IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 16TH JULY 2008 / 25TH ASHADHA 1930 WP(C).No. 15482 of 2007(R) -------------------------- PETITIONER: ------------ K.D.SOBHANA, KARIPLAVIL VEEDU YENDAYAR.P.O. KUPPAYAKUZHI, KOTTAYAM BY ADV. DR.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR SRI.M.R.JAYAPRASAD RESPONDENTS: ------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVT. CO-OPERATION (B) DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 2. KOLLAM DISTRICT CO-OPERATIVE BANK LTD. REPRESENTED BY ITS GENERAL MANAGER HEAD OFFICE, KOLLAM 3. B.MOHANAN PILLAI, TELEPHONE OPERATOR KOLLAM DISTRICT CO-OPERATIVE BANK HEAD OFFICE, KOLLAM 4. KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY P.S.C. OFFICE, PATTOM THIRUVANANTHAPAURAM GOVT:PLEADER SRI.P.K.RAVI KRISHNAN FOR R1 SRI.B.VINOD,SC,KOLLAM DIST.CO.OP.BANK LTD FOR R2 ADV. SMT.I.SHEELA DEVI FOR R3 ADV. SRI ALEXANDER THOMAS FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC/15482/2007 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1: TRUE COPY OF THE RANKED LIST PUBLISHED BY P.S.C DTD.8-10-2003 EXHIBIT P2: TRUE COPY OF THE ORDER G.O.(RT)NO.317/2003/C0-OP. DATED 16-6-2003. EXHIBIT P3 TRUE COPY OF THE LETTER NO.SDP & G/061/97-98/3850-51 DATED 20-6-2003 EXHIBIT P4: TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER DATED 25-4-2007. RESPONDENT'S EXHIBITSS: EXHIBIT R3:(A) TRUE COPY OF THE PROMOTION ORDER NO.GM/001/84-85/2728 DATED 17-5-2006 ISSUED BY THE 2ND RESPONDENT TO 3RD RESPONDENT. /true copy/ pa to Judge THOTTATHIL B. RADHAKRISHNAN, J. --------------------------------------- W.P.(C).No.15482 of 2007-R --------------------------------------- Dated this the 16th day of June, 2008 J U D G M E N T “CR” 1.The petitioner, a lady, who, going by her affidavit, was aged 45 years at the institution of this writ petition in 2007 and whose unrequited averment is that she is totally blind, was ranked third in Ext.P1, the main list that came into force with effect from 08.10.2003; published by the Kerala Public Service Commission for the post of telephone operator in the service of the second respondent, a District Co-operative Bank. Though the candidates ranked 1 & 2 did not avail the opportunity, the petitioner was not advised by the PSC because the Bank wrote Ext.P3 to it stating, inter-alia, that the vacancy of telephone operator no more exists. This was WP(C)15482/07 -: 2 :- on the premise that one Sri.S.Xavier has been regularized in the service as telephone operator pursuant to Ext.P2 government order dated 16.06.2003, that is, even before the publication of Ext.P1 ranked list, but long after that vacancy was reported to the PSC on 10.08.1999. After giving effect to Ext.P2 government order dated 16.06.2003, the Bank promoted Xavier as junior accountant. Thus, the post of telephone operator held by Xavier became vacant. In spite of the currency of Ext. P1 list, instead of appointing the petitioner at least then, the Bank, as per Ext.R3(a) order dated 17.05.2006, promoted the third respondent as telephone operator. Until then, he was working as peon. Since her Ext.P4 complaint to the Joint Registrar remained unattended to, the petitioner filed this writ petition on 23.05.2007, during the currency of Ext. P1 ranked list; seeking, inter alia, to quash the promotion of the third respondent as telephone operator; to direct the PSC to WP(C)15482/07 -: 3 :- advise for the appointment of the petitioner and to direct the Bank to appoint her as telephone operator, if necessary, by reverting the third respondent to the post of peon. 2.The petitioner’s pleadings touching, her selection, the ranked list and allied matters find corroboration in the counter affidavit filed by the fourth respondent – PSC. 3.While he does not controvert the material pleadings of the petitioner as regards her selection, entitlement, currency of the ranked list till 07.10.2007 and the non- joining of the candidates ranked 1 & 2 in the list, the third respondent states in his counter affidavit that he was initially appointed, provisionally, as peon on 13.01.1994 and was regularized in terms of the Bank’s decision dated 22.04.1995, however that the Registrar refused to approve such appointment; leading to WP(C)15482/07 -: 4 :- prolonged litigation, resulting in Ext. P2 approval order by the Government. He seeks to justify his promotion as per Ext.R3(a). 4.The Bank has not filed any counter affidavit. Its learned counsel has placed before me the approved Recruitment Rules of Bank, “RR”, for short, which came into force with effect from 30.11.1998. 5.PSC conducts the selection for appointments to the District Co-operative Banks – “DCBs”, for short – from 25.04.1995. The RR came into force with effect from 30.11.1998. The vacancy was reported to the PSC only 10.08.1999, after the RR came into force. Direct Recruitment is the only method of appointment to the post of telephone operator as per the approved RR. Therefore, the plea that the third respondent was promoted as telephone operator on 17.05.2006 as per Ext.R3(a) is unsustainable, being contrary to the RR, wherein, promotion is not a method of WP(C)15482/07 -: 5 :- appointment to the post of telephone operator. The same is illegal and contrary to the RR, which by the operation of law, is statutory. Being in infraction of the prescriptions of the Kerala Co-operative Societies Act, 1969; the “Act”, for short; and the Kerala Co-operative Societies Rules, 1969; the “Rules”, for short; Ext.R3 (a) is unauthorized and arbitrary; void and inoperative. 6.The date of commencement of the provisional engagement of the afore-noted Xavier as telephone operator is 25.01.1995; i.e. just three months before the PSC was brought into the field of recruitment to the District Co-operative Banks. Three days prior to the statutory insistence of the selection through PSC becoming operational, the Bank decided, on 22.04.1995, to regularize the services of those dealt with in Ext.P2 order, as is discernible from that document. The Joint Registrar refused to approve that. The Government permitted WP(C)15482/07 -: 6 :- them to continue provisionally and ultimately, passed Ext.P2 order on 16.06.2003, setting aside the decision of the Registrar, taking a lenient view. The Joint Registrar was to take further action in the matter. Assuming that action to be in order, the petitioner who stood included in Ext. P1 ranked list that came into force with effect from 08.10.2003, ought to have been given the appointment at least immediately after Xavier was promoted as junior accountant. Instead, the said vacancy was filled up by the unauthorized promotion of the third respondent on 17.05.2006, as per Ext.R3(a), contrary to the RR, which prescribes direct recruitment as the sole method of appointment to the post of the telephone operator. I may also note that the third respondent has not refuted the petitioner’s allegation that he was unqualified for that post. If the Joint Registrar had received Ext.P4 complaint of the petitioner, that authority ought not to have remained a mute spectator to this WP(C)15482/07 -: 7 :- drama of trauma to the petitioner, a visually challenged woman, nearing the benchmark of turning over-aged for recruitment to public service. If the leniency and benevolence that the Government showed to Xavier, the third respondent and others, while issuing Ext.P2 decision, on the ground that they would be over-aged is treated as a principle of administrative fairness, the petitioner, a successful open market candidate, has been denied even that. Incidentally, the third respondent’s plea that he is not aware that the petitioner is a handicapped person and that the post is not meant for the said quota, needs to be recalled to state that Ext.P1 is a main list and the petitioner’s claim is on her merit and not for any preferential treatment on account of she being visually challenged. 7.It was argued that the second respondent is a co-operative society; no writ would lie against it and that a mandamus would not WP(C)15482/07 -: 8 :- issue to compel it to make an appointment . 8.The laudable object and purpose of bringing the DCBs under the purview of the Public Service Commission is to maintain purity in selection and appointment to DCBs, which provide a large chunk of employment in Kerala. That itself is a statutory provision – Sub-sections (3A) and (3B) of Section 80B of the Act. That command is against direct recruitment otherwise than through the PSC. The RR provides only direct recruitment as the method of appointment to the category of telephone operator. When the law prescribes that a particular thing shall be done in a particular manner, it shall be done only so and not otherwise. This is the command of Rule of Law. The DCBs are bound to act in terms of the Act and Rules. The approved RR lives by the statutory regulations and commands in the law under which they are approved by the duly authorized agent of the sovereign, the appropriate statutory WP(C)15482/07 -: 9 :- authority. When one bestowed with public or statutory duty, fails to obey that command of the Rule of law, a writ in the nature of mandamus would issue even if he who is so obliged, does not fall squarely within the sweep of the term “State” for the purpose of Article 12 of the Constitution of India. 9.As already noticed, a peon cannot be promoted to that post; the simple reason being that, the only method of appointment prescribed in the RR for appointment of telephone operator is direct recruitment. Therefore, not much labour is required to unequivocally state that the appointment of the third respondent to that post as per Ext.R3(a) on 17.05.2006 was contrary to the laws. That was done when the ranked list following the open competition conducted by the PSC was available. That promotion was made by excluding the opportunity for direct recruitment and depriving the selected one, the petitioner from WP(C)15482/07 -: 10 :- employment, to earn her livelihood and live utilizing that provision. This has resulted in the negation of her fundamental rights referable to Part III of the Constitution, in particular Article 21; all the more so because, the petitioner, a visually challenged woman, aged 45 years at the time of filing writ petition, had attained the qualification that would enable her to sustain by working for her livelihood. Petitioner’s is an attempt of a differently able person to sustain in the midst of deprivation. In the constitutional conspectus, by exclusion of the appointment, the petitioner was deprived of her fundamental right to life guaranteed under Article 21. So much so, I have no hesitation to hold that, to give effect to such fundamental right of the petitioner, the second respondent is liable to be commanded to remove the third respondent from the post of telephone operator and to appoint the petitioner against that vacancy from the date on which the third respondent WP(C)15482/07 -: 11 :- was promoted as the telephone operator. 10.That apart, the petitioner filed the writ petition only after remedy eluded her, in spite of Ext. P4 complaint before the Joint Registrar, who by the quality of authority bestowed on him by the Act and the Rules, could have rescued the petitioner from the injury and hardship that fell on her by the illegality committed by the Bank in the matter, as found herein. When even that statutory authority has failed to rectify the illegality, leading the petitioner to wobble in the resultant misery, it is within the parameters of Article 226, for this Court to step in and render justice, by issuing such writ, direction or order as deemed fit to render justice in accordance with the Constitution and the laws. 11.For the foregoing reasons, the plea that this writ petition is not maintainable and as to the lack of authority of this Court to grant relief under Article 226 of the WP(C)15482/07 -: 12 :- Constitution of India on the facts of this case are rejected. 12.Yet another contention advanced is that, as of now, Ext.P1 list has expired and that therefore no direction could be issued to effect appointment from that list . The list was very much alive when the third respondent was unlawfully promoted, though direct recruitment was the only mode that could be resorted to in terms of the statutory rules. The list continued to be alive when the writ was filed and this Court admitted the matter. Inexcusable infringement of fundamental rights having been clearly established, the continued currency of the list as on this day is not necessary to render justice, particularly when the direction to appoint is being issued to be with effect from the date on which the third respondent was promoted, during the currency of the list. The defence contention in this regard is therefore overruled. WP(C)15482/07 -: 13 :- 13.On the question of moulding the reliefs that could be granted to the petitioner in this case, it is noted that if the petitioner is appointed as telephone operator with effect from the date on which the third respondent was promoted to that post, she would be entitled to arrears of backwages which, by this time, would be around Rs.2.5 lakhs. The learned counsel for the bank points out that the second respondent may be exempted from such sufferance since the petitioner approached this Court only on 23.05.2007. However, the facts disclose that the petitioner has been deprived of her legitimate entitlement to be appointed. It is not as if the second respondent did not want to have a telephone operator. Even after Xavier was promoted to be the junior assistant, the third respondent was posted as telephone operator. The loss was only for the petitioner. This Court cannot loose sight of the fact that India being a signatory to WP(C)15482/07 -: 14 :- the Proclamation on the Full Participation and Equality of People with Disabilities in Asia and the Pacific Region, adopted in the Meeting of the Economic and Social Commission for Asia and Pacific Region in December, 1992, this Nation is obliged to. ensure even by suitable legislation, the creation of a barrier-free environment for persons with disabilities and for special provisions for the integration of such persons into the social main stream. It is also obligatory under that Proclamation, to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, employment, rehabilitation etc., of persons with disabilities. The petitioner has suffered the discriminatory exclusion from the employment to which she was selected, even after the enactment of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, though she had made it to Ext.P1 list, by her merits, even WP(C)15482/07 -: 15 :- without the support of the said social security measure by legislation. It is also stated by the learned counsel for the bank at this point of time that the petitioner had approached the Human Rights Commission on the same issue and the matter is pending there and she may have to withdraw those proceedings. I am clear in my mind that if the respondents concede to this judgment and give effect to it within a period of one month of receipt of its certified copy, the proceedings before the Human Rights Commission would be naturally dropped by that authority on production of a copy of this judgment and proof of compliance. For the aforesaid reasons, this writ petition is allowed quashing the decision contained in Ext.R3(a) and directing the fourth respondent to advise for the appointment of the petitioner to the post of telephone operator in the Head Office of the second respondent bank, following which the second respondent will so appoint her WP(C)15482/07 -: 16 :- with effect from the date on which the decision contained in Ext.R3(a) was taken. The second respondent will pay to the petitioner a consolidated amount of Rs.50,000/- (Rupees fifty thousand only) towards any component of prevented wages, costs of this litigation and incidentals. THOTTATHIL B. RADHAKRISHNAN, Judge. bps