IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 13TH NOVEMBER 2008 / 22ND KARTHIKA 1930 WA.No. 1768 of 2008() ------------------------------ AGAINST THE JUDGEMENT/ORDER IN WPC.23831/2005 DATED 17/07/2008 .................... APPELLANT/2ND RESPONDENT: ---------------------------------------------- THE NEYYATTINKARA CO-OPERATIVE BANK LTD. NO.931, HEAD OFFICE, NEYYATTINKARA, REPRESENTED BY ITS MANAGING DIRECTOR. (WRONGLY SHOWN AS “THE NEYYATTINKARA SERVICE CO-OPERATIVE BANK LTD. NO.931, HEAD OFFICE, NEYYATTINKARA, REPRESENTED BY ITS SECRETARY) BY ADV. SRI.GEORGE POONTHOTTAM SRI.T.R.RAVI RESPONDENTS/PETITIONER & RESPONDENTS 1 AND 3: -------------------------------------------------------------------------------- 1. BEENAKUMARI J., DAUGHTER OF JESSY, VALIYATHOTTAM MELETHATTU VEETTIL, THIRUPURAVATHOOR DESOM, THIRUPURAM VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. 2. THE JOINT REGISTRAR, OFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM. 3. RAJEEV R.K., R.S.BHAVAN, DHANUVACHAPURAM PO., PIN-695 503. GOVERNMENT PLEADER SRI.SANDESH RAJA FOR R2 ADV SRI.VELLAYANI SUNDERRAJ FOR R1 ADV. SRI.RAJESH NAIR FOR R3 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 20/10/2008, THE COURT ON 13/11/2008 DELIVERED THE FOLLOWING: Rs/ J.B. Koshy & K.P.Balachandran, JJ. -------------------------------------- W.A.No. 1768 of 2008 --------------------------------------- Dated this the 13rd day of November, 2008 Judgment Koshy,J. Appellant is a co-operative bank registered under the Kerala Co-operative Societies Act (for short 'the Act'). It called for applications to the post of Junior Clerk. A rank list was published containing names of 15 persons. Ext.P3 is the rank list published. According to the appellant, all the 15 persons who were selected on merit were given appointment. None of the scheduled caste/scheduled tribe candidates were appointed. Third respondent in the writ petition made a representation to the Registrar of Co- operative Societies stating that appointments were made without giving any reservation to the scheduled caste/scheduled tribe community. On the basis of the representation, by Ext.P4, the Joint Registrar directed the bank to consider his case and if he is entitled to get appointment in the reservation quota, he should be appointed. Petitioner filed Ext.P6 representation. Writ Petitioner is ranked as No.1 and third respondent was ranked as No.2 in the supplementary rank list prepared for scheduled castes/scheduled W.A.No.1768/2008 2 tribes. Since petitioner who was ranked as No.1 was not appointed, she approached the court for directing respondent Nos.1 and 2 (appellant) to appoint the petitioner to the post of Junior Clerk. The learned single Judge found that since 15 persons were appointed from the selection made, 4th and 12th places should be given to members of the scheduled caste community and both are entitled to get appointed. The operative portion of the judgment is as follows: "...... Since 15 posts were filled up, petitioner and 3rd respondent were entitled to be appointed. Consequently, I direct 2nd respondent to absorb petitioner and 3rd respondent in the post of Junior Clerk in the service immediately on production of a copy of this judgment. However, I make it clear that this should not lead to termination of any person already appointed, and petitioner and 3rd respondent also will not be entitled to claim any seniority with reference to any anterior date because they did not take up the matter before the Court in time. The Joint Registrar will grant approval for increasing the staff strength, if it is required to appoint petitioner and 3rd respondent." 2. Now, we will refer to the relevant statutory provisions regarding reservation. Section 80 of the Act deals with appointment of officers and servants of the societies. Originally, there was no reservation in the appointment to the co-operative societies. Sub- section (4) was inserted by Act No.29 of 1986 which was published W.A.No.1768/2008 3 in the Kerala Gazette dated 30.1.1986. The relevant provision is as follows: "Notwithstanding anything contained in sub-section (1) or sub-section (2), ten per cent of the posts of employees of every society shall be reserved for appointment from persons belonging to the scheduled castes and scheduled tribes where the method of appointment to such posts is by direct recruitment." 3. In Binu v. Registrar of Co-operative Societies (1997 (1) KLT 192), it was held that the above section was valid and co- operative bank is bound to recruit candidates to the full quota of reservation for scheduled caste candidates. While preparing ranked list of candidates, persons belonging to scheduled caste/scheduled tribe community should have been included if they are available from among the candidates who applied for the post and appeared for the test and interview. The court held as follows: "9. The principles of reservation were in vogue at least for four decades in this State. Recruitment are being made by various agencies including PSC applying the principles of communal reservation. For that matter, it is not necessary to have a specific provision either in the Act or in the Rules to follow the corresponding provision in KS & SSR regarding communal reservation. It is also an accepted principle that candidates from the reservation communities are also entitled to be considered W.A.No.1768/2008 4 in the merit quota. For that purpose their quota should not be curtailed. Thus, it is obvious that while preparing the ranked list of candidates persons belonging to SC/ST community should have been included if they are available from among the candidates who applied for the post, appeared for the test and interview......" 4. The contention of the bank is that staff strength of the bank is 46. Considering the full strength, four persons belonging to scheduled caste community are already appointed. They are as follows: 1. D. Remani, Branch Manager; 2. M. Sivakumar, Appraiser; 3. K. Krishnankutty, Attender; and 4. S. Rajendran, Peon. The above contention will not hold good as there is no evidence to show that any of them were appointed in the reservation quota. Out of the above, except Shri Rajendran who was appointed on 5.11.1990, other three persons were appointed during 1980 and 1982. Rule of reservation came into force only in 1986 when sub- section (4) of section 80 was introduced. Therefore, admittedly, those three persons were not appointed in the reservation quota, but, they were appointed on merit. Even no evidence is produced by the bank to show that Shri Rajendran was apppointed in the reservation quota. The reserved category of candidates can W.A.No.1768/2008 5 compete for non-reserved posts and if they are appointed without the benefit of reservation, they cannot be reckoned to work out the percentage of reservation by earmarking them as against the reserved vacancy. 5. Another contention raised is that the Circular dated 4.7.1978 issued by the Registrar of Co-operative Societies shows that 10% reservation need be looked into only for appointments made after 25.2.1985. According to the appellant, considering the appointments made after 1985, two persons from the reserved community need be appointed from the reservation quota. Since one scheduled caste candidate was appointed in 1990, only one more need be appointed. Appellant produced Annexure AI judgment of a learned single Judge in W.P.(C) No.13257 of 2007. In fact, that case goes against the contention of the appellant. The learned single Judge, Thottathil B. Radhakrishnan, J. in that case held that the Circular cannot go against the rules and Circular can be issued only in accordance with the provisions of the Act as decided by the Supreme Court in the following decisions: 1. State of Haryana and others v. Sumitra Devi and and others ((2004) 12 SCC 322); 2. Paluru Ramkrishnaiah v. Union of India ((1989) 2 SCC 541); W.A.No.1768/2008 6 3. Kerala Samsthana Chethu Thozhilali Union v. State of Kerala ((2006) 4 SCC 327); 4. State of Orissa v. Mamtarani Sahoo ((1998) 8 SCC 753)' and 5. K. Kuppusamy v. State of T.N. ((1998) 8 SCC 469). The learned Judge in the above Annexure AI judgment also pointed 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 recruitment is to be made and not on the basis of vacancies existing at that time. In that case, it was held as follows: "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 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 W.A.No.1768/2008 7 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." In this case, the post is that of Junior Clerk. Considering the cadre strength in the posts for which direct recruitment is made and considering the vacancies, we are of the opinion that the learned single Judge was right in holding that two persons writ petitioner and third respondent are entitled to be appointed. 6. It is finally argued that the rank list was over when the judgment was pronounced. The rank list is stated to be finalised on 11.2.2000. When it was published is not mentioned. Without making reservation as provided under the law, the rank list should not have been finalised. Petitioner was complaining to the officials of the Co-operative Department. In any event, it is a glaring illegality. Statutory rights given to scheduled castes/scheduled tribe communities cannot be denied on technical grounds. Considering the cadre strength, special recruitment ought to have been made before the appointments were made, but, without affecting anybody, the learned single Judge in the impugned judgment gave appropriate directions considering the equity in favour of the W.A.No.1768/2008 8 candidates who were already appointed. We see no ground to interfere in the impugned judgment. Appeal dismissed. J.B.Koshy Judge K.P.Balachandran Judge vaa W.A.No.1768/2008 9 J.B. KOSHY AND K.P.BALACHANDRAN,JJ. ------------------------------------- W.A.No. 1768/2008 ------------------------------------- Judgment Date: 13th November,2008