IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 27TH JANUARY 2009 / 7TH MAGHA 1930 WA.No. 2105 of 2008() --------------------- AGAINST THE JUDGEMENT IN WPC.13257/2007 Dated 12/08/2008 .................... APPELLANTS: RESPONDENTS 1 & 2 ------------------------------- 1. THE PRESIDENT, ALAPPUZHA DISTRICT CO-OPERATIVE BANK LTD., ALAPPUZHA. 2. THE GENERAL MANAGER, ALAPPUZHA DISTRICT CO-OPERATIVE BANK LTD., ALAPPUZHA. BY ADV. SRI.M.K.DAMODARAN, SENIOR ADVOCATE SRI.P.K.VIJAYAMOHANAN RESPONDENTS: PETITIONERS 1 TO 4 & RESPONDENTS 3 TO 5 ------------------------------------------------------ 1. M.ANANDAVALLY, VALOORTHARAYIL, CHERUKOL P.O., MAVELIKKARA. 2. C.RAJAMMA, KALARIVATHUKKAL VADAKKETHIL KANDIYOOR, THATTAMBALAM P.O., MAVELIKKARA. 3. K.V.GANGADHARAN, KALIYILVILAYIL HOUSE, 10TH WARD, VALLIKKUNNAM, MAVELIKKARA. 4. V.D.SOMAN, NIKATHIL, VAYALAR P.O CHERTHALA. 5. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, ALAPPUZHA. 6. THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. 7. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF KERALA, DEPARTMENT OF CO-OPERATION, THIRUVANANTHAPURAM. ADV. SRI.THAMPAN THOMAS FOR R1 TO 4 ADV SRI.ALEXANDER THOMAS,SC,KPSC FOR R6 SPL. GOVERNMENT PLEADER SMT. A.G. ANITHA FOR R5 & 7 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 27/01/2009, ALONG WITH WA NO. 2106 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & K.SURENDRA MOHAN, JJ. ------------------------------------------------------------------------------------ W.A NOS: 2105 & 2106 OF 2008 ----------------------------------------------------------------------------------- Dated this the 27th January, 2009. JUDGMENT BALAKRISHNAN NAIR, J. Writ Petition (Civil) No: 13257/2007 was filed by four candidates, claiming appointment to the post of Clerk in the Alappuzha District Co-operative Bank and praying to implement order No:CB(3)37373/2006 dated 8.12.2006 of the Registrar of Co- operative Societies, Trivandrum. Writ Petition (Civil) No: 14031/2007 was filed by the Alappuzha District Co-operative Bank, challenging the said order of the Registrar of Co-operative Societies. They were heard together and disposed of by the learned Single Judge, by a common judgment dated 12.8.2008. The Alappuzha District Co-operative Bank, feeling aggrieved by the said judgment, has preferred these two appeals. Since the appeals are directed against the common judgment mentioned above, they are heard and disposed of together. W.A.2106/2008 2. This appeal is directed against the judgment in W.P(C) 14031/2007, repelling the challenge made by the Alappuzha W.A.Nos: 2105 & 2108/2008 2 District Co-operative Bank (hereinafter referred to as the 'Bank') against Ext.P1 order of the Registrar of Co-operative Societies dated 8.12.2006. The brief facts of the case are the following:- 3. Respondents 1 to 5 were candidates, who applied for the post of Clerk in the appellant Bank. The notification inviting applications for the said post was issued on 16.5.1990. In the light of Rule 187 of the Kerala Co-operative Societies Rules as it stood then, for 50% of the vacancies experience in member Co-operative Societies was an additional qualification. Taking into account the mandate of Section 80(4) of the Kerala Co-operative Societies Act, 10% of the vacancies were reserved to be filled up by candidates belonging to Scheduled Caste/Scheduled Tribe communities. The written test for the selection was held on 2.12.1990 and the interview on 8.7.1991. But, the appointments could not be made in time because of the pending litigations concerning the number of posts to be set apart for the members of the Scheduled Caste/Scheduled Tribe communities. Finally, the selection was finalised on 17.7.1998, by publishing a list of 53 candidates and all of them were appointed from that list by order dated 18.7.1998. One candidate belonging to Scheduled Caste community was appointed in the open competition quota and five candidates belonging to Scheduled Caste/Scheduled Tribe communities were W.A.Nos: 2105 & 2108/2008 3 appointed from among the candidates coming under the society quota. 4. The party respondents and others moved the Registrar, complaining that the rules of reservation were not properly applied while making the appointments. The Registrar of Co-operative Societies, after hearing the complainants and the Bank, held that the members of the SC/ST communities should have been appointed in 12 vacancies, but appointments were made only to six vacancies. Therefore, the Registrar ordered to give appointment to the candidates who approached him, complaining about the above irregularity. The said order was challenged before this Court in W.P(C) 848/2004. W.P(C) 36688/2003 was filed by a candidate praying to implement it. Those writ petitions were disposed of by a learned Single Judge, by a common judgment dated 10.9.2004, quashing the Registrar's order dated 20.8.2003. That means Writ Petition (Civil) No: 848/2004 was allowed and Writ Petition (Civil) No: 36688/2003 was dismissed. Writ Appeal Nos: 2113 and 2127 of 2004 were filed against the said common judgment. Those appeals were heard and disposed of by a Division Bench of this Court by Ext.P2 judgment. Though the decision of the learned Single Judge was interfered with, the order of the Registrar dated 20.8.2003 was quashed. The Registrar was directed to take a fresh W.A.Nos: 2105 & 2108/2008 4 decision in the matter, taking into account the impact of Section 80 (4) of the Kerala Co-operative Societies Act and Rule 187 of the Kerala Co-operative Societies Rules. 5. Pursuant to the said judgment, the Registrar passed Ext.P3 order dated 5.3.2005. The Registrar held that two more persons are eligible to get appointment under SC/ST quota. So, it was ordered to appoint two persons from the rank list published in 1998, if necessary, by creating two supernumerary posts. Respondents 1 to 5 herein challenged the said order, by filing Writ Petition (Civil) Nos: 14763 and 17208 of 2005. The learned Single Judge quashed the said order and again directed the Registrar to reconsider the matter. It was held that the finding of the Registrar in the order impugned was not in tune with the provisions of Section 80(4) of the Kerala Co-operative Societies Act. It was also observed that the reservation introduced to the employees of primary co-operative societies in 2000 may not have any bearing on the reservation available to the members of SC/ST communities. Pursuant to the said judgment the matter was again reconsidered by the Registrar and the present impugned order Ext.P1 was passed. After quoting the judgment of the learned Single Judge the Registrar as per Ext.P1 issued the following directions:- “Having perused the relevant documents/records and the arguments put up by the parties, and in W.A.Nos: 2105 & 2108/2008 5 compliance with the judgment of the Hon'ble High Court I am of the view that the petitioners are in litigation since 1998, and they are overaged and the remaining service, if they got appointment will come below 10 years. Considering the fact that the petitioners are belonging to SC/ST Communities and hailing from financially weak families, the bank shall give appointment to the petitioners in WP(C) No: 14763 of 2005 and W.P(C) No: 17208/2005, as clerk, immediately. If there is no vacancies to appoint the petitioners, they shall be appointed in supernumerary posts and the above post will be ceased to exist against the future vacancies.” 6. Challenging the said order, the Bank filed Writ Petition (Civil) No: 14031/2007. Praying to implement that order respondents 1 to 4 herein filed W.P(C) 13257/2007. After hearing both sides the learned Single Judge dismissed Writ Petition (Civil) No: 14031/2007 and allowed W.P(C) No: 13257/2007. A direction was issued to appoint forthwith the petitioners in W.P(C) 13257/2007. 7. Aggrieved by the said common judgment, the Bank has come up in appeal, challenging the direction of the learned Single Judge. Learned Senior Counsel Mr. M.K.Damodaran, who appeared for the Bank, submitted that by virtue of Section 80(3A) of the Kerala Co-operative Societies Act, at present, appointments in the Bank are made on the advice of the Public Service Commission. There is a live list published by the PSC for appointment to the post of Clerk. The learned counsel also pointed out that going by Rule W.A.Nos: 2105 & 2108/2008 6 187 of the Kerala Co-operative Societies Rules, 50% of the vacancies are set apart for the employees of member societies and 50% to open market candidates. There were only 53 vacancies available for appointment from the rank list published in 1998. So, the maximum vacancies that could have been set apart for the members of the SC/ST communities were only 6. In fact six candidates were actually appointed also. One was appointed from the open market and five from the society quota candidates. Annexure 1 produced along with the appeal memorandum is the rank list of candidates belonging to SC/ST communities, published for filling up the quota reserved for them. Since six candidates were actually appointed, no further vacancies are available for appointment of SC/ST candidates. It is also pointed out that the society quota candidates have exceeded the maximum permissible limit of 50%. Out of 53 vacancies 28 candidates were appointed from the society quota. So, there cannot be any further appointment from the said quota, it is submitted. W.A.Nos: 2105 & 2108/2008 7 8. We heard learned counsel Mr. Thampan Thomas, appearing for respondents 1 to 4 and also Mr. K.A. Balan, learned counsel appearing for the fifth respondent. We also heard the learned Government Pleader appearing for respondents 6 and 8 and the learned standing counsel for respondent No:7 Public Service Commission. 9. Learned counsel Mr. Thampan Thomas submitted that the society must have set apart 12 vacancies for appointment of SC/ST candidates. Now, only six were appointed under the SC/ST quota and there are six vacancies remaining unfilled. So, the Registrar has issued an order in favour of the petitioners, who were pursuing their claim ever since the appointments were made in 1998. So, there is nothing wrong with the order of the Registrar and the judgment of the learned Single Judge, it is submitted. Learned counsel for the fifth respondent also supported the above submissions and added that going by Section 80(4) of the Kerala Co-operative Societies Act, reservation has to be applied with reference to the cadre strength. If that be so, 12 vacancies were available for the members of the SC/ST. Only 6 persons were appointed under the SC/ST quota and therefore, there is a dearth of six. So the direction issued by the Registrar and the judgment of the learned Single Judge directing to implement the same are legal W.A.Nos: 2105 & 2108/2008 8 and valid, it is submitted. 10. Section 80(4) reads as follows:- “Notwithstanding anything contained in sub- section (1) or sub-section (2), ten percent of the posts of employees of every society shall be reserved for appointment from persons belonging to the scheduled castes and scheduled tribes where the method of appointment to such posts is by direct recruitment.” Going by the above quoted Section, 10% of the posts are to be reserved and not vacancies. The reservation was introduced in making appointments to Co-operative Societies with effect from 30.1.1986. There may be some members of the SC/ST appointed earlier. But, they were so appointed as open market candidates and not based on any reservation. So, even if a few members of the SC/ST communities are there in the service of the Bank, who joined service before 30.11.1986, they should be treated as candidates under the open quota and not under the reserved quota. So, the reservation has to be applied with reference to the number of posts available, having due regard to the vacancies available in those posts at the time of recruitment. Since the cadre strength of clerk/typists will come to about 120, we agree with the contention of the respondents that while making recruitment to 53 vacancies 12 of them should have been set apart for the members belonging to SC/ST communities. 11. But, going by the decision of the Registrar impugned W.A.Nos: 2105 & 2108/2008 9 before the learned Single Judge, we notice that, that decision does not take into account Ext.P2 judgment of the Division Bench of this Court or Ext.P4 judgment of the learned Single Judge. A direction has been issued in favour of the writ petitioners by the Registrar for the reason that they were litigating in the matter since 1998, they are over-aged and only a few years service alone is left and they belonged to financially weak families. Without any reference to their merit in the rank list, the Registrar directed appointment of the persons who approached him. We think that the view taken by the Registrar in Ext.P1, the relevant portion of which we have quoted above, cannot be supported. If the Registrar issues a direction to make appointment from the rank list according to merit, the same could have been sustained. In this case we notice that among the persons listed in Annexure 1 produced along with W.A.2105/2008, persons up to rank No:11 could have got appointment had the appointments been made strictly according to merit and the cadre strength. But, we notice that among the first eleven persons in the rank list, only Mr. Suresh Babu, Sarvodayapuram CVCS A.566 and Mr. K.V.Gangadharan, Thekkekara HSCS A.723 have approached the Registrar complaining about the application of reservation. Ext.P1 order has been issued in favour of the said two persons apart from three others. Thus, the said W.A.Nos: 2105 & 2108/2008 10 two persons alone could have got appointment, if appointments were made strictly in accordance with the merit of the candidates. So, we set aside the order of the Registrar, Ext.P1, to the extent it directs to give appointment to all the five persons who approached him and it is ordered that only M/s. K.V.Gangadharan and Suresh Babu alone are entitled to get appointment. 12. Learned counsel for the party respondents Mr. Thampan Thomas submitted that the persons who did not approach the Registrar seeking reliefs might have got employment elsewhere. If that be so, if appointments were made as per the seniority list other party respondents also might have got appointment, it is submitted. These are all guess work and based on such suggestions we cannot sustain a direction to appoint persons who approached the authorities. It is well settled that appointments in Co-operative Societies should be made according to merit. Any direction to the contrary issued by the Registrar cannot be sustained. 13. We notice the contention of the learned counsel for the appellant that at present the appointment is made on the advice of the Public Service Commission. But, we find that except in the present writ petition, no such claim/objection was ever made by the Bank before the Registrar or before this Court, though there W.A.Nos: 2105 & 2108/2008 11 were three rounds of litigation earlier. So, it is too late to raise that contention before us. 14. In the result, we allow the Writ Appeal in part and modify the direction of the learned Single Judge to implement Ext.P1. Appointments need be given only to M/s. K.V.Gangadharan and Suresh Babu. If there are vacancies available, they shall be appointed now or if there are no vacancies, they shall be appointed in the next arising vacancies and their appointments will have notional effect from 8.2.2006, the date of Ext.P1. They will be entitled to draw emoluments from the date of actual assumption of charge by them. W.A.2105 of 2008 The judgment in W.A. No: 2106/2008 will govern this case also. K.BALAKRISHNAN NAIR Judge K. SURENDRA MOHAN Judge jj K.K.DENESAN & V. RAMKUMAR, JJ. ---------------------------------------------------- M.F.A.NO: ----------------------------------------------------- JUDGMENT Dated: