Antony Dominic, J. 1. W.A.Nos.1291/14 and 1323/14 arise from the judgment of the learned single Judge dismissing W.P(C). Nos.19535/14 and 20709/14 respectively. W.A.1410/14 is filed against an interim order passed by the learned single Judge in W.P(C).25663/14, declining the interim prayer made by the appellants to require the Kerala Public Service Commission to allow them to participate in the interview for the post of Branch Manager in District Co-operative banks. W.P(C). 24881/14 is filed by persons who are similarly situated to the appellants in these three appeals mentioned above.
2. Brief facts of the case are that the PSC invited applications for the post of Branch Manager in District Co-operative Banks. The notification is dated 14.12.2009 and the last date for submission of applications was fixed as 13.1.2000. Subsequently, by SRO No.1005/10, B.Com. Degree with Co-operation was included in Rule 186(1)(ia) of the Kerala Co- operative Societies Rules, 1969 as an alternative qualification for the post of Branch Manager in District Co-operative Banks. The appellants and the writ petitioners, who possess the qualification of B.Com. Degree with Co-operation as special subject, applied in response to the notification dated 14.12.2009. Despite the fact that at that point of time, the qualification possessed by them was not one prescribed for the post of Branch Manager, their applications were entertained and they were permitted to appear for the written test. However, their names were excluded in the short list published by the PSC. As a result, they were not called for the interview and it was in these circumstances, the writ petitions were filed.
3. Several applications were rejected by the PSC on the very same ground and many of those candidates have also approached this Court challenging their exclusion from the short list. Those writ petitions were dismissed by this Court on the ground that the candidates being unqualified as on the last date prescribed for submission of the applications, the PSC was justified in rejecting the applications. The judgments were also confirmed by the Division Bench in writ appeals filed by the aggrieved candidates and one such judgment is in W.A.793/12.
4. Subsequently also, a batch of writ petitions came up for consideration, when a learned single Judge doubted the correctness of the Division Bench judgment and referred the cases for consideration of a Division Bench. Accordingly, the matter was again considered by a Division Bench and the writ petitions were dismissed by judgment in W.P(C).37412/09 and connected cases, rendered on 19.3.2012. Therefore, as at present, the issue is concluded against the applicants by the judgments of the Division Bench in W.A.793/12 and in W.P(C).37412/09 and connected cases.
5. However, counsel for the appellants and the writ petitioners submitted that against the judgment in W.P(C).37412/09 and connected cases, Special Leave Petitions have been filed before the Apex Court as SLP (C).No.31237/13 and connected cases and that the Apex Court has admitted the SLP and passed interim orders directing that certain posts should be kept vacant, if not already filled up. Therefore, the counsel says that since the judgment is already under appeal, this Court is bound to entertain these appeals and writ petition and consider the matter on merits.
6. We are unable to agree with the learned counsel. As we have already stated, the issue is concluded against the petitioners by virtue of the Division Bench judgments noticed above. Except entertaining the petition and passing interim orders, the Apex Court has not reversed the findings of the Division Bench. Therefore, as at present, the precedent value of the Division Bench judgments remain in full force. If that be so, the fact that an SLP is pending and that an interim order has been passed is no reason to ignore the previous Division Bench judgments as contended by the learned counsel for the applicants.
7. The above view we have taken is fully supported by a Division Bench judgment of this Court in Abdu Rahiman v. District Collector [2009 (4) KLT 485] where, it was held thus:
“Even when a decision of Division Bench of this Court is stayed by the Apex Court, the learned Single Judges of this Court are bound to follow the decision of the Division Bench, as it continues to be a binding precedent for them. The interim order of stay only relieves the concerned parties from obeying the judgment under appeal.”
8. Counsel then contended that even in the absence of the amendment introduced by SRO No.1005/10, B.Com with Co-operation was a recognised qualification for the post in question. In support of this contention, learned counsel made reference to Rule 186(1)(i) which prescribes a degree in commerce with Co- operation as special subject, also as a qualification for all posts other than those requiring technical qualifications, the starting pay of which is Rs.250 and above as it existed on 1.1.1974 and such pay being revised from time to time. However, we are unable to accept this contention for the reason that the post of Branch Manager in the District Co- operative Banks for the filling up of which the notification in question was issued, is covered by Rule 185(2), which provides that the substantive vacancies in the post of Branch Manager and equivalent posts in District Co-operative Banks shall be filled up by promotion and direct recruitment in the ratio of 3:1. For all posts to be filled by direct recruitment under Rule 185(2), qualification prescribed are those contained in Rule 186(1)(i)(ia). In Rule 186(1)(i)(ia), B.Com with Co-operation was introduced as an alternate qualification only by SRO 1005/10 with effect from 2.11.2010. Therefore, the argument that even in the absence of the amendment, B.Com with Co-operation was one of the qualifications prescribed, raised relying on the provisions contained in Rule 186(1)(i) of the Co-operative Societies Rules, cannot be accepted.
9. Learned counsel then contended that the rule is retroactive and therefore, should govern the selection in question also. The question whether rule is retroactive or not is to be decided from the provisions of the rule itself. Section 109 of the Co-operative Societies Act confers power on the Government to frame rules with prospective and retrospective effect. But the amendment did not say that it shall have any retrospective effect. Instead, while introducing the amendment by SRO 1005/10, the notification specifically provided that the same is with effect from 2.11.2010. Therefore, the provisions of SRO 1005/10 makes it clear that the rule was not intended to operate with any retro- activity as contended by the learned counsel.
10. Learned counsel then relied on the Full Bench judgment of this Court in Mohanan v. Director of Homeopathy [2006 (3) KLT 641] to contend that the vacancies subsequent to 2.11.2010 should be filled up on the basis of the amended rule. Though we do find that such a principle has been laid down in the Full Bench judgment, according to us, in the facts of these cases, we will not be justified in taking cognizance of this contention. This is firstly for the reason that there is no pleading in any of these cases supporting this argument. Secondly, the PSC has not even published the ranked list and has not advised candidates to any vacancies which arose subsequent to 2.11.2010 from among the candidates selected pursuant to the notification dated 14.12.2009. Therefore, it is premature to entertain this contention. For these reasons, we refuse to deal with this contention and leave it open to the applicants to agitate the same at the appropriate time.
11. In the aforesaid circumstances, we do not find any reason to entertain these cases. Appeals and the writ petition are dismissed.
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ANTONY DOMINIC, Judge.
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ANIL K.NARENDRAN, Judge.
31.10.2014 W.A.Nos.1291, 1323 & 1410 of 2014 & W.P(C).Nos.24881 & 25663 of 2014
12. After the judgment was dictated, at the request of Adv.M.V.Bose, the learned counsel for the appellants in W.A.No.1410/2010, the cases were posted for 'spoken to'. On that occasion, considering the nature of the issues raised, with the consent of the learned counsel for the parties, W.P.(C)No.25663/2014 was also called for and was heard.
13. Apart from reiterating the contentions which were already urged and considered by us, the learned counsel contended that the appellants having obtained B.Com. degree with Co-operation, they should be treated as having graduation from a recognised University with not less than 50% marks in the aggregate and Higher Diploma in Co-operation under Rule 186(1)(ia)(i). This contention was raised relying on Rule 10 of KS & SSR, which provides that acquisition of a superior qualification pre-supposes the acquisition of a lower qualification prescribed for the post. According to him, therefore, the B.Com. Degree that the appellants had, should be treated as equivalent to Higher Diploma in Co- operation. In support of this contention, the learned counsel for the petitioner also relied on Ext.P4 series of judgments rendered in the context of claims made by the employees of Industries Department for promotion to the post of Junior Co-operative Inspector.
14. In so far as this contention is concerned, as rightly pointed out by the learned Standing Counsel for the PSC, Rule 186(1)(ia)(i) of the Co-operative Societies Rules, which prescribes graduation with 50% marks in the aggregate and Higher Diploma in Co- operation does not provide for any equivalent qualification would also suffice. Apart from that, the question of superior qualification pre-supposing the possession of a lower qualification prescribed for the post arises only if Rule 10 of the KS & SSR is applicable to the service in question. It cannot be disputed that Rule 10 of the KS & SSR is inapplicable to the employees in the Government Sector. If that be so, neither the principle of Rule 10 of KS & SSR, nor Ext.P4 series judgments rendered in the context of the employees in the Industries Department who are governed by the provisions of the KS & SSR, can be taken advantage of by the appellants. Therefore, this contention cannot be accepted. We, therefore, do not find any reason to interfere with the order passed by the learned Single Judge.
15. Since we have held on merits that the appellants are ineligible for the post of Branch Managers in District Co-operative Banks notified by the PSC, nothing survives to be considered in W.P.(C) No.25663/2014. Therefore, the said Writ Petition is also dismissed.
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ANTONY DOMINIC, Judge.
kkb.
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ANIL K.NARENDRAN, Judge.