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2023 Supreme(Ker) 427

IN THE HIGH COURT OF KERALA AT ERNAKULAM
ALEXANDER THOMAS, C. JAYACHANDRAN, JJ.
B. Kairaly – Appellant
Versus
Deepak K. and Ors. – Respondents
W.A No.2016 of 2022, W.A No.2008 of 2022
Decided On : 04-07-2023

Advocates Appeared:
For the Appellant : K.S. Mohamed Hashim, Jawahar Jose.
For the Respondents: P.N. Mohanan, M. Sasindran, C.P. Sabari, Amrutha Suresh.

Point of Law: It is trite that, ordinarily, in service litigation, there is no scope for entertaining any public interest litigation.

Headnote:

Kerala High Court Act, 1958 – Section 5(i) - KCS Rules - Rule 187 - Kerala Co-operative Societies Act, 1969 - Companies Act, 2013 - Constitution of India, 1950 - Article 226 - Selection to post - Eligible candidates - Appeals filed under Sec.5(i) of Kerala High Court Act, are directed against impugned judgment rendered by learned Single Judge, disposing of instant Writ Petition – Method of appointment to post of Secretary of respondent is by promotion from among qualified feeder category hands - Para 8.

Finding of the Court: By allowing plea of petitioner, who is a complete outsider, will have effect of throwing R-1 in W.P(C), out of service, with result that she will neither have original post of Secretary of respondent-Primary Society, nor post of Clerk-cum-Cashier in District Co-operative Bank - Even if this is ordered, there may not be any benefit to writ petitioner – Court is of considered view that, recognizing locus in favour of petitioner and entertaining his plea, was not appropriate and proper – Court have to bear in mind that essentially and substantially, jurisdiction under Article 226 of Constitution of India, is discretionary and equitable – Court is of firm view that writ petition ought to have been dismissed - It is ordered that impugned judgment rendered by learned Single Judge, disposing of W.P(C) will stand set aside.

Result: W.P dismissed.

JUDGMENT :

(Alexander Thomas, J.)

1. The aforecaptioned writ appeals filed under Sec.5(i) of the Kerala High Court Act, are directed against the impugned judgment rendered on 02.12.2022 by the learned Single Judge, disposing of the instant Writ Petition (Civil), W.P(C)No.8756/2021.

2. The sole appellant in W.A No.2016/2022 is R-1 in the W.P(C). Whereas, the two appellants in W.A No.2008/2022 are respondents 2 & 3 in the W.P(C). R-1 in the above writ appeals is the writ petitioner. The other official respondents in the W.P(C) are also arrayed as the other respondents in these writ appeals.

3. Heard Sri.Jawahar Jose, learned counsel appearing for the sole appellant in W.A No.2016/2022, Sri.M.Sasindran, learned counsel appearing for the appellants in W.A No.2008/2022, Sri.P.N.Mohanan, learned counsel appearing for R-1 in these writ appeals (writ petitioner) and Sri.K.P.Harish, learned Senior Government Pleader appearing for the official respondents in these writ appeals.

4. Sri.M.Sasindran, learned Advocate, has appeared for R-2 and R-3 in W.A No.2016/2022. Sri.Jawahar Jose, learned Advocate, has appeared for R-2 in W.A No.2008/2022.

5. The learned Single Judge, after hearing both sides, has rendered the impugned judgment on 02.12.2022, disposing of the instant W.P(C) No.8756/2021, with the finding that the matter in issue is covered by a Single Bench verdict in the case Pradeep Kumar.A v. The Wayanad District Co-operative Bank Ltd. [judgment dated 18.03.2019 in W.P(C) No.299/2018] and that therefore, there is no question of R-1 in the W.P(C) [appellant in W.A No.2016/2022], retaining lien in her original post of Secretary of the respondent (Co-operative Society), after her advice and appointment to the post of Clerk-cum-Cashier to the erstwhile Kasaragod District Co-operative Bank under Rule 187 of the KCS Rules, on the basis of advice by the Kerala Public Service Commission, etc. Further, it has also been ordered that the competent authority of the Government will re-consider the matter adverting to the dictum laid down in Pradeep Kumar's case supra and then take decision in the matter, within four months, etc. It is this verdict of the learned Single Judge in W.P(C) No.8756/2021, that is under challenge in these writ appeals.

6. A brief reference to the four facts of this case will be pertinent.

(a) R-1 in the W.P(C) (sole appellant in W.A No.2016/2022), was an in-service employee of the respondent (Uduma Vanitha Service Co-operative Society Ltd.) and later, she was regularly promoted to the post of Secretary of the said respondent (Co-operative Society). While so, the Kerala Public Service Commission had issued selection notification, inviting applications from eligible candidates for selection to the post of Clerk-cum-Cashier in the Kasaragod District Co-operative Bank, under Rule 187 of the KCS Rules. R-1 in the W.P(C) participated in the selection process and she was found to be meritorious and she was selected in the said quota created under Rule 187 of the KCS Rules in the year 2017, as Clerk-cum-Cashier in the Kasaragod District Co-operative Bank. Pursuant to the said advice memo issued by the Kerala Public Service Commission, she was offered appointment order to the post of Clerk-cum-Cashier by the Kasaragod District Co-operative Bank. Thereupon, the respondent-Primary Society (Uduma Vanitha Service Co-operative Society Ltd.), had issued Ext.R-3(a) resolution, ordering that, in view of the PSC advice memo dated 02.02.2017, issued in favour of R-1 in the W.P(C), she will stand relieved from her post of Secretary of the Uduma Vanitha Service Co-operative Bank, in order to enable her to join duty in the selected post in the Kasaragod District Co-operative Bank. Ext.R-3(a) resolution dated 09.05.2017 of the respondent (Uduma Vanitha Service Co-operative Society Ltd.), reads as follows :

It is specifically ordered therein that the relief is only temporary in nature. It appears that, thereafter, R-1 in the W.P(C), had joined duty in

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