W.P.(C) No.28910 of 2016 (K) – C.V. Linimol and Sajini C.K. v. Malappuram Co-operative Spinning Mills and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** ## **MONDAY, THE 5TH DAY OF JUNE 2017/15TH JYAISHTA, 1939** ## **WP(C).No. 28910 of 2016 (K)** **----------------------------** **PETITIONER(S):** - **-----------------------** **1. C.V. LINIMOL, W/O. SUNIL KUMAR, AGED 30 YEARS, MUTHIRAPARAMBIL HOUSE, PATTERKADAVU P.O., MALAPPURAM.** **2. SAJINI C.K., CHENGANASSERY HOUSE, KUZHIKKATTUSSERY P.O., THRISSUR.** **BY ADVS.SRI.P.V.BABY, SRI.A.N.SANTHOSH.** **RESPONDENT(S):** - **-------------------------** **1. MALAPPURAM CO-OPERATIVE SPINNING MILLS, P.B. NO.206, MALAPPURAM-676 519, REPRESENTED BY ITS MANAGING DIRECTOR.** **2. DIRECTOR OF HANDLOOMS AND TEXTILES, VIKAS BHAVAN, THIRUVANANTHAPURAM.** **3. PRINCIPAL SECRETARY TO GOVERNMENT, INDUSTRIES (C) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** - **ADDL. R4 IMPLEADED** **4. JARIYATH. K., JESSIM MANZIL, MAKKANNOOR, KUNNIKODE POST, KOTTARAKKARAM, KOLLAM DISTRICT.** - **ADDL. R4 IS IMPLEADED AS PER ORDER DATED 29/05/2017 IN I.A. NO.454/2017.** - **R1 BY SRI.K.ANAND, SENIOR SC, ADV. SMT.LATHA ANAND.** - **R2 & R3 BY GOVT. PLEADER SMT.MABLE C.KURIAN. ADDL. R4 BY ADV. SRI.JOSHY THANNICKAMATTAM.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/05/2017, THE COURT ON 05/06/2017 DELIVERED THE FOLLOWING:** rs. **WP(C).No. 28910 of 2016 (K)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** - **EXHIBIT P1 A COPY OF THE NOTIFICATION DATED 14.05.2014 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P2 A COPY OF THE RANK LIST PUBLISHED BY THE 1ST RESPONDENT ON 31.12.2014.** - **EXHIBIT P3 A COPY OF THE RELINQUISHMENT LETTER OF THE 3RD RANK HOLDER ON 16.08.2016 ADDRESSED TO THE 1ST RESPONDENT.** - **EXHIBIT P4 A COPY OF THE STAFF PATTERN OF ASSISTANTS PUBLISHED AS ANNEXURE III ALONG WITH MEMORANDUM OF SETTLEMENT.** - **EXHIBIT P5 A COPY OF THE JUDGMENT IN OP NO.1383/2012 DATED 30.11.2013 OF THE FAMILY COURT, IRINJALAKUDA.** - **EXHIBIT P6 A COPY OF THE REPRESENTATION DATED NIL SUBMITTED BY THE 1ST PETITIONER TO THE 1ST RESPONDENT.** - **EXHIBIT P7 A COPY OF THE REPRESENTATION DATED 19.08.2016 SUBMITTED BY THE 2ND PETITIONER TO THE 1ST RESPONDENT.** - **EXHIBIT P8 A COPY OF THE REPRESENTATION DATED 07.05.2015 SUBMITTED BY THE STAFF ASSOCIATION TO THE 1ST RESPONDENT.** - **EXHIBIT P9 A COPY OF THE REPRESENTATION DATED NIL SENT BY THE 1ST PETITIONER TO THE 2ND RESPONDENT UNDER REGISTERED POST WITH A/D.** - **EXHIBIT P10 A COPY OF THE REPRESENTATION DATED NIL SENT BY THE 1ST PETITIONER TO THE 3RD RESPONDENT UNDER REGISTERED POST WITH A/D.** - **EXHIBIT P11 A COPY OF THE COMMUNICATION DATED 30/09/2016 ALONG WITH THE PANEL LIST OF CANDIDATE FORWARDED BY THE SUPERVISORY DEVELOPMENTS CENTRE KALAMASSERY TO THE 1ST RESPONDENT.** - **EXHIBIT P12 A COPY OF THE OBJECTION DATED 03/10/2016 SUBMITTED BY MALAPPURAM SPINNING MILL EMPLOYEES ORGANISATION TO THE 1ST RESPONDENT.** - **EXHIBIT P13 COPY OF THE COMMUNICATION DATED 12/10/2016 ISSUED BY THE 1ST RESPONDENT TO THE ACCOUNTS DEPARTMENT.** - **EXHIBIT P14 COPY OF THE APPOINTMENT ORDER DATED 04/11/2016 ISSUED BY THE KSRTC TO SADIQUE ALI.** - **EXHIBIT P15 COPY OF THE REQUEST FOR RELIVE DATED 20/09/2016 BY SADIQUE ALI TO THE 1ST RESPONDENT.** **....2/-** **WP(C).No. 28910 of 2016 (K)** **EXHIBIT P16 COPY OF THE REQUEST FOR RELIVE DATED 24/11/2016 BY SADIQUE ALIE TO THE 1ST RESPONDENT.** **EXHIBIT P17 COPY OF THE QUESTION AND ANSWERS IN THE ASSEMBLY ISSUED BY THE SECTION OFFICER OR THE ASSEMBLY DATED 08/11/2016.** **EXHIBIT P18 COPY OF THE OBJECTION DATED 03/10/2016 REGARDING THE BACK DOOR APPOINTMENTS SUBMITTED BY MALAPPURAM SPINNING MILL EMPLOYEES ORGANISATION.** **EXHIBIT P19 COPY OF THE GMAIL ID COMMUNICATION DATED 04/04/2017.** **EXHIBIT P20 COPY OF THE DECISIONS OF THE COMMITTEE OF THE 1ST RESPONDENT DATED 10/05/2017.** **EXHIBIT P21 COPY OF THE COMMUNICATION DATED 09/05/2017 ISSUED BY THE SUPERVISORY DEVELOPMENT CENTRE, DEPARTMENT OF TECHNICAL EDUCATION, KALAMASSERY TO THE 1ST RESPONDENT ALONG WITH PANEL LIST OF DIPLOMA HOLDERS.** **EXHIBIT P22 COPY OF THE APPLICATION INVITING TRAINEES DATED 10/05/2017 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P23 COPY OF THE NOTICE DATED 11/05/2017 ISSUED BY THE 1ST RESPONDENT.** ## **RESPONDENT'S EXHIBITS:-** ## **EXT.R1A PROFIT AND LOSS ACCOUNT FOR THE YEAR 2015-2016.** ## **//TRUE COPY//** ## **P.S. TO JUDGE** rs. **CR** ## **SHAJI P. CHALY, J.** -------------------------------------------------- **W.P.(C) No.28910 of 2016 ----------------------------------------------Dated this the 5[th] day of June, 2017** ## **JUDGMENT** This writ petition is filed by the petitioners seeking issuance of a writ of mandamus directing the 1[st] respondent to appoint the petitioners to the post of Office Assistants before the expiry of Ext.P2 rank list, and other consequential reliefs. Necessary facts for the disposal of the writ petition are as follows: 2. Petitioners are rank Nos.4 and 5 to the post of Office Assistants in the 1[st] respondent Co-operative Spinning Mills. The 1[st] and 2[nd] rank holders are already appointed. The 3[rd] rank holder is prepared to relinquish her right since she got another employment. As per Ext.P3 staff pattern, the strength of Office Assistant is 15. Out of the total strength, eight retired and one resigned and the remaining Office Assistants are six in number. Four new Office Assistants, including the 1[st] and 2[nd] rank holders already appointed, increased the total strength to 10, and therefore, five vacancies are existing. The period of rank list expires by 30.12.2016. Therefore, unless 2 **W.P.(C) No.28910 of 2016** the petitioners are appointed before the expiry of the ranked list, petitioners will be prejudiced seriously. It is also submitted that, even though various representations were submitted to the respondents, the same did not yield any positive results. These are the circumstances apparently persuaded the petitioners to approach this Court by filing this writ petition. 3. A counter affidavit is filed by the 1[st] respondent basically denying the allegations and claims and demands raised by the petitioners. Among other contentions, it is stated that due to acute financial crisis, 1[st] respondent was not in a position to appoint anybody to the post of Office Assistant. The financial condition of the 1[st] respondent is so weak that it is unable to make statutory payments on time. However, due to retirement of persons from office staff, the 1[st] respondent was forced to appoint Office Assistants, and accordingly the first two rank holders, were given appointment. Out of the two persons appointed, one person is for preparation of wages, ESI, PF etc. and the other person is engaged in Sales and Accounts. A true copy of the profit and loss account of the 1[st] respondent for the year 2015-16 is produced as Ext.R1(a). **W.P.(C) No.28910 of 2016** 3 Based on the same, it is submitted that as per the balance sheet, the gross loss of the 1[st] respondent for the financial year 2015-16 is above Rs.9 crores, and at present the 1[st] respondent has statutory dues to EPF, ESI and Welfare Board, amounting to more than Rs.1 crore. That apart, an amount of Rs.1.6 Crores, is outstanding towards electricity dues. 4. It is further submitted that the 3[rd] rank holder in the list has not made any request in writing to the 1[st] respondent, relinquishing her claim for appointment. The other contentions raised in the writ petition attributing allegations against the respondents are also denied. Therefore, the 1[st] respondent seeks dismissal of the writ petition. 5. The 3[rd] rank holder was impleaded as additional 4[th] respondent as per an application filed by the petitioners, who has filed a counter affidavit, primarily stating that since she has obtained selection in the Kerala Government Health Department, she has relinquished her claim for appointment as per Ext.P3 and she was relieved by the 1[st] respondent and joined as Attendant Grade-II in the Health Department and presently working in the Women and Children's Hospital at Alappuzha. 4 **W.P.(C) No.28910 of 2016** 6. Subsequent to the filing of the writ petition, the petitioners have produced various documents to canvass the proposition that 1[st] respondent has invited applications to various posts, predominantly with the intention of controverting the contentions raised in the counter affidavit of the 1[st] respondent that it has no financial flexibility in order to make any appointments, evident from Exts.P19 to P23. 7. Heard learned counsel for the petitioners, learned Standing Counsel for the 1[st] respondent and the learned Government Pleader. Perused the documents on record and the pleadings put forth by the respective parties. 8. The question to be considered is whether the petitioners are entitled to compel for appointment to the 1[st] respondent establishment consequent to the expiry of the ranked list on 30.12.2016, and overlooking its financial capacity. Apparently, Ext.P2 ranked list is published and the petitioners are rank Nos.4 and 5. The rank list is dated 30.12.2014, which has a validity period of two years from the said date. Therefore, one thing is clear, the rank list has expired. True, petitioners have filed this writ petition on 30.08.2016, i.e. four months prior to the expiry of the rank **W.P.(C) No.28910 of 2016** 5 list. So also, in I.A.No.15935 of 2016, an interim stay was granted by this Court on 26.10.2016, which is still in force. Therefore, it is the contention of the learned counsel for the petitioners that petitioners are entitled to get appointment in the 1[st] respondent establishment, since sufficient number of vacancies are available to accommodate the petitioners. According to the learned counsel, since the writ petition was pending when the ranked list has expired, its expiry is not an adverse consequence disabling the 1[st] respondent from appointing the petitioners from the list, especially due to the fact that the 3[rd] respondent has relinquished her right, evident from the affidavit filed by the 4[th] respondent before this Court, as discussed above. It is also contended by the learned counsel that the documents produced before this Court will clearly establish that the 1[st] respondent has sufficient financial flexibility and capacity to accommodate the petitioners also since various notifications were issued by the 1[st] respondent inviting applications to various posts, and offering better terms of employment, evident from Exts.P19 to P23. Therefore, it is submitted that petitioners are entitled to succeed in this writ petition. 6 **W.P.(C) No.28910 of 2016** 9. _Per contra_ , learned Standing Counsel appearing for the 1[st] respondent submitted that, since the list has expired and the vacancies are not directed to be reported, petitioners are not entitled to claim any right on the basis of Ext.P3 rank list. That apart, it is contended, evident from Ext.R1(a) profit and loss account for the year ended 31.12.2016, it is clear that the establishment is running at a huge loss and various statutory dues are outstanding to be paid to the respective statutory authorities. Therefore, the 1[st] respondent is not having sufficient financial capacity to accommodate the petitioners. In such constrained circumstances only, temporary appointments are made to tide over the financial situation and making every endeavour to run the unit so as to ensure employment to the existing employees. 10. It is also contended, petitioners cannot compel the establishment to appoint them. In that regard, learned counsel has also invited my attention to the judgments of the apex court in ' _**Shankarsan Dash v. Union of India'**_ [1991 (3) SCC 47] and in ' _**S.S. Balu & another v. State of Kerala & others'**_ [CDJ 2009 SC 034] and canvassed the proposition that merely because a rank list is published, the rank holders **W.P.(C) No.28910 of 2016** 7 are not having any vested right to compel or insist the employer to appoint them. 11. The discussion made above will clearly establish that the rank list has expired on 30.12.2016. Mere pendency of a writ petition will not create a right to the petitioners to claim appointment after the expiry of the rank list. That apart, it is evident from Ext.P1 that the 1[st] respondent is not a financially viable business establishment. It is clear that it is running at a loss. Petitioners are not having a case otherwise than as projected by the 1[st] respondent in the counter affidavit with sufficient documents to establish the adverse financial circumstances. It is clear that it is running at a huge loss and is even struggling to perform its statutory obligations to protect the interest of the existing employees. Merely because applications for short term casual appointments were called for, that is not an enabling circumstance for this Court to visualize that the 1[st] respondent is sufficiently and financially capable of making appointments, creating more financial burden by paying salary, retirement benefits, contributions etc. Moreover, from the proposition of law laid down by the apex court in the afore-quoted judgments, it is clear, it is for the 8 **W.P.(C) No.28910 of 2016** employer to decide the manner in which appointments are to be made. Merely because vacancies have arisen in the establishment, the rank holders cannot compel the establishment to appoint them overlooking its financial flexibility and viability. The judgment of the apex court in ' _**Shankarsan Dash**_ ' ( _supra_ ) is significant in this regard. Paragraph 7 of the said judgment read thus: _“7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhas Chander Marwaha and Others, 1974 (1) SCR 165; Miss Neelima Shangla v. State of Haryana and Others, 1986 (4) SCC 268 and Jitendra Kumar and Others v. State of Punjab and Others, 1985 (1) SCR 899.”_ 12. The same is the proposition of law laid down by the apex court in ' _**S.S. Balu and another**_ ' ( _supra_ ). Moreover, 9 **W.P.(C) No.28910 of 2016** petitioners are not having a case that their seniority in the rank list was overlooked, and thereby their legal rights have been overlooked. Therefore, it cannot be said that there is any arbitrary action on the part of the 1[st] respondent in not appointing the petitioners. The employer has decided, going by the tenor and terms of the counter affidavit, that it has no intention to make any permanent appointment to the establishment. The employer has every right to decide the manner in which the establishment is to be run, especially due to the fact that it is running at a loss. In the said constrained circumstances, I have no reasons to think that petitioners have made out a case warranting interference of this Court exercising the discretionary jurisdiction conferred under Article 226 of the Constitution of India, there being no illegality, arbitrariness or any other legal infirmities. Sequel to the above discussion is that writ petition fails, accordingly it is dismissed. Sd/- **SHAJI P. CHALY JUDGE** //true copy// P.S. to Judge St/- 01.06.2017