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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.

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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.    

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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  

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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  

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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  

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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.

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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  

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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  

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(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,  

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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  

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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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