Writ Appeal No. 315 of 2020 (Arising out of W.P.(C).No.33393/2016)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943** ## **WA.No.315 OF 2020** **AGAINST THE JUDGMENT IN WP(C) 33393/2016(Y) DATED 24.06.2019 OF HIGH COURT OF KERALA** ## **APPELLANT/S:** **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, CO-OPERATION DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2 THE REGISTRAR OF CO-OPERATIVE SOCIETIES, OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM-695 001.** **BY GOVERNMENT PLEADER** ## **RESPONDENT/S:** **1 SUJITH M.S. AGED 25 YEARS,M.S.BHAVAN,PONVILA,AYIRA P.O.,THIRUVANANTHAPURAM,PIN-695 502,NOW WORKING AS GUES T ROOM KEEPER,KERALA STATE CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK,THIRUVANANTHAPURAM. 2 AJIN F.DAS, KUTHVELI HOUSE,ARAYOOR P.O.,PIN-695 122. NOW WORKING AS GUEST ROOM KEEPER,KERALA STATE COOPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK,THIRUVANANTHAPURAM.** **3 SUJITH P.S., PERINGAYIL HOUSE,CHEROOR P.O., THRISSUR-680 008.NOW WORKING AS GUEST ROOM KEEPER,KERALA STATE CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK,THIRUVANANTHAPURAM.** **4 RIJU H.S, REJI NIVAS,CHENKAL P.O.,PIN-695 132. WORKING AS GUEST** **WA.No.315 OF 2020** **2** **ROOM KEEPER,KERALA STATE CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK,THIRUVANANTHAPURAM.** - **5 MANOJ KUMAR S.L., ANIZHAM,KOOTTAMVILA ROAD,** **VATTIYOORKAVU P.O.,THIRUVANANTHAPURAM-13,NOW WORKING AS GUEST ROOM KEEPER,KERALA STATE COOPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK,THIRUVANANTHAPURAM.** - **6 D.SURESH KUMAR,** **ANANTHASREE,I.P.11/1128,NEMOM P.O., THIRUVANANTHAPURAM-695 020,NOW WORKING AS GUEST ROOM KEEPER,KERALA STATE CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK,THIRUVANANTHAPURAM.** **7 CINIMOLE P.S., PEECHOLY HOUSE, PUDURKKARA P.O., AYYANTHOLE, THRISSUR-680 003. NOW WORKING AS GUEST ROOM KEEPER, KERALA STATE CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK, THIRUVANANTHAPURAM.** - **8 KERALA STATE CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK,** **REPRESENTED BY ITS GENERAL MANAGER, LAND BANK BUILDING, STATUE, THIRUVANANTHAPURAM-695 001.** **R1 BY ADV. SRI.N.ANAND R2-7 BY ADV. SRI.M.RAJENDRAN NAIR** **R2-7 BY ADV. SMT.M.SANTHY R8 BY ADV. SMT.NISHA GEORGE** ## **SRI.K.S.MOHAMMED HASHIM, SPL.GP(CO-OP)** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 09-03-2021, THE COURT ON 24-03-2021 DELIVERED THE FOLLOWING:** **WA.No.315 OF 2020** **3** # **ALEXANDER THOMAS & K.BABU, JJ. ========================= Writ Appeal No. 315 of 2020** _**(Arising out of the judgment dated 24.06.2019 in W.P.(C).No.33393/2016)**_ **========================= Dated this the 24[th] day of March, 2021** ## **JUDGMENT** ## ALEXANDER THOMAS, J. State of Kerala and Registrar of Co-operative Societies, arrayed as respondent Nos. 1 and 2 in W.P.(C).No.33393/2016, filed by respondents 1 to 7 herein, have filed the instant writ appeal under Section 5(i) of the Kerala High Court Rules, challenging the impugned judgment dated 24.06.2019 rendered by learned Single Judge in the said writ petition. 2. Heard Sri. Mohammed Hashim, learned Special Government Pleader for Co-operative societies, appearing for State of Kerala and Registrar of Co-operative Societies, Sri.N.Anand, learned Advocate appearing for R1 herein (1[st] petitioner), Sri.M.Rajendran Nair, appearing for respondents 2 to 7 and Smt. Nisha George, learned Standing Counsel for the Kerala State Co-operative Agricultural and Rural Development Bank, appearing for R-8. The respondents 1 to 7 **WA.No.315 OF 2020** **4** herein have filed the instant W.P.(C).No.33393/2016 with the following prayers. _“i) Issue a writ of mandamus or such other writ order or direction, directing the respondents to publish Ext.P8 in the official Gazette._ _ii) Declare that the action of the 3[rd] respondent in regulating the petitioners in service as Guest Room Keepers, as per Ext.P3, is in accordance with law._ _iii) Grant such other further reliefs as may be prayed for and which this Hon'ble Court deems fit in the circumstances to grant._ “ 3. The case of the writ petitioners is to the effect that they were appointed on a temporary basis as Guest Room Keepers in the service of the respondent Kerala State Co-operative Agricultural and Rural Development Bank in the year 2014-15 and that they have been continuing in the post for so many years and that they have not been regularised. They have approached the respondent Co-operative Society seeking for regularisation and the Society have considered it for adopting a resolution for the regularisation and forwarded the **WA.No.315 OF 2020** **5** same to the competent authority, which has been approved through Ext.P7 order dated 25.02.2016, issued by the State Government, wherein, the respondent Co-operative Society was directed to take all steps for regularisation. Further case is that, subsequently the respondent Co-operative Society framed necessary notification for being published in the official gazette and forwarded the same to the Government through Ext.P8 for finalization of the matter in Ext.P7, but the Government has not taken any action thereon, on account of an ensuing General Elections and consequential Model Code of Conduct having come into force then. The plea of the petitioners is that, now there is no legal bar to consider the plea of the petitioners for regularisation in terms of Exts.P7 and P8 and that a mandamus may be issued to the respondent State Government to publish Ext.P8 notification in the official gazette so as to secure the benefit of regularisation of service to the writ petitioners. 4. The respondent Co-operative Society was then administered by a Part Time Administrator and their stand then was that steps are being taken for electing the new Management Committee and the date of election is 26.06.2019, and consequently, the new Managing Committee may assume office soon thereafter. The stand of the **WA.No.315 OF 2020** ## **6** learned Senior Government Pleader, who appeared on behalf of the official respondents was on the basis of the pleadings in the counter affidavit, which was to the effect that the subsequent promotion of the petitioners to the post of 'peons' is irregular and therefore, no further action can be taken in pursuance to Ext.P8. After hearing all the parties, learned Single Judge has directed the 1[st] respondent, State of Kerala, to take immediate steps to ensure publication of Ext.P8 notification forwarded to them by the erstwhile Managing Committee of the Co-operative Society, so that the petitioners can be regularised in service and it has been made clear that the subsequent promotion of the petitioners will be made only as per the applicable Rules and Regulations and adhering to the lawful directions of the competent authority. It is these directions issued by the learned Single Judge that is under challenge in the present Writ Appeal filed by the State of Kerala and the Co-operative Society. 5. One of the main contentions urged before us by learned Special Government Pleader is to the effect that Ext.P7 is illegal and improper in as much as the regularisation bye-passing the regular selection procedure, is illegal and ultravires. The 2[nd] contention is to the effect that the very basis of the directions issued by learned Single **WA.No.315 OF 2020** **7** Judge as per the impugned judgment is Ext.P7 proceedings dated 25.02.2016, said to have been issued by the Secretary to the Government in the Co-operative department, addressed to the Registrar of Co-operative Societies and that later the Government has issued Annexure A-III proceedings dated 14.01.2020, whereby, Ext.P7 proceedings dated 25.02.2016 has been withdrawn by the Government. Hence, it is pointed out that the very basis of the directions issued by learned Single Judge which is Ext.P7, stands now withdrawn by Annexure A-III proceedings dated 14.01.2020, and therefore, the very claim of the petitioners is impermissible under law. 6. The Special Government Pleader would also place reliance on the decision of Apex Court in _**Divisional Manager, Aravali Golf Club and another vs. Chander Hass and another reported in 2008 (1) SCC 683** ,_ wherein it is held that, ordinarily the power in the matter of creation and sanction of posts is the exclusive prerogative of the executive and not that of the Courts and hence, the directions issued by learned Single Judge to take further steps in Ext.P8 for creation of posts for regularisation of service of the writ petitioners and that the said directions of the learned Single Judge in the impugned judgment is illegal and improper for that reason as well. **WA.No.315 OF 2020** **8** Further reliance is also placed on the dictum laid down by the Apex Court in _**State of Karnatakan and others vs. Umadevi and others 2006 (4) SCC 1** ._ The appellants would also place reliance on the recent judgment of the Division Bench of this Court rendered in W.A.No.2084/2018 dated 22.01.2021, wherein, it has been held by the Division Bench of this Court that regularisation of employees contrary to the legal principles laid down by the Apex Court in _**Umadevi (supra)**_ is illegal and against the law declared by the Apex Court, and that any order issued by the authorities concerned contrary to the law declared by the Apex Court in the judgment, is illegal. Accordingly, this Court has, in the judgment in W.A.No.2048/2018, has directed the 3[rd] respondent therein, the Chief Secretary to Government of Kerala, that the above said directions shall be duly taken note of, and that it shall be ensured that no regularisation shall be permitted contrary to the directions issued by the Apex Court in _**Umadevi (supra)** ._ 7. _Per contra_ , Sri. M.Rajendran Nair, learned Advocate and Sri. N. Anand, learned Advocate appearing for writ petitioners/R1 to R7 herein would strongly urge that the action of the State Government in having issued Annexure A-III dated 14.01.2020, which is after the **WA.No.315 OF 2020** **9** rendering of the judgment by learned Single Judge on 24.06.2019, is absolutely without any _bonafides_ and has been issued only for ulterior and extraneous circumstances only to deny the lawful and legitimate rights and interests of the writ petitioners as disclosed in Ext.P7. Steps in pursuant to Ext.P7 was also finalized and even the draft of the publication of Ext.P8 was also prepared and all what was required was only the formal publication of Ext.P8 in the gazette. At that stage, after courting an adverse judgment in this writ petition and without even filing a review or a writ appeal at that stage, the State Government has unilaterally issued Annexure A-III proceedings dated 14.01.2020, mainly because the writ petitioner by then instituted the contempt of court proceedings before the learned Single Judge for enforcement of the directions in the impugned judgment herein. Further that, this Court has to seriously consider whether after having issued Ext.P7, Government has any jurisdiction to issue Annexure A- III proceedings, which in substance and essence, would amount to reviewing and withdrawing the decision at Ext.P7, which is impermissible since Ext.P7 is an executive order and since the Rules does not confer any excplicit or implied powers to review or recall an order like Ext.P7. Special Government would contend that, if that be **WA.No.315 OF 2020** **10** so, very legality and correctness of Ext.P7 proceedings should also be considered by this Court, especially in the light of the legal principles laid down by the Apex Court in _**Umadevi (supra)**_ as well as the recent judgment of the Division Bench of this Court rendered in W.A.No.2084/2018 dated 22.01.2021 8. After hearing both sides, we are of the view that, one among the prime contentions urged by the appellants is on the basis of Annexure A-III proceedings dated 14.01.2020, whereby, Ext.P7 which is the very basis of the impugned judgment, has been withdrawn by the State Government. Ordinarily, we would have relegated the State Government to seek review before the learned Single Judge. However, we note that Annexure A-III has been issued on 14.01.2020, which is after the rendering of judgment by learned Single Judge on 25.02.2016. Therefore, going by the conventional grounds of review, it cannot be held that subsequent proceedings under Annexure A-III would amount to discovery of factual aspect, which could not be brought into notice of this Court earlier despite due diligence of the parties concerned etc, cannot be applicable to this case. This is so as that aspect of ground of review would postulate that such factual aspect would have been in existence at the time when the impugned **WA.No.315 OF 2020** **11** judgment was rendered by the Court concerned. In the instant case, Annexure A-III was issued after the rendering of the impugned judgment by the learned Single Judge. But, the fact of the matter is that, the very basis of the directions issued by the learned Single Judge in the impugned judgment is Ext.P7, and the said Ext.P7 now stands withdrawn by Annexure A-III. Further, the contentions regarding the very legality and correctness of Ext.P7 based on the legal principles laid down by the Apex Court in _**Umadevi (supra)**_ has not been adverted before the learned Single Judge, because those aspects has not been urged by both parties at the time of rendering the impugned judgment. In the light of these aspects, we are of the view that, it may be better in the interest of justice that the matter be reconsidered by learned Single Judge, instead of the appellate court now resolving these issues on merits. We say so as it is indisputable that these vital aspects have never been urged by both sides before the learned Single Judge and it is only just and fair that the parties urge their respective rival contentions and the matter is resolved by learned Single Judge so that both parties will get reasonable opportunity to urge their respective contentions and the aggrieved parties can challenge the same in the manner known to law. For these **WA.No.315 OF 2020** **12** reasons, we are of the view that it may not be right and proper for us to get into the merits of the rival contentions at this stage. However, we are of the firm view that the matter requires serious reconsideration and the writ proceedings would thus warrant a remit. For effectuating such a remit, it is ordered in the interest of justice, the impugned judgment dated 24.06.2019, rendered by the learned Single Judge of this Court in W.P.(C).No.33393/2016 will stand set aside. Consequently it is ordered that W.P.(C). No.33393/2016 will stand restored to the file for consideration and decision afresh by the learned Single Judge. 9. Both sides may submit their additional pleadings in the matter without any further delay. The appellants State Government and the Registrar of Co-operative Societies, the respondents 1 and 2 in the writ petition will ensure that their additional pleadings if any are filed in the above writ petition without any further delay, and for that purpose, they nee not even wait for the formal issue of certified copy of this judgment. The writ petitioners as well as the 3[rd] respondent in the writ petition may file their additional pleadings if so required, without any further delay. Registry will list the writ petition for hearing preferably before a Court exclusively or mainly dealing with **WA.No.315 OF 2020** **13** hearing matters of W.P.(C) after the reopening of the Court after summer vacation, i.e. on 31.05.2021. We request the learned Single Judge to seriously consider the early final disposal of the W.P.(C) without much delay and within a time limit that is considered reasonable and appropriate. We make it clear that we have not entered in to the merits of the rival contentions in this case and the observations and findings made by us are only to decide as to whether the matter to be remitted and none of the observations and findings made herein above shall be even remotely construed as an expression or opinion on our part regarding the merits and controversy of this case, which we would like to say, fall within the exclusive power and domain of the learned Single Judge while disposing the writ petition. The writ petition is disposed of accordingly. **Sd/-** ## **ALEXANDER THOMAS** **JUDGE** **Sd/-** **K. BABU JUDGE** **uu** **25.03.2021** **WA.No.315 OF 2020** **14** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE I** **A TRUE COPY OF GO(MS) NO.24/2018/CO-OP. DATED 02/07/2018 BY WHICH RECRUITMENT RULES ARE APPROVED WITH EFFECT FROM 02/07/2018.** **ANNEXURE II** **A TRUE COPY OF THE GO(MS) NO.41/2018/CO-OP. DATED 04/12/2018 ALONG WITH THE RECRUITMENT RULES.** **ANNEXURE III A TRUE COPY OF THE LETTER DATED 14/01/2020 ISSUED BY THE FIRST APPELLANT TO THE 2ND APPELLANT.** **ANNEXURE IV A TRUE COPY OF THE LETTER DATED 06/06/2016 ISSUED BY THE 1ST RESPONDENT.**