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2020 Supreme(Ker) 889
IN THE HIGH COURT OF KERALA AT ERNAKULAM
C.T. RAVIKUMAR, N. NAGARESH, JJ.
Sudha T.K. – Petitioner
Versus
State of Kerala Rep. by Secretary, Dept. of Co-Operation – Respondent
W.P. (C) Nos. 36842 of 2015, 15247 of 2016, 23067, 23289, 24474, 25417, 25669, 25770, 36593, 39311, 41584 of 2017, 4561, 12310, 27570, 27658 of 2018
Decided On : 22-12-2020
Advocate Appeared:
For the Petitioner: Sri. S. Manu.
For the Respondents: Smt. S.L. Sylaja, Sri. Mohamad Hashim K.S.
Important points:
The classification of candidates for recruitment to Cooperative Societies covered by Section 80B of the Act, by virtue of clause (IV-A) of sub-rule (4) of Rule 182 of the KCS Rules, is based on ‘place of birth’ and those candidates whose ‘place of birth’ is in the area of operation of the society concerned alone would be given ‘5’ marks as grace marks over and above the marks obtained by them in the interview, going by the same
Headnote:
The Constitution of India- Articles 14 , Article 15(1) ;; The Kerala Co-operative Societies Act, 1969- Section 80B;; The Kerala Co-operative Societies Rules, 1969- clause (IV-A) ,Rule 182 (4) -Classification for the purpose of grace marks -On the ground of ‘place of birth’ -The impugned clause is liable to be held as violative of Article 15(1) of the Constitution of India in view of the unfavourable bias--Clause (IV-A) of sub-rule (4) of Rule 182 of the KCS Rules is unconstitutional for being violative of Articles 14 and 15(1) of the Constitution of India and void and it is so declared- Clause No. 2 (wrongly described as clause-1) in the Notification No. 1/2017 dated 20.4.2017 (produced as Ext.P2) is also declared as unconstitutional and as such it, in so far as mandates for granting of ‘5’ marks as grace marks to candidates of home district, in case of production of ‘Nativity Certificate’ stands struck down.
Statement of facts:
whether the writ petitioners, who are candidates belonging to different districts, are entitled to get awarded 5 marks as grace marks over and above the marks for interview in their home districts, as candidates of home districts, in respect of recruitment to Co-operative Societies covered by Section 80B of the Kerala Co-operative Societies Act, 1969 in terms of the provisions under clause (IV-A) of sub-rule (4) of Rule 182 of the Kerala Co-operative Societies Rules, 1969 - Except in W.P. (C) No. 12310 of 2018, in all the other writ petitions the writ petitioners seek for award of 5 marks, over and above the marks scored by each of them, out of the total marks of ‘15’ for the interview, in respect of selections in question, in terms of the aforesaid provision under the KCS Rules. In W.P. (C) No. 12310 of 2018 there is challenge against its constitutionality.
Finding of the court:
• W.P. (C) No. 12310 of 2018 stands allowed in part by declaring clause (IV-A) of sub-rule (4) of Rule 182 of the KCS Rules as also clause No. 2 (wrongly described as clause-1) of Ext.P2 for award of ‘5’ grace marks as unconstitutional.
• Writ petitions other than W.P. (C) No. 12310/2018 the prayer is for grant of grace marks/direction to the authorities concerned to grant ‘5’ marks as grace marks in terms of clause (IV-A) of sub-rule (4) of Rule 182 of the KCS Rules in regard to the selection initiated as per Notification dated 20.4.2017 they are liable to be dismissed
• The select list has to be recast by excluding 5 marks if granted as grace marks to candidates of home district and based on the marks actually obtained in the test and interview and in accordance with the prescribed manner. Such exercise and follow up steps shall be taken expeditiously, at any rate, within a period of one month from the date of receipt of a copy of this judgment.
Result: W.P. (C) No. 12310 of 2018 stands allowed in part
W.P. (C) Nos. 36842 of 2015, 15247 of 2016, 23067, 24474, 25417, 25669, 25770, 36593, 41584, 39311 of 2017, 4561, 11887, 12310, 27570 and 27658 of 2018 are accordingly, dismissed.
JUDGMENT :
C.T. RAVIKUMAR, J.
1. This bunch of writ petitions came before us for consideration based on an Order of Reference made by a learned Single Judge. The common issue raised is that whether the writ petitioners, who are candidates belonging to different districts, are entitled to get awarded 5 marks as grace marks over and above the marks for interview in their home districts, as candidates of home districts, in respect of recruitment to Co-operative Societies covered by Section 80B of the Kerala Co-operative Societies Act, 1969 (for brevity “KCS Act”) in terms of the provisions under clause (IV-A) of sub-rule (4) of Rule 182 of the Kerala Co-operative Societies Rules, 1969 (for brevity “KCS Rules”). Except in W.P. (C) No. 12310 of 2018, in all the other writ petitions the writ petitioners seek for award of 5 marks, over and above the marks scored by each of them, out of the total marks of ‘15’ for the interview, in respect of selections in question, in terms of the aforesaid provision under the KCS Rules. In W.P. (C) No. 12310 of 2018 there is challenge against its constitutionality. The petitioner therein mainly seeks the following prayers:-
“(a) That provision contained in Rule 182(4)(IV-A) of Kerala Co-operative Societies Rules providing for award of 5 grace marks to candidate of home district is in violation of Articles 14, 15 and 16 of the Constitution of India and strike down the same.
(b) Quash Clause No. 1 in Exhibit P2 providing for award of 5 grace marks to candidate of home district as unconstitutional.”
Issuance of writ of mandamus directing the respondents to add 5 more marks to the total marks obtained by the petitioner therein in written test and interview is also sought for, in W.P. (C) No. 12310 of 2018 obviously as an alternative prayer to avoid discrimination among the candidates and in other words, to bring in parity in treatment of candidates in the recruitment process.
2. It is only proper and profitable to refer to the situation that made the learned Single Judge to adjourn the batch of writ petitions for being heard and determined by a Division Bench as per the Order of Reference. In that regard as also for a proper appreciation of the moot issue clause (IV-A) of sub-rule (4) of Rule 182 of the KCS Rules inserted by the Kerala Co-operative Societies (Amendment) Rules, 2003, requires to be extracted. It reads thus:-
“182.(4)(IV-A) Candidates of home district shall be awarded 5 marks over and above the marks for interview as grace marks.
Explanation - For the purpose of this item, candidates of home district means the candidates belonging to the district or districts to which the area of operation of the society extends.”
(Underline supplied)
3. The writ petitioners who seek direction for award of 5 marks as grace marks in terms of clause (IV-A) of sub-rule (4) of Rule 182, KCS Rules placed reliance on an unreported decision of a Division Bench of this Court in Sudheesh K.S. vs. Jeeja K.P. and Others (judgment dated 11.1.2017 in W.A. Nos. 1220 and 1228 of 2016) to fortify their claim. The aforesaid appeals arose respectively from the judgment in W.P. (C) Nos. 18301/2016 and 15192/2016 dated 31.5.2016 whereby the learned Single Judge ordered that the petitioners in the respective writ petitions be granted 5 marks as grace marks, over and above the marks for the interview, in terms of the provisions under clause (IV-A) of sub-rule (4) of Rule 182 of the KCS Rules. As per the common judgment in W.A. Nos. 1220 and 1228 of 2016 the Division Bench repelled the challenge against the common judgment in the said writ petitions holding that it could not be said that the interpretation given by the learned Single Judge to the afore-noted rule is unavailable on the clear terms of that rule as it exists, after taking note of the absence of challenge against the vires of clause (IV-A) of sub-rule (4) of Rule 182 of the KCS Rules. In other words, the question whether or not the interpretation given by the learned Single
