Dismissed

K.Mohanan v. Kerala Public Service Commission

Kerala HC5 Feb 2018WA/340/2015

Case brief

AI extract

What is this about?

Appeal against dismissal of writ petition seeking inclusion of name in ranked list for Dept GM post. Court held deputation experience valid per KS&SSR but declined to alter rank list to avoid prejudice to already appointed candidates.

What did the court decide?

Appeal dismissed. Court declined to order inclusion of name in rank list to avoid prejudice to fourth respondent already appointed.

K.Mohanan Vs Kerala Public Service Commission — Service and Employment | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN

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THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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MONDAY, THE 5TH DAY OF FEBRUARY 2018 / 16TH MAGHA, 1939

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WA.No. 340 of 2015 IN WPC. 27035/2011

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AGAINST THE ORDER/JUDGMENT IN WP(C) 27035/2011 of HIGH COURT OF KERALA

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APPELLANT(S)/APPELLANT/PETITIONER

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K.MOHANAN, AKSHARA, ANCHAL P.O., NEAR ST.GEORGE SCHOOL, ANCHAL, KOLLAM DISTRICT.

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BY ADV.SRI.S.SHARAN

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RESPONDENT(S)/RESPONDENTS:

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1. KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM, REP. BY SECRETARY-695 004.

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2. REGISTRAR OF CO-OPERATIVE SOCIETIES, O/O THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM-695 001.

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3. THE DISTRICT CO-OPERATIVE BANK, KOLLAM REPRESENTED BY THE PRESIDENT/GENERAL MANAGER-691 001.

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4. SREEKUMAR R., BRANCH MANAGER, PATHANAMTHITTA DISTRICT CO-OPERATIVE BANK LTD. PATHANAMTHITTA.

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R1 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC R3 BY ADV. SRI.T.R.HARIKUMAR, SC, KOLLAM DISTRICT COOPERATIVE BANK LTD. R2 BY SRI.SUNILKUMAR KURIAKOSE, GOVERNMENT PLEADER R BY SRI.P.N.MOHANAN

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WA.No. 340 of 2015

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APPENDIX

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PETITIONER'S EXHIBITS:

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ANNEXURE I: COPY OF THE RELEVANT EXTRACT OF THE STAFF STRUCTURE MENTIONED IN THE PAY COMMISSION REPORT.

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ANNEXURE II: COPY OF THE ORDER NO.EA(4)52495/2005 DATED 16/1/2006 OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES, KERALA.

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RESPONDENT'S EXHIBITS - NIL

True copy

P.A to Judge

C.R

P.N.RAVINDRAN

R.NARAYANA PISHARADI, JJ.

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W.A.No.340 of 2015

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Dated this the 5^th day of February, 2018

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JUDGMENT

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P.N.Ravindran,J

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The appellant is the unsuccessful petitioner in W.P(C) No.27035 of 2011. In this writ appeal, he challenges the judgment delivered by the learned single Judge on 22-11-2014 dismissing the writ petition filed by him mainly seeking the inclusion of his name in the ranked list published by the Kerala Public Service Commission (hereinafter referred to as the Commission for short) for appointment by direct recruitment to the post of Deputy General Manager in District Co-operative Bank, Kollam. The brief facts of the case are as follows:

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By Ext.P1 notification published in the Kerala Gazette dated 13-11-2009, the Commission invited applications from eligible persons for appointment by direct recruitment to one post each of Deputy General Manager in the Thiruvananthapuram District Co-operative Bank, the Kollam District Co-operative Bank, the Pathanamthitta District Cooperative Bank, the Kottayam District Co-operative Bank, the

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Idukki District Co-operative Bank, the Thrissur District Cooperative Bank, the Palakkad District Co-operative Bank, the Malappuram District Co-operative Bank, the Wayanad District Cooperative Bank and the Kannur District Co-operative Bank.

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The writ petitioner possesses the following qualifications: M.Com, Higher Diploma in Co-operation, M.B.A and M.Phil. He entered service as Co-operative Auditor/Junior Co-operative Inspector in the Co-operation Department in the year 2003. He was later promoted to the category of Senior Cooperative Inspector. When Ext.P1 notification inviting applications for appointment by direct recruitment to the post of Deputy General Manager in various District Co-operative Banks was issued, he was working as Junior Co-operative Inspector. Pursuant to Ext.P1 notification, he applied for appointment by direct recruitment to the post of Deputy General Manager in Kollam District Co-operative Bank. He was called to attend the interview held by the Commission on 29-06-2011. He appeared for the interview and his documents were verified. The writ petitioner had admittedly worked as General Manager in Kottarakkara Co-operative Urban Bank Limited, No.1909, during the period from 01-02-2006 to 31-01-2009 and such service was before the last date stipulated in Ext.P1 for submission of

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applications. He had, at the time of interview, produced Ext.P4 certificate to prove that he had worked as General Manager of Kottarakkara Co-operative Urban Bank Limited, No.1909 during the period from 01-02-2006 to 31-01-2009. The Commission did not, however, include him in Ext.P6 ranked list which was published on 28-09-2011. The writ petitioner has averred that such non-inclusion is on account of the view taken by the Commission that the experience gained by him as General Manager of Kottarakkara Co-operative Urban Bank Limited cannot be reckoned as adequate qualification for the reason that the experience was gained while he was on deputation. The instant writ petition was thereupon filed on 12-10-2011 seeking the following reliefs:

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“a) Call for the records connected with the case.

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b) issue a writ of mandamus or appropriate writ, order or direction, directing the 1^st respondent to include the name of the petitioner in the amended rank list.

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c) declare that the exclusion of the name of the petitioner in the rank list is arbitrary, illegal and without jurisdiction.

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d) declare that the petitioner has worked in a supervisory post in the last 4 years as a Manager.

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e) pass such other orders as are deemed fit, fair, just and necessary in the circumstances of the case.”

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Though none of the selected candidates were on the party array, the candidate ranked first in Ext.P6 ranked list got himself impleaded by filing I.A.No.17303 of 2011 which was allowed as per order passed on 09-11-2011. The Commission as well as the additional 4^th respondent resisted the writ petition by filing separate counter affidavits. The petitioner filed two additional affidavits reiterating the contentions raised in the writ petition. He also contended that one A.Sunil Kumar who possesses the same qualification and had also acquired the requisite experience while serving on deputation in Malakkapara Girijan Service Co-operative Society, Malakkapara, Thrissur, was selected and appointed pursuant to the very same notification as Deputy General Manager in Palakkad District Co-operative Bank. The second respondent filed a counter affidavit dated 21-07-2012 wherein it contended that the petitioner possesses the prescribed qualifications and was fully qualified for appointment to the post of Deputy General Manager in District Co-operative Bank, Kollam. Later, a statement dated 21-11-2014 was also filed. Though in the said statement it was contended that he did not have three

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years experience in a supervisory/managerial cadre as per Kerala Co-operative Subordinate Service Rules, 1962, the second respondent conceded even in the statement dated 21-11-2014 that the experience gained by the petitioner as General Manager of Kottarakkara Co-operative Urban Bank Limited is experience in Managerial/Supervisory cadre as stipulated in Rule 186(1)(ib) of the Kerala Co-operative Societies Rules, 1969, hereinafter referred to as “the Rules” for short.

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The learned single Judge after considering the rival contentions dismissed the writ petition by judgment delivered on 22-11-2014 holding that as the petitioner was not holding a substantive post in a supervisory/managerial cadre, the experience gained by him in the Kottarakkara Co-operative Urban Bank Ltd. cannot be taken into account. Hence this writ appeal.

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We heard Smt.Sindhu S., learned counsel for the appellant, Sri.P.C.Sasidharan, learned standing counsel for the Commission, Sri.Sunil Kumar Kuriakose, learned Senior Government Pleader appearing for the Registrar of Co-operative Societies and Sri.C.P.Sabari, representing Sri.P.N.Mohanan, learned counsel appearing for the fourth respondent. Learned counsel appearing for the appellant contended, referring to Rule 10(ab) of Part-I of the Kerala State and Subordinate Services

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Rules (KS&SSR for short) that there is nothing in Rule 10 (ab) to justify the stand taken by the Commission that the experience gained by the appellant while he was serving on deputation as General Manager of Kottarakkara Co-operative Urban Bank Limited, cannot be reckoned as experience for the reason that the substantive post held by him was that of Junior Inspector of Cooperative Societies. Learned counsel contended that if the experience gained by a person appointed on a temporary basis can be taken into account, there is no reason why similar experience gained by person appointed on deputation cannot be taken into account. Learned counsel contended that Rule 10(ab) excludes only experience gained as paid or unpaid apprentices, trainees and casual labourers, that the experience gained while serving on deputation is not thus excluded and therefore, the stand taken by the Commission is clearly untenable. Learned Senior Government Pleader appearing for the Registrar of Cooperative Societies supported the appellant contending that the experience gained by the appellant as General Manager of Kottarakkara Co-operative Urban Bank Limited can be considered as experience in a Managerial/Supervisory cadre in co-operative institutions as stipulated in Clause (ib) of sub rule (I) of Rule 186 of the Kerala Co-operative Societies Rules, 1969.

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Per contra, Sri.P.C.Sasidharan, learned standing

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counsel appearing for the Commission and Sri.C.P.Sabari, representing Sri.P.N.Mohanan, learned counsel appearing for the fourth respondent contented that as the substantive post with the writ petitioner was holding was that of Junior Inspector of Cooperative Societies, the experience gained by him during the period he had served as General Manager of Kottarakkara Cooperative Urban Bank Limited cannot be taken into account. They contended that Rule 10 (ab) of Part-I, KS & SSR does not recognize the experience gained by a person appointed on deputation and therefore, the writ petitioner is not qualified for appointment to the post.

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In reply, learned counsel for the petitioner submitted that pursuant to the notification issued by the Commission in the year 2010, the writ petitioner had applied for appointment by direct recruitment to the post of Deputy General Manager in Kerala State Co-operative Bank, that after interview he was selected and ranked as Rank No.2 in the ranked list published by the Commission on 14.11.2016 and based on inclusion of his name in the ranked list, he was advised for appointment and was appointed as Deputy General Manager in Kerala State Cooperative Bank. Referring to the affidavit filed in support of

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I.A.No.1617 of 2015 filed in this appeal, learned counsel submitted that the appellant was also included as Rank No.6 in Annexure IV ranked list for appointment to the post of Chief General Manager in Apex Societies in Kerala. Inviting our attention to Annexure -IV ranked list which came into force on 14.09.2015, learned counsel for the appellant submitted that as the appellant has been found suitable for appointment as Deputy General Manager in the Kerala State Co-operative Bank and as Chief General Manager in Apex Societies in the co-operative sector, based on the very same experience and qualifications, the appellant is entitled to succeed.

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We have considered the submissions made at the Bar by learned counsel appearing on either side. The short question that arises for consideration before us is whether the experience gained by an applicant seeking appointment to the post of Deputy General Manager in a District Co-operative Bank, while he was working on deputation in a Managerial/Supervisory capacity in a co-operative institution can be taken into account for the purposes of Rule 10(ab) of Part-I, KS & SSR. The qualifications prescribed in Rule 186 of the Rules for appointment to the post of Deputy General Manager in District Co-operative Banks as it stood in force at the relevant time are as follows:

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186 (1) (ib) -All Master's Degree in Business posts to be filled Administration or any other equivalent up by direct qualification recognized by the recruitment under Universities in the State or Membership sub-rules (3) and of the Institute of Chartered Accountants (4) of rule 185 of India, with experience of not less than 3 years in Managerial/supervisory cadre in Co-operative Institutions/Scheduled Banks/Government/Quasi Government Institutions/Public Limited Companies.

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Rule 186 (1) (ib) was amended with effect from 26.11.2014

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and amended Rule 186 (1) (ib) reads as follows:

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186 (1) (ib) -All posts Master's Degree in Business to be filled up by direct Administration or any other equivalent recruitment under subqualification in Banking or Finance as the rules (3) and (4) of rule main subject, recognized by the 185 Universities in the State or Membership of the Institute of Chartered Accountants of India, with experience of not less than 5 years in Managerial/supervisory cadre in Kerala State Co-operative Bank/Kerala State Co-operative Agricultural and Rural Development Bank/District Co-operative Bank/Nationalized Banks/Scheduled Banks/Government/Quasi Government Institutions/Public Limited Companies in Public Sector.

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The selection in the instant case was prior to the amendment. As per Rule 186 (1) (ib) as it then stood in force, a candidate seeking appointment to the post of Deputy General Manager in a District Co-operative Bank should have possessed a Masters Degree in Business Administration or any other qualification recognized by the Universities in the State as equivalent thereto or Membership of the Institute of Chartered

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Accountants, with experience of not less than three years in Managerial/Supervisory cadre in Co-operative Institutions/ Scheduled Banks/Government/Quasi Government Institutions/ Public Limited companies. Under the amended Rules, the Masters Degree in Business Administration or the equivalent qualification should be in Banking or Finance as the main subject and the experience should be for five years. The type of institutions in which experience is to be gained has also been changed. On the terms of Rule 186 (1) (ib) as amended with effect from 26.11.2014 the appellant/petitioner will not be entitled to rely on the experience gained by him in the Kottarakara Co-operative Urban Bank Limited to seek appointment by direct recruitment. After the aforesaid amendment, experience in Managerial/Supervisory cadre in Kerala State Co-operative Bank/Kerala State Co-operative Agricultural and Rural Development Banks/District Co-operative Banks/Nationalized Banks/Scheduled Banks/ Government/Quasi Government Institutions and Public Limited Companies in Public Sector alone will qualify.

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Rule 10 (ab) of Part-I, KS & SSR stipulates that where the Special Rules or the Recruitment Rules for a post in any service prescribe the qualification of experience, it shall, unless otherwise specified, be one gained by persons on temporary or

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regular appointment in capacities other than paid or unpaid apprentices, trainees and casual labourers in Central or State Government service or in Public Sector Undertakings or Registered Private Sector Undertakings, after acquiring the basic qualification prescribed for the post. In the proviso to the said rule it is stipulated that the experience gained as factory workers on daily wages of a permanent nature may be accepted, if the service is continuous and not of a casual nature. As per Explanation (1) to the said rule, a co-operative society registered under the Kerala Co-operative Societies Act, 1969 is recognized as a registered private sector undertaking. It is no where stipulated in the main limb of Rule 10 (ab) that the experience gained by persons employed on deputation will not be reckoned. The experience which is not recognized for the purpose of the Rule 10(ab) is experience gained by paid or unpaid apprentices, trainees and casual labourers. However, the proviso stipulates that the experience gained as factory workers on daily wages of a permanent nature may be accepted, if the service is continuous and not of a casual nature. On the terms of Rule 10 (ab) we are not persuaded to accept the contention of the respondents that the experience gained by a person appointed on deputation cannot be reckoned or taken into account. Their argument is that

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as the word “deputation” is not mentioned in Rule 10(ab) and it only deals with the experience gained by persons appointed on a temporary or regular basis, the experience gained by a person appointed on deputation cannot be reckoned. In our opinion as the rule making authority has not stipulated that the experience gained by a deputationist will not be taken into account, such experience is also, on the terms of Rule 10 (ab), liable to be accepted. The rule making authority has taken care to stipulate that the experience gained as paid or unpaid apprentices, trainees and casual labourers will not be reckoned. That being so, we find no reason or justification to read into Rule 10 (ab), a stipulation to the effect that the experience gained by a person appointed on deputation will also not be reckoned as experience gained by him or her.

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The learned single Judge has non-suited the writ petitioner on the ground that though he had served on deputation in a Managerial/Supervisory post, the post substantively held by him was that of Junior Co-operative Inspector. It is relevant in this context to note that Rule 10(ab) recognizes even experience gained by persons appointed on a temporary basis. It means even a fresh hand out of a Business School who gets a temporary appointment in a Managerial/Supervisory cadre and serves for a

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period of three years and is thereafter thrown out of service can also be treated as a person who has gained the requisite experience. The emphasis in Rule 186(1)(b) is not on the post held by the applicant prior to his appointment to a Managerial/Supervisory post, but on the experience gained by him after appointment in a Managerial/Supervisory post. The question whether he was holding another post prior to such appointment or he would continue to hold such post even thereafter is also in our opinion of no consequence. The emphasis is on the experience gained by him or her while holding a temporary or regular appointment. On the terms of Rule 10 (ab) of Part-I of the KS&SSR we find no reason or justification to hold that if a person who was working as Junior Inspector of Cooperative Societies is appointed on deputation in a Managerial/Supervisory post, he will not acquire any experience in the Managerial/Supervisory post in which he is appointed, merely for the reason that his substantive post is that of Junior Inspector and not the post of Deputy General Manager.

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The emphasis should in our opinion be on the type of undertaking in which he or she is appointed and also the nature of the post to which he or she is appointed. When the Rule making authority has not intended to deny persons appointed on

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deputation the benefit of the experience gained by them on such appointment, the view taken by the learned single Judge cannot in our opinion not be sustained having regard to the provisions contained in Rule 10(ab) of the KS&SSR. The substantive post in which the applicant was holding prior to his appointment on deputation is not in our opinion relevant for the purpose of considering the question whether the post to which he is appointed is managerial or supervisory in nature. Once it is found that the post to which he was appointed on deputation is managerial or supervisory in nature, the experience gained by him will certainly be adequate experience for appointment as Deputy General Manager in a District Co-operative Bank, provided the organization/institution is one recognized in Rule 186 (1) (ib). The position would have been different in the instant case had the notification been issued after 26.11.2014. The petitioner will not in that event be eligible to apply for the post for the reason that the co-operative institution in which he was appointed on deputation namely the Kottarakara Co-operative Urban Bank Limited will not fall within the type of institutions mentioned in Rule 186 (1) (ib) as amended.

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The view that we have taken should have ordinarily resulted in the writ petition being allowed and the reliefs prayed

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for in the writ petition being granted. It is not in dispute that pursuant to the non-inclusion of the petitioner's name in Ext.P6 ranked list, the fourth respondent was advised and he was thereupon appointed on 12.01.2012. As stated earlier the appellant is not without employment. He has been appointed to an identical post in the Kerala State Co-operative Bank Ltd which is the Apex Society of all the District Co-operative Banks and he is working as Deputy General Manager in that bank ever since 08.06.2017. It this court were to interfere with the impugned judgment and direct that the writ petitioner's name should be included in Ext.P6 ranked list it would affect the status quo obtaining ever since 28.09.2011, when the ranked list came into force. As stated earlier, being the first rank holder the additional 4^th respondent was appointed as General Manager in District Cooperative Bank, Kollam. It is not in dispute that his probation in the category of General Manager has been declared satisfactorily completed. The petitioner has also been appointed to an identical post. If this court were to interfere with Ext.P6 ranked list and direct it to be recast, it would cause prejudice to the fourth respondent. We are, therefore, of the considered opinion that in the facts and circumstances obtaining, the proper course will be to decline jurisdiction and to dismiss the writ petition as

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otherwise it would cause serious prejudice to the fourth respondent, who, as stated earlier, has been working as Deputy General Manager in District Co-operative Bank, Kollam, for the past more than six years.

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Thus even while holding that the reasoning given by the learned single Judge to non-suit the petitioner cannot be sustained, we decline jurisdiction and dismiss the writ appeal. No costs.

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Sd/-

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P.N.RAVINDRAN (JUDGE)

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Sd/-

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R.NARAYANA PISHARADI (JUDGE)

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K.Mohanan v. Kerala Public Service Commission

Case brief

What is this about?

What did the court decide?

K.Mohanan v. Kerala Public Service Commission

Case brief

What is this about?

What did the court decide?

What the court decided

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