Kerala High Court
Asif Salam vs The Registrar Of Co-Operative ... on 1 November, 2019
Equivalent citations: AIRONLINE 2019 KER 745, (2020) 1 KER LT 521
Author: S.Manikumar
Bench: S.Manikumar, C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
FRIDAY, THE 01ST DAY OF NOVEMBER 2019 / 10TH KARTHIKA, 1941
WA.No.2247 OF 2019
AGAINST THE JUDGMENT IN WP(C) 24785/2019(W) OF HIGH COURT OF
KERALA
APPELLANT/PETITIONER:
ASIF SALAM,
AGED 21 YEARS,S/O.SALAHUDIN,
IRANGUVILA HOUSE,ANAKKALLU, CHOKKAD P.O.,
NILAMBUR TALUK, MALAPPURAM DISTRICT.
BY ADVS.
SRI.P.C.SASIDHARAN
SRI.P.SAMSUDIN
RESPONDENTS/RESPONDENTS:
1 THE REGISTRAR OF CO-OPERATIVE SOCIETIES,
SAHAKARANA BHAVAN, THYCAUD,
THIRUVANANTHAPURAM-695 014.
2 THE VIGILANCE OFFICER,
OFFICE OF THE REGISTRAR OF
CO-OPERATIVE SOCIETIES, SAHAKARANA BHAVAN,
THYCAUD, THIRUVANANTHAPURAM-695 014.
3 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES
(GENERAL), MALAPPURAM, CIVIL STATION - 676 505,
MALAPPURAM DISTRICT.
4 THE CHOKKAD SERVICE CO-OPERATIVE BANK LTD,
CHOKKAD, REP. BY ITS SECRETARY, CHOKKAD P.O.,
NILAMBUR TALUK, MALAPPURAM DISTRICT, PIN - 679 332.
W.A.No.2247 of 2019
2
5 THE MANAGING COMMITTEE, CHOKKAD SERVICE CO-
OPERATIVE BANK LTD,
CHOKKAD P.O., NILAMBUR TALUK, MALAPPURAM DISTRICT,
PIN - 679 332, REP. BY ITS PRESIDENT.
6 BALAKRISHNAN, EXAMINER,
CHOKKAD SERVICE CO-OPERATIVE BANK LTD,
CHOKKAD P.O., NILAMBUR TALUK,
MALAPPURAM DISTRICT, PIN - 679 332.
7 HASEENA,
W/O.MUJEEB K.T., KARUVATHODIKA HOUSE,
CHOKKAD P.O., NILAMBUR TALUK,
MALAPPURAM DISTRICT, PIN - 679 332.
8 ANWAR K.S.,
KARUVANTHURUTHI HOUSE, PULLANKODE P.O.,
CHOKKAD, PERINGAPPARA, NILAMBUR TALUK,
MALAPPURAM DISTRICT, PIN - 679 332.
BY SR.GP- SRI V.TEKCHAND.
BY ADV.SRI.M.SASINDRAN
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
01.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.No.2247 of 2019
3
"C.R."
JUDGMENT
Dated this the 1st day of November, 2019 S.Manikumar, C.J.
Being aggrieved by the judgment made in W.P.(C)No.24785 of 2019, declining to grant the prayer sought for in the Writ Petition, instant Writ Appeal is filed.
2. Appellant is an aspirant for the post of Attender in a vacancy notified for appointment in Chokkad Service Co-operative Bank Ltd. Apprehending that the selection would not be done in a fair and proper manner, appellant seemed to have send Ext.P4 complaint to the Vigilance Officer of the Co-operative Department. Contending inter alia that the said complaint remained answered, W.P.(C)No.24785 of 2019 has been filed for a writ of mandamus directing Chokkad Service Co-operative Bank Ltd. represented by Secretary and Managing Committee, Chokkad Service Co-operative Bank Ltd. represented by President (respondents 4 and 5 therein), to appoint any qualified and credible agency to conduct the written test for selection to the post of Attender and Peon in the 4 th respondent Society, prepare a select list and select candidates for appointment from the list in accordance with merit.
3. Before the writ court, appellant has also sought for a mandamus directing the Vigilance Officer, office of the Registrar of Co-operative Societies, Thycaud, Thiruvananthapuram (respondent No.2 therein) to consider Ext.P4 W.A.No.2247 of 2019 4 complaint and to take appropriate action to appoint any qualified and credible agency to conduct the written test for selection of Attender and Peon in the 4 th respondent Society and to supervise and ensure a free and fair selection process.
4. Apart from the above, the appellant has also sought for a direction to respondents 3 to 6 therein to keep the process of selection of Attender and Peon in the 4th respondent Society, in abeyance, until a decision is taken by the Registrar of Co-operative Societies and the Vigilance Officer, office of the Registrar of Co-operative Societies (respondents 1 and 2 therein) on Ext.P4 complaint.
5. In support of the prayers sought for, the appellant has inter alia raised the following grounds:
"B. The 6th respondent is a private individual, having no license or permit nor qualified to conduct written test or examinations for selection of employees in co-operative societies or any like institutions. The respondent society has engaged him to conduct the test for selection of attender and peons in the society so as to do malpractices to favour the 7th and 8th respondents, who are the kith and kin of political activist connected with the director board members. The appointment of the 6 th respondent as an agency to conduct the written test is flawed with malafides and is to be interdicted.
C. Petitioner has preferred Exbt-P4 complaint before the vigilance wing of the co-operative department who is destined to conduct enquiry and take action in to allegations of corruption and other major irregularities in co-operative societies as provided u/s 68 A of the Act. Exbt-P4 Complaint is pending consideration before the 2 nd respondent. A copy of the complaint is forwarded to the 1 st respondent as well who is to W.A.No.2247 of 2019 5 refer the same to the 2nd respondent. While so if the selection process is allowed to be carried out with 6th respondent as the examiner, bias and prejudice will be the net result which cannot be cured or set right at a later stage.
D. The selection of attender and peon in the respondent bank is to be conducted in a free and fair manner after following due procedure for selection. The same has to be conducted by a qualified and credible external agency specified by this court as directed in WP 26537/2017 as otherwise the entire process of selection would become a mockery and a fraud on public."
6. Adverting to the grounds, submissions and material on record, writ court, by judgment dated 4.10.2019 in W.P.(C)No.24785 of 2019, at paragraph 2 held as follows:
"2. The petitioner alleges corruption and major irregularities in the selection process. Without there being a specific instance of such mal practice or corruption, the Court cannot entertain a writ petition based on vague allegations. No doubt, once selection is over, if the petitioner finds materials to substantiate the allegations of corruption and mal practice, he is free to take such matters before the authority concerned. The Court has no supervisory role in the matter of selection to the vacancies in a Co- operative Society. It appears that the petitioner has preferred Ext.P4 complaint before the 2nd respondent, with copy to the 1st respondent. Since no mal practice or corruption is made out, this Court cannot direct the 2nd respondent to act on such complaint. The petitioner is free to take up the matter before the statutory authority, who is competent to conduct an enquiry in this regard and take a decision."
Being aggrieved, instant Writ Appeal is filed on the very same grounds.
7. We have heard Sri.P.C.Sasidharan, learned counsel for the appellant. W.A.No.2247 of 2019 6
8. Material on record discloses that the writ petition seems to have been filed truly based on the assumption that the 6 th respondent, the agency, would not act in proper manner, while selecting the candidates for the post of Attender and Peon in the 5th respondent Society. As rightly observed by the writ court, appointment of respondent No.6 as an agency could have challenged on any of the grounds available to the writ petitioner/appellant.
9. Though Sri.P.C.Sasidharan, learned counsel for the appellant made further submissions with reference to the averments made in paragraph No.4 of the supporting affidavit to the writ petition contending inter alia that respondent No.6 is only an employee retired from the Co-operative Society having no license/permit to conduct any written test for selection of employees of a Co- operative Society and that he is an active organiser of CPI(M) in the locality, as stated supra, appointment of respondent No.6 as an agency has not been challenged.
10. Further contention that respondent No.7 is none other than the wife of the Local Committee Secretary of CPI(M) and that she is presently working as a data entry operator in the Society for the last more than 7 years, pursuant to a contractual appointment, and similarly, respondent No.8 is the Local Committee Member of CPI(M), as well as a Ward Member in Chokkad Grama Panchayat have not been substantiated by any documents.
11. That apart, writ court has rightly observed that there is no allegation of corruption in Ext.P4. Even taking note of allegation of corruption, there should be some prima facie evidence, so as to enable the court to proceed further, in W.A.No.2247 of 2019 7 exercise of an extra ordinary jurisdiction under Article 226 of the Constitution of India, to issue one of the most prerogative writ of "mandamus."
12. In the light of the above discussion, we are of the view that writ petition has been made duly based on assumption that selection of respondents 7 and 8 is likely based on apprehension. Writ of mandamus cannot be issued, on the basis of an affidavit, not supported by documents. At this juncture, in Bharat Singh and Others v. State of Haryana and Others reported in AIR 1988 SC 2181, Honourable Supreme Court held that:
"Party raising the point must plead and annex to the petition not only the facts but also evidence in proof of the facts. When a point which is, ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit."
13. Para 13 of the aforesaid judgment reads as follows:
"13. As has been already noticed, although the point as to profiteering by the State was pleaded in the writ petitions before the High Court as an abstract point of law, there was no reference to any material in support thereof nor was the point argued at the hearing of the writ petitions. Before us also, no particulars and no facts have been given in the special leave petitions or in the writ petitions or in any affidavit, but the point has been sought to be substantiated at the time of hearing by referring to certain facts stated in the said application by HSIDC. In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by W.A.No.2247 of 2019 8 evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter, affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter- affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us PG NO 1060 by the appellants is not entertainable. But, in spite of that, we have entertained it to show that it is devoid of any merit."
14. From the material on record it would be discernible that the petitioner has undergone the process of selection. If unsuccessful, the petitioner has the remedy to challenge the selection on any of the available grounds.
With the above observation, Writ Appeal is dismissed.
Sd/-
S.Manikumar, Chief Justice Sd/-
C.T.Ravikumar, Judge vpv /true copy/ P.A. To Judge