Harikrishnan S vs Joint Registrar Of Co-Operative ...
2021 Latest Caselaw 15902 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                THE HONOURABLE MR. JUSTICE SUNIL THOMAS
        MONDAY, THE 2ND DAY OF AUGUST 2021 / 11TH SRAVANA, 1943
                         WP(C) NO. 3671 OF 2020
PETITIONER/S:

            HARIKRISHNAN S.,
            AGED 29 YEARS
            SANADANA MANDIRAM,PERUVELIKKARA, SASTHAMKOTTA,KOLLAM.

            BY ADVS.
            P.N.MOHANAN
            SRI.C.P.SABARI
            SMT.AMRUTHA SURESH



RESPONDENTS:

    1       JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL),
            OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE
            SOCIETIES, KOLLAM - 690 001.

    2       THE KARIMTHOTTUVA SERVICE CO-OPERATIVE BANK
            LTD.NO.2594,
            REPRESENTED BY SECRETARY, KARIMTHOTTUVA P.O. - 690 520,
            KOLLAM DISTRICT.

    3       SMITHA S.,
            VALIAKKIPPALLIL VADAKKATHI, PNAPPETTY, PORUVAZHI P.O.,
            KOLLAM - 690 520.

    4       ANALIKA AJAY,
            ANALIKA, MITHUPILAKKAD WEST, MUTHUPILAKKAD, KOLLAM -
            690 520.

            BY ADVS.
            GOVERNMENT PLEADER
            K.S.ARUNDAS
            SRI.GEORGE POONTHOTTAM (SR.)
            SMT.NISHA GEORGE



OTHER PRESENT:

            SR.GP V.K SUNIL
 W.P.(C) No.3671/2020             2




      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
02.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.3671/2020                      3

                                      JUDGMENT

Petitioner claims to be BBA Graduate with JDC and has passed MBA

from the Bombay University. His father is the President of the second respondent

Society. By Ext.P1 notification dated 25/4/2019 published in Malayala

Manorama, society called for applications to the post of two peons and two

attenders. Petitioner participated in the selection process and came to be

successful and ranked second in the list of the post of attender. One Prince

Thomas was the first rank holder to that post. Two women were selected to the

posts of peons. It seems that the selection was challenged by respondents 3 and

4, who had also participated in the selection process ,by filing W.P.(C)

No.31274/2019. This court by judgment dated 20/11/2019 directed the Joint

Registrar to consider their challenge, which was essentially on the ground that the

father of the petitioner herein had interfered in the selection process and thereby

ensured selection of the petitioner. By Ext.P3 order, the first respondent Joint

Registrar held that. the President of the Society had not disassociated himself from

the selection process, even after knowing that his son was an applicant to the post

of attender. Consequently, the Joint Registrar interdicted the appointment of the

petitioner to the post of attender. This proceeding is under challenge in this writ

petition.

2. Notice was served on respondents 3 and 4 who have not turned up to

contest the proceedings. Heard learned counsel for the petitioner , the learned

counsel for the second respondent society and the learned senior Government

Pleader for the first respondent. It was contended by the petitioner that the

selection process was conducted openly after notification and an independent

agency was entrusted with the job of conducting examination. Interview was

conducted and the President did not participate in the selection process.

3. Supporting the impugned order, learned senior Government Pleader

contended that the authority was justified in arriving at the conclusion and was

competent to pass appropriate orders not only by virtue of the provisions of the

statute but also by directions contained in the judgment referred to in the impugned

proceedings.

4. Learned counsel for the petitioner vehemently challenged the impugned

order on various grounds. It was contended by the learned counsel for the

petitioner that, respondents 3 and 4 who challenged the order themselves were

parties to the selection process and hence they could not challenge the

proceedings, after having participated themselves in the selection process. To

buttress this argument, learned counsel relied on the decision in Sarojakumari D

v. R.Helen Thilakom and Others (2017 (4) KHC 898 (SC). The Supreme Court

held that once a person takes part in the process of selection and is not found fit

for appointment, the said person is estopped from challenging the process of

selection. Admittedly, the petitioner and others have participated in the selection

process and one among them was ranked fourth, much below the petitioner. In the

light of the above contention, appointment of the petitioner is liable to be sustained,

holding that respondents 3 and 4 were not entitled to challenge the selection.

5. The next limb of the argument of the learned counsel for the petitioner

was that, decision was taken against him without giving him a reasonable

opportunity to contest the proceedings. It is true that there is nothing on record to

show that the petitioner herein was a party to the writ proceedings. This court vide

judgment in W.P(C) No.31274/2019, only directed the authority to consider the

representations submitted by respondents 3 and 4 herein. The authority did not

issue notice to the respondent in that writ petition before passing the order adverse

to him. Evidently, the petitioner ought to have been heard, before an order adverse

to him is passed. This is eminently so because, as contended by the learned

counsel for the petitioner, right to be considered for promotion/selection is a

fundamental right. Hon'ble Supreme Court in Union of India and Others v.

Sangram Keshari Nayak((2007) 6 SCC 704) reiterated that selection process

involves effective, purposeful and meaningful consideration. The impugned order is

not sustainable for that reason alone.

6. It is pertinent to note that merely for the reason that father of the

petitioner was the President of the society, it cannot operate as a disqualification

for consideration of his son to any post in the society. The view of the Joint

Registrar was that since the petitioner herein was an applicant,his father ought to

have refrained from the selection process. Records indicate that the committee

had taken a decision to entrust the examination process with an independent

authority prior to the notification. Copy of that decision No.9 dated 24/5/2019 was

produced as Ext.P5. It was decided that towards the vacant post of peons and

attenders, applications were invited and for conducting examination and to evaluate

the answer sheet, an outside agency should be entrusted. Father of the petitioner

was a signatory to that. Thereafter, Ext.P6 decision was taken on 15/7/2019, by

which the view expressed by the father of the petitioner to refrain from the interview

since his son was appearing for the interview was accepted by the Board and a

senior member was nominated as the chairman of the interview board. This clearly

shows that the petitioner's father had completely disassociated himself from the

selection process. This was not considered by the first respndent. The only reason

that petitioner's father was the president of the society ,cannot be a disqualification

for considering the petitioner for interview, if he qualified in the examination. It is

evident that the Joint Registrar did not even attempt to ascertain whether there

was any indication that at any point of time, the father of the petitioner had

exercised his influence in any manner or had got involved in the selection process

in his capacity as the president. In the absence of any such indication and not

even a finding arrived at on that line, the Joint Registrar was throughly unjustified

in arriving at the conclusion that the selection process of the petitioner should be

interdicted, merely because candidate's father was the president of the society.

7. Learned counsel for the petitioner assailed the impugned order on another

proposition also. It was contended by the learned counsel that, the Co-operative

Societies Act and Rules do not confer any authority on the Joint Registrar to

interfere in selection process and pass such orders. As laid down by this court in

Jayarani T.v. Assistant Registrar of Co-operative Societies(2016 (2) KLJ 446),

the society functions through its resolutions and the joint registrar was only

competent to rescind the resolution. The power under Rule 176 can only be

exercised in peculiar situation for rescinding the resolution and not by interdicting

the appointment. Learned counsel for the petitioner drew my attention to the

judgment of the Division Bench of this court in Raveendran v. State of Kerala

(2007 (3) KLT 558), wherein it was held that any dispute arising in connection with

employment of officers and servants of different classes of societies including their

promotion and inter se seniority was to be decided by Arbitration court. I am not

inclined to apply that proposition to the facts of this case, since in this case neither

the petitioner nor the opposite parties are employees of the society and as such

not governed by section 69 of the Co-operative Societies Act. However, I am at a

loss to understand the specific provision of statute under which authority exercised

its jurisdiction.This court in Raveendran's case (supra) held that merely because

the authority is conferred with the jurisdiction to decide an issue, does not confer

jurisdiction to quash the proceedings.

8. Having considered the above facts, the impugned order cannot be legally

sustained on facts as well as on law. Accordingly, the impugned order is liable to

be set aside.

9. In the result, Ext.P3 order is set aside and the society is directed to

proceed to fill up one vacancy of attender in accordance with the selection

process forthwith.

The Writ Petition is allowed as above.

Sd/-

SUNIL THOMAS

Judge

dpk

APPENDIX OF WP(C) 3671/2020

PETITIONER EXHIBITS

EXHIBIT P1 A TRUE COPY OF THE PAPER NOTIFICATION DATED 25/04/2019 PUBLISHED IN MALAYALA MANORAMA DAILY.

EXHIBIT P2              A TRUE COPY OF THE STAFF STRENGTH APPROVED BY
                        THE JOINT REGISTRAR DATED 22/02/2019.

EXHIBIT P3              A TRUE COPY OF THE ORDER DATED 18/01/2020 OF
                        THE JOINT REGISTRAR.

EXHIBIT P4              A TRUE COPY OF THE RESOLUTION NO.1 DATED
                        24.05.2019.

EXHIBIT P5              A TRUE COPY OF THE RESOLUTION NO.9 DATED
                        24.05.2019 0F THE SECOND RESPONDENT BANK.

EXHIBIT P6              A TRUE COPY OF THE PROCEEDINGS OF THE
                        INTERVIEW BOARD DATED 15.07.2019.

EXHIBIT P7              A TRUE COPY OF THE RANK LIST FOR THE POST OF
                        ATTENDER AND PEON.