Lalitha.K. v. Panayal Service Co-operative Bank and Joint Registrar of Co-operative Societies (General), Kasaragod

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN MONDAY, THE 13TH DAY OF JANUARY 2014/23RD POUSHA, 1935 ## **W.P.(C).No.29200 of 2012 (Y)** ------------------------------------------------------ PETITIONER:- -------------------- LALITHA.K., AGED 38 YEARS, W/O. SATHEESHA. K., THOKKANAM MOTTA, PANAYAL P.O., BEKAL, KASARAGOD DISTRICT. BY ADV. SRI.SURESH KUMAR KODOTH. RESPONDENTS:- ------------------------- 1. PANAYAL SERVICE CO-OPERATIVE BANK, REPRESENTED BY ITS SECRETARY, P.O.PANAYAL, KASARAGOD DISTRICT - 671 318. 2. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KASARAGOD - 671 121. R1 BY ADV. SRI.M.SASINDRAN R2 BY GOVERNMENT PLEADER SMT.K.T.LILLY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-01-2014, ALONG WITH WP(C).No.805/2013-A, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- W.P.(C).No.29200 OF 2012-Y --------------------------------------- ## **APPENDIX** PETITIONER'S EXHIBITS:- ------------------------------------- - EXHIBIT P1- TRUE COPY OF THE NOTIFICATION PUBLISHED IN THE 'MATHRUBHUMI THOZHILVARTHA' DATED 23-1-2010. - EXHIBIT P2- TRUE COPY OF THE ADMISSION TICKET FOR THE WRITTEN TEST HELD ON 8-5-2010. - EXHIBIT P3- TRUE COPY OF THE RANK LIST PUBLISHED ON 17-1-2011. - EXHIBIT P4- TRUE COPY OF THE APPLICATION DATED 29-05-2012, SUBMITTED BY THE PETITIONER. - EXHIBIT P5- TRUE COPY OF THE REPLY DATED 21-06-2012. - EXHIBIT P6- TRUE COPY OF THE REPRESENTATION DATED 23-06-2012. - EXHIBIT P7- TRUE COPY OF THE JUDGMENT DATED 11-10-2012 IN WP(C).NO.21287/2002. - EXHIBIT P8- TRUE COPY OF ORDER DATED 12-10-2012 ISSUED BY 2ND RESPONDENT. - EXHIBIT P9- TRUE COPY OF REQUEST LETTER DATED 15-11-2012 SUBMITTED BEFORE THE 1ST RESPONDENT. - EXHIBIT P10- TRUE COPY OF REPRESENTATION DATED 24-11-2012 SUBMITTED BEFORE THE 2ND RESPONDENT. ## RESPONDENTS' EXHIBITS:- --------------------------------------- EXHIBIT R1(a) - A TRUE COPY OF THE PROCEEDINGS DATED 17.4.2012 ISSUED BY THE 1ST RESPONDENT. - EXHIBIT R1(b) - A TRUE COPY OF THE FEEDER CATEGORY RULES OF THE SOCIETY AS ON THE DATE OF GRANTING OF PROMOTION ON 1.1.2012. vku/- ( true copy ) K.Vinod Chandran, J **--------------------------------------------------** W.P.(C).Nos.29200 of 2012-Y & 805 of 2013-A **---------------------------------------------------** Dated this the 13[th] day of January, 2014 ## **JUDGMENT** Both the writ petitions raise the question of entitlement of the petitioner in W.P.(C).No.29200 of 2012 to be appointed in the 1[st] respondent-Bank therein; which is the petitioner in W.P.(C).No.805 of 2013. The aspirant to the post is referred to as “the petitioner” and the 1[st] respondent-Society as “the Bank” in this judgment. 2. The petitioner approached the Joint Registrar with an application seeking directions to the Bank to appoint the petitioner in terms of Exhibit P3 rank list, which has been published as per a selection conducted in accordance with Exhibit P1 notification. The Joint Registrar passed Order No.C.R.P./2900/2012/K.Dis. dated 12.10.2012, produced by both the petitioner and the Bank as Exhibit P8 in their respective writ petitions. While the petitioner seeks implementation of that order, the Bank challenges the same. WP(C).Nos.29200/2012-Y **- 2 -** 805/2013-A 3. The short admitted facts required for the disposal of the writ petitions are that the Co-operative Examination Board, by Exhibit P1 notification, _inter alia_ , called for 3 posts of Junior Clerks in the Bank. A selection was conducted and Exhibit P3 rank list was published, wherein the petitioner features as the 4[th] rank holder. Rank holders 1 to 3 were appointed in the Bank. The rank list was published on 17.01.2011 and has a validity period of two years; expiring on 16.01.2013. Subsequent to the appointment of the first three rank holders, the 1[st] rank holder resigned from the service of the Bank on 11.11.2011, on getting a better employment. The petitioner essentially seeks appointment to that post, since she is the next rank holder in the rank list, which was valid at the time of resignation of the 1[st] rank holder. 4. The petitioner, hence, approached the Joint Registrar for a direction to the Bank to appoint her, which was granted by Exhibit P8. The petitioner contends that it WP(C).Nos.29200/2012-Y **- 3 -** 805/2013-A is evident, that, going by Exhibit P8 the Secretary of the Bank, who had appeared before the Joint Registrar, admitted that there were four vacancies in the post of Junior Clerks existing in the Bank. Recording the submission of the Secretary of the Bank, the Joint Registrar issued Exhibit P8 order, directing the Bank to gave appointment to the petitioner, who is next in the rank list. 5. Exhibit P8 order is dated 12.10.2012. Exhibit P8 not having been complied with, the petitioner was before this Court seeking implementation of the said order. Notice was issued on 07.12.2012 and on 31.12.2012 an order was passed directing the respondent-Bank to appoint the petitioner in one of the vacancies. The Bank immediately; on 06.01.2013, filed a counter affidavit and also a petition (I.A.No.287 of 2013) to vacate the interim order dated 31.12.2012. The Bank has also filed another application (I.A.No.288 of 2013) to WP(C).Nos.29200/2012-Y **- 4 -** 805/2013-A extend the time, so far as the implementation of Exhibit P8 order is concerned; till the application to vacate the interim order is considered. The Bank also filed a writ petition on 07.01.2013 challenging the order of the Joint Registrar. 6. The learned counsel appearing for the petitioner would contend that the Bank failed to challenge Exhibit P8 order and a challenge was made only when the petitioner approached this Court with a writ petition and an interim order was issued in the same. Considering the dates, as has been noticed in this judgment, this Court is not persuaded to take a view that the writ petition filed by the Bank was unreasonably delayed. 7. It is also the contention of the petitioner that the Bank has a statutory remedy available under Section 83(1)(j) of the Kerala Co-operative Societies Act, 1969 (for brevity “the Act”) and it is only proper that the Bank be relegated to such statutory remedy without invoking WP(C).Nos.29200/2012-Y **- 5 -** 805/2013-A the extra-ordinary jurisdiction of this Court; since there is available an efficacious alternative remedy. Article 226, no doubt, would only be sparingly invoked and only in those cases where there is no adequate remedy and an application under Article 226 is the only convenient, beneficial and effectual means of getting redress. In the present case, going by the fact that the petitioner has sought implementation of the very same order which is challenged by the Bank, it may not be proper for this Court to relegate the Bank to the statutory remedy, especially when the petitioner wants her writ petition to be considered on merits. If that course is pursued, the alternate remedy would be rendered futile, since the issue would be settled by the orders passed by this Court in the writ petition of the petitioner; whether it be dismissed or allowed. In such circumstance, it is only proper that this Court consider, on facts and on law, the sustainability of Exhibit P8 order passed by the Joint Registrar, which WP(C).Nos.29200/2012-Y **- 6 -** 805/2013-A would give a quietus to the dispute raised. 8. As was noticed above, the Bank had appointed the first 3 rank holders to the post of Junior Clerk. Subsequently a vacancy had arisen by virtue of resignation of the 1[st] rank holder on 11.11.2011. The contention of the Bank is that subsequent to that, there were also two other vacancies, which arose on the promotion of Junior Clerks who had been working in the Bank. By then, i.e., even at the time of resignation of the 1[st] rank holder; three Peons who were entitled under the feeder category rules to be promoted as Junior Clerks; became qualified for being considered for such promotion. Hence, they were considered and were promoted to the said three vacancies. The four vacancies said to have been conceded by the Secretary before the Joint Registrar, according to the Bank, are vacancies which arose on re-classification of the Bank, which was made effective by Exhibit R1(a). These four vacancies, according WP(C).Nos.29200/2012-Y 805/2013-A **- 7 -** to the Bank, considering its financial position, has been decided to be kept vacant without filling up, as of now, unless and until the financial condition improves. 9. This Court, taking note of the contention raised by the Bank, directed the Bank to file an affidavit, specifically pointing out as to when the 1[st] rank holder resigned and when the persons said to have been promoted qualified, to hold the higher post. The Bank has filed an affidavit, producing certain documents substantiating their contention. Going by the affidavit dated 12.01.2014 filed in support of I.A.No.673 of 2014 and the documents produced along with the same, Exhibit P11 indicates the resignation of the 1[st] rank holder on 11.11.2011. Exhibits P12 to P14 are the qualifications of the 3 employees who were appointed to the post of Peons with effect from 12.07.2008, 16.07.2008 and 01.08.2008 respectively, being A.T.Muraleedharan, P.Gopinathan Nair and C.V.Sureshan. Obviously the Peons had the required WP(C).Nos.29200/2012-Y **- 8 -** 805/2013-A three years service as per the feeder category rules in the lower post before 11.11.2011 itself. 10. The vacancy which arose out of resignation of the 1[st] rank holder was on 11.11.2011 and the two vacancies which arose on promotion of Junior Clerks, were on 01.01.2012. Hence, the 3 persons referred to above, who were continuing in the feeder category of Peon, were promoted to the existing three vacancies, in the category of Junior Clerks. Even in the writ petition filed by the Bank, it was specifically contended that it does not intend to fill up the 4 posts which are newly sanctioned, due to financial exigencies. 11. It is trite that this Court cannot compel the Bank to make appointments to vacancies which the Bank is entitled to decide whether are required to be filled up or not. Considerable support for the above dictum is garnered from the decision of the Supreme Court in _**Kodakara Farmers Service Co-operative Bank Ltd. v.**_ WP(C).Nos.29200/2012-Y **- 9 -** 805/2013-A ## _**Neena**_ **[2013 (1) KLT 344 (SC)].** In the circumstances stated above and on the above reasoning, this Court is not persuaded to uphold the order of the Joint Registrar, as is evidenced by Exhibit P8. Exhibit P8, hence, is set aside. W.P.(C).No.29200 of 2012, hence, stands dismissed and W.P.(C).No.805 of 2013 is allowed. The parties are left to suffer their respective costs. Sd/K.Vinod Chandran, Judge vku. ( true copy )