JUDGMENT

OP. No. 9745 of 1983-P.

1. This OP. is by the Shertallai Urban Co-operative Bank Ltd. (hereinafter referred to as the Society) represented by its President. The society is being managed by a committee constituted as per its bye-laws and in accordance with S. 28 of the Kerala Co-operative Societies Act 1969 (hereinafter referred to as the Act). The present committee was elected to office on 1-7-1982 at a time when the society was a Class III credit society. The 2nd respondent, the Joint Registrar of Co-operative Societies, Alleppey as per his proceeding Ext. P1 dated 13-1-1983 upgraded the Society as a Class II credit society with effect from 1-7-1982. The concluding portion of Ext. P1 directs that appointments to be effected on account of the classification of the society as a class II credit society can only be with the prior approval of the Joint Registrar. This part of Ext. P1 order is sought to be quashed in this writ petition. The society had even earlier requested the Joint Registrar to conduct a written test for the purpose of selection and appointment of a Secretary for the society. The Joint Registrar had on 11-10-1982 informed the Society that a written test of candidates for selection to the post of secretary will be conducted by him on 7-11-1982. After holding the test on 7-11-1982 the Joint Registrar forwarded to the society a list of candidates who had passed the test. By the time the list was received by the society it had been upgraded as a class II credit society, with retrospective effect from 1-7-1983. The Committee of the society on 4-10-1983 interviewed the candidates included in the list sent up by the Joint Registrar for the purpose of selection to the post of Secretary of the society. The Committee after interview found that none among the candidates in the list forwarded by the Joint Registrar was suitable for the post. Accordingly the Committee as per its resolution No. 97 dated 4-10-1983 requested the Joint Registrar to make the services of a Senior Inspector available to work as Secretary on deputation from the Department. The Committee had by resolutions dated 30-4-1983 and 4-10-1983 called for applications for the posts of Junior Clerks, Typists and Peons to be appointed in the society on account of its upgradation as a class II credit society. It was at that stage that the Joint Registrar passed Ext. P2 order dated 25-10-1983 prohibiting appointment to the posts of Junior Clerks, Typists, Peons, Secretary and Assistant Secretary until further orders of the Department. The reason mentioned in Ext. P2 is that Ext. P1 order itself had required prior sanction of the Joint Registrar to make appointments to the posts required to be filled up on account of the upgradation of the society into a class II credit society.

2. The only question urged before me is relating to the validity of the condition imposed in Ext. P1 by the Joint Registrar that appointments in the upgraded credit society should be with his prior approval and also of the validity of Ext. P2 as per which the Joint Registrar had interdicted appointments to the various posts mentioned therein until further orders by him. There is no dispute before me that the power of appointment of employees of the society is vested in the society itself administered by its Committee. As per sub-section (1) of S. 80 the Government is required to classify the societies in the State according to their type and financial position. As per sub-section (2) the Government is also required to fix or alter the number and designation of the officers and servants of the different classes of societies specified in sub-section (1). Sub-section (3) requires the Government to make rules regulating the qualification, remuneration, allowances and other conditions of service of the officers and servants of the different classes of societies specified in sub-section (1). Rule 182 of the Kerala Co-operative Societies Rules, 1969 (hereinafter referred to as ‘the Rules’) provides for classification of societies for the purpose of sub-section (1) of S. 80 as shown in Appendix III. Rule 188 provides for the staff pattern of the different types and classes of societies as specified in Appendix III. The petitioner society falls under class II of the credit societies mentioned as item 2 in Appendix III. Column 5 of Appendix III provides for the number of posts for the different classes of societies and column 6 fixes the salary of the employees of the different classes of Societies. Appendix III forms part of Rule 188 which requires every society to adopt the staff pattern indicated therein according to the type and class to which the society belongs. A reading of Rule 188 and Appendix III makes it abundantly clear that the staff pattern is fixed by the rule itself and the rule does not require any prior approval of the Department to effect appointments to the various posts according to the staff pattern fixed under Appendix III. As per S. 27 of the Act the final authority of the society vests in the general body of its members subject to the Act, the Rules and the bye-laws of the society concerned and as per S. 28 a committee, is constituted by the general body in accordance with the bye-laws of the society for the purpose of management of its affairs. Bye-law 27 of the bye-laws of the society empowers the Board of Directors, namely the committee to appoint a Secretary and the other officers and employees of the society. The bye-law does not require the prior approval of the Joint Registrar or any other officer of the Department before appointments are to be made to fill up the posts. The direction in Ext. P1 requiring the society to obtain prior approval of the Joint Registrar for appointment of officers and servants of the society cannot therefore stand and that part of the direction in Ext. P1 is accordingly quashed.

3. As per Ext. P2 order of the Joint Registrar the society is interdicted from making appointments to conform to the staff pattern fixed under Appendix III of the Rules until further orders of the Joint Registrar. I have already found that bye-law 27 of the bye-laws of the society empowers the Board of Directors to make appointments to the posts of Secretary and other officers and servants of the society. The appointments should be to posts in accordance with the staff pattern fixed in Appendix III as required by Rule 188. Ext. P2 order of the Joint Registrar cannot therefore stand and the same is also quashed. No other question is urged before me in this OP. The OP. is allowed to the above extent.

OP. No. 161 of 1984-A.

4. This OP. is by one of the candidates included in the list sent up by the Joint Registrar to the society for purpose of selection of one among them to the post of Secretary. The petitioner was ranked as No. 1 in the list apparently on the basis of marks obtained in the written test conducted by the Joint Registrar. He was not found suitable to the post of Secretary at the interview conducted by the Board of Directors on 4-10-1983. I have already adverted to the fact that none among the candidates included in the list forwarded by the Joint Registrar was found suitable for the post. The society had issued a fresh notification Ext. P5 dated 10-10-1983 calling for applications for appointment to the posts of Secretary and Assistant Secretary in the society. The petitioner had submitted Exts. P6 and P7 representations to the Joint Registrar requesting him to cancel resolution Nos. 94 and 95 passed by the Board of Directors. Resolution No. 94 dated 4-10-1983 was passed by the Board of Directors not to appoint any of the candidates included in the list forwarded by the Joint Registrar for the reason that at the interview held by the Board of those candidates none among them was found suitable to the post and resolution No. 95 of the same date is to cancel the steps taken for the selection of a candidate for appointment to the post of Secretary which had become ineffective for the reason that none among the candidates was found suitable. Since however the petitioner and all the other candidates included in the list forwarded by the Joint Registrar were found unsuitable to the post of Secretary, it makes little difference whether these resolutions are cancelled or not. Those who are found unsuitable cannot be directed to be appointed to the post whether the resolutions are there or not. The Board of Directors constituted by the society had found the candidates unsuitable for the post. It is not disputed that the Board is the appointing authority. Under these circumstances no useful purpose will be served by directing the Joint Registrar to consider Exts. P6 and P7 representations.

5. Learned counsel for the petitioner challenges the decision of the Board of Directors declining to appoint the petitioner as the Secretary of the Society for the alleged reason that he was found unsuitable to the post at the interview held by the Board. Learned counsel points out that the petitioner is a graduate who had also the Higher Diploma in Co-operation. He was ranked No. 1 in the list of candidates forwarded by the Joint Registrar for consideration by the Board for appointment to the post of Secretary the Board had fixed no seperate minimum marks for the interview and according to the learned counsel selection is to be effected on the basis of the marks obtained in the written test and the interview. There is nothing on record to show that the Board of Directors bad adopted any system for awarding marks at the interview. It would appear that the written test was only a first step in the process of selection and the selection is to be made by the Board of Directors on its satisfaction that the candidate concerned is suitable for the post. It is rather surprising that the Board of Directors rejected all the candidates as unsuitable to the post ignoring not only the marks obtained at the written test, but also the qualifications and specialised training possessed by the various candidates. It is brought to my notice that Rule 186 has prescribed the qualifications for the different posts and all the candidates had apparently satisfied the requisite qualifications prescribed under the Rule. There can therefore be no doubt that all those candidates included in the list forwarded by the Joint Registrar were qualified for the post and the only reason for the rejection of the petitioner who was No. 1 in the list is that he was found by the Board of Directors at the interview held on 4-10-1983 as not suitable for the post. Learned counsel for the petitioner Shri. Swaminathan has relied on the decision of Chandrasekhara Menon, J. in A.K Soumini v. The State Bank of Travancore reported in ILR. 1984 (1) Kerala 351 wherein it is held that a separate minimum of marks fixed for a viva voce test for promotion to the officer's cadre in the State Bank of Travancore was discriminatory and opposed to Article 14 of the Constitution. The learned Judge refers to “(1) the difficulty of developing valid and reliable oral tests (2) the difficulty of securing a reviewable record on an oral test and (3) public suspicion of the oral test as a channel for the exertion of political influence”, enumerated by O. Glena Stahl in his book ‘Public Personal Administration.” The learned Judge at page 364 states:

“16. Therefore, I have no doubt in a case where the oral test-the interview plays an overwhelmingly important part the decisive factors as in this case as to disqualify a candidate when he does not get a minimum fixed there, the whole selection would be vitiated. Going by Lila Dhar's case too the marks of both the interview and the written examination should be added together and the persons who top the aggregate total marks should be selected. In a country where sixty per cent of the people are below the poverty line but where the right to equality is made a fundamental right, any method of selection which is likely to favour the elitist class should not be favoured upon. To give the predominant place to the interview oral test is likely to favour candidates belonging to the affluent class”.

6. This decision of the learned single Judge was affirmed by a Division Bench in appeal in the decision reported in 1984 KLT. 135. One of the questions considered in the decision in ILR. 1984 (1) Kerala 351 is as to whether the State Bank of Travancore is “State” within the meaning of Article 12 of the Constitution. The learned Judge answered the question in the affirmation. The process of selection was found to be opposed to Article 14 of the Constitution and a writ was issued granting relief to the petitioner. The relief asked for in the present case is against a Co-operative society which does not fall within the ambit of ‘State’, in Article 12 of the Constitution and this Court cannot compel the society to appoint the petitioner as its secretary. In the decision of the Supreme Court in Ramachandra Iyer v. Union of India reported in 1984 KLT. Short Notes at p. 11 it is held that where the rules provide for adjudication of merits on the aggregation of marks obtained at the written test and a viva voce test, it is not open to the appointing authority to stipulate that a candidate should also obtain the minimum qualifying marks in the viva voce test. Such a stipulation amounts to modification of the rules, and any such power to be exercised by the Selection Committee must be explicit in the rules and cannot be read by implication. Apart from the question that no writ will issue against the Society this decision has no application to the present case where there is no rule prescribing the mode of selection and there is no separate minimum of marks fixed for the viva voce test.

7. Learned counsel for the petitioner points out that Ext. P5 notification for selection to the post of Secretary and Assistant Secretary issued by the society is not in conformity with Rule 183 of the Rules. Counsel for the society concedes that there is a mistake in the notification issued, and, on behalf of the society, undertakes to issue a corrigendum notification for rectification of the mistake, to bring the notification in conformity with Rule 183. Learned counsel for the society further submits that it is open to the petitioner to apply afresh for selection to the post of Secretary and his application will be considered on merits untrammelled by the earlier decision of the Board of Directors. Subject to the above submissions recorded, the O.P is dimissed.

O.P No. 587 of 1984-K.

8. Sanction was accorded to the society to open a branch at Kadakkarappally and it required additional staff as stated in Ext. R5(a) order dated 27-3-1982 of the Addl. Registrar of Co-operative Societies. This court had by Ext. P3 order dated 10-11-1983 granted interim stay of operation of Ext. P2 order produced in O.P 9745 of 1983. Ext. P3 order reads as follows:—

“Notice and interim stay. This order however will not preclude the Joint Registrar, the 1st respondent, from-initiating action in strict compliance of S. 66(2) of the Kerala Co-operative Societies Act and Rule 66(c) of the Kerala Co-operative Societies Rules. It is also made clear that the Joint Registrar is not entitled to make any appointment to different categories pursuant to this order”.

9. This order did not preclude the society from making appointments taking advantage of the order of interim stay of operation of Ext. P2 order produced in OP. 9745 of 1983 Accordingly the society issued notifications for written tests to be held on 8-1-1984 for appointment to the posts of Clerks, Typists and peons in the branch sanctioned by the Department. This Court had as per a later order Ext. P3(a) dated 9-1-1984 clarified the interim order passed on 10-11-1983 as follows:—

“Heard counsel for the petitioner and the Additional fifth respondent. The order dated 10-11-1983 is clarified as follows:—

The last sentence in the order will read as “It is also made clear that the petitioner bank is not entitled to make any appointments to different categories pursuant to this order” instead of “It is also made clear that the Joint Registrar is not entitled to make any appointment to different categories pursuant to this order”.

10. The society had in the meanwhile conducted a written test on 8-1-1984 Some of the candidates could not participate in the written test for the reason of Ext. P3 order which was understood to mean that neither the Joint Registrar nor the society would make any appointments until further orders of this Court. It is clear from the clarification issued as per Ext. P3A that the intention of this Court was to prevent the society from making appointments taking advantage of the order of interim stay passed by this Court. In view of the wording of Ext. P3 order it cannot be said that the society was wrong in holding the written test. It is also clear that the petitioner and several others could not take the written test for the reason that Ext. P3 order was understood to mean that the society will not make any appointments taking advantage of the order of interim stay passed by this Court. Under these circumstances it is only fair that the society holds a fresh written test for all the candidates who had applied for the respective posts. Learned counsel for the society submits that the society agrees to hold a test for all those candidates. This Original Petition is disposed of recording the above submission made on behalf of the 4th respondent society. There will be no order as to costs in all these original petitions.