Ranisam; Sobha S; Praveena V. L v The Joint Registrar (General), Department of Co-operative Societies, Kollam; The Assistant Director of Cooperative Audit, Kollam; The Director Board of Punukkannoordes Abhivardhini Service Cooperative Bank Ltd., No.2745, represented by the President, Perumpuzha, Kollam; Punukkannoordes Abhivardhini Service Cooperative Bank Ltd., represented by the Secretary, Perumpuzha, Kollam

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 19[TH] DAY OF OCTOBER 2023 / 27TH ASWINA, 1945 WP(C) NO. 5449 OF 2023`** ## **`PETITIONER/S:`** ``` 1RANISAM AGED42YEARS W/OSAMVARGHEESE,JUNIORCLERKANDSECRETARYIN CHARGE,PUNUKKANNOORDESABHIVARDHINISERVICE CO-OPERATIVEBANKLTD.NO.2745, KOTTAKKAKATHUVEEDU,AMBIPOIKA.P.O,KUNDARAL, - KOLLAM-,PIN691501 2SOBHA.S AGED47YEARS W/OVINOD,JUNIORCERK,PUNUKKANNOORDESABHIVARDHINI SERVICECOOPERATIVEBANKLTD.NO.2745, THODIYILPUTHENVEEDU,KALLUMTHAZHAM.P.O, - KILIKOLLOOR,KOLLAM,PIN691004 3PRAVEENA.V.L AGED39YEARS W/OANILKUMAR,ATTENDER,PUNUKKANNOOR DESABHIVARDHINISERVICECOOPERATIVEBANKLTD.NO.2745, RADHAMANDIRAM,PUNUKKANNOOR,PERUMPUZHA.P.O, - KOLLAM-,PIN691004 BYADVS. MURALIMADANTHACODU GREESHMAM.M. ``` ## **`RESPONDENT/S:`** ``` 1THEJOINTREGISTRAR(GENERAL) DEPARTMENTOFCOOPERATIVESOCIETIES,COLLECTORATE - BUILDINGS,KOLLAM,PIN691013 2THEASSISTANTDIRECTOROFCOOPERATIVEAUDIT - CIVILSTATION.P.O,KOLLAM,PIN691013 ``` W.P.(C.) No.5449 of 2023 2 ``` 3THEDIRECTORBOARDOFPUNUKKANNOORDESABHIVARDHINI SERVICECOOPERATIVEBANKLTD.NO.2745 REPRESENTEDBYTHEPRESIDENT,PERUMPUZHA.P.O,KOLLAM, - PIN691504 ``` ``` 4PUNUKKANNOORDESABHIVARDHINISERVICECOOPERATIVEBANK LTD.NO.2745,REPRESENTEDBYTHESECRETARY, - PERUMPUZHA.P.O,KOLLAM.,PIN691504 BYADVS. ADVOCATEGENERALOFFICEKERALA K.M.VIJAYAKUMARAN ``` ``` SMT.PRINCYXAVIER,SR.GP SRI.KMVIJAYAKUMARAN,FORTHEDIRECTORBOARDOF PUNUKKANNOORDESABHIVARDHINISERVICECOOPERATIVEBANK LTD ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSIONON 19.10.2023,THECOURTONTHESAMEDAYDELIVEREDTHEFOLLOWING: ``` W.P.(C.) No.5449 of 2023 3 ## **JUDGMENT** The petitioners contend that they are the employees of the Punukkannoor Desabhivardhini Service Cooperative Bank Ltd. No.2745. The appointment order dated 3.8.2012 is produced as Ext.P1 to substantiate that the 1st petitioner was appointed as attender on 27.07.2012, and she was later promoted to Junior Clerk on 20.11.2014. Ext.P2 order is produced to substantiate that the 2nd petitioner was appointed on 20.11.2014 as attender in the vacancy of the attender post and later promoted to the post of junior clerk on 13.4.2015. Ext.P3 is produced to substantiate that the 3rd petitioner was appointed on 20.4.2015. 2. The contentions of the petitioners are that when the junior auditor who was working as Secretary of the bank on a deputation basis went on leave, the 1st petitioner was granted the charge of Secretary from 1.12.2014 onwards in terms of Ext.P4 decision taken by the Director Board. It is contended that the petitioners were all appointed by following the procedure and by issuing appropriate notifications. Their grievance concerns Ext.P8 Audit Memorandum, as per which the 2nd respondent has come to the conclusion that the appointment of the petitioners has not been sanctioned. On the basis of the audit report, the W.P.(C.) No.5449 of 2023 4 salary and other benefits due to the petitioners have been withheld. The petitioners contend that being aggrieved by the audit objection, they have approached this Court and filed W.P.(C) No.20963 of 2021. This Court, after considering the proposition of law laid down in **Elampal Service Co-operative Bank Ltd. v. Government of Kerala[1]** , took the view that approval of the Registrar was not necessary to fill up the vacancies that were available as per the staff pattern and such appointments were required to be done so as to enable the society to function without any impediment. After declaring the law on the point, the Court directed the Joint Registrar (General) to hear the petitioners and consider their grievances. In terms of the directions issued by this Court, the Joint Registrar considered the grievances of the petitioners herein and issued Ext.P17 order upholding the audit objection and rejecting the application of the petitioners herein. While passing the said order, the 1st respondent came to the conclusion that the petitioners 1 and 2 were promoted by the society in clear violation to the provisions of Rule 185(1) of the Kerala Co-operative Society Rules. The contention of petitioners 1, 2 and 3 is that they have 10 years, 8 years, and 7 years of experience, respectively, in the bank and that at the time of their appointment, there were no feeder category sub-rules under Rule 185(1). > 1 [2000 (3) KLT 389] W.P.(C.) No.5449 of 2023 5 They also assert that they were not paid the statutory salary and benefits for a period of three years from the date of appointment, and they have received only an amount of Rs.5,000/- during the said period. It is on these assertions that this writ petition is filed seeking the following reliefs: “ i) Issue a writ of mandamus or any other appropriate writ, order, or direction to set aside the 3rd item in the summary of the shortcomings of the Audit Memorandum, Exhibit P8, of the 2nd respondent, and Exhibit P17, order of the 1st respondent. (ii) Issue a writ of mandamus or any other appropriate writ, order, or direction to the respondents to declare that no sanction is needed for appointments to the sanctioned posts (iii) Issue a writ of mandamus or any other appropriate writ, order, or direction to the respondents to pay arrears of increments, salary, and all other benefits to the Petitioners without further delay.” 3. A counter affidavit has been filed by 1st respondent wherein a preliminary objection was raised that Ext.P17 is an appealable order under Section 83(1)(j) of the Kerala Cooperative Societies Act and, therefore, the writ petition is not maintainable. It is stated that an Ext.P5 order was issued for the appointment of a single vacancy of an attender. It is contended that it was impermissible for the society to make an appointment as per Ext.P6 decision, W.P.(C.) No.5449 of 2023 6 pursuant to the Ext.P1 appointment order. It is further stated that in terms of Rule 185(1) of the Kerala Cooperative Societies Rules, appointments to the categories of posts in a society other than those mentioned in sub-rules (2), (3), and (4) shall be made by promotion on the basis of seniority in the feeder category. The feeder categories for this purpose shall be specified by the society by framing suitable regulations with the approval of the Registrar. Furthermore, in terms of the 4th proviso, an employee had to complete a short-term training program/course conducted by institutions mentioned therein. It is stated that the 1st petitioner had not completed three years of service in the sub-staff category, and therefore, her promotion to the post of junior clerk was illegal. The 2nd petitioner was appointed in the promotion vacancy of the 1st petitioner, and therefore, as her appointment was against the non-existing vacancy that too on 20.11.2014 and as she was promoted to the post of junior clerk on 13.04.2015 after completing just 141 days of service in the sub staff category, the above procedure is a violation of Rule 185(1) of the Rules. The promotion granted to the 2nd petitioner was also illegal. It is stated that the 3rd petitioner was appointed in the promotion vacancy of the 2nd petitioner, and her appointment was also against the non-existing vacancy; and therefore, her appointment is also illegal. It is in these circumstances that the auditors raised the objection, W.P.(C.) No.5449 of 2023 7 and the emoluments that are to be paid to the petitioners were shown in the defect summary. 4. A counter affidavit has been filed by the 3rd respondent. It is stated in the counter that the bank commenced functioning on 21.4.1123 M.E., and from the very beginning itself, there were three employees viz. Secretary, Clerk, and Attender. Even now, there are only three employees, and the Senior Clerk is functioning as the Secretary. It is stated that the three posts of Secretary, Clerk, and Attender are sanctioned posts from the commencement of the Bank, and the 2nd post of clerk was sanctioned through Ext.P13, reclassification order of the 1st respondent. It is stated that no approval is required for appointments in sanctioned posts as has been held in Ext.P16 judgment. It is stated that in view of the urgency and with a view to keep the society functioning, the 2nd and 3rd petitioners were appointed. It is further stated that the 1st and 2nd petitioners were appointed without any legal benefits for a period of five years and that all three petitioners were paid only a consolidated salary of Rs.5,000/- during the said period. The 3rd respondent has acted only to protect the interest of the society. It is further stated that the 1st respondent and his subordinate officers were aware of the appointments and also the status of the society, and they have not taken any steps to rescind the resolution. W.P.(C.) No.5449 of 2023 8 5. I have considered the submissions advanced and have gone through the records. 6. Challenging that portion of Ext.P8 audit memo as per which it was held that appointments were made without prior approval, the petitioners had earlier approached this Court by filing W.P.(C) No.20963 of 2023. This Court, after considering the contentions advanced, had held as follows in paragraphs Nos.7,8 and 9. 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 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 W.P.(C.) No.5449 of 2023 9 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. 7. A proper evaluation of the observations made by this Court would unmistakably lead to the conclusion that the principles laid down in Elampal (Supra) would clearly apply. This Court has also taken note of the fact that if the appointments were not made, the society would have had to close down. I find that after making the above observations to guide the authorities, directions were issued to the Joint Registrar (General) to consider the matter. However, by Ext.P17 order, the Registrar appears to have lost sight of the principles laid therein, and also the law laid down in Elampal (Supra). The Registrar, after observing the order that vacancy existed from the commencement, went on to say that promotion was granted in violation of Rule 185. A statement has been made in the counter affidavit by the 3rd respondent as to the circumstances which persuaded to make the appointment as made in the instant case. The respondents stated in the counter that the petitioners were promoted without any legal benefits for a period of 5 years, and they were paid only a consolidated salary of five years. As rightly submitted by the learned counsel, no authorisation W.P.(C.) No.5449 of 2023 10 is required as held by this Court in Elampal (Supra). Though the learned Government Pleader would point out that the petitioners would not be justified in challenging the report, the fact remains that the order was passed without properly appreciating the law laid down in Elampal (Supra) and without adverting to the same. In that view of the matter, the petitioners are entitled to succeed. Ext.P17 order will stand quashed. It is declared that no sanction is needed for appointment to the sanctioned post as held in Elampal (Supra). There will be a direction to the respondents to pay the arrears of increments, salary, and all other benefits to the petitioners expeditiously at any rate within a period of two months. Writ Petition is disposed of. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** NS W.P.(C.) No.5449 of 2023 11 ## **`APPENDIX OF WP(C) 5449/2023`** |`PETITIONER EXHIBITS`|| |---|---| |`Exhibit P1`|`TRUE COPY OF THE APPOINTMENT ORDER OF THE 1ST`| ||`PETITIONER DATED 03.08.2012`| |`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 20.04.2015`| |`Exhibit P4`|`THE TRUE COPY OF THE DECISION OF THE DIRECTOR`| ||`BOARD DATED 20.11.2014`| |`Exhibit P5`|`TRUE COPY OF THE ADVERTISEMENT IN`| ||`MATHRUBHOOMI DAILY DATED 23.01.2012`| |`Exhibit P6`|`TRUE COPY OF THE DECISION OF THE 3RD`| ||`RESPONDENT REGARDING RANK LIST DATED`| ||`27.07.2012`| |`Exhibit P7`|`TRUE COPY OF THE DECISION OF THE 3RD`| ||`RESPONDENT COMMITTEE REGARDING EXTENSION OF`| ||`THE RANK LIST DATED 10.07.2014`| |`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 23.01.1991`| |`Exhibit P10`|`THE TRUE COPY OF THE DECISION OF THE DIRECTOR`| ||`BOARD TO APPOINT SMT K.G.RAMADEVI AS CLERK`| ||`DATED 07.07.1995`| W.P.(C.) No.5449 of 2023 12 - `Exhibit P11 TRUE COPY OF THE DECISION OF THE 3RD RESPONDENT TO APPOINT RATHEESH AS ATTENDER DATED 07.11.1996` - `Exhibit P12 TRUE COPY OF THE SANCTION LETTER OF THE 1ST RESPONDENT TO APPOINT ATTENDER IN THE BANK DATED 19.09.2012` - `Exhibit P13 TRUE COPY OF THE RECLASSIFICATION ORDER OF THE 1ST RESPONDENT DATED 26.09.2015 IS` - `Exhibit P14 TRUE COPY OF THE REPRESENTATION OF THE PETITIONERS BEFORE THE 2ND RESPONDENT DATED 25.05.2021` - `Exhibit P15 TRUE COPY OF THE REPRESENTATION OF THE PETITIONERS SUBMITTED BEFORE THE 1ST RESPONDENT DATED 25.05.2021` - `Exhibit P16 TRUE COPY OF THE JUDGMENT IN WP(C) NO. 20963/2021 OF THIS HONBLE COURT DATED 06.06.2022` ``` ExhibitP17TRUECOPYOFTHEORDEROFTHE1STRESPONDENT DATED19.10.2022 ```