Sobhana Kumari A. vs Aryankavu Service Co-Operative Bank Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN TUESDAY, THE 7[TH] DAY OF FEBRUARY 2023 / 18TH MAGHA, 1944** ## **WP(C) NO. 2575 OF 2023** ## **PETITIONERS:** 1 SOBHANA KUMARI A. AGED 57 YEARS, W/O.V.S.SOMARAJAN, NEETHI SALESMAN, ARYANKAVU SERVICE CO-OPERATIVE BANK LTD. NO.2965, RESIDING AT VALAVIL VEEDU, ARYANKAVU P.O, KOLLAM DISTRICT, PIN - 691309 2 SHANTI THOMAS AGED 46 YEARS, W/O.MATHEW G., NEETHI SALESMAN, ARYANKAVU SERVICE CO-OPERATIVE BANK LTD. NO.2965, RESIDING AT CHEROLICKAL, EDAPPALAYAM P.O, KOLLAM DISTRICT-691 309., PIN - 691309 BY ADVS. ARJUN RAGHAVAN T.R.HARIKUMAR ## **RESPONDENTS:** 1 ARYANKAVU SERVICE CO-OPERATIVE BANK LTD. NO.2965, REPRESENTED BY ITS SECRETARY, ARYANKAVU P.O, KOLLAM DISTRICT-691 309., PIN - 691309 2 THE BOARD OF DIRECTORS OF THE ARYANKAVU SERVICE COOPERATIVE BANK LTD. NO.2965, REPRESENTED BY ITS PRESIDENT, ARYANKAVU P.O, KOLLAM DISTRICT-691 309 3 THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), PUNALUR, KOLLAM DISTRICT-PIN-691 305., PIN - 691305 4 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOLLAM, OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), CIVIL STATION, KOLLAM-PIN-691 013., PIN – 691013 2 **WP(C) NO. 2575 OF 2023** 5 THE KERALA STATE CO-OPERATIVE EMPLOYEES' PENSION BOARD, REPRESENTED BY ITS SECRETARY, KALA NIVAS, CHINMAYA LANE, P.B NO.85, KUNNUMPURAM, THIRUVANANTHAPURAM-PIN695 001., PIN - 695001 BY ADVS. C.P.SABARI M.SASINDRAN ## **OTHER PRESENT:** SHRI. M. SASINDRAN, SC, KSCE PENSION BOARD., SMT. SONY. K.B. GP. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 3 **WP(C) NO. 2575 OF 2023** ## **Sathish Ninan, J. ============================== W.P.(C).No.2575 of 2023 ========================== Dated this the 7[th] day of February, 2023** ## **JUDGMENT** At the time of filing the writ petition, the petitioners were working as 'Salesman' in the Neethi stores run by the 1[st] respondent Society. 1[st] petitioner subsequently retired from service on 31/01/2023. 1[st] petitioner was employed on commission basis since the year 1997 and 2[nd] petitioner was employed on commission basis since 21/04/2012. 2. As per Ext.P5 Government Order dated 27/11/2010, the post of 'Salesman' was sanctioned and was included in Appendix III to the Co-operative Societies Rules ('the Rules' for short). Such sanction and inclusion in Appendix III was acknowledged by the Registrar, as is evident from Ext.P6 circular dated 28/06/2011 and Ext.P7 communication dated 04/02/2014. 4 ## **WP(C) NO. 2575 OF 2023** 3. Pursuant to Ext.P5 Government Order, the Committee adopted resolutions regularizing the appointment of the petitioners. 1[st] petitioner was regularized with effect from 31/05/2011 and 2[nd] petitioner with effect from 21/04/2012. 4. Noticing that the petitioners have crossed the upper age limit as fixed under Rule 183 of the Rules, the Society sought for exemption from the upper age limit by moving the Government in terms of Rule 181 of the Rules. 5. On such request, the Government passed Ext.P12 order granting exemption from the provisions of sub rule (1) of Rule 183 of the Rules. It was indicated in Ext.P12 that, the exemption is being granted to enable regularization of the petitioners in service. When attempts were made to remit the pension contribution, the Pension Board, as per Ext.P17, required the petitioners to make available orders approving the appointment of the petitioners. Thereupon, the Society approached the Joint Registrar seeking issuance of an order in the said regard. To the said request, the Joint Registrar issued Ext.P13 communication to the effect that, the Rules does not permit regularization in service from a prior date. 5 ## **WP(C) NO. 2575 OF 2023** The said order is under challenge in this writ petition. 6. Heard Sri.Arjun Raghavan, the learned counsel appearing for the petitioner, Sri.C.P.Sabari, the learned Standing Counsel appearing for respondents 1 and 2 and also Smt.K.B.Sony, the learned Government Pleader. 7. In _**Elampal Service Cooperative Bank Ltd. v. Government of Kerala**_ [2000 (3) KLT 389], this Court has declared the law that, for appointment of staff in accordance with the staff pattern fixed in Appendix III, no approval of the Registrar is necessary. Paragraph 3 of the judgment of this Court held thus: **“3. A reading of the above Rule and Appendix.3 makes it clear that staff pattern is fixed by the Rule itself. Therefore, normally society will be free to appoint staff as per the staff pattern fixed in Appendix.3. 1[st] proviso allows the society from not adopting the staff pattern due to financial position and allows the members of the committee to work in a honorary capacity. That is for the society to decide. Second proviso only makes it obligatory for the society to get prior approval from the Registrar only if there is a 'need of any change in the pattern of staff including the scale of pay under special circumstances.' The above wordings make it clear that for appointing staff as per the staff pattern fixed in Appendix.3 and the rules according to the type and class to which the society belongs, no prior approval is necessary. Only if a change in the pattern is necessary, approval is required. In this connection we refer to the decision reported in Sherthallai Urban Cooperative Bank v. State of Kerala (1984 KLT 971). A similar view was taken in O.P.No.8097/90 decided on 28.2.91 and O.P.No.10078/85 decided on 27.3.1987.”** 6 ## **WP(C) NO. 2575 OF 2023** 8. As noticed supra, as per Ext.P5, Government had sanctioned the post of 'Salesman' and included the same in Appendix III. In the light thereof, the appointment being to a sanctioned post, fresh approval from the Registrar was not necessary. Noticeably, the orders of regularization of the petitioners are subsequent to Ext.P5 order, viz.31/05/2011 and 21/04/2012. Ext.P12 order of exemption was necessary only because both the petitioners had crossed the upper age limit fixed. 9. The issue involved herein is not with regard to regularization with effect from a prior date. The appointments are evidently towards sanctioned posts. The society had adopted resolutions regularizing their services with effect from the dates subsequent to Ext.P5 Government Order. 10. In the light of the above, Ext.P13 order cannot be sustained. The Joint Registrar is to pass fresh orders, after affording an opportunity of hearing to the petitioners. In the result, Ext.P13 order is quashed. The 4[th] respondent – Joint Registrar shall pass fresh orders in the light of the facts noticed supra, after affording an 7 **WP(C) NO. 2575 OF 2023** opportunity of hearing to the petitioners. Let orders be passed within a period of six weeks from the date of receipt of a copy of this judgment. Sd/- **Sathish Ninan, Judge** ## rsr 8 **WP(C) NO. 2575 OF 2023** ## **APPENDIX OF WP(C) 2575/2023** PETITIONER EXHIBITS |Exhibit-P1|A TRUE COPY OF THE DECISION NO.173 DATED 31-| |---|---| ||05-2011 OF THE 2ND RESPONDENT| |Exhibit-P2|A TRUE COPY OF THE DECISION NO.2687 DATED 21-| ||04-2012 OF THE 2ND RESPONDENT| |Exhibit-P3|A TRUE COPY OF DECISION NUMBERED AS 939 DATED| ||30-09-2015 OF THE 2ND RESPONDENT| |Exhibit-P4|A TRUE COPY OF THE ORDER BEARING NUMBER C.S| ||5658/10 DATED 12-07-2011 ISSUED BY THE 4TH| ||RESPONDENT| |Exhibit-P5|A TRUE COPY OF THE GOVERNMENT ORDER,| ||G.O(MS)NO.207/10/CO-OP DATED 27-11-2010| |Exhibit-P6|A TRUE COPY OF THE CIRCULAR NO.44/11 DATED| ||28-06-2011 ISSUED BY THE REGISTRAR OF CO-| ||OPERATIVE SOCIETIES| |Exhibit-P7|A TRUE COPY OF THE COMMUNICATION| ||NO.C.S(3)918/2012(1) DATED 04-02-2014 ISSUED| ||BY THE REGISTRAR OF CO-OPERATIVE SOCIETIES| |Exhibit-P8|A TRUE COPY OF THE COVERING LETTER DATED 18-| ||08-2017 ALONG WITH RESOLUTION DATED 28-07-| ||2017| |Exhibit-P9|A TRUE COPY OF THE COMMUNICATION| ||NO.C.R.P(2)4186/2018 DATED 29-05-2018 ISSUED| ||FROM THE OFFICE OF THE 4TH RESPONDENT| |Exhibit-P10|A TRUE COPY OF THE COMMUNICATION DATED 18-07-| ||2018 SUBMITTED BY THE 1ST RESPONDENT BEFORE| ||THE 3RD RESPONDENT| |Exhibit-P11|A TRUE COPY OF THE ORDER NO.C.R.P.(2)9768/| ||2019/K.DIS DATED 18-05-2020 ISSUED BY THE 4TH| ||RESPONDENT| 9 **WP(C) NO. 2575 OF 2023** - Exhibit-P12 A TRUE COPY OF THE GOVERNMENT ORDER BEARING NUMBER G.O(P)NO.179/2021/CO-OP DATED 26-112021 - Exhibit-P13 A TRUE COPY OF THE ORDER NO.JRGKLM/2918/2022CRP/LDIS DATED 28-09-2022 ISSUED BY THE 4TH RESPONDENT - Exhibit-P14 A TRUE COPY OF THE DECISION NO.113 DATED 2609-2022 TAKEN BY THE 2ND RESPONDENT - Exhibit-P15 A TRUE COPY OF THE ORDER NO.C.R.P(2)9320/12 DATED 07-05-2014 ISSUED BY THE 4TH RESPONDENT WITH RESPECT TO SALESMAN AT NEETHI STORES OF MATHRA SERVICE CO-OPERATIVE BANK - Exhibit-P16 A TRUE COPY OF THE ORDER NO.C.R.P(2)6859/16 DATED 22-10-2016 ISSUED BY THE 4TH RESPONDENT WITH RESPECT TO SALESMAN AT NEETHI STORES OF EDAMON SERVICE CO-OPERATIVE BANK Exhibit-P17 A TRUE COPY OF THE COMMUNICATION DATED NIL ISSUED BY THE 5TH RESPONDENT TO THE 1ST RESPONDENT BANK Exhibit-P18 A TRUE COPY OF THE DECISION NUMBERED AS 987 DATED 27-09-2019 Exhibit-P19 A TRUE COPY OF THE RELEVANT PAGES OF THE G.O(P)NO.118/2015/ CO-OP DATED 17-09-2015