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2001 DIGILAW 88 (KER)

Ajitha v. State of Kerala

2001-02-06

K.A.MOHAMED SHAFI

body2001
JUDGMENT K.A. Mohamed Shafi, J. 1. This O.P. is filed for issue of a writ of mandamus forbearing the respondents 2 and 3 from reverting the petitioners to the lower post from the post they are presently holding, directing the 1st respondent to dispose of the appeal and Ext.P5 stay petition and to issue a writ of certiorari quashing Exts.P4 and P6 orders. 2. Petitioners 1 to 3 and the 4th respondent were selected and appointed by the 3rd respondent Bank on 14-3-1983 as per Ext.P1 resolution and Ext.P2 appointment order. According to the petitioners, a seniority list as on 1-1-1987 was prepared by the 3rd respondent and since the petitioners were ranked below the 4th respondent in the seniority list, they objected and accordingly Ext.P3 seniority list was published by the Bank as on 31-12-1989 showing the seniority of the petitioners and the 4th respondent correctly being serial Nos. 18, 19, 20 & 22 respectively. The petitioners contended that though the seniority of the petitioners and the 4th respondent was correctly shown in Ext.P3, the 4th respondent raised objections against Ext.P3 seniority list before the Joint Registrar passed Ext.P4 order in that representation on the basis of the direction of this court in the order dated 21-10-1992 in O.P.No. 13534/92 filed by the 4th respondent. Though the petitioners preferred appeal before the Government against Ext.P4 order and filed Ext.P5 stay petition, no order is passed by the Government either in the appeal or in Ext.P5 petition. In the meanwhile the petitioners were promoted to higher post basing Ext.P3 seniority list and since the petitioners feared that they will be reverted on the basis of Ext.P4 order, they have filed the above O.P. seeking direction to the Government to dispose of the appeal and Ext.P5 stay petition expeditiously and directing respondents 2 and 3 not to revert the petitioners to a lower post from the posts presently held by them. 3. During the pendency of the above O.P. by Ext.P6 order dated 2-2-1994 the Government found the objections raised by the petitioners against Ext.P4 order are devoid of any merits and dismissed the appeal. Therefore, the petitioners amended the O.P. by incorporating the prayer to quash Ext.P6 order. 4. 3. During the pendency of the above O.P. by Ext.P6 order dated 2-2-1994 the Government found the objections raised by the petitioners against Ext.P4 order are devoid of any merits and dismissed the appeal. Therefore, the petitioners amended the O.P. by incorporating the prayer to quash Ext.P6 order. 4. The petitioners have contended that the petitioners and 4th respondent were appointed on the basis of the rank list prepared by the 3rd respondent in accordance with the marks secured by them in the written test and interview and Ext.P2 appointment order dated 14-3-1983 is issued on the basis of the selection list as per the marks secured in the written test and interview and they are entitled to ranking as mentioned in Ext.P2 appointment order. Therefore, according to them, the ranking as given in Ext.P3 seniority list is correct and the revision of the seniority list by the Joint Registrar as per Ext.P4 order reckoning the age of the petitioners and the 4th respondent and giving seniority in accordance with the age of the petitioners and the 4th respondent is absolutely illegal and untenable. They have also contended that there is absolutely no provision either in the Cooperative Societies Act or the Rules framed thereunder or the bye laws of the 3rd respondent Bank to the effect that the age at the time of appointment should be the consideration for seniority as is seen in the regulations of certain other authorities regarding seniority of the employees. 5. The respondents have contended that absolutely no selection list was prepared by the 3rd respondent on the basis of the marks secured by the candidates in the written test and interview and there is absolutely no evidence to show that the appointment as per Ext.P2 order was on the basis of the selection list prepared on the basis of the marks secured in the written test and interview. Therefore, in the absence of any evidence to show that the petitioners are seniors to the 4th respondent, the order passed by the Joint Registrar adopting senior in age as senior in service with respect to the petitioners and the 4th respondent who were appointed in service on the same day as per the same order, has to be accepted as proper and correct and that finding cannot be unsettled at this distant point of time. 6. 6. Even though the petitioners have contended that the petitioners and the 4th respondent were appointed by the 3rd respondent Bank on the basis of a rank list of the candidates prepared as per the marks secured by them in the written test and interview conducted by the 3rd respondent, absolutely no evidence is adduced by the petitioners in support of that contention. The 3rd respondent Bank has not produced any document either before the Joint Registrar while passing Ext.P4 order or before the Government in the appeal preferred by the petitioners against Ext.P4 order or before this court to show that the selection of the petitioners and the 4th respondent for appointment as per Ext.P2 order was on the basis of the selection list prepared by the 3rd respondent on the basis of the marks obtained by the candidates applied for the post in the written test as well as the interview conducted by the 3rd respondent. On the other hand, the 1st respondent has denied the allegation that the 3rd respondent had prepared a rank list of all candidates based on the marks secured by them in the written test and interview and the petitioners were ranked as 1 to 3 and the 4th respondent's rank was 5 in the rank list. 7. Therefore, the contention of the petitioners that the 3rd respondent prepared a rank list for selection of the petitioners, 4th respondent and others who applied for the post on the basis of the marks secured by them in the written test and interview conducted by the 3rd respondent and the petitioners and 4th respondent were appointed to the post as per Ext.P2 appointment order on the basis of that rank list for selection prepared by the 3rd respondent is not sustainable in the absence of any evidence adduced by the petitioners in support of this contention. 8. The petitioners have contended that Ext.P4 order passed by the Joint Registrar revising the earlier rank list prepared by the 3rd respondent and placing the 4th respondent above the petitioners in seniority is absolutely illegal and unsustainable. According to them, the seniority list prepared in the year 1989 as per Ext.P3 should not have been unsettled by the Joint Registrar as per Ext.P4 order dated 14-7-1993. According to them, the seniority list prepared in the year 1989 as per Ext.P3 should not have been unsettled by the Joint Registrar as per Ext.P4 order dated 14-7-1993. They have also contended that the promotion given to the petitioners on the basis of Ext.P3 seniority list is not challenged by anybody including the 4th respondent and therefore, Ext.P4 order passed by the Joint Registrar is absolutely illegal and unsustainable, especially when there is no provision in the Cooperative Societies Act or in the Rules framed thereunder or in the bye laws to treat the senior in age as senior in service and absolutely no malafides or ill motive is alleged against the 3rd respondent Bank in preparing Ext.P3 seniority list. 9. The contention of the respondents is that since the 4th respondent raised objection against Ext.P3 seniority list prepared by the 3rd respondent before the Joint Registrar who is the competent authority under Sec.69 of the Cooperative Societies Act, the Joint Registrar considered the objections and passed Ext.P4 order in accordance with law. 10. The petitioners have contended that Sec.69 of the Cooperative Societies Act with regard to the settlement of disputes by the Cooperative Arbitration Court has no application to the facts of this case and the Registrar has no jurisdiction to decide the dispute regarding seniority inter se between the employees of the society and if at all, Ext.P4 order passed by the Joint Registrar can only be under R.176 of the Cooperative Societies Rules rescinding the resolution passed by the society. 11. The word 'dispute' is defined under Sec.2(i) of the Cooperative Societies Act which reads as follows: " 'dispute' means any matter touching the business, constitution, establishments or management of a society capable of being the subject of litigation and includes a claim in respect of any sum payable to or by a society, whether such claim be admitted or not." 12. Section 69 of the Cooperative Societies Act provides disputes to be decided by Cooperative Arbitration Courts which reads as follows: "69. Section 69 of the Cooperative Societies Act provides disputes to be decided by Cooperative Arbitration Courts which reads as follows: "69. Disputes to be decided by Cooperative Arbitration Courts: (1) Notwithstanding anything contained in any law for the time being in force, if a dispute arises, xx xx xx (c) between the society or its committee and any past committee, any officer, agent or employee, or any past officer, past agent or past employee, or the nominee, heirs or legal representatives of any deceased officer, deceased agent or deceased employee of the society; or xx xx xx such dispute shall be rendered to and decided by the Cooperative Arbitration Court constituted under Sec.70A and no other court or authority shall have jurisdiction to entertain any suit or other proceeding in respect of such dispute." 13. The respondents have contended that the dispute between the petitioners and the 4th respondent with regard to their inter se seniority in service with the 3rd respondent Cooperative Bank squarely come within the ambit of Sec.69(1)(c) of the Act and therefore, the Registrar has got the authority to adjudicate and settle the dispute as provided under Sec.69 of the Cooperative Societies Act. In support of the contention that the Registrar of Cooperative Societies is competent to decide the question of inter se seniority between the employees of the Cooperative Society under Sec.69 of the Act, the counsel for the respondents relied upon the decision in Balachandran v. Deputy Registrar ( 1975 KLT 460 ) wherein a single Judge of this court observed as follows: "The present dispute is only concerned with the question of relative seniority which is a subject touching establishment relating to conditions of service as mentioned under Sec.80 and it is within the competence of the Registrar to resolve in accordance with the principles of law and contract. I therefore hold that the Registrar was competent to decide this dispute." - 14. The counsel for the petitioners submitted that the inter se seniority of the employees of a Cooperative Society will not come within the ambit of dispute as defined in Sec.2(1) of the Cooperative Societies Act and the Registrar of Cooperative Societies has no jurisdiction to adjudicate such dispute under Sec.69 of the Cooperative Societies Act. In support of this contention the counsel for the petitioners relied upon the decisions in Sankara Wariyar v. President, N. Malabar Dist.Coop. In support of this contention the counsel for the petitioners relied upon the decisions in Sankara Wariyar v. President, N. Malabar Dist.Coop. Society Ltd. (1981 KLT SN 179 at SN.Page 99), Mathew K.T. v. The Registrar of Cooperative Societies and others (ILR 1995 (2) Ker.S.N.Case No.14 at S.N.Page 11) and Raghu Nandanan v. Joint Registrar ( 1998 (2) KLT 337 ). 15. In the decision in Sankara Wariyar v. President, N. Malabar Dist. Coop. Society Ltd. (1981 KLT SN No.179 at SN Page 99) it is only held that the bye laws framed by a Society do not get the status of statutory rules and as there was no statutory violation in that case, neither the civil court nor the Registrar has jurisdiction to interfere with the orders of reversion challenged in the disputes pending in arbitration. Therefore, the Registrar has no jurisdiction to adjudicate that issue under Sec.69(1)(c) of the Cooperative Societies Act. The above decision has no application to the facts of this case where the dispute regarding inter se seniority between the employees of the Society is the matter of consideration. 16. In the decision in Mathew K.T. v. The Registrar of Cooperative Societies and others (ILR 1995 (2) Ker. SN Case No.14 at SN page 11) this court has held that punishment imposed on an employee of the Society after due enquiry will not be a dispute within the meaning of Sec.69 of the Cooperative Societies Act. Therefore, the above decision is also of no help to the petitioners herein. 17. In the decision in Raghu Nandanan v. Joint Registrar, ( 1998 (2) KLT 337 ) this court has held that a decision to cancel a recruitment test will not relate to the business of the society within the meaning of Sec.69 of the Cooperative Societies Act and the Joint Registrar has no jurisdiction to decide a dispute of that nature. Therefore, the above decision is also not applicable to the facts of this case. 18. It is clear that the decision reported in 1975 KLT 460 referred to above and relied upon by the counsel for the respondents is rendered by this court on consideration of identical issue as to whether the dispute regarding inter se seniority between the employees will come within the ambit of Sec.69 of the Cooperative Societies Act and whether the Registrar is competent to decide that issue. I am in respectful agreement with the observations made by the learned single Judge in 1975 KLT 460 to the effect that the dispute regarding interse seniority between the employees of the society is a dispute coming within the ambit of Sec.2(i) of the Cooperative Societies Act and under Sec.69 of the Cooperative Societies Act the Registrar has got jurisdiction to adjudicate the issue. Therefore, the contention raised by the petitioners that the dispute regarding inter se seniority of the employees is not a dispute amenable to Sec.69 of the Cooperative Societies Act, is not sustainable. 19. The counsel for the petitioners submitted that as per Sec.70(1) of the Cooperative Societies Act the awards passed by the Registrar of Coop. Societies under Sec.69 of the Coop. Societies Act are final subject to appeal before the Cooperative Tribunal under Sec.82 of the Act. They have contended that in this case appeal is filed against Ext.P4 order passed by the Joint Registrar before the Government and not before the Cooperative Tribunal and the same is entertained and disposed of by the Government as per Ext.P6 order. Therefore, according to them, the impugned order is passed by the Joint Registrar by exercising powers under Sec.66 of the Cooperative Societies Act and R.176 of the Cooperative Societies Rules and not under Sec.69 of the Act. 20. Section 83(1)(j) of the Cooperative Societies Act provides for appeal before the Government against any order passed by any person exercising the powers of the Registrar under R.176 of the Coop. Societies Rules. Therefore, the petitioners have vehemently contended that the fact that an appeal is preferred before the Government against Ext.P4 order and the Government entertained the appeal and passed Ext.P6 order also establish that Ext.P4 order passed by the Joint Registrar is under R.176 of the Cooperative Societies Rules and not an order passed by exercising the powers under Sec.69 of the Cooperative Societies Act. 21. The respondents have contended that under Sec.87 of the Cooperative Societies Act the orders passed by the Registrar are revisable by the Government. 21. The respondents have contended that under Sec.87 of the Cooperative Societies Act the orders passed by the Registrar are revisable by the Government. Under Sec.69(2)(d) any dispute arising in connection with the employment of officers and servants of the different classes of societies specified in sub-section (1) of Sec.80 including promotion and inter se seniority shall be deemed to be dispute and therefore, except in cases appeal is provided under Sec.82 of the Act, revision is maintainable before the Government with regard to the orders passed by the Registrar of Coop. Societies exercising jurisdiction under the provisions of the Act. They have further contended that even though the petitioners had preferred revision before the Government by styling it as appeal, the same has been considered by the Government and disposed of as revision under Sec.87 of the Act. 22. The mere fact that a revision preferred before the competent authority is wrongly styled as appeal, it will not make the revision an appeal. It is clear from the facts and circumstances of the case that the petitioners preferred appeal before the Government against Ext.P4 order passed by the Joint Registrar in the dispute regarding inter se seniority between the petitioners and the 4th respondent. The objections raised by the 4th respondent against Ext.P3 seniority list is disposed of by the Joint Registrar as per Ext.P4 order and the same is challenged by the petitioners before the Government in appeal and the Government has disposed of the appeal by Ext.P6 order. Under the circumstances, the contention raised by the petitioners that since only appeal under Sec.82 lies before the Cooperative Tribunal against the order passed by the Registrar under Sec.69 of the Coop. Societies Act and as the appeal preferred against Ext.P4 passed by the Joint Registrar is entertained and disposed of by the Government, Ext.P4 order can be treated only as an appealable order passed by the Registrar under R.176 of the Cooperative Societies Rules and not as an order passed under Sec.69 of the Coop. Societies Act, is not sustainable. The petitioners who preferred the appeal before the Government against Ext.P4 order and invited an adverse finding against them cannot turn round and contend that since the appeal preferred by them against Ext.P4 order is entertained by the Government, Ext.P4 should be treated as an order passed under R.176 of the Coop. Societies Act, is not sustainable. The petitioners who preferred the appeal before the Government against Ext.P4 order and invited an adverse finding against them cannot turn round and contend that since the appeal preferred by them against Ext.P4 order is entertained by the Government, Ext.P4 should be treated as an order passed under R.176 of the Coop. Societies Rules and not under Sec.69 of the Coop. Societies Act. 23. In view of the fact that absolutely no evidence is adduced by the petitioners to prove that selection of the petitioners and the 4th respondent was on the basis of the rank list prepared by the 3rd respondent in accordance with the marks secured by the applicants in the written test and interview conducted by the 3rd respondent, the contention of the petitioners that the seniority of the petitioners and the 4th respondent should be fixed in accordance with that alleged rank list is not sustainable. Therefore, the fixation of seniority of the petitioners and the 4th respondent on the basis of the seniority in age on the date of appointment cannot be characterised as illegal, improper or arbitrary. Therefore, the objection raised by the petitioners against Ext.P4 order fixing the seniority of the petitioners and the 4th respondent on the basis of the seniority in age on the date of appointment which appears to be a proper and acceptable norm for fixing seniority of the persons appointed on the same day with the same order, cannot be accepted in the absence of any other rule or law or procedure or bye law stipulating fixation of seniority in any other manner. 24. The further contention of the petitioners that the Government did not consider the objections raised by the petitioners against Ext.P4 order properly in the proper perspective is also not sustainable, as it is clear from Ext.P6 order passed by the Government itself that only after consideration of the entire contentions raised by the petitioners that order is passed by the Government. In view of what is stated above, I find the above O.P. filed by the petitioners challenging Exts.P4 and P6 orders passed in this case is of no merits. Hence the O.P. is dismissed.