Shyni K.K. @ Shinidasan v. State of Kerala & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 25TH DAY OF JULY 2012/3RD SRAVANA 1934 WP(C).No. 15767 of 2012 (U) --------------------------- PETITIONER: ----------- SHYNI.K.K. @ SHINIDASAN, AGED 33 YEARS W/O BAIJU, CHAKKOMPALLIL, PALLIPPURAM P.O. CHERTHALA TALUK, ALAPPUZHA DISTRICT. BY ADV. DR.V.N.SANKARJEE RESPONDENTS: ------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY DEPARTMENT OF CO-OPERATION, SECRETARIAT THIRUVANANTHAPURAM-895 001. 2. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, ALAPPUZHA-688 501. 3. THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, CHERTHALA-688 524. 4. PALLIPPURAM SERVICE CO-OPERATIVE BANK LTD.NO.1308, PALLIPPURAM VILLAGE AND MURI, CHERTHALA TALUK ALAPPUZHA DISTRICT-688 541 REPRESENTED BY THE SECRETARY. BY ADV. SRI.V.G.ARUN BY ADV. SRI.T.R.HARIKUMAR BY SPECIAL GOVERNMENT PLEADER SRI D.SOMASUNDARAM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25-07-2012 ALONG WITH W.P(C) NO.17358 OF 2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 15767 of 2012 (U) **==> picture [121 x 7] intentionally omitted <==** PETITIONER'S EXHIBITS EXHIBIT P1: TRUE COPY OF THE PETITIONER'S IDENTITY CARD DATED 25.6.2009 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P2: TRUE COPY OF THE ADVERTISEMENT APPEARED IN KERALA KAUMUDI DATED 9.6.2012. EXHIBIT P3: TRUE COPY OF THE CIRCULAR NO.18/91 DATED 7.6.1991 ISSUED BY THE REGISTRAR OF CO-OPERATIVE SOCIETIES. EXHIBIT P4: TRUE COPY OF THE CIRCULAR NO.11/99 DATED 23.3.99 ISSUED BY THE REGISTRAR OF CO-OPERATIVE SOCIETIES. EXHIBIT P5: TRUE COPY OF THE CIRCULAR NO. 14/10 DATED 19.3.2010 ISSUED BY THE REGISTRAR OF CO-OPERATIVE SOCIETIES. EXHIBIT P6: TRUE COPY OF THE PETITIONER'S SSLC BOOK FRONT PAGE. EXHIBIT P7: TRUE COPY OF THE LETTER DATED 24.6.2012 ISSUED BY THE SECRETARY NEWSPAPER AGENTS ASSOCIATION, PALLIPPURAM. /TRUE COPY/ P.A TO JUDGE **K.SURENDRA MOHAN, J. ----------------------------------------------------W.P(c) Nos.15767 and 17358 of 2012 ---------------------------------------------------Dated this the 25[th] day of July, 2012** ## **J U D G M E N T** The questions raised in these Writ Petitions are identical and hence, they are disposed of together by this common judgment. 2. The petitioners are aspirants for being appointed to the service of the 4[th] respondent Co-operative Bank. The 4[th] respondent Co-operative bank published Ext.P2 notification in the “Kerala Kaumudi” and “Veekshanam” dailies inviting applications for the posts of Attender and Peon. The petitioners in both these Writ Petitions are qualified for being appointed to the said posts. The petitioner in W.P(c) No.15767 of 2012 is also a member of the society. However, the petitioners were not able to submit applications for selection and appointment to the notified posts for the reason that the notification was issued in violation of the circulars applicable. 3. According to the petitioners, Ext.P3 circular provides that the applications for the post shall be invited by publication 2 ## **W.P(c) Nos.15767 and 17358 of 2012** in leading dailies having “wide circulation in the area”. Ext.P4 circular mandates that the notification should mention the scales of pay of the posts notified. Particular reliance is also placed on Ext.P5 circular which has ordered that Ext.P3 circular shall be strictly observed while issuing notifications like Ext.P2. The circulars have been issued with the object of ensuring that the process of selection is kept free of corruption and nepotism. Since Ext.P2 has been issued in violation of the circulars applicable, it is contended that the said notification and the selection made pursuant thereto are illegal. The omission to publish the notification in two leading dailies having circulation in the area has prejudicially affected the petitioners for the reason that they did not come to know of the notification. Therefore, they have been prevented from even applying for the posts. 4. It is contended by the learned counsel for the petitioners that in view of Ext.P7 as well as Exts.P8 and P9, the Kerala Kaumudi and Veekshanam news papers have only marginal circulation in the area. It is also alleged that the 4[th] 3 ## **W.P(c) Nos.15767 and 17358 of 2012** respondent has already decided the persons who are to be appointed pursuant to Ext.P2 and therefore the selection that is going to be undertaken is only a make-belief. The written test and interview are scheduled to be conducted on 27.07.2012. Therefore, the learned counsel for the petitioners seeks the issue of appropriate directions interdicting the selection that is proposed. 5. A counter affidavit has been filed in W.P(c) No.15767 of 2012 by the 4[th] respondent seriously disputing the averments of the petitioner. It is pointed out that the 4[th] respondent is functioning under severe shortage of staff, that is hampering the functioning of the society. As per Ext.R4(b), the auditors of the bank had noticed that the performance of the 4[th] respondent could be improved with the assistance of proper staff. With respect to Ext.P7, it is contended that the same is a fabricated document, the person who has issued the same not being a news paper agent, as evidenced from Ext.R4(c). It is also contended that the dailies, Kerala Kaumudi and Veekshanam, have circulation far in excess of what is evidenced by Exts.P7 to P9. 4 **W.P(c) Nos.15767 and 17358 of 2012** The selection process having commenced, it is contended that there is no justification for stalling the same at considerable prejudice to the applicants also. It is contended that 126 applications have been received pursuant to the advertisement. 6. The learned counsel for the petitioners contends that the examination that is proposed to be conducted is not entrusted to an outside agency as stipulated by this Court in the decision reported in **Mohanan v. State of Kerala and Ors.** [ILR 2010(3) Ker. 776]. For the above reason also, it is contended that the selection process is vitiated. 7. I have heard the learned counsel for the petitioners, the learned counsel for the 4[th] respondent as well as the learned Special Government Pleader. 8. It is to be noted that serious disputes are raised with respect to many of the factual aspects in this case. Though the 4[th] respondent would assert that `Kerala Kaumudi' and `Veekshanam' dailies are leading dailies having wide circulation in the area, the petitioners seriously dispute the same. The documents produced to support the contentions of the 5 **W.P(c) Nos.15767 and 17358 of 2012** petitioners are also disputed by the 4[th] respondent as false and fabricated. Ext.R4(e) produced by the 4[th] respondent along with the additional counter affidavit is also alleged to be a fabricated document by the learned counsel for the petitioner. The 4[th] respondent asserts that the circulars have been complied with. It is also contended that the selection is being conducted in accordance with the Rules. In the above state of affairs, it is not possible for me in exercise of my summary jurisdiction under Article 226 of the Constitution to determine the correctness of the facts asserted by one and denied by the other party. The petitioner in W.P(c) No.17358 of 2012 has submitted Ext.P7 complaint to the Joint Registrar of Co-operative Societies, who is the 2[nd] respondent in both these Writ Petitions. In the nature of the contentions put forward by the parties, it is only appropriate that the 2[nd] respondent conducts a proper enquiry and finds out the truth of the allegations made against the selection. If as a matter of fact, Ext.P2 notification has not been published as required by the circulars applicable, the petitioners have been considerably prejudiced by the said act and therefore, the 6 ## **W.P(c) Nos.15767 and 17358 of 2012** selection conducted pursuant to the same would have to be set aside. The competence of the agency which has been entrusted with the conduct of the examination would also have to be evaluated by the 2[nd] respondent. Therefore, it is necessary that a comprehensive appraisal of the various allegations levelled against the proposed selection would have to be undertaken by the 2[nd] respondent. Appropriate orders would thereafter have to be passed on Ext.P7, also taking note of the decisions of this Court on the point. This Writ Petition is accordingly disposed of directing the 2[nd] respondent to consider the grievances of the petitioners set out in Ext.P7 representation in W.P(c) No.17358 of 2012 in accordance with law and to pass appropriate orders thereon, as expeditiously as possible and at any rate within a period of four weeks of the date of receipt of a copy of this judgment, after affording an opportunity of being heard to the petitioner herein as well as the 4[th] respondent. The written test and interview that are proposed to be conducted by the 4[th] respondent on 27.07.2012 shall be purely provisional and subject to the orders 7 ## **W.P(c) Nos.15767 and 17358 of 2012** that the 2[nd] respondent Joint Registrar is to pass on Ext.P7 complaint pursuant to the above direction. The candidates appearing for the written test and interview shall be informed accordingly. Appointments shall be made only on the basis of the orders to be passed by the 2[nd] respondent in accordance with the above direction. _**(K.SURENDRA MOHAN, JUDGE)**_ rtr/