WA Nos.1280, 1427 and 1428 of 2022 (Kidangoor Service Co-operative Bank Ltd. v. N C Thankappan Kadambanatt House and others)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **THURSDAY, THE 20[TH] DAY OF OCTOBER 2022 / 28TH ASWINA, 1944** ## **WA NO. 1280 OF 2022** ## **AGAINST THE JUDGMENT IN WP(C) 30634/2019 OF HIGH COURT OF KERALA** ## **APPELLANT/2ND RESPONDENT IN WP(C):** KIDANGOOR SERVICE CO-OPERATIVE BANK LTD. NO.3431 KIDANGOOR, MEENACHIL, KOTTAYAM DISTRICT, PIN- 683 572, REPRESENTED BY ITS SECRETARY. BY ADV O.D.SIVADAS ## **RESPONDENTS/PETITIONER AND 1st RESPONDENT IN WP(C):** 1 N C THANKAPPAN KADAMBANATT HOUSE, KIDANGOOR SOUTH PO, MEENACHIL TALUK, KOTTAYAM DISTRICT, PIN-686 583. 2 JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOTTAYAM, PIN-683 001. ## **OTHER PRESENT:** T.K.VIPINDAS- SR.G.P THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20.10.2022, ALONG WITH WA.1428/2022, 1427/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 W.A.Nos.1280, 1427 and 1428 of 2022 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **THURSDAY, THE 20[TH] DAY OF OCTOBER 2022 / 28TH ASWINA, 1944** ## **WA NO. 1428 OF 2022** **AGAINST THE JUDGMENT IN WP(C) 30458/2019 OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS 3 & 4 IN WP(C):** 1 KIDANGOOR SERVICE CO-OPERATIVE BANK LTD. NO.3431 KIDANGOOR, MEENACHIL, KOTTAYAM DISTRICT, PIN- 683 572, REPRESENTED BY ITS SECRETARY. 2 THE BOARD OF DIRECTORS OF THE KIDANGOOR SERVICE COOPERATIVE BANK LIMITED NO.3431, REPRESENTED BY ITS PRESIDENT, KIDANGOOR, PIN-686 657. BY ADV O.D.SIVADAS ## **RESPONDENTS/PETITIONER AND RESPONDENTS 1, 2 AND 5 IN W.P(C):** 1 BALACHANDRAN NAIR, S/O. GOPALAN NAIR, AGED 73 YEARS, PADAYATT HOUSE, KINDANGOOR PO, CHIRAYANGARA, KOTTAYAM, PIN-686 572. 2 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL)OF CO-OPERATIVE SOCIETIES, KOTTAYAM 686 037. 3 THE ASSISTANT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES, MEENACHIL, PIN-686 575. 4 M.N. GOPALAKRISHNAN @ KUTTAN SIR, MADATHIL HOUSE, MANARCAD PO, KOTTAYAM, PIN-686 583. ## **OTHER PRESENT:** T.K.VIPINDAS- SR.G.P THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20.10.2022, ALONG WITH WA.1280/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 3 W.A.Nos.1280, 1427 and 1428 of 2022 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** ## **THURSDAY, THE 20[TH] DAY OF OCTOBER 2022 / 28TH ASWINA, 1944 WA NO. 1427 OF 2022** ## **AGAINST THE JUDGMENT IN WP(C)17652/2020 OF HIGH COURT OF KERALA** ## **APPELLANTS/4TH AND 5TH RESPONDENTS IN WP(C):** - 1 KIDANGOOR SERVICE CO-OPERATIVE BANK LTD. NO.3431 KIDANGOOR, REPRESENTED BY ITS SECRETARY, KIDANGOOR 683572 - 2 THE BOARD OF DIRECTORS OF THE KIDANGOOR SERVICE COOPERATIVE BANK LIMITED NO.3431, REPRESENTED BY ITS PRESIDENT, KIDANGOOR, PIN-686 657. BY ADV O.D.SIVADAS ## **RESPONDENTS/PETITIONER AND RESPONDENTS 1, 2, 3 AND 6 IN WP(C):** - 1 ATHIRA RAJU, D/O. K.K. RAJU, KOTHAKUNNIL HOUSE, AGED 29 YEARS, KIDANGOOR PO, PIRAYAR, KOTTAYAM-686 572. - 2 THE REGISTRAR OF CO-OPERATIVE SOCIETIES, OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES, JAWAHAR SAHAKARANA BHAVAN, DPI JUNCTION, THYCAUD PO, THIRUVANANTHAPURAM, PIN-695 014. - 3 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) OF CO-OPERATIVE SOCIETIES, KOTTAYAM-560037. - 4 THE ASSISTANT REGISTRAR (GENERAL) - OF CO-OPERATIVE SOCIETIES, MEENACHIL, PIN-686 575. - 5 M.N. GOPALAKRISHNAN @ KUTTAN SIR, MADATHIL HOUSE, MANARCAD PO, KOTTAYAM, PIN-686 583. BY ADV SRI.ARUN PAUL JACOB (B/O) 4 W.A.Nos.1280, 1427 and 1428 of 2022 ## **OTHER PRESENT:** T.K.VIPINDAS- SR.G.P THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20.10.2022, ALONG WITH WA.1280/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 5 W.A.Nos.1280, 1427 and 1428 of 2022 **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ -----------------------------------W.A.Nos.1280, 1427 and 1428 of 2022 -------------------------------------Dated this the 20[th] day of October, 2022** ## **C O M M O N J U D G M E N T** ## Jayachandran, J. **1.** These appeals stem from a common judgment of the learned Single Judge in three Writ Petitions, all challenging the selection conducted by the appellant/Service Co-operative Bank to the posts of Salesman, Peon and Watcher. The essential bone of contention was that the selection process was vitiated, in as much as the external agency/individual appointed to conduct the written examinations was not empaneled by the Government. Writ Appeal No.1280 of 2022 is carried from the judgment in W.P(C).No. 30634 of 2019, preferred by a member of the society. Writ Appeal No.1427 of 2022 is carried from W.P(C).No.17652 of 2020, preferred by an W.A.Nos.1280, 1427 and 1428 of 2022 6 applicant for selection. Writ Appeal No.1428 of 2022 is carried from W.P(C).No.30458 of 2019, preferred by another member of the society, who was reported no more, at the time of disposal of the Writ Petitions, as could be seen from the last paragraph of the impugned judgment. In as much as he challenged the selection in his capacity as a member, the matter abates on his death. Learned counsel for the appellant sought time to file necessary impleading petition, which we, however, refused, for the reason that, neither his legal heirs nor a new member can have a surviving right to sue. Nonetheless, we take note of the contentions in the said Writ Petition as well for the sake of completion. **2.** Heard Sri.O.D.Sivadas, learned counsel for the appellant and Sri.Arun Chandran, Sri.Arun Paul Jacob and Sri.Alex M. Scaria learned counsel for the respondents. Perused the records. **3.** In W.P(C).No.30634 of 2019 (from which W.A.No.1280 of 2022 arose), selections which took place in the year 2012 to the same posts were also W.A.Nos.1280, 1427 and 1428 of 2022 7 brought to the hotchpotch of controversy, only to point out that the illegality is perpetrated in the instant notification (Ext.P6) as well. According to the petitioner therein, two persons chosen by the managing committee were appointed in utter disregard of the rules, orders and circulars. Ext.P1 notification was given in Deshabhimani daily, members of the managing committee having their political allegiance to the Communist Party of India [Marxist]. Notification [Ext.P2] was also given in Mangalam daily, both dailies having minimal circulation in the State. Pointing out the illegality and nepotism in the matter of appointments, the petitioner preferred Ext.P3 complaint before the Joint Registrar of Co- operative Societies, who sought for a report from the Assistant Registrar, Meenachil. Ext.P4 is the report of the Assistant Registrar dated 10.12.2014, which allegedly reveals the illegalities committed by the second respondent/society. Hearing was conducted on various dates by the first respondent/Joint Registrar, but no orders were passed. Though the petitioner's W.A.Nos.1280, 1427 and 1428 of 2022 8 daughter was rank no.1 in the written test and interview, she was not selected. Instead, five other persons of the choice of the managing committee were selected. No period was prescribed for the currency of the ranked list. After about one year, two more persons were selected to the post of Salesman and Peon from the ranked list. The said two vacancies were created illegally by promoting two persons to the post of Attender, who do not possess sufficient qualification by way of length of service in the feeder category. No orders were passed in Ext.P3 representation of the petitioner. It was in such state of affairs that the instant notification [Ext.P6] was published in Mathrubhumi daily dated 18.08.2019. According to the petitioner, the same _modus operandi,_ as was done pursuant to Exts.P1 and P2 notifications, is being followed. On such premise, the Writ Petition was filed _inter alia_ seeking a writ of certiorari to quash Ext.P6 notification, as also, for a mandamus to take a final decision on Ext.P3 representation of the petitioner. W.A.Nos.1280, 1427 and 1428 of 2022 9 **4.** In respect of this challenge, the learned Single Judge, in the impugned judgment, directed the Joint Registrar of Co-operative Societies to consider and pass orders in Ext.P3 complaint, after adverting to Ext.P4 report and after affording an opportunity of being heard to both the parties, within a period of three months. **5.** In W.P(C).No.17652 of 2020 (from which Writ Appeal No.1427 of 2022 arose), the same allegations of appointments being made based on political affiliation is repeated. Corruption and nepotism were alleged. Posts are not being filled up by direct recruitment through the Co-operative Examination Board was another contention. Instead, party members, or such other persons chosen by the managing committee, are being appointed. One of the specific contentions was that, in **Bindu C.** v. **Joint Registrar of Co-operative** **Societies and Others** [2019(4) KLT SN 28 (C.No.44)], the learned Single judge had expressed concern in the directions in a Circular (No.79/2011 dated 09.11.2011) W.A.Nos.1280, 1427 and 1428 of 2022 10 issued by the Government regarding conduct of examinations for appointment to Co-operative Societies. The learned Single Judge had opined that the mere prescription of conducting examinations through 'Outside Agencies' and 'Individuals' give an unlimited latitude to the Societies and it would be in the interest of transparency that the Government or the Registrar empanel such agencies/individuals; which observation was accepted and a list of agencies/individuals are now being published periodically. _Dehors_ such stipulation, the 6[th] respondent chosen by the Co-operative Bank was not empaneled is the contention. It was further alleged that the 6[th] respondent is a member of the area committee of CPI(M), Ayarkunnam. The petitioner was a candidate, who applied for the posts vide the instant notification, marked as Ext.P2 in the said Writ Petition. Although she attended the written test, she was not called for the interview. The result of the test was not informed. The names of six persons have been specifically pleaded, as persons already fixed to W.A.Nos.1280, 1427 and 1428 of 2022 11 be selected for appointment, all of whom having political nexus with CPI(M), or organizations affiliated to it. On such premise, the petitioner _inter alia_ sought for issuance of a Writ of certiorari quashing the notification. **6.** In W.P(C).No.30458 of 2019 (from which W.A.No.1428 of 2022 arose) also, the same set of allegations of corruption and nepotism leading to appointments being made on political considerations were made. Instead of filling up the posts of Clerks through an examination conducted by the Co-operative Examination Board, the society is promoting persons from the category of Watcher to the post of Clerk. According to the petitioner, the post of Watchman is not the feeder category for such promotion, with the result, qualified persons are not being appointed; instead, party persons and those who are affiliated to the party are being appointed. The individual appointed for conducting written examination is a member of the area committee of the CPI(M), Ayarkunnam. The names of certain persons are also W.A.Nos.1280, 1427 and 1428 of 2022 12 repeated in this Writ Petition, as those who have been chosen and identified for appointment. Petitioner preferred Ext.P2 representation to the first respondent/Joint Registrar who asked the petitioner to produce evidence in support of the allegation of corruption. On such premise, the selection process was challenged in this Writ Petition as well. **7.** Refuting the above allegations, the Service Co-operative Bank preferred counter affidavits in W.P(C).Nos.30458 of 2019 and 30634 of 2019. However, no counter affidavit is seen filed in W.P(C).No.17652 of 2020, wherein, the illegality of the external agency/individual, having not being empaneled by the Government, is specifically seen raised. **8.** The submission of the learned counsel for the appellant is centered around a narrow compass, that is to say, the selection process should not be set aside _in toto_ , but should be permitted to continue from the point where the selection got vitiated due to the illegality/infirmity found. As regards the allegation that the individual chosen for conducting the written W.A.Nos.1280, 1427 and 1428 of 2022 13 examination having not been empaneled, learned counsel would admit that Sri.M.M. Gopalakrishnan [6[th] respondent in W.P(C).No.17652 of 2020] has not been empaneled, although, the institution where he works has been empaneled. Learned counsel would agree that the appointment of the 6[th] respondent, for the purpose of conduct of examinations is not in congruence with the directions in **Bindu C.** _supra_ . According to the learned counsel, if the said infirmity, which weighed with the learned Single Judge, is upheld by this Court, the appellant/bank may be permitted to proceed with the selection process from that point where the selection got vitiated, instead of setting aside the whole selection process. Learned counsel submitted that the appellant Bank will proceed with the selection by appointing an external agency/individual, duly empaneled by the Government. Learned counsel pointed out that, if the selection process is set aside as a whole, certain candidates who stood eligible as on the date of the instant notification of the year 2019 may have become ineligible in terms of W.A.Nos.1280, 1427 and 1428 of 2022 14 age, thus depriving them an opportunity to participate in the selection. **9.** Although the submission was not seriously opposed by the learned counsel for the contesting respondents (writ petitioners), it was pointed out that, this Court could permit those candidates who applied earlier and those persons who might have become eligible subsequently, thus enlarging the source of recruitment and enabling the society to have the best candidate appointed. **10.** Having heard the learned counsel on both sides we are of the opinion that there is nothing to be disturbed, in the decision of the learned Single Judge, in **Bindu C.** [2019(4)KLTSN28 (C.No.44)]; which does not issue any specific directions. The learned Single Judge merely made an observation regarding empanelment, which the Government accepted and we find no reason to fault the said course; the end result being more transparency. On the other short question, this Court is of the opinion that the course suggested by the learned counsel for the appellant is to be W.A.Nos.1280, 1427 and 1428 of 2022 15 endorsed. This Court finds that the candidates who have applied for selection pursuant to Ext.P1 notification of the year 2019, in terms of their eligibility, have a vested right to limit the competition by and between themselves, without being compelled to compete with new applicants if the selection procedure is to be commenced _de novo_ . As pointed out by the learned counsel for the appellant, if some of such candidates have become ineligible to apply in terms of age or otherwise, the same would jeopardize their interests seriously, thereby perpetrating injustice. Per contra, candidates who were not eligible as on the date of the instant notification of the year 2019, have no vested right to apply for the vacancies, which were identified and selection procedure begun in the year 2019. Law cannot contemplate that an illegal selection procedure adopted should enure as a boon to such candidates, who stood ineligible at the time of commencement of selection. As regards the right to limit the competition between eligible candidates, this Court W.A.Nos.1280, 1427 and 1428 of 2022 16 garners strength from the observations made by the Honourable Supreme Court in **Umesh Chandra Shukla** v. **Union of India and Others** [1985(3) SCC 721]. In that case, the candidates who stood eligible in terms of the notification, have been compelled to compete with those persons who stood ineligible originally, but were made eligible by grant of grace marks as moderation. The following observations are apposite and extracted herein below: “The area of competition which the 27 candidates who had been declared as candidates eligible to appear at the Viva Voce examination before such moderation has to face became enlarged as they had to compete also against those who had not been so qualified according to the Rules. The candidates who appear at the examination under the Delhi Judicial Service Rules acquire a right immediately after their names are included in the list prepared under Rule 16 of the Rules which limits the scope of competition and that right cannot be defeated by enlarging the said list by inclusion of certain other candidates who were otherwise ineligible, by adding extra W.A.Nos.1280, 1427 and 1428 of 2022 17 marks by way of moderation.” **11.** In the light of the above discussion, this Court concludes that, from the point where the selection got vitiated, the selection procedure can continue by appointing an external agency/individual, who has been duly empaneled by the Government. The judgment in the Writ Petitions would stand modified to that effect. **12.** As regards the third relief [sl.no.(C)] granted by the learned Single Judge pertaining to W.P(C).No.30634 of 2019, we sustain the direction to the jurisdictional Joint Registrar of Co-operative Societies. **13.** Finally, learned counsel for the petitioner in W.P(C).No.30634 of 2019 [Writ Appeal No.1280 of 2022] submitted that the mandate in Rule 185(10) of the Co-operative Societies Rules to maintain the ratio of 1:4 in the matter of appointment of Clerks is violated by the Co-operative Bank. Specific allegation has been raised not merely in the Writ Petition above referred, W.A.Nos.1280, 1427 and 1428 of 2022 18 but also in other Writ Petitions that the Co-operative Bank is not resorting to the method of direct recruitment by the Co-operative Examination Board, but was effecting promotion from the posts of Salesman, Peon etc., who are not in the feeder category. The further allegation is that, in the posts of Salesman, Peon etc., persons having affiliation to the political party CPI(M), or who are relatives of the managing committee members are being considered, with the result, members of the general public hardly get any opportunity to contest for an appointment to any posts in the Service Co-operative Bank. Learned counsel invited the attention of this Court to Rule 185 of the Co-operative Societies Rules, specifically to sub-rule 10, which mandates that, substantive vacancies in the posts of Clerk in all primary Co-operative Societies/Banks shall be filled up by promotion and direct recruitment in the ratio 1:4, which mandate is not being followed is the sum and substance of the grievance of the petitioner. **14.** We notice that the contention based on the W.A.Nos.1280, 1427 and 1428 of 2022 19 ratio envisaged in Rule 185(10) of the Rules is neither pleaded in the Writ Petition, nor canvassed before the learned Single Judge. However, we notice that the contention with respect to the illegal promotions being given to the Peons, Watchman etc to the posts of Clerk, thereby depriving an opportunity to the members of the general public is pleaded in so many words in all the Writ Petitions. Therefore, uninfluenced by the niceties of the pleadings, we direct that the mandate under Rule 185(10) of the Rules has to be scrupulously followed by the Kidangoor Service Co-operative Bank Limited in the appointments pursuant to the introduction of sub-rule(10) of Rule 185; i.e, 26-11-2014. We justify this direction on the premise that the same is the law - and nothing but the law - which the Co-operative bank is obliged to comply, _dehors_ any direction from this Court. Besides, such direction only serves public interest in the context of extending equal opportunity in the matter of public employments, as envisaged in Article 16 of the Constitution. W.A.Nos.1280, 1427 and 1428 of 2022 20 Writ Appeals are disposed of with the above observations and directions. Parties to suffer their respective costs. **Sd/-** **K.VINOD CHANDRAN JUDGE** **Sd/-** **C.JAYACHANDRAN** **JUDGE** ``` Sbna/ ```