IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 27TH FEBRUARY 2008 / 8TH PHALGUNA 1929 WP(C).No. 32811 of 2007(F) ----------------------------------------- PETITIONER: -------------------- VINAYAN.B.,S/O.BHASKARAN, VYPOOPARAMBIL HOUSE, VIZHYKKITHODU, KANJIRAPPALLY. BY ADV. SRI.P.V.BABY SRI.R.KIRAN RESPONDENTS: ------------------------- 1. THE KANJIRAPALLY SERVICE CO-OPERATIVE BANK LTD.NO.2061,REPRESENTED BY ITS SECRETARY, KANJIRAPALLY P.O.,KOTTAYAM DISTRICT. 2. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) KOTTAYAM. 3. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM. 4. V.G.JAYAN,VALLIYIL HOUSE, P.O., THAMBALAKKADU, KANJIRAPALLY. 5. THE BOARD OF MANAGEMENT OF THE KANJIRAPALLY SERVICE CO-OPERATIVE BANK LTD.NO.2061, KANJIRAPALLY P.O., KOTTAYAM DISTRICT, REPRESENTED BY ITS PRESIDENT. R1 & R5 BY ADV. SRI.K.K.CHANDRAN PILLAI SRI.SAJI SANKARAN NAIR SRI.SHAJI THOMAS PORKKATTIL SRI.BINU PAUL SRI.T.V.VINU R2 & R3 BY SR.GOVERNMENT PLEADER SMT. ANU SIVARAMAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.32811/2007 F APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE RECEIPTS FOR THE YEAR 2004-05 AND 2005-06 ISSUED BY THE REGIONAL PROVIDENT FUND COMMISSIONER IN FAVOUR OF THE PETITIONER. EXT.P2: COPY OF THE COMMUNITY CERTIFICATE DTD. 25/07/2007 ISSUED BY THE TAHSILDAR, KANJIRAPALLY. EXT.P3: COPY OF THE NOTICE DTD. 17/09/2007 ISSUED BY THE 1ST RESPONDENT. EXT.P4: COPY OF THE COMPLAINT DTD. 23/10/2007 SENT BY THE PETITIONER TO THE 2ND RESPONDENT. EXT.P5: COPY OF THE COMPLAINT DTD. 23/10/2007 SENT BY THE PETITIONER TO THE 3RD RESPONDENT. EXT.P6: COPY OF THE RECEIPT DTD. 23/10/2007 ISSUED BY THE PROFESSIONAL COUNTER, KANJIRAPALLY FOR HAVING SENT EXT.P4 TO THE 2ND RESPONDENT. EXT.P7: COPY OF THE RECEIPT DTD. 23/10/2007 ISSUED BY THE PROFESSIONAL COURIER, KANJIRAPALLY FOR HAVING SENT EXT.P5 TO THE 3RD RESPONDENT. EXT.P8: COPY OF THE RECEIPT DTD. 23/10/2007 ISSUED BY THE PROFESSIONAL COURIER, KANJIRAPALLY FOR HAVING SENT EXT.P5 TO THE HON'BLE MINISTER FOR CO-OPERATION. EXT.P9: COPY OF THE RANK LIST DTD. 20/09/2007 PREPARED BY THE 1ST RESPONDENT BANK. EXT.P10: COPY OF THE AFFIDAVIT DTD. 23/02/2008 SWORN TO BY C.T.VARKEY. EXT.P11: COPY OF THE AFFIDAVIT DTD. 23/02/2008 SWORN TO BY C.V.SEBASTIAN. Kss ..2/- ...2..... WPC.NO.32811/2007 F 1ST RESPONDENT'S EXHIBITS: EXT.R1(A): COPY OF RANKED LIST OF SC/ST. EXT.R1(B): COPY OF APPOINTMENT ORDER ISSUED TO THE PETITIONER DTD. 20/09/2007. EXT.R1(C): COPY OF REPORT DTD. 16/10/2007 SUBMITTED BY THE SECRETARY. EXT.R1(D): COPY OF RESOLUTION NO.9 DTD. 16/10/2007. EXT.R1(E): COPY OF APPOINTMENT ORDER DTD. 22/10/2007 WITH ENDORSEMENT OF RECEIPT. /TRUE COPY/ P.A.TO JUDGE Kss THOTTATHIL B. RADHAKRISHNAN, J. ------------------------------- W.P(C) No. 32811 OF 2007 ----------------------------------- Dated this the 27th day of February, 2008 JUDGMENT Petitioner, 4th respondent and others, were considered for appointment to one post of attender in the service of the 1st respondent. The written test was conducted by an outside agency. After interview, the petitioner was ranked first and 4th respondent second in the list for Scheduled Caste/Scheduled Tribe candidates. 2. According to the petitioner, without issuing any appointment order to him, the 4th respondent has been appointed. This Writ Petition is filed challenging that. 3. Respondents 1 and 5 have filed a counter affidavit. The 4th respondent also has filed a counter affidavit. 4. Since the entire case has been placed on record, questions as to whether the issue raised is as against a Co- WPC No. 32811 OF 2007 2 operative Society and, therefore, whether a writ would issue and still further, whether the matter falls within the ambit of a dispute which could be resolved by arbitration, are not being gone into in his case. 5. Going by the counter affidavit of the employer, respondent No.1, following Ext.R1(a) rank list, Ext.R1(b) appointment order dt.20.09.07 was issued to the petitioner and he acknowledged the same, by making endorsement to that effect on the reverse of the office copy of Ext.R1(b), on the same day(20.09.07). According to the 1st respondent, the petitioner did not report for duty though in terms of Ext.R1(b) he was obliged to join on 22.09.07. Ext.R1(C) report, was hence made by the Secretary of the Society to the Board of Directors. Considering that report, the Board decided to appoint the 4th respondent. This decision is contained in Ext.R1(d) minutes. Following that, Ext.R1(e) was issued on 22.10.07, and the 4th respondent joined duty. 6. As already noticed, the dispute is as to whether Ext.R1(b) appointment order was served on the petitioner. He does not WPC No. 32811 OF 2007 3 dispute the endorsement on the reverse of Ext.R1(b) which is shown at page No.10 of the counter affidavit filed by respondents 1 &5. His version is that, on 27.09.07, he, accompanied by two persons, went over to the Bank, so that he could join service and the other two could execute security documents in connection with the employment of the petitioner. If he had not obtained the appointment order, there was no purpose for him to go to the society on 27.09.07. If he had obtained Ext.R1(b), the terms thereof do not require any person to stand as surety. All that is required is that the incumbent has to deposit an amount of Rs.2,500/- as security deposit. The very specific case of the petitioner, as discernible from paragraph 3 of the writ petition, is that, on 21.09.07, i.e., the date immediately following the day on which Ext.R1(b) is shown to have been issued, one Sajan Ajanad, a member of the committee of the 1st respondent called the petitioner to come over to a club in Kanjirappally, where that person and one Chandrasekharan Nair and one Pachu along with the Secretary of the Society, who were present there, obtained two papers “written by somebody”, signed by the petitioner in a speedy WPC No. 32811 OF 2007 4 manner without allowing him to go through the said papers. Sajan Ajanad, Chandrasekharan Nair and Pachu against whom allegations as to malicious conduct is raised are not respondents in this writ petition. Be that as it may, it can be straight away noticed that while the specific plea of the petitioner is that he was made to sign on two papers, written by somebody, the reverse of Ext.R1(b) is totally blank, but for the writings that “received the appointment order” and followed by the signature of the petitioner which is not disputed. It can also be noticed that, the petitioner has not made any complaint about the incident which is alleged to have been taken place on 21.09.07, though he says that on the immediate succeeding day, i.e., on 22.09.97 he went to the bank and was not allowed to discharge his duties as a daily rated security personnel, which activity he was carrying on even before he applied for the appointment in question. 7. No rule or any binding direction, instruction or circular by any competent statutory authority is pointed out, which require the employer to notify an incumbent who does not join after receipt of WPC No. 32811 OF 2007 5 appointment order, that alternate appointment would be made. 8. With the materials on record, the court has necessarily to rely on the preponderance of probabilities and the version of the Bank as an institution, necessarily outweighs the case set up by the petitioner. For the aforesaid reasons, this Writ Petition fails and the same is accordingly dismissed. THOTTATHIL B. RADHAKRISHNAN, JUDGE ttb WPC No. 32811 OF 2007 6