The High Court dismissed a writ petition challenging the appointment of a junior clerk after the first-ranked candidate resigned. The Court held the petitioner lacked locus standi as a Board member who had not rescinded the resolution and noted the alternative remedy provision.
Writ petition dismissed; appointment of 3rd respondent upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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),
2. KANNAMKARA SERVICE CO-OPERATIVE BANK LTD NO.1806,
REPRESENTED BY ITS SECRETARY, KANNAMKARA CHERTHALA-688527.
3. GIRISHKUMAR, JUNIOR CLERK,
R1 BY GOVT. PLEADER SMT. RANI DIOTHIMA
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.
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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.
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
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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 Cooperative 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
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W.P.(c) No.1148/2010
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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.
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
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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.
Sd/- C.K. ABDUL REHIM, JUDGE.
AMG
True copy
P.A to Judge
2 issues framed by the court
Whether a writ petition is maintainable by a Board member challenging an appointment decision in which he participated.
Whether sub-selection of a candidate from the same rank list against a vacancy arising from subsequent relief is permissible under cooperative society rules.
Colour shows how this judgement treated each authority
Rakhi Ray and others v. High Court of Delhi and othersDistinguished¶43
Rakhi Ray and others V High Court of Delhi and others (AIR 2010 SC 932) · Who else cites this
Kerala Agricultural University v. Gopinathan UnnithanDistinguished¶44
Kerala Agricultural University V. Gopinathan Unnithan (1996 (1) KLT 344)
Kodakara Farmers Service Co-operative Bank Ltd. v. NeenaFollowed¶59
Kodakara Farmers Service Co-operative Bank Ltd. V. Neena (2010 (1) KLT 541)
2 provisions across 2 enactments
P.K.Subodayan
Joint Registrar's (General), Co-operative Societies, Alappuzha District
Kannamkara Service Co-operative Bank Ltd No.1806
Girishkumar
C.K. Abdul Rehim
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
