IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 5TH JUNE 2008 / 15TH JYAISHTA 1930 WP(C).No. 29133 of 2004(R) ---------------------------------------- PETITIONER: -------------------- ARTHAT-ANJOOR SERVICE CO-OPERATIVE SOCIETY LTD. NO.R.106, CHITTANJOOR P.O., THRISSUR DISTRICT, REPRESENTED BY ITS PRESIDENT. BY ADV. SRI.P.C.SASIDHARAN RESPONDENTS: -------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF CO-OPERATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, THRISSUR. 3. N.A.RAMESHAN, ATTENDER, ARTHAT-ANJOOR SERVICE CO-OPERATIVE SOCIETY LTD., NO.R.106, CHITTANJOOR P.O., THRISSUR DISTRICT. BY GOVERNMENT PLEADER SRI. P.K.RAVIKRISHNAN – R1 & R2 SRI.B.S.SWATHIKUMAR, SPL.GP(CO-OP) - R2 BY ADV. SRI.V.G.ARUN - R3 SRI.T.R.HARIKUMAR - R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.29133/2004 R APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER OF THE JOINT REGISTRAR DTD. 24/08/1998. EXT.P2: COPY OF THE MEMO ISSUED BY THE DISTRICT CO-OPERATIVE BANK DTD. 06/07/99. EXT.P3: COPY OF THE AUDIT MEMORANDUM OF THE YEAR 2001-02. EXT.P4: COPY OF THE TENTATIVE BALANCE OF THE SOCIETY AS ON 31/03/2004. EXT.P5: COPY OF THE ORDER OF THE JOINT REGISTRAR DTD. 29/08/1997. EXT.P6: COPY OF THE NOTIFICATION PUBLISHED IN DTD. 13/12/1997. EXT.P7: COPY OF THE ORDER OF THE JOINT REGISTRAR DTD. 20/06/2003. EXT.P8: COPY OF THE ORDER OF THE JOINT REGISTRAR FIXING SCALE OF PAY TO THE 3RD RESPONDENT DTD.22/09/2004. EXT.P9: COPY OF THE BALANCESHEET PREPARED BY THE SOCIETY DTD. 31/03/2005. RESPONDENT'S EXHIBITS: EXT.R3(A): COPY OF THE RESOLUTION DTD. 3/12/2001. EXT.R3(B): COPY OF THE RESOLUTION NO.8 DTD. 1/03/2000. EXT.R3(C): COPY OF THE CERTIFICATE ISSUED BY THE STATE CO-OPERATIVE UNION DTD. 8/08/2001. EXT.R3(D): COPY OF THE APPLICATION DTD. 13/05/2004. EXT.R3(E): COPY OF THE REPRESENTATION FILED BY THE RESPONDENT DTD. 6/06/2002. EXT.R3(F): COPY OF THE PROCEEDINGS NO.CRP-2783/02/K.DIS. DTD. 20/06/2003 AND THE FEEDER CATEGORY RULES. EXT.R3(G): COPY OF THE AGREEMENT EXECUTED BY THE VIJAYAN DTD. 4TH JULY, 2004. /TRUE COPY/ P.S.TO JUDGE Kss THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = WP(C).No.29133 of 2004-R = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 5th day of June, 2008. JUDGMENT 1.On 13-12-1997, the petitioner issued Ext.P6 advertisement inviting applications for appointment as against one vacancy in the category of Attender, to be recruited in terms of Section 80 of the Kerala Co-operative Societies Act, 1969 and the Rules. It was also stated in Ext.P6 that the appointee will draw a consolidated pay of Rs.500/-. The third respondent applied and he was selected and appointed as Peon. He was working on a consolidated pay of Rs.500/-. Later, that was enhanced to Rs.1,000/-. It may be noticed that the vacancy as against which he was appointed was one that occurred due to dismissal of a person then in service, who later succeeded before the Labour Court and was ordered to be reinstated and WP(C)29133/2004 -: 2 :- he had forgone his back-wages. Whatever that be, the third respondent also continued to work and the consolidated pay given to him was enhanced to Rs.1,000/- per month. He was also sent to undergo JDC training. Thereafter, the third respondent moved the Joint Registrar for supervisory directions that he be granted emoluments in the scale of pay for the post of Peon in terms of the Act and Rules. It is also pointed out by the learned counsel for the third respondent that as per Ext.R3(f) Feeder Category Rules, two posts of Peons have been approved as a special case. The statutory authority issued orders directing the society to release emoluments on the basis of the pay scale. This is under challenge. 2.The fundamental issues raised on behalf of the petitioner are that the third respondent was appointed only on a consolidated pay and he cannot aspire to get emoluments on a scale of pay and that the petitioner society is in financial doldrums with huge accumulated loss of more than WP(C)29133/2004 -: 3 :- Rs.30 crores and even the Secretary is drawing much below than what could be drawn by the Secretary, in terms of scales of pay in terms of the Act and Rules. 3.A close reading of Ext.P6 advertisement would show that the appointment was made after following a transparent selection process. It was a recruitment in terms of the statutory provisions. It was as against a vacancy that was available in the staff strength as it then stood. This cannot be disputed because, the incumbent who was earlier in office stood dismissed. As of now, even when that dismissed employee has been reinstated, Ext.R3(f) shows that there are two posts of Peons, treating it as a special case, as part of the approved staff pattern. Therefore, the direction issued by the Registrar in exercise of supervisory jurisdiction to grant emoluments in a pay scale, to the third respondent cannot be found fault with, on any jurisdictional issue. It is not in violation of any of the Rules. WP(C)29133/2004 -: 4 :- 4.But, what is more important is that when the employer is unable to sustain and when almost all the employees are shown to be drawing much below of their entitlement in terms of the pay scales, is it appropriate to direct that the third respondent be paid the entire emoluments in terms of the pay scale? It is demonstrated in the writ petition that even the Secretary is drawing emoluments much below than what he would be entitled to, in terms of pay scales. The institution is, therefore, working. The continued sustenance of the institution is absolutely necessary for the employees to work. Under such circumstances, ends of justice require that a ratio has to be worked out identifying the percentage at which emoluments are drawn by the Secretary and other members of the staff as against their entitlement as per pay scales and the same yardstick has to be applied in the case of the third respondent also. This would be a reasonable and rational way of looking at ways WP(C)29133/2004 -: 5 :- and means of sustaining the employer and the employee. If I were to borrow the principle once applied by the Apex Court in the realm of rent laws, I may call it “live and let live”. For the foregoing reasons, it is directed that the impugned order will stand trimmed down to be effective in terms of what is stated above regarding the working out of a proportion on the basis of the pay scales. This shall be done by the petitioner within an outer limit of two months from the date of the receipt of a copy of this judgment and emoluments released with effect from the date of the impugned order. This writ petition is ordered accordingly. No costs. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/1206