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Service matter – whether the notification invited applications to fill up the vacant posts of 1 Attender and 3 Peons and to reserve one vacancy of Peon for members belonging to SC/ST against the rules of Kerala Co-operative Societies Rules (in short, “the Rules”) – challenged – writs were allowed the Notification and selection process were not issued in accordance with Circulars issued by the Registrar of Co-operative Societies and quashed the aforesaid Notification, selection and appointment of the selected candidates directing the Bank to conduct a fresh selection within six months in the manner directed after inviting applications in accordance with the Circular. Till then, the selected candidates were permitted to work on daily wage basis subject to the condition that their initial appointment of such continuance will not confer on them any preference for appointment. – DB dismissed the appeals – Apex court held that Considering aforesaid provisions of Section 69, we do not find any force in the contention of the appellants regarding availability of alternate remedy by way of filing an Arbitration case under section 69 of the Act since in our opinion dispute between the writ petitioners and the Bank does not come within the provisions of this Section. We are also of the view that the Bank has failed to conduct written examination and interview as per the then existing guidelines issued by the Registrar of Co-operative Societies. Indisputably, the respondent writ petitioners moved the High Court challenging the circulars immediately after the notification and prior to the conduct of examination. In view of the aforesaid, we concur with the decision of the High Court and do not find any merit whatsoever, in both the appeals, which are accordingly dismissed with no order as to costs.= CIVIL APPEAL NO.7839 OF 2014 (Arising out of Special Leave Petition (Civil) No.9794 of 2013) Akalakunnam Village Service Co-op. Bank Ltd. and another ………Appellants Versus Binu N. and others ……..Respondents = 2014- Aug. Part – http://judis.nic.in/supremecourt/filename=41831

Service matter – whether the notification invited applications to fill up the vacant posts of 1 Attender  and 3 Peons and to reserve one vacancy of Peon for members belonging  to  SC/ST against the rules of Kerala Co-operative Societies Rules (in  short,  “the  Rules”) – challenged – writs were allowed the  Notification  and  selection process  were  not  issued  in  accordance  with  Circulars  issued  by  the Registrar of Co-operative Societies and quashed the aforesaid  Notification, selection and appointment of the selected candidates directing the  Bank  to

conduct a fresh selection within six months in  the  manner  directed  after inviting applications in accordance  with  the  Circular.   Till  then,  the selected candidates were permitted to work on daily wage  basis  subject  to the condition that their initial appointment of such  continuance  will  not confer on them any preference for appointment. – DB dismissed the appeals – Apex court held that  Considering aforesaid provisions of Section 69, we  do  not  find  any force  in  the  contention  of  the  appellants  regarding  availability  of alternate remedy by way of filing an Arbitration case under  section  69  of the Act since in our opinion dispute between the writ  petitioners  and  the Bank does not come within the provisions of this Section.   We are  also  of

the view that the  Bank  has  failed  to  conduct  written  examination  and interview as per the then existing guidelines issued by the Registrar of Co-operative Societies.  Indisputably, the respondent  writ  petitioners  moved the High Court challenging the circulars immediately after the  notification and prior to the conduct of examination. In view of the aforesaid, we concur with  the  decision  of  the  High Court and do not find any merit whatsoever, in both the appeals,  which  are accordingly dismissed with no order as to costs.=

The Akalakunnam Village Service Co-op  Bank  Ltd.  (for  the  sake  of

brevity hereinafter  referred  to  as  “the  Bank”)  by  Notification  dated

6.6.2009 invited applications to fill up the vacant posts of 1 Attender  and

3 Peons and to reserve one vacancy of Peon for members belonging  to  SC/ST.

The last date stipulated  for  submission  of  applications  was  22.6.2009.

Pursuant to this,  among  others,  respondent  nos.1  to  3,  who  are  writ

petitioner nos.1 to 3 applied and a written test was held on  15.7.2009  and

an interview was also conducted in the afternoon of that day.=

After hearing parties on either side, the learned Single Judge of  the

High Court came to  the  conclusion  that  the  Notification  and  selection

process  were  not  issued  in  accordance  with  Circulars  issued  by  the

Registrar of Co-operative Societies and quashed the aforesaid  Notification,

selection and appointment of the selected candidates directing the  Bank  to

conduct a fresh selection within six months in  the  manner  directed  after

inviting applications in accordance  with  the  Circular.   Till  then,  the

selected candidates were permitted to work on daily wage  basis  subject  to

the condition that their initial appointment of such  continuance  will  not

confer on them any preference for appointment.=

Considering the rival contentions in detail and  concerned  provisions

of the Act and Kerala Co-operative Societies Rules, the  Division  Bench  of

the High Court did not find any merit in  the  writ  appeals  and  dismissed

both the writ appeals  preferred  by  the  appellants  herein.   Hence,  the

present appeals by special leave.=

 

We do not find any reason to interfere with the findings of  the  High

Court.   Rule 182(5)  of   the  Rules   stipulates   that   “In  respect  of

societies and posts not covered by section 80(3)(A) and Section 80B  of  the

Act, the appointments shall be made by the Committee  after  conducting  the

written examination and interview  as  per  the  guidelines  issued  by  the

Registrar”.   The circulars issued by the Government and  Registrar  of  the

Co-operative Societies  have statutory force and specifically stipulate  the

procedure for conducting the selection to the post of sub staff.

 “69.  Disputes  to  be  decided  by  Co-operative  Arbitration   Court   and

Registrar.—

(1)  Notwithstanding anything contained in any law for  the  time  being  in

force, if a dispute arises,—

 (a) among members, past members and persons claiming through members,  past

members and deceased members; or

 (b) between a member, past member or person claiming through  a  member,  a

past member or deceased  member  and  the  society,  its  committee  or  any

officer, agent or employee of the society; or

(c) between the  society  or  its  committee  and  any  past  committee  any

officer, agent or employee or any past officer, past agent or past  employee

or the nominee, heirs or legal  representatives  of  any  deceased  officer,

deceased agent or deceased employee of the society; or

(d) between the society and any other society; or

(e) between a society and the members of a society affiliated to it; or

(f) between the society and a person, other than a member  of  the  society,

who has been granted a loan by the society or with whom the society  has  or

had business transactions or any person claiming through such a person; or

(g) between the society and a surety of a member, past member, deceased

member or employee or a person, other than a member, who has been granted  a

loan by the society, whether such a surety is or is  not  a  member  of  the

society; or

(h) between the society and a creditor of the society,  such  dispute  shall

be referred to the Co-operative Arbitration Court constituted under  section

70A in the case of non-monetary disputes and to the Registrar, in  the  case

of monetary disputes; and the Arbitration Court or  the  Registrar,  as  the

case may be,  shall  decide  such  dispute  and  no  other  court  or  other

authority  shall  have  jurisdiction  to  entertain  any   suit   or   other

proceedings in respect of such dispute.

(2) For the purposes of sub-section (1), the following shall also be  deemed

to be disputes, namely:—

(a) a claim by the society for any debt or demand due to it  from  a  member

or the nominee,  heirs  or  legal  representatives  of  a  deceased  member,

whether such debt or demand be admitted or not;

(b) a claim by a surety against the principal debtor, where the society  has

recovered from the surety any amount in respect of any debt  or  demand  due

to it from the  principal  debtor,  as  a  result  of  the  default  of  the

principal debtor, whether such debt or demand is admitted or not;

(c) any dispute arising in connection with the  election  of  the  Board  of

Management or any officer of the society;

Explanation:—A dispute arising at any stage of an election  commencing  from

the convening of the general body meeting for the election, shall be  deemed

to be a dispute arising in connection with the election;

(d) any dispute arising  in  connection  with  employment  of  officers  and

servants of the different classes of societies specified in sub-section  (1)

of section 80, including their promotion and inter se seniority.

(3) No dispute arising in connection with  the  election  of  the  Board  of

Management or an officer of the society shall  be  entertained  by  the  Co-

operative Arbitration Court unless it is referred to  it  within  one  month

from the date of the election.”

13.   Considering aforesaid provisions of Section 69, we  do  not  find  any

force  in  the  contention  of  the  appellants  regarding  availability  of

alternate remedy by way of filing an Arbitration case under  section  69  of

the Act since in our opinion dispute between the writ  petitioners  and  the

Bank does not come within the provisions of this Section.   We are  also  of

the view that the  Bank  has  failed  to  conduct  written  examination  and

interview as per the then existing guidelines issued by the Registrar of Co-

operative Societies.  Indisputably, the respondent  writ  petitioners  moved

the High Court challenging the circulars immediately after the  notification

and prior to the conduct of examination.

14.   In view of the aforesaid, we concur with  the  decision  of  the  High

Court and do not find any merit whatsoever, in both the appeals,  which  are

accordingly dismissed with no order as to costs.

2014- Aug. Part – http://judis.nic.in/supremecourt/filename=41831

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7839 OF 2014
(Arising out of Special Leave Petition (Civil) No.9794 of 2013)

Akalakunnam Village Service Co-op. Bank Ltd.
and another ………Appellants

Versus

Binu N. and others ……..Respondents
WITH

CIVIL APPEAL NO.7840 OF 2014
(Arising out of Special Leave Petition (Civil) No.10809 of 2013)

Kishore and others ………Appellants

Versus

Binu N. and others ……..Respondents

J U D G M E N T

M.Y. EQBAL, J.

Leave granted.

2. These two appeals are directed against the judgment and order dated
12.2.2013 passed by the High Court of Kerala dismissing the two writ
appeals preferred by the appellants herein challenging the judgment of the
Single Judge whereby the writ petition filed by Respondent Nos.1 to 3 was
allowed quashing Notification inviting applications for appointment to the
post of Attender/Peon and the appointments made pursuant thereto.
3. The facts of the case lie in a narrow compass.
4. The Akalakunnam Village Service Co-op Bank Ltd. (for the sake of
brevity hereinafter referred to as “the Bank”) by Notification dated
6.6.2009 invited applications to fill up the vacant posts of 1 Attender and
3 Peons and to reserve one vacancy of Peon for members belonging to SC/ST.
The last date stipulated for submission of applications was 22.6.2009.
Pursuant to this, among others, respondent nos.1 to 3, who are writ
petitioner nos.1 to 3 applied and a written test was held on 15.7.2009 and
an interview was also conducted in the afternoon of that day.

5. In the meanwhile, respondents 1 to 3 (hereinafter referred to as
“writ petitioners”) filed writ petition challenging the aforesaid
Notification on the ground that notification does not confirm to the Kerala
Co-operative Societies Rules (in short, “the Rules”) and the circulars
issued under Rule 182(5) thereof. They also alleged in the writ petition
that steps are afoot to appoint four persons, namely, Kishore, Jomon K.J.,
Archana Binoy and Abhilash, who are appellants herein in appeal arising out
of SLP(C) No.10809 of 2013 and respondent nos.6 to 9 in appeal arising out
of SLP(C) No.9794 of 2013 [for the sake of brevity, they are hereinafter
referred to as “selected candidates”]. The Bank and the selected
candidates filed counter affidavit and contested the matter.

6. After hearing parties on either side, the learned Single Judge of the
High Court came to the conclusion that the Notification and selection
process were not issued in accordance with Circulars issued by the
Registrar of Co-operative Societies and quashed the aforesaid Notification,
selection and appointment of the selected candidates directing the Bank to
conduct a fresh selection within six months in the manner directed after
inviting applications in accordance with the Circular. Till then, the
selected candidates were permitted to work on daily wage basis subject to
the condition that their initial appointment of such continuance will not
confer on them any preference for appointment.

7. The judgment of the learned Single Judge of the High Court was
challenged by the Bank as well as selected candidates by way of two
separate writ appeals, challenging maintainability of the writ petition
against the appellant Co-operative Society. Appellants contended that the
writ petitioners have effective alternative remedy under section 69 of the
Kerala Co-operative Societies Act (in short, “the Act”). They further
contended that since the writ petitioners participated in the selection
process, they cannot turn round and take the contention that the selection
process itself is bad. It has been further contended on behalf of the
appellants that the directions in the circular are not mandatory in nature,
but are only guidelines and unless the writ petitioners prove prejudice,
the High Court should not interfere with the selection process.

8. It has been contended on behalf of the writ petitioners that a writ
would lie against a Co-operative Society when the duty owned by it is of a
public nature or when there is infringement of any statutory rules by a co-
operative society. Their contention is that under Rule 182(5) of the
Kerala Co-operative Societies Rules, in respect of societies and posts not
covered by Section 80(3)(A) and Section 80B of the Act, the appointments
shall be made by the committee after conducting the written examination and
interview as per the guideline issued by the Registrar. The Government and
the Registrar have issued Exts. P3 to P6 guidelines under Rule 182(5)
regarding the conduct of examination and interview to the post of
Attender/Peon. Ext. P1 Notification issued by the Bank is clearly in
violation of the guidelines issued as per the circulars relied upon and
there being statutory violation, the writ petition would certainly lie
against the Bank. It has also been submitted on behalf of the writ
petitioners that the written test must have been conducted by an outside
agency, whereas, in the present case, the committee authorized the
President to find out a suitable person to conduct the written test. With
regard to alternative remedy, it has been contended that the writ
petitioners do not have any alternative remedy available insofar as Section
69 is not applicable to them. It has been further contended by them that
the writ petition was filed even before the conduct of the written test and
immediately after publication of the Notification.

9. Considering the rival contentions in detail and concerned provisions
of the Act and Kerala Co-operative Societies Rules, the Division Bench of
the High Court did not find any merit in the writ appeals and dismissed
both the writ appeals preferred by the appellants herein. Hence, the
present appeals by special leave.

10. We have heard learned counsel for the parties appearing on either
side and have gone through the impugned order passed by the Division Bench
of the High Court.

11. We do not find any reason to interfere with the findings of the High
Court. Rule 182(5) of the Rules stipulates that “In respect of
societies and posts not covered by section 80(3)(A) and Section 80B of the
Act, the appointments shall be made by the Committee after conducting the
written examination and interview as per the guidelines issued by the
Registrar”. The circulars issued by the Government and Registrar of the
Co-operative Societies have statutory force and specifically stipulate the
procedure for conducting the selection to the post of sub staff.

12. We would also like to quote Section 69 of the Act hereunder to
analyze contention of alternate remedy:

“69. Disputes to be decided by Co-operative Arbitration Court and
Registrar.—
(1) Notwithstanding anything contained in any law for the time being in
force, if a dispute arises,—
(a) among members, past members and persons claiming through members, past
members and deceased members; or
(b) between a member, past member or person claiming through a member, a
past member or deceased member and the society, its committee or any
officer, agent or employee of the society; or
(c) between the society or its committee and any past committee any
officer, agent or employee or any past officer, past agent or past employee
or the nominee, heirs or legal representatives of any deceased officer,
deceased agent or deceased employee of the society; or
(d) between the society and any other society; or
(e) between a society and the members of a society affiliated to it; or
(f) between the society and a person, other than a member of the society,
who has been granted a loan by the society or with whom the society has or
had business transactions or any person claiming through such a person; or
(g) between the society and a surety of a member, past member, deceased
member or employee or a person, other than a member, who has been granted a
loan by the society, whether such a surety is or is not a member of the
society; or
(h) between the society and a creditor of the society, such dispute shall
be referred to the Co-operative Arbitration Court constituted under section
70A in the case of non-monetary disputes and to the Registrar, in the case
of monetary disputes; and the Arbitration Court or the Registrar, as the
case may be, shall decide such dispute and no other court or other
authority shall have jurisdiction to entertain any suit or other
proceedings in respect of such dispute.

(2) For the purposes of sub-section (1), the following shall also be deemed
to be disputes, namely:—
(a) a claim by the society for any debt or demand due to it from a member
or the nominee, heirs or legal representatives of a deceased member,
whether such debt or demand be admitted or not;
(b) a claim by a surety against the principal debtor, where the society has

recovered from the surety any amount in respect of any debt or demand due
to it from the principal debtor, as a result of the default of the
principal debtor, whether such debt or demand is admitted or not;
(c) any dispute arising in connection with the election of the Board of
Management or any officer of the society;
Explanation:—A dispute arising at any stage of an election commencing from
the convening of the general body meeting for the election, shall be deemed
to be a dispute arising in connection with the election;
(d) any dispute arising in connection with employment of officers and
servants of the different classes of societies specified in sub-section (1)
of section 80, including their promotion and inter se seniority.
(3) No dispute arising in connection with the election of the Board of
Management or an officer of the society shall be entertained by the Co-
operative Arbitration Court unless it is referred to it within one month
from the date of the election.”

13. Considering aforesaid provisions of Section 69, we do not find any
force in the contention of the appellants regarding availability of
alternate remedy by way of filing an Arbitration case under section 69 of
the Act since in our opinion dispute between the writ petitioners and the
Bank does not come within the provisions of this Section. We are also of
the view that the Bank has failed to conduct written examination and
interview as per the then existing guidelines issued by the Registrar of Co-
operative Societies. Indisputably, the respondent writ petitioners moved
the High Court challenging the circulars immediately after the notification
and prior to the conduct of examination.

14. In view of the aforesaid, we concur with the decision of the High
Court and do not find any merit whatsoever, in both the appeals, which are
accordingly dismissed with no order as to costs. Consequently, the interim
order of stay granted by this Court stands vacated.

…………………………….J.
(Ranjan Gogoi)

…………………………….J.
(M.Y. Eqbal)
New Delhi,
August 20, 2014.

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