Dismissed

Anilkumar.P.v v. Kerala Public Service Commission

Kerala HC1 Jun 2017WP(C)/191/2016

Case brief

AI extract

What is this about?

The Court held it could not conclusively determine if vacancies occurred prior to 02.11.2010 based on contradictory records. It directed the Bank Administrator to approach the Public Service Commission to properly explain the discrepancy in the vacancy reporting date.

What did the court decide?

The Administrator of the Bank was directed to approach the Public Service Commission to modify the vacancy report if necessary, within one month.

Anilkumar.P.v Vs Kerala Public Service… — Pension and Retirement Benefits | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

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WEDNESDAY, THE 5TH DAY OF OCTOBER 2016/13TH ASWINA, 1938

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WP(C).No. 191 of 2016 (Y)

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PETITIONER(S):

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1. ANILKUMAR P.V., S/O. P.V.KUNHIKANNA, ABHIRAMAM, PERIYAT, MANDUR P.O., KANNUR DISTRICT, PIN:670 501.

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2. JAYASREE T., W/O. DINESH, CHIRUKANDOTH HOUSE, URUVACHAL P.O., KANNUR DISTRICT, PIN:670 702.

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BY ADVS.SRI.M.M.MONAYE SRI.M.PAUL VARGHESE SRI.T.KOSHY

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RESPONDENT(S):

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1. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, THULASSI HILLS, PATTOM PALACE P.O., THIRUVANANTHAPURAM-695 004.

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2. THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICE, KANNUR.

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3. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM-695 001.

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4. KANNUR DISTRICT CO-OPERATIVE BANK LTD., H.O. PB NO.35, KANNUR P.O., PIN:670 001, REPRESENTED BY ITS GENERAL MANAGER.

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5. BOARD OF DIRECTORS, KANNUR DISTRICT CO-OPERATIVE BANK LTD., H.O. PB NO.35, KANNUR P.O., PIN:670 001, REPRESENTED BY PRESIDENT.

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R1 & R2 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC R3 BY GOVERNMENT PLEADER SMT.A.C.VIDYA R4 & R5 BY SMT.MEENA JOHN, SC

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-10-2016 ALONG WITH WPC 15758/2016 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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msv/

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WP(C).No. 191 of 2016 (Y)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1: TRUE COPY OF THE NOTIFICATION AT CATEGORY NO.433/2009 FOR SELECTION AND APPOINTMENT TO THE POST OF BRANCH MANAGER BY WAY OF DIRECT RECRUITMENT FROM OPEN MARKET (PART I)

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EXHIBIT P2: TRUE COPY OF THE NOTIFICATION AT CATEGORY NO.434/2009 FOR SELECTION AND APPOINTMENT TO THE POST OF BRANCH MANAGERS BY WAY OF DIRECT RECRUITMENT FROM ELIGIBLE QUALIFIED EMPLOYEES OF MEMBER SOCIETIES/PRIMARY CO-OPERATIVE SOCIETIES AFFILIATED TO THE CONCERNED DISTRICT CO-OPERATIVE BANKS (PART II)

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EXHIBIT P3: TRUE COPY OF THE MARKET RANKED LIST NO.654/14/SSIII PUBLISHED BY THE IST RESPONDENT, IN RESPECT OF CATEGORY NO.433/2009 FOR APPOINTMENT TO THE POST OF BRANCH MANAGER UNDER THE 4TH RESPONDENT DISTRICT CO-OPEERATIVE BANK LTD., WHICH IS BROUGHT IN FORCE WITH EFFECT FROM 17.11.2014.

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EXHIBIT P4: TRUE COPY OF THE RANKED LIST NO.653/14/SSIII PUBLISHED BY TEH IST RESPONDENT, IN RESPECT OF CATEGORY NO.434/2009 FOR APPOINTMENT TO THE POST OF BRANCH MANAGER UNDER THE 4THG RESPONDENT DISTRICT CO-OPERATIVE BANK LTD., WHICH IS BROUGH INTO FORCE WITH EFFECT FROM 17.11.2014.

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EXHIBIT P5: A TRUE COPY OF THE COMMON JUDGMENT DATED 19.3.2013 OF THE DIVISION BENCH OF THIS HON'BLE COURT IN WPC 37412/2009 AND CONNECTED WRIT PETITIONS.

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EXHIBIT P6: TRUE COPY OF THE INTERIM ORDER OF THE HON'BLE SUPREME COURT OF INDIA DATED 9.1.2015 IN PETITIONS FOR SPECIAL LEAVE TO APPEAL (CIVIL)NO.33/2015.

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EXHIBIT P7: TRUE COPY OF THE INTERIM ORDER OF THE HON'BLE SUPREME COURT OF INDIA DATED 9.1.2015 IN IA 3-4/2014 IN PETITION (S) FOR SPECIAL LEAVE TO APPEAL (CIVIL) NO.31536-31537/2014.

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EXHIBIT P8: TRUE COPY OF THE INTERIM ORDER OF THE HON'BLE SUPREME COURT OF INDIA DATED 8.10.2013 IN PETITION FOR SPECIAL LEAVE TO APPEAL (CIVIL) NO. (S) 31237/2013.

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EXHIBIT P9: TRUE COPY OF THE INTERIM ORDER OF THE HON'BLE SUPREME COURT OF INDIA DATED 17.12.2013 IN PETITION (S) FOR SEPCIAL LEAVE TO APPEAL (CIVIL) NO.(S) 37265/2013 WITH SLP (CIVIL) NO.38067-38072 OF 2013.

msv/

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WP(C).No. 191 of 2016 (Y)

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EXHIBIT P10: TRUE COPY OF ONE OF SUCH ORDERS NO.E.M(1) 11989/2013 DATED 30.9.2013, ISSUED BY THE 3RD RESPONDENT REGISTRAR OF CO-OPERATIVE SOCIETIES ALONG WITH ITS ENGLISH TRANSLATION.

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EXHIBIT P11: TRUE COPY OF THE INTERIM ORDER PASSED ON 30.11.2015 IN WPC 34616/2015.

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EXHIBIT P12: A DETAILED INVESTIGATIVE REPORT THAT APPEARED IN THE THOSHIL VEETHI, JANUARY 2, 2016 ISSUE ALONG WITH ITS ENGLISH TRANSLATION.

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RESPONDENT(S)' EXHIBITS

NIL

//TRUE COPY//

P.S.TO JUDGE

Msv/

'CR'

DEVAN RAMACHANDRAN, J.

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-----------------------------------------------W.P.C.Nos.191 & 15758 of 2016

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Dated this the 1^st day of June, 2017

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J U D G M E N T

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The petitioners in this writ petitions are aspirants to the post of branch manager in the service of the Kannur District Cooperative Bank. The petitioners assert that there were several vacancies that occurred in the bank prior to 02.11.2010, namely the date on which the amendment to the applicable recruitment Rules came into effect. They admit that their chances of appointment would arise only if those vacancies have occurred prior to 02.11.2010.

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It appears that selection process was initiated by the Public Service Commission and pending such process, the petitioners approached this Court seeking that all the vacancies available in the bank, which occurred prior to 2.11.2010, be notified. It transpires that initially these writ petitions were allowed accepting the submissions of the petitioners that there were vacancies available prior to the said date. However, in a review that was filed by the Public Service Commission, the judgment was reviewed and recalled necessitating fresh hearing.

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W.P.C.No.191 & 15758/2016 2

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It is in such circumstances that this matter is now being heard.

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I have heard the learned counsel for the petitioner in W.P.C.No.191 of 2016, Sri.M.M.Monaye, Sri.Sunil V.Mohammed, learned counsel for the petitioner in W.P.C.No.15758 of 2016 , Sri.P.C.Sasidharan, learned standing counsel for the Public Service Commission, Sri. M.Saseendran, learned standing counsel appearing for the Kannur District Co-operative Bank and the learned Government Pleader appearing for the official respondents.

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The only issue for consideration in these cases is whether there were any vacancies available in the bank prior to 02.11.2010, to which appointment can be done through the process of direct recruitment. This is the only issue and the resolution of the disputes in this writ petition would be obtained the moment the number of vacancies are ascertained.

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I notice that the assertion of the petitioners is that there were vacancies that were available in the bank prior to 02.11.2010. In support of the assertion the petitioner in W.P.C.No.191 of 2016 has brought on record Ext.P13, which is the proforma for reporting vacancies issued by the Kannur

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W.P.C.No.191 & 15758/2016

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District Co-operative Bank to the Kerala Public Service Commission. The petitioner in W.P.C.No.191 of 2016 also relies on Exts.P14 and P15, and the petitioner in W.P.C.No.15758 of 2016 relies on Ext.P7 which are the information respectively that they had obtained under the provisions of the Right to Information Act, in support of their contentions. I have examined these documents in detail.

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One problem before the petitioners, which is immediately brought to my attention, is that even in Ext.P13 the Kannur District Co-operative Bank has shown the date of occurrence of vacancy as 21.05.2011, which is obviously much later than 02.11.2010, namely the date of the amendment. At first blush, since the proforma shows the date of occurrence of vacancy as 21.05.2011, no reliefs can be granted to the petitioner. However, I notice that the then director board of the bank has filed an affidavit on record wherein they say that a bona fide mistake was committed by them while reporting the vacancy and in showing the date of the occurrence of the vacancy as 21.05.2011. The crux of their submission appears to be that 21.05.2011 is the date of the resolution passed by the

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W.P.C.No.191 & 15758/2016

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Board and that vacancies are arisen much prior to 02.11.2010.

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Sri.P.C.Sasidharan, the learned counsel for the Public

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Service Commission points out that even as per the counter affidavit, the bank says that the cadre strength is 46 and that out of which 11 had been earmarked for direct recruitment. He says that it is not the cadre strength which is relevant for finding out the number of vacancies but the date of actual occurrence of the vacancies. I do not think there can be any doubt on this proposition and I am of the view that these issues are fairly settled without requiring any restatement.

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I have already said that the problem that I seen in this case is that in Ext.P13, which is the proforma for reporting vacancies furnished by the bank itself, the date of occurrence of the vacancies has been shown as 21.05.2011. No doubt, the then board of directors through their counter affidavit in this case have attempted to explain that this was on account of an error. I am afraid that these are not issues that this Court, while acting under Article 226 of the Constitution of India, can consider because it requires valuation and examination of factual situations most of which are disputed by the parties. All that I

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W.P.C.No.191 & 15758/2016

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can see is that the erstwhile board of the bank has reported 11 vacancies as per Ext.P13 and as stated therein, those vacancies arose on 21.05.2011. It is not merely sufficient that they try to explain the date of the occurrence of vacancies in the counter affidavit filed before this Court because various other factors including the actual number of vacancies, the actual date of such occurrence and the ratio to be applied for making such appointments etc. would also have to be taken into account. I am therefore, certainly of the view that these are not matters that this Court can conclude upon affirmatively one way or the other.

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In such view of the matter, I am of the opinion that if at all the bank requires any change in the contents of the proforma for reporting the vacancies, namely Ext.P13, that they had presented before the Public Service Commission, it will be upon the bank to make appropriate and necessary application before the Public Service Commission explaining their stand and placing on record the true facts in support of their contention that the vacancies actually arose much prior to 02.11.2010.

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At this point of time, Sri.M.Saseendran, learned standing counsel for the Kannur District Co-operative Bank

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W.P.C.No.191 & 15758/2016

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informs me that the board of directors of the bank had been superseded and that his client has been appointed as the Administrator. If that be so, obviously any such action in the direction that I have mentioned above for explaining and altering the contents in Ext.P13 will have to be necessarily done only by the administrator and not by the Board of Directors.

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In such circumstances and for the reasons that I have stated above, I order these writ petitions directing the Administrator of the Kannur District Co-operative Bank Ltd. to approach the Public Service Commission for modification or alteration of the contents in Ext.P13, if he finds it necessary to do so, with a properly constituted application containing all the relevant details as to the nature of the vacancies, the dates on which it had occurred as also ratio to be applied in making such appointments. If such an application is made by the Administrator before the Public Service Commission within a period of one month from the date of receipt of a copy of this judgment, the Public Service Commission will be obligated to consider the same in terms of law and pass appropriate orders thereon permitting alteration of Ext.P13 or otherwise after

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W.P.C.No.191 & 15758/2016

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affording an opportunity to being heard to the Administrator. Such order shall be issued by the Public Service Commission not later than two months from the date of receipt of the application by the Administrator, if made in terms of this judgment.

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Writ petitions are thus ordered.

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Sd/- DEVAN RAMACHANDRAN JUDGE

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TRUE COPY

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P.A.TO JUDGE

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Anilkumar.P.v v. Kerala Public Service Commission

Case brief

What is this about?

What did the court decide?

Anilkumar.P.v v. Kerala Public Service Commission

Case brief

What is this about?

What did the court decide?

What the court decided

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