Abhitha Khan v. Ponkunnam Service Co-operative Bank Ltd and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **MONDAY, THE 16TH DAY OF JANUARY 2012/26TH POUSHA 1933** ## **WPC.No. 15018 of 2011 (B)** **-------------------------** **PETITIONER:** - **-------------** **ABHITHA KHAN,KALLAMPARAMBIL HOUSE, PONKUNNAM,KOTTAYAM.** ## **BY ADV. SRI.LIJI.J.VADAKEDOM** **RESPONDENT(S):** **---------------------------** **1. THE PONKUNNAM SERVICE CO-OPERATIVE BANK LTD.,NO.527,REP.BY ITS SECRETARY OFFICE OF THE, PONKUNNAM SERVICE CO-OPERATIVE BANK PONKUNNAM PO, KOTTAYAM DISTRICT 686 513.** **2. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL ) KOTTAYAM , OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES CIVIL STATION, KOTTAYAM 686 002.** **3. BOARD OF DIRECTORS (MANAGING COMMITTEE) PONKUNNAM SERVICE CO-OPERATIVE BANK REPRESENTED BY ITS PRESIDENT OFFICE OF THE PONKUNNAM SERVICE CO-OPERATIV BANK PONKUNNAM P.O. KOTTAYAM-686513** **R,R1 BY SRI.MOHAN PULIKKAL R,R1 BY SMT.MANJU RAJAN R,R1 BY SRI.K.JAYASANKAR (KAPRASSERY) R,R1 BY SRI.K.S.ARUN BABU R,R2 BY GOVERNMENT PLEADERSMT ANITHA RAVINDRAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WPC.No. 15018 of 2011 (B)** ## **APPENDIX** ## **PETITIONERS EXHIBITS** |**P1**|**COPY OF THE PUBLIC NOTIFICATION DATED 14-2-2010**|**COPY OF THE PUBLIC NOTIFICATION DATED 14-2-2010**| |---|---|---| |**P2**|**COPY OF THE IDENTIFICATION CARD DATED 19-5-2011 ISSUED BY THE 1ST**|| ||**RESPONDENT BANK TO THE PETITIONER**|| |**P3**|**COPY OF THE INTERVIEW CARD DATED 19-5-2011**|| |**P4**|**COPY OF THE CIRCULAR 18/91**|| |**P5**|**COPY OF THE COMPLAINT DATED 26-5-2011 SUBMITTED BY THE PETITONER**|| ||**BEFORE THE 2ND RESPONDENT**|| |**RESPONDENT EXHIBITS**||**NIL**| |||**TRUE COPY**| |||**P.A. TO JUDGE**| ## **SMM** ## **P.N.RAVINDRAN, J.** -------------------------------------WP (C) No. 15018 of 2011 --------------------------------------Dated this the 16[th] day of January, 2012 ## JUDGMENT The short question that arises for consideration in this writ petition is whether the outside agency entrusted by a cooperative society to hold the written test in terms of circular No.18/91 dated 7.6.1991 issued by the Registrar of Co-operative Societies need only set the question paper and value the answer scripts. The brief facts of the case are as follows. 2. By Ext.P1 notification dated 11.12.2010 published in the 'Deepika' and 'Deshabhimani' dailies, the Secretary of the first respondent co-operative bank invited applications from eligible persons for appointment to five existing vacancies of Peons and two other vacancies of Peons anticipated to arise in the next two years. The last date stipulated for submission of applications was 31.12.2010. Pursuant thereto, the petitioner submitted an application. She was called to appear for the written test held on 4.6.2011 as can be seen from Ext.P2 and the interview held on the same day after the written test, as can be seen from Ext.P3. WP(C)No.15018 of 2011 -2- 3. The petitioner appeared for the written test and interview and thereafter submitted Ext.R1(g) representation dated 3.1.2011 before the President of the first respondent bank wherein she requested the President of the bank to ensure that the rules of communal reservation are observed while making the appointments. The petitioner claimed that no candidate belonging to the Muslim community has been appointed by the bank till date. She thereafter filed Ext.P5 representation dated 26.5.2011 before the Joint Registrar of Co-operative Societies (General), Kottayam, alleging that the written examination was not conducted by an impartial outside agency. She contended that the task of holding the written test was entrusted to an individual owing allegiance to the political party to which the members of the Managing Committee belong. She also contended that the written test is an eye wash and requested the Joint Registrar to take steps to ensure that an independent outside agency holds the written test. The instant writ petition was thereafter filed on 2.6.2011 contending that the written test was not conducted by an outside agency and that the bank has already chosen the persons to be appointed in the vacancies notified as per Ext.P1. WP(C)No.15018 of 2011 -3- Reliance is placed on Ext.P4 circular issued by the Registrar of Co-operative Societies and the decision of this Court in **Mannady Services Co-operative Bank vs. Krishnakumar & Another 2011 (2) ILR 619** to contend that the written test should have been conducted by an outside agency and the written test and interview should not have been held on the same day. In this writ petition, the petitioner seeks a declaration that the selection process adopted by the first respondent bank pursuant to Ext.P1 notification is in violation of Ext.P4 circular and is illegal. She also seeks a writ of a nature of mandamus commanding the respondents to conduct the selection process strictly in accordance with Ext.P4 circular and to appoint a competent outside agency to hold the written test. 4. The first respondent has filed a counter affidavit dated 28.8.2011. It is stated that the Managing Committee of the bank that met on 24.11.2010 resolved to fill up four posts of Peon from the general category and one post of Peon from among candidates belonging to the scheduled castes/scheduled tribes and to have the written test conducted by an independent outside agency. The Counter affidavit proceeds to state that the WP(C)No.15018 of 2011 -4- Managing Committee also resolved to publish the notification inviting applications in the Deepika and Deshabhimani dailies, that thereafter, the Managing Committee that met on 10.5.2011 constituted a sub committee consisting of the President, the Vice President and three members of the Manging Committee to hold the written test on 4.6.2011 and the interview after the written test on 4.6.2011 and also on the next day, viz., 5.6.2011, that pursuant thereto, the sub committee that met on 10.5.2011 resolved to entrust the task of holding the written test with “Indian Institute of Knowledge Management” at Uzhavur, that thereupon Ext.R1(d) letter dated 31.5.2011 was sent to the Director of the Indian Institute of Knowledge Management and that the written test was accordingly conducted on 4.6.2011 and the interview was conducted on the same day and also on the next day on 5.6.2011. 5. The writ petition was thereafter amended raising a contention that the Managing Committee of the bank itself should have entrusted the task of conducting the written test with an outside agency, that the sub committee of the Managing Committee could not have been entrusted with the said task, that WP(C)No.15018 of 2011 -5- the outside agency had only set the question paper and valued the answer papers and had not conducted the written test and therefore the entire selection process is vitiated. Referring to the resolutions adopted by the sub committee of the Managing Committee evidenced by Exts.R1(g) and R1(f), it is contended that invigilators were not employees of the outside agency but teachers of the Higher Secondary School where the written test was held and therefore it cannot said that the outside agency conducted the written test. 6. The first respondent has filed an additional counter affidavit virtually admitting the fact that the outside agency did not conduct the written test, but contending that there is nothing unusual in engaging teachers of schools or colleges, where the written examination is held, as invigilators. It is contended that it is a regular practice adopted by the Kerala Public Service Commission and public sector undertakings for effecting recruitments. Various other contentions including the contention that the Indian Institute of Knowledge Management is an outside agency of repute is also raised. It is also contended that there is no prohibition in the Kerala Co-operative Societies Act or the WP(C)No.15018 of 2011 -6- rules framed thereunder in entrusting the task of conducting the written test with the sub committee and that the interview was conducted by 7 out of 8 members of the Managing Committee, except Smt. K.C.Sreekumari who abstained for the reason that her daughter was a candidate. The second respondent has filed a counter affidavit dated 24.11.2011 justifying the action taken by the Managing Committee of the bank and its sub committee. 7. I heard Sri.Liji J.Vadakedom, learned counsel appearing for the petitioner, Sri. Mohan Pulickal, learned counsel appearing for the first respondent and Sri.D.Somasundaram, learned Special Government Pleader appearing for the second respondent. I have also gone through the pleadings and the materials on record. Rule 182 (5) of the Kerala Co-operative Societies Rules stipulates that appointments shall be made by the committee after conducting the written test and interview as per the guidelines issued by the Registrar of Co-operative Societies. The relevant guidelines are those contained in Ext.P4 circular dated 7.6.1991. In paragraph 4 thereof it is _inter alia_ stipulated that the written test shall be conducted by an outside agency. In the instant case a reading of Ext.R(1) e letter dated 16.5.2011 WP(C)No.15018 of 2011 -7- sent by the Director of the outside agency to the President of the first respondent bank discloses that the outside agency had only set the question paper, printed it and handed it over to the Chief Superintendent at the examination centre on 4.6.2009 and collected the answer papers after the examination was held, valued it and returned the answer sheets after valuation to the first respondent bank. Ext.R1(f) resolution adopted by the sub committee also establishes this fact. The said resolution also establishes the fact that it was the Principal of the Higher Secondary School where the examination was held, who made arrangements for conducting the written test and appointed the invigilators pursuant to a request made by the sub committee of the Managing Committee in that regard. In short it is evident from the materials on record that the written test was not conducted in its entirety by the outside agency. The outside agency entrusted with the task of conducting the written test did only two things; it prepared the question paper and valued the answer scripts after the written test was held. In such circumstances, it cannot be said that the written test in the instant case was conducted by an outside agency within the WP(C)No.15018 of 2011 -8- meaning of the said term occurring in Ext.P4 circular wherein it is stipulated that the written test shall be conducted by an outside agency. In other words the outside agency has to actually conduct the written test and not merely set the question papers and value the answer papers. Such being the situation, as the written test was not conducted by the outside agency entrusted with the task of holding it, I am of the opinion that the selection held pursuant to Ext.P1 notification cannot be sustained. It is therefore not necessary for me to consider whether the selection is also vitiated for the reason that the written test was not conducted by an outside agency chosen by the Managing Committee but by the sub committee. I accordingly allow the writ petition, quash the selection process held pursuant to Ext.P1 notification and direct the first respondent bank to conduct a fresh selection from among the applicants who had applied pursuant to Ext.P1 notification after holding a fresh written test through an outside agency. The Secretary of the first respondent society shall for that purpose convene a meeting of the Managing Committee of the first respondent society and the Managing Committee shall in that WP(C)No.15018 of 2011 -9- meeting choose the agency to be entrusted with the task of holding the written test. The fresh written test shall be held and the select list prepared after interview, within three months from the date of receipt of a certified copy of this judgment. Sd/- **P.N.RAVINDRAN, JUDGE.** Rkc //true copy// PA to Judge.