IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 27TH OCTOBER 2010 / 5TH KARTHIKA 1932 WP(C).No. 13077 of 2009(D) -------------------------- PETITIONER(S): --------------- 1. T.A.SULOCHANA, PEON, THE MUVATTUPUZHA URBAN CO-OPERATIVE BANK LTD.NO.556, H.O.KACHERITHAZHAM, MUVATTUPUZHA. 2. K.K.BHAVANI, PEON, THE MUVATTUPUZHA URBAN CO-OPERATIVE BANK LTD.NO.556, H.O.KACHERITHAZHAM, MUVATTUPUZHA. BY ADV. SRI.P.N.MOHANAN RESPONDENT(S): --------------- 1. KERALA STATE CO-OPERATIVE EMPLOYEES' PENSION BOARD, P.B.NO.85, KALA NIVAS, TC 27/156, 157, CHINMAYA LANE, KUNNUMPURAM, NEAR AYURVEDA COLLEGE, THIRUVANANTHAPURAM-1. 2. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, ERNAKULAM. 3. THE MUVATTUPUZHA URBAN CO-OPERATIVE BANK LTD.NO.556, REPRESENTED BY GENERAL MANAGER, H.O.KACHERITHAZHAM, MUVATTUPUZHA. (*)ADDL.R4 REGISTRAR OF CO-OPERATIVE SOCIETIES, OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES, BEHIND SECRETARIAT, THIRUVANANTHAPURAM-1. [(*)ADDL.R4 IMPLEADED AS PER ORDER DATED 14/12/2009 IN I.A.NO.15535/2009] ADV. SRI.PEEYUS A.KOTTAM FOR R3 SRI.P.V.MOHANAN,SC,K.ST.CO.OP.EMP.PENSI FOR R1 GOVERNMENT PLEADER, SHRI SANDESH RAJA FOR R 2 &4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/10/2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 13077 of 2009 A P P E N D I X PETITIONERS' EXTS: EXT.P1 TRUE COPY OF ORDER DATED 05/01/2000 EXT.P2 TRUE COPY OF SUB RULES APPROVED BY THE THIRD RESPODNENT DATED 05/02/2001 EXT.P3 TRUE COPY OF ORDER DATED 12/08/2008 EXT.P4 TRUE COPY OF THE COMMUNICATION DATED 09/06/2008 OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES. EXT.P5 TRUE COPY OF THE LETTER DATED 31/01/2007 OF THE PENSION BOARD. EXT.P6 A TRUE COPY OF THE COMMUNICATION DATED 15/06/2007 OF THE 2ND RESPONDENT TO THE FIRST RESPONDENT. RESPONDENTS' EXTS: NIL \\TRUE COPY// P.A TO JUDGE T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.13077/2009-D ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 27th day of October, 2010 J U D G M E N T The petitioners are presently working as Peons in the third respondent Urban Co-operative Bank. They are really aggrieved by the proceedings Exts.P3, P4 and P6 which has resulted in the non-enrollment of the petitioners under the Pension Scheme for Co-operative Societies. 2. The petitioners were originally appointed as Sweepers with effect from 28/07/2000 after the bank called for applications through news papers. The posts of Sweepers in the Bank were provided as per Order Ext.P1 issued by the Joint Registrar of Co-operative Societies. By Ext.P1, three posts of Sweepers were specially sanctioned for the bank. Ext.P2(2) is the copy of the Feeder Category Sub Rules framed under Rule 185 of the Kerala Co-operative Societies Rules whereby for promotion to the post of Peons, Sweepers are also eligible for 25% of the post, in accordance with seniority. 3. When applications were submitted for availing pension scheme, it was replied by the Secretary of the Pension Board, by Ext.P3, based on a clarification issued by the Registrar of Co-operative Societies that the promotions granted to posts not included in Appendix III W.P.(C). No.13077/2009 -:2:- cannot be recognised and therefore, the three Peons who have been originally working as Sweepers cannot be included under the Pension Scheme. Ext.P4 is the said clarification issued by the Registrar of Co-operative Societies. Ext.P6 is also a reply given by the Joint Registrar to the Secretary of the Pension Board that the feeder category Sub Rules is not in terms of the Rules. 4. The learned counsel for the petitioners Shri P.N.Mohanan submitted that going by Rule 188 of the Kerala Co-operative Societies Rules and the proviso therein the Joint Registrar has given sanction for change of the staff pattern provided in Appendix III and therefore, Ext.P3 is not justifiable. It is also submitted that Ext.P2 feeder category Sub Rules framed under R.185(1) of the Kerala Co- operative Societies Rules stood approved by the Joint Registrar. It is pointed out that the Registrar of Co- operative Societies cannot issue a clarification based on a communication issued by the Pension Board, especially, since the Joint Registrar has exercised a statutory power and there is no provision for seeking a clarification of Registrar of Co-operative Societies under the Pension Scheme. Further it is pointed out that this clarification is issued without notice to the petitioners and the Bank and, therefore, the same will not bind the petitioners. W.P.(C). No.13077/2009 -:3:- 5. My attention was invited to the definition of 'employee' under the Scheme and it is pointed out that any person who is appointed against the post approved by the competent authority and working on a regular basis comes within the definition of employee. It is also pointed out that even going by the Appendix provided for Urban Co- operative Bank clause (14) of the note will show that the only condition therein is that special prior sanction of the Registrar shall be obtained for the creation of any new posts to keep a parity with the above staff pattern. 6. Heard the learned counsel for the Pension Board Shri P.V.Mohanan, who supported the orders. The first question is whether Ext.P1 suffers from any legal infirmity. Rule 188 of Co-operative Societies Rules provides that every society shall adopt the staff pattern indicated in Appendix III to the rules, according to the type and class to which it belongs. The second proviso is herein attracted going by the facts of this case. According to it, where any Society is in need of any change in pattern of staff including the scale of pay under special circumstances, the same will be made by the Society with prior approval of the Registrar of Co-operative Societies. Evidently, Ext.P1 is an order passed by the Joint Registrar of Co-operative Societies in terms of the W.P.(C). No.13077/2009 -:4:- said proviso to Rule 188. Ext.P1 refers to the application submitted by Bank for creating the posts of Sweepers, which was recommended by the Assistant Registrar and after considering the financial position of the Bank and after getting a clarification from the office of the Registrar of Co-operative Societies, the Joint Registrar sanctioned the same. It is made clear in Ext.P1 itself that the said posts will carry the service conditions including wages as applicable to part time contingent employees of the Government service. Evidently, those posts are therefore created and approval has been granted which will be in addition to the staff pattern provided in Appendix III. Therefore, their appointment based on the same will be regular and valid. 7. Then we will go to Ext.P2. It can be seen that feeder category rules can be framed which can be approved in the light of the Rule 185(1) of Co-operative Societies Rules. The said Rule provides for framing suitable feeder category rules with the approval of the Registrar and Ext.P2 clearly shows that the approval has been granted. Therefore, their promotion to the post of Peons is in terms of the feeder category rules which have been approved by the Department. W.P.(C). No.13077/2009 -:5:- 8. In the light of the above, it can be seen that the petitioners will squarely come within the definition of employee under the Scheme. The said definition contained in Clause 2(f) provides as follows:- “Employee means a person appointed into the services of a Co-operative Society registered under the Kerala Co-operative Societies Act, 1969 against a sanctioned post or against a post approved by the competent authority and working on a regular basis.” Therefore, any person who is appointed against a post approved by a competent authority and working on a regular basis will come within the definition of employee. Herein, the petitioners will squarely fit in within the said scheme of Co-operative Pension Scheme. 9. The next question is whether any validity can be attached to the clarification issued by the Registrar of Co-operative Societies as per Ext.P4 and the Joint Registrar as per Ext.P6. Evidently, the statutory scheme under Rules 185 and 188 of Co-operative Societies Rules have not been examined by the Registrar and, therefore, the observation made in Ext.P4 that the promotions are not in order cannot be sustained. Similar is the case in Ext.P6 whereby the Joint Registrar has clarified that the feeder W.P.(C). No.13077/2009 -:6:- category rules which have been approved against Appendix III is not correctly done. Evidently, the Bank or the petitioners have not been issued notice on the clarifications issued. Apart from the same, as rightly pointed out by the learned counsel for the petitioners, there was no challenge against any of these orders, namely, Exts.P1 and P2 before any higher authority i.e. the Government who has also not exercised the powers of revision in the matter. Therefore, statutory orders which have been validly passed cannot be set at naught by the issuance of clarifications as Exts.P4 and P6. 10. In that view of the matter, the writ petition is allowed. Exts.P3, P4 and P6 are quashed. There will be a direction to the Pension Board to consider the application for inclusion of the petitioners in the pension scheme and grant benefits to them in accordance with the scheme. No costs. (T.R. Ramachandran Nair, Judge.) ms