A. Ambika v. State of Kerala and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN** **FRIDAY, THE 22ND JULY 2011 / 31ST ASHADHA 1933** **WP(C).No. 14156 of 2011(T)** **--------------------------------------** **PETITIONER:** - **-------------------** **A.AMBIKA, ASSISTANT SECRETARY, THIRUVANANTHAPURAM SERVICE CO-OPERATIVE BANK LIMITED, T.131, PRESS ROAD, THIRUVANANTHAPURAM695 001.** **BY SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE, ADVS. SRI.P.K.MANOJKUMAR, SMT.HENA BAHULEYAN.** **RESPONDENTS:** **------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, CO-OPERATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM-695 001.** **3. THE THIRUVANANTHAPURAM SERVICE CO-OPERATIVE BANK LIMITED, T.131, REPRESENTED BY ITS SECRETARY, HEAD OFFICE, PRESS ROAD, THIRUVANANTHAPURAM-695 001.** **4. K.VIJAYAKUMAR, BRANCH MANAGER, THIRUVANANTHAPURAM SERVICE CO-OPERATIVE BANK LIMITED, T.131, SREEKARYAM BRANCH, THIRUVANANTHAPURAM-695 044.** **R1 & R2 BY SPL. GOVT. PLEADER SMT. ANU SIVARAMAN, R3 BY ADVS. SRI.V.G.ARUN,** **SRI.T.R.HARIKUMAR, R4 BY ADV. SMT.M.HEMALATHA.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/07/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C). NO.14156/2011-T:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXT.P.1: COPY OF THE ORDER NO.4200/ADMN/10-11 DTD. 16/09/2010 ISSUED BY THE PRESIDENT, THIRD RESPONDENT BANK.** **EXT.P.2: COPY OF THE ORDER NO.7571/EST/99-2000 DTD. 20/11/1999 ISSUED BY THE PRESIDENT, THIRD RESPONDENT BANK.** **EXT.P.3: COPY OF THE ORDER NO. EM(2)22068/2001 (1) DTD. 06/07/2001 , REGISTRAR OF CO-OPERATIVE SOCIETIES, TO THE PRESIDENT.** **EXT.P.4: COPY OF THE HEARING NOTE DTD. 26/10/2002 SUBMITTED BY THE PETITIONER, BEFORE THE HON'BLE SECRETARY TO GOVERNMENT, TVM.** **EXT.P.5: COPY OF THE ORDER G.O.(RT).NO.204/2003/CO-OP. DTD. 01/04/2003 ISSUED BY THE GOVERNMENT, TO THE APPLICANT.** **EXT.P.6: COPY OF THE ORDER NO. EM(2)47882/10/DTD. 31/03/2011 ISSUED BY THE JOINT REGISTRAR (S.C/S.T), SECOND RESPONDENT.** ## **EXT.P.7: COPY OF THE REPRESENTATION DTD. 20/04/2011 SUBMITTED BY THE PETITIONER BEFORE THE THIRD RESPONDENT BANK.** **EXT.P.8: COPY OF THE SENIORITY LIST OF STAFF AS ON 01/04/2000 ISSUED BY THE SECRETARY, TRIVANDRUM SERVICE CO-OPERATIVE BANK LTD. NO.T.131.** ## **RESPONDENTS' EXHIBITS:** **EXT.R4.A: COPY OF THE ORDER DTD. 07/07/2001 VIDE NO.2494/ADMN/01-02 OF THE PRESIDENT OF THE R.3. BANK.** **EXT.R4.B: COPY OF THE FEEDER CATEGORY SUB RULES.** **EXT.R4.C: COPY OF THE ORDER G.O.(RT).NO.78/96-CO-OP. DTD. 07/03/1996.** **EXT.R4.D: COPY OF THE ORDER NO.E.M.(2)/20448/10 DTD. 24/04/2010.** **EXT.R4.E: COPY OF THE NOTIFICATION IN G.O.(P).NO.197/2005/CO-OP. DTD. 10/08/2005.** **EXT.R4.F: COPY OF THE SENIORITY LIST KEPT BY THE R.3. BANK.** **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## **P.N.RAVINDRAN, J.** --------------------------------------------- WP (C) No. 14156 of 2011 --------------------------------------------Dated this the 22[nd] day of July, 2011 ## JUDGMENT The petitioner, an employee of the third respondent bank, has filed this writ petition challenging Exts.P3 and P5 orders issued by the Registrar of Co-operative Societies and the Government respectively and Ext.P6 letter sent by the Registrar of Co-operative Societies to the President of the third respondent bank. The brief facts of the case are as follows: 2. The petitioner is presently working as Assistant Secretary of the third respondent bank. The fourth respondent is presently working as Branch Manager in the Sreekaryam branch of the third respondent bank. The fourth respondent entered service as Junior Clerk on 17.10.1983. He was promoted as Senior Clerk on 1.7.1991 and as Accountant on 1.8.1995. The petitioner entered service as Junior Clerk on 18.6.1984. She was promoted as Senior Clerk in the year 1992 and as Accountant in the year 1995. The petitioner was admittedly junior to the fourth respondent in the entry post. When vacancies of Branch Manager arose, since the fourth respondent did not possess a degree, which is the basic WP (C) No. 14156 of 2011 2 educational qualification prescribed for the post, he was only provisionally promoted as Branch Manager subject to the condition that he should obtain exemption from the Registrar of Co-operative Societies within six months and will be paid salary in the scale of pay of Branch Manager only after the exemption is obtained. This was as per Ext. P2 order dated 20.11.1999. By the same order, the petitioner herein, who was then working as Accountant was promoted as Branch Manager. The petitioner was later promoted as Assistant Secretary of the third respondent bank with effect from 16.9.2010. 3. The Board of Directors of the third respondent bank had before issuing Ext. P2 proceedings, resolved to request the Registrar of Co-operative Societies to exempt the fourth respondent from possessing a degree. A request was also made for such relaxation. The Joint Registrar of Co-operative Societies recommended the grant of exemption as per letter dated 21.6.2001. The Registrar of Co-operative Societies thereupon passed Ext. P3 order dated 6.7.2001 exempting the fourth respondent from possessing a degree for the purpose of promotion to the post of Branch Manger. He also directed that WP (C) No. 14156 of 2011 3 the relaxation granted will take effect from 13.11.1999, the date on which the third respondent bank resolved to request the Registrar to exempt the fourth respondent. Aggrieved by Ext.P3, the petitioner filed an appeal before the Government. After hearing the petitioner and respondents 3 and 4, the Government upheld Ext. P3 and dismissed the appeal by Ext. P5 order dated 1.4.2003. The petitioner did not challenge Ext. P5 and it has become final. 4. Since the Government had not stayed the operation of Ext.P3, the third respondent bank promoted the fourth respondent as Branch Manager on a regular basis with effect from 15.11.1999 with all attendant benefits and the fourth respondent worked as Branch Manger without break. Since Ext.P5 became final, the fourth respondent moved the Joint Registrar of Co-operative Societies by filing a representation dated 12.10.2010 wherein, relying on Ext.P3 order of exemption, he requested the Registrar of Co-operative Societies to issue orders directing the third respondent bank to promote him to the category of Assistant Secretary/Chief Accountant. The said representation was submitted within one WP (C) No. 14156 of 2011 4 month from the date on which the petitioner was promoted as Assistant Secretary. On receipt of the said representation, the Registrar of Co-operative Societies called for a report from the Joint Registrar of Co-operative Societies (General), Thiruvananthapuram who submitted a report to the effect that the fourth respondent is eligible for promotion to the category of Assistant Secretary/Chief Accountant. The Registrar of Cooperative Societies thereupon sent Ext. P6 letter dated 31.3.2011 to the President of the third respondent bank directing him to promote the fourth respondent to the category of Assistant Secretary/Chief Accountant based on his seniority. This writ petition was thereupon filed on 22.5.2011 challenging Exts. P3, P5 and P6. The main ground of challenge to Ext.P6 is that before it was sent directing the fourth respondent to be promoted based on his seniority, the petitioner was not put on notice or heard. The next ground of challenge to Ext.P6 is that the Registrar of Co-operative Societies does not have jurisdiction to interfere in a dispute relating to service conditions of employees including a dispute relating to promotion, the Co-operative Arbitration Court alone can WP (C) No. 14156 of 2011 5 entertain such a dispute and therefore the direction in Ext. P6 is without jurisdiction. As regards Ext. P3 the main ground of challenge is that the Registrar of Co-operative Societies erred in giving retrospective effect to the order of exemption and the exemption should have been given only with prospective effect. Ext.P5 is challenged on the ground that it is a cryptic order and does not give any valid reason for upholding Ext. P3. 5. The fourth respondent has filed a counter affidavit contending interalia that he was all along senior to the petitioner, that the bank had resolved, even before temporarily promoting him as Branch Manager, to exempt him from possessing a degree, that Ext.P3 order passed by the Registrar of Co-operative Societies approving the relaxation granted by bank was upheld by the Government more than eight years back and therefore the petitioner cannot successfully challenge the said orders at this point of time. It is also contended that after Ext.P3 order was passed, the fourth respondent was regularly promoted as Branch Manager with effect from 15.11.1991 as per Ext.R4(a) proceedings dated 7.7.2001 and that as he never lost his seniority, he is entitled to be WP (C) No. 14156 of 2011 6 promoted as Assistant Secretary/Chief Accountant earlier than the petitioner. It is also contended that petitioner has not chosen to challenge Ext.R4(a) and therefore on that ground also, the writ petition is liable to be dismissed. 6. I heard Sri.P.K.Manoj Kumar, learned counsel appearing for the petitioner, Smt. Anu Sivaraman, learned Special Government Pleader, appearing for respondents 1 and 2, Sri. T.R.Harikumar, learned counsel appearing for the third respondent and Smt. M.Hemalatha, learned counsel appearing for the fourth respondent. From the pleadings and the materials on record, it is evident that the fourth respondent is senior to the petitioner in service. They were both promoted to the category of Branch Manger as per Ext.P2 proceedings dated 20.11.1999 with effect from 15.11.1999. When the order of promotion was passed, the fourth respondent did not possess a degree and therefore he was only provisionally promoted subject to his obtaining exemption from possessing the said qualification. Even before the order of promotion was passed, the Board of Directors of the third respondent bank had resolved to exempt him from possessing the graduate WP (C) No. 14156 of 2011 7 qualification. Though the prior approval of the Registrar of Cooperative Societies had not been obtained before such a decision was taken, it was later granted by Ext.P3 order dated 6.7.2001 where by the Registrar of Co-operative Societies approved the grant of exemption with effect from 13.11.1999. The said order had attained finality for the reason that the appeal filed by the petitioner was rejected by the Government by Ext.P5 order dated 1.4.2003. The petitioner was heard before the said order was passed. Therefore at this distance of time, the petitioner cannot challenge Exts. P3 and P5. 7. After Ext. P3 order was passed by the Registrar of Cooperative Societies, the fourth respondent was regularly promoted as Branch Manager with effect from 15.11.1999 with all attendant benefits including back wages as per Ext.R4(a) order dated 7.7.2001. The petitioner did not challenge the said order by instituting appropriate proceedings in the Cooperative Arbitration Court or before any other competent authority. The petitioner has no case that she was unaware of the said order. It is thus evident that the fourth respondent is a Branch Manger for all practical purposes with effect from WP (C) No. 14156 of 2011 8 15.11.1999. That apart, in Ext.R4(d) letter sent from the office of the Registrar of Co-operative Societies it is stated that if an employee has been exempted from possessing a degree for the purpose of promotion to the category of Branch Manager, the employee need not again seek exemption for the purpose of promotion to the category of Assistant Secretary/Chief Accountant. Such being the situation, as the fourth respondent was senior to the petitioner in the entry post and that seniority was never lost, he was entitled to be promoted as Assistant Secretary in preference to the petitioner. The order passed by the third respondent bank on 16.9.2010 promoting the petitioner as Assistant Secretary, overlooking the seniority of the fourth respondent is therefore illegal. 8. In the light of these admitted facts, I am of the opinion that no conclusion other than one arrived at by the Registrar of Co-operative Societies, which led to the direction contained in Ext. P6 being issued, could have been arrived at even if the petitioner had been put on notice and heard. The petitioner who allowed Exts.P3 and P5 to attain finality and did not WP (C) No. 14156 of 2011 9 challenge Ext. R4 (a) order, regularly promoting the fourth respondent as Branch Manger with effect from 15.11.1999, could not have contended that the fourth respondent is her junior in the category of Branch Manager and therefore she is entitled to be promoted as Assistant Secretary. As held by the Apex Court, in **S.L.Kapoor vs. Jagmohan [AIR 1981 SC 136]** if no conclusion other than the one arrived at is possible on the admitted facts, an order need not be set aside merely for the reason that it was passed in violation of the principles of natural justice. I therefore find no reason to interfere with Ext. P6 on that ground. 9. That takes me to the question whether Ext.P6 is liable to be set aside on the ground that the Registrar of Co-operative Societies did not have the jurisdiction to entertain a dispute relating to promotion/seniority after the Kerala Co-operative Societies Act was amended with effect from 2.1.2003. A learned Single Judge of this Court has in **Prakshishini Vs. Joint Registrar [2006(1) KLT 199]** held that with effect from 2.1.2003, all disputes in connection with employees of cooperative societies including disputes relating to promotion WP (C) No. 14156 of 2011 10 and inter se seniority of employees will have to be decided by the Co-operative Arbitration Court and the Registrar of Cooperative Societies does not have the jurisdiction to entertain such disputes. The said decision was approved by a Division Bench of this Court in **Raveendran Vs. State of Kerala [2007 (3) KLT 558].** The petitioner is therefore right in contending that the Registrar of Co-operative Societies could not have issued the direction contained in Ext.P6. However in my view on the facts of this case that by itself is not a reason to invalidate Ext.P6. The Apex Court has in **Mohammed Swalleh** **vs. III[rd ] Additional District Judge [1988 (1) SCC 40]** held that even though the order impugned before the High Court was one passed by an incompetent authority, as the High Court exercising jurisdiction under Article 226 of the Constitution of India could have passed the very same order, the High Court was right in declining to interfere with that order. In **Commissioner of Police vs. Abida Beevi [2006 (2) KLT 112],** applying the said principle, this Court held that though the Lok Ayuktha had no jurisdiction to pass the order impugned in the writ petition, as this Court could have passed WP (C) No. 14156 of 2011 11 the same order and the order renders justice to the parties, this Court need not interfere with it. In the light of the facts set out above which are beyond challenge, I am of the opinion that even though the direction in Ext.P6 is one issued by an incompetent authority, as the order renders justice and it is otherwise in order, this Court need not quash it and relegate the parties to the forum having jurisdiction. I accordingly hold that there is no merit in the writ petition. The writ petition fails and is dismissed. No costs. **P.N.RAVINDRAN, JUDGE.** rkc