IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 12TH OCTOBER 2011 / 20TH ASWINA 1933 WP(C).No. 31345 of 2010(P) -------------------------- PETITIONERS: --------------- 1. KANNAN.M.P., MALIYEKKATTU HOUSE, VALLUVALLY, KOONAMMAVU P.O., ERNAKULAM, PIN-683 510. 2. SUMESH.S., THATTANTAZHIKATHU VEEDU, T.K.M.C. P.O., KUTTICHIRA, KOLLAM-691 005. 3. GANGA.S., THEKKEETTATHU, PADA-SOUTH KARUNAGAPPALLY, KARUNAGAPPALLY P.O., KOLLAM-695 518. 4. PRADEEP KUMAR.K., PRADEEP SADANAM, ELAMBA P.O., THIRUVANANTHAPURAM-695 103. 5. SHIBU.B., SHYLAJA BHAVAN, CHATHINAMKULAM, CHANDANATHOPE P.O., KOLLAM-691 014. 6. RIJI.C.IBRAHIM, KUNNAMPURATHU HOUSE, KALYANTHANI P.O., THODUPUZHA. 7. BLESSY STEPHEN.A., ALAPPASTTU HOUSE, THEVARA COLONY, KOCHI-682 013. 8. IRISHAMA P.VARTHESE, THADATHIL PLACKAL, MELUKAVU P.O., MELUKAVU, KOTTAYAM-682 652. BY ADV. SMT.S.KARTHIKA SRI.M.S.UNNIKRISHNAN SRI.M.R.ANISON SMT.K.P.GEETHA MANI SRI.P.N.APPUKUTTAN W.P.(C) 31345/2010 :2: RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, CO-OPERATION (A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM. 3. THE PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. ADDITIONAL RESPONDENTS: 4. S. AJI KUMAR, S/O. G. SREEHARAN PILLAI, AGED 40 YEARS, UPPER DIVISION TYPIST, OFFICE OF THE JOINT REGISTRAR GENERAL, TRIVANDRUM. 5. K.P. AJITH KUMAR, S/O. N. KUMARAN NAIR, AGED 28 YEARS, UPPER DIVISION TYPIST, OFFICE OF THE REGISTRAR OF CO-OPERATIVE SDOCIETIES, THIRUVANANTHAPURAM. 6. M.V. UNNIKRISHNAN, S/O. MURALEEDHARAN NAIR, AGED 31 YEARS, LOWER DIVISION TYPIST, OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM. 7. MANJU C.B., UPPER DIVISION CLERK, GOVERNMENT CENTRAL PRESS, THIRUVANANTHAPURAM. (ADDITIONAL RESPONDENTS 4 TO 6 ARE IMPLEADED AS PER ORDER DATED 4.7.2011 IN I.A. NO. 10206/2011.) (ADDITIONAL 7TH RESPONDENT IS IMPLEADED AS PER ORDER DATED 29.7.2011 IN I.A. NO. 11704/2011). ADV. SRI.P.C.SASIDHARAN, SC, KPSC FOR R3 GOVERNMENT PLEADER SR. D. SOMASUNDARAM. ADDL. R4, 5 & R6 BY ADVS. M/S. V.A.MUHAMMED & .M.SAJJAD. ADDL. R7 BY ADVS. M/S. P.ARAVINDAKSHAN PILLAY, N.SANTHA, K.A.BALAN & SRI.S.A.ANAND. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27.9.2011, ALONG WITH W.A. 1319/2011, THE COURT ON 12.10.2011, DELIVERED THE FOLLOWING: W.P.(C) 31345/2010 APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF THE RELEVANT PAGES OF THE RANK LIST. EXT.P2 TRUE COPY OF THE KERALA CO-OPERATIVE SUBORDINATE SERVICE RULES, 1962. EXT.P3 TRUE COPY OF THE INTERIM ORDER DATED 6.4.2010 IN W.P.(C) 4879/2010 ISSUED BY THE 3RD RESPONDENT. EXT.P4 TRUE COPY OF THE LATEST ORDER ISSUED BY THE FINANCE DEPARTMENT DATED 12.8.2010. EXT.P5 TRUE COPY OF THE GOVT. ORDER DATED 7.8.2010. EXT.P6 TRUE COPY OF THE STATEMENT FDILED BY THE 2ND RESPONDENT DATED 19.3.2010. EXT.P7 TRUE COPY OF THE LISIT SHOWING THE NUMBER OF RETIREMENT VACANCIES BETWEEN 1.4.2010 TO 31.3.2011. EXT.P8 TRUE COPY OF THE G.O.(P) NO. 344/08/H & FWD DATED 8.7.2008. EXT.P9 TRUE CPY OF THE QUERIES MADE BY ONE MR. PRAVEEN KUMAR. EXT.P10 TRUE COPY OF THE REPLY TO EXT. PY BY THE 2ND RESPONDENT. EXT.P11 TRUE COPY OF THE LETTER DATED 8.11.2010 RECEIVED UNDER RIGHT TO INFORMATION ACT. EXT.P12 TRUE COPY OF THE INFORMATION RECEIVED UNDER RIGHT TO INFORMATION ACT. EXT.P13 TRUE COPY OF THE LATEST INFORMATION REGARDING QUALIFIED PERSONS IN THE UDC/UDT CATEGORY FURNISHED IN ANSWER TO A QUERY PUT IN THE LEGISLATIVE ASSEMBLY MEETING ON 31ST MARCH, 2011. W.P.(C) 31345/2010 :2: EXT.P14 TRUE COPY OF THE RETIREMENT LIST 2011 OF THE CO-OPERATIVIE DEPARTMENT. RESPONDENTS' ANNEXURES: ANNEXURE A TRUE COPY OF THE LETTER ISSUED BY THE PSC DATED 27.5.2010 SHOWING THE FACT. ANNEXURUE 1 TRUE COPY OF THE GO(MS) NO. 141/10/Co-OP. DATED 7.8.2010. ANNEXURE R2(a) TRUE COPY OF THE G.O.(MS) 141/2010/CO-OP. DATED 7.8.2010. ANNEXURE R2(b): TRUE COPY OF THE G.O.(MS). NO. 35/2011/CO.OP. DATED 24.2.2011. EXT.R7(a) TRUE COPY OF THE HDC CERTIFICATE DATED 26.4.1997 OF THE PETITIONER ISSUED BY THE SECRETARY, CENTRAL BOARD OF EXAMINATION. EXT.R7(b) TRUE COPY OF THE REPRESENTATION DATED 15.6.2011 SUBMITTED BY THE PETITIONER BEFORE THE REGISTRAR, CO-OPERATIVE SOCIETIES. // TRUE COPY // P.S. TO JUDGE. KNC/- C.N. RAMACHANDRAN NAIR, Ag. C.J. & P.S. GOPINATHAN, J. = = = = = = = = = = = = = = = = = = W.P.(C) 31345/2010 & W.A. 1319/2011 = = = = = = = = = = = = = = = = = = DATED THIS, THE 12th DAY OF OCTOBER, 2011. COMMON JUDGMENT P.S. Gopinathan, J. Petitioners 1 to 5 in the writ petition are rank holders bearing Serial Nos. 540, 558, 616, 628 and 699 in Ext.P1 rank list published by the third respondent Kerala Public Service Commission. The 6th petitioner is Serial No. 20 in the supplementary list for Muslim candidates. Petitioners 7 and 8 are Serial Nos. 41 and 43 in the supplementary list for Scheduled Caste and Scheduled Tribe candidates. Ext.P1 select list was prepared at the request of the 2nd respondent, for the post of Junior Inspector of Co-operative Societies on a pay scale of Rs. 4600 – 7125. Ext.P1 was published with effect from 14.7.2008 and would be expiring by 13.7.2011. Petitioners would contend that that as on 19.3.2010, 261 posts of Junior Inspectors were lying vacant. 29 UDC/UDTs/VEOs working in the Department were eligible for promotion. Excluding the posts to be set apart to the quota of qualified hands for promotion, there were 232 posts lying vacant between WP(C) 31345/2010 & W.A. 1319/2011 2 1.4.2010 and 31.3.2011. 160 vacancies would arise owing to retirement and thereby there would be 392 vacancies. But, the vacancies are not reported by the second respondent with ulterior motive and in the event those vacancies are reported, petitioners would be advised by the third respondent and they would get appointment. With these pleadings, the petitioners sought for a writ of mandamus directing respondents 1 and 2 to report the vacancies to the 3rd respondent and for other ancillary reliefs. Originally there were only three respondents. Subsequently, four persons were got impleaded as additional respondents 4 to 7. 2. The learned Single Judge, on the basis of the submission from either side, found that there were 93 vacancies remaining in the Department. Consequently, on 4.7.2011 an interim order was issued directing respondents 1 and 2 to report 93 vacancies to the third respondent. Subsequently on a review petition R.P. 615/2011, having found that out of the 93 vacancies, 8 more vacancies are to be reserved for UDCs/UDTs, the vacancies to be reported was reduced to 85. 3. The appointment to the post of Junior Inspector is governed by Ext.P2, the Kerala Co-operative Subordinate Service rules, 1962. As per the rules, 40% of the vacancies of Inspectors are to be filled up through recruitment by transfer from UDCs/UDTs employed in Co-operative WP(C) 31345/2010 & W.A. 1319/2011 3 Department or from UDCs/UDTs employed in the other Department or from any service other than the Kerala Ministerial Subordinate Service. The parties impleaded are belonging to other departments. According to the additionally impleaded respondents, they are also entitled to be appointed to the 40% vacancies and that the entire vacancies shall not be filled by direct recruits to whom only 40% of the vacancies are reserved. 20% of the vacancies are reserved for Gramasevaks. However, the appointment by transfer from other departments has to be made in consultation with the third respondent. Necessarily, there shall be a selection process. It is not in dispute that Ext.P1 list does not cover appointment by transfer from other departments. Therefore, at present, the question of appointment by transfer from other departments does not arise. However, persuaded by the submission made by the parties impleaded, by order dated 22.8.2011, the learned Single Judge, in continuation of the earlier orders directed that the question whether advice and appointment could be effected in exercise of the quota earmarked for direct recruitment from Ext.P1 rank list will be considered later, depending upon the availability of qualified hands by transfer appointment in terms of rule 2(a)(ii) and (a)(iii) of Ext.P2 rules. Simultaneously, Government Pleader was directed to file a statement regarding the steps taken to ascertain whether qualified hands are available WP(C) 31345/2010 & W.A. 1319/2011 4 for by transfer appointment in the Co-operative Department as also in other departments falling under the aforesaid categories. Aggrieved by the direction in the order dated 22.8.2011 that the advice and appointment could be effected in exercise of the quota earmarked for direct recruits would be decided later, the 5th and 8th petitioners in the writ petition has filed the writ appeal. At the request of the counsel appearing from either side, we directed to post the writ petition also along with the writ appeal. Accordingly, the writ petition was also posted. We have heard either side including the learned counsel appearing for the additional respondents. 4. In pursuance to the direction issued to the Government Pleader to file a statement by the order dated 22.8.2011, the learned Special Government Pleader filed a statement on 31.8.2011 accompanied by an order dated 7.8.2011 which was marked as Annexure I(a). Going by Annexure I (a), we find that there is no qualified hands in the Co-operative Department, to fill up the posts reserved for by transfer appointment at the ratio 2:2:1 as per Ext.P2 rules. Taking into account the entire circumstances, the Government has decided to amend the service rules by changing the ratio of appointment to 6:3:1 and vacancies to be reported to the third respondent for appointment from Ext.P1 list was determined as 204. Accordingly, by Annexure I(a) order, a direction was issued to the WP(C) 31345/2010 & W.A. 1319/2011 5 second respondent to report 204 vacancies to the third respondent for appointment from Ext.P1 rank list. It is after setting apart 137 posts for appointment by transfer as per Ext.P2 rules. It was also submitted that the validity of Ext.P1 rank list which expired by 13.7.2011 was extended up to 31.12.2011. 5. In the above circumstances, we find that the writ petition as well as the writ appeal can be disposed of with a direction to the second respondent to report all the vacancies as per Annexure I(a) to the third respondent, who, in turn, would advise candidates from Ext.P1 rank list for appointment. The claim of the impleaded party respondents can no way be considered in this proceedings because the notification for selection did not cover appointment by transfer under which quota the party respondents can claim for appointment. Further, none of them were called for written test before preparing Ext.P1 rank list. Their remedy is to approach the authorities concerned for having a selection under the transfer appointment quota. We are told by the learned counsel appearing for respondents 4 to 7 that they had already moved this Court seeking a writ of mandamus to that effect. Therefore, we leave open that dispute for appropriate adjudication. WP(C) 31345/2010 & W.A. 1319/2011 6 In the result, W.P.(C) 31345/2010 is allowed directing the second respondent to report the vacancies stated in Annexure I(a) forthwith. The third respondent shall issue advice memo on receipt of such report. The writ appeal is disposed as infructuous in the light of the judgment in the writ petition. There will be no order as to costs. C.N. RAMACHANDRAN NAIR, (Ag. CHIEF JUSTICE) P.S. GOPINATHAN, (JUDGE) KNC/-