Asamol P.R. v. Registrar of Co-operative Societies, Thiruvananthapuram & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **THURSDAY, THE 12[TH] DAY OF AUGUST 2021 / 21ST SRAVANA, 1943 WA NO. 2544 OF 2019** **AGAINST THE ORDER/JUDGMENT IN WP(C) 15828/2019 OF HIGH COURT OF KERALA** **APPELLANT/S:** **ASAMOL.P.R, AGED 43 YEARS PEON, KOTTAYAM DISTRCT CO-OEPRATIVE BANK LTD., HEAD OFFICE, KOTTAYAM, RESIDING AT PAITTETTUPARAMBIL, ATHIRAMPUZHA P.O., KOTTAYAM DISTRICT-686002** **BY ADVS. M.M.MONAYE M.PAUL VARGHESE** ## **RESPONDENT/S:** - **1 THE REGISTRAR OF CO OPERATVIE SOCIETIES THIRUVANANTHAPURAM-695 001** - **2 THE PART-TIME ADMINISTRATOR, KOTTAYAM DISTRICT CO-OEPRATIVE BANK LTD, HEAD OFFICE, KOTTAYAM-686 001, (JOINT REGISTRAR OF COOEPRATIVE SOCIETIES (GENERAL) KOTTAYAM** - **3 THE KOTTAYAM DISTRICT CO-OEPRATIVE BANK LTD REPRESENTED BY ITS GENERAL MANAGER, HEAD OFFICE, KOTTAYAM-686 001,** W.A.No.2544 of 2019 2 - **4 REVATHI VISWAMBARAN** **BILL COLLECTOR, KOTTAYAM DISTRICT CO-OEPRATIVE BANK LTD, VAIKOM MAIN BRANCH, KOTTAYAM, RESIDING AT VALIYAPARAMBIL HOUSE, KOTHAVARA P.O., VAIKOM, KOTTAYAM DISTRICT-686 607** ## **5 PRASANTH K.S.,** **BILL COLLECTOR, KOTTAYAM DISTRICT CO-OEPRATIVE BANK LTD, KOTTAYAM TOWN BRANCH, KOTTAYAM, RESIDING AT KAYALIL HOUSE, KUMARAKOM, KOTTAYAM DISTRICT-686 563** - **6 SINDHUMOL NARAYANAN** **BILL COLLECTOR, KOTTAYAM DISTRICT CO-OEPRATIVE BANK LTD, KURUPPANTHARA BRANCH, KOTTAYAM, RESIDING AT VAIPPEL HOUSE, MEVELLORE P.O., KOTTAYAM DISTRICT-686 609** - **7 SANTHOSH KUMAR.C.R.,** **BILL COLLECTOR, KOTTAYAM DISTRICT CO-OEPRATIVE BANK LTD, MANARCAUD BRANCH, KOTTAYAM, RESIDING AT MATTATHIL HOUSE, THIDANADU P.O., KOTTAYAM DISTRICT-686 123** ## **8 SALINI,** **BILL COLLECTOR, KOTTAYAM DISTRICT CO-OEPRATIVE BANK LTD, PAMPADY BRANCH, KOTTAYAM, RESIDING AT ARUN NIVAS, CHAMBAKKARA P.O., KOTTAYAM DISTRICT686 540** - **9 PUSHPALATHA.K.C.,** - **PEON, KOTTAYAM DISTRICT CO-OEPRATIVE BANK LTD, THAZHATHANGADI BRANCH, KOTTAYAM,RESIDING AT PUTHENPARAMBIL HOUSE, THIRUVARPPU, KOTTAYAM DISTRICT-686 020** W.A.No.2544 of 2019 3 **10 SIBY MATHEW, PEON, KOTTAYAM DISTRICT CO-OEPRATIVE BANK LTD, MUNDAKAYAM EVENING BRANCH, KOTTAYAM, RESIDING AT KALAPPURAKKAL HOUSE, PARATHODE P.O., KOTTAYAM DISTRICT-686 512** - **11 THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM P.O., THIRUVANANTHAPURAM-695 004 ( ADDL.R11)** - **12 REJESH.V., AGED 36 YEARS** - **BILL COLLECTOR, KOTTAYAM DISTRICT CO-OEPRATIVE BANK LTD, PALA MAIN BRANCH, KOTTAYAM, RESIDING AT MAMALASSERIL HOUSE, KADUTHURUTHY P.O, KOTTAYAM DISTRICT-686 604** - **13 ANIL GOPINATH BILL COLLECTOR, KOTTAYAM DISTRICT CO-OEPRATIVE BANK LTD, PERUMPANACHI BRANCH, KOTTAYAM, RESIDING AT AT UTHINTHANATHIL, CHAMBAKARA P.O., KARUKACHAL, KOTTAYAM DISTRCT-686 540,** - **14 JISHA .P.S., PEON, KOTTAYAM DISTRICT CO-OEPRATIVE BANK LTD, VAIKOM MORNING AND EVENING BRANCH, KOTTAYAM,RESIDING AT THILAMKANDATHIL, ARATTUKULANGARA, VAIKOM, KOTTAYAM DISTRICT-686 141** ## **BY ADV SRI.ATHUL SHAJI** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.No.2544 of 2019 4 ## **JUDGMENT** ## **Ravikumar, J.** The 4[th] petitioner in W.P.(C)No.15828 of 2019 filed this appeal against the judgment passed thereon. He along with respondents 12 to 14 herein filed the said writ petition seeking the following reliefs:- - (i) to declare that only graduates with qualifications as stated in Rule 186 as well as in the staff regulation alone can be considered for promotion to the post of clerk/cashier; - (ii) to issue a writ of mandamus or any other appropriate writ, order or direction, directing respondents 2 and 3 to promote the petitioners who has acquired qualification as per the staff regulation. 2. The appellant and respondents 4 to 14 are employees of the erstwhile Kottayam District Co-operative Bank in the sub staff category, either in the post of peon or bill collectors. The appellant and respondents 12 to 14 filed the above mentioned writ petition stating that they are graduates possessing all the required qualifications prescribed for promotion to the post of clerk/cashier under Rule 186 of the Kerala Co-operative Societies Rules, 1969 (for brevity ‘KCS Rules’) and raising grievance that the 3[rd] respondent-Bank has been granting promotion to non-graduates under the quota ear-marked for sub staff W.A.No.2544 of 2019 5 category though they are not eligible to be promoted. They apprehend that have respondents 4 to 11 herein, despite being non-graduates working in the sub staff category, would be promoted against the quota for sub staff in the matter of promotion to the post of clerk/cashier. According to them consideration of non-graduate sub staff like respondents 4 to 12 for such promotion against the quota allotted to the in-service candidates would violate Section 80(3A) of the Kerala Cooperative Societies Act, 1969( for short ‘KCS Act’, Rules 185 and 186 (1)(4) of the KCS Rules. The party respondents 4 to 11 and respondents 1 to 3 resisted the claims and contentions of the writ petitioners. As per the impugned judgment the learned Single Judge repelled the contentions of the petitioners and dismissed the writ petitioners. Though the writ petition was filed by the appellant herein along with respondents 12 to 14 this appeal is preferred by the 4[th] petitioner alone. 3. Heard the learned counsel for the parties. 4. Based on the rival pleadings and the rival contentions the learned Single Judge found that the question called upon to consider was ‘whether the non-graduates are entitled to be promoted to higher post of clerk-cum-cashier.’ The very case of the appellant that W.A.No.2544 of 2019 6 he is an employee belonging to in the same feeder category to which respondents 4 to 9 belong and the claim that she along with respondents 12 to 14, who are similarly situated, are entitled to get promotion by virtue of being graduates available in the said category would go to show that the appellant also admits the fact that as against the post of Clerk-cum-cashier promotion is permissible to certain extent. In fact, the very case of the appellant was that herself and respondents 12 to 14 are graduates and eligible to be promoted to the post of Clerk/Cashier in the vacancy earmarked for direct recruits and that graduation is the basic qualification for appointment as well as for promotion to the said post. 5. Rule 185 read with Rule 186 of KCS Rules would go to show that appointment to the post of Clerk/Cashier in District Cooperative Bank could be effected by way of promotion and direct recruitment. As per the proviso to Rule 185(1) promotion from sub category to the post of Junior Clerks shall be made only if such employees are having the required qualification and minimum three year service in the feeder category. Admittedly, Government in invocation of its power under Section 109 of the Kerala Co-operative Societies Act (KCS Act) read with Section 80(3) prescribed graduation W.A.No.2544 of 2019 7 as a qualification for promotion as well as for direct recruitment to the category of clerk/cashier. Earlier, G.O dated 30.9.1986 was issued prescribing qualification for the post of clerk/cashier. Subsequently, Kerala Public Service Commission issued a notification for appointment to the post of clerk/cashier prescribing a qualification thereunder based on G.O dated 30.09.1986. It was challenged on the ground that the action taken, without amending the qualification prescribed under Rule 186 of the KCS Rules, in prescribing qualification invoking the power under Section 109 of the Act got no legal sanctity. A Division Bench of this Court in **Public Service Commission v. Rameshan [2005 (4) KLT 466]** held that prescription of qualification as referred under Rule 186 was in relation to pay scale attached to a particular post. The power of the Government was considered with reference to Section 109 read with Section 80 (3) of the KCS Act and the Division Bench held that Government is competent to prescribe qualifications for different categories of posts including that of clerk/cashier. The said decision was unsuccessfully challenged before the Apex Court in Civil Appeal No.6734 of 2003 and connected cases. It is in the said context that the appellant contended that graduation is a requisite qualification for the purpose of promotion. In this context, it is to be noted that the claim W.A.No.2544 of 2019 8 of the appellant is against the posts earmarked for direct recruitment. Be that as it may, the earlier Government Order viz., G.O.(MS) No.79/86 Co-op dated 30.09.1986 was subsequently amended by G.O. (MS) No.9/88 Co-op dated 23.03.1988. The same was extracted in the impugned judgment of the learned Single Judge. Going by the same, which amended the earlier G.O dated 30.09.1986, graduation is not required for promotion to the post of clerk/cashier. Besides the said aspects, obviously the learned Single Judge had also considered the position obtained after the judgment of a Full Bench of this Court in **Sathyadevan v. Public Service Commission** reported in **[2008 (1) KLT 289 (FB)]** , based on a reference made doubting the correctness of **Rameshan's case** (supra). The Full Bench held that in **Rameshan's case** (supra) the subsequent amendment made to G.O dated 30.09.1986 was not taken into account and consequently, it was held that for the purpose of promotion to the post of clerk/cashier graduation is not required. After taking into account all the said aspects, the learned Single Judge held that in such circumstances the dictum in **Rameshan's case** (supra), though affirmed by the Apex Court in civil appeals, may not hold the field in regard to qualification prescribing graduation as mandatory for promotion as G.O dated W.A.No.2544 of 2019 9 30.09.1986 relied on was subsequently amended as per G.O dated 23.03.1988. A scanning of the impugned judgment would reveal that the contention with reference to Ext.P1 recruitment rules of the 3[rd] respondent Bank was also repelled by the learned Single Judge. The contention was that Ext.P1 recruitment rules prescribe graduation as the requisite qualification in the case of promotion to the post of clerk/cashier and therefore, the 3[rd] respondent Bank is also bound by the same. The learned Single Judge upheld the contention of respondents 4 to 11, the party respondents therein that Ext.P1 recruitment rules got no sanctity as per the KCS Act and the Rules as nothing is on record that Government have approved the recruitment rules in invocation of its power under Section 109 read with Section 80(3) of the KCS Act. It is such findings that are under challenge in this appeal. 6. Ground (G) raised in the appeal, if accepted would go against the appellant as what is contended thereunder is that appointment to the category of clerk/cashier in District Co-operative Banks shall be only by direct recruitment. In fact, the question to be considered is whether in respect of the quota allotted to in-service candidates non-graduates satisfying the other conditions are also W.A.No.2544 of 2019 10 eligible to be considered or graduates satisfying such conditions alone are eligible. There is no challenge against the power of the Government to prescribe qualification in terms of the power under Section 109 read with Section 80(3) of the KCS Act. The position with respect to the power of the Government to invoke the said provisions for the purpose of prescribing qualifications cannot be disputed in the light of the decision in **Rameshan's case** (supra) which was confirmed by the Apex Court in Civil Appeal No.6734 of 2003 and connected matters. When that question was considered and settled as aforesaid, in the context of G.O. (MS) No.79/86 Co-op. dated 30.09.1986 in the light of the indisputable position that an executive order can be amended, altered or modified by another executive order the factum of amendment of G.O(MS) dated 30.09.1986 as per G.O dated 23.03.1988 could not be ignored. It would reveal that G.O(MS) No.79/86 Co-op. dated 30.09.1986 was amended as per G.O dated 23.03.1988 and the impact of the said amendment is that graduation cannot be said to be a qualification that is mandatory for promotion. There is no challenge against G.O dated 23.03.1988. In other words, by virtue of the G.O dated 23.03.1988 the G.O dated 30.09.1986 which was relied on by the petitioner has become inoperative as it stood amended. The ground W.A.No.2544 of 2019 11 raised as 'E' also cannot fetch any benefit to the appellant. Sub-section (3A) of Section 80 of the KCS Act inserted as per Act 6 of 1995 dated 5.8.1995 pertains to appointment for which direct recruitment is to be resorted and going by the same it shall be made only from a select list of candidates furnished by the PSC. Since the appellant is not an aspirant for direct recruitment whereas she seeks promotion under the in-service quota the said provision is inapplicable and cannot support her case for promotion. When the case of the appellant is that promotion can be effected against the in-service quota for promotion to the post of clerk/cashier and when Government have issued G.O prescribing the qualification not mandating graduation as the qualification for promotion to the said post and the power of the Government to do so under Section 109 read with Section 80(3) of the KCS Act was upheld by the Hon'ble Apex Court, in the absence of a sustainable challenge against the G.O. dated 23.03.1988 the action in considering non-graduates belonging to the category of sub-staff forming feeder category to the post of clerk/cashier cannot be held as invalid or illegal. In the said circumstances the writ petition filed with the aforementioned prayers seeking declaration that only graduates with qualification as stated in Rule 186 as well as in the Staff Regulation W.A.No.2544 of 2019 12 alone could be considered for promotion to the post of clerk/cashier and a consequential prayer for issuance of mandamus to promote the appellant/petitioner, according to us, was rightly rejected by the learned Single Judge. For the forgoing reasons we do not find any merit in this appeal. Consequently, it stands dismissed. Sd/- **C.T.RAVIKUMAR Judge** sd/- **N.NAGARESH Judge** TKS W.A.No.2544 of 2019 13 ## **APPENDIX OF WA 2544/2019** **PETITIONER ANNEXURE ANNEXURE-A1 TRUE COPY OF THE SERVICE ORDER EST/434/05 12.19/2019-20 KOTTAYAM,DATED 29/11/2019 ANNEXURE-A2 TRUE COPY OF THE PROCEEDINGS NO CB (5) 784/2019 DATED 29.11.2019, OF THE 1ST RESPONDENT**