Pushpalatha v. State of Kerala & ors (KuttiKol Service Co-operative Bank Ltd and Joint Registrar of Co-operative Societies as respondents)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 26[TH] DAY OF SEPTEMBER 2022 / 4TH ASWINA, 1944** ## **WP(C) NO. 30861 OF 2010** ## **PETITIONER:** PUSHPALATHA, AGED 32 YEARS, W/O.SAJEEV,R/AT HARISADAN, KUTTIKKOLE P.O, CHENGALA VIA, KASARAGOD 671 541. BY ADV SRI.KODOTH SREEDHARAN ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT(CO-OPERATIVE), CO-OPERATIVE DEPARTMENT, SECRETRIAT, THIRUVANANTHAPURAM. 2 KUTTIKOL SERVICE C0-OPERATIVE BANK LTD.NO.FF 91, KUTTIKKOL 671 541, REPRESENTED BY ITS SECRETARY. 3 THE JOINT REGISTRAR OF CO-OPERATIVE SOCEITIES(GENERAL), KASARAGOD, PIN 680 611. BY ADVS. SMT.K.AMMINIKUTTY SRI.N.RAGHURAJ - R2 SRI. C.N.PRABHAKARAN, SENIOR GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 30861 OF 2010 2 ## **P.V.KUNHIKRISHNAN, J.** **-----------------------------W.P.(C).No. 30861 of 2010** **---------------------------------------------Dated this the 26[th] day of September, 2022** ## **JUDGMENT** The above writ petition is filed with the following prayers: _“(i) a writ of mandamus or any other appropriate writ or order or direction directing the respondents to appoint the petitioner to the post of Junior Clerk in the 2nd respondent Bank._ _(ii) a declaration that petitioner is similarly situated as that of the petitioner in Ext.P3 judgment and is entitled to the benefit of Ext.P3 judgment and entitled to be appointed to the post Junior Clerk in the 2[nd] respondent Bank._ _(iii) a direction to the respondents to extend the benefit of Ext.P3 judgment to the petitioner._ _(iv) Any other appropriate writ or order or direction, as the Hon'ble Court may pleased to grant in the facts and circumstances of the case.”[SIC]_ 2. When this writ petition came up for consideration on 04.02.2011, this Court passed the following order: WP(C) NO. 30861 OF 2010 3 _“The petitioner applied for appointment as Junior Clerk pursuant to a notification issued by the second respondent bank. A written test was conducted by the Kerala Co-operative Service Examination Board constituted under section 80B of the Kerala Cooperative Societies Act, 1969. After the written test was held, the Board forwarded a list of selected candidates to the second respondent bank. The managing committee of the second respondent bank conducted an interview and thereafter prepared and published Ext.P1 rank list. The validity of the said rank list will expire on 6.2.2011. The petitioner is admittedly the second rank holder in the list. It is also not in dispute that the first rank holder was appointed in March, 2009, but he resigned from service on 30.9.2009. This writ petition is filed seeking a writ in the nature of mandamus commanding the respondents to appoint the petitioner as Junior Clerk. The petitioner contends that she is the next candidate awaiting appointment and as the notified vacancies continue to exist, she is entitled to be appointed as Junior Clerk._ _2. The second respondent bank has filed a counter affidavit. The main contention raised in the counter affidavit is that the accumulated loss of the second respondent bank as on 31.3.2010 was Rs.1,67,23,277/-, that the bank has been in the red for the past several years and therefore following the resignation of the candidate who was appointed (Sri.K.Aneesh Kumar), the managing committee of the bank that met on 30.9.2010 resolved that further_ WP(C) NO. 30861 OF 2010 4 _appointments need not be made and to run the bank with the existing staff, 11 in number. The counter affidavit proceeds to state that the financial position of the bank does not permit it to make fresh appointments and therefore the petitioner, whose name is included in the ranked list is not entitled to the reliefs prayed for._ _3. I heard Sri.Kodoth Sreedharan, the learned counsel appearing for the petitioner, Sri.M.A.Asif, the learned Government Pleader appearing for respondents 1 and 3 and Sri.N.Reghuraj, the learned counsel appearing for the second respondent bank. Relying on the decision of a Division Bench of this Court in_ _**Elampal Service Co-operative Bank Ltd. v. Government of Kerala** (2000 (3) KLT 389), the learned counsel for the petitioner contended that as per the classification of the bank, the bank can have the services of two Junior Clerks and therefore the bank is bound to make appointments to the notified vacancies. Relying on the decision of the Apex Court in_ _**Director,**_ _**SCTI for Medical Science & Technology and another v. M.Pushkaran** (2008 (1) SCC 448), the learned counsel for the pelicioner contended that as the second respondent bank had offered appointment to Sri.K.Aneesh Kumar the first rank holder and he was appointed, the bank cannot take shelter under the plea that its financial position does not permit appointments to be made, and therefore, the policy decision stated to have been taken on 30.9.2010 cannot be held out against the petitioner to deny her appointment against the vacancy that had arisen on_ WP(C) NO. 30861 OF 2010 5 _30.9.2009 on the resignation of Sri.K.Aneesh Kumar. It is contended that if Sri.K.Aneesh Kumar had not resigned, the bank would have had to pay to him salary and allowances and could not have denied him payment of salary and allowances on the plea that the bank is running at a loss and therefore the defence put forward is not tenable._ _4. Per contra, Sri.N.Reghuraj, the learned standing counsel appearing for the second respondent bank contended relying on the decision of the Apex Court in_ _**Dr.K.Ramulu and another v. Dr.S.Suryaprakash Rao and others** (1997 (3) SCC 59) that the petitioner does not have an indefeasible right by mere inclusion of her name in the ranked list to claim appointment and that for valid reasons the appointing authority can decline to fill up the vacancy. The learned counsel further contended that as the bank is in financial difficulties, the managing committee took a conscious decision on 30.9.2010 to run the bank with the existing staff and not to make fresh appointments. It was contended that in such circumstances, a writ of mandamus cannot be issued to the appointing authority to fill up the vacancy that had arisen on 30.9.2009 on the resignation of Sri.K.Aneesh Kumar or the vacancy that remained unfilled._ _5. I have considered the rival submissions made at the Bar by the learned counsel on either side. I have also gone through the pleadings and the materials on record. It is evident from paragraph 5 of the counter affidavit filed on behalf of the second respondent_ WP(C) NO. 30861 OF 2010 6 _bank that the decision to fill up two vacant posts of Junior Clerk was taken by the bank on 11.12.2007. It is also evident from the counter affidavit that the bank was continuously in red for the past several years. It is discernible from the pleadings that even on 11.12.2007, when the managing committee resolved to fill up two vacant posts of Junior Clerk, the bank was in financial difficulties. The bank has no case that its financial position started deteriorating only after it took the decision to fill up the vacancies of Junior Clerk. Therefore, it is evident that the bank had notwithstanding its poor financial position, taken a conscious decision to fill up two existing vacancies of Junior Clerk. That decision was acted upon, a notification was issued and the Kerala Co-operative Service Examination Board was requested to conduct the written test. The bank has no case that no expenditure was involved on that count. It was after such an exercise that a ranked list was prepared and brought into force. From that ranked list, the first rank holder was appointed in March, 2009 and he worked for about six months, till he resigned on 30.9.2009. The stand now taken by the bank is that its financial position does not permit it to make further appointments and a conscious decision in that regard was taken on 30.9.2010. In my opinion, the bank which had initiated action to fill up vacant posts and had in fact filled one vacancy by appointing the first rank holder and had paid him salary and allowances for nearly six months notwithstanding its poor financial_ WP(C) NO. 30861 OF 2010 7 _position cannot be heard to contend that it is not in a position to fill up the vacancy which arose when the incumbent resigned and left the service of the bank. If the first rank holder had not resigned and left the service of the bank, the bank would have continued to employ him, paid him salary and allowances and also considered his case for promotion to higher posts as and when his turn for promotion arose. I am therefore of the opinion that the defence put forward by the bank that it has decided not to make further appointments on account of its poor financial condition cannot be a reason to deny appointment to the next eligible candidate. In such circumstances, I am prima facie satisfied that the petitioner has made out a prima facie case for the grant of an interim order._ _There will accordingly be an interim order directing the second respondent bank to forthwith appoint the petitioner as Junior Clerk on a provisional basis subject to the out come of the writ petition. Since the validity of the ranked list will expire on 6.2.2011, the competent authority in the second respondent bank shall issue the appointment order to the petitioner forthwith and in any case not later than 5.2.2011. It is clarified that the appointment of the petitioner pursuant to this interim order will be subject to further orders to be passed in this writ petition._ _Hand over to both sides on usual terms today itself.”_ WP(C) NO. 30861 OF 2010 **==> picture [7 x 10] intentionally omitted <==** In the light of the above interim order, nothing survives in this case. If there is any surviving grievance to the petitioner, the petitioner is free to agitate the same. With the above observation, this writ petition is closed. Sd/- DM **P.V.KUNHIKRISHNAN JUDGE** WP(C) NO. 30861 OF 2010 9 ## **APPENDIX OF WP(C) 30861/2010** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE MERIT LIST DATED NIL VALID ISSUED BY THE 2ND RESPONDENT. EXHIBIT P2 TRUE COPY OF THE REPLY DATED 4/6/2010 TO THE PETITIONER'S REQUEST ISSUED BY THE 2ND RESPONDENT. EXHIBIT P3 TRUE COPY OF THE JUDGMENT IN W.A.1461/08 DATED 25/1/2010 BY THIS HON'BLE COURT. RESPONDENTS EXHIBITS: EXHIBIT R2(A) TRUE PHOTOCOPY OF THE TENTATIVE BALANCE SHEET OF THE 2ND RESPONDENT BANK AS ON 31.03.2010. EXHIBIT R2(B) TRUE PHOTO COPY OF THE RESOLUTION NO.2 DATED 30.09.2010. //TRUE COPY// PA TO JUDGE