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2017 DIGILAW 986 (KER)

Parappa Co-Operative Urban Society Ltd. v. Joint Registrar of Co-Operative Societies (General)

2017-07-05

DEVAN RAMACHANDRAN

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JUDGMENT : 1. Called into question, in this writ petition, is an order issued by a competent statutory Authority – the Joint Registrar of Cooperative Societies, withdrawing an earlier order issued by the same Authority, ostensibly under the dictate of the vigilance and Anti Corruption Bureau. The petitioner asserts, which ironically the Authority also supports, that the earlier order, sought to be reneged by the order impugned herein, was validly issued under powers vested in the Joint Registrar by the Kerala Co-operative Societies Act and he alleges that it is sought to be withdrawn on the bidding of an Authority who has no reason or power to interject in matters under the said Act. 2. A woodcut of the relevant facts as below would place the contentions of the parties herein in perspective. 3. The petitioner claims to be the President of Parappa Cooperative Urban Society Ltd., Kasaragod. According to the petitioner, the Society was registered in 2002 and is classified as a Primary Co-operative Society. He says that it was initially categorized as Class II and that on account of the increasing working capital, deposits, profit etc., the Society was reclassified as Class I category, which is discernible from Ext.P2 order dated 10.09.2014 issued by the respondent - Joint Registrar of Cooperative Societies. 4. The petitioner submits that on the Society being categorized as Class I, as per the staff pattern applicable to it and as per the provisions of the Kerala Co-operative Societies Act (for short, 'the Act'), only one post of peon was sanctioned. The managing committee of the bank, the petitioner says, by a resolution dated 18.08.2014 requested the respondent – Joint Registrar to sanction two posts of peon instead of one by surrendering one post of Junior Clerk because the Society required more sub-staff to meet the loanees to facilitate effective recovery and for such other attendant purposes. Based on this request, it appears that the respondent - Joint Registrar issued orders modifying the staff pattern and granting an additional post of peon by cancelling one post of Junior Clerk, by order dated 10.09.2014, a copy of which has been produced and marked as Ext.P2. The petitioner says that subsequent to this order, the bank initiated the process of appointment to the post of peons by inviting applications through publication in newspapers and that a certain Mr. The petitioner says that subsequent to this order, the bank initiated the process of appointment to the post of peons by inviting applications through publication in newspapers and that a certain Mr. Sajay M.J. was appointed to the additional post of peon on 05.11.2014, after a written examination was conducted by an independent agency, the said Sajay coming out as the first rank holder in the said process. 5. The petitioner says that much later, respondent – Joint Registrar abruptly issued an order dated 15.12.2015 cancelling the additional post of peon that was earlier sanctioned by him through order dated 10.09.2014 and directed that the person appointed against it be terminated from service. This order has been produced on record and marked as Ext.P6. The petitioner alleges that Ext.P6 order is illegal and unlawful and that it has been issued by the respondent - Joint Registrar without authority. 6. I have heard Sri. P.N. Mohanan, learned counsel for the petitioner and the learned Government Pleader. 7. I have examined the order impugned in this writ petition, namely, Ext.P6. It is clear from the said order that the respondent - Joint Registrar has issued the same on the basis of a letter issued by the Director of Vigilance and Anti Corruption Bureau. However, the details of the said letter is not discernible from Ext.P6 but it is stated therein that in an inspection conducted by the Vigilance and Anti Corruption Bureau, the allotment of additional post of peon to the Society was found irregular and improper. Ext.P6 order also indicates that the Director of Vigilance and Anti Corruption Bureau has, in his letter, directed that the additional post of peon be cancelled and that the person appointed against it be terminated from service. It is on the basis of these directions contained in the letter issued by the Vigilance and Anti Corruption Bureau that Ext.P6 order has been issued by the respondent – Joint Registrar. 8. Sri. P.N. Mohanan, the learned counsel for the petitioner contends that Ext.P6 order is bad because it has been issued without valid reasons. According to the learned counsel, the Joint Registrar could not cancel the post of peon earlier granted to the Society merely on the basis of the objections raised by the Vigilance and Anti Corruption Bureau. 8. Sri. P.N. Mohanan, the learned counsel for the petitioner contends that Ext.P6 order is bad because it has been issued without valid reasons. According to the learned counsel, the Joint Registrar could not cancel the post of peon earlier granted to the Society merely on the basis of the objections raised by the Vigilance and Anti Corruption Bureau. According to him, the respondent did not issue any notice to the Society before Ext.P6 was issued and that the order terminating the person appointed against such vacancy is illegal and in violation of right of the Society to appoint and the right of the incumbent to be appointed. 9. Sri. P.N. Mohanan, learned counsel, referring to the provisions of the Act, contends that the staff pattern of the Society is prescribed in appendix III of the Act. He says that as per Rule 188 of the Kerala Co-operative Societies Rules (for short, 'the KCS Rules'), every Society can seek change in the staff pattern available in appendix III with the prior permission of the Joint Registrar. The said Rule reads as under: “188. Staff Pattern: Every Society shall adopt the staff pattern indicated in appendix III to these rules, according to the type and class to which it belongs: Provided that where any society cannot adopt such staff pattern due to its financial position, the members of the committee may work in an honorary capacity in lieu of appointing any paid employee: Provided further that where any society is in need of any change in the pattern of staff including the scale of pay under special circumstances the same may be made by the society with the prior approval of the Registrar of Co-operative Societies.” 10. Sri. P.N. Mohanan, pointedly asserts that it is on the basis of Rule 188 that the Society had applied for change in its staff pattern which was validly granted by the respondent – Joint Registrar and once such permission was granted and a valid appointment process initiated and completed by the Society to make appointment to the post of peon as per revised staff pattern, Ext.P6 order could not have been issued by the respondent and that it was impermissible for him to withdraw the sanction earlier granted under Rule 188 modifying the staff pattern. 11. 11. The learned Government Pleader, referring to the counter affidavit filed on behalf of the respondent – Joint Registrar, admits that Rule 188 does vest with the Joint Registrar the power to modify the staff pattern, if it is so necessary. He says that it is true that the petitioner-society was allowed an additional post of peon by reducing a post of Junior Clerk as per the orders of the Joint Registrar. According to him, that being so, the Joint Registrar, while issuing Ext.P6, has only followed the orders issued by the Director of Vigilance and Anti Corruption Bureau and not because he has found that his earlier orders granting the variation at the staff pattern was in any manner wrong. 12. I have considered the various contentions of the learned counsel and I have evaluated the pleadings on record. It is certain from the material before me that the Society was allowed by the respondent – Joint Registrar modification to its staff pattern by adding a post of peon, consequently reducing a post of Junior clerk, by a valid order under a legally vested jurisdiction available to him in Rule 188 of the KCS Rules. The only reason why the Joint Registrar could have withdrawn such variation is if the Society had misrepresented in any manner in obtaining such variation or if the order issued by him was found illegal or incorrect through a process of law. 13. In the case at hand, no one has a case that the original order of the respondent – Joint Registrar granting variation of the staff pattern was in any manner illegal, incorrect or perverse. Even the respondent, in his counter affidavit, concedes that the original order was validly issued. The sole reason attributed by the respondent in issuing Ext.P6 is that he was so directed by the Vigilance and Anti Corruption Bureau. 14. I am afraid that this stand of the respondent is completely unacceptable and untenable because nowhere in the provisions of the applicable law does one find the Director of Vigilance and Anti Corruption Bureau to have the power or competence to make such dictations or orders to the Joint Registrar of Co-operative Societies. 14. I am afraid that this stand of the respondent is completely unacceptable and untenable because nowhere in the provisions of the applicable law does one find the Director of Vigilance and Anti Corruption Bureau to have the power or competence to make such dictations or orders to the Joint Registrar of Co-operative Societies. If the Vigilance and Anti Corruption Bureau had any information that the original order was not correct, then it was up to them to initiate and pursue permissible remedies before the competent Authorities rather than dictating to the respondent – Joint Registrar to cancel orders issued by him validly under the provisions of the Act and Rules. The action of the respondent – Joint Registrar in cancelling his earlier orders mechanically on the dictation of the Director of the Vigilance and Anti Corruption Bureau also is incomprehensible and without any coherent reason. I cannot, therefore, find favour to support Ext.P6, specially in view of the reasons stated therein, for cancellation of the earlier orders granting variation of the staff pattern of the Society. This is more so because nothing has been placed on record to show why the earlier order of the Joint Registrar modifying the staff pattern is bad or illegal as stated in Ext.P6. In such circumstances and for the reasons recorded, I have no other option but to allow this writ petition and to quash Ext.P6 order and I do so. This writ petition is thus allowed.