IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 3RD AUGUST 2009 / 12TH SRAVANA 1931 WP(C).No. 1055 of 2009(A) ------------------------- PETITIONER(S): --------------- M.N.GOPALAKRISHNAN PANICKER, GENERAL MANAGER, MEENACHIL RUBBER MARKETING AND PROCESSING CO-OPERATIVE SOCIETY, LTD.K.118,PALA,KOTTAYAM. BY ADV. SRI.P.N.MOHANAN RESPONDENT(S): --------------- 1. REGISTRAR OF CO-OPERATIVE SOCIETIES, TRIVANDRUM. 2. MEENACHIL RUBBER MARKETING AND PROCESSING CO-OPERATIVE SOCIETY,LTD.K.118, PALA, KOTTAYAM. REPRESENTED BY ITS PRESIDENT. ADV. SRI.O.D.SIVADAS FOR ADDL.R3 SRI.SUNIL CYRIAC FOR R2 GOVERNMENT PLEADER SRI. K.S. MOHAMMED HASHIM FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX Ext.P1. A true copy of the relevant bye-law Ext.P2. A true copy of the resolution of the managing committee dated 26.7.2005. Ext.P3. A true copy of the order dated 29.7.2005 of the Ist respondent Ext.P4. A true copy of the resolution of the managing committee dated 20.6.2008 along with covering letter. Ext.P5. A true copy of the order dated 27.7.2008 of the Ist respondent. Ext.P6. A true copy of the order dated 31.7.2008 of the 2nd respondent. Ext.P7. A true copy of the order dated 26.12.2008 of the Ist respondent, Registrar // TRUE COPY // P.A to Judge. ANTONY DOMINIC,J. --------------------- W.P.(C).No.1055 OF 2009 ------------------------ Dated this the 3rd day of August, 2009. JUDGMENT Challenge in this writ petition is against Ext.P7. 2. Petitioner was a Chief Accountant in the 2nd respondent society holding charge of the Managing Director and was to attain the age of superannuation on 31.7.2005. On 26.7.2005, Ext.P2 resolution was passed by the Board of Directors of the Society, resolving to appoint the petitioner as General Manager, on contract basis in terms of Rule 185A of the Kerala Co-operative Societies Rules, taking into account his efficiency and experience which could be made use of by the Society for executing its new projects. The terms subject to which such appointment was proposed to be made are also included in the resolution. Accordingly, approval of the Registrar was sought for and by Ext.P3 order dated 29.7.2005, Registrar WP(c).No.1055/09 2 gave approval for appointment of the petitioner as General Manager, on contract basis, for a period of 3 years from the date on which he joined in service. 3. Accordingly he joined the post and served as General Manager. As the period of his appointment was expiring, the Society passed resolution dated 20.6.2008, which also makes reference to the projects implemented by the Society with the assistance of NCDC, the ability of the petitioner to efficiently manage the affairs of the society and the advantage the society will have, if the petitioner is continued as General Manager. On this basis, the Society resolved to seek approval of the Registrar to continue the petitioner's appointment on contract basis as General Manager, for a further period of 2 years. Enclosing the said resolution, the society approached the Registrar by Ext.P4 seeking his approval. The request was considered and the Registrar by Ext.P5 order dated 27.7.2008, accepted the request of the Society and gave approval for appointing the petitioner for a further period of 2 years from 1.8.2008. Ext.P6 is the consequential order issued by the Society on WP(c).No.1055/09 3 31.7.2008. On this basis, petitioner was continuing in that post. 4. While so Ext.P7 order was issued by the Registrar on 26.12.2008, making reference to Exts.P3, P5 and also a report submitted by the Joint Registrar(General) dated 11.11.2008. It is stated in Ext.P7 that, according to the report of Joint Registrar, in view of the economic recession there is a possibility of the depositors withdrawing their deposits and that in such an event, it may not be possible for the petitioner to overcome the situation. It is also stated that, the NCDC which extended financial assistance to the marketing societies also requires that an Officer from the Co-operative Department should be appointed in the society. It is stated that for the aforesaid reasons and for the better management of the society, it is necessary to cancel Ext.P5. On the aforesaid basis Ext.P5 was cancelled and an Officer not below the rank of a Deputy Registrar is ordered to be deputed to work in the society, as its Managing Director. As by Ext.P7 the appointment of the petitioner was ordered to be terminated, this writ petition is filed challenging Ext.P7. In this writ WP(c).No.1055/09 4 petition, this court passed order dated 12.1.2009, granting stay of Ext.P7 and on the strength of the said order, the petitioner is continuing in service. 5. Counsel for the petitioner, impugning the validity of Ext.P7, contended inter alia that reasons stated in Ext.P7 are totally unsustainable. According to him, the anticipated inability of the petitioner to tide over the situation in the event deposits are withdrawn is baseless. It is also stated that the NCDC has no regulation requiring the society to employ a Managing Director or General Manger on deputation from the Co-operative Department. It is also stated that by Exts.P3 and P5, on two occasions Registrar having accepted the recommendation of the Society regarding the efficiency and ability of the petitioner and the advantages of the society will have if he is retained in service, could not have passed Ext.P7, that too based only on a report which the Joint Registrar(General) had submitted. It was also contended that the Registrar, having issued an order under Rule 185A could not have cancelled it and that if at all law permits, the remedy against such an order was the one provided under WP(c).No.1055/09 5 Section 87 of the Co-operative Societies Act. It is contended that none had pursued such remedy and therefore the order is liable to be set aside. 6. Addl. 3rd respondent, a member of the 2nd respondent who got himself impleaded in the writ petition has filed a counter affidavit. In the counter affidavit he has contended that the writ petition is not maintainable. According to him the remedy available to the petitioner against Ext.P7 lies under Section 69(2(d) or under Section 83(1)(j). It is also contended that the assessment about the efficiency of the petitioner is also without any basis. According to him, the petitioner having attained the age of superannuation could not have been reappointed. 7. A counter affidavit has been filed by the first respondent. In the counter affidavit there is only a reiteration of what is stated in Ext.P7. 8. In my view, Ext.P7 order deserves to be invalidated on the ground that it is passed without jurisdiction. Admittedly, Ext.P7 has to be understood in the light of Rule 185A, which provides that notwithstanding anything WP(c).No.1055/09 6 contained in the rules, the Committee of a Society may with the prior approval of the Registrar appoint persons who are technically or professionally qualified or persons with experience or expertise, by way of deputation or on a contract basis for a specified period not exceeding 5 years. In this case initially the petitioner was appointed for 3 years by Ext.P3 and then the appointment has been extended by another 2 years. Once an order of approval has been issued under Rule 185A and if anybody is aggrieved by such an order, the remedy available is one of revision as provided under Section 87, which provides that the Government may on their own motion or on an application call for and examine the records of the Registrar in respect of any proceedings to satisfy itself about the correctness, legality or propriety of the decision and modified or reversed the same. In this case nobody has initiated such a proceedings. No other statutory provision has been shown to me enabling the Registrar to review the order. In such circumstances, issuance of Ext.P7 by the Register is without authority and for that reason Ext.P7 reserves to be invalidated. Accordingly Ext.P7 to the extent it cancels the WP(c).No.1055/09 7 appointment of the petitioner is quashed. Writ Petition is allowed as above (ANTONY DOMINIC) JUDGE vi/ WP(c).No.1055/09 8