Shereef V. v. Joint Registrar of Co-operative Societies, Malappuram & Makkarapparamba Service Co-operative Bank Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** ## **WEDNESDAY, THE 1ST DAY OF JUNE 2016/11TH JYAISHTA, 1938** ## **WP(C).No. 10054 of 2009 (B)** **----------------------------------------** **PETITIONER(S):** **----------------------** **SHEREEF.V., JUNIOR CLERK, MAKKARAPARAMBA SERVICE CO-OPERATIVE BANK LTD.NO.576, MAKKARAPARAMBA, P.O.MALAPPURAM.** ## **BY ADV. SRI.P.N.MOHANAN** ## **RESPONDENT(S):** - **-------------------------** **1. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, MALAPPURAM.** ## **2. MAKKARAPARAMBA SERVICE CO-OPERATIVE** - **BANK LTD.NO.576, REPRESENTED BY ITS SECRETARY, MAKKARAPARAMBA, P.O.MALAPPURAM.** **R1 BY GOVERNMENT PLEADER SRI.T.R.RAJESH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** ## **WP(C).No. 10054 of 2009 (B) ----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -------------------------------------** - **P1: TRUE COPY OF THE APPOINTMENT ORDER DATED 23/11/06 OF THE R2** - **P2: TRUE COPY OF THE AUDIT OBJECTION** **P3: TRUE COPY OF THE ORDER OF THE MANAGING COMMITTEE DATED 5/11/08** - **P4: TRUE COPY OF THE JUDGMENT DATED 17/11/08 IN WPC.33695/08** - **P5: TRUE COPY OF THE ORDER DATED 10/2/09** - **P6: TRUE COPY OF THE ORDER OF THE JOINT REGISTRAR DATED 10/1/08** - **P7: TRUE COPY OF THE ORDER** ## **RESPONDENT(S)' EXHIBITS** ## **---------------------------------------** **NIL.** **/ TRUE COPY /** **P.S. TO JUDGE** ## **PJ** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) No.10054 of 2009 ----------------------------------------------Dated this the 1[st] day of June, 2016** ## **JUDGMENT** This writ petition is filed by the petitioner challenging Exts.P5 and P7, whereby the 2[nd] respondent has issued an order directing to recover the salary paid to the petitioner, since prior approval of the 1[st] respondent was not sought in making the appointment of the petitioner. Brief facts for the disposal of the writ petition are thus: 2. Petitioner was appointed as Junior Clerk on 23.11.2006, after conducting written test and interview by the Examination Board. According to the Staff pattern, there are 14 vacancies of Junior and Senior Clerks in the ratio of 1:1 and 8 posts were filled up and 6 posts of Clerks remained unfilled. During the course of audit of 2006-2007, it is alleged that, the appointment of the petitioner was found to be against the sanctioned post and auditor directed to cancel the appointment and to recover Rs.29,078/- being the salary paid to the petitioner. It is the further contention of the petitioner that, so far as the 2[nd] respondent Bank is concerned, there is no need 2 **W.P.(C) No.10054 of 2009** to approve the staff strength by the Department for making appointment as per the decision rendered by this Court in the decision reported in _**'Elampal Service Co-operative Bank Ltd. v. Government of Kerala**_ ' [2000(3) KLT 389]. In accordance with Ext.P2 audit objection, the Managing Committee of the Bank has taken a decision to terminate the service of the petitioner by Ext.P3, which was challenged before this Court in W.P.(C) No.33695 of 2008. The said writ petition was disposed of as per Ext.P4 judgment, directing the 1[st] respondent to consider the matter as the action is on the basis of audit objections and further directed not to terminate the service of the petitioner. 3. That apart, it is contended that, in the meanwhile in order to ratify the audit objection, the Managing Committee applied for the post sanctioned. Accordingly, post sanction was given by Ext.P6 to appoint 8 Junior Clerks against a total sanctioned 14 posts available in Appendix-III for the Junior/Senior Clerks together. Therefore, the contention of the petitioner is that, by Ext.P6 order dated 10.01.2008, appointment of the petitioner was ratified. It is also contended that, in terms of the direction contained in Ext.P4 judgment, 1[st] **W.P.(C) No.10054 of 2009** 3 respondent considered the matter and passed Ext.P5 order and directed to recover salary paid to the petitioner from 29.11.2006 i.e. the date of appointment to 09.11.2008, when the Bank secured the ratification of the appointment of the petitioner. As directed by the Joint Registrar in Ext.P5, Bank has issued Ext.P7 notice to recover an amount of Rs.2,26,275/- from the salary of the petitioner for the period he worked in the Bank. It is thus challenging Exts.P5 and P7 orders, petitioner has filed this writ petition. 4. Heard learned counsel for the petitioner and learned Government Pleader appearing for the 1[st] respondent. 5. The thrust of the contention advanced by learned counsel for the petitioner is that, even though a ratification of the appointment of the petitioner was sought for by the Bank, the same is not required in terms of Rule 188 of the Kerala Cooperative Societies Rules and Appendix-III to the said Rules. Junior Clerk is included in Appendix-III and a total staff strength of 14 is provided thereunder for Senior/Junior Clerks in the ratio of 1:1. Since the appointment to the employment noted in Appendix-III does not require ratification, the action pursuant to Exts.P5 and P7 cannot be sustained under law. In 4 **W.P.(C) No.10054 of 2009** this regard, learned counsel for the petitioner has invited my attention to the judgment rendered by a Division Bench of this Court in _**'Elampal Service Co-operative Bank Ltd.'** (supra),_ wherein this Court had held that for appointing staff as per the staff pattern fixed in Appendix-III and the Rules, according to the type of class to which the Society belongs, no approval of the Registrar is necessary. That apart, it was held in the said judgment that, approval is required only if a change in the staff pattern is necessary. Thereupon, it is contended by the petitioner that, the action pursuant to Ext.P5 of the Joint Registrar and consequential order as per Ext.P7 by the Bank cannot be sustained. 6. On the other hand, learned Government Pleader contended that, there were already 7 Junior clerks in the Bank and therefore the petitioner who was appointed as the 8[th] person, was not in accordance with law and therefore prior sanction of the 1[st] respondent was required in order to make appointment of the petitioner. 7. On an appreciation of the rival submissions made across the Bar and perusal of the pleadings and documents, the question to be considered is whether any interference with **W.P.(C) No.10054 of 2009** 5 Ext.P5 order passed by the 1[st] respondent is required taking into account the fact that the petitioner was the 8[th] Junior Clerk appointed in the Bank, when only 7 posts were available to Junior Clerks out of the total 14 posts to be shared in equal proportion by Senior/Junior Clerks. The said factual finding entered by the 1[st] respondent in Ext.P5 is not under serious dispute in this writ petition. However, it is brought to my notice that the 1[st] respondent by order dated 10.01.2008 has approved appointment of 8 Junior Clerks limiting the total staff strength to 21 instead of 30 available in Appendix-III. That apart, it is the specific contention of the petitioner that, petitioner was appointed in the Bank as per the notification issued and after conducting written test and interview, and that too by the Examination Board. 8. Therefore, taking into account the plight of the petitioner in the issue, one can only presume that the petitioner was appointed by the Bank as per notification issued and in accordance with the procedure formulated for appointment and the same was made by the Examination Board. Therefore, it cannot be found that the petitioner has committed any mistake in the matter of employment with the 6 **W.P.(C) No.10054 of 2009** 2[nd] respondent Bank. Therefore, in that view of the matter, I am satisfied that, any manner of illegality can be attributed against the petitioner in the matter of seeking employment and securing appointment with the 2[nd] respondent Bank. So also, on a perusal of Ext.P5 order passed by the 1[st] respondent, it can be seen that the total staff strength of Senior Clerks/Junior Clerks is not violated by the 2[nd] respondent Bank at any point of time. Therefore, it cannot be said that the staff pattern prescribed with respect to Senior and Junior Clerks is violated by the 2[nd] respondent Bank. 9. There is no case for any of the respondents that total staff strength provided to the Clerical category is violated by the Society. That apart, petitioner was one among the applicants who was selected as per a procedure established under law. If at all any approval was to be secured for the appointment of the petitioner in the post of Junior Clerk under whatever circumstances, a duty was cast upon the Society. This aspect was contended by the petitioner before the 1[st] respondent, but however, the same is not seen answered in Ext.P5 order. In that view of the matter, under ordinary circumstances, the said order would be set aside and directed **W.P.(C) No.10054 of 2009** 7 consideration. But since the writ petition is of the year 2009, I am of the considered opinion that the same will be a gross injustice. Moreover, the fact is discernible from the pleadings and documents on record. Moreover, pursuant to the appointment, and the interim order passed by this Court, in the earlier round of litigation, petitioner continued in service. Therefore, during the period petitioner worked, he is entitled to get salary, especially due to the fact that the appointment was made through a procedure established under law and the petitioner is innocent in the matter. There is also no case that, petitioner has contributed in any manner, otherwise than under law, to secure the appointment. No kind of _malafides_ or illegal method employed by the petitioner in that matter is alleged. 10. Having regard to the said facts and circumstances, I am satisfied that the petitioner is entitled to succeed in this writ petition, and therefore the proceedings initiated by the 1[st] respondent pursuant to Ext.P5 and the consequential action pursuant to Ext.P7 stand quashed. 8 **W.P.(C) No.10054 of 2009** The writ petition is allowed accordingly. Sd/- **SHAJI P. CHALY JUDGE** //true copy// P.S. to Judge St/01.06.2016