Madavoor Service Co-Operative Bank Ltd. & Others v. Bijula P. Nisha Nivas (W.A. No. 1073 of 2018 in WPC 16895/2018)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM &** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **WEDNESDAY, THE 13TH DAY OF JUNE 2018 / 23RD JYAISHTA, 1940** **WA.No. 1073 of 2018 IN WPC. 16895/2018** **AGAINST THE JUDGMENT IN WP(C) 16895/2018 of HIGH COURT OF KERALA DATED 24-05-2018** **APPELLANTS/RESPONDENTS 2 TO 4** **1 MADAVOOR SERVICE CO-OPERATIVE BANK LTD. NO. 1951 MADAVOOR P.O, KOZHIKODE - 673 585, REPRESENTED BY ITS SECRETARY.** **2 THE BOARD OF DIRECTORS OF THE MADAVOOR SERVICE CO-OPERATIVE BANK LTD NO. 1951, MADAVOOR P.O, KOZHIKODE - 673 585, REPRESENTED BY ITS PRESIDENT.** **3 K. ABDUL AZEEZ, PRESIDENT OF THE BOARD OF DIRECTORS OF THE MADAVOOR SERVICE CO-OPERATIVE BANK LTD NO.1951, MADAVOOR P.O, KOZHIKODE - 673 585.** **BY ADVS.SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.R.GITHESH SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA SRI.AJAY BEN JOSE SRI.MANJUNATH MENON** ## **RESPONDENTS/PETITIONER & 1ST RESPONDENT:** **1. BIJULA P NISHA NIVAS, KAKKUR P.O, KOZHIKODE, PIN - 673 613.** **2. THE JOINT REGISTRAR OF CO-OPERATIVES SOCIETIES(GENERAL) KOZHIKODE - 673 001.** **BY SRI.D.SOMASUNDARAM BY GOVERNMENT PLEADER SMT.DEEPA.K.R** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 13-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WA.No. 1073 of 2018 IN WPC. 16895/2018** ## **APPENDIX** ## **PETITIONERS ANNEXURES** |**ANNEXURE A**|**COPY OF CONSOLIDATED RANK LIST PREPARED BY THE KERALA**| |---|---| ||**CO-OPERATIVE SERVICE EXAMINATION BOARD.**| |**ANNEXURE B**|**COPY OF RESOLUTION NO.5 DATED 8.9.2016 OF THE 2ND APPELLANT.**| |**ANNEXURE C**|**COPY OF APPOINTMENT ORDER OF SMT.PRINCY JOSE DATED 10.9.2016**| **RESPONDENTS ANNEXURES NIL TRUE COPY** **P.A TO JUDGE** **SMM** ## **C.K.ABDUL REHIM & SHIRCY V.,JJ.** ## **------------------------------------------------------** ## **W.A.No.1073 of 2018** **-----------------------------------------------------Dated this the 13[th] day of June, 2018** ## **JUDGMENT** ## **C.K.Abdul Rehim,J.** The 2[nd] respondent in W.P(C)No.16895/2018 is challenging the judgment of the learned Single Judge. Before the Single Bench the writ petitioner, 1[st] respondent herein, had challenged Ext.P8 order of the Joint Registrar of Co-operative Societies in which her appointment in the appellant Bank was declared as illegal, and also challenged Ext.P7 proceedings issued by the appellant Bank through which her service was terminated. 2. Brief facts are that, the “Co-operative Examination Board” had published Ext.P1 notification through which applications were invited for appointment of one Junior clerk in the appellant Bank. The candidate who secured 1[st] rank in the selection was appointed by the Bank on 2.6.2018. W.A.No.1073 of 2018 2 Subsequently, by virtue of Ext.P3 proceedings issued by the appellant Bank, the writ petitioner was also appointed, presumably in another vacancy which existed. The writ petitioner continued in the service of the appellant Bank from March 2017 onwards. On 5.5.2018 she was issued with Ext.P5 intimation that the appellant Bank had decided to cancel her appointment, as per a decision taken by the Board of Directors on 5.5.2018. She was requested to submit explanations if any, against implementation of the said decision, on or before 11.5.2018. From Ext.P6 it is clear that the writ petitioner had submitted a detailed explanation to the President of the appellant Bank. Meanwhile two persons have submitted a complaint before the Joint Registrar requesting to cancel the appointment of the writ petitioner. Evidently, the Joint Registrar had conducted an enquiry through the Assistant Registrar and issued Ext.P8 proceedings holding that the appointment of W.A.No.1073 of 2018 3 the writ petitioner by the appellant Bank was illegal as it is not against a vacancy notified by the “Co-operative Examination Board”. From Ext.P8 proceedings it is evident that the President of the Bank had participated in a hearing conducted by the Joint Registrar and expressed his willingness to cancel the appointment. In this context the Joint Registrar issued Ext.P8 directing the Bank to cancel the appointment. Subsequently, Ext.P7 proceedings was issued to the writ petitioner terminating her service with effect from 14.5.2018. Ext.P7 refers to another decision of the Director Board of the Bank dated 13.5.2018. The learned Single Judge, after hearing the petitioner and the Government Pleader who represented the Joint Registrar, found that, Ext.P8 was not preceded by any notice to the writ petitioner and that she was not heard before such an order was issued, which had the consequence of termination of her service. It was found that the petitioner's service W.A.No.1073 of 2018 4 could not have been dispensed with in the manner as has been done in Ext.P7 and P8. Therefore, the Joint Registrar was directed to take fresh steps by treating Ext.P8 as a show cause notice and the petitioner was permitted to submit detailed representation to the Joint Registrar. The Joint Registrar was directed to take a decision in accordance with law, with notice to the writ petitioner and to the appellant Bank. Till such time the decision is taken, it was directed to keep in abeyance Exts.P7 and P8 proceedings. 3. It is strange to notice that the present appeal was filed only by the Bank and not by the Joint Registrar or the State Government. In fact it is only the Bank who appointed the writ petitioner and allowed her to continue in service for a period of more than one year. Evidently the Bank had taken a decision of 5.5.2018 to cancel the appointment of the writ petitioner. It is not in dispute that, before taking any such decision the Bank had not afforded any W.A.No.1073 of 2018 5 opportunity to the writ petitioner in the matter of cancellation of her appointment. Subsequently, the President of the Bank had participated in the enquiry conducted by the Joint Registrar and expressed willingness to cancel the appointment. There also, the writ petitioner was not afforded with any opportunity to object the decision nor she was put to notice about any such proceedings initiated by the Joint Registrar or about the enquiry conducted. It is evident that pursuant to Ext.P8 the appellant Bank had again taken a decision on 13.5.2018 to terminate her service. No notice was seen issued even before taking such a decision. 4. Under the above mentioned circumstances, we are absolutely in agreement with the view taken by the learned Single Judge that there occurred clear violation of principles of natural justice and the impugned actions had resulted in causing severe prejudice to the writ petitioner. W.A.No.1073 of 2018 6 5. Learned Senior Counsel appearing for the appellant had drawn our attention to a decision of the Honourable Supreme Court in _**Rakhi Ray and others vs. High Court of Delhi and others (2010(2) SCC 637)**_ wherein it is held that, any appointment made beyond the number of vacancies advertised is without jurisdiction, being violative of Articles 14 and 16(1) of the Constitution of India and is a nullity which is inexecutable and unenforceable in law. It is held that the waiting list etc: cannot be used as a reservoir to fill up any vacancy which comes into existence after issuance of the notification/advertisement. The finding is that the unexhausted select list/waiting list become meaningless and cannot be pressed into service anymore. The contention in this regard is with respect to the merits concerning legality of the appointment. Evidently, the writ petitioner has got a case that her appointment is legal since it is made within the period of validity of the select list. W.A.No.1073 of 2018 7 However, it is a matter to be adjudicated based on the direction issued by the learned Judge, by the Joint Registrar. Definitely the appellant Bank as well as the writ petitioner will get chance to place their versions before the said authority. Since clear violation of principles of natural justice was found by the learned Judge, the direction issued in this regard cannot be found as illegal or erroneous. 6. The learned Senior Counsel for the appellant further submitted that it is not necessary for this court to exercise the discretionary jurisdiction in all the cases where principles of natural justice is violated, if it is convinced that the action through which the wrong was set at right, is purely legal and valid. In support of such a contention he placed reliance on a decision of the Honourable Supreme Court in **M.C.Mehta and others vs. Union of India and others (1999(6) SCC 237)** . The dictum contained is only that, the court exercising jurisdiction under Article 226 can W.A.No.1073 of 2018 8 refuse to exercise the discretion even in cases of clear violation of the principles of natural justice, on the facts or on the grounds that no defacto prejudice is established. But in the case at hand, as already observed, the impugned actions had resulted in causing clear prejudice to the writ petitioner and therefore, it was fully justified that the writ court had exercised its discretion in favour of her. 8. Learned counsel who entered appearance on behalf of the 1[st] respondent/writ petitioner had also alleged that, the change in the attitude of the appellant Bank is due to the reason that there occurred a change in the incumbent in the office of the President, in between. However, we are not expressing any opinion on such aspects, because it is for the Joint Registrar to analyse and evaluate all the disputed contentions and to take an appropriate decision. 9. Lastly, the learned Senior Counsel requested this court to put a time limit with respect to the decision to be W.A.No.1073 of 2018 9 taken by the Joint Registrar, in accordance with the directions contained in the impugned judgment. We are of the opinion that, the Joint Registrar will take necessary steps to expedite the matter and to take a decision as directed at the earliest, at any rate, within a period of three months from the date of receipt of a copy of this judgment. ## **Sd/-** ## **C.K.ABDUL REHIM** **JUDGE** **Sd/-** **SHIRCY.V JUDGE** smm