SHYBY Vs. VARANAM PUTHENANGADI

JUDGEMENT

(1.) THE appellant in this appeal is the petitioner in the W.P.(C) No.25289/2009. The 1st respondent Co-Operative Society invited applications for appointment to the post of Secretary to the said Co-Operative Society. The petitioner also applied. After the written test and interview, a short list of two candidates were prepared. The first rank holder was one Smt. Ambily and the appellant was the second rank holder. The first rank holder was appointed to the post of Secretary. She joined duty and continued in service for sometime and thereafter, resigned from the job leaving the post vacant. According to the appellant, the rank list was valid for a period of two years and therefore, in the vacancy which arose on such resignation, the appellant who was the second rank holder should have been appointed. But the first respondent issued Ext.P5 notification inviting fresh applications for the post of Secretary. Challenging Ext.P5, the appellant filed the writ petition seeking the following reliefs:

(2.) ON the other hand, the learned counsel for the bank would contend that the decision in Kodakara Farmers Service Co-Operative Bank Ltd.' case (supra) has been reversed by the Supreme Court in Civil Appeal No.3981/2012. A copy of the judgment of the Supreme Court in that Civil Appeal has also been made available to us for perusal. It is further submitted that the mere fact that the rules and the guidelines issued by the Government prescribe that a rank list has to be kept alive for a period of two years, does not automatically mean that all vacancies which arise during the period of the rank list has to be mandatorily filled up from that rank list. According to the counsel for the Society, that is a permissive rule, by which the societies are permitted to make such appointments from the rank list during the period of rank list without limiting the operation of the rank list for filling up only the notified vacancies. It is submitted that it is perfectly open to the society to decide to invite fresh notifications for appointment, even if the period of validity of the rank list has not expired. It is further submitted that, in any event, in view of Dr.Dimpi's case (supra) insofar as, the post of Secretary is a single cadre post, notwithstanding the fact that the general rules prescribed two years period of validity for the rank list, that does not mean that the rank list can be operated to fill up a second vacancy in that post.

(3.) WE are of opinion that non inclusion of such a provision is deliberate on the part of the rule making authority, to give flexibility to the Society to decide to invite fresh applications, when the situation demands, so as to give a chance to those very many unemployed persons who become qualified in the meanwhile also to seek employment to the vacancies, which arise during the currency of the rank list after filling up the notified vacancies. It is a leeway granted to the society for application when the situation demands the same. It is for the purpose of avoiding delay and expenses in conducting a fresh selection process for the vacancies which arise after filling up the notified vacancies. It is all the more so when this Court and the Supreme Court has time and again held that appointments can be made only to notified vacancies in the absence of specific rule authorising filling up of further vacancies from the same selection. In this connection it must be noted that even in PSC selections it is open to the Public Service Commission to make fresh selection even before the expiry of the period of validity of the rank list prepared in the earlier selection. The intention of the Rule making authority in this case is to give such flexibility to Co-Operative Societies also. We are of opinion that for a country where unemployment is a serious problem, the fundamental rights of the unemployed, who become qualified to seek employment to subsequent vacancies which arise after filling up the notified vacancies, cannot be easily brushed aside to recognise a superior right on persons, who have been included in a rank list prepared for filling up a specified number of vacancies, for appointment to vacancies which arise after filling up of the notified vacancies.