Kerala High Court
Sreekanth.K vs Secretary To Government on 26 October, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
THURSDAY, THE 26TH DAY OF OCTOBER 2023 / 4TH KARTHIKA, 1945
WP(C) NO. 6277 OF 2023
PETITIONERS:
1 SREEKANTH.K.
AGED 32 YEARS
S/O SASINDRAN, KANIYALAKOOVATHUDI, ARAKKUPARAMBA,
MALAPPURAM,, PIN - 679341.
2 JOHN PALOCAREN
AGED 31 YEARS
S/O JOSE PALOCAREN, PALOCAREN HOUSE, MANNUTHY P.O.,
THRISSUR,, PIN - 680651.
BY ADVS.
R.T.PRADEEP
M.BINDUDAS
K.C.HARISH
RESPONDENTS:
1 SECRETARY TO GOVERNMENT
AGRICULTURE DAIRY DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM,, PIN - 695001.
2 ERNAKULAM REGIONAL CO-OPERATIVE MILK PRODUCERS' UNION LTD.
P.B. NO.2212, EDAPPALLY, ERNAKULAM, KOCHI - 682024,
REPRESENTED BY ITS MANAGING DIRECTOR.
3 MANAGING DIRECTOR
ERNAKULAM REGIONAL CO-OPERATIVE MILK PRODUCERS' UNION LTD.,
P.B. NO.2212, EDAPPALLY, ERNAKULAM, KOCHI, PIN - 682024.
*ADDL R4 RATHEESH K.R,
AGED 44 YEARS, S/O. RAVINDRAN, WORKING AS GRADE I,
TECHNICIAN IN MILMA ERNAKULAM DAIRY, RESIDING AT
KANATTUSSERY, NANTHIATTUKUNNAM, NORTH PARAVUR, ERNAKULAM,
PIN-683513.
*ADDL R5 SARATHKUMAR S,
AGED 41 YEARS, S/O. SUBRAMANIAN, THUMPUNKAL THEKKEPARAMBU
W.P.(C) No. 6277 of 2023 2
HOUSE, PALIYAKERA, ANGAMALY.P.O., ERNAKULAM, PIN-683572.
*ADDL R6 SABU VARGHESE,
AGED 56 YEARS, S/O. PEREPPADAN PAULO, PULIYANAM
PARAKKADAVU ERNAKULAM, PIN - 683572.
*ADDL R7 SHAJAN VARGHESE,
AGED 53 YEARS, S/O. K.K VARGHESE, KAVUNGUMPILLIL KARINGAZHA
CHELAD P.O KOTHAMANGALAM KEERAMPARA KERALA - 686681.
*(ARE IMPLEADED AS ADDL.R4 TO R7 AS PER ORDER DATED
22.08.2023 IN IA 1/2023 OF WP(C))
BY ADVS.
LATHA ANAND, SC
C.S.AJITH PRAKASH
T.K.DEVARAJAN
BABU M.
ANCY THANKACHAN
NIDHIN RAJ VETTIKKADAN
GOURI KAILASH
SMT MARY BEENA JOSEPH, SR. GP.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 26.10.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C) No. 6277 of 2023 3
JUDGMENT
The ERCMPU (Ernakulam Regional Co-operative Milk Producers' Union) is
a Co-operative Society affiliated with the Kerala Co-operative Milk Marketing
Federation Ltd. for the Ernakulam region, governed by the Kerala Cooperative
Societies Act, 1969. The petitioners assert that they hold B.Tech Degrees and
they applied for the position of Technical Superintendent (Engineering)
pursuant to Ext.P1 notification issued by the Society inviting applications from
qualified persons.
2. It is the case of the petitioners that there were five posts of
Assistant Engineers [earlier termed as Technical Superintendent (Engineering)]
notified for Direct recruitment. After evaluating the scores of the applicants,
Ext.P2 rank list was issued, which was valid for two years from 18/2/2021.
They state that the 1st petitioner secured 8th rank, and the 2nd petitioner was
placed as rank No 10.
3. The Recruitment and Promotion Rules of the ERCMPU ('Rules' for
the sake of brevity) outline qualifications and conditions for the services of
officers and servants of the three Regional Milk Unions. There are three
methods for filling the position: Direct recruitment, Transfer Appointment, and
Transfer Recruitment. The Rules do not specify the method for appointing
Assistant Engineers. According to the petitioners, the appointment has to be
through Direct Recruitment due to its entry cadre status.
4. The petitioners contend that despite five vacancies being
advertised by way of Direct Recruitment, the Board of Directors decided to
create five Assistant Engineer positions by downgrading certain higher posts,
aiming to fill them from the ranked list. As technically qualified B.Tech Degree
holders, the petitioners contend that if the intent was so, there was no need
for the protracted recruitment process.
5. It is contended that the Recruitment Committee approved the
creation of five Assistant Engineer positions, acknowledging the 2nd
respondent's requirement for technically qualified individuals from the ranked
list. Three positions were filled with two candidates from the ranked list and
one through transfer recruitment, involving a technician with a Diploma, as per
the Rules. The petitioners assert that filling one position through Transfer
Recruitment would go against the intended purpose of creating the post. They
assert that the Board of Directors resorted to this action under pressure from
the Labour Unions, and according to them, the respondents are planning to fill
the remaining two positions with Diploma holders and ITI certificate holders,
who, according to them, are technically unqualified individuals. It is contended
that appointing a Diploma holder through Transfer Recruitment would violate
the applicable promotion Rules approved by the Government. The qualification
for Direct Recruitment to the position of Assistant Purchase Officer is a B.Tech
Degree akin to that of an Assistant Engineer. The staff pattern includes three
Assistant Purchase Officer positions. As one was filled through Transfer
Recruitment without a B.Tech degree holder, the remaining two vacancies
should be filled from the ranked list through Direct Recruitment, given the
identical qualifications for Assistant Purchase Officers and Assistant Engineers.
Highlighting the above grievances, the petitioners are stated to have submitted
Ext.P5 representation to the 3rd respondent. However, no action was taken. It
is under these circumstances that this Writ petition is filed, seeking the
following reliefs:
i) To issue a writ of mandamus or any other appropriate writ,
order or direction to the respondents 2 and 3 to fill up the
remaining 2 vacancies of Assistant Engineers created in
pursuance to Ext.P4 from Ext.P2 rank list dehors any contrary
decision taken by the Board of Directors and Recruitment
Commitee within such time fixed by this Hon'ble Court.
ii) To issue a writ of mandamus or any other appropriate writ,
order or direction to 3rd respondent to take a decision on Ext.P5
after affording an opportunity of being heard to petitioners
within such time fixed by this Hon'ble Court and keep in
abeyance all proceedings to fill up the remaining two vacancies
of Assistant Engineers forming part of 5 post created in
pursuance to Ext.P4 till a decision is taken on Ext.P5.
6. A counter affidavit has been filed by respondents 2 and 3. Apart
from challenging the maintainability of the petition, it is contended that the
mere inclusion of the petitioners' name in the ranked list would not confer
them with an indefeasible right to appointment to the post. As per Ext. P1
notification, five posts of Technical Superintendent (Engineering) were
advertised for Direct Recruitment. The validity of the ranked list expired on
17/02/2021. All five vacancies notified under Ext.P1 were filled from Ext. P2
ranked list. Four candidates from the general category and one candidate from
the Scheduled Caste Category were appointed to the post. Subsequently, one
of the four persons in the General Category who had joined pursuant to Ext.
P1 notification resigned, and the vacancy was filled through Transfer
Recruitment.
7. It is stated that based on the recommendation of the Personnel
Committee, the Board of Directors of the 2nd respondent decided to
downgrade five higher posts to the entry-level post of Assistant Engineer.
These five vacancies were created through this downgrading to accommodate
qualified Engineers within the organization. This decision was made while the
Ext.P2 rank list was in effect, and three persons from the downgraded
vacancies were appointed from the Ext.P2 rank list on 3/2/2023. The decision
of the Board was approved by the Recruitment Committee constituted under
Section 80 BB of the Kerala Co-operative Societies Act.
8. According to the Recruitment and Promotion Rules of ERCMPU,
there are three modes of filling the post of Technical Superintendent
(Engineering): (i) Direct Recruitment, (ii) Promotion by Selection, and
(iii) Transfer Appointment. The qualifications for these modes differ as per the
Recruitment and Promotion Rules. For Direct Recruitment, the minimum
qualification is a B.Tech Degree in Mechanical/Electrical/
Electronic/Civil/Instrumentation Engineering or an M.Tech Degree in Dairy
Engineering with 2 years of experience; for Transfer Recruitment, the
qualification is a Diploma with 3 years of experience as a Technician in the
ERCMPU, and Transfer Recruitment is confined to existing employees of the
ERCMPU who satisfy the essential qualifications and experience. The ratio
between Direct Recruitment, Promotion by Selection, and Transfer
Appointment is 1:1:1. After the five notified vacancies were filled from Ext. P2
rank list, one of the existing employees retired on 31/07/21. The consequent
vacancy was filled through Promotion by Selection as stipulated in the
Recruitment Rules. Subsequently, on 29/11/2021, one of the candidates
appointed from Ext. P2 rank list resigned.
9. According to the Rules, the said vacancy is to be filled through
Transfer Recruitment, and Mr. Alagesan (Technician Grade 1) was posted
through Transfer Recruitment. Subsequently, five vacancies were created by
downgrading as per the decision of the Board of Directors dated 19/05/2022.
Out of these five vacancies, three were filled from Exhibit P2 ranked list and
appointed the 5th, 6th & 7th rank holders. The remaining two vacancies are to
be filled through Transfer Recruitment and Promotion by Selection as per the
Recruitment and Promotion Rules. It is stated that the petitioners cannot claim
appointment to the two vacancies presently available in the post of Assistant
Engineer. It is further stated that Exhibit P2 ranked list pertains to Assistant
Engineer, and therefore, the petitioners cannot assert a claim to be appointed
to the post of Assistant Purchase Officer.
10. In the counter-affidavit filed by the additional respondent, they
reiterate the contentions raised by respondents 2 and 3 in their
counter-affidavit. They assert that the challenge was raised only on 22/2/2023
after the ranked list had expired. Furthermore, the vacancy that has occurred
is not in respect of the job notified in Ext. P1. It is stated that the additional
respondents are qualified to be appointed to the post of Assistant Engineer,
any delay in getting their transfer Recruitment ratified would lead to them
losing an opportunity to aspire for promotion.
11. I have heard Sri. R.T. Pradeep, the learned counsel appearing for
the petitioners, Sri. Latha K. Anand, the learned counsel appearing for
respondents 2 and 3, and Sri. Ajith Prakash, the learned counsel appearing for
the party respondents.
12. I have carefully considered the submissions advanced and have
gone through the records.
13. The records disclose that Ext.P2 rank list expired on 17.2.2023,
and the writ petition was filed on 22.2.2023. The petitioners contend that as
they occupy the 8th and 10th position in the General Category in the Ext.P2
rank list, they are entitled to be appointed, ignoring the decision taken by the
Board of Directors and the Recruitment Committee. This Court in Kerala
Public Service Commission v. Dr. Kesavankutty Nair1 had occasion to
hold that a candidate in a rank list does not get an indefeasible right to be
appointed. The aforesaid view has been upheld by a Full Bench of this Court
in Unnikrishnan Nair G.S. and Ors. v. State of Kerala and Ors.2
Furthermore, in Association of Milma Officers v State of Kerala3, a Larger
Bench of this Court had occasioned to hold that a writ petition under Article
226 can be maintained only when the action complained of in the writ petition
of any statutory violation on the part of the Society. The petitioners have no
case that the respondents are guilty of having committed any statutory
violation. In view of the settled position, it is doubtful whether this writ
petition is maintainable under Article 226 of the Constitution of India. However,
[1977 KLT 818]
[2019 (2) KHC 24]
2015(1) KLT 849
as the writ petition strands admitted, the grievance raised by the petitioners
can be looked into.
14. It is undisputed that there is a specific mode for filling up the post
of Technical Superintendent in Engineering. The appointment is by the ratio of
1:1:1 between "Direct Recruitment," "Promotion by Selection," and
"by-transfer" appointments. The records disclose that Ext.P1 notification was
invited to fill up five vacancies for the post of Technical Superintendent
(Engineering). The five notified vacancies were, in fact, filled up from the
Ext.P2 rank list. While so, an existing employee who was not appointed
pursuant to Ext.P1 notification attained superannuation on 31.7.2021. The
consequent vacancy which arose was filled up through promotion by selection
as stipulated in the Rules. The course adopted by the respondents cannot be
faulted since after vacancies were filled up by Direct Recruitment, the next
turn was for 'Promotion by Selection.' Later, on 29.11.2021, one of the
candidates appointed from the Ext.P2 rank list tendered his resignation. In
terms of the Recruitment and Promotion Rules, the said vacancy is to be filled
up through 'By-transfer' recruitment. Subsequently, five vacancies were
created by downgrading in terms of the decisions of the Board of Directors
dated 19.5.2022. It appears that the said decision was taken while the rank list
was in force, and three persons were appointed from Exhibit P2 Rank List. This
clearly is in accordance with the Recruitment Rules, and this decision taken by
the Board has been approved by the Commitee as well. The remaining two
vacancies were filled up through the mode of "by-transfer" recruitment and
"promotion by selection." This fact would be evident from Exhibit R2(c). As the
posts were filled up in accordance with the Recruitment Rules and following
the turn, the claim of the petitioners cannot be acceded to.
After having considered the facts of the instant case in all its
perspectives, I find no reason to grant the prayers sought for by the
petitioners. This petition will stand dismissed.
There will be no order as to costs.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
PS
APPENDIX OF WP(C) 6277/2023
PETITIONERS EXHIBITS
Exhibit P1 TRUE COPY OF NOTIFICATION DATED 25.10.2019 BY
WHICH 2ND RESPONDENT NOTIFIED SELECTION AND
APPOINTMENT TO THE POST OF TECHNICAL
SUPERINTENDENT (ENGINEERING).
Exhibit P2 TRUE COPY OF RANK LIST FOR THE POST OF
TECHNICAL SUPERINTENDENT (ENGINEERING)
PUBLISHED ON 18.2.2021.
Exhibit P3 TRUE COPY OF G.O. (MS) NO.1/2021/DDD DATED
19.1.2021 BY WHICH THE RULES HAVE BEEN APPROVED
BY THE GOVERNMENT.
Exhibit P4 TRUE COPY OF THE PROPOSAL SUBMITTED BY 3RD
RESPONDENT FOR THE CREATION OF 5 POSTS TO
ENDURE TO THE BENEFIT OF RANKED CANDIDATES
BEFORE THE BOARD OF DIRECTORS WHICH IS NIL
DATED.
Exhibit P5 TRUE COPY OF REPRESENTATION DATED 15.2.2023 OF
PETITIONERS BEFORE THE 3RD RESPONDENT.
RESPONDENTS EXHIBITS
Exhibit R2(a) True copy of the extract of the minutes of the
meeting of the Board of Directors of the ERCMPU
held on 19.05.2022.
Exhibit R2(b) True copy of the relevant pages of the
Recruitment and Promotion Rules of ERCMPU.
Exhibit R2(c) True copy of the minutes of the 16th meeting of
the Recruitment Committee of the ERCMPU dated
09.02.2023.
