Kerala High Court
Shaji.T.G vs The Kerala Public Service Commission on 27 March, 2017
Author: Navaniti Prasad Singh
Bench: Navaniti Prasad Singh, V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR.NAVANITI PRASAD SINGH
&
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
WEDNESDAY, THE 7TH DAY OF JUNE 2017/17TH JYAISHTA, 1939
WA.No. 1116 of 2017 () IN WP(C).33589/2016
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AGAINST THE JUDGMENT IN WP(C) 33589/2016 DATED 27-03-2017
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APPELLANT(S)/PETITIONERS :-
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SHAJI.T.G., S/O. N.GOPALAKRISHNAN,
THADATHIL, RANNI, PERUNAD, KOONAMKARA P.O.,
PATHANAMTHITTA, PIN - 689 711.
BY ADVS.SRI.M.M.MONAYE
SRI.T.KOSHY
RESPONDENT(S)/RESPONDENTS :-
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1. THE KERALA PUBLIC SERVICE COMMISSION
REPRESENTED BY ITS SECRETARY, THULASSI HILLS,
PATTOM PALACE P.O., THIRUVANANTHAPURAM - 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, PIN - 695 023,
REPRESENTED BY ITS GENERAL MANAGER.
6. ALAPPUZHA DISTRICT CO-OPERATIVE BANK LTD.NO.4310,
ALAPPUZHA, PIN - 688 005,
REPRESENTED BY ITS GENERAL MANAGER.
WA.No. 1116 of 2017
7. THE KOTTAYAM DISTRICT CO-OPERATIVE BANK LTD.,
KOTTAYAM, PIN - 686 001,
REPRESENTED BY ITS GENERAL MANAGER
8. THE IDUKKI DISTRICT CO-OPERATIVE BANK LTD.NO.4334
VAZHATHOPE ROAD, CHERUTHONI, PIN - 685 602,
REPRESENTED BY ITS GENERAL MANAGER.
9. THE ERNAKULAM DISTRICT CO-OPERATIVE BANK LTD.
KAKKANAD, KOCHI, PIN - 682 030,
REPRESENTED BY ITS GENERAL MANAGER.
10. MALAPPURAM DISTRICT CO-OPERATIVE BANK LTD No.4329,
UPHILL, MALAPPURAM, PIN - 676 505,
REPRESENTED BY ITS GENERAL MANAGER.
R3 BY SR.GOVERNMENT PLEADER SRI.M.A.ASIF
BY SRI.T.A.SHAJI (SR.)
BY SRI.P.C.SASIDHARAN, SC, KPSC
BY SRI.P.C.SASIDHARAN, SC, IDUKKI DIST.CO.OP
BY SRI.T.P.PRADEEP, SC, DIST.CO.OP.BANK,PTA
BY SRI.N.ABDUL MAJEED, SC, MALAPPURAM DIST.CO.OP BANK
BY SRI.THOMAS ABRAHAM, SC, THIRUVANANTHAPURAM DIST.
CO.OP BANK
BY SRI.N.RAGHURAJ, SC, ERNAKULAM DISTRICT CO-OP. BANK
BY SRI.P.C.SASIDHARAN, SC, ALAPPUZHA DISTRICT CO-OP.
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07-06-2017,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
NAVANITI PRASAD SINGH, CJ
&
RAJA VIJAYARAGHAVAN V., J
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W.A. No.1116 of 2017
---------------------------------
Dated this the 7th day of June 2017
J U D G M E N T
Navaniti Prasad Singh, CJ This is an intra court appeal by the writ petitioner being aggrieved by the judgment dated 27.3.2017 passed in W.P.(C) No.33589 of 2016.
2. We have heard learned counsel for the writ petitioner/ appellant and learned Standing Counsel for the Kerala Public Service Commission (for short, 'KPSC) at length. We have also heard learned Government Pleader appearing for the 3rd respondent as also learned Standing Counsel appearing for respondents 4 to 7, who are some of the District Co-operative Banks. These banks are only notifying the vacancies.
3. The challenge was to Exts.P3 and P4. They were two advertisements issued by the KPSC in respect of filling up the post of Branch Manager in District Co-operative Banks. These two notifications prescribed educational qualifications, but, did not mention B.Com (Co-operation) as one of the qualifications therein. The writ petitioner is a member of 'Ezhava' community and had W.A. No.1116 of 2017 -: 2 :- the educational qualification of B.Com (Co-operation). In the absence of such qualification being stated in the notification, he could not apply even though on 2.11.2010, Rule 186 of the Kerala Co-operative Societies Rules, 1969 had been amended and as per the said amendment, the qualifications required for the post of Branch Manager were also amended and included B.Com (Co- operation) as additional qualification along with others. This omission being contrary to the statutory rules, wrongly deprived him of an opportunity to apply for the post in question, for which, he was otherwise eligible. He, accordingly, prayed to the Court to quash the two notifications dated 29.9.2016. The learned Single Judge dismissed the writ petition on the ground that in terms of Rule 187 of the aforesaid Rules, the applicant should have been holding a similar or higher post. The appellant was a clerk and he was aspiring to apply for the post of Branch Manager, which was not predicated in the circumstances. Hence, this intra court appeal.
4. Learned Standing counsel for the KPSC submitted before this Court that the writ petitioner was even otherwise ineligible because both these notifications were in respect of 'NCA' vacancies, that is; 'No Candidate Available', meaning thereby, W.A. No.1116 of 2017 -: 3 :- there had been an earlier notification, but, candidates were not available for the reserved post and therefore, they were carried forward as 'NCA vacancy'. Ext.P3 was in relation to Latin Catholic/Anglo Indian candidates for the district Pathanamthitta and Ext.P4 was for Ezhava, Muslim, Scheduled Caste and Latin Catholic/Anglo Indian candidates for various districts specified therein, to which, the writ petitioner was not eligible, is the submission made by the learned counsel for the KPSC.
5. We do not find any merit in the submission, inasmuch as the petitioner in the writ petition had clearly averred that he belonging to 'Ezhava' community and in the counter affidavit filed on behalf of the KPSC, in paragraph 3 clearly admitted the said fact and there is no dispute in that regard. Thus, the contention on behalf of the KPSC that the writ petitioner/appellant was not eligible on this count cannot be accepted. Thus, it is apparent that the writ petitioner was eligible as a reserve category candidate to apply, if otherwise found eligible pursuant to notification issued by the KPSC being Ext.P4.
6. On behalf of the KPSC, it was then submitted that both the notifications were 'NCA' notifications, that is; 'No Candidate Available' as noticed above. It is not disputed that in the year W.A. No.1116 of 2017 -: 4 :- 2010, Rule 186 was amended wherein, the qualification of B.Com (Co-operation) was added to the post of Branch Manager. But, it was sought to be suggested that the vacancies could have been prior to 2010 and hence, the same qualification had to be re- notified. Thus, if vacancies were prior to 2010, when B.Com (Co- operation) was not an eligibility qualification, then, failure to mention the said qualification in the present notifications was out of necessity and deliberate. We are not impressed. There are two reasons for the same.
7. Firstly, the vacancies are notified and the notification for filling them up are issued by the KPSC. They have knowledge of these facts and the information was available to them. They had the opportunity to file counter affidavit and they had filed the same. All that they said in the counter affidavit in this regard is in paragraphs 7 and 8, which are quoted hereunder :-
"7. It is submitted that the Original rank list for the post was published on 08/12/2014 and while advising candidates to the reported vacancies the turn of the community for which the present notification was issued arose. But in the absence of candidate belonging to that particular community the turn could not be filled up and that in terms of the rule, the Commission is bound to issue not less than 2 Notifications to fill up that turn. W.A. No.1116 of 2017 -: 5 :-
8. It is submitted that the NCA rank list are rank list in continuation of or to supplement the original rank list and that the qualification of the NCA Notification cannot be different from that of the Original Notification. Hence the Notification issued by the Commission prescribing the self same qualification of that of the Original Notification cannot be found fault with."
The aforesaid paragraphs are more judgmental, than giving the fact or bringing the fact on record. All we can say is what the Apex Court in relation to such pleadings had laid down in the case of Bharat Singh and others v. State of Haryana [AIR 1988 SC 2181]. In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter- affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a W.A. No.1116 of 2017 -: 6 :- counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it.
8. The second is the Full Bench of this Court in the case of Mohanan K.R. v. Director of Homeopathy and Others [2006 KHC 855 equivalent to 2006 (3) KLT 641 (FB)], wherein it was held that once the eligibility is changed, then, even in respect of 'NCA' vacancies, when fresh advertisements are issued, the new eligibility qualification has to be taken note of. Thus, there is no gain saying in either event that the 'NCA' vacancies were for the period prior to 2010, when the Rules were amended and additional qualification of B.Com (Co-operation) was brought in.
9. Now remains the only other ground, a ground which weighed with the learned Single Judge with reference to Rule 187, the substantive portion whereof is quoted hereunder :-
"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 similar or higher categories of the member W.A. No.1116 of 2017 -: 7 :- 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."
The contention that found favour with the learned Single Judge was based on the phrase "50% of the 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". The learned Single Judge accepted the argument of the KPSC that the reference to 'similar or higher category' would be to the post advertised. The learned Single Judge held that as the petitioner was a clerk, he could not aspire for the post of Branch Manager. We are unable to accept the same. The phrase has to be read as a whole. Read as a whole, the phrase refers to 'employee of similar or higher category of the member society' and not 'similar or higher category of position in any society'. It only means that the aspirant or applicant must be in service of a co-operative, which is similar or of a higher category, and the other deciding factor is educational qualification. This is the meaning discernible on W.A. No.1116 of 2017 -: 8 :- a plain and simple reading of the said phrase. That being so, we are of the view that the notification, Ext.P4, as issued by the KPSC was not in accordance with law. It wrongly deprived the writ petitioner/ appellant and his likes of an opportunity to apply for a post, for which, they were otherwise eligible.
10. Learned counsel for the appellant has also drawn our attention to the provisions of Sec.2(ia) of the Co-operative Societies Act and relevant portion of Rule 15 of the Co- operative Societies Rules, which are quoted hereunder :-
"Sec.2(ia) "District Co-operative Bank" means a central society, the principal object of which is to raise funds to be lent to its members and individuals, with jurisdiction over one revenue district having as its members any type of primary societies, Federal Co- operative Societies and Central Societies having headquarters in such revenue district, and having nominal or associate members as specified in the proviso to sub sec. (1) of Section 18."
'Rule 15. Classification of societies according to types :- After the registration of a society the Registrar shall classify the society into one or other of the following types according to the principal object provided in the bye-laws :-
W.A. No.1116 of 2017 -: 9 :-
Type Examples
1. Credit Societies
A. Short Term/Medium term
(1) Apex Kerala State Co-operative
Bank Limited.
(2) Central District Co-operative
Banks
(3) Primary (a) Primary Agricultural
Credit Societies, Service
Co-operative Banks,
Regional Co-operative
Banks, Rural Banks,
Farmers Service Co-
operative Banks, Urban
Co-operative Societies,
Agricultural Improvement
Societies
(b) Employees Credit
Societies.
AA. Insured Co-operative Bank
(1) Primary Urban Co-operative Banks
(2) Apex Kerala State Co-operative
Urban Banks Federation
Ltd.
B. Long Term
(1) Apex Kerala State Co-operative
Agricultural and Rural
Development Bank Limited
(2) Primary Primary Co-operative
Agricultural and Rural
Development Bank.
xxx xxx xxx
He is correct in submitting that reference to 'similar or higher category of member society' would only mean that if it is a W.A. No.1116 of 2017 -: 10 :- District Co-operative Bank, for which, vacancy is being advertised, it would be the Apex body, whose employees could apply or a member of the Primary Co-operative Credit Society, who could apply or from the District Bank itself. They would be similar but primary societies of other nature, who could not apply, for, there are many other primary societies in a district itself.
11. We have considered the aspect of the matter in relation to grant of relief. It would be highly unfair if we were to hold that the selection process having been carried out, then, the petitioner has missed the bus. He had come to this Court well within time even before the selection process started. Learned counsel for the appellant says that appointments have not been made so far.
In such circumstances, we are left with no other option but to quash the notification, Ext.P4, as issued by the KPSC and the concerned respondent is directed to issue fresh notification including the educational qualification as discussed above, which would give opportunity to all such candidates, who are available and could have applied but had not applied W.A. No.1116 of 2017 -: 11 :- because of the deficiency as noted above. The notification should be issued at the earliest and the process of selection be completed within a period of two months.
With the above observations and directions, this writ appeal stands disposed of.
Sd/-
NAVANITI PRASAD SINGH CHIEF JUSTICE Sd/-
RAJA VIJAYARAGHAVAN V JUDGE //True copy// P.A. To Judge Jvt/8.6.2017