Subin Joseph and others v. Meenachil East Urban Co-operative Bank Ltd and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 19TH DAY OF MAY 2020 / 29TH VAISAKHA, 1942** **WA.No.2402 OF 2019** **AGAINST THE JUDGMENT IN WP(C).16792/2019(Y) OF HIGH COURT OF KERALA** ## **APPELLANTS:** - **1 SUBIN JOSEPH AGED 29 YEARS S/O.SUNNY JOSEPH, RESIDING AT THUMPASSERIL HOUSE, ULLANAD P.O., KOTTAYAM-686651.** - **2 ANITHA P.NAIR, AGED 38 YEARS W/O.P.S.GOPAKUMAR, CHIRACKAL HOUSE, PAMPADY P.O., KOTTAYAM-686502.** - **3 AUGUSTINE KURIAKOSE, AGED 28 YEARS S/O.KURIAKOSE AUGUSTHY, UPPUMAKKAL HOUSE, MOONILAVU P.O., KOTTAYAM-686586. BY ADV. SRI.M.R.ANISON** ## **RESPONDENTS:** - **1 MEENACHIL EAST URBAN CO-OPERATIVE BANK LTD. NO.4266 REPRESENTED BY ITS CHAIRMAN, POONJAR, THEKKEKARA P.O., KOTTAYAM-686582.** - **2 THE REGISTRAR, KERALA STATE CO-OPERATIVE DEPARTMENT, THIRUVANANTHAPURAM-695001.** - **3 THE JOINT REGISTRAR (GENERAL), KERALA STATE CO-OPERATIVE DEPARTMENT, COLLECTORATE P.O., KOTTAYAM-686002.** **G.P. SRI RENIL ANTO SRI P.C. SASIDHARAN FOR R1** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 16-03-2020, THE COURT ON 19-05-2020 DELIVERED THE FOLLOWING:** **WA. No.2402 OF 2019** **2** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 19[th] day of May, 2020**_ ## _**Nagaresh, J.**_ Appellants, who are petitioners in W.P.(C) No.16792/2019, aggrieved by the judgment dated 31.10.2019 of a learned Single Judge, are in appeal. 2. In their writ petition, the appellants contended that the Co-operative Service Examination Board invited applications for appointment to ten general category and one Scheduled Caste category posts of Junior Clerk/Cashier in the 1[st] respondent-Meenachil East Urban Co-operative Bank as per Ext.P1 notification. After examination, the Board published Ext.P2 rank list of 84 candidates in October, 2017. The rank list had validity up to October, 2019. The appellants were ranked at Sl. Nos.13, 15 and 16 in Ext.P2 rank list. Eleven persons were advised from the rank list by November, 2017. **WA. No.2402 OF 2019** **3** 3. Finding that there still exist vacancies of Junior Clerk/Cashier in the 1[st] respondent-Bank, the appellants requested the concerned authorities of the Bank to fill up those vacancies by appointing the candidates listed in Ext.P2. But, the Bank took a stand that they are not bound to fill up any vacancies other than notified vacancies. 4. The appellants thereafter sent Ext.P5 representation to the 2[nd] respondent-Registrar of Co-operative Societies seeking to fill up all the vacant posts of Junior Clerk/Cashier in the Bank from Ext.P1 ranked list. The 3[rd] respondent issued Ext.P6 letter informing the petitioners that as on date 11 vacancies of Junior Clerk/Cashier are lying vacant in the 1[st] respondent-Bank. The appellants contended that as per Ext.P7 Circular, the 2[nd] respondent-Registrar has directed all Co-operative Banks to report the details of vacancies which are arising in various Societies up to 31.07.2020, before 01.07.2018. One of the appellants is already age barred for applying for any Government employment. In the circumstances, the appellants filed the **WA. No.2402 OF 2019** **4** writ petition seeking to direct the 1[st] respondent-Bank to fill up all existing and arising vacancies of Junior Clerk/Cashier in the 1[st] respondent-Bank up to November, 2019 from Ext.P2 rank list. 5. The 1[st] respondent filed counter affidavit in the writ petition stating that the requisition of the Bank to the Board was to conduct selection for filling up 11 vacancies of Clerk, out of which one was reserved for SC/ST. Pursuant thereto the Board issued a notification dated 08.01.2016 notifying the 11 vacancies. The 1[st] rank holder who joined service, left the job within a few days and the said vacancy was also filled up by the next eligible candidate from the rank list. Thus, all notified vacancies were filled up from the rank list. In view of the judgment of the Hon'ble Apex Court in _**Arup Das and others v. State of Assam and others** [(2012) 5 SCC 559]_ , the rank list can be utilised only for the notified vacancies. 6. The learned Single Judge, after hearing the writ petition, held that it is for the employer to decide whether to recruit for a specified number of vacancies or for all vacancies **WA. No.2402 OF 2019** **5** that may arise during the currency of the list. The learned Single Judge, relying on the judgment of the Apex Court in _**State of Orissa v. Rajkishore Nanda** [(2010) 6 SCC 777]_ , held that no appointments can be made in excess of the notified vacancies. In view of the said judgment of the Apex Court, the learned Single Judge held that the appellants are not entitled to any relief. The writ petition was dismissed. 7. Heard learned counsel for the petitioner, counsel for the 1[st] respondent and learned Government Pleader representing respondents 2 and 3. 8. The learned counsel for the appellants placing reliance on rule 182(4)(vii) and (viii) submitted that once the 1[st] respondent receives consolidated list, the Committee shall prepare the rank list of candidates and publish the same in the notice board of the Society and all appointments to the vacancies shall be made by the Committee from the select list so published. The learned counsel for the appellants relied on two Division Bench judgments of this Court in _**Kodakara Farmers Service Co-operative Bank Ltd. v. Neena** [2010_ **WA. No.2402 OF 2019** **6** _(1) KLT 541]_ and _**Pannivizha Service Co-operative Bank Ltd. v. Smitha T. Pillai and others** [2018 (2) KHC 611]_ , wherein it was held that the Primary Co-operative Banks are bound to fill all vacancies arising in the Bank during the subsistence of the rank list. 9. The Senior Counsel, who appeared at the instance of the 1[st] respondent, argued that an authority cannot make any appointment beyond the number of posts advertised, even if there were large number of posts available than those advertised. If that is allowed to be done, such action would be entirely arbitrary and violative of Articles 14 and 16 of the Constitution of India. 10. The Apex Court in _**State of Orissa v. Rajkishore Nanda** (supra)_ held that vacancies cannot be filled up over and above the number of vacancies advertised. Recruitment of candidates in excess of the notified vacancies amounts to denial and deprivation of the constitutional right under Articles 14 and 16(1) of the Constitution of India. The Apex Court, in the judgment in _**Mukul Saikia v. State of Assam** [(2009) 1_ **WA. No.2402 OF 2019** **7** _SCC 386]_ , held that 'if the requisition and advertisement was only for 27 posts, the State cannot appoint more than the number of posts advertised'. 11. It is by now a settled law that a person whose name appears in the select list does not acquire any indefeasible right for appointment. Inclusion in a select list is at the best a condition of eligibility for the purpose of appointment. Inclusion in a select list does not create a vested right to be appointed. It is true that Rule 182(4)(viii) of the Kerala Co-operative Societies Rules provides that all appointments to the vacancies shall be made by the Committee from the select list published. But, in the light of the law laid down by the Supreme Court, if the recruitment notification indicates the number of vacancies to be filled up and it does not indicate that all vacancies will be filled up by appointing candidates from the select list to be prepared, the words “All appointments to the vacancies” appearing in Rule 182(4)(iii) shall be read as “All appointments to the notified vacancies”. It is to be noted that the appellants in their writ **WA. No.2402 OF 2019** **8** petition have not challenged Ext.P1 recruitment notification wherein the number of vacancies in the 1[st] respondent-Bank were indicated as eleven. For all the afore reasons, we do not find any justification to interfere with the judgment in W.P.(C) No.16792/2019 of the learned Single Judge. The writ appeal therefore fails and it is consequently dismissed. Sd/- **C.T. RAVIKUMAR, JUDGE** Sd/- **N. NAGARESH, JUDGE** aks