AKALAKUNNAM VILLAGE SERVICE CO-OP. BANK LTD. AND ANOTHERversusBINU N. AND OTHERS

                         [2014] 9 S.C.R: 414


A   AKALAKUNNAM VILLAGE SERVICE CO-OP. BANK LTD.
                   AND ANOTHER
                                   v.
                       BINU N. AND OTHERS
                   (Civil Appeal No.7839 of 2014)
B
                         AUGUST 20, 2014
             [RANJAN GOGOi AND M.Y. EQBAL, JJ]

        SERVICE LAW:
c
       Appointment - Appointments made to posts of Attender
  and Peon - Challenged - Held: Bank has failed to conduct
  written examination and interview as per the then existing
  guidelines issued by Registrar of Co-operative Societies -
D High Court rightly quashed the selection and appointments
  of selected candidates and directed the Bank to conduct a
  fresh selection in accordance with the Circular.

        CONSTITUTION OF IND/A, 1950:

E      Art. 226 - Writ petition - Alternative remedy - Wlit petition
  challenging selections made by V!l/age Co-operative Bank -
  Held: Maintainable - The dispute between writ petitioners and
  Bank does not come within the provision of s. 69 of Kera/a Co-
  operative Societies Act - Therefore, it cannot be said that
F alternative remedy by way of arbitration was available to them.
       A Village Service Co-operative Bank Ltd., 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
G SC/ST. Pursuant to this, among others, respondents
  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. In the meanwhile, respondents .1
  to 3 filed a writ petition challenging the. Notification dated
H                                414
AKALAKUNNAM VILLAGE SERVICES CO-OP. BANK 415
              LTD. v. BINU N.
6.6.2009 on the ground that the said notification was not     A
in conformity with the Kerala Co-operative Societies
Rules and the circulars issued under r."182(5) thereof. The
Single Judge of the High Court allowed the writ petition
and quashed the Notification, selection and appointment
of the selected candidates directing the Bank to conduct      B
a fresh selection, in accordance with the Circular. Till
then, the selected candidates were permitted to work on
aaily wage basis.

     In the instant appeals, it was contended that the
respondent-writ petitioners had effective alternative         C
remedy by way of arbitration petition u/s 69 of the Kerala
Co-operative Societies Act; and that since the writ
petitioners participated in the selection process, they
could not turn round and challenge the selection process
itself is bad.                                                D

    Dismissing the appeals, the Court

     HELD: 1.1. There is no reason to interfere with the
findings of the High Court. Rule 182(5) of the Kerala Co-     E
operative Societies Rules stipulates that "In respect of
societies and posts not covered by s.80(3)(A) and s.80B
of the Kerala Co-operative Societies Act, the
appointments shall be made by the Committee after
conducting the written examination and interview as per
                                                              F
the guidelines issued by the Registrar". The circulars
issued by the Government and Registrar of the Co-
operative So~ieties have statutory force and specifically         ....
stipulate the procedure for conducting the selection to
the post of sub staff. In the instant case, the Bank has
failed to conduct written examination and interview as        G
per the then existing guidelines issued by the Registrar
of Co-operative Societies. This Court concurs with the
decision of the High Court. [para 11, 13 and 14) [419-E-
F; 422-C-E]
                                                              H
    416        SUPREME COURT REPORTS [2014] 9 S.C.R.


A      1.2. Considering the provisions of s.69 of the Kerala
   Co-operative Societies Act, the dispute between the writ
 · petitioners and the Bank does not come within the
   provisions of this Section, and, therefore, it cannot be
   said that alternate remedy by way of fiHng an arbitration
B case u/s 69 of the Act was available to them. [para 13]
    [422-8, C]

      1.3. Indisputably, the respondent writ petitioners
  moved the High Court challenging the circulars
  immediately after the notification and prior to the conduct
C of examination. Therefore, it can also not be said that they
  could not challenge the selection process. [para 13] [422-
    D]
       CIVIL APPELLATE JURISDICTION: Civil Appeal No.7839
D of 2014.
                         . -~-
        From the Judgment and Order dated 12.02.2013 of the
    High Court of Kerala in W.A. No. 364 of 2010.

                                   WITH
E
    Civil Appeal No. 7840 of 2014.

       Shekhar Naphade, Praseena Elizabeth Joseph,
    Madhurima Tatia, Gaurav Mitra and M.P. Shorawala for the
F   Appellant                     ·

          Liz Mathew, M.F. Philip for the Respondents.

          The Judgment of the Court was delivered by

          M.Y. EQBAL, J. ·1. Leave granted.
G
      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
H the writ petition filed by Respondent Nos.1 to 3 was allowed
    '
 AKALAKUNNAM VILLAGE SERVICES CO-OP. BANK 417
        LTD. v. BINU N. [M.Y. EQBAL, J.]
 quashing Notificatibn inviting applications for appointment to the       A
 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             B
 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.            C
 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.
                                                                          D
        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.       E
.· 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 201.3 [for the sake of         F
   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                 G
  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          H
    418        SUPREME COURT REPORTS [2014) 9 S.C,R.


A   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.
B
       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-
e 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
D 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
  Hi~I" Court should not interfere with the selection process.

E       8. It has been contended on behalf of the writ petitioners
  th<At 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-
F operative Societies Rules, in respect of societies and posts not
  covered by Section 80(3)(A) and Section 808 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
G 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
H on behalf of the writ petitioners that the written test must have
AKALAKUNNAM VILLAGE SERVICES CO-OP. BANK 419
       LTD. v. BINU N. [M.Y. EQBAL, J.]
been conducted by an outside agency, whereas, in the present        A
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        B
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             C
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.
                                                                    D
    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
                                                                    E
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-         F
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           G
hereunder to analyze contention of alternate remedy:

     "69. Disputes to be decided by Co-operative Arbitration
     Court and Registrar.-
                                                                    H
    420        SUPREME COURT REPORTS [2014] 9 S.C.R.


A         (1) Notwithstanding anything contained in any law for the
          time being in force, if a disputearises,-

                 (a) among members, past members and persons
                 claiming through members, past members and
                 deceased members; or
B
                 (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
                (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
D               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
E               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
F
                 thrqug~ 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
G                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
H
AKALAKUNNAM VILLAGE SERVICES CO-OP. BANK 421
       LTD. v. BINU N. [M.Y. EQBAL, J.]

          the case of non-monetary disputes and to the             A
          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 proceedin_gs in respect of such        ~,i
          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        C
          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,    o
          where the society hasre covered from the surety
          any amount inrespect of any debt or demand due
          to it from the principal debtor, as a result of !he
          default of the principal debtor, whether such debt
          or demand is admitted or not;
                                                                   E
          (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      F
   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     G
          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   H
    422         SUPREME COURT REPORTS [2014] 9 S.C.R.


A         Board of Management or a.n officer of the society shall be
          entertained by the Co-operative Arbitration Court unTess ·
          it is referred to it within one month from the date of the
          election."

B       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 6~ of the Act since in our opinion dispute
  between the writ petitioners and the Bank does not come within
C 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
D examination.

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

    Rajendra Prasad                               Appeals dismissed.