Kerala High Court
Pannivizha Service Co-Operaive Bank ... vs Smitha T. Pillai on 15 September, 2015
Author: P.N.Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
[C.R.]
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
&
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
THURSDAY, THE 11TH DAY OF JANUARY 2018 / 21 ST POUSHA, 1939
WA.No. 2517 of 2015 IN WPC. 19353/2015
(AGAINST THE JUDGMENT IN WP(C) 19353/2015
OF HIGH COURT OF KERALA, DATED 15-09-2015)
APPELLANT/2ND RESPONDENT:
PANNIVIZHA SERVICE CO-OPERAIVE BANK LTD. NO.891,
ADOOR, REPRESENTED BY SECRETARY,
PATHANAMTHITTA DISTRICT-689 645.
BY ADV.SRI.P.N.MOHANAN
RESPONDENTS/PETITIONERS/RESPONDENTS 1 & 3:
1. SMITHA T. PILLAI, AGED 36 YEARS,
W/O. KRISHNAKUMAR, MANGALATH HOUSE, THEKKUMMURI,
PERINGANADU P.O., PATHANAMTHITTA DISTRICT-689 645.
2. JOINT REGISTRAR (GENERAL),
CO-OPERATIVE SOCIETIES, MINI CIVIL STATION,
PATHANAMTHITTA-689 645.
3. KERALA CO-OPERATIVE SERVICE EXAMINATION BOARD,
2ND FLOOR, KERALA STATE CO-OPERATIVE BANK BUILDING,
OVER BRIDGE JUNCTION, THIRUVANANTHAPURAM,
REPRESENTED BY ITS SECRETARY/CHAIRMAN, PIN-695 001.
R1 BY ADV. SRI.RAJU JOSEPH (SR.)
SRI.J.JULIAN XAVIER
R3 BY ADV. SMT.S.L.SYLAJA, SC, CO-OPERATIVE SERVICE EXAMINATION BOARD
R2 BY SMT. K.R.DEEPA, GOVERNMENT PLEADER
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 11-01-2018, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
ss
P.N.RAVINDRAN, J
& [C.R.]
R.NARAYANA PISHARADI, J
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W.A.No.2517 of 2015
---------------------------------------------------------
Dated this the 11th day of January, 2018
JUDGMENT
P.N.Ravindran, J The appellant is the second respondent in W.P.(C) No.19353 of 2015, a writ petition filed by the first respondent herein under Article 226 of the Constitution of India, praying for a writ in the nature of mandamus commanding the appellant bank to appoint her as Junior Clerk based on her rank in Ext.P2 rank list. By judgment delivered on 15.09.2015, the learned single judge allowed the writ petition. The appellant has, aggrieved thereby, filed this writ appeal. The brief facts of the case as follows:
2. By a notification dated 21.11.2011, the appellant bank invited applications from eligible persons for appointment by direct recruitment to the post of Junior Clerk. The number of vacancies notified was 01. In terms of the stipulations contained in Section 80(B) of the Kerala Co-operative Societies Act, 1969, the Kerala Co-operative Service Examination Board, joined as the third respondent in the writ petition and in the writ appeal, conducted a written test on 16.06.2012 and forwarded a list of eligible candidates to the appellant bank for the purpose of conducting the interview. The appellant bank thereafter conducted an interview W.A.No.2517 of 2015 2 and published Ext.P2 rank list on 02.07.2013. The writ petitioner secured the second rank in the selection. From Ext.P2 rank list, Raji. S, the first rank holder was appointed as Junior Clerk by order passed on 05.08.2013 and she joined duty.
3. Shortly after Ext.P2 rank list came into force, yet another vacancy of Junior Clerk arose in the appellant bank on 18.02.2014. The managing committee of the appellant bank that met on 29.07.2014 resolved to notify that vacancy and fill it up by appointing persons with disability. A notification inviting applications was also issued. On coming to know of the fact that a vacancy of Junior Clerk has arisen on 18.02.2014, the writ petitioner submitted Ext.P4 representation dated 13.05.2015 to the Joint Registrar of Co-
operative Societies (General), Pathanamthitta (the first respondent in the writ petition), wherein, relying on the decision of the Division Bench of this court in Kodakara Farmers Service Co-operative Bank Limited v. Neena (2010(1) KLT 541), she contended that she is entitled to be appointed as Junior Clerk in the vacancy that arose on 18.02.2014. She also contended that the decision taken by the Managing Committee on 29.07.2014 to fill up the vacancy by appointing persons with disability, after conducting a written test W.A.No.2517 of 2015 3 and interview is illegal. She thereafter submitted Ext.P5 representation dated 26.02.2015 to the Secretary and President of the appellant bank, wherein, relying on the decision of the Division Bench of this court in Kodakara Farmers Service Co-operative Bank Limited v. Neena (supra) she requested that she may be appointed as Junior Clerk. She thereafter filed W.P.(C)No.19353 2015 in this court, seeking the following reliefs:
i. To issue a writ of mandamus or any other appropriate writ, order or direction directing the 2 nd respondent to forthwith appoint the petitioner as junior clerk under the 2nd respondent in the light of her qualification and rank in the ranked list.
ii. To issue a writ of mandamus or any other appropriate writ, order or direction directing the 1 st respondent to issue an order under Section 66A of the Co- operative Societies Act, 1969 (Kerala) appointing the petitioner as junior clerk under the 2nd respondent bank in the light of availability of the vacancy that has arisen during the validity of the ranked list.
4. She contended that as a vacancy of Junior Clerk has come into existence on 18.02.2014, during the currency of the rank list, she is entitled to be appointed as Junior Clerk. The appellant bank resisted the writ petition by filing a counter affidavit dated 15.07.2015. Though the appellant bank admitted the fact that a W.A.No.2517 of 2015 4 vacancy of Junior Clerk has come into existence, it contended that it has taken a decision to fill up that vacancy by appointing persons with disability and has also taken steps to fill up that vacancy. The appellant bank also contended that this court has in Jayaprakash v. Joint Registrar (2013(4) KLT 788) declared that any society which employs more than 10 employees has to reserve the 11 th or the 12th post for persons with disability, if the said post is a post identified to be filled up by appointing persons with disability.
5. The petitioner filed a reply affidavit dated 30.08.2015 wherein she contended that after Ext.P2 rank list was published, the appellant bank had taken steps to appoint 03 Peons and that it could have very well reserved one among the 03 vacancies of Peons to be filled up with a person having disability. She also referred to the fact that a person with disability has filed W.P.(C) No.18708 of 2014 and that the said writ petition is pending before this court.
6. The learned single Judge considered the rival contentions and held by the impugned judgment that the petitioner is entitled to be appointed against the vacancy which arose on 18.02.2014 (wrongly referred to as 08.02.2014 in the impugned judgment) based on the rank assigned to her in Ext.P2 rank list. W.A.No.2517 of 2015 5
The second respondent in the writ petition has, as stated earlier, filed this writ appeal, aggrieved by the said judgment.
7. We heard Sri.P.N.Mohanan, learned counsel for the appellant, Sri.Raju Joseph, learned Senior Counsel appearing for the first respondent/writ petitioner, Smt.Sri.K.R.Deepa, learned Senior Government Pleader appearing for the Joint Registrar of Co-
operative Societies and Smt.S.L.Shylaja, learned Standing Counsel appearing for the third respondent. Sri.P.N.Mohanan, learned counsel for the appellant raised two main contentions. The first is that in the light of the decision of the Apex Court in Kodakara Farmers Service Co-operative Bank Ltd. v. Neena [2013(1) KLT 344] whereby the decision of the Division Bench of this court in Kodakara Service Co-operative Bank Ltd. v. Neena [2010(1) KLT 541] was reversed, the writ petitioner cannot contend for the position that the rank list is valid and current for a period of two years or that it does not cease to operate when the notified vacancies are filled up. The second contention raised is that unlike the Kerala Public Service Commission (hereinafter referred to as the Commission for short) which is mandated by Rule 14 of the Kerala Public Service Commission Rules of Procedure to advise W.A.No.2517 of 2015 6 candidates against the vacancies reported during the currency of the ranked list, there is no provision in the Kerala Co-operative Societies Act, 1968 (hereinafter referred to as the Act for short) or the Rules framed thereunder, which obliges the appellant bank to fill up all the vacancies that arise during the currency of the rank list, in addition to the vacancies mentioned in the notification inviting applications.
8. It is not in dispute that the rank list has a validity period of two years. Rule 182(4)(vii) of the Kerala Co-operative Societies Rules, 1969 (the Rules for short) stipulates that the list shall be valid for a period of two years from the date of its publication by the society. The very same rule also mandates the publication of the rank list within twenty days from the date of receipt of the consolidated mark list. Rule 182(4)(vii) of the Rules also obliges the society to make appointments from the rank list so published, within one month from the date of such publication and report to the Examination Board. Rule 182(4) of the Rules reads as follows:-
(4) In respect of recruitment to societies covered by Section 80B of the Act, the following procedure shall be followed:-
(i) The Society shall report the vacancy to the Co-operative Service Examination Board and the applications for appointment shall be invited by the Co-operative Service Examination Board, by notification in two vernacular dailies, W.A.No.2517 of 2015 7 having wide circulation in the area. The notification shall include the details of number of vacancies, qualifications required for the post, age and reservation, if any, the mode of application, method of appointment and other required details.
The Co-operative Service Examination Board may collect application fee along with the application at the rate fixed by the Registrar of Co-operative Societies from time to time. The Examination Board shall process the applications and prepare the list of candidates to be called for the written test. One copy of the prepared list shall be published in the notice board of the Examination Board and one copy shall be sent to the society for publication in its notice board. The society shall publish it in the notice board and copies thereof in the branch offices of the society. The arrangements for the written test shall be made by the Examination Board.
(ii) The Examination Board shall conduct the written examination of the candidates and furnish a list of eligible candidates to be interviewed to the committee of the society within a period of three months from the date of requisition by the society. The list so furnished shall not contain the mark secured by the candidates;
(iii) The maximum marks for written examination shall be 80 and those who secure 40% of the marks shall only be eligible to be included in the list for interview;
Provided that in case of candidates belonging to Scheduled Caste or Scheduled Tribe, those who secure 30% of marks and above shall be included in the list.
Provided further that the total number of candidates to be called for interview shall be ten times the number of posts W.A.No.2517 of 2015 8 advertised to be filled up in each category. If there are more candidates who secure not less than forty per cent marks in the written examination and if the candidate who secured forty per cent or above marks are less than ten times as above, all of the candidates shall be called for interview.
(iv) The maximum marks for interview shall be 15; Provided that the minimum marks for interview shall be 3. (iv A) Candidates of home district shall be awarded 5 marks over and above the marks for interview as grace marks. Explanation.- For the purpose of this item, candidates of home district means the candidates belonging to the district or districts to which the area of operation of the society extends.
(v) On receipt of the list from the Examination Board, the committee shall conduct interview of the candidates within two months from the date of such receipt and return the list to the Examination Board noting the marks secured by each candidates, in the interview within a period of two weeks;
(vi) On receipt of the list from the society, the Examination Board shall note down the marks secured by each of the candidate in written examination and return consolidated list with the total marks obtained by each candidate. This shall be done within a period of one week.
(vii) On the basis of the consolidated list so received from the Examination Board, the committee shall prepare the rank list of candidates and publish the same in the notice board of the society within a period of twenty days from the date of receipt of such consolidated mark list. The society shall send one copy of the rank list so published to the Examination Board also. The Board shall examine the correctness of such rank list and W.A.No.2517 of 2015 9 report to the Registrar, the irregularities, if any. The list shall be valid for a period of two years from the date of publication of the same by the society.
(viii) All appointments to the vacancies shall be made by the committee from the select list so published; within one month from the date of such publication and shall be reported to the Examination Board.
(ix) Expenses, if any, incurred over and above the fees collected by the Examination Board, shall be borne by the society concerned.b