N.B. Sasi vs Joint Registrar of Co-Operative Societies (General) Ernakulam

K. Vinod Chandran, J.—The petitioner is aggrieved, with the appointments, to be carried out in the 2nd respondent Society, to the post of an Attender and a Salesman as per Ext. P3 notification. The petitioner''s primary contention is that, the 2nd respondent Society is a loss making Society and that there is absolutely no requirement for fresh appointment to be made, as also that no approval to such appointments has been obtained from the Department.

The learned Counsel for the petitioner specifically points to Ext. P1 series, which are the Balance Sheet for the years 2010-11 to 2012-13, wherein the 2nd respondent is seen to have suffered huge losses. The petitioner also contends that the salaries of the employees of the 2nd respondent are being paid from the deposits with the 2nd respondent and such a practice is specifically interdicted by Ext. P2 Circular. The petitioner hence approached the Joint Registrar with Ext. P4, seeking interdiction of the appointments.

With respect to the appointments to be made, the learned Counsel for the 2nd respondent submits that, there are five sanctioned posts in the 2nd respondent Society, one of Secretary, two of Junior Clerks and an Attender and a Salesman. The additional post of Junior Clerk sanctioned by the Department has not been filled up, since the Society is at a loss. The present appointment is to the post of Attender and Salesman. The last incumbent in the post of Salesman had retired in 2004. But, however, again due to the reason of the loss sustained, the Society did not appoint any person to that post also, especially since, license for a manure depot was also not renewed.

The Attender, who was working in the said post was promoted as a Junior Clerk and it is to that post, the present appointment is sought to be made. The need to appoint a Salesman was also necessitated only on account of the 2nd respondent Society having obtained a fresh license for a manure depot as is evidenced at Ext. R2(d) and R2(e). It is also submitted that even then the additional post of Junior Clerk has not been sought to be filled up, despite the sole Junior Clerk, who was working in the said post is under suspension. As things stand, there is only a Secretary in the 2nd respondent Society and there is need for an Attender and also a Salesman to man the manure depot.

Despite the compelling arguments made on the basis of the loss sustained in the earlier years, this Court is of the opinion that, if the Society has to function, it has to have a supporting staff and that alone is now attempted by Ext. P3 notification. The allegations raised by the petitioner, are not sustainable on facts and there can be no interdiction of the appointment now sought to be made. Though a loss making Society, if it has to function, it has to have atleast the skeletal staff to carry on its operations. The renewal of the manure depot license can only be taken as an attempt to come out of the loss situation.

With respect to the other allegation, regarding the salary being paid, from the deposit in violation to Ext. P2 Circular, there is no reason why this Court should compel the Joint Registrar to take action against the 2nd respondent. If violation of Circulars issued under the statute by the Government is committed by a Society, the Joint Registrar is perfectly competent to do so. One other reason, why this Court stays its hand in issuing a positive direction, is on account of the averment made by the petitioner in the 6th paragraph. The petitioner contends that the Joint Registrar has expressed helplessness due to political pressure and directed the petitioner to obtain prohibitory orders from this Court. The prohibitory order definitely can be only with respect to the appointments and that has been found to be proper by this Court.

The said averment shows that the attempt of the petitioner is to get a direction from this Court and on the cover of such direction, to compel the Joint Registrar to initiate action against the 2nd respondent Society. Invocation of the extra-ordinary jurisdiction under Article 226 of the Constitution of India cannot be at the asking, and on request made by the statutory authorities, reducing it to a mere device to protect the incumbent in office from their political masters. The averment indicates that the petitioner is acting at the behest of the statutory authority. That cannot be permitted by this Court invoking extra ordinary jurisdiction under Article 226. A statutory duty cast on the Joint Registrar would necessarily have to be complied with even without a specific direction from this Court. In such circumstance, the writ petition is found to be devoid of merit and the same is dismissed.