ROHITH PANICKER v. STATE OF KERALA & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **THURSDAY, THE 27TH DAY OF MARCH 2014/6TH CHAITHRA, 1936** ## **WP(C).No. 3638 of 2014 (D)** **---------------------------** ## **PETITIONER :** - **-----------** **ROHITH PANICKER, S/O.K.S.PANICKER, ROHIT VILLA, GOVINDAMUTTOM P.O. KAYAMKULAM, PRESENTLY RESIDING AT 6-D, SFS FAIRMONT, M.P.APPAN ROAD, VAZHUTHACAUD THIRUVANANTHAPURAM-695014.** **BY ADVS.SRI.C.S.AJITH PRAKASH** **SRI.PAUL C THOMAS** **RESPONDENTS:** - **-----------** **1. STATE OF KERALA** - **REPRESENTED BY ITS SECRETARY DEPARTMENT OF CO-OPERATION, SECRETARIAT, THIRUVANANTHAPURAM.** **2. REGISTRAR OF CO-OPERATIVE SOCIETIES, STATUE, THIRUVANANTHAPURAM-695001.** **3. THE THIRUVANANTHAPURAM DISTRICT CO-OPERATIVE BANK LTD. REPRESENTED BY ITS GENERAL MANAGER, EAST FORT P.O., THIRUVANANTHAPURAM-695023.** **4. THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM THIRUVANANTHAPURAM-695004.** **5. DISTRICT OFFICER DISTRICT OF THE KERALA PUBLIC SERVICE COMMISSION PATTOM, THIRUVANANTHAPURAM-695004.** **ADDL.R6 IS IMPLEADED:** **6. VIJAYAKUMARAN NAIR.V., AGED 57 YEARS, S/O.VELAYUDHAN PILLAI, NISHA BHAVAN, AMARAVILA.P.O., THIRUVANANTHAPURAM - 695 122. ADDL. R6 IS IMPLEADED AS PER ORDER DATED 11/03/2014 IN IA 3678/2014.** **R1 & R2 BY GOVERNMENT PLEADER SRI.JOSEPH GEORGE R3 BY ADV. SRI.C.K.JAYAKUMAR, SC,** **R4 & R5 BY SRI.P.C.SASIDHARAN, SC, KPSC ADDL.R6 BY ADV. SRI.M.SASINDRAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BP** ## **WP(C).No. 3638 of 2014 (D) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-----------------------** - **P1: TRUE COPY OF THE NOTIFICATION DT.13-11-2009 TO THE POST OF DEPUTY GENERAL MANAGER IN DISTRICT CO-OPERATIVE BANKS FOR DIRECT RECRUITMENT ISSUED BY R4.** - **P2: TRUE COPY OF THE LETTER DT.13-6-2011 ISSUED BY R5.** - **P3: TRUE COPY OF THE RANKED LIST DT.28-9-2011 FOR THE POST OF DEPUTY GENERAL MANAGER IN THE THIRUVANANTHAPURAM DISTRICT CO-OPERATIVE BANK PUBLISHED BY R4.** - **P4: TRUE COPY OF THE APPOINTMENT CHART SHOWING THE RESERVATION TURNS AND THE ADVICE OF THE 1ST RANK HOLDER.** - **P5: TRUE COPY OF THE NOTIFICATION DT.13-11-2009 FOR THE POST OF DEPUTY GENERAL MANAGER IN DIFFERENT DISTRICT COOPERATIVE BANKS, WHICH ARE EAR MARKED FOR DIRECT RECRUITMENT FROM QUALIFIED REGULAR EMPLOYEES OF THE MEMBER SOCIETIES AFFILIATED TO DISTRICT CO-OPERATIVE BANK ISSUED BY R4.** - **P6: TRUE COPY OF THE NOTIFICATION DT.28-9-2011 ISSUED BY R4.** - **P7: TRUE COPY OF THE PROCEEDINGS NO.ADM/EST/E1/2554/2013-2014 DT.1-6-2013 OF THE GENERAL MANAGER OF R3 BANK.** - **P8: TRUE COPY OF THE JUDGMENT DT.10-1-2013 IN WPC 12283/2012.** - **P9: TRUE COPY OF THE JUDGMENT DT.25-6-2013 IN RP 494/2013 IN WPC 12283/2012.** **RESPONDENT(S)' EXHIBITS : NIL.** **-----------------------** **//TRUE COPY//** **P.A. TO JUDGE** **BP** ## **K. VINOD CHANDRAN, J. ===================== W.P.(C) No. 3638 of 2014 ====================== Dated this the 27[th] day of March, 2014** ## **J U D G M E N T** The petitioner is the 4[th] rank holder, but however, by communal rotation entitled to be advised as the second person from the rank list, Ext.P3, prepared pursuant to the selection carried out as per Ext.P1. Simultaneous to Ext.P1 notification, Ext.P5 notification was also initiated wherein direct recruitment from employees of Primary Co-operative Societies were sought to be made. Admittedly, there were no such candidates available as is evidenced by Ext.P6. The petitioner's contention is that, as per sub-rule 3 of Rule 185 of the Kerala Co-operative Societies Rules, 1969 (for brevity, 'the Rules'), substantive vacancies in the post of Deputy General Manager in the respondent Bank shall be filled up by promotion and direct recruitment in the ratio 1:1. Ext.P3 rank list had a validity of three years ie: till 27.09.2014. The first person in the rank list was advised to W.P.(C) No. 3638 of 2014 **2** the post of Deputy General Manager as per Ext.P4, which specifically has date of advice as 24.11.2011. 2. The first rank holder in the list was appointed in 2011 and subsequent to that there were two retirements on 31.05.2013, to which vacancies, employees were promoted from the feeder category. The present Writ Petition is filed on the apprehension that the vacancy which arises on the retirement of one of the two, promoted on 31.05.2013, falling vacant on superannuation on 31.03.2014, would also be denied to direct recruitees. The petitioner contends that he is entitled to be advised to the said post, being the next candidate eligible for advice from the rank list, on rotation. 3. The respondent Bank would however, contend that there being only three posts of Deputy General Manager, if two of them are from direct recruitment, no post would arise for very many years, thus denying the opportunity to the employees of the Bank, to be promoted. The additional 6[th] respondent who is the senior most employee, in the W.P.(C) No. 3638 of 2014 **3** feeder category, is represented herein and opposes the claim of the petitioner on the ground that he is the next person entitled to be promoted to the post. 4. According to the petitioner, sub-rule 3 of Rule 185 of the Rules, specifically speaks of vacancies and not posts and the recruitment has to be made in the ratio of 1:1. The learned counsel appearing for the respondent however, would urge his claim placing reliance on the decision of the Honourable Supreme Court reported in **Prakash v. Kurien** ## **in [1999(2) KLT 710].** 5. The interpretation given by the Honourable Supreme Court was on Rule 5 Note 3 of the Kerala State & Subordinate Services Rules, 1958. The specific reference is to paragraph 14 which is extracted hereunder. “From the aforesaid discussion, it is clear that if the intention of the rule making authority was to establish a rule of universal application to all the services in the State of Kerala for which special rules are made, then special rules will give away to the general rules enacted for that purpose. This has to be found out from the language used W.P.(C) No. 3638 of 2014 **4** in the rules which may be express or by implication. If the language is clear and unqualified, subsequent general rule would prevail despite repugnancy. If the intention of the rule making authority is to sweep away all the special rules and to establish a uniform pattern for computation of the ratio or percentage of direct recruitments and by transfer, in such case, the special rules will give way. On the basis of the aforesaid settled principles, let us interpret R.5 as well as Note(3) and the method of recruitment prescribed under the special Rules. R.5 quoted above provides method of recruitment to any service, class or category where the method of recruitment is neither solely by direct recruitment nor by transfer but is both by direct recruitment and by transfer. It is made specifically applicable to the 'special rules'. Clause (a) provides that the proportion or order will be applicable only to substantive vacancies in permanent cadre; clause(b) provides that direct recruitment shall be only against substantive vacancy in permanent cadre; and recruitment to all other vacancies shall be made by transfer. Note(1) and (2) provide that all permanent vacancies and temporary vacancies except those of short duration shall be treated as substantive vacancies. Note (3) specifically provides that 'whenever' a ratio or percentage is fixed (in special Rules) for different methods of recruitment to a post, the number of vacancies to be filled up by candidates from each method is to be decided by applying a fixed ratio or W.P.(C) No. 3638 of 2014 **5** percentage to the cadre strength of the post to which the recruitment is made and 'not to the vacancies existing at that time'. Therefore, the entire R.5 deals with the special rules which provide for filling up of the vacancies to any service, class or category by direct recruitment and by transfer. The language of Note (3) is crystal clear and is for removal of any ambiguity by using positive and negative terms. It applies to all special rules whenever a ratio or percentage is prescribed in the Rules. It also empathetically states that it has to be computed on the cadre strength of the posts to which the recruitment is to be made and not on the basis of the vacancies existing at that time.”. 6. It is to be noticed that the interpretation was on the specific language employed in the Note, which speaks of the cadre strength of the post to which the ratio and percentage have to be applied and not to the “vacancies” as is discernible from sub-rule 3 of Rule 185. It is also pertinent that in the above extracted paragraph, it has been clearly declared that the effect of a particular Rule has to be found out from the language used in the Rule which may be express or by implication. W.P.(C) No. 3638 of 2014 **6** 7. Looking at sub-rule 3 of Rule 185, there can be no confusion and the language is fairly clear insofar as it speaks of “substantiative vacancies” in the post and not the cadre strength as has been dealt with by the Honourable Supreme Court. One cannot but notice that the Supreme Court decision, in fact advances the case of the petitioner. The dispute therein was raised, by the candidates aspiring for direct recruitment, claiming 20% of the substantive vacancies, as reserved for direct recruits in the Special Rules. They claimed that the Special Rules would prevail over the General Rules; the latter of which mandated that any ratio or percentage fixed for different modes of appointment shall be applied on the total cadre strength of the post. The Honourable Supreme Court found that the General Rules would, on the language used therein, prevail over the Special Rules. Hence, the contention of the candidates in the rank list of direct recruits were negatived. The 20% reserved for them was held to be applicable to the W.P.(C) No. 3638 of 2014 **7** cadre strength and not to be applied to the substantive vacancies. No such repugnancy occurs in the instant case. The words used herein is also substantive vacancy as distinguished from cadre strength. 8. Evidently, three posts of General Manager were occupied by two promotees and one direct recruitee. The direct recruitee was appointed on 2011, from the very same rank list and both the vacancies which arose on retirement on 31.05.2013, was filled up by employees of the respondent Bank, by promotion. Going by the specific ratio, the petitioner herein would have been entitled to be appointed to one of the said vacancies. Since there was no challenge made at that point of time definitely, this Court need not look back and give a benefit, which is not specifically sought for at the time when the cause of action arose. But, however, the next vacancy arising on 31.03.2014 has necessarily to be conceded to the direct recruit appearing in the rank list and the hardship to the existing W.P.(C) No. 3638 of 2014 **8** employees, projected by the respondent Bank, cannot lead to any equitable consideration overriding the specific provision in the Rule. The Writ Petition hence has to be allowed and the 3[rd] respondent is directed to report the next vacancy arising, in the post of Deputy General Manager, to the Kerala Public Service Commission, which necessarily will have to advice the candidate in Ext.P3 rank list, in accordance with the rotation. Writ Petition allowed, leaving the parties to suffer their respective costs. Sd/- **K. VINOD CHANDRAN, JUDGE** SB