HAKKIM.E v. Joint Registrar of Co-operative Societies (General), Alleppey; Pullukulangara Service Co-operative Bank Limited No.2992, Kayamkulam; Board of Directors of Pullukulangara Service Co-operative Bank Ltd. No.2992, Kayamkulam; Sunil Kumar.R; E. Nassar; Ajayakumar; Sanal Kumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 21ST DAY OF AUGUST 2014/30TH SRAVANA, 1936** ## **WP(C).No. 5778 of 2009 (N)** ## **---------------------------** ## **PETITIONER :** - **-----------------------** **HAKKIM.E, S/O.EBRAHIMKUTTY, PEEDIKA KANDATHIL,MALAMEL BHAGOM, KAYAMKULAM, ALLEPPEY DISTRICT.** **BY ADVS.SRI.V.G.ARUN SRI.T.R.HARIKUMAR** **RESPONDENT(S):** - **----------------------------** **1. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), ALLEPPEY.** **2. THE PULLUKULANGARA SERVICE CO-OPERATIVE BANK LIMITED NO.2992, KAYAMKULAM, REPRESENTED BY ITS SECRETARY.** **3. THE BOARD OF DIRECTORS OF PULLUKULANGARA SERVICE CO-OPERATIVE BANK LTD. NO.2992, KAYAMKULAM, REPRESENTED BY ITS PRESIDENT.** **4. SUNIL KUMAR.R, PEON, PULLUKULANGARA SERVICE CO-OPERATIVE BANK LTD. NO.2992, KAYAMKULAM.** **5. E.NASSAR, PEON, DO.** **6. AJAYAKUMAR, KOYIKKALETHU THEKKETHIL KEERIKKAD SOUTH, KAYAMKULAM.** ## **7. SANAL KUMAR, VYKATHUVILA VADAKKETHIL KANNAMPALLY BHAGOM, KAYAMKULAM.** **R1 BY GOVERNMENT PLEADER SRI.T.R.RAJESH R2 & R3 BY ADV. SRI.P.C.SASIDHARAN R4 TO R7 BY ADV. SRI.M.K.CHANDRA MOHANDAS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).NO.5778/2009** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE ADVERTISEMENT DATED 25/10/2007** - **P2 COPY OF THE RESOLUTION DATED 24/6/2008.** - **P3 COPY OF THE ANSWER SCRIPT OF THE PETITIONER.** - **P4 COPY OF THE CIRCULAR NO.18/1991 DATED 7/6/1991** - **P5 COPY OF THE MARK SHEET.** - **P6 COPY OF THE MARK SHEET.** - **P7 COPY OF THE MARK SHEET.** - **P8 COPY OF THE CONSOLI- DATED MARK LIST** - **P9 COPY OF THE REPRESENTATION DATED 15/11/2008** - **P10 COPY OF THE JUDGMENT IN WP(C) 29597 OF 2008 DATED 7/10/2008** - **P11 COPY OF THE ARGUMENT NOTE DATED 1/12/2008** - **P12 COPY OF THE OBJECTION DATED 1/12/2008** - **P13 COPY OF THE OBJECTION DATED 1/12/2008** - **P14 COPY OF THE ORDER NO.CRP(1) 6923/08/L.DIS DATED 20/12/2008.** ## **RESPONDENT'S EXHIBITS:** - **R2(A) COPY OF THE FACING SHEET OF THE ANSWER SHEET OF THE 4TH RESPONDENT.** ## **/TRUE COPY/** ## **P.A.TO.JUDGE** ## **sts** ## **'C.R.'** ## **P.D. RAJAN, J.** ------------------------------------------W.P (C) No.5778 of 2009 ---------------------------------------------Dated this the 21[st] day of August, 2014 ## **JUDGMENT** This writ petition is filed under Article 226 of the Constitution of India by the petitioner, who is aggrieved by the illegal action of the 2[nd] respondent in making appointment to the post of Peons in the Pullukulangara Service Cooperative Bank Limted No.2992, Kayamkulam, Aleppey. On 23.10.2007, the 2[nd] respondent invited application for the post of Peons. The petitioner participated in the written test and interview, who got only 10[th] rank, and contended that both the interview and the written test were an eye wash and the respondents 4 to 7 were selected in an illegal manner by falsifying the mark sheet. Hence, the petitioner approached this Court with this writ petition to call for the records W.P.(C)No.5778/09 2 leading to Ext.P14 and quash the same by issuing a writ of certiorari, to declare that the selection and appointment of respondents 4 to 7 as per Ext.P1 notification is illegal and also to issue a writ of mandamus to conduct a fresh selection and appointment according to the rules. 2. In the counter affidavit filed by respondents 2 and 3, it is stated that by Ext.P14, the Joint Registrar of Co-operative Societies, on consideration of the entire aspect of the matter and on an examination of the issues, has arrived at a finding that there was no irregularity or illegality in the conduct of selection process. Against the order of Joint Registrar, the petitioner has an efficacious alternate remedy provided u/s.83(1)(j) of the Act, which was not invoked by the petitioner. The questions were prepared by a competent authority and the valuation was conducted on the same an outside day by agency. W.P.(C)No.5778/09 3 Therefore, there is no opportunity for tampering the answer sheet and qualified candidates were selected by the 2[nd] respondent. 3. According to Section 69 of the Co-operative Societies Act, 1969, all disputes are to be decided by Cooperative Arbitration Court and Registrar. Section 69(2) (d) of the Act reads as follows: “Section 69 (2) For the purposes of subsection (1), the following shall also be deemed to be disputes, namely.- (a) xxx xxx xxx (b) xxx xxx xxx (c) xxx xxx xxx (d) any dispute arising in connection with employment of officers and servants of the different classes of societies specified in sub-section (1) of S.80, including their promotion and inter se seniority.” When there is a dispute with regard to the selection process, the petitioner has right to approach the Co- operative Tribunal for appropriate remedies. Without W.P.(C)No.5778/09 4 adopting such procedure, he preferred this writ petition for invoking the jurisdiction under Art. 226 of the Constitution of India. 4. While dealing with appointments in Co-operative Societies, it shall follow rules and circulars issued periodically by the Registrar. Any mischief played in the selection process would affect the result since it is a public appointment. According to Rule 182 of the Cooperative Societies Rules, for the purpose of sub section (1) of Section 80, the societies in the State are classified as shown in Appendix III. Rule 182(5) says that 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 Registrar. Ext.P4 is the circular issued by the Registrar for W.P.(C)No.5778/09 5 appointment of employees in the Co-operative institution. As per that guidelines, Ext.P1 notification was issued by the 2[nd] respondent Bank on 23.10.2007. Ext.P2 is the rank list published by the 2[nd] respondent after written test and interview. Names of 15 candidates were published in the merit list. The petitioner got 85 marks in the written test and 12 marks in the interview, total 97 marks in the examination and arraigned 10[th] candidate in the merit list. According to clause III (4) of the Circular, the application for the post shall be invited through advertisement in leading dailies, having wide circulation in the area. 5. A clear scrutiny of the available records as well as the procedure of examination, in which the selection was conducted, clearly shows that there was no mischief or fraud in that procedure. The selection shall be made only after issuing notification followed by written test and W.P.(C)No.5778/09 6 interview. It is specifically mentioned in the Circular that written test shall be conducted by an outside agency and false numbers should be assigned to the answer script. Here, Ext.P1 is the notification issued by the 2[nd] respondent. As per that notification, the written test and interview were conducted. The written test was conducted by the former member of PSC. The petitioner contended that the 2[nd] respondent failed to entrust the matter to an outside agency for conducting the written examination and there is violation of Circular. But, the 2[nd] respondent contended that one person includes ' an agency', but it is not explained in the Kerala Co-operative Act or Rules. The word 'educational agency' was explained in Section 2 of clause (2) of the Kerala Education Rules, which means, “any person or body of persons permitted to establish and maintain any private school under that Act”. If that 7 W.P.(C)No.5778/09 concept is adopted, the former member of PSC, even though he is a single person, constituted an agency within the meaning of Ext.P4 circular. The 2[nd] respondent submitted that in the year 2011, the Registrar, Cooperative Societies clarified that position, a single person also includes an agency. On 9.11.2011 Registrar, Cooperative Societies issued Circular No.79/2011 modifying the recruitment for appointment of employees in Co-operative institution. In paragraph 4 (c) of the Circular, it is mentioned that ' The written test shall be conducted by an outside agency having expertise or knowledge or - experience in the field of co operation, which may also include individuals.' Therefore, a single person includes an agency for conducting written examination according to the Circular issued by the Registrar. In the circumstances, I do not find any harm in the written W.P.(C)No.5778/09 8 examination conducted by a single person, who is the former member of the PSC, functioned as an agency. 6. When entire selection was made according to the Circular and Rules, the next contention put forward by the the petitioner is irrelevant. He contended that false number was not given to the answer script and there was foul play. On the basis of this allegation, the Joint Registrar, District Co-operative society conducted an enquiry and reported that the answer sheet was tabulated on the same day itself, even though no false number was given to the answer sheet. Therefore, it will not cause any prejudice to the petitioner. The learned counsel for the v. petitioner relied the decision in **Deephty Vijayakumar Joint Registrar** [2008(4) KLT 321], in which it is held that the appointment was made in Co-operative Society by fraudulent and deceitfully means. Candidates with high W.P.(C)No.5778/09 9 ranking in written test awarded very low marks in interview. In the circumstances, the selection process was set aside. Here, such allegation is not found in the writ petition. The answer sheet was tabulated on the same day itself by an independent agency (former member of PSC), forwarded the mark to the concerned board and the board conducted the interview. According to Circular issued by the Registrar, no procedural violation is seen in conducting the examination. If any appointment was made in violation of mandatory provision of the Statute or Regulation, that is a good ground for interfering in the selection process. Since the minor lapses pointed out by the petitioner can be saved on the ground that on the same day itself the valuation of the answer script was completed. If that be the position, I do not find any fraud or foul play in the selection process. W.P.(C)No.5778/09 10 ## 7. Section 80B of the Kerala Co-operative ## Societies Act reads as follows: - **“80B. Co-operative Service Examination Board.** (1) Notwithstanding anything contained in this Act or the rules or in the bye-laws of any society relating to the recruitment of officers and servants thereof the Government shall, by notification in the Gazette constitute a Cooperative Service Examination Board for the conduct of written examination for all direct recruitment to posts of and above category of Junior Clerks in the Primary Agricultural Credit Societies, Primary Credit Societies, Urban Cooperative Banks and Primary Agricultural and Rural Development Banks in the State. [IA) The Co-operative Service Examination Board shall also conduct competitive or qualifying examination if any for promotion of employees in the Societies, in such manner as may be prescribed.] (2) The Examination Board shall consist of not more than three members and the term of the Board shall be five years. The powers and functions and other conditions of appointment of the members of the Board and the procedures to be followed by the Board for the conduct of examination and the preparation of list of candidates to be interviewed for appointment shall be such as may be prescribed. (3) All appointments shall be made by the committee concerned from the list of candidates after conducting an interview of the candidates and making a select list therefrom in such manner as may be prescribed. 11 W.P.(C)No.5778/09 (4) Notwithstanding anything contained in subsection (3A) of section 80 and in sub section (1) of this section, the committee of a society may, with the prior approval of the Registrar, appoint persons who are professionally or technically qualified or persons with experience and expertise to posts requiring such technical or professional qualifications on contract basis or by the method of deputation for such period, but not exceeding five years, as may be specified.” 8. The Co-operative Act was enacted in order to promote Co-operative principles of self governing in domestic institution, to achieve the object of equity, social justice and economic development envisaged in the directive principles of state policy of the Constitution of India. The Co-operative Banks are constituted according to the provisions of the Co-operative Societies Act and Rules and they have to function in accordance within the statutory limits. If the action of the Society is in violation of the Act and Rules and also against the binding directions issued by the Registrar of the Societies, then 12 W.P.(C)No.5778/09 parties can redress grievance by approaching this court. In Purushothaman v. Registrar [(1996 (2) KLT 26)] a Division Bench of this Court held that ” if the selection is not according to the provisions of the Act and rules and selection was made through manipulation or fraud, the persons selected are not even entitled for a notice and that persons who got the orders of appointment by back door should be sent through back door itself.” In that situation, technicalities of alternate remedy has no relevancy and such contention is to be ignored. Here, since the petitioner got 10[th] rank in the preparation of rank list, I do not find any malafides in the rank list. Immediately after the selection process, the qualified candidates were appointed in the available vacancies, they are working in the Society for a long time and their services were already regularised. Therefore, I do not W.P.(C)No.5778/09 13 find any reason to terminate their service on hyper technical grounds. In view of the aforesaid discussion, this petition lacks merits and is dismissed accordingly. **P.D. RAJAN, JUDGE.** acd