Judgment
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE BASANT BALAJI
WEDNESDAY, THE 28TH DAY OF FEBRUARY 2024 / 9TH PHALGUNA, 1945
WP(C) NO. 24957 OF 2023
PETITIONER/S:
NITHIN THOMAS, AGED 30 YEARS, S/O. THOMAS DEVASIA, KUTTAMPEROOR HOUSE, THRIKKODITHANAM P.O, CHANGANACHERRY, PIN - 686105
BY ADVS.JOHN VARGHESE SONU AUGUSTINE
RESPONDENT/S:
1 THE REGISTRAR OF CO-OPERATIVE SOCIETIES REGISTRAR'S OFFICE (CO-OPERATIVE SOCIETIES), JAWAHAR SAHAKARANA BHAVAN, DPI JUNCTION, THYCAUD P.O, THIRUVANANTHAPURAM, PIN - 695014
2 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), COLLECTORATE BUILDING, K.K. ROAD, KOTTAYAM, PIN - 686002
3 VAZHAPPALLY SERVICE CO-OPERATIVE BANK LIMITED NO.
K.108, VAZHAPPALLY P.O, CHANGANACHERRY, KOTTAYAM,, REPRESENTED BY ITS SECRETARY, PIN - 686103
4 THE SECRETARY, VAZHAPPALLY SERVICE CO-OPERATIVE BANK LIMITED NO. K.108, VAZHAPPALLY P.O, CHANGANACHERRY, KOTTAYAM, PIN - 686103
5 ANISH JOSEPH, ASARIPARAMBIL, KAKKAMTHODU, CHANGANACHERRY, PIN - 686101
BY ADVS.Shaji Thomas A.AMRUTHA VIDYADHARAN MOHAN PULIKKAL(K/64A/1985) JEN JAISON(K/000208/2017)
OTHER PRESENT:
GP SMT PRINCY XAVIER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT (Dated this the 28th day of February 2024)
The petitioner applied to the post of Peon under the category of persons with disability pursuant to Ext.P3 notification issued by the 3rd respondent. The petitioner is having 89% permanent speech and hearing disability under profound hearing loss as evidenced by Ext.Nos.P1 and P2. Ext.Nos.P4 and P5 are Circulars issued by the first respondent which governs the appointments of persons with disability to the post of peons, typists and clerks.
2. The petitioner appeared for the written examination conducted on 21.7.2023 and without publishing the rank list, respondent Nos.3 and 4 appointed the 5th respondent as Peon in violation of Ext.Nos.P4 and P5 Circulars. The petitioner submitted a representation on 26.7.2023 before respondent Nos.
2 and 4. Being aggrieved by the illegal appointment of 5th respondent by respondent Nos.3 and 4, the petitioner approached
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this court to call for the records leading to Ext.Nos.P1 to P8 and to declare that the selection process adopted by respondent Nos.3 and 4 to the post of peon under the category of persons with disability is against Ext.Nos.P4 and P5 circulars. A further relief is for a declaration that the appointment of 5th respondent is illegal and against Ext.Nos.P4 and P5 circulars is also sought.
3. A counter affidavit is filed on behalf of the 2nd respondent. It is stated that a notification was published in 2 dailies on 14.6.2023 and 8 applications were received in the physical handicapped category. Out of the 8 candidates, there was one candidate coming under deaf category and rest 7 candidates belong to persons with moving disability category. No applications came from candidates from partial blind category. As per clause 5 of Ext.P4 Circular No.54 of 2022, disabilities are classified into 3 categories in the order of preference as, (i) persons with eye sight disability, (ii) persons with hearing disability and (iii) persons with locomotor
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disability/cerebral palsy. It was stipulated that the appointments should be in the ratio of 1:1:1 within 3 category of persons. It is also submitted that as per clause 6 of the said circular, if a candidate belonging to any one category is not available, then the bank has to keep the vacancy in abeyance and to republish the notification and even after the re-notification also if no candidate applied for the post, then the appointing authority can make appointments from among other physically disabled categories in order. It is further stated that out of the 8 persons, who had applied to the post of peon, in physically challenged category there was no candidate belonging to category (1), i.e, persons with eye sight disability. But the bank did not republish the notification and directly appointed the candidates from category (3) by overlooking a candidate in the category (2), i.e., persons with hearing disability, against clause 6 of the Circular.
4. Respondent Nos.3 and 4 also filed a counter affidavit. It is submitted that the appointment of the 5th respondent as peon
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is essentially a dispute coming under the definition of Section 2(i) of the Kerala Co-operative Societies Act, 1969 (for short ‘the Societies Act’) confers exclusive jurisdiction on Co- operative Arbitration Court and he cannot invoke jurisdiction of this court. It is also submitted that the 3rd respondent Bank has strictly followed the guidelines issued by the Registrar of Co- operative Societies in the recruitment process to the post of peons. Advertisement was given in 2 vernacular newspapers inviting applications to the post of peons. One vacancy was reserved for physically challenged person. An outside agency, approved by the Registrar of Co-operative Societies, conducted the test. The test was conducted on 21.7.2023 and the interview was conducted on the same day itself. The petitioner participated in written test and interview and the rank list was prepared based on the marks secured in the written test and in the interview. The petitioner got only 25 marks in the written test whereas the 5th respondent got 52 marks. Similarly, the
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petitioner got 13 marks in the interview whereas the 5th respondent got 16.90 marks. Thus, the total marks obtained by the petitioner and the 5th respondent are 38 and 68.90 respectively.
5. The Managing Committee approved the rank list and published on 27.7.2023. The petitioner is placed in rank list as Sl.No.6 and the 5th respondent as Sl.No.1. Accordingly, the 5th respondent joined in service of the 3rd respondent Bank as peon. The allegation of the petitioner that overlooking the circulars issued by the Registrar of Co-operative Societies, that the 5th respondent was appointed, was denied. Ext.Nos.P4 and P5 circulars only deal with the reservation of posts, which says that the posts are for persons with partial hearing disability and not to persons who suffer 89% profound hearing. The circulars specifically state that the post reserved for person with disabilities, is for the person who has partial hearing capacity. The petitioner is not a person fit to be considered for
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appointment to the post of peon in the respondent Bank. Therefore, prayed for dismissal of the Writ Petition.
6. A counter affidavit is filed by the 5th respondent, in which it is submitted that in exercise of the powers under Section 32 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1955, the 1st respondent issued circular No.54/2011 dated 14.7.2011 identifying the posts which can be reserved for persons with disability. In the appendix, for the post of Peon/Attender category, persons with partial blindness, partial hearing impairment and locomotor disability were identified. The persons who are deaf and dump and having profound hearing impairment were not included in the post of peon/attender, but were classified as suitable for clerk and typists. Since the circular omitted to include persons having partial blindness in the category of clerks and typists, Ext.P5 Circular was issued incorporating the persons with partial blindness also in the
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category of Clerks/typists. Ext.P5 circular dated 24.1.2020 was issued only to the extent of rectifying the omission to include the persons having partial blindness in the category of clerk and typists in Ext.P4. The petitioner is having a profound hearing impairment of 89% and so, it cannot be termed as partial. Hence, he cannot be considered to the post of Peon to the respondent Bank as per Ext.P3 notification. The 3rd respondent published the rank list and put up in the notice board on 28.7.2023.
7. Heard Sri John Varghese for the petitioner, Government Pleader Smt.Princy Xavier, Shri Shaji Thomas for respondent Nos.3 and 4 and Smt.Amrutha Vidhyadharan for 5th respondent.
8. The question to be considered in the Writ Petition is whether in the process of appointment of 5th respondent in the Bank, Ext.Nos.P4 and P5 circulars were considered in strict sense. Ext.P4 circular is issued on 14.7.2011, by which applications to the posts were invited for persons, who were having disabilities like blindness, hearing impairment and
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locomotor disabilities to be appointed in the ratio of 1:1:1. Clause (6) of Ext.P4 specifically states that if there is no person in any of the categories, a re-notification has to be published and in response to the re-notification also if there are no eligible candidate for the above mentioned category, then any of the person coming under any of the 3 categories above, can be appointed in order. The appendix attached to Ext.P4 shows that as far as the Peon/Attenders are concerned, persons with partial blindness, partial hearing impairment and locomotor disability can be appointed. Subsequently, on 24.1.2020, Ext.P4 was modified by circular No.8 of 2020 by including the persons with partial blindness to the post of clerk/ typist. When Ext.P4 was amended, the clause ‘persons who are having partial hearing impairment’ was modified as ‘deaf, deaf and dumb, and persons with partial hearing impairment’. This is very clear from Appendix to Ext.P5. In Ext.P5, priority is still maintained i.e., first priority goes to persons with partial blindness, secondly to
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deaf, deaf and dump, and partial hearing and thirdly locomotor disability.
9. The counsel for the petitioner relied on the decision of the apex court in Akalakunnam Village Service Co-operative Bank Ltd. v. Binu N [2014 (9) SCC 294] in which the apex court had an occasion to consider whether writ petition is maintainable when selection process was not in accordance with the circulars issued by the Registrar of Co operative societies. The apex court held as follows:
“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 cooperative society. Their contention is that under R.182(5) of the Kerala Cooperative Societies Rules, in respect of societies and posts not covered by S.80(3)(A) and S.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 R.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
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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 authorised 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 S.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.
13. Considering aforesaid provisions of S.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 S.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.”
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The apex court thereafter held that the dispute of selection of peon/attender on ground that it is in violation of the statutory rules cannot be rejected as not maintainable on the ground of availability of alternate remedy under Section 69 of the Societies Act.
10. It is an admitted fact that the petitioner is having hearing impairment of 89% and 5th respondent is having locomotor disability. When Ext.P5 gives priority as stated above, the appointment can be made only in the order in which the appendix states. It is also a fact that there was no any other candidate in the category of partial blindness. When there is no person in the first category, necessarily a re-notification has to be published and even after re-notification, if there is no candidate in the 1st category then it has to go to the 2nd category and 3rd category respectively.
11. The contention raised by the counsel for the respondent Nos.3 and 4 is that the petitioner is having 89% profound hearing
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impairment and therefore, he cannot be appointed to the post advertised as per Ext.Nos.P4 and P5, because a profound hearing means a person with severe hearing loss and not able to hear the speech of any person at normal level. Since the petitioner did not qualify, the 5th respondent was appointed. Ext.P5 is the present circular, coupled with Ext.P4 circular. In the appendix to Ext.P5, it specifically categorizes the persons with hearing impairment as deaf, deaf and dump and partial hearing impairment. So, at no stretch of imagination, it can be said that a person who is having 89% of profound hearing is not competent to be appointed as peon, when a person who is totally deaf and dump and deaf is entitled to be appointed as per Ext.P5 appendix. Therefore, the act of respondent Bank in appointing the 5th respondent, who is coming in the category after that of the petitioner, is illegal.
12. The next contention raised is that there is an alternate remedy under the Societies Act and the Kerala Co-operative Societies Rules and the petitioner has to avail the statutory
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remedy. Sections 69(1)(h) and 2(d) of the Societies Act deal with disputes to be decided by the Co-operative Arbitration Court. Since this is a dispute arising with employment, Section 69(2)(d) of the Act deals with any dispute arising in connection with employment of officers or servants of the different classes of the Society specified in sub-section (1) of Section 80, including their promotion and inter seniority. It is argued by the counsel for respondent Nos.3 to 5 that this being a dispute arising in connection with employment, the proper statutory remedy is to approach the Co-operative Arbitration Court and not this court.
13. The counsel for respondent Nos.3 and 4 relied on a judgment of this Court in W.A. No.2119 of 2016 in W.P.(C) No.8805 of 2010 dated 16.7.2018, wherein the Division bench held that the order in exercise of the jurisdiction under Rule 176 of the Kerala Co-operative Societies Rules, 1969 cannot be invoked to annul an employment in a Co-operative bank and the same has to be agitated under Section 69(2)(d) of the Societies
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Act by raising a dispute before the Co-operative Arbitration Court.
14. The counsel for the 5th respondent relied on a judgment of the Apex Court in Surendra Mohan V v.State of Tamil Nadu [2019 (4) SCC 237] and contended for the proposition that reservation of posts for persons with disabilities under partially blind category stipulating a limit of 50% disability in hearing impairment or visual impairment as a condition to be eligible for the post is a legitimate restriction and it is fair, logical and reasonable. That was a case in which notification was issued inviting applications for direct recruitment for the post of Civil Judge (junior division). The disability assessed to the appellant was 70% (visual impairing). The notification issued stating that the persons with partial blindness with 40% - 50% disability and partially deaf categories can alone apply to the post. This was challenged before the High Court of Tamil Nadu and the Division Bench held that a notification issued prescribing blind with 40%
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- 50% are eligible to apply, was held to be valid. It is aggrieved by the said judgment, the petitioner approached the apex court. The apex court having considered the issue in detail, held as follows:
39. The legal position with regard to reservation of posts for persons with disability is now well established that every appropriate Government is obliged to reserve posts for persons or class of persons with disability. In the present case, we are concerned with partial disability. The present is not a case where the respondent has not reserved the post for partial disability as required by S.33 of the Act, 1995. Thus, requirement of reservation as mandated by S.33 is clearly fulfilled. The issue is regarding eligibility of appellant to participate in the selection and as to whether the requirement in the advertisement that only those, who suffer from disability of 40%-50% are eligible, is contrary to the Act, 1995 or is in breach of any statutory provision. The State, which is appointing authority of Public Service in consultation with the High Court with reference to post of Civil Judge (Junior Division) can very well lay down the essential eligibilities and requirement requirement for the post. When the State, High Court and Public Service Commission are of the view that disability, which is suitable for appointment on the post of Civil Judge should be between 40%-50%, the said prescription does not violate any statutory provision nor contravene any of the provisions of the Act, 1995. It is well within the power of appointing authority to prescribe eligibility looking to the nature of the job, which is to be performed by holder of a post.”
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It is to be noted that as far as the post of Civil Judge (Junior Division) is concerned, a person who is having a disability of more than 50% of blindness or hearing impairment cannot be said to be arbitrary or justified. The post of a Civil Judge cannot be compared with the post of a Peon.
15. When Ext.Nos.P4 and P5 specifically direct that candidates who are totally deaf or deaf and dump can apply, definitely a person who is having hearing impairment of 89% can also apply under the same category. He cannot be discriminated against the persons in his own group. Therefore, the facts of the case in Surendra Mohan V.’s case (supra) are distinguishable with the facts of this case.
16. As far as the alternate remedy is concerned, it is well settled that the apex court in Whirlpool Corporation v.
Registrar of Trade Marks [(1998) 8 SCC1] has carved out some exceptions on the existence of a writ jurisdiction, when
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there is alternate remedy provided by the statute. The conditions are:
“(i) where the writ petition seeks enforcement of any of the fundamental rights, (ii) where there is violation of principles of natural justice, (iii) where the order or the proceedings are wholly without jurisdiction or (iv) where the vires of an Act is challenged.”
17. The apex court in Radha Krishan Industries v. State of H.P., (2021) 6 SCC 771, in paragraph No.24 held as follows:
24. The High Court has dealt with the maintainability of the petition under Article 226 of the Constitution. Relying on the decision of this Court in CCT v. Glaxo Smith Kline Consumer Health Care Ltd. [CCT v. Glaxo Smith Kline Consumer Health Care Ltd., (2020) 19 SCC 681 : 2020 SCC OnLine SC 440] , the High Court noted that although it can entertain a petition under Article 226 of the Constitution, it must not do so when the aggrieved person has an effective alternate remedy available in law. However, certain exceptions to this “rule of alternate remedy” include where, the statutory authority has not acted in accordance with the provisions of the law or acted in defiance of the fundamental principles of judicial procedure; or has resorted to invoke provisions, which are repealed; or where an order has been passed in violation of the principles of natural justice. Applying this formulation, the High Court noted that the appellant has an
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alternate remedy available under the GST Act and thus, the petition was not maintainable.
Therefore, it can be seen that the circulars issued by the Registrar have also the effect of statutory nature and therefore, the statutory authority has not acted in accordance with the provisions of law and procedure. So, the appointment of the 5th respondent is totally in defiance of Ext.Nos.P4 and P5 and the appendix thereafter. Hence, the petitioner need not be relegated to the statutory remedy under Section 69(2)(d) of the Societies Act. There is no factual dispute as to the question whether the petitioner is partially deaf and the question that the 5th respondent is only with locomotor disability. Only if there is factual dispute then the statutory remedy is to be invoked. A plain reading of Ext.Nos.P4 and P5 would show that definitely there is violation of the circulars issued in making appointment
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of the 5th respondent to the post of peon. Accordingly, the petitioner is entitled to the relief from this court.
In the result, this Writ Petition is allowed and Ext.P9 is quashed. Therefore, there will be a direction to respondent Nos.3 and 4 to fill up the post based on Ext.Nos.P4 and P5.
Sd/- BASANT BALAJI JUDGE
dl/
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APPENDIX OF WP(C) 24957/2023
PETITIONER EXHIBITS
Exhibit P-1 TRUE COPY OF THE CERTIFICATE FOR THE PERSONS WITH DISABILITIES ISSUED BY THE MEDICAL BOARD CONSTITUTED BY THE DISTRICT MEDICAL OFFICER DATED 28-09-2010
Exhibit P-2 TRUE COPY OF THE UNIQUE DISABILITY IDENTITY CARD ISSUED TO THE PETITIONER BY THE GOVERNMENT OF INDIA, DATED 27-03-2020
Exhibit P-3 TRUE COPY OF THE NOTIFICATION DATED 13-06-2023 PUBLISHED IN MATHRUBHUMI DAILY ON 14-06-2023, ISSUED BY THE 3RD RESPONDENT
Exhibit P-4 TRUE COPY OF THE CIRCULAR NO. 54/2011 DATED 14-07- 2011 ISSUED BY THE 1ST RESPONDENT
Exhibit P-5 TRUE COPY OF THE CIRCULAR NO. 8/2020 DATED 24-01- 2020 ISSUED BY THE 1ST RESPONDENT
Exhibit P-6 TRUE COPY OF THE HALL TICKET DATED 12-07-2023, ISSUED TO THE PETITIONER BY THE 4TH RESPONDENT
Exhibit P-7 TRUE COPY OF THE REPRESENTATION DATED 26-07-2023 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT
Exhibit P-8 TRUE COPY OF THE REPRESENTATION DATED 26-07-2023 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT
Exhibit P-9 True copy of the appointment order dated 27-07-2023 issued to the 5th respondent by the 3rd respondent
RESPONDENT EXHIBITS
Exhibit R5(a) True copy of the Certificate for the Persons with Disabilities issued by the District Medical Officer dated 17.01.2014
Exhibit R3(a) True photocopy of the judgment dated 23.01.2019 in W.A. No. 2431/2018 and connected Writ Appeals
Exhibit R3(b) True photocopy of the judgment dated 12.10.2018 of this Hon'ble Court in W.A.No.2012/2018
Exhibit R3(c) True copy of the judgment dated 18.07.2018 of the learned Single Judge in WP(C) No. 42030/2017.