Partly allowed

Fredy.J v. State of Kerala

Kerala HC22 Nov 2022WP(C)/16871/2019

Case brief

AI extract

What is this about?

Petitioners challenged Government orders directing regularization of sales helpers as Godown Managers in ConsumerFED. The Court clarified that the order was an expression of opinion binding neither the Federation nor the employees, and directed the Federation to independently decide on claims.

What did the court decide?

Directed ConsumerFED to hear responses 5–8 and similarly placed persons for regularization by decision within three months; clarified Government order is non-binding.

Fredy.J Vs State of Kerala — Service and Employment | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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TUESDAY, THE 22^ND DAY OF NOVEMBER 2022 / 1ST AGRAHAYANA, 1944

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WP(C) NO. 16871 OF 2019

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PETITIONERS:

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1 FREDY. J, SALES HELPER, GODOWN, CONSUMER FED, CHENKAL CHOLA, THIRUVANANTHAPURAM, RESIDNG AT T.C.34/57(2), FIBITHA BAHAVAN, BEACH.P.O., THIRUVANANTHAPURAM.

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2 SUBHASH.P., SALES HELPER, TRIVENI SUPER MARKET, CONSUMER FED, FEROKE, CALICUT, RESIDING AT PULLOR HOUSE, NALLUR, FEROKE.P.O., KOZHIKODE.

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3 SARFRAS NAVAS.M.,SALES HELPER, NEETHI MEDICAL WARE HOUSE, CONSUMER FED, CALICUT, RESIDING AT MADATHIL HOUSE, KOYAPARAMBA, KUNNUMAL ROAD, NALLALAM P.O., KOZHIKODE.

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BY ADVS.SRI.B.S.SWATHI KUMAR SMT.ANITHA RAVINDRAN

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF CO-OPERATION, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.

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2 THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM, PIN-695001.

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3 THE KERALA STATE CO-OPERATIVE CONSUMER FEDERATION LTD., GANDHI NAGAR, ERNAKULAM, REPRESENTED BY ITS MANAGING DIRECTOR-682020.

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4 KERALA PUBLIC SERVICE COMMISSION, HEAD OFFICE, PATTOM, THIRUVANANTHAPURAM-695033, REPRESENTED BY ITS SECRETARY.

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5 DINESH LAL, SALES ASSISTANT GRAD-I (IN-CHARGE OF PURCHASE MANAGER), HEAD OFFICE, CONSUMERFED, GANDHI NAGAR, ERNAKULAM, RESIDING AT LAL BHAVAN, MALOOR.P.O., PATHANAPURAM, KOLLAM-689695.

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6 C.SURESH BABU, SALES ASSISTANT GRADE-I (IN CHARGE OF REGIONAL MANAGER), REGIONAL OFFICE, CONSUMER FED, CALICUT, RESIDING AT NANGIKANDI, MUCHUKUNNU.P.O., KOYILANDY, KOZHIKODE-673307.

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7 SANTHOSH.C., SALES ASSISTANT GRADE-I (IN CHARGE OF REGIONAL MANAGER), REGIONAL OFFICE, KANNUR, RESIDING AT CHANDRAMBATH HOUSE,VADAKKUMPAD.P.O., THALASSERI, KANNUR-670105.

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8 P.K.ANILKUMAR, ASSISTANT GRADE-I (IN CHARGE OF ADMINISTRATION MANAGER), CONSUMERFED, HEAD OFFICE, GANDHINAGAR, KOCHI, RESIDING AT PUTHENVEETTIL, NALLOORNADU.P.O., MANANTHAVADI, WAYANAD-670 645.

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BY ADVS.SRI.M.SASINDRAN, SC, CONSUMERFED SHRI.P.C.SASIDHARAN, SC, KPSC SRI.M.R.HARIRAJ SRI.K.RAJAGOPAL SHRI.VISWAJITH C.K SHRI. JAYRAJ M.B. SHRI.JOSHY THANNICKAMATTAM, GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 16871 OF 2019

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JUDGMENT

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Three Sales Helpers, working in the services of the 3^rd respondent – Kerala State Co-operative Consumer Federation Ltd. ('CONSUMERFED', for short) have approached this Court impugning Ext.P5 order of the Government, whereby, directions were issued by it to the 'CONSUMERFED' to regularize the party

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respondents in the post of Godown Manager, with effect from 2005.

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The petitioners, who do not claim any

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right to be appointed or promoted to the post of Godown Manager, nevertheless, assail Ext.P5 on

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the ground that it is deleterious to the interests of the 'CONSUMERFED', and would cause consequences, exposing it to prejudice. They contend that, when the Government has no power to direct the 'CONSUMERFED' to take any decision

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in the manner as recorded in Ext.P5, their challenge to it is justified; thus praying that this writ petition be allowed.

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Sri.Harisankar N.Unni – learned counsel

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for the petitioners, further pointed out that,

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in fact, Ext.P5 is an order issued by the Government purportedly in an appeal preferred against Ext.P4 decision of the 'CONSUMERFED', whereby, the request of the party respondents for regularization in the post of Godown Manager had been turned down.

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Sri.Harisankar N.Unni argued that Ext.P5 is incompetent because, there could have been no appeal before the Government against Ext.P4 decision of the 'CONSUMERFED'; and that, in any event, it has travelled much beyond Ext.P1 Circular of the Registrar, which permitted regularization only in posts included in the sub-staff category, but certainly not in that of

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a Godown Manager, which is a superior one. He

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submitted that, therefore, Ext.P5, on such counts also, is illegal and unlawful.

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Sri.Harisankar N.Unni concluded his

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submissions saying that, going by Ext.P6 - Special Rules applicable to the 'CONSUMERFED', no order like Ext.P5 could have been issued by

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the Government without consultation with the Kerala Public Service Commission (PSC); and therefore, that the reliefs sought for in this

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writ petition are deserving to be granted fully.

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Sri.M.R.Rajendran Nair – learned Senior

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Counsel, instructed by Smt.Akhila S. appearing for the party respondents, submitted that

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challenge of the petitioners to Ext.P5 is untenable and extremely confutative, because they can never claim the post of Godown Manager;

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and, in fact, they do not do so in the pleadings either. He submitted that, therefore, what has

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WP(C) NO. 16871 OF 2019

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been projected is a cause virtually as a public

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one and hence that this writ petition is not

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maintainable.

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Senior Counsel submitted that Ext.P5 is not a direction of the Government to the 'CONSUMERFED'; but is only an expression of

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their mind, that they do not stand in the way of regularization of his clients in the post of Godown Manager, subject to other requirements in

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law being complied with. He argued that, therefore, challenge to Ext.P5 is not merely unnecessary, but superfluous; and thus prayed that this writ petition be dismissed.

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Sri.P.C.Sasidharan – learned Standing

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Counsel for the PSC, very pertinently, submitted that when it comes to regularization of persons

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in the post of Godown Manager, it is not

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necessary for the 'CONSUMERFED' or the

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WP(C) NO. 16871 OF 2019

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Government to obtain concurrence of his client.

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He submitted that, therefore, his client has no role to play in this case.

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Government Pleader, argued that Ext.P5 is irreproachable, because Government is the major shareholder in 'CONSUMERFED' and that any

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decision with respect to its services can be taken only by it, and that too at the

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appropriate level.

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The learned Government Pleader pointed

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out that, in fact, as is evident from Ext.P1, it was at the instance of the Hon'ble Minister that

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the decisions therein were taken; but that since

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it did not cover the post of Godown Manager, the 'CONSUMERFED' appears to have been misdirected to conclude, in Ext.P4, that regularization of the said post cannot be granted. He submitted

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that this is not correct because, though Ext.P1

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WP(C) NO. 16871 OF 2019

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did not include the post of Godown Manager,

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there was no express exclusion; and that, therefore, Government thought it better to

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clarify the same through Ext.P5.

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Sri.M.Sasindran – learned Standing

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Counsel for the 'CONSUMERFED', submitted that his client had issued Ext.P4, because Ext.P1 did not permit regularization in the post of Godown Manager. He added that, however, this does not mean that his client is not interested or

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intending to offer such regularization; but that they will do so only on the basis of all other requirements being satisfied. He concluded his submissions saying that Ext.P5, though phrased

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as a definitive direction, can only be seen to be the expression of opinion of the Government and nothing more and that his client will advert

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to it only in such manner.

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I have evaluated the afore rival

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WP(C) NO. 16871 OF 2019

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submissions and have also gone through Ext.P5.

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Upfront, I must say that, normally,

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Government could not have issued any direction

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to the 'CONSUMERFED', as has been done in Ext.P5. At the best, they could have only expressed their mind and their opinion on the policy of regularization of persons in the post of Godown Manager.

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In the afore perspective, it is limpid that Ext.P5 records that Government has no

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objection to the regularization as sought for by the party respondents; but the question whether same would bind the 'CONSUMERFED' in taking a decision, is something that this Court cannot speak about at this stage, since it is for them to do so, at least at the first instance.

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As rightly argued by Sri.P.C.Sasidharan – learned Standing Counsel for the PSC, when no consultation is required with the said

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WP(C) NO. 16871 OF 2019

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Authority, it is for the 'CONSUMERFED' to take a

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decision independently; for which, Ext.P5 may only be one of the relevant inputs.

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In the afore circumstances, I do not

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think it is necessary for this Court to set

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aside Ext.P5; but deem it apposite to clarify

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that the “directions” contained therein to the

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'CONSUMERFED', can only be treated to be an

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expression of the opinion of the Government and nothing more.

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To paraphrase, the 'CONSUMERFED' will

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be at full liberty to take an independent

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decision as to regularization of the persons in the posts of Godown Manager; but they will not

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treat Ext.P5 as being an affirmative direction from the Government.

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Resultantly, I order this writ petition,

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directing the 'CONSUMERFED' to hear the parties

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and take a decision as to the claims of

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WP(C) NO. 16871 OF 2019

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respondents 5 to 8, and similarly placed persons, for regularization in the post of Godown Manager or such other; thus culminating in an appropriate order and necessary action thereon, as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment.

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Needless to say, as I have already said above, the 'CONSUMERFED' will act independent of Ext.P5, but will be at liberty to note its contents as the expression of opinion of the Government, but untrammelled by Ext.P4.

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Sd/DEVAN RAMACHANDRAN JUDGE

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akv

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WP(C) NO. 16871 OF 2019

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APPENDIX OF WP(C) 16871/2019

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PETITIONER EXHIBITS

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EXHIBIT P1 TRUE COPY OF THE CIRCULAR NO.10/2005 DATED 13.4.2005. EXHIBIT P2 TRUE COPY OF THE REGULARIZATION ORDER OF THE 5TH RESPONDENT DATED 3.8.2010. EXHIBIT P3 TRUE COPY OF THE JUDGMENT IN WPC.NO.29701/2005 DATED 23.5.2018. EXHIBIT P4 TRUE COPY OF THE LETTER NO.CFED/LC/2018-19 DATED 1.1.2019. EXHIBIT P5 TRUE COPY OF THE ORDER NO.G.O. (RT)NO.348/2019/CO-OP. DATED 2.6.2019. EXHIBIT P6 TRUE COPY OF THE RELEVANT PORTION OF THE NOTIFICATION NO.G.O. (P)NO.144/2009/CO-OP. DATED 19.8.2009. EXHIBIT P7 TRUE COPY OF THE LIST OF ACCUSED PERSONS IN VC-22/2016/PKD DATED 26.7.2016.

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RESPONDENT EXHIBITS

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EXHIBIT R5(A) A TRUE COPY OF NOTIFICATION DATED 5.6.1997 EXHIBIT R5(B) A TRUE COPY OF PROCEEDINGS NO AD(2)1971/97-98/341 DATEd 28.6.1997 EXHIBIT R5(C) A TRUE COPY OF THE REPRESENTAION DATED 27.5.2000 OF THE KERALA STATE CO-OPERATIVE FEDERATION WORKERS

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ASSOCIATION

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EXHIBIT R5(D) A TRUE COPY OF THE LETTER NO CF/CRTE/2000-2001 DATED 30.10.2000 EXHIBIT R5(E) TRUE COPY OF MEMORANDUM OF SETTLEMENT DATED 8.3.2001 EXHIBIT R5(F) TRUE COPY OF RESOLUTION NO.14 G DATED 13.3.2001 EXHIBIT R5(G) TRUE COPY OF THE ORDER NO CS(1)30520/2001(1) DATED 20.9.2001 EXHIBIT R5(H) TRUE COPY OF THE JUDGMENT DATED 30.10.2001 IN OP 29073/2001 EXHIBIT R5(I) TRUE COPY OF THE REPRESENTATION DATED 6.5.2005 BEFORE THE MINISTER OF COOPERATION BY THE VARIOUS UNIONS EXHIBIT R5(J) TRUE COPY OF CS(1) 34203/2004 DATED 16.6.2005 ISSUED BY THE 2ND RESPONDENT EXHIBIT R5(K) TRUE COPY OF THE JUDGMENT DATED 5.8.2005 IN WA 3813/2001 EXHIBIT R5(L) TRUE COPY OF THE NOTES DATED NIL RECEIVED BY THE RESPONDENTS EXHIBIT R5(M) TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 5TH RESPONDENT EXHIBIT R5(N) A TRUE COPY OF THE ORDER NO AD(2)SP/04-05 DATED 2.3.2006 EXHIBIT R5(O) TRUE COPY OF THE ORDER NO AD(2)S[/0405 DATED 3.8.2010 EXHIBIT R5(P) A TRUE COPY OF THE FEEDER CATEGORY

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	RULES OF 3RD RESPONDENT
EXHIBIT R5(Q)	A TRUE COPY OF THE GO(P) 144/2009/CO- OP DATED 19.8.2009
EXHIBIT R5(R)	A TRUE COPY OF THE PROCEEDINGS NO AD(2) SP/2004-05 DATED 20.1.2001
EXHIBIT R5(S)	A TRUE COPY OF THE PROCEEDINGS NO AD(2) SP 2004-05 DATED 20.1.2011
EXHIBIT R5(T)	A TRUE COPY OF THE RELEVANT PORTION OF THE SENIORITY LIST PUBLISHED BY THE 3RD RESPONDENT
EXHIBIT R5(U)	A TRUE COPY OF THE JUDGMENT DATED 11.3.2011 IN WA 159/2011 AND CONNECTED CASES
EXHIBIT R5(V)	ORDER NO.CS (1)5142/2006 dated 8/2/2006 of the 2nd respondent.
EXHIBITR5(w)	ORDER NO.CS(1) 21379/97 DATED 4/6/1997 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT R3 A	A TRUE COPY OF THE ORDER NO.CS(1)5142/2006 DATED 8/2/2006 ISSUED BY THE REGISTRAR OF CO- OPERATIVE SOCIETIES

Fredy.J v. State of Kerala

Case brief

What is this about?

What did the court decide?

Fredy.J v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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