JUDGMENT
M.R. Hariharan Nair, J.
1. Petitioners 1 to 3 are Clerks in the 4th respondent Service Co-operative Bank. The 4th petitioner is a Peon in the same Bank. The first petitioner was appointed on 14.12.1992 while the rest were appointed on 2.1.1993. As per Ext. P1 order the second respondent Joint Registrar, found that the 4th respondent was made a Class IV Society and its staff pattern approved only on 21.5.1993 and that even before that on 10.10.1992 various posts were advertised and filled up and in the circumstances all the employees concerned should be retrenched. It is this order that the petitioners impugn in this Original Petition.
2. The learned Government Pleader submitted that the Society had not been classified at all before 2.1.1993 and that on 3.10.1992 the 4th respondent passed a resolution changing its status into a Class IV society. On the same day the bank accepted the resignation of one Suresh Kumar and advertised two posts of Clerks. On 31.10.1992 the Board again passed a resolution directing appointment of an Examinor to conduct examination to fill up the vacancies. It is pointed out that the procedure followed violates the requirements of R. 188 of the Co-operative Societies Rules as also Circular No. 18/91 dt. 7.6.1991 which prohibits appointment without prior permission of the Joint Registrar.
3. Shri. K. Ramkumar, who appeared for the petitioners, submitted that in the instant case there existed two vacancies in the society even before the resolution changing its status into Class IV was passed and as far as appointments to those vacancies are concerned, there is no inhibition available in Rule 188 or in the Circular and that Ext. P1 order which is passed without notice to the affected persons cannot stand.
4. Even though it is pleaded in the counter affidavit of the second respondent that “the 4th respondent bank was not included in any class as per Section 80 before 21.5.1993”, it was conceded during hearing that even prior to that the society was functioning.
5. The 4th respondent admittedly is a credit Co-operative Society with a working capital between Rs. 25 and 75 lakhs and deposit of Rs. 10 lakhs and above before the passing of the resolution dated 3.10.1992 and as such it was a Class V society. In
such society two posts of Clerks/Cashier and one post of Peon were admissible besides a Secretary. The specific contention of the petitioners is that there were two vacancies in existence in the society even on the date when the new resolution was passed. Rule 188 of the Kerala Co-operative Societies Rules reads as follows:
Rule 188: Staff pattern:- Every society shall adopt the staff pattern indicated in Appendix III to these rules, according to the type and class to which it belongs:
Provided that where any society cannot adopt such staff pattern due to its financial position, the members of the committee may work in an honorary capacity in lieu of appointing any paid employee:
Provided further that where any society is in need of any change in the pattern of staff including the scale of pay under special circumstances the same may be made by the society with the prior approval of the Registrar of Co-operative Societies”.
The second proviso to the rule makes it clear that it is only where any society is in need of any change in the pattern of staff including the scale of pay under special circumstances it needs prior approval of the Registrar of Co-operative Societies.
6. Parameswaran Kartha v. Asst. Registrar (1992 (2) KLT 77) is authority for the proposition that the primary right to classify the societies into different categories as also the right to prescribe the staff pattern and scales of pay of the employees is that of the Government and that it is, however, for the society to decide the category in which it falls with reference to the conditions in Appendix III. Neither the Act nor the Rules provide for any prior approval of the Registrar or the Government before the society is classified in a particular slot and any decision of the society that it falls in such class would be open to recession by the Registrar in exercise of his power under Rule 176, if he is not satisfied that the working capital/outstandings/investment/turnover, as the case may be, of the society are such as to bring it within a particular class. In the instant case there was no recession of the classification. On the other hand, the resolution passed on 3.10.1992 was approved by the Registrar in May, 1993 w.e.f. 1.1.1993. It may be that additional posts to which the society might be entitled in view of re-classification into Class IV could be filled up only with prior approval; but that cannot be said about the vacancy that existing even on the date before the resolution regarding higher classification was passed by the society.
7. It is mentioned in paragraph 2 of the counter affidavit of the 4th respondent society that on 3.10.1992 itself the bank decided vide Resolution No. 2 to accept the resignation of Suresh Kumar and to advertise two posts of Clerks. If two vacancies were already in existence in the society at the time of classification, ie., in Class V, it cannot be said that the appointment made to those two posts are hit by R. 188 or any other provision of law. The impugned order appears to have been passed without hearing the petitioners, some of whom are appointed on daily wage basis by the 4th respondent itself. In the circumstances I am of the view that the matter requires fresh consideration with opportunity to the affected parties to be heard. Consequently Ext. PI is set aside and the matter is remitted to the second respondent for passing fresh orders to decide the date on which the two vacancies actually arose and whether they were within the existing staff strength of the society as on 3.10.1992 before passing Resolution No. 1. This will be done with due opportunity to all affected parties, including the petitioners and the 4th respondent. The petitioners and respondents 2 and 4 will maintain status quo as available pursuant to the stay order passed by this Court on 13.10.1993 in C.M.P. No. 25279 of 1993 until fresh orders are passed by the second respondent and for a further period of one month from the said date.
The Original Petition is disposed of as above.