Haridas M.S vs State Of Kerala
2021 Latest Caselaw 9432 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                 THE HONOURABLE MR. JUSTICE AMIT RAWAL

     MONDAY, THE 22ND DAY OF MARCH 2021 / 1ST CHAITHRA, 1943

                       WP(C).No.17128 OF 2020(M)


PETITIONER/S:

                HARIDAS M.S.,
                AGED 53 YEARS
                SECRETARY,PALAKKAD DISTRICT POSTAL,TELECOM AND BSNL
                EMPLOYEES,CO-OPERATIVE SOCIETY LTD,NO.P.638,
                PALAKKAD,RESIDING AT GEETHA NIVAS,VARKAD,
                MUTTIKULANGARA POST,PALAKKAD-678594.

                BY ADV. SHRI.U.BALAGANGADHARAN

RESPONDENT/S:

      1         STATE OF KERALA
                REPRESENTED BY SECRETARY,
                CO-OPERATIVE DEPARTMENT,
                SECRETARIAT,THIRUVANANTHAPURAM-695001.

      2         THE REGISTRAR OF CO-OPERATIVE SOCIETIES,
                THIRUVANANTHAPURAM-695001.

      3         KERALA STATE CO-OPERATIVE BANK,
                REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER,PB
                NO.6515,
                COBANK TOWERS,PALAYAM,
                THIRUVANANTHAPURAM-695033.

      4         THE ADMINISTRATOR,
                KERALA STATE CO-OPERATIVE BANK,
                PBNO.6515,COBANK TOWERS,PALAYAM,
                THIRUVANANTHAPURAM-695033.

      5         THE CHIEF EXECUTIVE OFFICER,
                KERALA STATE CO-OPERATIVE BANK,
                PB NO.6515,COBANK TOWERS,PALAYAM,
                THIRUVANANTHAPURAM-695033.

      6         THE SECRETARY,
                KERALA PUBLIC SERVICE COMMISSION,
                PATTOM,THIRUVANANTHAPURAM-695004.

      7         THE DISTRICT OFFICER,
                KERALA PUBLIC SERVICE COMMISSION,
 WP(C).No.17128 OF 2020(M)

                               2

             CIVIL STATION,PALAKKAD-678001.

             R1-2 BY GOVERNMENT PLEADER
             R5 BY ADV. SRI.GILBERT GEORGE CORREYA

OTHER PRESENT:

             GP SRI B HARISH KUMAR

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-
03-2021, THE COURT ON 22-03-2021 DELIVERED THE FOLLOWING:
 WP(C).No.17128 OF 2020(M)

                                    3




                              JUDGMENT

Dated this the 22nd day of March 2021

Through the instant writ petition, the petitioner has sought

indulgence of this Court for issuance of writ in the nature of

mandamus directing the 3rd respondent to report one vacancy of

General Manager existed in the erstwhile Palakkad District Co-

operative Bank and 6 other vacancies of General Managers existing

across the State to the 6 th respondent as the petitioner being the rank

No.1 in Ext.P4 rank list. Both the counsel admitted before this Court

that the validity of the rank list is upto August 2021.

2. The petitioner was appointed as Secretary of Palakkad

District Postal, Telecom and BSNL Employees, Co-operative Society

Ltd on 2.1.1992. On 31.12.2014, the Kerala Public Service

Commission (KPSC) issued two notifications inviting applications for

the post of General Manager against Category No.666/14 and 667

from eligible employees of members societies/Primary Co-operative

Societies. The petitioner submitted application for the above post,

in response to Ext.P2 notification. After due process of selection the

6th respondent brought out 2 rank lists pursuant to Exts.P1 and P2

notifications on 6.3.2018. In the rank list of category 666/2014 ie. in WP(C).No.17128 OF 2020(M)

respect of direct recruitment, there were nine(9) candidates while

in the rank list drawn on category 667, only one candidate, who is

none other than the petitioner. One Sri.Jillsmon Jose, who stood at

Rank No.1 in Ext.P3 rank list was advised and appointed as

General Manager of PDC Bank. By virtue of amendment to the

Kerala Co-Operative Societies Act, 2019, the District Co-operative

Bank have been amalgamated into State Co-operative Bank.

3. Learned Counsel for the petitioner submitted that the plea of

the petitioner is most innocuous in as much as the vacancy is

available and the validity of the rank list has not been so far

expired. The respondent cannot take up the plea that even after the

amalgamation they cannot issue advice to the KPSC as is evident

from Exts.P9 and P10 in respect of vacancies against the category

Nos.433 and 434 of 2009. Since the State Co-operative Bank has

taken over all the DCBs, with its excess liabilities, it is the duty to

report the vacancy of General Manager to the KPSC.

4. On the contrary learned Counsel for the respondent Bank

raised objection qua maintainability of the writ petition on the

premise that, it is not a matter of right of a person to claim

appointment in case he has been ranked in the rank list but only a

right of consideration. Attempt to make case of discrimination is

wholly futile and non-existent, in as much as that Jillsmon Jose, who WP(C).No.17128 OF 2020(M)

stood at Rank No.1 in the rank list was under category 666/2014,

whereas the petitioner falls under the category 667/2014 and the

vacancies were anticipated ones. Jillsmon Jose was appointed on

28.9.2018 on the basis of the advice memo. He joined as General

Manager in the erstwhile Palakkad District Co-operative Bank of

5.10.2018 much prior to the date of amalgamation. This Court had

already in W.P(C)No.19568/2020 decided on 12.10.2020 as far as

the petitioner therein was concerned, and ordered the transfer to

be kept in abeyance until and unless the Government does not

adheres in letter and spirit the approval of scheme of amalgamation

as per provisions of sub Rule (5) of Rule 28A) (newly inserted) of the

Kerala Co-operative Societies Rules, in accordance with law and

urged this Court that the present writ petition is wholly premature

at this stage.

5. I have heard learned Counsel for the parties and

appraised the paper books.

6. The erstwhile employees of the District Co-operative

Bank merged with the State Co-operative Bank laid challenge to the

transfer vide W.P.(C)No.19568/2020. On consideration of the matter,

much less the notification whereby section 74 (h) under Chapter X

(c) was inserted and Rule 28A, this Court noticed that once the

scheme of amalgamation is stipulated a scheme for integration of WP(C).No.17128 OF 2020(M)

cadre, seniority, promotion, transfer, service condition and such

other matters related to the employees of the transferor bank and

transferee bank in the services of the transferee bank any action

related would be in abeyance. Sub rule 5 under 28 A inserted to the

Kerala Co-operative Bank reads thus:

"28A Special provisions in respect of the Kerala Co-operative Bank.

(1.1) xxxx (1.2) xxxx (1.3) xxxx (1.4) xxxx Government shall by notification in the official gazette make changes in recruitment rules, staff regulations, promotions policy and all other establishment matters of the Kerala State Co-operative bank, in consultation with the Kerala Public Service Commission, based on the proposals from Registrar of Co-operative Societies from time to time."

7. On a perusal of the same, it is evident that the Government

is enjoined an obligation by notification to make changes in the

recruitment rules, staff regulations, promotion policy and all other

matters of Kerala Co-operative Bank in consultation with KPSC, based

on the proposals from the Registrar of the Kerala Co-operative

Societies from time to time as all excess liabilities of the Bank

merged with transferree Bank, until the finalisation of the same, no

such recruitment or advice can be suggested. The entire process of

seniority, recruitment process existence of vacancies or filling up of

the vacancies, much less the staff strength, cadre strength have to be WP(C).No.17128 OF 2020(M)

reformatted. As far as the grievance of the petitioner with regard to

sending advice to KPSC with regard to category Nos.433 and 434 as

seen from Exts.P9 and P10, the same would not be applicable on the

ground of discrimination, as it was only a provisional exercise ie., the

provisional appointment chart whereas the rank list of the petitioner

was only on anticipatory vacancy, which now would be a matter of

consideration after amalgamation. No ground of interference is made

out. The writ petition is accordingly dismissed.

Sd/

AMIT RAWAL

JUDGE

Jm/ WP(C).No.17128 OF 2020(M)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF NOTIFICATION ISSUED BY THE 6TH RESPONDENT DATED 31.12.2014 AGAINST THE CATEGORY NO.666/14

EXHIBIT P2 A TRUE COPY NOTIFICATION ISSUED BY 6TH RESPONDENT DATED 31.12.2014 AGAINST CATEGORY NO.667/2014

EXHIBIT P3 A TRUE COPY OF RANKED LIST ISSUED BY 6TH RESPONDENT DATED 6.3.2018 AGAINST CATEGORY NO.666/2014

EXHIBIT P4 A TRUE COPY OF THE RANKED LIST ISSUED BY 6TH RESPONDENT DATED 6.3.2018 AGAINST CATEGORY NO.667/2014

EXHIBIT P5 A TRUE COPY OF NOTIFICATION ISSUED BY THE LAW (LEGISLATION-H)DEPARTMENT DATED 14.2.2019

EXHIBIT P6 A TRUE COPY OF THE NOTIFICATION GO(P)66/2020/C0-OP SRO NO.468/2020 DATED 15.7.2020

EXHIBIT P7 A TRUE COPY OF PROCEEDINGS DATED 29.11.2019 ISSUED BY THE SECOND RESPONDENT

EXHIBIT P8 A TRUE COPY OF THE SCHEME OF AMALGAMATION APPENDED TO EXT.P7 PROCEEDINGS

EXHIBIT P9 A TRUE COPY OF APPOINTMENT CHART OF BRANCH MANAGERS DOWN LOADED FROM THE OFFICIAL WEB SITE OF KPSC FOR CATEGORY 433/2019

EXHIBIT P10 A TRUE COPY OF THE APPOINTMENT CHART OF BRANCH MANAGER DOWN LOADED FROM THE OFFICIAL WEB SITE OF KPSC FOR CATEGORY NO.434/2009

EXHIBIT P11 A TRUE COPY OF THE LETTER ISSUED BY THE REGIONAL OFFICE,PALAKKAD,KERALA STATE CO- OPERATIVE BANK DATED 3.8.2020 ALONG WITH TYPED COPY.