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2023 Supreme(Online)(KER) 6194
HIGH COURT OF KERALA
Sathish Ninan, J
SOBHANA KUMARI A. – Appellant
Versus
ARYANKAVU SERVICE CO-OPERATIVE BANK LTD. NO.2965 – Respondent
WP(C) 2575/2023
Arjun Raghavan, T. Harikumar, C.P. Sabari, M. Sasindran
No prior registrar approval is required for regularization of employees appointed to sanctioned posts under cooperative rules.
Headnote:
Cooperative - Regularization of Employment - Kerala Cooperative Societies Act - Sections 181, 183 - The court found the regularization of petitioners valid as their appointments were made to sanctioned posts with prior government approval, dismissing the need for registrar approval on the date of regularization.
Fact of the Case:
Petitioners were employed as salesmen in a cooperative society and sought regularization after extending government orders sanctioned their positions. They had crossed the age limit but received exemptions necessary for regularization based on subsequent appointments.
Finding of the Court:
The court determined that regularization did not require prior approval from the registrar since the appointments were to sanctioned posts and occurred post government's orders. The need for exemption was solely due to age limit issues.
Issues: Whether the Joint Registrar's refusal to recognize the regularization of the petitioners based on age limit violations was justified and if prior approval was necessary for their regularization.
Ratio Decidendi: Regularization is valid when appointments are to sanctioned posts. No registrar approval is needed for such regularization unless it involves changing the staff pattern.
Final Decision: The court quashed the Joint Registrar's decision and ordered fresh proceedings for the petitioners' regularization.
JUDGMENT
At the time of filing the writ petition, the petitioners were working as 'Salesman' in the Neethi stores run by the 1st respondent Society. 1st petitioner subsequently retired from service on 31/01/2023. 1st petitioner was employed on commission basis since the year 1997 and 2nd petitioner was employed on commission basis since 21/04/2012.
2. As per Ext.P5 Government Order dated 27/11/2010, the post of 'Salesman' was sanctioned and was included in Appendix III to the Co-operative Societies Rules ('the Rules' for short). Such sanction and inclusion in Appendix III was acknowledged by the Registrar, as is evident from Ext.P6 circular dated 28/06/2011 and Ext.P7 communication dated
04/02/2014.
3. Pursuant to Ext.P5 Government Order, the Committee adopted resolutions regularizing the appointment of the petitioners. 1st petitioner was regularized with effect from
31/05/2011 and 2nd petitioner with effect from 21/04/2012.
4. Noticing that the petitioners have crossed the upper age limit as fixed under Rule 183 of the Rules, the Society sought for exemption from the upper age limit by moving the Government in terms of Rule 181 of the Rules.
5. On such request, the Government passed Ext.P12 order granting exemption from the provisions of sub rule (1) of Rule 183 of the Rules. It was indicated in Ext.P12 that, the exemption is being granted to enable regularization of the petitioners in service. When attempts were made to remit the pension contribution, the Pension Board, as per Ext.P17, required the petitioners to make available orders approving the appointment of the petitioners. Thereupon, the Society approached the Joint Registrar seeking issuance of an order in the said regard. To the said request, the Joint Registrar issued Ext.P13 communication to the effect that, the Rules does not permit regularization in service from a prior date.
The said order is under challenge in this writ petition.
6. Heard Sri.Arjun Raghavan, the learned counsel appearing for the petitioner, Sri.C.P.Sabari, the learned Standing Counsel appearing for respondents 1 and 2 and also Smt.K.B.Sony, the learned Government Pleader.
7. In Elampal Service Cooperative Bank Ltd. v.
Government of Kerala [ 2000 (3) KLT 389 ], this Court has declared the law that, for appointment of staff in accordance with the staff pattern fixed in Appendix III, no approval of the Registrar is necessary. Paragraph 3 of the judgment of this Court held thus:
“3. A reading of the above Rule and Appendix.3 makes it clear that staff pattern is fixed by the Rule itself. Therefore, normally society will be free to appoint staff as per the staff pattern fixed in Appendix.3. 1st proviso allows the society from not adopting the staff pattern due to financial position and allows the members of the committee to work in a honorary capacity. That is for the society to decide. Second proviso only makes it obligatory for the society to get prior approval from the Registrar only if there is a 'need of any change in the pattern of staff including the scale of pay under special circumstances.' The above wordings make it clear that for appointing staff as per the staff pattern fixed in Appendix.3 and the rules according to the type and class to which the society belongs, no prior approval is necessary. Only if a change in the pattern is necessary, approval is required. In this connection we refer to the decision reported in Sherthallai Urban Cooperative Bank v. State of Kerala ( 1984 KLT 971 ). A similar view was taken in O.P.No.8097/90 decided on 28.2.91 and O.P.No.10078/85 decided on 27.3.1987.”
8. As noticed supra, as per Ext.P5, Government had sanctioned the post of 'Salesman' and included the same in Appendix III. In the light thereof, the appointment being to a sanctioned post, fresh approval from the Registrar was not necessary. Noticeably, the orders of regularization of the petitioners are subsequent to Ext.P5 order, viz.31/05/2011 and 21/04/2012. Ext.P12 order of exemption was necessary only becau
