IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 27TH FEBRUARY 2009 / 8TH PHALGUNA 1930 WP(C).No. 29950 of 2004(M) -------------------------- PETITIONER: --------------- LATHEESH KUMAR K., S/O. N.KUTTAN, VIRUVILAGATHU VEEDU, KOLIYOOR, MUTHAKAD P.O., THIRUVANANTHAPURAM 695 323 BY ADV. SRI.P.SHRIHARI SMT.P.VANI RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, THIRUVANANTHAPURAM. 2. KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. 3. JACQULINE E.W. D/O. WILSON L., ADEENA COTTAGE, MARUKIL, URUTAMBALAM, MALAYINKEEZHU P.O., NEAR PLAVILA CHURCH, THIRUVANANTHAPURAM. ADDL.R4. GENERAL MANAGER, PATHANAMTHITTA DISTRICT CO.-OPERATIVE BANK, PATHANAMTHITTA. (IMPLEADED AS PER ORDER DT. 17.3.06 IN I.A.3942/06.) SPECIAL GOVT. PLEADER SRI.P. SANTHOSH KUMAR FOR R1 ADV. SRI.ALEXANDER THOMAS,SC,KPSC FOR R2 SRI.P.C.SASIDHARAN, SC DIST CO.OP.BANK, PT FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXTS: EXT.P1 TRUE COPY OF PETITIONER'S CASTE CERTIFICATE. EXT.P2 TRUE COPY OF CALL LETTER SENT BY R2 TO THE PETITIONER. EXT.P3 TRUE COPY OF PETITIONER'S REPRESENTATION & AD CARD. /TRUE COPY/ K. BALAKRISHNAN NAIR & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C).No. 29950 of 2004 M - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of February, 2009 JUDGMENT Balakrishnan Nair, J. The petitioner was a candidate, included in the rank list published by the Public Service Commission (P.S.C.), for appointment to the post of Clerk-cum-Cashier in the Pathanamthitta District Co-operative Bank. The rank list was published on 18.9.2001. The petitioner is a candidate belonging to Hindu Nadar community. He was Rank No.98 in the general list. When the turn of Nadar community arose, as per the original roster point at 49, the third respondent was advised by the P. S.C. In fact, by that time the judgment of the Division Bench of this Court dated 20.8.2000 in Hindu Nadar Corporation v. State of Kerala (2000 (3) KLT 740) was pronounced, as per which, Hindu Nadar and Hindu Nadar converted to Christianity have to be segregated for the purpose of application of communal W.P.(C).No. 29950 of 2004 2 rotation. Ignoring that judgment, the third respondent was advised. On coming to know of that advice, the petitioner filed this Writ Petition on 11.10.2004 The petitioner prayed for following the declaration of law made by the Division Bench of this Court mentioned above, in the matter of advising candidates from the Nadar community. 2. The P.S.C. has filed a counter affidavit, in which it is admitted that the third respondent was advised as per the Rules, which were in force earlier to the pronouncement of the judgment by the Division Bench. Therefore, the Commission took a general decision to cancel the advice made after 20.8.2000 and before 22.5.2003, in respect of S.I.U.C. Nadar community candidates against Nadar community quota after issuing show cause memo and to further advice eligible Hindu Nadar candidates. Because of the pendency of this Writ Petition, the said decision was not implemented in the case of the rank list for appointment in the Pathanamthitta District Co.operative Bank. 3. The learned counsel for the Pathanamthitta District Co- operative Bank submitted that the third respondent did not join duty W.P.(C).No. 29950 of 2004 3 and the Non Joining Duty (N.J.D.) vacancy has been reported to the P.S.C. Admittedly, the said vacancy was reported after the expiry of the rank list. If the petitioner is claiming appointment as the next person in the rank list, he is ineligible, as the vacancy reported after the expiry has to be filled up only from the subsequent rank list. But, in this case, the petitioner is claiming appointment in the place of the third respondent. In the case of Government servants, it is pointed out, that the appointments made earlier were saved by a general order issued by the Government under Rule 39 of the Kerala State and Subordinate Service Rules, 1958. It is not known whether there is any such order in the case of bank employees invoking the provisions under the Kerala Co-operative Societies Act and the Rules framed thereunder. Any way, in this case, there was no question of saving the appointment of the third respondent as she never joined duty. 4. In view of the facts of the case, we are of the view that the petitioner is entitled to get advice to the vacancy, in which the third respondent was advised. Accordingly, the P.S.C. is directed to advise the petitioner to the vacancy, to which the third respondent was W.P.(C).No. 29950 of 2004 4 advised earlier. The P.S.C. shall do the same within two months from the date of production of a copy of this judgment. This direction is issued based on the claim of the petitioner that he is the next eligible candidate belonging to Hindu Nadar community in the rank list, who should have been advised in the place of the third respondent. If the said claim of the petitioner is not found correct, the P.S.C. need not advise him. On receipt of the advice the 4th respondent shall appoint him to one of the exiting or arising vacancies. In other words, to accommodate the petitioner, no employee shall be retrenched. 5. The Writ Petition is disposed of as above. (K. BALAKRISHNAN NAIR) Judge (M.L. JOSEPH FRANCIS) Judge tm