IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 7TH AUGUST 2009 / 16TH SRAVANA 1931 WP(C).No. 13901 of 2009(G) ------------------------------------------ PETITIONER(S): ------------------------ THE ANICADU SERVICE CO-OP. BANK LTD., NO.A.113, REPRESENTED BY PRESIDENT, NOOROMMAVU P.O., ANICADU, PATHANAMTHITTA-689 589. BY ADV. MR.P.N.MOHANAN RESPONDENT(S): --------------------------- 1. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (G), PATHANAMTHITTA. 2. V.A.SUBAIR, VAZHAKALAYIL, ANICADU P.O., PATHANAMTHITTA. R1 BY GOVERNMENT PLEADER MR. K.S.MOHAMMED HASHIM R2 BY ADV. MR.S.SUBHASH CHAND THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.13901/2009 G APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ONE OF THE NOTIFICATION PUBLISHED IN MATHRUBHUMI DAILY DTD. 24/02/2007. P2: COPY OF THE ORDER DTD. 7/03/07 ISSUED BY THE JOINT REGISTRAR. P3: COPY OF THE JUDGMENT DTD. 10/04/2007 IN WPC.NO.8302/07. P4: COPY OF THE ORDER ISSUED BY THE JOINT REGISTRAR DTD.5/06/07. P5: COPY OF THE JUDGMENT DTD. 5/12/07 IN WPC.NO.19744/07. P6: COPY OF THE JUDGMENT DTD. 16/10/2008 IN WPC.NO.30403/08. P7: COPY OF THE ORDER OF THE GOVERNMENT DTD. 9/02/09. P8: COPY OF THE RESOLUTION DTD. 22/04/08. P9: COPY OF THE DECISION OF THE MANAGING COMMITTEE DTD. 17/04/2009. P10: COPY OF THE DECISION OF THE MANAGING COMMITTEE DTD. 14/06/2007. P11: COPY OF THE NOTIFICATION DTD. 17/04/09. P12: COPY OF THE ORDER DTD. 5/05/09 OF THE JOINT REGISTRAR. RESPONDENT'S EXHIBITS: R2(A): COPY OF COMMUNICATION DTD. 24/06/2009 ISSUED BY RESPONDENT NO.1. R2(B): COPY OF THE CIRCULAR NO.18/91 ISSUED BY THE REGISTRAR NAMELY. R2(C): COPY OF THE CIRCULAR NO.11/99 ISSUED BY THE REGISTRAR. R2(D): COPY OF CIRCULAR NO.46/89 ISSUED BY THE REGISTRAR NAMELY, CIRCULAR NO.18/91, CIRCULAR NO.11/99. R2(E): COPY OF ELECTION IDENTITY CARD OF RESPONDENT NO.2. R2(F): COPY OF DRIVING LICENCE OF RESPONDENT NO.2. R2(G): COPY OF RELEVANT PAGES OF THE RATION CARD OF RESPONDENT NO.2. /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J. ================ W.P.(C) NO. 13901 OF 2009 (G) ===================== Dated this the 7th day of August, 2009 J U D G M E N T Petitioner is a Co-operative Bank. By Ext.P1 issued on 24/2/2007, applications were invited by the Bank to fill up the vacancies of peons, specifying 10/3/2007 as the last date for receipt of applications. Proceedings pursuant to the notification was stayed by the 1st respondent as per Ext.P2 order dated 7/3/2007, presumably acting upon a complaint made by a member. WP(C) No.8302/07 was filed by the Bank against Ext.P2 order and the case was disposed of by Ext.P3 judgment directing the 1st respondent to pass final orders in the matter. Accordingly, Ext.P4 order was passed by the 1st respondent on 5/6/2007. In Ext.P4, Ext.P2 order was sustained. 2. Reasons stated are that following the judgment of this Court in WP(C) No.27912/03 by order dated 24/5/2003, the Society was reclassified as a Class III Bank. It is stated that on such reclassification, as against the permissible strength of one attender, there were three attenders and therefore there is excess staff. It is also held that one Assistant Secretary and two WPC 13901/09 :2 : Head Clerk/Accountant are in excess. It is also stated that the Bank had suffered an accumulated loss of Rs.82,65,147/-. 3. This order was again challenged before this Court in WP (C) No.19744/07, resulting in Ext.P5 judgment relegating the petitioner to pursue the statutory remedies. Accordingly, appeal was filed before the Government and by Ext.P6 judgment in WP(C) No.30403/08 filed by the petitioner, the appeal was directed to be disposed of on an expeditious basis. Accordingly, Ext.P7 appellate order was passed by the Government, the operative portion of which reads as under: The Government have examined the matter in detail and the Appeal Petition is disposed of with direction that the Anicadu Service Co-operative Bank shall comply with the directions of the Joint Registrar regarding its reclassifications and thereafter the bank is at liberty to proceed with the recruitment of staff if necessary complying all the rules and regulations of the recruitment. The Appeal petition is disposed of accordingly. Thus Ext.P7 order requires the petitioner Bank to comply with the directions in Ext.P4 and to proceed with the recruitment in compliance with the Rules and Regulations. 4. Petitioner submits that as per Exts.P8, P9 and P10, on reclassification, all employees were redeployed in the manner as it suits a Class III society and steps for recovery of the excess pay has been initiated. Among the three attenders, retaining one, two WPC 13901/09 :3 : were deployed as peons and that a Chief Accountant/Assistant Secretary was reverted as Branch Manager w.e.f. 1/11/06 and two Head Clerks were reverted as Senior Clerks w.e.f. 1/11/2006. It is also stated that salary consequent to Exts.P9 and P10 referred to above has also been refixed. Thus, the case of the petitioner is that directions in Ext.P4 has been complied with as directed in Ext.P7. 5. Once that was completed, petitioner issued Ext.P11 notification dated 17/4/2009 inviting applications to fill up three posts of peons and one post of Salesman specifying 5/5/2009 as the last date for receipt of the applications. As on the previous occasion, when Ext.P1 was issued, this time also, the 1st respondent issued Ext.P12 staying further proceedings pursuant to Ext.P11, referring to a complaint made by the 2nd respondent herein and also a report of the Assistant Registrar dated 5/5/2009. It was thereupon that this writ petition was filed seeking to challenge Ext.P12 and for orders enabling the society to proceed further with Ext.P11 vacancy notification. The contention raised is that the society having complied with the directions of the Government in Ext.P7, which order has become final, it is entitled to go ahead with the recruitment to the vacant posts. 6. Learned Government Pleader on the other hand would WPC 13901/09 :4 : resist the prayers in the writ petition, firstly contending that Ext.P12 is only an interlocutory order of stay and if at all the petitioner wants modification, it is up to them to appear and contest the matter before the 1st respondent himself. It is also stated that, by Exts.P8 to Ext.P10, if at all Exts.P4 and P7 have been complied with, the petitioner ought to have communicated this deployment to the Joint Registrar and having not done so, the Joint Registrar cannot be faulted for the view that has been taken in Ext.P12. 7. The learned Counsel appearing for the 2nd respondent, on whose complaint Exts.P12 was issued, submitted that the financial health of the society which has been highlighted in the impugned proceedings, is a relevant consideration and that the 1st respondent has a say in the matter of appointments in the society. He relied on the judgment of the Apex Court in Subha B.Nair v. State of Kerala (AIR 2008 SC 2760), which according to him, takes a view different from what was taken by this Court in the judgment in Elampal Service Coop. Bank Ltd. v. Government of Kerala (2000(3) KLT 389). Referring to Ext.R2(a), counsel contended that reclassification was not certified by the Joint Registrar. It was also pleaded that there was only one post of WPC 13901/09 :5 : Salesman in the society and that as is seen from Ext.P10, Mr.Mohandas, on conversion of the society into Class III, has been reverted and is continuing in the post of salesman. It is stated that therefore there was no vacancy of salesman which could have been filled up by the Society pursuant to Ext.P11. He also referred to the judgment of this Court in Trivandrum District Co- operative Bank Ltd. v. State of Kerala (1992(1) KLT 381) dealing with the power of the Joint Registrar to issue interim orders. 8. In so far as the plea of the learned Government Pleader that Exts.P8 to P10 were not communicated to the Joint Registrar, counsel for the petitioner contended that the Bank is being periodically subjected to inspections ordered as per Section 66 of the Act, and therefore, it is not open to the Joint Registrar to plead ignorance of Exts.P8 to P10. 9. In so far as the reliance on the judgment of the Apex Court in Subha B.Nair v. State of Kerala (AIR 2008 SC 2760) is concerned, learned counsel for the petitioner submitted that Note 3 and 4 in Appendix III, on the basis of which the said judgment has been rendered, were introduced in the statute book w.e.f. 22/3/2004. It was pointed out that as is evident from Ext.P4, the society has been reclassified on 24/5/2003. It is therefore WPC 13901/09 :6 : submitted that the said judgment can have no relevance to the facts of this case. 10. In so far as Sri.Mohandas, who according to the 2nd respondent is continuing as Salesman is concerned, learned counsel for the petitioner submits that prior to Ext.P11, he has been promoted as Junior Clerk and therefore the submission of absence of vacancy now made by the 2nd respondent is erroneous. He also relied on Note 3 to Appendix III, which entitles the Society to fill up the vacancy of salesman available in the society. 11. True, as contended by the counsel for the respondents, Ext.P12 is only an interim order of stay passed by the Joint Registrar prohibiting the society from proceeding with the appointments made. But, having regard to the background facts, particularly that this is only a repetition of what has happened on the earlier occasion when the Society had issued Ext.P1 vacancy notification, I think circumstances justify an examination whether the Joint Registrar was justified in issuing an order in the nature of Ext.P12. 12. If as stated in Ext.P7, the Society has complied with the directions in Ext.P4, petitioner was entitled to proceed with the recruitment. A reading of Ext.P4 shows that the availability of WPC 13901/09 :7 : excess staff in the category of Attender, Assistant Secretary and Head Clerk/Accountant and the loss sustained by the Bank are the only reasons stated to justify the view the Joint Registrar has taken, which has been confirmed by the Government also. A reading of Exts.P8 to P10 shows that in view of what the society has done as reflected in these documents, the excess staffing as highlighted in Ext.P4 no longer survives to be held against the society. 13. Thus, the only other question that survives in Ext.P4 is the loss incurred by the Society. I do not think it needs elaboration that the loss by itself is no reason to prevent the society from making appointments to the vacant posts, if filling up of those posts are necessary for the efficient running of the society concerned. Therefore, I am satisfied that Exts.P8 to P10 shows that the Society has complied with the requirements of Exts.P4 and P7 and loss by itself is no reason to stop appointments, when required. 14. As regards the submission made by the learned Government Pleader that Exts.P8 to P10 were not intimated to the Joint Registrar also, I am fairly clear in my mind that in view of the regular inspections that are being carried, it is not open to the Joint Registrar to have rushed to issue Ext.P12. 15. I should also mention that the Society had only invited WPC 13901/09 :8 : applications and the last date of which was only 5/5/2009. If at all the Joint Registrar wanted any clarification in the matter, since the Society could not have made appointments without a written test and interview, there was sufficient time for the Joint Registrar to have easily sought clarifications from the Society. On the other hand, instead of even seeking a clarification on the actual facts as above, the Joint Registrar has hurriedly issued Ext.P12, which was not called for. 16. As regards the judgment of the Apex Court in (AIR 2008 SC 2760) and the question of reclassification in the society are concerned, I feel the contentions raised by the counsel for the petitioner in reply as noticed herein above are sufficient enough to repel all these objections. 17. In so far as Sri.Mohandas is concerned, true, there is specific pleading that he is now working as a salesman and therefore, there is no post of Salesman available to be filled up. Although it has been orally explained by the counsel for the petitioner that he has since been promoted as Junior Clerk and therefore vacancy is available, there is no material to substantiate the plea now raised. 18. Having regard to the above, my conclusions from the WPC 13901/09 :9 : contentions raised by the counsel for the petitioner is that on the materials produced, I am satisfied that Exts.P8 to P10 meets the requirements of Exts.P4 and P7 and it should be possible for the society to fill up the post of peons available. 19. However, in so far as the availability of salesman's vacancy which is notified by Ext.P11 is concerned, I direct that it will be open to the petitioner to provide proof of availability of vacancy before the Joint Registrar. 20. Therefore, the writ petition is disposed of with the following directions. That the petitioner will produce proof of availability of vacancy of salesman as on 17/4/2009 before the Joint Registrar and on such production, if the Joint Registrar is satisfied about the availability of vacancy, the Joint Registrar shall recall Ext.P12 and with that, the petitioner will be free to proceed with the recruitment to the posts notified by Ext.P11. ANTONY DOMINIC, JUDGE Rp