MULIYAR SERVICE CO Vs. JOINT REGISTRAR OF CO

JUDGEMENT

(1.) This appeal is directed against judgment dated 11.12.2017 passed by the learned Single Judge in W.P.(C).No.24319 of 2017. The petitioner therein is the appellant. It is a Co-operative Society registered under the Kerala Co-operative societies Act, 1969 (for short 'the Act'). The said writ petition was filed seeking quashment of Ext.P1 order dated 17.07.2017 passed by the Joint Registrar of Cooperative Societies (General), Kasaragod, the first respondent. As per the same, the first respondent cancelled the selection process initiated by the Bank under notification dated 22.2.2017 for appointment to the post of Peon-cum-Night Watchman. It was further directed therein to conduct selection afresh in terms of the provisions under the Act and the Kerala Co-operative Societies Rules and also the circulars governing the field. The impugned judgment would reveal that as part of the selection process, a written test was conducted. I.A.No.14813 of 2017 was filed by the writ petitioner seeking permission for conducting interview and to publish the rank list. However, the writ petition itself was taken up for consideration and it ultimately culminated in the impugned judgment. The learned counsel for the appellant contended that a bare perusal of Ext.P1 would reveal that publication of notification in Karaval Evening Daily was not at all assigned as a reason in Ext.P1 by the Joint Registrar. However, the said fact was given much weight by the learned Single Judge as can be seen from the impugned judgment. That apart, it is contended that prior to the passing of Ext.P1 order, no notice was given to the appellant. But, not much weight was given to the aforesaid aspect. In short, it is contended that the impugned judgment upholding Ext.P1 cannot be sustained. It is raising such contentions that this appeal has been preferred.

(2.) We have heard the learned counsel for the appellant and the learned Government Pleader. The Learned Government Pleader submitted that Ext.P1 cannot be said to be illegal warranting interference. The first respondent was constrained to issue Ext.P1 as selection proceedings were resorted to by the appellant bank without giving due regard to the relevant circulars. It is further submitted that in the light of judgment in W.A.No.32/2014 holding Karaval Evening Daily as a newspaper not having wide circulation, the appellant was not justified in making publication of the selection process in the said newspaper. In the light of the judgment in W.A.No.32/2014 and in the light of circular No.79/2011 issued by the Registrar of the Cooperative Societies, the appellant cannot be heard to contend that they have adhered to the requirements regarding publication of notification in circular No.79/2011 dated 9.11.2011. The learned counsel appearing for the appellant submitted that a scanning of Ext.P1 would reveal that this reason was not all assigned in Ext.P1 and therefore, Ext.P1 order cannot be improved by assigning further reasons by way of counter affidavit. A perusal of Ext.P1 would suggest that there is substance in the said contention. But, at the same, one aspect which was given due weight in the impugned judgment cannot be ignored. In paragraph 11 of the impugned judgment, a judgment of a Division Bench of this Court in W.A.No.32 of 2014 dated 9.4.2014 was referred to. As per the said decision, the question whether a newspaper by name Karaval Evening Daily could be treated as a newspaper having wide circulation was considered and it was answered in the negative. The learned counsel for the appellant contended that the Division Bench was dealing with the question whether issuance of notification by Co-operative Election Commission under Rule 35A(3) of the Rules could be sustained on the ground that it was published in a newspaper not having wide circulation. Whatever be the purpose, it is a fact that the conclusion and finding of the Division Bench was that it is not a newspaper having wide circulation. But, one aspect has to be taken into account. Merely because a particular newspaper was not having wide circulation at one given point of time, it cannot be said that subsequently it cannot improve on its circulation. As noticed hereinbefore, the judgment of the Division Bench was on 9.4.2014 and the notification in question was made three years thereafter, to be precise, on 22.2.2017. Whether the newspaper stood improved on its circulation on the relevant date? That aspect was not all taken into account. In such circumstances and more particularly, when that was not all assigned as a reason in Ext.P1, we are of the considered view that it is only just and proper to afford an opportunity to the appellant to appraise the actual state of affairs to the first respondent. That apart, the core contention of the appellant is that before interfering with the selection process initiated as per notification dated 22.2.2017 for appointment to the post of Peon-cum Night Watchman and when as part of selection process, written test was conducted, the appellant should have been put on notice before interfering with the selection process. In short, the contention is that Ext.P1 cannot be sustained for blatant violation of the principles of natural justice. Though a counter affidavit has been filed on behalf of the first respondent, the said specific contention has not been refuted. In other words, the contention that Ext.P1 was issued in violation of the principles of natural justice has not been refuted by the first respondent. For all these reasons, we are of the considered view that in the interest of justice, it is only proper to interfere with Ext.P1 and direct the first respondent to consider the entire issue afresh after affording opportunity to the appellant. Needles to say that if such an opportunity is afforded, the appellant may be able to convince the first respondent that selection process has been initiated after complying with all the procedures including the stipulation regarding publication of notice. A perusal of the impugned judgment would reveal that the learned Single Judge had declined to interfere with Ext.P1, at the instance of the appellant, taking into account the contention raised by the first respondent that notification was not published strictly in accordance with circular No.79/2011. As a matter of fact, nonadherence to the said relevant circular was not at all specifically stated in Ext.P1. Under normal circumstances, we would not have permitted the first respondent even to attempt to sustain Ext.P1 raising such contention. At the same time, we are of the considered view that the judgment of this Court in W.A.No.32/2014 cannot be lightly taken as it gave paramount consideration to maintain purity and fairness in public employment. For all these reasons, we are of the considered view that the impugned judgment requires interference. We are of the considered view that the question whether recruitment process was initiated in accordance with circular No.79/2011 and other relevant provisions under the Act and Rules is also a matter to be looked into reckoning the aforesaid aspects. That apart, on perusing Ext.P1, it is evident that a report of the Assistant Registrar (General), Kasaragod was relied on by the first respondent. Evidently, such a report was submitted after conducting an enquiry, pursuant to a complaint made by one Damodaran Nair on 11.04.2017. The learned Government Pleader submitted that a copy of the same was not furnished. For all these reasons and circumstances, Ext.P1 is set aside. The first respondent is directed to reconsider the entire aspects based on the complaints made by persons referred to in Ext.P1 and report, if any, obtained pursuant thereto. If any report is furnished and the decision was based on such complaints, copies of the said reports shall also be made available to the appellant. Before passing fresh orders on Ext.P1, after affording such copies of reports, if any, the appellant shall also be afforded with an opportunity of being heard. In view of the fact the subject matter pertains to selection process, the first respondent shall pass appropriate orders thereafter as expeditiously as possible. Needless to say that the question whether the appellant could proceed with selection process initiated by the notification dated 22.2.2017 would depend upon the outcome of such decision. Appeal is disposed of, as above.