High Court of KeralaSingle Judge2014-03-07Writ petition allowed; directions issued to rep...

Smitha A.S. and Sabeena Beegam M. v District Co-operative Bank, Kottayam and others

Case / Petition Number:WP(C).No.23962 of 2012 (U)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A.V.RAMAKRISHNA PILLAI
Judgment Date: 2014-03-07
Court Decision / Holding: The petition is allowed. The court directs the first and fourth respondents to report the substantive vacancies of clerk/cashier forthwith, to be completed with the list reaching the third respondent before 31 March 2014. The third respondent is directed to advise the candidates from Ext. P1 rank list against the vacancies so reported.
Final Disposition: Writ petition allowed; directions issued to report substantive vacancies to PSC and to advise Ext. P1 candidates against reported vacancies; deadlines set for implementation.

Parties to the Case

Appellants / Petitioners

SMITHA.A.S.
SABEENA BEEGAM M.

Respondents

DISTRICT CO-OPERATIVE BANK, KOTTAYAM
KERALA PUBLIC SERVICE COMMISSION
THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICE, KOTTAYAM
THE ADMINISTRATOR, DISTRICT CO-OPERATIVE BANK, KOTTAYAM

Legal Representation & Advocates

Counsels for Petitioners

• SRI KALEESWARAM RAJ

Counsels for Respondents

• SRI SUNIL CYRIAC
• SRI P.C. SASIDHARAN

Case Synopsis & Summary

The petitioners, Smita A.S. and Sabeena Beegam M., included in Ext. P1 list for the post of clerk/cashier in the District Co-operative Bank, Kottayam, approached the Kerala High Court seeking a directive to respondents 1 and 4 to report the substantive vacancies of clerk/cashier to the Kerala Public Service Commission (KPSC) and to advise candidates from Ext. P1 against the vacancies so reported, with a view to appointment. They contend there are 30 substantive vacancies, of which 16 have been reported, leaving 14 unreported; additional vacancies would arise on promotion. Respondents 2 and 3 admit the ranking list was in force from 31.12.2009 and that petitioners were rank Nos. 45 and 97 in the main list. The current stance shows 14 temporary vacancies reserved to meet the contingency of reversion from higher posts; respondents maintain reporting these vacancies would contravene KS&SSR, 1958. The petition relies on Asha Kaul v. State of Jammu and Kashmir and a circular to argue that the appointing authority has a duty to report vacancies once the rank list is prepared. The counsel for respondents counters that cadre strength depends on classification and that mandamus cannot compel filling all vacancies absent arbitrariness. The court holds that there is no harm in filling the 14 temporary vacancies and directs reporting to the third respondent, with advising of Ext. P1 candidates by 31 March 2014, thereby allowing the petition.

Provisions of Law Cited

KS&SSR, 1958Right to Information Act, 2005Circular No.4441/Adv.C3/97/P & ARD, 1997

Legal Doctrines & Maxims

Last come, first served basis (last come, first served)
Duty of appointing authority to fill vacancies once rank list is prepared

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that there are 30 substantive vacancies for clerk/cashier in the District Co-operative Bank at Kottayam, while only 16 have been reported; 14 vacancies remain unreported and are necessary to address the contingent reversion of employees from higher posts. They rely on Ext. P4 showing 14 temporary vacancies reserved for reversion and on Asha Kaul v. State of Jammu and Kashmir to argue that the appointing authority must report vacancies to the PSC once the rank list is prepared. They seek a direction to report the vacancies and to appoint candidates from Ext. P1 against those vacancies.

Contentions of Respondents

The respondents, while admitting the ranked list from 31.12.2009 and petitioners’ rank numbers, argue that the cadre strength depends on classification and that mandamus cannot compel filling all vacancies absent arbitrariness. They point to KS&SSR, 1958 rules, maintaining that reporting vacancies must follow established procedures and classifications, and that reporting all vacancies might be inappropriate given future reversions. The respondents contend that the petition should not compel action beyond the rules and that any reversion contingency must be managed within existing cadre norms.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Asha Kaul (Mrs.) v State of Jammu and Kashmir and others	(1993) 2 SCC 573	Mentioned Only	Cited to illustrate a proposition about the duty of the appointing authority to fill vacancies once a rank list is prepared; the judgment does not explicitly treat or apply the ratio of the cited case.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Smitha A.S. and Sabeena Beegam M. v District Co-operative Bank, Kottayam and others and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **FRIDAY, THE 7TH DAY OF MARCH 2014/16TH PHALGUNA, 1935** ## **WP(C).No. 23962 of 2012 (U)** ## **----------------------------** ## **PETITIONER(S):** **--------------------------** **1. SMITHA.A.S.,** - **W/O.RATNAKARAN, H.NO.12/1391, PANAYAPPILLY, KOCHI-682 002.** ## **2. SABEENA BEEGAM M.,W/O.NAZAR,** - **NADAKAMALIL HOUSE, POOZHIKOL P.O., KADUTHURUTHY, KOTTAYAM-686 604.** ## **BY ADV. SRI.KALEESWARAM RAJ** ## **RESPONDENT(S):** **----------------------------** **1. DISTRICT CO-OPERATIVE BANK, KOTTAYAM, REPRESENTED BY THE GENERAL MANAGER, DISTRICT CO-OPERATIVE BANK, H.O.POST BOX NO.140, KOTTAYAM-686 001.** **2. KERALA PUBLIC SERVICE COMMISSION,** - **REPRESENTED BY THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM-695 004.** **3. THE DISTIRCT OFFICER, KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICE, KOTTAYAM-686 001.** **4. THE ADMINISTRATOR, DISTRICT CO-OPERATIVE BANK, KOTTAYAM-686 001.** **R1 & R4 BY ADV. SRI.SUNIL CYRIAC,SC,DIST.CO-OP,BANK,KTM R2 & R3 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-02-2014, THE COURT ON 07-03-2014 DELIVERED THE FOLLOWING:** **sts** **WP(C)NO.23962/2012** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** **EXHIBIT P1. TRUE COPY OF THE RANKED LIST FOR THE POST OF CLERK/CASHIER IN DISTRICT CO-OPERATIVE BANK, KOTTAYAM. EXHIBIT P2. TRUE COPY OF THE REPRESENTATION DATED 26/9/2012. EXHIBIT P3. TRUE COPY OF THE QUESTIONNAIRE DATED 29/1/2013 EXHIBIT P4. TRUE COPY FO THE REPLY DATED 26/2/2013 EXHIBIT P5. TRUE COPY OF THE CIRCULAR DATED 15/6/2013 EXHIBIT P6. TRUE COPY OF THE NEWS REPORT WHICH APPEARED IN DESABHIMANI DAILY DATED 9/1/2014** **EXHIBIT P7. TRUE COPY OF THE NEWS REPORT WHICH APPEARED IN MANGALAM DAILY DATED 8/1/2014** ## **RESPONDENTS' EXHIBITS :** ## **NIL** ## **/TRUE COPY/** ## **P.S.TO.JUDGE** **sts** ## **A.V.RAMAKRISHNA PILLAI, J** --------------------------------------------- W.P.(C) No.23962 of 2012 --------------------------------------------- Dated this the 7[th] day of March, 2014 ## **JUDGMENT** The petitioners, who are included in Ext.P1 ranked list for the post of clerk/cashier in the District Co-operative Bank, Kottayam, have come up before this Court for a direction to respondents 1 and 4 to report the substantive vacancies of clerk/cashier to the third respondent and to advise the candidates from Ext.P1 ranked list against the vacancies so reported. There is a consequential prayer for a direction to the respondents to appoint the candidates so advised. 2. According to the petitioners there are altogether 30 substantive vacancies of cashier/clerk in the first respondent bank, out of which only 16 vacancies were reported and 14 vacancies remain to be reported. There are another 14 vacancies WPC No.23962 of 2012 2 which would arise due to promotion; it is submitted. The petitioners seek advice and appointment against the said vacancies. Thus, this petition. 3. In the counter filed by respondents 2 and 3, they have admitted that the ranked list for the posts was brought into force with effect from 31.12.2009 in the Kottayam District and the name of the petitioners were included as rank Nos.45 and 97 respectively in the Main List under Part I. ## 4. The current advice position is as follows:- ||**_OC_**|**_E_**|**_SC_**|**_ST_**|**_M_**|**_LC_**|**_OBC_**|**_V_**|**_SIUC_**|**_OX_**|**_D_**|**_O_**|**_Total_**|**_Last date of_**<br>**_advice_**| |---|---|---|---|---|---|---|---|---|---|---|---|---|---|---| |Part<br>I|44|46|SL-2|All|91|--|40|39|SL-1|158|SL-1|3|62|19.9.12| |Part<br>II|20|32|All|--|All|--|12|--|--|--|--|--|43|03/10/12| ## 5. They maintained the stand that since there is a probability for reversion of few Branch Managers to the post of clerks/cashiers on account of a possible change in the classification of the bank, the main averments of the petitioners are to be dealt with by the other respondents. According to them, the Commission has advised the candidates against WPC No.23962 of 2012 3 the vacancies reported by the appointing authorities strictly in accordance with the rules laid down in KS&SSR, 1958. 6. No counter is seen filed by the other respondents. ## 7. Arguments have been heard. 8. It appears from the argument advanced by the learned counsel for the respondents that the main reason for not reporting the substantive vacancies by the respondents is the future probability of reversion of persons working in higher posts. 9. The learned counsel for the petitioners would point out that as per Ext.P4, which was received by the petitioners from the respondent bank under the Right to Information Act, 14 temporary vacancies of cashier/clerk are reserved to meet the contingency of accommodating employees who are likely to be reverted from the post of Branch Managers. According to the learned counsel for the petitioners, that is not a valid WPC No.23962 of 2012 4 reason or justification for not reporting the 14 vacancies. A few rank holders have filed a representation dated 26.9.2012 requesting the first respondent to report the remaining 14 vacancies of clerk/cashier to Public Service Commission. Ext.P2 is the copy of the said representation. 10. Adverting to _**Asha Kaul (Mrs.) and another** v_ _**State of Jammu and Kashmir and others**_ (1993) 2 SCC 573, it was argued by the learned counsel for the petitioners that the appointing authority has got a duty to fill up the vacancies once the rank list is prepared. It was also pointed out that in Circular No.4441/Adv.C3/97/P & ARD dated 21.3.1997 it was contended that the appointing authority should report the vacancies to the PSC. 11. According to the learned counsel for the petitioners, apart from the 14 vacancies stated above, there are further vacancies which will arise due to promotion. WPC No.23962 of 2012 5 12. The learned counsel for the respondents, per contra, submitted that the cadre strength of a co-operative society would depend upon its classification and a writ of mandamus cannot be issued to fill up all vacancies unless authority has acted in an arbitrary manner. 13. However, as it is an admitted case that 14 temporary vacancies are reserved to meet the contingency of reversion, this Court is of the definite view that there is no harm in filling up the said vacancies for the time being. If reversions occur in due course, the appointees will have to be retrenched on last come first go basis. 14. Therefore, so long as the vacancies are there and the petitioners are included in the ranked list, this Court is of the definite view that it is only just and proper to direct the first respondent to report the vacancies to the third respondent and to direct the third respondent to advise the candidates from Ext.P1 ranked list against the vacancies so WPC No.23962 of 2012 6 reported. In the result, this writ petition is allowed. The first and fourth respondents are directed to report the substantive vacancies of clerk/cashier forthwith. This shall be done without delay as the list has to reach the third respondent before 31[st] March 2014. The third respondent is directed to advise the candidates from Ext.P1 rank list against the vacancies so reported. **sd/- A.V.RAMAKRISHNA PILLAI JUDGE** css/ true copy P.S.TO JUDGE