Leena V.K. v. Joint Registrar of Co-operative Societies (General), Kozhikode; Omasseri Service Co-operative Bank Ltd.; K.R.BIJU; P.SURESH

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.M.SHAFFIQUE SATURDAY, THE 3RD DECEMBER 2011 / 12TH AGRAHAYANA 1933 WP(C).No. 26331 of 2004(I) -------------------------- PETITIONERS: --------------- 1. LEENA V.K., - (PEON, OMASSERY S.C.B. LTD.), VADAKKEDATH VEEDU, KOODATHAI. 2. NOUSHAD K.P. - (PEON, OMASSERY S.C.B. LTD.), KACHERI PARAMBIL VEEDU, ELATTIL. BY ADV. SRI.D.SREEKUMAR RESPONDENTS: - --------------- 1. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOZHIKODE. 2. OMASSERI SERVICE CO-OPERATIVE BANK LTD. NO.D.1957, OMASSERI, KOZHIKODE DISTRICT, REPRESENTED BY ITS SECRETARY. 3. K.R.BIJU, AMBAYATHODE VEEDU, THAMARASSERI. 4. P.SURESH, POOZHICHURATTIL, VELIMANNA, OMASSERI. ADV. SRI.V.RAJENDRAN FOR R3&4 GOVERNMENT PLEADER SRI.CYRIAC KURIAN SRI.V.G.ARUN FOR R2 SRI.T.R.HARIKUMAR FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/11/2011, THE COURT ON 03/12/2011 DELIVERED THE FOLLOWING: ## **APPENDIX TO W.P.C.NO.26331 OF 2004** ## **PETITIONER'S EXHIBITS:** EXT.P1: TRUE COPY OF THE RESOLUTION NO.II DATED 11/6/2004 OF THE BOARD. EXT.P2: TRUE COPY OF THE ORDER NO.98/04 DATED 11/6/2004 APPOINTING THE PETITIONERS. EXT.P3: TRUE COPY OF THE ORDER NO.CRP.3732/04 DATED 18/8/2004 OF THE 1ST RESPONDENT. EXT.P4: TRUE COPY OF THE ORDER NO.CRP.3419/85 (K.DIS) DATED 30/11/85 OF THE 1ST RESPONDENT. EXT.P5: TRUE COPY OF THE RESOLUTION NO.XI DATED 22/11/2002. EXT.P6: TRUE COPY OF THE RESOLUTION NO.IX DATED 26/3/2004. ## **RESPONDENT'S EXHIBITS:** NIL // True Copy// PA to Judge ## **A.M.SHAFFIQUE, J * * * * * * * * * * * * *** W.P.C.No.26331 of 2004 ---------------------------------------- Dated this the 3[rd] day of December 2011 ## **J U D G M E N T** The petitioners challenges Ext.P3 order issued by the Joint Registrar (General), Kozhikode cancelling the appointment orders issued by the Governing body of Omassery Service Cooperative Bank (Ltd.) on 11/6/2004 appointing the petitioners as Peons in the Bank exercising power under Section 176 of the Kerala Co-operative Societies Rules, (hereinafter referred as the Rules) alleging violation of Rule 188 of the Rules. 2. The petitioners have contended that they were appointed as Peons on a regular selection made by the Bank. Since the Bank is in Class III, there were two vacancies of Peons and consequent to which Bank invited applications after due publication. Resolution No.2 dated 11/6/2004 was passed as Ext.P1 deciding to appoint the petitioners in the post of Peon and in pursuance of the same Ext.P2 order had been issued to the petitioners. 2 W.P.C.No.26331 of 2004 3. According to them, Rule 188 does not enable the Joint Registrar to cancel Ext.P1 resolution nor the appointment in favour of the petitioners. 4. The 1[st] respondent justifies Ext.P3 by contending that permission of the Joint Registrar is required for appointing the Peons as declared in the judgment of the High Court as reported in **Parameswaran Kartha vs Asst.Registrar** ( **1992(2)KLT 77).** 5. The learned counsel for the petitioners relied upon the judgment of this Court in **Sherthallai Urban Co.Op.Bank Ltd. v. State of Kerala [1984 KLT 971]** and contended that in view of the judgment, the direction by the Joint Registrar is bad. In the said judgment also, the Committee had taken resolutions to appoint Junior Clerks, Typists and Peons in the Society on its up-gradation as class II Credit Society. The Joint Registrar prohibited such appointment stating that prior sanction was not obtained. It was held by this Court in paragraph 3 that : “A staff pattern is fixed by the rule itself and the rule does not require any prior approval of the Department to effect appointments to the various posts according to the staff pattern fixed W.P.C.No.26331 of 2004 3 under Appendix III.” 6. The learned counsel appearing for the respondents however relied upon the judgment of this Court in **Parameswaran Kartha (supra) t** o contend that, to increase the existing strength of the staff, approval of the Registrar is required and appointment of additional staff appropriate for the upgraded class can be made after such approval for the increase so obtained. In the said judgment, **Sherthallai Urban Co.Op.Bank** (Supra) is also referred to and it is stated that the issue considered was the validity of the prohibition imposed by the Registrar on appointments without his prior sanction while recognising the up-gradation of a society. The facts in **Parameswaran Kartha** (Supra) are totally different from the facts involved in **Sherthallai Urban Co.Op.Bank** (Supra). Hence **Parameswaran Kartha** (Supra) has no application to the present writ petition. 7. Having heard the learned counsel for the petitioners and the respondents, it could be seen that the only issue relating to the above case is whether the Joint Registrar has the power to cancel appointment of the petitioners by alleging violation of W.P.C.No.26331 of 2004 4 Rule 188, which reads as follows: “ **188. Staff Pattern:-** Every society shall adopt the staff pattern indicated in Appendix III to these rules, according to the type and class to which it belongs: Provided that where any society cannot adopt such staff pattern due to its financial position, the members of the committee may work in an honorary capacity in lieu of appointing any paid employee: Provided further that where any society is in need of any change in the pattern of staff including the scale of pay under special circumstances the same may be made by the society with the prior approval of the Registrar of Co-operative Societies.” 8. Admittedly, the Bank has been reclassified to class III with effect from 01/04/2001 which is clear from Ext.P3 itself and the decision to appoint the petitioners as Peons has been taken only on 22/11/2002. It is indicated that Class III can have 2 peons and the total number of staff available before classification to Class III was only 6 and there were no peons. The 2[nd] proviso to Rule 188 can apply only when the Society is in need of any change in the pattern of the staff including the scale of pay W.P.C.No.26331 of 2004 5 under special circumstances. In other words, if the Bank is following the pattern permitted under Appendix III of the Rule, the 2[nd] proviso has no application. 9. Taking into consideration the facts of this case, and the judgment in **Sherthallai Urban Co.Op.Bank** (Supra), it is clear that the restriction imposed by the Joint Registrar in Ext.P3 is bad in law and hence this writ petition is allowed quashing Ext.P3 and declaring that there is no illegality in the appointment of petitioners to the post of Peons which are sanctioned as per Class III. ## **(A.M.SHAFFIQUE, JUDGE)** jsr // True Copy// PA to Judge W.P.C.No.26331 of 2004 6 W.P.C.No.26331 of 2004 7