Kerala High Court · 2008

J.B. Koshy & K.P.Balachandran, JJ.-------------------------------------- W.A.No. 1768 of 2008---------------------------------------Dated this the 13rd day of November, 2008Judgment Koshy,J.Appellant is a co-operative bank registered under theKerala Co-operative Societies Act (for short 'the Act'). It called forapplications to the post of Junior Clerk. A rank list was publishedcontaining names of 15 persons. Ext.P3 is the rank list published.According to the appellant, all the 15 persons who were selectedon merit were given appointment. None of the scheduledcaste/scheduled tribe candidates were appointed. Third respondentin the writ petition made a representation to the Registrar of Co-operative Societies stating that appointments were made withoutgiving any reservation to the scheduled caste/scheduled tribecommunity. On the basis of the representation, by Ext.P4, the JointRegistrar directed the bank to consider his case and if he is entitledto get appointment in the reservation quota, he should beappointed. Petitioner filed Ext.P6 representation. Writ Petitioner isranked as No.1 and third respondent was ranked as No.2 in thesupplementary rank list prepared for scheduled castes/scheduled W.A.No.1768/2008 2tribes. Since petitioner who was ranked as No.1 was not appointed,she approached the court for directing respondent Nos.1 and 2(appellant) to appoint the petitioner to the post of Junior Clerk. Thelearned single Judge found that since 15 persons were appointedfrom the selection made, 4th and 12th places should be given tomembers of the scheduled caste community and both are entitled toget appointed. The operative portion of the judgment is as follows:"...... Since 15 posts were filled up,petitioner and 3rd respondent were entitled tobe appointed. Consequently, I direct 2ndrespondent to absorb petitioner and 3rdrespondent in the post of Junior Clerk in theservice immediately on production of a copy ofthis judgment. However, I make it clear thatthis should not lead to termination of any personalready appointed, and petitioner and 3rdrespondent also will not be entitled to claim anyseniority with reference to any anterior datebecause they did not take up the matter beforethe Court in time. The Joint Registrar will grantapproval for increasing the staff strength, if it isrequired to appoint petitioner and 3rdrespondent."2. Now, we will refer to the relevant statutory provisionsregarding reservation. Section 80 of the Act deals with appointmentof officers and servants of the societies. Originally, there was noreservation in the appointment to the co-operative societies. Sub-section (4) was inserted by Act No.29 of 1986 which was published W.A.No.1768/2008 3in the Kerala Gazette dated 30.1.1986. The relevant provision is asfollows:"Notwithstanding anything contained insub-section (1) or sub-section (2), ten per centof the posts of employees of every society shallbe reserved for appointment from personsbelonging to the scheduled castes andscheduled tribes where the method ofappointment to such posts is by directrecruitment."3. In Binu v. Registrar of Co-operative Societies (1997(1) KLT 192), it was held that the above section was valid and co-operative bank is bound to recruit candidates to the full quota ofreservation for scheduled caste candidates. While preparingranked list of candidates, persons belonging to scheduledcaste/scheduled tribe community should have been included if theyare available from among the candidates who applied for the postand appeared for the test and interview. The court held as follows:"9. The principles of reservation were invogue at least for four decades in this State.Recruitment are being made by variousagencies including PSC applying the principlesof communal reservation. For that matter, it isnot necessary to have a specific provision eitherin the Act or in the Rules to follow thecorresponding provision in KS & SSR regardingcommunal reservation. It is also an acceptedprinciple that candidates from the reservationcommunities are also entitled to be considered W.A.No.1768/2008 4in the merit quota. For that purpose their quotashould not be curtailed. Thus, it is obvious thatwhile preparing the ranked list of candidatespersons belonging to SC/ST community shouldhave been included if they are available fromamong the candidates who applied for the post,appeared for the test and interview......" 4. The contention of the bank is that staff strength ofthe bank is 46. Considering the full strength, four persons belongingto scheduled caste community are already appointed. They are asfollows: 1. D. Remani, Branch Manager;2. M. Sivakumar, Appraiser;3. K. Krishnankutty, Attender; and4. S. Rajendran, Peon.The above contention will not hold good as there is no evidence toshow that any of them were appointed in the reservation quota. Outof the above, except Shri Rajendran who was appointed on5.11.1990, other three persons were appointed during 1980 and1982. Rule of reservation came into force only in 1986 when sub-section (4) of section 80 was introduced. Therefore, admittedly,those three persons were not appointed in the reservation quota,but, they were appointed on merit. Even no evidence is producedby the bank to show that Shri Rajendran was apppointed in thereservation quota. The reserved category of candidates can W.A.No.1768/2008 5compete for non-reserved posts and if they are appointed withoutthe benefit of reservation, they cannot be reckoned to work out thepercentage of reservation by earmarking them as against thereserved vacancy. 5. Another contention raised is that the Circular dated4.7.1978 issued by the Registrar of Co-operative Societies showsthat 10% reservation need be looked into only for appointmentsmade after 25.2.1985. According to the appellant, considering theappointments made after 1985, two persons from the reservedcommunity need be appointed from the reservation quota. Sinceone scheduled caste candidate was appointed in 1990, only onemore need be appointed. Appellant produced Annexure AIjudgment of a learned single Judge in W.P.(C) No.13257 of 2007. Infact, that case goes against the contention of the appellant. Thelearned single Judge, Thottathil B. Radhakrishnan, J. in that caseheld that the Circular cannot go against the rules and Circular canbe issued only in accordance with the provisions of the Act asdecided by the Supreme Court in the following decisions:1. State of Haryana and others v. Sumitra Devi and and others ((2004) 12 SCC 322);2.Paluru Ramkrishnaiah v. Union of India ((1989) 2 SCC 541); W.A.No.1768/2008 63.Kerala Samsthana Chethu Thozhilali Union v. State of Kerala ((2006) 4 SCC 327);4. State of Orissa v. Mamtarani Sahoo ((1998) 8 SCC 753)' and5.K. Kuppusamy v. State of T.N. ((1998) 8 SCC 469).The learned Judge in the above Annexure AI judgment also pointedout that whenever a ratio or percentage is prescribed in the rules, ithas to be computed on the cadre strength of posts to whichrecruitment is to be made and not on the basis of vacancies existingat that time. In that case, it was held as follows:"9. Adv. Sri. K.A. Balan, the learnedamicus curie, in support of the aforesaid, haspointed out that Rule 187 is not concerned withreservation for members of scheduled castesand scheduled tribes and that the said rule onlydeals with reservation from among vacancies,thereby meaning only that such number ofvacancies as are required by that rule has to beearmarked for recruitment from amongemployees of member societies, while section80 (4) of the Act enjoins a rule of reservation,not on the basis of vacancies but on the basis ofposts. He also referred to the distinctionbetween the expressions 'posts' and 'vacancies',by making reference to R.K.Sabharwal v. Stateof Punjab ((1995) 2 SCC 745) also to point outthat the reserved category candidates cancompete for non-reserved posts and in the eventof their appointment to such posts, they cannotbe reckoned to work out the percentage ofreservation by earmarking them as against areserved post or vacancy. S. Prakash v.K.M.Kurian (1999 (2) KLT 710 SC) : (1999) 5 SCC624) was profitably referred to by him to point W.A.No.1768/2008 7out that whenever a ratio or percentage isprescribed in the Rules, it has to be computedon the cadre strength of posts to which therecruitment is to be made and not on the basisof vacancies existing at that time."In this case, the post is that of Junior Clerk. Considering the cadrestrength in the posts for which direct recruitment is made andconsidering the vacancies, we are of the opinion that the learnedsingle Judge was right in holding that two persons writ petitioner andthird respondent are entitled to be appointed. 6. It is finally argued that the rank list was over whenthe judgment was pronounced. The rank list is stated to be finalisedon 11.2.2000. When it was published is not mentioned. Withoutmaking reservation as provided under the law, the rank list shouldnot have been finalised. Petitioner was complaining to the officialsof the Co-operative Department. In any event, it is a glaringillegality. Statutory rights given to scheduled castes/scheduled tribecommunities cannot be denied on technical grounds. Consideringthe cadre strength, special recruitment ought to have been madebefore the appointments were made, but, without affectinganybody, the learned single Judge in the impugned judgment gaveappropriate directions considering the equity in favour of the W.A.No.1768/2008 8candidates who were already appointed. We see no ground tointerfere in the impugned judgment. Appeal dismissed. J.B.Koshy Judge K.P.Balachandran Judge vaa W.A.No.1768/2008 9 J.B. KOSHY ANDK.P.BALACHANDRAN,JJ.-------------------------------------W.A.No. 1768/2008 ------------------------------------- Judgment Date: 13th November,2008