SAVAD.V.T.K. v. THE PRESIDENT, VATAKARA CO-OPERATIVE AND AGRICULTURE AND RURAL DEVELOPMENT BANK, LTD.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **MONDAY, THE 25TH DAY OF FEBRUARY 2013/6TH PHALGUNA 1934** ## **WP(C).No. 26660 of 2012 (F)** **----------------------------** ## **PETITIONER(S):** **--------------------------** **SAVAD.V.T.K., PART TIME SWEEPER, VATAKARA CO-OPERATIVE AGRICULTURE AND RURAL DEVELOPMENT BANK, LTD.NO.1857, , P.O.KAKKATTIL, KOZHIKODE DISTRICT.** ## **BY ADV. SRI.P.N.MOHANAN** **RESPONDENT(S): ----------------------------** **1. THE PRESIDENT, VATAKARA CO-OPERATIVE AND AGRICULTURE AND RURAL DEVELOPMENT BANK, LTD.NO.1857, P.O.KAKKATTIL, KOZHIKODE DISTRICT - 673 507.** **2. VATAKARA CO-OPERATIVE AND AGRICULTURE AND RURAL DEVELOPMENT BANK LTD.NO.1857, REPRESENTED BY SECRETARY, P.O.KAKKATTIL, KOZHIKODE DISTRICT - 673 507.** **3. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOZHIKODE - 673 001.** **4. VIVEK K.V.,PEON, VATAKARA CO-OPERATIVE AND AGRICULTURE AND RURAL DEVELOPMENT BANK, LTD.NO.1857, P.O.KAKKATTIL, KOZHIKODE DISTRICT - 673 507.** **5. ANEESH K.,PEON,VATAKARA CO-OPERATIVE AND AGRICULTURE AND RURAL DEVELOPMENT BANK, LTD.NO.1857, P.O.KAKKATTIL, KOZHIKODE DISTRICT - 673 507.** **R1 & R2 BY ADV. SRI.C.VATHSALAN** **SRI.K.RAKESH ROSHAN** **SMT.THUSHARA.V** **R3 BY GOVERNMENT PLEADER SMT.SAREENA GEORGE R4 & R5 BY ADV. SRI.P.P.JACOB** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C)NO.26660/2012** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE NOTIFICATION PUBLISHED IN VEEKSHANAM DAILY DATED 27/6/2011** - **P2 COPY OF THE APPOINTMENT ORDER DATED 27/9/2011** - **P3 COPY OF THE CIRCULAR NO.18/91 DATED 7/6/91** - **P4 COPY OF THE CIRCULAR NO.79/2011 DATED 9/11/2011** - **P5 COPY OF THE FEEDER CATEGORY SUB RULES APPROVED BY THE DEPARTMENT** - **P6 COPY OF THE PETITION DATED 2/11/2012 OF THE PETITIONER.** ## **RESPONDENT'S EXHIBITS:** - **R2(A) COPY OF THE RANK LIST OF PEON PREPARED BY THE SUBCOMMITTEE AND APPROVED BY THE MANAGING COMMITTEE** - **R2(B) COPY OF THE RANK LIST OF PART TIME SWEEPER PREPARED BY THE SUBCOMMITTEE AND APPROVED BY THE MANAGING COMMITTEE** - **R2(C) COPY OF THE DECISION TO APPOINT PERSONS WHO ACQUIRED RANK NO.1 AND 2 IN THE LIST FOR PEON, IN THE EXISTING VACANCY** - **R2(D) COPY OF THE DECISIN TO APPOINT PERSONS WHO ACQUIRED RANK NO.1 AND 2 IN THE LIST FOR PART TIME SWEEPER IN THE EXISTING VACANCY** - **R2(E) COPY OF THE CIRCULAR WITH NO.13/2011 DATED 7/2/2011** ## **/TRUE COPY/** ## **P.A.TO.JUDGE** **sts** ## **A.M. SHAFFIQUE, J** **---------------------------------------** ## **W.P. (C) NO. 26660 OF 2012** **----------------------------------------** Dated this the 25th day of February, 2013 ## **JUDGMENT** The petitioner is working as a part-time sweeper in the 2nd respondent Bank. He has sought for a direction to the 1st respondent to appoint him as peon in the available vacancy, in the light of Ext. P5 feeder category rules. Ext. P6 is the representation to that effect. 2. Petitioner also seeks a declaration that the respondents 4 and 5 are entitled to continue in the post of peons in the 2nd respondent Bank as they were not appointed by way of a selection process prescribed as per Ext. P3 and P4. 3. The factual circumstances involved in the case will show that by virtue of Ext. P1 notification dated 26.07.2011, the 2nd respondent Bank invited applications for appointment to the posts of one peon and two part-time sweepers. A rank list was prepared for the post of peon. One Sri. Akhilendran was the first among the persons in the rank list. But the bank appointed two W.P. (C) NO. 26660 OF 2012 **2** persons Sri. Akhilendran and the 5th respondent and they joined on 27.09.2011. Subsequently Sri. Akhilendran resigned from service with effect from 31.10.2012 and in the meantime the 4th respondent who was the 3rd in the rank list was appointed on 05.11.2012. 4. According to the petitioner Ext. P5 feeder category rules have been framed by the 2nd respondent bank on 26.10.2009. The same was approved by the Registrar of Cooperative Societies. According to the petitioner, for appointment of peons, the feeder category is by promotion from part-time sweepers and by Direct Recruitment. It is therefore the contention of the petitioner that when the post of peon is by way of promotion from part-time sweepers and they fall under the feeder category, after having appointed one person in the notified vacancy in terms of Ext. P1, it is not open for the 2nd respondent bank to appoint two other persons from the very same rank list overlooking the feeder category rules. At any rate, it is contended that the appointment of the 4th respondent have been done without appointing any person from the feeder category. 5. Reliance is also placed on Rule 185 of the Co-operative W.P. (C) NO. 26660 OF 2012 **3** Societies Rules (hereinafter referred to as 'Rules'). Rule 185(1) reads as under:- **185. Promotion.-** (1) Subject to the provisions of sub-rules (2), (3) and (4), appointments to the categories of posts in a society, other than those mentioned in sub-rules (2), (3) and (4), shall be made by promotion, on the basis of seniority in the feeder category. The feeder categories for this purpose shall be specified by the society by framing suitable regulations, with the approval of the Registrar. 6. On this basis, it is contended that when the Rule itself clearly indicates that appointments to the categories of post in a society other than post mentioned in sub-rules (2), (3) and (4) shall be made by promotion on the basis of seniority in the feeder category, it is not open for the bank to appoint persons by way of direct recruitment when there are persons in the feeder category. It is contended that Ext. P5 is a subordinate legislation as the feeder category rules framed by the society have been approved by the Registrar. 7. Counter affidavit is filed by the 2nd respondent inter alia contending that when the rank list was prepared there were two vacancies and therefore Sri. Akhilendran and 5th respondent were appointed. Sri. Akhilendran resigned on 31.10.2012 and in W.P. (C) NO. 26660 OF 2012 **4** the said vacancy the 4th respondent who was Rank No. 3 in the rank list was appointed. According to them the petitioner had also applied for post of peon and he was Rank No. 7. It is further indicated that as per Ext. R2(e), a Circular was issued by the Registrar of Co-operative Societies on 07.02.2011 by which clear instructions have been given to the societies stating that parttime sweepers shall not be included in the feeder category for the purpose of promotion. Therefore according to them the petitioner has no right to make any claim for the post of peon in terms of R2(e) Circular and he is excluded from appointment, as part-time sweepers cannot come under the feeder category for the post of peon. 8. The learned counsel for respondents 4 and 5 further contended that the dispute now raised is not a matter relating to which the writ petition can be filed whereas it is a dispute coming under Section 69(2)(d) of the Co-operative Societies Act (hereinafter referred to as 'Act') and therefore this Court should not exercise jurisdiction to interfere the appointments made by the 2nd respondent. 9. Further it is contended that in the light of R2(e) W.P. (C) NO. 26660 OF 2012 **5** Circular the society is bound to comply with the said Circular issued by the Registrar of Co-operative Societies despite the existence of Ext. P5. It is also contended that Ext. P5 feeder category rules in respect of the post of peon will have no application in the light of Ext. R2(e) Circular and that though in Ext. P5 two method of appointments are stated for the post of peon, it is open for the Managing Committee to decide as to how the posts are to be filled up. 10. Heard the learned counsel for the petitioner, learned counsel appearing for the 2nd, 4th and 5th respondents and the learned Government Pleader also. 11. The first question to be considered is whether this Court should exercise jurisdiction in respect of the matter. The matter is no longer res-integra in view of the Full Bench judgment of this Court in **John v. Liquidator [2006(1) KLT 11 (F.B.)]** wherein this Court had come to the conclusion that a writ will lie against a Co-operative Society only when the duty owed by the Co-operative Society is of a public nature or when there is infringement of any statutory rules by such a co-operative society. The main contention of the petitioner in this case is W.P. (C) NO. 26660 OF 2012 **6** violation of Rule 185(1) of the Rules. 12. The next question is whether the appointment made by the 2nd respondent with respect to the 4th and 5th respondent is anyway bad in law. It can be seen that the 5th respondent is appointed along with Sri. Akhilendran on 27.09.2011. The petitioner did not choose to challenge the same within a reasonable time and they continued so. That being the situation I do not think that it will be justifiable on the part of this Court to consider the appointment of the 5th respondent along with Sri. Akhilendran in the light of the contentions urged in writ petition as the challenge against the appointment of the 5th respondent is substantially delayed. 13. However as far as the 4th respondent is concerned he was appointed with effect from 05.11.2012 and this writ petition is filed on 09.11.2012. The contention urged by the learned counsel for the petitioner is two fold. One is that the 2nd respondent has no authority to appoint another person who is placed as 3rd rank from the rank list when the notified vacancy was only one. This matter is also covered by the judgment of the Supreme Court in **Thrissur District Co-op. Bank Ltd. v.** W.P. (C) NO. 26660 OF 2012 **7** ## **Delson Davis [2002 (1) KLT 852 (SC)]** wherein Supreme ## Court in paragraph 3 held as under:- - “3. We fail to understand the reasoning of the High Court in this regard. When once the selection process is complete and appointment had been made, that process comes to an end and if any vacancy arises on the appointee having joined the post leaves the same, it must be treated as a fresh vacancy and fresh steps in accordance with the appropriate rules should be taken. This view is fortified by the judgment of this Court in State of Punjab v. Raghubir Chand Sharma & Anr. (JT 2001 (9) SC 266). Any temporary arrangement made during the interregnum will not entitle respondent No. 1 to claim for permanent employment. In that view of the matter, we allow this appeal, set aside the order made by the High Court and dismiss the Writ Petition filed by the respondent No. 1.” ## 14. Reference is also made to the judgment of the learned ## Single Judge of this Court in **Dimply v. M.G. University [2007** ## **(2) KLT 519]** wherein this Court in paragraph 9 held as under:- - “9. Now, I will examine the case law cited by the parties. In _Kerala Agricultural University v. Gopinathan Unnithan_ (1996 (1) KLT 344, a Division Bench of this Court had occasion to consider the question as to whether recruitment could be made in excess of notified vacancies. It is related to Kerala Agricultural University. There, the Division Bench has held as follows : When one vacancy alone was notified, candidates ranked in the select list cannot be appointed to the vacancies that arose subsequently. Recruitment of candidates in excess of the notified vacancy is a denial and deprivation of the constitutional rights of other qualified hands under Art. 14 read with Art.16 (1) of the Constitution of W.P. (C) NO. 26660 OF 2012 **8** India. Therefore, a person included in the select list cannot be appointed to the subsequent vacancies which were not covered by the Notification. Any appointment to the vacancies that had arisen subsequently and which were not notified for recruitment is unconstitutional. There was only one vacancy. It was for filling up that vacancy only, a select list was prepared. From the select list, a candidate can be appointed only for filling up the single vacancy notified. Appointment of candidates in the waiting list to the vacancies that subsequently arose is unconstitutional. In _Rajamohan v. The State of Kerala & Ors.,_ (1997) 1 ILR Ker.199, a vacancy arose for the post of Director of Extensions under S.36(1) of the Kerala Agricultural University Act. The number of post notified was one. A select list was prepared containing three names. The Writ Petition was filed seeking a direction to fill up the vacancy by appointing the petitioners who were ranked at Sl. Nos. 2 and 3. The person who was appointed, was to retire shortly. The Court held as follows: “Only one vacancy was notified because at a time more than one vacancy will not arise, because there is only one post. No other vacancy could be expected when the University was attempting to fill the then existing vacancy. No further vacancy than the one notified was anticipated or envisaged or expected. Therefore, the notification was intended only for one vacancy which was for the post of Director of Extensions. It is true that the notification providing for procedure of appointment mentioned that the list shall be valid for one year. When one vacancy is notified and a period of one year is prescribed it does not mean that the list can be utilised for filling up of a second vacancy. That will offend Arts.14 and 16 (1) of the Constitution of India. If the vacancy is to be filled up from the list prepared pursuant to the earlier notification, that amounts to denial of opportunity to several candidates qualified after the notification and those who did not offer themselves earlier as only one vacancy has been notified. In such circumstances, to operate the existing list will be violative of Arts.14 and 16 of the Constitution of India.” In fact, this Court in _Jyothish Kumar v. State of Kerala_ (1996 (2) KLT 444) was dealing with a case of a Notification issued by the PSC inviting applications in the Health Department. The Rules of Procedure provided that all vacancies notified and existing and arising during the currency of W.P. (C) NO. 26660 OF 2012 **9** the list are to be made use of for appointment by candidates included in the list. Thereafter, the Court distinguished the decision of this Court in _Kerala Agricultural University v. Gopinathan Unnithan_ (1996 (1) KLT 344), and _Ashok Kumar & Ors. v. Chairman, Banking Service Recruitment Board & Ors._ ( AIR 1996 SC 976). In fact, the Court therein took the view that future vacancies in the light of the terms of the Notification would mean vacancies arising after the date of expiry of the list. There is no such provision as far as the University is concerned, enabling filling up of existing and arising vacancies from the list. If one goes by these decisions, there cannot be any doubt that the appointment of second respondent was patently illegal.” ## 15. Reference is also made to Division Bench judgment of this Court in W.A. No. 924 of 2010, wherein the Division Bench in paragraph 4 held as under :- “4. We have heard learned Special Government Pleader(Cooperative Societies) also. On a consideration of the arguments raised we are inclined to agree with the counsel for the appellant. In view of the decisions quoted by the learned counsel for the appellant, two of which relate to appointments in Co-operative Societies themselves, it is settled law that in the absence of any Rules for preparation of a rank list and appointment to vacancies which arose subsequent to the notification from the rank list during the currency of the rank list, no appointments can be made to vacancies in excess of the notified vacancies. Reliance by the learned Single Judge on the decision in **Kodakara Farmers Service Co-operative Bank Ltd. vs. Neena ( 2010 (1) KLT 541)** is clearly inapposite. As pointed out by the learned counsel for the appellant that decision was in the context of the sub rules 1 to 4 of Rule 182 of the Kerala Co-operative Societies Rules, which specifically provide for preparation of W.P. (C) NO. 26660 OF 2012 **10** a rank list and appointment to vacancies, which arose during the currency of the rank list from the rank list so prepared, which is applicable only to selection made by the Co-operative Service Examination Board to posts covered by Section 80B of the Co-operative Societies Act. The post of peon has not been brought within the purview of the Examination Board under section 80B. The interpretation put to Sub Rule (5) of Rule 182 by the counsel for the 1st respondent does not appeal to us. Under rule 182 (5) a separate procedure has been prescribed for selection to the post not covered by section 80(3)(a) and 80B of the Cooperative Societies Act. The selection and appointment has to be made after conducting the written examination and interview as per the guidelines issued by the Registrar. The Registrar has in fact issued Ext.A5 circular laying down the guidelines for selection and appointment which specifically prescribe that the notification inviting applications should specifically mention the number of vacancies available. That circular does not postulate preparation of a rank list and keeping it alive for a specified period and making appointments to subsequent vacancies arising during the currency of the rank list, in excess of the notified vacancies, from the rank list prepared. Therefore evidently there is no Rule enabling the 1[st] respondent bank to prepare a rank list pursuant to Ext.P1 notification and to make appointments to vacancies, which arose in excess of the notified vacancies also from the rank list so prepared keeping the rank list alive for a specified period. Therefore the appointment made by the 1st respondent to the 4[th] post of Peon in the 1st respondent bank is clearly unsustainable. As such Ext.P10 order of the Joint Registrar is perfectly valid and proper. Consequently quashing of that order by the learned single W.P. (C) NO. 26660 OF 2012 **11** Judge is unsustainable. Accordingly we allow the appeal setting aside the judgment dated 11.3.2010 of the learned Single Judge in WP(C).6384/10 and restoring Ext.P10 order of the Joint Registrar of Co-operative Societies. The writ appeal is allowed as above.” 16. This being the position I am of the view that the 2nd respondent bank was not entitled to make an appointment on the basis of rank list prepared on the basis of a notification for one post alone and therefore to that extent the appointment of the 4th respondent is to be termed as illegal. 17. In regard to the next contention that the feeder category rules had not been complied with by the 2nd respondent Bank, the contention raised by the respondents is based on Ext. R2(e) Circular. The said Circular is issued on 07.02.2011. Of course on the basis of Circular issued it is open for the 2nd respondent bank to amend the feeder category rules. But the fact remains that as on the date of appointment of the 4th respondent the feeder category rules existed as such and therefore they are bound to appoint persons to the post of peon based on the feeder category rules alone. These Rules were framed by exercising power under Section 80 of the Act and also Rule 185 of the W.P. (C) NO. 26660 OF 2012 **12** Rules. As rightly contended by the learned counsel for the petitioner the feeder category Rules is a subordinate legislation which has statutory force. Society cannot depart from the said Rules on the basis of the Circular issued by the Registrar unless Ext. P5 Rules are amended. Even otherwise from the mandate of Rule 185 it is clear that the appointment shall be made by way of promotion. 18. The learned counsel appearing for the respondents 4 and 5 however contended that though in Ext. P5 it is stated that the peons can be appointed by promotion from part-time sweepers as well as by direct recruitment it is open for the authorities concerned to opt in between part-time sweepers and also by way of direct recruitment. The reliance is also placed on the judgment of this Court in **Chandran v. State of Kerala [1994(1) KLT Short Notes 27 (Case No. 26)]** wherein relying upon the relevant Rule which prevailed at that point of time this Court had come to the conclusion that Rule 185(1) of the Rules permits even modification of the feeder category rules or regulations with the approval of the Registrar and that even if the society framed feeder category rules and got it approved from W.P. (C) NO. 26660 OF 2012 **13** the Joint Registrar, there is absolutely no rule or law compelling the Board of Directors of the Society to make appointment or promotion even in respect of the post that had been prescribed in the feeder category rules. It is mentioned that Rule 185 is only an enabling provision for the Board of Directors of the Society to make promotion to the post of Secretary and they cannot be compelled to do so under any of the provisions of the Act or Rules. But the Rule position as stated in the said judgment had undergone some changes and the word 'ordinarily' has been removed from the Statute and as matters stand now, there is a compelling obligation for the society to apply feeder category rules. That being the situation, when the feeder category rules stands as such without any amendment despite the existence of Ext. R2(e) Circular, the bank is bound to apply the feeder category rules and unless there are persons who are not entitled for promotion as part-time sweepers, it is not open for the bank to invoke the procedure for direct recruitment. 19. In these circumstances, it was wrong on the part of the bank to have appointed 4th respondent to the post of peon without making appointments based on Ext. P5 feeder category W.P. (C) NO. 26660 OF 2012 **14** rules. In regard to Ext. R2(e) I am of the view that the Circular issued by the Registrar cannot have the effect of amending the feeder category rules which have statutory force. Under these circumstances the writ petition is only to be allowed as under:- i) The appointment of the 4[th] respondent to the post of peon without invoking Rule 185(1) of the Rules and Ext. P5 feeder category rules is bad in law. ii) That the 2nd respondent shall consider on the basis of Ext. P6 whether any appointment to an existing vacancy of peon shall be filled up on the basis of Ext. P5 and it shall be done within a period of three months from the date of receipt of a copy of this judgment. sd/- **A.M. SHAFFIQUE JUDGE** DCS