Santhosh Jose v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 1ST DAY OF MARCH 2017/10TH PHALGUNA, 1938** ## **WP(C).No. 2525 of 2017 (M)** **---------------------------** ## **PETITIONER:** ## **-----------** **SANTHOSH JOSE, S/O.JOSE, AGED 37 YEARS, RESIDING AT MULANJANAIKUNNEL HOUSE, POOVARANI PO, PALA.** **BY ADV. SRI.P.C.HARIDAS** **RESPONDENT(S):** - **--------------** ## **1. STATE OF KERALA,** - **REPRESENTED BY ITS SECRETARY TO THE DEPARTMENT OF CO-OPERATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.** **2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) THIRUVANANTHAPURAM 695 001.** **3. THE JOINT REGISTRAR (GENERAL) KOTTAYAM 686 001.** **4. THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES MEENACHIL, PALA 686 575.** **5. THE POOVARANI SERVICE CO-OPERATIVE BANK LTD, NO. 2882 POOVARANI PO, PALA 686 577.** **6. M.M.ABRAHAM,** - **THE PRESIDENT , THE POOVARANI SERVICE CO-OPERATIVE BANK LTD NO. 2882, POOVARANI PO, PALA 686 577.** *** ADDL R7 TO R10 IMPLEADED** **7. ABRAHAM XAVIER, PULLAMATHANY HOUSE, PAIKA,POOVARANY P.O, KOTTAYAM.** **8. NEENU PRAKASH, PUTHANPURACKAL HOUSE, ANTHINADU P.O, KOTTAYAM.** **-2WPC 2525 OF 2017:** ## **-----------------** **9. ISABELLA K.J, KOTTAMURICKAL HOUSE, ETTUMANOOR,PATTITHANAM.P.O, KOTTAYAM.** **10. IBY GEORGE, KOTTANGAKULAM HOUSE, KURAVILANGAD,KOZHA P.O, KOTTAYAM.** - **ADDL R7 TO R10 ARE IMPLEADED AS PER ORDER DATED 20/02/2017 IN IA NO 2813/2017.** **R1 TO R4 BYSENIOR GOVERNMENT PLEADER SRI P.N.SANTHOSH KUMAR R5-R6 BY ADVS. SRI.SHAJI THOMAS SRI.H.KIRAN** **R7 TO R10 BY ADV. SRI.D.SOMASUNDARAM** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** ## **WP(C).No. 2525 of 2017 (M) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-----------------------** - **P1 TRUE COPY OF THE REPRESENTATION DATED 8.8.2016 SUBMITTED TO THE 3RD RESPONDENT** - **P2 TRUE COPY OF THE REPORT OF THE 4TH RESPONDENT DATE 10.8.2016** - **P3 TRUE COPY OF THE ORDER DATED 11.8.2016 OF THE 3RD RESPONDENT** - **P4 TRUE COPY OF THE INTIMATION FOR TEST ISSUED BY THE 5TH RESPONDENT** - **P5 TRUE COPY OF THE EXTRACT OF ADMISSION REGISTER OF THE PETITIONER** - **P6 TRUE COPY OF THE REPRESENTATION DATED 21.1.2017 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT** - **P7 TRUE COPY OF THE COMPLAINT DATED 21.01.2017 SUBMITTED TO THE 3RD RESPONDENT** - **P8 TRUE COPY OF THE RESOLUTION OF THE MANAGING COMMITTEE DATED 23.1.2017** ## **RESPONDENT(S)' EXHIBITS** **-----------------------** - **R6(A) COPY OF THE RESOLUTION NO 141 DATED 20.7.2016.** - **R6(B) COPY OF THE RESOLUTION NO 67 DATED 20.5.2016 OF THE COMMITTEE** - **R6(C) COPY OF THE NOTIFICATION DATED 22.6.2016 PUBLISHED IN THE DEEPIKA DAILY.** - **R7(A) COPY OF THE ORDER DATED 22.8.2016 ISSUED BY THE POOVARANY SERVICE CO-OPERATIVE BANK.** - **R7(B) COPY OF THE ORDER NO CRP (1) 5845/16/K.DIS DATED 31.10.2016 ISSUED BY THE JOINT REGISTRAR (GENERAL).** - **R7(C) COPY OF THE ORDER NO CRP (1) 5584/16 K.DIS DATED 31.10.2016 ISSUED BY THE JOINT REGISTRAR (GENERAL)** - **R7(D) COPY OF THE ORDER NO CRP(1)5584/16 DATED 11.8.2016 ISSUED BY THE REGISTRAR (GENERAL)** - **R7(E) COPY OF JUDGMENT DATED 6.1.2017 IN WPC NO 380/2017 OF THIS HONOURABLE COURT.** - **R7(F) COPY OF NOTICE NO CRP(1)83/17 DATED 4.2.2017 ISSUED BY THE JOINT REGISTRAR (GENERAL) KOTTAYAM.** - **/TRUE COPY/** **P.A.TO JUDGE** **K.V.** ## **P.B.SURESH KUMAR, J.** **--------------------------------------------** ## **W.P.(C).No.2525 of 2017** **--------------------------------------------------------------Dated this the 1[st] day of March, 2017** ## **J U D G M E N T** The fifth respondent, a Co-operative Society registered under the Kerala Co-operative Societies Act, has invited applications for appointment to three vacancies in the post of 'Peon' and one vacancy in the post of 'Salesman' vide notification dated 22/06/2016. Pursuant to the said notification, a written test was conducted by an external agency appointed by the society on 07/08/2016. There were complaints about the written test conducted. The Joint Registrar of Co-operative Societies, in the circumstances, interdicted further proceedings pursuant to the written test conducted on 7.8.2016. Ext.P3 is the order issued by the Joint Registrar in this connection. The W.P.(c).No.2525 of 2017 : 2 : Joint Registrar, however, permitted the society to conduct a fresh selection as per the said order. Ext.P4 is the notification published by the society for conduct of written test afresh. Ext.P4 is under challenge in this writ petition. 2. Heard the learned counsel for the petitioner as also the learned counsel for the society. 3. The learned counsel for the petitioner contended that in the light of Ext.P3 order, the society should have invited fresh applications for appointment. The petitioner was not a person applied for selection pursuant to the notification dated 22.06.2016. According to the learned counsel, had there been a fresh invitation, the petitioner could have applied for selection. It is also contended by the learned counsel for the petitioner that the society is conducting the written examination proposed as per Ext.P4 directly without involving of an external agency contrary to the directions issued by the Registrar of Co-operative Societies. 4. The operative portion of Ext.P3 order reads thus : ÉâÕøÃß ØVÕàØí ØÙµøà ÌÞCí µïßÉñ¢ È¢.2882_W æØÏßríÎÞX, ÉcâY ÄØñßµµ{ßæÜ ÈßÏÎÈJßÈÞÏß 20/05/2016_æÜ ÌÞCí Íøà ØÎßÄßÏáæ¿ 67_Þ¢ ÈOV ÄàøáÎÞÈJßæa ¥¿ßØíÅÞÈJßW ÌÞCí È¿JßÏ ®ÝáJáÉøàfÏá¢, Äá¿VKí ÕcÕØíŵZAí ÕßçÇÏÎÞÏß È¿JáÕÞX ©çgÖߺîßøáK §aVÕcâÕᢠØÙµøà آ¸¢ ø¼ßØíd¿Þùáæ¿ ØVAáÜV ÈOV 18/91, 79/11 ®KßÕÏßæÜ ÄàVMí W.P.(c).No.2525 of 2017 : 3 : ÈßVçgÖBZAí ÕßøáiÎÞÏß 40% ÎÞVAí ©UÕæø ÎÞdÄ¢ §aVÕcâÕßÈí fÃßAáÕÞX ÄàøáÎÞÈߺî 20/07/2016_æÜ ÌÞCí ÍøÃØÎßÄßÏáæ¿å141_Þ¢ ÈOV ÄàøáÎÞÈ¢ dµÎÕßøáiæÎKí çÌÞicæMGÄßæa ¥¿ßØíÅÞÈJßW çµø { ØÙµøà ÈßÏ΢ ºG¢ 176 dɵÞø¢ ®KßW ÈßfßÉñÎÞÏ ¥ÇßµÞø¢ ÕßÈßçÏÞºîí ùgí æºÏñí ©JøÕÞµáKá.åØÙµøà ÌÞCáµ{ßæÜ ÈßÏÎÈB{ßW ÈßVÌtÎÞÏᢠÉÞÜßçAI ØáÄÞøcÄ, Èß×íÉfÄ, ØÄcØtÄ ®KßÕ ¿ß ÉøàfÞ È¿JßMáÎÞÏß ÌtæMGí ÌÞCí ¥ÇßµÞøßµ{áæ¿ §¿æÉ¿ÜßÜâæ¿ Ü¢¸ßAæMGá ®Kí çÌÞicæMGí ¿ß ÉøàfÏᢠ¥Äßæa ¥¿ßØíÅÞÈJßÜáU Äá¿V È¿É¿ßµ{ᢠ§ÄßÈÞW ùgí æºÏñᢠ©JøÕÞµáKá. §dɵÞø¢ ùgÞAßÏ ÈßÏÎÈ Éøàf ÈßÏÎÞÈáØøà ȿɿßdµÎBZ ÉÞÜߺîá æµÞIí ÈßÏÎÞÈáØøâ È¿çJIÄᢠ¥VÙÄæMG ©çgcÞ·ÞVjßµZAí ÈßÏÎÞÈáØcÄ ÈßÏÎÈ¢ È¿çJIÄáÎÞÃí. It is evident from the extracted portion of Ext.P3 order that the Joint Registrar has only set at naught the written examination conducted by the society pursuant to the notification dated 22.6.2016 and the further proceedings thereto. As such, the contention that the society should have invited applications afresh for selection cannot be accepted. The said aspect is also seen clarified by the Joint Registrar in Ext.P3 order stating that the society is free to conduct a fresh written examination in the place of the written examination interdicted by him. Admittedly, the petitioner is not a person who has applied for selection pursuant to the notification dated 22.6.2016. The petitioner, in the circumstances, has no locus standi to challenge Ext.P4 notification for conducting written examination afresh. The learned counsel for the petitioner, relying on the Division Bench W.P.(c).No.2525 of 2017 : 4 : decision of this Court in _**Preetha S. Nair v. Sree Sankaracharya University of Sanskrit and Others**_ [2009 (4) KHC 439 (DB)], submitted that merely for the reason that he was not an applicant for selection pursuant to the notification dated 22/06/2016, it cannot be contended that he is not entitled to challenge Ext.P4 notification. Paragraph 9 of the judgment which is relied on by the learned counsel reads thus: “9. The next point to be considered is whether this Court should interfere with the selection and appointment of the 4th respondent, as the challenge was made by the appellant, who did not apply for the post. In this context, we notice the specific contention raised by the 4th respondent that the appellant has no locus standi to maintain the Writ Petition. According to the appellant, the qualification of experience of working in a University, notified as a desirable qualification, was one tailor made to suit the 4th respondent. If the qualifications were prescribed with the approval of the Chancellor, the chances of the said qualification being removed from the proposed Statute cannot be ruled out. If that be so, the appellant could have applied for the post. In this context, we refer the decision of the Division Bench of this Court in WA No. 1130/2009 dated 27/08/2009, wherein, this Court declined to interfere with the selection, even though it was found that the candidate selected was over aged, for the reason that even if the appointment was set aside, the appellant would not be benefited, as his position in the rank list was lower down. Of course, if he was next candidate in the list to be appointed, this Court would have interfered with the appointment. But, we W.P.(c).No.2525 of 2017 : 5 : think that the said decision cannot be mechanically applied to the facts of this case. If prescription of qualifications and method of appointment is made by framing statutes and the selection is followed, the chances of the appellant being qualified as per the statutory prescription cannot be ruled out. This is not a case where even if the selection is unsettled, the appellant is not going to be benefited. She may gain a benefit, which will depend upon the qualifications to be included in the Statutes to be framed. Further, the appellant is not a person attacking the selection made pursuant to the notification, but an unemployed person who demands that the notification inviting applications for appointment in public service should be made according to law. So, we are not inclined to hold that the appellant has no locus standi to challenge the steps taken for selection without framing Statutes. Recently, this Division Bench in WA 2188/2008 has held that selection to the post of PRO in the Kannur University could not have been made without prescribing the qualifications and method of appointment to the post by prescribing necessary Ordinance. We have no doubt in our mind that the steps taken by the University to make appointment to the post of PRO without prescribing the qualifications and method of appointment by framing Statutes were illegal and unsupportable in law. It is so declared.” The case referred to by the learned counsel for the petitioner was a case where the contention of the petitioner was that the qualification prescribed for appointment was tailor-made to suit the fourth respondent therein and had the proper qualifications been prescribed, the petitioner therein could have applied for selection. In other words, the case of the petitioner in the said W.P.(c).No.2525 of 2017 : 6 : case was that he could not apply for selection pursuant to the notification. The petitioner in this case is a person who could have applied for selection pursuant to the notification dated 22.6.2016. The ratio in the above judgment has, therefore, no application to the facts of the present case. 5. In the facts and circumstances stated above, the writ petition is dismissed. It is, however, made clear that this judgment will not preclude the candidates applied for selection pursuant to the notification dated 22.6.2016 from raising complaints before the competent authority if the written test proposed has not been conducted in accordance with the directions issued by the Registrar of Co-operative Societies in this connection. **==> picture [26 x 12] intentionally omitted <==** **P.B.SURESH KUMAR JUDGE** rsr