Vijyakumaran Nair v. State of Kerala & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU MONDAY, THE 25TH DAY OF AUGUST 2014/3RD BHADRA, 1936 WA.No. 631 of 2014 () IN WP(C).3638/2014 ------------------------------------------ AGAINST THE ORDER/JUDGMENT IN WP(C) 3638/2014 of HIGH COURT OF KERALA DATED 27-03-2014 ## APPELLANT/6TH RESPONDENT: ----------------------------------- VIJYAKUMARAN NAIR.V, AGED 57 YEARS, S/O.VELAYUDHAN PILLAI, 'NISHA BHAVAN', AMARAVILA. P.O -695 122, THIRUVANANTHAPURAM DISTRICT. BY ADVS.SRI.M.SASINDRAN SRI.V.VENUGOPAL RESPONDENTS/PETITIONER AND RESPONDENTS 1 TO 5: ---------------------------------------------------------------- 1. ROHITH PANICKER, S/O.K.S.PANICKER, ROHIT VILLA, GOVINDAMUTTOM.P.O KAYAMKULAM, PRESENTLY RESIDING AT 6-D, SFS FAIRMONT M.P.APPAN ROAD, VAZHUTHACAUD THIRUVANANTHAPURAM-695 014. 2. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF CO-OPERATION, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 3. REGISTRAR OF CO-OPERATIVE SOCIETIES, STATUE, THIRUVANANTHAPURAM-695 001. 4. THE THIRUVANANTHAPURAM DISTRICT CO-OPERATIVE BANK LTD, REPRESENTED BY ITS GENERAL MANAGER, EAST FORT.P.O THIRUVANANTHAPURAM-695 023. 5. THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM THIRUVANANTHAPURAM-695 004. 6. DISTRICT OFFICER, DISTRICT OF THE KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM-695 004. WA.No. 631 of 2014 : 2 : ## **Addl.7 IMPLEADED:** 7. SIVAKUMAR.R. 'PAVITHRAM', TRWA 248, THALIYAL WEST OF MAHADEVA TEMPLE, THIRUVANANTHAPURAM -695 002. (ADDL. R7 IS IMPLEADED AS PER ORDER DATED 13/06/2014 IN IA 517/2014.) R4 BY ADV. SRI.T.R.HARIKUMAR, SC, THIRUVANANTHAPURAM DISTRICT CO- OPERATIVE BANK R7 BY ADV. SRI.P.RAMAKRISHNAN R BY SRI.C.S.AJITH PRAKASH R BY SRI. VIJU THOMAS, SR. GOVERNMENT PLEADER R BY SRI.P.C.SASIDHARAN, SC, KPSC R BY SRI.T.R.HARIKUMAR, SC, THIRUVANANTHAPURAM DIST.CO-OPERATIVE BANK THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25-08-2014, ALONG WITH W.A. NO. 821/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA.No. 631 of 2014 : 3 : ## ANTONY DOMINIC & DAMA SESHADRI NAIDU, JJ. -----------------------------------W.A. Nos. 631 & 821 of 2014 -----------------------------------Dated this the 25th day of August, 2014. ## JUDGMENT ## Antony Dominic,J. Both these writ appeals are filed against the judgment of the learned single Judge in W.P.(C) No. 3638 of 2014. While W.A. No. 631 of 2014 is filed by the 6[th] respondent, W.A. No. 821 of 2014 is filed by a third party after obtaining leave from this Court. For convenience, we shall first decide W.A. No. 631 of 2014. 2. Briefly stated the facts of the case are that certain vacancies of Deputy General Managers in various District Co-Operative Banks in the State were notified to the PSC in the year 2009. These vacancies are filled up in the manner as provided in Section 80 and Rules 185, 186 and 187 of the Kerala Co-Operative Societies Act and Rules. As per Rule 185(3), substantive vacancies in the post of Deputy General Managers shall be filled up by promotion and direct recruitment in the ratio of 1:1. It was accordingly that the PSC issued Ext.P1 notification inviting application from open market to the vacancies mentioned therein. In pursuance to Ext.P1, Ext.P3 rank list was published by the PSC which is valid till 27.09.2014. W.A. Nos. 631 & 821 of 2014 2 3. The PSC also simultaneously published Ext.P5 notification inviting applications from employees of the member societies/Primary Societies in view of the provisions contained in Rule 187. In that notification, the PSC also specified that if there is shortage of candidates in the ranked list finalised pursuant to Ext.P5, the vacancies will be filled up from the ranked list of General Open Market candidates and that such passed over vacancies will not be compensated later. There was no response to Ext.P5 and therefore, the PSC published Ext.P6 notification dated 28.09.2011 notifying that no qualified candidate is available in response to Ext.P5. 4. It is stated that a vacancy was to arise on 31.03.2014 and that the said vacancy should be filled up from Ext.P3 ranked list mentioned above and it was with that claim W.P.(C) No. 3638 of 2014 was filed by the first respondent. By the judgment under appeal, the learned single Judge held that the vacancy in question has to be conceded to the direct recruitment quota and has to be filled up from the ranked list and the writ petition was accordingly allowed. It is challenging the judgment of the learned single Judge that the additional 6[th] respondent in the writ petition, an aspirant W.A. Nos. 631 & 821 of 2014 3 for promotion, filed W.A. No. 631 of 2014. 5. The appellant in W.A. No. 821 of 2014 is the Managing Director of Maranalloor Ksheera Vyvasaya Sahakarana Sangam Ltd., Koovalassery, Thiruvananthapuram. He joined service in the year 2011. According to him, as per Rule 187 of the Kerala CoOperative Societies Rules, notwithstanding anything contained in Rule 186, 50% of the vacancies are to be reserved for employees of the member societies having a minimum regular service of three years in any of the cadre and having the required qualification for the post. It is contended that even if in pursuance to Ext.P5, no candidate was available, the vacancy could not have been diverted to direct recruitment quota and it should either be kept vacant or even if filled up, the same should be on temporary basis. According to him, the said vacancy should be given to an employee eligible under Rule 187 as and when such eligible candidate is available. It is also stated that he will be completing three years service prescribed in Rule 187 on 22.11.2014 and therefore, he is eligible to be considered for the post on his completing the prescribed three years service. It is with that contention he has filed W.A. No. 821 of 2014. W.A. Nos. 631 & 821 of 2014 4 6. The counsel for the appellant in W.A. No. 631 of 2014 contended that the ratio of 1:1 should be applied based on the cadre strength and not on the basis of the vacancies. According to him, the expression 'substantive vacancies' specified in Rule 185(3) should be understood as 'substantive posts' which is related to the cadre strength, which is 3 in this particular case. He, therefore, submits that out of the three posts, since the first and the 2[nd] were given promotion and direct recruitment respectively, the 3[rd] post should be filled up by promotion. To substantiate his contention, the learned counsel placed reliance on the principles laid down by the Apex Court in Prakash v. Kurien [1999 (2) KLT 710 (SC)] and also pleaded that a meaningful interpretation should be given to Rule 185(3) of the Rules. 7. Rule 185(3) provides that substantive vacancies in the post enumerated therein including Deputy General Manager shall be filled up by promotion and direct recruitment in the ratio of 1:1. A reading of this provision shows that the legislature has consciously used the expression 'substantive vacancies' and not 'substantive posts' or 'cadre strength'. When the language used by the legislature is clear and unambiguous, the court is bound to give full W.A. Nos. 631 & 821 of 2014 5 effect to the language used by the legislature by literally interpreting the provisions of the Rule. If the Rule is to be so interpreted, in our view, it does not warrant any interpretation as canvassed before us. 8. Insofar as the judgment of the Apex Court in Vijayan v. State of Kerala (1999(2) KLT 980) is concerned, in that case the Apex Court was dealing with Rules 2 and 5 of Part II KS & SSR. Rule 2 provides that if any provision in the general rules contained in the part is repugnant to a provision in the Special Rules applicable to any particular service contained in Part III, the latter shall, in respect of that service, prevail over the provisions in the general rules in Part II. Rule 5 deals with the method of recruitment and Note 3 provides that wherever a ratio or percentage is fixed for different methods of recruitment/appointment to a post the number of vacancies to be filled up by candidates from each method shall be decided by applying the fixed ratio or percentage to the cadre strength of the post to which the recruitment/transfer is made and not to the vacancies existing at that time. 9. This provision of the rule was interpreted by the Apex Court in Prakash v. Kurien [1999 (2) KLT 710 (SC)] in the context of W.A. Nos. 631 & 821 of 2014 6 Kerala Agricultural Income Tax and Sales Tax Services (Rules) which provides that 20% of the successive substantive vacancies of Agricultural Income Tax Officers and others shall be filled or reserved to be filled by direct recruitment. This Rule was interpreted by the Apex Court thus: “14. From the aforesaid discussion, it is clear that if the intention of the rule making authority was to establish a rule of universal application to all the services in the State of Kerala for which special rules are made, then special rules will give away to the general rules enacted for that purpose. This has to be found out from the language used in the rules which may be express or by implication. If the language is clear and unqualified, subsequent general rule would prevail despite repugnancy. If the intention of the rule making authority is to sweep away all the special rules and to establish a uniform pattern for computation of the ratio or percentage of direct recruits and by transfer, in such case, the special rules will give way. On the basis of the aforesaid settled principles, let us interpret R. 5 as well as Note (3) and the method of recruitment prescribed under the special Rules. R. 5 quoted above provides method of recruitment to any service, class or category where the method of recruitment is neither solely by direct recruitment nor by transfer but is both by direct recruitment and by transfer. It is made specifically applicable to the ‘special rules’. Clause (a) provides that the proportion or order will be applicable only to substantive vacancies in permanent cadre; clause (b) provides that direct recruitment shall be only against substantive vacancy in permanent cadre; and recruitment to all other vacancies shall be made by transfer. Note (1) and (2) provide that all permanent vacancies and temporary vacancies except those of short duration shall be treated as substantive vacancies. Note (3) specifically provides that ‘whenever’ a ratio or percentage is fixed (in special Rules) for different methods of recruitment to a post, the number of vacancies to be filled up by candidates from each method is to be decided by applying a fixed ratio or percentage to the cadre strength of the post to which the recruitment is made and ‘not to the vacancies existing at that time.’ Therefore, the entire R. W.A. Nos. 631 & 821 of 2014 7 5 deals with the special rules which provide for filling up of the vacancies to any service, class or category by direct recruitment and by transfer. The language of Note (3) is crystal clear and is for removal of any ambiguity by using positive and negative terms. It applies to all special rules whenever a ratio or percentage is prescribed in the Rules. It also emphathetically states that it has to be computed on the cadre strength of the posts to which the recruitment is to be made and not on the basis of the vacancies existing at that time.” 10. A reading of paragraph 14 would indicate that it has been held that in the light of Note 3, the expression 'substantive vacancies' should refer to the cadre strength of the post. However, the question is whether these principles are of any application to this case and according to us, in view of Section 80(3AA) of the Kerala Co-Operative Societies Act, the principles laid down in the aforesaid judgment of the Apex Court is inapplicable in the case of the employees governed by the provisions of the Kerala CoOperative Societies Act and Rules. Secondly, the judgment of the Apex Court in Prakas's case (supra) was explained in a later judgment of the Apex Court itself in Maya Mathew v. State of Kerala [2010 (4) SCC 498] where the principle has been explained thus: “ 16. In Prasad Kurien, while considering whether the Special Rules - Kerala Excise and Prohibition Subordinate Service Rules, 1974, vis-a-vis note (3) to Rule 5 of the General Rules, this Court followed the dictum in S. Prakash. 17. These decisions reiterate the position that if the intention of the rule making authority is to make a later general W.A. Nos. 631 & 821 of 2014 8 rule to apply to all services in the State, for which different earlier special rules exist, then the existing special rules will give way to such later General Rule. That is, where the general rule is made subsequent to the special rule and the language of the general rule signified that it was intended to apply to all services and prevail over any prior special rules, the intention of the rule making authority should be given effect by applying the subsequent general rule instead of the earlier special rule. 18. This court held that the language of Note (3) to Rule 5 of General Rules showed that it was intended to prevail over existing Special Rules which indicated a contrary position. What is significant is that the two decisions considered the Special Rules that were earlier in point of time to the General Rules as amended by the 1992 Amendment rules which introduced Note (3) to Rule 5 of the General Rules. 19. This Court held, on reading the General Rules in conjunction with the Special Rules, that Note (3) to Rule 5 of General Rules will prevail over the corresponding provisions in the Special Rules showing a different intention, when deciding whether the ratio of each feeder category should be determined with reference to the cadre strength or existing vacancies. 20. What logically follows from the principle enunciated in the two decisions is that if any Special Rule is subsequent to the General Rule, then the question of examining whether the prior general rule will prevail over a latter special rule will not arise at all having regard to the categorical provision contained in Rule 2 of the General Rules. The principle laid down in those decisions will not apply where the Special Rule is made subsequent to the General Rule.” 11. Rule 185 of the Kerala Co-Operative Societies Rules was substituted by SRO 369/99. This, therefore, shows that Rule 185 was introduced subsequent to the general rule contained in the KS& SSR and therefore even if it is assumed that the general rules of KS & SSR are to be made applicable to the employees in the CoOperative sector, the principles laid down by the Apex Court in W.A. Nos. 631 & 821 of 2014 9 Prasad's case cannot have any application to the facts of this case. If that be so, the expression 'substantive vacancies' occurring in Rule 185(3) cannot be understood as referring to anything other than substantive vacancies, and the contention raised by the counsel for the appellant in W.A. No. 631 of 2014 cannot be accepted. 12. Insofar as W.A. No. 821 of 2014 is concerned, the objection raised by the counsel for the appellant is primarily against the prescriptions in Ext.P5 mentioned above that in the event of insufficiency of the candidates, the vacancies will be filled up from the ranked list finalised pursuant to Ext.P1 and that the short fall would be compensated later. First of all, nobody has raised any challenge against Ext.P5. Therefore, in the absence of any challenge to Ext.P5, the appellant cannot be permitted to raise any objection against the aforesaid prescriptions in Ext.P5. Secondly, dealing with the provisions of Rule 187 of the Kerala Co-Operative Societies Rules, this Court held thus in Vijayan v. State of Kerala (1996(2) KLT 980): “A quota system may be implemented in various forms. It can be applied vacancywise, cadrewise, periodicwise etc. In this case, it is vacancywise. Therefore, unless the rule specifically lays down that the vacancies must be filled up alternatively between a general candidate W.A. Nos. 631 & 821 of 2014 10 and a society quota candidate, it is not possible to lay down that R. 187 mandates such as a methodology. When 20 persons were selected and appointed at a given point of time, it is enough if 10 society quota candidacies are appointed. The society quota candidates cannot insist that they must be placed in the list either as 1, 3, 5 or 2, 4, 6 etc. No such interpretation is possible by a plain regarding of R. 187. It is enough that the Bank maintains 50% society quota at a given selection. No other rights or privileges can be claimed by the society quota candidates.” 13. Thus, the interpretation of the Rule also entitles the authorities to proceed with the recruitment to the post by filling up the same from other sources in a situation where eligible candidates do not respond to the notification issued by the PSC. 14. We have also considerable doubt regarding the locus standi of the appellant in W.A. No. 821 of 2014. As we have already stated the benefit of 50% earmarked in Rule 187 is available only to the qualified employees who have rendered 3 years of service in the associate banks. The appellant will be completing that three years period only on 22.11.2014. Therefore, even today, he is a candidate who is ineligible for the post. However, this objection regarding his locus standi was sought to be resisted by the counsel by placing reliance on the judgment of the Apex Court in Prem Singh & others v. Haryana State Electricity Board & Others [ JT 1996 (5) S.C 219]. That was a case where the vacancies in excess of the W.A. Nos. 631 & 821 of 2014 11 notified number were filled up from a panel. One of the writ petitioner was a candidate who was not eligible as on the last date of receiving the applications. Dealing with the objection that he had no locus standi, the Apex Court held thus: “12. In our opinion, there is no substance in the objection raised with respect to locus standi of the original writ petitioners. The candidates could not have anticipated when they appeared for the interview that the Selection Committee would recommend candidates and the Board would make appointments far in excess of the advertised posts. The petitioner who was not eligible had a just grievance that due to appointments of candidates in excess of the posts advertised he was deprived of the right of consideration for appointment against the posts which would have become vacant after he acquired eligibility.” **==> picture [398 x 13] intentionally omitted <==** recognizes that person like the appellants also will have the locus standi to file a writ petition challenging the filling up of the post irrespective of whether he is eligible for the post or not by that date. In our view, the ratio of the judgment does not support the contention raised. We have already indicated that the Apex Court was dealing with a case where the vacancies in excess of the number notified were filled up from a panel and the objection against the locus standi of the appellant was that he was ineligible as on the last date of receipt of application. It is that contention which is answered by the Apex Court. This, therefore, means that if the vacancy was not filled up from the panel, since the appellant W.A. Nos. 631 & 821 of 2014 12 had attained eligibility subsequent to the last of date of receipt of application, he would have been eligible to apply for the post, if the applications were notified afresh. It was therefore that the Apex Court upheld his locus standi. Since the case of the appellant in W.A. No. 821 of 2014 is totally incomparable to the case dealt with by the Apex Court, we are unable to draw any support from the judgment relied on. On the other hand, the learned counsel for the contesting respondents relied on the principles laid down by the Apex Court in Utkal University v. Dr. Nrusingha Charan Sarangi [1999(2) SCC 193] which supports his plea that an ineligible candidate cannot maintain a writ petition. Therefore, for want of locus standi, the contention raised in W.A. No. 821 of 2014 also lacks merits. For all these reasons, we do not find any substance in the appeals and the appeals are accordingly dismissed. sd/- ANTONY DOMINIC, JUDGE. sd/- DAMA SESHADRI NAIDU, JUDGE. /True Copy/ P.A. to Judge. rv