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
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
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
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
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
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
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
