IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 2160 of 2008()
1. THE JOINT REGISTRAR OF CO-OPERATIVE
... Petitioner
Vs
1. THIRUVALLA EAST CO-OPERATIVE BANK
... Respondent
2. THE DEPUTY REGISTRAR /SECRETARY,
For Petitioner :GOVERNMENT PLEADER
For Respondent :SRI.P.U.SHAILAJAN,SC,CO-OP.SERVICE EXAM
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :19/06/2009
O R D E R
"CR"
K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ.
----------------------------------------
W.A. Nos.2160 OF 2008,
184, 255, & 256 OF 2009
----------------------------------------
Dated this the 19th day of June, 2009
J U D G M E N T
~~~~~~~~~~~
Balakrishnan Nair, J.
W.A. Nos.2160 OF 2008 & 184 OF 2009
The point that arises for decision in these appeals is whether
the provisions of Rule 182(4)(v) of the Kerala Co-operative
Societies Rules (hereinafter referred to as ‘the Rule’) are
mandatory or directory. W.A.No.2160/2008 is filed, by the Joint
Registrar of Co-operative Societies, Pathanamthitta, against the
judgment in W.P.(C) No.3170/2008 filed by the Thiruvalla East
Co-operative Bank Ltd. No.3260 (hereinafter referred to as ‘the
Bank’). W.A.No.184/2009 is filed, by the Registrar of the Co-
operative Societies, Trivandrum, against the judgment in
W.P.(C) No.20128/2008 filed by a candidate, who applied for
appointment to the post of Junior Clerk in Thiruvalla East
Co-operative Bank Ltd.
W.A.No.2160/2008 and connected cases 2
2. W.A.No.2160/2008 is treated as the main case for the
purpose of referring to exhibits. The brief facts of the case are
the following:
The Thiruvalla East Co-operative Bank Ltd. reported 15
vacancies of Junior Clerks to the Co-operative Service
Examination Board (hereinafter referred to as the Board).
Pursuant to the said intimation, the Board invited applications
for appointment to the post of Junior Clerk in the Bank and also
for appointment in 34 other Co-operative Societies, which have
similarly moved the Board, reporting vacancies of Junior Clerks
in the respective Societies. The Board published the notification
inviting applications on 10.10.2006. A written test for the
candidates, who applied pursuant to the said notification, was
held on 9.9.2007. The results of the test were published on
24.7.2007. 695 candidates cleared the written test. The Board
by Ext.P2 communication dated 29.11.2007 forwarded the list of
candidates to the Bank for conducting interview and for sending
the marks obtained by the candidates in the interview to it. The
outer time limit for sending the marks after holding the
W.A.No.2160/2008 and connected cases 3
interview was 28.1.2008. At the relevant time, a
superseded Managing Committee was in power, which was
continuing in office on the strength of the interim order passed
by this Court in W.P.(C) No. 27925/2007. While moving the Writ
Petition, challenging the supersession order before this Court,
an undertaking was given on behalf of the Managing Committee
that they will not make any appointments. In view of the said
undertaking, the Managing Committee could not hold the
interview within the stipulated time limit. So, it passed Ext.P3
resolution requesting the Board to grant extension of time for
the interview. It was followed by Ext.P4 request praying for
grant of further time. The Board considered the request of the
Bank and issued Ext.P5 communication rejecting the prayer for
extension of time. Ext.P6 is an interlocutory application filed in
W.P.(C) No.27925/2007 by the President of the Bank, praying for
permission of this Court to conduct the interview for
appointment of 15 Junior Clerks in the Bank. Since the said
petition was opposed by the respondents, no order was passed
on it and therefore, it was not possible to hold the interview in
time. In the above factual background, feeling aggrieved by the
stand taken by the Board in Ext.P5, the Writ Petition was filed
W.A.No.2160/2008 and connected cases 4
praying to quash Ext.P5.
3. The Bank also prayed for a declaration that Rule 182
(4) (v) of the Rules to the extent it requires conduct of interview
by the Managing Committee, within two months from the date of
receipt of the list of candidates from the Board, is only
directory and not mandatory. The Bank prayed for a mandamus
directing the Board to extend the time limit for the conduct of
the interview as requested in Exts.P3 and P4.
4. The respondents in the Writ Petition resisted the
prayers therein, contending that the provisions of the Rule 182
(4) (v) are mandatory and therefore, there cannot be any extension
of time. Interview held after the time limit was illegal. The learned
Single Judge considered the rival submissions and held that in
exceptional circumstances the time limit for interview provided
under Rule 182 (4) (v) could be extended. The learned Single
Judge took the view that the case on hand is one where extension
of time should be granted. It was noticed that the delay was
occasioned in this case for bonafide reasons. It was ordered that
the Managing Committee can conduct interview within 45 days
from the date of receipt of a copy of this judgment and in that
W.A.No.2160/2008 and connected cases 5
event the Examination Board shall recognise and act upon the
list forwarded by the Bank within two weeks followed by the
interview. Feeling aggrieved by the said judgment, the 2nd
respondent in the Writ Petition, the Joint Registrar of
Co-operative Societies, has filed W.A.No.2160/2008.
5. We heard the learned counsel on both sides.
Smt.Aneetha, learned special Government Pleader, who
appeared for the appellant, submitted that going by the scheme
of the Kerala Co-operative Societies Rules, the time limit
prescribed under Rule 182 (4) (v) has to be held as mandatory.
Any other interpretation will defeat the very purpose of the Rule.
We also had the benefit of hearing Mr.Subhash Chand, who
appeared for the appellant in W.A.Nos.255 & 256/2009. The
learned counsel took us through the relevant provisions of Rule
182 and submitted that the time limit prescribed for conducting
the interview is intended to maintain the confidentiality of the
marks obtained in the written test by the candidates. After the
time limit given to various Co-operative Societies for conducting
the interview is over, the list of candidates, which will disclose
the marks obtained in the written test, will be sent to Co-
W.A.No.2160/2008 and connected cases 6
operative Societies by the Examination Board under Clause (vi)
of Rule 182(4) of the Rule. If interview in one Society is
conducted after the details of the marks have reached another
Co-operative Society, the Managing Committee members of the
relevant Society can obtain the marks of the candidates and
modulate the awarding of marks to favour candidates of their
choice. So, it should be held that the relevant provisions
contained under clause (v) of Rule 182(4) should be interpreted
as mandatory, it is submitted.
6. The learned Government Pleader and learned counsel
for the appellants in the connected cases, relied on the following
decisions in support of their submissions:
Visitor, Amu and others v. K.S.Misra [2007(8) SCC 593],
Madhavan v. Excise Inspector [2000(1) KLT 311], Mohan
Singh v. International Airport Authority of India [1997 (9)
SCC 132], Balwant Singh v. Anand Kumar Sharma [AIR 2000
(3) SC 1637] and District Executive Officer v. Abel [2006(2)
KLT 758].
W.A.No.2160/2008 and connected cases 7
7. We heard the learned senior counsel,
Sri.P.Raveendran, who appeared for the bank and also the
learned Standing counsel for the Examination Board. The
Examination Board in fact supported the appellants. The learned
senior counsel for the Bank submitted that the provisions of Rule
182(4) govern the procedure regarding selection and
appointment. Normally, such provisions governing procedure
are interpreted as directory only. If statutory provisions
governing public functions of statutory authorities are held to be
mandatory, the same will cause serious prejudice to third
parties, who have no control over the actions of such authorities.
In this case, the Co-operative Society is an authority discharging
statutory functions and if its actions are held to be mandatory,
the same will seriously prejudice the candidates involved in the
selection. The learned counsel also submitted that by the
violation of the relevant provisions, no prejudice has been caused
to anyone. There is no complaint from any quarters on this point.
The appellants do not have any such case in their pleadings. The
learned senior counsel also submitted that during the pendency
of the appeal, as allowed by the learned Single Judge, interview
was held and the list was forwarded to the Examination Board,
W.A.No.2160/2008 and connected cases 8
which in turn has sent back the consolidated list and from that
list, 14 candidates were already appointed. None of them is
before this Court. Therefore, the Writ Appeal is not
maintainable. The learned senior counsel also relied on the
following decisions in support of his submission that the relevant
provision should be interpreted as directory only:
Balwant Singh v. Anand Kumar Sharma [2003(3)SCC 433],
P.T.Rajan v. T.P.M.Sahir [2003(8) SCC 498] and
U.P.State Electricity Board v. Shiv Mohan Singh
[2004(8)SCC 402].
8. We considered the rival submissions made at the Bar
and also perused the pleadings and materials on record. Before
going to the merits of the case, first, we will deal with the
contention of the learned senior counsel, Mr.P.Raveendran, for
the Bank that the appointees should have been impleaded and
they should have been given an opportunity of being heard. It is
common case that the appointments were made subject to the
result of the appeals. The candidates were also informed
accordingly, as evident from one of the appointment orders,
placed on record in this batch of the cases. It cannot be
W.A.No.2160/2008 and connected cases 9
contended that judgment of the learned single Judge cannot be
reversed, for the reason that it has been implemented during the
pendency of the appeal. Its implementation and all other orders
passed are dependent orders and they will collapse, if the
judgment under appeal is reversed. So, the said contention
cannot be accepted.
9. Going by the decisions cited at the Bar by both sides,
the following principles emerge:- If an administrative action is
impugned contending that the same has been taken in violation
of a statutory provision, the Court has to ascertain whether the
relevant statutory provision is mandatory or directory in nature.
The general principle is that when the statutory provisions
provide that something shall be done in a particular manner, it
should be done in that manner only. If the literal meaning of the
above principle is followed, then all actions in violation of
statutory provisions should be held to be invalid . But, the said
general principle is subject to the exception that the action will
become invalid, if only the injunction of the Statute is found to
be mandatory. If the provision is found to be directory in nature,
it has to be further ascertained whether any prejudice has been
W.A.No.2160/2008 and connected cases 10
caused, making it necessary to nullify the action. This being the
undisputed and settled legal position evident from the decisions
cited, we do not propose to refer the each decision separately.
10. Now, we will deal with the merits of the main
contention urged before us, that is, whether the concerned
provision is mandatory or directory. It is settled position in law
that normally procedural provisions should be interpreted only
as directory in nature. Further, in the matter of appointment to
the Co-operative Society, the Managing Committee is
discharging a statutory function of interviewing the candidates
and forwarding the marks obtained by each candidate to the Co-
operative Examination Board. So, the general principle that
provisions concerning public functions of an authority should
normally be held to be directory to avoid inconvenience to
persons, who have no control over the actions of such authorities
is applicable here. If the interview is delayed by one day or
forwarding of the mark list of the interview is, for some reason,
delayed for one or two days and if the provision is held to be
mandatory, the selection process has to be re-done again. There
should be atleast fresh written test for candidates who have
W.A.No.2160/2008 and connected cases 11
already applied. The candidates, therefore, will be put to
irreparable injury and hardship, if we hold that the provisions of
clause (v) mentioned above is mandatory. The interest of the
Society will also be adversely affected. So, we hold that the time
limit prescribed in Rule 182(4)(v) is only directory. Going by the
scheme of the Rule, we are of the view that there will be
substantial compliance with the provisions of the Rule, if
interview is held and the list is send to the Board within a
reasonable time limit, even if, the same is beyond the time limit
fixed under the Rules. Going by the decisions cited by both
sides, we are of the view that this is the only possible view that
could be taken on the facts of the case and the scheme of the
relevant rules. So, for the violation simplicitor of the time limit
prescribed in clause (v), the result of the interview need not be
cancelled or the Managing Committee need not be prevented
from commencing or proceeding with the interview already
started.
11. But, the point to be decided is what will be the
reasonable time limit within which the interview has to be
completed. Sub-rule (4) of Rule 182 reads as follows:
W.A.No.2160/2008 and connected cases 12
"182 (4) In respect of recruitment to
societies covered by section 80B of the
Act, the following procedure shall be
followed:
(i) The Society shall report the
vacancy to the Co-operative Service
Examination Board and the applications for
appointment shall be invited by the Co-
operative Examination Board, by notification
in two vernacular dailies, having wide
circulation in the area. The notification shall
include the details of number of vacancies,
qualifications required for the post, age and
reservation, if any, the mode of application,
method of appointment and other required
details. The Co-operative Service
Examination Board my collect application fee
along with the application at the rate fixed
by the Registrar of Co-operative Societies
from time to time. The Examination Board
shall process the applications and prepare
the list of candidates to be called for the
written test. One copy of the prepared list
shall be published in the notice Board of the
Examination Board and one copy shall be sent
to the society for publication in its notice
board. The society shall publish it in the
notice board and copies thereof in the
branch office of the society. The
arrangements for the written test shall be
made by the Examination Board.
W.A.No.2160/2008 and connected cases 13
(ii) The Examination Board shall
conduct the written examination of the
candidates and furnish a list of eligible
candidates to be interviewed to the
committee of the society within a period of
three months from the date of requisition by
the society. The list so furnished shall not
contain the mark secured by the candidates;
(emphasis supplied)
(iii) The maximum marks for written
examination shall be 80 and those who secure
40% of the marks shall only be eligible to be
included in the list for interview;
Provided that in case of candidates
belonging to Scheduled Caste or Scheduled
Tribe, those who secure 30% of marks and
above shall be included in the list.
(iv) The maximum marks for interview
shall be 15.
Provided that the minimum marks for
interview shall be 3.
(iv A) Candidates of home
district shall be awarded 5
marks over and above the
marks for interview as grace
marks.
W.A.No.2160/2008 and connected cases 14
(v) On receipt of the list from the
Examination Board, the committee shall
conduct interview of the candidates within
two months from the date of such receipt
and return the list to the Examination Board
noting the marks secured by each candidates,
in the interview within a period of two weeks;
vi) On receipt of the list from the
society, the Examination Board shall note
down the marks secured by each of the
candidate in written examination and return
consolidated list with the total marks
obtained by each candidate. This shall be
done within a period of one week.
(vii) On the basis of the consolidated
list so received from the Examination Board,
the committee shall prepare the rank list of
candidates and publish the same in the notice
board of the society. The society shall send
one copy of the rank list so published to the
Examination Board also. The board shall
examine the correctness of such rank list and
report to the Registrar, the irregularities, if
any. The list shall be valid for a period of two
years from the date of publication of the
same by the society. (emphasis supplied)
(viii) All appointments to the vacancies
shall be made by the committee from the
select list so published; within one month
from the date of such publication and shall
be reported to the Examination Board.
W.A.No.2160/2008 and connected cases 15
(ix) Expenses, if any,incurred over
and above the fees collected by the
Examination Board, shall be borne by the
society concerned.
12. The scheme of the Rules would show that it is
designed in such a way as to prevent the interviewers from
knowing the marks of the candidates beforehand. If they know
the marks, the award of the marks in the interview can be
appropriately manipulated, so that the candidates of their choice
get higher ranks and their rivals get lesser marks. To avoid this,
clause (ii) of Rule 182(4) says “the list so furnished shall not
contain the mark secured by the candidates”.
13. Sub rule (2) of Rule 182A provides that the Board
shall be responsible to maintain the secrecy in the preparation of
question paper, valuation, preparation of list of candidates to be
interviewed and preparation of consolidated list to be furnished
finally to the societies concerned. So, if the Society is allowed to
wait till the list of the candidates with consolidated marks are
send by the Board to other Co-operative societies, the members
of the Managing Committee will be able to know the marks
W.A.No.2160/2008 and connected cases 16
secured by the candidates in the list. This happens because
many of the candidates apply for appointment to several
societies pursuant to the common notification. In the case of
such candidates, the consolidated marks including the marks of
the written test will be sent to all those Societies opted by them.
That means after a particular point of time, the marks of
candidate A, who applied for appointment in the 1st respondent
Bank, will be available with several other Societies, if he has
applied for appointment in those Societies also.
14. In this case, we notice that the last date fixed for
completing the interview and sending the marks of interview
was 28.1.2008. The Examination Board consolidated the marks
send by various Societies and returned the list of candidates to
those societies covered by the common notification on 16.2.2008.
On receipt of the said list, most of the Societies made
appointments in March 2008 itself. The possibility of the marks
of the candidates in the written test being made public starts
from 16.2.2008, the date on which the Examination Board sent
the list of candidates to various Societies. In this case, in one of
the connected Writ Appeals, the consolidated list of candidates
W.A.No.2160/2008 and connected cases 17
showing the marks in the written test and interview sent by the
Examination Board to Pannivizha Service Co-operative Bank
Ltd.No.891, Pathanamthitta, is on record, as part of the
pleadings. The said list would reveal the marks of the candidates
secured by them in the written test. The possibility of the marks
in the written test of the candidates who applied for appointment
in other Societies also, being known to the members of the
Managing Committee of Thiruvalla East Co-operative Bank Ltd.
No.3260 cannot be ruled out. Whether they have received the
marks or not is not relevant. The chances of the members of the
Managing Committee, receiving the list containing the marks,
itself will vitiate the interview, in view of the scheme of the
Rules, many of which are designed to prevent the interviewers
from getting marks in the written test before the interview is
over. So, in this case, prejudice has been caused to the interest
of the Bank, its members, the candidates and the public. The
secrecy of the procedure designed to prevent manipulation has
been breached in this case. The contention of the appellant that
no one has come forward complaining about the prejudice etc. to
the Bank cannot be accepted. The Registrar and Joint Registrar
concerned, who are the appellants in this case, can legitimately
W.A.No.2160/2008 and connected cases 18
point out the above aspect in public interest and seek
nullification of the interview. So, we are of the view that in this
case, this Court should not have allowed the Managing
Committee to hold the interview by the judgment, which was
rendered on 16.9.2008, within 45 days of the receipt of the copy
of this judgment. It can be safely presumed that by that time
everyone knew what were the marks of the candidates
concerned. In view of the above finding, the judgment under
appeal is reversed. The Co-operative Examination Board shall
take steps to hold fresh written test for the candidates, who
applied for the post in the 1st respondent Bank, as expeditiously
as possible, and continue the selection process from the stage of
holding the written test.
15. Having regard to the facts of the case, the 14
candidates already appointed, subject to the result of the Writ
Appeal, shall be allowed to continue, provisionally, till the
selection process is completed, provided there are vacancies to
accommodate them in the Bank. Upon completion of the
selection process, when regular hands are appointed, the 14
provisional appointees shall be retrenched to give place to the
W.A.No.2160/2008 and connected cases 19
regular hands, unless they are also selected for appointment
along with other successful candidates.
The Writ Appeals are allowed as above.
W.A.Nos.255 & 256 OF 2009:
In view of the above judgment in Writ Appeal
Nos.2160/2008 and 184/2009, no separate orders are required in
these cases. Accordingly, they are closed.
(K.BALAKRISHNAN NAIR, JUDGE)
(C.T.RAVIKUMAR, JUDGE)
ps