IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 20TH JULY 2009 / 29TH ASHADHA 1931 WP(C).No. 7138 of 2006(Y) ------------------------------------- PETITIONER: ------------------- THE PRESIDENT, KUNDARA PANCHAYAT SERVICE CO-OP.BANK LTD.NO.401, KUNDARA, KOLLAM. BY ADV. MR.T.R.HARIKUMAR. RESPONDENTS: ------------------------ 1. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOLLAM. 2. C. GEORGEKUTTY, PADINJATTEDATHU VEEDU, KUNDARA P.O., QUILON. 3. THE DISTRICT COLLECTOR, KOLLAM. R1 & R3 BY GOVT. PLEADER MR. K.S. MOHAMMED HASHIM, R2 BY ADV.MR.P.B.SURESH KUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/07/2009,ALONG WITH W.P.(C). NO. 23682 OF 2006,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.7138/2006-Y: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE NOTIFICATION PUBLISHED IN THE MATHRUBHOOMI DAILY DT. 11/02/06. EXT.P.2: COPY OF THE HALL TICKET. EXT.P.3: COPY OF THE ORDER NO. CRP (2) 862/06 DTD. 05/03/2006. EXT.P.4: RELEVANT PAGES OF THE MODEL CODE OF CONDUCT FOR THE GUIDANCE OF POLITICAL PARTIES AND CANDIDATES. EXT.P.5: COPY OF THE ORDER NO. CRP (2)862/05 DTD. 06/05/2006. EXT.P.6: COPY OF THE ORDER NO. CRB (2) 862/2006 DTD. 21/08/2006. EXT.P.7: COPY OF THE NOTICE NO. CRB2/862/2006 DTD. 03/07/2006. EXT.P.8: COPY OF THE MINUTES OF THE MEETING DTD. 07/02/2006. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. ANTONY DOMINIC, J. ================ W.P.(C) NOs. 7138 & 23682 OF 2006 ========================= Dated this the 20th day of July, 2009 J U D G M E N T WP(C) No.7138/06 is filed by the President of the Kundara Panchayat Service Co-operative Bank. WP(C) No.23682/06 is filed by one the candidates, who is affected by the proceedings impugned by the Bank. 2. Facts of the case are that on 7/2/06, the Board of Directors of the Bank passed resolution to fill up two vacancies of Peon-cum-Night Watchman. Notification was issued on 11/2/2006 inviting applications and on receipt of the applications, an outside agency was engaged for conducting the written examination. Accordingly examination was scheduled on 13/3/2006 and hall tickets were issued to the eligible candidates. Ext.P2 is a specimen copy of the hall ticket. 3. At that stage by Ext.P3 proceedings of the Joint Registrar, issued on 5/3/2006, he directed the Bank not to make appointments, in view of the complaints that he had received and also on account of the election that was declared. At that stage WP(C) No.7138/06 was filed by the Bank challenging Ext.P3 WPC 7138 & 23682/06 :2 : direction issued by the Joint Registrar. In the writ petition, they mainly relied on Ext.P4, the model code of conduct published by the Election Commission and contended that conduct of the written test as scheduled, or the appointments to vacant posts in the Bank does not violate Ext.P4. In the writ petition, an interim order was passed by this Court on 10/3/2006, staying Ext.P3 referred to above, but however, clarifying that appointments shall be made only after obtaining orders from this Court. 4. Accordingly, written test was conducted as scheduled and the successful among them were also interviewed by a Sub Committee of the Board of Directors. While so, Ext.P5 order was passed by the Joint Registrar stating that on receipt of the complaints that are mentioned in Ext.P3, the Assistant Registrar was ordered to conduct an enquiry and that in the report that was submitted, no substance was found in the allegations levelled. Producing the said order, the Bank filed IA 6381/06 seeking modification of the order dated 10/3/2006 and enabling them to make appointments. Accordingly, order dated 31/5/2006 was passed by this Court permitting the Bank to make appointments, WPC 7138 & 23682/06 :3 : but however making the same subject to the result of the writ petition. 5. On the strength of the aforesaid order, the Bank passed Ext.P8 resolution dated 3/6/06 and appointments were also made. One of the candidates so appointed is the petitioner in WP(C) No.23682/06. Subsequently, the Joint Registrar issued Ext.P7 notice calling upon the Bank to be present for an enquiry in relation to the appointments that were made. Accordingly, enquiry was conducted and by Ext.P6 order dated 21/8/06, Joint Registrar rescinded Ext.P8 resolution. It is at that stage, WP(C) No.23682/06 was filed by one of the appointees. The Bank also got the writ petition which was already filed, amended, incorporating challenge to Ext.P6 as well. 6. In the writ petition, the contention raised by the counsel for the Bank, duly supported by the counsel for the appointee referred to above, is that Ext.P6 referred to above is against the provisions of Rule 176 of the Co-operative Societies Rules. According to the learned counsel, Rule 176 lays down the parameters within which the power is to be exercised and that the WPC 7138 & 23682/06 :4 : appointments made after a duly completed process of selection fall outside the said rule. It is also their contention that with the amendment to Section 69, w.e.f. 2/1/03, any dispute such as the one relating to the validity of appointments made have to be agitated under Section 69(2)(d) of the Act. Counsel also placed reliance on the judgment of this Court in Prakasini v. Joint Registrar (2006(1) KLT 199). 7. Learned Government Pleader referring to the counter affidavit filed and contended for the position that complaints were received by the Joint Registrar alleging irregularities in the selection process and the appointments that were made. It is stated that on considering the facts in its entirety, the Joint Registrar had every reason to doubt the legality of the selection and the appointments made. According to him, it was therefore that the Joint Registrar issued Ext.P6 order referred to above. On this basis, learned Government Pleader contended that Ext.P6 order is valid and the appointments were rightly invalidated. 8. I have considered the submissions made by both sides. 9. In my view, at this distance of time and on account of WPC 7138 & 23682/06 :5 : the orders that are passed in these writ petitions, the challenge to Ext.P3 order passed by the Joint Registrar does not survive for consideration and the fate of these writ petitions will depend upon the validity or otherwise of Ext.P6 referred to above. A reading of Ext.P6 shows that it makes reference to complaints that were received by the Joint Registrar, copies of which are produced as Ext.R1(B) and (C). In Ext.P6, the Joint Registrar had already rejected the allegations that were levelled against the manner in which the written examination was held by the society on 13/3/2006. Proceeding further, in Ext.P6, the Joint Registrar makes reference to the allegation that the Bank had already decided on the candidates to be appointed and concluded that such allegations cast a doubt on the propriety of the selection that was held by the Bank. It is also stated that the examination was held in the morning of 13/3/2006 and the interview was held in the afternoon and that the rank list was published in the evening. It is stated that there was no justification for this hurried exercise. It is also stated that there was no satisfactory explanation forthcoming from the Bank to justify this hurried WPC 7138 & 23682/06 :6 : conclusion of selection process. 10. Thus, a reading of Ext.P6 in its totality would show that apart from the doubts that are entertained by the Joint Registrar about the manner in which the selection process was concluded by the Bank, there is no positive finding entered by the Joint Registrar of any irregularity that was committed by the Bank in concluding the selection process. It may be true that Joint Registrar is justified in concluding that the selection process was concluded by the Bank in a hurried manner. But, in my view, the haste or hurry by itself, without anything more, cannot invalidate the selection process. In Ext.P6, apart from the haste that is found, nothing else has been found by the Joint Registrar calling for cancellation of appointments that were made by the Society. If that be so, the decision in Ext.P6 rescinding the resolution passed by the Bank to make appointments cannot be sustained. Therefore, Ext.P8 necessarily needs to be invalidated on that account itself. 11. Having regard to this conclusion of mine, I do not think it necessary for me to pronounce on the correctness or otherwise WPC 7138 & 23682/06 :7 : of the contention raised by the petitioners that the Joint Registrar lacks jurisdiction, in as much as according to them, the remedy of the complainants were under Section 69(2)(d) of the Act. In the result, the writ petitions will stand allowed quashing the order dated 21/8/06 passed by the Joint Registrar produced as Ext.P6 in WP(C) NO.7138/06 and Ext.P4 in WP(C) No.23682/06. ANTONY DOMINIC, JUDGE Rp The word “Ext.P8” occurring in the last sentence of paragraph 10 of the common judgment dated 20/7/2009 in WP(C) Nos.7138/2006 and 23682/2006 is corrected as “Ext.P6” as per order dated 21/8/2009 in I.A.No.10180/2009 in WP(C) No.23682/2006. Sd/- Registrar (Judicial)