High Court of KeralaSingle JudgeWP(C).No. 20482/2017 allowed to the extent indi...

Jayan B v. Registrar of Co-operative Societies, Office of the Registrar of Co-operative Societies, Kaduthuruthy Urban Co-operative Bank Ltd. Kaduthuruthy, and others

Case / Petition Number:WP(C).No. 20482 of 2017; WP(C).No. 22367 of 2018; WP(C).No. 29315 of 2018

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • P. V. Asha
Judgment Date
2018-11-26
Court Decision / Holding
WP(C).No. 20482/2017 is allowed to the extent indicated; the appointment of candidates in excess of the one vacancy notified is illegal and unsustainable. WP(C).Nos. 22367/2018 and 29315/2018 are dismissed. It is not necessary to relegate the petitioner to the Co‑operative Arbitration Court for the challenge to recruitment, as the Registrar’s circulars were violated; the court directed setting aside the excess appointments and reserved reservation compliance per Section 80(4).
Final Disposition
WP(C).No. 20482/2017 allowed to the extent indicated; WP(C).Nos.22367/2018 and 29315/2018 dismissed; the appointments in excess of the notified vacancies are set aside; the matter emphasizes compliance with circulars and the 10% SC/ST reservation, with no necessity to refer to the Co-operative Arbitration Court for these issues.

Parties to the Case

Appellants / Petitioners

  • JAYAN B
  • KADUTHURUTHY URBAN CO-OPERATIVE BANK LTD NO.K.399
  • CHINCHUMOL JOSEPH (Peon)
  • PRINCE K. THOMAS (Peon)
  • JIS ROSE KURIAN (Peon)
  • SREENATH (Peon)
  • JACOB K.J (Peon)
  • VENI V.NAIR (Peon)
  • SARATH SASANKAN (Peon)
  • ADDL.12 THE UNIVERSITY OF KERALA (Impleaded)

Respondents

  • REGISTRAR OF CO-OPERATIVE SOCIETIES OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM
  • JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOTTAYAM
  • ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, VAKKAM
  • URBAN CO-OPERATIVE BANK KADUTHURUTHY LTD
  • RAJU M C, GENERAL MANAGER, URBAN CO-OPERATIVE BANK, KADUTHURUTHY
  • PRAKASHAN E D, ASSISTANT GENERAL MANAGER, URBAN CO-OPERATIVE BANK
  • CHINCHUMOL JOSEPH
  • JIS ROSE KURIAN
  • PRINCE K THOMAS
  • JACOB K J
  • SREENADH
  • ADDL 12 THE UNIVERSITY OF KERALA (represented by its Registrar)

Legal Representation & Advocates

Counsels for Petitioners

  • • T. SHIHABUDEEN
  • • M.B. SOORI
  • • T.U. JOSEPH
  • • R. BASTIAN
  • • P.N. MOHANAN
  • • R. SREEHARI

Counsels for Respondents

  • • T. SHIHABUDHEEN
  • • R. BASTIAN
  • • P.N. MOHANAN
  • • R. SREEHARI
  • • THOMAS ABRAHAM (SC, UNIVERSITY OF KERALA)

Case Synopsis & Summary

These consolidated writ petitions challenge Kaduthuruthy Urban Co-operative Bank’s recruitment for the post of Peon, notified by Ext.P4 on 07.09.2014. Jayan B, a member of the Scheduled Caste, seeks cancellation of the Bank’s appointments to the post of Peon on grounds of illegality and non-compliance with statutory circulars. The Bank advertised in a single newspaper and appointed several candidates beyond the one vacancy; it did not adhere to Circulars Ext.P1, P2, P3, requiring advertisement in two leading dailies and strict adherence to the prescribed recruitment process, including the 10% reservation for SC/ST under Section 80(4) of the Kerala Co-operative Societies Act. The petitioner alleged irregularities surfaced through RTI and that the rank list’s validity was misaligned with PSC lists. The Bank contended that the remedy lies under Section 69 of the Act (co-operative arbitration) and that writs are not maintainable for private service disputes. The court, after hearing, found recruitment in excess of the notified vacancy and conducted beyond the rank-list’s validity violated the circulars and statutory provisions; it highlighted non-compliance with Section 80(4) and the improper extension of the rank list. Consequently, the court declared the challenged appointments illegal and unsustainable and allowed WP(C) No.20482/2017 to the extent indicated, while dismissing the other petitions challenging the show-cause notices.

Provisions of Law Cited

Kerala Co-operative Societies Act, Section 69Kerala Co-operative Societies Act, Section 69(2)(d)Kerala Co-operative Societies Act, Section 80(4)

Legal Doctrines & Maxims

  • Jurisdiction of Registrar/Joint Registrar to oversee recruitment in co-operative societies and to issue directions when illegality is found
  • Arbitration remedy under Section 69 of the Co-operative Societies Act as a forum for service disputes in co-operatives (not exclusive in all contexts)
  • Principle that appointments in excess of advertised vacancies and not following prescribed circulars are illegal

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners argued that the Kaduthuruthy Bank conducted recruitment beyond the single notified vacancy (Ext.P4, 7.09.2014) and violated circulars Exts.P1–P3, which mandated advertisement in two leading dailies, transparent selection procedures, written tests/interviews, and adherence to reserved quotas under Section 80(4) for SC/ST. They contended that appointments after 2014, including 2018, were not justified and violated the rank-list validity and the circulars’ conditions; they urged the Court to set aside all illegal appointments and to direct a fresh, transparent selection process in compliance with statutory provisions. They relied on precedents confirming the Registrar’s power to correct illegality and that remedies lie within the statutory framework, not purely through arbitration for service disputes in certain contexts.

Contentions of Respondents

The Bank contended that the challenge to its recruitment must be resolved through Section 69 arbitration and that writs are not the proper remedy for private disputes; it asserted that the vacancy was fulfilled and that the circulars were complied with; it argued that some posts were filled from a valid rank-list, and that the two-courts mechanism and the RTI-backed information did not reveal systemic violations; it relied on prior judgments limiting judicial interference in internal society matters and asserted that vacancies not notified should not be a basis to nullify all appointments.

Cited Precedents (9)

Case NameCitationTreatmentExplanation
Raghu Nandanan v. Joint Registrar1998 (2) KLJ 337PositiveCited in support of the proposition that a writ can lie for violations of statutory/circular provisions by co-operative societies.
Poonjar Service Co-operative Bank Ltd v. State of Kerala2004 (1) KLJ SN 40 (C.No.50)PositiveCited to reinforce the legality of challenging recruitment breaches and the Registrar’s corrective powers.
Nedumon - Service Co Op. Bank Ltd. v. Joint Registrar of Co Op. Societies & Ors.2014 (4) KLJ 162PositiveCited for the Registrar’s jurisdiction to intervene when statutory/procedural violations are found.
Mannady Service - Co operative Bank s caseILR 2011(2) Ker 119; 2011 (3) KLT Suppl. 50PositiveDivision Bench held that grievances arising from statutory violations can be addressed in Court, not solely via Arbitration.
W.A.924 of 2010W.A. 924 of 2010PositiveCited to support setting aside appointments made beyond vacancies notified.
Rakhi Ray v. High Court of Delhi(2010) 2 SCC 637PositiveApex Court precedent cited to bolster the view on public interest and statutory remedies.
Trissur District Co-operative Bank v. Delson Davis2002(1) KLT 852PositiveCited for principles on invalidity when recruitment violates statutory norms.
Deepthi Vijayakumar v. Joint Registrar of Co operative Societies2008(4) KLT 321PositiveCited to support illegality of non-compliant appointments.
Jayarani v. Assistant Registrar of Co operative Societies—Mentioned OnlyCited as authority; not discussed in detail in the judgment.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **MONDAY, THE 26TH DAY OF NOVEMBER 2018 / 5TH AGRAHAYANA, 1940** ## **WP(C).No. 20482 of 2017** ## **PETITIONER/S:** **JAYAN B AGED 33 YEARS S/O.BABU C.K, RESIDING AT KUREECKAL, KADUTHURUTHY P O, KADUTHURUTHY, KOTTAYAM – 686 604.** **BY ADVS. SRI.T.SHIHABUDHEEN SRI.M.B.SOORI SRI.T.U.JOSEPH** ## **RESPONDENT/S:** - **1 REGISTRAR OF CO-OPERATIVE SOCIETIES OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCEITIES, STATUE, THIRUVANANTHAPURAM-1** - **2 JOINT REGISTRAR OF CO-OPERATIVE SOCEITIES, OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, CIVIL STATION, KOTTAYAM-686575.** - **3 ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, VAIKKOM P O, KOTTAYAM DISTRICT, PIN-686 142** - **4 URBAN CO-OPERATIVE BANK KADUTHURUTHY LIMITED K-399, KOTTAYAM 686604, REPRESENTED BY ITS SECRETARY,** - **5 RAJU M C GENERAL MANAGER, URBAN CO-OPERATIVE BANK, KADUTHURUTHY, KOTTAYAM-686604.** - **6 PRAKASHAN E D ASSISTANT GENERAL MANAGER URBAN CO-OPERATIVE BANK,** **WP(C).No. 20482 of 2017** **2** ## **KADUTHURUTHY, KOTTAYAM 686604.** - **7 CHINCHUMOL JOSEPH RESIDING AT PULICKAPPARAMBIL, MANJOOR P.O, KOTTAYAM-686603.** - **8 JIS ROSE KURIAN RESIDING AT VELIYATH, KURAVILANGADU P O, KOTTAYAM-686633.** - **9 PRINCE K THOMAS RESIDING AT KUZHITHOTTIYIL, KATTAMPACHA P O, NEEZHOOR, KOTTAYAM – 686 612,** - **10 JACOB K J RESIDING AT KAROTTU VENGALLIL, ERAVIMANGALAM P O, KOTTAYAM-686613.** - **11 SREENADH** - **RESIDING AT THANDIRICKAL, ARPOOKARA P O, KOTTAYAM 686008.** - **ADDL 12 THE UNIVERSITY OF KERALA, REPRESENTED BY ITS REGISTRAR, PALAYAM, THIRUVANANTHAPURAM-695034** - **IS IMPLEADED AS ADDL. R12 AS PER ORDER DATED 13.07.2018 IN I.A.No.1716/2018** **BY ADVS.** **SRI. RON BASTIAN, GOVERNMENT PLEADER** - **SRI.P.N.MOHANAN** - **SRI.R.SREEHARI SRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA SRI. T. SHIHABUDHEEN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.11.2018, ALONG WITH WP(C). Nos.22367/2018 and 29315/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 20482 of 2017** **3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **MONDAY, THE 26TH DAY OF NOVEMBER 2018 / 5TH AGRAHAYANA, 1940** ## **WP(C).No. 22367 of 2018** ## **PETITIONER/S:** **KADUTHURUTHY URBAN CO-OPERATIVE BANK LTD NO.K.399, REPRESENTED BY CHAIRMAN, KADUTHURUTHY P.O.KOTTAYAM.** **BY ADV. SRI.P.N.MOHANAN** ## **RESPONDENT/S:** |**1**|**THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES**| |---|---| ||**(GENERAL),**| ||**KOTTAYAM-686 001.**| |**2**|**JAYAN.B.**| ||**KUREECKAL, KADUTHURUTHY P.O., KOTTAYAM- 686 604.**| |**3**|**POULOSE .V.J.**| ||**VADAKKEYATTATH, PERUVA P.O.,KOTTAYAM- 686 610.**| ||**BY ADVS.**| ||**SRI. RON BASTIAN, GOVERNMENT PLEADER**| ||**SRI.T.U.JOSEPH**| ||**SRI.T.SHIHABUDHEEN**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.11.2018, ALONG WITH WP(C).29315/2018, WP(C).20482/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 20482 of 2017** **4** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **MONDAY ,THE 26TH DAY OF NOVEMBER 2018 / 5TH AGRAHAYANA, 1940** ## **WP(C).No. 29315 of 2018** **PETITIONER/S:** - **1 CHINCHUMOL JOSEPH PEON, KADUTHURUTHY URBAN CO-OPERATIVE BANK LTD.NO.K.399, KADUTHURUTHY.P.O, KOTTAYAM.** - **2 PRINCE K.THOMAS PEON, KADUTHURUTHY URBAN CO-OPERATIVE BANK LTD.NO.K.399, KADUTHURUTHY.P.O,KOTTAYAM.** - **3 JIS ROSE KURIAN PEON, KADUTHURUTHY URBAN CO-OPERATIVE BANK LTD.NO.K.399, KADUTHURUTHY.P.O, KOTTAYAM.** - **4 SREENATH PEON, KADUHTHURUTHY URBAN CO-OPERATIVE BANK LTD.NOI.399, KADUTHURUTHY.P.O,KOTTAYAM** - **5 JACOB .K.J KADUTHURUTHY URBAN CO-OPERATIVE BANK LTD.NO.K.399, KADUTHURUTHY.P.O,KOTTAYAM.** - **6 VENI V.NAIR, PEON, KADUTHURUTHY URBAN CO-OPERATIVE BANK LTD.NOI.K.399, KADUGTHURUTHY.P.O,KOTTAYAM.** - **7 SARATH SASANKAN PEON, KADUTHURUTHY URBAN CO-OPERATIE BANK LTD.NO.399, KADUTHURUTHY.P.O,KOTTAYAM.** ## **BY ADV. SRI.R.SREEHARI** **WP(C).No. 20482 of 2017** **5** ## **RESPONDENT/S:** |**1**|**THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES**| |---|---| ||**(GENERAL)**| ||**KOTTAYAM - 686 001.**| |**2**|**KADUTHURUTHY URBAN CO-OPERATIVE BANK LTD.NO.399,**| ||**REPRESENTED BY CHAIRMAN,KADUTHURUTHY.P.O,**| ||**KOTTAYAM – 686 604.**| |**3**|**JAYAN.B**| ||**KUREECKAL,KADUTHURUTHY.P.O,KOTTAYAM-686 604.**| |**4**|**PAULOSE.V.J.**| ||**VADAKKEYATETATH,PERUVA.P.O,KOTTAYAM-686 610.**| ||**BY ADVS. SRI.T.SHIHABUDHEEN, SC**| ||**SRI.RON BASTIAN, GOVERNMENT PLEADER.**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.11.2018, ALONG WITH WP(C).22367/2018, WP(C).20482/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 20482 of 2017** **6** ## **JUDGMENT** **All these writ petitions relate to the appointment to the post of Peons made by Kaduthuruthy Urban Co-operative Bank, which is the third respondent in W.P.(C) No.20482 of 2017. The Bank is the petitioner in W.P.(C) No.22367 of 2018, challenging a notice issued to it in connection with the impugned appointments. W.P.(C) 29315 of 2018 is also one challenging the very same notice. Hence all these writ petitions are heard together and are disposed by this common judgments. Parties and documents referred to in this judgment are as described in W.P.(C) No.20482 of 2017, unless otherwise specified.** **2. The petitioner, who belongs to Scheduled Caste community, and eligible for appointment as Peon is seeking a direction to the 3[rd] respondent to cancel all appointments made to the post of Peon in the 4[th] respondent Co-Operative Bank, pursuant to Ext.P4 notification issued on** **WP(C).No. 20482 of 2017** **7** ## **07.09.2014 and to conduct a fresh selection.** **3. The 4[th] respondent Bank invited application for appointment to the post of Peon by notification published in Malayala Manorama daily dated 07.09.2014 (Ext.P4). The number of vacancy notified was one; educational qualification prescribed was the 7[th] standard and age limit prescribed was between 18 to 40 years as on 01.01.2014. It was notified that candidates belonging to the categories of physically disabled, SC/ST, Ex-servicemen etc. would be eligible for age relaxation.** **4. Petitioner claims that he is qualified for appointment to the post of Peon. On coming to know that the 4[th] respondent Bank made appointments far in excess of the only one vacancy notified, he made enquiries and found that, as against the one vacancy notified, the respondent Bank had made five appointments. He also alleges that the respondent Bank had notified the vacancy by advertising the same only in one newspaper** **WP(C).No. 20482 of 2017** **8** **daily whereas Ext.P1 circular and other circulars issued by the Registrar of Co-Operative Societies direct that selection shall be conducted only after advertisement as to the same in two dailies having wide circulation. The circulars also provide that such notification shall specify the name of the post, number of vacancies, scale of pay, age limit etc, and shall furnish the details regarding the conduct of written test/interview etc. By Ext.P2 circular issued on 19.03.2010, it was directed to strictly adhere to the procedure prescribed in circular No.14/10, before making appointments. It was specifically directed that, while making recruitment to the posts below the category of Junior Clerk, the conditions mentioned in Circular No.18/91 dated 07.06.1991 shall be strictly followed.** **5. Ext.P3 circular was issued thereafter on** **09.11.2011 revising the instructions and guidelines for recruitment to Societies. Clause** **4(a) provides that applications shall be invited** **WP(C).No. 20482 of 2017** **9** **through Advertisement in two leading dailies having wide circulation in the area. Clause 4(f) provides that ten percent of the vacancies should be reserved for candidates belonging to Scheduled Castes/Tribe communities. Based on the information gathered on application submitted under the Right to Information Act, petitioner came to know that advertisement was made only in one news paper. Apart from that nobody from scheduled caste/ scheduled tribe community is appointed. He thereupon submitted Ext.P6 complaint, before the Joint Registrar on 19.08.2016, pointing out the irregularities in the selection process.** **6. Petitioner has also raised several allegations regarding the promotions made in the Society pointing out that the respondents 5 and 6 do not have the prescribed qualifications.** **7. The learned counsel for the petitioner submits that during the pendency of the writ petition, the respondents have made two more appointments in the year 2018. Thus as against one** **WP(C).No. 20482 of 2017** **10** **vacancy notified, they have already made seven appointments. It is pointed out that there are 73 employees in the Society and there is no employee belonging to SC/ST community and there is noncompliance of Sub section 4 of Section 80 of the Kerala Co-operative Societies Act (hereinafter referred as 'the Act'), which prescribes 10% reservation for those belonging to SC/ST community.** **8. The respondents 4 to 6 have filed a counter affidavit. According to them, petitioner is a member of the Bank and therefore he has to challenge the selection before the Co-operative Arbitration Court, under Section 69 of the Act, being a dispute with the Society. It is their further contention that petitioner has no right to challenge the selection, as no public interest litigation is permissible in service law. However the Bank had stated that advertisement inviting applications - Ext.P5 notification was published only in Malayala Manorama Daily dated 07.09.2014.** **WP(C).No. 20482 of 2017** **11** **A written test and interview was conducted on 12.12.2014, based on which a rank list was published on the same date. The Society also passed a resolution Ext.R4(a) dated 12.12.2014 making the life of the rank list co-terminus with PSC rank list. It is stated that the respondents 7 and 9 were appointed on 15.12.2014. The 8[th] respondent was appointed on 27.03.2015, 10[th] respondent on 01.01.2015 and 11[th] respondent on 02.09.2016. According to them only reason for filing this writ petition is that Bank had taken steps to recover the arrears of loan due to the Bank from the petitioner, for which SARFAESI proceedings were already initiated. It is pointed out that even though the notification was issued on 07.09.2014, petitioner did not have any complaint against the notification and it is only after three years after the appointments were made that he raised these allegations and filed the writ petition.** **9. The respondents have also attempted to** **WP(C).No. 20482 of 2017** **12** **justify the promotions granted to the respondents 5 and 6. According to the respondents, petitioner being a third party, does not have any right to challenge the promotions or appointments. The respondents have produced Ext.R4(a) minutes of meeting held on 12.12.2014, in which the rank list containing 15 candidates with three Physically Handicapped candidates was approved and decided to appoint the respondents 7 and 9.** **10. Though the petitioner has raised various contentions against the promotions granted to respondents 5 and 6, I am of the view that the petitioner, who is only an aspirant for employment in the Bank, that too for the post of Peon, cannot have any right to challenge the promotions granted in the Society. As long as petitioner is not a person in the Feeder category, he cannot have any right to challenge the promotions made in the Bank. Therefore, I find it unncessary to consider the contentions other than those with respect to the selection and appointments made to the post of** **WP(C).No. 20482 of 2017** **13** **Peons.** **11. However, with respect to the appointment to the post of Peon, nothing is stated in the counter affidavit filed by the 4[th] respondent as to how they observed the conditions stipulated in the circulars including Exts.P1 to P3 issued by the Registrar of Co-operative Societies. It is also not stated how they could make any appointment in excess of the number of vacancies notified. From the pleadings in connected writ petitions, it is seen that two appointments were made on 01.06.2018, during the pendency of the W.P.(C) No.20482/2017.** **12. W.P.(C) No.22367/2018 petition is filed by the Co-operative Bank challenging Ext.P3 notice (in W.P.(C) No.22367/2018) issued by the Joint Registrar directing the petitioner to appear before the Assistant Registrar. The said notice was issued, after report was obtained from the Assistant Registrar General, Vaikom on receipt of complaints regarding the appointments made in the** **WP(C).No. 20482 of 2017** **14** **Bank. It was stated that a personal hearing would be conducted on 7[th] July, 2018 in which the Bank as well as the appointees would be heard. The Bank was directed to submit explanation, if any. One of the complaints referred to in that notice was from the petitioner in W.P.(C) No.20482/2017.** **13. The Bank stated that they have already made 7 appointments on the basis of Ext.P4 notification i.e., two appointments on 15.12.2014, one appointment on 01.01.2015, one appointment on 27.02.2015, one appointment on 01.09.2016 and two more appointments on 01.06.2018 to the post of Peon.** **14. The Bank stoutly opposed the writ petition stating that petitioner has got statutory remedy available and all service disputes under Section 69(2)(d) of the Act are to be raised before the Co-operative Arbitration Court under Section 69 of the Co-operative Societies Act. It is their case that the Joint Registrar does not have any jurisdiction to entertain complaints relating to** **WP(C).No. 20482 of 2017** **15** **recruitment or appointment or any service matters. The petitioner also relied on the judgment in** _**- Jayarani T. v. Assistant Registrar of Co operative Societies**_ **: 2016 (2) KLJ 446, where this Court had held that an employee of a Society or a third party questioning any aspects of Service (employment) in the Society shall approach only the Co-operative Arbitration Court under Section 69 of the Act. The respondent Bank claimed that they are following the principles of reservation applicable to SC/ST and Physically challenged and all appointments are under scrutiny by the Statutory Auditors.** **15. The W.P.(C) No.29315/2018 is filed challenging the very same notice challenged by the Co-operative Bank, in which a personal hearing of the representatives of the Bank and the appointees was scheduled to be held on 07.07.2018.** **16. The learned counsel for the petitioner in W.P.(C) No.20482 relied on the judgments in** _**Raghu Nandanan v. Joint Registrar**_ **:1998 (2) KLT 337;** **WP(C).No. 20482 of 2017** **16** _**- Poonjar Service Co operative Bank Ltd v. State of Kerala**_ **: 2004 (1) KLT SN 40 (C.No.50);** _**Nedumon - - Service Co Op. Bank Ltd. v. Joint Registrar of Co Op. Societies & Ors.**_ **: 2014 (4) KLJ 162 etc in support of the contention that Registrar can issue orders when illegality is found. Relying on the judgment of the Division Bench in** _**Mannady Service - Co operative Bank : ILR 2011(2) Ker 119;**_ **2011 (3) KLT Suppl. 50, it was argued that petitioner can very well approach this court when there is violation of statutory provisions and the circulars issued by the Registrar. Relying on the judgment in W.A.924 of 2010 it was argued that the appointment made in excess of notified vacancies are to be set aside.** **17. Having heard the learned Counsel on either side, the question arising in these cases is whether the petitioner is entitled to challenge the notification without resorting to the remedy under Section 69. Though the petitioner is a member of the Bank, he is a person who is having** **WP(C).No. 20482 of 2017** **17** **the qualification for appointment to the post of Peon. He is a prospective candidate aspiring appointment to that post in the Bank and being a member of scheduled caste community, he is entitled to be considered against 10% of the posts to be reserved for such candidates under Section 80(4) of the Act.** **18. Though the learned counsel for the 4[th] respondent Bank argued that petitioner being a member of Bank, can very well approach the Cooperative Arbitration Court, relying on the** _**'**_ **judgment in** _**Jayarani s case (Supra)**_ **, it appears that the judgment of the Division Bench in** _**Mannadi - ' Service Co operative Bank s case (Supra)**_ **, was not brought to the notice of the learned Single Judge. In that case, a Division Bench of this Court held that parties can very well get their grievance redressed by approaching this Court, in the event of any action of a Society in violation of the statutory provisions and against the binding orders/circulars issued by the Registrar of Co-** **WP(C).No. 20482 of 2017** **18** **operative Societies and that in such circumstance it is not necessary to go to the Arbitration Court.** **19. In the judgment dated 03.01.2013 in Writ Appeal No.924/2010 the rank list prepared contrary to the procedure prescribed in the circular issued by the Registrar of Co-operative Societies and appointments made in excess of vacancies notified, were held unsustainable. Though it was a case, where the selection was conducted by the CoOperative Service Examination Board, the principles laid down in that case will squarely apply to the circumstances of this case. There the order passed by the Joint Registrar of Cooperative Societies was upheld. Following the judgments of the Apex Court in** _**Rakhi Ray v. High Court of Delhi**_ **: (2010) 2 SCC 637** _**, Trissur - District Co operative Bank v. Delson Davis**_ **: 2002(1) KLT 852, judgments of this court in** _**- Deepthi Vijayakumar v. Joint Registrar of Co operative Societies**_ **: 2008(4) KLT 321, it was held** **WP(C).No. 20482 of 2017** **19** **that the appointment made against fourth vacancy, as against the 3 vacancies notified by the Bank was illegal.** **20. I find that the action of the respondent Bank in making appointments, even after the expiry of 4 years of the rank list and even when a writ petition was pending before this Court against vacancies which are not notified, are illegal. These two appointments are not only against vacancies in excess of the notified but also made after 4 years when the Bank had made the validity period of the rank list co-terminus with PSC rank list and three years is the validity period of the rank list published by PSC. It is not explained how the Bank could make the validity period of the rank list co-terminus with PSC rank list.** **21. Even though respondent Bank and one selected candidate have challenged the show cause notice stating that the Registrar or Joint Registrar does not have any jurisdiction to interfere in the service matters, the respondents** **WP(C).No. 20482 of 2017** **20** **have not explained, how they could make appointments against vacancies which are not notified. There is no answer for the respondent Bank, as to how they observed the conditions prescribed in the circular without notifying the vacancies in two Newspapers. They do not have any explanation, why they did not comply with the provisions contained in Section 80(4) of the Act, which prescribes 10% reservation to SC/ST candidates.** **22. Even though the candidates appointed are made parties, none of them have filed any counter affidavit.** **23. In the above circumstances, I find that the selection itself was not in tune with the circular, I find that the appointments made in excess of the one vacancy notified, are liable to be set aside. It is not necessary to relegate the petitioner to the Co-operative Arbitration Court, as it is seen that the respondent Bank has conducted the recruitment in gross violation of** **WP(C).No. 20482 of 2017** **21** **the procedure prescribed by the Registrar in the circulars Exts.P1 to P3 and other circulars referred to therein and made appointments even after 4 years of publication of rank list over and made 7 appointments as against the only one vacancy notified. The respondent Bank by not appointing any candidate belonging to scheduled caste community failed to observe the 10% provided to them under Section 80(4) of the Act.** **24. Accordingly, it is declared that the selection and appointment of the candidates made by the 4[th] respondent Bank in excess of the one vacancy notified in Ext.P4 notification, are illegal and unsustainable.** **In the light of the aforesaid findings, I do not find it necessary to consider the contentions raised in W.P.(C) Nos. 22367/2018 and 29315/2018. The petitioners in those cases had only received a show cause notice. The provisions in the circular issued by the Joint Registrar were not observed. The petitioners can very well explain these** **WP(C).No. 20482 of 2017** **22** **matters before the Joint Registrar. Therefore, I do not find any reason to interfere with the notice, which are challenged in W.P.(C) Nos.22367/2018 and 29315/2018..** **Accordingly, W.P.(C) No. 20482/2017 is allowed to the extent indicated above and W.P.(C) Nos. 22367/2018 and 29315/2018 are dismissed.** **Sd/-** **P.V.ASHA JUDGE** **JJ/WW** **WP(C).No. 20482 of 2017** **23** ## **APPENDIX OF WP(C) 20482/2017** **PETITIONER'S/S EXHIBITS:** |**EXHIBIT P1**|**A TRUE COPY OF THE CIRCULAR NO.11/99 DATED**| |---|---| ||**23/03/1999**| |**EXHIBIT P2**|**A TRUE COPY OF THE CIRCULAR NO.14/10 DATED**| ||**19/3/2010**| |**EXHIBIT P3**|**A TRUE COPY OF THE CIRCULAR NO.79/2011 DATED**| ||**9/11/2011**| |**EXHIBIT P4**|**A TRUE COPY OF THE NEWSPAPER ADVERTISEMENT**| ||**DATED 7/9/2014.**| |**EXHIBIT P5**|**A TRUE COPY OF THE RIGHT TO INFORMATION**| ||**REPLY DATED 16/5/2017**| |**EXHIBIT P6**|**A TRUE COPY OF THE PETITION DATED 19.8.2016**| |**EXHIBIT P7**|**A TRUE COPY OF THE CERTIFICATE DATED**| ||**20/5/2008 ISSUED BY MADURAI KAMRAJ**| ||**UNIVERSITY.**| |**EXHIBIT P8**|**A TRUE COPY OF THE CERTIFICATE DATED**| ||**20/5/2008 ISSUED BY THE MADURAI KAMRAJ**| ||**UNIVERSITY.**| |**EXHIBIT P9**|**THE TRUE COPY OF THE RIGHT TO INFORMATION**| ||**REPLY DATED 28/11/2009 ISSUED FROM KERALA**| ||**UNIVERSITY.**| |**EXHIBIT P10**|**THE TRUE COPY OF RIGHT TO INFORMATION REPLY**| ||**DTD 17/11/2009 ISSUED FROM MAHATMA GANDHI**| ||**UNIVERSITY.**| |**EXHIBIT P11**|**THE TRUE COPY OF THE RIGHT TO INFORMATION**| ||**REPLY DATED 18/11/2009 ISSUED FROM CALICUT**| ||**UNIVERSITY.**| |**EXHIBIT P12**|**THE TRUE COPY OF THE RIGHT TO INFORMATION**| ||**REPLY DATED 10/12/2009 ISSUED FROM KANNUR**| ||**UNIVERSITY**| **WP(C).No. 20482 of 2017** ## **24** **EXHIBIT P13 A TRUE COPY OF THE COMPLAINT DATED 31/12/2016** **EXHIBIT P14 THE TRUE COPY OF THE RIGHT TO INFORMATION REPLY DTD 3/2/2017.** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R4(A) THE TRUE COPY OF THE RESOLUTION DATED 12.12.2014 OF THE MANAGING COMMITTEE.** **EXHIBIT R4(B) A CERTIFICATE DATED 23.09.2010 ISSUED BY THE KERALA UNIVERSITY TO E.D.PRAKASAN.** **EXHIBIT R4(C) A CERTIFICATE DATED 23.09.2010 ISSUED BY THE KERALA UNIVERSITY TO SRI.RAJU.M.C.** **EXHIBIT R4(D) A TRUE COPY OF THE PAY REVISION ORDER G.O.NO.149/2010 DATED 18.08.2010.** **WP(C).No. 20482 of 2017** **25** ## **APPENDIX OF WP(C) 22367/2018** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE COMPLAINT DATED 20-062018 FILED BY THE SECOND RESPONDENT BEFORE THE JOINT REGISTRAR.** **EXHIBIT P2 A TRUE COPY OF THE COMPLAINT DATED 20-062018 FILED BY THE THIRD RESPONDENT BEFORE THE JOINT REGISTRAR.** **EXHIBIT P3 A TRUE COPY OF THE NOTICE DATED 28-06-2018 OF THE FIRST RESPONDENT.** **EXHIBIT P4 A TRUE COPY OF THE LATEST AUDIT NOTE OF THE YEAR 2016-2017 OF THE BANK.** ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R3(A) A TRUE COPY OF THE CIRCULAR NO.16/2018 DATED 13/03/2018 EXHIBIT R3(B) A TRUE COPY OF THE REPORT NO.M 989/18 DATED 26/06/2018 OF THE ASSISTANT REGISTRAR (GENERAL) VAIKOM** **WP(C).No. 20482 of 2017** **26** ## **APPENDIX OF WP(C) No.29315/2018** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **A TRUE COPY OF THE NOTICE DATED 28.06.2018 ISSUED BY THE 1ST RESPONDENT IS PRODUCED.**