Back
2015 Supreme(Ker) 1012
IN THE HIGH COURT OF KERALA AT ERNAKULAM
DAMA SESHADRI NAIDU, J.
SMITHA T.PILLAI – Petitioner
Vs.
JOINT REGISTRAR (GENERAL), CO-OPERATIVE SOCIETIES, MINI CIVIL STATION, PATHANAMTHITTA – Respondent
WP(C).No. 19353 of 2015
Decided on : 15.9.2015
Advocate Appeared:
For the Petitioner: SRI. RAJU JOSEPH (SR.), SRI. FIROZ K.ROBIN, SRI. J.JULIAN XAVIER
For the Respondent: SRI.P.N.MOHANAN, SRI.G.GOPAKUMAR
The rank list remained valid for two years, and the subsequent vacancy should be filled up with the candidates from the rank list.
Headnote:
Rank List - Appointment to Vacancy - Rule 182 of the Kerala Cooperative Societies Rules - The court examined the survival of the rank list even after filling up of the notified vacancies and the future vacancies. The court held that the rank list shall be valid for two years from the date of publication and the notified vacancies shall be filled up within one month from the date of publication of the rank list. The court referred to the judgment in Neena's Case and held that the rank list survives and remains valid for two years. The court also discussed the doctrine of merger and held that the ratio of Neena's Case remains undisturbed despite the reversal of the verdict in Kodakara Farmers Co-op. Bank Ltd. The court further held that Neena's Case is not hit by the principle of per incuriam and that the decision in Delson Davis passed sub silentio. The court also addressed the absence of an interim direction and held that the expiry of the rank list while the writ petition was pending does not affect the right of the petitioner to press for appointment in terms of the rank list. The court allowed the writ petition and directed the respondent Bank to appoint the petitioner to the vacancy that arose during the subsistence of the rank list.
Fact of the Case:
The petitioner responded to a notification for the appointment of Junior Clerk in a Bank. After securing the second position in the rank list, the first vacancy was filled, and another vacancy arose during the currency of the rank list. The petitioner filed a writ petition seeking appointment to the subsequent vacancy.
Finding of the Court:
The court found that the rank list remained valid for two years and the subsequent vacancy should be filled up with the candidates from the rank list. The court also held that the absence of an interim order did not affect the petitioner's right to press for appointment in terms of the rank list. The court allowed the writ petition and directed the respondent Bank to appoint the petitioner to the subsequent vacancy.
Issues: The issues determined in the present writ petition were whether the respondent employer is obligated to appoint the petitioner to a vacancy that arose subsequent to the recruitment notification and whether the doctrine of merger effaces the ratio of the judgment assailed against once a judicial appellate forum renders a judgment.
Ratio Decidendi: The rank list remained valid for two years, and the subsequent vacancy should be filled up with the candidates from the rank list. The absence of an interim order did not affect the petitioner's right to press for appointment in terms of the rank list.
Final Decision: The court allowed the writ petition and directed the respondent Bank to appoint the petitioner to the subsequent vacancy.
Introduction:
In this writ petition, the survival of the rank list even after filling up of the notified vacancies is required to be examined, especially about the future vacancies.
Facts in Brief:
2. The petitioner, a prospective job seeker, responded to the notification issued by the third respondent Board for the appointment of Junior Clerk in the second respondent Bank. In fact, at the request of the second respondent, the third respondent Board on 21.11.2011 issued a recruitment notification for one post of Junior Clerk.
3. Consequent to the recruitment notification, the petitioner along with other candidates faced the written test and the subsequent interview and eventually secured the second position in the rank list published by the third respondent.
4. Soon after the publication of the rank list, the person who secured the first position was appointed in the solitary vacancy. Nevertheless, since the validity of the rank list is two years in terms of Rule 182 of the Kerala Cooperative Societies Rules ('the Rules' for brevity), there arose another vacancy during the currency of the rank list. With hopes revived, the petitioner submitted Exhibit P4 representation before the Joint Registrar, the first respondent, apart from submitting Exhibit P5 representation before the employer Bank, the second respondent.
5. As nothing concrete has emerged subsequent to the representations made by the petitioner, he filed the present writ petition.
Summary of Submissions:
Petitioner's:
6. Sri.Raju Joseph, the learned Senior Counsel for the petitioner, has straightaway drawn my attention to Rule 182(4) of the Rules to contend that so long as the rank list subsists, it is impermissible for the employer to go for fresh recruitment under any excuse, abandoning the rank list. He has further submitted that there is a salutary purpose behind providing a period of currency for the rank list. In elaboration, he has submitted that it is not administratively convenient or, for that matter, feasible to go for piecemeal recruitment as and when any vacancy arises. In this regard, the learned Senior Counsel has also drawn my attention to the practice being adopted by the Kerala Public Service Commission. According to him, the Public Service Commission, the apex recruitment agency of the State, keeps on advising the candidates who secured rank to be appointed in the vacancies that have arisen even subsequent to the notification, so long as the rank list is not exhausted. In support of his submissions, the learned Senior Counsel has placed reliance on Kodakara Farmers Service Co-op. Bank Ltd. v. Neena, 2010 (1) KLT 541.
7. Instead of appointing the petitioner in the subsequent vacancy, submits the learned Senior Counsel, the respondent Bank passed a fresh resolution on 29.07.2014 and requested the third respondent Board to issue another notification, which, according to the learned Senior Counsel, is clearly impermissible, as it is in violation of Rule 182. In summing up his submissions, the learned Senior Counsel has sought the intervention of this Court to ensure the appointment of the petitioner in the vacancy that arose while the rank list was subsisting.
Respondents':
8. Per contra, Sri.P.N.Mohanan, the learned counsel for the respondent Bank has strenuously contested the claim of the petitioner. The learned counsel has pointed out that initially the vacancy was notified on 21.11.2011, and soon after the publication of the rank list, within thirty days therefrom the person who secured the first position was appointed. According to him, much later, i.e. on 18.02.2014, the second vacancy arose. In the light of the statutory obligation under Section 80(5) of the Kerala Co-operative Societies Act ('the Act' for brevity) the respondent Bank reserved the said post for the physically challenged persons and accordingly notified it.
9. The learned counsel has submitted that though sub-section (5) was incorporated in Section 80 of the Act in 2010, the Regi
