Kerala High Court
Ratnavalli K.R vs Karalam Service Co-Operative Bank Ltd on 18 May, 2020
Author: V.G.Arun
Bench: V.G.Arun
WP(C).18187/11 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
MONDAY, THE 18TH DAY OF MAY 2020 / 28TH VAISAKHA, 1942
WP(C).No.18187 OF 2011(W)
PETITIONER/S:
RATNAVALLI K.R.
KALATHEDATH HOUSE, THANISSERI, MUKUNDAPURAM TALUK,,
THRISSUR DISTRICT, PIN 680 701.
BY ADV. SRI.C.D.DILEEP
RESPONDENT/S:
1 KARALAM SERVICE CO-OPERATIVE BANK LTD.
NO.600, KIZHUTHANI, P.O.THANISSERY,, MUKUNDAPURAM
TALUK, THRISSUR DISTRICT,, PIN 680 701.
2 BOARD OF DIRECTORS KARALAM SERVICE
CO-OPERATIVE BANK LTD.NO.600, KIZHUTHANI,,
P.O.THANISSERY,MUKUNDAPURAM TALUK,, THRISSUR
DISTRICT,PIN 680 701.
3 THE JOINT REGISTRAR OF CO-OPERATIVE
SOCIETIES (GENERAL), COLLECTORATE,, AYYANTHOLE,
THRISSUR, PIN 680 003.
4 THE REGISTRAR OF CO-OPERATIVE SOCIETIES
SECRETARIAT, THIRUVANANTHAPURAM.
5 KERALA STATE CO-OPERATIVE DEPARTMENT
REPRESENTED BY GOVERNMENT SECRETARY,, SECRETARIAT,
THIRUVANANTHAPURAM, PIN 680 701.
6 SIJI W/O.SURESH BABU, PEON
KARALAM SERVICE CO-OPERATIVE BANK LTD NO.600,,
KIZHUTHANI, P.O.THANISSERY, MUKUNDAPURAM TALUK,,
THRISSUR DISTRICT, PIN 680 701.
7 SHINY W/O.AJAYAN, PEON
KARALAM SERVICE CO-OPERATIVE BANK LTD NO.600,,
KIZHUTHANI, P.O.THANISSERY, MUKUNDAPURAM TALUK,,
THRISSUR DISTRICT, PIN 680 701.
WP(C).18187/11 2
8 SIDHI S/O.ALLI DEVADAS, PEON
KARALAM SERVICE CO-OPERATIVE BANK LTD NO.600,,
KIZHUTHANI, P.O.THANISSERY, MUKUNDAPURAM TALUK,,
THRISSUR DISTRICT, PIN 680 701.
9 MANEESHA W/O.K.S.BIJU, PEON
KARALAM SERVICE CO-OPERATIVE BANK LTD NO.600,,
KIZHUTHANI, P.O.THANISSERY, MUKUNDAPURAM TALUK,,
THRISSUR DISTRICT, PIN 680 701.
10 SINEESH S/O.HARIDAS PATTATH,
ATTENDER/SALESMAN,, KARALAM SERVICE CO-OPERATIVE
BANK LTD NO.600,, KIZHUTHANI, P.O.THANISSERY,
MUKUNDAPURAM TALUK,, THRISSUR DISTRICT, PIN 680
701.
R1, R6 BY ADV. SRI.DESI MATTHAI
R1 BY GOVERNMENT PLEADER
R1 BY ADV. SRI.KAROL MATHEWS SEBASTIAN ALENCHERRY
R1 BY ADV. SRI.M.M.MONAYE
R1 BY ADV. SRI.D.G.VIPIN
OTHER PRESENT:
SRI. MATHEW GEORGE VADAKKEL GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
17-03-2020, THE COURT ON 18-05-2020 DELIVERED THE FOLLOWING:
WP(C).18187/11 3
V.G.ARUN, J.
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W.P(c). 18187 of 2011
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Dated this the 18th day of May, 2020
JUDGMENT
The petitioner, a widow belonging to the Scheduled Caste with locomotor disability of 45%, is aggrieved by her non-selection to the post of Peon in the first respondent Society. The short facts, which lead to the filing of the writ petition, are as under;
As per Ext. P5 notification dated 16.2.2011, the 1 st respondent Society had invited applications for filling up four vacant posts of peon and one post of salesman. The petitioner applied for the post of peon and on being successful in the written test, was called for interview. But the petitioner's name was not included in the final ranked list of successful candidates published by the Society. Thereupon, the petitioner filed a complaint before the Joint Registrar of Co-operative Societies alleging violation of the statutory provisions and departmental instructions, as also bias and favoritism in the selection process. Pending the complaint, respondents 6 to 10 were appointed to the notified posts. Hence the writ petition, seeking the following reliefs; WP(C).18187/11 4
"i. Call for the records leading to the selection and appointment of respondents 6 to 10 and to issue a writ of certiorari or any other appropriate writ or order quashing/setting aside the Exhibit P5 notification, and the selection and appointment of respondents 6 to 10.
ii. Declare that Exhibit P5 and the selection and the appointment of respondents 6 tyo 10 are in violation of constitutional provisions and not in accordance with the Statutory provisions and the circulars of the 4th respondent.
iii. Issue a writ of mandamus or any other appropriate writ or order directing the first respondent to conduct fresh selection in compliance with the statutory provisions and the circulars of the 4th respondent."
2. Heard Sri. C.D. Dileep, learned Counsel for the Petitioner, Sri. M.M. Monaye learned Counsel for the first respondent Society and Sri. Mathew George Vadakkel, learned Government Pleader. According to the learned learned Counsel for the petitioner, apart from patent bias and favoritism, the section process is vitiated by reason of violation of the statutory mandate contained in Sections 80(4) and (5) of the Kerala Co-operative Societies Act and Rule 182(6) of the Kerala Co-operative Rules, which are provisions ensuring reservation for Scheduled Caste and Scheduled Tribe and physically handicapped candidates while effecting appointments through direct recruitment to WP(C).18187/11 5 specific posts in Cooperative societies. The directives in Circular No 18/91, 11/99 and 14/2010, issued by the Registrar of Co-operative Societies in furtherance of the above statutory mandate is also alleged to have been violated.
3. In elaboration of this submission it is contended that, as per Section 80(4), ten percent of the direct recruitment posts in every Society has to be reserved for appointment from persons belonging to the Scheduled Castes and Scheduled Tribes. Section 80(5) mandates three percent of the total posts to be reserved for physically handicapped persons having disability of forty percent or above. Proviso to Section 80(5) require reservation of minimum one post for an employee belonging to physically handicapped persons in societies with more than ten and less than thirty three employees. Rule 182(6) stipulates that, in all classes of selection, except those in supervisory and executive cadres, physically handicapped candidates shall be given grace marks, subject to a maximum of 10 percent. Circular Nos 18/91, 11/99 and 14/2010 issued by the Registrar of Co-operative Societies call for strict compliance of the statutory mandate and prescribe the manner in which notifications for appointment are to be published. It is alleged that in Ext. P5 notification, no mention was made regarding the reservations and that the benefit was not extended to the petitioner, in spite of her eligibility for reservation WP(C).18187/11 6 under both Scheduled Caste and Physically Handicapped categories. It is argued that the appointments affected in stark violation of the statutory provisions, thereby denying the petitioner her legitimate opportunity of securing employment is liable to be set at naught. The following authorities were cited by the learned Counsel in support of his contentions; Anandavally. M and others v President, alappuzha District Co-operative Bank Ltd and others [2008(3) KHC 878], Jayaprakash v Joint Registrar of Co-operative Societies [2013(4) KLT 788], Akalakunnam Village service Co- operative Bank Ltd V Binu. N and Others [(2014) 9 SCC 294], Saurabh Jain (Dr) and others v State of Kerala and others [2011(1) KHC 680], Olga Tellis and others v Bombay Municipal Corporation and others [1985(3)SCC 545].
4. The learned Counsel for the respondent Society refutes the allegation of favouritism and bias and contend that the selection process was conducted in strict compliance of the statutory provisions and Circular instructions. It is submitted that, at the time when Ext. P5 notification was published, two out of fourteen employees working in the Society belonged to the Scheduled Caste, whereby the mandate of Section 80(4) stood satisfied and hence there was no requirement for reservation in the appointments made pursuant to Ext. P5 notification. As regards the 3% physically handicapped quota, it is submitted that WP(C).18187/11 7 the Society had, vide its resolution dated 23.5.2011, decided to set apart one vacancy of junior clerk by appointing a person belonging to that category. Accordingly, a request was made before the Co- operative Examination Board, based on which selection was conducted and one Sushanth A.P appointed as Junior Clerk on 3.7.2013, thereby satisfying the mandate of Section 80(5). It is submitted that in spite of the petitioner being granted grace marks as stipulated in Rule 186(2), she could secure only the 36 th rank. The allegation regarding violation of the Circular is refuted and it is contended that, after having participated in the selection process without demur, the petitioner has no locus standi to challenge the selection and appointment of more meritorious candidates. Reliance is placed on the following decisions to buttress the contentions; Enathu Service Co-operative Bank Ltd. V Sachu [(2018) 3 KHC 707], Jyotish Kumar Koibatra and others v State of Assam and others [(2009)4 SCC 516)], Madras Institute of Development Studies and another v K.Sivasubramaniyan and others [(2016) 1 SCC 454], Air Commodore Naveen Jain v Union of India and others [(2019) 10 SCC 34].
5. The learned Government Pleader submits that an enquiry was conducted by the Department, which revealed the reservation for Scheduled Caste/ Scheduled Tribe candidates as well as for the Physically Handicapped candidates having been complied with and the WP(C).18187/11 8 allegations of bias and favoritism to be without substance.
6. To resolve the issues involved it is necessary to consider the relevant provisions of the Kerala Co-operative Societies Act, the Rules and the Circulars issued by the Registrar of Co-operative Societies. Section 80(4) and (5), the violation of which is the foundation of the petitioner's case, reads as follows;
80. Officers, etc. of Co-operative Societies:-
(1) xx xx
(4) Notwithstanding anything contained in sub-section (1)
or sub-section (2), ten per cent of the posts of employees of every society shall be reserved for appointment from persons belonging to the scheduled castes and scheduled tribes where the method of appointment to such posts by direct recruitment.
(5) Notwithstanding anything contained in sub-section (1) or (2) three per cent of the total posts of employees of every society shall be reserved for physically handicapped persons having disability of forty per cent or above, as certified by the medical board and the procedure of appointment shall be such as may be prescribed.
WP(C).18187/11 9Provided that in societies where there are more than ten and less than thirty three employees including cadre and sanctioned posts, there shall be reserved a minimum of one employee belonging to physically handicapped persons. Relevant portions of Rule 182, which is also pressed into service read as under;
"182. Classification under Section 80(1):- (1) For the purpose of sub-section (1) of S.80, the societies in the State shall be classified as shown in Appendix III:
xx xx (2) The Committee shall be the authority competent to appoint employees in a Co-operative Society.
xx xx (5) 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 guidelines issued by the Registrar.
(6) In all cases of selection, except those in the executive and supervisory cadres, physically handicapped candidates shall be given grace marks subject to a maximum 10 per cent.WP(C).18187/11 10
7. Section 80(4) prescribing the rule of reservation in favour of Scheduled Castes and Scheduled Tribes was introduced in the co- operative sector by Ordinance dated 25.2.1985 which was later replaced with Act 29 of 1986 published on 30.1.1986. Interpreting Section 80(4), a learned Single Judge of this Court in Anandavally (supra) held that appointments made in Co-operative Societies before 25.2.1985 have to be treated as recruitment without any classification on the basis of caste creed or colour, even if SC/ST candidates were appointed prior to that date and that reservation of the ten per cent, to satisfy the mandate of Section 80(4), has to be on the total number of posts to which direct recruitment is the method of appointment. Applying the dictum to the facts of the instant case, at least one post out of the total fourteen posts at the time of notification ought to have been reserved for SC/ST candidates. But according to the Society, no such reservation was necessitated as two SC/ST employees had already been appointed. The petitioner has not disputed this factual contention, nor does she have a case that the two employees were appointed prior to 25.2.1985 and therefore their appointments cannot be reckoned to have been made in terms of Section 80(4). As such, it can only be held that there was no violation of the mandatory requirement under Section 80(4) in the selection pursuant to Ext. P5. WP(C).18187/11 11
8. The three percent reservation for physically handicapped persons was introduced with effect from 28.4.2010 as per Act 7 of 2010. In order to give effect to this reservation, the posts which could be reserved for physically handicapped persons had to be identified. This process of identification of posts attained administrative finality by Circular No. 54 of 2011 issued by the Registrar only on 14.7.2011. Therefore, as on 16.2.2011, the date of publication of Ext.P5 notification, there were no identified posts in the Society for which the three per cent reservation was applicable and the Society cannot be faulted for issuing Ext.P5 without specifying the percentage of reservation. Hence, reliance on Jayaprakash (supra), which pertained to an appointment process initiated after publication of Circular No. 54 of 2011, is misplaced. Moreover, the next vacancy that had arisen in the Society after publication of the Circular was filled up by appointing Sushanth A.P, a physically handicapped person as Junior Clerk, which is a post identified under the Circular. Pertinently, the petitioner has not challenged the appointment of Sushanth A.P.
9. In Enathu Service Co-operative Bank's case (supra) the Bank, after reserving a post of Data Entry Operator for physically handicapped, issued notification for filling up the posts of Attender, Peon and Night Watchman. The notification was challenged on the ground that the mandate of Section 80(5) was not complied with. The WP(C).18187/11 12 Division Bench found the action of the Bank to be justified and held that the reservation was not specifically spelt out in the notification as it had already been extended to the process initiated for appointment to the post of Data Entry Operator. Here, the reservation posts were not identified as on the date of issuance of Ext.P5 and the vacancy that existed after identification of posts, was filled up by appointing a physically handicapped person. As such, neither can the notification be held bad for not specifying the reservation under section 80(4), nor can the appointments affected be held illegal.
10. In Akalakkunnam (supra), repelling the challenge against the concurrent judgments of the Single and Division Benches of this Court, invalidating a selection process for non-compliance of the departmental directives regarding manner of publication of notification, the Apex Court held that the circulars issued by the Government and Registrar of Co-operative Societies have statutory force and specifically stipulate the procedure for conducting the selection to the post of sub-staff. Having found the mandate of Section 80(4) to have been complied and the reservation under Section 80(5) to be impossible without identifying the posts, absence of stipulation regarding reservation in Ext.P5 is no reason to interfere with the selection. It is true that there are directives in the extant circulars issued by the Registrar for reservation of ten per cent of vacancies for WP(C).18187/11 13 candidates belonging to SC/ST and to specify such reservation in the notification inviting applications. But such directives would be applicable only if the reservation quota is remaining unfilled, lest it would be an empty formality and would also result in kindling false hope in candidates belonging to the reservation categories. The decision in Akalakkunnam (supra) was in the context of that Society's failure to notify the reservation vacancies in spite of their existence, which is not the case here. For the aforementioned reasons, I find the challenge against Exhibit P5 notification and the selection conducted pursuant to the notification, resulting in the appointment of respondents 6 to 10, to be unsustainable.
11. The learned Counsel for the petitioner cited the landmark decision of the Apex Court in Olga Tellis (supra) in support of the proposition that estoppel is not a defence available to the State when its action is challenged on the ground of violation of any fundamental right. The Full Bench decision of this Court in Saurabh Jain (Dr) (supra) is cited to lend support to the contention that candidates participating in a selection process, either for employment or for an educational opportunity, are not estopped from challenging the legality of the process on the ground that they participated in the selection process before challenging the selection process. Per contra, the learned Counsel for the first respondent relied on the decisions in WP(C).18187/11 14 Jyotish Kumar Koibatra (supra) and Madras Institute of Development Studies (supra) in reiteration of the settled position that estoppel, acquiescence and waiver would apply when selection process is challenged by a candidate, after voluntarily participating in the selection. Jyotish Kumar Koibatra (supra) is cited to drive home the point that mere suspicion based on high marks scored by candidates who had fared poorly in the written test and vice versa, would not, by itself, justify interference by the High Court in exercise of the power under Article 226 of the Constitution of India. Having already found the challenge to be unsustainable on merits, I refrain from venturing to take a decision on the question of locus standi.
In the result, the writ petition is dismissed. No order as to costs.
V.G.ARUN, JUDGE vgs WP(C).18187/11 15 APPENDIX OF WP(C) 18187/2011 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE 1ST PAGE OF THE S.S.L.C CERTIFICATE OF THE PETITIONER EXHIBIT P2 TRUE COPY OF THE PASS BOOK ISSUED BY THE GOVERNMENT OF KERALA, KL TSR LD 2429, DECLARING ELIGIBILITY TO CLAIM CONCESSION AND BENEFITS OF PERSONS WITH DISABILITIES.
EXHIBIT P3 TRUE COPY OF THE RELEVANT PAGE OF SSLC BOOK SHOWING HER QUALIFICATION EXHIBIT P4 TRUE COPY OF THE PRE-DEGREE MARK LIST OF THE PETITIONER, ISSUED BY THE CALICUT UNIVERSITY.
EXHIBIT P5 TRUE COPY OF THE NEWS PAPER PUBLICAITON AS PUBLISHED IN THE JANAYUGAM DAILY DATED 16.2.2011 EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 06.6.2011 FILED BY THE PETITIONER TO THE 1ST RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE PETITION DATED 6.6.2011 FILED BY THE PETITIONER TO THE THIRD RESPONDENT EXHIBIT P8 TRUE COPY OF THE PAPER NEWS PUBLISHED IN METRO VARTHA DATED 15.6.2011 RESPONDENTS' EXHIBITS:
EXHIBIT R1(a): COPY OF THE ADVERTISEMENT OF NOTIFICATION IN MATHRUBHOOMI ON 17.2.2011.
EXHIBIT R1(b): COPY OF ADVERTISEMENT OF NOTIFICATION IN dESHABHIMANI ON 16.2.2011.
EXHIBIT R1(c): COPY OF STAFF DETAILS OF OTHE 1ST RESPONDENT BANK AS ON 16.2.2011.
EXHIBIT R1(d): COPY OF RESOLUTION DATED 23.5.2011. EXHIBIT R1(e): COPY OF COMMUNICATION TO KERALA STATE CO-OPERATIVE EXAMINATION BOARD.
EXHIBIT R1(f): COPY OF ELIGIBILITY RANK LIST DATED 18.10.2012. WP(C).18187/11 16 EXHIBIT R1(g): COPY OF RANK LIST DATED 18.5.2013 JUNIOR CLERK FOR THE PHYSICALLY HANDICAPPED CANDIDATE.
EXHIBIT R1(h): COPY OF EXAMINATION BOARD DATED 6.6.2013 APPROVING THE RANK LIST.
EXHIBIT R1(i): COPY OF APPOINTMENT LETTER ISSUED TO THE PHYSICALLY HANDICAPPED CANDIDATE SRI.SUSHANTH A.P. EXHIBIT R6(a): COPY OF REQUISITION FOR REGISTRATION OF RESPONDENTS 6 TO 10 IN THE KERALA CO-OPERATIVE EMPLOYEES PENSION SCHEME. EXHIBIT R6(b):
WP(C).18187/11 17
APPENDIX OF WP(C) 35111/2011 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE NEWS PAPER PUBLICATION AS PUBLISHED IN THE JANAYUGAM DAILY DATED 16.02.2011.
EXHIBIT P2 TRUE COPY OF THE REPRESENTATION DATED 06.06.2011 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE PETITION DATED 16.06.2011 SUBMITTED BY THE PETITIONER TO THE THIRD RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE RANK LIST OF PEONS DATED 20.05.2011 GIVEN TO THE PETITIONER BY THE 1ST RESPONDENT.
EXHIBIT P5 TRUE COPY OF NOTIFICATION DATED 21.11.2011 OF THE 5TH RESPONDENT PUBLISHED IN MATHRUBHOOMI DAILY DATED 21.11.2011 FOR THE RECRUITMENT OF PHYSICALLY HANDICAPPED IN THE POST OF JUNIOR. CLERK.
EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 05.12.2011 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT.