Sreekanth K. and John Palocaren v. Secretary to Government, Agriculture Dairy Department; Ernakulam Regional Co-operative Milk Producers' Union Ltd.; Managing Director, Ernakulam Regional Co-operative Milk Producers' Union Ltd.; and Addl. Respondents Ratheeshk.R, Sarathkumar S, Sabuvargheese, Shajan Varghese

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 26[TH] DAY OF OCTOBER 2023 / 4TH KARTHIKA, 1945 WP(C) NO. 6277 OF 2023`** ``` PETITIONERS: ``` ``` 1SREEKANTH.K. AGED32YEARS S/OSASINDRAN,KANIYALAKOOVATHUDI,ARAKKUPARAMBA, - MALAPPURAM,,PIN679341. 2JOHNPALOCAREN AGED31YEARS S/OJOSEPALOCAREN,PALOCARENHOUSE,MANNUTHYP.O., - THRISSUR,,PIN680651. BYADVS. R.T.PRADEEP M.BINDUDAS K.C.HARISH ``` ``` RESPONDENTS: ``` ``` 1SECRETARYTOGOVERNMENT AGRICULTUREDAIRYDEPARTMENT,SECRETARIAT, - THIRUVANANTHAPURAM,,PIN695001. 2ERNAKULAMREGIONALCO-OPERATIVEMILKPRODUCERS'UNIONLTD. - P.B.NO.2212,EDAPPALLY,ERNAKULAM,KOCHI682024, REPRESENTEDBYITSMANAGINGDIRECTOR. 3MANAGINGDIRECTOR ERNAKULAMREGIONALCO-OPERATIVEMILKPRODUCERS'UNIONLTD., - P.B.NO.2212,EDAPPALLY,ERNAKULAM,KOCHI,PIN682024. *ADDLR4RATHEESHK.R, AGED44YEARS,S/O.RAVINDRAN,WORKINGASGRADEI, TECHNICIANINMILMAERNAKULAMDAIRY,RESIDINGAT KANATTUSSERY,NANTHIATTUKUNNAM,NORTHPARAVUR,ERNAKULAM, PIN-683513. *ADDLR5SARATHKUMARS, AGED41YEARS,S/O.SUBRAMANIAN,THUMPUNKALTHEKKEPARAMBU ``` W.P.(C) No. 6277 of 2023 2 ``` HOUSE,PALIYAKERA,ANGAMALY.P.O.,ERNAKULAM,PIN-683572. ``` ``` *ADDLR6SABUVARGHESE, AGED56YEARS,S/O.PEREPPADANPAULO,PULIYANAM - PARAKKADAVUERNAKULAM,PIN683572. ``` - `*ADDL R7 SHAJAN VARGHESE, AGED 53 YEARS, S/O. K.K VARGHESE, KAVUNGUMPILLIL KARINGAZHA -` - `CHELAD P.O KOTHAMANGALAM KEERAMPARA KERALA 686681.` ``` *(AREIMPLEADEDASADDL.R4TOR7ASPERORDERDATED 22.08.2023INIA1/2023OFWP(C)) ``` ``` BYADVS. LATHAANAND,SC C.S.AJITHPRAKASH T.K.DEVARAJAN BABUM. ANCYTHANKACHAN NIDHINRAJVETTIKKADAN GOURIKAILASH ``` ``` SMTMARYBEENAJOSEPH,SR.GP. ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSION ON26.10.2023,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` W.P.(C) No. 6277 of 2023 3 ## **J U D G M E N T** The ERCMPU (Ernakulam Regional Co-operative Milk Producers' Union) is a Co-operative Society affiliated with the Kerala Co-operative Milk Marketing Federation Ltd. for the Ernakulam region, governed by the Kerala Cooperative Societies Act, 1969. The petitioners assert that they hold B.Tech Degrees and they applied for the position of Technical Superintendent (Engineering) pursuant to Ext.P1 notification issued by the Society inviting applications from qualified persons. 2. It is the case of the petitioners that there were five posts of Assistant Engineers [earlier termed as Technical Superintendent (Engineering)] notified for Direct recruitment. After evaluating the scores of the applicants, Ext.P2 rank list was issued, which was valid for two years from 18/2/2021. They state that the 1st petitioner secured 8th rank, and the 2nd petitioner was placed as rank No 10. 3. The Recruitment and Promotion Rules of the ERCMPU (‘Rules’ for the sake of brevity) outline qualifications and conditions for the services of officers and servants of the three Regional Milk Unions. There are three methods for filling the position: Direct recruitment, Transfer Appointment, and Transfer Recruitment. The Rules do not specify the method for appointing W.P.(C) No. 6277 of 2023 4 Assistant Engineers. According to the petitioners, the appointment has to be through Direct Recruitment due to its entry cadre status. 4. The petitioners contend that despite five vacancies being advertised by way of Direct Recruitment, the Board of Directors decided to create five Assistant Engineer positions by downgrading certain higher posts, aiming to fill them from the ranked list. As technically qualified B.Tech Degree holders, the petitioners contend that if the intent was so, there was no need for the protracted recruitment process. 5. It is contended that the Recruitment Committee approved the creation of five Assistant Engineer positions, acknowledging the 2nd respondent’s requirement for technically qualified individuals from the ranked list. Three positions were filled with two candidates from the ranked list and one through transfer recruitment, involving a technician with a Diploma, as per the Rules. The petitioners assert that filling one position through Transfer Recruitment would go against the intended purpose of creating the post. They assert that the Board of Directors resorted to this action under pressure from the Labour Unions, and according to them, the respondents are planning to fill the remaining two positions with Diploma holders and ITI certificate holders, who, according to them, are technically unqualified individuals. It is contended that appointing a Diploma holder through Transfer Recruitment would violate the applicable promotion Rules approved by the Government. The qualification W.P.(C) No. 6277 of 2023 5 for Direct Recruitment to the position of Assistant Purchase Officer is a B.Tech Degree akin to that of an Assistant Engineer. The staff pattern includes three Assistant Purchase Officer positions. As one was filled through Transfer Recruitment without a B.Tech degree holder, the remaining two vacancies should be filled from the ranked list through Direct Recruitment, given the identical qualifications for Assistant Purchase Officers and Assistant Engineers. Highlighting the above grievances, the petitioners are stated to have submitted Ext.P5 representation to the 3rd respondent. However, no action was taken. It is under these circumstances that this Writ petition is filed, seeking the following reliefs: - i) To issue a writ of mandamus or any other appropriate writ, order or direction to the respondents 2 and 3 to fill up the remaining 2 vacancies of Assistant Engineers created in pursuance to Ext.P4 from Ext.P2 rank list dehors any contrary decision taken by the Board of Directors and Recruitment Commitee within such time fixed by this Hon’ble Court. - ii) To issue a writ of mandamus or any other appropriate writ, order or direction to 3rd respondent to take a decision on Ext.P5 after affording an opportunity of being heard to petitioners within such time fixed by this Hon’ble Court and keep in abeyance all proceedings to fill up the remaining two vacancies of Assistant Engineers forming part of 5 post created in pursuance to Ext.P4 till a decision is taken on Ext.P5. W.P.(C) No. 6277 of 2023 6 6. A counter affidavit has been filed by respondents 2 and 3. Apart from challenging the maintainability of the petition, it is contended that the mere inclusion of the petitioners’ name in the ranked list would not confer them with an indefeasible right to appointment to the post. As per Ext. P1 notification, five posts of Technical Superintendent (Engineering) were advertised for Direct Recruitment. The validity of the ranked list expired on 17/02/2021. All five vacancies notified under Ext.P1 were filled from Ext. P2 ranked list. Four candidates from the general category and one candidate from the Scheduled Caste Category were appointed to the post. Subsequently, one of the four persons in the General Category who had joined pursuant to Ext. P1 notification resigned, and the vacancy was filled through Transfer Recruitment. 7. It is stated that based on the recommendation of the Personnel Committee, the Board of Directors of the 2nd respondent decided to downgrade five higher posts to the entry-level post of Assistant Engineer. These five vacancies were created through this downgrading to accommodate qualified Engineers within the organization. This decision was made while the Ext.P2 rank list was in effect, and three persons from the downgraded vacancies were appointed from the Ext.P2 rank list on 3/2/2023. The decision of the Board was approved by the Recruitment Committee constituted under Section 80 BB of the Kerala Co-operative Societies Act. W.P.(C) No. 6277 of 2023 7 8. According to the Recruitment and Promotion Rules of ERCMPU, there are three modes of filling the post of Technical Superintendent (Engineering): (i) Direct Recruitment, (ii) Promotion by Selection, and (iii) Transfer Appointment. The qualifications for these modes differ as per the Recruitment and Promotion Rules. For Direct Recruitment, the minimum qualification is a B.Tech Degree in Mechanical/Electrical/ Electronic/Civil/Instrumentation Engineering or an M.Tech Degree in Dairy Engineering with 2 years of experience; for Transfer Recruitment, the qualification is a Diploma with 3 years of experience as a Technician in the ERCMPU, and Transfer Recruitment is confined to existing employees of the ERCMPU who satisfy the essential qualifications and experience. The ratio between Direct Recruitment, Promotion by Selection, and Transfer Appointment is 1:1:1. After the five notified vacancies were filled from Ext. P2 rank list, one of the existing employees retired on 31/07/21. The consequent vacancy was filled through Promotion by Selection as stipulated in the Recruitment Rules. Subsequently, on 29/11/2021, one of the candidates appointed from Ext. P2 rank list resigned. 9. According to the Rules, the said vacancy is to be filled through Transfer Recruitment, and Mr. Alagesan (Technician Grade 1) was posted through Transfer Recruitment. Subsequently, five vacancies were created by downgrading as per the decision of the Board of Directors dated 19/05/2022. W.P.(C) No. 6277 of 2023 8 Out of these five vacancies, three were filled from Exhibit P2 ranked list and appointed the 5th, 6th & 7th rank holders. The remaining two vacancies are to be filled through Transfer Recruitment and Promotion by Selection as per the Recruitment and Promotion Rules. It is stated that the petitioners cannot claim appointment to the two vacancies presently available in the post of Assistant Engineer. It is further stated that Exhibit P2 ranked list pertains to Assistant Engineer, and therefore, the petitioners cannot assert a claim to be appointed to the post of Assistant Purchase Officer. 10. In the counter-affidavit filed by the additional respondent, they reiterate the contentions raised by respondents 2 and 3 in their counter-affidavit. They assert that the challenge was raised only on 22/2/2023 after the ranked list had expired. Furthermore, the vacancy that has occurred is not in respect of the job notified in Ext. P1. It is stated that the additional respondents are qualified to be appointed to the post of Assistant Engineer, any delay in getting their transfer Recruitment ratified would lead to them losing an opportunity to aspire for promotion. 11. I have heard Sri. R.T. Pradeep, the learned counsel appearing for the petitioners, Sri. Latha K. Anand, the learned counsel appearing for respondents 2 and 3, and Sri. Ajith Prakash, the learned counsel appearing for the party respondents. W.P.(C) No. 6277 of 2023 9 12. I have carefully considered the submissions advanced and have gone through the records. 13. The records disclose that Ext.P2 rank list expired on 17.2.2023, and the writ petition was filed on 22.2.2023. The petitioners contend that as they occupy the 8th and 10th position in the General Category in the Ext.P2 rank list, they are entitled to be appointed, ignoring the decision taken by the Board of Directors and the Recruitment Committee. This Court in **Kerala** **Public Service Commission v. Dr. Kesavankutty Nair[1]** had occasion to hold that a candidate in a rank list does not get an indefeasible right to be appointed. The aforesaid view has been upheld by a Full Bench of this Court in **Unnikrishnan Nair G.S. and Ors. v. State of Kerala and Ors.[2]** Furthermore, in Association of Milma Officers v State of Kerala[3] , a Larger Bench of this Court had occasioned to hold that a writ petition under Article 226 can be maintained only when the action complained of in the writ petition of any statutory violation on the part of the Society. The petitioners have no case that the respondents are guilty of having committed any statutory violation. In view of the settled position, it is doubtful whether this writ petition is maintainable under Article 226 of the Constitution of India. However, > 1 [1977 KLT 818] > 2 [2019 (2) KHC 24] > 3 2015(1) KLT 849 W.P.(C) No. 6277 of 2023 10 as the writ petition strands admitted, the grievance raised by the petitioners can be looked into. 14. It is undisputed that there is a specific mode for filling up the post of Technical Superintendent in Engineering. The appointment is by the ratio of 1:1:1 between “Direct Recruitment,” “Promotion by Selection,” and “by-transfer” appointments. The records disclose that Ext.P1 notification was invited to fill up five vacancies for the post of Technical Superintendent (Engineering). The five notified vacancies were, in fact, filled up from the Ext.P2 rank list. While so, an existing employee who was not appointed pursuant to Ext.P1 notification attained superannuation on 31.7.2021. The consequent vacancy which arose was filled up through promotion by selection as stipulated in the Rules. The course adopted by the respondents cannot be faulted since after vacancies were filled up by Direct Recruitment, the next turn was for ‘Promotion by Selection.’ Later, on 29.11.2021, one of the candidates appointed from the Ext.P2 rank list tendered his resignation. In terms of the Recruitment and Promotion Rules, the said vacancy is to be filled up through ‘By-transfer’ recruitment. Subsequently, five vacancies were created by downgrading in terms of the decisions of the Board of Directors dated 19.5.2022. It appears that the said decision was taken while the rank list was in force, and three persons were appointed from Exhibit P2 Rank List. This clearly is in accordance with the Recruitment Rules, and this decision taken by W.P.(C) No. 6277 of 2023 11 the Board has been approved by the Commitee as well. The remaining two vacancies were filled up through the mode of “by-transfer” recruitment and “promotion by selection.” This fact would be evident from Exhibit R2(c). As the posts were filled up in accordance with the Recruitment Rules and following the turn, the claim of the petitioners cannot be acceded to. After having considered the facts of the instant case in all its perspectives, I find no reason to grant the prayers sought for by the petitioners. This petition will stand dismissed. There will be no order as to costs. Sd/- **RAJA VIJAYARAGHAVAN V JUDGE** W.P.(C) No. 6277 of 2023 12 ## **`APPENDIX OF WP(C) 6277/2023`** |`PETITIONERS EXHIBITS`|| |---|---| |`Exhibit P1`|`TRUE COPY OF NOTIFICATION DATED 25.10.2019 BY`| ||`WHICH 2ND RESPONDENT NOTIFIED SELECTION AND`| ||`APPOINTMENT TO THE POST OF TECHNICAL`| ||`SUPERINTENDENT (ENGINEERING).`| |`Exhibit P2`|`TRUE COPY OF RANK LIST FOR THE POST OF`| ||`TECHNICAL SUPERINTENDENT (ENGINEERING)`| ||`PUBLISHED ON 18.2.2021.`| |`Exhibit P3`|`TRUE COPY OF G.O. (MS) NO.1/2021/DDD DATED`| ||`19.1.2021 BY WHICH THE RULES HAVE BEEN APPROVED`| ||`BY THE GOVERNMENT.`| |`Exhibit P4`|`TRUE COPY OF THE PROPOSAL SUBMITTED BY 3RD`| ||`RESPONDENT FOR THE CREATION OF 5 POSTS TO`| ||`ENDURE TO THE BENEFIT OF RANKED CANDIDATES`| ||`BEFORE THE BOARD OF DIRECTORS WHICH IS NIL`| ||`DATED.`| |`Exhibit P5`|`TRUE COPY OF REPRESENTATION DATED 15.2.2023 OF`| ||`PETITIONERS BEFORE THE 3RD RESPONDENT.`| |`RESPONDENTS EXHIBITS`|| |`Exhibit R2(a)`|`True copy of the extract of the minutes of the`| ||`meeting of the Board of Directors of the ERCMPU`| ||`held on 19.05.2022.`| |`Exhibit R2(b)`|`True copy of the relevant pages of the`| ||`Recruitment and Promotion Rules of ERCMPU.`| |`Exhibit R2(c)`|`True copy of the minutes of the 16th meeting of`| ||`the Recruitment Committee of the ERCMPU dated`| ||`09.02.2023.`|