IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 9TH DAY OF NOVEMBER 2011/18TH KARTHIKA 1933 WP(C).No. 1148 of 2010 (P) -------------------------- PETITIONER : -------------------- P.K.SUBODAYAN, PULIPPARA HOUSE, KANNAMKARA, CHERTHALA, ALAPPUZHA. BY ADVS.SRI.K.KARTHIKEYA PANICKER SMT.DAYA K. PANICKER RESPONDENT(S): -------------------------- 1. JOINT REGISTRAR'S (GENERAL), CO-OPERATIVE SOCIETIES, ALAPPUZHA DISTRICT. 2. KANNAMKARA SERVICE CO-OPERATIVE BANK LTD NO.1806, REPRESENTED BY ITS SECRETARY, KANNAMKARA CHERTHALA-688527. 3. GIRISHKUMAR, JUNIOR CLERK, KANNAMKARA SERVICE CO-OPERATIVE BANK LTD.NO.1806 KANNAMKARA, CHERTHALA- 688527. R1 BY GOVT. PLEADER SMT. RANI DIOTHIMA R2 BY ADVS. SRI.V.G.ARUN SRI.T.R.HARIKUMAR R3 BY ADV. SRI.PRASAD CHANDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-11-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 1148 of 2010 (P) APPENDIX PETITIONER'S EXHIBITS : EXT.P1 : COPY OF THE NOTIFICATION DATED 18.10.2006 PUBLISHED IN “THOZHILVEEDI”. EXT.P2 : COPY OF THE REPLY STATEMENT DATED 11.11.2009. EXT.P3 : COPY OF THE ORDER DATED 9.12.2009. RESPONDENT'S EXHIBITS : NIL EXT.R3(a) : COPY OF THE APPOINTMENT ORDER 24-6-2009. //TRUE COPY// P.A. TO JUDGE Mn C.K. ABDUL REHIM,J. ------------------------------------------------- W.P.(c) No. 1148 OF 2010 ------------------------------------------------- DATED THIS THE 9th DAY OF NOVEMBER, 2011 J U D G M E N T Petitioner is one among the Directors of the 2nd respondent Bank. The petitioner is challenging appointment of the 3rd respondent as Junior clerk in the 2nd respondent Bank. Vacancy of a Junior clerk in the Bank was notified by the Co-operative Societies Examination Board, through Ext.P1. After due compliance of procedure for selection, a rank list was prepared in which one Smt. S.N. Preethimol was rank No.1 and the 3rd respondent was rank No.2. The 2nd respondent appointed the above said Preethimol against the vacancy, on 17-10-2010, and she had joined in service on 30-10-2010. Consequent to other employment obtained in Government service by virtue of selection through Public Service Commission, Smt. S.N. Preethimol was relieved from the service of the 2nd respondent Bank. Thereafter managing committee of the W.P.(c) No.1148/2010 -2- Bank, which held its meeting on 24-02-2009, appointed the 3rd respondent who was rank No.2 in the list. 2. According to the petitioner, he being a member of the Board (Managing committee) opposed the said decision. The petitioner submitted Ext.P2 representation before the 1st respondent requesting to cancel appointment of the 3rd respondent and to remove him from the service on the ground that the appointment was illegal and irregular. It is contended that there was only one vacancy notified in Ext.P1 and once the said vacancy is filled up by appointment of a candidate from the rank list, no further vacancy can be filled up of from the very same rank list, which was not notified while inviting applications. Since Ext.P2 was not considered by the 1st respondent, the petitioner had approached this Court by filing W.P (c) No.21324/2009. The said case was disposed of directing the 1st respondent to consider and to take appropriate decision on Ext.P2. Exhibit P3 is the decision taken pursuant to the directions issued by this Court. The 1st respondent held that W.P.(c) No.1148/2010 -3- the 2nd respondent had issued appointment only against the one vacancy which was notified at the time of inviting application and that the appointment of the 3rd respondent made out from the ranklist which was valid at that time was perfectly legal and regular. Hence the request of the petitioner was rejected. The petitioner is challenging the decision of the 1st respondent in this writ petition. 3. Sri.K. Karthikeya Panicker, learned counsel for the petitioner contended that the vacancy which was notified has already been filled up with a candidate included in the rank list and hence a vacancy which arose consequent to her relieving from service cannot be filled up by another candidate from the very same list, because it is a vacancy arising subsequently, which was not notified. He has drawn my attention to the decision of the Hon'ble Supreme Court in Rakhi Ray and others V High Court of Delhi and others (AIR 2010 SC 932), in which it was held that, recruitment of any candidates against vacancies which were not notified is a denial and deprivation of constitutional W.P.(c) No.1148/2010 -4- rights protected under Article 14 read with Article 16 (1), of those person who acquired eligibility for the post in accordance with the statutory rules subsequent to the date of notification of the vacancies. Therefore, filling up of the vacancies over and above the notified vacancies is neither permissible nor desirable for the reason that it is amounts to improper exercise of power, and only in a rare and exceptional circumstances and in emergent situations, such a rule can be deviated and such a deviation is permissible only after adopting policy decision based on some rational. Learned counsel for the petitioner also pointed out a Division Bench decision of this court in Kerala Agricultural University V. Gopinathan Unnithan (1996 (1) KLT 344). It is held therein the appointment of candidates out of the waiting list to the the subsequently arising vacancies is unconstitutional. Therefore, the contention raised is that the appointment of the 3rd respondent in the vacancy which arose subsequently is illegal and liable to be cancelled. W.P.(c) No.1148/2010 -5- 4. Separate counter affidavits have been filed by the respondent 1 and 3. It is pointed out by both the respondents that, under Rule 182 (4) (vii) of the Kerala Co- operative Societies Rules, 1969 validity of Ranklists prepared by the Examination Board is stipulated as 2 years. It is contended that appointment is made against the very same vacancy which was notified, consequent to relieving of the 1st rank holder. The 3rd respondent contended that the appointment is made during currency of the rank list which was published only on 24-04-2008 and valid upto 24-04- 2010. Both the respondents contended that with respect to appointments to co-operative societies, the Kerala Co- operative Societies Act and the Rules framed thereunder provides comprehensive procedure. The general principles regarding appointment in the Government and in the Public Sector undertakings is not applicable in the case. 5. Sri. V.G. Arun, learned counsel appearing for the 3rd respondent contended that the writ petition is not maintainable since the petitioner has no 'locus standi' to W.P.(c) No.1148/2010 -6- challenge appointment of the 3rd respondent. It is contended that the petitioner was a member of the Director Board which had taken the decision for the appointment of the 3rd respondent. The petitioner has not taken any steps to rescind the resolution taken by the Board. Further, the petitioner is not a person entitled to challenge such appointment in public interest, because he was a member of the Board and is a person interested in the subject matter. Further the dispute pertains to matter is related to service of the 3rd respondent employed by the 2nd respondent Bank. Learned counsel further pointed out that the decision under Ext.P3 is not amenable for challenge in a writ petition because of availability of effective alternative remedy as provided under Statute. Section 83 (i) (j) of the Kerala Co- operative Societies Act is pointed out in order to show that an appeal is provided against any decision of the 1st respondent, which is taken under the delegated power of the Registrar. W.P.(c) No.1148/2010 -7- 6. I perfectly agree with the contentions raised with respect to the question of 'locus standi' of the petitioner. Petitioner cannot be termed as a person aggrieved by the appointment. Further, he is precluded from challenging the decision taken by the 2nd respondent in which he was also one among the Board of Directors. Unless he has taken effective steps to rescind the resolution, he cannot be permitted to challenge the decision of the Board in a writ petition. I also take note of the alternative remedy provided, which is not exhausted by the petitioner. 7. Inspite of the above findings I am inclined to consider merits of the contentions raised by the petitioner relying principles laid down by the hon'ble Supreme Court and this Court regarding filling up of further vacancies which are not notified. In the case at hand the notified vacancy was one post of Junior clerk in the 2nd respondent Bank. No further vacancy had arisen in the post of Junior clerk in the 2nd respondent Bank The post against which the 3rd respondent was appointed is the very same post of junior W.P.(c) No.1148/2010 -8- clerk. Of course, the appointment was made when the candidate ranked No.1 in the list was relieved from the service, after her appointment. Even though technically it can be termed as subsequent appointment, it is against the one and same post which was notified in Ext.P1. Therefore I cannot agree with contentions of the petitioner that it is an appointment made against a vacancy arose subsequently. 8. Sri. V.G. Arun learned counsel had brought to my attention a direct decision on the point rendered by a Division Bench of this Court in Kodakara Farmers Service Co-operative Bank Ltd. V. Neena (2010 (1) KLT 541). Interpreting the scope and ambit of Rule 182 (4) (vii), this Court held that in a vacancy arising during currency of rank list can be filled up from candidates included in the rank list, even though such vacancy was not in existence at the time of publishing the notification. Since it is a precedent binding on me on the direct interpretation of relevant provisions governing the appointment, I am of the view that general legal principles held by the Hon'ble W.P.(c) No.1148/2010 -9- Supreme Court in the matter of public appointment need not be adopted in the case of appointment to a Co-operative Society, which is governed under the specific Statute and Rules framed thereunder. 9. Result of the above discussion is to the effect that the challenge raised by the petitioner against appointment of the 3rd respondent is unsustainable. Therefore, the writ petition deserves no merit and the same is accordingly dismissed. Sd/- C.K. ABDUL REHIM, JUDGE. AMG True copy P.A to Judge