W.P.(C).No.25289 of 2009 (E) (Shyby v. Varanam Puthenangadi Dairy Cooperative Society and others)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN** **WEDNESDAY, THE 6TH JANUARY 2010 / 16TH POUSHA 1931** **WP(C).No. 25289 of 2009(E)** **--------------------------------------** **PETITIONERS:** **---------------------** **SHYBY, AGED 23 YEARS, D/O. UDAYAPPAN, THYVELI, VARANAM P.O., ALAPPUZHA-688 555.** **BY ADVS. MR.V.L.SHENOY, MR.L.JAYAWANTH.** **RESPONDENTS:** **------------------------** **1. VARANAM PUTHENANGADI, KSHEEROTHPADAKA SAHAKARANA SANGHOM LTD.A.139 D, APCOSE, VARANAM P.O., CHERTHALA, REPRESENTED BY ITS HONRY. SECRETARY.** **2. JOINT REGISTRAR OF CO-OPERATIVE SOCIETY (DAIRY), ALAPPUZHA.** ## **3. DEPUTY DIRECTOR OF DAIRIES,** **OFFICE OF THE DY.DIRECTOR, NEAR KALLUPALAM, ALAPPUZHA.** **R1 BY ADVS. MR.V.G.ARUN, MR.T.R.HARIKUMAR,** **R2 & R3 BY SR.GOVERNMENT PLEADER MR. K.S. MOHAMMED HASHIM.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C). NO.25289/2009-E:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXT.P.1: COPY OF THE REQUISITION DTD. 12/06/2008 INTER ALIA DIRECTING THE PETITIONER TO APPEAR FOR THE WRITTEN TEST SENT BY THE THEIR PRESIDENT OF THE R.1. SOCIETY.** **EXT.P.2: COPY OF THE CIRCULAR DTD. 31/12/1988.** **EXT.P.3: COPY OF THE RELEVANT KCS RULES 21/1969.** **EXT.P.4: COPY OF THE REPRESENTATION BEFORE R2. DTD. 25/08/2009.** **EXT.P.5: COPY OF THE ADVERTISEMENT APPEARED IN THE VERNACULAR DAILY DTD. 12/08/2009.** **EXT.P.6: COPY OF THE RELEVANT PORTION OF SECTION 80(B) OF ACT 21/69.** ## **RESPONDENTS' EXHIBITS:** **EXT.R1.A: COPY OF THE ADVERTISEMENT PUBLISHED IN THE KERALA KAUMUDI DAILY DTD. 30/05/2008.** **EXT.R1.B: COPY OF THE RESOLUTION NO. 3 DTD 26/06/2009.** **EXT.R1.C: COPY OF THE RESOLUTION NO.1. DTD. 11/07/2009.** **EXT.R1.D: COPY OF THE RESOLUTION NO.1. DTD. 08/08/2009.** **EXT.R1.E: COPY OF THE RELEVANT PAGES OF THE MINUTES OF THE MEETING OF THE COMMITTEE DTD 31/08/2009.** **EXT.R1.F: COPY OF THE MINUTES OF MEETING DTD. 07/09/2009.** **EXT.R3.1: COPY OF THE CIRCULAR NO.H2-16530/94 DTD. 24/04/1998.** ## **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## **P.N. RAVINDRAN, J** **- - - - - - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) No.25289 of 2009** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 06[th] day of January, 2010** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -** ## **J U D G M E N T** A vacancy in the post of Secretary arose in the first respondent society on 31/3/2008 on the retirement of the incumbent. The first respondent society thereupon issued Ext.R1(a) notification in the Kerala Kaumudi daily dated 30/5/2008. The last date stipulated in Ext.R1(a) for submission of applications was 10/6/2008. The petitioner applied for the post pursuant to the said notification. Many other candidates also applied for the post. A written test was held on 22/6/2008 in which the petitioner participated. An interview was also held on the same day. Thereafter, a rank list of candidates was prepared and published on 22/6/2008. In that rank list, Smt. Ambily. R was ranked first and the petitioner was ranked second. Smt. Ambily. R was appointed and she joined duty as Secretary on 27/6/2008. W.P.C.25289 of 2009 -2- The petitioner states that Smt. Ambily. R discontinued service and thereafter left employment. 2. The petitioner contends that as the rank list remains in force for a period of two years by virtue of the stipulation in Rule 182 (vii) of the Kerala Co-operative Societies Rules 1969, the first respondent ought to have appointed her as Secretary on the first rank holder giving up employment. The petitioner alleges that instead, the first respondent published Ext.P5 notice in the Kerala Kaumudi daily dated 12/8/2008 inviting applications for appointment as Secretary, that she had thereupon submitted Ext.P4 representation dated 25/8/2009 before the third respondent seeking his interference and requesting him to ensure that she is appointed as Secretary in the first respondent's society. This writ petition was filed on 29/8/2009 seeking a direction to the respondents not to make any fresh appointment to the post of Secretary in the first respondent society pursuant to Ext.P5. The petitioner contends that as the rank list published pursuant to the written test and interview held on 22/6/2008 is valid for a W.P.C.25289 of 2009 -3- period of two years, the first respondent society has acted arbitrarily and illegally in inviting fresh applications for the post of Secretary. 3. Respondents 1 and 3 have filed counter affidavits. The first respondent, has in their counter affidavit, contended that only one vacancy of Secretary was notified that the first rank holder in the rank list was appointed as Secretary and that the rank list stood exhausted on that appointment being made. It is also contended that Rule 182 of the Kerale Cooperative Societies Rules does not apply to the first respondent society. The first respondent has also stated that Smt. Ambily R, who was appointed as Secretary, joined duty on 26/7/2008, that on completion of the period of one year on duty, her probation was declared on 26/6/2009, that shortly thereafter due to personal reasons she resigned from service and that her resignation was accepted by the Managing Committee of the society on 11/7/2009. The first respondent has also stated that after the resignation of Smt. Ambily. R on W.P.C.25289 of 2009 -4- 11/7/2009, the Managing Committee decided to fill up the vacancy of Secretary by inviting fresh applications and that Ext.P5 advertisement was thereupon published. It is also stated that pursuant to Ext.P5, a written test and interview were held, a selection was made and a decision taken on 31/8/2009 to appoint Smt. Surya Sasikumar, the first rank holder in the said selection. It is also stated that the said candidate joined duty on 3/9/2009 and thereafter a copy of the interim order passed by this Court on 31/8/2009 staying appointment to the post of Secretary pursuant to Ext.P5, was served on the first respondent. The third respondent has filed a counter affidavit. Relying on Ext.R3(1) circular, it is contented that the rank list is valid for a period of 2 years and therefore, the Managing Committee of the first respondent society had no right to conduct a fresh selection when the rank list prepared on 22/5/2008 is in force. 4. I heard Sri. V.L.Shenoy, the learned counsel appearing for the petitioner, Sri. V.G.Arun, the learned W.P.C.25289 of 2009 -5- counsel appearing for the first respondent and Sri.K.S. Mohammed Hashim, the learned Senior Government Pleader appearing for respondents 2 and 3. I have also gone through the pleadings and the materials placed on record. The main question that arises for consideration in this writ petition is whether Rule 182 of the Kerala Co-operative Societies Rules applies to the first respondent society and whether, if at all the said rule applies, the petitioner is entitled to be appointed as Secretary of the first respondent society, when the first rank holder in the rank list published on 22/6/2008 resigned from service on 11/7/2009. The first respondent is a Dairy Cooperative Society and not a society as classified in AppendixIII of the Kerala Co-operative Societies Rules. Rule 182(4) of the Kerala Co-operative Societies Rules stipulates that the procedure prescribed therein shall be followed in respect of recruitment to societies covered by Section 80(B) of the Kerala Co-operative Societies Act. Sub-rule (4) of Rule 182 provides that in the case of recruitment covered by Section 80 W.P.C.25289 of 2009 -6- (B) of the Act, the rank list prepared shall be in force for a period of two years from the date of publication of the list by the society and that all appointments to the vacancies shall be made by the committee from the select list so published within one month from the date of publication and reported to the Examination Board. Section 80(B) of Kerala Cooperative Societies Act stipulates that “the Government shall, by notification in the Gazette constitute a Co-operative Service Examination Board for the conduct of written examination for all direct recruitment to posts of and above the category of Junior Clerks in the Primary Agricultural Credit Societies, Primary Credit Societies, Urban Cooperative Banks and Primary Agricultural and Rural Development Banks in the State. 5. The first respondent society does not fall within the said categories of societies. Therefore, in my opinion, the procedure prescribed in the Rule 182 (4) of the Kerala Cooperative Societies Rules has no application to the direct W.P.C.25289 of 2009 -7- recruitments made by the first respondent society. As a matter of fact, the written test held on 22/6/2008 in which the petitioner participated was not conducted by the Co-operative Service Examination Board, though it was a test conducted by an outside agency nominated by the first respondent in terms of the guidelines issued by the Registrar of Co-operative Societies. Sub-rule (5) of Rule 182 stipulates that, “in respect of societies and and posts not covered by Section 80 (3)(a) and Section 80(B) of the Act, the appointments shall be made by the committee after conducting the written examination and interview as per the guidelines issued by the Registrar of Co-operative Societies”. The first respondent society is also not a society covered by Section 80(3)(a) of the Kerala Co-operative Societies Act. It is thus evident from the admitted facts of this case that Rule 182(4) of the Kerala Cooperative Societies Rules had no application to the selection and appointment made pursuant to the written test held on 22/6/2008. W.P.C.25289 of 2009 -8- 6. Even if it is assumed for the sake of arguments that the rank list published by the first respondent society will have a life span of two years, as stated in clause 9 of Ext.R3 (1) circular, I am of the opinion that, as it is not stipulated that all vacancies arising during the currency of a rank list shall be filled up from the said list, the first respondent is not bound to fill up the vacancy arising during the currency of the rank list published on 22/6/2008 by appointing the petitioner. By Ext.R1(a) notification, the first respondent invited applications for appointment to the post of Secretary that fell vacant on 31/3/2008. It is not in dispute that there is only one post of Secretary in the first respondent society. The number of vacancies that was notified was, therefore only one. This Court, has in a series of decisions, the latest of which is **Dr.Dimpi V.Divakaran v. Mahatma Gandhi University and another in 2007 (1) KLJ 545** held that where only one vacancy is notified and a period of one year is prescribed as validity of the rank list, it does not mean that, W.P.C.25289 of 2009 -9- the rank list can be operated to fill up a second vacancy. It was held that where only one vacancy is notified, if other vacancies are filled up from the list prepared pursuant to the earlier notification, it will amount to denial of opportunity to several others who got qualified after the notification and the publication of rank list and those who could not apply earlier, as only one vacancy had been notified. In the case of recruitment by the Kerala Public Service Commission, this Court has drawn a distinction and held in **Jyothish Kumar v. State of Kerala in 96 (2) KLT 444** that (in view of the stipulations in the rules of procedure) future vacancies, namely vacancies arising after the notification, but during the currency of the ranked list can also be filled up by candidates included in the ranked list. 7. In the instant case, it is not in dispute that only one vacancy was notified by Ext.R1(a) notification. The said vacancy was filled up by appointing Smt. Ambily R who was ranked first in the selection process. She worked for one year W.P.C.25289 of 2009 -10- and after her probation was declared, resigned from service. The first respondent thereupon took steps to renotify the vacancy. I am of the opinion that in the light of the law laid down by this Court in **Dr. Dimpi V. Divakaran v. Mahatma Gandhi University and another in 2007 (1) KLJ 545** , the said action of the first respondent cannot be said to be in any way arbitrary or illegal. I accordingly, hold that the petitioner had no right to be appointed as Secretary in the vacancy that arose on 11/7/2009, when Smt. Ambily.R resigned from service and that the first respondent was perfectly justified in re-notifying the vacancy. For the reasons stated above, I hold that there is no merit in the writ petition. The writ petition fails and is accordingly dismissed. No costs. **P.N. RAVINDRAN (JUDGE)** nl