IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 12TH AUGUST 2008 / 21ST SRAVANA 1930 WP(C).No. 13257 of 2007(C) -------------------------------------- PETITIONERS: --------------------- 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. BY ADV. SRI.THAMPAN THOMAS SMT.K.S.SABITHA RESPONDENTS: ---------------------- 1. PRESIDENT, ALAPPUZHA DISTRICT CO-OPERATIVE BANK, ALAPPUZHA. 2. GENERAL MANAGER, ALAPPUZHA DISTRICT CO-OPERATIVE BANK. 3. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, ALAPPUZHA. * ADDL. R4 & R5 IMPLEADED ADDL.R4: THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM-4. ADDL.R5: THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF KERALA, DEPARTMENT OF CO-OPERATION. WP(C).No. 13257 of 2007(C) * ARE SUO MOTU IMPLEADED, VIDE COMMON ORDER DATED 15/02/08 IN W.P.(C). 13257/07 (C) AND 14031/07 (U). SR. GOVERNMENT PLEADER SRI.P.K.RAVIKRISHNAN FOR ADDL. R5 ADV. SRI.V.G.ARUN,SC,ALAPPUZHA DIST.CO.OP.BA FOR R2 SRI.K.A.BALAN (AMICUS CURIAE) SRI.ALEXANDER THOMAS,SC,KPSC FOR ADDL.R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/07/2008, ALONG WITH WPC NO. 14031 OF 2007, THE COURT ON 12/08/08 DELIVERED THE FOLLOWING: W.P.(C).13257/2007-C APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE JUDGMENT DATED 18/08/06 IN W.P.(C).NO.14763/05 AND 17208/05. EXT.P2: COPY OF THE PROCEEDINGS NO.CB(3)37373/2006 DATED 08/12/06 OF THE REGISTRAR. RESPONDENT'S EXHIBITS: NIL // TRUE COPY // P.S. TO JUDGE Rs/ THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = WP(C).Nos.13257/2007-C & 14031/2007-U = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 12th day of August, 2008. JUDGMENT “CR” 1.Certain questions of fundamental character touching the rule of reservation contained in Section 80(4) of the Kerala Co-operative Societies Act, 1969, hereinafter referred to as the “Act”, require consideration in these cases. 2.WP(C).13257/2007 is filed by the beneficiaries of the order impugned in WP(C).14031/2007 filed by the Alleppey District Co-operative Bank, hereinafter referred to as the ”bank”. 3.The bank issued a notification on 16-5-1990 inviting applications for the posts of Clerks. Fifty per cent of the total vacancies were WP(C)13257 & 14031/07 -: 2 :- reserved for the employees of the member societies in compliance with the provisions of Rule 187 of the Kerala Co-operative Societies Rules, 1969, hereinafter referred to as the “Rules”. Ten per cent of the vacancies were reserved for members belonging to Scheduled Castes and Scheduled Tribes, having regard to the provisions of Section 80(4) of the Act. The written test and interview were conducted on 2- 12-1990 and 8-7-1992 respectively. This led to certain litigations since the Department decided to cancel the selection on account of certain complaints, particularly regarding reservation. Ultimately, following directions issued by this Court, the Registrar passed an order on 20-8-2003 holding that the bank had shown discrimination in the appointment of SC/ST candidates from the select list in as much as five SC/ST candidates were appointed from the society quota (from among the employees of the member societies) and only one candidate from the general quota, instead of appointing three each from the society quota and WP(C)13257 & 14031/07 -: 3 :- the general quota. The Registrar also held that since the total strength of Clerks/Cashiers was increased to 114, the SC/ST candidates were entitled to get appointment against 12 posts, but only six SC/ST candidates were appointed. Holding that the quota of SC/ST employees should be increased in proportion to the ratio stipulated in the Act and Rules, the Registrar directed the bank to provide appointment to the petitioners before him. Thereafter, WP(C).36688 of 2003 was filed mainly praying for a direction to the bank to take steps to comply with that order of the Registrar dated 20-8-2003. Another candidate, one Jyothish Kumar, challenged that order of the Registrar by filing WP(C).848 of 2004. As per common judgment dated 10-9-2004, the Registrar's order dated 20-8-2003 was quashed allowing WP(C). 848/2004. As a consequence, WP(C).36688/2003 was dismissed. This led to Writ Appeal Nos.2113 and 2127 of 2004 which were decided by the Division Bench on 26th November, 2004 – judgment is Ext.P2 in WP(C).14031/2007. The Bench was of the view WP(C)13257 & 14031/07 -: 4 :- that the Registrar had not considered all the relevant aspects with reference to the provisions of the Act and Rules and also that though the dispute was regarding the appointments made against the vacancies which arose prior to 29-4- 1995, there was not even a proper determination of the number of vacancies which arose prior to that date. It was also held that there was no proper consideration of the modalities in which the rule of reservation under Section 80(4) of the Act and that in Rule 187 of the Rules were to be reckoned and given effect to in the matter of filling up of those vacancies. It was held that the matter requires re-examination and accordingly, the Registrar's order dated 20-8- 2003 was quashed. The judgments in the writ petitions that led to the filing of the writ appeals were set aside and the Registrar was directed to consider the matter afresh. Thereafter by order dated 5-3-2005, the Registrar held that two persons are eligible additionally, for appointment from the SC/ST general quota to WP(C)13257 & 14031/07 -: 5 :- make good the backlog and to enhance the representation of SC/ST categories into three. Directions were accordingly issued as per that order dated 5-3-2005. That order was challenged in WP(C).Nos.14763 and 17208 of 2005. Those writ petitions were allowed setting aside the Registrar's order dated 5-3-2005 – judgment is Ext.P4 in WP(C).14031/2007, though there appears to be an error in the opening sentence of that judgment regarding the identity of the order that was under challenge. In that judgment, it was clearly noticed that ten per cent of the posts have to be filled up from among the candidates belonging to SC/ST communities and whatever be the method of recruitment and process of selection, it is imperative on the part of the employer bank to comply with Section 80(4) by filling up ten per cent of the posts by candidates belonging to SC/ST communities. The undisputed fact that the total cadre strength of the bank is 326, out of which, 114 posts are those of Clerks/Cashiers and six posts are those WP(C)13257 & 14031/07 -: 6 :- of Clerks/Typists, was also noticed. Following that judgment, the matter was again considered by the Registrar, resulting in the order dated 8-12- 2006 which is impugned by the bank in WP(C). 14031/2007 and which, its beneficiaries seek to enforce through WP(C).13257/2007. 4.There are no interim orders granted in WP(C). 14031/2007 in favour of the bank keeping the order impugned therein stayed or under any other embargo from being acted upon. 5.In the last round before the Registrar, the bank through its General Manager filed a statement of facts and submissions which is placed on record as Ext.P5 in WP(C).14031/2007. Going by that, the sanctioned strength of Clerks/Cashiers is 114 as in 1998. 6.For the first time, a rule of reservation in favour of Scheduled Castes and Scheduled Tribes was introduced into the co-operative sector by an WP(C)13257 & 14031/07 -: 7 :- Ordinance that came into force with effect from 25-2-1985. Section 80(4) was thus inserted into the Act. That was followed by Act 29 of 1986, published in Kerala Gazette Extra-ordinary No.1078 dated 30-1-1986, to the same effect. 7.Section 80(4) is a provision that applies on the total number of posts to which the method of appointment is by direct recruitment. Prior to that, there was no such rule of communal reservation in recruitment in the co-operative sector. In the absence of any provision making such a classification for reservation, there could be no classification of employees already in the service as on that date, on the basis of caste, creed or colour, to identify whether any of them is a member of a Scheduled Caste or Scheduled Tribe. If any venture is made in that direction, it would directly impinge on the equality principle, a seminal doctrine of the Constitution, as well as on the other protective provisions among the fundamental rights in Part WP(C)13257 & 14031/07 -: 8 :- III of the Constitution. This is further fortified by the salutary principle that if a member of a Scheduled Caste or Scheduled Tribe enters service without the aid of any rule of communal reservation, he cannot be identified as one recruited to satisfy any rule of such reservation. He will be one from the open market, without the aid of any rule of reservation. Therefore, persons already in employment in a co- operative society as on 25-2-1985, cannot be identified as against the quota statutorily reserved by the operation of Section 80(4) on the posts to which method of appointment is direct recruitment. 8.Therefore, the rule of reservation prescribed by the legislative mandate in Section 80(4) can be achieved only by making appointments against vacancies arising after the introduction of that provision, in such a manner as to ensure that by such appointments, ten per cent of the entire posts for which direct recruitment is the method WP(C)13257 & 14031/07 -: 9 :- of appointment, is manned by members of the Scheduled Castes and Scheduled Tribes, recruited with the support of that rule of reservation, on or after 25-2-1985, the date of coming into force of the Ordinance that preceded Act 29 of 1986. 9.Adv.Sri.K.A.Balan, the learned amicus curie, in support of the aforesaid, has pointed out that Rule 187 is not concerned with reservation for members of Scheduled Castes and Scheduled Tribes and that the said rule only deals with reservation from among vacancies, thereby meaning only that such number of vacancies as are required by that rule has to be earmarked for recruitment from among employees of member societies, while Section 80(4) of the Act enjoins a rule of reservation, not on the basis of vacancies but on the basis of posts. He also referred to the distinction between the expressions “posts” and “vacancies”, by making reference to R.K.Sabharwal v. State of Punjab [(1995) 2 SCC 745]; also to point out that the WP(C)13257 & 14031/07 -: 10 :- reserved category candidates can compete for non- reserved posts and in the event of their appointment to such posts, they cannot be reckoned to work out the percentage of reservation by earmarking them as against a reserved post or vacancy. S.Prakash v. K.M.Kurian [1999 (2) KLT 710 (SC) : (1999) 5 SCC 624] was profitably referred to by him to point out that whenever a ratio or percentage is prescribed in the Rules, it has to be computed on the cadre strength of posts to which the recruitment is to be made and not on the basis of vacancies existing at that time. 10.The learned amicus curiae also rightly points out that though the Registrar had issued Circular No.46/89 dated 27-2-1989 and Circular No.18/91 dated 7-6-1991 stating that ten per cent of the vacancies should be reserved for candidates belonging to Scheduled Castes/Scheduled Tribes, those circulars do not carry out the dictate of the Legislature as contained in Section 80(4) to WP(C)13257 & 14031/07 -: 11 :- ensure the reservation on the basis of number of posts and not vacancies. He is, therefore, right in pointing out that those circulars cannot, in any manner, curb the flow of Section 80(4) and hence, those circulars are only to be understood as, in no way, limiting the legal incidence of Sub-section (4) of Section 80 of the Act. Not only that, the power of the Registrar to issue such circulars can be exercised only in accordance with the provisions of the Act. Referring to State of Haryana and others v. Sumitra Devi and others [(2004) 12 SCC 322], Paluru Ramkrishnaiah v. Union of India [(1989) 2 SCC 541], Kerala Samsthana Chethu Thozhilali Union v. State of Kerala [(2006) 4 SCC 327], State of Orissa v. Mamtarani Sahoo [(1998) 8 SCC 753] and K.Kuppusamy v. State of T.N. [(1998) 8 SCC 469], Adv.Sri.Balan pointed out, quite rightly, that the circulars are mere instructions which, though may have a statutory flair, are only instructions which cannot override or alter the prescriptions of the primary legislation and WP(C)13257 & 14031/07 -: 12 :- that the power to issue circulars is only to give effect to the provisions of the Act and not to act de hors the same. Hence, Section 80(4) overrides those circulars and therefore, in its terms, runs beyond the scope of circulars 46/89 and 18/91. The reservation of ten per cent, to satisfy the mandates of Section 80(4) of the Act, has to be on the total number of posts to which direct recruitment is the method of appointment. 11.Applying the principles of law as enunciated above, it has to be held that all appointments of Clerks/Cashiers made in the bank before 25-2-1985 have to be treated as recruitments without any classification on the basis of caste, creed or colour and ten percent of the cadre strength of 114 had to be filled up by recruiting candidates belonging to Scheduled Caste/Scheduled Tribe category on or after 25-2-1985. Applying the aforesaid, the findings in the impugned order of the Registrar issued on 8-12-2006 do not, in any manner, warrant interference. As a matter of WP(C)13257 & 14031/07 -: 13 :- fact, even the said order does not give effect to the full mandate of Section 80(4) as far as the bank in question is concerned. In the result, WP(C).14031/2007 is dismissed. WP (C).13257/2007 is allowed directing that the order of the Registrar of Co-operative Societies No.CB(3)37373 dated 8-12-2006 shall be given effect to forthwith by appointing the petitioners in WP(C)13257/2007 with effect from the date of Ext.P2. Before parting, this Court records the appreciation for the effort and able assistance of Adv.Sri.K.A.Balan as amicus curiae. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/020808