IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 16TH NOVEMBER 2011 / 25TH KARTHIKA 1933 WP(C).No. 15830 of 2011(C) --------------------------------------- PETITIONER: ------------------- V.J.JOSEPH VARANAM, VARANATH HOUSE, PARATHODE P.O., KOTTAYAM DISTRICT. BY ADV. SRI.JOSY ANTONY. RESPONDENTS: ------------------------ 1. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, (KERALA), OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES,THIRUVANANTPURAM, PIN-695 001. 2. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, (GENERAL),KOTTAYAM, OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOTTAYAM - 686 001. 3. THE KOOVAOPPALLY SERVICE CO-OPERATIVE BANK LTD. NO.K-3949, KOOVAPPALLY P.O., KOTTAYAM DISTRICT-686 518. 4. THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVESOCIETIES (GENERAL), KANJIRAPPALLY,KOTTAYAM DISTRICT - 686 518. R1, R2 & R4 BY GOVERNMENT PLEADER SMT. ANITHA RAVINDRAN, R3 BY ADVS. SRI.MOHAN PULIKKAL, SRI.P.C. CHACKO, SMT.MANJU RAJAN, SRI.K.JAYASANKAR (KAPRASSERY), SRI.K.S.ARUN BABU. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.15830/2011-C: APPENDIX PETITIONER'S EXHIBITS:- EXT.P.1: COPY OF THE BALANCE SHEET AS ON 31/03/2011 PUBLISHED IN THE ANNUAL REPORT 2009-10, 2010-11. EXT.P.2: COPY OF THE NOTIFICATION APPEARED IN DEEPIKA DAILY DTD. 22/02/2011. EXT.P.3: COPY OF THE CIRCULAR NO.18/91 (EM(2) 25846/90 DTD. 07/06/1991 ISSUED BY THE R.1. EXT.P.4: COPY OF THE JUDGMENT DTD. 22/07/2010 PASSED BY THIS HONOURABLE COURT IN W.P.(C).NO.2592/2010. RESPONDENTS' EXHIBITS:- EXT.R3.A: COPY OF THE PROFIT & LOSS ACCOUNT AND BALANCE SHEET FOR THE YEAR 2008-09. EXT.R3.B: COPY OF THE PROFIT & LOSS ACCOUNT AND BALANCE SHEET FOR THE YEAR 2009-10. EXT.R3.C: COPY OF THE PROFIT & LOSS ACCOUNT AND BALANCE SHEET FOR THE YEAR 2010-11. EXT.R3.D: COPY OF THE ORDER DTD. 1/07/2004 OF THE R.2. EXT.R3.E: COPY OF THE LETTER DTD. 28/05/2011 BY THE PRESIDENT OF THE BANK TO THE PRINCIPAL, ST. THOMAS COLLEGE, RANNI. EXT.R3.F: COPY OF THE LETTER DTD. 01/06/2011 FROM THE PRINCIPAL, ST. THOMAS COLLEGE, RANNI TO THE PRESIDENT OF THE BANK. EXT.R5.A: COPY OF THE IDENTITY CARD DTD. 02/06/2011 ISSUED BY THE R.3. TO THE R.5. EXT.R5.B: COPY OF THE COMPLAINT DTD 14/06/2011 FILED BY SHIJU.P.MATHEW. //TRUE COPY// P.S. TO JUDGE Prv. P.N.RAVINDRAN, J. ----------------------------------------- W.P(C).No.15830 of 2011 ----------------------------------------- Dated this the 16th day of November, 2011 JUDGMENT The petitioner, a member of the third respondent co- operative society, has filed this writ petition challenging the steps taken by the third respondent society to fill up one post each of Attender, Salesman and Peon. The brief facts of the case are as follows:- 2. By Ext.P2 notification dated 19.2.2011 published in the Deepika daily dated 22.2.2011, the Secretary of the third respondent society invited applications from eligible persons for appointment to one post of Attender, one post of salesman and one post of Peon. The last date stipulated for submission of applications was 4.3.2011. This writ petition is filed contending that contrary to the stipulations in Ext.P3 circular dated 7.6.1991 issued by the Registrar of Co-operative Societies and the law laid down by this Court in Ext.P4 judgment in W.P.(C)No.2492 of 2010, the third respondent society has appointed an individual to W.P(C).No.15830 of 2011 -:2:- conduct the written test and interview. It is contended that as the examination is proposed to be conducted by an individual ignoring Ext.P3 circular and in violation of the law laid down by this Court in Ext.P4 judgment, the entire selection process is liable to be invalidated. The petitioner has also raised a contention that the second respondent should not have granted permission to fill up the vacancies ignoring the poor financial position of the bank. 3. The third respondent has filed a counter affidavit resisting the writ petition. In paragraph 6 thereof, after denying the averment that the bank has appointed an individual to conduct the written test and the interview, the third respondent has stated that the bank approached the Principal of St.Thomas College, Ranni with a request that the Commerce Department of the College may take up the task of holding the written test and thereupon the Principal of the College entrusted the work of holding the written test with the Commerce Department of the College. It is stated that accordingly a written test was conducted on 15.6.2011 in which 61 candidates aspiring for appointment as Attender, 31 candidates aspiring for appointment as Salesman and W.P(C).No.15830 of 2011 -:3:- 48 candidates aspiring for appointment to the post of Peon appeared, that an interview of the candidates was scheduled to be held on 16.6.2011, but in view of the interim order passed by this Court on 16.6.2011 the interview was not conducted. It is also stated that the result of the written test conducted on 15.6.2011 has not so far been published. The counter affidavit proceeds to state that the entrustment of the written test with St.Thomas College, Ranni, cannot by any stretch of imagination be said to be entrustment to an individual. 4. Ms.Linta V.Stephen, one among the candidates who appeared for the written test held on 15.6.2011, has filed an application seeking impleadment as additional fifth respondent in the writ petition, contending inter alia that as the identity of the outside agency has now been made known, no purpose will be served by conducting the written test and interview. It is also stated that the Managing Committee has taken a decision to appoint Sri.Jobin James, son of Sri.James Joseph, former Vice President of the third respondent bank as Peon and for that purpose Sri.James Joseph resigned from the post of Vice W.P(C).No.15830 of 2011 -:4:- President, that Mrs.Joswin T.Tom, daughter-in-law of the President of Ponkunnam Service Sahakarana Bank is proposed to be appointed and that Ms.K.M.Reena, sister of the President of the third respondent bank, is also going to be appointed. However, it is not stated as against which post Mrs.Joswin T.Tom and Ms.K.M.Reena are going to be appointed. The source of information on the basis on which such an averment was made is also not disclosed in the affidavit. 5. I heard Sri.Josy Antony, learned counsel appearing for the petitioner, Smt.Anitha Ravindran, learned Government Pleader appearing for respondents 1, 2 and 4, Sri.Mohan Pulickal, learned counsel appearing for the third respondent and Sri.P.C.Chacko, learned counsel appearing for the additional fifth respondent proposed to be impleaded. During the course of arguments, Sri.P.C.Chacko, learned counsel appearing for the applicant seeking impleadment as additional fifth respondent submitted that the proposed additional fifth respondent is not pursuing the application for impleadment and therefore, the said application may be dismissed reserving liberty with her to challenge the W.P(C).No.15830 of 2011 -:5:- selection process in other appropriate proceedings. Sri.Josy Antony learned counsel appearing for the petitioner contended that St.Thomas College, Ranni, cannot be said to be an outside agency within the meaning of the said term occurring in Ext.P3 circular as interpreted by this Court in Ext.P4 judgment and therefore, the entire process is liable to be invalidated. Per contra, Sri.Mohan Pulickal, learned counsel appearing for the third respondent submitted, referring to the averments in paragraph 6 of the writ petition, that the only case put forward by the petitioner is that an individual has been appointed to conduct the written examination and interview and that the petitioner has not pleaded that St.Thomas College, Ranni is not a reputed outside agency. The learned counsel for the third respondent contended that even if an outside agency other than St.Thomas College, Ranni, is entrusted with the task of conducting a written test, the letter requesting that organization to conduct the written test will have to be addressed to one of its office bearers and therefore, the mere fact that a letter was sent to the Principal of the College requesting him to hold a test and he entrusted the task of W.P(C).No.15830 of 2011 -:6:- conducting the written test with the Commerce Department of the College does not mean that the written test was conducted by an individual and not by a reputed outside agency. 6 I have considered the submissions made at the Bar by the learned counsel appearing on either side. The relevant averments in the writ petition as regards the illegality in conducting the written test and interview are in paragraph 6 thereof which reads as follows:- “6. It is submitted that the 3 rd respondent appointed an individual to conduct the examination and interview. 3rd respondent decided to conduct the examination on 15.6.2011 and the interview on the very next day i.e. 16.6.2011. It is very clearly stated in circular No.18/91 (EM(2)25846/90 dated 7.6.1991 issued by the first respondent, copy of which is produced herewith and marked as Exhibit P3, that written test can only be conducted by an outside agency. Hence, the very conduct of the 3rd respondent is highly illegal and with malafide intention to prepare a ranked list according to their choice. In an identical case, this Hon'ble Court was pleased to set aside the notification and further steps taken thereon by judgment dated 22.7.2010 W.P(C).No.15830 of 2011 -:7:- in W.P.(C)No.2592/2010, a true copy of which is produced herewith and marked as Exhibit P4. Relevant portion of Ext.P4 judgment is reproduced here below:- “Therefore, what is meant by an outside agency is not any organization that is formed by retired employees of the co- operative department but agencies of repute involved in the matter of conducting such examination and selection procedures. The Institute of Co- operative management or the Productivity Council are some other such reputed agency is what is contemplated by Ext.P3 circular. The object of the provision being to ensure fairness in the selection process, it is necessary that the same is conducted by an independent agency of repute that would not succumb to the influence of either the members of the Managing Committee or the persons in power. Such an agency of repute is what is contemplated by the expression 'outside agency'.” In the instant case, it is learnt that the 3rd respondent has entrusted the task of conducting W.P(C).No.15830 of 2011 -:8:- the written test with an individual that too, ignoring the dictum laid down by this Hon'ble Court in Ext.P4 judgment. Therefore, the entire steps taken for the selection by the 3 rd respondent is unlawful, arbitrary and unsustainable.” (emphasis supplied) 7. From a reading of the writ petition it is evident that the writ petitioner, who is a member of the third respondent society, has proceeded on the basis that the written test is being conducted by an individual. He has not contended in the writ petition that St.Thomas College, Ranni, is not a reputed outside agency. All that Ext.P3 circular dated 7.6.1991 stipulates that the written test shall be conducted by an outside agency. This Court interpreting the aforesaid provision held in Ext.P4 judgment that what is meant by an outside agency is not an organization that is formed by retired employees of the co-operation department, but agencies of repute involved in the matter of conducting such an examination and selection procedures and that the Institute of Co- operative Management or the Productivity Council or some other reputed agency is what is contemplated by Ext.P3 circular. This W.P(C).No.15830 of 2011 -:9:- Court did not by the said judgment mean to limit the outside agencies which can be called upon to conduct the written test. The examples given by this Court are only illustrative. St.Thomas College, Ranni is a college affiliated to the Mahatma Gandhi University. Besides internal examinations, it also conducts University examinations for its students. As per Chapter 45 of the Mahatma Gandhi University First Statutes, 1991, the Principal of the College and the Head of the Department of Commerce are members of the selection committee constituted to appoint teachers in the Department of Commerce. It cannot therefore, be said that the Principal of the St.Thomas College and the Head of the Commerce Department are not familiar with selection procedures. It cannot also be said that a college affiliated to the Mahatma Gandhi University is not an outside agency of repute. I therefore, find no merit in the contention raised in the writ petition that an individual has been engaged to conduct the written test. As regards the interview, the petitioner has not produced any material to show that the interview will not be conducted by the Managing Committee of the third respondent society. In fact W.P(C).No.15830 of 2011 -:10:- there is no averment to that effect in the writ petition. I accordingly hold that there is no merit in the writ petition. The writ petition fails and it is dismissed. No costs. P.N.RAVINDRAN, Judge. ahg. W.P(C).No.15830 of 2011 -:11:- Shortly after judgment was delivered in open court on 16.11.2011 dismissing this writ petition, Sri.P.N.Mohanan, learned Advocate and Author, brought to my notice Circular No.79/2011 dated 9.11.2011 issued by the Registrar of Co-operative Societies, whereby the Registrar of Co-operative Societies modified the procedure for appointment of employees in co-operative institutions. Paragraph 4(c) thereof reads as follows:- “4. (c) The written test shall be conducted by an outside agency having expertise or knowledge or experience in the field of co-operation, which may also include individuals.” I therefore, suo motu posted this writ petition for being spoken to, today. Copies of the aforesaid circular were furnished to the learned counsel appearing on both sides. Arguments were heard on the question whether Circular No.79 of 2011 has any bearing on the issue raised in this writ petition. The learned counsel appearing on both sides submitted that as the circular was issued only on 9.11.2011 and the written test in the instant case was held before it was issued, the circular, which has only prospective W.P(C).No.15830 of 2011 -:12:- operation, cannot apply. In such circumstances, no modification is required in the judgment delivered on 16.11.2011 dismissing the writ petition. 18th November, 2011. P.N.RAVINDRAN, Judge. ahg. P.N.RAVINDRAN, J. --------------------------- W.P(C).No.15830 of 2011 ---------------------------- JUDGMENT 16th November, 2011