Kerala High Court
Vinod M S vs The Registrar Of Co-Operative ... on 12 April, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 12TH DAY OF APRIL 2024 / 23RD CHAITHRA, 1946
WP(C) NO. 4603 OF 2018
PETITIONER:
VINOD M S
S/O. M.V SIVARAJAN,
AGED 34 YEARS,
MEKKANNATHIL MULAMOOTTIL HOUSE,
THANNITHODE, PATHANAMTHITTA-689 699.
BY ADV SRI. PRASAD CHANDRAN
RESPONDENTS:
1 THE REGISTRAR OF CO-OPERATIVE SOCIETIES,
OFFICE OF THE REGISTRAR,
THIRUVANANTHAPURAM-695 001.
2 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES,
PATHANAMTHITTA-689 645.
3 THE THANNITHODE CO-OPERATIVE BANK LTD. NO. Q 364,
THANNITHODE P.O., PATHANAMTHITTA-689 699,
REPRESENTED BY ITS SECRETARY.
4 THE SECRETARY
THE THANNITHODE CO-OPERATIVE BANK LTD. NO. Q 364,
THANNITHODE P.O., PATHANAMTHITTA-689 699.
5 AMBILY P
SALESMAN, THANNITHODE CO-OPERATIVE BANK LTD. NO. Q 364,
THANNITHODE P.O., PATHANAMTHITTA,RESIDING AT PUTHENVEETTIL
HOUSE,(KAMALALYAM), THANNITHODE, PATHANAMTHITTA-689 699.
BY ADV GOVERNMENT PLEADER
SRI.BIMAL.K.NATH, SR.G.P.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
12.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C)No. 4603/2018
2
JUDGMENT
Dated this the 12th day of April, 2024 The present Writ Petition is filed challenging the appointment of the 5th respondent, who was appointed as a salesman in the 3rd respondent-Bank. As per Exhibit P1 notification dated 16.02.2017, the 3rd respondent invited applications for filling up of two vacancies of salesman in the 3rd respondent-Bank. According to the petitioner, the qualification prescribed is pass in VII standard and the candidate should not have obtained Degree.
2. Pursuant to the said notification, the petitioner and the 5th respondent applied and the 5th respondent was selected. The petitioner challenged the said appointment by Exhibit P2 before the Registrar of Co- operative Societies. The prime contention of the petitioner was that the 5th respondent had obtained Graduation and hence her selection cannot be sustained. Petitioner thereafter approached this Court in WP(C) No.35851 of 2017 which was disposed of by Exhibit P3 judgment directing the 2nd respondent to consider WP(C)No. 4603/2018 3 Exhibit P2 representation and pass orders thereon. Petitioner had also submitted a hearing note, which is marked as Exhibit P5.
3. The 2nd respondent in turn by Exhibit P6 order rejected the claim on the ground that the petitioner was not successful in establishing his allegation in Exhibit P2. It is challenging Exhibit P6 that the petitioner has filed this writ petition.
4. I have heard Sri. Prasad Chandran, the learned counsel appearing for the Petitioner. Sri. Bimal K. Nath, learned Senior Government Pleader appearing for respondents 1 & 2.
5. Learned Counsel appearing for the petitioner refers to Exhibit P1, in which it is specifically laid down that the incumbents should have passed VII standard and should not have obtained degree. The learned counsel for the petitioner further submits that the appointment of the 5th respondent is vitiated because she has passed Pre-degree and B.A History. However, a perusal of Exhibit P6 order goes to show that, when the factual WP(C)No. 4603/2018 4 aspects were evaluated by the Registrar of Co-operative Societies after taking evidence, it is concluded that the petitioner was not able to discharge the initial burden of proving that the 5th respondent had passed Pre-degree and Degree and it is for the said reason that the Registrar had declined the representation submitted by the petitioner.
6. The learned counsel for the petitioner further pointed out that the Hon'ble Apex Court in Bedanga Talukdar Vs Saifudaullah Khan and others [(2011) 12 SCC 85] has laid down the principles succinctly that the qualification prescribed in the notification cannot be relaxed unless the power is reserved. Therefore, it is contented that the appointment of the 5th respondent is liable to be interfered.
7. The learned counsel for the petitioner would further urge to this Court to take note of the principles laid down by the Apex Court in paragraph 28 of the above Judgment. According to the learned counsel, the case of the petitioner would be governed by the said WP(C)No. 4603/2018 5 judgment. The learned counsel further submits that the Hon'ble Supreme Court has categorically held that; when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant statutory rules. Even if, power of relaxation is provided in the rules, it must still be mentioned in the advertisement.
8. Relying on the observations of the Hon'ble Supreme Court in Bedanga Talukdar (supra), the learned counsel for the petitioner submits that the action on the 3rd respondent in appointing the 5th Respondent is clearly against the settled terms and conditions of Exhibit P1 notification.
9. At the outset, it may appear that the argument of the learned counsel for the petitioner is correct. However on a close scrutiny, it can be seen that the decision relied on by the petitioner has no application to WP(C)No. 4603/2018 6 the facts on hand. The proposition laid down by the Supreme Court in Bedanga Talukdar (supra) cannot be disputed. However, the pointed question is how far the said decision is applicable to the facts on hand.
10. Admittedly, this is not a case where there is a relaxation in the qualification prescribed under Exhibit P1. On the contrary, the point raised by the petitioner is that the 5th respondent was over qualified and such qualification is prohibited in Exhibit P1 notification. However, I am afraid that the said contention cannot be sustained because the Registrar has already found after evaluating the factual aspects that there is nothing on record to suggest that the 5th respondent had possessed Degree qualification. In fact, the Registrar further goes to hold that the petitioner failed to substantiate his claim under Exhibit P2.
11. The power of judicial review under Article 226 of the Constitution of India is well defined. It need not be elaborated that the High Court cannot dwell upon the factual aspects while exercising the power under Article WP(C)No. 4603/2018 7 226 of the Constitution of India. On a close analysis of the facts, it is seen that except a vague allegation, the petitioner was not able to discharge the initial burden of proof. The court cannot expect the 5th respondent to prove that she is not a graduate. Such a negative burden cannot be cast upon her. The burden would fall on the 5 th respondent only when the petitioner has discharged his burden sufficiently. In the absence of the same, this Court is not persuaded to order this writ petition solely based on the averments contained in Exhibit P2 and in the writ petition.
Accordingly, this Writ Petition is dismissed. No orders as to cost.
Sd/-
EASWARAN S. JUDGE AJ WP(C)No. 4603/2018 8 APPENDIX OF WP(C) 4603/2018 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE NOTIFICATION PUBLISHED BY THE 4TH RESPONDENT REGARDING SELECTION TO THE POST OF SALESMAN.
EXHIBIT P2 TRUE COPY OF THE REPRESENTATION SUBMITTED
BY THE PETITIONER BEFORE THE 1ST
RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE JUDGMENT IN WP(C)NO.
35851 OF 2017 DATED 09-11-2017 OF THIS HON'BLE COURT.
EXHIBIT P4 TRUE COPY OF THE NOTICE FOR HEARING DATED 09-01-2018.
EXHIBIT P5 TRUE COPY OF THE WRITTEN SUBMISSION SUBMITTED BY THE PETITIONER.
EXHIBIT P6 TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT ON 17-01-2018.
RESPONDENTS EXHIBITS NIL