Mattancherry Mahajenic Co-op. Urban Bank Ltd. , Kochi, rep. by its General Manager v. N. Girija
2012-04-02
BABU MATHEW P.JOSEPH, C.N.RAMACHANDRAN NAIR
body2012
DigiLaw.ai
Judgment :- Ramachandran Nair, J. 1. This Appeal is filed against the judgment of the learned Single Judge upholding the direction issued by the Joint Registrar directing appellant’s society to pass a Resolution requesting the Government to consider first respondent’s application for relaxation of age limit for appointment as an Attender in the dying-in-harness Scheme provided under Rule 188A of the Kerala Co-operative Societies Rules (‘the Rules’ for short). We have heard counsel for the appellant, counsel for the first respondent and also the Government Pleader for other respondents. 2. The facts leading to the Writ Appeal are as follows:- One Mr. Radhakrishnan, who was Attender in the Appellant’s Society died in service. First respondent was living with him and was dependant on him for her livelihood, though she was married to a person, who is said to be sick and unable to earn his livelihood. Consequent upon the death of the brother on whom first respondent was dependent for livelihood, she applied to the appellant for appointment under the dying-in-harness scheme as provided under Rule 188A of the Rules. Since no action was taken by the Society, firs respondent applied to the Joint Registrar, who taking into account the fact that the first respondent is over aged, directed the Society to pass appropriate resolution and send to the Government for age relaxation under Rule 181 of the Rules for appointment of the first respondent. Since the Society still did not take any steps, first respondent filed Writ Petition, which was allowed by the learned Single Judge directing the Society to comply with the direction issued by the Joint Registrar. It is against this judgment Appeal is filed by the Society mainly contending that Rule 181 has no application for considering the application for relaxation of age. Besides, counsel for the appellant submitted that factual allegations made are also incorrect inasmuch as other family members are not depending upon the first respondent for their livelihood. 3. After hearing both sides on the factual issue, we notice that even in the additional affidavit filed by the appellant it is stated that first respondent has two unmarried sisters, one is a sick person and the other is a blind person and all were living together with the first respondent along with the deceased brother who was unmarried.
3. After hearing both sides on the factual issue, we notice that even in the additional affidavit filed by the appellant it is stated that first respondent has two unmarried sisters, one is a sick person and the other is a blind person and all were living together with the first respondent along with the deceased brother who was unmarried. On the whole, the first respondent’s claim that everybody in the family depended on the deceased who looked after them by working as an Attender in appellant’s Society appears to be true. So much so, on the factual claim for compassionate appointment raised by the first respondent, we do not think there is any scope for this Court to reconsider or come to a finding contrary to the claim made by the first respondent and approved by Joint Registrar. In our view, the case of the family of the deceased employee is a unique one where everybody is sick or disable and remains unmarried living under the same room. 4. The next question raised by counsel appearing for the appellant is that Rule 181 of the Rules has no application so far as the issue raised, that is, relaxation of age in the case of particular applicant concerned. Rule 181 of the Rules is extracted hereunder for easy reference: “181. Power to exempt from Rules.—The State Government may, by general or special order and subject to such conditions as they deem fit, exempt any registered society or class of such societies from any of the provisions of these rules or may direct that such provisions shall apply to such society or class of societies with such modifications as may be specified in the order”. 5. counsel for the appellant contended that orders of exemption contemplated under Rule 181 are general orders or special orders to be applied to a Class of societies and not with reference to specific claim by a person. We are unable to accept this contention because the powers of the Government under Section 181 has to be considered with reference to the purpose and object for which it is provided. It may so happen that the application of Rules without relaxation may work injustice or the Rules may not even provide procedure or solution to problems which are unique in nature.
It may so happen that the application of Rules without relaxation may work injustice or the Rules may not even provide procedure or solution to problems which are unique in nature. Compassionate employment itself is an exemption to general rule of selection and appointment of employees on competitive basis. However, the conditions of Rule 188A providing for compassionate employment to a dependent of deceased employee are specific in regard to relationship, qualification and age limit. We see no reason why the Government should not relax the Rule even in having regard to qualification, of course, keeping in mind that the person appointed will be able to discharge his duties. 6. In this case, the first respondent is qualified to be appointed as an Attender in the place of her deceased brother on whom she was dependent for livelihood. However, she has crossed the age of 40 and hence disentitled to apply for the post in the normal course by virtue of operation of Rule 183 of the Rules. In our view, if the Government cannot exercise their discretion under Rule 181 to relax the age of the first respondent, then, the very objective of giving such a discretionary power to the Government will be defeated. We are of the view that the powers of the Government are very wide in nature and it should be exercised to achieve the purpose and objective of every Rule including Rule 188A. The only limitation of Government’s power is not to go against the provisions of the Act or in other words any Rule prescribed can be modified or relaxed by the Government to meet a given situation. The specific provision under Rule 181 that Government can issue orders in exercise of powers conferred under the said Rule with such modification as may be specified therein means that the Government can vary, modify or relax any Rule not only to any or class of Societies but to a specific situation applicable to any such Society. So much so, we feel the case of individual application such as relaxation of age limit or even dispensation of qualification is permissible under Rule 181 of the Rules. 7.
So much so, we feel the case of individual application such as relaxation of age limit or even dispensation of qualification is permissible under Rule 181 of the Rules. 7. In view of the foregoing, we uphold the vie of the learned Single Judge and direct the appellant to comply with the Joint Registrar’s order at the earliest and in any case within two months from the date of receipt of copy of this judgment. In our view, Government should show urgency in the matter because first respondent is already over aged. The Writ Appeal is devoid of any merit and it is dismissed.