Jijirani C.S. v. Joint Registrar of Co-operative Societies, Co-operative Vigilance Officer, Varapuzha Service Co-operative Bank and Registrar of Co-operative Societies

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **WEDNESDAY, THE 20TH DAY OF AUGUST 2014/29TH SRAVANA, 1936** ## **WP(C).No. 18831 of 2013 (D)** ## **----------------------------** ## **PETITIONER :** **-----------------------** **JIJIRANI C.S., W/O.BINU B.A., BAVELIL VEEDU, CHIRAKKAKAM, VARAPPUZHA, ERNAKULAM DISTRICT-683 529.** **BY ADVS.SRI.N.RAGHURAJ SMT.K.AMMINIKUTTY** ## **RESPONDENT(S):** - **----------------------------** **1. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, (GENERAL), ERNAKULAM.** **2. THE VIGILANCE OFFICER, CO-OPERATIVE VIGILANCE OFFICE, CO-BANK TOWER, THIRUVANANTHAPURAM-695 033.** **3. VARAPUZHA SERVICE CO-OPERATIVE BANK-1582, VARAPUZHA P.O, ERNAKULAM DISTRICT, PIN-683 529, REPRESENTED BY ITS SECRETARY.** **4. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM.** **R1,R2 & R4 BY GOVERNMENT PLEADER SRI.A.J.JOSE AEDAIODI R3 BY ADVS. SRI.P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR SRI.RAAJESH S.SUBRAHMANIAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 18831 of 2013 (D)** ## **----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -------------------------------------** - **EXHIBIT P1: COPY OF THE NOTIFICATION DATED 09.07.2012 PUBLISHED IN MALAYALA MANORAMA DAILY DATED 11.07.2012.** - **EXHIBIT P2: COPY OF THE CIRCULAR NO.18/91 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P3: COPY OF THE REPRESENTATION DATED 26.07.2012 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** - **EXHIBIT P4: COPY OF THE 1ST PAGE OF THE S.S.L.C. BOOK OF THE PETITIONER (PRODUCED ALONG WITH REPLY AFFIDAVIT)** - **EXHIBIT P5: COPY OF THE NEWS PAPER REPORT PUBLISHED IN MANGALAM DAILY DATED 14/02/2013 (PRODUCED ALONG WITH REPLY AFFIDAVIT)** - **EXHIBIT P6: COPY OF THE CIRCULAR NO.79/11 DATED 09/11/2011.** - **EXHIBIT P7: COPY OF THE APPLICATION DATED 29/08/2013 SUBMITTED BY THE PETITIONER BEFORE THE SECRETARY OF THE 3RD RESPONDENT** - **EXHIBIT P7(A): COPY OF THE REPLY OF THE SECRETARY OF THE 3RD RESPONDENT DATED 26/09/2013** - **EXHIBIT P8: COPY OF THE REPLY DATED 29/08/2013 ISSUED BY THE SECRETARY IN CHARGE OF THE 3RD RESPONDENT** ## **RESPONDENT(S)' EXHIBITS** **---------------------------------------** **EXHIBIT R3(A): COPY OF THE APPLICATION DATED 14/07/2012 SUBMITTED BY THE PETITIONER.** - **EXHIBIT R3(B): COPY OF THE ORDER BEARING NO.C.R.P(2) 1706/13/LDS DATED 23/07/2013 ISSUED BY THE 1ST RESPONDENT** - **EXHIBIT R3(C): COPY OF THE LIST OF 61 CANDIDATES QUALIFIED IN THE WRITTEN EXAMINATION SUBMITTED TO THIS RESPONDENT DATED 16/07/2013** **EXHIBIT R3(D): COPY OF THE LIST PREPARED BY THE 3RD RESPONDENT PREPARED IN ACCORDANCE WITH EXHIBIT R3(C) DATED 19/07/2013** **EXHIBIT R3(E): COPY OF THE ORDER DATED 07/10/2013 ISSUED BY THE 1ST RESPONDENT** **/TRUE COPY/** **P.A.TO.JUDGE** **sts** ## **A.K.JAYASANKARAN NAMBIAR, J.** **.............................................................** W.P.(C)No.18831 of 2013 **.............................................................** Dated this the 20[th] day of August, 2014 ## **J U D G M E N T** The selection process employed by the 3[rd] respondent Bank, in connection with appointments to the post of Peons/Field Assistants, is called in question in the instant writ petition. 2. The petitioner who is working as a daily wage employee under the 3[rd] respondent Bank had responded to Ext.P1 notification inviting applications to the post of Peons/Field Assistants. As a post graduate degree holder and a member of the Scheduled Caste, the petitioner had applied for the post of Peon pursuant to the said notification. She also appeared at the written test that was conducted by the 3[rd] respondent on 02.12.2012. It would appear that thereafter nothing was heard from the 3[rd] respondent as regards the candidature of the petitioner for the post in question and on enquiry made by her she was given to understand that a decision had already been taken to appoint certain persons as Peons/Field Assistants and that the interview that was going to be held sometime in the future was only a farce. In the writ petition, that is seen filed in July 2013, the petitioner has cited the names of four candidates who, as it subsequently turned out, were the -2- W.P.(C)No.18831 of 2013 persons who were ultimately selected for the posts in question. 3. The grievance of the petitioner in the writ petition is primarily against the manner in which the selection process was conducted by the 3[rd] respondent. It is pointed out that Ext.P6 Circular which was in force during the relevant time, and on the basis of which the selection procedure was initiated by the 3[rd] respondent, contemplated the appointment of an outside agency, having expertise or knowledge or experience in the field of Cooperation and which could also include individuals, for the purposes of conducting the written test. It is the specific case of the petitioner that the provision in Ext.P6 circular, which enables the 3[rd] respondent to appoint an individual as an outside agency is contrary to the law laid down by this Court in the decision reported in **Sabu Kurian v. Meenachil East Urban Co-operative bank Ltd.** (1999 (2) KLT 180), **Mohanan v. State of Kerala** [ 2010 (3) KLT SN 89 (C. No.91)] and **Mannady Service Co-operative Bank v. Krishnakumar** [2011 (3) KLT (Supplementary) 50] which affirmed the 2[nd] mentioned decision above. It is emphasised that the ratio in the said judgments is to the effect that an outside agency, that is sought to be appointed by a Co-operative Society for the purposes of conduct of written test, must be one that inspires -3- W.P.(C)No.18831 of 2013 confidence and cannot be simply any Committee or Body but must be one that is competent or suited to conduct the written examination for selection of persons to the post under consideration. It is urged that insofar as the judgments referred to above, specifically referred to Bodies such as the Institute of management in Government etc., the choice of an outside agency for the purposes of Ext.P6 circular could not have been an individual as was done in the instant case. It is also pointed out that the procedure, that was followed by the 3[rd] respondent in the instant case, was inherently unfair and arbitrary. After the written test was conducted, only such of the candidates who secured more than 30% marks in the written test were considered for empanelment in a list for the interview that was to follow. The list that was prepared by the 3[rd] respondent, however, revealed not only the names and numbers of the succesful candidates but also the marks that they had obtained in the written examination. This procedure, it is pointed out, was inherently unfair and worked to the prejudice of the other candidates who had appeared in the selection process insofar as the Interview Board already had information regarding the marks secured by the candidates in the written examination and hence it was possible for the Interview Board to arrange the awarding of marks at the interview in such a -4- W.P.(C)No.18831 of 2013 way as to favour any particular candidate in the selection process. It is contended that the very possibility of favouritism being shown by the Interview Board, vitiated the selection process as a whole and hence the selection conducted by the 3[rd] respondent had necessarily to be set aside. The petitioner also has a contention that the very fact, that the names of the persons who were ultimately selected were revealed in newspaper reports of February 2013, and her writ petition in July 2013, well before the date of the interview held in connection with the selection, indicates that all was not well with the manner in which the selection process was done by the 3[rd] respondent Society. 4. A counter affidavit has been filed on behalf of the 3[rd] respondent Society wherein it is stated that the selection process was conducted by them strictly in accordance with the terms of Ext.P6 circular. It is urged that there was nothing wrong in choosing an individual to be the outside agency for the purposes of the said circular, as long as the said individual confirmed to the requirements of being an expert in the field of Co-operation and satisfied the other requirements spelt out in the said circular. It is also pointed out that the petitioner being a person who participated in the selection process by appearing in the written test, could not -5- W.P.(C)No.18831 of 2013 be heard to challenge the appointment of an individual as an outside agency when it was the very same agency that conducted the written test in which the petitioner had chosen to appear. Lastly, it is pointed out that there were other persons who had approached this Court through separate writ petitions, challenging the selection process and pursuant to a direction from this Court, the Joint Registrar was asked to consider the representations preferred by them and pass appropriate orders thereon. The order passed by the Joint Registrar pursuant to the direction in this Court is produced as Ext.R3(e), through an additional counter affidavit filed by the respondent. A perusal of the said order indicates that the individual, who was appointed as the outside agency, was an Advocate with knowledge and experience in the field of Co-operation and that he had sought the assistance of a Professor for conducting the written examination and that thereafter, the list of persons who had obtained more than 30% marks in the written examination was compiled and sent to the 3[rd] respondent Society for the purposes of forwarding to the Interview Board. It is admitted that while disclosing the names of the candidates who had come out successful in the written test, the marks obtained by them in the written examination were also published. It is contended that the mere publication of the marks did not vitiate the selection W.P.(C)No.18831 of 2013 -6- process and there is no particular instance of any favouritism pointed out in the instant case. The learned Government Pleader who appears on behalf of respondents 1, 2 and 4 would contend that there is nothing illegal or irregular in Ext.P6 circular and that the clarification that an outside agency could include even an individual was made taking into account the fact that Societies with lesser means, could not often afford to expend huge amounts, by way of service fees, for appointing institutional agencies for the conduct of written examination. 5. I have heard Sri.Raghuraj, counsel for the petitioner, Sri.Rajesh S.Subrahmanian counsel appearing for 3[rd] respondent and the learned Government Pleader appearing on behalf of respondents 1, 2 and 4. 6. On a consideration of the facts and circumstances of the case and the submissions made at the Bar, I am of the view that insofar as the contention of the petitioner with regard to the legality of Ext.P6 Circular is concerned, the provisions of Clause 4 (C) of the said circular, which mandate that the written test shall be conducted by an outside agency, including an individual, having expertise or knowledge or experience in the field of Co-operation, -7- W.P.(C)No.18831 of 2013 cannot be said to be illegal. No doubt, learned counsel for the petitioner would vehemently contend that, by virtue of the decisions of this Court in **Sabu Kurian v. Meenachil East Urban Co-operative bank Ltd.** (1999 (2) KLT 180), **Mohanan v. State of Kerala** [ 2010 (3) KLT SN 89 (C. No.91)] and **Mannady Service Co-operative Bank v. Krishnakumar** [2011 (3) KLT (Supplementary) 50], the expression “outside agency”, has been explained as referring to only institutions such as the institute of management in Government or the productivity counsel or the institute of Co-operative management or some other such reputed agency and hence will not take within its ambit, an individual. On a reading of the said judgments, however, I am unable to find therefrom any observation that would suggest that the expression outside agency would necessarily exclude an individual. I take this view because, unlike the circular that came to be considered in those judgments, Ext.P6 circular that is relied on in the instant case, while expressly including an individual within the scope of an outside agency, qualifies the same by insisting on the said agency conforming to the requirement of having expertise or knowledge or experience in the filed of Co-operation. I do not think it can be the case of the petitioner that there cannot be an individual with the qualifications referred to above. That apart, the mere possibility of -8- W.P.(C)No.18831 of 2013 any particular individual being impartial or dishonest cannot be a reason to hold the provision illegal. There is nothing inherently illegal in the concept as such nor is it, in any manner, contrary to the law laid down by this Court. In this view of the matter, I am unable to view the circular as trying to overreach the judgments of this Court. The challenge against the legality of the circular, on this ground, must necessarily fail. 7. There is yet another reason why I feel the petitioner cannot assail Ext.P6 circular. As already noted, the petitioner is a person who had participated in the selection process by appearing at the written test that was conducted pursuant to selection proceedings that were initiated at the instance of the individual outside agency contemplated in Ext.P6 circular. The petitioner was therefore aware, at the time of appearing at the written test, that the outside agency in question was an individual and that it was under his supervision that the written test was being conducted. For reasons best known to her, she did not choose to challenge the selection procedure at that stage and hence, she cannot be seen turning around after participating in the written test, to challenge the very provision under which the written test was conducted. The petitioner cannot be allowed to approbate and reprobate. -9- W.P.(C)No.18831 of 2013 8. I must now consider the contention of the petitioner with regard to the manner in which the selection process was conducted by the 3[rd] respondent Society. As already noted, the 3[rd] respondent Society appears to have short listed those candidates, who secured more than 30% marks in the written test, for the purposes of the interview that was to follow. While doing this however, the 3[rd] respondent also indicated in the shortlist, the marks obtained by those candidates in the written test. What is relevant to note is that by this Act, the 3[rd] respondent had effectively made public the marks obtained by the candidates in the written test at a stage well prior to the date of interview, when the candidates were to be assessed for the award of up to 20 marks. There was, therefore, the possibility of the members of the Interview Board tailoring the marks awarded at the interview in such a way as to ensure the success of any particular candidate by taking note of the marks that he or she had obtained in the written test. In my opinion, this possibility itself vitiated the selection process, by rendering it inherently arbitrary and unfair. 9. It is trite that under normal circumstances, this Court would be reluctant to interfere with a selection process carried out -10- W.P.(C)No.18831 of 2013 by a Co-operative Society. The jurisdiction exercised under Article 226 is one of judicial review and not an appellate jurisdiction. In examining the selection process conducted by the 3[rd] respondent, I am called upon to enquire only whether the process in question has been carried out in a manner that is free from illegality, irrationality and procedural impropriety. I have also to rule out the possibility of the process being inflicted by the vice of wednesbury unreasonableness. In the instant case, in view of my finding with regard to the inherent arbitrariness and unfairness of the procedure, I am constrained to hold that the selection procedure followed by the 3[rd] respondent was flawed and must, therefore, be set aside. Resultantly, I declare the selection held by the 3[rd] respondent, to the post of Peons/Field Assistants pursuant to Ext.P1 notification, as illegal and arbitrary. The 3[rd] respondent shall conduct a fresh selection to the post of Peon/Field Assistants by following the procedure contemplated in Ext.P6 circular. 10. I must hasten to add that while declaring the selection to be illegal, I am mindful of the fact that the persons selected are not before me in these proceedings. In my view, however, that cannot affect the declaration of the selection as illegal since the files in this case reveal that at the time of admission of the writ petition, -11- W.P.(C)No.18831 of 2013 the conduct of the interview on 30.07.2013, pursuant to Ext.P1 notification, was itself made provisional and subject to further orders in the writ petition. If the successful candidates chose not to get themselves impleaded in the instant case, they acted to their own detriment. In taking this view, I am fortified by the decisions of this Court reported in **Joint Registrar v. Thiruvalla East Cooperative Bank Ltd.** (2009 (3) KLT 185) and **Sree Usha v. State of Kerala** (2008 (4) KLT 986). The writ petition is allowed as above. **A.K.JAYASANKARAN NAMBIAR JUDGE** mns/