IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 29TH AUGUST 2008 / 7TH BHADRA 1930 WP(C).No. 19028 of 2008(M) -------------------------- PETITIONER: ------------ K.V.THANKAMANI, W/O.K.V.SAKTHIDHARAN, KOTTILAPURATH HOUSE, P.O.KAIPARAMBU, THRISSUR DISTRICT. BY ADV. SRI.P.N.MOHANAN RESPONDENTS: ------------- 1. KERALA STATE CO-OPERATIVE EMPLOYEES PENSION BOARD, P.B.NO.85, KALA NIVAS, T.C.27/156, 157, CHINMAYA LANE, KUNNUMPURAM, THIRUVANANTHAPURAM.REPRESENTED BY ITS SECRETARY. 2. KECHERI SERVICE CO-OPERATIVE BANK LTD. NO.R 286, P.O.KECHERI, THRISSUR DIST. REPRESENTED BY ITS SECRETARY. 3. THE JOINT REGISTRAR OF CO-OP.SOCIETIES (GENERAL) CIVIL LINES, AYYANTHOLE, THRISSUR-680003. R1 BY ADV.SRI.P.V.MOHANAN R2 BY ADV. SRI.UNNI. K.K. (EZHUMATTOOR) R3 BY SR.GOVT. PLEADER SMT.ANU SIVARAMAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.19028 OF 2008 ------------------------------------------- Dated this the 29th day of August, 2008 JUDGMENT The petitioner was appointed in the service of the second respondent co-operative society on daily wages from 20.4.1981 and later, as junior clerk in a resignation vacancy with effect from 6.2.1982, after a spell as apprentice clerk. Later she was promoted as senior clerk on 1.8.1995 and Accountant on 1.1.2004 and she worked as such until her retirement on 31.1.2007. 2. On the introduction of the pension scheme for employees of co-operative societies, she was enrolled as a member of that scheme and was allotted code number. Contributions were also made in terms of the scheme. 3. However, when papers were submitted to the Pension Board on the petitioner's retirement, the Pension Board rejected it for different reasons. It is noticed that Exts.P6 and P7 decisions of the Joint Registrar and the Government stared at the WPC.19028/08 Page numbers petitioner regarding the regularity and sustainability of her initial appointment on 6.2.1982. She has, therefore, filed this writ petition challenging those decisions. 4. Perusing the counter affidavit of the Pension Board and that of the employer society, it needs to be noticed that the stand taken by the Pension Board was that the appointment of the petitioner as against the vacancy that occurred on account of the resignation of Smt.Bhanumathi was not on the basis of any selection or competency test conducted, after advertising the existence of that vacancy. However, the fact remains that in so far as societies like the second respondent are concerned, the only statutory compulsion is that they follow the directions of the Registrar regarding the modalities of selection. As on the crucial date, i.e., 6.2.1982, the date of the appointment of the petitioner on a permanent basis, the circular that held the field was Ext.P8, viz., circular No.52/80. That deals with an earlier circular, No.65/79, which is Ext.P11. Ext.P8 circular was later dealt with in Ext.P9 circular No.66/89. A reading of Exts.P8 and P9 would WPC.19028/08 Page numbers show that the specific directions issued in Ext.P8 regarding the invitation of applications through advertisement in leading newspapers in connection with selection and appointment were regarding the additional posts and such requirement had to be prescribed while sanctioning additional posts. That prescription was over and above that contained in Appendix III to the Rules. Adverting to Ext.P9, it can be seen that the instructions issued as per Ordinance 52/80 were required to be followed in respect of all recruitments. That clarity was not there in Ext.P8 and any allowance in that regard has, necessarily, to go in favour of the employee, who had toiled and spent her life serving an establishment. I am, therefore, of the opinion that on the face of the absence of a clear prescription in Ext.P8 circular that even regarding the existing posts, there has to be a public advertisement, the second respondent society was well within authority in having made the appointment of the petitioner against a vacancy that arose on account of a resignation, more so when she had, by the time, contributed as a daily rated or apprentice employee in the same establishment. With that WPC.19028/08 Page numbers scenario in mind, the objection of the Pension Board regarding the sustainability of the appointment of the petitioner does not stand. 5. Be that as it may, the Pension Board, which, going by the scheme of the Rules, does not appear to have the authority to sit in judgment on such issues, is not wholly unjustified on the facts and in the circumstances of the case in hand, to have taken a stand against the petitioner. I say so because, the committee of the second respondent society had moved the Joint Registrar for approval of the appointment of the petitioner. That stood rejected as per Ext.P6 and confirmed in appeal as per Ext.P7, which appeal was rejected on the ground of delay. The KCS Act and Rules do not provide for any departmental approval or sanction of an appointment made in a co-operative society unlike in the case of an aided school falling under the KER. This distinction, when borne in mind, tends to say that Exts.P6 and P7 are illusory since it was unnecessary for the second respondent to have moved the Joint Registrar or the Government to obtain WPC.19028/08 Page numbers orders of concurrence or approval for the appointment that they have made in the establishment, which is a legal entity. In this view of the matter, Exts.P6 and P7 are of no consequence and resultantly, they are quashed hereby. 6. Following this judgment and having regard to the contributions already on record in terms of the funds payable to the Pension Board, the said Board will take immediate action to release the pension arrears and issue appropriate orders on the petitioner's claim for pension within an outer limit of one month from the date of receipt of a copy of this judgment. The writ petition is allowed accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge kkb.