IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 22ND AUGUST 2008 / 31ST SRAVANA 1930 WA.No. 1337 of 2007 ------------------------ AGAINST THE JUDGEMENT IN OP.28358/2002 Dated 11/01/2007 .................... APPELLANT: PETITIONER --------------------------- DEEPTHY VIJAYAKUMAR, PALAKKADAN HOUSE, ASHTAMICHIRA, THRISSUR DISTRICT. BY ADV. SRI.DEEPU THANKAN RESPONDENTS: RESPONDENTS ----------------------------------- 1. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, THRISSUR. 2. ASHTAMICHIRA SERVICE CO-OPERATIVE BANK LTD NO.325, ASHTAMICHIRA, THRISSUR DISTRICT, REPRESENTED BY ITS SECRETARY. 3. MANAGING COMMITTEE OF ASHTAMICHIRA SERVICE CO-OPERATIVE BANK LTD.NO.325, ASHTAMICHIRA, THRISSUR DISTRICT, REPRESENTED BY ITS PRESIDENT. 4. INSTITUTE OF MANAGEMENT, GOVERNMENT OF KERALA, TRIVANDRUM, REPRESENTED BY ITS DIRECTOR. 5. P.C.SIVADASAN, JUNIOR CLERK, ASHTAMICHIRA SERVICE CO-OPERATIVE BANK LTD.NO.325, ASHTAMICHIRA POST. 6. SHERLY K.S., JUNIOR CLERK, ASHTAMICHIRA SERVICE CO-OPERATIVE BANK LTD.NO.325, ASHTAMICHIRA POST. 7. K.P.RAJEEVE, JUNIOR CLERK, ASHTAMICHIRA SERVICE CO-OPERATIVE BANK LTD.NO.325, ASHTAMICHIRA POST. R7 BY ADV. SRI.M.H.HANIL KUMAR R2 BY ADV. SRI.P.C.SASIDHARAN SRI.U.BALAGANGADHARAN FOR R7 SRI.N.N.SUGUNAPALAN (SR.) FOR R5,6,8 & 9 SRI.S.SUJIN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 22/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY & THOMAS P.JOSEPH, JJ. ------------------------------------------------------------ W.A.NO: 1337 of 2007 ----------------------------------------------------------- Dated this the 22nd August, 2008. JUDGMENT Koshy, J. This appeal relates to the appointment of Junior clerks in the second respondent Co-operative Bank Ltd. In the year 2001. Appellant was one of the candidates to the above post. She was rank No:III in the written test. Appellant got 94 marks out of 160. Even though she was rank No: III in the written test, after the interview she was placed in Xth rank as she got only 3 marks out of 20 in the interview. It is contended that a candidate/respondent No: 9 who got rank No: 13 in the written test was awarded 20 out of 20 in the interview and 65 marks out of 160 and who was placed as rank No: 5 she was given appointment. The appellant alleges serious irregularities in the conduct of the selection. According to her interview was conducted by the Board members in such a way as to give maximum marks to the persons of their choice. The specific allegation of the appellant is that written test was conducted by an independent agency (Institute of Management in general) and the mark list in the written test was forwarded to the agency in a sealed cover. The management committee opened the sealed cover prior to the interview and after knowing about the marks of each candidates they have conducted the interview which enabled them to give appropriate higher marks in the interview to those of their choice and lesser marks to W.A.No: 1337/ 07 2 others so as to manipulate results. The learned Single Judge in the impugned judgment noticed that minutes book were not produced. Interview was conducted on 25.3.2001. Writ petition was filed only on 21.10.2002. In view of the long delay, without going into the merits of contentions, the writ petition was dismissed on the ground of latches. 2. When the writ appeal was filed, we have called for the records from the Society as well as from the Registrar of Co-operative Societies. Files show that immediately on conducting enquiry there were many complaints and the matter was pending before the Registrar and there was no delay or latches. The Assistant Registrar, on the basis of the complaint, as early as on 11.10.2001 conducted an investigation regarding irregularities. It also refers to Inspector's report dated 8.10.2001. The Assistant Registrar noticed that in view of Section 80B of the Kerala Co-operative Societies Act, no appointment can be made except through Service Co-operative Recruitment Board after 25.1.2001. Here the test was conducted on 18.3.2001. Interview was conducted on 25.3.2001. On the same day rank list was published and on the same day appointment order was issued to rank holders 1 and 2 (they joined the society as junior clerks) and later three others were also appointed on 29.9.2001, even though vacancies notified in the notification was only 2. Further it is stated in the report that a letter allegedly written by Joint Registrar authorising the test was forged letter and the letter dated 30.1.2001 is not issued by the Joint Registrar as recruitment board has already taken charge on 25.1.2001. Thereafter written test can be conducted for 60 vacancies. It is also noticed that on 29.9.2001 another W.A.No: 1337/ 07 3 three persons were appointed. Further it was also stated that as per the circular of the Registrar of Co-operative Societies before conducting selection notifications should be published in two newspapers and it can be seen that Society also decided to publish in two newspapers, Mathrubhoomi and Deshabhimani. But notice was published only in one newspaper without following the provisions of the circular. According to the Assistant Registrar, enough publicity was not given to the notification. It was also noticed that there were corrections and over writing in the rank list and interview marks. After getting clarifications from the Society another report was prepared on 4.12.2001 which reiterates the above irregularities and stated that appointments were bad in view of Section 80B of the Kerala Co-operative Societies Act. It is also stated by the appellant that as per resolution dated 27.3.2001 it was decided to publish notification inviting application for appointment of two junior clerks in Mathrubhoomi and Deshabhimani newspapers. But, even though the matter was decided in 1999 and advertisement was published in Deshabhimani newspaper on 30th March, 1999 (Ext.P1) no steps were taken by the appellant as per the decisions as notified in 1999 and the written test was conducted only on 18.5.2001 after Section 80B came into being. It is also noticed that on the date of interview itself rank list was prepared and appointment orders were issued. It was also noticed that there were corrections of overwriting in the interview, mark list and rank list. It recommended for taking action against the society apart from cancelling the appointments. 3. We have also gone through the rank list. From 50% of the W.A.No: 1337/ 07 4 marks received in the written examination of all the candidates were tabulated as taking 100 marks as the unit. Therefore, marks in the written test is made out of 80 and interview marks is out of 20. Second rank holder got 19 marks out of 20 and 5th rank holder was given 20 marks out of 20 in the interview. One Shri. C.S.Sreekumar was the first rank holder in the written test. He got 51 marks out of 80 in the written test conducted by an independent agency. But he was awarded only one mark in the interview and he was placed as the 8th rank holder. V.P.Elsy was the second rank holder in the written test got 50 out of 80 and she was awarded only one mark in the interview and she was relegated in the 9th position. If, at least 2 marks out of 20 were awarded in the interview she would have been selected. The tabulated statement of marks in the written test as well as in the interview is as follows:- sl. no: Name Mark in the written test Rank after the written test Marks awarded in interview Total mark Rank No: 1 P.C.Sivadasan (R5) 46.5 4 18 64.5 1 2 K.S.Sherly (R6) 35.5 15 19 54.5 2 3 K.P.Rajeev (R1) 43.5 8 10.5 54 3 4 P.M.Haridasan (R8) 41.5 10 12 53.5 4 5 Jiji Anto (R9) 32.5 13 20 52.5 5 6 A.G.Bindhu 44.5 6 7.75 52.25 6 7 Jijo Jose 37 17 15 52 7 8 C.S.Sreekumar 51 1 1 52 8 9 V.P.Elsy 50.5 2 1 51.5 9 10 Deepthi Vijayakumar 47 3 3 50 10 W.A.No: 1337/ 07 5 These facts would reveal that interview was fake. Things speak for itself. Res ipsa liquitor Favouritism shown to candidates can be inferred. Petitioner is rank No:3 in the written test. She is awarded only 3 marks out of 20 in the interview itself is self-speaking. Marks forwarded by the independent agency was perused by the interview board, before interview against the direction in the circular. Thus there is procedural violation also. 4. We have perused the records and the minutes book also. We agree with the Assistant Registrar's report. On 18.3.2001 written test was conducted by the independent agency. Immediately on receipt of the results from the independent agency interview was conducted on 25.3.2001 and on the same day appointment order was issued to two persons and they joined the service on the next day. The other three persons were appointed after four days. When notification was published to select two candidates, five candidates cannot be appointed. 5. The appointment in Co-operative Societies is a public appointment. How the Court should deal with irregular appointments are considered by the Honourable Supreme Court in M.P.State Coop Bank Ltd. Bhopal v. Nanuram Yadav and others {(2007) 8 SCC 264} wherein the Court observed in paragraph 24 as follows:- “It is clear that in the matter of public appointments, the following principles are to be followed:- 1) The appointments made without following the appropriate procedure under the rules/government circulars and without advertisement or inviting applications from the open market would amount to breach of Articles 14 and 16 of the Constitution of India. W.A.No: 1337/ 07 6 2) Regularisation cannot be a mode of appointment. 3) An appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularisation. 4) Those who come by back door should go through that door. 5) No regularisation is permissible in exercise of the statutory power conferred under Article 162 of the Constitution of India if the appointments have been made in contravention of the statutory rules. 6) The court should not exercise its jurisdiction on misplaced sympathy. 7) If the mischief played is so widespread and all pervasive, affecting the result, so as to make it difficulty to pick out the persons who have been unlawfully benefited or wongfully deprived of their selection, it will neither be possible nor necessary to issue individual show-cause notice to each selectee. The only way out would be to cancel the whole selection. 8) when the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place and the entire selection has to be set aside.” 6. The Honourable Supreme Court in Krishan Yadav and another v. State of Haryana and others {AIR 1994 S.C. 2166} held that is process of selection is stinking factum, it is liable to be set aside. Plea of innocence by some of the candidates is liable to be ignored. The Honourable Supreme Court in paragraph 21 held as follows:- “In the above circumstances, what are we to do? The only proper course open to us is to set aside the entire selection. The plea was made that innocent candidates should not be penalised for the misdeeds of others. We are unable to accept this argument. When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place as “Fraud unravels everything.” To put it in other words, the entire W.A.No: 1337/ 07 7 selection is arbitrary. It is that which is faulted and not the individual candidates. Accordingly, we hereby set aside the selection of Taxation Inspectors.” 7. A perusal of the original records as well as the conduct in which the selection was conducted clearly show that the process of selection was conceived in fraud and delivered in decretum. Even though decision was taken for selecting two persons and Ext.P2 notification was published as early as on 9.3.1999 and last date of receipt of application was 12.4.1999 no steps were taken to fill up the post. On the basis of the vacancies that arose subsequent to the notification society cannot appoint three more persons without publishing notification or amendments. It is true that Society may be justified in inviting applications subsequently for three more persons. No such notification was made. As per Ext.P2 only two junior clerks can be appointed. After the inspection of the officer of the society, three of the selected candidates on the apprehension that their selection will be set aside, approached this Court and this Court by Ext.P3 judgment in O.P.3645/02 directed that if an order terminating the petitioners therein is passed it should be communicated to the petitioners so that they can challenge the same. 8. Apart from the procedural irregularities and favourtism granted to certain candidates by giving the higher marks in the interview and giving lowest marks to the written test rank holders and appointing more candidates than that is notified, there is also another patent illegality in the appointment. Section 80B of the Co-operative Societies Act reads as follows:- W.A.No: 1337/ 07 8 “80B. Co-operative Service Examination Board-(1) Notwithstanding anything contained in this Act or the rules or in the bye-laws of any society relating to the recruitment of officers and servants thereof the Government shall, by notification in the Gazette constitute a Co-operative Service Examination Board for the conduct of written examination for all direct recruitment to posts of and above the category of Junior Clerks in the Primary Agricultural Credit Societies, Primary Credit Societies, Urban Co-operative Banks and Primary Agricultural and Rural Development Banks in the State. (2) The Examination Board shall consist of not more than three members and the term of the Board shall be five years. The powers and functions and other conditions of appointment of the members of the Board and the procedures to be followed by the Board for the conduct of examination and the preparation of list of candidates to be interviewed for appointment shall be such as may be prescribed. (3) All appointments shall be made by the committee concerned from the list of candidates after conducting an interview of the candidates and making a select list therefrom in such manner as may be prescribed. (4) Notwithstanding anything contained in sub section (3A) of Section 80 and in sub section (1) of this section, the committee of a society may, with the prior approval of the Registrar, appoint persons who are professionally or technically qualified or persons with experience and expertise to posts requiring such technical or professional qualifications on contract basis or by the method of deputation for such period, but not exceeding five years, as may be specified.” A Division Bench of this Court in Vazhithala Service Co-operative Bank v. The Registrar of Co-operative Societies {2003(2) KLT 653} held that Section 80B is prospective but, after the coming into force of Section 80B the written examination can be conducted only by Co-operative Service Examination Board. 9. Here, examination was conducted after Section 80B came into force in January. The written examination as well as the interview were W.A.No: 1337/ 07 9 conducted only in March 2001. Therefore, the written examination conducted itself was wrong and the entire selection was completely illegal and invalid contrary to statutory mandate. This notification was published in 1999, thereafter Section 80B came into force. In Purushothaman v. Registrar {1996(2) KLT 26} a Division Bench of this Court held that if the selection is not according to the provisions of the Act and rules and selection was made through manipulation or fraud, the persons selected are not even entitled for a notice and that persons who got the orders of appointment by back door should be sent through back door itself. But in this case the selected and appointed persons were made parties to the writ petition and notices were issued and they were heard also. They were also not able to sustain the selection. Even though violation of Section 80B was not mentioned by the petitioner, that was specifically mentioned in the Assistant Registrar's report and when selection is made against the provisions of the statute that has came to the notice of the Court from the files, Court cannot keep silence on the same. 10. It is contended by the selected candidates that they were working and the salary already earned should not be taken back. A similar plea was made before the Supreme Court in Krishna Yadav' s case (supra). The Honourable Supreme Court in paragraph 22 observed as follows:- “22. The effect of setting aside the selection would mean the appointments held by these 96 candidates (including the respondents) will have no right to go to the office. Normally speaking, we should require them to disgorge the benefit of these ill-gotten gains. That means W.A.No: 1337/ 07 10 they will have to repay the entire salary and perks which they have received from the said office. But, here we show a streak of sympathy. For more than 4 years they were enjoying the benefit of “office”. The proper lesson would be learnt by them if their appointments are set aside teaching them that dishonesty could never pay.” 11. Since they were working and society used their services, we are not ordering to recover their salary for the period they have already worked, but their services should be terminated forthwith and further selection shall be conducted as provided under the Act and Rules. Writ appeal is allowed to the above extent. J.B.KOSHY Judge THOMAS P. JOSEPH Judge jj K.K.DENESAN & V. RAMKUMAR, JJ. ---------------------------------------------------- M.F.A.NO: ----------------------------------------------------- JUDGMENT Dated: