Sreelekah C. v. Kerala Public Service Commission, District Office, Kollam

W.P.(C) No. 15696/2014 : 1 : IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE SHAJI P.CHALY FRIDAY, THE 12TH DAY OF MARCH 2021 / 21ST PHALGUNA, 1942 ## WP(C).No.15696 OF 2014(J) ## PETITIONER/S: SREELEKAH C., AGED 37 YEARS, W/O.SIVANKUTTY, MULAMOOTTIL THEKKETHIL VEEDU, THALACHIRA P.O., ERNAKULAM DISTRICT. BY ADV. SRI.K.S.SIVA KUMAR ## RESPONDENT: - 1 THE KERALA PUBLIC SERVICE COMMISSION DISTRICT OFFICE, PATTOM, THIRUVANANTHAPURAM, PIN: 695 004, REPRESENTED BY ITS CHAIRMAN. - 2 THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICE, CORPORATION BUILDING, ANDAMUKKAM, KOLLAM. R1 BY SRI.P.C.SASIDHARAN, SC, KPSC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No. 15696/2014 : 2 : ## **Dated this the 12[th] day of March, 2021.** ## This writ petition is filed by the petitioner, who was an applicant to the post of Branch Manager in the District Co-operative Bank and whose application was rejected for the reason that she does not have the requisite qualification and that she did not secure 50% aggregate marks for her degree course, seeking a writ of certiorari to quash Ext. P2 order of rejection made by the first respondent and also seeking a writ of mandamus directing the respondents to consider her candidature in the post notified and for other consequential reliefs. 2. According to the petitioner, the defect noted in Ext. P2 order of rejection is clearly discriminatory, illegal and unsustainable, since she has every requisite qualification to be considered for the aforesaid post. So also, it is contended that as per Rule 186 of the Kerala Co-operative Societies Rules, B. Com with Co-operation is sufficient, if the candidate is not having Higher Diploma in Co-operation (HDC). However, as per Ext. P1 notification, the eligibility is shown as a degree with 50% marks in the aggregate and a Higher Diploma in Co-operation and therefore, B. Com Co-operation is equivalent to Higher Diploma in Co-operation and there is no need to furnish a certificate of Higher Diploma in Co-operation. W.P.(C) No. 15696/2014 : 3 : 3. The respondents i.e., the Kerala Public Service Commission and the District Officer, District Office, Kollam, have filed a joint counter affidavit wherein the basic aspects with respect to inviting application etc. are all admitted. The qualifications prescribed for the post under part II Direct Recruitment from eligible employees of Member Societies/Primary Cooperative Societies affiliated to the concerned District Co-operative Bank were (i) Graduation from a recognised University with not less than 50% marks in the aggregate and Higher Diploma in Co-operation (HDC or HDC and BM of State Co-operative Union of Kerala or HDC and HDCM Of National council for co-operative training or successful completion of the subordinate (Junior) personal co-operative training course (Junior) Diploma in Cooperation)] or B.Sc (Co-operation and Banking) from Kerala Agricultural University, (ii) MBA/CA/M.Com (Co-operation and Banking) of the Kerala Agricultural University will be a preferential qualification, and (iii) must be a regular employee, who have completed not less than three year regular service and continuing in service in any cadre in a member society/primary society affiliated to the respective District Co-operative Bank. It was also prescribed that the employee should be in the service of society not only on the date of application, but also on the date of appointment. 4. According to the respondents, as per Rule 186(IA) of the Kerala Co- W.P.(C) No. 15696/2014 : 4 : operative Societies Rules and as per G.O.(P) No. 131/05/Co-op dated 19.05.2005, the educational qualifications prescribed for the post of Branch Manager are as per the qualifications (i) and (ii) extracted above. It is further submitted that the petitioner possessed the qualification of B. Com with Co-operation as a special subject. However, she did not possess the qualification of HDC or other alternative qualifications prescribed in the first set of qualifications stipulated in the notification and as such, the petitioner was not qualified to apply for the post. It is also stated that the petitioner did not produce the degree mark list for part I and Part II before the Kerala Public Service Commission and as per the notification, she should have secured 50% marks in aggregate for B. Com degree i.e., for Parts I, II and III taken together. 5. It is also submitted that the Commission issues notification for a post as per the Special Rules and relevant Government Orders existing for the post at the time of publication of the notification and accordingly, relevant rules existed were Rule 186(IA) with amendment made as per G.O. (P) dated 19.05.2005 specified above and the Recruitment Rules for District Co-operative Banks. Therefore, as per the Rules, candidates having B. Com degree with Co-operation were not eligible for selection to the post of Branch Manager in the District Co-opertive Bank. That apart, as per Rules and the W.P.(C) No. 15696/2014 : 5 : Government Order specified above, HDC is one of the basic qualifications for the post of Branch Manager and no relaxation is given in those Rules to the candidates possessing B. Com with Co-operation. Anyhow, the Commission, vide Resolution No. 17 dated 01.02.2010, decided to apply the explanatory notes given in the aforesaid Government Order i.e. even if the qualification is B. Com (Co-operation), HDC/JDC is essential for applying to the post of Branch Manager in the District Co-opeartive Banks. 6. The sum and substance of the contention advanced is that even though the petitioner possessed B. Com with Co-operation as a special subject, she did not possess HDC or other alternative qualifications stipulated in the first set of qualifications. That apart, even though B. Com (Co-operation) with 50% aggregate marks was later accepted as the basic qualification for the post as per the amendment, the said amendment came into effect only after the last date fixed for the receipt of application i.e., after 13.01.2010. Therefore, according to the respondents, the petitioner was not eligible or qualified to apply for the post . 7. In spite of posting of cases on 08.03.2021 and 12.03.2021, none has entered appearance on behalf of the petitioner. I have heard Sri. P. C Sasidharan, learned Standing Counsel for the Kerala Public Service Commission, and perused the pleadings and materials on record. W.P.(C) No. 15696/2014 : 6 : 8. The discussion of facts discernible from the writ petition and the counter affidavit filed by the respondents would make it clear that the sole question to be considered is whether the petitioner was qualified to make the application in accordance with the notification issued by the Kerala Public Service Commission to the post of Branch Manager (Part II) in District Cooperative Bank, Kollam. As pointed out above, the petitioner was not having the requisite qualification in terms of the qualifications prescribed and therefore, she was not entitled to apply to the post. Therefore, the application submitted by the petitioner, in effect, was not meeting up with the requirements of Ext. P1 notification of the PSC. It was, accordingly, that Ext. P2 order was passed by the Kerala Public Service Commission dated 09.01.2012 stating that the petitioner has not secured 50% and above marks in the aggregate and that she has not produced the HDC certificate in accordance with the requirements of Ext. P1 notification. 9. Therefore, on an analysis of the basic circumstances, it is clear that the petitioner was not entitled to apply to the post. However, the learned Standing Counsel for the KPSC submitted that a similar issue was considered by the Apex Court in _**Abdul Nazeer C & Ors. v. State of Kerala and another**_ [Civil Appeal No. 10712 of 2017), and held as follows: W.P.(C) No. 15696/2014 : 7 : ## “Leave granted. We have heard learned counsel for the parties. The appellants have completed B.Com. Degree with Cooperation as a special subject and applied for the post of Branch Manager in the District Co-operative Banks in the State of Kerala, in pursuance of Notification dated 14th December, 2009 issued by the Public Service Commission. They have been held to be ineligible on the ground that prior to Notification dated 2nd November, 2010, they did not have diploma in co-operation, as required, even if they had a B.Com. Degree with Co-operation as a special subject. The High Court has held that Notification dated 2nd November, 2010 which makes them eligible will apply prospectively. We are of the view that the said notification was in the nature of clarification and the object of selection being to get the best candidates, the appellants could not be excluded from being considered. Accordingly we allow these appeals, set aside the impugned order and direct that the appellants be considered eligible in the process of selection. It is made clear that any appointments already made need not be disturbed.” But, the benefits of the said judgment was confined to those persons who have approached the Hon'ble Supreme Court and therefore, the petitioner is not entitled to get the benefits of any such judgment. Later, a Division Bench of this Court in W.A No. 247 of 2019 rendered a judgment dated 26.02.2020, whereby the said issue was considered and has clearly held that the benefit of the judgment of the Apex Court was confined only to the appellants in the Civil Appeal and any interference with the list already drawn up by the Kerala Public Service Commission would prejudice the persons who are already included in the list and appointments made. W.P.(C) No. 15696/2014 : 8 : 10. Moreover, it is the specific contention in the counter affidavit that the petitioner has earlier filed W.P.(C) No. 8497 of 2012 aggrieved by the rejection of the application, which was dismissed as per judgment dated 03.04.2012 holding that the petitioner did not possess any of the qualifications and the mere fact that at a later point of time, the qualification which she possesses was requested as an alternative qualification, was not a reason to hold the petitioner as qualified and eligible for the post. Even though W.A.No. 793 of 2012 was filed against the said judgment, it was dismissed on 13.04.2012. 11. Taking into account the above aspects, I am of the considered opinion that the petitioner is not entitled to get any reliefs as is sought for in the writ petition, especially due to the fact that the same subject matter was under challenge in an earlier writ petition and a writ appeal specified above, and ended in dismissal. Accordingly, the writ petition is dismissed. sd/- **SHAJI P. CHALY, JUDGE.** _Rv_ : 9 : W.P.(C) No. 15696/2014 ## **APPENDIX** ## PETITIONER'S EXHIBITS: EXHIBIT P1 EXT.P1: TRUE COPY OF THE COMMUNICATION NO.QR II (3) 1015/05/96 DATED 13/12/10 RECEIVED BY THE PETITIONER FROM THE 2ND RESPONDENT. EXHIBIT P2 EXT.P2: TRUE COPY OF THE COMMUNICATION NO.QR II(3) 1015/09/1000096 DATED 09/01/2012 RECEIVED BY THE PETITIONER FROM THE 2ND RESPONDENT. EXHIBIT P3 EXT.P3: TRUE COPY OF THE MARK LIST OF THE FINAL YEAR B.COM DEGREE EXAMINATION OF THE PETITIONER. EXHIBIT P4 EXT.P4: TRUE COPY OF THE CERTIFICATE ISSUED FROM UNIVERSITY OF KERALA IN FAVOUR OF THE PETITIONER. EXHIBIT P5 EXT.P5: TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED BY DR.P.T.ROY BABU, THOMAS VAIDHYAN MEMORIAL HOSPITAL. /True Copy/ P S to Judge. _rv_ W.P.(C) No. 15696/2014 : 10 : ## **APPENDIX** ## PETITIONER'S EXHIBITS: |EXHIBIT P1|EXT.P1: TRUE COPY OF THE COMMUNICATION NO.QR II (3)| |---|---| ||1015/05/96 DATED 13/12/10 RECEIVED BY THE PETITIONER| ||FROM THE 2ND RESPONDENT.| |EXHIBIT P2|EXT.P2: TRUE COPY OF THE COMMUNICATION NO.QR II(3)| ||1015/09/1000096 DATED 09/01/2012 RECEIVED BY THE| ||PETITIONER FROM THE 2ND RESPONDENT.| |EXHIBIT P3|EXT.P3: TRUE COPY OF THE MARK LIST OF THE FINAL YEAR| ||B.COM DEGREE EXAMINATION OF THE PETITIONER.| |EXHIBIT P4|EXT.P4: TRUE COPY OF THE CERTIFICATE ISSUED FROM| ||UNIVERSITY OF KERALA IN FAVOUR OF THE PETITIONER.| |EXHIBIT P5|EXT.P5: TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED| ||BY DR.P.T.ROY BABU, THOMAS VAIDHYAN MEMORIAL| ||HOSPITAL.| ## RESPONDENTS' EXHIBITS: NL /True Copy/ PS To Judge. rv # W.P.(C) No. 15696/2014 : 11 :