IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 29TH OCTOBER 2009 / 7TH KARTHIKA 1931 WP(C).No. 24801 of 2009(U) -------------------------- PETITIONER(S): --------------- 1. THE BOARD OF MANAGEMENT OF THE FACT EMPLOYEES' CO-OPERATIVE HOUSING SOCIETY LTD.NO.E. 129,UDYOGAMANDAL.P.O,ELOOR, REPRESENTED BY ITS PRESIDENT K.PRADEEPKUMAR. 2. THE FACT EMPLOYEES'CO-OPERATIVE HOUSING SOCIETY LTD.NO.E 129,UDYOGAMANDAL.P.O, ELOOR, REPRESENTED BY ITS SECRETARY,GEETHAJEE PALLIPPADAN. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENT(S): --------------- 1. JAYASREE.T.V,S/O.P.K.UNNIKRISHNAN, CF-32,FACT TOWNSHIP,UDYOGAMANDAL.P.O,ERNAKULAM. 2. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES(GENERAL),ERNAKULAM. 3. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, KERALA,THIRUVANANTHAPURAM. 4. STATE OF KERALA,REPRESENTED BY ITS SECRETARY TO CO-OPERATION(C)DEPARTMENT,SECRETARIAT THIRUVANANTHAPURAM. ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE FOR R1 SRI.T.RAMPRASAD UNNI FOR R1 SMT.SMITHA GEORGE FOR R1 GP SRI.DILEEP MOHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/10/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 24801 of 2009 APPENDIX EXHIBITS EXT.P1- TRUE PHOTOCOPY OF THE RESOLUTION NO.62 DATED 13.8.96 OF THE 2ND PETITIONER EXT.P2- TRUE COPY OF THE RESOLUTION NO.355 DATED 10.3.98 OF THE 2ND PETITIONER EXT.P3- TRUE PHOTOCOPY OF THE RESOLUTION NO.31 DATED 5.6.00 OF THE 2ND PETITIONER EXT.P4- TRUE PHOTOCOPY OF THE COMPLAINT DATED 9.12.00 SUBMITTED BY THE 1ST RESPONDENT BEFORE THE SECRETARY, DEPARTMENT OF CO-OPERATION, KERALA. EXT.P5- TRUE PHOTOCOPY OF THE JUDGMENT DATED 26.2.01 IN O.P.884/01 OF THIS HONOURABLE COURT EXT.P6- TRUE COPY OF THE ORDER DATED 30.7.01 OF THE 2ND RESPONDENT EXT.P7- TRUE PHOTOCOPY of the JUDGMENT DATED 28.11.01 IN O.P.33005/01 OF THIS HONOURABLE COURT EXT.P8- TRUE PHOTOCOPY OF THE NOTICE DATED 29.1.02 ISSUED BY THE 3RD RESPONDENT EXT.P9- TRUE PHOTOCOPY OF THE COMMUNICATION DATED 14.3.02 SENT BY THE 2ND PETITIONER TO THE 3RD RESPONDENT EXT.P10- TRUE PHOTOCOPY OF THE ACKNOWLEDGMENT CARD IN RESPECT OF EXT.P9. EXT.P11- TRUE COPY OF the ORDER DATED 14.3.02 OF THE 3RD RESPONDENT EXT.P12- TRUE PHOTOCOPY OF THEJUDGMENT DATED 14.6.02 IN O.P.9889/02 OF THIS HONOURABLE COURT EXT.P13- TRUE COPY OF THE REPRESENTATION DATED 23.7.00 SUBMITTED BY THE 1ST RESPONDENT EXT.P14- TRUE PHOTOCOPY OF THE REPRESENTATION DATED 28.6.00 SUBMITTED BY SMT.K.R.SUNITHA BEFORE THE 1ST PETITIONER EXT.P15- TRUE COPY OF THE RELINQUISHMENT LETTER DATED 19.7.00 EXT.P16- TRUE PHOTOCOPY OF THE ORDER DATED 24.9.02 OF THE 3RD RESPONDENT EXT.P17- TRUE PHOTOCOPY OF THE JUDGMENT DATED 21.3.07 IN O.P.29518/02 OF THIS HONOURABLE COURT EXT.P18- TRUE COPY OF THE ARGUMENT NOTE DATED 29.6.07 SUBMITTED BY THE PETITIONERS BEFORE THE 3RD RESPONDENT WP(C).No. 24801 of 2009 -2- EXT.P19- TRUE PHOTOCOPY OF the POSTAL ACKNOWLEDGEMENT CARD IN RESPECT OF EXT.P18 EXT.P20- TRUE PHOTOCOPY OF THE ORDER DATED 31.12.07 ISSUED BY THE ADDITIONAL REGISTRAR OF CO-OPERATIVE SOCIETIES (CREDIT) IN FULL ADDITIONAL CHARGE OF THE 3RD RESPONDENT. EXT.P21- TRUE PHOTOCOPY OF THE JUDGMENT DATED 7.7.08 IN W.P.(C). 20271/08 OF THIS HONOURABLE COURT EXT.P22- TRUE PHOTOCOPY OF THE APPEAL MEMORANDUM ALONG WITH INDEX DATED 11.7.08 FILED BY THE PETITIONERS BEFORE THE GOVERNMENT EXT.P23- TRUE PHOTOCOPY OF THE ORDER DATED 5.8.09 OF THE 4TH RESPONDENT (TRUE COPY) P.A TO JUDGE V.GIRI, J ....................... W.P.(C).24801/2009 ....................... Dated this the 29th day of October, 2009 JUDGMENT A Housing Society represented by its Board of Directors and the Secretary are the petitioners in this writ petition where they challenge Ext.P20 order passed by the Registrar and Ext.P23 order passed by the Government affirming Ext.P20. 2. The petitioner/Society decided to fill up the post of Junior Clerk as per Resolution No.62 dated 13.8.1996, Ext.P1. Applications were invited from eligible candidates. 1st respondent who apparently had worked in the Society on daily wages for earlier periods had also applied. Ext.P2 rank list was published on 10.3.1998. 1st respondent secured rank No.3 and one Abdul Shukkur was the 1st rank holder. He was appointed as Junior Clerk. According to the Society, Ext.P2 rank list expired on 9.3.2000. It seems that the other vacancy of Junior Clerk was not filled up before the expiry of the rank list. It further seems that Mr.Abdul Shukkur, 1st rank holder, who was appointed as Junior Clerk was then W.P.(C).24801/09 2 promoted as Senior Clerk on completion of his probation. As evidenced by Ext.P3, the Board of Directors in the petitioner/Society had, by Resolution No.31 dated 5.6.2000, decided not to fill up the vacancy of Junior Clerk that had arisen on the promotion of Mr.Abdul shukkur. 3. Petitioner moved the Secretary, Department of Co- operation vide Ext.P4 highlighting her grievances. One of the requests made by her in this regard was for a direction to the Society to regularize her in the post of Junior Clerk with effect from 1.4.2000 finding that she is entitled for the same. She made reference to the fact that she was employed on daily wages from August 1992 to January 1993 and January 1995 to September 1996. She had completed the age of 37 as on 12.7.2000. She highlighted the fact that she may not be in a position to apply for any post in Public service thereafter. 4. She then approached this Court vide O.P.No.884/2001 and it seems that she had sought for a direction to the petitioner/Society to appoint her to one of the existing vacancies of Junior Clerk. Ext.P5 judgment was delivered W.P.(C).24801/09 3 on 26.2.2001. This Court took note of the fact that the rank list had expired and it was held as follows. “The petitioner further contends that there were vacancies and appointments on temporary basis were being carried out and the petitioner's candidature was overlooked. Now that the period of rank list has expired and there is no explanation on the part of the petitioner for not approaching this Court earlier for following the practice of overlooking her claims, it may not be possible for this Court to pass any orders to help her. Petitioner however, submits that as regards the functioning of the Society, there are serious complaints and she has highlighted it in Ext.P4 and her request is that an order may be passed directing the Joint Registrar to look into the matter. I have heard the learned Government Pleader as well. As the petitioner has limited her submission to the disposal of Ext.P4, I direct the second respondent to take note of the grievances highlighted in Ext.P4 and pass appropriate orders after hearing the petitioner.” 5. Ext.P4 complaint was looked into by the Joint Registrar W.P.(C).24801/09 4 who proceeded to pass an order, directing the Assistant Registrar to conduct a detailed examination on certain aspects regarding the functioning of the Society. 1st respondent challenged Ext.P6 in O.P.No.33005/2001. This Court by Ext.P7 judgment directed the Registrar of Co- operative Societies to pass orders on Ext.P4. 6. A hearing was scheduled to be conducted on 14.3.2002. But Ext.P11 order was passed, requiring the Society to accommodate the 1st respondent as a Junior Clerk in the next arising vacancy. The Society had a case that they were not heard before Ext.P11 order was passed. 7. By Ext.P12 judgment, in a writ petition filed by the Society, this Court set aside Ext.P11 on the ground that it was not preceded by a notice to the petitioners/Society and directed a fresh order to be passed within three months. Thereafter, a further request was made by the 1st respondent as per Ext.P13. Reference was made to an earlier claim filed by one Smt.K.R.Sunitha, the 2nd rank holder in the rank list published on 10.3.1998 and her relinquishment, as evidenced by Ext.P15 dated 19.7.2000. W.P.(C).24801/09 5 8. Registrar by Ext.P16 order considered the matter elaborately and found that the 1st respondent is entitled to get appointment as Junior Clerk in the vacancy notified on 15.11.1997 and on the basis of inclusion of her name in the rank list at rank No.3. 9. This was again challenged by the petitioner in O.P.No.29518/2002. This Court set aside Ext.P16 on the ground that the order did not contain a reference to Ext.P5 judgment. Matter was directed to be considered afresh. 10. Petitioner submitted detailed argument notes, Ext.P18 and by Ext.P20 order, Registrar again passed an order, directing the Society to give appointment to the 1st respondent. 11. This was challenged in an appeal before the Government and by Ext.P23, Government dismissed the appeal affirming Ext.P20. Exts.P20 and P23 have been challenged in this writ petition. W.P.(C).24801/09 6 12. 1st respondent has filed a counter affidavit. I heard Mr.P.V.Baby, learned counsel for the petitioners, Mr.Ramkumar, learned senior counsel along with Ramprasad Unni for the 1st respondent and learned Government Pleader. 13. Mr.Baby contended that the claim of the 1st respondent for appointment to the post of Junior Clerk, was mooted in O.P.884/2001 and as evidenced from paragraph 3 and 4 of Ext.P5 judgment, this Court declined to accept her claim in that regard and a mandamus was issued in Ext.P5 to the Registrar indicating Ext.P4 should be treated as restricted to matters highlighted in Ext.P4 other than the claim for appointment. He further contended that the Society had taken a decision not to fill up the further vacancy in the post of Junior Clerk, as evidenced by Ext.P3. The rank list itself had expired on 10.3.2000 and the 1st respondent had even approached this Court earlier, only after the expiry of the rank list. If the existing vacancy is to be filled up, it can only be done, by conducting a fresh selection and not by accommodating the 1st respondent. He further referred to the claim made by the 2nd rank holder, Smt.K.R.Sunitha and W.P.(C).24801/09 7 her alleged relinquishment, Ext.P15. He contended that there is material to show that the relinquishment, Ext.P15, is forged or fabricated at the instance of the petitioner. This aspect has not been considered either by the Registrar or by the Government, he contends. 14. Ext.P5 judgment, no doubt, referred to the claim made by the petitioner for a direction to the Society to appoint her as a Junior Clerk. But it is relevant to take note of the fact that this Court had taken note of the prayer made by the 1st respondent in O.P.884/2001, in the 1st paragraph of the judgment, wherein it is stated that the petitioner has made a prayer for directing the Co-operative Society to appoint her to one of the existing vacancies. This Court took note of the fact that the period of rank list had expired. This Court also took note of the absence of any explanation on the part of the 1st respondent herein in not approaching the Court earlier and therefore held “it may not be possible for this Court to pass any orders to help her”. Referring to the submission made by the 1st respondent that serious complaints as regards the functioning of the Society has been highlighted in Ext.P4, and that there may be a W.P.(C).24801/09 8 direction to the Joint Registrar to look into Ext.P4, this Court directed the Registrar to take note of the grievances highlighted in Ext.P4 and pass appropriate orders, after hearing the petitioner. I find force in the submission made by the learned senior counsel Mr.Ramkumar that on a reasonable reading of Ext.P5 judgment, what inferentially follows is that this Court did not issue a mandamus to the Society to appoint the petitioner in the said writ petition as Junior Clerk. But the alternative prayer for a direction to the Registrar to consider Ext.P4 was accepted and accordingly, a direction was issued. I do not find anything in Ext.P5 to infer that though this Court had directed Ext.P4 representation to be considered, the direction was intended only to highlight the grievances in Ext.P4, other than the claim made by the 1st respondent herein for an appointment against one of the existing vacancies of a Junior Clerk. 15. The contention that the rank list had expired on 10.3.2000 and therefore, the Registrar and the Government should not have directed the Society to accommodate the 1st respondent herein against one of the vacancies of Junior Clerk, in the circumstances, does not, in my view improve W.P.(C).24801/09 9 the case of the petitioner. There is a finding of fact and this is substantiated by Ext.P1 as well that there were two vacancies of Junior Clerk in the Society when the selection was conducted, prior to the publication of a rank list on 10.3.1998. Admittedly, one Abdul Shukkur was appointed as Junior Clerk. There was another vacancy. There does not seem to be any tenable explanation as to why such vacancy was kept unfilled till 10.3.2000. Ext.P3 Resolution by the Society not to fill up the vacancy of a Junior Clerk, ex facie relates only to the vacancy which had arisen on the promotion of Abdul Shukkur. This aspect has been correctly found by the Registrar and the Government. 16. The further contention with regard to the claim made by the 2nd rank holder and her relinquishment being allegedly fabricated or forged, does not seem to be well conceived. Firstly, if the petitioner had such a contention to be seriously pursued, petitioner should have impleaded the aforementioned Sunitha before the Government or before this Court. That has not been done. It may not now be appropriate to direct the statutory authority to reconsider the said issue at this distance of time, especially W.P.(C).24801/09 10 taking note of the contents of Ext.P4 representation, wherein the 1st respondent had taken care to highlight that Smt.Sunitha had already secured appointment in the Agricultural Co-operative Society at Mulangu. I have also perused Ext.P18 argument notes submitted by the petitioner before the Registrar and I do not find any specific allegation that the relinquishment allegedly given by Sunitha was a fabricated one. At any rate, fruitful prosecution of the said contention by the petitioner would obviously have been possible only with Sunitha on the party array. That has not been done. 17. In the ultimate analysis, the question is whether this Court sitting in judicial review should interfere with the findings of fact by two statutory authorities and whether any injustice has been caused to the petitioners/Society by reason of the direction contained in Ext.P20 and P23. No doubt, certain humanitarian considerations have been weighed with the statutory authorities. It cannot be said that Public authorities should be insensitive to such considerations. W.P.(C).24801/09 11 For all these reasons, I do not find any grounds to interfere with Exts.P20 and P23. Writ petition is bereft of merit and hence dismissed. V.GIRI, Judge mrcs