IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 1ST DECEMBER 2011 / 10TH AGRAHAYANA 1933 WA.No. 1155 of 2010() --------------------- ( AGAINST THE JUDGEMENT IN WPC.6941/2009 Dated 03/03/2010 ) .................... APPELLANT(S): PETITIONER ------------------------ THE KERALA STATE ENGINEERING & INFRASTRUCTURE SERVICES CO-OP.LTD.NO.4448(KEISCO), REPRESENTED BY ITS MANAGING DIRECTOR,IVTH FLOOR, KERALA STATE CO-OPERATIVE BANK BUILDING, OVERBRIDGE JUNCTION,THIRUVANANTHAPURAM-695001. BY ADV. SRI.B.S.SWATHY KUMAR RESPONDENTS/ RESPONDENTS -------------------------- 1. STATE OF KERALA, REP.BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF CO-OPERATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES(GENERAL),THIRUVANANTHAPURAM. 3. P.RAJASEKHARAN NAIR,TC 15/103,ALTHARA NAGAR(DIO),VELLAYAMBALAM,SANKARAMANGALAM PO, THIRUVANANTHAPURAM. 4. THE KERALA STATE CO-OPERATIVE EMPLOYEES' PENSION BOARD,THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. R1 AND R2 BY SR. GOVERNMENT PLEADER ADV. SMT. K. MEERA. R3 BY ADV. SRI.S.CHANDRASENAN R4 BY ADV. SHRI P.N. MOHANAN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MANJULA CHELLUR, Ag. CJ & P.R. RAMACHANDRA MENON, J. .............................................................................. W.A.No. 1155 of 2010 ......................................................................... Dated this the 1st December, 2011 J U D G M E N T P.R. Ramachandra Menon, J. The writ petitioner Society, who lost the battle in the first round is before this Court, in appeal. 2. The case of the Society was that it was a new creation, who commenced functioning from 17.10.2004, pursuant to the amalgamation of two different Societies which existed earlier. At the time of amalgamation, there were as many as 8 employees who were engaged on daily wages and happened to be continued in service of the writ petitioner Society till 31.12.2005. The third respondent herein was continuing in service as above, while the appellant Society wrote a letter to the concerned authorities of the Department so as to regularise the W.A.No. 1155 of 2010 2 service of all similar persons concerned, who were engaged on daily wages, which, however was not positively dealt with. The third respondent continued as above and retired from service on 31.12.2005. Two years after the retirement, the third respondent approached the Government, who issued Ext. P2 order causing regularisation of service of the third respondent w.e.f. 15.03.1995 and ordered to effect disbursement of the due amount towards retirement benefits. Simultaneously proceedings were also taken up by the authorities of the Provident Fund Department, compelling the writ petitioner Society to effect contribution to the extent as specified, which made them to approach this Court by filing the writ petition. 3. After hearing both the sides, the learned Single Judge made a hair-split analysis of the facts and figures and observed that it was at the instance of the writ petitioner Society, that the matter was caused to be considered with regard to the question of regularisation earlier, more particularly vide Ext. R3(B).. The learned Single Judge also took note of the fact that the question of regularisation was considered by the second respondent/ W.A.No. 1155 of 2010 3 Registrar of Co-operative Societies (General)as well, who had issued Ext.R3(F) proceedings which has become final for the obvious reason that the same has not been subjected to challenge from the part of the Society. 4. It has been observed by the learned single Judge in para '7' of the judgment that the continuous service of the third respondent from 02.08.1984 stands unrebutted. The challenge raised by the appellant Society with reference to the absence of qualification of the third respondent, has been dealt with in para '8', stating that the contents of Ext. P1 revealed only that no sufficient materials were available before the concerned authority, while issuing Ext.P1, particularly with regard to the possession of necessary qualification stipulated for the post in question. The rejection of the request as per Ext.P1, was for want of reliable materials and not on the basis of a positive finding that the third respondent was not qualified . 5. The qualifications possessed by the third respondent, who was having B.Sc. Degree with PG diploma in Personnel Management, Public Relations and Journalism, besides having an W.A.No. 1155 of 2010 4 LL.B., have been specifically referred to in para '8' of the judgment. The request made by the appellant challenging Ext. R3(B) before the 4th respondent, seeking for appropriate orders to deal with the case of the third respondent-in view of his retirement on 31.12.2005 and the factum of contribution made by the Society pursuant to the decision taken on 15.10.2005, as referred to in paragraph 9 of the judgment, are also much relevant to be looked into in this context. 6. Further, it has been observed in paragraph '10' of the judgment that vide Ext. R3(E), an enquiry was conducted by the Joint Registrar (General), who, on being satisfied with the facts and circumstances, recommended regularisation of the service of the third respondent. Pursuant to Ext. R3(E), the second respondent, Registrar of the Co-operative Societies regularised the service of the third respondent issuing Ext. R3(F), fixing the scale of pay, which stands intact, the same having not been subjected to challenge as mentioned earlier. It has been further observed in paragraph '11' of the judgment that, though the qualifications are those as stipulated under Rule 186 of the Co- W.A.No. 1155 of 2010 5 operative Societies Rules, it is very much open for the Government to grant 'exemption' in view of the mandate under Rule 181 of the Rules; more so in view of the law declared on the subject, as per the decision reported in 2008(1) KLT 478 (Praveen Chandran vs.State of Kerala). It was accordingly that the matter was considered and observed that there was no merit in the writ petition, thus declining interference. We find no reason to disagree. 7. The learned Counsel for the appellant however submits that, in the meanwhile, a consolidated amount in respect of the service of the third respondent has already been disbursed to him. If any such amount has been paid, it is open for the appellant to take appropriate steps in accordance with law, so as to get recovery of the same from the third respondent, or to have it set off in accordance with the terms if so agreed by the third respondent, in such appropriate manner while giving effect to the verdict already passed by the learned Single Judge. Taking note of the persuasive submission made by the learned counsel for the appellant, we find it fit and proper to delete the order W.A.No. 1155 of 2010 6 with regard to payment of 'cost' ordered by the learned single Judge. The appeal is dismissed, except to the said extent. MANJULA CHELLUR, ACTING CHIEF JUSTICE. P.R. RAMACHANDRA MENON, JUDGE. lk