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2018 ICO 1032

2018 (3) KLJ 626

09-07-2018
High Court of Kerala

W.P.(C) No. 17393 of 2015, W.P.(C) No. 3052 of 2015, W.P.(C) No. 8609 of 2015

Justice V Chitambaresh, Justice Sathish Ninan

Indu S ( Represented by, Sreedevi Kylasanath (Adv.) )

Vs.

State of Kerala ( Represented by, Thomas Abraham (SC) )

Equivalent Citations : 2018 (3) KHC 745 :: 2018 (3) KLJ 626 :: 2018 (4) KLT SN 33 (Case No. 36)

Referred Citations : 2000 ICO 733,1990 ICO 355,2006 ICO 4476,2009 ICO 691,2010 ICO 1104,2011 ICO
151,2011 ICO 1627,2013 ICO 2808

Headnotes :-

A. Kerala Co-operative Societies Rules, 1969 – Rule 187 – To claim appointment under the Rule 187,
the following conditions are to be satisfied: (i) The applicant must be an employee of the member
society, (ii) He must have minimum three years regular service and (iii) He must possess the required
qualification. ( Para 4 )

B. Kerala Co-Operative Societies Rules, 1969 – Rule 187 – When reservation is given to a particular
category of persons, it is necessary that the applicant satisfies or falls within that eligibility criteria
even as on the date of appointment. The post being reserved for the employee of a member society, if
as on the date of appointment he ceases to be so, he gets denuded of the eligibility for appointment
under Rule 187. ( Para 4 )

C. Service Law – Once selection process has commenced, there cannot be a subsequent tinkering with
the eligibility criteria. ( Para 4 )

ORDER
Sathish Ninan, J.
1. In the matter of appointment to Apex or Central Societies under Rule 187 of the Co-operative Societies
Rules, as it stood prior to the amendment dated 26.11.2014, should the eligibility criteria of being an
employee of a member society, continue till the date of appointment or is it sufficient if the criteria is
satisfied as on the date of application? Taking note of the view expressed by a learned single Judge in W.P.
(C) No.23600/2012 at variance with a Division Bench of this court in Shibi M.V. v. State of Kerala and
Others, 2011 (1) KLT 873 :: 2011 (2) KLJ 275 :: 2011 ICO 151, these writ petitions are placed before us on
reference. For the sake of convenience, we shall refer to the Exhibits as produced in W.P.(C) No. 17393/2015
2. As per Ext,P2 notification dated 14,12,2009f applications were invited for appointment to the post of
Branch Manager in respect of 50% of the vacancies from employees of the member societies, in terms of
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Rule 187 of the Rules. Rule 187 as it stood prior to the amendment effected on 26.11.2014 reads thus:
"187. Vacancies in Apex Society or Central Societies.— Notwithstanding anything contained
in Rule 186, in appointments to apex societies or central societies, 50% of the vacancies shall
be reserved to the employees of the member societies, of the respective apex society or central
society as the case may be, having a minimum regular service of 3 years in any of the cadre
and having the required qualification for the notified posts in the apex society or central
society."
Ext.P2 Notification specified that the employee should be in the service of the society even as on the date of
appointment. On 11.12.2012, Ext.P8 Circular was issued by the Public Service Commission, the relevant
portion of which reads thus:
"Note:- The requirement that the employees should be in the service of the society even on the
date of appointment to the post in pursuance of this notification will not be applicable to those
who were recruited through the Public Service Commission to a post in the Apex/Central
Societies reserved for the employees of the affiliated primary Co-operative/Member Societies
provided they are continuing in service in that post."
As per the Circular, employees who were in the service of the society at the time of application, but who
were recruited in the Apex/Central Societies through the Public Service Commission, to another post
reserved for the employees of the affiliated primary co-operative/member societies shall be eligible for
appointment provided they continue in that post as on the date of appointment. Therefore, a particular
category of employees were carved out from the notification, to whom, the eligibility stipulation requiring
continuance in service of member society till the date of appointment, was done away with. Subsequent to
the said Circular, Ext.P7 amendment was brought in the proviso to the Rule with effect from 26.11.2014 on
similar Tines. The amendment reads thus:
"Provided further that the reservation as stipulated in rule 187 shall be applicable to those
employees who should be in the service of the member society not only on the date of
application but also on the date of appointment.
Provided also that the requirement that the employees should be in the service of the member
society even on the date of appointment will not be applicable to those who were recruited
through the Public Service Commission to a post in the Apex/Central Societies reserved for the
employees of the affiliated primary co-operative/member societies provided they are
continuing in service in that Apex/Central Society:"
3. A learned single Judge of this Court in Shibi M.V. v. State of Kerala and Others, 2010 (3) KLT 662 :: 2010
ICO 1104 interpreting Rule 187 as it stood prior to amendment, held that the Rule postulates that the
candidate should be an employee of a member society not only on the date of submission of the application
but the said status should continue even as on the date of appointment. The said judgment was affirmed by a
Division Bench in 2011 (1) KLT 873 :: 2011 (2) KLJ 275 :: 2011 ICO 151. It was held thus:
"We are of the view that status of an employee i.e. continuous employment during the whole
selection process i.e. from the date of making application till date of appointment in the
apex/central Society, is the requirement to qualify for appointment under the quota reserved
for employees of member societies in the apex/central Society."
However, thereafter in W.P.(C) No.23600/2012 :: 2013 ICO 2808, a learned single Judge took the view that,
Rule 187 does not mention that even as on the date of appointment the applicant should be an employee of
the member society and upheld Ext.P8 circular in the present case, which was marked as Ext.P10 therein.
4. under Rule 187, reservation is given to a particular class, viz. employees of the member societies. To
claim appointment under the said Rule, the following conditions are to be satisfied:
(i) The applicant must be an employee of the member society,

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(ii) He must have minimum three years regular service.

(iii) He must possess the required qualification.
When reservation is given to a particular category of persons, it is necessary that the applicant satisfies or
falls within that eligibility criteria even as on the date of appointment. The post being reserved for the
employee of a member society, if as on the date of appointment he ceases to be so, he gets denuded of the
eligibility for appointment under Rule 187. we are in perfect agreement with the view expressed in 2010 (3)
KLT 662 :: 2010 ICO 1104 and 2011 (1) KLT 873 :: 2011 (2) KLJ 275 :: 2011 ICO 151. According to us, the
judgment in W.P.(C) No.23600/2012 does not lay down the correct law. In our view, the clause in Ext.P2
Notification requiring that the applicant should be an employee of the member society till the date of
appointment has not added anything beyond the prescriptions under Rule 187. on the contrary, Ext.P8
Circular makes an inroad into Rule 187 as it stood. Ext.P8 is issued even subsequent to the written test held
on 29.09.2012 pursuant to Ext.P2 notification. Since the process of appointment had already started, Ext.P8
circular and Ext.P7 amendment could not affect the same. Ext.P7 is only prospective in operation. Law is
settled that once selection process has commenced there cannot be a subsequent tinkering with the eligibility
criteria. See District Collector & Chairman, Vizianagaram Social Welfare Residential School Society,
Vizianagaram v. Tripura Sundari Devi, (1990) 3 SCC 655 :: 1990 ICO 355, Udayan K.K. v. Kerala Agro
Machinery Corporation Ltd., 2011 (3) KHC 547 :: 2011 ICO 1627, Sunu v. Union of India, 2000 (2) KLT
747 :: 2000 (1) KLJ 600 :: 2000 ICO 733, Kerala Public Service Commission v. Vivina V.V., 2009 (2) KHC
282 :: 2009 (1) KLJ 924 :: 2009 ICO 691 and Mohanan K.R. v. Director of Homeopathy, 2006 (3) KLT 641
:: 2006 (3) KLJ 380 :: 2006 ICO 4476.
Thus answering the reference, we direct the Registry to place the writ petitions as per roster, for disposal.
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