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2017 DIGILAW 809 (KER)

Andrews Varkey v. Kalloorkkad Farmers Service Co Operative Bank Ltd

2017-05-26

DEVAN RAMACHANDRAN

body2017
JUDGMENT Devan Ramachandran, J. 1. A very interesting scenario has been presented in these two writ petitions. The petitioner is a member of the first respondent Kalloorkkad Farmers Service Co- operative Bank Ltd. and he claims that the said Society has illegally resolved to appoint a certain Sri..K.T.Mathaikunju (sixth respondent in W.P.(C)No. 6970/2016) as its Managing Director in violation of the applicable provisions contained in the Kerala Co- operative Societies Act and Rules. 2. I see that the hypostasis of the petitioner's submissions is on Rule 185A of the Kerala Co-operative Societies Rules, 1969 ('the Rules' for short), which provides that 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 and expertise, by way of deputation or on contract basis for a specified period not exceeding five years. The petitioner says that the proviso to Rule 185A prescribes that this benefit is not available to a society which is engaged in banking business. He says that the respondent Society, which is a Primary Farmers Co- operative Society under the definition contained in Section 2(oaa) of the Kerala Co-operative Societies Act, 1969 ('the Act' for short) is not a banking company and, therefore, that appointment by way of deputation or on contract can be done, but only as per the provisions contained in Rule 185A and that too with the prior approval of the Registrar. 3. The petitioner alleges that the appointment of Sri..K.T.Mathaikunju has been effected by the society without any legal sanction since prior approval of the Registrar was not obtained. He has thus assailed the appointment of Sri.K.T.Mathaikunju as well as two other orders of the Government which ratifies the resolution of the Society, as being illegal and unlawful. 4. These two cases involve similar issues and are founded on assertions and contentions that are entwined to each other. I, therefore, propose to dispose of them jointly in this judgment. For ease of reference I treat W.P. (C)No.6790/2016 as the lead case and all references to the parties and documents will be as per the status contained in the said writ petition. 5. I have heard Sri.P.P.Jacob, the learned counsel for the petitioner, Sri.P.V.Baby, the learned counsel for respondents 1, 2 and 6 and the learned Government Pleader for the official respondents. 6. 5. I have heard Sri.P.P.Jacob, the learned counsel for the petitioner, Sri.P.V.Baby, the learned counsel for respondents 1, 2 and 6 and the learned Government Pleader for the official respondents. 6. I have started this judgment by saying that there are very interesting circumstances involved because I see that the primary challenge mounted by the petitioner is against Exhibit P4 order of the Government which effectively grants an exemption to the Society from the rigor of the second proviso to Rule 185A of the Rules. Before going into the merits of these contests and into the validity of the order, I must say that I am unable to understand why the Government should have passed such an order. This is because Rule 185A provides that every society can appoint persons on deputation or on contract for a period not exceeding five years with the prior permission and approval of the Registrar. The first proviso to the said Rule mandates that this privilege cannot be made available to a society engaged in banking business. It is pertinent that the learned counsel for petitioner asserts that the society in question is not engaged in banking business and therefore, it is obvious that even under the rigor of the proviso to Rule 185A the society could have made appointments by way of deputation or on contract since Rule 185A grants such privilege to them subject to prior approval of the Registrar. It is amusing to see that the Government has, without considering these factors, issued Exhibit P4 order mechanically relaxing the rigor of the proviso to Rule 185A, which in my view is completely redundant and superfluous. This is particularly because even when the first proviso to Rule 185A operates, the society could have appointed the sixth respondent by way of deputation or on contract, since I notice that the learned counsel for the petitioner concedes that the society is not engaged in banking business. I, therefore, fail to understand why Exhibit P4 should have been issued and why such exemption should have been granted at all. 7. That being said, I must be cognizant that the specific case of the learned counsel for the petitioner is that appointment of the sixth respondent as the Managing Director of the Society has been done without the prior permission of the Registrar, as is required under the provisions of Rule 185A. 7. That being said, I must be cognizant that the specific case of the learned counsel for the petitioner is that appointment of the sixth respondent as the Managing Director of the Society has been done without the prior permission of the Registrar, as is required under the provisions of Rule 185A. It is ineluctable that with or without the proviso, any appointment on contract and deputation can be done only with the prior approval of the Registrar because Rule 185A prescribes it so inviolably. The learned counsel for the petitioner asserts that there is no prior approval from the Registrar and Exhibit P5 order, under which the Society says that it got such approval, is not an approval in the sense required under Rule 185A but that it is merely a consequential order passed on account of Exhibit P4 Government Order. 8. I have examined Exhibit P5 order with some care. It is true that it does not say anything with reference to the experience or expertise of the sixth respondent but that it only says that his appointment, as resolved by the society on 27.07.2015, is approved with effect from the date of the order. I notice that Exhibit P5 was issued on 30.11.2015. I am told by the learned for the respondents that the sixth respondent was appointed on 01.12.2015 for a period of one year. He, therefore, is vehement in his assertion that the appointment cannot be faulted since every provision of Rule 185A has been taken into account particularly because the approval of the Registrar was obtained prior to the actual appointment of the sixth respondent and since his appointment was only for one year even though the rule permits an appointment up to five years. 9. I find sufficient force in the submission of the learned counsel for the respondents in this regard. Since I have already noticed that Exhibit P4 order of the Government granting exemption to the Society from the first proviso to Rule 185A was unnecessary and completely superfluous and hence, my further examination of the issue will need to be limited as to whether the approval granted by the Registrar in terms of Rule 185A is proper or otherwise. The learned counsel for the petitioner asserts that the sixth respondent does not have experience or expertise and that he is not technically or professionally qualified. The learned counsel for the petitioner asserts that the sixth respondent does not have experience or expertise and that he is not technically or professionally qualified. I do not propose to take an affirmative view in this regard but I must say, at least prima facie, that the sixth respondent, who is admittedly a retired Deputy Registrar of Co-operative Societies, should be viewed to be a person who has got the experience and expertise to deal with situations relating to societies since while in service he was the administrative head of several such societies under the provisions of the Act and Rules. I say nothing more because I am of the view that this is not an issue that I should be concluding upon but it is up to the authorities to consider as and when a contest against his qualifications is raised before them. 10. There is yet another reason why I do not require to go deep into any further evaluation of the disputes in this case. This is because as per Exhibit P5, the sixth respondent's appointment was one year beginning from 01.12.2015. The term under Exhibit P5 obviously, therefore, concluded on 30.11.2016. Of course, I notice the submission of the learned counsel for the petitioner that the sixth respondent is still continuing as the Managing Director, based on subsequent orders passed by the Government akin to Exhibit P5. I do not propose to say anything on this at all because I see that such orders are not in contest in this writ petition. 11. I, therefore, propose to conclude noticing that Exhibit P4 was unnecessary and that Exhibit P5, though not in the manner that it should have been issued under the provisions of Rule 185A, would operate as an order issued by the Registrar approving the appointment of the sixth respondent for a period up to 30.11.2016. 12. If the sixth respondent has been re-appointed and if any further approval has been granted for such appointment by the competent Registrar, it will certainly be up to the petitioner to challenge his appointment on any ground that may be available to him including that no proper approval has been obtained or that the sixth respondent is not technically or professionally qualified or that he does not have the experience or expertise for such appointment. Nothing contained in this judgment will trample or hamper such liberty or right available to the petitioner except that, even going by the assertions of the petitioner the rigor of the first proviso to Rule 185A would not stand in the way of the society attempting or making an appointment by way of deputation or on contract. Of course, if the petitioner is able to establish that the society is engaged in banking business, then, such issues will have to be re-agitated before the competent authority in a proper proceeding. 13. I do not think any further orders are required or desirable in this writ petition taking into account the fact that the appointment of the sixth respondent in terms of Exhibit P5 order of the Registrar terminated on 30.11.2016. I, therefore, dispose of these writ petitions as above leaving open every contention that is available to the petitioner against the appointment of the sixth respondent in future.