JUDGMENT : Petitioner challenges Ext.P9 order by which her appointment to the post of Peon (general category) in the first respondent bank has been terminated. 2. The facts are narrated in the writ petition would disclose that the petitioner has been selected and appointed as Peon as per the notification dated 29.10.2011. In the notification, application was invited to fill up two posts of Peon/watchman. One post was to be filled up from the general category and the other from physically handicapped category. 3. Written test was conducted on 14.1.2012 and thereafter an interview was held on 12.3.2012. In the rank list prepared, under the general category the petitioner was ranked as No.2. The Society issued an appointment order Ext.P3 appointing two persons, namely two from the general category and one from the physically handicapped category. Since the petitioner's rank was No.2, she also got appointment. The second respondent issued notice to the petitioner stating that her appointment was made without proper notification and without complying with the provisions of Co-operative Societies Act and Rules framed thereunder. So she was called upon to explain why her service should not be terminated. She submitted Ext.P5 explanation. Ultimately Ext.P9 order came to be passed dismissing her from service. 4. According to the petitioner she was appointed to the post of Peon after complying with the due process and it is based on a decision taken by the Committee that Ext.P3 order came to be passed though only two posts were notified. During the process of selection a vacancy had arisen which was an existing vacancy and by the time appointment was made, a conscious decision was taken by the Management to appoint the petitioner also though that post was not notified. Since there is no mala fides or arbitrariness in the action taken by the Management, there was no reason for canceling the said appointment. 5. Counter affidavit is filed by respondents 3 and 4. Third respondent supported the stand taken by the Society. According to them, the appointment of three persons to the post of Peon was in accordance with Section 80 of the Kerala Co-operative Societies Act and the procedure prescribed. One such a decision had been taken, subsequently, the Managing Committee taking a decision contrary to their earlier opinion is illegal. Therefore, they supported the stand of the petitioner. According to them, the appointment of three persons to the post of Peon was in accordance with Section 80 of the Kerala Co-operative Societies Act and the procedure prescribed. One such a decision had been taken, subsequently, the Managing Committee taking a decision contrary to their earlier opinion is illegal. Therefore, they supported the stand of the petitioner. The 4th respondent has filed a counter affidavit controverting the allegations stated in the writ petition. It is stated that the appointment of the petitioner was made as per resolution under 17 & 19 dated 27.9.2011 and 21.4.2012 respectively. It was objected by the second respondent who was then a Director of the first respondent bank. The dissenting note is available on record. Subsequently another person filed a complaint stating about the illegal appointment and therefore, the Board reconsidered the matter and took action against the petitioner. According to them, in so far as the appointment was not with reference to a notified post, they were justified in revoking the order of appointment given to the petitioner. 6. The learned counsel for the petitioner relies upon the judgment of the Supreme Court in Prem Singh & others v.Haryana State Electricity Board & others (1996)4 SCC 319 ) wherein the Supreme Court held at paragraph 25 as under: “25. From the above discussion of the case-law it becomes clear that the selection process by way of requisition and advertisement can be started for clear vacancies and also for anticipated vacancies but not for future vacancies. If the requisition and advertisement are for a certain number of posts only the State cannot make more appointments than the number of posts advertised, even though it might have prepared a select list of more candidates. The State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf. Even when filling up of more posts than advertised is challenged the court may not, while exercising its extraordinary jurisdiction, invalidate the excess appointments and may mould the relief in such a manner as to strike a just balance between the interest of the State and the interest of persons seeking public employment. What relief should be granted in such cases would depend upon the facts and circumstances of each case.” 7. What relief should be granted in such cases would depend upon the facts and circumstances of each case.” 7. The argument of the learned counsel for the petitioner is that though only two posts were notified, it is open for the Society to deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances and in an emergent situation by taking a policy decision. The Society has taken such a policy decision to appoint the second respondent. Therefore, going by the decision of the Supreme Court in Prem Singh's case, the appointment cannot be faulted with. 8. Another judgment relied upon is an unreported judgment of this Court in Yogesh v. State of Kerala, W.P.(C) No.17244 of 2010 wherein this Court relying upon Prem Singh's case held that anticipated vacancies can also be filled up when the notification itself prescribes that the number of vacancies is provisional and subject to alteration. 9. There cannot be any dispute regarding the fact that if the notification stated that the future vacancies or vacancies arising after the publication of notification could be filled up or anticipated vacancies could be filled up, it would be open for the Society or the State as the case may be to fill up such posts. 10. On the other hand, the learned counsel appearing for the 4th respondent relies upon various other judgments of the Supreme Court as well as High Court which are as under: (i) Kerala Agricultural University v. Gopinathan Unnithan ( 1996 (1) KLT 344 ). In the above judgment a Division Bench of this Court held that recruitment of candidates in excess of the notified vacancy is a denial and deprivation of the constitutional rights of other qualified hands under Article 14 read with Article 16(1) of the Constitution of India. (ii) In Administrator, U.T.of Lakshadweep v. Musthak ( 2004 (2) KLT 880 ) another Division Bench also held the same view. (iii) A learned Single Judge of this Court in Dimply v. M.G. University ( 2007 (2) KLT 519 ) also found that when only one vacancy was notified, candidates ranked in the select list cannot be appointed to the vacancies that arose subsequently. The learned Judge relied upon the earlier judgments of the Supreme Court in this regard. Reference is also made to Prem Singh's case, which is highlighted by the learned counsel for the petitioner. The learned Judge relied upon the earlier judgments of the Supreme Court in this regard. Reference is also made to Prem Singh's case, which is highlighted by the learned counsel for the petitioner. This Court observed that in Prem Singh's case it was held that while issuing advertisement, Government could have taken into account likely vacancies. (iv) Another Division Bench judgment relied upon as Deepthy Vijayakumar v. Joint Registrar ( 2008 (4) KLT 321 ). Paragraph 7 of the said judgment reads as under: “A perusal of the original records as well as the conduct in which the selection was conducted clearly show that the process of selection was conceived in fraud and delivered in deceit. Even though decision was taken for selecting two persons and Ext.P2 notification was published as early as on 9.3.1999 and last date of receipt of application was 12.4.1999 no steps were taken to fill up the post. On the basis of the vacancies that arose subsequent to the notification society cannot appoint three more persons without publishing notification or amendments. It is true that Society may be justified in inviting applications subsequently for three more persons. No such notification was made. As per Ext.P2 only two junior clerks can be appointed. Only two vacancies were notified. Subsequent vacancies which arose after the notification were not notified and five persons were appointed. It violated Arts.14 and 16 (1) of the Constitution of India as held by the Supreme Court in Ashok Kumar and Ors. v. Chairman, Banking Service Recruitment Board and Ors. ((1969)1 SCC 283). “5. Art.14 read with Art.16(1) of the Constitution of India enshrines fundamental right to every citizen to claim consideration for appointment to a post under the State. Therefore, vacant posts arising or expected should be notified inviting applications from all eligible candidates to be considered for their selection in accordance with their merit. The recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Art.14 read with Art.16(1) of the Constitution. The procedure adopted, therefore, in appointing the persons kept in the waiting list by the respective Boards, though the vacancies had arisen subsequently without being notified for recruitment, is unconstitutional.” The above dictum is applicable especially when all the appointments were not only irregular but also illegal violating the rules of recruitment. The procedure adopted, therefore, in appointing the persons kept in the waiting list by the respective Boards, though the vacancies had arisen subsequently without being notified for recruitment, is unconstitutional.” The above dictum is applicable especially when all the appointments were not only irregular but also illegal violating the rules of recruitment. After the inspection of the officer of the Society, three of the selected candidates on the apprehension that their selection will be set aside, approached this Court and this Court by Ext.P3 judgment in O.P.3645/2002 directed that if an order terminating the petitioners therein is passed it should be communicated to the petitioners so that they can challenge the same. (v). Yet another Division Bench of this Court in Suresh v. M.G. University ( 2009 (1) KLT 950 ) wherein also similar proposition has been laid down. (vi). In Arup Das v. State of Assam (2012) 5 SCC 599 the Supreme Court had occasion to consider Prem Singh's case also and held in paragraph 5 and 6 as under: “5. The submissions made on behalf of the writ petitioners were rejected by the learned Single Judge upon holding that if any appointment was to be made beyond the number of seats advertised, the Director was required to publish a fresh advertisement for selecting the next batch of candidates in accordance with Rule 20 of the Rules in this regard. 6. The learned Single Judge also observed that it was evident from the judgment and order dated 29-1-2010 passed in W.P.(C) No.3909 of 2009, as well as the order dated 1-12-2007 passed in Writ Appeal No. 413 of 2007, that 560 candidates were called for the viva voce test for the 160 seats which had been advertised and if other candidates from the second, third and fourth lists were to be admitted, it would amount to depriving other candidates, who had not been called for the viva voce test because of the Government's decision to limit the number of candidates in the written test, of an opportunity of being selected. Some of the candidates may have, in the meantime, acquired the eligibility to undergo such training.” 11. Some of the candidates may have, in the meantime, acquired the eligibility to undergo such training.” 11. Having regard to the aforesaid legal position as borne out from the judgments cited above, it has to be considered whether the case on hand falls within the four corners of the law laid down by the Supreme Court as well as this Court. 12. In fact in Prem Singh's case there were about 62 advertised posts and the Board made appointments to138 posts, in paragraph 26 of the said judgment, Supreme Court clearly observes that “therefore, strictly speaking, the Board was not justified in making more than 62 appointments pursuant to the advertisement published on 2.11.1990 and the selection process followed thereafter. But as the Board could have taken into account not only the actual vacancies but also vacancies which were likely to arise because of retirement etc. by the time the selection process was completed would not be just equitable to invalidate all the appointments made on the basis of excess of 62 posts”. Therefore, it is clear that the rule is that the State cannot make more appointments than the number of posts advertised. Making appointment for more than the notified posts is an exception to the general rule. No factors had been brought to the notice of this Court to infer that an exception can be made in respect of the petitioner other than the statement of fact that the Board has passed the resolution consciously and that the order has been issued in favour of the petitioner along with the others. This is exactly is what termed as violation of Article 14 and 16 (1) of the Constitution of India as held in the judgment cited above. That being the position, I am not inclined to interfere with the impugned orders and accordingly, the same is dismissed.