Rani Sam and others v. Joint Registrar (General), Department of Co-operative Societies; Assistant Director of Co-operative Audit; Director Board of Punukkannoor Desabhivardhini Service Co-Operative Bank Ltd. and Punukkannoor Desabhivardhini Service Co-Operative Bank Ltd. (represented by the President and Secretary)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** ## **MONDAY, THE 6[TH] DAY OF JUNE 2022 / 16TH JYAISHTA, 1944** **WP(C) NO. 20963 OF 2021** ## **PETITIONERS:** - **1 RANI SAM, AGED 41 YEARS, JUNIOR CLERK AND SECRETARY IN CHARGE, PUNUKKANNOOR DESABHIVARDHINI SERVICE CO-OPERATIVE BANK LTD. NO.2745, KOTTAKKAKATHU VEEDU, AMBIPOIKA P.O., KUNDARA, KOLLAM, 691 501.** - **2 SOBHA S., JUNIOR CLERK, PUNUKKANNOOR DESABHIVARDHINI SERVICE CO-OPERATIVE BANK LTD. NO.2745, THODIYIL PUTHEN VEEDU, KALLUMTHAZHAM P.O., KILIKOLLOOR, KOLLAM-691 004.** - **3 PRAVEENA V.L., ATTENDER, PUNUKKANNOOR DESABHIVARDHINI SERVICE CO-OPERATIVE BANK LTD. NO.2745, RADHAMANDIRAM, PUNUKKANNOOR, PERUMPUZHA P.O., KOLLA-691 504.** ## **BY ADV.SRI.MURALI MADANTHACODU** ## **RESPONDENTS:** - **1 THE JOINT REGISTRAR (GENERAL), DEPARTMENT OF CO-OPERATIVE SOCIETIES, COLLECTORATE BUILDINGS, KOLLAM - 691 013.** - **2 THE ASSISTANT DIRECTOR OF CO-OPERATIVE AUDIT, CIVIL STATION P.O., KOLLAM - 691 013.** - **3 THE DIRECTOR BOARD OF PUNUKKANNOOR DESABHIVARDHINI SERVICE CO-OPERATIVE BANK LTD. NO.2745, REPRESENTED BY THE PRESIDENT, PERUMPUZHA P.O., KOLLAM - 691 504.** - **4 PUNUKKANNOOR DESABHIVARDHINI SERVICE CO-OPERATIVE BANK LTD. NO.2745, REPRESENTED BY THE SECRETARY, PERUMPUZHA P.O., KOLLAM - 691 504.** **BY ADVS.K.M.VIJAYAKUMARAN, SC SMT PARVATHY K, GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** **06.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C) NO. 20963 OF 2021** **-2-** ## **JUDGMENT** The petitioners, who were stated to be working as Secretary in charge, Junior Clerk and Attender respectively in the 3[rd] respondent - Society, have approached this Court impugning the Audit objections recorded against the Society to the effect that their salary and emoluments are “banned”, because their appointments were not approved. 2. Sri. Murali Madanthacode – learned counsel appearing for the petitioners, pointed out that the issues involved in this case have already been answered in favour of his clients in _**Elampal Service Co-operative Bank Ltd. v. Government of**_ _**Kerala**_ [2000(3) KLT 389], which has declared the law affirmatively that appointments to existing vacancies would not require _expost facto_ or prior approval of the competent Authorities. He ## **WP(C) NO. 20963 OF 2021** **-3-** explained that the Bank started working several years ago and that, from its inception, there were posts of Secretary, Clerk and Attender therein, which is clear from the fact that earlier persons who occupied the said positions had retired, leading to the appointments of his clients to such vacancies. He submitted that, therefore, ' _**Elampal**_ _**Service Co-operative Bank'** (supra)_ clearly settles the case in favour of his clients and against the audit objection and thus, prayed that the same be set aside. 3. In response, the learned Government Pleader – Smt.Parvathy Kottol, initially sought time to file counter pleadings, but then submitted that the remedy of the petitioners against the audit objection is not to have filed this writ petition, but to have taken it up with the competent Authority and to have cleared it in terms of law. She submitted that it was also for ## **WP(C) NO. 20963 OF 2021** **-4-** the Society to have explained the objections, so that it could have been then cleared by the officials concerned. She then added that if appointments have been made to vacancies which were not available or to posts which were not sanctioned and if it had been done without the prior permission from the Authorities, the audit objections would become tenable. She thus prayed that this writ petition be dismissed. 4. Sri.K.M.Vijayakumaran – learned counsel appearing for 3[rd] and 4[th] respondents, argued in support of the petitioners, saying that a counter affidavit has been filed by the 3[rd] respondent, wherein, the factual circumstances which led to their appointments have been averred. He submitted that since these vacancies were available and since the Bank could not function without them being filled up, his client had no other option, but to appoint the petitioners and ## **WP(C) NO. 20963 OF 2021** **-5-** therefore, that the audit objections are untenable. He then added that the Society could not have been put to prejudice on account of the inordinate delay caused by the Authorities in having either ratified the appointments or in approving the same; and therefore, that the objections against the payment of salary to them cannot be countenanced in law. He thus argued in favour of the the petitioners and prayed that this petition be dismissed. 5. I have examined the various materials available on record and have tested them on the touchstone of the afore submissions made on behalf of the parties. 6. The counter affidavit of the 3[rd] respondent makes the factual situation limpid and I, therefore, deem it appropriate to extract it as under, to enable a full reading: **==> picture [272 x 25] intentionally omitted <==** **WP(C) NO. 20963 OF 2021** **-6-** _the Petitioners are true and sustainable. The Bank was started on 21.04.1123 M.E. and from the very beginning itself, there were three employees viz; Secretary, Clerk and attender. Even now there are only three employees, two clerks senior of them is in charge of the secretary, and the attender._ _The 1[st] petitioner was appointed as attender on 27.07.2012 and promoted to the post of Junior Clerk on 20.11.2014. The 2[nd] petitioner was appointed as attender on 20.11.2014 and promoted to the post of junior clerk on 13.04.2015. The 3[rd] petitioner was appointed as attender on 20.04.2015._ _It is submitted that the three posts of secretary, clerk and attender are sanctioned posts from the starting of the Bank and the 2[nd] post of clerk was sanctioned through Exhibit P13, reclassification order of the 1[st] respondent. Appointment in the sanctioned posts is the right of the Management of the Bank and the Director Board of the Bank appointed the petitioners from a Rank list duly prepared through advertisement in the newspaper, written test and interview as per the Act, Rules and circular of the Registrar._ ## **WP(C) NO. 20963 OF 2021** **-7-** _It is submitted that the secretary Indrasenan, Clerk Remadevi and attender Ratheesh were suspended in 2005 and dismissed from service after enquiry. Indrasenan was appointed as clerk in 1991 and promoted to the post of secretary in 1992. Remadevi was appointed to the post of clerk in 1995 and Ratheesh was appointed to the post of attender in 1996.”_ _7._ The afore averments would indicate that the appointments of the petitioners were made following due procedure and after compliance of all statutory requirements; but the impugned audit objections now raised, as available from Ext.P8, is only to the effect that their salary cannot be disbursed to them on account of the fact that the same were not 'approved'. 8. However, as rightly argued by the learned counsel for the petitioners, in ' **Elampal Service Co-operative Bank** ' (supra), it has been clearly said that no approval of the Registrar is ## **WP(C) NO. 20963 OF 2021** **-8-** necessary to fill up vacancies which were available in the staff pattern; and that such appointments would require to be done, so as to enable the Society to function without impediment. 9. In the case at hand, the averments on record render it luculent that even the appointment to the posts of Secretary, Clerk, and Attender has been objected to; and it is needless to say that if such appointments had not been made, the Society would have had to close down. This is not what is envisaged in the 'Act' or the 'Rules' thereunder, and I fail to understand how an Audit Objection could have been raised without considering any of the relevant facts in its proper perspective. 10. That said, however, I do not think that this Court will be justified in setting aside the Audit Objections _per se,_ but I deem it necessary that the 1[st] respondent – Joint Registrar ## **WP(C) NO. 20963 OF 2021** **-9-** (General), hear the petitioners and consider the said Objections, leading to a decision as to whether it is sustainable in view of the factual circumstances pleaded by the parties. Resultantly, I order this writ petition to the limited extent of directing the 1[st] respondent to hear the petitioners, as well as respondents 3 and 4, and then take a decision as to the validity of the Audit Objections impugned in this case; thus culminating in an appropriate order and necessary action thereon, as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment. If, through the afore exercise, the Joint Registrar is to find that the impugned Audit Objections are unsustainable, then he shall take necessary steps to have the same vacated and necessary directions shall also be then issued for disbursement of the salary due to the petitioners **WP(C) NO. 20963 OF 2021** **==> picture [30 x 9] intentionally omitted <==** without any avoidable delay thereafter, but not later than two weeks therefrom. SAS/akv **Sd/DEVAN RAMACHANDRAN JUDGE** ## **WP(C) NO. 20963 OF 2021** **-11-** ## **APPENDIX OF WP(C) 20963/2021** ## **PETITIONER EXHIBITS** |EXHIBIT P1|TRUE COPY OF THE APPOINTMENT ORDER OF| |---|---| ||THE 1ST PETITIONER DATED 3.8.2012| |EXHIBIT P2|TRUE COPY OF THE APPOINTMENT ORDER OF| ||THE 2ND PETITIONER DATED 20.11.2014| |EXHIBIT P3|TRUE COPY OF THE APPOINTMENT ORDER OF| ||THE 3RD PETITIONER DATED 20.4.2015| |EXHIBIT P4|TRUE COPY OF THE DECISION OF THE| ||DIRECTOR BOARD DATED 20.11.2014| |EXHIBIT P5|TRUE COPY OF THE ADVERTISEMENT IN| ||MATHRUBHOOMI DAILY DATED 23.1.2012| |EXHIBIT P6|TRUE COPY OF THE DECISION OF THE 3RD| ||RESPONDENT REGARDING RANK LIST DATED| ||27.7.2012| |EXHIBIT P7|TRUE COPY OF THE DECISION OF THE 3RD| ||RESPONDENT COMMITTEE REGARDING| ||EXTENSION OF THE RANK LIST DATED| ||10.7.2014| |EXHIBIT P8|TRUE COPY OF THE AUDIT CERTIFICATE AND| ||AUDIT MEMORANDUM ISSUED BY THE 2ND| ||RESPONDENT FOR THE YEAR 2019-20 DATED| ||18.12.2020| |EXHIBIT P9|TRUE COPY OF THE DECISION OF THE| ||DIRECTOR BOARD TO APPOINT SRI.| ||INDRASENAN AS CLERK, DATED 23.1.1991| |EXHIBIT P10|TRUE COPY OF THE DECISION OF THE| ||DIRECTOR BOARD TO APPOINT SMT.| ||K.G.RAMADEVI AS CLERK DATED 7.7.1995| **WP(C) NO. 20963 OF 2021** ## **-12-** EXHIBIT P11 TRUE COPY OF THE DECISION OF THE 3RD RESPONDENT TO APPOINT RATHEESH AS ATTENDER DATED 7.11.1996 EXHIBIT P12 TRUE COPY OF THE SANCTION LETTER OF THE 1ST RESPONDENT TO APPOINT ATTENDER IN THE BANK DATED 19.9.2012 EXHIBIT P13 TRUE COPY OF THE RECLASSIFICATION ORDER OF THE 1ST RESPONDENT DATED 26.9.2015 EXHIBIT P14 TRUE COPY OF THE REPRESENTATION OF THE PETITIONERS BEFORE THE 2ND RESPONDENT DATED 25.5.2021 EXHIBIT P15 TRUE COPY OF THE REPRESENTATION OF THE PETITIONERS SUBMITTED BEFORE THE 1ST RESPONDENT DATED 25.5.2021 ## **RESPONDENT'S/S EXHIBITS : NIL.** **//TRUE COPY//** **P.A. TO JUDGE**