High Court of KeralaSingle Judge2019-09-20Writ petition dismissed.

B. Mitran v State of Kerala and others

Case / Petition Number:WP(C).23285/10

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: V.G. Arun
Judgment Date: 2019-09-20
Court Decision / Holding: Writ petition dismissed; no order as to costs.
Final Disposition: Writ petition dismissed.

Parties to the Case

Appellants / Petitioners

B. Mitran

Respondents

State of Kerala
Registrar of Co-operative Societies, Thiruvananthapuram
Kannur District Co-operative Bank Ltd., Kannur

Legal Representation & Advocates

Counsels for Petitioners

• M. P. Ashok Kumar

Counsels for Respondents

• Meena John
• M. Sasindran (Senior Counsel)

Case Synopsis & Summary

The petitioner, B. Mitran, a clerk in the Kannur District Co-operative Bank, sought relief against denial of an additional CAIIB increment and its treatment in subsequent promotions. He had earned Part I CAIIB and was granted an additional increment (Rs.18) from 1.8.1988 under G.O. MS 153/88, raising his pay from Rs.448 to Rs.466. Clause 3(x) of that Government Order permitted increments for CAIIB completion, with the caveat that such increments would be a one-time concession. Exhibit P3 issued by the Registrar of Co-operative Societies clarified that employees of District Co-operative Banks were entitled to the additional increment and that it should be paid as special pay, not treated as a regular increment, and should not be counted for subsequent pay revision. Despite this, petitioner’s later promotions to the posts of Accountant and Manager did not reflect the benefit. Exhibit P5 and P6 record adverse positions; Exhibit P6 was quashed by this Court (Exhibit P7) and a fresh consideration ordered. Yet, Exhibit P8 again denied the benefit, and Exhibit P10 ( Government decision) rejected the appeal on delay. The core legal issue concerns Section 83 of the Kerala Co-operative Societies Act, which prescribes a 60-day period for appeals to the Government or Registrar and contains no condonation provision. The court relies on Calicut City Service Co-operative Bank and another v State of Kerala and others and Thomas Thomas v Kottayam Municipality to hold that delay cannot be condoned by appellate authorities and that Article 226 cannot bypass statutory limits. The writ petition is ultimately dismissed.

Provisions of Law Cited

Kerala Co-operative Societies Act, Section 83(1), Section 83(2)Constitution of India, Article 226Limitation Act, Section 5

Legal Doctrines & Maxims

Appellate authorities do not have the power to condone delay; Section 83 provides the appeal mechanism with a 60-day limit and no condonation provision.
Article 226 cannot be used to bypass statutory restrictions; delay in filing appeals cannot be circumvented by invoking writ jurisdiction in the absence of statutory authority to condone delay.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the CAIIB Part I increment, granted on passing the examination, was intended as a special allowance and should have been extended to later scales and promotions, consistent with the Exhibit P3 clarification that it be treated as special pay and not a regular increment. He argues that the continued denial violates the spirit of the GO and the protected status of the increment, and that the Registrar’s refusal (Exhibit P8) and Government’s delay-based rejection (Exhibit P10) are inconsistent with the right to equitable pay treatment and the prior rulings in similar matters (Exhibits P7). The petitioner seeks a declaration of eligibility for the increment across all scales and a fresh, merits-based decision after considering all pertinent facts. He also challenges the delay in filing the appeal as a procedural impediment contrary to equity and public service norms. The petition urges that erroneous interpretation of the statutory framework undermines legitimate expectations and damages the petitioner’s pay progression and retirement benefits.

Contentions of Respondents

The respondents contend that Exhibit P8, and the Government’s denial via Exhibit P10, are valid, being anchored in Section 83 of the Kerala Co-operative Societies Act, which prescribes a 60-day time limit for appeals and contains no provision for condonation of delay. They argue that promotions and pay revisions must adhere to statutory limitations and that the authority to condone delays does not exist in the appellate machinery. They rely on Calicut City Service Co-operative Bank and others and Thomas Thomas to support the position that delay cannot be condoned, and Article 226 cannot override statutory restrictions. They submit that the clarifications in Exhibit P3 do not create a right to retroactive or across-the-board increments, and the petitioner’s delay in pursuing remedies weakens his case. They contend that the entire challenge must fail for lack of timely remedies and compliance with statutory prescriptions.

Cited Precedents (8)

Case Name	Citation	Treatment	Explanation
Calicut City Service Co-operative Bank and another v State of Kerala and others	2008 (3) KHC 917	Positive	Affirmed the proposition that appellate authorities do not have power to condone delay under Section 83; the present court adopts and follows this dictum.
Thomas Thomas and another v Kottayam Municipality and another	ILR 2008 (4) Kerala 70	Positive	Adopted the principle that Article 226 cannot bypass statutory restrictions; used to limit writ jurisdiction in the face of statutory delay.
Takuru v. Tanaji	1985(3) SCC 590	Positive	Cited for principle that Section 5 of the Limitation Act applies to court proceedings, not to statutory appeal mechanisms; used to reinforce non-condonable delay in statutory appeals.
L.S. Synthetics Ltd. v. Fairgrowth Financial Services Ltd. and Another	2004(11) SCC 456	Positive	Used to support that Limitation Act’s Section 5 applicability is restricted to court proceedings, not appeals under statutes; supports non-condonable delays.
District Execution Officer v. Abel	2006(2) KLT 758	Positive	Part of the reasoning that appellate authorities do not have the power to condone delay, aligning with Section 83’s strict timeframes.
Kerala Motor Transport Workers Welfare Fund Board v. Government of Kerala	2001(1) KLT 608	Positive	Supportive precedent regarding non-condonation of delays in statutory appeals; referenced to reinforce principle.
Prasad v. State of Kerala	1999 (2) KLT 531	Positive	Supportive authority for not condoning delays in statutory appeals; aligns with present reasoning.
Calicut City Service Co-operative Bank and another v State of Kerala and others	2008 (3) KHC 917	Positive	Key authority that appellate authorities lack power to condone delay, followed in this judgment.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against B. Mitran v State of Kerala and others and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

_**WP(C).23285/10**_ 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 20TH DAY OF SEPTEMBER 2019 / 29TH BHADRA, 1941** **WP(C).No.23285 OF 2010(I)** ## **PETITIONER/S:** **B.MITRAN, KANNOOKKARA, VATAKARA TALUK,, KOZHIKODE DISTRICT. BY ADV. SRI.M.P.ASHOK KUMAR** ## **RESPONDENT/S:** **1 STATE OF KERALA SECRETARY TO GOVT. DEPARTMENT OF CO-OPERATION,, SECRETARIAT, THIRUVANANTHAPURAM. 2 THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM. 3 THE KANNUR DISTRICT CO-OPERATIVE BANK LTD. KANNUR, REP.BY ITS GENERAL MANAGER.** **R1, R3 BY ADV. SMT.M.MEENA JOHN R1 BY SRI.M.SASINDRAN, SC, KANNUR DISTRICT CO.OP. BANK** ## **OTHER PRESENT:** ## **R1 SMT.REKHA.C.NAIR, SR.GP.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24.06.2019, THE COURT ON 20.9.2019 DELIVERED THE FOLLOWING:** _**WP(C).23285/10**_ 2 ## **V.G.ARUN, J.** **----------------------------------------------W.P(C).No. 23285 of 2010 ----------------------------------------------Dated this the 20[th] day of September, 2019** ## **JUDGMENT** The petitioner, while working as a Clerk in the 3[rd] respondent Bank, acquired an additional educational qualification of pass in Part I of the CAIIBE (Certified Associate of Indian Institute of Bankers Examination). The Government of Kerala had, as per Exhibit P1 G.O. (M.S).No.153/88 dated 8.6.1983, revised the pay and allowances of employees working in the District Co-operative Banks. As per Clause 3(x) of the said Government Order, the employees, who had completed Part I and part II of the CAIIB examination were eligible for one and two increments respectively. These additional increments were allowed only once. In terms of the Government Order, the petitioner was granted an additional increment of Rs.18/- with effect from 1.8.1988, thereby raising his pay from Rs.448/- to Rs.466/-. The grievance of the petitioner is that the benefit of the additional increment was not extended to him during his subsequent promotions to the post of Accountant and Manager. While so, by Exhibit P3, the Registrar of Co-operative Societies clarified that employees of District Co-operative Banks are eligible and entitled to get an additional increment and that the additional increment should not be treated as a normal increment _**WP(C).23285/10**_ 3 and the same should be paid as special pay on which dearness allowance and other allowances are payable. It was also clarified that while revising the salary further, the special pay should not be taken into account. Despite Exhibit P3, the petitioner’s grievance subsisted to the extent of Exhibit P3 being silent about the timescale to which the additional increment is to be allowed. The representations submitted by the petitioner in this regard resulted in Exhibit P5, by which the 3[rd] respondent informed the petitioner that as per the clarification received from the Registrar of Co-operative Societies, the additional increment sanctioned on passing the CAIIB examination must be maintained as such and is to be paid as special pay without any corresponding increase on account of revision of pay. Aggrieved by the stand taken by the 3[rd] respondent, the petitioner submitted a representation before the Registrar of Co-operative Societies. By Exhibit P6, the Registrar of Co-operative Societies rejected the petitioner’s representation by a single line order, stating that as per the existing rules, the petitioner’s request cannot be considered. The petitioner successfully challenged Exhibit P6 before this Court and by Exhibit P7 judgement, the impugned Exhibit P6 order was quashed and the Registrar of Co-operative Societies was directed to afford an opportunity of hearing to the petitioner and the Bank and to render a decision afresh, after adverting to, and considering all relevant facts and factors. Accordingly, the Registrar of Co-operative Societies reconsidered the peti- _**WP(C).23285/10**_ 4 tioner’s representation and once again rejected the petitioner’s claim as per Exhibit P8 order. The petitioner challenged Exhibit P8 in appeal before the Government. By Exhibit P10 communication, the Government informed the petitioner that his appeal is being rejected on the ground of delay. The writ petition is filed challenging Exhibit P8 order of the Registrar of Co-operative Societies and P10 decision of the Government. The further prayer in the writ petition is for a declaration that the petitioner is eligible and entitled to get an additional increment for completing Part I CAIIBE and that the increment is to be extended to him in all scales of pay in the service of the 3[rd] respondent bank. 2. In order to examine the legality of Exhibit P10, reference has to be made to Section 83 of the Kerala Co-operative Societies Act (for short, 'the Act'), which deals with appeals to various authorities. The contextually relevant portion of Section 83 is extracted below: _“_ _**83. Appeals to other authorities** :- (1) An appeal shall lie under this Section against,_ - _(a) ......_ - _(j) any order made by any person exercising all or any of the powers of the Registrar_ _**WP(C).23285/10**_ 5 - _(2) an appeal under sub-section (1) shall be made_ - _within sixty days from the date of the order or decision-_ - _(a) if the order or decision was made by the Registrar, to the Government and_ - _(b) in other cases, to the Registrar, and the Government or the Registrar, as the case may be, may pass such order on the appeal as they or he may think fit.”_ As per Section 83(2) of the Act, as against Exhibit P8 order dated 28.11.2008, an appeal ought to have been filed by the petitioner on or before 27.1.2009. Going by the date given in Exhibit P9 appeal memorandum, the appeal was filed only on 20.3.2009. Therefore, undisputedly, the appeal was filed beyond the period of 60 days prescribed in Section 83. There being no provision under the Kerala Co-operative societies Act to condone the delay in filing an appeal under Section 83, the Government had no alternative other than to reject the appeal. 3. The question as to whether, in the absence of an express provision, the Government is conferred with the authority to condone the delay in filing the appeal, was considered by this Court in _**Calicut City Service Co-operative Bank and another v State of Kerala and others**_ (2008 (3) KHC 917). Paragraph 7 of the judgment, wherein the _**WP(C).23285/10**_ 6 question was answered, with reference to precedents, is extracted below: “ _7. Section 83 of the Act confers a right of appeal to other authorities. So much so, an appeal under Section 83(1) of the Act ought to be filed within a period of 60 days from the date of the order or decision appealed against, going by sub-section (2) of Section 83. That provisoin does not contain any power to condone delay. As held by the Apex Court in_ Takuru v. Tanaji, 1985(3) SCC 590 _and in_ L.S.Synthetics Ltd. v. Fairgrowth Financial Services Ltd. And Another, 2004(11) SCC 456, _Section 5 of the Limitation Act would apply only to proceedings in Court and not to appeals or applications before the bodies governed by statutes, as noticed by this Court in_ District Execution Officer v. Abel, _2006(2) KLT 758. I may also notice in support of the said proposition, the decisions of this Court in_ Kerala Motor Transport Workers Welfare Fund Board v. Government of Kerala, _2001(1) KLT 608 and_ Prasad v. State of Kerala, _1999 (2) KLT 531, laying down in categoric terms that appellate authorities, including the Government, do not have the power to condone delay.”_ ## 4. This Court in _**Thomas Thomas and another v Kottayam**_ _**Municipality and another**_ (ILR 2008 (4) Kerala 70) has held that the power under Article 226 of the Constitution of India cannot be exercised to bypass statutory restrictions and to get the delay condoned, which the statutory authority did not have the power to condone. I am _**WP(C).23285/10**_ 7 in complete agreement with the above judgments and respectfully follow the dictum laid down therein. Hence, I find no illegality in Exhibit P10 order and decline the prayer for exercising the jurisdiction under Article 226 in order to consider Exhibit P8 on merits. In the result, the writ petition is dismissed. No order as to costs. **Sd/-** ## **V.G.ARUN, JUDGE** _vgs_ _**WP(C).23285/10**_ 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE PHOTOCOPY OF THE RELEVANT PAGES OF THE ABOVE GOVT. ORDER GO/MS/NO.153/88 AD DATED 08.06.1983** - **EXHIBIT P2 THE PHOTOCOPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT SANCTIONING ADDITIONAL INCREMENT.** **EXHIBIT P3 THE PHOTOCOPY OF THE LETTER NO.EM(1)22540/2001 DATED 02.04.2002** - **EXHIBIT P4 THE PHOTOCOPY OF THE LETTER NO.B/2002-2003 DATED 09.12.2002** **EXHIBIT P5 THE PHOTOCOPY OF THE REPRESENTATION 08.01.2003** - **EXHIBIT P6 THE PHOTOCOPY OF THE LETTER DATED 10.12.2003 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P7 THE PHOTOCOPY OF THE JUDGMENT IN WP(C)11909/05 DATED 12.06.2008.** - **EXHIBIT P8 THE PHOTOCOPY OF THE ORDER DATED 28.11.2008 PASSED BY THE REGISTRAR.** - **EXHIBIT P9 THE PHOTOCOPY OF THE APPEAL DATED 20.03.2009** - **EXHIBIT P10 THE PHOTOCOPY OF THE ORDER PASSED BY THE GOVT.** **RESPONDENTS' EXHIBTIS** - **EXHIBIT R3(a): COPY OF MEMO NO.B/2004-05 DATED 14.1.2005 ISSUED BY 3RD RESPONDENT BANK.** **EXHIBIT R3(b): COPY OF MEMO NO.HR/72/2010-11 DATED 27.11.2010 ISSUED BY 3RD RESPONDENT BANK.** **EXHIBIT R3(c): STATEMENT SHOWING THE DETAILS OF ADVANCE INCREMENTS GIVEN TO THE PETITIONER.**