vacancy filled up. It had also reserved that vacancy for persons with disability. It has no case that it has taken a decision not to fill up the vacancy of Junior Clerk which arose on 18.02.2014, on account of paucity of funds or for any other reason. 12. Though it was contended before us that the appellant bank is bound to reserve one post for persons with disability where the cadre strength is between 10 and 33, we are of the opinion that, that by itself is not a reason to non-suit the writ petitioner. In **W.A.No.2517 of 2015** 12 paragraph 5 of the reply affidavit, the petitioner has averred that after Ext.P2 rank list was published, the bank took steps to fill up 03 vacancies of Peons and thereupon a person with disability filed W.P. (C).No.18708 of 2014 in this court complaining about the nonreservation of posts for persons with disability. During the hearing, learned senior counsel for the writ petitioner submitted that W.P. (C)No.18705 of 2014 was allowed by judgment delivered on 15.09.2015 and the appellant bank was directed to appoint the petitioner therein in the vacancy that arose on 18.02.2014, that when the said direction was not complied with, the petitioner in W.P. (C)No.18705 of 2014 filed Contempt of Court Case No.1232 of 2014 and after the said case was filed, the petitioner in W.P.(C).No.18708 of 2014, a person with 45% physical disability, was appointed as Peon. Learned senior counsel submitted that as one person with disability has been appointed, the stipulation regarding reservation of vacancies for persons with disability stands complied with and therefore, the appellant bank cannot any longer contend for the position that the vacancy of Junior Clerk which arose on 18.02.2014 is one reserved to be filled up by appointing persons with disability and consequently the writ petitioner cannot claim that vacancy. **W.A.No.2517 of 2015** 13 13. Section 80(5) of the Act which provides for reservation of posts for persons with disability does not stipulate that the reservation should be in the cadre of Junior Clerk. All that it provides is that 3% of the total posts of employees in every society shall be reserved for physically handicapped persons having disability of 40% or above, as certified by the medical board. As per the proviso to sub section (5) of Section 80, where there are more than 10 and less than 33 employees including cadre and sanctioned posts, there shall be reserved a minimum of one post for physically handicapped persons. In view of the fact that the petitioner in W.P. (C).No.18708 of 2014 who is admittedly a person with disability has been appointed as Peon, though pursuant to the intervention of this court, we are of the opinion that the appellant cannot any longer contend that the vacancy that arose on 18.02.2014 has to be reserved for persons with disability in view of the stipulation in sub section (5) of Section 80 of the Act. 14. A learned single Judge of this court has in _**Jayaprakash v. Joint Registrar of Co-operative Societies [2013(4) KLT**_ _**788]**_ held, interpreting the proviso to sub section (5) of section 80 of the Act that societies which employ more than ten persons has to **W.A.No.2517 of 2015** 14 make such reservation as contemplated in sub section (5) of section 80 in the 11[th] or 12[th] post if the said post is an identified post. The learned single Judge further held that reservation of 3% of vacancies as mandated by the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, should be computed on the total cadre strength. In the instant case, it is not in dispute that the cadre strength is only 16. With the appointment of the petitioner in W.P.(C).No.18708 of 2014 as Peon, the stipulation in the proviso to sub section (5) of section 80 of the Act stands complied with. The appellant cannot, therefore, in our opinion, raise that plea to non-suit the writ petitioner. 15. That takes us to the question whether in the absence of a stipulation in the Rules that all vacancies arising during the currency of the rank list shall be filled up by appointing the candidates named therein, the appellant bank can contend for the position that it is not bound to make appointments therefrom. The Division Bench of this court has in _**Kodakara Farmers Service Cooperative Bank**_ (supra) held that unless it had been the intention of the rule making authority that all vacancies arising during the currency of the rank list shall be filled up by appointing the **W.A.No.2517 of 2015** 15 candidates named therein, such a rule would not have been made and brought into force. Merely for the reason that another limb of the rule provides that the vacancies shall be filled up within a period of one month from the date of the rank list, it does not _ipso facto_ mean that thereafter the rank list will cease to be valid. The purpose of keeping the rank list alive for two years is to enable the bank or society to fill the vacancies that arise after the notification and after the publication of the rank list by appointing candidates named in the rank list. The intention is certainly not to keep the rank list alive for the purpose of enabling the candidates named therein to heave a sigh of relief and to be contended with the inclusion of their names in the rank list. If the appellant's contention is accepted, it will lead to a mockery of the procedure prescribed for selection of candidates for appointment. The rank list is not prepared to remind the selected candidates that though their names are included in the rank list and it is valid for two years, it is of no consequence. 16. The purpose of the stipulation in Rule 182(4)(viii) that the vacancies shall be filled up within one month from the date of publication of the rank list is, in our opinion, to ensure that the society or bank concerned does not delay making appointments to **W.A.No.2517 of 2015** 16 the notified vacancies. It is to prevent such a contingency that it is stipulated in rule 182(4)(vii) of the Rules that the rank list shall be published within 20 days from the date of receipt of the consolidated mark list. Though in clause (viii) of rule 182(4) it is stipulated that the vacancies shall be filled up within one month from the date of publication of the select list, that by itself is not in our opinion a reason to hold that thereafter the rank list ceases to be valid and therefore vacancies arising after the notification but before the rank list was published and vacancies which arise after the rank list is published and during its currency, need not be filled up. We are persuaded to take such a view for the reason that in clause (vii) it is stipulated that the list shall be valid for two years from the date of publication of the same by the society. As stated earlier, if the intention of the rule making authority had not been to apply the list to vacancies arising after the notification and during its period of validity, such a stipulation would not have been incorporated in the rules. The learned single Judge has in our opinion, rightly repelled the contention raised by the appellant and held that the petitioner is entitled to be appointed against the vacancy of Junior Clerk which arose on 18.02.2014. **W.A.No.2517 of 2015** 17 17. Though it was contended before us, relying on Rule 14 of the Kerala Public Service Commission Rules of Procedure that in the absence of a stipulation identical to or similar to the one contained therein, the appellant bank is not bound to make appointments from the rank list, we find no merit or force in the said submission as well. Rule 14 of the Kerala Public Service Commission Rules of Procedure, reads as follows: _“14. The Commission shall advise candidates for all the vacancies reported and pending before them and the vacancies which may be reported to them for the period during which the ranked lists are kept alive in the order of priority, if any, and in the order of merit subject to the rules of reservation and rotation, wherever they are applicable.”_ On the terms of the said rule, the Commission is bound to advise candidates against all the vacancies reported and pending before it and the vacancies which may be reported to it during the currency of the ranked list. Though Rule 182(4) of the Rules does not in express terms stipulate that all vacancies in existence on the date of the notification and all vacancies arising thereafter and during the currency of the rank list should be filled up, from the fact that the rank list has a validity period of two years as stipulated in clause (vii) of Rule 182(4) and in clause (viii) of Rule 182(4) it is stipulated **W.A.No.2517 of 2015** 18 that all appointments to the vacancies shall be made from the select list so published, it is possible to read into Rule 182(4) such a stipulation. The expression used in clause (viii) of Rule 182(4) is “all appointments to the vacancies” and not “all appointments to the notified vacancies”. In our opinion, as the ranked list has a validity period of two years, the words “arising during the period of validity of the ranked list” has to be read into clause (viii) of Rule 182(4) of the Rules as otherwise, the stipulation in clause (vii) would be rendered illusory and meaningless. We accordingly overrule the said contention as well. For the reasons stated above we hold that there is no merit in the writ appeal. The writ appeal fails and is accordingly dismissed. _Sd/-_ **(P.N.Ravindran, Judge)** _Sd/-_ ## **(R. Narayana Pisharadi, Judge)** _//True Copy//_ _P.A. To Judge_ ss/jsr