Shyby v. Varanam Puthenangadi KSHEEROTHPADAKA SAHAKARANA SANGHOM LTD.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR.JUSTICE K.HARILAL** **MONDAY, THE 28TH DAY OF JANUARY 2013/8TH MAGHA 1934** ## **WA.No. 452 of 2010 ( ) IN WP(C).25289/2009** **------------------------------------------AGAINST THE JUDGMENT IN WP(C).25289/2009 of HIGH COURT OF KERALA DATED 06-01-2010** **=================** ## **APPELLANT/PETITIONER:** **-------------------------------------** **SHYBY, AGED 23 YEARS, D/O.UDAYAPPAN, THYVELI,VARANAM P.O.,ALAPPUZHA-688 555.** **BY ADVS.SRI.S.SREEKUMAR (SR.) SRI.M.A.MOHAMMED SIRAJ SRI.P.PRIJITH** ## **RESPONDENTS/RESPONDENTS:** **-----------------------------------------------** ## **1. VARANAM PUTHENANGADI** **KSHEEROTHPADAKA SAHAKARANA SANGHOM LTD.A.139 D APCOSE,VARANAM P.O.,CHERTHALA REPRESENTED BY ITS HONRY.SECRETARY.** ## **2. JOINT REGISTRAR OF CO-OPERATIVE SOCIETY** ## **(DAIRY),ALAPPUZHA.** ## **3. DEPUTY DIRECTOR OF DAIRIES,** **OFFICE OF THE DEPUTY DIRECTOR,NEAR KALLUPALAM ALAPPUZHA.** ***ADDL.R4 IS IMPLEADED AS PER ORDER DATED 27.05.2010 IN I.A. NO.379/2010** - ***ADDL.R4. SMT.SURYA SASIKUMAR, SASI VIHAR, VARANAM P.O. ALAPPUZHA.** **R, BY ADV. SRI.ALEX.M.SCARIA R, BY ADV. SRI.P.MARTIN JOSE R BY SRI.T.R.HARIKUMAR R BY SRI.T.R.HARIKUMAR** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 28-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SD** ## **C R** **S.SIRI JAGAN & K.HARILAL, JJ --------------------------------------W.A. No. 452 OF 2010 --------------------------------------Dated this the 28[th] day of January, 2013.** ## **J U D G M E N T** ## S.Siri Jagan, J. The appellant in this appeal is the petitioner in the W.P.(C) No.25289/2009. The 1[st] respondent Co-Operative Society invited applications for appointment to the post of Secretary to the said Co-Operative Society. The petitioner also applied. After the written test and interview, a short list of two candidates were prepared. The first rank holder was one Smt. Ambily and the appellant was the second rank holder. The first rank holder was appointed to the post of Secretary. She joined duty and continued in service for sometime and thereafter, resigned from the job leaving the post vacant. According to the appellant, the rank list was valid for a period of two years and therefore, in the vacancy which arose on such resignation, the appellant who was the second rank holder should have been appointed. But the first respondent issued Ext.P5 notification inviting fresh applications _W.A No. 452 of 2010_ **2** for the post of Secretary. Challenging Ext.P5, the appellant filed the writ petition seeking the following reliefs: “1) to grant a writ of mandamus or any other appropriate writs or direction inter alia directing the respondents not to make fresh appointment to the post of secretary or approve the appoint pursuant to P5 publication 2) declare that a valid and effective rank list is in force on the basis of the list prepared in June/July, 2008 3) to call for the records pertaining to Rank list prepared in June/July, 2008” The appellant contended before the learned Single Judge that for appointment to the post of Secretary, Rules 182(iv),(vii) and (viii) of the Kerala Co-Operative Societies Rules are applicable, in which case Co-Operative Societies in the State are bound to keep the rank list prepared for selection valid for a period of two years. In respect of appointments not covered by the said Rule also the Government has issued Ext.R3(1) guidelines as empowered by Rule 182, in which also it is stipulated that the rank list should be kept alive for a period of two years. In view of the said provision in the Rule and the guidelines in the vacancy of Secretary, which arose during the validity period of the rank list, _W.A No. 452 of 2010_ **3** the appellant should have been appointed, was the contention raised by the appellant. But the learned Single Judge repelled the claim of the appellant, relying on the decision of this Court in **Dr.Dimpi V.Divakaran v. Mahatma Gandhi University and another** 2007(1)KLJ 545, wherein it was held that, where only one vacancy is notified and a period of one year is prescribed as validity of the rank list, it does not mean that the rank list can be operated to fill up a second vacancy. According to the appellant, that reasoning is faulty in view of the decision of the Division Bench of this Court in **Kodakara Farmers Service CoOperative Bank Ltd. v. Neena** 2010(1)KLT 541, wherein a Division Bench of this Court has held that all the vacancies which arise during validity of the rank list prepared by Examination Board have to be filled up from the list and it is not limited to notified vacancies. According to the learned counsel for the appellant, since in this case, the list has been kept alive for a period of two years, going by the ratio of that decision, the vacancy which arose on resignation of the first rank holder during the currency of the rank list, the appellant who is the second rank _W.A No. 452 of 2010_ **4** holder is entitled to appointment. 2. On the other hand, the learned counsel for the bank would contend that the decision in **Kodakara Farmers Service Co-Operative Bank Ltd.** ' case (supra) has been reversed by the Supreme Court in Civil Appeal No.3981/2012. A copy of the judgment of the Supreme Court in that Civil Appeal has also been made available to us for perusal. It is further submitted that the mere fact that the rules and the guidelines issued by the Government prescribe that a rank list has to be kept alive for a period of two years, does not automatically mean that all vacancies which arise during the period of the rank list has to be mandatorily filled up from that rank list. According to the counsel for the Society, that is a permissive rule, by which the societies are permitted to make such appointments from the rank list during the period of rank list without limiting the operation of the rank list for filling up only the notified vacancies. It is submitted that it is perfectly open to the society to decide to invite fresh notifications for appointment, even if the period of validity of the rank list has not expired. It is further submitted that, in any _W.A No. 452 of 2010_ **5** event, in view of **Dr.Dimpi's case** (supra) insofar as, the post of Secretary is a single cadre post, notwithstanding the fact that the general rules prescribed two years period of validity for the rank list, that does not mean that the rank list can be operated to fill up a second vacancy in that post. 3. We have considered the rival contentions in detail. Insofar as, the Division Bench decision in **Kodakara Farmers Service Co-Operative Bank Ltd.** 's case (supra) has been set aside by the Supreme Court, the law laid down in that decision is no longer good law. We are of opinion that the stipulation in the rules and the guidelines applicable for appointment to various posts in the Co-Operative Societies that the rank list shall be valid for a period of two years, does not mandatorily mean that all vacancies which arise during the currency of the rank list have to be mandatorily filled up from that rank list itself. If the intention of the rule making authority was to that effect, nothing prevented the rule maker from adding one more sentence to the effect that all vacancies which arise during the period of currency of the rank list shall be filled up from that rank list. Since the _W.A No. 452 of 2010_ **6** Rule making authority has not chosen to do so it is not proper for this Court to read into the rule a further stipulation that all vacancies during the currency of the rank list have to be mandatorily filled up from that rank list. 4. We are of opinion that non inclusion of such a provision is deliberate on the part of the rule making authority, to give flexibility to the Society to decide to invite fresh applications, when the situation demands, so as to give a chance to those very many unemployed persons who become qualified in the meanwhile also to seek employment to the vacancies, which arise during the currency of the rank list after filling up the notified vacancies. It is a leeway granted to the society for application when the situation demands the same. It is for the purpose of avoiding delay and expenses in conducting a fresh selection process for the vacancies which arise after filling up the notified vacancies. It is all the more so when this Court and the Supreme Court has time and again held that appointments can be made only to notified vacancies in the absence of specific rule authorising filling up of further vacancies from the same _W.A No. 452 of 2010_ **7** selection. In this connection it must be noted that even in PSC selections it is open to the Public Service Commission to make fresh selection even before the expiry of the period of validity of the rank list prepared in the earlier selection. The intention of the Rule making authority in this case is to give such flexibility to Co-Operative Societies also. We are of opinion that for a country where unemployment is a serious problem, the fundamental rights of the unemployed, who become qualified to seek employment to subsequent vacancies which arise after filling up the notified vacancies, cannot be easily brushed aside to recognise a superior right on persons, who have been included in a rank list prepared for filling up a specified number of vacancies, for appointment to vacancies which arise after filling up of the notified vacancies. 5. Even apart from the same, as noted by the learned Single Judge, in several decisions, the latest of which is **Dr.Dimpi's case** (supra), this Court has held that when only one vacancy is notified and a period of one year is prescribed as the period validity of the rank list, that does not mean that the rank _W.A No. 452 of 2010_ **8** list can be operated to fill up a second vacancy. In the above circumstances, we do not find any merit in the contentions of the appellant in the writ appeal. Accordingly, the same is dismissed. Sd/- **S.SIRI JAGAN,JUDGE** Sd/- **K.HARILAL, JUDGE** sd