Kerala High Court
Kishore vs Binu N on 12 February, 2013
Author: Siri Jagan
Bench: S.Siri Jagan, Babu Mathew P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.SIRI JAGAN
&
THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH
TUESDAY, THE 12TH DAY OF FEBRUARY 2013/23RD MAGHA 1934
WA.No. 313 of 2010 ( ) IN WP(C).19594/2009
-------------------------------------------
WP(C).19594/2009 of HIGH COURT OF KERALA DT.13/1/10
APPELLANT(S)/ADDL.R5 TO R8:
-----------------------------------
1. KISHORE, ERUMATHANATHU,KARIMBANI PO
KOTTAYAM DISTRICT.
2. JOMON K.J, KAITHANIYIL, KARIMBANI PO
KOTTAYAM DISTRICT.
3. ARCHANA BINOY, KANNUMKUZHIYIL,
MATTAKKARA PO, KOTTAYAM DIST.
4. ABHILASH, THUNDATHIL HOUSE
MATTAKKARA PO, KOTTAYAM DISTRICT.
BY ADVS.SRI.K.RAMAKUMAR (SR.)
SRI.T.RAMPRASAD UNNI
SMT.SMITHA GEORGE
RESPONDENT(S)/PETITIONERS & RESPONDENTS 1 TO 4:
--------------------------------------------------------------
1. BINU N, ANADA BHAVAN, MATTAKKARA KARA
AKALAKUNNAM VILLAGE, KOTTAYAM TALUK.
2. THANKAMMA MANOJ, MOONGAMAKKAL
MANJAMATTAM KARA, AKALAKUNNAM VILLAGE, KOTTAYAM TALUK.
3. ROOPESH M.S, MUKKALI KUZHIYIL
PAADUVA, MATTAKKARA VILLAGE, KOTTAYAM TALUK.
4. THE REGISTRAR OF CO-OP.SOCIETIES
THIRUVANANTHAPURAM.
5. THE JOINT REGISTRAR OF CO-OPERATIVE
SOCIETIES, KOTTAYAM.
-2-
6. THE AKALAKUNNAM VILLAGE SERVICE CO-OP
BANK LTD NO.3857, MANJAMATTOM, MOOZHOOR PO
ANIKKADU, REPRESENTED BY ITS SECRETARY.
7. THE BOARD OF AKALAKUNNAM VILLAGE SERVICE
CO-OP BANK LTD NO.3857, MANJAMATTOM, MOOZHOOR PO
REPRESENTED BY ITS PRESIDENT.
R6 & R7 BY ADV. SRI.P.N.MOHANAN
R1-3 BY ADV. SRI.V.G.ARUN
R1-3 BY ADV. SRI.T.R.HARIKUMAR
R4 & 5 BY ADV. GOVERNMENT PLEADER SRI.D.SOMASUNDARAM
R6 & 7 BY ADV. SRI.P.N.MOHANAN
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 12-02-2013, ALONG
WITH W.A.364/10, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
S.SIRI JAGAN & BABU MATHEW.P.JOSEPH,JJ.
---------------------------------------------
W.A.Nos.313 & 364 OF 2010
---------------------------------------------
Dated 12th February, 2013
JUDGMENT
Siri Jagan,J.
W.A.No.313/2010 is filed by respondents 5 to 8 in W.P.(C).No.19594/09. W.A.No.364/2010 is filed by respondents 3 and 4 in the same writ petition. Both of them challenge the judgment of the learned Single Judge in that writ petition. The writ petition arose in the following factual scenario. By Ext.P1 notification dated 5/6/2006 published in Kottayam edition of Deshabhimani daily dated 6/6/2009, appellants in W.A.364/2010 (hereinafter referred to as "the Bank") invited applications for appointment to the post of Attender/Peon. The last date stipulated for submission of applications was 22/6/2009. Pursuant to Ext.P1, applications were received. In the meanwhile, respondents 1 to 3 herein (hereinafter referred to as "the petitioners") filed writ petition challenging Ext.P1 WA.313 & 364/10 2 notification on the ground that that notification does not conform to the Kerala Co-operative Societies Rules and the circulars issued under Rule 182(5) thereof. They also allege in the writ petition that the appellants in W.A.313/2010 (hereinafter referred to as "the selected candidates") were going to be appointed pursuant to the notification. After filing the writ petition they appeared for the written test also. The Bank and the selected candidates filed counter affidavit and contested the matter. After hearing both sides, the learned Single Judge came to the conclusion that Ext.P1 notification was not issued in accordance with Ext.P6 circular and the selection process was also not in accordance with Ext.P5 circular issued by the Registrar of Co- operative Societies. Consequently, the learned Single Judge quashed Ext.P1 notification and selection and appointment of the selected candidates directing the Bank to conduct a fresh WA.313 & 364/10 3 selection in the manner directed in Ext.P5 circular, after inviting applications in accordance with Ext.P6 circular. Fresh steps were directed to be taken and completed within six months from the date of the judgment. Till completion of fresh selection, the selected candidates were permitted to work on daily wage basis subject to the condition that their initial appointment or such continuance will not confer on them any preference for appointment. That judgment is under challenge in these writ appeals at the instance of the Bank and the selected candidates.
2. The first contention taken by the appellants is that the writ petition itself is not maintainable. They would contend that it is settled law that no writ petition under Article 226 of the Constitution of India would lie against a Co-operative Society, which the Bank is. The second contention is that even assuming WA.313 & 364/10 4 that a writ petition would lie, this Court should not have entertained the writ petition, since the petitioners have effective alternative remedy under Section 69 of the Kerala Co-operative Societies Act. The appellants would rely on the decisions of this Court in John v. Liquidator [2006 (1) KLT 11 (FB)] and A.P.Foods v. S.Samuel and others (2006 (5) SCC 469). It is also submitted that the petitioners are the persons who participated in the selection process and therefore, they cannot turn round and take the contention that the selection process itself is bad. In support of that contention the appellants rely on the decision of the Supreme Court in Ranjith v. Kannur University (2012 (1) KLT 183). As regards the findings of the learned Single Judge, the counsel for the appellants would take the stand that the directions in the circular are not mandatory in nature, but are only guidelines and unless the petitioners prove WA.313 & 364/10 5 prejudice, this Court shall not interfere with the selection process insofar as the petitioners have no case that the Bank was instigated by malafides in the conduct of the selection process. In the above circumstances, they would seek setting aside the judgment of the learned Single Judge and upholding the selection process.
3. On the other hand, the learned counsel for the petitioners would submit that there is no absolute law that under no circumstances a writ petition would lie against a Co- operative Society. Relying on the very same decision in John's case (supra) relied upon by the counsel for the appellants, the counsel for the petitioners would submit that in that decision a Full Bench of this Court has held that a writ would lie against a Co-operative Society when the duty owned by the Co-operative Society is of a public nature or when there is infringement of any WA.313 & 364/10 6 statutory rules by a co-operative society. The contention is that under Rule 182(5) of the Kerala Co-operative Societies Rules, in respect of societies and posts not covered by Section 80(3)(A) and Section 80B of the Kerala Co-operative Societies Act the appointments shall be made by the committee after conducting the written examination and interview as per the the guideline issued by the Registrar. The Government and the Registrar have issued Exts.P3 to P6 guidelines under Rule 182(5) regarding the conduct of examination and interview to the post of Attender/Peon. Ext.P1 notification issued by the Bank is clearly in violation of the guidelines issued as per the circulars relied upon and therefore, there is statutory violation, because of which the writ petition would certainly lie against the Bank is the contention raised. It is also submitted that since appointment to Co-operative Societies are public appointment, the duty of the WA.313 & 364/10 7 Co-operative society in the matter of conducting selection to those posts is a public duty. Therefore, in view of the decision of the Full Bench in John's case (supra) a writ will lie against the Bank, challenging the selection process initiated by Ext.P1 notification inviting applications, insofar as Ext.P1 notification does not contain details specified in Ext.P1 circular. It is also submitted that the selection process is also vitiated since as per Ext.P5, the written test must have been conducted by an outside agency, whereas, in this case, the committee authorised the President to find out a suitable person to conduct the written test. According to them, it is clearly in violation of the principles laid down by this Court in Mohanan v. State of Kerala and others (ILR 2010 (3) Kerala 776).
4. As regards the objection regarding alternative remedy, the counsel for the petitioners would contend that they WA.313 & 364/10 8 do not have any alternative remedy available insofar as Section 69 is not applicable to them. It is submitted that under Section 69(1), an arbitration case can be filed only by the persons named in and only in respect of the disputes specifically enumerated in Section 69(1) (a) to (h) of Kerala Co-operative Societies Act. The dispute raised in this writ petition does not come under any of the provisions of Section 69 (1) (a) to (h), is the contention raised. As regards the contention of the appellants that the petitioners cannot after participating in the selection process, turn round to challenge the selection process, the counsel for the petitioners would contend that since the writ petition was filed even before the conduct of the written test and immediately after publication of Ext.P1 notification, the objection raised by the appellants in respect of the same is not sustainable.
WA.313 & 364/10 9
5. We have considered the rival contentions in detail.
6. As far as the contention of the appellants regarding maintainability of the writ petition concerned, we are of the opinion that it has to be decided against the appellants in view of the decision of the Full Bench in John's case (supra). In that case, the Full Bench of this Court had categorically held that when a Co-operative society is doing a duty of public nature and when there is infringement of any statutory rules by such co-operative society, then for remedying the same, a writ would lie. In this case, Rule 182 (5) of the Kerala Co-operative Societies Rules reads thus;
"In respect of societies and posts not covered by section 80(3) (A) and Section 80B of the Act, the appointments shall be made by the committee after conducting the written examination and interview as per the guideline issued by the WA.313 & 364/10 10 Registrar."
It is pursuant to the same that Exts.P3 to P6 circulars have been issued by the Government and Registrar of the Co-operative Societies laying down the guidelines for conducting the written test. Those circulars specifically stipulate the procedure for conducting the selection to the post of sub staff in the Co- operative Societies. Since the petitioners contended that Ext.P1 notification has been issued in violation of Ext.P6 circular issued under Rule 182(5) of Kerala Co-operative Societies Rules, the writ petition is maintainable under Article 226 of the Constitution of India especially since the circulars will have statutory force in view of the fact that the circulars have been issued pursuant to Rule 182(5) of the Kerala Co-operative Societies Rules.
7. As far as the second contention regarding the availability of alternate remedy is concerned, the contention of WA.313 & 364/10 11 the appellants is that the petitioners have alternative remedy by way of filing an Arbitration case under Section 69 of the Kerala Co-operative Societies Act. Learned counsel for the appellants also relies on Sub section 2(d) of Section 69 of Kerala Co- operative Societies Act. Section 69 reads thus;
"69. Disputes to be decided by Co-operative Arbitration Court and Registrar:-
(1) Notwithstanding anything contained in any law for the time being in force, if a dispute arises,-
(a) among members, past members and persons claiming through members, past members and deceased members; or
(b) between a member, past member or person claiming through a member, a part member or deceased member and the society, its committee or any officer, agent or employee of the society; or
(c) between the society or its committee and any past committee, any officer, agent or employee or any past officer, past agent or past emloyee or the nominee, heirs or legal representativesof any WA.313 & 364/10 12 deceased officer, deceased agent or deceased employee of the society; or
(d) between the society and any other society; or
(e) between a society and the members of a society affiliated to it; or
(f) between the society and a person, other than a member of the society, who has been granted a loan by the society or with whom the society has or had business transactions or any person claiming through such a person; or
(g) between the society and a surety of a member, past member, deceased member or employee or a person, other than a member, who as been granted a loan by the society, whether such a surety is or is not a member of the society;
or
(h) between the society and a creditor of the society; such dispute shall be referred to the Co-operative Arbitration Court constituted under Section 70 A, in the case of non-monetary disputes and to the Registrar, in the case of monetary disputes and the Arbitration Court, or the WA.313 & 364/10 13 Registrar, as the case may be, shall decide such dispute and no other court or other authority shall have jurisdiction to entertain any suit or other proceedingsin respect of such dispute.
(2) For the purposes of sub-section (1), the following shall also be deemed to be disputes, namely:-
(a) a claim by the society for any debt or demand due to it from a member or the nominee, heirs or legal representatives of a deceased member, whether such debt or demand be admitted or not;
(b) a claim by a surety against the principal debtor, where the society has recovered from the surety any amount in respect of any debt or demand due to it from the principal debtor, as a result of the default of the principal debtor, whether such debt or demand is admitted or not;
(c) any dispute arising in connection with the election of the Board of Management or any officer of the society;
Explanation:-A dispute arising at any stage of an election commencing from the convening of the WA.313 & 364/10 14 general body meeting for the election shall be deemed to be a dispute arising in connection with the election;
(d) any dispute arising in connection with employment of officers and servants of the different classes of societies specified in sub-section (1) of Sec.80, including their promotion and inter se seniority.
(3) No dispute arising in connection with the election of the Board of Management or an officer of the society shall be entertained by the Co- operative Arbitration Court unless it is referred to it within one month from the date of the election. We are of the opinion that Section 69(2) (d) is also applicable only in respect of the disputes enumerated in Sub clauses (a) to
(h) of Section 69(1). The dispute between the petitioners and the appellants in this case is not a dispute coming within the purview of Sub Sections (a) to (h) of Section 69(1). That being so, simply because Sub Section 2(d) of Section 69 stipulates that any dispute arising in connection with employment of officers WA.313 & 364/10 15 and servants of the different classes of societies specified in sub- section (1) of Sec.80, including their promotion and inter se seniority will be deemed to be a dispute all disputes in connection with employment in a co-operative society will not come within the ambit of Section 69. That Sub Section also is applicable only for disputes enumerated in Sub clause (a) to (h) of Section 69 (1). In so far as, the dispute between the petitioner and the Bank does not come within any of Sub Sections (a) to (h) of Section 69(1), Section 69 (2) (d) cannot be pressed into service to hold that petitioners have an alternative remedy by way of filing an arbitration case under Section 69 of Kerala Co- operative Societies Act in respect of the dispute involved in this case. Therefore, we do not find any merit in the second contention of the appellants also.
8. The third contention is that petitioners cannot WA.313 & 364/10 16 after participating in the selection process turn round and challenge the selection process itself. We are of the opinion that that objection is also not available to the appellants, insofar as the petitioners had filed the writ petition even before participating in the selection process, challenging the validity of Ext.P1 notification inviting the applications as violative of Ext.P6. Therefore, we do not find any merit in the third contention of the appellants also.
9. The last contention raised by the appellants is that the circulars relied upon by the petitioners are only directory in nature and non compliance of the same does not automatically lead to vitiating the selection process itself, insofar as the petitioners are not prejudiced by the same. First of all, we do not agree that the circulars are merely directory in nature. In Rule 182(5) of the Kerala Co-operative Societies Rules, it is WA.313 & 364/10 17 mandatory that appointments shall be made by the committee after conducting the written examination and interview as per the guidelines issued by the Registrar. Therefore, the guidelines have statutory force and the same have to be strictly followed. Further, we find that in Ext.P6 the reason for issuing that circular have been specifically stated to be that many Co-operative Societies are not giving the necessary details in the notification inviting applications. Ext.P6 reads thus;
"klIcW kvYm]\'fnse \nba\/n\v ]
{X ]ckyw apJm4ncw At]# #Wnt!-
oXmsW6v 18/91 k@!pe@ {]Imcw
\n@t1in(ncpsp. Fsmp Nne klIcW kvYm]
\'D t]cpw A{UJpw shfns8Sp/msX
t_mIvkv \<@ ImWn(v ]{X ]ckyw
\pIpsXmbn ]cmXnID e`n(n+pov. klIcW
kvYm]\'D s]mXpkvYm]\'fmIbmp t]cpw
A{UJpw shfns8Sp/msX t_mIvkv \<@
ImWn(v ]{X ]ckyw \pIpsXv icnbmb \S]Sn
{Iaaq. \nba\'D!mbn ]{X]ckyw
WA.313 & 364/10
18
\pIpt<mD Xmsg ]dbps hnhc'D IqSn
DDs8Sp/n thWw ]{X]ckyw ]pds8Sphn!m3
Fsv \n@t1in!psp:
1. kwL/nsb ][email protected] t]cpw
hnemkhpw
2. F. HgnhpE XkvXnIbpsS t]cv
_n. HgnhpE F.w
kn. i<f kvsIbnp
3. {]mb]cn[n
4. F. hnZym`ymk tbmKyX
_n. ap3]cnNbw (Bhiyapso&np)
5. kwhcWw kw_Tn(pE hnhcw
6.. DtZymKm@0nbpsS t]cv, PmXn,
taphnemkw, hbJv, hnZym`ymktbmKyX,
ap3]cnNbw, kwhcWm\pIqeyw e`n!phm3
A@lXbpE hy`nbmsW&np BbXv
sXfnbn!m\pE tcJID. t^mt+m
Bhiysa&np BbXv Fsnh klnXw
kwL/np At]# e`nt!ops Ahkm\
XobXn.
7. Fgp/p]co#bpw Cb@hyqhpw
Dso&np B hnhcw
8. At]#m^okv
9. At]# Abt!o hnemkw"
WA.313 & 364/10
19
It does not require hair splitting examination to conclude that in Ext.P1 notification, except the first and fifth requirements, none of the other requirements are available. Therefore, as held by the learned Single Judge in the impugned judgment, Ext.P1 notification does not conform to Ext.P6 circular. The contention of the learned counsel for the appellants that the petitioners are not prejudiced by the absence of the details in Ext.P1 notification, also does not find favour with us. The details mentioned in Ext.P6 are the most essential details necessary for a candidate to decide to apply or not to apply to the post pursuant to the notification. Since those details are absent in Ext.P1, prejudice is writ large on the same, for which no authority is required. In the above circumstances, we have no hesitation to hold that Ext.P1 is clearly unsustainable, the same not having been issued in compliance with Ext.P6 circular. WA.313 & 364/10 20
10. We also agree with the learned Single Judge that the written test was also not conducted in accordance with Ext.P5 circular. In Ext.P5 circular, the written test was to be conducted by an outside agency. Admittedly, in this case the committee did not appoint any outside agency. The committee merely authorised the President to find out a suitable person for conducting the test. The President chose the Principal of an Aided Higher Secondary school for conducting the test. Two persons were also appointed to assist him. A learned Single Judge of this Court has in Mohanan's case (supra), held that the Managing committee itself should appoint the outside agency and the power to do so should not be delegated to the President. The decision also held that what is meant by outside agency is an agency of repute like the Institute of Co-operative Management or the Productivity Council. We respectfully agree WA.313 & 364/10 21 with the said decision. In fact we note that subsequent to that decision the Government has amended the guidelines permitting conduct of written test by individuals also. But the same was after the written test in this case. That being so, the written test also not being conducted in accordance with Ext.P5 circular, the written test also is liable to be set aside, which only has been done by the learned Single Judge.
For all the above reasons, we do not find any merit whatsoever in these writ appeals and accordingly, the same are dismissed.
(S.SIRI JAGAN) JUDGE.
(BABU MATHEW.P.JOSEPH) JUDGE.
uj.