IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 28TH MARCH 2011 / 7TH CHAITHRA 1933 WP(C).No. 1527 of 2011(M) -------------------------------------- PETITIONER(S): ------------------------ RAJI R.NAIR, THAITHOTTATHIL HOUSE, THIKKOYI, THALANAD.P.O., PIN:686550, KOTTAYAM. BY ADVS. SRI.P.N.MOHANAN SMT.I.VINAYAKUMARI RESPONDENT(S): ------------------------- 1. KIDANGOOR SERVICE CO-OPERATIVE BANK LTD.NO.3431, REPRESENTED BY PRESIDENT, MEENACHIL THALUK, KIDANGOOR, KOTTAYAM- 686 570 2. THE SECRETARY, CO-OPERATIVE SERVICE EXAMINATION BOARD, 2ND FLOOR, KERALA STATE CO-OPERATIVE BANK BUILDING, OVERBRIDGE JUNCTION, THIRUVANANTHAPURAM- 695 001. R1 BY ADVS. SRI.P.C.HARIDAS, SMT.A.K.PREETHA, SRI.P.C.HARIDAS . R2 BY ADV. SRI.P.U.SHAILAJAN,SC,CO-OP.SERVICE EXAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.1527/2011 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE RANK LIST. P2:- COPY OF THE DECISION REPORTED IN 2010 (1) KLT 541. P3:- COPY OF THE DECISION REPORTED IN 2009 (1) KLT 950. RESPONDENT'S EXHIBITS R1A:- COPY OF THE LETTER GIVEN BY SREELEKSHMI, R1B:- COPY OF THE LETTER GIVEN BY MAHESH. R1C:- COPY OF THE RELEVANT PORTIONS OF MINUTES CONTAINING RESOLUTION NOS. 881,882 AND 884. R1(d):- COPY OF THE RELEVANT PORTIONS OF MINUTES CONTAINING RESOLUTION TO APPOINT 5 PERSONS. TRUE COPY P.A. TO JUDGE tss P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 1527 OF 2011 -------------------------- Dated this the 28th day of March, 2011 J U D G M E N T By a notification dated 5.4.2008, the second respondent invited applications for appointment to the category of Junior Clerk in the first respondent bank. The number of vacancies notified was 5. The petitioner and others applied pursuant to the said notification. After the written test was held by the second respondent, an interview was conducted by the managing committee of the first respondent bank. A ranked list was published on 22.1.2009. The said ranked list expired on 22.1.2011. The petitioner was the 14th rank holder. This writ petition was filed on 17.1.2011, four days before the expiry of the ranked list, seeking appointment as Junior Clerk in the first respondent bank on the ground that as vacancies of Junior Clerks exist, the petitioner is entitled for appointment. Relying on the decision of a Division Bench of this Court in Kodakara Farmers Service Co-op Bank Ltd. v. Neena (2010 (1) KLT 541 (DB) it is contended that all vacancies which arise during the period when the ranked list is in force have to be filled up by appointing candidates from that list. The petitioner has stated that from the ranked list, 12 candidates were appointed, that as on the date of expiry of the ranked list only 14 clerks were in place including six Junior Clerks and that in view of the ratio 1:1 between Junior Clerks and Senior Clerks, one more WPC No.1527/2011 2 vacancy of Junior Clerk is available to be filled up by appointing candidates included in the ranked list published on 22.1.2009. 2. The first respondent bank has filed counter affidavits dated 27.1.2011 and 19.3.2011. The counter affidavits proceeds to state that from the ranked list published on 22.1.2009, five candidates were appointed as Junior Clerks on 27.1.2009 and that one among them Smt.Preethy M.V. resigned to take up employment in District Co-operative Bank, that though only 5 vacancies had been notified initially, considering the vacancy that arose on the resignation of Smt.Preethy M.V. and the promotion given to two Junior Clerks who were appointed on 27.1.2009 as Senior Clerks, five more vacancies of Junior Clerks were filled up from the same ranked list and that the said five persons were appointed on 5.4.2010. In paragraph 11 it is stated that though the approved cadre strength of Junior Clerks is 8, the services of no further Junior Clerks are required and that any further appointment will be a surplusage and an additional financial burden to the bank without any corresponding benefit. It is stated that in such circumstances, the managing committee of the bank did not make any further appointments to the post of Junior Clerk and that such a decision was taken considering the future developments envisaged in the bank namely core banking and installation of ATM machines etc., which would considerably reduce the need for human WPC No.1527/2011 3 labour for the day to day functioning of the bank. The first respondent has filed a statement setting out the total number and details of persons working as Senior Clerk/Junior Clerk in the first respondent bank. The said statement discloses that 9 candidates included in Ext.P1 ranked list were appointed as Junior Clerks and three of them were later promoted to the category of Senior Clerk. Two of them were promoted on the same day i.e., 1.4.2010. From the statement filed by the first respondent, it is evident that 10 candidates from Ext.P1 list were appointed to the category of Junior Clerk. 3. I heard P.N.Mohanan, learned counsel appearing for the petitioner, Sri.P.C.Haridas, learned counsel appearing for the first respondent and Sri.P.U.Shailajan, learned counsel appearing for the second respondent. I have also gone through the pleadings and the materials on record. It is evident form the averments in paragraph 11 of the counter affidavit filed by the first respondent that though the approved cadre strength of Junior Clerks is 8, in two spells, 10 persons were appointed from Ext.P1 list to the category of Junior Clerk. One among them namely Smt.Preethy M.V. resigned to take up employment in District Co-operative Bank. Thereafter three out of the remaining 4 were promoted to the category of Senior Clerk. Simultaneously 5 other candidates were appointed from Ext.P1 ranked list to the category of Junior Clerk. From the WPC No.1527/2011 4 details presently furnished, it is evident that as on the date of expiry of the ranked list namely 22.1.2011, only 6 Junior Clerks were in service in the first respondent bank. Though the first respondent bank has in paragraph 11 of the counter affidavit stated that any further appointment would be a surplusage and an additional financial burden to the first respondent without any corresponding benefit, the counter affidavit is totally silent as regards any conscious decision in that regard taken by the managing committee of the first respondent bank. It is true that the mere inclusion of the name of a person in the ranked list will not confer on him the right to seek employment and the employer can take a decision not to fill up the vacancies. However, in the instant case, apart from the statement in the counter affidavit, there is no material whatsoever to show that the managing committee of the bank had taken a decision not to fill up the vacancies of Junior Clerk. I am therefore not persuaded to accept the contention of the first respondent that the management took a conscious decision to keep the remaining two vacancies of Junior Clerk vacant. 4. Ext.P1 ranked list was published on 22.1.2009 and it expired on 22.1.2011, after the writ petition was filed on 17.1.2011. As on that day there were two vacancies of Junior Clerk in the bank. The petitioner has positively averred that the 13th rank holder is unwilling to join duty in the first respondent bank. There is also no dispute that the petitioner is the WPC No.1527/2011 5 14th rank holder in the ranked list and that as on the date of expiry of the ranked list two vacancies exist. In such circumstances as two vacancies of Junior Clerk were in existence during the currency of Ext.P1 ranked list, I am of the opinion that in terms of the provisions contained in 182 (4) of the Kerala Co-operative Societies Rules, the bank ought to have filled up the two vacancies by appointing the next eligible persons from the ranked list. I am therefore of the opinion that the petitioner is entitled to succeed. I accordingly dispose of the writ petition with a direction to the first respondent to fill up the two vacancies of Junior Clerk that were vacant on the date of expiry of Ext.P1 ranked list by appointing eligible persons from Ext.P1 ranked list. Necessary orders in that regard shall be issued within one month from today. P.N.RAVINDRAN, (JUDGE) vps