Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN MONDAY, THE11H DAY OF NOVEMBER201320TH KARTHIKA, 1935 W.P.(C).No.13950 of 2013 (P) --------------------------------------------------- PETITIONER:- -------------------- SUBEESH KRISHNAN. M. SECRETARY, NANMANDA RURAL CO-OPERATIVE HOUSING SOCIETY, P.O.NANMANDA, KOZHIKODE - 673 619. BY ADV. SRI.P.C.SASIDHARAN. RESPONDENTS:- ------------------------- 1. THE KERALA CO-OPERATIVE EXAMINATION BOARD, OFFICE OF THE KERALA CO-OPERATIVE EXAMINATION BOARD, THIRUVANANTHAPURAM - 695 001, REPRESENTED BY ITS SECRETARY.
2. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, KOZHIKODE - 673 001.
3. K.M. RAVI, THALIYACHA HOUSE, NANMANDA, KOZHIKODE - 673 613. R1 BY ADV. SMT.K.V.RESHMI. R2 BY SPECIAL GOVERNMENT PLEADER SRI.D.SOMASUNDARAM. R3 BY ADVS. SRI.P.RAVINDRAN (SENIOR ADVOCATE) & SRI.M.R.SABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON1111-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- W.P.(C).No.13950 of 2013 (P) ---------------------------------------- APPENDIX PETITIONER'S EXHIBITS:- -------------------------------------- EXT.P1 - TRUE COPY OF THE APPOINTMENT ORDER
ISSUD IN FAVOUROF THE PETITIONER. EXT.P2 - TRUE COPY OF THE RANKED LIST. EXT.P3 - TRUE COPY OF THE COMPLAINT PREFERRED BY THE3D RESPONDENT DATED2310-2009. EXT.P4 - TRUE COPY OF THE ORDER
ISSUED BY THE2D RESPONDENT DATED62-2010. EXT.P5 - TRUE COPY OF THE ORDER
IN A.R.C.51/2010 DATED318-2010. EXT.P6 - TRUE COPY OF THE COMMUNICATION ISSUED BY THE1T RESPONDENT DATED242-2012. EXT.P7 - TRUE COPY OF THE ORDER
ISSUED BY THE2D RESPONDENT DATED2712-2012. EXT.P8 - TRUE COPY OF THE COMMUNICATION ISSUED BY THE2D RESPONDENT DATED152-2013. EXT.P9 - TRUE COPY OF THE COMPLAINT PREFERRED BY THE3D RESPONDENT DATED203-2012. EXT.P10 - TRUE COPY OF THE FEEDER CATEGORY RULE OF THE SOCIETY IS ONE APPROVED BY THE JOINT REGISTRAR. RESPONDENTS' EXHIBITS:- --------------------------------------- EXT.R3(a) - TRUE COPY OF THE NOTICE ISSUED BY THE2D RESPONDENT DATED0202.2013. EXT.R3(b) - TRUE COPY OF THE JUDGMENT
IN W.A.NO.1123/2010 DATED0507/2010. vku/- ( true copy ) K. Vinod Chandran, J -------------------------------------- W.P.(C).No.13950 of 2013-P --------------------------------------- Dated this the 11th day of November, 2013 JUDGMENT
The petitioner is the Secretary of one Nanmanda Rural Co-operative Housing Society (hereinafter referred to as "the Housing Society") and is aggrieved by the enquiry initiated by the 2nd respondent on a complaint by the 3rd respondent. The 3rd respondent, admittedly, was a Senior Clerk in the service of the Housing Society, who was suspended pending enquiry on 17.03.2009 and thereafter dismissed from service on 03.12.2009. It is contended that the Arbitration Case filed by him has set aside the enquiry conducted by the Housing Society and that the Joint Registrar has issued Exhibit P7 order by which the filling up of a vacancy in the post of Accountant has been interdicted, which order, admittedly, has been stayed by this Court in W.P.(C).No.3201 of 2013. The dispute raised in the complaint of the 3rd respondent, produced as Exhibit P9, is with respect to appointment of the petitioner as Secretary in the Housing Society. WP(C).No.13950 of 2013-P - 2 - 2. The selection to the post of Secretary in the Housing Society was conducted by the Co-operative Service Examination Board and the petitioner having come out successful in the written examination as also in the interview, with 1st rank; was appointed by order dated 02.09.2010 and he joined the service of the Bank on 03.09.2010. At the time when the petitioner joined service, the 3rd respondent had already been dismissed from the service of the Bank. Exhibit P1 proceedings would show that the post of Secretary in the Housing Society was falling vacant on 01.01.2010 and the Society sought for appointment by direct recruitment, as is permissible under the Employees Appointment and Promotion Sub Rules framed under Rule 185 of the Kerala Co-operative Societies Rules, 1969, as per Board Resolution No.VIII dated 22.10.2008 and also approved by the Joint Registrar of Co-operative Societies on 10.06.2009.
3. Admittedly there was an Accountant in the Housing Society, which post is the feeder category to the post of Secretary. The 3rd respondent was admittedly in the lower cadre of Senior Clerk and his claim for promotion to the post of Secretary was based on 2nd proviso to Rule 185, which provided for creation of supernumerary post in the feeder category, if the person in the WP(C).No.13950 of 2013-P - 3 - feeder category relinquishes his claim and the placement of the person in the lower category to the feeder category, to facilitate his promotion to the post of Secretary. It has to be noticed that at the time when the vacancy fell due, the 3rd respondent could not have had any claim, since he had already been dismissed from service.
4. The 3rd respondent complained about the action of the Housing Society in attempting to make direct recruitment to the post of Secretary by Exhibit P3, before the Joint Registrar. The same was considered and Exhibit P4 was passed, finding that the 3rd respondent had no entitlement to be considered for promotion to the post of Secretary and that there is no irregularity in the selection mooted by the Housing Society. Hence, the complaint filed by the 3rd respondent was rejected. The same was challenged before this Court by a writ petition, numbered as W.P.(C).No.8181 of 2010, which was dismissed on 25.05.2010. An appeal filed against the said judgment was also withdrawn, as is evident by Exhibit R3(b), on the contention of the 3rd respondent, who was the appellant therein, that he is vigorously pursuing the statutory remedies.
5. As the records disclose, he had filed an application before the Co-operative Arbitration Court as A.R.C.No.51 of 2010, in which an interim prayer was also sought for interdicting the WP(C).No.13950 of 2013-P - 4 - Housing Society from appointing a Secretary to the vacant post. The said application was rejected by the Arbitration Court, as is evident by Exhibit P5. No further challenge is seen from Exhibit P5 and it is not clear as to what has transpired in A.R.C.No.51 of 2010. The 3rd respondent avers in paragraph 7 of his counter affidavit that the issue regarding the appointment to the post of Secretary is pending before the Arbitration Court in A.R.C.No.51 of 2010. Be that as it may, Exhibit P4 subject however to any pending ARC, attained finality and the 3rd respondent did not do anything further for another 2 years. Subsequently, in 2012 the 3rd respondent raised a complaint before the Co-operative Service Examination Board regarding the appointment made to the post of Secretary in 2010. The Examination Board replied by Exhibit P6, holding that there is absolutely no irregularity detected, on an examination of the relevant records. It was later by Exhibit P9 that a complaint was filed before the Joint Registrar, upon which an enquiry has been initiated through Exhibit P8.
6. The learned Senior Counsel appearing for the 3rd respondent would contend that while the earlier complaint was with respect to his denial for promotion, the present application is with respect to the irregularity in the direct selection conducted by the WP(C).No.13950 of 2013-P - 5 - Housing Society. It is also contended that by Exhibit P6 the Examination Board had directed the 3rd respondent to approach the Joint Registrar or the Registrar. It is argued that the petitioner, who is the Secretary of the Housing Society, has not been issued with any notice and he could not have challenged Exhibit P6 order, since only the Society has been directed to appear before the Joint Registrar. Exhibit P6 being merely a show cause notice, there is no cause for interference, is the contention put forth by the 3rd respondent.
7. The 3rd respondent had agitated his cause and had challenged the direct recruitment attempted by the Housing Society in an earlier proceeding. The mere fact that the earlier proceeding was based on the ground of denial of promotion to the 3rd respondent and the present complaint is based on the ground of irregularities in selection, does not at all militate against the simple fact that the direct recruitment to the post of Secretary was the issue which was agitated by the 3rd respondent then and now. As was noticed, the complaint filed before the Joint Registrar had been rejected by Exhibit P4, which was confirmed by this Court in a writ petition. In the appeal filed against the said judgment both writ petition and the appeal were withdrawn. The writ petition and the WP(C).No.13950 of 2013-P - 6 - writ appeal were permitted to be withdrawn on the contention of the 3rd respondent herein that he is vigorously pursuing statutory remedies. Even before this Court he does not reveal as to whether he had approached the statutory authority against Exhibit P4, It can only be assumed from the records that A.R.C.No.51 of 2010 is a challenge against Exhibit P4. If that be so, there is no ground why he should again agitate the very same cause before the Joint Registrar.
8. One another aspect is the delay caused in making the complaint. Even if, for argument sake, it is conceded that the second complaint is with respect to the irregularity in the selection process conducted by the Housing Society, admittedly the petitioner joined the service of the Bank as early as on 03.09.2010. The direct selection attempted was challenged before the Joint Registrar, which complaint was rejected. The writ petition filed against the same was withdrawn at the stage of Writ Appeal, on 05.07.2010. The withdrawal was on the ground that statutory remedies are being pursued. An interim application filed in A.R.C.No.51 of 2010 was rejected by Exhibit P5, dated 31.08.2010. The 3rd respondent rested contend for 2 years and the present attempt is to contend that it is not the denial of promotion but the irregularity in selection WP(C).No.13950 of 2013-P - 7 - that he complains of by Exhibit P9. The 3rd respondent cannot be permitted to rake up issues which has already concluded. Even going by the averments in the counter affidavit, the matter is pending before the statutory authority and it is for him to pursue that, if it is so pending. The alternate remedy would depend on the statute and this Court has not conferred any right as per Ext.R3(b) judgment. Ext.P6 also cannot be considered to be a conferment of a right on the petitioner to approach the Joint Registrar. The Examination Board could confer no such right.
9. True that Exhibit P7 is a mere show cause notice; but that does not prevent this Court from invoking the extra-ordinary jurisdiction under Article 226 of the Constitution, when there is a clear abuse of process of law and when there is unexplained delay. Every person appointed to an office, by due process, is entitled to some certainty by passage of time, in which he validly continued in such office. The complaint raised in Exhibit P9, being the direct recruitment of a Secretary to the Housing Society, had already been rejected by Exhibit P4. The selection itself was made on 03.09.2010 and a complaint filed on 20.03.2012 against the selection made in 2010 clearly is not maintainable. The proceedings initiated by Exhibit P8, hence, is found to be without any jurisdiction WP(C).No.13950 of 2013-P - 8 - and a clear abuse of process. In such circumstance, the proceeding initiated by Exhibit P8 is not liable to be continued for reasons aforesaid and it is declared so. The writ petition is allowed, leaving the parties to suffer their respective costs. Sd/- K.Vinod Chandran Judge. vku/- ( true copy )