Renjith K. Joy and others v. The Registrar of Co-operative Societies, Thiruvananthapuram; The Thrissur Urban Co-operative Bank Ltd.; C.J. James; M.N. Rajan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **MONDAY, THE 23RD DAY OF MAY 2016/2ND JYAISHTA, 1938 WP(C).No. 32804 of 2008 (E)** **----------------------------** **PETITIONER(S):** - **-------------** **1. RENJITH K. JOY, S/O. JOY KV,KANNANAIKKAL HOUSE, EVER GREEN ROAD,CHELAKKOTTUKARA, THRISSUR.** **2. JULIE JOSHY, AGED 30 YEARS,W/O. JOSHY, AKKARA HOUSE, THAIKKATHUSSERY P.O., EDAKUNY THALORE, THRISSUR.** **3. HIJO JOSE, AGED 31 YEARS, S/O. OUSEPH** - **T.I., THEKKEKARA HOUSE, CHEMMANTHATTA P.O. PAZHANNANA, THRISSUR.** **4. SHAJU K.V., AGED 34 YEARS,S/O. VIJAYAN K.I, KUZHICHAMADATHIL HOUSE,KONIKKARA P.O., THRISSUR.** **5. SAJITH KHAN A.H., AGED 32 YEARS,S/O. HASSAN KHAN, SAJITH MANZIL,MISSION QUARTERS, THRISSUR.** **6. BAIJU MM, AGED 32 YEARS, S/O.MOHANAN, MACHUMPURATH HOUSE, PAZHUVIL WEST, THRISSUR.** **7. SHIBU LAZAR K, AGED 31 YEARS,S/O. LAZAR K.O., KAREKKATTIL HOUSE,CHETTUPUZHA P.O., THRISSUR.** **8. PRAKASAN K.R., AGED 39 YEARS,S/O. RAGHAVAN, KAYAMKULAM,, ARANATTUKARA P.O. KHALANJALI NAGAR,KIZHAKKEPURAM 680618.** **BY ADVS.SRI.A.JAYASANKAR** **SRI.MANU GOVIND SRI.N.V.RAJEEV SRI.PRAMOD DAS LOHYA SMT.B.MEERA** **RESPONDENT(S):** - **--------------** **1. THE REGISTRAR OF CO-OPERATIVE SOCIETES, THIRUVANANTHAPURAM.** **2. THE THRISSUR URBAN CO-OPERATIVE BANK LTD NO. 87, PB NO. 86, HIGH ROAD, THRISSUR-1.** **3. C.J. JAMES, S/O. JOSE, CHOVALLUR, PARAVATTANI P.O., THRISSUR.** **4. SRI. M.N. RAJAN, S/O. MADATHIPARAMBIL NARAYANAN, AYYANTHOL P.O., THRISSUR -3.** **R,R2 BY ADV. SRI.C.D.DILEEP R BY GOVERNMENT PLEADER SMT. ROSE MICHAEL R BY SRI.C.D.DILEEP,SC,TRICHUR URBN CO-OP.BANK** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 32804 of 2008 (E)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **------------------------** **EXHIBIT P1 COPY OF JUDGMENT DATED 26.09.2006 IN OP 14333/03** **EXHIBIT P2 COPY OF COMPLAINT DATED 12.03.2003 BY 4TH RESPONDENT FORWARDED TO 1ST RESPONDENT.** **EXHIBIT P3 COPY OF ORDER DATED 17.07.2007 BY 1ST RESPONDENT.** ## **RESPONDENT'S EXHIBITS:-** **-------------------------** **EXHIBIT R2(a)COPY OF THE ORDER No.C.R.B.6439/02 DATED 13.01.02 OF THE JOINT REGISTRAR** // True copy // PA to Judge das ## **A.K.JAYASANKARAN NAMBIAR, J.** =========================================== **W.P.(C). No. 32804 of 2008** ===================================================== **Dated this the 23[rd] day of May, 2016** ## **JUDGMENT** The petitioners, who are eight in number, are employees of the 2[nd] respondent bank. The bank is a Class-one bank coming under Appendix III (C) (1) of the Kerala Co-operative Society Rules. The petitioners are stated to have responded to a notification dated 01.02.2003 in respect of vacancies for the post of Gold Appraiser and Peon. Although the notification itself is not produced in the writ petition, it is apparent from the pleadings that the notification was for three posts of Gold Appraiser and one post of Peon. Pursuant to the application put in by them, the petitioners were asked to appear for a written test and an interview on 24.04.2003 and 30.04.2003 respectively. Based on the performance of the petitioners in the said written test and interview, they were included in a rank list that was published. It would appear that the petitioners were ranked as serial Nos. 4 to 10 in the said rank list. While the 8[th] petitioner was appointed as Peon by an order dated 02.06.2003, petitioners 1 to 7 were appointed as Gold Appraisers by an order dated 13.06.2003. The said appointments were pursuant to the decisions of the Managing Committee of the respondent bank dated 29.05.2003 and 12.06.2003 respectively. In -2- W.P.(C). No. 32804 of 2008 the writ petition, the petitioners impugn Ext.P3 order dated 17.07.2003, that was passed by the 1[st] respondent, whereby the 1[st] respondent found that the decisions of the Managing Committee dated 29.05.2003 and 12.06.2003 were illegal and ultravires the objects of the Society, and against the provisions of the Act and Rules, for the purposes of Rule 176 of the Co-operative Society Rules. In particular, in Ext.P3 it is found that the 1[st] respondent had granted the respondent bank permission to fill up only three posts of Gold Appraisers and one post of Peon and the respondent bank had, contrary to the said permission, gone ahead and appointed petitioners 1 to 7 as Gold Appraisers and the 8[th] petitioner as Peon in vacancies, that were in excess of the vacancies that were notified in the notification dated 01.02.2003. It was apprehending a consequential action terminating them from service that the petitioners approached this Court impugning Ext.P3 order of the 1[st] respondent. In the writ petition, the petitioners, while seeking a direction to quash Ext.P3 order, also pray for a direction to the 1[st] respondent to reconsider their case in accordance with law. In particular, it is pointed out that before passing Ext.P3 order, the 1[st] respondent did not hear the petitioners and to that extent, Ext.P3 order was passed in violation -3- W.P.(C). No. 32804 of 2008 of the rules of natural justice, as observed by the Division Bench of this Court in Purushothaman v. Registrar **[1996 (2) KLT 26]** . 2. A counter affidavit has been filed on behalf of the 2[nd] respondent, wherein, the 2[nd] respondent seeks to justify the decisions of the Managing Committee dated 29.05.2003 and 12.06.2003 on the basis of the reasons stated in the counter affidavit. It is pointed out that the subsequent vacancies that arose to the posts of Gold Appraisers and Peon, and to which vacancies the petitioners 1 to 8 were accommodated, were filled up by selecting the petitioners who were included in the rank list, the validity of which had not expired on the dates of their respective appointments. 3. I have heard the learned counsel appearing for the petitioner, learned Standing Counsel appearing for the respondent Bank, and the learned Government Pleader appearing for the official respondents. 4. The learned Government Pleader would submit, on instructions, that Ext.P3 order is one that is passed by the 1[st] -4- W.P.(C). No. 32804 of 2008 respondent in exercise of its powers under Rule 176 of the Kerala Co-operative Society Rules. The said order is sought to be justified on the contention that, inasmuch as the appointment of the petitioners was to vacancies that had not been notified, the petitioners could not base their claim on any valid or established right and hence, there was no valid ground for interfering with Ext.P3 order in these proceedings under Article 226 of the Constitution of India. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I am of the view that, although it is well settled that when it comes to the matters of public employment, the appointments of candidates cannot be to vacancies that have not been notified for filling up in accordance with the prescribed selection procedure, the facts in the instant case would indicate that the petitioners, after responding to the notification, wherein the number of posts were indicated as three for the post of Gold Appraisers and one for the post of Peon, appeared for a written test and interview and were included in a rank list, that was published. In the said rank list, petitioners 1 to 7 were ranked as serial Nos. 4 to 10 for the post of Gold -5- W.P.(C). No. 32804 of 2008 Appraisers and the 8[th] petitioner was ranked No.2 in the rank list, for the post of Peon. They were offered the posts, to which they were appointed, pursuant to a resolution taken by the Managing Committee of the respondent bank, the contents of which were not known to them. It is rightly contended by counsel for the petitioners that the petitioners were not in a position to know the basis of their appointment to the posts, to which they were subsequently appointed, and the legality of the action of the respondent bank in offering them appointments to the said posts. In any event, I am of the view that before passing Ext.P3 order, the 1[st] respondent, who found that the resolutions passed by the Managing Committee of the respondent bank on 29.05.2003 and 12.06.2003 were illegal, and therefore liable to be set aside, ought not to have ignored the appointments that were offered to the petitioners in the writ petition, which were accepted by the petitioners who took up their assignments under the respondent bank. As noticed by the Division Bench of this Court in **1996 (2) KLT 26** , the 1[st] respondent ought to have noted that the resolution passed by the Society, while admitting members to its staff, if rescinded would result in adverse civil consequences to those persons, and hence they ought to have been afforded an -6- W.P.(C). No. 32804 of 2008 opportunity of hearing before setting aside the resolution, on the basis of which they were offered appointments to the posts in question. Going by the decision of the Division Bench referred above, I am of the view that Ext.P3 order of the 1[st] respondent is vitiated by a non compliance with the rules of natural justice inasmuch as it related to the petitioners in the writ petition. Resultantly, I quash Ext.P3 order passed by the 1[st] respondent. Further, in the light of the fact that more than seven years have elapsed since the appointment of the petitioners, I do not deem it necessary to remand the matter to the 1[st] respondent, at this distance of time, for taking a fresh decision in the matter. The writ petition is thus allowed by quashing Ext.P3 order. Sd/- ## **A.K.JAYASANKARAN NAMBIAR JUDGE** das /23.5.2016