EZHUPUNNA SOUTH SERVICE CO-OPERATIVE BANK LTD. & MANAGING COMMITTEE OF EZHUPUNNA SOUTH SERVICE CO-OPERATIVE BANK LTD. v. T.V. ANNIE & ORS.

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 13TH DAY OF MARCH 2014/22ND PHALGUNA, 1935 WA.No.428 of 2014 IN WP(C).27943/2013 ------------------------------------------- AGAINST THE ORDER/JUDGMENT IN WP(C) 27943/2013 of HIGH COURT OF KERALA DATED 11-02-2014 APPELLANTS : RESPONDENTS 2 & 3 IN W.P.(C) :- -------------------------------------- 1. EZHUPUNNA SOUTH SERVICE CO-OPERATIVE BANK LTD. No.1124, REPRESENTED BY ITS SECRETARY, EZHUPUNNA SOUTH.P.O., THURAVOOR, CHERTHALA, KERALA - 688 532. 2. MANAGING COMMITTEE OF THE EZHUPUNNA SOUTH SERVICE CO-OPERATIVE BANK LTD. No.1124, REPRESENTED BY ITS PRESIDENT, EZHUPUNNA SOUTH P.O., THURAVOOR, CHERTHALA, KERALA - 688 532. - BY ADV. SRI.P.SANTHOSH KUMAR (PANAMPILLY NAGAR) SRI.LUIZ GODWIN D'COUTH RESPONDENTS : PETITIONER & RESPONDENT Nos.1, 4 & 5 IN W.P.(C).: --------------------------------------------------------- 1. T.V.ANNIE, THE ASSISTANT SECRETARY, EZHUPUNNA SOUTH SERVICE CO-OPERATIVE BANK LTD. No.1124, EZHUPUNNA SOUTH.P.O., THURAVOOR, CHERTHALA, KERALA - 688 532. 2. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), ALAPPUZHA - 688 001. WA.No.428 of 2014 IN WP(C).27943/2013 3. UMADEVI, SECRETARY, EZHUPUNNA SOUTH SERVICE CO-OPERATIVE BANK LTD.No.1124, EZHUPUNNA SOUTH.P.O., THURAVOOR, CHERTHALA, KERALA - 688 532. 4. CO-OPERATIVE ARBITRATION COURT, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM - 695 001. BY SMT.ANU SIVARAMAN BY SR. GOVERNMENT PLEADER SRI.MOHAMMED SHAFI R3 BY SRI.V.A.MUHAMMED THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 13-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **ANTONY DOMINIC & ANIL K.NARENDRAN, JJ. -------------------------------------------------------------------W.A.No.428 of 2014** **-------------------------------------------------------------------Dated this the 13[th] day of March, 2014** ## **JUDGMENT** ## **ANTONY DOMINIC, J.** This appeal is filed by the 2[nd] and 3[rd] respondents in W.P. (C).No.27943 of 2013, aggrieved by the judgment of the learned Single Judge. The first respondent herein filed the Writ Petition, challenging Ext.P7 order passed by the 4[th] respondent, in an appeal filed by the 3[rd] respondent herein. That Writ Petition was allowed and the learned Single Judge, set aside Ext.P7 order and directed the first appellant to appoint the first respondent to the post of Secretary. It is this judgment which is under challenge. 2. The contention raised by the learned counsel for the appellants is that the Writ Petition itself was filed against Ext.P7 interim order passed by the second respondent and that the learned Single Judge instead of confining the examination to the legality of the order, went into the merits of W.A.No.428 of 2014 2 the controversy and passed the judgment under Appeal itself. According to him, the learned Single Judge should have relegated the first respondent to pursue the alternative remedies available before the Arbitration Court and Tribunal as provided under Sections 69 and 82 respectively of the Cooperative Societies Act. 3. Before appreciating the merits of this contention, it is essential to bear in mind the basic facts involved in the case. The claim raised by the first respondent herein who filed the Writ Petition was to the post of Secretary in the first appellant society, to which post the 3[rd] respondent was preferred. The contention raised was that the first respondent being senior was entitled to be promoted, in view of the provisions contained in Rule 185 of the Co-operative Societies Rules. Aggrieved by the promotion ordered she moved the second respondent who upheld her claim and in an appeal filed by the 3[rd] respondent before the 4[th] respondent Ext.P7 interim order W.A.No.428 of 2014 3 was passed enabling the 3[rd] respondent to continue in the post of Secretary. It was that order which was challenged in the Writ Petition. 4. It is true that as rightly contended by the learned counsel for the appellants, which has been accepted by the learned Single Judge also, it was only the Arbitration Court which should have entertained the grievance of the first respondent and that the statutory remedy of the appeal before the Tribunal is also available. However, the admitted factual position is that the first respondent is much senior to the 3[rd] respondent. In fact contention to the contrary was not even urged either before the learned Single Judge or before us. If that be the position, in terms of the provisions of Rule 185 of the Rules, seniority alone can be the criteria for promotion and consequently, the 3[rd] respondent could not have been preferred to the first respondent, ignoring his seniority. If that be so, the learned Single Judge was fully justified in W.A.No.428 of 2014 4 upholding the entitlement of the first respondent to be appointed as the Secretary of the society and there cannot be any illegality in that finding of the learned Single Judge. 5. It is true that the appellants contended that a punishment of censure was imposed on the first respondent and that therefore the 3[rd] respondent was more meritorious and suitable for the post of Secretary. However, when this submission is made, the society is deliberately overlooking the fact that a still grievous punishment of withholding of increment was with the 3[rd] respondent and it is she who is preferred to the first respondent. Therefore we are not impressed by this contention. 6. As far as the contention that, when alternative remedies are available, Writ Petition should not have been entertained by the learned Single Judge is concerned, first of all the rule of alternative remedy is not a rigid one and as held by the Hon'ble Apex Court **ABL International Ltd. Vs.** W.A.No.428 of 2014 5 **Export Credit Guarantee Corpn. of India Ltd.** [(2004) 3 SCC 553], the High Court is always at liberty to depart on this rule of convenience in a suitable case where on admitted facts the entitlement of a person can be adjudicated. Yet another principle of relevance is when a Writ Petition has been entertained notwithstanding the existence of an alternative remedy, the appellate court will not permit the question to be raised unless the reasoning for entertaining the Writ Petition is found to be palpably unsound and irrational. [See **U.P.State Spinning Co. Ltd.** v. **R.S.Pandey** (2005(8) SCC 264) and **Shaji K.Joseph** v. **Viswanath** (2011(3) KLT 513)]. Insofar as this case is concerned the first respondent's seniority is not disputed by the 1[st] respondent or 3[rd] respondent. If that be so, the rule of alternative remedy cannot be successfully pressed into service by the appellants. That apart it is also the settled position of law that a learned Single Judge of this Court has exercised his discretionary W.A.No.428 of 2014 6 power and granted relief, unless grave illegality or injustice is made out an intra court appeal will not be entertained. We are not satisfied that the appellants have succeeded in showing any such illegality or injustice. The appeal is devoid of any merits and is dismissed. ## **ANTONY DOMINIC, JUDGE** ## **ANIL K.NARENDRAN, JUDGE** skj