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Sunday, August 31, 2014

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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