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C.V. Linimol & Another v/s Malappuram Co-Operative Spinning Mills represented by its Managing Director & Others

    WP(C) No. 28910 of 2016 (K)

    Decided On, 05 June 2017

    At, High Court of Kerala


    For the Petitioners: P.V. Baby, A.N. Santhosh, Advocates. For the Respondents: R1, K. Anand, Senior SC, Latha Anand, R2 & R3, Mable C. Kurian, Govt. Pleader, R4, Joshy Thannickamattam, Advocates.

Judgment Text

1. This writ petition is filed by the petitioners seeking issuance of a writ of mandamus directing the 1st respondent to appoint the petitioners to the post of Office Assistants before the expiry of Ext.P2 rank list, and other consequential reliefs. Necessary facts for the disposal of the writ petition are as follows:

2. Petitioners are rank Nos.4 and 5 to the post of Office Assistants in the 1st respondent Co-operative Spinning Mills. The 1st and 2nd rank holders are already appointed. The 3rd rank holder is prepared to relinquish her right since she got another employment. As per Ext.P3 staff pattern, the strength of Office Assistant is 15. Out of the total strength, eight retired and one resigned and the remaining Office Assistants are six in number. Four new Office Assistants, including the 1st and 2nd rank holders already appointed, increased the total strength to 10, and therefore, five vacancies are existing. The period of rank list expires by 30.12.2016. Therefore, unless the petitioners are appointed before the expiry of the ranked list, petitioners will be prejudiced seriously. It is also submitted that, even though various representations were submitted to the respondents, the same did not yield any positive results. These are the circumstances apparently persuaded the petitioners to approach this Court by filing this writ petition.

3. A counter affidavit is filed by the 1st respondent basically denying the allegations and claims and demands raised by the petitioners. Among other contentions, it is stated that due to acute financial crisis, 1st respondent was not in a position to appoint anybody to the post of Office Assistant. The financial condition of the 1st respondent is so weak that it is unable to make statutory payments on time. However, due to retirement of persons from office staff, the 1st respondent was forced to appoint Office Assistants, and accordingly the first two rank holders, were given appointment. Out of the two persons appointed, one person is for preparation of wages, ESI, PF etc. and the other person is engaged in Sales and Accounts. A true copy of the profit and loss account of the 1st respondent for the year 2015-16 is produced as Ext.R1(a). Based on the same, it is submitted that as per the balance sheet, the gross loss of the 1st respondent for the financial year 2015-16 is above Rs.9 crores, and at present the 1st respondent has statutory dues to EPF, ESI and Welfare Board, amounting to more than Rs.1 crore. That apart, an amount of Rs.1.6 Crores, is outstanding towards electricity dues.

4. It is further submitted that the 3rd rank holder in the list has not made any request in writing to the 1st respondent, relinquishing her claim for appointment. The other contentions raised in the writ petition attributing allegations against the respondents are also denied. Therefore, the 1st respondent seeks dismissal of the writ petition.

5. The 3rd rank holder was impleaded as additional 4th respondent as per an application filed by the petitioners, who has filed a counter affidavit, primarily stating that since she has obtained selection in the Kerala Government Health Department, she has relinquished her claim for appointment as per Ext.P3 and she was relieved by the 1st respondent and joined as Attendant Grade-II in the Health Department and presently working in the Women and Children's Hospital at Alappuzha.

6. Subsequent to the filing of the writ petition, the petitioners have produced various documents to canvass the proposition that 1st respondent has invited applications to various posts, predominantly with the intention of controverting the contentions raised in the counter affidavit of the 1st respondent that it has no financial flexibility in order to make any appointments, evident from Exts.P19 to P23.

7. Heard learned counsel for the petitioners, learned Standing Counsel for the 1st respondent and the learned Government Pleader. Perused the documents on record and the pleadings put forth by the respective parties.

8. The question to be considered is whether the petitioners are entitled to compel for appointment to the 1st respondent establishment consequent to the expiry of the ranked list on 30.12.2016, and overlooking its financial capacity. Apparently, Ext.P2 ranked list is published and the petitioners are rank Nos.4 and 5. The rank list is dated 30.12.2014, which has a validity period of two years from the said date. Therefore, one thing is clear, the rank list has expired. True, petitioners have filed this writ petition on 30.08.2016, i.e. four months prior to the expiry of the rank list. So also, in I.A.No.15935 of 2016, an interim stay was granted by this Court on 26.10.2016, which is still in force. Therefore, it is the contention of the learned counsel for the petitioners that petitioners are entitled to get appointment in the 1st respondent establishment, since sufficient number of vacancies are available to accommodate the petitioners. According to the learned counsel, since the writ petition was pending when the ranked list has expired, its expiry is not an adverse consequence disabling the 1st respondent from appointing the petitioners from the list, especially due to the fact that the 3rd respondent has relinquished her right, evident from the affidavit filed by the 4th respondent before this Court, as discussed above. It is also contended by the learned counsel that the documents produced before this Court will clearly establish that the 1st respondent has sufficient financial flexibility and capacity to accommodate the petitioners also since various notifications were issued by the 1st respondent inviting applications to various posts, and offering better terms of employment, evident from Exts.P19 to P23. Therefore, it is submitted that petitioners are entitled to succeed in this writ petition.

9. Per contra, learned Standing Counsel appearing for the 1st respondent submitted that, since the list has expired and the vacancies are not directed to be reported, petitioners are not entitled to claim any right on the basis of Ext.P3 rank list. That apart, it is contended, evident from Ext.R1(a) profit and loss account for the year ended 31.12.2016, it is clear that the establishment is running at a huge loss and various statutory dues are outstanding to be paid to the respective statutory authorities. Therefore, the 1st respondent is not having sufficient financial capacity to accommodate the petitioners. In such constrained circumstances only, temporary appointments are made to tide over the financial situation and making every endeavour to run the unit so as to ensure employment to the existing employees.

10. It is also contended, petitioners cannot compel the establishment to appoint them. In that regard, learned counsel has also invited my attention to the judgments of the apex court in 'Shankarsan Dash v. Union of India' [1991 (3) SCC 47] and in 'S.S. Balu & another v. State of Kerala & others' [CDJ 2009 SC 034] and canvassed the proposition that merely because a rank list is published, the rank holders are not having any vested right to compel or insist the employer to appoint them.

11. The discussion made above will clearly establish that the rank list has expired on 30.12.2016. Mere pendency of a writ petition will not create a right to the petitioners to claim appointment after the expiry of the rank list. That apart, it is evident from Ext.P1 that the 1st respondent is not a financially viable business establishment. It is clear that it is running at a loss. Petitioners are not having a case otherwise than as projected by the 1st respondent in the counter affidavit with sufficient documents to establish the adverse financial circumstances. It is clear that it is running at a huge loss and is even struggling to perform its statutory obligations to protect the interest of the existing employees. Merely because applications for short term casual appointments were called for, that is not an enabling circumstance for this Court to visualize that the 1st respondent is sufficiently and financially capable of making appointments, creating more financial burden by paying salary, retirement benefits, contributions etc. Moreover, from the proposition of law laid down by the apex court in the afore-quoted judgments, it is clear, it is for the employer to decide the manner in which appointments are to be made. Merely because vacancies have arisen in the establishment, the rank holders cannot compel the establishment to appoint them overlooking its financial flexibility and viability. The judgment of the apex court in 'Shankarsan Dash' (supra) is significant in this regard. Paragraph 7 of the said judgment read thus:

'7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhas Chander Marwaha and Others, 1974 (1) SCR 165; Miss Neelima Shangla v. State of Haryana and Others, 1986 (4) SCC 268 and Jitendra Kumar and Others v. State of Punjab and Others, 1985 (1) SCR 899.'

12. T

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he same is the proposition of law laid down by the apex court in 'S.S. Balu and another' (supra). Moreover, petitioners are not having a case that their seniority in the rank list was overlooked, and thereby their legal rights have been overlooked. Therefore, it cannot be said that there is any arbitrary action on the part of the 1st respondent in not appointing the petitioners. The employer has decided, going by the tenor and terms of the counter affidavit, that it has no intention to make any permanent appointment to the establishment. The employer has every right to decide the manner in which the establishment is to be run, especially due to the fact that it is running at a loss. In the said constrained circumstances, I have no reasons to think that petitioners have made out a case warranting interference of this Court exercising the discretionary jurisdiction conferred under Article 226 of the Constitution of India, there being no illegality, arbitrariness or any other legal infirmities. Sequel to the above discussion is that writ petition fails, accordingly it is dismissed.