B. Nizar Ahammed v. Poothakulam Service Co-Operative Bank Ltd and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **THURSDAY, THE 31ST DAY OF JANUARY 2013/11TH MAGHA 1934** ## **WP(C).No. 6442 of 2012 (E)** **--------------------------** ## **PETITIONER(S):** ## **-----------------------** **B.NIZAR AHAMMED, INTERNAL AUDITOR/BRANCH MANAGER, POOTHAKULAM SERVICE CO-OPERATIVE BANK LTD.NO.2944, POOTHAKULAM P.O., KOLLAM.** ## **BY ADV. SRI.UNNI. K.K. (EZHUMATTOOR).** ## **RESPONDENT(S):** - **-------------------------** **1. POOTHAKULAM SERVICE CO-OPERATIVE BANK LTD.NO.2944, POOTHAKULAM P.O., KOLLAM-693 001, REPRESENTED BY ITS SECRETARY.** **2. MANAGING COMMITTEE,** - **POOTHAKULAM SERVICE CO-OPERATIVE BANK LTD. NO.2944, POOTHAKULAM P.O., KOLLAM-693 001, REPRESENTED BY ITS PRESIDENT.** **3. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES LTD. KOLLAM-693 001.** **4. REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM-695 001.** **5. K.ANITHA, CHIEF ACCOUNTANT, POOTHAKULAM SERVICE CO-OPERATIVE BANK LTD.NO.2944, POOTHAKULAM P.O., KOLLAM-693 001.** **6. R. RAJENDRAPRASAD, BRANCH MANAGER, POOTHAKULAM SERVICE CO-OPERATIVE BANK LTD.NO.2944, POOTHAKULAM P.O., KOLLAM-693 001.** **R1 & R2 BY ADVS. SRI.V.G.ARUN, SRI.T.R.HARIKUMAR. R3 & R4 BY GOVT. PLEADER SMT.ROSE MICHAEL. R5 & R6 BY ADVS. SRI.P.RAMAKRISHNAN, SMT.PREETHI KESAVAN.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** **WP(C).No. 6442 of 2012 (E)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** - **EXHIBIT P1- TRUE COPY OF THE PROCEEDINGS NO.R 7048/87 DATED 04.05.1987.** - **EXHIBIT P2- TRUE COPY OF THE ORDER OF THE REGISTRAR.** - **EXHIBIT P3- TRUE COPY OF THE PETITION SUBMITTED TO THE 4TH RESPONDENT.** - **EXHIBIT P4- TRUE COPY OF THE DIRECTION ISSUED BY THE 3RD RESPONDENT DATED 20.09.2011.** - **EXHIBIT P5- TRUE COPY OF THE REPLY DATED 08.11.2011.** - **EXHIBIT P6- TRUE COPY OF THE DIRECTION ISSUED BY THE 3RD RESPONDENT ON 12.01.2012.** ## **RESPONDENT'S EXHIBITS:-** - **EXT.R2A COPY OF THE RESOLUTION NO.916 DATED 24/11/2007.** - **EXT.R2B COPY OF THE PROCEEDING NO.C.R.P.(2) 2342/08 DATED 22/08/2008 OLF THE 3RD RESPONDENT.** - **EXT.R2C COPY OF THE RESOLUTION NO.729 DATED 18/10/2008.** - **EXT.R2D COPY OF THE RESOLUTION NO.1544 DATED 25/03/2009.** - **EXT.R2E COPY OF THE RESOLUTION NO.1645 DATED 25/04/2009.** - **EXT.R2F COPY OF THE SENIORITY LIST DATED 01/10/2010.** - **EXT.R2G COPY OF THE REPLY NO.PKLM BANK 1/2010 DATED 13/12/2010 ISSUED BY THE BANK TO THE PETITIONER.** ## **//TRUE COPY//** ## **P.A. TO JUDGE** **rs.** ## **A.M. SHAFFIQUE, J** ## **---------------------------------------** ## **W.P. (C) NO. 6442 OF 2012** **----------------------------------------** Dated this the 31[st] day of January, 2013 ## **JUDGMENT** The petitioner has approached this Court alleging nonimplementation of Ext. P4 and P6 issued by the Joint Registrar and for a direction to rectify the defect in the final seniority list by the 1[st] respondent Bank. The facts as disclosed on the records reveal that the petitioner joined service of 1[st] respondent on 15.01.1985 as a Junior Clerk and he was promoted as Senior Clerk on 01.04.1991 and thereafter as Accountant on 01.06.1996. In order to promote him to the post of Internal Auditor, Bank passed a resolution to relax his qualification as per resolution dated 24.11.2007 (Ext. R2(a)). The same was not approved by the Registrar on the ground that there is no feeder category for Internal Auditor post. Again a resolution was passed as per Ext. R2(c) dated 18.10.2008, relaxing the qualification of the petitioner after rectifying the feeder category Rules. 2. This relaxation was also not approved by the Registrar on the finding that the petitioner was suspended from service for a short period and unless the same is regularised relaxation W.P. (C) NO. 6442 OF 2012 **2** could not be approved. Again by resolution dated 25.04.2009 (Ext.R2(e)) a decision was taken to relax the qualification of the petitioner. Pursuant to the same, the Registrar ordered approval as per Ext. P2 dated 24.12.2009 stating that the educational qualification of the petitioner is relaxed and same will take effect from the date of the said order and in terms with the same petitioner is continuing as Internal Auditor. 3. The petitioner had a complaint that in the meantime the respondents 5 and 6 whose qualifications were also relaxed on 24.11.2007 got appointment and when seniority list was prepared, petitioner though was senior to respondents 5 and 6 was placed as junior to respondents 5 and 6. Ext.R2(f) is the seniority list as on 01.10.2010. It is seen from Ext. R2(f) that the 5[th] respondent became Chief Accountant on 14.10.2008 and 6[th] respondent as Branch Manager on 02.08.2008. But the petitioner became Internal Auditor only on 24.12.2009. Submission of the petitioner is that by virtue of this disparity in the seniority list future promotion will be affected. 4. He had submitted complaints to the Joint Registrar who had issued Ext.P4 directing the Bank to re-consider the W.P. (C) NO. 6442 OF 2012 **3** seniority list as on 01.10.2010, in view of the fact that the petitioner had entered the service on 02.05.1985. The Bank had sent a reply dated 08.11.2011 to the Joint Registrar along with the copy of resolution dated 24.10.2011 explaining the reasons for the preparation of the seniority list dated 01.10.2010. Still further by Ext. P6 dated 12.01.2012 the Joint Registrar again directed the Bank to re-consider the seniority list and to provide the petitioner the necessary promotions with retrospective effect. Since Ext. P4 and P6 remains unimplemented, this writ petition is filed. 5. Counter affidavit is filed by the 2[nd] respondent inter alia contending that in so far as Ext. P2 order had become final nothing can be done in the matter as relaxation of qualification was effective only from the date of Ext. P2 dated 24.12.2009. That apart the resolution which resulted in Ext. P2 was passed only on 25.04.2009 and previous resolutions produced as R2(a) and R2(c) were not approved by the Registrar for various reasons and in so far as Ext. P2 had been issued only on the basis of resolution dated 25.04.2009, the appointment of the petitioner cannot be pre-dated or the petitioner cannot be given W.P. (C) NO. 6442 OF 2012 **4** a retrospective entry into the post of Internal Auditor with effect from 24.11.2007. It is further submitted that the Joint Registrar has no power to interfere with the seniority of the employees of the Bank and if at all the petitioner has a dispute, the same could as well be agitated before the Arbitration Court having jurisdiction in the matter in terms of Sec. 69(2)(d) of the Cooperative Societies Act. 6. The third respondent has also filed a counter affidavit inter alia stating that though the Joint Registrar had issued Ext. P4 and P6, it is for the Bank to consider the same and to rectify any disparity in the seniority list. However it is stated that the first respondent having passed the original resolution on 24.11.2007 relaxing the educational qualification and all the subsequent resolutions are corrections as requested by the 3[rd] respondent the petitioner is also legally entitled to the get relaxation as granted to the 5[th] and 6[th] respondents. 7. Though the respondents 5 and 6 have not filed any counter affidavit, the learned counsel appearing for the 5[th] and 6[th] respondent relied upon the documents produced by the Bank and has contended that in so far as the seniority list had already W.P. (C) NO. 6442 OF 2012 **5** been published showing that the petitioner is junior to the respondents 5 and 6 and that too on the basis of Ext. P2 order the same cannot be interfered by the Joint Registrar who has no jurisdiction to interfere with the seniority list in any manner. 8. The learned counsel for the respondents relied upon the Division Bench judgment of this Court in **Raveendran v. State of Kerala [2007(3) KLT 558]** and judgment of the learned Single Judge in **Prakasini v. Joint Registrar [2006(1) KLT 199]** in order to contend for the position that Arbitration Court alone has jurisdiction to interfere. 9. Heard the learned counsel appearing for the petitioner and learned counsel appearing for respondents. 10. The learned counsel for the petitioner however relied upon the unreported judgment of Division Bench of this Court in W.A.361/2011 and the judgment of learned Single Judge in W.P.(C). No. 1424/2010, to contend for the position that when the relaxation of qualification though approved by the Registrar on a subsequent date, will relate back to the date of passing the resolution. 11. The question for consideration is whether the Joint W.P. (C) NO. 6442 OF 2012 **6** Registrar has jurisdiction to interfere with the seniority list published by the 1[st] respondent Bank. If Ext.P4 and P6 is an order passed with jurisdiction, necessarily the Bank is under obligation to implement the same. But I could not find out any the specific provision of law which enables the Joint Registrar to interfere with the seniority list, whereas it could be seen that Section 69(2)(d) of the Co-operative Societies Act confers jurisdiction on the Arbitration Court to consider any dispute between an employee and the employer society in connection with any matter relating to an employee including 'seniority'. This is essentially a dispute on seniority. As matters stand today, the petitioner is faced with Ext. P2 order which is not challenged at any point of time. As per Ext. P2 the relaxation of qualification takes effect only from the date of Ext P2 i.e., 24.12.2009. It might be true that on the basis of judgment of this Court, the relaxation should be on the date of passing the resolution. Still the order becomes effective only from the date of resolution i.e., 25.04.2009. But the fact remains that the petitioner is claiming relaxation of qualification from 24.11.2007, date from which the original resolution was passed. Going by Ext. P2 it may not be W.P. (C) NO. 6442 OF 2012 **7** possible for this Court to give such a declaration and direct the bank to consider the seniority of the petitioner with effect from the said date especially when Ext. P2 is not under challenge. That being the situation the remedy open for the petitioner is only to approach the Arbitration Court in terms of Sec. 69 of the Act and Ext. P4 and P6 cannot be implemented as such. In the result I do not think that the petitioner is entitled for any relief in this writ petition, accordingly this writ petition is dismissed however reserving the right of the petitioner to approach the Arbitration Court in terms of Sec. 69 of the Cooperative Societies Act or any other remedy thereunder. Sd/- **A.M. SHAFFIQUE JUDGE** ## **DCS**