Y. Shihab Kunju v. Panmana Service Co-operative Bank Ltd, and K. Sunilkumar v. Panmana Service Co-operative Bank Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **MONDAY, THE 15TH DAY OF JULY 2019 / 24TH ASHADHA, 1941** ## **WP(C).No.21774 of 2017** ## **PETITIONER:** **Y.SHIHAB KUNJU S/O.YOONUS KUNJU, KALLELIL, NADUVATHUCHERRY, PUTHENCHANDA P.O., KOLLAM DISTRICT.** **BY ADV. SRI.PRASAD CHANDRAN** ## **RESPONDENTS:** - **1 THE PANMANA SERVICE CO-OPERATIVE BANK LTD. NO. 3035, REPRESENTED BY ITS SECRETARY, KOLLAKA P.O., KARUNAGAPPALLY, KOLLAM DISTRICT-690536.** - **2 THE BOARD OF DIRECTORS OF THE PANMANA SERVICE COOPERATIVE BANK LTD NO 3035, REPRESENTED BY ITS PRESIDENT, KOLLAKA.P.O., KARUNAGAPPALLY, KOLLAM DISTRICT-690536** - **3 THE ASSISTANT REGISTRAR OF CO-PERATIVE SOCIETIES (GENERAL), KARUNAGAPPALLY, KOLLAM DISTRICT-690518** - **4 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOLLAM, KOLLAM DISTRICT-690001.** - **5 K.SUNIL KUMAR S/O. KUNHIKRISHNAN, LATHIKABHAVAN, KOTTAPPURAM,CHIRAYILTHOTTAM,PARAVUR, KOLLAM DISTRICT-691301** **BY ADVS. SRI.C.S.AJITH PRAKASH GOVERNMENT PLEADER SMT.APARNA UDAYAKUMAR SRI.BIJITH S.KHAN SRI.C.S.AJITH PRAKASH SRI.PAUL C THOMAS SRI.T.K.DEVARAJAN SRI.T.R.HARIKUMAR** **SRI BIMAL NATH SR GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.07.2019, ALONG WITH WP(C).743/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).21774/17 & 743/2018 2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **MONDAY, THE 15TH DAY OF JULY 2019 / 24TH ASHADHA, 1941** ## **WP(C).No.743 of 2018** ## **PETITIONER:** **K. SUNILKUMAR LATHIKABHAVAN, KOTTAPURAM, CHIRAYILTHOTTAM, PARAVUR, KOLLAM DISTRICT -691 301.** **BY ADVS. SRI.C.S.AJITH PRAKASH SRI.BIJITH S.KHAN SRI.T.K.DEVARAJAN** ## **RESPONDENTS:** - **1 THE REGISTRAR OF CO-OPERATIVE SOCIETIES THIRUVANANTHAPURAM - 695 001.** - **2 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES GENERAL, KOLLAM, PIN -690 536.** - **3 THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES GENERAL, KOLLAM, PIN - 690 536.** - **4 THE PANMANA SERVICE CO-OPERATIVE BANK LTD. NO.3035, KOLLAKA P.O, KARUNAGAPALLY, KOLLAM-690 536, REPRESENTED BY ITS SECRETARY.** - **5 THE BOARD OF DIRECTORS THE PANMANA SERVICE CO-OPERATIVE BANK LTD. NO.3035, KOLLAKA P.O, KARUNAGAPALLY, KOLLAM-690 536, REPRESENTED BY ITS PRESIDENT.** - **6* Y.SHIHAB KUNJU S/O YOONUS KUNJU, KALLELIL, NADUVATHUCHERRY, PUTHENCHANDA PO, KOLLAM DISTRICT.** - ***(Additional R6 is impleaded as per the order dated 19/01/2018 in I.A.No.648/2018)** **BY ADVS.** **GOVERNMENT PLEADER SRI.V.G.ARUN** **SRI.T.R.HARIKUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.07.2019, ALONG WITH WP(C).21774/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).21774/17 & 743/2018 3** ## **JUDGMENT** Among the two writ petitions I am considering, W.P(C)No.21774 of 2017 has been field by Shri.Y.Shihad Kunju, who claims to be Rank No.1 in a list prepared by the Panmana Service Co-operative Bank Ltd. (hereinafter referred to as 'the Bank' for short), for appointment to the available post of Driver, alleging that a practical test was employed by the Bank, under the aegis of the Motor Vehicles Department, which was not part of the notification and, therefore, that their attempt to appoint another person who is found qualified in such test is illegal and unlawful; while, W.P(C)No.743 of 2018 has been field by a certain Shri.K.Sunilkumar who claims to have qualified in this test and, therefore, seeks appointment. 2. Shri.Prasad Chandran.P., learned counsel appearing for Shri.Y.Shihab Kunju, submitted that, as is clear from Ext.P3 in W.P(C)No.21774 of 2017, after the written test ## **WP(C).21774/17 & 743/2018 4** and interview, his client was placed Rank No.1, while Sunilkumar is only Rank No.2. He prays that, therefore, his client be directed to be appointed. His contention is that the practical test to which the candidates were subjected to, was a very difficult one and that his client was completely unprepared. He alleges that this test is not even being used for grant of driving licence to any applicant in the State of Kerala and, therefore, that before subjecting the candidates to such test they ought to have been property notified. He, therefore, prays that notwithstanding the failure of his client in the practical test, the Bank be directed to appoint him. 3. Contrary to the above, Shri.K. Sunilkumar, petitioner in W.P(C)No.743 of 2018, submits that since he has already qualified in the practical test and he is Rank No.2, he should be immediately appointed. 4. Shri.T.R.Harikumar,learned Standing Counsel appearing for the Bank, submitted that ## **WP(C).21774/17 & 743/2018 5** the process of selection is still not complete and that Shri.Y.Shihab Kunju has approached this Court with an anticipated course of action, that he is likely to be eliminated. The learned Standing Counsel submits that they propose to put all the candidates through a practical test again since, it has been more than two years after the notification was made and consequently, by efflux of time many of them may have possibly deteriorated in their driving skills. He further adds that Shri.Sunilkumar cannot seek an automatic appointment merely because he has been included in the list, going by the declaration of law by a Full Bench judgment of this Court in _**Unnikrishnan Nair G.S. & Others v. State of**_ _**Kerala and Others** [2019(1) KLT 896]_ . 5. When I hear Shri.T.R.Harikumar as afore, it is ineluctable that merely because a person is included in a rank list, he or she does not get the inviolable right to be appointed and this has been declared by the ## **WP(C).21774/17 & 743/2018 6** Full Bench of this Court in _**Unnikrishnan Nair**_ (supra). That said, however, the fact remains that Shri.Sunilkumar appears to have passed the practical test, which Shri.Y.Shihab Kunju did not. Obviously, therefore, the expectation of Shri.Sunilkumar to be appointed cannot be found to be unjustified. However, these are all issues for the Bank to take a final call on, since the process of selection is still not complete and as Shri.T.R.Harikumar submitted, if they intend to conduct a fresh practical test, nothing can stop them particularly because it has been more than two years after the notification had been published and it being for the employer to ensure that they appoint the best available. 6. In the afore circumstances, I dismiss W.P(C)No.21774 of 2017 and dispose of W.P(C)No.743 of 2018, recording the submissions of Shri.T.R.Harikumar, learned Standing Counsel for the Bank, that the process of selection will be completed by **WP(C).21774/17 & 743/2018 7** affording one more opportunity of a practical test to all the candidates in the rank list within a short period of time. **Sd/-** ## **DEVAN RAMACHANDRAN** **JUDGE** MC/16.7.19 **WP(C).21774/17 & 743/2018 8** ## **APPENDIX OF WP(C) 21774/2017** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE DRIVING LICENCE AND BADGE ISSUED TO THE PETITIONER BY THE MOTOR VEHICLES DEPARTMENT.** **EXHIBIT P2 A TRUE COPY OF THE NOTIFICATION DATED 26.4.17 ISSUED BY THE IST RESPONDENT SOCIETY.** **EXHIBIT P3 A TRUE COPY OF THE RANK LIST TO THE POST OF DRIVER ISSUED BY THE 1ST RESPONDENT SOCIETY.** **EXHIBIT P4 A TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE PRESIDENT DATED 27-05-2017.** **EXHIBIT P5 A TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 09.06.2017.** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R5 (a) A TRUE COPY OF THE NOTICE ISSUED BY THE BANK DATED 25.05.2017** **WP(C).21774/17 & 743/2018 9** ## **APPENDIX OF WP(C) 743/2018** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE SSLC MARKS CARD OF THE PETITIONER EXHIBIT P2 TRUE COPY OF THE DRIVING LICENCE ISSUED TO THE PETITIONER EXHIBIT P3 A TRUE COPY OF THE NOTIFICATION DATED 26.04.2017 ISSUED BY THE 4TH RESPONDENT BANK EXHIBIT P4 A TRUE COPY OF THE ADMIT CARD ISSUED TO THE PETITIONER BY THE 4TH RESPONDENT BANK EXHIBIT P5 A TRUE COPY OF THE NOTICE DATED 25.05.2017 ISSUED BY THE 4TH RESPONDENT BANK EXHIBIT P6 A TRUE COPY OF THE REPRESENTATION DATED 02.06.2017 EXHIBIT P7 A TRUE COPY OF THE REPRESENTATION DATED 12.6.2017 ISSUED TO THE 4TH RESPONDENT BANK EXHIBIT P8 A TRUE COPY OF THE REPRESENTATION PREFERRED BEFORE THE 2ND RESPONDENT BY THE PETITIONER DATED 22.7.2017 EXHIBIT P9 A TRUE COPY OF THE CERTIFIED COPY OF THE ORDER DATED 19.07.2017 IN WPC NO.21774 OF 2017. RESPONDENT'S/S EXHIBITS: EXHIBIT R3(A) TRUE COPY OF THE TEST SHEET OF SUNIL KUMAR EXHIBIT R3(B) TRUE COPY OF THE TEST SHEET OF SHIHABUDHEEN EXHIBIT R3(C) TRUE COPY OF THE TEST SHEET OF ANOOP P.A. EXHIBIT R3(D) TRUE COPY OF THE TEST SHEET OF SREEJITH P. EXHIBIT RE(E) TRUE COPY OF THE RESOLUTION NO.101 DATED 27.5.2017. MC (TRUE COPY) PA TO JUDGE**