High Court Kerala High Court

T.A.Usha vs Perumpilly Co-Operative Society on 6 February, 2007

Kerala High Court
T.A.Usha vs Perumpilly Co-Operative Society on 6 February, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 33534 of 2006(P)


1. T.A.USHA,
                      ...  Petitioner

                        Vs



1. PERUMPILLY CO-OPERATIVE SOCIETY,
                       ...       Respondent

2. LALAN,

3. THE JOINT REGISTRAR OF CO-OPERATIVE

4. STATE OF KERALA, REPRESENTED BY

                For Petitioner  :SRI.P.P.JACOB

                For Respondent  :SRI.M.M.MONAYE

The Hon'ble MR. Justice J.M.JAMES

 Dated :06/02/2007

 O R D E R
                         J.M.JAMES, J.

                           -------------------

                    W.P.(C). 33534/2006 (P)

                          --------------------

            Dated this  the 6th day of February, 2007


                          JUDGMENT

The writ petitioner had undergone the selection

process and topped the select list, prepared and

published by the first respondent, Perumpilly Co-operative

Society, Njarakkal, Eranakulam. Notification was issued

on 4.6.2003. Though the rank list was prepared on

14.11.2003, the writ petitioner had not so far been

appointed. The Joint Registrar (General), Ernakulam, had

directed the first respondent, Society, to cancel the rank

list, on the ground of alleged irregularities in conducting

the selection.

2. Writ Petition No.24821/2004 was filed before

this Court, challenging the non-appointment of the writ

petitioner. As an appeal would lie against the order of the

Joint Registrar, this Court did not interfere and directed

the writ petitioner to approach the Government.

Accordingly, an appeal had been preferred and the

W.P.(C).33534/2006

2

Government, after hearing all concerned, passed G.O.

(Rt)No.166/2006/Co-op dated 29.3.2006, allowed the

appeal and set aside the order of the Joint Registrar,

cancelling the rank list. The resolution, passed by the

first respondent, cancelling the rank list, consequent on

the order of the Joint Registrar, was also set aside. The

first respondent, Society, was also directed to make the

appointments from the rank list published on 14.11.2003.

Despite such an order, the appointment of the petitioner

had not been effected. Hence, this writ petition.

3. During the hearing, the learned counsel for

the first respondent, Society, relying on Chandran v.

State of Kerala (1994 (1) KLT, Short Note.Case

No.26, Page 27) submitted that “even if the posts are

permanent, it is not obligatory for the board of directors

of a Society to fill up all the posts”. The counsel further

submits that the financial position of the Society is very

unstable and, therefore, no further appointments are

required to be made. The counsel further relied on

Jatinder Kumar and Others v. State of Punjab

W.P.(C).33534/2006

3

(AIR 1984 Supreme Court 1850), to emphasis the

point that the process of the selection and selection for

the purpose of recruitment against the anticipated

vacancies does not create a right to be appointed to the

posts, for which the selection was held.

4. The learned counsel for the writ petitioner,

on the other hand, submits that the Government had

already ordered to appoint the petitioner to the post of

attender and the order of the Government is still valid.

The said order had not so far been challenged. The writ

petitioner is a woman aged about 33. The stand of the

first respondent, Society, that the appointment shall be

only after the financial position of the Society increases,

may not be accepted, the counsel submit.

5. An examination of the facts in Chandran v.

State of Kerala, reveal that the learned single Judge was

dealing with the appointment of the persons from the

feeder category to the promotion post. It was laid down

after discussing the facts that “it is an absolute

prerogative right of the board of directors not to fill up

W.P.(C).33534/2006

4

any particular post even though the feeder category

rules had sanctioned the post of a Secretary and enable

the board of directors to effect appointment to that post.”

6. The facts available in the case of Chandran v.

State of Kerala cited supra, are on different context.

The same cannot be applied to the facts of the case at

hand. In Jatinder Kumar v. State of Punjab, cited

supra, on the other hand, the Court observed that “if the

vacancy is to be filled up, the Government has to make

appointment strictly adhering to the order of merit as

recommended by the Public Service Commission. It

cannot disturb the order of merit according to its own

sweet will except for other good reasons viz., bad

conduct or character. The Government also cannot

appoint a person whose name does not appear in the list.

But it is open to the Government to decide how many

appointments will be made.” It was in the facts of that

case, the apex Court observed that the “process for

selection and selection for the purpose of recruitment

against anticipated vacancies does not create a right to

W.P.(C).33534/2006

5

be appointed to that post”. In the present circumstances,

the facts available in Jatinder Kumar’s case is entirely

different. Therefore, the authorities cited are

inapplicable to the facts that are under discussion.

7. After hearing both sides and considering the

law and facts that are placed before me, I direct the first

respondent, Society, to appoint the writ petitioner as an

attender, in the Society, in accordance with the G.O.

dated 29.3.2006, referred above. The appointments shall

be effected within 45 days from the date of

receipt/production of a copy of this judgment.

The writ petition is allowed as above.

J.M.JAMES

JUDGE

mrcs