IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 20TH MAY 2010 / 30TH VAISAKHA 1932 WP(C).No. 20116 of 2009(H) ------------------------------------ PETITIONER: ----------------------- SURESH K., KALANGOTTUMMEL HOUSE, KAVILUMPARA P.O., KOZHIKODE. BY ADV. SRI.B.S.SWATHY KUMAR RESPONDENTS: ------------------------- 1. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (G), KOZHIKODE. 2. THE MARUTHONKARA PANCHAYATH SERVICE CO-OPERATIVE BANK LTD.NO.D.2461, ADUKKATH P.O., KOZHIKODE, REPRESENTED BY ITS SECRETARY. 3. K.P.SINDHU, PEON, THE MARUTHONKARA PANCHAYATH SERVICE CO-OPERATIVE BANK LTD.NO.D.2461, ADUKKATH P.O., KOZHIKODE. *4. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF CO-OPERATION, THIRUVANANTHAPURAM. ADV. SRI.P.RAVINDRAN, SENIOR ADVOCATE FOR R2 SRI.P.DEEPAK FOR R2 SRI.M.SASINDRAN FOR R3 SMT. NISHA BOSE, GOVERNMENT PLEADER (* ADDL. 4TH RESPONDENT IS IMPLEADED SUO MOTO AS PER THE JUDGMENT DATED 20/5/2010) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 20116 of 2009(H) APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1: TRUE COPY OF THE COMMUNICATION DATED 13/1/2006 OF THE 2ND RESPONDENT. EXHIBIT P2: TRUE COPY OF THE ORDER NO.MPSCB 1/2007 DATED 10/7/2007 OF THE 2ND RESPONDENT. EXHIBIT P3: TRUE COPY OF THE ORDER NO. AEL 577/2008 DATED 17/7/2008 OF THE 1ST RESPONDENT. EXHIBIT P4: TRUE COPY OF THE RLEVANT PAGE OF THE DESPATCH REGISTER OF THE 2ND RESPONDENT. EXHIBIT P5: TRUE COPY OF THE RESOLUTION DATED 21/1/2006 OF THE 2ND RESPONDENT. EXHIBIT P6: TRUE COPY OF THE JUDGMENT IN WP(C) NO.23681/2008 DATED 2/2/2009. EXHIBIT P7: TRUE COPY OF THE COMMUNICATION NO.C/411/09 DATED 22/6/2009. EXHIBIT P8: TRUE COPY OF THE LETTER NO.AEL/1277/2009 DATED 12/6/2009. RESPONDENTS' EXHIBITS: EXHIBIT R2(a): TRUE COPY OF THE MINUTES BOOK SHOWING THE DECISION IN ITEM 33 IN THE AGENDA OF THE MEETING OF THE BOARD OF DIRECTORS ON 24/1/2006. EXHIBIT R2(b): TRUE COPY OF THE APPOINT ORDER OF THE 3RD RESPONDENT DATED 10/7/2007. EXHIBIT R3(a): A TRUE COPY OF THE ORDER DATED 30/7/2009 IN THE REVIEW PETITION. EXHIBIT R3(b): A TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE GOVERNMENT. EXHIBIT R3(c): A TRUE COPY OF THE STAY PETITION DATED 17/8/2009. /TRUE COPY/ P.A.TO JUDGE scm K.T. SANKARAN, J. --------------------------- W.P.(C).No. 20116 of 2009 ----------------------------------- Dated this the 20th day of May, 2010 J U D G M E N T The reliefs prayed for in the writ petition are the following: i. issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents 1 and 2 to implement to the direction in Exhibit P3 order which has been confirmed by Exhibit P6 Judgment and terminate the service of the 3rd respondent as Peon in the 2nd respondent; ii. issue a writ of mandamus or any other appropriate writ, order or direction, directing the 1st respondent to direct 2nd respondent to appoint the petitioner herein as Peon in the 2nd respondent forthwith; iii. issue a writ of mandamus or any other appropriate writ, order or direction, directing the 2nd respondent to appoint the petitioner herein as Peon in the 2nd respondent forthwith; iv. to declare that the petitioner is legally entitled to be appointed as Peon the 2nd respondent and that the 3rd respondent is not entitled to be appointed as a Peon in the 2nd respondent, that her continuance services as Peon is highly illegal, violative of the directions in Exhibit P3 confirmed vide Exhibit P6 and that she is to be removed from service forthwith; v. issue a writ of certiorari or any other appropriate order or direction calling for the records leading to Exhibit P2 and quash the same; W.P.(C).No. 20116 of 2009 2 vi. issue a writ of mandamus or any other appropriate writ, order or direction commanding the 1st respondent to produce the copy of the review petition filed by the 3rd respondent pending before him before this Hon'ble court, declare that the 1st respondent has no jurisdiction to entertain a review petition against Exhibit P3 as per the Act and Rules and especially when Exhibit P3 order has been upheld by this Hon'ble Court vide Exhibit P6 and issue a writ of certiorari or other appropriate order or direction to quash the same; vii. issue such other writ, order or direction, as this Hon'ble Court may deem fit in the fact and circumstance of the case. 2. The second respondent, the Maruthonkara Panchayath Service Co-operative Bank Ltd. invited applications for appointment to the post of Peon as per the notification issued in 2005. The petitioner had applied for the post. She was called for the written test. According to the petitioner, five persons appeared for the written test. Thereafter, on 21/1/2006, an interview was conducted and four persons appeared for the interview. They were (1) Rakhi P.T. (2) Jyothiprasad Jayan K.P. (3) Suresh K (4) Sunila K.C.. According to the petitioner, she was assigned rank No.3 among four persons who attended W.P.(C).No. 20116 of 2009 3 interview. Rakhi P.T. was appointed. It is stated that Jyothiprasad Jayan went abroad. According to the petitioner, he was entitled to be appointed in the vacancy which arose. Instead, Sindhu K.P was appointed as per Exhibit P2 dated 10/7/2007. The petitioner filed W.P.(C)No.813/2008 challenging the appointment of Sindhu. It was contended that Sindhu was appointed overlooking the claim of the petitioner. That Writ Petition was disposed of directing the Joint Registrar of Co-operative Societies, Kozhikode to dispose of the complaint raised by the petitioner within one month from the date of receipt of the copy of the judgment. After hearing all the parties, the Joint Registrar passed Exhibit P3 order dated 17/7/2008 holding that the appointment of Sindhu was illegal. The Joint Registrar arrived at the following findings: 1. In the document showing the names of the persons to whom the hall ticket was issued under certificate of posting, the name of Haris was scored off and the name of K.P. Sindhu was included. 2. In the demand draft appended to the application submitted by the candidate, in the demand draft W.P.(C).No. 20116 of 2009 4 obtained in the name of Haris, the name of Sindhu was interpolated. 3. In the minutes dated 21/1/2006 of the Sub- committee, interpolations were made and the name of Sindhu was included as rank No.2. Number (2) was Jyothiprasad Jayan and his number was changed as No.3. The rank of the petitioner shown as No.3 was changed as No.4 and the rank of Sunila K.C., who was No. 4 was changed as No. 5. 4. There were interpolations in the entries and manipulations in the minutes book. 5. The manipulations of records were made in order to give illegal appointment to Sindhu. 6. Sindhu was illegally appointed and therefore, she is liable to be removed from the post. 3. It would appear that Sindhu filed a review petition before the Joint Registrar. The Joint Registrar dismissed the review petition as per Exhibit R3(a) order dated 30/7/2009. It is submitted that Sindhu has filed Exhibit R3(b) appeal dated W.P.(C).No. 20116 of 2009 5 17/8/2009 before the Government and that appeal is pending. Exhibit R3(c) Stay Petition was also filed by Sindhu in Exhibit R3 (b) appeal. It is submitted that no stay was granted by the Government in Exhibit R3(c) Stay Petition. Before Exhibit R3(b) appeal was filed, Sindhu had approached this Court in W.P(C) No.23681 of 2008 challenging Exhibit P3 order dated 17/7/2008 passed by the Joint Registrar. The Writ Petition was disposed of as per Exhibit P6 judgment. For the sake of convenience, the judgment is extracted below: “The petitioner was appointed as a peon in the second respondent co-operative bank. The third respondent complained against it. Following an enquiry, it was found by the Joint Registrar that there were interpolations in the minutes book. Severe criticism is levelled against the sub committee members and also even regarding the manner of despatch of notices for the interview. Certain postal articles are also alleged as interpolated. These allegations led to a consideration and decision on 17/7/2008. That is the impugned Ext.P9. 2. To exclude the controversies, I required the second respondent to make available its records. A perusal of that will show that the findings in Ext. P9, W.P.(C).No. 20116 of 2009 6 on merits, are not those which could be criticized as wholly unavailable on the records. Under such circumstances, this Court is not to extend its jurisdiction and interfere with the situation on grounds of injustice. Hence, this writ petition is dismissed without prejudice to the right, if any, of the petitioner to seek other reliefs in accordance with law before competent statutory authority." 4. Since no stay was granted in the appeal filed by Sindhu before the Government, naturally Exhibit P3 order passed by the Joint Registrar should have been implemented. But, it was not implemented by the second respondent and there is no explanation for the same. Had there been no appeal filed by Sindhu, naturally most of the reliefs prayed for in the Writ Petition would have been allowed. But, since the appeal is pending against the decision of the Joint Registrar, I think it is proper and just to direct the Government to dispose of the appeal, after affording an opportunity of being heard to all the affected parties, as expeditiously as possible and, at any rate, within a period of two months. W.P.(C).No. 20116 of 2009 7 5. Since, the State of kerala is not a party in the Writ Petition, in the peculiar facts and circumstances of the case, the State of Kerala represented by the Secretary to Government, Department of Co-operation, Thiruvananthapuram is suo moto impleaded as additional 4th respondent. The learned Government Pleader takes notice for the 4th respondent. In the facts and circumstances of the case, the writ petition is disposed of directing the additional 4th respondent to dispose of Exhibit R3(b) appeal dated 17/8/2009 filed by Sindhu K.P., as expeditiously as possible and, at any rate, within two months, after affording an opportunity of being heard to all the affected parties. The petitioner shall forward a copy of the writ petition along with exhibits, counter affidavit and reply affidavit to the additional 4th respondent within a period of two weeks from today along with a copy of the judgment. K.T. SANKARAN, JUDGE scm