Sindhu S.V. vs The General Manager

K. Vinod Chandran, J.—The petitioners in W.P.(C). No. 21222 of 2013 are employees of various Handloom Weavers Co-operative Societies, as classified under Rule 15 of the Kerala Co-operative Societies Rules, 1969 [for brevity "KCS Rules"] at item No. 5 under the heading "Producers Society". The Weavers Societies so formed are members of and are affiliated to the District Co-operative Banks. As far as such Societies are concerned, specifically Weavers Societies, they are precluded from the supervisory powers conferred on the Registrar of the Co-operative Department. With respect to such Societies, the Registrar as indicated in Section 3, the Government has notified the Director of District Industries Centre [for brevity "DIC"] to be their Registrar. Hence, all functions of the Registrar under the KCS Act, with respect to such Weavers Co-operative Societies who are not under the supervisory jurisdiction of the Co-operative Department, would come under the supervision of the Registrar notified under Section 3 of the Act. The petitioners are all employees of the various Handloom Weavers'' Co-operative Societies who are affiliated to the 2nd respondent-Bank.

The Kerala Public Service Commission [hereinafter referred to as "PSC"] came out with a notification calling for appointments to the posts in the respondent-Bank, wherein a reservation of 50% was granted to the Primary/Member Societies as per Rule 187 of the KCS Rules. A controversy arose as to the eligibility of the employees of the Weavers Societies to participate in such selection and get selected to such posts notified by the PSC. The petitioners had all applied for the selection notified by the PSC, the rank list of which is produced as Exhibit P11 in W.P.(C). No. 18646 of 2012. But for this, all the other documents are those produced in W.P.(C). No. 21222 of 2013, which is taken as the leading case.

However, when advice was to be issued, the petitioners herein were declined selection only on the ground that their appointment was not one approved by the Department and, hence, they could not be considered as regular employees as stipulated in Rule 187 of the Rules. The petitioners have produced their certificates as Exhibits P1 to P10, which indicate that the Deputy Registrar of the DIC had indicated that the appointments were not with the approval of the Department. The learned counsel for the petitioners would contend that such a reservation made is without looking at the provisions of the KCS Act and Rules, which do not contemplate any such approval for Weavers Societies.

It is also pointed out that a similar issue arose earlier, and by Exhibit P11 judgment, the issue was answered in favour of the employees of such Weavers Societies. Therein also, the specific contention raised was that the petitioner therein, who was a member of the Weavers Co-operative Society, was appointed without approval and there was no approved staff pattern in the Society. The learned Single Judge who disposed of Exhibit P11, considered the issue and found that the experience of the petitioner therein was sufficient so as to enable the petitioner to participate in the selection. There was nothing to show that the petitioner''s appointment was irregular. In such circumstance, a direction was issued to the Deputy Registrar, DIC to issue experience certificate as contemplated in the notification. The petitioner therein is identically situated as the petitioners herein.

The petitioners herein too had approached this Court with respect to the very same selection in a writ petition, which was disposed of by Exhibit P13. The certificates issued pursuant to Exhibit P13 are produced at Exhibits P14 to P22. The further proceedings before this Court produced herein are not relevant, since they relate to seeking reporting of vacancies.

In any event, despite the certificates having been so issued, the petitioners were issued with rejection orders, produced at Exhibit P27 series, in which a Vigilance Enquiry is said to have been conducted and based on the Vigilance Report, the petitioners were decided to be removed from the rank list. The learned counsel for the petitioners, in addition to the contention that there was no approval contemplated under the KCS Act for appointment of employees to Weavers Societies, also raise an alternate contention that the Vigilance Enquiry was conducted behind the back of the petitioners and even the report was not supplied to the petitioners before a decision was taken, as is indicated in Exhibit P27.

The learned Standing Counsel for the PSC, inter alia would rely on Section 80B and Rule 182(5) to contend that approval is necessary for all appointments, even to Handloom Weavers Co-operative Societies. Reliance is also placed on Exhibits R3(a) and R3(b), which are communications issued by the Deputy Registrar of DIC and the General Manager, DIC, Both the said authorities supported the stand of the PSC. It is to be specifically noticed that no Vigilance Report or the results of the enquiry has been produced before this Court by the PSC, despite the fact that Exhibit P27 specifically refers to a Vigilance Enquiry and report thereon.

W.P.(C). No. 4449 of 2014 is filed by an applicant, who is in the rank list and who belongs to a Society where posts are specified in Appendix III, who raises a claim for advice on the basis of his rank. The said petitioner impleaded himself in W.P.(C). No. 21222 of 2013 and in addition to the claim for advice, the learned Senior Counsel also attempts to support the PSC. The learned Senior Counsel specifically refers to the Vigilance Enquiry and the report to contend that the petitioners would not be eligible for consideration for selection. The learned Senior Counsel would also rely on sub-rule (5) of Rule 182 to contend that unless appointments to even Handloom Weavers Co-operative Societies are carried out as per the guidelines issued by the Registrar, the same cannot be said to be regular.

At the outset, it is to be noticed that the Vigilance Enquiry, based on which Exhibit P27 series orders are said to have been passed, cannot at all be relied upon, since the PSC has not produced the same before this Court. Despite the assertion that such a Vigilance Enquiry was conducted in pursuance of an order of this Court, the PSC in fact seeks to sustain the rejection on the basis of Exhibits R3(a) and R3(b). Looking at Exhibits R3(a) and R3(b); with respect to all the petitioners herein, the refrain is that their appointments are without approval. Though arguments were advanced that many fraudulent societies are in vogue, no such allegation is raised against the petitioners or the societies in which the petitioners are employed; by the Registrar, the General Manager of the DIC, in Exhibit R3(a) or R3(b). On the contrary, in the case of the petitioners and the Societies in which they are employed, their employment is confirmed as also the existence of such Societies. The General Manager of the DIC also does not resile from the fact of employment, which has been certified by him. The only reservation is again with respect to the approval or the lack of it, by the Department; herein the DIC. It is to be noticed that when initially Exhibits P1 to P10 certificates were issued, there was a rider with respect to there being no approval; but, later, as per the judgment of this Court in Exhibit P13, fresh certificates were issued, evidenced at Exhibits P14 to P22, which does not have any such reservation. In such circumstance, the rejection can only be said to be on account of the fact that there is no approval.

The learned Standing Counsel for the PSC also specifically relied on Exhibit R3(b) issued by the General Manager, DIC, wherein reliance is placed on Section 80B and Rule 182(5) as also Section 80(3A). Section 80B speaks of the Co-operative Service Examination Board, which, as per sub-section (1), is to conduct recruitment to posts of and above the category of Junior Clerks in the "Primary Agricultural Credit Societies, Primary Credit Societies, Urban Co-operative Banks and Primary Agricultural and Rural Development Banks in the State". The Handloom Weavers Society is not included in the above provision and Section 80B would not be applicable to such Handloom Co-operative Societies. Sub-section (3A) of Section 80 is a non obstinate clause, making it mandatory in the case of direct recruitment of officers and servants of societies to be made from a select list of candidates furnished by the PSC; but, however, confining such mandate to those societies mentioned in Schedule I. Admittedly Weavers Co-operative Societies or any of the societies in which the petitioners are working, are included under Schedule I of the Act.

The learned Standing Counsel for the PSC also referred to sub-section (4) of Section 80B to advance the contention of approval by the Registrar being necessary for an appointment to be considered as regular. Sub-section (4) relates to the appointment of persons who are professionally or technically qualified or having such experience and expertise enabling them to be appointed in posts, requiring such technical or professional qualification, on contract basis; notwithstanding the mandate in Section 80. Such contract appointments alone are to be made with the prior approval of the Registrar. When sub-section (3A) of Section 80 itself does not apply to the weavers societies, there is no question of approval being found from the provisions of sub-section (4) of Section 80B. That is for the specific purpose of making appointments to posts in which professional or technical qualifications are necessary and that too, on contract basis. No mandate for an approval applicable to all societies registered under the Act can be ferreted out from such specific provisions.

The reliance placed on Rule 182(5) cannot also be countenanced. Rule 182(5) speaks of Societies and posts not covered by Section 80(3A) and Section 80B of the Act. Rule 182 itself speaks of classification of societies under Section 80(1) as shown in Appendix III and comes under the Chapter "Establishment". Admittedly the Weavers Co-operative Societies have not been included under Appendix III. With respect to the societies coming under Appendix III, it is trite that for appointment to posts as enumerated in the said Appendix, in such societies specifically noticed therein, there need be no approval from the Department so long as there is an approved staff pattern. That alone cannot lead to a presumption that appointment to all posts in the other societies should be only with the prior or subsequent approval of the Department. Rule 182, by sub-rule (3), reiterates the mandate under sub-section (3A) of Section 80 and by sub-section (4) lays down the procedure to be followed in making appointments under Section 80B, connected cases Sub-rule (5) of Rule 182 indicates that in respect of societies which are not covered by Section 80(3A) and Section 80B, the appointments shall be made by the Committee after conducting written examination and interview as per the guidelines issued by the Registrar. The said provision also does not speak of any approval from the Registrar as such. The power to frame such guidelines has to be conceded to the Registrar; but so long as such guidelines have not been issued, the Committee of the respective societies would be entitled to make appointments only with the rider that the same should be by the conduct of a written examination and interview.

The Registrar of the Handloom Weavers Co-operative Societies, being General Manager, DIC; does not in Exhibits R3(a) and R3(b), refer to any such guidelines having been framed by the Registrar. Both in Exhibits R3(a) and R3(b) each of the petitioners herein are referred to. Their appointment is also seen to have been taken note of. Some are said to have been promoted to the post of Paid Secretary, which promotion is said to have been approved by the Registrar. Again it has to be noticed that there is no provision for such approval; but still if the promotion has been approved, then the corollary would be that the employee who was promoted was already in the regular employment of the society.

Exhibits R3(a) and R3(b) holds that none of the petitioners'' appointments were approved by the Department. However, in the context of the approval being found to be not a necessary mandate as per the Act or Rules, the date of appointment in the Handloom Weavers Co-operative Society as found by the Registrar, being the General Manager of the DIC, would have to be taken as the date of regular appointment and the eligibility as per the notification decided in accordance with such appointment. In coming to such conclusion, this Court draws considerable support from Exhibit P11 judgment, which has not been appealed against, either by the PSC or the DIC.

In the above circumstances, W.P.(C). Nos. 21222 of 2013 and 18646 of 2012 are allowed, declaring that the petitioners are eligible to be treated as having been regularly appointed from the date on which their appointment in the Handloom Weavers Co-operative Society is certified by the Registrar or the Deputy Registrar, under Section 3 of the KCS Act. The petitioners'' advice shall be in accordance with the rank obtained in Exhibit P11 rank list in W.P.(C). No. 18646 of 2013.

W.P.(C). No. 4449 of 2014 only seeks for directing reporting of the vacancies as also the issuance of advice to be expedited. That shall be done by the respective authorities within a period of three months from today and the writ petition is disposed of with the above direction.

Ordered accordingly. Parties are left to suffer their respective costs.