Pratheesh Vaman vs Stateof Kerala on 4 April, 2012

[Cites 12, Cited by 0]

Kerala High Court

Pratheesh Vaman vs Stateof Kerala on 4 April, 2012

1.Writ appeal Nos.837/12 and 840/12 are filed by the petitioners in W.P(C).Nos.12395/11 and 12575/11 respectively, which were dismissed by a learned single Judge of this Court by a common judgment rendered on 4.4.2012.

2.We heard the learned senior counsel for the appellants, learned Government Pleader for respondents 1 and 2 and the respective counsel for respondents 3 and 4.

3.The appellants in W.A.837/12 were appointed as Full- time Contingent employees in the third respondent bank as per Ext.P1 memorandum dated 9.2.2008 issued by the Managing Director-in-charge. As can be seen from Ext.P2 minutes, their appointment was ratified by the Board of Directors of the bank that met on 5.5.2008. The 26 appellants in W.A.840/12 were appointed as Part-time contingent employees in the WA.837/12 & 840/12 2 bank by memorandum dated 4.4.2008 issued by the Managing Director-in-charge. Here also, Ext.P2 shows that the appointment of some of the appellants as Part-time contingent employees was ratified by the Board of Directors in their meeting held on 5.5.2008.

4.After the appointments were made, the 4th respondent, a trade union, filed representation dated 3.11.2008 before the Registrar of Co-operative Societies objecting to the appointments. Pursuant to the direction contained in the judgment in W.P(C). 37327/08, after issuing notice to the parties concerned, the Registrar of Co-operative Societies issued order dated 30.4.2009 (Ext.P7 in W.P(C). 12575/11), holding that the appointments were made in violation of the Act, Rules and circular No.18/91. However, he ordered that the bank may continue the appellants as contract appointments/appointments on daily wages, till fresh recruitment is made and appointments are made by the bank in compliance with the statutory provisions.

WA.837/12 & 840/12 3

5.This order was challenged by the appellants by approaching the Government. Though the Government initially rejected the representation by order dated 18.7.2009 (Ext.P10 in W.p(C).12575/11) on the ground of delay, pursuant to the directions of this Court in the judgment in W.P(C).Nos.22401/09 and 31784/09, the matter was re-considered. The Government, thereafter, issued letter dated 31.3.2011 (Ext.P12 in 12575/11), confirming the order of the Registrar. It is in these circumstances the writ petitions were filed, which came to be dismissed by the learned single Judge by the common judgment impugned in these appeals.

6.In the judgment, the learned Judge has come to the following factual findings which are contained in paragraphs 10 to 13 of the judgment:

"10. Exts.P1 and P2 produced in W.P.(C)No.12395 of 2011 disclose that pursuant to resolution No.180 adopted by the Board of Directors of the third respondent bank at its meeting held on 11.1.2008, a notification was published in the notice board of the bank (its head office) on 25.1.2008 inviting applications for appointment to the post of full time contingent staff. Pursuant thereto, the WA.837/12 & 840/12 4 petitioners in W.P.(C)No.12395 of 2011 and others applied. An interview was held on 9.2.2008 and on the same day the petitioners in W.P.(C)No.12395 of 2011 were appointed by the Managing Director. That appointment was ratified by the Board of Directors at its meeting held on 5.5.2008. The said resolution reads as follows:-

"29. Appointment of Full Time Contingent Staff. Considered the memorandum on the subject and noted the contents. Resolved to ratify the actions of the President and the Managing Director of the Bank in terms of Board Resolution No.180 dated 11.01.2008 as regards appointment of eleven Full Time Contingent Staff, as detailed below, after inviting application through publication in Notice Board and conducting interview.

                         Sl.No.                 Name

                            1     D.Udayakumar

                            2     P.Sheeba

                            3     P.S.Krishnalal

                            4     S.Sabeela Beevi

                            5     Pratheesh Vaman

                            6     U.S.Rakhi

                            7     Lekshmy S.Nair

                            8     S.Biju

                            9     K.S.Sudheer

                            10    S.Manoj

                            11    M.Sitheek

It is evident from Exts.P1 and P2 and the resolution adopted by the Board of Directors on 5.5.2008, that the decision to fill up the vacancies of full time contingent employees was taken on 11.1.2008, the notification inviting application was published on the notice board on WA.837/12 & 840/12 5 25.1.2008, an interview was conducted on 9.2.2008 and appointments were made on the same day. It is evident from the materials on record that before the petitioners in W.P.(C)No.12395 of 2011 were appointed, the the notification inviting applications was not published in leading dailies having wide circulation in the area as stipulated in Circular No.18/1991 dated 7.6.1991 and that no written test was conducted by an outside agency.

11. The materials on record also disclose that part time contingent employees, 39 in number, were appointed on various dates in April and May, 2008. The petitioners in W.P.(C)No.12575 of 2011 are 28 out of the 39 part time contingent employees thus appointed in April and May 2008. However, the Board of Directors that met on 5.5.2008 ratified the appointment of only 13 out of the 39 employees. The relevant resolution adopted in that regard is extracted below:-

"30. Appointment of Part-time Contingent Staff.

Considered the memorandum on the subject and noted the contents. Also noted the following aspects specifically.

1. The post of Part-time Contingent Staff did not fall within the purview of Staff Recruitment Rules as approved by Kerala Public Service Commission.

2. The President/Board of the Bank is the appointing authority for the said posts in the Bank which include Sweepers, Cleaners, Watcher/Night Watcher etc. After discussion in the matter the Board noted and resolved as follows:-

1. Noted and ratified the following 13 appointments made by the Bank in the post of Part Time Contingent Staff as per instructions of the President of the Bank.

                              Sl.No.                  Name
                                  1           V.S.Renuka

WA.837/12 & 840/12
                                          6




                               Sl.No.                Name
                                  2          U.S.Dhanya
                                  3          Heldamma
                                  4          Kumari Usha L.
                                  5          V.Gopalakrishnan
                                  6          Mettle Bai
                                  7          N.B.Sheena
                                  8          A.Sobhanakumari
                                 9           P.Kalakumari
                                 10              P.Sailajakumari
                                 11              V.Mini
                                 12              K.K.Babu
                                 13              N.Anitha Kumari

2. The arrangement of posting security staff as night watchmen was reported by the President. The matter of increasing bank robberies and the issues there against in the matter were reviewed at the meeting convened by the Thiruvananthapuram City Police Commissioner on 5.1.2008 in the backdrop of robbery occurred at South Malabar Gramin Bank, Chelambra. Accordingly the subject was placed as an agenda item (No.6) in the Central Banks Conference held on 16.1.2008. The consensus arrived then was that the concerned Board of Management of the Bank shall take necessary action for providing night watchmen in Branches and explore the possibility of implanting modern security devices depending on cost effectiveness and requirement. In accordance with the above President made appointment of Watchmen in Thiruvananthapuram City Branches. The President presented the list of 9 watchmen appointed as Night Watcher in the Part- time Contingent scale in the Thiruvanathapuram City Branches of the Bank. He further suggested that the Local Directors in WA.837/12 & 840/12 7 other Districts excepting Thiruvananthapuram, Kottayam and Kasaragod be authorized to suggest the names of suitable candidates with credibility to be appointed as Watcher/Night Watcher/Part-time Contingent Staff in the District Headquarter Branches of the Bank concerned.

Resolved to ratify the action of the President in having appointed 9 persons as Watcher/Night Watcher/Part- time Contingent Staff in all the City Branches of the Bank of Thiruvananthapuram. Also resolved to authorize the Local Directors of the Bank in the District concerned, excepting Thiruvananthapuram, Kottayam and Kasaragod to suggest the name of a suitable male candidate to be considered for appointment as Watcher/Night Watcher in the scale of Part- time Contingent Staff in the respective District Head Quarter Branch of the Bank.

Resolved to authorize the Managing Director of the Bank to finalise the list of persons to be appointed in the District Head Quarter Branch concerned based on the proposals submitted by the Local Directors of the Bank and to issue appointment orders."

12. The Board of Directors also resolved to ratify the action of the President in having appointed 9 persons as Watcher/Night Watcher/Part-time Contingent Staff in all the City Branches of the Bank of Thiruvananthapuram. The Board of Directors also resolved to authorize the Local Directors of the Bank in the District concerned, excepting Thiruvananthapuram, Kottayam and Kasaragod to suggest the name of a suitable male candidate to be considered for appointment as Watcher/Night Watcher in the scale of Part-time Contingent Staff in the respective District Head Quarter Branch of the Bank. It was pursuant to the said resolution that many among the petitioners in W.P.(C)No.12575 of 2011 were appointed. Before the petitioners in W.P.(C)No.12575 of 2011 were appointed, no notification inviting applications were published in leading dailees and a written test was not WA.837/12 & 840/12 8 conducted by an outside agency as stipulated in Circular No.18/1991 dated 7.6.1991. It is in the background of these admitted facts that the Registrar of Co-operative Societies held in the impugned order that the appointments in question were made without following the procedure prescribed for effecting appointments.

13. As stated earlier, it is relying on Regulation 18 of the Staff Regulations that the petitioners justify their appointment. Regulation 18 of the Staff Regulations of the third respondent bank is extracted below:-

"18. Applications for direct appointment shall be invited by notice on the Notice Board of the Bank or by advertisement in Papers."

Sub-rule (5) of rule 182 of the Kerala Co-operative Societies Rules reads as follows:-

"182(5) In respect of societies and posts not covered by section 80(3)(A) and section 80B of the Act, the appointments shall be made by the committee after conducting the written examination and interview as per the guideline issued by the Registrar."

Sub-rule (5) of rule 182 extracted above, stipulates that except in cases of societies and posts covered by section 80(3)(A) and section 80B of the Act, appointments shall be made by the Managing Committee after conducting a written examination and interview as per the guidelines issued by the Registrar of Co-operative Societies. The guidelines issued by the Registrar of Co-operative Societies at the relevant time were those contained in Circular No.18/1991 dated 7.6.1991, especially paragraph 4 thereof which reads as follows:-

"4. The following procedure shall be strictly followed while making direct recruitments for appointment of employees.

(a) Applications for the posts shall be invited through WA.837/12 & 840/12 9 advertisement in leading dailies having wide circulation in the area.

(b) Selection shall be made only after conducting written test and interview, allotting 100 marks for written test and 20 marks for interview.

(c) The written test shall be conducted by an outside agency.

(d) False numbers should be assigned to the answer scripts.

(e) The conditions with regard to age-limit, qualifications mode of appointment etc., as laid down in the rules framed under Section 80 viz., rules 183, 186, 187 of the KCS Rules shall be strictly followed.

(f) Ten per cent of the vacancies should be reserved for candidates belonging to scheduled castes/tribes."

Further in Circular No.11/99 dated 23.3.1999 the Registrar of Co-operative Societies had stipulated that the notification inviting applications should contain the following details:-

"1. Full name and address of the society.

2. a) Name of the post vacant.

b) Number of vacancies.

c) Scale of Pay.

3. Age limit.

4. a) Educational qualifications.

b) Experience (If necessary)

5. Details regarding reservation.

6. The last date of receipt of application in the society showing the name of the candidate, caste, address, age, educational qualification, experience, if the candidate is eligible to get the benefit of reservation the documents to prove the same, photo, if necessary.

7. If there is written test and interview, the details thereof.

8. Application fee.

9. The address to which applications are to be sent."

WA.837/12 & 840/12 10 It is not in dispute that none of these stipulations were adhered to before the petitioners were selected and appointed. In the light of the statutory provisions contained in sub-rule (5) of rule 182 and the stipulations in the Circulars issued by the Registrar of Co-operative Societies it cannot but be held that the appointments of the petitioners were patently illegal and were liable to be set aside."

7.The correctness of the above factual findings of the learned Judge was not disputed before us. Instead, the contention raised by the learned senior counsel for the appellants was that since the amendment to the Kerala Co-operative Societies Act, 1969 by Act 1 of 2000, the jurisdiction to entertain a dispute in the nature of the one raised by the 4th respondent was only with the Co-operative Arbitration Court and that therefore, the order passed by the Registrar, invalidating the appointments made, is without jurisdiction. He also contended that consequently, the order passed by the Government confirming the order of the Registrar is also without jurisdiction. In support of this contention, learned senior counsel placed reliance on the provisions of section 64 of the Kerala Co-operative Societies Act and the WA.837/12 & 840/12 11 judgments of this Court in P.S.Ravendran v. State of Kerala [2007 (3) KLT 558] and Cheranallur Service Co-operative bank Ltd. v. State of Kerala [2012 (3) KHC 834]. Senior counsel also referred to the judgment of the Apex Court in Commissioner of Income Tax v. Chhabil Dass Agarwal [(2014) 1 SCC 603] to canvass the point that when alternate remedy is available before a statutory forum, a writ petition should not have been entertained.

8.Chhabil Dass Agarwal (supra) dealt with the entertainment of a writ petition by a High Court when statutory remedies are available and the Apex Court had only re-iterated the well settled legal principle that when statutory remedies are available, the writ courts shall not, ordinarily, entertain the writ petition. However, in this case, this Court did not entertain a writ petition ignoring the statutory alternate remedies. Instead, the contention is that the Registrar has entertained a dispute without jurisdiction and challenging the order passed by the Registrar and the Government confirming the same, the writ petitions were filed by the appellants WA.837/12 & 840/12 12 themselves. Therefore, the principles laid down by the Apex Court in the above judgment do not have any relevance in so far this case is concerned.

9.In so far as the other contention raised is concerned, we re-iterate that there is no challenge at all against the factual findings contained in paragraphs 10 to 13 of the judgment under appeal and no arguments in that behalf were raised. A bare reading of those findings discloses the manner in which the appointments in question were made by the employer in violation of the provisions of the Act, Rules and the binding circular issued by the Registrar of Co-operative Societies. In the light of the above admitted facts, the question is whether this Court should interfere with the order passed by the Registrar and hold that the 4th respondent should move afresh before the Co-operative Arbitration court.

10.Law is settled that when the result of the interference of a writ court is the revival of an illegality, the court will not interfere and will WA.837/12 & 840/12 13 deny the relief of certiorari. It is also settled that even if the order passed by an authority is irregular for any reason, when justice is the end result of the order, the discretionary relief in a writ court will be declined. Following the relevant precedent of the Apex Court, this position has been re-iterated by a Division Bench of this Court in Rameshan v. Jayavally [2007 (2) KLT 325] where this Court has held thus:

"12. However, our conclusion on the above issue does not conclude the dispute, if we accept the contention of the appellant on point No. 2. As we have already noted, according to the quashing of Ext.P5 and Ext.P7 would result in restoration of the orders of the Educational Authorities declining approval to his appointment which is per se illegal for other reasons and therefore we should restrain ourselves from exercising power under Art.226 of the Constitution of India. Counsel made reference to various authorities in support of the above proposition canvassed by him. He has referred to the judgment of the Supreme Court reported in Venkateswara Rao v. Government of Andhra Pradesh (AIR 1966 SC 828), wherein it has been observed as follows:

"If the High Court had quashed the said order, it would have restored an illegal order - it would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samithi. The High WA.837/12 & 840/12 14 Court, therefore, in our view, rightly refused to exercise its extraordinary discretionary power in the circumstances", This was followed by the Andhra Pradesh High Court in the case reported in M.Padmanabha Iyyengar v. Government of A.P. (AIR1990 A.P.357) and held as follows:

" It must also be remembered that the remedy under Art. 226 is a discretionary one. The court is not bound to interfere merely on the establishment of an irregularity or illegality. The court must further be satisfied that such interference is called for to meet, or to further, the orders of justice. If by interfering in the matter the interests of justice are going to suffer, this Court will withhold its arm: (See Sangram Singh v. Election Tribunal, Kotah (AIR 1955 SC 425) and Venkateseara Rao v. Government of Andhra Pradesh ( AIR 1966 SC

828). Having regard to the totality of the circumstances, we do not think that this court should interfere and quash the Inquiry under S.5A."

Still later in the case of Jagan Singh v. State Transport Appellate Tribunal (AlR 1980 Raj. 1, it has been held as follows:

"As we have already pointed out above, the effect of setting aside the impugned order passed by the Tribunal by a writ of certiorari would be restoring an invalid and illegal order passed by the Regional Transport Authority. Reference may also be made to G.Venkateswara Rao v. Government of Andhra Pradesh (AIR 1966 SC 828)."

Making reference to R. v. Garland ((1970) 5 QB 269), it WA.837/12 & 840/12 15 was contended that even in issuing writs of mandamus, the same principle is followed and that if the effect of issuing mandamus is going to be highly prejudicial, as where it would enable trustees to evade the discharge of their duties, a court of equity will not issue the writ. These judgments were followed by a Division Bench of this Court in the case reported in Koya v. State of Kerala (1992 (2) KLT 194), where it has been held as follows:

"It is now well settled that if an order of an authority is illegal or without jurisdiction, it need not be quashed by the High Court under Art. 226 of the Constitution of India if such action would result in restoration or revival of another order, which is also bad."

On this reasoning, this Court concluded in the following terms:

"Following the principles laid down by the Supreme Court in Venkateswara Rao v. Government of Andhra Pradesh (AIR 1966 SC 828) for exercise of discretion, we hold that this is not a fit case for quashing Ext.P5 order of the Government even if it was without jurisdiction for, such quashing would restore Ext.P4 order of the Wakf Board which is bad for other reasons. This is therefore, not a fit case for exercising discretion to quash Ext.P5."

Counsel also made reference to the judgment in Mohammad Swallieh and Ors. v. Third Addl. District Judge, Meerut & Anr. ((1988)1 SCC 40). Paragraph 7 thereof is extracted below for reference:

"It was contended before the High Court that no appeal lay from the decision of the Prescribed Authority to the District Judge. The High Court accepted this contention.

WA.837/12 & 840/12 16 The High Court finally held that though the appeal laid (sic no appeal lay) before the District Judge, the order of the Prescribed Authority was invalid and was rightly set aside by the District Judge. On that ground the High Court declined to interfere with the order of the learned District Judge. It is true that there has been some technical breach because if there is no appeal maintainable before the learned District Judge. in the appeal before the learned District Judge, the same could not be set aside. But the High Court was exercising its jurisdiction under Article 226 of the Constitution. The High Court had come to the conclusion that the order of the Prescribed Authority was invalid and improper. The High Court itself could have set it aside. Therefore in the facts and circumstances of the case justice has been done though, as mentioned hereinbefore, technically the appellant had a point that the order of the District Judge was illegal and improper. If we reiterate the order of the High Court as it is setting aside the order of the Prescribed Authority in exercise of the jurisdiction under Art.226 of the Constitution then no exception can be taken. As mentioned hereinbefore, justice has been done and as the improper order of the Prescribed Authority has been set aside, no objection can be taken."

We were also referred to the Supreme Court judgment in the case reported in Roshan Deen v. Preeti Lal (2002 (1) KLT (SC) (SN) 43 = AIR 2002 SC 33), where it has been held as follows:

" Time and again this Court has reminded that the power conferred on the High Court under Arts.226 and 227 of the Constitution is to advance justice and not to thwart it, (vide State of Uttar Pradesh v. District Judge, Unnao & Ors., (AIR 1984 SC 1401). The very purpose of such WA.837/12 & 840/12 17 constitutional powers being conferred on the High Courts is that no man should be subjected to injustice by violating the law. The look out of the High Court is, therefore, not merely to pick out any error of law through an academic angle but to see whether injustice has resulted on account of any erroneous interpretation of law. If justice became the byproduct of an erroneous view of law the High Court is not expected to erase such justice in the name of correcting the error of law."

We were also referred to a Division Bench of this Court in W.A.No.2430 of 2002 in which the aforesaid judgment of the Supreme Court has been followed and it was held that the court cannot erase justice done in the name of correcting error of law."

11.Though it is true that the judgments cited by the learned senior counsel to support the contention that the dispute should have been raised before the Co- operative Arbitration Court, in the facts of this case, we feel this Court will not be justified in shutting our eyes to the admitted illegalities and allow the writ petition on a technicality resulting in the revival and continuance of the illegality already committed.

12.Learned senior counsel then contended that since the dispute was entertained by the Registrar, the WA.837/12 & 840/12 18 appellants lost the opportunity to canvass the inapplicability of circular No.18/91 in so far as the posts to which the appellants are appointed. First of all, we fail to understand how that entertainment of the dispute by the Registrar could have resulted in the appellants losing opportunity to raise their contentions. In any case, we decline to entertain this plea for the reason that such a dispute was not raised by the appellants either before the Registrar, the Government or before the learned single Judge. Therefore, we are not inclined to entertain this contention raised at this belated stage for the first time.

We, therefore, do not find any merit in the contentions raised. The appeals are devoid of merit and are therefore dismissed.

Sd/-

ANTONY DOMINIC, Judge.

Sd/-

ANIL K.NARENDRAN, Judge.

kkb.

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