IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 8TH APRIL 2009 / 18TH CHAITHRA 1931 WA.No. 1269 of 2006(B) ---------------------- AGAINST THE JUDGEMENT IN WPC.13794/2006 Dated 04/07/2006 .................... APPELLANT(S): 3RD RESPONDENT: ----------------------------- K.G. THOMAS, CLERK, KUMALL EVENING BRANCH, IDUKKI DISTRICT CO-OPERATIVE BANK, KUMALI P.O., IDUKKI. BY ADV. SRI.P.C.SASIDHARAN RESPONDENT(S)/PETITIONER & RESPONDENTS 1 & 2: --------------- 1. IDUKKI DISTRICT CO-OPERATIVE BANK EMPLOYEES CO-OPERATIVE SOCIETY LIMITED NO.E.323, IDUKKI COLONY P.O., IDUKKI DISTRICT, REPRESENTED BY ITS SECRETARY. 2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE JOINT REGISTRAR (GENERAL) CO-OPERATIVE SOCIETIES, IDUKKI, OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, PAINAVU P.O., IDUKKI. ADV. SRI.JOICE GEORGE FOR R1 SPL.GOVT. PLEADER SMT.A.G.ANEETHA FOR R2 & R3 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 08/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------- W.A. NO. 1269 OF 2006 ----------------------------------------- Dated 8th April, 2009. JUDGMENT Balakrishnan Nair, J. The 3rd respondent in the Writ Petition is the appellant. The 1st respondent herein was the writ petitioner. 2. The brief facts of the case are the following: The 1st respondent is an employees' co-operative Society (hereinafter referred to as “the Society”), registered under the Kerala Co-operative Societies Act. The staff pattern of such societies is contained in Appendix III of the Kerala Co- operative Societies Rules. Societies of a particular type will be classified into Class III, Class II, Class I etc., based on certain parameters, prescribed in the Appendix. The Society was classified as Class II. Having regard to the growth of the business of the Society and other parameters, the 1st respondent felt that it is entitled to be classified as Class I. So, the Society passed a resolution on 23.5.2005, to move the 3rd respondent Joint Registrar for modifying its classification as Class I, in the place of Class II. The said WA 1269/2006 2 motion of the Society was approved by the Joint Registrar by Ext.P1 order dated 26.10.2005. As a result of that order, the Society was classified as belonging to Class I with effect from 1.4.2005. In view of the said change of classification, two posts of Peon were available in the Society. As per the earlier classification, there was only one post of Peon. The existing incumbent in that post died and therefore, two vacancies were available in the cadre of Peon in the Society. As usual, the filling up of that post generated various disputes and several rounds of litigation before this Court. The appellant herein was a member of the Society. He was also an employee of the Idukki District Co-operative Bank. He felt that the steps taken for appointment in the two posts of Peon were improper, irregular and illegal. Further, according to him, the selection procedure was vitiated by various irregularities, including favouritism. So, he moved, as mentioned earlier, various authorities. Once he approached this Court also, earlier and this Court by Ext.P10 judgment, directed consideration of his two representations, by the Joint Registrar. 3. Pursuant to Ext.P1 order of the Joint Registrar, the Society issued a notification on 10.7.2005 in Mangalam daily, inviting applications for two posts of Peon. Later, apparently, on being alerted about the irregularity in publishing the notification only in one newspaper, the notification was WA 1269/2006 3 published in Deepika and Madhyamam dailies on 4.11.2005. The written test was conducted on 24.12.2005. While so, the Joint Registrar issued Ext.P16 order, staying all further proceedings, including the interview of candidates, which was scheduled to be held on 26.5.2006. In the meantime, the Society was served with Ext.P14 order issued by the 2nd respondent Registrar of Co-operative Societies, pursuant to the direction of this Court in Ext.P10 judgment. By Ext.P14, the Society was directed to get specific sanction for filling up the vacancies available as per the revised classification. The Society challenged Exts.P14 and P16 orders by filing the Writ Petition. The Society contended that once Ext.P1 order is passed approving the change in the classification, it can fill up the vacancies available as per the relevant classification. There need not be any further permission for filling up the additional post. Since the steps taken for appointment were regular and in accordance with the relevant circulars of the Registrar, the Society contended that the intervention of the Joint Registrar in the selection proceedings by issuing Ext.P16 is ultra vires and unauthorised. 4. The appellant/3rd respondent filed a detailed counter affidavit, supporting the impugned proceedings and also raising allegations that the person named as Rank No.1 in Ext.P11 resolution is the son of an employee WA 1269/2006 4 of the District Co-operative Bank and the person named as Rank No.2 therein is the wife of a Managing Committee member of the Society. So, the selection process is vitiated by mala fides also. 5. The Society filed a reply affidavit, dealing with the averments in the counter affidavit and also denying the allegations against it. The Society submitted that the written test was conducted by an independent outsider and nobody has raised any complaint or allegation against the conduct of the test. The complaint Ext.R3(a) produced along with the counter affidavit of the appellant/3rd respondent was filed without any bona fides, it was contended. 6. The learned Single Judge, after hearing both sides, allowed the Writ Petition, quashing Exts.P14 and P16. It was found by the learned Judge that once the classification is approved by Ext.P1 by the Joint Registrar, the posts permissible as per the classification can be filled up without any further permission from the Joint Registrar. The learned Judge found that the selection was not vitiated by any of the grounds mentioned in the impugned orders or the counter affidavit of the appellant/3rd respondent. 7. After the disposal of the Writ Petition, the selection proceedings were completed. But, before appointment, this Court issued an order of interim stay on 17.7.2006 in this Writ Appeal, directing that appointment WA 1269/2006 5 shall be made only to one post of Peon. Pursuant to that order, one vacancy was filled up. 8. The learned counsel for the appellant Mr.P.C.Sasidharan submitted that the impugned orders Exts.P14 and P16 were validly issued and the learned Single Judge interfered with them without any sustainable grounds. The learned counsel pointed out that even before the issuance of Ext.P1, the first notification was issued on 10.7.2005. The same is a serious irregularity, vitiating the selection process. Further, the learned counsel submitted that even if the change of classification is approved, for filling up the additional posts so created, further sanction of the Registrar or the officer exercising the powers of the Registrar is necessary. The learned counsel also reiterated that the selection is vitiated by bias. The learned counsel for the Society fully supported the decision of the learned Single Judge. We also heard the learned Government Pleader, who supported the impugned orders. 9. We notice that whenever selection is made in a Co-operative Society, for appointment in the vacancies available in it, disputes after disputes are being raised. The allegations of mala fide will also be profusely pleaded. But, they are difficult to prove. Though the appellant pointed out the presence of near relatives in the list, the Society would assert that they found a place in the list, based on their merit only, which WA 1269/2006 6 was proved in a written test conducted by an independent person. In these proceedings, they being disputed questions of fact, we cannot decide the above point one way or the other. We also notice that this point was not the subject-matter of the impugned orders Exts.P14 and P16. 10. The next point to be considered is whether the selection is vitiated in any manner because of the issuance of the notification on 10.7.2005. We notice that subsequently, on 4.11.2005, fresh notifications were issued in two newspapers. Further, we notice that the change of staff pattern approved by Ext.P1 takes effect from 1.4.2005. Though Ext.P1 is dated 26.10.2005, it has retrospective effect. So, we find nothing wrong with the notification issued on 10.7.2005. Further, even if that notification is ignored, two notifications were issued subsequently, which will satisfy the requirement of the relevant circular of the Registrar regarding issuance of notification. 11. The next point to be considered is whether even after Ext.P1,a further sanction of the Joint Registrar is necessary for filling up the resultant additional vacancy in the cadre of Peon, created as a result of Ext.P1. The Rule itself provides the strength of staff in various categories, for particular class of societies. Once the Society is classified as belonging to a particular class, Appendix III of the Kerala Co-operative Societies Rules will say how WA 1269/2006 7 many posts are available. For filling up those posts, a further sanction from the Joint Registrar is unnecessary. We do not find anything in the Act, the Rules or the notifications issued thereunder, casting such an obligation on the Societies in this regard. So, the direction issued in Ext.P14 is plainly untenable and has been issued without jurisdiction. Since the Society is competent to fill up the two vacancies in the cadre of Peon, the interference made with the same by the Joint Registrar by issuing Ext.P16, on the ground that the Committee, which decided to call the candidates for interview, met without proper notice, is also without jurisdiction. This ground is only technical. Want of sufficient notice is a ground available only to the members of the Committee. So, we are of the view that the learned Single Judge has rightly interfered with Exts.P14 and P16. In the result, the Writ Appeal fails and it is dismissed. K.BALAKRISHNAN NAIR, JUDGE. M.L.JOSEPH FRANCIS, JUDGE. nm/