Delson Davis v. State of Kerala — 1999 DIGILAW 562 (KER)

Judgment :- AR. Lakshmanan, J. Heard Mr. T.P. Kelu Nambiar, senior advocate for the petitioner, Mr. O.V. Radhakrishnan for R2, Mr. Alexander Thomas, Government Pleader for RI and Mr. V.N. Achutha Kurup for R3. 2. The above Original Petition is filed to declare that S.80(3A) of the Kerala Cooperative Societies Act does not affect the selections already made and the rights of candidates included in the select list prepared and published by the 3rd respondent to the post of Data Entry Officer on the basis of written test and interview conducted and to declare that S.80(3A) of the Act as unconstitutional and invalid. Though the prayer was sought to declare S.80(3A) of the Act as unconstitutional and invalid, argument was advanced by the learned senior counsel on the merits of the case and in particular with reference to the notification issued under Ext. P1 and the selection made. Hence we confine ourselves in deciding the issue as to whether the petitioner is entitled for -appointment in the Bank as Data Entry Officer. 3. The petitioner was an applicant for the post of Data Entry Officer in the 3rd respondent Bank. After the selection process was over the name of the petitioner was included in the list of candidates to be appointed in the Bank to the aforesaid post. Our attention was invited to Ext. P2 rank list. It can be seen that the petitioner's name is second in the rank list. The first rank-holder Roily was given appointment in the month of February, 1995. But in the month of April 1995 the said Roily resigned from service as he got a better placement in the National Informatice Centre, Kavaratty. The petitioner, after knowing about the resignation of Roily approached the Bank and requested to appoint him in that vacancy. But he was informed by the Bank that in view of the Ordinance 10 of 1995 dated 29.4.1995 no further appointment can be made as the 3rd respondent Bank has been included as serial No. 23 in the Schedule of the Ordinance. The said ordinance was challenged by similarly affected persons and this Court by an interim order (Ext. But he was informed by the Bank that in view of the Ordinance 10 of 1995 dated 29.4.1995 no further appointment can be made as the 3rd respondent Bank has been included as serial No. 23 in the Schedule of the Ordinance. The said ordinance was challenged by similarly affected persons and this Court by an interim order (Ext. P5) in CMP No. 936/1996 in OP No. 10052/1995, directed the Bank to appoint the petitioner, who was included in the select list in preference to the employment exchange hands or till PSC hands are selected and appointed in case there is any valid order directing the bank to make appointment through PSC. Pursuant to the said interim order the petitioner was given temporary appointment for 179 days as Data Entry Officer. When the petitioner requested the bank to allow him to continue in service as he is eligible and entitled to be appointed against the permanent vacancy the Bank asked the petitioner to get an order from this Court for that purpose as there is no direction in Ext. P5 order to give appointment for more that 179 days. According to the petitioner there was no direction in Ext. P5 interim order to limit the period of appointment to 179 days only and what is stated by the 3rd respondent is only a wrong interpretation of the order and that the only condition in Ext. P5 is that the persons appointed as per the interim order will not get any right other that what nominees of the employment exchange will been titled to. Therefore, the petitioner filed the present Writ Petition for declaration as already stated and for a mandamus directing the bank to appoint hi m permanently irrespective of the issuance of Ordinance 10 of 1995 or amendment of S.80 of the Kerala Co-operative Societies Act, 1969 incorporating sub-s.(3A) by the reason of the inclusion of his name in the list prepared for making appointment under it. When similar grievance was brought to the notice of this Court by similarly placed persons pointing out their grievances, this Court passed interim orders directing the concerned banks to allow them to continue in the respective posts until further orders from this Court and they are continuing in service. When similar grievance was brought to the notice of this Court by similarly placed persons pointing out their grievances, this Court passed interim orders directing the concerned banks to allow them to continue in the respective posts until further orders from this Court and they are continuing in service. The petitioner, in support of this contention, produced two such interim orders passed by this Court in O.P. No. 2581/1997 and O.P. No. 2670/1997 along with C.M.P. No. 18345 of 1997 marked as Exts. P6 and P6(a) and prayed for an interim direction to the bank to re-appoint him and to allow him to continue as Data Entry Officer. Copies of the above interim orders are also produced and marked as Annexures A and B to C.M.P. No. 10840 of 1999. Annexure A was passed by K.S. Radhakrishnan, J. issuing interim direction to allow the petitioner therein to continue in service subject to further orders. Annexure B is passed by C.S. Rajan, J. in C.M.P. No. 4770/1997 issuing interim direction as above. This court on 28.7.1998 passed an order as follows: "Heard learned counsel for the petitioner and the learned counsel for the 3rd respondent is directed to consider the case of the petitioner for appointment as Data Entry Officer temporarily for 179 days subject to further orders from this Court." It is the grievance of the petitioner that though this interim order was passed by this court on 28.7.1997 that was not complied with by the respondent Bank. Pointing out this noncompliance the petitioner filed C.M.P. No. 18425 of 1998 and this Court passed an order on9.7.1998 directing the Bank to comply with the order passed on 28.7.1997. The said order was passed by AR. Lakshmanan and D. Sreedevi, JJ. The 3rd respondent Bank was directed to comply with the directions of the learned single judge dated 28.7.1997. Pursuant to the above order of ours appointment was given to the petitioner for 179 days, which expired on 5.1.1999. The petitioner made a request to the Bank to regularize his service as Data Entry Officer by appointing him against the permanent vacancy and allow him to continue in service. This request was made by the petitioner in Annexure E to C.M.P. No. 10840 of 1999. The petitioner also filed C.M.P. No. 44130 of 1998 for a direction to allow him to continue as Data Entry Officer. 4. This request was made by the petitioner in Annexure E to C.M.P. No. 10840 of 1999. The petitioner also filed C.M.P. No. 44130 of 1998 for a direction to allow him to continue as Data Entry Officer. 4. The Bank filed a counter affidavit saying that there are more that one Junior Clerk-cum-Cashier who are qualified to the post of Data Entry Officer and one Mr. Denny, Junior Clerk-cum-Cashier, who has got the qualification prescribed for the post of Data Entry Officer as per Ext. P1 is actually doing the work of Data Entry Officer at present and therefore the Bank has to intention to fill up the post of Data Entry Officer by appointing any other person. Recording this submission this Court (AR. Lakshmanan • & K. Narayana Kurup, JJ) by order dated 4th January 1999 held that the Bank is entitled to terminate the service of a temporary employee on the expiry of the period of appointment. However, contrary to the statement given in the affidavit in Annexure F, the Bank has appointed one Shali P., wife of Manoj, Kollara House, Near Sudha Ayurveda Pharmacy, P.O. Perinjanam, Thrissur District, as Data Entry Officer, which was done after terminating the petitioner's service. It is submitted that the said Shali is not a person included in Ext. P2 rank list and that her appointment is also against Ext. P5 interim order. It is submitted on behalf of the petitioner that Bank, by appointing Shali, has violated the directions of this Court and that the appointment was made by the Bank on extraneous reasons. In the circumstances the petitioner submitted that a Writ of mandamus should be issued to the Bank to appoint him in the post of Data Entry Officer pursuant to Ext.P1. 5. According to the 3rd respondent Bank mere inclusion of the petitioner's name in the select list will not confer any right on him to get appointment and that the Bank does not propose to appoint anybody to the post of Data Entry Officer in view of the fact that" it is not necessary to appoint the petitioner or anybody else as Data Entry Officer and that the existing staff of the Bank is in excess of the actual requirement. It is the further contention of Mr. It is the further contention of Mr. Achutha Kurup, counsel for the petitioner that the petitioner has been appointed provisionally for a period of 179 days pursuant to the direction of this Court and again he was appointed for a further period of 179 days. While continuing in that post he made a request to regularize his services which the Bank found it difficult to allow and that again the petitioner filed C.M.P. No. 44130 of 1998 for direction to the Bank for allowing him to continue as Data Entry Officer pending the Original Petition and this Court disposed of the C.M.P. stating that the temporary appointment will not confer any right on him to continue in that post. In regard to the contention of the learned senior counsel i n regard to the appointment of Shali it is denied by the Bank as absolutely incorrect. According to the Bank the Bank is getting the services of an expert committee consisting of experts in computer science and that the Bank had taken steps to computerise the bank transactions of the main office and all branches of the Bank and that the same is being done as per the guidance of the expert committee and in order to assist the expert committee as suggested by them Smt. P.Shali was engaged on contract basis for a period of three months and she was being paid a consolidated amount of Rs. 2.000/-as remuneration and that she was not appointed as Data Entry Officer. This statement of the learned counsel for the Bank was disputed by the learned senior' counsel for the petitioner and in fact he asked the counsel for the Bank to produce the appointment order and other connected records pertaining to the appointment of Smt. Shali. No records in connection with the appointment of Shali, who was stated to be engaged on contract basis, was produced before us. When the matter came up on an earlier occasion a representation was made on behalf of the Bank that the Bank has taken a decision not to make any appointment to any post for various reasons such as computerisation of various departments and branches of the Bank, fall in business etc. When the matter came up on an earlier occasion a representation was made on behalf of the Bank that the Bank has taken a decision not to make any appointment to any post for various reasons such as computerisation of various departments and branches of the Bank, fall in business etc. and it was also found that the present staff strength of the bank is in excess of the actual requirement and that the Bank is not in a position to employ more persons and that the work of the Data Entry Officer is entrusted with one Mr. Denny, Junior Clerk-cum-Cashier, who is qualified to be appointed as Data Entry Officer. It was also argued that the appointment given to the petitioner was purely on adhoc basis and that this appointment will not confer any right on him to continue in service. It is stated that the entire matter has been placed before the Director. Board which met on 22.10.1999 and the Board after considering financial position of the Bank found that any further appointment will put unnecessary financial strain to the Bank, that the duties of the Data Entry Officer are being carried out by a qualified hand working as junior Clerk-cum-Cashier, and that it is not necessary to make any fresh appointment to the post of Data Entry Officer. A true copy of the resolution is produced and marked as Ext. R3(1). It is further submitted that S.80(3A) of the Kerala Cooperative Societies Act was brought into force and Rules were framed for making appointments to various posts in the Bank and similar other banks by the Kerala Public Service Commission and that selection for appointments in the Bank and in similar other banks were entrusted with the Kerala Public Service Commission and they have already taken steps for making selection and that the Bank has no power to make appointment from the rank list mentioned above. The resolution in Malayalam has been marked as Ext, R3(1) and the English translation of the same has also been furnished to us. Resolution No. 2 of the urgent Meeting of the Board of Directors held on 22.10.1999 reads thus: "Considered the letter received from the Standing Counsel of the bank requesting to offer the views of the bank on the Civil Miscellaneous Petition No. 10840 of 1999 in O.P. No. 17973 of 1996 filed by Sri. Resolution No. 2 of the urgent Meeting of the Board of Directors held on 22.10.1999 reads thus: "Considered the letter received from the Standing Counsel of the bank requesting to offer the views of the bank on the Civil Miscellaneous Petition No. 10840 of 1999 in O.P. No. 17973 of 1996 filed by Sri. Delson Davis P. on 10.3.1999 before the Hon. High Court of Kerala -praying to appoint him, which is under the consideration of the Honourable High Court. When compared the other District Co-operative Banks the staff strength of the bank is more. Consequent on the recent Pay Revision banks financial commitment has increased considerably. Corresponding to heavy inflow of deposits, loans and advances are not increasing resulting heavy surplus funds and decrease in interest receipts. The non-performing assets of the bank has also increased considerably. In view of the situation the bank is not in a position to afford additional commitment for salaries. Therefore, if additional members of staff are appointed the bank is not in a position to bear the additional financial commitments. Now 19 Clerks/ Cashiers have been joined in the bank as per interim orders of the Hon'ble High Court of Kerala out of the 22 persons ordered to be appointed temporarily subject to final decision of the O.P. five of the others included in the rank list have also filed O.P. No. 20710/99M before the Hon. High Court citing the above interim orders issued by the Hon. Court and the Hon. High Court have issued an interim order directing the bank to appoint them if there are vacancies of the bank. But in the case of CMP No. 41027/98 in O.P.No. 8648/ 1996 filed by Smt. Princy John, the Hon. Division Bench have dismissed the petition based. on the stay allowed by the Supreme Court of India. She has again filed C.M.P. No. 38808/99 for getting orders for temporary appointment. For making a cut in the establishment expenses and for imparting better customer service the bank has decided to computerise its Head Office and branches and the bank would be in a position to utilize the service of the persons in the cadre of Clerks/Cashiers those who have prescribed qualification/ experience in Computer Operation without going for appointing Data Entry Operator afresh, so as to avoid additional financial commitment. In the above circumstances it is resolved to request the Standing Counsel to appeal the Hon. High Court that the bank is in a difficult situation to appoint Delson Davis in the bank service." Various reasons are given for passing the resolution in the urgent meting: (1) When compared to other District Co-operative Banks the staff strength of the bank is more. (2) Consequent on the recent Pay Revision banks financial commitment has increased considerably. (3) Corresponding to heavy inflow of deposits, loans and advances are not increasing resulting in heavy surplus funds and decrease in interest receipts. (4) It is stated that if additional members of staff are appointed the bank is not in a position to bear the additional financial commitments. (5) For making a cut in the establishment expenses and for imparting better customer service the bank has decided to computerise its Head Office and branches and the bank would be in a position to utilise the service of the persons in the cadre of clerks Cashiers those who have prescribed qualification/experience in Computer Operation without going for appointment. In the above circumstances the learned counsel for the bank requested that in view of the resolution passed the bank is in a difficult situation to appoint the petitioner in the Bank's service. 6. We have carefully considered the averments made in the counter affidavit and also in the resolution passed and the conduct of the Bank in appointing Smt. Shall P. when the Writ Petition is pending and the termination of her service after the CMP was filed by the petitioner. Ordinance 10 of 1995 was promulgated by the Governor of Kerala. The Ordinance came in to force on 25th April, 1995. S.3 of the Ordinance states that during the period of operation of this Ordinance the Kerala Co-operative Societies' Act, 1969 shall have effect subject to the amendments specified in Ss.3 and 4. S.3 deals with amendment of S.80. Ordinance 10 of 1995 was promulgated by the Governor of Kerala. The Ordinance came in to force on 25th April, 1995. S.3 of the Ordinance states that during the period of operation of this Ordinance the Kerala Co-operative Societies' Act, 1969 shall have effect subject to the amendments specified in Ss.3 and 4. S.3 deals with amendment of S.80. The sub-section which was inserted after sub-s.(3) of S.80 reads thus: "(3A) Notwithstanding anything contained in this Act or rules made or orders issued thereunder or in the bye-laws of any society relating to the recruitment and conditions of service of officers and servants of societies all appointments of officers of servants of the society mentioned in the Schedule for which direct recruitment is resorted to shall be made from a select list of candidates furnished by the Kerala Public Service Commission". A scrutiny of the Ordinance would show that the Ordinance is only prospective in operation. Though some legal contentions had been taken in the Original Petition challenging the Ordinance and the amendment, the argument was confined only to prayer No. (ii) which is for a mandamus and prayer No. (iii) which is to declare that the denial of permanent appointment to the petitioner solely on account of the promulgation of Ordinance 10 of 1995 and subsequent amendment of S.80 of the Co-operative Societies Act incorporating sub-s.3A is violative of Art.14,16 and 21 of the Constitution of India. 7. It is not in dispute that the petitioner was an applicant for the post of Data Entry Officer in the 3rd respondent Bank, a society/Co-operative Bank registered and functioning under the provisions of the Kerala Co-operative Societies Act. The Bank invited applications for the post of Clerk-cum-Cashier, Data Entry Officer and Peons. Copy of the notification inviting applications published in the Express Daily dated 10.11'.1994 is produced and marked as Ext. P1. The vacancy for the post of Data Entry Officer as per Ext. P1 notification is only one. On selection process being completed the petitioner's name was included in the list of candidates to be appointed in the 3rd respondent bank. The rank list published by the Bank is also produced and marked as Ext. P2 and it can be seen from Ext.P2 that the petitioner's name is second in the rank list. From the above list the first rank-holder Mr. Roily T.D. was appointed. The rank list published by the Bank is also produced and marked as Ext. P2 and it can be seen from Ext.P2 that the petitioner's name is second in the rank list. From the above list the first rank-holder Mr. Roily T.D. was appointed. After some time he resigned from service as he had got some better placement in National Informatic Centre, Kavaratty, knowing about the resignation of Mr. Roily the petitioner approached the Bank and requested to appoint him in that vacancy. The petitioner in turn, was informed that in view of Ordinance 10 of 1995 dated 29.4.1995 no further appointment can be made as the third respondent bank has been included as serial No. 23 in the schedule of the Ordinance. It is further stated that the Bank is seriously studying the question whether any appointment can be made from the list already prepared and published much before the promulgation of the said Ordinance. A true copy of the Ordinance is also produced and marked as Ext. P3. As per the Ordinance recruitment can be made only from the list of candidates furnished by the Kerala Public Service Commission. It is argued that since the list has already been prepared and published after all the procedural formalities and that the Ordinance has only prospective application/operation, which came into force only on 25.4.1995, the same cannot stand in the way and will not apply to the process of recruitment already completed and appointments already made from a particular list. 8. We have perused the Ordinance also. There is no provision in the Ordinance affecting a list already prepared or any provision therein forbidding appointments being made to existing vacancies. As already noticed the appointment of Roily was made pursuant to a notification and for a regular post. The petitioner's name had been shown as No. 2 in the rank list. The rank list was also in force. Under such circumstances, the 3rd respondent ought to have appointed the petitioner permanently instead of appointing him on a temporary basis. The 3rd respondent is also deducting provident fund contribution and pension fund from the petitioner's salary, which will show that the intention of the 3rd respondent is to appoint the petitioner permanently and not temporarily. The petitioner has also placed reliance on Ext. The 3rd respondent is also deducting provident fund contribution and pension fund from the petitioner's salary, which will show that the intention of the 3rd respondent is to appoint the petitioner permanently and not temporarily. The petitioner has also placed reliance on Ext. P4, a letter issued by the Bank on the basis of the order of this Court in OP Nos. 9287 and 10052 of 1995. These two petitions have been filed by the persons included in the rank list for the post of Clerk/ Cashier. In the said interim orders there was no direction to the Bank to limit the term of appointment as 179 days. The only observation made by this Court in that order was that the petitioners appointed on the basis of the interviews will not get any right other than what nominees of the employment exchange will be entitled to. In our opinion by reason of the issuance of Ext. P1 notification and by reason of the inclusion of his name in the list prepared by the Bank before the Ordinance was promulgated, the petitioner has right to be considered for appointment. The petitioner has participated in the selection process and got himself selected and included in the rank list. The 3rd respondent is also deducting provident fund contribution and pension fund contribution from the petitioner's salary. This will show that there is a permanent vacancy and the intention of the 3rd respondent is to appoint the petitioner permanently. In our view Ordinance 10 of 1995 dated 29.4.1995 and subsequent amendment in the Act cannot at all be a bar for appointing the petitioner against the vacancy occurred since procedural formalities for such appointment have been completed much prior to the said Ordinance. This Court in many cases has held so. The Palakkad District Co-operative Bank Ltd. and Alappuzha District Co-operative Bank Ltd. are also included in the schedule of the Ordinance in question. By the judgment in O.P.-No. 4241 of 1992 (relating to the Palakkad District Co-operative Bank Ltd.) and O.P. No. 7003 of 1995 (relating to the Alappuzha District Co-operative Bank Ltd.) this Court directed the above banks to make appointments in accordance with the Rules and procedures existed prior to the Ordinance. (Annexure D to CMP No. 44130 of 1998). By the judgment in O.P.-No. 4241 of 1992 (relating to the Palakkad District Co-operative Bank Ltd.) and O.P. No. 7003 of 1995 (relating to the Alappuzha District Co-operative Bank Ltd.) this Court directed the above banks to make appointments in accordance with the Rules and procedures existed prior to the Ordinance. (Annexure D to CMP No. 44130 of 1998). The petitioner's name has already been included i n the select list of Data Entry Officer prepared by the Bank much prior to the date of the Ordinance. Therefore, he is eligible to be appointed in the permanent vacancy of Data Entry Officer in the Bank. It is also not the case of the Bank that the said post has been abolished. The Bank's contention that the Bank will not be in a position to bear the additional financial commitment cannot at all be a ground for denying the appointment to the petitioner since under Ext. P2 applications were invited from suitable candidates for appointment as Data Entry Officer for a regular vacancy and that the said vacancy was filled up by appointing Roily T.D., who later resigned and because of his resignation from service the vacancy has arisen again which has now to be filled up by appointing the petitioner. For the foregoing reasons we allow the Original Petition and issue a mandamus directing the 3rd respondent Bank to appoint the petitioner permanently as Data Entry Officer within two weeks from the date of receipt of a copy of this judgment. No costs.