Abdul Gafarkhan A v. Joint Registrar of Co-operative Societies (G), Kollam; Mayyanad Regional Co-operative Bank Ltd. & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS WEDNESDAY, THE 18TH DAY OF JUNE 2014/28TH JYAISHTA, 1936 WA.No. 746 of 2013 (B) IN WP(C).24611/2011 -------------------------------------------AGAINST THE JUDGMENT IN WP(C) 24611/2011 of HIGH COURT OF KERALA DATED 12-04-2013 APPELLANT(S)/PETITIONER : -----------------------------------------ABDUL GAFARKHAN.A ACCOUNTANT/HEAD CLERK MAYYANAD REGIONAL CO-OPERATIVE BANK LTD.NO.94 MAYYANAD, KOLLAM DISTRICT. BY ADV. SRI.P.N.MOHANAN RESPONDENT(S)/RSEPONDENTS 1 & 2/ADDL.R3 TO 6 IMPLEDED : ----------------------------------------------------------------------------------------------- 1. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (G) KOLLAM-691 001. 2. MAYYANAD REGIONAL CO-OPERATIVE BANK LTD.NO.94 REPRESENTED BY ITS SECRETARY, MAYYANAD KOLLAM DISTRICT-691 303. - ADDITIONAL RESPONDENS 3 TO 6 IMLEADED 3. JAYASREE C. - WORKING AS SENIOR CLERK MAYYANAD REGIONAL CO-OPERATIVE BANK LTD.NO.94 MAYYANAD, KOLLAM, RESIDING AT SAPHALYAM MADANNADA, KOLLAM-691 001. 4. SUMABAI A. - WORKING AS SENIOR CLERK MAYYANAD REGIONAL CO-OPERATIVE BANK LTD.NO.94 MAYYANAD, KOLLAM, RESIDING AT PALAKKATTIL VEEDU KOTTAPPURAM, PARAVOOR, KOLLAM-691 301. 5. SUNIL LAL WORKING AS SENIOR CLERK MAYYANAD REGIONAL CO-OPERATIVE BANK LTD.NO.94 MAYYANAD, KOLLAM, RESIDING AT GEETHA BHAVANAM PATTATHANAM P.O., KOLLAM-691 001. 6. SUBHAKUMAR WORKING AS SENIOR CLERK MAYYANAD REGIONAL CO-OPERATIVE BANK LTD.NO.94 MAYYANAD, KOLLAM, RESIDING AT THANNOLIL VEEDU AKKOLIL, KOTTIKKADA P.O., KOLLAM-691 009. R2 BY ADV. SRI.P.HARIDAS R2 BY ADV. SMT.S.SIKKY ADDL.3 -R 6 BY ADV. SRI.LEO GEORGE R1 BY GOVERNMENT PLEADER SRI.P.M.SANEER THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.A.746/13 ## APPELLANT'S EXHIBITS: - ANNEXURE A1: A TRUE COPY OF THE NOTIFICATION DATED 8.4.95 OF MINISTRY OF HUMAN RECOURCE DEVELOPMENT. - ANNEXRE A2: A TRUE COPY OF THE RECOGNITION POLICY OF THE DISTANCE EDUCATION COUNCIL. - ANNEXURE A3: A TRUE COPY OF THE JUDGMENT DATED 12.4.2013 IN W.P(C). 24611/11. /TRUE COPY/ PS TO JUDGE ANTONY DOMINIC & ALEXANDER THOMAS, JJ. ----------------------------------W.A.No.746 of 2013 ----------------------------------Dated this the 18[th] day of June, 2014 ## JUDGMENT ## Antony Dominic, J. 1.This appeal is filed by the unsuccessful petitioner in W.P(C).24611/11, which was dismissed by judgment dated 12.4.2013. Bereft of the details that are unnecessary, the writ petition was filed by the appellant raising a claim to the post of Branch Manager in the second respondent co-operative bank and also challenging Ext.P14 order passed by the Joint Registrar, negativing his claim to that post. According to the appellant, he is a B.Com graduate obtained under the Distance Education Programme of Vinayaka Mission University, Salem and that therefore, he is qualified under Rule 186 of the Kerala Co-operative Societies Rules, 1969 (hereinafter, the 'Rules', for short). It is contended that his claim has been illegally turned down by Ext.P14 and this, in short, is the issue canvassed. WA.746/13 2 - 2.Although additional respondents 3 to 6 disputed the very genuineness of the degree allegedly obtained by the appellant and relied on Exts.R3(a) to (e) and also the Apex Court judgment in Prof.Yashpal v. State of Chhattisgarh [(2005) 5 SCC 420], in our considered view, for the disposal of the writ appeal, it is unnecessary to deal with those contentions and therefore, we refrain from dealing with those aspects. - 3.The first contention raised by the learned counsel for the appellant is that under Rule 186(1) of the Rules, the educational qualification prescribed for appointment to the post of Branch Manager is degree in Commerce or Masters Degree in Arts of a recognized university with co-operation as a special subject. This, he says, is satisfied by him and Ext.P2 degree certificate issued by the aforesaid university is relied on. Counsel therefore contends that in Ext.P14, his claim is rejected on the ground that the Distance Education Programme of the Vinayaka Mission University should be approved by the Distance WA.746/13 3 Education Council of the Indira Gandhi National Open University and that such approval is not satisfied in this case. Counsel states that while such approval has been made mandatory for employment under the Central Government as per Annexure A1 notification, in so far as employments under the State Government or in the Co-operative sector are concerned, there is no such requirement. For that purpose, learned counsel relied on Ext.P6 notification issued by the Government of Kerala on 17.7.1965 and says that being an eligible candidate, the claim of the appellant is eligible to be considered. 4.We are unable to accept the contention that approval by the Distance Education Council of the IGNOU is unnecessary, for the following reasons. On an earlier occasion, the appellant had filed W.P(C). 23529/10, which was disposed of by this Court by Ext.P12 judgment. In that judgment, the question arose for consideration was answered by the learned single Judge in paragraph 3 by holding thus: WA.746/13 4 “3. A statement has been filed in this writ petition by the second respondent. In essence, the contention raised thereunder is that the petitioner lacks the educational qualification prescribed under Rule 186 of the Rules. According to the second respondent, the degree obtained by the petitioner is not one recognized by the Universities of Kerala. I am of the considered view that the second respondent cannot assign the said reason for rejecting the claim of the petitioner in the light of the decision of this Court reported in **Mujeeb Rahman v. State of Kerala(2005(1) KLT 680).** Going by the law laid down thereunder as also in the light of the relevant provisions under the Kerala Cooperative Societies Act and Rules, the 2nd respondent cannot sustain the aforesaid objection. Admittedly, there is nothing in Rule 186 which would suggest that the degree in question would be one recognised by the Universities of Kerala. That apart, the degree obtained by the petitioner is a prescribed qualification therein. Therefore, the question is whether Ext.P3 would show that the Vinayaka Mission University has been recognized by the University Grants Commission. Ext.P4 would reveal that degrees/ diplomas awarded through Distant Education by the Universities like Vinayaka Mission University stand automatically recognized for the purpose of employment to posts and services provided it has been approved by the Distant Education Council, IGNOU, New Delhi. In view of the said notification, the fact whether the very degree/diploma awarded to the petitioner has WA.746/13 5 been approved by the Distant Education Council, IGNOU, New Delhi is to be looked into. In the absence of such approval by Distant Education, IGNOU any degree or diploma awarded by Vinayaka Mission University like the present which was conferred on the petitioner cannot be recognized. In this case, it is evident that the petitioner did not produce the degree certificate obtained from Vinayaka Mission University before the first respondent. He had only produced Ext.P2 mark list. The learned counsel appearing for the petitioner submitted that subsequently, the petitioner had produced the degree certificate itself before the second respondent bank. In view of the facts thus obtained in this case, I am of the view that Ext.P10 order requires a re-consideration. 4. As already noticed, in view of the relevant rules the question whether the degree possessed by the petitioner is one which is recognized by any of the Universities of Kerala is not at all relevant in the context of the case. What is relevant is whether the University that conferred the degree to the is a petitioner recognized University. However, in the light of Ext.P4 the first respondent is also bound to look into the question whether the degree or diploma awarded through distant education by Vinayaka Mission University has approval from the Distant Education Council, IGNOU, New Delhi. The learned counsel for the petitioner contends that the said question cannot be looked into by the first respondent in view of WA.746/13 6 the decision in **Mujeeb Rahman v. State of Kerala (2005(1) KLT 680).** and that the only question which can be looked into is whether the University in question viz., Vinayaka Mission University is a recognized University or not. I am afraid, I cannot countenance with the aforesaid contention for the reason that the very document produced by the petitioner viz., Ext.P4 to show that the University is a recognized one virtually calls for such a probe. As per Ext.P4 any degree or diploma awarded through the distant education by Universities like Vinayaka Mission University would stand automatically recognised for the purpose of employment to posts and services only if it is approved by the Distant Education Council, IGNOU, New Delhi. In other words, in the absence of such an approval by the distant education council a degree awarded by Vinayaka Mission University cannot be recognized at all for any employment purpose going by Ext.P4. Therefore, according to me, the eligibility of the petitioners for promotion depends upon such an approval by the Distant Education Council, IGNOU, New Delhi. Therefore, the first respondent shall look into the question whether such an approval has been given by the Distant Education Council, IGNOU, New Delhi as enjoined in Ext.P4. Needless to say that if such an approval has been granted by the Distant Education Council, IGNOU for the degree conferred by Vinayaka Mission University possessed by the petitioner the fact that the said degree has not been recognized by any of the Universities of WA.746/13 7 Kerala cannot be assigned a reason for rejection of the claim of the petitioner. In view of the above discussion, the first respondent is to directed to reconsider Ext.P8 representation. To enable the first respondent to consider the same, Ext.P10 is set aside. This shall be done by the first respondent expeditiously, at any rate, within a period of one month from the date of receipt of a copy of this judgment. The interim order dated 14.10.2010 will continue till such a decision is taken by the first respondent on Ext.P8.” 5. The learned single Judge has held that the eligibility of the appellant for promotion depends upon the question whether the university had conducted the Distance Education Programme with the approval of the Distance Education Council of IGNOU at New Delhi. It was on that basis, the learned single Judge ordered that the matter be considered by the Joint Registrar, which led to Ext.P14. - 6.Ext.P12 judgment has become final. Once the judgment has become final, in view of the findings therein, it is not open to the appellant now to turn around and WA.746/13 8 argue that the approval of the Distance Education Council, having not been made a condition in Ext.P6 notification or in Rule 186, is unnecessary. Therefore, we are unable to accept this contention of the learned counsel. - 7.The second contention raised was that even if it is accepted that the approval of the Distance Education Council is necessary, Annexure A2, the Recognition Policy of the DEC, shows that the Vinayaka Mission's University, Salem was granted post facto approval by the DEC till 2005 and regular recognition from February, 2007 to February, 2012. Counsel contends that since Ext.P2 degree certificate was issued to the appellant in August, 2005, the degree programme undergone by him is covered by the post facto recognition (approval) granted by the DEC. - 8.The question therefore is whether the DEC could have granted post facto approval or recognition. In our view, that question has been answered by the Apex Court in its judgment in Annamalai University v. WA.746/13 9 Secretary to Government, Information and Tourism Department [(2009) 4 SCC 590] vide paragraph 58, where it has been held thus: - “58. The only point which survives for our consideration is as to whether the purported post facto approval granted to the appellant University of programmes offered through distance modes is valid. DEC may be an authority under the Act, but its orders ordinarily would only have a prospective effect.” - 9.Reading of the above shows that the power of approval conferred on the DEC could have been exercised only for approval with prospective effect and not with retrospective effect. If that be so, post facto recognition mentioned in Annexure A2 also could not have validated the degree obtained by the appellant from Vinayaka Mission University, Salem. If that be so, the conclusion of the Joint Registrar as reflected in Ext.P14 and confirmed by the learned singe Judge does not suffer from any illegality. WA.746/13 10 - 10.We once again clarify that the contentions raised by the learned counsel for additional respondents 3 to 6 have not been dealt with in this judgment and those issues are left open. Appeal is dismissed. Sd/- ANTONY DOMINIC, Judge. Sd/ALEXANDER THOMAS, Judge. kkb.