Kerala High Court
Abdul Rasheed vs Kerala Public Service Commission on 11 September, 2002
Author: Kurian Joseph
Bench: Kurian Joseph
JUDGMENT Kurian Joseph, J.
1. Preparation of select list for appointment of officers and servants of Co-operative Societies scheduled under the Kerala Co-operative Societies Act, 1960 is the duty of the Kerala Public Service Commission (hereinafter referred to as 'the Commission') with effect from 27.10.1995, the date of commencement of the Kerala Public Service Commission (Additional Functions as respects certain Societies) Act, 1996 (Act V of 1996). Rule 187 of the Kerala Co-operative Societies Rules provides for reservation of 50% of the vacancies in apex societies to the employees of the member societies. The said Rule contemplates reservation to those employees having a minimum regular service of three years in any of the cadre and having the required qualification for the notified post. The Commission stipulates that the experience should be in the same cadre. In the instant case recruitment is to the post of peon/watchman and the Commission insists that the experience of the incumbents who were employees of the member societies should be in the same cadre of peon/watchman and that is the dispute raised in these Original Petitions.
2. The Commission invited application as per Ext. P2 notification dated 26.10.1999. The facts (OP No. 18324 of 2002) are as follows: The notification consists of two parts. Part I is intended for direct recruitment from open market and part 2 is for recruitment from among the employees working in the affiliated societies. It is not in dispute that the recruitment is for all the District Co-operative Banks in the State. Note (1) under item (4) as it originally stood provided that the recruitment is subject to Rules 186 and 187 of the Kerala Co-operative Societies Rules. Rule 186 provides for qualifications, in the instant case 7th standard. Rule 187 reads as follows:
"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 vacancies shall be reserved to the employees of the member societies, of the respective apex society or central society as the case may be, having aminimum regular service of 3 years in any of the cadre and having the required qualification for the notified posts in the apex society or central society."
Prior to 2.5.2000 the said rule provided as follows:
"187. Vacancies in Apex Society or Central Societies.- Notwithstanding anything contained in Rule 186 for appointments to the 50% of the vacancies arising in an Apex Society or other Federal type Society having other societies as its members experience in the societies which are members of the respective Apex Society or Federal type Society, as the case may be, shall be a necessary additional qualification."
It may be seen that unamended rule provided only for experience in affiliated societies as additional qualification in respect of 50% of the vacancies whereas after amendment there is a reservation in respect of 50% of the vacancies. The incumbents having a minimum regular service of 3 years in anv of the cadre and having the required qualification for the notified post are eligible to be considered. It needs no elaborate discussion to understand the intention behind the rule - to favour the employees of the member societies in respect of 50% of the vacancies in the apex society.
3. Though Ext. P2 notification contained the Note as stated above regarding the application of Rules 186 and 187 of the Rules and the purport of the rule being what is stated above, while prescribing the qualifications in the notification, under item (7)(c) it was stipulated that the candidate should have three years experience in the same cadre. Consequently, as per Ext. P3 the Commission issued erratum notification deleting Note (1) under item (4), the Note regarding the application of Rr. 186 and 187 of the Rules. In otherwords, in view of Ext. P3 notification dated 29.3.2000, Ext. P2 notification should be taken to have stipulated that the incumbents should have three years experience in the same cadre. Question is whether the Commission is justified in restricting the field.
4. The notification is one for direct recruitment, in respect of 50% of the vacancies in the post of peon/watchman in the District Co-operative Banks. That the said 50% is reserved for the employees of the member societies is not disputed. But is it limited only to those employees who have experience of three years in the same cadre in member societies. The Commission is vested only with the statutory duty of preparation of select list for appointment. The qualification is prescribed under the Kerala Cooperative Societies Rules. Therefore, the recruitment by the Commission is to be in ' accordance with the rules regarding the qualification prescribed under the Kerala Cooperative Societies Rules. In otherwords, the Commission is not competent to prescribe additional requirements not contemplated by the Rules for selection. It must faithfully follow the rules and must select candidates in accordance with the rules. When the rule says that an incumbent need have only three years regular service in any of the cadre in the member society, the Commission is not competent to restrict the scope any further, nor can it enlarge also. The Commission is competent only to regulate its own conduct in prescribing the mode of selection. In the process it may give weightage to those who have experience in the same cadre, since it is for the Commission under Rule 11 of the Kerala Public Service Commission Rules of Procedure to decide the basis on which the marks should be awarded. But that does not empower them to reject an application of a candidate who is having three years experience in posts other than peon/watchman in an affiliated society. It is significant in this context to note that under Rule 4 of the Kerala Public Service Commission Rules of Procedure the Commission is empowered only to announce the qualifications required of the candidates. The qualification is to be prescribed by the rule making authority under Section 109 of the Kerala Co-operative Societies Act and Rules. 186 and 187 of the Rules are the prescribed rules in the matter of qualification and experience. Rule 186 provides for the qualification prescribed for the post. Rule 187 provides that in respect of 50% of the vacancies in the apex societies, employees in the affiliated societies need have only three years regular service in any of the cadre and having qualification for the notified post. Therefore, read together any employee having a pass in 7th standard and having three years experience in an affiliated society is qualified and eligible for being considered for appointment to the post of peon/watchman in the District Co-operative Bank. Of course, under Rule 3 of the Kerala Public Service Commission Rules of Procedure, the Commission can also assess the merit of the candidates by physical efficiency test or any other test which the Commission deems fit to hold in the nature of the post to which the selection is conducted and that is the justification for the qualification of cycling, the post being that of peon/watchman.
5. The Commission has taken a stand in their counter affidavit that the Bye-laws of the apex societies provide for qualification of experience in the same cadre. For onething, apart from the bald statement, no material is provided and that statement has been refuted by the incumbents also. Secondly, there cannot be a qualification which would have the effect of whittling down the rules. The Bye-laws only provide for something additional and not something in substitution. After all, this is not recruitment by promotion or recruitment by transfer. This is direct recruitment and there is no case that the candidates in the reserved category do not possess the qualification prescribed to the post in the rules. Hence item (7)(c) in Ext. P2 notification and Ext. P3 erratum notification restricting the experience in the same cadre are illegal and the select list can be prepared only in accordance with Rule 186 read with Rule 187 of the Rules. Experience can be in any cadre in the member societies.
In that view of the matter, it is not necessary to go into the various factual details as to whether the post held by an incumbent is some cadre or equated cadre etc. There will be a direction hence to the Public Service Commission to reconsider their stand of having rejected applications of the petitioners in case the applicants belong to the staff of affiliated co-operative societies and have experience of three years of regular service in any cadre and possess the qualification of a post in 7th Standard and knowledge of cycling. Satisfying the above requirements, the candidates should be considered for selection.
Original Petition is disposed of as above.