Aboobacker Sidhik v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 11TH DAY OF NOVEMBER 2014/20TH KARTHIKA, 1936** ## **WP(C).No. 13381 of 2014 (W)** **----------------------------** ## **PETITIONER:** - **------------------** **ABOOBACKER SIDHIK, S/O.PAREETH, RESIDING AT CHANGARATH KALAM, KALAPPARA, KALIYAR ROAD P.O, CHELAKKARA-680 586, THRISSUR DISTRICT.** **BY ADVS.SRI.C.A.MAJEED SRI.K.H.ASIF SMT.RAAGA R.RAMALAKSHMI** **RESPONDENT(S): --------------------------** ## **1. STATE OF KERALA,** - **REPRESENTED BY PRINCIPAL SECRETARY, CO-OPERATIVE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM- 695 001.** **2. REGISTRAR, CO-OPERATIVE SOCIETIES, CO-OPERATIVE REGISTRAR'S OFFICE, THIRUVANANTHAPURAM- 695 001.** **3. JOINT REGISTRAR, CO-OPERATIVE SOCIETIES, CIVIL STATION, AYYANTHOLE THRISSUR - 680 001.** **4. ASSISTANT REGISTRAR, CO-OPERATIVE SOCIETIES, THALAPALLY TALUK, THRISSUR - 680001.** **5. PULAKKODE SERVICE CO-OPERATIVE BANK LTD.NO.185, PULAKKODE P.O, 680 586, REPRESENTED BY IT'S SECRETARY** **6. MANAGING COMMITTEE,** - **PULAKKODE SERVICE CO-OPERATIVE BANK LTD.NO.185, PULAKKODE P.O - 680 586, REPRESENTED BY IT'S PRESIDENT** **--2--** **--2--** **WP(C).No. 13381 of 2014 (W)** **----------------------------------------** ## ***ADDL. R7 IMPLEADED** ***7. DHANYA K.S., W/O. SREEJITH, AGED 25 YEARS, RESIDING AT THATTAMPLAKKAL HOUSE, THONNURKKARA P.O. ,THRISSUR - 680 610.** **ADDL.R7 IS IMPLEADED AS PER ORDER DATED 08/10/2014 IN IA. 13184/2014.** **R1 TO R4 BY GOVERNMENT PLEADER SRI.BIJU MEENATTOOR R6 BY ADV. SRI.P.N.MOHANAN ADDL.7 BY ADV. SRI.GEORGE POONTHOTTAM** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** **WP(C).No. 13381 of 2014 (W) ----------------------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS: -------------------------------------** **EXT.P1 - A PHOTOCOPY OF THE RELEVANT PAGES OF BUDGET OF THE 4TH RESPONDENT BANK FOR THE YEAR 2013-2014. EXT.P2 - A PHOTOCOPY OF THE RELEVANT PAGES OF AUDIT REPORT OF THE 4TH RESPONDENT BANK ACCOUNTS FOR THE YEAR ENDING 31/03/2011. EXT.P3 - A PHOTOCOPY OF THE RTI APPLICATION SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT DATED 11.6.2014. EXT.P4 - A PHOTOCOPY OF THE REPLY PROVIDED BY THE 4TH RESPONDENT DATED 25.6.2014. EXT.P5-SERIES: A PHOTOCOPY OF THE AUDITED BALANCE SHEET SERIES FOR FYS' 2009-2013 FORWARDED BY THE ASSISTANT DIRECTOR (AUDIT), THALAPPILLY VIDE ITS LETTER DATED 27.6.2014. RESPONDENT(S)' EXHIBITS: --------------------------------------EXT.R6(A) : A TRUE COPY OF THE RELEVANT PAGE OF THE AUDITED BALANCE OF THE YEAR, 2010-2011 OF THE BANK. EXT.R6(B) : A TRUE COPY OF THE RELEVANT PAGE OF THE AUDITED BALANCE OF THE YEAR, 2011-2012 OF THE BANK. EXT.R6(C) : A TRUE OCPY OF THE RELEVANT PAGE OF THE AUDITED BALANCE OF THE YEAR, 2012-2013 OF THE BANK. EXT.R6(D) : A TRUE OCPY OF THE STAFF FIXATION ORDER ALONG WITH FEEDER CATEGORY SUB RULES. EXT.R7(A) : TRUE COPY OF THE RANK LIST PREPARED BY THE BANK.** **/TRUE COPY** **P.A. TO JUDGE** **mbr/** ## **K. VINOD CHANDRAN, J. ===================== W.P.(C) No.13381 of 2014 - W ====================== Dated this the 11[th] day of November, 2014** ## **J U D G M E N T** The petitioner is aggrieved by the recruitment sought to be made to the 5[th] respondent Bank. The allegations are principally based on the ground that, the 5[th] respondent Bank is a loss making institution. The petitioner also raises a contention that the Bank has not obtained approval for such recruitment, from the Joint Registrar. The recruitment is said to be made after effecting illegal promotions, from the post of Junior Clerks to Senior Clerks. The petitioner in the writ petition also raises a contention that the requirement in the 5[th] respondent Bank is only 7 staff members. Such assertion is made on the basis of his prior status, as a Director of the 5[th] respondent Bank. 2. The 6[th] respondent has filed a counter affidavit, wherein it is also admitted that the respondent has some W.P.(C) No.13381 of 2014 - W **2** accumulated loss. But the results of the subsequent years would show that the respondent Bank is coming out of the red. The figures have been stated in paragraph 4 with reference to the audited Balance Sheet of the years 2010-11, 2011-12 and 2012-13 produced as Exts.R6(a), R6(b) and R6(c), which belie the contention that respondent Bank is at an abject loss. The respondent Bank is categorised as a Class-II society with a sanctioned employees strength of 15 employees, as per Appendix-III of the Kerala Co-operative Societies Act, 1969. 3. The staff fixation order is also produced at Ext.R6(d), which is said to be approved by the Joint Registrar. The contention of the respondent Bank is that as against the sanctioned strength of 15, the respondent Bank has at present only 6 staff members. The recruitment is intended at making two appointments to the post of Junior Clerk, that too by the Co-operative Service Recruitment Board and not directly by the Managing Committee. The W.P.(C) No.13381 of 2014 - W **3** Bank is said to be running in two shifts, one commencing from 7.30 a.m and the other from 1.30 p.m and requirement of two Junior Clerks to man the counters is projected as the reason for the aforesaid recruitment. 4. At the outset, the claim of illegal promotions is to be formed to be not the subject matter of the above writ petition. None of the persons, who are promoted to the post of Junior Clerks to the post of Senior Clerks are seen impleaded herein. Despite some general statements made about such promotions in the memorandum, no allegations are levelled nor the affected parties impleaded. Hence, there can be no interference with the promotions made in the respondent Bank, especially on the ground of the affected parties not being impleaded herein. 5. The learned Counsel for the petitioner would rely on **Mohanan and Others** v. **State of Kerala and Others [2010(3) KHC 634],** to contend that the financial condition of a society is a relevant factor to be considered W.P.(C) No.13381 of 2014 - W **4** ## in making fresh appointments. 6. Primarily it is to be noticed that, in the above writ petition, the society was attempting to fill up three posts one each of Attender, Peon and Salesman, which was sought to be made by the Managing Committee itself, by a public notification. On going through the above decision, this Court does not find any declaration indicating that, no appointments could be made to a Society, when the same is reeling under financial constrains. The dictum laid down is only to the effect that financial condition is one of the relevant factors, which was to be considered by a society when making appointments. 7. The decision was rendered in the contract of the specific allegation made by the petitioner's there is to the manner in which the recruitment process was undertaken by the Bank, purportedly to appoint named persons. The leaned Single Judge found that therein as clear violation of Rule 182(5) of Kerala Co-operative Societies Rules, 1969 W.P.(C) No.13381 of 2014 - W **5** read with the Circular No.18/91 dated 07.06.1991 prescribing the procedure for making recruitment to posts not covered by Section 80(3) and Section 80B of the Kerala Co-operative Societies Act, 1969. The reference to financial constraints being a relevant factor in making appointments was not the finding on which the selection was interdicted. The Court in fact specifically noticed that while the pivotal post of society was lying vacant in the Bank reeling under loss; the recruitment was made to insignificant posts, which appointments could not alter in any manner the financial situation of the Bank. The dictum, if at all any, is distinguishable on facts since it is to be applied on the circumstances coming to force, in each case. 8. In the present case, as specifically stated by the respondent Bank in its counter affidavit there is a sanctioned strength of 15 and the present staff strength is only less than half. The recruitment now sought to be made is only to two posts of Junior Clerks, which is necessitated W.P.(C) No.13381 of 2014 - W **6** by virtue of the promotion granted to the Junior Clerks, who were occupying the said posts. It cannot be said that, the mere financial condition of the Bank would result in interdiction of such recruitment, since it is the respondent Bank, who has to decide on its financial situation and look at the requirement of additional staff, to carry on the business, in which event only there would be any hope of the respondent Bank coming out of the loss situation. 9. The reliance placed by the additional 7[th] respondent, on a decision of a Division Bench of this Court in **Elampal Service Co-operative Bank Ltd.** v. **Government of Kerala [2000(3) KLT 389]** is apposite. The said decision considered whether appointments could be made to a Society, which is reeling under financial loss and as to whether any approval is required for recruitment, when the posts are available in Appendix-III of the Rules. Paragraph 3 of the Division Bench would put a quietus to the contentions raised by the petitioner. W.P.(C) No.13381 of 2014 - W **7** 3. A reading of the above Rule and Appendix III makes it clear that staff pattern is fixed by the Rule itself. Therefore, normally society will be free to appoint staff as per the staff pattern fixed in Appendix III. Ist proviso allows the society from not adopting the staff pattern due to financial position and allows the members of the committee to work in a honorary capacity. That is for the society to decide. Second proviso only makes it obligatory for the society to get prior approval from the Registrar only if there is a 'need of any change in the pattern of staff including the scale of pay under special circumstances'. The above wordings make it clear that for appointing staff as per the staff pattern fixed in Appendix III and the rules according to the type and class to which the society belongs, no prior approval is necessary. Only if a change in the pattern is necessary, approval is required. In the connection we refer to the decision reported in Sherthallai Urban Co-operative Bank v. State of Kerala (1984 K.L.T 971). A similar view was taken in O.P. No.8097/90 decided on 28.2.91 and O.P.No.10078/85 decided on 27.3.1987. ## 10. The circumstance under which the respondent Bank has proceeded with the recruitment cannot be said to be one identical to the decisions relied on by the petitioner. The respondent Bank even after the recruitment now proposed will not have the full contingent employees as sanctioned by Appendix III of the Rules. The Bank, as seen from the counter affidavit, has taken a conscious decision to make the appointments after deliberating in the financial situation also. Such a deliberation is the only requirement as per **Mohanan and Others** (supra). The selection is also W.P.(C) No.13381 of 2014 - W **8** make through the independent agency, the Recruitment Board, wherein no notification could be validly urged. For all the above reasons, this Court does not find any ground to interdict the recruitment attempted by the 5[th] respondent. The writ petition would stand dismissed, leaving the parties to suffer their respective costs. **K. VINOD CHANDRAN, JUDGE** SB