IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931 WA.No. 1134 of 2009 ------------------------------------- AGAINST THE JUDGEMENT IN WPC.26864/2008 Dated 27/05/2009 .................... APPELLANT(S): PETITIONER: ------------------- TINYMOL.J., D/O.JOSEPH C.A., `TINYSADANAM', CHEMMAKKADU P.O., PERINADU, KOLLAM-691 603. BY ADV. SRI.ANCHAL C.VIJAYAN RESPONDENT(S)/RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVT., DEPARTMENT OF CO-OPERATION, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CO-OPERATIVE SERVICE EXAMINATION BOARD, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 3. THE ULIYACOVIL SERVICE CO-OPERATIVE BANK LIMITED NO.Q.1003, ULIYACOVIL, KOLLAM, REPRESENTED BY ITS SECRETARY. R1 BY SPL. GOVT. PLEADER SMT. A.G. ANEETHA R2 BY ADV. SRI. P.V. SHAILAJAN R3 BY ADV. SRI. P.B. SURESH KUMAR THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 10/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. ------------------------------ W.A. No.1134 of 2009 ------------------------------ Dated this, the 10th day of July, 2009 JUDGMENT Balakrishnan Nair, J. The appellant was the writ petitioner. The brief facts of the case are the following: The third respondent bank decided to fill up two vacancies in the cadre of Junior Clerk under it by a resolution dated 7.1.2005. The vacancies were reported to the second respondent, Co-operative Service Examination Board. The Board published Ext.P1 notification dated 16.3.2005 inviting applications for appointment in 58 Co-operative Societies, including the third respondent Bank. The written test was conducted on 28.1.2006. Out of the applicants, 209 candidates who applied for appointment in the third respondent Bank cleared the written test. So, the second respondent forwarded a W.A. No.1134 of 2009 - 2 - list of those candidates to the Society on 4.4.2006. Upon receipt of the said list, the bank by resolution dated 30.6.2006, resolved to hold the interview of the candidates on 12.8.2006, 13.8.2006 and 15.8.2006. While so, two members of the Managing Committee filed a complaint before the Vigilance Department alleging that the members of the second respondent Board took bribe from the candidates from Thrissur and Alappuzha Districts. Soon thereafter, the Managing Committee of the third respondent met on 29.6.2006 and resolved to postpone the interview. Later, the interview was held between 12.11.2007 and 17.12.2007. The marks of the interview were forwarded to the 2nd respondent Board. As directed by the Government, the Board consolidated the marks of the written test and interview and sent the list to the third respondent Society on 9.5.2008. Upon receipt of the consolidated mark list, the bank published the rank list of candidates. A copy of that rank list is produced as Ext.P2. The appellant was rank No.4 in it. Soon thereafter, the Government by Ext.P5 communication withdrew the permission granted to W.A. No.1134 of 2009 - 3 - the second respondent for consolidation of marks and forwarding it to the third respondent, in the light of the report submitted by the Vigilance Department. In view of Ext.P5, the rank list published by the third respondent bank stood cancelled. In the above background, the aggrieved appellant filed the writ petition mainly challenging Ext. P5 and seeking consequential reliefs. She also challenged the fresh notification issued by the second respondent Board as per Ext.P7, inviting applications for appointment to the two vacancies in the third respondent Bank. The learned Single Judge after hearing both sides and taking note of the observations made by this Court in Thiruvalla East Co - operative Bank v. Deputy Registrar, 2008 (4) KLT 220, dismissed the writ petition. In the said decision, this court held that normally the rule should be taken as mandatory and in exceptional circumstances, deviation from the time limit can be permitted. The learned Single Judge took the view that, in the present case, no exceptional circumstances exist warranting permission to the Society to conduct the interview beyond the time limit. Aggrieved, the petitioner has preferred this writ W.A. No.1134 of 2009 - 4 - appeal. 2. The learned counsel for the appellant, Sri.Anchal C. Vijayan, submitted that the decision in Thiruvalla East Co-operative Bank's case (supra) has been reversed by this Court in W.A.No.2160 of 2008 and connected cases. This court has held that the provisions of Rule 182 (4), which stipulate that on receipt of the list from the second respondent Board, the Society should conduct interview and send the interview marks within two months is only directory. Substantial compliance alone is required. There are no circumstances existing, which vitiated the selection or cause prejudice to any of the candidates. There is no such complaint raised by anyone in this case. Therefore, the action of the Government is unjustified. The learned counsel also pointed out that in Ext.P5 impugned order, the only reason given was that the interview was conducted beyond the time limit prescribed. That reason is again reiterated in the counter affidavit filed by the Government. That was not sufficient for taking the action impugned in this writ appeal, it is submitted. Learned counsel W.A. No.1134 of 2009 - 5 - also relied on the decision of the Apex court in Union of India v. Rajesh.P.U., (2003) 7 SCC 285. In the said decision, it was held that cancellation of whole selection list, for the reason that, some of the candidates included in that were the beneficiaries of certain irregularities was unjustified. The cancellation, if at all is required, only to the extent the select list included the candidates benefitted by the irregularities. It was a decision confirming the decision of the Kerala High Court wherein this Court interfered with the decision of Central Administrative Tribunal and took a pragmatic view that the list to the extent vitiated alone need be interfered with. 3. We heard learned Government Pleader and also the learned Standing Counsel for the second respondent. Upon instructions, the learned Standing Counsel for the second respondent submitted that most of the candidates who applied for appointment in the second respondent bank have applied for appointment in other banks covered by Ext.P1 notification. The lists containing the consolidated marks in relation to other W.A. No.1134 of 2009 - 6 - Co-operative Societies were sent by the Board on 21.7.2006. So, with effect from that date, the Managing Committee members of the third respondent Society could have known the marks secured by the candidates in the written test. They held the interview only after that in November and December, 2007. Therefore, the list was cancelled rightly. 4. We considered the rival submissions made at the Bar. The Government proceeded on the footing that the stipulation under Rule 182 (4) (v) prescribing a time limit of two months for holding the interview is mandatory. That is the ground taken in Ext.P5 and also the defence taken in the counter affidavit. This Court in W.A. No.2160 of 2008 held that for violation simpliciter of the time limit, interference may not be warranted, unless prejudice is shown or the selection is vitiated. In this case, admittedly the marks of the candidates who applied for appointment in the third respondent Bank were available in the open market and everyone who wanted could have known it from 21.7.2006. The interview started four months thereafter. So, going by the principles laid down in W.A. No.1134 of 2009 - 7 - W.A.No.2160 of 2008, it has to be presumed that the interview and selection were vitiated. Whether anyone has made a complaint, etc., are totally irrelevant, having regard to the scheme of the Rules as found in the above Writ Appeal. The decision of the Apex Court relied on by the learned counsel for the appellant has no application to the facts of this case. In this case, the entire rank list was prepared based on an interview held long after the marks of the written test were made public. Therefore, the entire selection should be taken as vitiated. In such circumstances, we find no reason to interfere with Ext.P5 and the consequential action taken as per Ext.P7. In the result, the judgment of the learned Single Judge is affirmed, though on a different ground and the Writ Appeal is dismissed. Sd/- K. Balakrishnan Nair, Judge. Sd/- C.T. Ravikumar, Judge. DK. (True copy)