Raji K.V v. Registrar of Co-operative Societies, Office of the Registrar of Co-operative Societies, Thiruvananthapuram; Joint Registrar (General), Department of Co-operative Societies, Palakkad; Shoranur Service Co-operative Bank, represented by its Secretary

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **THURSDAY, THE 12TH DAY OF MARCH 2020 / 22ND PHALGUNA, 1941** ## **WA.No.1997 OF 2019** **AGAINST THE JUDGMENT DATED 13.07.2018 IN WP(C) 32049/2017(E) OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** **RAJI.K.V,AGED 31, W/O. VINOD K., KARETHULAPPIL HOUSE, KOOTTANADU P.O., PALAKKAD** **BY ADV. SRI.VISHNU BHUVANENDRAN** ## **RESPONDENTS/RESPONDENTS:** **1 THE REGISTRAR OF CO-OPERATIVE SOCIETIES OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES, NEAR GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001 2 THE JOINT REGISTRAR (GENERAL) DEPARTMENT OF CO-OPERATIVE SOCIETIES, PALAKKAD-678 001** **3 SHORANUR SERVICE CO-OPERATIVE BANK REPRESENTED BY ITS SECRETARY, SHORANUR, PALAKKAD-679 121** **R3 BY ADV. SRI.P.C.SASIDHARAN SPL GP- SRI MOHAMMED HASHIM.** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.A.1997/2019** 2 **“C.R.”** ## **JUDGMENT** _Ravikumar, J._ This intra-court appeal carries challenge against judgment dated 13.7.2018 in W.P.(C).No.32049 of 2017. The appellant was the petitioner therein. She was the 7[th] rank holder in Ext.P1 ranked list published on 14.12.2015 by the third respondent- Co-operative Bank on culmination of the selection process initiated as per Ext.R3(a) notification dated 8.01.2015. Admittedly, only one vacancy of Peon was notified as per Ext.R3(a) notification. The contention of the appellant is that six candidates were given appointments from Ext.P1 ranked list. Even then the claim of the appellant for appointment was not considered despite Ext.P5 communication dated 30.5.2017 of the second respondent. Shortly stated, the grievance of the appellant is that she was not given appointment against the 7[th] vacancy. Being aggrieved by the said action, rather, inaction on the part of the third respondent in giving appointment, she preferred Exts.P2 and P3 representations. It is the inaction on those representations that made the appellant to approach this Court by filing W.P.(C) No.32049 of **W.A.1997/2019** 3 2017. As per the judgment impugned, the learned Single Judge, taking note of the rival contentions and relying on the decision of the Hon'ble Apex Court in **Prem Singh v. Haryana State Electricity Board [(1996) 4 SCC 319],** dismissed the writ petition. This appeal has been preferred in the said circumstances. 2. Heard the learned counsel for the appellant and the learned Government Pleader. 3. The case of the appellant/the writ petitioner is that in the light of Ext.P5, which would reveal the existence of seven vacancies, the petitioner being the 7[th] rank holder in the list ought to have been given appointment against the said vacancy. 4. In the counter affidavit filed by the third respondent in the writ petition, it is stated that the rank list in question was published on 14.12.2015 and the same had expired on 13.12.2017. The third respondent bank is classified as Class I Special Grade Bank and it has five branches viz., Shornur Main Branch, evening branch, Vadanamkurissi branch, Ongallur branch and Manjalil branch. It is also stated therein that prior to the expiry of the rank list, six persons **W.A.1997/2019** 4 were given appointment viz., one in each branch and one in the head office. Further, in paragraph 6 of the counter affidavit, the third respondent stated thus:- “Even though the bank have sanctioned strength of 7 sub staff, the bank decided to make appointment one Peon for each branch and one for head office. Now the requirement of the sub staff is already over. When the applications are invited for the post of Peon one vacancy was notified. But filled 6 candidates from their rank list. An additional appointment will incur additional expenditure. So the bank is not in a position to make further appointment in the sub staff category.” (underline supplied) 5. Thus, it is obvious that the circumstances which constrained the third respondent not to fill up the 7[th] vacancy are specifically mentioned in the counter affidavit. The learned counsel for the appellant submitted that the learned Single Judge relied on the judgment in **Prem Singh** 's case (supra) and going by the dictum laid down therein, over and above the notified vacancy, no other vacancies could have been filled up. Since the third respondent has chosen to fill up further vacancies, they should have filled up all the available **W.A.1997/2019** 5 vacancies including the 7[th] vacancy, it is contended. Thus, it is evident that the grievance of the petitioner is against the inaction on the part of the third respondent in filling up the 7[th] vacancy, which is available going by Ext.P5. 6. The learned counsel for the appellant took up a further contention before us that since the learned Single Judge relied on the decision of the Hon'ble Apex Court in **Prem Singh** 's case (supra) to hold that any appointment made in excess of the notified vacancies could not be sustained, the action in filling up of vacancies other than the single notified vacancy ought to have been interfered with. Furthermore, it is submitted that when once the third respondent had chosen to effect more appointments from Ext.P1 rank list and effected altogether 6 appointments from it, the remaining vacancy also ought to have been filled up by appointing the appellant who held rank No.7 therein. True that in paragraph 5 of the impugned judgment placing reliance on **Prem Singh** 's case (supra), the Writ Court held thus:- “When the notification issued by the 3rd respondent is for one vacancy of Peon, any appointment made in excess of the notified vacancies cannot be sustained, in view of the law laid down by the Apex Court in Prem Singh v. **W.A.1997/2019** 6 Haryana State Electricity Board [(1996) 4 SCC 319], wherein the Apex Court held that, if the requisition and advertisement are for a certain number of posts only, no appointment in excess of the number of posts advertised is legally permissible.” 7. Certainly, the afore-extracted portion from the impugned judgment cannot have an adverse impact on the right of continuance in service of the five appointees from Ext.P1 rank list viz., in excess of the notified single vacancy for more than one reason. Firstly, the appellant has not made any challenge against their appointment in the writ petition and her prayer is only for a direction to appoint her as Peon in the further existing vacancy, going by Ext.P5. In that context, the decision of this Court in **B.Khaderkunju & others v. A Surendran & Ors. (2015 (1) KLJ 815)** assumes relevance. In that decision, it was held that in service litigations relating to seniority disputes, select list, etc., all persons, who may be affected if the relief sought for is granted, have to be impleaded and due personal service of notice on all of them is necessary. Furthermore, it was held that impleadment of some of the persons in the impugned seniority list/select list in the writ petition and publication of notice in **W.A.1997/2019** 7 newspapers would not be sufficient. In the case on hand, none of the said five appointees was impleaded in the writ petition. Hence, applying the decision in **Khaderkunju** 's case, the relief, if at all was sought for, could not have been granted. 8. Secondly, the very decision relied on by the learned Single Judge in **Prem Singh** 's case (supra) itself would go to show that such a relief could not have been granted even if it was sought for. In that context, it is only apposite to refer to paragraphs 25 and 26 of the said ## decision. The Apex Court held:- “25. From the above discussion of the case law it becomes clear that the selection process by way of requisition and advertisement can be started for clear vacancies and also for anticipated vacancies but not for future vacancies. If the requisition and advertisement are for a certain number of posts only the State cannot make more appointments than the number of posts advertised, even though it might have prepared a select list of more candidates. The State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf. Even when tilling up of more posts than advertised is challenged the Court may not, while exercising its extra-ordinary jurisdiction, invalidate the excess appointments and may mould the relief in such a manner as to strike a just balance between the interest of the State and the interest of persons seeking public employment. What relief should be granted in such cases would depend upon the facts and circumstances of each case. 26.In the present case, as against the 62 advertised posts the Board made appointments on 138 posts. The selection process was started for 62 clear vacancies and at that time anticipated vacancies were not taken into account. Therefore, strictly speaking, the **W.A.1997/2019** 8 Board was not justified in making more than 62 appointments pursuant to the advertisement published on 2.11.1991 and the selection process which followed thereafter. But as the Board could have taken into account not only the actual vacancies but also vacancies which were likely to arise because of retirement etc. by the time the selection process was completed it would not be just and equitable to invalidate all the appointments made on posts in excess of 62. However, the appointments which were made against future vacancies - in this case on posts which were newly created - must be regarded as invalid. As stated earlier, after the selection process had started 13 posts had become vacant because of retirement and 12 because of deaths. The vacancies which were likely to arise as a result of retirement could have been reasonably anticipated by the Board. The Board through oversight had not taken them into consideration while a requisition was made for filling up 62 posts. Even with respect to the appointments made against vacancies which arose because of deaths, a lenient view can be taken and on consideration of expediency and equity they need not be quashed. Therefore, in view of the special facts and circumstances of this case we do not think it proper to invalidate the appointments made on those 25 additional posts. But the appointments made by the Board on posts beyond 87 are held invalid. Though the High Court was right in the view it has taken, we modify its order to the aforesaid extent. These appeals are allowed accordingly. No order as to costs.” We have gone into the aforesaid question solely to ensure that the afore-extracted portion from paragraph 5 of the impugned judgment, in the circumstances, shall not be worked out against them, solely because such an observation was made by the learned Single Judge in paragraph 5 of the impugned judgment. 9. Now, the next question is whether the appellant is entitled to the reliefs sought for solely because in excess of the single notified **W.A.1997/2019** 9 vacancy as per Ext.R3(a) notification 5 more appointments were made from Ext.P1 rank list. At the outset, it is to be noted that Ext.P1 rank list had, admittedly, expired as early as on 13.12.2017. We have already adverted to the reason given by the third respondent in the counter affidavit for not filling up the 7[th] vacancy then available as per Ext.P5. A careful scanning of the recital in paragraph 6 of the counter affidavit that carries the reason for non-filling up of the said vacancy would tend us to hold that the said action cannot be described as illegal or arbitrary or beyond the scope of authority in the light of the decision of the Apex Court in **T.N.Administrative Service Officers Association and Another v. Union of India and others [(2000) 5 SCC 728]** . In the said decision the Apex Court held:- “It is a well settled principle in service jurisprudence that even when there is vacancy, the State is not bound to fill up such vacancy nor is there any corresponding right vested in an eligible employee to demand that such post be filled up. This is because the decision to fill up a vacancy or not vests with the employer who for good reasons; be it administrative, economical or policy, decide not to fill up such posts. (See State of Haryana v. Subash Chander Marwaha)” ## 10. The decision in **State of Haryana v. Subhash Chander** **W.A.1997/2019** 10 **Marwaha** was reported in **(1974) 3 SCC 220** . The decision in ## **Vinodan T. and others v. University of Calicut and others [(2002)** **4 SCC 726]** , virtually restated the aforesaid position thus:- “The principle that persons merely selected for a post do not thereby acquire a right to be appointed to such post is well established by judicial precedent. Even if vacancies exist, it is open to the authority concerned to decide how many appointments should be made.” In **Subha B Nair v. State of Kerala and others** reported in **AIR 2008** **SC 2760,** the Hon'ble Apex Court dealt with a challenge against filling up only of 201 posts of Clerks/Cashiers out of the approved 208 posts in a Co-operative Bank registered under the Kerala Cooperative Societies Act, 1969 and the Rules made under it, contending that 16 more vacancies including the remaining 7 vacancies are available to be filled up. The Apex Court held that the question as to whether there existed 7 vacancies or 16 vacancies in the aforesaid situation lost all significance and it is trite that when the employer took a policy decision not to fill up any existing vacancy solely because a person's name is found in the select list, it could not by itself be a ground to compel the bank to fill them up. In paragraphs19 **W.A.1997/2019** 11 and 20, it was further held thus:- “19.Rules of the Co-operative Societies as has been interpreted by this Court in Deepa Keyes (supra) and K. Thulaseedharan (supra) clearly show that after the expiry of rank list, vacancies should not be directed to be filled up. 20.This Court furthermore cannot issue a direction only on sentiment/sympathy.” The recital from the counter affidavit filed by the third respondent, adverted hereinbefore, would reveal that virtually the third respondent took a stand as a policy to fill up only one vacancy of peon in each branch and one post in the head office. It is also specifically stated therein that if further appointments are effected to the post of peon, it would incur additional expenditure and the bank is not in a position to effect further appointment. In the light of the aforesaid decisions and the policy which is revealed from the said statement and also taking into account the fact that Ext.P1 list had expired as early as on 13.12.2017, we find no reason to direct the third respondent to give appointment to the petitioner merely because her name had figured in Ext.P1 list. In short, we do not find any reason to interfere with the decision of the third respondent not to fill up the then existed **W.A.1997/2019** 12 vacancy. The impugned judgment whereby the writ petition was dismissed by the learned Single Judge therefore, invites no interference. Consequently, this appeal is dismissed. **Sd/-** **C.T.RAVIKUMAR** **JUDGE Sd/-** **BECHU KURIAN THOMAS JUDGE** **spc/**