IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1337 of 2007()
1. DEEPTHY VIJAYAKUMAR,
... Petitioner
Vs
1. JOINT REGISTRAR OF CO-OPERATIVE
... Respondent
2. ASHTAMICHIRA SERVICE CO-OPERATIVE
3. MANAGING COMMITTEE OF ASHTAMICHIRA
4. INSTITUTE OF MANAGEMENT,
5. P.C.SIVADASAN,
6. SHERLY K.S.,
7. K.P.RAJEEVE,
For Petitioner :SRI.DEEPU THANKAN
For Respondent :SRI.M.H.HANIL KUMAR
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :22/08/2008
O R D E R
J.B. KOSHY & THOMAS P.JOSEPH, JJ.
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W.A.NO: 1337 of 2007
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Dated this the 22nd August, 2008.
JUDGMENT
Koshy, J.
This appeal relates to the appointment of Junior clerks in the
second respondent Co-operative Bank Ltd. In the year 2001. Appellant
was one of the candidates to the above post. She was rank No:III in the
written test. Appellant got 94 marks out of 160. Even though she was
rank No: III in the written test, after the interview she was placed in Xth
rank as she got only 3 marks out of 20 in the interview. It is contended
that a candidate/respondent No: 9 who got rank No: 13 in the written
test was awarded 20 out of 20 in the interview and 65 marks out of 160
and who was placed as rank No: 5 she was given appointment. The
appellant alleges serious irregularities in the conduct of the selection.
According to her interview was conducted by the Board members in such
a way as to give maximum marks to the persons of their choice. The
specific allegation of the appellant is that written test was conducted by
an independent agency (Institute of Management in general) and the
mark list in the written test was forwarded to the agency in a sealed
cover. The management committee opened the sealed cover prior to the
interview and after knowing about the marks of each candidates they
have conducted the interview which enabled them to give appropriate
higher marks in the interview to those of their choice and lesser marks to
W.A.No: 1337/ 07 2
others so as to manipulate results. The learned Single Judge in the
impugned judgment noticed that minutes book were not produced.
Interview was conducted on 25.3.2001. Writ petition was filed only on
21.10.2002. In view of the long delay, without going into the merits of
contentions, the writ petition was dismissed on the ground of latches.
2. When the writ appeal was filed, we have called for the records
from the Society as well as from the Registrar of Co-operative Societies.
Files show that immediately on conducting enquiry there were many
complaints and the matter was pending before the Registrar and there
was no delay or latches. The Assistant Registrar, on the basis of the
complaint, as early as on 11.10.2001 conducted an investigation
regarding irregularities. It also refers to Inspector’s report dated
8.10.2001. The Assistant Registrar noticed that in view of Section 80B of
the Kerala Co-operative Societies Act, no appointment can be made
except through Service Co-operative Recruitment Board after 25.1.2001.
Here the test was conducted on 18.3.2001. Interview was conducted on
25.3.2001. On the same day rank list was published and on the same
day appointment order was issued to rank holders 1 and 2 (they joined
the society as junior clerks) and later three others were also appointed
on 29.9.2001, even though vacancies notified in the notification was only
2. Further it is stated in the report that a letter allegedly written by Joint
Registrar authorising the test was forged letter and the letter dated
30.1.2001 is not issued by the Joint Registrar as recruitment board has
already taken charge on 25.1.2001. Thereafter written test can be
conducted for 60 vacancies. It is also noticed that on 29.9.2001 another
W.A.No: 1337/ 07 3
three persons were appointed. Further it was also stated that as per the
circular of the Registrar of Co-operative Societies before conducting
selection notifications should be published in two newspapers and it can
be seen that Society also decided to publish in two newspapers,
Mathrubhoomi and Deshabhimani. But notice was published only in one
newspaper without following the provisions of the circular. According to
the Assistant Registrar, enough publicity was not given to the
notification. It was also noticed that there were corrections and over
writing in the rank list and interview marks. After getting clarifications
from the Society another report was prepared on 4.12.2001 which
reiterates the above irregularities and stated that appointments were bad
in view of Section 80B of the Kerala Co-operative Societies Act. It is also
stated by the appellant that as per resolution dated 27.3.2001 it was
decided to publish notification inviting application for appointment of
two junior clerks in Mathrubhoomi and Deshabhimani newspapers. But,
even though the matter was decided in 1999 and advertisement was
published in Deshabhimani newspaper on 30th March, 1999 (Ext.P1) no
steps were taken by the appellant as per the decisions as notified in
1999 and the written test was conducted only on 18.5.2001 after Section
80B came into being. It is also noticed that on the date of interview itself
rank list was prepared and appointment orders were issued. It was also
noticed that there were corrections of overwriting in the interview, mark
list and rank list. It recommended for taking action against the society
apart from cancelling the appointments.
3. We have also gone through the rank list. From 50% of the
W.A.No: 1337/ 07 4
marks received in the written examination of all the candidates were
tabulated as taking 100 marks as the unit. Therefore, marks in the
written test is made out of 80 and interview marks is out of 20. Second
rank holder got 19 marks out of 20 and 5th rank holder was given 20
marks out of 20 in the interview. One Shri. C.S.Sreekumar was the first
rank holder in the written test. He got 51 marks out of 80 in the written
test conducted by an independent agency. But he was awarded only one
mark in the interview and he was placed as the 8th rank holder. V.P.Elsy
was the second rank holder in the written test got 50 out of 80 and she
was awarded only one mark in the interview and she was relegated in the
9th position. If, at least 2 marks out of 20 were awarded in the interview
she would have been selected. The tabulated statement of marks in the
written test as well as in the interview is as follows:-
sl. Name Mark in Rank after Marks Total Rank
no: the the written awarded in mark No:
written test interview
test
P.C.Sivadasan
1 (R5) 46.5 4 18 64.5 1
2 K.S.Sherly (R6) 35.5 15 19 54.5 2
3 K.P.Rajeev (R1) 43.5 8 10.5 54 3
P.M.Haridasan
4 (R8) 41.5 10 12 53.5 4
5 Jiji Anto (R9) 32.5 13 20 52.5 5
6 A.G.Bindhu 44.5 6 7.75 52.25 6
7 Jijo Jose 37 17 15 52 7
8 C.S.Sreekumar 51 1 1 52 8
9 V.P.Elsy 50.5 2 1 51.5 9
Deepthi
10 Vijayakumar 47 3 3 50 10
W.A.No: 1337/ 07 5
These facts would reveal that interview was fake. Things speak for itself.
Res ipsa liquitor Favouritism shown to candidates can be inferred.
Petitioner is rank No:3 in the written test. She is awarded only 3 marks
out of 20 in the interview itself is self-speaking. Marks forwarded by the
independent agency was perused by the interview board, before interview
against the direction in the circular. Thus there is procedural violation
also.
4. We have perused the records and the minutes book also. We
agree with the Assistant Registrar’s report. On 18.3.2001 written test
was conducted by the independent agency. Immediately on receipt of
the results from the independent agency interview was conducted on
25.3.2001 and on the same day appointment order was issued to two
persons and they joined the service on the next day. The other three
persons were appointed after four days. When notification was published
to select two candidates, five candidates cannot be appointed.
5. The appointment in Co-operative Societies is a public
appointment. How the Court should deal with irregular appointments are
considered by the Honourable Supreme Court in M.P.State Coop Bank
Ltd. Bhopal v. Nanuram Yadav and others {(2007) 8 SCC 264} wherein the
Court observed in paragraph 24 as follows:-
“It is clear that in the matter of public appointments,
the following principles are to be followed:-
1) The appointments made without following the
appropriate procedure under the rules/government circulars
and without advertisement or inviting applications from the
open market would amount to breach of Articles 14 and 16
of the Constitution of India.
W.A.No: 1337/ 07 6
2) Regularisation cannot be a mode of appointment.
3) An appointment made in violation of the mandatory
provisions of the statute and in particular, ignoring the
minimum educational qualification and other essential
qualification would be wholly illegal. Such illegality cannot
be cured by taking recourse to regularisation.
4) Those who come by back door should go through
that door.
5) No regularisation is permissible in exercise of the
statutory power conferred under Article 162 of the
Constitution of India if the appointments have been made in
contravention of the statutory rules.
6) The court should not exercise its jurisdiction on
misplaced sympathy.
7) If the mischief played is so widespread and all
pervasive, affecting the result, so as to make it difficulty to
pick out the persons who have been unlawfully benefited or
wongfully deprived of their selection, it will neither be
possible nor necessary to issue individual show-cause notice
to each selectee. The only way out would be to cancel the
whole selection.
8) when the entire selection is stinking, conceived in
fraud and delivered in deceit, individual innocence has no
place and the entire selection has to be set aside.”
6. The Honourable Supreme Court in Krishan Yadav and another v.
State of Haryana and others {AIR 1994 S.C. 2166} held that is process of
selection is stinking factum, it is liable to be set aside. Plea of innocence
by some of the candidates is liable to be ignored. The Honourable
Supreme Court in paragraph 21 held as follows:-
“In the above circumstances, what are we to do? The
only proper course open to us is to set aside the entire
selection. The plea was made that innocent candidates
should not be penalised for the misdeeds of others. We
are unable to accept this argument. When the entire
selection is stinking, conceived in fraud and delivered in
deceit, individual innocence has no place as “Fraud
unravels everything.” To put it in other words, the entireW.A.No: 1337/ 07 7
selection is arbitrary. It is that which is faulted and not the
individual candidates. Accordingly, we hereby set aside the
selection of Taxation Inspectors.”
7. A perusal of the original records as well as the conduct in which
the selection was conducted clearly show that the process of selection
was conceived in fraud and delivered in decretum. Even though decision
was taken for selecting two persons and Ext.P2 notification was
published as early as on 9.3.1999 and last date of receipt of application
was 12.4.1999 no steps were taken to fill up the post. On the basis of
the vacancies that arose subsequent to the notification society cannot
appoint three more persons without publishing notification or
amendments. It is true that Society may be justified in inviting
applications subsequently for three more persons. No such notification
was made. As per Ext.P2 only two junior clerks can be appointed. After
the inspection of the officer of the society, three of the selected
candidates on the apprehension that their selection will be set aside,
approached this Court and this Court by Ext.P3 judgment in O.P.3645/02
directed that if an order terminating the petitioners therein is passed it
should be communicated to the petitioners so that they can challenge
the same.
8. Apart from the procedural irregularities and favourtism granted
to certain candidates by giving the higher marks in the interview and
giving lowest marks to the written test rank holders and appointing more
candidates than that is notified, there is also another patent illegality in
the appointment. Section 80B of the Co-operative Societies Act reads as
follows:-
W.A.No: 1337/ 07 8
“80B. Co-operative Service Examination Board-(1)
Notwithstanding anything contained in this Act or the rules
or in the bye-laws of any society relating to the recruitment
of officers and servants thereof the Government shall, by
notification in the Gazette constitute a Co-operative Service
Examination Board for the conduct of written examination
for all direct recruitment to posts of and above the category
of Junior Clerks in the Primary Agricultural Credit Societies,
Primary Credit Societies, Urban Co-operative Banks and
Primary Agricultural and Rural Development Banks in the
State.
(2) The Examination Board shall consist of not more
than three members and the term of the Board shall be five
years. The powers and functions and other conditions of
appointment of the members of the Board and the
procedures to be followed by the Board for the conduct of
examination and the preparation of list of candidates to be
interviewed for appointment shall be such as may be
prescribed.
(3) All appointments shall be made by the committee
concerned from the list of candidates after conducting an
interview of the candidates and making a select list
therefrom in such manner as may be prescribed.
(4) Notwithstanding anything contained in sub section
(3A) of Section 80 and in sub section (1) of this section, the
committee of a society may, with the prior approval of the
Registrar, appoint persons who are professionally or
technically qualified or persons with experience and
expertise to posts requiring such technical or professional
qualifications on contract basis or by the method of
deputation for such period, but not exceeding five years, as
may be specified.”
A Division Bench of this Court in Vazhithala Service Co-operative Bank v.
The Registrar of Co-operative Societies {2003(2) KLT 653} held that
Section 80B is prospective but, after the coming into force of Section 80B
the written examination can be conducted only by Co-operative Service
Examination Board.
9. Here, examination was conducted after Section 80B came into
force in January. The written examination as well as the interview were
W.A.No: 1337/ 07 9
conducted only in March 2001. Therefore, the written examination
conducted itself was wrong and the entire selection was completely
illegal and invalid contrary to statutory mandate. This notification was
published in 1999, thereafter Section 80B came into force. In
Purushothaman v. Registrar {1996(2) KLT 26} a Division Bench of this
Court held that if the selection is not according to the provisions of the
Act and rules and selection was made through manipulation or fraud, the
persons selected are not even entitled for a notice and that persons who
got the orders of appointment by back door should be sent through back
door itself. But in this case the selected and appointed persons were
made parties to the writ petition and notices were issued and they were
heard also. They were also not able to sustain the selection. Even
though violation of Section 80B was not mentioned by the petitioner,
that was specifically mentioned in the Assistant Registrar’s report and
when selection is made against the provisions of the statute that has
came to the notice of the Court from the files, Court cannot keep silence
on the same.
10. It is contended by the selected candidates that they were
working and the salary already earned should not be taken back. A
similar plea was made before the Supreme Court in Krishna Yadav’ s case
(supra). The Honourable Supreme Court in paragraph 22 observed as
follows:-
“22. The effect of setting aside the selection would
mean the appointments held by these 96 candidates
(including the respondents) will have no right to go to the
office. Normally speaking, we should require them to
disgorge the benefit of these ill-gotten gains. That meansW.A.No: 1337/ 07 10
they will have to repay the entire salary and perks which they
have received from the said office. But, here we show a
streak of sympathy. For more than 4 years they were
enjoying the benefit of “office”. The proper lesson would be
learnt by them if their appointments are set aside teaching
them that dishonesty could never pay.”
11. Since they were working and society used their services, we are
not ordering to recover their salary for the period they have already
worked, but their services should be terminated forthwith and further
selection shall be conducted as provided under the Act and Rules.
Writ appeal is allowed to the above extent.
J.B.KOSHY
Judge
THOMAS P. JOSEPH
Judge
jj
K.K.DENESAN & V. RAMKUMAR, JJ.
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M.F.A.NO:
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JUDGMENT
Dated: