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CASE NO.: Appeal (civil)  4176 of 2008

PETITIONER: Subha B. Nair & Ors.

RESPONDENT: State of Kerala & Ors.

DATE OF JUDGMENT: 27/05/2008

BENCH: S.B. SINHA & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T [Arising out of SLP (Civil) No. 1826 of 2007] WITH Civil Appeal Nos.     4177,4178                          of 2008 [Arising out of SLP (C) Nos. 1227 and 3596 of 2007]   REPORTABLE

S.B. SINHA, J.

1.      Leave granted.

2.      Appellants are before us aggrieved by and dissatisfied with a  judgment and order dated 18.07.2006 passed by the Kerala High Court in  Writ Appeal Nos.2275, 2527 and 2622 of 2005 affirming the judgment  and order dated 7.9.2005 passed by a learned single judge of the said  Court.  3.      Recruitment to the posts is made by the respondent No. 4 \026  Commission.  A requisition was made for filing up of 214 posts.  Allegedly, the respondent No.2 approved only 208 posts.  201 vacancies  were filled up.  Contending inter alia that the Respondent - Cooperative  Bank could fill 16 more vacancies, a writ petition was filed.  A learned  single judge of the High Court opined that having regard to the approved  vacancy position, six more vacancies could be filled up and one vacancy  having arisen due to non-joining of the same could also be filled up.  A  direction was, therefore, issued to fill up seven more vacancies. An intra- court appeal was preferred thereagainst, which by reason of the impugned  judgment has been dismissed opining: \023The vacancies already stand reported to the  Public Service Commission in implementation  of the interim order passed on 10.12.2004 and  this report shall be deemed to have been in  respect of the vacancies occurred before the  expiry of the list, limited to the vacancies  available.  There cannot have any dispute on  that.  In Ext.P10, the Registrar had approved the  staff strength sanctioning only 208 posts of  clerk/cashier.  Out of that, only 201 are in  position.  Therefore, there are remaining 7  vacancies.  These 7 vacancies shall be taken as,  as mentioned above, reported before 31.12.2004  and the candidates shall be advised as if the  report had been received before the expiry of  the said date, following the appropriate ratio  and communal rotation as applicable to the  post.  As the Public Service Commission had  received the report regarding the Non Joining

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Duty vacancy only on 10.5.2005, they need  consider it as one in respect of the vacancies  that had arisen after the expiry of the list.  When  the Registrar had sanctioned only 208 posts,  whatever be the resolution in Ext.R4(g) or the  contentions raised in the counter affidavit, the  bank is disabled from appointing persons any  more than what is contained in the order of the  Registrar.  Moreover, because of the  computerization of the branches and other  modern facilities introduced in the banking  business, necessarily there may be reduction in  the number of vacancies.  Therefore, the view  taken by the learned Single Judge to direct 7  vacancies to be advised, cannot be said to be  unjustified to invite interference in these  appeals.\024  

4.      Mr. Sree Kumar, learned counsel appearing on behalf of the  appellants submits that the High Court committed a serious error in so far  it failed to take into consideration that having regard to the decision of the  said Court in Elampal Service Coop. Bank Ltd. v.  Government of Kerala,  [2000 (3) KLT 389], approval of Registrar in such matters was not  necessary and in any event profitability or otherwise of the Cooperative  Bank being not a relevant factor for determining the cadre strength and,  thus, the impugned judgment cannot be sustained.   5.      Mr. Roy Abhraham; Mr. P.V. Dinesh and Mr. Vipin Nair, lerned  counsel appearing on behalf of the Respondent \026 Cooperative Bank,  Kerala Public Service Commission and the State of Kerala, on the other  hand, submit that the ranked list having expired on 31st December, 2004  the High Court could not have issued any writ on the petition filed by the  appellants herein, particularly in view of the fact that the Bank had taken  a policy decision not to fill up any other or further post. It was  furthermore submitted that in terms of Rule 182 of the Kerala  Cooperative Societies Rules, 1969, the approval of the Registrar is  imperative.  6.      Indisputably requisition was made by the respondent-Bank to the  Commission for appointment of 220 clerk-cum-cashier in the Bank.   After the processes were gone into ranked list was prepared on or about  18th September, 2001.  Its validity expired on or about 31st December,  2004. Some persons did not join the posts.  The vacancies remained  unfilled.        Another requisition for filling up of the vacancies position was  notified again on or about 10th May, 2005 by which date the validity of  the earlier ranked list expired.  It is now accepted at the Bar that pursuant  or in furtherance thereof the Commission has already conducted an  examination on 10th May, 2008, and in terms thereof a fresh rank list  would be prepared.   7.      A decision on the part of an employer whether to fill up the  existing vacancies or not is within its domain.  On this limited ground in  absence of discrimination or arbitrariness, a writ court ordinarily would  not interfere in such matters.  This has been so held by this Court in       Deepa Keyes v. Kerala State Electricity Board,  [(2007) 6 SCC 194]  observing that the rank list having expired and the validity having not  been extended, no relief could be granted to the appellants therein.  8.      Similar view has also been expressed by this Court in  K.  Thulaseedharan v. Kerala State Public Service Commission, Trivandrum  and others, [ (2007) 6 SCC 190 ] 9.      Recruitment to a post having regard to the provisions contained in  Article 320 of the Constitution of India must be made by the Committee  in terms of the Statutory Rules.        Rule 188 of the 1969 Rules provides for a staff pattern in the  following terms :- \023188.        Staff Pattern. \026 Every society shall adopt

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the staff pattern indicated in Appendix III to  these rules, according to the type and class to  which it belongs :         Provided that where any society cannot  adopt such staff pattern due to its financial  position, the members of the committee may  work; in an honorary capacity in lieu of  appointing any paid employee :      Provided further that where any society is  in need of any change in the pattern of staff  including the scale of pay under special  circumstances the same may be made by the  society with the prior approval of the Registrar  of Co-operative Societies.\024           

10.     A Division Bench of the Kerala High Court in Elampal Service  Cooperative Bank Ltd. (supra) opined that the power of the Registrar  either to rescind a resolution or reclassification made by the Cooperative  Society can be exercised so as to enable him to set them aside, stating:- \023If reclassification made by the petitioner Bank  is incorrect, the Registrar is not helpless in  setting aside the resolution passed.\024

11.     Rules appear to have undergone a change in 2004 by way of Kerala  Cooperative Societies (Amendment) Rules, 2004.  Note 4 Appended to  Appendix II under Serial No.2m under Class IV of the 1969 Rules reads  as under :- \023Note 4 :-   Classification made by the  Societies should be got certified and approved  by the registrar of Co-operative Societies before  being implemented.\024  

12.     Thus, it may not be entirely correct that the Registrar will have no  say in the matter.  Financial heath of a bank is a relevant factor.

13.     In this case from the profit and loss account it appeared that the  statement for classifying the branches were not prepared scientifically  and hence a true picture of the financial position was not reflected  therein.  The Registrar has the responsibility to see that the Cooperative  Societies function effectively and efficiently.  A Cooperative Bank,  according to the guidelines issued by NABARD, should be in a position  to maintain the cost of management to working fund at the optimum level  of 2 %.  The cost of management, however, of the Cooperative Bank in  question was found to be 8 %, which according to the Registrar, was at an  alarming level as has been observed by the Auditor.  

14.     The cadre strength of a Cooperative Society would depend upon its  classification thus, although the Registrar may not have anything to do  therewith directly, but the same would follow as a necessary corollary.  

15.     It furthermore appeared that the classification norms which were  prescribed by the Government long time back may not be valid in the  present day situation having regard to the computerization programme  resorted to by the Bank.   

    In its counter-affidavit the State of Kerala averred:- \023The Central Banks Conference, which is the  forum constituted to take stock of the progress  and to review the problem faced by the credit  structure in the state consisting the  representatives of District Co-operative Banks,  Kerala State Co-operative Bank, Government,  Registrar of Co-operative Societies, has of the  view that the present classification norms needs

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changes in par with the present credit scenario  and slow growth of the movement, threat posed  by the new generation banks in the wake  globalization and liberalization, a committee  has been constituted to study the aspect and the  committee recommended to change the  classifications of District Co-operative Bank  urgently, lest the very existence of the banks  will be in peril.  The proposal is under active  consideration of the Government, and it is  expected that the classification norms will be  revised soon.\024

16.     In the absence of any material it is difficult for a court to arrive at a  firm conclusion that having regard to the fact that over a period of time  the Cooperative Bank had opened many more new branches or the  volume of its operation had increased requiring appointments of more  persons.  What would be the effect of computerisation is also not known.   Only because the Bank has sent a requisition or had been making  recruitments in other categories of staff by itself may not be a ground for  issuance of a writ of or in the nature of mandamus, although the  Cooperative Bank had adopted a policy decision not to fill up more than  201 vacancies which stands filled up to 208 vacancies in terms of the  judgment of the learned Single Judge of the High Court.   17.     In Shankarsan Dash v. Union of India [(1991) 3 SCC 47], this  Court held: \0237 . It is not correct to say that if a number of  vacancies are notified for appointment and  adequate number of candidates are found fit, the  successful candidates acquire an indefeasible  right to be appointed which cannot be  legitimately denied. Ordinarily the notification  merely amounts to an invitation to qualified  candidates to apply for recruitment and on their  selection they do not acquire any right to the  post. Unless the relevant recruitment rules so  indicate, the State is under no legal duty to fill  up all or any of the vacancies. However, it does  not mean that the State has the licence of acting  in an arbitrary manner. The decision not to fill  up the vacancies has to be taken bona fide for  appropriate reasons. And if the vacancies or any  of them are filled up, the State is bound to  respect the comparative merit of the candidates,  as reflected at the recruitment test, and no  discrimination can be permitted. This correct  position has been consistently followed by this  Court, and we do not find any discordant note  in the decisions in State of Haryana v. Subhash  Chander Marwaha, Neelima Shangla v. State of  Haryana, or Jatendra Kumar v. State of  Punjab.\024

       [See also Jitendra Kumar & Ors.  v.   State of Haryana & Anr., [  2008             (2) SCC 161 ].

18.     The question as to whether there existed 7 vacancies or 16  vacancies in the aforementioned situation looses all significance.  We  would assume that as per the requisition, 9 more vacancies could be filled  up but it is trite that if the employer takes a policy decision not to fill up  any existing vacancy, only because a person\022s name is found in the select  list, the same by itself would be a ground to compel the bank to fill them  up.        

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19.     Rules of the Cooperative Societies as has been interpreted by this  Court in Deepa Keyes (supra) and K. Thulaseedharan (supra) clearly  show that after the expiry of rank list, vacancies should not be directed to  be filled up.   

20.     This Court furthermore cannot issue a direction only on  sentiment/sympathy.

21.     For the reasons aforementioned no relief can be granted to the  appellants.  The appeals fail and are dismissed.   However, in the facts  and circumstances of the case, there shall be no order as to costs.