Kerala High Court
Shaji T.G vs Kerala Public Service Commission on 2 November, 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
MONDAY, THE 27TH DAY OF MARCH 2017/6TH CHAITHRA, 1939
WP(C).No. 33589 of 2016 (W)
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PETITIONER(S):
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SHAJI T.G
S/O.N.GOPALAKRISHNAN, AGED 38 YEARS,
THADATHIL, RANNI, PERUNAD, KOONAMKARA.P.O.,
PATHANAMTHITTA, PIN-689 711.
BY ADVS.SRI.M.M.MONAYE
SRI.T.KOSHY
RESPONDENT(S):
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1. KERALA PUBLIC SERVICE COMMISSION
REPRESENTED BY ITS SECRETARY,
THULASSI HILLS, PATTOM PALACE.P.O.,
THIRUVANANTHAPURAM, PIN - 695 004.
2. THE DISTRICT OFFICER
KERALA PUBLIC SERVICE COMMISSION,
DISTRICT OFFICE, PATHANAMTHITTA-689 645.
3. THE REGISTRAR OF CO-OPERATIVE SOCIETIES
OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES,
THIRUVANANTHAPURAM - 695 001.
4. THE PATHANAMTHITTA DISTRICT CO-OPERATIVE BANK LTD.
PATHANAMTHITTA-689 645,
REPRESENTED BY ITS GENERAL MANAGER.
5. THE THIRUVANANTHAPURAM DISTRICT CO-OPERATIVE BANK LTD.
THIRUVANANTHAPURAM-695 023,
REPRESENTED BY ITS GENERAL MANAGER.
6. THE ALAPPUZHA DISTRICT CO-OPERATIVE BANK LTD.NO.4310
ALAPPUZHA-688 005,
REPRESENTED BY ITS GENERAL MANAGER.
7. THE KOTTAYAM DISTRICT CO-OPERATIVE BANK LTD.
KOTTAYAM-686 001,
REPRESENTED BY ITS GENERAL MANAGER.
8. THE IDUKKI DISTRICT CO-OPERATIVE BANK LTD.NO.4334
VAZHATHOPPE ROAD, CHERUTHONY, PIN-685 602,
REPRESENTED BY ITS GENERAL MANAGER.
WPC33589/16
9. THE ERNAKULAM DISTRICT CO-OPERATIVE BANK LTD.
KAKKANAD, KOCHI-682 030,
REPRESENTED BY ITS GENERAL MANAGER.
10. MALAPPURAM DISTRICT CO-OPERATIVE BANK LTD.NO.4329
UPHILL, MALAPPURAM, PIN-676 505.
R1-R2 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC
R3 BY SMT.MABLE C.KURIAN, GOVERNMENT PLEADER
R4 BY SRI.JACOB P.ALEX,SC,PATHANAMTHITTA DIST.CO.OP.BANK
R5 BY SRI.T.R.HARIKUMAR, SC,
THIRUVANANTHAPURAM DIST.CO-OP.BANK LTD.
R6 BY SMT.K.N.RAJANI, SC, ALAPPUZHA DIST.CO.OP.BANK LTD.
R7 BY SRI.SUNIL CYRIAC, KOTTAYAM DIST.CO.OP.BANK LTD.
R8 BY SRI.JOICE GEORGE, SC,IDUKKI DIST.CO-OP.BANK LTD.
R9 BY SMT.I.SHEELA DEVI, SC,
ERNAKULAM DIST.CO-OP.BANK LTD.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
27-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 33589 of 2016 (W)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 COPY OF THE DEGREE CERTIFICATE OF THE PETITIONER.
EXHIBIT P2 COPY OF PAGE 3 OF THE SSLC BOOK OF THE PETITIONER
SHOWING HIS COMMUNITY AS EZHAVA.
EXHIBIT P3 PHOTOCOPY OF THE CATEGORY 302/2016 (PART I).
EXHIBIT P4 COPY OF THE NCA NOTIFICATION CATEGORY NO.303/2016 TO
306/2016(PART-II).
EXHIBIT P5 COPY OF THE NOTIFICATION GO(P)NO.172/2010/CO.OP
(SRO:NO.1005/2010) DATED 2.11.2010 AND THE AMENDED RELEVANT RULE.
RESPONDENT(S)' EXHIBITS
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NIL
//TRUE COPY//
PA TO JUDGE
jg-27/4
'C.R.'
DEVAN RAMACHANDRAN, J.
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WP(C) No.33589 of 2016
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Dated this the 27th day of March, 2017.
J U D G M E N T
1.The petitioner claims to be a Bachelor in Commerce in the subject of Co-operation. He asserts that he is working as a Junior Clerk in the Perunad Service Co-operative Bank Ltd., and that by the amendment to Rule 186 of the Kerala Co-operative Societies Rules, 1969, (hereinafter referred to as 'the Rules', for short) he is qualified to be considered for appointment to the post of Branch Manager in the various District Co-operative Banks.
2. The petitioner says that as per Exts.P3 and P4 notifications, the Kerala Public Service Commission invited candidates for being considered for appointment to the post of Branch Manager in the various District Co-operative Banks in Kerala. According to him, he could not apply because even though by the amendment to Rule 186 of the Rules, B.Com (Co-operation) was included as a qualification, the notification did not carry that as an accepted WPC33589/16 -2- qualification. He avouches that since the notification did not provide for candidates possessing B.Com (Co-operation) to be eligible for applying thereunder, he did not apply because according to him, he was incompetent to do so in terms of the notification. The petitioner has, therefore, filed this writ petition challenging Exts.P3 and P4 notifications as being issued by the PSC contrary to the mandate of Rule 186 of the Rules consequent to its amendment.
3. I have heard the learned counsel for the petitioner, Mr.M.M.Monaye, and the learned standing counsel for the PSC, Mr.P.C.Sasidharan and the learned Government Pleader for respondent No.3.
4. Before I proceed to go into the issues of this writ petition in detail, I must remove from the field one of the notifications, namely Ext.P3, because that notification has been issued by the PSC inviting candidates from the Latin Catholic and Anglo Indian WPC33589/16 -3- communities only. The petitioner, admittedly, being neither of these, would obviously not get the benefit of Ext.P3. This is why I said that Ext.P3 requires to be removed from the field of consideration.
5. That confines my examination only to the validity of Ext.P4 notification. This notification relates to No Candidate Available (NCA) vacancies. The petitioner claims, as has been indicated above, that Rule 186 was amended, with effect from 02.11.2010, bringing the degree of B.Com (Co-operation) within the field of competence, under those Rules, for being appointed to the post of Branch Manager. His assertion is that even though the amendment was brought in as early as in 2010, Ext.P4 notification which was issued recently on 29.9.2016, excludes B.Com (Co- operation) as one of the qualifications from the field of choice for appointment of Branch Manager. He says that this is completely irregular and contrary to the statutory prescriptions. I find sufficient force in the submission of the learned counsel for the WPC33589/16 -4- petitioner. The Rules were amended as early as in 2010 and, obviously, when Ext.P4 is issued in the year 2016, B.Com (Co- operation) ought to have been shown as one of the qualifications for the post of Branch Manager. This has, admittedly, not been done. I notice that PSC has a contention, which is, however, very feebly asserted before me, that the vacancies being NCA, it is possible that the amendment would not apply, since the vacancies may have arisen before 2010. There is, however, nothing on record to substantiate this and it is, no doubt, possible that the vacancies may have arisen before or after the amendment - leading to two different conclusions on the application of the Rules to such vacancies depending on if it arose before or after the amendment. I could have concluded on this without great effort, if I had obtained information regarding the vacancies and the date on which it arose but there is no such details on record.
6. However, in this case, the petitioner has an added problem. Even if I declare, as is required by him, that under the amended WPC33589/16 -5- Rule 186, B.Com (Co-operation) ought to have been shown as a qualification in Ext.P4, the petitioner may not still get any benefit by such a declaration. I say this because, I have to see the impact of Rule 187 of the Rules also while considering the case of the petitioner for appointment. Rule 187 relates to reservations applicable to the employees of member societies of apex or central Societies. This Rule has also undergone a change in the year 2014. By the amendment in 2014, two variations were made to the Rule. The first was that the words "similar or higher categories of" were introduced after the words "reserved to the employees of" in the said Rule and the words "in any of the cadre"
was removed after the words "regular service of three years" in the said Rule. To make it easier for comprehension, I will extract the present Rule 187 for ease:
"Rule 187 : Vacancies in Apex Society or Central Societies:- Notwithstanding anything contained in Rule 186, in appointments to apex societies or central societies, 50% of the WPC33589/16 -6- vacancies shall be reserved to the employees of similar or higher categories of the member societies, of the respective apex society or central society as the case may be, having a minimum regular service of 3 years and having the required qualification for the notified posts in the apex society or central society."
7. An ex facie examination of the Rules after the amendment would show that for appointments to Apex or Central societies, 50% of the vacancies shall be reserved to the employees of similar or higher categories of the member societies. Litera legis, the above Rule can only concede to it that candidates who were already employed in the member societies in similar or higher categories or cadre or posts would alone be considered. Mr.Monaye, of course, refutes it by saying that the amendment can be read in a different manner also. He maintains that the amendment would only mean that the vacancies are reserved to the employees of similar or higher categories of societies which are members of the WPC33589/16 -7- apex or central societies. He says that the post-amended Rule 187 can also be susceptible to such an interpretation. This contention may look very lustrous at first blush, but loses its sheen when one sees that the words "in any of the cadre" were also omitted after prescribing the immediate regular service of three years as a qualification. Obviously, the words "in any of the cadre" relates to posts in the member societies and its exclusion while bringing in an addition of the words "similar or higher categories of" would only mean that the addition relates to categories of posts and not to societies. Viewed from this angle, obviously, the petitioner would not be able to gain appointment as Branch Manager in the various District Co-operative Banks, because admittedly, he is only a Junior Clerk in the Service Co- operative Bank. His post cannot be said to be similar or higher in category of the post of that of a Branch Manager. In such view of the matter, unfortunately, the petitioner would not be able to obtain relief, as has been prayed for in this writ petition, even if I hold that his primary contention, regarding his qualification under WPC33589/16 -8- the amended Rule 186, would inure to his favour.
8. That having been said, it is limpid that I cannot direct the PSC, as has been prayed for by the petitioner, to consider the case of the petitioner for inclusion in the ranked list or in the appointment process because by the rigor of Rule 187, as amended in the year 2014, the petitioner would be able to obtain any such claim only if he is able to assert and substantiate that he belongs to a similar or higher category of post in the member society.
9. At this point of time, Mr.Monaye, brings my notice to Ext.P4 where under the qualifications prescribed, the notification says that a candidate who is a regular employee and who has completed not less than three years regular service in any cadre in the member societies, has been shown to be eligible for being appointed. I can say only that Ext.P4 notification has been issued without noticing the mandatory requirement of the post-amended Rule 187. After the amendment of the said Rule in the year 2014, WPC33589/16 -9- an employee who has three years of service in a lower category, cannot be considered and the words "in any cadre" in Ext.P4 can obviously, therefore, be only a mistake without seeing the imperative provisions in Rule 187, post its amendment.
10. I cannot, for the reasons above, grant the petitioner any relief in this writ petition even if I hold that under Rule 186 of the Rules, the degree of B.Com (Co-operation) is a valid qualification. This question has, in the facts of this case, been referred to being academic in nature and I do not think that I will require to answer it any more affirmatively than what I have done in this judgment and I deem it necessary that these issues be left to be considered in a better case, in future.
11. In these circumstances and for my opinion as recorded above, I have no other option but to dismiss this writ petition because I am unable to exercise discretion in his favour with respect to his claim for appointment as Branch manager in view of the WPC33589/16 -10- mandatory provision to the amended Rule 187 as above. This writ petition is, therefore, dismissed.
(DEVAN RAMACHANDRAN, JUDGE) jg-27/3