Kerala High Court
Sabeesh Kuttan V. K vs State Of Kerala on 8 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
Wednesday, the 8th day of September 2021 / 17th Bhadra, 1943
WA NO. 1044 OF 2021
AGAINST JUDGMENT DATED 9.12.2020 IN WP(C) 22579/2020 OF THIS COURT.
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APPELLANT/PETITIONER:
SABEESH KUTTAN V. K.,AGED 26 YEARS,S/O.KUTTAN,VELLAYANI HOUSE,
MURIKKUMPADOM,AZHEEKKAL P.O.,ERNAKULAM -682508.
BY ADV.SMT.MEREENA JOSEPH
RESPONDENTS/RESPONDENTS:
1.STATE OF KERALA,REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT,
CO-OPERATION DEPARTMENT,SECRETARIAT,THIRUVANANTHAPURAM-695001.
2.REGISTRAR OF CO-OPERATIVE SOCIETIES,
OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES,
THIRUVANANTHAPURAM -695004.
3.JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL),
ERNAKULAM DISTRICT -682030.
4.ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL),
ERNAKULAM DISTRICT -682030.
5.OCHANTHURUTH SERVICE CO-OPERATIVE BANK LTD.NO.72, OCHANTHURUTH P.O.,
KOCHI,ERNAKULAM DISTRICT,PIN-682508,REPRESENTED BY ITS SECRETARY.
6.PRESIDENT, OCHANTHURUTH SERVICE CO-OPERATIVE BANK LTD.NO.72,
OCHANTHURUTH P.O., KOCHI,ERNAKULAM DISTRICT,PIN-682508.
7.MANAGING COMMITTEE, OCHANTHURUTH SERVICE CO-OPERATIVE BANK LTD.NO.72,
OCHANTHURUTH P.O.,KOCHI,ERNAKULAM DISTRICT,PIN-682508.
P.T.O.
8.SMT.SANDHYA,W/O.M. P. PRASHOB, MUTHUPARAMBIL HOUSE,
PUTHUVYPPU P.O., PIN-682508.
9.MR.JAYAKUMAR,S/O.N.C.MOHANAN, NAYIKKARAPARAMBIL HOUSE,
PUTHUVYPPU P.O., KOCHI-682508.
BY SENIOR GOVERNMENT PLEADER FOR R1 TO R4.
ADVS.M/S.B.ASHOK SHENOY & P.S.GIREESH FOR R5 TO R7.
ADV.SRI.J.RAMKUMAR FOR R8 & R9.
Prayer for interim relief in the Writ Appeal stating that in the
circumstances stated in the appeal memorandum, the High Court be pleased
to DIRECT the 5th Respondent to keep-in-abeyance all further proceedings
including declaration of probation pursuant to selection of Respondents 8
and 9 to the posts of Attender and Peon in 5th Respondent Co-operative
Bank, pending disposal of this Writ Petition (Civil).
This Writ Appeal coming on for orders on 08.09.2021 upon perusing
the appeal memorandum, the court on the same day passed the following:
P.T.O.
ALEXANDER THOMAS & A.BADHARUDEEN,JJ.
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W.A No.1044 of 2021
( Arising out of the judgment in WP(C) No.22579 of 2020 dated 09-12-2020
on the file of the learned Single Judge of this Court)
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Dated this the 8th day of September, 2021
ORDER
Various aspects have been urged by Smt.Mereena Joseph, the
learned counsel appearing for the appellant in the W.A/petitioner
in the W.P(C) to buttress her point that the learned Single Judge
erred in not entertaining the writ petition on merits and would also
point out that a case involving a fresh selection by way of Direct
Recruitment of candidates from the open market, will not come
within the ambit of Section 69(2)(d) of the Kerala Co-operative
Societies Act, 1969, even though a dispute of an existing in-service
employee may come within the scope and ambit of clause (d) of
Section 69(2) thereof. Hence it is pointed out that the dictum laid
down by the Division Bench of this Court in Raveendran v.
State of Kerala [2007 (3) KLT 558] (DB), which was in the
case of an in-service promotion aspects, which was held to come
within the ambit of Section 69(2)(d) of the Act cannot be pressed
into service in the instant case, that the matter in issue regarding
W.A No.1044 of 2021
the fresh selection by way of Direct Recruitment of open market
candidates in a Co-operative Society has been categorically held to
be lying outside the ambit of Section 69(2)(d) of the Act as per the
dictum laid down by the Apex court in the case in Akalakunnam
Village Service Co-operative Bank Ltd. v. Binu.N & Ors.
[(2014) 9 SCC 294)]that these crucial aspects have been lost sight
of while rendering the impugned judgment, etc. On being queried as
to in what manner the selection of contesting respondents 8 & 9 to
the Last Grade post of Attender are alleged to be illegal, etc., the
learned counsel for the appellant would urge that she has made out
a case of favoritism and further that it is specifically averred para
No.7 of the W.P(C) (See page 23 of the paper book of this appeal) , that
contesting respondents 8 & 9 possessed a degree qualification and
hence they are debarred for being considered for the post of Last
Grade Servant, in terms of the mandate contained in Rule 186(5) of
the Kerala Co-operative Societies Rules, 1969 inasmuch as what is
prescribed is pass in standard VII for holding the said posts
Attender and Peon and it is explicitly mandated therein that the
candidates concerned should not acquire any degree. It is pointed
out that contesting respondents 8 & 9 are degree qualified
W.A No.1044 of 2021
candidates and hence that very selection is hit by the prohibition
contained in Rule 185(5) of the Kerala Co-operative Societies Rules.
2. Per contra, Sri.Ashok B.Shenoy, the learned counsel
appearing for respondents 5 to 7 in the W.A (Co-operative Society
Bank Ltd.), as well as Sri.J.Ramkumar, the learned counsel
appearing for contesting respondents 8 & 9 (Selected candidates)
would contend that the above said factual allegation raised by the
writ appellant/writ petitioner is absolutely incorrect and that said
contesting respondents 8 & 9 do not possess the prohibited
qualification of degree and that they are eligible and qualified in all
ways and it is on the basis of a fair and detailed selection that they
have been duly selected and appointed, etc. Time is granted to the
5th respondent Service Co-operative Society Bank as well as to
contesting respondents 8 & 9 to file their separate affidavits in the
matter. The respondent Co-operative Society Bank will deal with the
manner and method of instant selection and also as to in what
manner the norms contained in relevant circulars issued by the
Registrar of Co-operative Societies have been meticulously complied
with and the impugned selection and shall also produce the files of
the impugned selection at the time of the next hearing of this case.
W.A No.1044 of 2021
3. After hearing both sides, and as of now, we are not
inclined to grant stay or interdict the selection appointment of
respondents 8 &9. However, it is ordered that the selection
appointment of respondents 8 & 9 will be the subject to the result of
the W.A and the 5th respondent Service C0-operative Bank shall
specifically intimate in writing to contesting respondents 8 & 9
about the above said condition imposed in this interim order.
4. The learned Government Pleader and the learned
Advocate appearing for the respondents Service Co-operative
Bank as well as the learned Advocate appearing for contesting
respondents 8 & 9 will address this court as to the tenability of
the above said legal submissions made by the writ appellant
regarding the inapplicability of Section 69 (2)(d) of the Kerala Co-
operative Societies Act, in case of Direct Recruitment from open
market candidates and if jurisdiction is not available in terms of
Section 69, whether the supervisory jurisdiction of the
Registrar in terms of Section 66 of the Kerala Co-operative
Societies Act or and /or the power of the Recruitment Registrar
to rescind resolutions of the Co-operative Society in terms
of Rule 176 of Kerala Co-operative Society Rules
W.A No.1044 of 2021
could be appropriately invoked to lack of other alternative
statutory remedies and the case laws governing the field.
List the appeal in the admission list on 11-10-2021.
H/o
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
A.BADHARUDEEN, JUDGE
amk
08-09-2021 /True Copy/ Assistant Registrar
