Sunny Das M.S. Nivas and Biji R v The Joint Registrar of Co-operative Societies (General), Thiruvananthapuram and The Ottoor Service Co-Operative Bank Ltd

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 7TH DAY OF FEBRUARY 2014/18TH MAGHA, 1935 WA.No. 2210 of 2012 () IN WP(C).18451/2011 -------------------------------------------AGAINST THE JUDGMENT IN WP(C) 18451/2011 of HIGH COURT OF KERALA DATED 29-11-2012 ## APPELLANT(S)/PETITIONER: ---------------------------------------------- 1. SUNNY DAS M.S.NIVAS, NJEKKAD, VADASSERIKOONAM P.O VARKALA, THIRUVANANTHAPURAM 2. BIJI R,AKKARAVILA VEEDU, NJAKKAD, VADASSERIKONAM P.O,VARKALA, THIRUVANANTHAPURAM BY ADV. SRI.B.S.SWATHY KUMAR RESPONDENT(S)/RESPONDENTS: ---------------------------- 1. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL)THIRUVANANTHAPURAM -695001 2. THE OTTOOR SERVICE CO-OPERATIVE BANK LTD-976 CHENNANCODE, VADASSERIKONAM P.O, VARKALA THIRUVANANTHAPURAM, REP.BY ITS SECRETARY, PIN-695143 R1 BY SR.GOVT. PLEADER SRI.S.JAMAL R2 BY ADV. SRI.P.N.MOHANAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 07-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC & ANIL K.NARENDRAN, JJ. ----------------------------------W.A.No.2210 of 2012 ----------------------------------Dated this the 7[th] day of February, 2014 ## JUDGMENT ## Antony Dominic, J. 1.The controversy in this writ appeal is in relation to the selection process initiated by the second respondent, a co-operative bank, for filling up two posts each of Attenders and Peons. The bank invited applications and among others, the first and second appellants applied for the posts of Peon and Attender respectively. Written test was conducted by an outside person appointed by the bank on 2.7.2011. Immediately thereafter, on 5.7.2011, the first appellant submitted Ext.P4 complaint, which, though not addressed to anybody, has been acknowledged by the office of the first respondent on 5.7.2011 itself. In that complaint, he alleged that the written test has been conducted for paving way for the eventual appointment of 5 persons whose names and addresses were given in the complaint. Following are the persons who are named in Ext.P4: 1. Bindu R.K., Sreevihar, Njekkad. 2. Remya R., Madhurakkode. WA.2210/12 2 3. Sindhu G., Vattavila veedu, S.N.Puram. 4. Remya L.R., Molee cottage. 5. Sheeja S., Valiyavilaakam, Vadasserikkonam. - 2.Thereafter, alleging that despite the complaint made, there was no interference from the first respondent, the appellants filed W.p(C).18451/11 before this Court, seeking a direction to the second respondent not to conduct interview or effect appointment to the posts of Peon and Attender for which the written test was held. They also sought for a direction to the first respondent to conduct the interview in pursuance of the written test that was conducted. The writ petition was dismissed by the learned single Judge holding it to be premature. It is aggrieved by this judgment, this appeal is filed. - 3.In this appeal, this Court passed order dated 19.12.2012, directing that the interview to be conducted by the bank will be subject to the final result of the writ appeal and that appointments shall not be made on the basis of the select list prepared based on the interview, without permission in that regard from this Court. Accordingly, interview was WA.2210/12 3 conducted by the Board of Directors of the second respondent on 20.12.2012. - 4.In the counter affidavit filed by the bank, they have produced as Ext.R2(g), the details of marks secured by the candidates who have attended the interview for both the posts. They have also produced combined mark lists which indicate the marks secured by the candidates for the written test and the interview. Finally, the bank has also produced the separate rank lists prepared by it for the posts of Peon and Attender as part of Ext.R2(g). The marks obtained and rank secured by the five persons mentioned in Ext.P4 and the appellants are as follows: |**_Sl._**<br>**_No._**|**_Name of_**<br>**_candidate_**|**_Peon_**|**_Peon_**|**_Attender_**|**_Attender_**| |---|---|---|---|---|---| |||**_Written test_**<br>**_+ Interview_**|**_Rank_**|**_Written test_**<br>**_+ Interview_**|**_Rank_**| |1|Bindu R.K.|66 + 14|2|60 + 14|7| |2|Remya R.|60 + 15|4|66 + 14|2| |3|Sindhu G.|60 + 14|5|70 + 13|1| |4|Remya L.R.|62 + 15|3|58 + 15|8| |5|Sheeja S.|68 + 14|1|64 + 14|3| |6|Appellant No.1|36 + 15|21|-|-| |7|Appellant No.2|-|-|44 + 15|15| WA.2210/12 4 - 5.We heard the learned counsel for the appellants, learned Government Pleader appearing for the first respondent and the learned counsel appearing for the second respondent bank. - 6.Learned counsel for the appellants contended that the documents produced by the second respondent along with the counter affidavit itself would prove that the apprehension expressed by them in Ext.P4 that the selection process initiated was for the eventual appointment of the 5 candidates mentioned in Ext.P4 has become true. This, according to him, demonstrates that the selection process undertaken by the bank was only to legitimize the proposal of the respondents to appoint the aforesaid persons and was not fair or impartial. - 7.On the other hand, learned counsel for the bank invited our attention to the educational qualification of the 5 persons whose names are mentioned by the appellants and also to the marks obtained by them in both the written test and the WA.2210/12 5 interview. According to him, it was on account of the superior educational qualifications and merit as assessed by the interview committee that the persons, including those mentioned by the appellants, have obtained higher rank in the rank lists. He contended that therefore, the rank lists do not merit interference at the instance of the appellants, who have participated and lost in the selection process. - 8.We have considered the submissions made by both sides. We do accept the case of the bank that in a selection process, it is possible that persons with higher educational qualifications and superior merit are likely to get higher rank in the written test and interview and according to us also, the merit should always be the criteria in a selection process. However, the question is whether with the materials available before us, it could be held that this case is one of that category. - 9.As we have already stated, written test was conducted on 2.7.2011 and the writ petition was filed before this Court on 7.7.2011. In that writ petition, they WA.2210/12 6 had produced Ext.P4 complaint filed on 5.7.2011, which contained the allegation that the selection process was initiated by the bank only to pave way for the appointment of the persons mentioned therein. 10. Further, in paragraph 4 of the writ petition and ground (E), they also alleged thus; “4) Now the petitioners understand that on the special interest shown by a leader of the C.P.I(M) certain persons are going to be appointed on the date of interview itself. On coming to know of the same the 1st petitioner submitted a complaint dated 5-72011 before the 1st respondent giving out the name of 5 persons who are likely to be appointed. The true copy of that complaint is produced herewith and marked as Exhibit P4. On the same day itself there were newspaper report stating that there was great commotion in the joint meeting of the C.P.I.(M) Ottoor and Kallambalam local committees which when to the extent of physical altercation stating that there is move to regularize/ appoint 5 persons from among the 15 persons who are now working in the 2nd respondent on daily wages, there were also allegations that one among them is the Daughter of the C.P.I.(M) area committee member and the rest four are the nominee of a powerful leader of the C.P.I.(M) and that the post are being sold. The true copy of the news item that appeared in the Veekshnam daily WA.2210/12 7 dated 5-7-2011 is produced herewith and marked as Exhibit P5. The petitioner's bonafidely apprehend that interview will be conducted at the nearest date and the persons mentioned in Ext.P4 will be appointed on the same day.” “E) The petitioners understand that if the 2nd respondent is allowed to conduct the interview they will award maximum marks to those persons mentioned in Ext.P4 and appoint them, there is also talk in the locality that those persons mentioned in Ext.P4 had met Muhammed Kunju (Retd Assistant Registrar), the person who conducted the written test, even before the date of test, this goes to the very root of the written test. The said person who conducted the written test is incompetent and he was also an active worker of the service organization lead by the CPI(M), while he was in service.” 11.In the counter affidavit filed by the bank, though the averments in paragraph 4 of the writ petition were vaguely denied as those were made by persons belonging to the rival political parties, there is no denial of the averments contained in ground (E). Irrespective of that, the materials produced along with the counter affidavit shows that the apprehension expressed by the appellants in Ext.P4 in WA.2210/12 8 the writ petition have come true. In Ext.R2(g), the details of the marks secured by the candidates who attended the interview and the test for the post of Peon were produced, which show that the persons whose names are mentioned in Ext.P4 have secured higher marks. This together with the marks secured by them as shown in the combined mark list containing the marks of written test and interview would show that with the marks that were awarded to by them in the interview, they could be comfortably included in the final ranked list prepared by the bank. Similar is the case with the marks secured by the candidates for the test of Attender, which also show that a similar device was adopted by the committee, marks were awarded to the persons whose names are mentioned in Ext.P4 and they were also brought into the final ranked list. - 12.In this context, it also merits mention that the combined mark lists of the written test and interview shows that higher marks have been deliberately awarded to persons who have secured comparatively low marks in the written test. The only inference is WA.2210/12 9 that this has been done to whitewash the dubious method adopted by the interview committee for placing their favourites in the final ranked list. Further, the notified number of vacancies are two each and ranking has been assigned in such a way that Sreeja S. and Bindu R.K. are rank Nos.1 and 2 for the post of Peon while Sindhu G. and Remya R. are assigned rank Nos.1 and 2 for the post of Attender. By this process, conflicting claims among the rank holders are also cleverly avoided. 13.At any rate, it is too illogical to think that unless there is some substance in their allegations, the petitioners, who filed this writ petition in July, 2011, could predict the outcome of the selection process which was completed only in December, 2012. This necessarily means that the selection process, including the written test was conducted by none other than a fellow traveller of the ruling alliance of the bank and the selection process was not fair or an impartial one. WA.2210/12 10 - 14.Learned counsel for the second respondent bank relied on the judgment of the Apex Court in Dhananjay Malik v. State of Uttaranchal [(2008) 4 SCC 171] and contended that having unsuccessfully participated in the process of selection without any demur, the candidates are estopped from challenging the selection criterion. He also relied on the judgment of this Court in Ranjith v. Kannur University [2012 (1) KLT 183] to canvass the point that participants of selection process cannot turn round and challenge the procedure or any lacuna in the selection process. 15.However, these judgments do not say that an unsuccessful candidate is, in any manner, disabled from challenging the selection process if he is able to establish that the selection process is vitiated due to favouritism and partiality. However, this is not a case where the appellants are impugning the selection criteria or the procedure of selection. Therefore, we are satisfied that these judgments relied on by the learned counsel would not in any manner help him to sustain the selection process in question. WA.2210/12 11 16.Counsel then contended that educational qualifications of the selected candidates is far superior to that of the appellants and it was therefore that on merit, they acquired higher rank. It may be true that those candidates are having superior qualifications. But, on the facts, we are satisfied that it is not the educational superiority that enabled them to acquire higher ranking in the ranked list but the ranking was manipulated by them on extraneous considerations. Therefore, we are not persuaded to accept the contention of the learned counsel for the bank that it is the educational qualifications and merit which helped the aforesaid candidates to acquire higher place in the rank list. - 17.We are satisfied that the rank list prepared by the bank is vitiated by arbitrariness and favouritism and therefore, we set aside the same and restrain the bank from proceeding in any manner with the selection process that they have initiated. However, we clarify that it would be open to the bank to invite applications and proceed afresh with the selection WA.2210/12 12 process, giving opportunity to the candidates who have participated in the written test held on 2.7.2011 also. Writ appeal is disposed of. Sd/- ANTONY DOMINIC, Judge. Sd/ANIL K.NARENDRAN, Judge. kkb. /True copy/ PS to Judge