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2015 Supreme(Ker) 1659
IN THE HIGH COURT OF KERALA
Ashok Bhushan, A.M. Shaffique, JJ.
Jameela - Appellant
Vs.
James Joseph - Respondent
W.A. Nos.2014 and 2016 of 2015
Decided On : 09-10-2015
For the Appellant : P.N. Mohanan.
For the Respondent:Devan Ramachandran (Sr. Advocate), George Poonthottam, K.K. Mohamed Ravuf, P.C. Sasidharan, D. Sreekumar & Sr. Government Pleader (P.I. Davis).
Headnote:
Kerala Co operative Societies Rules, 1969 - Rule 185(3) - Promotion and Recruitment - After publication of rank list 9 vacancies arose in post of Manager - In ground B petitioner has given details of 8 vacancies which arose later One more vacancy arose which was filled up by promotion of 5th respondent. Thus in the total 9 vacancies arose after publication of the rank list and, all vacancies were filled up by promotion by the Bank - Claim that action of the Bank in filling up all the vacancies only by promotion is clear breach of Rule 185(3) - Held, Rule 185(3) contemplates filling up of vacancies one by one in the ratio of 1:1 by promotion and direct recruitment - Bank is not entitled to take its own decision disregarding the mechanism provided in Rule 185(3) for deciding as to whether a particular vacancy has to be filled up by promotion or direct recruitment - Single Judge did not commit any error in directing the Bank to report the vacancy for direct recruitment since none of the above vacancies were reported to the Commission - Bank misinterpreted the Rule to benefit of promotees which action is unsustainable.
Ashok Bhushan, J.
These two Writ Appeals have been filed against the common judgment dated 17.08.2015 by which the Writ Petition filed by the 1st respondent herein has been allowed. W.A. No.2016 of 2015 has been filed by the 1st respondent to the Writ Petition No.24461 of 2014, i.e., Thrissur District Cooperative Bank Ltd and W.A. No.2014 of 2015 has been filed by the additional 5th respondent in the Writ Petition. Parties shall be referred to as described in the Writ Petition.
2. Brief facts giving rise to the Writ Petition are: The 1st respondent, Thrissur District Co-operative Bank (for short, “the Bank”) is the Central Society registered under the Kerala Co-operative Societies Act, 1969 (for short, “the 1969 Act”). There are three sanctioned posts of Dy.General Manager in the Bank. One vacancy in the post of Dy.General Manager was notified by the Bank to the Kerala Public Service Commission (for short, “the Commission”) vide letter dated 20.12.2003 for direct recruitment. After reporting of the said vacancy, the Commission issued notification dated 13.11.2009 in two parts; Part I and Part II. Part I (category No.404/09) mentioned one vacancy of Deputy General Manager in the Bank along with other vacancies in the different banks by direct recruitment. By part II, (category No.405/09) the Bank invited applications for anticipatory vacancies in the banks which are to be filled up by direct recruitment from qualified employees of the member societies/primary societies affiliated to the concerned District Co-operative Banks. On the basis of the above notification, petitioner and other candidates submitted their applications against both the Notifications, i.e., Part I and II. The Commission published a rank list against the notification dated 13.11.2009 for both Part I and II. In both the rank list petitioner was at serial No.2. The first person in the rank list, P.R.Ravichandran could be given appointment as a direct recruit after an order of this Court in W.P(C) No.17209 of 2011 dated 05.03.2012. Order of this Court was challenged before the Apex Court by the Bank which appeal was dismissed and consequently, the 1st person in the rank list could be appointed in the Bank only on 02.09.2014. After preparation of the rank list which was enforced with effect from 26.09.2011 at least nine vacancies arose in the Bank in the post of Dy.General Manager which vacancies were filled up by promotion. Petitioner who was at serial No.2 in the rank list filed the Writ Petition praying for the following reliefs:
“(i) issue a writ of mandamus or any other appropriate writ, order or direction, directing the 1st respondent to report the 3 vacancies of Deputy General Manager to the 3rd respondent.
(ia) to declare that the promotions given to the post of Deputy General Manager to the vacancies which arose from 01.12.2012 onwards, including the 5th respondent overlooking the claim of the petitioner, is illegal.
(ib) issue a writ of mandamus or any other appropriate writ, order or direction, directing the 1st respondent to report one vacancy of Deputy General Manager to respondents 2 and 3 forthwith.
(ii) issue writ of mandamus or any other appropriate writ, order or direction directing the 3rd respondent to advise the name of the petitioner to be appointed to the post of Deputy General Manager in the 1st respondent bank.
(iii) issue a writ of mandamus or any other appropriate writ order or direction, directing the 1st respondent bank to appoint the petitioner as Deputy General Manager as per advice of the respondent No.3.”
3. In the Writ Petition counter affidavit was filed by the 1st respondent pleading that the petitioner has no right to claim appointment on the basis of the rank list dated 26.09.2011, since on the basis of the rank list appointment of P.R.Ravichandran has already been made as a direct recruit and the vacancy for which t
