Vasanthakumari P.C. v State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **WEDNESDAY, THE 10TH DAY OF APRIL 2013/20TH CHAITHRA 1935** ## **WP(C).No. 2773 of 2010 (V)** ## **------------------------------------** ## **PETITIONER(S):** **-------------------------VASANTHAKUMARI.P.C., SENIOR CLERK, CHERTHALA TALUK AIDED SECONDARY SCHOOL EMPLOYEES' CO-OPERATIVE SOCIETY LIMITED, NO.A.276 CHERTHALA-688 524.** **BY ADVS.SRI.S.P.ARAVINDAKSHAN PILLAY** **SMT.N.SANTHA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SRI.JOVY GEORGE VARGHESE SRI.RAMESH. C.R. SRI.K.V.VIMAL** ## **RESPONDENT(S):** - **----------------------------** **1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF CO-OPERATION SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.** **2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM.** **3. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), ALAPPUZHA.** **4. KERALA STATE CO-OPERATIVE EMPLOYEES' PENSION BOARD, P.B.NO.85, KALA NIVAS TC.NO.27/156, 157, CHINMAYA LANE KUNNUMPURAM, NEAR AYURVEDA COLLEGE, THIRUVANANTHAPURAM PIN-695 001, REPRESENTED BY ITS SECRETARY.** **5. KERALA CO-OPERATIVE DEVELOPMENT AND WELFARE FUND BOARD, PB.NO.112, OVER BRIDGE JN. THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY.** **6. CHERTHALA TALUK AIDED SECONDARY SCHOOL EMPLOYEES' CO-OPERATIVE SOCIETY LIMITED, NO.A276 CHERTHALA-688524, REPRESENTED BY ITS SECRETARY.** **DCS** **WP(C).No. 2773 of 2010 (V)** **R1 TO R3 BY GOVERNMENT PLEADER SRI. NOUSHAD THOTTATHIL R4 BY ADVS. SRI.P.V.MOHANAN, SC, K.ST.CO.OP.EMP.PENSION SRI.K.R.SUNIL, SC,CO-OP. EMP. PENSION BOARD R6 BY ADVS. SRI.VINOD KUMAR.C** **SRI.JOHN VARGHESE (VEYKKAN) SRI.K.K.DHEERENDRAKRISHNAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10.04.2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **DCS** ## **WP(C).No. 2773 of 2010 (V)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **EXHIBIT P1: COPY OF THE LETTER NO. 266/02-03 DATED 08.08.2002 EXHIBIT P2: COPY OF THE LETTER NO. EM/ADN/2066/ALP DATED 17.09.2002 EXHIBIT P3: COPY OF THE LETTER DATED 19.12.2007** **EXHIBIT P4: COPY OF THE LETTER DATED 17.01.2008** **EXHIBIT P5: COPY OF THE LETTER NO. CRB. 5734/2006 DATED 30.09.2008** **EXHIBIT P6: COPY OF THE REPRESENTATION DATED 15.05.2009** **EXHIBIT P7: COPY OF LETTER NO. CRB 5734/06/L.DIS DATED 28.11.2009** **EXHIBIT P8: COPY OF THE LETTER NO. CRB 7155/09/L.DIS DATED 23.12.2009 EXHIBIT P9: COPY OF GOVERNMENT LETTER NO. 12256/C1/2009/CO.OP DATED 14.12.2009** **EXHIBIT P10: COPY OF THE ORDER NO. 1372/03/K.DIS (1) DATED 24.03.2003** **RESPONDENT'S EXHIBITS:- NIL** **/TRUE COPY/** **P.A. TO JUDGE** **DCS** A.M.SHAFFIQUE, J. ---------------------------------------------------W.P.(C) No. 2773 of 2010 - V --------------------------------------------------Dated this the 10[th] April, 2013 **J U D G M E N T** The petitioner challenges Ext.P9 order passed by the Government refusing to grant exemption to the petitioner for her appointment as Senior Clerk in the 6[th] respondent Society in terms of Rule 185(1) of the Kerala Co-operative Societies Rules. 2. The facts as disclosed would indicate that the petitioner was appointed as Senior Clerk in the Society on 25.5.1998 by way of direct recruitment after complying with the prescribed procedure. 3. When the petitioner submitted an application for enrollment in the Pension Scheme, the same was not entertained on the ground that no direct recruitment was possible to be made to the post of 2 W.P.(C) No. 2773 of 2010 - V Senior Clerk. Though application was submitted by the Society for regularizing the appointment of the petitioner, Government took a stand that the relaxation cannot be granted since the Society was a class VI Society and there was no sanctioned post of Senior Clerk. Hence this writ petition is filed challenging Ext.P9 and also seeking a direction to treat the appointment of the petitioner as Senior Clerk in the Society as legal and to include her in the Kerala Co-operative Societies Employees' Self Financing Pension Scheme, 1994 and in the Kerala Co-operative Welfare and Development Scheme, 2000 and for other consequential reliefs. 4. Counter affidavit is filed by the 3[rd] respondent inter alia contending that the Committee of the 6[th] respondent decided to invite application for the post of Junior Clerk and Senior Clerk. The same was 3 W.P.(C) No. 2773 of 2010 - V notified on 2.4.1998 and after conducting the written test and interview, the rank list was prepared and the petitioner was appointed as Senior Clerk and one Smt.Molykutty was appointed as Junior Clerk. It is stated that Smt.Molykutty subsequently resigned from the said post. 5. Further it is stated that the 6[th] respondent Society was classified as a Class VI Society and for Class VI Society, the strength of the employees as provided under Rule 182 is a Secretary and a Junior Clerk alone. There was no sanctioned post of Senior Clerk. Therefore, the very appointment of the petitioner was bad in law and therefore the question of relaxation or granting exemption does not arise for consideration. It is also stated that the Society did not achieve the classification as Class V Society. Further it is stated that on the date of appointment of the W.P.(C) No. 2773 of 2010 - V 4 petitioner, there was already a Secretary and Attender in the service of the 6[th] respondent Society and that the post of Senior Clerk is not one of direct recruitment as it is a promotion post for those in the service as Junior Clerk. Therefore according to the 3[rd] respondent the very appointment itself is bad in law and therefore the petitioner is not entitled to seek any benefit though she was working in that capacity for quite a long time. 6. Heard the learned counsel for the petitioner and learned Government Pleader. 7. Learned counsel for the petitioner relied upon the judgment of this Court in **Rajalakshmi** v. **State of Kerala** (1992 (1) KLT 458) in order to contend for the position that if the promotion is challenged after a substantially long period of 10 years, the said person cannot be reverted back. It is therefore W.P.(C) No. 2773 of 2010 - V 5 contended that if a mistake is committed by the Society by inviting application for direct recruitment to the post of Senior Clerk despite the fact that the Rule does not provide for such an employment, as far as the petitioner is concerned, she happened to be appointed to the said post and after a substantially long period, it is not open for the Government to take a different stand and appropriate exemption ought to have been extended by the Government to the petitioner by relaxing the Rules. 8. But it is relevant to note that as contended by the Government Pleader the Society was a Class VI Society and there was not even a post of Senior Clerk. Therefore, the appointment itself is bad and not in an established vacancy. Therefore it is not proper for this Court to direct the Government to relax the conditions to appoint a person in a post which was not W.P.(C) No. 2773 of 2010 - V 6 at all available at the relevant time. 9. The fact remains that as stated in the counter affidavit of the 3[rd] respondent, Smt.Molykutty who was appointed as Junior Clerk resigned from the said post and in that view of the matter the petitioner can be treated as being appointed to the said post of Junior Clerk as on the said date and then she will be able to get all the service benefits in that regard from that particular date i.e. 5.2.2001, the date on which Smt.Molykutty resigned. On that basis if the petitioner is entitled to be promoted to the post of Senior Clerk, it is open for the Society to pass appropriate orders in that regard. 10. Since the petitioner had already worked in the said Society and despite the fact that there was no sanctioned post, it is made clear that no recovery shall be effected from the salary she had already W.P.(C) No. 2773 of 2010 - V 7 received. In the light of the above observation, this writ petition is disposed of with the following directions: (i) The petitioner shall be allowed to continue in the said post, taking into account her appointment as Lower Division Clerk with effect from 5.2.2001 and giving her the due promotion. (ii) No recovery shall be effected from the petitioner in respect of the salary already paid to her, during the period she had worked. Sd/- **A.M.SHAFFIQUE, JUDGE.** rka /true copy/