IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM MONDAY, THE 14TH DAY OF NOVEMBER 2011/23RD KARTHIKA 1933 WP(C).No. 31208 of 2010 (A) --------------------------- PETITIONER(S): ------------------------ RAMANI P.I., CHAKKARAYIL HOUSE, AZHINJILAM, MALAPPURAM DISTRICT. BY ADVS.SRI.P.N.MOHANAN SMT.I.VINAYAKUMARI RESPONDENT(S): ---------------------------- 1. THE SECRETARY, VAZHAYOOR SERVICE CO-OPERATIVE BANK, LTD NO.D.1898, AZHINJILAM, MALAPPURAM DISTRICT.PIN-676 505 2. PRESIDENT, REPRESENTED BY MANAGING COMMITTEE OF VAZHAYOOR SERVICE CO-OPERATIVE BANK, LTD.NO.D.1898, AZHINJILAM, MALAPPURAM DISTRICT.PIN-676 505 3. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, (G), MALAPPURAM.PIN-676 505 4. REGISTRAR OF CO-OPERATIVE SOCIETIES,MALAPPURAM.676 505 5. SECRETARY, KERALA CO-OPERATIVE SERVICE EXAMINATION BOARD, OVER BRIDGE JUNCTION, TRIVANDRUM.PIN-695 005 R1 & R2 BY ADV. SRI.M.SASINDRAN R5 BY ADV. SRI.P.U.SHAILAJAN,SC,CO-OP.SERVICE EXAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-11-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.31208/2010 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE RANK LIST P2 COPY OF THE FEEDER CATEGORY APPROVED BY THE JOINT REGISTRAR DATED 16/4/2010 FOR PROMOTION. P3 COPY OF THE REQUEST DATED 7/6/2010 SENT BY THE PETITIONER TO THE SECRETARY OF THE BANK IN REGISTERED POST. P4& P5 COPY OF THE REQUEST SENT BY THE PETITIONER TO THE 2ND AND 3RD RESPONDENTS. P6 COPY OF THE LETTER DATED 25/6/2010 OF THE REGISTRAR. P7 COPY OF THE REQUEST DATED 6/7/2010 BEFORE THE JOINT REGISTRAR. P8 COPY OF THE LETTER DATED 27/9/2010 SENT TO THE REGISTRAR. P9 COPY OF THE LETTER DATED 27/7/2010 OF THE REGISTRAR. P10 COPY OF THE STAFF LIST OF THE BANK DATED 10/6/2010 P11 COPY OF THE DETAILS OBTAINED UNDER RIGHT TO INFORMATION ACT DATED 16/8/2010 P12 COPY OF THE JUDGMENT REPORTED IN 2010 (1) KLT 541 P13 COPY OF THE COMMUNICATION DATED 20/9/2010 OF THE BANK P14 COPY OF THE JUDGMENT REPORTED IN 2000(3) KLT 389. RESPONDENT'S EXHIBITS: R1(A) COPY OF THE ORDER OF THE 3RD RESPONDENT. /TRUE COPY/ P.A.TO.JUDGE sts C.K. ABDUL REHIM,J. ------------------------------------------------- W.P.(c) No.31208 OF 2010 ------------------------------------------------- DATED THIS THE 14th DAY OF NOVEMBER, 2011 J U D G M E N T Petitioner is a person holding requisite qualification for appointment as a Junior Clerk in a Primary Co-operative society. Respondents 1 and 2 had initiated steps for appointment of Junior clerks against the notified vacancies, through the 5th respondent, the Kerala Co-operative Service Examination Board. Exhibit P1 is the Rank List prepared after conducting written test and interview. Petitioner is Rank No.9 in Ext.P1. The list came into force with effect from 26-06-2008. It is stated that, the respondents 1 and 2 is a Bank categorised as in Class II, entitled to appoint 7 Clerks as per Appendix to the Kerala Co-operative Societies Rules as provided under Rule 188. According to the petitioner the validity of Ext.P1 Rank List is for a period of 2 years from 22-06-2008, as per Rule 182 (4) (vii). After publication of Ext.P1 list, the respondents 1 and 2 sent appointment orders to 8 persons in the Rank List. But only 4 W.P.(c) No.31208/2010 -2- candidates have joined duty. According to the petitioner on the 4 candidates joining duty, the strength of clerks has became 6. Since 7 post of clerks are available, the petitioner made representation to respondents 1 and 2. It is further contended that, one Clerk in the service of the respondent Bank, namely Mr. Naveen had resigned on 04-06-2010, during the validity period of Ext.P1 Rank List. There are also retirement vacancies in the higher cadre which need be filled up by promoting the existing clerks. But the request of the petitioner was declined through Ext.P13 resolution taken by the Bank stating that since 4 persons have already been appointed from Ext.P1 Rank List and since no vacancy is available at present as per the approved staff pattern, the petitioner cannot be given appointment. In this writ petition the petitioner is challenging Ext.P13 and also seeking direction to issue appointment to the petitioner. 2. Contention of the petitioner is that the staff pattern of primary society is governed by Appendix attached to the W.P.(c) No.31208/2010 -3- Kerala Co-operative Societies Rules. Going by the pattern, the respondent Bank, being one included in the category-II is entitled for appointment of 6 clerks. Since working capital of the Bank exceeds to Rs.2.3 crores, the Bank is entitled to for one additional post. Apart from that, since the Bank has got two branches an additional number of two clerks can be appointed. Therefore, according to the petitioner the total number of clerks who can be appointed in the Bank is 9 (6+1+2). Petitioner relies on a Division Bench decision in Elampal Service Co-operative Bank Ltd. V. Govt. of Kerala (2000 (3) KLT 389) wherein this Court held that for appointing staff in accordance with the staff pattern fixed in Appendix-III to the Rules, considering the type and class to which the society belongs, no approval of the Registrar is necessary. Approval is required only if a change in the pattern is necessary. Therefore, it is contended that the rejection of appointment sought for by the petitioner assigning the reason there is no sanctioned posts is unsustainable. It is further contended W.P.(c) No.31208/2010 -4- that when a Rank List prepared by the 5th respondent is in currency, the respondents 1 and 2 had an obligation to make appointment from the said Rank List, with respect to vacancies arising during currency of the Rank List notwithstanding the fact that such vacancy was not notified while inviting the applications. In this regard the petitioner relies on a Division Bench decision of this Hon'ble Court in Kodakara Farmers Service Co-operative Bank Ltd. V. Neena (2010 (1) KLT 541). This Court held that action on the part of the Society in not filling up vacancies that arose during validity of the list prepared pursuant to the examination conducted by the Board, is not justified and that the vacancies that arise during validity of the list have to be filled up from the list prepared. Referring to Rule 182 (4) (vii) and (viii), the dictum laid by this Court to the effect that, as long as the list is remaining valid all appointment need to be made from the list, with respect to any vacancy arising during currency of the list. W.P.(c) No.31208/2010 -5- 3. In the counter affidavit filed by the 1st respondent it is denied that 3 vacancies are existing in the cadre of 'Junior Clerk'. According to the respondent, as per appendix-III when the working capital of class II bank is above Rs.4 Crores, the maximum number of Junior Clerks/Junior Cashier/Typist/Appraiser which can be appointed is only 5. Learned counsel Sri. M. Saseendran had pointed out that with respect to appointment of additional staff, sanction of the Registrar is necessary, as per the Notes to Appendix-III. Ext.R1 (a) is produced to show that the staff pattern in the 1st respondent Bank was revised by proceedings of the Joint Registrar of Co- operative Societies, dated 09-07-2010. Accordingly the post of Senior Clerk/Junior Clerk is limited as 5. It is further stated that the appointment of one Mr. Subrahmanian to the post of clerk itself was an excess appointment made after fixation of staff pattern and therefore the resignation of Mr. Naveen on 04-06-2000 has not created any vacancy to which the petitioner can be appointed. W.P.(c) No.31208/2010 -6- 4. Sri. P.N. Mohanan, learned counsel for the petitioner denies the factual situation on the basis of Ext.P10 list of employees in position, which was obtained under the provisions of Right to Information Act. It is pointed out that as per Ext.P10, six clerks already working in the Bank is against the alleged sanctioned post of 5 numbers as claimed by the respondent bank. 5. Considering the rival contentions on the factual aspects, as narrated above, the question arises as to whether the respondent Bank is justified in not making any further appointment from Ext.P1 Rank List on the basis that they do not have any sanctioned post of clerk available. So also the question remains as to whether there arose any fresh vacancy apart from the vacancy notified during the currency of the Rank List. Yet another question arose that, even assuming there existed a vacancy, whether the Bank was justified in not making appointment against the sanctioned strength intimated by the Joint Registrar. Contention of learned counsel for the petitioner is based on W.P.(c) No.31208/2010 -7- the ruling of this Court cited above, that no sanctioning of post is required for appointment of a staff as per the strength provided in Appendix-III. Then also the question arise as to whether the Bank is bound to make appointment if it was an additional post sanctioned. As pointed out by the learned counsel for the respondent Bank, the Bank is in bad financial condition and they are not proposing to make any additional appointment considering such situation. Per contra Sri.P.N. Mohanan contended that such a reason was not mentioned in Ext.P13 resolution nor such contention was taken in the counter affidavit. 6. Further, a pertinent question arises as to whether the petitioner can seek for enforcement of any right to get appointment in the respondent Bank. In other words, whether the mere inclusion of the name in the Rank List will gives raise any statutory right for appointment. Considering the factual aspects prevailing, I am of the view that the question posed as above need not be adjudicated in view of the fact that the petitioner had already brought her W.P.(c) No.31208/2010 -8- grievances before the Registrar and the Registrar had forwarded the representation for proper action to be taken by the Joint Registrar. It is evident from Exts.P6 and P9 that the representations submitted by the petitioner at different dates were forwarded by the Registrar of Co-operative Societies to the 3rd respondent with endorsement to take appropriate action. I am of the view that it is for the 3rd respondent to consider the grievancs of the petitioner and to take a decision on the above aspects and further to take necessary directions to respondents 1 and 2. The 3rd respondent cannot keep the matter indefinitely pending since the petitioner is claiming urgent redressal of the grievance with respect to her appointment. I observe that the expiry of the validity period of Ext.P1 Rank List shall not be raised as a reason for denying the appointment to the petitioner, if infact the vacancy had arisen during the currency of the rank list. I further observe that even though the validity of the list stand expired, if it is ultimately found that the vacancy upon which the petitioner raises claim for W.P.(c) No.31208/2010 -9- appointment had actually arose during currency of the Rank List, she may be entitled for appointment. Hence the matter can be relegated to the decision of the 3rd respondent, with liberty to reserved for both sides to place all contentions supported by materials. 7. In the light of the above observations, the writ petition is disposed of directing the 3rd respondent to consider the representations of the petitioner, which was already forwarded to him through Exts. P6 and P9, after affording a reasonable opportunity to the petitioner and to respondents 1 and 2, at the earliest possible, at any rate within a period of 6 weeks from the date of receipt of a copy of this judgment. Sd/- C.K. ABDUL REHIM, JUDGE. AMG True copy P.A to Judge