Sabeesh Kuttan v. K.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **WEDNESDAY, THE 8[TH] DAY OF DECEMBER 2021/17TH AGRAHAYANA, 1943** **WA NO.1044 OF 2021** **AGAINST THE JUDGMENT IN WP(C).NO.22579/2020 OF THE HIGH COURT** ## **OF KERALA** ## **APPELLANT/PETITIONER:** **SABEESH KUTTAN V. K., AGED 26 YEARS, S/O.KUTTAN, VELLAYANI (H), MURIKKUMPADOM, AZHEEKKAL P.O., ERNAKULAM -682508.** **BY ADV SMT.MEREENA.J.JOSEPH** ## **RESPONDENTS/RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, CO-OPERATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 REGISTRAR OF CO-OPERATIVE SOCIETIES, OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM - 695004.** - **3 JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) ERNAKULAM DISTRICT - 682030.** - **4 ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), ERNAKULAM DISTRICT - 682030.** - **5 OCHANTHURUTH SERVICE CO-OPERATIVE BANK LTD.NO.72 OCHANTHURUTH P.O., KOCHI, ERNAKULAM DISTRICT, PIN682508, REPRESENTED BY ITS SECRETARY.** - **6 PRESIDENT, OCHANTHURUTH SERVICE CO-OPERATIVE BANK LTD.NO.72, OCHANTHURUTH P.O., KOCHI, ERNAKULAM DISTRICT, PIN682508.** - **7 MANAGING COMMITTEE, OCHANTHURUTH SERVICE CO-OPERATIVE BANK LTD.NO.72,** W.A. No. 1044 of 2021 2 **OCHANTHURUTH P.O., KOCHI, ERNAKULAM DISTRICT, PIN682508.** - **8 SMT.SANDHYA, W/O. M. P. PRASHOB, MUTHUPARAMBIL HOUSE, PUTHUVYPPU P.O., PIN-682508.** - **9 MR.JAYAKUMAR S/O.N.C.MOHANAN, NAYIKKARAPARAMBIL HOUSE, PUTHUVYPPU P.O., KOCHI-682508.** **SRI.B.UNNIKRISHNA KAIMAL SR.GOVT.PLEADER FOR R1 TO R4** **ADVS. M/S. B.ASHOK SHENOY, J.RAMKUMAR & P.S.GIREESH** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 08.12.2021,** **THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A. No. 1044 of 2021 3 ## ALEXANDER THOMAS & VIJU ABRAHAM, JJ. ============================================== W.A. No. 1044 of 2021 [a _rising out of the impugned judgment dated 9.12.2020 in WP(C).No. 22579/2020_ ] ============================================== Dated this the 8[th] day of December, 2021 ## J U D G M E N T ## ALEXANDER THOMAS, J. The appellant herein has filed the instant Writ Petition (Civil) WP(C).No.22579/2020 with the following prayers: - “ - _i. Issue a writ in the nature of certiorari or any other appropriate writ, order or direction, calling for the records leading to Ext.P1 and quash the same;_ - _ii. Issue a writ in the nature of mandamus or any other appropriate writ, order or direction commanding the 5[th] , 6[th] and 7[th] respondents to conduct fresh selection to the vacant posts of Attendant and Peon within a time frame as may be fixed by this Hon'ble Court;_ - _iii. Issue any such other appropriate writ, order or direction as this Hon'ble Court deems fit and proper considering the circumstances of the case in the interest of justice.”_ 2. The learned Single Judge, after hearing both sides, has rendered the impugned judgment dated 9.12.2020 disposing the instant WP(C).No.22579/2020 giving liberty to the petitioner to invoke the alternate statutory remedy conferred in terms of Sec.69(2)(d) of the Kerala Co-operative Societies Act, 1969 _[in short “The Act”]_ . Being aggrieved by the impugned judgment of the learned Single Judge in the W.A. No. 1044 of 2021 4 above WP(C) to the extent it has not considered the merits of various contentions of the petitioner, he has filed the instant intra court appeal under Sec.5(i) of the Kerala High Court Act, 1958. 3. Heard Smt.Mereena Joseph, learned counsel appearing for the writ appellant, Sri.B.Unnikrishna Kaimal, learned Senior Government Pleader appearing for the official respondents 1 to 4, Sri.B.Ashok Shenoy, learned counsel appearing for R-5 to R-7 and Sri.J.Ramkumar, learned counsel appearing for contesting respondents 8 & 9. 4. The case of the appellant is that he had duly responded to Ext.P-1 selection notification dated 10.2.2020 issued by the 5[th] respondent Service Co-operative Bank for selection and appointment to the post of Attender and Peon, and that the impugned selection process is vitiated by irregularity and favouritism. A specific ground is also taken that the prescribed qualification for holding the post of Attender and Peon as per the rules which was in force at the time of issuance of selection notification is that the candidate should have passed Standard VII and should not have passed graduation. Further, it is averred that the selected candidates like contesting respondents 8 & 9 are in fact graduates and therefore they are over qualified and was ineligible to be considered for appointment to the abovesaid selection process. Yet 5 W.A. No. 1044 of 2021 another ground is raised that some of the persons specifically named by the appellant in the complaints given through the 4[th] respondent Assistant Registrar, etc have not been subsequently selected by the 5[th] respondent Service Co-operative Bank, which would prove the correctness or truthfulness of his allegations or favouritism, etc. 5. The first issue that we have to resolve is as to whether the finding of the learned Single Judge that the appellant has a statutory alternate remedy in terms of Sec.69(2)(d) of the Kerala Co-operative Societies Act, for agitating his objections against the alleged irregularities in the conduct of direct recruitment selection process, is legally tenable or not. It is by now well settled by the ruling of the Apex Court in the celebrated case in _**Akalakunnam Village Service Co-operative Bank Limited & anr. v. Binu N. & ors. [(2014) 9 SCCC 294]**_ that the statutory remedy in terms Sec.69(2)(d) of the Kerala Co-operative Societies Act, before the State Arbitration Court can be availed only in the case of disputes of in-service employees like promotion, seniority, etc and where the disputes are in relation to the alleged irregularities or illegalities committed in the course of direct recruitment selection process conducted by a Co-operative Society, the same is not amenable for adjudication in terms of the Act. Hence, the abovesaid finding made W.A. No. 1044 of 2021 6 by the learned Single Judge, to the contrary, is liable for interdiction at the hands of this Court. 6. The next issue is as to whether the appellant has made out any objective grounds for interference in the facts and circumstances in this case projected before this Court. The specific allegation is that, as per the rules that govern the field at the time of issuance of Ext.P-1 selection notification dated 10.2.2020, candidates who aspire for selection to the post of Attender and Peon in a Co-operative Society, should have passed Standard VII, but should not have passed graduate degree, and that as a matter of fact, selected candidates like contesting respondents 8 & 9 have not only passed the school system, but have also taken graduate degree, and hence, they are over qualified and ineligible to be appointed as per the statutory provision. 7. Out attention has been drawn to the contents of Rule 186(1)(v) of the Kerala Co-operative Societies Rules, 1969 _[in short “The Rules”]_ framed under the Kerala Co-operative Societies Act, 1969, and the lower qualification prescribed for the post of Attender and Peon is, pass in Standard VII, and amendment has been made as per G.O.(P) No.83/2017/Co-op. dated 30.12.2017 published in Kerala Gazette as per S.R.O.No.863/2017 (date of publication of Gazette) made effective from W.A. No. 1044 of 2021 7 30.12.2017 whereby the words _“and should not acquired any Degree”_ appearing in Rule 186(1)(v) has been omitted. Thus, on or w.e.f. 30.12.2017, the prescription of qualification is that for selection to the post of Peon and Attender in a Co-operative Society, the incumbent should have passed Standard VII in the school system and the earlier prescription that the candidate should not have passed graduate degree is omitted. Therefore, on or w.e.f. 30.12.2017, it is immaterial as to whether the incumbent who is to be considered for selection to the post of Attender and Peon is having graduate degree or not, and the minimum threshold of consideration is that the candidate concerned should have necessarily passed Standard VII of school system. Hence, the abovesaid allegations raised by the appellant is overruled. 8. That apart, very interestingly, Sri.J.Ramkumar, learned counsel appearing for contesting respondents 8 & 9 would submit on the basis of instructions and that too in support of his pleadings in the counter affidavit filed on behalf of his parties in this writ appeal that both his parties (R-8 & R-9) have passed Standard VII, but failed in Standard X and have not taken any graduate degree from any university, and that Anxs.R-8(a) & R-8(b) are copies of SSLC Book of R-8 & R-9 respectively, etc. It is all the more reason for fully overruling the contentions of the W.A. No. 1044 of 2021 8 appellant regarding the alleged lack of qualifications by contesting respondents 8 & 9. 9. We have specifically earlier ordered giving time to both the appellant as well as the official respondent Joint Registrar of Co-operative Societies to ascertain and make available some materials to show whether any serious irregularities have vitiated the impugned selection process. So far, despite adjournments from time to time, both the official respondents and the appellant have failed to produce such materials. 10. Faced in this difficulty, Smt.Mareena Joseph, learned counsel appearing for the appellant would submit that it has been held by this Court in a series of decisions that though the notified arbitration forum in terms of Sec.69(2)(d) of the Kerala Co-operative Societies Act may not have adjudicatory jurisdiction to determine issues of disputes in direct recruitment selection in Co-operative Societies, the overall supervisory jurisdiction of the notified Registrar in terms of Sec.66 of the Act and the penumbra areas of the provisions contained in Rule 176 of the Kerala Co-operative Societies Rules for rescinding an illegal and _ultra vires_ resolution of the Co-operative Society could be appropriately invoked depending upon the facts and circumstances of the case to deal with the W.A. No. 1044 of 2021 9 serious cases of irregularities, etc. Further that, the appellant had already approached the 4[th] respondent Assistant Registrar and his plea was rejected as per Ext.P-8, and further that the authority to take a decision under Sec.66 of the Act and Rule 176 of the Rules, is the notified Registrar, which in the instant case is the 3[rd] respondent Joint Registrar of Co-operative Societies, and that the appellant has already approached the 3[rd] respondent by filing Ext.P-9 representation dated 20.7.2020, and that no action is forthcoming thereon. Further that, liberty may be given to the appellant to pursue his remedies before the 3[rd] respondent in the matters borne out from Ext.P-9 representation and to invoke the remedy in terms of Sec.66 of the Act and Rule 176 of the Rules. 11. Our attention is also drawn to the decisions laid down by this Court in cases as in _**Nilambur Co-operative Urban Bank No.F 1043 v. Joint Registrar of Co-operative Societies (General) & Anr. [2020 KHC 3062], Swathy Mohan & Ors. v. Joint Registrar of Co-operative Societies (General), Kollam & Ors. [2019 (4) KHC 451]**_ , etc to fortify our contention that jurisdiction in terms of Sec.66 of the Act and Rule 176 of the Rules could be invoked subject to the facts and circumstances of the case in disputes relating to illegalities and irregularities in the conduct of direct recruitment selection W.A. No. 1044 of 2021 10 in co-operative societies, etc. We are not in a position to give any comment on the merits of the case, and liberty is accorded to the appellant to seek remedies in the matter strictly in accordance with law. The observations and directions made by the learned Single Judge in the impugned judgment rendered on 9.12.2020 in WP(C).No.22579/2020 will stand modified as above. With these observations and directions, the above Writ Appeal will stand disposed of. Sd/- ALEXANDER THOMAS, JUDGE Sd/- VIJU ABRAHAM, JUDGE MMG