Kala.S. and others v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 19TH DAY OF MARCH 2014/28TH PHALGUNA, 1935** ## **WP(C).No. 26409 of 2012 (A)** **----------------------------** **PETITIONER(S): --------------------------** **1. KALA.S., AGED 35 YEARS, W/O. B.ANILKUMAR, RESIDING AT PALAMOOTIL VEEDU, THEVALAPPURAM (PO), PULLAMALA.** **2. SARASAMMA. K., AGED 40 YEARS, W/O. NANU, RESIDING AT CHARUVILA VEEDU, AMBALTHUMKALA (PO).** **3. SAHJI. B., AGED 35 YEARS,** - **S/O BHASKARAN. R., RESIDING AT KIZHAKKEPARAYANKALA VEEDU, VENDAR (PO), KOTTATHALA.** **4. ANEESHIA. A., AGED 23 YEARS, D/O. SUDHAKARAN, RESIDING AT ANU BHAVAN, KURUMBALOOR, KOTTARAKKARA (PO), KOLLAM DISTRICT.** **5. JAYALAKSHMIAMMA. B., AGED 42 YEARS, W/O. SASIKUMAR, RESIDING AT SASIMANGALAM, THEKKUMPURAM, PUTHUR (PO), KOLLAM DISTRICT.** **6. RANJINI. R., AGED 30 YEARS, W/O. SIVAKUMAR, RESIDING AT RAMANI NIVAS, PULLAMALA, THEVALAPPURAM (PO), KOLLAM DISRICT.** **7. NADARAJAN. A., AGED 47 YEARS, S/O. PAPPACHAN, RESIDING AT PALAVILA VEEDU, NEELESHAWARAM (PO), KOLLAM DISTRICT.** **8. SAJI. N., AGED 31 YEARS, S/O. NARAYANAN, RESIDING AT MURALI BHAVANAM, NEDUVATHOOR, NEELESHWARAM (PO), KOLLAM DISTRICT.** **9. SHEELA, D/O.JANAKI, RESIDING AT PLAVILA VEEDU, KOTTATHALA (PO), KOTTARAKKARA, KOLLAM DISTRICT.** ## **WP(C).No. 26409 of 2012 (A)** ## **10. NIRMALA DEVI, AGED 40 YEARS, W/O. VASUDEVAN PILLAI, RESIDING AT THIRUVATHIRA, ANAKKOTTUR (PO), KOLLAM DISTRICT.** ## **11. SREERAJ, AGED 27 YEARS,** - **S/O. RAJENDRAN NAIR, RESIDING AT CHAITHANIYA, KOTTATHALA (PO), KOTTARAKKARA, KOLLAM DISTRICT.** **12. NASEEMA, D/O. MEERASAHIB, RESIDING AT HAIZ MANZIL, AVANOOR, KOTTARAKKARA (PO), KOLLAM DISTRICT.** **13. RAJUMON. P., AGED 45 YEARS, S/O. PAPPACHAN, RESIDING AT CHARUVILA PUTHENVEEDU, KAITHAKODU (PO), KOLLAM DISTRICT.** **14. LALITHA BHAI, AGED 47 YEARS, W/O.CHELLAPPAN PILLAI, KIZHAKKEVILA VEEDU, ELAVOOR, PALLIMON, NOW RESIDING AT VADAKKEVILA VEEDU, VENMANOOR, ANAKOTOOR (PO).** **15. SUBASHCHAND. D., AGED 35 YEARS, S/O. DESAKARAN, RESDING AT CHITTICHINKALAVEEDU, KOTTATHALA (PO), KOLLAM DISTRICT.** **16. LEEJA, AGED 37 YEARS, S/O. REGHUNADAN, RESIDING AT KARTHIKA, KOTTATHALA (PO), KOLLAM DISTRICT.** **BY ADVS.SRI.M.V.THAMBAN, SRI.R.REJI,** **SMT.THARA THAMBAN, SRI.B.BIPIN.** ## **RESPONDENT(S):** - **----------------------------** ## **1. STATE OF KERALA,** - **REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF CO-OPERATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN:695 001.** ## **2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM, PIN:695 001.** **3. THE JOINT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES, OFFICE OF THE JOINT REGISTRAR, KOLLAM, PIN:691 001.** ## **WP(C).No. 26409 of 2012 (A)** ## **4. THE ASSISTANT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, KOTTARAKKARA, PIN:691 606.** **5. THE NEDUVATHOOR SERVICE CO-OPERATIVE BANK, HEAD OFFICE AT NEDUVATHOOR, NEELESWARAM (PO), KOTTARAKKARA, REPRESENTED BY ITS SECRETARY PIN:691 505.** ## *** ADDL. R6 IMPLEADED** **6. ANITHA, W/O.VIJAYAKUMAR, VINEETHALAYAM, THEVALAPPURA. P.O., PULLAMALA, KOLLAM DISTRICT.** *** ADDL. R6 IS IMPLEADED AS PER ORDER DATED 09/01/2013 IN IA. NO. 209/2013.** **R1 TO R4 BY GOVT. PLEADER MR.NOUSHAD THOTTATHIL. ADDL. R6 BY ADV. SRI.P.N.MOHANAN.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-03-2014, ALONG WITH WP(C).NO. 26373 OF 2012 AND WP(C).NO.1314 OF 2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** ## **WP(C).No. 26409 of 2012 (A)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **EXT.P1 COPY OF THE NO.C.R.P.(2) 2356/2004 DATED 23/06/2004. EXT.P2 COPY OF THE NO.C.R.P.(2) 2554/2006 DATED 19/06/2007. EXT.P3 COPY OF THE NOTIFICATION DATED 28/05/2007 PUBLISHED IN KERALA KAUMADI DAILY, KOLLAM EDITION DATED 30/05/2007. EXT.P4 COPY OF THE ORDER NO.C.R.P.(2) 5544/2012 DATED 29/10/2012. RESPONDENT'S EXHIBITS:EXT.R6A COPY OF THE CIRCULAR NO.11/99 DATED 23/03/1999. EXT.R6B COPY OF THE JUDGMENT REPORTED IN 2013(2) KHC 399.** **//TRUE COPY//** **P.A. TO JUDGE** **rs.** ## **K. VINOD CHANDRAN, J. ===================== W.P.(C) Nos. 26409 of 2012, 26373 of 2012 & 1314 of 2013 ====================== Dated this the 19[th] day of March, 2014** ## **J U D G M E N T** The petitioners in W.P.(C) No. 26409 of 2012 are faced with the threat of termination, by virtue of Ext. P4 order, of the Joint Registrar; passed on a complaint raised by a third party. W.P.(C) No. 26373 of 2012 also assails the very same order, wherein the petitioner is the Bank; which appointed the employees now directed to be terminated. W.P.(C) No. 1314 of 2013 is filed by a member of the Bank seeking implementation of the order passed by the Joint Registrar. It is submitted by the petitioners in W.P.(C) No. 26409 of 2012 and W.P.(C) No. 26373 of 2012 that the petitioner who seeks implementation of the order is the wife of the complainant before the Joint Registrar(General). That, in the opinion of this Court, is of no consequence in considering the sustainability of Ext. P4 order. 2. Petitioners in W.P.(C) No. 26409 of 2012 are 16 in W.P.(C) Nos. 26409 of 2012 & connected cases **2** number, who have been appointed in the Neduvathoor Panchayath Service Co-operative Bank (herein after referred to as the Bank), which appointments were the bone of contention before the Joint Registrar. The Joint Registrar was concerned with the appointments of 15 employees and 7 collection agents, made to the Bank subsequent to a notification issued as per Ext.P3. Ext.P3 according to the complainant was not in accordance with Circular No.11/1999 dated 23.03.1999. The notification of appointment to the post of two peons and one watchman, did not contain any details which are mandatory as per the circular issued by the Joint Registrar. The notification, as is evident, merely called for applications to the posts of two peons and one watchman; which notification itself was dated 28.05.2007. The procedural irregularity is glaringly obvious from Ext.P3 notification. 3. On a reading of Ext.P4 it is clear that the Bank had a head office and two branches in which 15 employees and 7 W.P.(C) Nos. 26409 of 2012 & connected cases **3** collection agents were employed. Out of the nine employees including four peons, one watchman, one salesman and three part time sweepers; as also the 7 collection agents were appointed without sanctioned posts or approval of the Joint Registrar. Seven of the alleged illegal appointments were made from the rank list published pursuant to Ext.P3. The first appointment from the rank list which had validity for six months,was made on 13.08.2007. Subsequently, repeated resolutions were taken extending the validity of the rank list and appointing the remaining 6 persons. Out of these, one was re-designated as Data Entry Operator, another was appointed as watchman and yet another as a salesman. Without sanction of even one post of part time sweeper; three persons were appointed to the said post on 30.06.2007, 05.08.2009 and 01.07.2012. Likewise was the appointment of seven persons to the post of collection agents. The petitioners 1,2,7,5, 4 and 3 were the respective rank holders two to seven in the list prepared pursuant to W.P.(C) Nos. 26409 of 2012 & connected cases **4** Ext.P3. The 2[nd] rank holder, ie., the 1[st] petitioner was appointed as Data Entry Operator. The petitioners 2 and 7 were respectively appointed as Peon and Watchman w.e.f 01.03.2010. The 5[th] petitioner was appointed as Peon on 06.03.2010 and the 4[th] and 3[rd] petitioners respectively on 08.03.2010 and 01.04.2010 as Peon and Peon/Salesman. These appointments were effected by resolutions extending the validity of the list for various periods. the petitioners 6,8 and 9 were appointed to post of part time sweepers and petitioners 10 to 16, as collection agents. 4. The action of the Managing Committee of the Bank, in intermittently and repeatedly extending the validity of the rank list was found to be bad. The appointments made from the rank list prepared for peons, to the posts of Data Entry Operators, salesman and watchman was in violation of principles of public recruitment and circulars regulating appointments issued under the Act and Rules. The principal irregularity found against such appointments, was that the W.P.(C) Nos. 26409 of 2012 & connected cases **5** Bank which was classified as Class V, could not have sanctioned posts as per Annexure-III of the Kerala Co-operative Societies Rules, 1969, to the extent to which appointments were actually made 5. The President of the petitioner Bank, who is the petitioner in W.P.(C) No. 26373 of 2012, however contends that, infact, the Bank had made applications for re-classification as a Class III Bank which has not been considered till date. The averments in the Writ Petition, are to the effect that the petitioner Bank took a resolution as early as in 2003 for re-classifying the Bank as Class III. Evidently at the time of Ext.P2 order; which sanctioned the post of one peon in the Bank, ie., in 2007 the Bank was classified as Class IV. However, when the impugned order was passed in 2009, the Bank was classified as Class V. 6. In any event, the claim of the Bank is that it had to be classified as Class III. But however, going by the averments in the Writ Petition filed by the Bank; more W.P.(C) Nos. 26409 of 2012 & connected cases **6** specifically Paragraph 5, it is to be noticed that even the audit report of 2009-2010 classified the Bank as 'C'. The contention of the Bank itself is that it was entitled, as per the audit classification criteria to be classified as 'B'. No challenge to the classification is seen to have been made by the Bank. It is also admitted by the Bank, that if the audit classification is 'C' then; necessarily, the Bank could not be classified as Class III. But for asserting that the Bank had been seeking for a re-classification, no effort seems to have been taken on the part of the Bank, to expedite such consideration. It is also pertinent that no such application is seen produced in the above Writ Petition nor has the Bank sought for a consideration of re-classification in the above Writ Petition. The specific contention of the Bank in challenging the order passed by the Joint Registrar, is that, if re-classification is allowed, then necessarily the Bank would have the sanction, even going by Annexure-III of the Rules to appoint the 15 employees and the 7 collection W.P.(C) Nos. 26409 of 2012 & connected cases **7** agents ordered to be terminated now. 7. The learned counsel for the petitioner in W.P.(C)No. 1314 of 2013 however, relies on **Ibey Susan Issac v. Anicadu Service Co-operative Bank Ltd. Pathanamthitta and another in [2013(2) KHC 399]** to contend that the Bank cannot keep alive the rank list and make appointments to vacancies, which arose in excess of notified vacancies. The contention of the petitioners/ employees that they were not heard before the order of termination is refuted, with the aid of the decision of this Court in **Purushothaman v. Registrar in [1996 (2) KLT 26]** , which on the facts stated therein, held that it would be a futile exercise to hear the persons who are thrown out of employment, if clear illegality in appointments are revealed. 8. **Ibey Susan Issac** (supra) found that the appointments to the posts of peons has not been brought under the Examination Board under Section 80B. Rule 182 W.P.(C) Nos. 26409 of 2012 & connected cases **8** (5) which is applicable to such appointments does not contemplate appointments to vacancies not notified, and arising subsequently; by keeping the rank list valid for a certain period. Neither has any rule been pointed out by the Bank or by the petitioners / employees, in the instant case too, which permits such conduct. Undisputedly the appointments of petitioners 1 to 5 and 7 were by virtue of the resolutions, periodically extending the validity of the rank lists. The other petitioners or the Bank; with respect to the appointment of part time sweepers and collection agents, does not have any contention other than that of re-classification. 9. In the context of the specific contentions raised by the Bank as also the employees, it cannot be gainsaid that the Bank could have made appointments from the rank list published in the year 2007, to vacancies which even according to the Bank, as per its extant classification could not have been made. The Bank's contention that, it had W.P.(C) Nos. 26409 of 2012 & connected cases **9** anticipated a re-classification and the appointments were made only on such anticipation, cannot at all be countenanced. In such circumstance, this Court is of the opinion that there can be no interference made to Ext.P4. **Purushothaman** (supra) rejected the plea of violation of principles of natural justice on the finding that there was clear fraud perpetrated in the appointments which were assailed therein. The decisions quoted therein also were allegations of fraud, with the active participation of the appointees. Hearing was denied on the premise that none can raise a contention of hearing, to sustain ill gotten gains. In this case also there is such allegation but nothing to substantiate the same. But however the rescinding of the various resolutions; which illegally extended the validity of a rank list and made appointments anticipating re-classification cannot be interfered with. The petitioners / employees were heard in the Writ Petition and there is no contention raised, which would have to be directed to be W.P.(C) Nos. 26409 of 2012 & connected cases **10** reconsidered by the Joint Registrar. The petitioners also could have no other contention other than that advanced by the Bank, who made the appointments. Hence, rehearing on the aspects already considered herein, would be a useless formality. 10. It is to be noticed that going by the records, it is not clear as to the classification of the Bank in the various years in which the appointments were said to have been made. In the context of the appointments having continued for considerable years, it is deemed fit that the Joint Registrar consider afresh as to whether there was a vacancy as on the date of appointment of each of the employees / petitioners, with reference to the classification of the Bank and the sanctioned posts in Annexure-III of the Rules. If there are vacancies, the Joint Registrar shall accommodate those of the petitioners in W.P.(C) No. 26409 of 2012 against such vacancies definitely considering their eligibility; otherwise than the age limits. The termination W.P.(C) Nos. 26409 of 2012 & connected cases **11** shall be effected on the principle of last appointed, first removed; with reference to the seniority in appointment. 11. Ext.P4 cannot at all be interfered with and the above directions are issued only in the context of the employees having been continued for long years in the posts and to ensure that they are heard before they are terminated. The consideration directed above shall be made with due notice, as also affording an opportunity of hearing to the Bank as also the employees/petitioners herein. The Bank and the petitioners in W.P.(C) No. 26409 of 2012 or their representatives shall appear before the Joint Registrar of Co-operative Societies, Kollam on 26.05.2014. If so advised the petitioner in W.P.(C)No. 1314 of 2013 also shall, by herself or through her representative, appear before the Joint Registrar. The Joint Registrar shall take a decision in the matter after hearing the parties within a period of three months from 26.05.2014. Any person who is not accommodated, by the Joint Registrar, as W.P.(C) Nos. 26409 of 2012 & connected cases **12** per the directions above, shall definitely stand terminated. If at all any additional posts are sanctioned in the Bank in the respective years by the department or are available now as per Annexure-III of the Rules, necessarily the Joint Registrar shall consider accommodating the petitioners in order of their seniority of appointment, in the respective categories. No recovery shall be effected of the salaries paid to the petitioners/employees who are eventually terminated, since they have been continued by virtue of the interim order of the Court. The Writ Petitions are disposed of, with the above directions. Parties are left to suffer their costs. Sd/- **K. VINOD CHANDRAN, JUDGE** SB