Kerala High Court
State Of Kerala vs Sujith M.S on 24 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR.JUSTICE K. BABU
WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943
WA.No.315 OF 2020
AGAINST THE JUDGMENT IN WP(C) 33393/2016(Y) DATED 24.06.2019 OF
HIGH COURT OF KERALA
APPELLANT/S:
1 STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
CO-OPERATION DEPARTMENT,GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 THE REGISTRAR OF CO-OPERATIVE SOCIETIES,
OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES,
THIRUVANANTHAPURAM-695 001.
BY GOVERNMENT PLEADER
RESPONDENT/S:
1 SUJITH M.S.
AGED 25 YEARS,M.S.BHAVAN,PONVILA,AYIRA
P.O.,THIRUVANANTHAPURAM,PIN-695 502,NOW WORKING AS
GUES T ROOM KEEPER,KERALA STATE CO-OPERATIVE
AGRICULTURAL AND RURAL DEVELOPMENT
BANK,THIRUVANANTHAPURAM.
2 AJIN F.DAS,
KUTHVELI HOUSE,ARAYOOR P.O.,PIN-695 122.
NOW WORKING AS GUEST ROOM KEEPER,KERALA STATE CO-
OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT
BANK,THIRUVANANTHAPURAM.
3 SUJITH P.S.,
PERINGAYIL HOUSE,CHEROOR P.O.,
THRISSUR-680 008.NOW WORKING AS GUEST ROOM
KEEPER,KERALA STATE CO-OPERATIVE AGRICULTURAL AND
RURAL DEVELOPMENT BANK,THIRUVANANTHAPURAM.
4 RIJU H.S,
REJI NIVAS,CHENKAL P.O.,PIN-695 132. WORKING AS GUEST
WA.No.315 OF 2020
2
ROOM KEEPER,KERALA STATE CO-OPERATIVE AGRICULTURAL
AND RURAL DEVELOPMENT BANK,THIRUVANANTHAPURAM.
5 MANOJ KUMAR S.L.,
ANIZHAM,KOOTTAMVILA ROAD,
VATTIYOORKAVU P.O.,THIRUVANANTHAPURAM-13,NOW
WORKING AS GUEST ROOM KEEPER,KERALA STATE CO-
OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT
BANK,THIRUVANANTHAPURAM.
6 D.SURESH KUMAR,
ANANTHASREE,I.P.11/1128,NEMOM P.O.,
THIRUVANANTHAPURAM-695 020,NOW WORKING AS GUEST
ROOM KEEPER,KERALA STATE CO-OPERATIVE AGRICULTURAL
AND RURAL DEVELOPMENT BANK,THIRUVANANTHAPURAM.
7 CINIMOLE P.S.,
PEECHOLY HOUSE, PUDURKKARA P.O., AYYANTHOLE,
THRISSUR-680 003. NOW WORKING AS GUEST ROOM KEEPER,
KERALA STATE CO-OPERATIVE AGRICULTURAL AND RURAL
DEVELOPMENT BANK, THIRUVANANTHAPURAM.
8 KERALA STATE CO-OPERATIVE AGRICULTURAL AND RURAL
DEVELOPMENT BANK,
REPRESENTED BY ITS GENERAL MANAGER, LAND BANK
BUILDING, STATUE, THIRUVANANTHAPURAM-695 001.
R1 BY ADV. SRI.N.ANAND
R2-7 BY ADV. SRI.M.RAJENDRAN NAIR
R2-7 BY ADV. SMT.M.SANTHY
R8 BY ADV. SMT.NISHA GEORGE
SRI.K.S.MOHAMMED HASHIM, SPL.GP(CO-OP)
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 09-03-2021,
THE COURT ON 24-03-2021 DELIVERED THE FOLLOWING:
WA.No.315 OF 2020
3
ALEXANDER THOMAS & K.BABU, JJ.
=========================
Writ Appeal No. 315 of 2020
(Arising out of the judgment dated 24.06.2019 in
W.P.(C).No.33393/2016)
=========================
Dated this the 23rd day of March, 2021
JUDGMENT
ALEXANDER THOMAS, J.
State of Kerala and Registrar of Co-operative Societies, arrayed
as respondent Nos. 1 and 2 in W.P.(C).No.33393/2016, filed by
respondents 1 to 7 herein, have filed the instant writ appeal under
Section 5(i) of the Kerala High Court Rules, challenging the impugned
judgment dated 24.06.2019 rendered by learned Single Judge in the
said writ petition.
2. Heard Sri. Mohammed Hashim, learned Special Government
Pleader for Co-operative societies, appearing for State of Kerala and
Registrar of Co-operative Societies, Sri.N.Anand, learned Advocate
appearing for R1 herein (1 st petitioner), Sri.M.Rajendran Nair,
appearing for respondents 2 to 7 and Smt. Nisha George, learned
Standing Counsel for the Kerala State Co-operative Agricultural and
Rural Development Bank, appearing for R-8. The respondents 1 to 7
WA.No.315 OF 2020
herein have filed the instant W.P.(C).No.33393/2016 with the
following prayers.
"i) Issue a writ of mandamus or such other writ order or
direction, directing the respondents to publish Ext.P8 in the
official Gazette.
ii) Declare that the action of the 3rd respondent in regulating
the petitioners in service as Guest Room Keepers, as per
Ext.P3, is in accordance with law.
iii) Grant such other further reliefs as may be prayed for and
which this Hon'ble Court deems fit in the circumstances
to grant. "
3. The case of the writ petitioners is to the effect that they were
appointed on a temporary basis as Guest Room Keepers in the service
of the respondent Kerala State Co-operative Agricultural and Rural
Development Bank in the year 2014-15 and that they have been
continuing in the post for so many years and that they have not been
regularised. They have approached the respondent Co-operative
Society seeking for regularisation and the Society have considered it
for adopting a resolution for the regularisation and forwarded the
WA.No.315 OF 2020
same to the competent authority, which has been approved through
Ext.P7 order dated 25.02.2016, issued by the State Government,
wherein, the respondent Co-operative Society was directed to take all
steps for regularisation. Further case is that, subsequently the
respondent Co-operative Society framed necessary notification for
being published in the official gazette and forwarded the same to the
Government through Ext.P8 for finalization of the matter in Ext.P7,
but the Government has not taken any action thereon, on account of
an ensuing General Elections and consequential Model Code of
Conduct having come into force then. The plea of the petitioners is
that, now there is no legal bar to consider the plea of the petitioners
for regularisation in terms of Exts.P7 and P8 and that a mandamus
may be issued to the respondent State Government to publish Ext.P8
notification in the official gazette so as to secure the benefit of
regularisation of service to the writ petitioners.
4. The respondent Co-operative Society was then administered
by a Part Time Administrator and their stand then was that steps are
being taken for electing the new Management Committee and the date
of election is 26.06.2019, and consequently, the new Managing
Committee may assume office soon thereafter. The stand of the
WA.No.315 OF 2020
learned Senior Government Pleader, who appeared on behalf of the
official respondents was on the basis of the pleadings in the counter
affidavit, which was to the effect that the subsequent promotion of the
petitioners to the post of 'peons' is irregular and therefore, no further
action can be taken in pursuance to Ext.P8. After hearing all the
parties, learned Single Judge has directed the 1 st respondent, State of
Kerala, to take immediate steps to ensure publication of Ext.P8
notification forwarded to them by the erstwhile Managing Committee
of the Co-operative Society, so that the petitioners can be regularised
in service and it has been made clear that the subsequent promotion
of the petitioners will be made only as per the applicable Rules and
Regulations and adhering to the lawful directions of the competent
authority. It is these directions issued by the learned Single Judge
that is under challenge in the present Writ Appeal filed by the State of
Kerala and the Co-operative Society.
5. One of the main contentions urged before us by learned
Special Government Pleader is to the effect that Ext.P7 is illegal and
improper in as much as the regularisation bye-passing the regular
selection procedure, is illegal and ultravires. The 2 nd contention is to
the effect that the very basis of the directions issued by learned Single
WA.No.315 OF 2020
Judge as per the impugned judgment is Ext.P7 proceedings dated
25.02.2016, said to have been issued by the Secretary to the
Government in the Co-operative department, addressed to the
Registrar of Co-operative Societies and that later the Government has
issued Annexure A-III proceedings dated 14.01.2020, whereby, Ext.P7
proceedings dated 25.02.2016 has been withdrawn by the
Government. Hence, it is pointed out that the very basis of the
directions issued by learned Single Judge which is Ext.P7, stands now
withdrawn by Annexure A-III proceedings dated 14.01.2020, and
therefore, the very claim of the petitioners is impermissible under law.
6. The Special Government Pleader would also place reliance on
the decision of Apex Court in Divisional Manager, Aravali Golf
Club and another vs. Chander Hass and another reported
in 2008 (1) SCC 683, wherein it is held that, ordinarily the power in
the matter of creation and sanction of posts is the exclusive
prerogative of the executive and not that of the Courts and hence, the
directions issued by learned Single Judge to take further steps in
Ext.P8 for creation of posts for regularisation of service of the writ
petitioners and that the said directions of the learned Single Judge in
the impugned judgment is illegal and improper for that reason as well.
WA.No.315 OF 2020
Further reliance is also placed on the dictum laid down by the Apex
Court in State of Karnatakan and others vs. Umadevi and
others 2006 (4) SCC 1. The appellants would also place reliance on
the recent judgment of the Division Bench of this Court rendered in
W.A.No.2084/2018 dated 22.01.2021, wherein, it has been held by
the Division Bench of this Court that regularisation of employees
contrary to the legal principles laid down by the Apex Court in
Umadevi (supra) is illegal and against the law declared by the Apex
Court, and that any order issued by the authorities concerned
contrary to the law declared by the Apex Court in the judgment, is
illegal. Accordingly, this Court has, in the judgment in
W.A.No.2048/2018, has directed the 3 rd respondent therein, the Chief
Secretary to Government of Kerala, that the above said directions
shall be duly taken note of, and that it shall be ensured that no
regularisation shall be permitted contrary to the directions issued by
the Apex Court in Umadevi (supra).
7. Per contra, Sri. M.Rajendran Nair, learned Advocate and Sri.
N. Anand, learned Advocate appearing for writ petitioners/R1 to R7
herein would strongly urge that the action of the State Government in
having issued Annexure A-III dated 14.01.2020, which is after the
WA.No.315 OF 2020
rendering of the judgment by learned Single Judge on 24.06.2019, is
absolutely without any bonafides and has been issued only for ulterior
and extraneous circumstances only to deny the lawful and legitimate
rights and interests of the writ petitioners as disclosed in Ext.P7.
Steps in pursuant to Ext.P7 was also finalized and even the draft of the
publication of Ext.P8 was also prepared and all what was required was
only the formal publication of Ext.P8 in the gazette. At that stage,
after courting an adverse judgment in this writ petition and without
even filing a review or a writ appeal at that stage, the State
Government has unilaterally issued Annexure A-III proceedings dated
14.01.2020, mainly because the writ petitioner by then instituted the
contempt of court proceedings before the learned Single Judge for
enforcement of the directions in the impugned judgment herein.
Further that, this Court has to seriously consider whether after having
issued Ext.P7, Government has any jurisdiction to issue Annexure A-
III proceedings, which in substance and essence, would amount to
reviewing and withdrawing the decision at Ext.P7, which is
impermissible since Ext.P7 is an executive order and since the Rules
does not confer any excplicit or implied powers to review or recall an
order like Ext.P7. Special Government would contend that, if that be
WA.No.315 OF 2020
so, very legality and correctness of Ext.P7 proceedings should also be
considered by this Court, especially in the light of the legal principles
laid down by the Apex Court in Umadevi (supra) as well as the
recent judgment of the Division Bench of this Court rendered in
W.A.No.2084/2018 dated 22.01.2021
8. After hearing both sides, we are of the view that, one among
the prime contentions urged by the appellants is on the basis of
Annexure A-III proceedings dated 14.01.2020, whereby, Ext.P7 which
is the very basis of the impugned judgment, has been withdrawn by
the State Government. Ordinarily, we would have relegated the State
Government to seek review before the learned Single Judge.
However, we note that Annexure A-III has been issued on 14.01.2020,
which is after the rendering of judgment by learned Single Judge on
25.02.2016. Therefore, going by the conventional grounds of review,
it cannot be held that subsequent proceedings under Annexure A-III
would amount to discovery of factual aspect, which could not be
brought into notice of this Court earlier despite due diligence of the
parties concerned etc, cannot be applicable to this case. This is so as
that aspect of ground of review would postulate that such factual
aspect would have been in existence at the time when the impugned
WA.No.315 OF 2020
judgment was rendered by the Court concerned. In the instant case,
Annexure A-III was issued after the rendering of the impugned
judgment by the learned Single Judge. But, the fact of the matter is
that, the very basis of the directions issued by the learned Single
Judge in the impugned judgment is Ext.P7, and the said Ext.P7 now
stands withdrawn by Annexure A-III. Further, the contentions
regarding the very legality and correctness of Ext.P7 based on the
legal principles laid down by the Apex Court in Umadevi (supra)
has not been adverted before the learned Single Judge, because those
aspects has not been urged by both parties at the time of rendering
the impugned judgment. In the light of these aspects, we are of the
view that, it may be better in the interest of justice that the matter be
reconsidered by learned Single Judge, instead of the appellate court
now resolving these issues on merits. We say so as it is indisputable
that these vital aspects have never been urged by both sides before the
learned Single Judge and it is only just and fair that the parties urge
their respective rival contentions and the matter is resolved by
learned Single Judge so that both parties will get reasonable
opportunity to urge their respective contentions and the aggrieved
parties can challenge the same in the manner known to law. For these
WA.No.315 OF 2020
reasons, we are of the view that it may not be right and proper for us
to get into the merits of the rival contentions at this stage. However,
we are of the firm view that the matter requires serious
reconsideration and the writ proceedings would thus warrant a remit.
For effectuating such a remit, it is ordered in the interest of justice,
the impugned judgment dated 24.06.2019, rendered by the learned
Single Judge of this Court in W.P.(C).No.33393/2016 will stand set
aside. Consequently it is ordered that W.P.(C). No.33393/2016 will
stand restored to the file for consideration and decision afresh by the
learned Single Judge.
9. Both sides may submit their additional pleadings in the
matter without any further delay. The appellants State Government
and the Registrar of Co-operative Societies, the respondents 1 and 2 in
the writ petition will ensure that their additional pleadings if any are
filed in the above writ petition without any further delay, and for that
purpose, they nee not even wait for the formal issue of certified copy
of this judgment. The writ petitioners as well as the 3 rd respondent in
the writ petition may file their additional pleadings if so required,
without any further delay. Registry will list the writ petition for
hearing preferably before a Court exclusively or mainly dealing with
WA.No.315 OF 2020
hearing matters of W.P.(C) after the reopening of the Court after
summer vacation, i.e. on 31.05.2021. We request the learned Single
Judge to seriously consider the early final disposal of the W.P.(C)
without much delay and within a time limit that is considered
reasonable and appropriate. We make it clear that we have not
entered in to the merits of the rival contentions in this case and the
observations and findings made by us are only to decide as to whether
the matter to be remitted and none of the observations and findings
made herein above shall be even remotely construed as an expression
or opinion on our part regarding the merits and controversy of this
case, which we would like to say, fall within the exclusive power and
domain of the learned Single Judge while disposing the writ petition.
The writ petition is disposed of accordingly.
Sd/-
ALEXANDER THOMAS
JUDGE
Sd/-
K. BABU
JUDGE
uu
25.03.2021
WA.No.315 OF 2020
APPENDIX
PETITIONER'S/S EXHIBITS:
ANNEXURE I A TRUE COPY OF GO(MS) NO.24/2018/CO-OP.
DATED 02/07/2018 BY WHICH RECRUITMENT RULES
ARE APPROVED WITH EFFECT FROM 02/07/2018.
ANNEXURE II A TRUE COPY OF THE GO(MS) NO.41/2018/CO-OP.
DATED 04/12/2018 ALONG WITH THE RECRUITMENT
RULES.
ANNEXURE III A TRUE COPY OF THE LETTER DATED 14/01/2020
ISSUED BY THE FIRST APPELLANT TO THE 2ND
APPELLANT.
ANNEXURE IV A TRUE COPY OF THE LETTER DATED 06/06/2016
ISSUED BY THE 1ST RESPONDENT.
