T.L Parthasarathi v Kollam District Co-operative Bank Ltd & Kerala Public Service Commission

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** # **THURSDAY ,THE 15TH DAY OF NOVEMBER 2018 / 24TH KARTHIKA, 1940** ## **WP(C).No. 3379 of 2017** ## **PETITIONER:** **T.L PARTHASARATHI** **SENIOR MANAGER/RECOVERY SUPERINTENDENT, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., HEAD OFFICE, KOLLAM - 691 001.** **BY ADVS. DR.K.P.SATHEESAN (SR.) SRI.ANOOP.V.NAIR SRI.K.SUDHINKUMAR SRI.P.MOHANDAS (ERNAKULAM) SRI.S.VIBHEESHANAN** ## **RESPONDENTS:** **1 THE KOLLAM DISTRICT CO-OPERATIVE BANK LTD REPRESENTED BY ITS GENERAL MANAGER, HEAD OFFICE, P.B.NO.130, CHINNAKKADA, KOLLAM - 691 001.** **2 KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, P.S.C OFFICE, PATTOM, THIRUVANANTHAPURAM - 695 004.** **BY ADVS. SRI.T.R.HARIKUMAR, SC, KOLLAM DISTRICT COOPERATIVE BANK LTD. SRI.P.C.SASIDHARAN, SC, KPSC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 **WP(C).No. 3379 of 2017** ## **J U D G M E N T** The petitioner is stated to be working as a Senior Manager in Kollam District Co-operative Bank. He joined the service of the bank as a Clerk on 04.04.1991, and consequent to promotions in service, is now continuing as a Senior Manager. The next promotion post for the petitioner is the post of Deputy General Manager. As per Rule 185 of the Co-operative Societies Rules, the method of appointment to the post of Deputy General Manager is by promotion and direct recruitment in the ratio of 1:1. The direct recruitments are to be made through the Kerala Public Service Commission (PSC), the 2[nd] respondent herein. It is not in dispute that the PSC invited applications for appointment to the post of Deputy General Manager in the bank through Ext.P1 Notification dated 03.12.2009. In the selection process that followed, the petitioner was selected and ranked as No.3 in Ext.P2 rank list published by the PSC on 28.09.2011. The rank list is stated to have a validity of 4 ½ years from the date of its publication. To the first vacancy that arose in the post of Deputy General Manager, a 3 **WP(C).No. 3379 of 2017** promotee was appointed, and to the second vacancy a direct recruit was appointed. The third vacancy that arose had to be filled up by promotion, and accordingly, one Smt.B.S.Radhadevi was promoted as Deputy General Manager on 30.12.2011. The said Smt.Radhadevi however retired, and in the resultant vacancy, the 1[st] respondent bank promoted another candidate as Deputy General Manager. Contending that the vacancy that arose on account of the retirement of Smt.Radhadevi ought to have been filled up by direct recruitment and not by promotion, the petitioner approached this Court through W.P(C).No.36352 of 2015. By Ext.P4 judgment, this Court allowed the writ petition and set aside the promotion effected to the fourth vacancy that had arisen in the post of Deputy General Manager. The 1[st] respondent bank was directed to fill up the vacancy through direct recruitment by reporting the vacancy to the PSC within two weeks from the date of receipt of the copy of the judgment, taking note of the impending expiry of the validity of the rank list published by the PSC. While under normal circumstances, the petitioner would have been appointed pursuant to the directions in Ext.P4 judgment, the said judgment was carried in appeal before a 4 **WP(C).No. 3379 of 2017** Division Bench by the 1[st] respondent bank. It is relevant to note that in the writ appeal there was no stay of operation of Ext.P4 judgment, and eventually the writ appeal itself was dismissed by Ext.P5 judgment dated 03.10.2016 upholding Ext.P4 judgment. When despite the dismissal of the writ appeal, the 1[st] respondent did not report the 4[th] vacancy to the PSC for the purposes of advising the appointment of the petitioner, the petitioner approached this Court through Contempt Case (C).No.1275 of 2016, which was closed by Ext.P6 judgment where the submission of the 1[st] respondent bank that they had already reported the vacancy of Deputy General Manager to the PSC was recorded. It would appear that notwithstanding the said reporting of the vacancy to the PSC, the petitioner continued to be denied his appointment to the post of Deputy General Manager. It is under these circumstances that the petitioner has chosen to approach this Court seeking a direction to the respondents to appoint the petitioner as Deputy General Manager notwithstanding the expiry of the rank list on 28.03.2016. 2. A statement has been filed on behalf of the 1[st] respondent, 5 **WP(C).No. 3379 of 2017** wherein the stand taken is that the respondent bank has in compliance with Ext.P4 judgment reported the vacancy of Deputy General Manager to the PSC on 20.10.2016, and hence, it has discharged its obligations vis-a-vis the appointment of the petitioner. In a counter affidavit filed on behalf of the 2[nd] respondent, the stand taken is that inasmuch as the vacancy to the post of Deputy General Manager was reported only on 20.10.2016 and the rank list in question expired on 29.03.2016, the PSC cannot now advise the petitioner for appointment. 3. I have heard the learned counsel appearing for the petitioner and also the learned Standing counsel for the respondents. 4. On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I find that, the obligation of the 1[st] respondent to take necessary steps to ensure the appointment of the petitioner as a Deputy General Manager against a vacancy that fell for appointment by a direct recruit, arose as early as on 15.03.2016 consequent to Ext.P4 judgment of 6 **WP(C).No. 3379 of 2017** this Court. While it is a fact that, immediately thereafter, the 1[st] respondent did not take steps to request the PSC to advise the petitioner to the vacancy in question, in the writ appeal that was preferred by the 1[st] respondent bank against Ext.P4 judgment, there was no interim order staying the operation of Ext.P4 judgment. It is seen that the writ appeal itself was dismissed on 03.10.2016 by Ext.P5 judgment. The inaction on the part of the 1[st] respondent bank to take appropriate steps to ensure the appointment of the petitioner as Deputy General Manager based on his position in the rank list cannot be justified, more so, when there was no stay against the operation of Ext.P4 judgment during the pendency of the writ appeal. Looking it at from the point of view of the petitioner, it was on account of no fault of the petitioner that he had to await an appointment till the expiry of the validity of the rank list and thereafter. In my view, the technical stand taken by the respondents, that on account of their inaction, the petitioner should suffer the consequences of a delayed intimation by the 1[st] respondent bank to the 2[nd] respondent PSC for advising the petitioner to the post of Deputy General Manager, cannot be legally sustained. Resultantly, and taking cue from the 7 **WP(C).No. 3379 of 2017** judgment of the Full Bench of this Court in **State of Kerala v. Sreekantan [1993 (1)KLT 107],** I deem it appropriate to direct the 1[st] respondent bank to appoint the petitioner herein as a Deputy General Manager, against the fourth vacancy that was earmarked for a direct recruit, based on his position in the rank list dated 26.09.2011. The 1[st] respondent shall pass orders appointing the petitioner as such without waiting for any advise from the 2[nd] respondent PSC, within a period of three weeks from the date of receipt of a copy of this judgment. The petitioner shall also be entitled to all consequential benefits flowing from the said appointment. Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** mns 8 **WP(C).No. 3379 of 2017** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1. TRUE COPY OF THE NOTIFICATION PUBLISHED IN MATHRUBHOOMI DAILY DATED 03.12.2009. EXHIBIT P2. TRUE COPY OF THE RANKED LIST PUBLISHED BY P.S.C. DATED 28.09.2011. EXHIBIT P3. TRUE COPY OF THE PROCEEDINGS ISSUED BY THE FIRST RESPONDENT FOR AND ON BEHALF OF THE 2ND RESPONDENT DATED 20.10.2015. EXHIBIT P4. TRUE COPY OF THE JUDGMENT DATED 15.03.2016 IN W.P.(C) NO. 36352/2015. EXHIBIT P5. TRUE COPY OF THE JUDGMENT DATED 03.10.2016 IN W.A.NO.1295/2016. EXHIBIT P6. TRUE COPY OF THE JUDGMENT DATED 07.11.2016 IN CONT. CASE (C) NO.1275/2016 IN W.P.(C) NO.36352/2015. EXHIBIT P7. TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 31.10.2016.** **RESPONDENTS EXHIBITS:NIL**