DELSON DAVIS Vs. STATE OF KERALA

JUDGEMENT

(1.) 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.) 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. 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. 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. 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.