M.N. Remesan & Dinoop Das v. Joint Registrar of Co-operative Societies (General), Government of Kerala, Kanakkary Service Co-operative Bank Ltd. and Lekha B.T.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 12TH DAY OF JULY 2017/21ST ASHADHA, 1939** ## **WP(C).No. 10351 of 2015 (T)** **----------------------------** ## **PETITIONER(S):** - **------------------------** **1. M.N. REMESAN, JUNIOR CLERK, THE KANAKKARY SERVICE CO-OPERATIVE BANK LIMITED NO. 3831, VEMPALLY P.O - 686 633, KOTTAYAM DISTRICT.** **2. DINOOP DAS, PEON, THE KANAKKARY SERVICE CO-OPERATIVE BANK LIMITED NO. 3831, VEMPALLY P.O - 686 633, KOTTAYAM DISTRICT.** **BY ADVS.SRI.P.N.MOHANAN, SMT.I.VINAYAKUMARI, SRI.C.P.SABARI.** **RESPONDENT(S):** - **----------------------------** **1. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOTTAYAM - 686 001.** **2. GOVERNMENT OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, CO-OPERATIVE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **3. THE KANAKKARY SERVICE CO-OPERATIVE BANK LIMITED NO. 3831, REPRESENTED BY SECRETARY, VEMPALLY P.O - 686 633, KOTTAYAM DISTRICT.** **4. LEKHA B.T., THOZHARATTUPARAMBIL HOUSE, IMANAM P.O., KOTTAYAM-686 633.** - **R1 & R2 BY GOVT. PLEADER SRI.M.R. DHANIL. R3 BY ADV. SRI.O.D.SIVADAS.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** rs. ## **WP(C).No. 10351 of 2015 (T)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** - **EXHIBIT-P1TRUE COPY OF THE APPOINTMENT ORDER DATED 06/06/2008 ISSUED IN RESPECT OF THE IST PETITIONER.** - **EXHIBIT-P2TRUE COPY OF THE PROMOTION ORDER DATED 27/03/2012 OF THE IST PETITIONER.** - **EXHIBIT-P3TRUE COPY OF THE ORDER DATED 28/07/2010 OF THE JOINT REGISTRAR.** - **EXHIBIT-P4TRUE COPY OF THE ORDER DATED 09/01/2014 OF THE GOVERNMENT.** - **EXHIBIT-P5TRUE COPY OF THE ORDER DATED 12/03/2015 ISSUED IN RESPECT OF THE IST PETITIONER.** - **EXHIBIT-P6TRUE COPY OF THE ORDER DATED 12/03/2015 ISSUED IN RESPECT OF THE 2ND PETITIONER.** - **EXHIBIT-P7TRUE COPY OF THE JUDGMENT DATED 27/01/1998 IN W.A 392/1994.** ## **RESPONDENT'S EXHIBITS:-** **EXT.R3A COPY OF THE JUDGMENT IN WP(C).NO.27528/2010 RENDERED BY THIS HON'BLE COURT.** **//TRUE COPY//** **P.S. TO JUDGE** rs. ## Devan Ramachandran, J. ----------------------------------------------- W.P.(C)No.10351 of 2015 T ----------------------------------------------- Dated this the 12[th] day of July, 2017 ## **JUDGMENT** The petitioners were appointed originally as Peons in the service of the Kanakkary Service Co-operative Bank, the third respondent herein, on 07.06.2008. Subsequently, the first petitioner was promoted as a Junior Clerk with effect from 27.03.2012. 2. The controversy in this case, in fact, arose much before the petitioners were so appointed. The petitioners were appointed to the vacancies in the post of Peons consequent to the promotion of two other persons, namely Ms.Deepamol and Sri.Jayadev, who were working as Peons until then and promoted as Junior Clerks in 2008. While so, it appears that the fourth respondent, who claims to be an aspirant to the post of Junior Clerk in the services of the Bank, made a complaint before the WPC 10351/15 2 Joint Registrar of Co-operative Societies alleging that the promotions of Ms.Deepamol and Sri.Jayadev to the post of Junior Clerk were irregular and that the vacancies of Junior Clerks could not have been filled up by promotion, because under the Kerala Co-operative Societies Act, such vacancies could have been filled up by direct recruitment. On such allegation, the Joint Registrar issued Exhibit P3 order directing that aforesaid Ms.Deepamol and Sri.Jayadev be reverted as Peons and that the petitioners, who were appointed in these vacancies be sent out of service. It appears that Exhibit P3 order was appealed against by the Bank before the Government, but rejected, leading to Exhibit P4 order. 3. Based on the above mentioned two orders, the Managing Committee of the Bank issued Exhibits P5 and P6 orders reverting Ms.Deepamol and Sri.Jayadev to the post of Peon and terminating the services of the petitioners as a corollary consequence. The petitioners WPC 10351/15 3 have preferred this writ petition challenging Exhibits P3 to P6 orders as being wholly illegal, unlawful and even unnecessary. 4. I have heard Sri.P.N.Mohanan, learned counsels for the petitioners, Sri.O.D.Sivadas, learned counsel for the third respondent and the learned Government Pleader for the official respondents. 5. The problem for the petitioners in this case arose when the fourth respondent made complaints against the promotion of Ms.Deepamol and Sri.Jayadev to the post of Junior Clerks. The petitioners are only unfortunate victims of such a complaint because they have been sought to be terminated from service only as a consequence of the reversion of the above named persons. The question, therefore, before me is whether the reversion of Ms.Deepamol and Sri.Jayadev itself was necessary or proper so as to warrant the termination of the petitioners from service. The fourth respondent's WPC 10351/15 4 complaint appears to be that promotion of Ms.Deepamol and Sri.Jayadev to the posts of Junior Clerk was impermissible since such vacancies could have been filled up only by a process of direct recruitment. She was only an aspirant for such post and she possibly legitimately hoped that she would have a chance if vacancies are filled up through such a process. 6. Interestingly, asserting that Exhibit P3 order has to be implemented, the fourth respondent had approached this Court earlier by filing W.P.(C)No. 27528/2010, which led to Exhibit R3(a) judgment dated 19.08.2016. In the said judgment, the claim of the petitioner was rejected and it was declared that the fourth respondent herein was only an aspirant to the post of Junior Clerk and that she does not have a vested right to get appointment in the Bank. 7. In this case also, even though the fourth respondent has entered appearance through a counsel, WPC 10351/15 5 she does not appear to be seriously contesting the case against the petitioners since there was no representation on her behalf. This is possibly because, by efflux of time the intensity of her aspirations would have reduced and also possibly because the persons involved, namely the petitioners, Ms.Deepamol and Sri.Jayadev have been continuing in service for the last several years without any interruption. 8. While testing the validity of Exhibit P3, I am called upon to consider whether the Joint Registrar of Cooperative Societies, who had issued that order, had the competence to do so. As I have already indicated above, the Joint Registrar proceeded to issue the said order on the basis of the complaint of the fourth respondent. However, since this Court in Exhibit R3(a) judgment declared that the fourth respondent does not have a vested right to get appointment and since the fourth respondent does not appear to be now interested in her WPC 10351/15 6 request for such appointment, I do not see any reason why the petitioners or the aforesaid Ms.Deepamol and Sri.Jayadev should be disturbed so as to pave way for any direct recruitment into those vacancies. I say this because the petitioners were recruited as early as in the year 2008 and they have been continuing in service for more than nine years. It will be highly and grossly inequitable to send them away on account of the reversion of Ms.Deepamol and Sri.Jayadev. The learned counsel for the petitioners also submits, taking support from the judgment of another learned Judge of this Court in **Kanjoor Service Co-operative Bank Ltd. v. Joint Registrar of Co-operative Societies (General)** (2016 (3) KLT 73), that the Joint Registrar did not have the competence or jurisdiction to issue an order akin to Exhibit P3 and that such powers, after the amendment to the Act, have been vested with the Arbitration Court. WPC 10351/15 7 9. On an assessment of all the factors presented before me and on an evaluation of the various pleadings and submissions made at the Bar, I am of the view that Exhibits P3 and P4 orders would now obtain no sustenance because the fourth respondent cannot claim appointment in the Bank as a vested right, as has been declared in Exhibit R3(a) judgment, even if the appointments of the petitioners are to be disturbed. Further, the appointments of the petitioners were made as early as in 2008 and it is doubtful whether the Joint Registrar, acting under the powers vested in him under the provisions of the Act, could have issued such a order when admittedly, after the amendment of the Act, such powers are vested with the Arbitration Court. 10. In such view of the matter, Exhibit P3 order of the Joint Registrar and Exhibit P4 order of the Government confirming Exhibit P3 would now find no forensic support and cannot, therefore, stand in law. WPC 10351/15 8 In such circumstances, I allow this writ petition quashing Exhibits P3 to P6 and directing that the petitioners be allowed to continue in service based on their initial appointment in the year 2008. The learned counsel for the petitioner submits that because of the pendency of this writ petition, the salary of the petitioners has not been paid. Since I have quashed Exhibit P3 order, the petitioners would be entitled to apply to the Managing Committee of the Bank for their arrears of salary and other benefits, if any, and the Managing Committee would be obligated to consider the same in terms of law and to grant the same, if the petitioners are otherwise eligible for it under the provisions of the applicable Rules and Regulations. Devan Ramachandran, Judge tkv