Kerala High Court
Lovely. S vs The State Of Kerala on 23 November, 2011
Author: P.N.Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
THURSDAY, THE 15TH DAY OF MARCH 2012/25TH PHALGUNA 1933
WP(C).No. 2943 of 2012 (P)
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PETITIONER(S):
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LOVELY. S,
ATHIRA BHAVAN, NEW NAGAR-110, MANAKKAD,
VADAKKEVILA P.O., KOLLAM-691 010.
BY ADV. SRI.B.SURESH KUMAR
RESPONDENT(S):
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1. THE STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO THE
DEPARTMENT OF INDUSTRIES, SECRETARIAT,
FORT P.O., THIRUVANANTHAPURAM-695 023.
2. THE GENERAL MANAGER,
OFFICE OF THE GENERAL MANAGER,
DISTRICT INDUSTRIES CENTRE, ASRAMAM P.O.,
KOLLAM-691 002.
3. THE VADAKKEVILA KAITHARI NAITHU VYAVASAYA
SAHAKARANA SANGHAM LTD.NO.3346, THATTAMALA P.O.,
KOLLAM-691 020, REPRESENTED BY ITS SECRETARY.
4. THE SUB COMMITTEE,
VADAKKEVILA KAITHARI NAITHU VYAVASAYA
SAHAKARANA SANGHAM LTD.NO.3346, THATTAMALA P.O.,
KOLLAM-691 020, REPRESENTED BY ITS PRESIDENT.
5. HANDLOOM SUPERVISOR,
CHATHANNOOR CIRCLE, TALUK INDUSTRIES OFFICE,
ASRAMAM P.O., KOLLAM-691 002.
6. JAYASREE C., EDAVILAKAM,
THATTAMALA P.O., KOLLAM-691 020.
R1 & R2 BY GOVT. PLEADER MR.D. SOMASUNDARAM.
R6 BY ADV. SMT.ANU SIVARAMAN
R3 & R4 BY ADV. SRI.K.C.SANTHOSHKUMAR.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 15-03-2012, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
rs.
WP(C).No. 2943 of 2012 (P)
APPENDIX
PETITIONER'S EXHIBITS:-
EXT.P1 COPY OF THE ADVERTISEMENT WHICH APPEARED IN THE
MALAYALA MANORAMA DAILY DATED 23/11/2011.
EXT.P2 COPY OF THE MEMO DATED 17/01/2012 ISSUED TO THE
PETITIONER BY THE PRESIDENT OF THE SOCIETY.
EXT.P3 COPY OF THE REPRESENTATION DATED 30/01/2012 SUBMITTED
BY THE PETITIONER BEFORE THE 2ND RESPONDENT.
RESPONDENT'S EXHIBITS:-
EXT.R3A COPY OF THE RESOLUTION OF THE 3RD RESPONDENT SOCIETY
DATED 02/12/2011.
EXT.R3B COPY OF THE ORDER NO.K.16/4466/11 DATED 11/01/2012 ISSUED BY
THE 2ND RESPONDENT.
EXT.R3C COPY OF THE MEMO NO.3346/MYD/2012 DATED 17/01/2012 ISSUED BY
THE 4TH RESPONDENT.
EXT.R3D COPY OF THE REQUEST DATED 18/01/2012 SUBMITTED BY THE
4TH RESPONDENT.
EXT.R3E COPY OF THE RANKED LIST ISSUED BY THE 3RD RESPONDENT
SOCIETY.
EXT.R3F COPY OF THE MARK LIST OF THE CANDIDATES.
EXT.R3G COPY OF THE CIRCULAR NO.79/2011 DATED 09/11/2011 ISSUED BY
THE REGISTRAR OF CO-OPERATIVE SOCIETIES,
THIRUVANANTHAPURAM.
EXT.R6A COPY OF THE APPOINTMENT ORDER ISSUED BY THE PRESIDENT
VADAKKEVILA HANDLOOM WEAVERS INDUSTRIAL CO-OP. SOCIETY
LTD. NO.3346 DATED 04/02/2012.
EXT.R6B COPY OF THE RESIGNATION LETTER SUBMITTED 6TH RESPONDENT
TO THE PRESIDENT, VENPALAKKARAQ HWICS LTD. NO.3507
DATED 06/02/2012.
EXT.R6C COPY OF THE COMMUNICATION ISSUED BY PRESIDENT,
VADAKKEVILA HANDLOOM WEAVERS INDUSTRIAL CO-OP.
SOCIETY LTD. NO.3346 TO THE 6TH RESPONDENT DATED 09/02/2012.
//TRUE COPY//
P.S. TO JUDGE
rs.
P.N.RAVINDRAN, J.
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W.P(C).No.2943 of 2012
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Dated this the 15th day of March, 2012
JUDGMENT
In this writ petition the petitioner challenges the steps taken by the third respondent co-operative society to fill up the post of Secretary. The brief facts of the case are as follows:-
2. By Ext.P1 notification published in the Malayala Manorama daily dated 23.11.2011, the third respondent co-
operative society invited applications from eligible persons for appointment to the post of Secretary. The last date stipulated for submission of applications was 8.12.2011. Pursuant to Ext.P1 notification the petitioner applied for appointment. She was called to appear for the written test that was held on 31.1.2012. She appeared for the written test. An interview was also held on the same day. The petitioner participated in the interview as well. It is stated that a day before the written test was held, the petitioner submitted Ext.P3 representation dated 30.1.2012 before the General Manager, District Industries Centre, Kollam, the second respondent herein, who has been conferred with the powers of the W.P(C).No.2943 of 2012 -:2:- Registrar of Co-operative Societies by notification dated 21.7.1979 published in the Kerala Gazette Extraordinary dated 27.7.1979, wherein the main contention raised was that the test and the interview held on 31.1.20112 is a mockery and therefore, it may be stayed. The petitioner had also stated that Smt. Jayasree, the sixth respondent herein, working in Venpalakkara Kaithari Society, Koottikkada, is going to be selected and appointed to the post. After the written test was held, the third respondent society published a rank list in which the sixth respondent herein was ranked first. The instant writ petition was thereupon filed challenging the selection process and seeking the following reliefs:-
i) a writ of certiorari or other appropriate writ, direction or order quashing the entire selection process initiated by the 3rd respondent society for appointment to the post of Secretary pursuant to Ext.P1.
ii) a writ of mandamus or other appropriate writ, direction or order directing the respondents to conduct a fresh written test and interview for selection and appointment to the post of Secretary by a reputed outside agency.
3. The main contentions raised in the writ petition are that the entire selection process is illegal, arbitrary and vitiated by W.P(C).No.2943 of 2012 -:3:- mala fides, that the test and interview were an eye wash since the petitioner had indicated even before the written test was held that the 6th respondent is going to be selected, that the marks obtained by the sixth respondent, who secured the first rank, was on account of the manipulation at the instance of the Sub Committee in collusion with the so called outside agency, that the selection was not done in accordance with the guidelines prescribed in Circular No.79/2011 dated 9.11.2011 issued by the Registrar of Co-operative Societies, that the selection and appointment have to be transparent and fool proof, giving an equal opportunity to all eligible and qualified candidates and that it cannot be a mockery, farce or an eye wash . It is on these grounds that the petitioner seeks the aforesaid reliefs.
4. The third respondent has filed a counter affidavit dated 29.2.2012. In paragraph 2 it is stated that as the financial position of the society was not sound enough to hire an outside agency, the Managing Committee of the third respondent society that met on 21.12.2011 resolved to constitute a sub committee consisting of four members and authorised the sub committee to conduct the written test, that the Managing Committee also resolved to request the General Manager, District Industries W.P(C).No.2943 of 2012 -:4:- Centre to nominate a representative of the department for the purpose and authorised the Secretary in charge of the society to make a request in that regard. The counter affidavit proceeds to state that pursuant thereto, a request was made to the General Manager, District Industries Centre, to nominate a representative of the department and that the General Manager, District Industries Centre, Kollam, in turn issued Ext.R3(b) order dated 11.1.2012 appointing Sri.Bijoy, Handloom Supervisor, Chathannoor, as the departmental nominee. The counter affidavit proceeds to state that thereupon notices were issued to all the eligible candidates (16 in number) to be present for written test and interview that were held on 31.1.2012 with original documents, that thereafter the sub committee sent Ext.R3(d) letter dated 18.1.2012 to the Handloom Supervisor requesting him to set the question paper, hold the examination and to value the answer scripts, that the written test was thereafter conducted by the fifth respondent on 31.1.2012, that an interview was also held on the same day and thereafter Ext.R3(e) rank list was prepared by the sub committee and placed for consideration of the Managing Committee. It is stated that the Managing Committee approved the ranked list and thereupon the sixth W.P(C).No.2943 of 2012 -:5:- respondent, who was ranked first, was appointed on 4.2.2012 and she joined duty on 6.2.2012. It is stated that after this Court passed an interim order on 6.2.2012 staying the appointment to the post of Secretary, she was relieved from service on 9.2.2012. Relying on Ext.R3(g) circular dated 9.11.2011 it is contended that none of the provisions therein have been violated or ignored.
5. The sixth respondent has filed a counter affidavit dated 22.2.2012. In paragraph 2 it is stated that she possesses all the qualifications prescribed for the post, that she scored 63 marks out of 100 in the written test held by the fifth respondent after assigning false numbers, that she was awarded 16 marks out of 20 in the interview, that she scored an aggregate of 79 marks and was placed first in the rank list, that the petitioner scored only 45 marks in the written test and 13.8 marks in the interview and scored an aggregate of 58.8 marks and was placed at rank No.8 in the rank list and therefore she is not competent to maintain the writ petition. It is stated that after she was ranked first Ext.R6(a) letter of appointment was issued on 4.2.2012 calling upon her to join duty before 15.2.2012, that she thereupon resigned from the post of Paid Secretary of Venpalakkara Handloom Weavers Co- operative Society Ltd., by submitting Ext.R6(b) resignation letter W.P(C).No.2943 of 2012 -:6:- dated 6.2.2012 and thereafter joined duty in the third respondent society on 6.2.2012. It is stated that she had furnished a cash security of Rs.5,000/- and executed a fidelity bond for Rs.10,000/- on 6.2.2012, but later in view of the interim order of stay passed by this Court on 6.2.2012, her appointment was kept in abeyance and Ext.R6(c) letter dated 9.2.2012 was issued. The sixth respondent has averred that there is no illegality or irregularity in her appointment and that she was selected because of her superior qualifications and experience. The counter affidavit proceeds to state that the petitioner having participated in the selection process cannot turn round and challenge the selection process after having come out unsuccessful in the selection.
6. The petitioner has filed a reply affidavit dated 3.3.2012 wherein it is stated that the society has manipulated the records to make it appear that the sixth respondent joined duty on 6.2.2012, that the sixth respondent was working in another society, that the appointment order was received by her on 6.2.2012 and in such circumstances her case that she resigned from the society where she was working and joined duty in the third respondent society on the same day after furnishing cash W.P(C).No.2943 of 2012 -:7:- security and executing a fidelity bond cannot be believed. It is stated that records have been manipulated with a view to make it appear that before this Court passed the interim order of stay on 6.2.2012, the appointment order was issued and the sixth respondent joined duty. It is stated that the fifth respondent, who conducted the written test, is not an outside agency and he is only an officer of the Industries Department and that the sixth respondent has no answer in the counter affidavit to the case set out by the petitioner even before the commencement of the written test that the sixth respondent is going to be selected and appointed.
7. I heard Sri.B.Suresh Kumar, learned counsel appearing for the petitioner, Sri.D.Somasundaram, learned Special Government Pleader appearing for respondents 1, 2 and 5, Sri.K.C.Santhosh Kumar, learned counsel appearing for respondents 3 and 4 and Smt.Anu Sivaraman, learned counsel appearing for the sixth respondent. Sri.B.Suresh Kumar, learned counsel appearing for the petitioner contended with reference to the materials on record that the written test was conducted by the fifth respondent, an officer of the Industries Department, who could not have been associated with the conduct of the written W.P(C).No.2943 of 2012 -:8:- test in view of Circular No.12/1990 dated 22.3.1990 issued by the Registrar of Co-operative Societies which interdicted officers of the department from being associated with the setting of question papers, holding of the written test and valuation of answer scripts and the interview for the purpose of selecting candidates for appointment in co-operative societies. The learned counsel for the petitioner contended that as the written test in the instant case was conducted by the fifth respondent, who had set the question papers, conducted the examination and valued the answer scripts, the selection and appointment pursuant to Ext.P1 notification is liable to be set aside. The learned Special Government Pleader appearing for the official respondents did not dispute the said submission. Per contra Sri.K.C.Santhosh Kumar, learned counsel appearing for respondents 3 and 4 and Smt.Anu Sivaraman, learned counsel appearing for the sixth respondent contended that the petitioner had no specific case in the writ petition that the written test was not conducted by an outside agency as stipulated in Circular No.18/1991 dated 7.6.1991, that Circular No.12/1990 dated 22.3.1990 issued by the Registrar of Co-operative Societies applies only to employees of the Co- operation Department and not to employees of the Industries W.P(C).No.2943 of 2012 -:9:- Department and therefore, the mere fact that the fifth respondent was a member of the sub committee which conducted the written test is not a reason to interfere with the selection process. The learned counsel for respondents 3, 4 and 6 contended that the petitioner, who participated in the written test which was held by a sub committee of the third respondent society of which the fifth respondent was also a member, cannot turn round and contend that the written test was not conducted in accordance with the stipulations in Circular No.18/1991 dated 7.6.1991 or Circular No.79/2011 dated 9.11.2011. The learned counsel appearing for the sixth respondent lastly contended that the sixth respondent, who possesses B.Com., degree with Co-operation as an elective subject and possesses the M.Com., degree besides other qualifications and was working as Paid Secretary in Venpalakkara Handloom Weavers Industrial Co-operative Society Ltd., Kollam, will be put to serious prejudice, if, at the instance of the petitioner, who had participated in the selection process and did not secure better marks than the sixth respondent, the selection and appointment of the sixth respondent is set aside on a ground which is not specifically pleaded in the writ petition.
8. I have considered the submissions made at the Bar by W.P(C).No.2943 of 2012 -:10:- the learned counsel appearing on either side. I have also gone through the pleadings and the materials on record. The materials on record disclose that pursuant to Ext.P1 notification inviting applications, 17 persons including the petitioner and the sixth respondent had submitted applications. One application was found to be defective and was rejected. The remaining 16 applicants including the petitioner and the sixth respondent, were called to appear for a written test followed by an interview that was held on 31.1.2012. The petitioner, who is a graduate and possesses the educational qualification of Junior Diploma in Co- operation appeared for the written test on 31.1.2012. The case set out by the petitioner in the writ petition is that a day previous to the written test he had submitted Ext.P3 representation dated 30.1.2012 to the General Manager, District Industries Centre, Kollak, (Joint Registrar of Industrial Co-operative Societies) wherein he had stated that the sixth respondent is going to be selected to the test and that the test and interview to be held on 31.1.2012 is just a mockery. The relevant averment in that regard is contained in paragraph 4 of the writ petition, which is extracted below:-
"4. The petitioner submitted a representation W.P(C).No.2943 of 2012 -:11:- dated 30.1.2012 before the 2nd respondent pointing out that one Jayasree, working in Venpalakkara Kaithari Society, Koottikkada is going to be selected to the post and the written test and interview scheduled to take place on 31.1.2012 is farce as selection has already been made. A true copy of the representation dated 30.1.2012 submitted by the petitioner before the 2nd respondent is produced herewith and marked for reference as Exhibit P3.
Ext.P3 has been sent by registered post (RL.No.1834881401N and RL.No.1834881531N) to respondents 2 & 5 and the copies were given at the office of respondents 2 & 5 also."
Though the averments in paragraph 4 of the writ petition extracted above would indicate that Ext.P3 representation was sent on 30.1.2012, a day prior to the date on which the written test and interview were held, the petitioner has not produced the postal receipts evidencing such despatch though she has chosen to give the number of the postal articles. She has also not stated that Ext.P3 was sent by registered post on 30.1.2012 itself. In any case there is no material before this Court to come to the conclusion that even before the written test was held on 31.1.2012, the petitioner had predicted that the sixth respondent will be appointed and therefore the written test and interview are a mockery. As the petitioner has not produced any material to W.P(C).No.2943 of 2012 -:12:- show that Ext.P3 representation was in fact sent a day previous to the written test, this Court cannot proceed on the basis that the petitioner was aware even when she participated in the written test that the sixth respondent will be selected and appointed. The reasons which persuaded the petitioner to make such a statement in Ext.P3 are also not stated. Ext.P3 only contains a statement to the effect that its reliably understood that one Jayasree is going to be selected to the post. The petitioner has not along with the reply affidavit filed by her to the counter affidavit filed by the sixth respondent produced any material to show that even before the written test was held, she had sent a letter to the General Manager, District Industries Centre, Kollam, stating that the sixth respondent is going to be selected. Therefore, nothing turns on the statement in the reply affidavit that even before the written test was held the petitioner had even predicted that the sixth respondent is going to be selected to the post of Secretary. That takes me to the question whether the selection and interview held on 31.1.2012 is liable to be set aside on any of the other grounds stated in the writ petition.
9. It is relevant in this context to note that apart from stating that the selection was not done in compliance with the W.P(C).No.2943 of 2012 -:13:- stipulations in Circular No.79/2011 dated 9.11.2011 issued by the Registrar of Co-operative Societies and that the test and interview were just a mockery and also alleging that the fifth respondent who was entrusted with the responsibility of conducting the selection as an outside agency, colluded with the other members of the sub committee and gave first rank to the sixth respondent, the petitioner had no case in the writ petition that the written test was not conducted by an outside agency as stipulated in Circular No.18/1991 dated 7.6.1991 or by an outside agency as stipulated in clause 4(c ) of Ext.R3(g) Circular dated 9.11.2011. It was only when the third respondent society filed a counter affidavit to the effect that a sub committee consisting of a nominee of the department was authorised to conduct a written test and that the fifth respondent was the nominee thus appointed by the department, the learned counsel for the petitioner has put forward a case that the fifth respondent is not competent to act as an outside agency. In my opinion, in the light of the materials on record it cannot be said that it was the fifth respondent who conducted the written test as an outside agency. Ext.R3(b) order passed by the General Manager, District Industries Centre, dicloses that Sri.Bijoy, Handloom Supervisor, Chathannoor, was W.P(C).No.2943 of 2012 -:14:- nominated as the representative of the department and to be a member of the panel constituted by the third respondent society for conducting the written test and interview. It is thus evident from Ext.R3(b) order dated 11.1.2012 that it was not the fifth respondent who conducted the test, but a sub committee in which he was the nominee of the department. Therefore, the mere fact that Ext.R3(b) letter dated 11.1.2012 nominated the fifth respondent as the representative of the department and a member of the sub committee and the remaining four members of the sub committee had requested him to conduct the test and interview cannot in my opinion be a reason to hold that he was entrusted to conduct the written test and interview as an outside agency. That apart, in the written test held on 31.1.2012 the petitioner secured only 45 marks as can be seen from Ext.R3(e) and in the interview she secured only 13.8 marks. The aggregate of the marks obtained by the petitioner is 58.80. The sixth respondent, on the other hand, secured 63 marks in the written test and 16 marks in the interview. Many other candidates had secured better marks than the petitioner. That apart, the pleadings and the materials on record disclose that the sixth respondent who was working in Venpalakkara Handloom Wavers W.P(C).No.2943 of 2012 -:15:- Co-operative Society, had resigned her job in that society for the purpose of taking up employment in the third respondent society. The fact that she was appointed on 6.2.2012, but later her appointment was kept in abeyance is also not in dispute. In such circumstances in the absence of a case for the petitioner that the sixth respondent is ineligible to be appointed to the post of Secretary and in the absence of a specific case for the petitioner in the writ petition that the written test was not conducted by an outside agency as stipulated by the Circulars issued by the Registrar of Co-operative Societies (such a case was put forward only in the course of arguments based on materials which subsequently came to light). I am of the opinion that the selection and appointment of the sixth respondent cannot be interfered with. Apart from vaguely contending that the selection is illegal, arbitrary and vitiated by mala fides and that the sixth respondent obtained first rank on account of manipulation by the sub committee and that the selection was not done fairly in accordance with the guidelines, the petitioner has no specific case in the writ petition that the written test was not conducted by an outside agency in terms of the circulars issued by the Registrar of Co-operative Societies. I accordingly hold that on such a vague W.P(C).No.2943 of 2012 -:16:- pleadings a relief which would affect the sixth respondent, who had resigned from the service of another society and had in fact joined in the third respondent society on receipt of the appointment order, cannot be granted.
I accordingly hold that there is no merit in the writ petition. The writ petition fails and is dismissed. No costs.
P.N.RAVINDRAN, Judge.
ahg.
P.N.RAVINDRAN, J.
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W.P(C).No.2943 of 2012
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JUDGMENT 15th March, 2012