Rajesh R vs The Preiding Officer, Kerala ...
2021 Latest Caselaw 20848 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
             THE HONOURABLE MR. JUSTICE AMIT RAWAL
 WEDNESDAY, THE 6TH DAY OF OCTOBER 2021 / 14TH ASWINA, 1943
                    WP(C) NO. 20817 OF 2021
PETITIONER/S:

            RAJESH R.
            AGED 45 YEARS
            SON OF RAMACHANDRAN PILLAI,
            BINDU BHAVANAM, MANAMPUZHA P.O, KADAMPANAD SOUTH,
            KOLLAM, PIN-691553.

            BY ADVS.
            B.ASHOK SHENOY
            C.G.PREETHA
            P.S.GIREESH
            ARJUN R NAIK



RESPONDENT/S:

    1       THE PREIDING OFFICER, KERALA CO-OPERATIVE TRIBUNAL
            JAWAHAR SAHAKARANA BHAVAN,
            DPI JUNCTION, THYCAUD P.O,
            THIRUVANANTHAPURAM-695014.

    2       THE PRESIDING OFFICER
            CO-OPERATIVE ARBITRATION COURT (SOUTHERN),
            KAITHAMUKKU PETTA ROAD, NALUMUKKU, PAZHAVANGADI,
            KAITHAMUKKU P.O, THIRUVANANTHAPURAM-695024.

   3.       SASTHAMCOTTA PRIMARY CO-OPERATIVE AGRICULTURAL AND
            RURAL DEVELOPMENT BANK LTD. NO.Q 373,
            SASTHAMCOTTA PO, KOLLAM 690 521,
            REPRESENTED BY ITS SECRETARY.



            GP SRI JIMMY GEORGE


     THIS    WRIT   PETITION    (CIVIL)   HAVING   COME   UP   FOR
ADMISSION ON 06.10.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 WP(C) NO. 20817 OF 2021


                                -2-



                            JUDGMENT

(Dated this the 6th day of October, 2021)

Challenge has been laid to the judgment of the Co- operative Tribunal dated 13.9.2021 (Ext.P9) rendered in Appeal No.42 of 2021, preferred by the 3 rd respondent Society against the award dated 3.3.2021 of the Arbitration court rendered in A.R.C.No.45 of 2017.

2. Succinctly, the facts leading to the filing of the present Writ Petition are that in pursuance to the notification by the Society, the petitioner submitted an application for the post of driver. The petitioner was interviewed and after having undergone the driving test, was selected on temporary basis. The petitioner was issued the relieving order dated 28.8.2016, after having undergone training. The petitioner continued to render the service as driver. However, in the month of August 2015, there was a vacancy of regular post of driver on account of retirement. Steps were taken for absorption of the petitioner by WP(C) NO. 20817 OF 2021

regularising the service. The 3rd respondent, vide resolution No.VI dated 16.1.2016 (Ext.P6) opined to absorb the petitioner on regular service, by regularising his service on receipt of order from the Joint Registrar of Co-operative Societies. The learned counsel for the petitioner submitted that the Joint Registrar Co-operative society, vide letter dated 17.3.2016 vide Ext.P7 addressed to the District Collector for recommendation of regularisation. But nothing happened and in the meantime, an advertisement was published by the Society inviting applications for the post of Driver on regular basis. It is in that background, the petitioner preferred A.R.C.No.45 of 2017 before the Arbitration Court. The Arbitration court, after detailed consideration of the pleadings and the evidence brought on record, found that the society had rightly, by resolution ibid recommended to absorb the petitioner, as he had been rendering service on temporary basis since long and allowed the petition. But the 3 rd respondent challenged the same and the Tribunal reversed the award by taking into WP(C) NO. 20817 OF 2021

consideration the judgment of the Hon'ble Supreme Court in State of Karnataka v. Umadevi (AIR 2016 SC 1866). The order of the Tribunal is not in consonance with the provisions of Rule 182(5) of the Kerala Co-operative Societies Rules, as the posts below the rank of junior clerk are to be filled up by examination and interview and not on any other mode. Temporary employment cannot be permitted to be continued for infinite period. In fact, the Society ought to have taken up the matter with the Government for coming out with the policy for regularisation of the temporary workmen discharging different duties in respect of co-operative societies. The petitioner cannot be thus faulted with in not giving regular employment as his service is found to be in order.

3. I have heard the learned counsel for the parties and appraised the paperbook and of the view that there is no force in the matter.

4. It is a matter of record that appointment of the petitioner was not against the regular vacancy as he was WP(C) NO. 20817 OF 2021

given employment on daily wages. Continuation on daily wages, though have been deprecated many cases, but in the decision rendered in Umadevi (supra), it has been held that in the absence of any policy, the benefit of regularisation vis-a-vis would have a better chance for appointment. Even otherwise, it tantamount to absorption on regular basis through back doors. It is not the case that the petitioner service have been dispensed with but he is continuing as a driver. If at all the respondents had to fill up the regular vacancies, regular process of advertisement could have been initiated permitting the petitioner also to apply, if he had become over-aged.

5. The order of the Tribunal, in my view, is based upon such rationality and does not want any interference under Article 226 of the constitution of India. Even otherwise, the provisions of sub-section 5 of Rule 182 would also not come to the rescue of the petitioner as the initial appointment though was after the interview, but on temporary basis. I do not find any jurisdictional error, WP(C) NO. 20817 OF 2021

illegality or travesty of justice in the order of the Tribunal reversing the order of the Arbitration Court.

Accordingly, this Writ Petition is dismissed.

Sd/-

AMIT RAWAL, JUDGE.

dl/ WP(C) NO. 20817 OF 2021

APPENDIX OF WP(C) 20817/2021

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF CERTIFICATE D NO.03/2017-18 DATED 18.04.2017 ISSUED BY 3RD RESPONDENT TO PETITIONER.

Exhibit P2 TRUE COPY OF LETTER D NO.38/2016-17 DATED 10.08.2016 ISSUED BY 3RD RESPONDENT TO PRINCIPAL, KSACARD BANK INSTITUTE FOR TRAINING MANAGEMENT, KOCHI.

Exhibit P3 TRUE COPY OF RELIEVING ORDER NO.ITM/TI/FIN-17025/2016-17 DATED 12.08.2016 ISSUED BY PRINCIPAL OF KSCARD BANK INSTITUTE FOR TRAINING AND MANAGEMENT, KOCHI.

Exhibit P4 TRUE COPY OF LETTER NO.8/15/R DATED 10.08.2015 ISSUED TO PETITIONER BY ASSISTANT REGISTRAR AND VALUATION OFFICER OF 3RD RESPONDENT WITH ITS TRUE ENGLISH TRANSLATION.

Exhibit P5 TRUE COPY OF NOTICE NO,CRB 8751/2015 DATED 22.12.2015 ISSUED BY JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOLLAM TO 3RD RESPONDENT WITH ITS TRUE ENGLISH TRANSLATION.

Exhibit P6 TRUE COPY OF RESOLUTION NO VI DATED 16.01.2016 OF THE ADMINISTRATIVE COMMITTEE OF 3RD RESPONDENT WITH ITS TRUE ENGLISH TRANSLATION.

WP(C) NO. 20817 OF 2021

Exhibit P7 TRUE COPY OF LETTER NO.CRB 8751/2015 DATED 17.03.2016 ISSUED BY JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) KOLLAM TO DISTRICT COLLECTOR, KOLLAM WITH ITS TRUE ENGLISH TRANSLATION.

Exhibit P8 TRUE COPY OF AWARD DATED 3.3.2021 IN ARC NO.45 OF 2017 PASSED BY CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM.

Exhibit P9 TRUE COPY OF JUDGMENT DATED 13.09.2021 IN APPEAL NO.2 OF 2021 PASSED BY KERALA CO-OPERATIVE TRIBUNAL., THIRUVANANTHAPURAM.