KISHORE AND ORS Vs. BINU N AND ORS

JUDGEMENT

(1.) W.A.No.313/2010 is filed by respondents 5 to 8 in W.P.(C).No.19594/09. W.A.No.364/2010 is filed by respondents 3 and 4 in the same writ petition. Both of them challenge the judgment of the learned Single Judge in that writ petition. The writ petition arose in the following factual scenario. By Ext.P1 notification dated 5/6/2006 published in Kottayam edition of Deshabhimani daily dated 6/6/2009, appellants in W.A.364/2010 (hereinafter referred to as "the Bank") invited applications for appointment to the post of Attender/Peon. The last date stipulated for submission of applications was 22/6/2009. Pursuant to Ext.P1, applications were received. In the meanwhile, respondents 1 to 3 herein (hereinafter referred to as "the petitioners") filed writ petition challenging Ext.P1 notification on the ground that that notification does not conform to the Kerala Co-operative Societies Rules and the circulars issued under Rule 182(5) thereof. They also allege in the writ petition that the appellants in W.A.313/2010 (hereinafter referred to as "the selected candidates") were going to be appointed pursuant to the notification. After filing the writ petition they appeared for the written test also. The Bank and the selected candidates filed counter affidavit and contested the matter. After hearing both sides, the learned Single Judge came to the conclusion that Ext.P1 notification was not issued in accordance with Ext.P6 circular and the selection process was also not in accordance with Ext.P5 circular issued by the Registrar of Co- operative Societies. Consequently, the learned Single Judge quashed Ext.P1 notification and selection and appointment of the selected candidates directing the Bank to conduct a fresh selection in the manner directed in Ext.P5 circular, after inviting applications in accordance with Ext.P6 circular. Fresh steps were directed to be taken and completed within six months from the date of the judgment. Till completion of fresh selection, the selected candidates were permitted to work on daily wage basis subject to the condition that their initial appointment or such continuance will not confer on them any preference for appointment. That judgment is under challenge in these writ appeals at the instance of the Bank and the selected candidates.

(2.) The first contention taken by the appellants is that the writ petition itself is not maintainable. They would contend that it is settled law that no writ petition under Article 226 of the Constitution of India would lie against a Co-operative Society, which the Bank is. The second contention is that even assuming that a writ petition would lie, this Court should not have entertained the writ petition, since the petitioners have effective alternative remedy under Section 69 of the Kerala Co-operative Societies Act. The appellants would rely on the decisions of this Court in John v. Liquidator, 2006 1 KerLT 11 and A.P.Foods v. S.Samuel and others, 2006 5 SCC 469. It is also submitted that the petitioners are the persons who participated in the selection process and therefore, they cannot turn round and take the contention that the selection process itself is bad. In support of that contention the appellants rely on the decision of the Supreme Court in Ranjith v. Kannur University, 2012 1 KerLT 183. As regards the findings of the learned Single Judge, the counsel for the appellants would take the stand that the directions in the circular are not mandatory in nature, but are only guidelines and unless the petitioners prove prejudice, this Court shall not interfere with the selection process insofar as the petitioners have no case that the Bank was instigated by malafides in the conduct of the selection process. In the above circumstances, they would seek setting aside the judgment of the learned Single Judge and upholding the selection process.

(3.) On the other hand, the learned counsel for the petitioners would submit that there is no absolute law that under no circumstances a writ petition would lie against a Co- operative Society. Relying on the very same decision in John's case relied upon by the counsel for the appellants, the counsel for the petitioners would submit that in that decision a Full Bench of this Court has held that a writ would lie against a Co-operative Society when the duty owned by the Co-operative Society is of a public nature or when there is infringement of any statutory rules by a co-operative society. The contention is that under Rule 182(5) of the Kerala Co-operative Societies Rules, in respect of societies and posts not covered by Section 80(3)(A) and Section 80B of the Kerala Co-operative Societies Act the appointments shall be made by the committee after conducting the written examination and interview as per the the guideline issued by the Registrar. The Government and the Registrar have issued Exts.P3 to P6 guidelines under Rule 182(5) regarding the conduct of examination and interview to the post of Attender/Peon. Ext.P1 notification issued by the Bank is clearly in violation of the guidelines issued as per the circulars relied upon and therefore, there is statutory violation, because of which the writ petition would certainly lie against the Bank is the contention raised. It is also submitted that since appointment to Co-operative Societies are public appointment, the duty of the Co-operative society in the matter of conducting selection to those posts is a public duty. Therefore, in view of the decision of the Full Bench in John's case a writ will lie against the Bank, challenging the selection process initiated by Ext.P1 notification inviting applications, insofar as Ext.P1 notification does not contain details specified in Ext.P1 circular. It is also submitted that the selection process is also vitiated since as per Ext.P5, the written test must have been conducted by an outside agency, whereas, in this case, the committee authorised the President to find out a suitable person to conduct the written test. According to them, it is clearly in violation of the principles laid down by this Court in Mohanan v. State of Kerala and others, 2010 3 ILR(Ker) 776.