Ambika Mohan Veliyil Veedu v Cherthala Service Co-operative Bank Ltd, V. Vimal, Joint Registrar General of Co-operative Societies, and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE T.R.RAVI** **MONDAY, THE 10TH DAY OF AUGUST 2020 / 19TH SRAVANA, 1942** ## **WP(C).No.24728 OF 2013(M)** ## **PETITIONER:** **AMBIKA MOHAN VELIYIL VEEDU, P.O, CHERTHALA, WARD NO 8, CHERTHALA MUNICIPALITY** **BY ADVS. SRI.K.G.PAVITHRAN SRI.V.N.SUBHANGAN** ## **RESPONDENTS:** - **1 CHERTHALA SERVICE CO-OPERATIVE BANK LTD No.1688 REPRESENTED BY ITS SECRETARY, CHERTHALA PIN - 688524** - **2 V. VIMAL** **VIMAL NIVAS, C.M.C. WARD NO 21, CHERTHALA P.O, PIN - 688524** - **3 THE JOINT REGISTRAR GENERAL OF CO-OPERATIVE SOCIETIES ALAPPUZHA 688001** - **4 STATE OF KERALA REPRESENTED BY ITS SECRETARY, CO-OPERATIVE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695001** **R1 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY R1 BY ADV. SRI.S.A.ANAND R1 BY ADV. SMT.L.AMMU PILLAI R1 BY ADV. SRI.K.A.BALAN R1 BY ADV. SRI.PETER JOSE CHRISTO R1 BY ADV. SMT.N.SANTHA R2 BY ADV. SRI.V.VARGHESE R3 & R4 BY SMT.G.RANJITA, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.24728 OF 2013(M)** **2** ## **JUDGMENT** ## **Dated this the 10[th] day of August 2020** ## **JUDGMENT** The petitioner, a member of the 1[st] respondent Society, challenges the appointment of the 2[nd] respondent under dying in harness scheme. 2. Heard Sri K.G. Pavithran on behalf of the petitioner, Sri S.P.Aravindakshan Pillai on behalf of the 1[st] respondent, Sri V. Varghese on behalf of the 2[nd] respondent and the Government Pleader on behalf of the respondents 3 and 4. 3. Petitioner, who was aged 52 at the time of filing of the writ petition, has no claim that she is entitled to appointment. She however claims that she has three children who are eligible to be considered for appointment, none of whom have admittedly applied for appointment under the scheme. According to the petitioner, the 2[nd] respondent's father was under suspension from the year **WP(C).No.24728 OF 2013(M)** -3- 2004 onwards and he died in the year 2011 while under suspension. The petitioner submits that the 2[nd] respondent's mother is holding an executive post under the 1[st] respondent and as such the 2[nd] respondent was dependent on his mother and not on his deceased father. It is further contended that the 1[st] respondent failed to follow the law laid down by the Hon'ble Supreme Court in **Union of India and another v. Shashank Goswami and another** reported in **[AIR 2012 SC 2294]** and the decision of this Court in **Geethu Mohan v. The Travancore Devaswom Board** reported in **[2014 (1) KLT 860]** . 4. The 1[st] respondent has filed a counter affidavit contending that a writ petition praying to quash a resolution passed by a Co-operative Society is not maintainable, that the prayer for a writ of quo warranto is misconceived and that the petitioner has no locus standi to file the writ petition, since she is neither qualified, nor eligible to be appointed to any post in the service of the 1[st] respondent. The 1[st] respondent further contends that any dispute arising in connection with employment of officers and servants of **WP(C).No.24728 OF 2013(M)** -4- the 1[st] respondent is a dispute to be adjudicated under Section 69 of the Kerala Co-operative Societies Act, 1969 and that no public interest litigation is maintainable in service matters. It is also stated in the passing, that the petitioner's brother who was an employee of the 1[st] respondent was dismissed from service for serious misconduct and that the writ petition has been filed at his instance. On the merits, the 1[st] respondent has stated that the 2[nd] respondent was found to be eligible under Rule 188A of the Co-operative Societies Rules, for employment assistance as a dependent of employee dying in harness. 5. **Shashank Goswami (supra)** was a case where the Hon'ble Supreme Court considered appointment on compassionate ground and held that it cannot be claimed as a matter of right. The Hon'ble Supreme Court further held that the object of such appointment is to enable the family of the deceased employee to get over sudden financial crisis and not to confer a status on the family. The Apex Court further observed that appointments on compassionate ground has to be made in accordance with the rules, **WP(C).No.24728 OF 2013(M)** -5- regulations or administrative instructions, taking into consideration the financial condition of the family of the deceased. 6. In **Geethu Mohan (Supra)** , this Court was considering a writ petition filed at the instance of a person whose application for compassionate appointment was rejected. This Court reiterated the principle that such appointment cannot be claimed as a matter of right. There can be no dispute regarding the proposition of law laid down in the above two decisions. The issue raised in this writ petition is however, a little different. The challenge to the appointment is made by a third party, who cannot be an aggrieved person as far as the appointment of the 2[nd] respondent is concerned. It is well settled that in Service Law, there can be no challenge to the appointment at the instance of a third party, who is not even a claimant for appointment. Further, the dispute is raised by a member of a Co-operative Society against a resolution passed by the Society. Even if it is assumed that there is a dispute involved, the remedy is not for the petitioner to approach **WP(C).No.24728 OF 2013(M)** -6- this Court under Article 226. The prayer for quashing the resolution of the bank regarding grant of appointment to the 2[nd] respondent cannot hence be granted. 7. Coming to the question of appointment of the 2[nd] respondent and the prayer for issuance of a writ of quo warranto, it is useful to have a glance at the relevant rule. “188A. Employment assistance to dependents of employee dying in harness:- It shall be competent for the committee of a Society to appoint a person, who is a dependent of an employee who dies while in service, subject to the following conditions, namely:- (a) the employment assistance shall be given only to one dependent of the deceased employee and the appointment offered and once accepted shall under no circumstances be allowed to be changed; (b) the application for appointment under this scheme shall be made by the dependent within one year from the date of death of the employee. Where the dependent happens to be a minor, the application shall be submitted within a period of three years from the date of his/her attaining the age of majority; **WP(C).No.24728 OF 2013(M)** -7- (c) the appointment under this scheme shall be extended only to a post in the lowest grade of the particular category in respect of which the normal method of appointment involves direct recruitment. (d) the appointment shall be consistent with the qualifications prescribed in the rules; (e) subject to the age of superannuation, the upper age limit shall not apply in the case of widow/widower, and in the case of other dependents age limit prescribed in the rules shall strictly be followed; (f) if the applicant is the widow/widower of the deceased employee, he/she shall not have remarried on the date of application; (g) the Board of Directors of the Society concerned shall adopt a resolution to give appointment to the dependent of the deceased employee; (h) appointment shall be made only with the prior concurrence of the Registrar of Co-operative Societies. Explanation:-For the purpose of this rule, "dependent" means any member of the family of a deceased employee of a society who has no independent means of livelihood and who was **WP(C).No.24728 OF 2013(M)** -8- dependent on the earnings of the deceased employee at the time of his/her death, for his/her maintenance and "family" means and include the following relative of the deceased employee in the order of priority as indicated below: (i) Widow/Widower (v) Sister (ii) Son (vi) Father (iii) Daughter (vii) Mother (iv) Brother (viii) Nephew/Niece (1) Where the widow/widower is not in a position to avail of the benefit and where the children of the deceased employee are minor, employment assistance will be given to any of other defendants only with the consent of the widow/widower and where the widower is not alive, with the consent of the guardian of the minor children. (2) Sons and daughters shall not include adopted son and adopted daughters. (3) Brothers and sisters shall not include step brothers and step sisters, half brothers/half sisters. (4) An unemployed married son or an unemployed married daughter of deceased employee, whose spouse is also unemployed may also be considered for the assistance, provided the other dependents of the deceased employee are being looked after by him/her. (5) for employment assistance under this rule in **WP(C).No.24728 OF 2013(M)** -9- respect of a married son/a married daughter, the applicant shall produce a certificate from the Tahsildar in whose jurisdiction the married son or married daughter, as the case may be, resides to the effect that he/she is devoid of any means of income and has been depending on the deceased employee. But married son and married daughter shall be included among dependents only if they are depending on the deceased employee after their marriage also and on the production of a certificate from the Tahsildar having jurisdiction over the area to that effect.” 8. The above Rule was introduced in the year 1988. The Rule permits the committee of a Society to appoint a person, who is a dependent of an employee who dies while in service, subject to certain conditions. Once the conditions are fulfilled, there can be no ground for a challenge to the appointment. The Rule does not disentitle a dependent for employment, merely for the reason that his mother is also employed. A son is treated as a dependent under the Rule. The 1[st] respondent has not violated any statutory provisions or rules in appointing the 2[nd] respondent. In such situations the prayer for issuance of a writ of quo warranto is **WP(C).No.24728 OF 2013(M)** -10- not maintainable. **(See the judgment in B.Sreenivasa Reddy v. Karnataka Urban Water Supply and Drainage Board Employees' Association and others** reported in **[(2006) 11 SCC 731(2)]** . The writ petition is hence dismissed. In the circumstances of the case, there will be no order as to costs. Sd/- **T.R. RAVI JUDGE** dsn **WP(C).No.24728 OF 2013(M)** -11- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 PHOTOSTAT COPY OF THE LETTER DATED 23-072012 SUBMITTED BY THE PETITIONER** - **EXHIBIT P2 TRUE COPY OF THE LETTER DATED 08-08-2012 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT** - **EXHIBIT P3 PHOTOSTAT COPY OF THE PETITION FILED BY THE PETITIONER DATED 03-10-2012** - **EXHIBIT P4 TRUE COPY OF THE LETTER NO C.R.P (1) 5453/2012/L. DIS DATED 10-10-2012 SEND BY THE JOINT REGISTRAR (GENERAL) ALAPPUZHA** - **EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN WPC NO 8402/2012 DATED 25-06-2012** - **EXHIBIT P6 TRUE COPY OF THE PETITION DATED 18-03-2013 SUBMITTED BY THE PETITIONER** - **EXHIBIT P7 EXHIBIT P7 TRUE COPY OF THE RESOLUTION FORM C (VIDE CIRCULAR NO 26/89 DATED 02-05-1989 OF REGISTRAR OF CO-OPERATIVE SOCIETIES)** - **RESPONDENT'S EXTS:** - **EXHIBIT R1(A)TRUE COPY OF ORDER NO.EM(5) 41765/12/K.DIS. DT.19.9.2012 OF THE REGISTRAR OF COOPERATIVE SOCIETIES.** **EXHIBIT R2(A)TRUE COPY OF ORDER NO.EM(5)41765/12/K.DIS. DT.19.9.2012 OF THE REGISTRAR OF COOPERATIVE SOCIETIES.** **EXHIBIT R2(B)TRUE COPY OF THE ORDER NO.2/2012 DT.29.9.2012 OF THE PRESIDENT OF THE BANK.**