T. L. Parthasarathi v. Kollam District Co-operative Bank Ltd. & Ors.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU TUESDAY, THE 15TH DAY OF MARCH 2016/25TH PHALGUNA, 1937 WP(C).No. 36352 of 2015 (T) ---------------------------- PETITIONER: ----------- T.L.PARTHASARATHI SENIOR MANAGER/RECOVERY SUPERINTENDENT, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., HEAD OFFICE, KOLLAM-691001. BY ADVS.DR.K.P.SATHEESAN (SR.) SRI.P.MOHANDAS (ERNAKULAM) SRI.ANOOP.V.NAIR SRI.S.VIBHEESHANAN SRI.K.SUDHINKUMAR RESPONDENTS: ------------ 1. THE KOLLAM DISTRICT CO-OPERATIVE BANK LTD. REPRESENTED BY ITS GENERAL MANAGER, HEAD OFFICE, P.B.NO.130, CHINNAKKADA, KOLLAM-691001. 2. THE BOARD OF DIRECTORS REPRESENTED BY ITS PRESIDENT, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., HEAD OFFICE, P.B.NO.130, CHINNAKKADA, KOLLAM-691001. 3. M.MANILAL DEPUTY GENERAL MANAGER, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., HEAD OFFICE, P.B.NO.130, CHINNAKKADA, KOLLAM-691001. 4. KERALA STATE PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, P.S.C. OFFICE, PATTOM, THIRUVANANTHAPURAM-695004. R3 BY ADV. SRI.P.N.MOHANAN R BY SRI.P.C.SASIDHARAN, SC, KPSC R BY SRI.T.R.HARIKUMAR, SC, KOLLAM DISTRICT COOPERATIVE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 36352 of 2015 (T) ---------------------------- ## APPENDIX PETITIONERS' EXHIBITS --------------------- EXHIBIT P1: TRUE COPY OF THE NOTIFICATION PUBLISHED IN MATHRUBHOOMI DAILY DATED 3.12.2009. EXHIBIT P2: TRUE COPY OF THE RANKED LIST PUBLISHED BY P.S.C DATED 28.9.2011. EXHIBIT P3: TRUE COPY OF THE PROCEEDINGS ISSUED BY THE FIRST RESPONDENT FOR AND ON BEHALF OF THE 2ND RESPONDENT. EXHIBIT P4: TRUE COPY OF THE REPRESENTATION FILED BEFORE THE FIRST RESPONDENT DATED 11.11.2015. EXHIBIT P5 TRUE COPY OF THE RELINQUISHMENT LETTER GIVEN BY RANK NO.2 (ANIL KUMAR N.) TO PSC dated 30.11.2015. RESPONDENTS' EXHIBITS NIL. --------------------- true copy P.S.TO JUDGE Dama Seshadri Naidu, J. ------------------------------------------- W.P.(C)No.36352 of 2015 T -------------------------------------------- Dated this the 15[th] day of March, 2016 ## **JUDGMENT** In this writ petition Rule 185(3) of the Kerala Co-operative Societies Rules ('the Rules') falls for consideration. Since the said Rule has been authoritatively interpreted and the issue arising therefrom has already been conclusively adjudicated upon by a learned Division Bench of this Court in **Jameela v. James Joseph** (judgment dated 09.10.2015 in W.A.No.2015/2015), this Court is only to apply the ratio of the judgment and dispose of the writ petition. 2. Briefly stated, the petitioner is a Senior Manager working in the first respondent Bank. In the course of time, the Kerala Public Service Commission (PSC) through Exhibit P1 notification invited applications from the open market to fill up the post of Deputy WPC 36352/15 2 General Manager. Later, after following the due procedure it published Exhibit P2 rank list on 28.09.2011 having an initial validity period of three years, extended till 28.03.2016. The petitioner secured the third position in the rank list. 3. Exhibit P1 not only notifies one clear vacancy but also provides for anticipated vacancies. As a matter of further development, the person who secured the first rank was appointed in the existing vacancy. With the sanctioned strength of three vacancies, while the rank list had its currency, another vacancy arose. Because the person who secured the second rank has relinquished his claim, the petitioner legitimately expected that he would be advised. The first respondent Bank has, however, promoted the third respondent to the vacancy instead of considering the petitioner's case. Aggrieved, the petitioner has filed the present writ petition. 4. Dr.K.P.Satheesan, the learned Senior Counsel for the petitioner, has strenuously contended that Rule 185(3) of the Rules WPC 36352/15 3 does not admit of any ambiguity. Having laid much emphasis on the ratio of the judgment in Jameela (supra) rendered by a learned Division Bench of this Court recently, the learned Senior Counsel would contend that filling up of the vacancies should be 1:1 basis, i.e. one promotee and one direct recruitee. He has also contended that the phraseology employed in Rule 185(3) of the Rules assumes importance: the vacancies rather than the posts have to be filled up by 1:1 ratio. 5. In elaboration of his submissions, the learned Senior Counsel has contended that the first vacancy was filled up by a promotee, the second vacancy covered by exhibit P1 notification was filled up by a direct rectruitee, i.e. by the candidate who secured the first position. Later, the third vacancy was filled up by a promotee. To that extent, according to the learned Senior Counsel, the ratio stood undisturbed. At any rate, it is his specific contention that the fourth vacancy arose owing to the retirement of an incumbent on his attaining the age of superannuation. As such, the first respondent WPC 36352/15 4 ought to have filled up the vacancy with a candidate from the subsisting rank list. Instead, it promoted the third respondent. 6. Drawing my attention to the ratio of Jameela (supra), the learned Senior Counsel would contend that the course of action adopted by the first respondent Bank is impermissible. In the end, the learned Senior Counsel has urged this Court to declare as illegal the promotion of the third respondent to the vacancy said to have been earmarked for the direct recruitee. He has also sought a consequential direction that the petitioner be advised for the vacancy in terms of Rule 185(3) of the Rules. 7. Per contra, Sri P.N.Mohanan, the learned counsel for the third respondent, has, to being with, contended that the petitioner has no locus. According to him, in terms of Rule 187 of the Rules, even in the stream of direct recruitment, there is a sub-category: recruitment of 1:1 basis from the stream of open category and from the employees of the affiliated member societies. In the present instance, in the first vacancy earmarked for direct recruitment a WPC 36352/15 5 candidate from the rank list of the open category has already been appointed. The next vacancy, contends the learned counsel, must be filled up with a candidate from the rank list that could have been prepared by the PSC involving the candidates of member societies. According to him, assuming for a while that the third respondent's promotion could not be sustained, the aggrieved person in that context could have been only a candidate who secured the rank from among the employees of the member societies. 8. The learned counsel has further contended that Exhibit P1 notification contained only one post. According to him, the vacancy arose after the rank list. In the meanwhile, the Rule suffered an amendment as regards the qualification. In that context, the learned counsel has specifically urged that there ought to be a fresh notification based on the amended qualifications, so that the candidates in the open market could compete for the post arisen. 9. Summing up his submissions, the learned counsel would contend that, looked either way, the vacancy that has arisen could WPC 36352/15 6 not be filled up by the petitioner and that the third respondent's promotion could not be objected to so long as no eligible candidate in terms of fresh recruitment to be undertaken by the Bank has been selected. 10. Sri Harikumar, the learned counsel for the first respondent Bank, has submitted that in the light of the amendment, the rank list does not survive. Absent any subsisting rank list, especially in the light of the amendment to the qualifications with effect from 26.11.2014 (Rule 186 (1) (i) (b)), the promotion of the third respondent is unexceptionable. 11. The learned Standing Counsel for the PSC has submitted that Exhibit P2 is the only rank list issued by the PSC. He has further submitted that, as regards the ratio to be followed in terms of Rule 185(3) of the Rules, the PSC has nothing to do with the controversy. In elaboration, he has submitted that, as and when the first respondent reports any vacancy, the PSC will undertake further recruitment process in view of the provisions that govern the field. WPC 36352/15 7 12. Heard the learned counsel for the parties on either side, apart from perusing the record. 13. Indeed, the learned Division Bench has elaborately dealt with most issues that arise out of interpreting Rule 185(3) of the Rules. Even the facts in both instances are more or less similar. It makes my task easier. 14. The learned Division Bench, among other things, has considered two contingencies: (i) Whether a vacancy that has arisen after the issuance of the rank list could be filled up with the candidates from the rank list? and (ii) Whether the amendment to any of the eligibility criteria after issuing the rank list, but during its currency, could affect the existing rank list? 15. In so far as the first contingency is concerned, the learned Division Bench has distinguished the ratio laid down by the Hon'ble Supreme Court in **N.T.Devin Katti v. Karnataka PSC**[1] and **Y.V.Rangaiah v. J.Sreenivasa Rao**[2] . Their Lordships have 1 (1990 3 SCC 157 2 (1983) 3 SCC 284 WPC 36352/15 8 eventually held that in those two judgments there was no issue concerning a subsisting rank-list. Once the appointments have been made to the notified vacancies from the candidates in the rank list, its utility has come to an end. The subsequent vacancies in terms of the ratio laid down by the Hon'ble Supreme Court should be filled through a fresh notification. The distinguishing factor, according to the learned Division Bench in Jameela (supra), is that although the vacancies were after the rank list and the very rank list was subsisting, the ratio of judgment referred to above might not have any bearing. 16. On the second contingency, initially a learned Single Judge in Jameela directed that the petitioner, who secured the rank, must be advised notwithstanding the amendment. The learned Division Bench has, however, set aside the said finding with the following observation: “The Full Bench ultimately held that notwithstanding the currency of the rank list prepared by the PSC in accordance with the recruitment rules in force prior to the introduction of WPC 36352/15 9 the Special Rules, 1999, the vacancies which arose subsequent to the amendment rules shall be filled up only in accordance with the Special Rules. Even if the rank list dated 23.09.2011 ought to have been utilised for subsequent vacancies which were required to be filled up by direct recruitment, after amendment of the Rules changing the qualifications for appointment, appointment on the vacancies subsequent to the amendment of the rules cannot be made on the basis of rank list dated 23.09.2011. The vacancy which is being held by the fifth respondent is a vacancy which arose subsequent to the amendment of the rules. Although it is true that even earlier vacancies which arose on the post of Dy.General Manager were required to be reported to the Commission for direct recruitment in the ratio of 1:1, i.e., promotee:direct recruitee, no challenge having been made earlier and the incumbent who occupied the said vacancies having retired, causing of fresh vacancy, petitioner's case as on date could have been considered only against the vacancy which was occupied by the fifth respondent who was promoted with effect from 01.12.2014. It is true that the vacancy on which the fifth respondent has been promoted ought to have been reported to the Commission to be filled up by direct recruitment and we affirm the direction issued by the learned Single Judge to the above effect. But we do not approve that part of the direction issued by the learned Single Judge by which the Commission was directed to advise the petitioner on the basis of the earlier rank list on the post which is held by the fifth respondent.” 17. In fact, the learned Division Bench has issued the above WPC 36352/15 10 direction following the ratio of a learned Full Bench of this Court in **Mohanan v. Director of Homeopathy**[3] . 18. Applying the same ratio, I am of the considered opinion that although the rank list was subsisting, the very qualification suffered an amendment. In that context, the vacancy that has arisen after the publication of the rank list in the face of the amended qualification needs to be notified afresh. In the manner stated in Jameela (supra), it is held that the promotion of the third respondent in the vacancy meant for direct recruitment cannot be sustained. Accordingly, it is set aside. The first respondent Bank shall fill up the vacancy through direct recruitment by reporting the vacancy to the PSC as expeditiously as possible, at any rate, within two weeks from the date of receipt of a copy of this judgment. 19. However, it shall be open for the first respondent to permit the third respondent to continue in the post of Deputy General Manager treating his promotion as temporary and stop-gap 3 2006(3) KLT 641 WPC 36352/15 11 till a directly recruited candidate from the Commission is available to hold the post. Needless to observe that this Court is confident that once the vacancy is reported, the PSC will take all expeditious steps needed for filling up the vacancies at the earliest. With the above observations, the writ petition is disposed of. Sd/-Dama Seshadri Naidu, Judge tkv true copy P.S.TO JUDGE