1998 Supreme(SC) 575

1998(4) Supreme 490
Supreme Court of India
(From Kerala High Court)
S. Saghir Ahmad & G.B. Pattanaik, JJ.
Benny T.D. & Ors. etc. etc. -Appellants
versus
Registrar Co-operative Societies & Anr. etc. etc. -Respondents
Civil Appeal Nos. 2554-56 of 1998
(Arising out of SLP (C) Nos. 9350-9352 of 1997)
With
Civil Appeal Nos. 2557-2564 of 1998
(Arising out of SLP (C) Nos. 10149-10150/97, 15444-15448/97, 9728/97)
Decided on 4-5-1998
Counsel for the Parties :
For the Appearing Parties : K.N. Bhat, V.R. Reddy, Additional Solici­tor Generals, F.S. Nariman, T.L. Viswanatha Iyer, N. Santosh Hegde, P.S. Poti, P. Krishnamurty, C.S. Vaidyanathan, K. Sukumaran, Santosh R. Hegde, Sr. Advocates, K.R. Nambiar, P.R. Ramalingam, E.M.S. Anam, Fazlian Anam, M.P. Vinod, G. Prakash, Ms. Beena Prakash, Ms. Malini Poduval, Roy Abraham, Ms. Baby Krishnan, Advocates.

Important Point
Where the appointment to the post of Clerk was made in strict compli­ance with the statutory provision provided u/s. 80(4) of the Kerala Co-operative Societies Act, 1969 and also there was no violation of provisions of Rule 187 of Kerala Co-operative Societies Rule, 1969 and such appointments were also not in excess of approved staff strength or Circular No. 18/91 of Registrar of Co-operative Societies, the appointments made by the Bank to the post of clerk would be held to be valid.

Headnote:Service Law - Kerala Co-operative Societies Act, 1969-Section 80(4)-Kerala Co-operative Societies Rules, 1969-Rule 187-Appoint­ment of Clerk-Selection process - Validity - Section 80(4) providing for 10 reservation for SCs/STs - Complied with - Non-fixing of lesser cut-off marks for SCs/STs-Does not result in violation of Section 80(4) of the Act-Rule 187 does not provide for 50 reservation for in-service candidates-Appointments not made in excess of approved strength-Appointments not in contravention of Circular No. 18/91 by Registrar stipulating appointments to be in strict compliance with Rule 187 -Allegations of irregularities in selection process-Unsus­tainable in absence of detailed particulars of the alleged irregulari­ties and non-supply of report of Commission relied on Registrar and High Court amounting to violation of principles of natural justice-Appointments to the post of Clerk made by Bank-Valid.

       Held : A plain meaning of the aforesaid provision is that 10 per cent of the posts which are to be filled up by direct recruitment must be kept reserved for the Scheduled Castes and Scheduled Tribes people. In the case in hand, when the total number of posts to be filled up were 116, 10 per cent of the said posts would work out at 11. After the written test only six of them passed the minimum pre­scribed standard fixed by the employer. But one of them was disquali­fied for having filed a wrong declaration and five were appointed. It is an admitted case that for six posts meant for the aforesaid re­served category of Scheduled Castes/Scheduled Tribes persons a fresh advertisement had been issued to hold a special recruitment so as to fill up the quota of 11, there is neither any allegation nor any finding that the quota meant for Scheduled Castes/Scheduled Tribes candidates has been usurped either by General category candidates or by candidates belonging to Primary Societies. In this view of the matter, we fail to understand how can it be held that there has been a violation of sub-section (4) of Section 80 of the Act. From the impugned judgment of the High Court, it appears that since the Bank did not give any relaxation in favour of Scheduled Castes/Scheduled Tribes candidates by fixing a lower marks for passing, the court has come to the conclusion that there has been a violation of sub-section (4) of Section 80 of the Act. In our considered opinion, the conclu­sion of the High Court on the aforesaid basis is wholly erroneous. Neither the Act nor the Rules made thereunder nor even the guidelines issued by the Registrar prescribing procedure for appointment to the post in the apex society anywhere even whisper that there should be a lesser standard of scrutiny for the Scheduled Castes/Scheduled Tribes candidates. It is well settled that when recruitment to posts is governed by statutory rules framed in exercise of power under proviso to Article 309 of the Constitution, said Rules must be strictly ad­hered to or else the appointments would be struck down for not being in conformity with such statutory Rules. Since the statutory rules of recruitment in the present case did not provide for a lower standard of scrutiny for the reserved Scheduled Castes/Scheduled Tribes catego­ry of candidates and even the Registrar had not issued any such direc­tion, the Bank cannot be held liable for not having prescribed a lesser standard of scrutiny for reserved candidates nor on that ground it can be said that there has been a violation of sub-section (4) of Section 80 of the Act. In this view of the matter, the conclu­sion of the High Court with regard to alleged infraction of sub-section (4) of Section 80 of the Act is wholly unsustainable and the same must be quashed. (Para 15)

       On a plain reading of Rule 187, by itself, it is difficult for us to accept the conclusion arrived at by the High Court to the effect that 50 of the vacancies are reserved for employees of Primary Co-operative Societies affiliated to the Bank. A combined reading of Rules 186 and 187 would lead the only conclusion that though the qualification for the posts of “Clerk” had been enumerated in Rule 186 but in respect of 50 of vacancies arising in the apex society, the in-service candidates serving in the Primary Societies will get the advantage as their experience would be treated as an additional qualification. In this view of the matter, it is difficult for us to hold that under Rule 187, 50 of the vacancies in the apex society is kept reserved for the in-service candidates serving in the Primary Societies. Mr. Reddy the learned Additional Solicitor General appearing for the Registrar faced with this position urged that though under Rule 187 apparently there has been no reservation for in-service candidates but the said Rule should be read as a part of Rule 186, both the Rules being operative in the same field, namely, prescribing qualification for appointment to the post of “Clerk” and on such a construction being given it would be logical to hold that no person would be eligible for appointment to the 50 of the vacancies arising in the apex society unless he possesses the necessary additional qualification as provided in Rule 187. Such a construction cannot be given to Rule 187 in view of the opening words of the said Rule start­ing with a non-obstante clause. When a particular provision in a statute begins with a non-obstante to the effect “notwithstanding anything contained” the idea is obvious that the provision embraced in the non-obstante clause will not be an impediment for the operation of the enactment. It would, thus, be impermissible to construe Rule 187 in the manner as contended by Mr. Reddy, the learned Additional Solicitor General, nor is it possible for us to agree with the con­struction made by the High Court in coming to the conclusion that under Rule 187, 50 of the vacancies arising in the apex society has to be kept reserved for persons belonging to the Primary Societies. The construction put to the Rule 187 by the High Court is wholly erroneous and the same cannot be sustained and consequently the ultimate conclusion that there has been an infraction of Rule 187 is unsustainable in law. (Para 17)

       Further held : Under the Rules as well as the guidelines issued by the Registrar providing the procedure for making recruitment the power of the employer to adjudge suitability has not been taken away in any manner. While, therefore, Rule 187 gives a leverage in favour of in-service candidates serving in the primary society for being considered for the posts of “Clerk” in the apex society by taking their experi­ence as an additional qualification but such additional qualification even after being taken into account if a person is adjudged unsuit­able there is no compulsion on the employer to appoint such unsuitable person. In the aforesaid premises, we are of the considered opinion that the High Court committed serious error or law by holding that there has been a violation of Rule 187 since 50 of the vacancies have not been filled up by the candidates serving in different primary societies. (Para 17)

       Merely because in the advertisement issued by the Bank probable number of vacancies had been indicated to be lesser than the number of per­sons finally appointed, one cannot jump to the conclusion that there has been an excess appointment beyond the staff strength approved by the Registrar. It is well known that during the time when an adver­tisement is issued and by the time when process of selection starts and ultimately appointment orders are issued on account of several factors the number of posts may be increased, the factors being the retirement of persons on attaining superannuation, death of several employees, promotion of the employees to higher posts and for variety other grounds. In such contingencies, when appointments are made depending upon the vacancies available and in excess of the vacancies advertised it cannot be said that the appointment has been made in excess of the strength of the cadre approved. There is neither any allegation nor nay material to sustain the finding of the Registrar that in fact appointment has been made in excess of the posts approved by the Registrar. The said conclusion, therefore, must be held to be a conclusion based on no evidence and accordingly cannot be sustained. (Para 18)

       Clause 4(e) of the circular stipulates that the conditions with regard to age-limit, qualifications, mode of appointment as laid down in the rules framed under Section 80 such as rules 183, 186, 187 of the Kerala Co-operative Society Rules shall be strictly followed. In view of our earlier conclusion that there has been no violation of Rule 187 of the Rules, the conclusion of the Registrar that appointment has been made in contravention of the aforesaid circular No. 18 of 1991 also falls through and the said conclusion cannot be sustained. (Para 19)

       The learned Single Judge came to the conclusion, and in our opin­ion rightly, that in the absence of any detailed particulars of the alleged irregularities in the notice issued to the bank under Rule 176 and in the absence of report of the Kerala Public Men’s (Corrup­tion, Investigation and Enquiries) Commission being made available to the bank or the persons appointed, it is not open to the Registrar to come to the conclusion about the irregularity and said conclusion is viti­ated on account of gross violation of the principle of natural jus­tice. The Division Bench, however, disagreed with the conclusion of the learned Single Judge on this score and relied upon the report of the Commission and came to hold that the entire selection process was vitiated by illegality and irregularity and therefore there is no other option than to cancel the appointments of all the candidates. The Division Bench was conscious of the fact that the persons to be adversely affected by the impugned decision had not been given an opportunity inasmuch as the relevant documents had not been put to them nor even to the bank who made recruitment but yet brushed aside the principle of natural justice and did not focus its attention to the same and on the other hand came to the conclusion that the process of selection got vitiated on account of alleged irregularity and illegality. In our considered opinion the Division Bench patently committed an error in relying upon the report of the Commission and in recording a finding that irregularities have been committed in the selection notwithstanding the fact that the said report had not been made available to the Bank or to the affected parties. That apart, as stated earlier in the notice that was issued by the Registrar there was no particulars given and on such vague assertions made, it was not permissible to record a conclusion that there has been any irregulari­ty in the process of selection. The said conclusion of the Division Bench must accordingly be set aside. (Para 20)

       Consequently held : In view of our conclusions as aforesaid, we hold that the order of the Registrar in annulling the resolutions of the Trissur District Co-operative Bank Limited as well as the resolution of the District Co-operative Bank, Kottayam is vitiated with manifest error and as such the said order of the Registrar cannot be sustained and we accordingly quash the same. The judgments of the High Court passed by the learned Single Judge as well as the Division Bench in writ appeal are also erroneous and the same are therefore set aside (Para 22)