BINOY JOSEPH v Naduvil Service Co-operative Bank Ltd and Others

W.P(c).No.13754/13 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY ,THE 27TH DAY OF NOVEMBER 2018 / 6TH AGRAHAYANA, 1940** ## **WP(C).No. 13754 of 2013** ## **PETITIONER/S:** **BINOY JOSEPH, JUNIOR CLERK, NADUVIL SERVICE CO-OPERATIVE BANK, NADUVIL, KANNUR DISTRICT.** **BY ADVS. SRI.M.SASINDRAN SRI.S.SHYAM KUMAR** ## **RESPONDENT/S:** - **1 THE NADUVIL SERVICE CO-OP. BANK LTD.NO.LL 136 NADUVIL POST-670582, KANNUR DISTRICT, REPRESENTED BY ITS SECRETARY.** - **2 SHINY M.J. JUNIOR CLERK, NADUVIL SERVICE CO-OPERATIVE BANK, NADUVIL-670582, KANNUR DISTRICT.** - **3 SHAHIDA JUNIOR CLERK, NADUVIL SERVICE CO-OPERATIVE BANK, NADUVIL-670582, KANNUR DISTRICT.** - **4 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KANNUR-673001.** **BY ADVS. SRI.V.C.JAMES SRI.RAJU K.MATHEWS SRI.SEBASTIAN JOSEPH (KURISUMMOOTTIL) SRI.T.R.HARIKUMAR SRI.SUNIL KURIAKOSE,GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13.11.2018, THE COURT ON 27.11.2018 DELIVERED THE FOLLOWING:** W.P(c).No.13754/13 2 ## **--------------------------** W.P(C) No.13754 of 2013-T ------------------------------------------- _Dated this the 27[th] day of November, 2018_ ## _**JUDGMENT**_ In the ARC filed by the petitioner challenging the seniority list of the Junior Clerks, the Arbitration Court found that the petitioner was eligible for seniority with effect from 01.06.2007. The said decision was reversed by the Co-operative Arbitration Tribunal. The judgment of the Arbitration Tribunal is under challenge in this writ petition. 2. The petitioner joined the 1[st] respondent Bank on 07.02.2003 as a Watchman. He was designated as a Peon on 12.08.2005. As per the feeder category rules, Watchman and Peon under the Bank come under the same category. The immediate promotion post of Watchman/Peon is Attender and that of Attender is Junior Clerk. Respondents 2 and 3 were promoted as Attender on 12.08.2005, the immediate promotion post. The post of Bill Collector/Salesman/Attender is the Feeder Category for promotion to the post of Junior Clerk. The petitioner is a Post Graduate with Diploma in Co-operation. One vacancy of Junior Clerk arose in the 1[st] respondent Bank on 01.06.2007. There was nobody qualified in the feeder category among the Bill Collector/Salesman/Attender. The petitioner thereupon approached the Joint Registrar of Co-operative Societies seeking directions to the Bank to promote him. The Joint Registrar issued an order restraining the Bank from making promotion pending orders on the complaint of the petitioner. The respondent Bank challenged W.P(c).No.13754/13 3 that order in W.P.(C) No.21940/2007. This Court in Ext.P3 judgment held that the Joint Registrar does not have any jurisdiction to entertain such complaints and it is for the parties to seek remedies under Section 69 of the Kerala Co-operative Societies Act. However, it was observed that two vacancies of Junior Clerks were to arise and the eligibility would depend upon the qualification as on the date of occurrence of vacancies. 3. The case of the petitioner is that the 2[nd] respondent acquired the qualification only on 05.07.2007 and the petitioner was the only qualified candidate as on 01.06.2007. The petitioner was promoted as Junior Clerk as per Ext.P5 proceedings dated 8.3.2008, based on the decision of the managing committee in its meeting held on 3.3.2008 to grant him provisional promotion against a vacancy which arose on long leave availed by a Senior Clerk. When, Ext.P9 preliminary seniority list of the employees in the bank as on 31.3.2009 was published, the petitioner was shown as rank No.6 with date of promotion as 3.3.2008; whereas respondents 2 and 3 were ranked as 4 and 5 with date of promotion as 1.3.2008 and 3.2.2009 respectively. Aggrieved by the ranking in Ext.P9, the petitioner submitted Ext.P8 objection pointing out that he was the only qualified hand as on 1.6.2007 when the vacancy arose and that as per Ext.P3 judgment, the person who was qualified as on the date of occurrence of vacancy was entitled to be promoted. The petitioner points out that respondents 2 and 3 acquired qualification for promotion much after the vacancy arose and they were granted promotion subsequent to him. It was also pointed out that even the 3[rd] respondent, who was granted promotion on 3.2.2009, was ranked W.P(c).No.13754/13 4 above the petitioner. While so the bank issued Ext.P11 order directing the petitioner to refund the excess pay drawn by him for the period from 3.3.2008 to 7.6.2009, on account of his promotion, stating that he was not eligible to be promoted as on 3.3.2008 and that he should have been promoted as Attender only, as per the approved staff pattern. The petitioner thereupon filed ARC.No.115/2009 before the Arbitration Court which was renumbered as ARC.No.100/2011, challenging the seniority list and the recovery ordered. The petitioner also challenged the order dt.9.7.09 based on resolution dt.26.6.2009 reassigning the date of promotion of the petitioner as Junior Clerk as 8.6.09 in the place of 3.3.2008. The respondents as well as the Bank filed written statements opposing the claims. The ARC was allowed as per Ext.P15 Award. The Arbitration Court found that as on 1.6.2007 when the vacancy of Junior Clerk arose the petitioner was the only qualified person among the lower categories. The feeder category of Junior Clerk is Attender/Sales Man/Bill Collector and the feeder category of Bill Collector/Salesman/Attender is Peon/Watchman. As per Rule 185 of the Kerala Cooperative Societies Rules, the petitioner who was qualified for appointment as Junior Clerk and who was holding the post of Peon, which is just below the feeder category to the post of Junior Clerk, is entitled to get promotion since there were no qualified hands in the feeder category. The Arbitration Court relied on Ext.P3 judgment also, in which it is held that the entitlement of employees for promotion would depend upon their qualification with reference to the date of occurrence of vacancy. Therefore, it was further found that reassigning the date of his promotion from 3.3.08 to 8.6.09 was illegal. The direction W.P(c).No.13754/13 5 to refund the excess amount was also set aside. The Arbitration Court set aside the promotion granted to the 2[nd] respondent w.e.f 1.3.2008 and declared that the petitioner shall be senior to respondents 2 and 3. 4. The bank and the 3[rd] respondent filed appeal Nos.81/2012 and 82/2012 and the 2[nd] respondent filed Revision Petition No.95 of 2012 before the Cooperative Tribunal. By common judgment Ext.P17, the appeals and revision petitions were allowed upholding the seniority list. It was found that Attender/Salesman is the feeder category for promotion to the post of Junior Clerk; whereas Peon/Watchman is the feeder category for promotion to the post of Attender/Salesman as per the approved feeder category rules of the respondent Bank. The feeder category Rules do not provide for promotion in the absence of qualified hands in the feeder category when direct recruitment shall be made. However, the petitioner had approached the Joint Registrar against the provision. The petitioner was granted promotion temporarily on 8.3.2008 and he was placed on probation for a period of 1 year. Respondents 2 and 3 were working as Attenders as on 1.3.2007; whereas the petitioner was working as Watchman/Peon. After respondents 2 and 3 acquired qualification, the bank promoted respondent No.2 as Junior Clerk on 1.3.08 and respondent No.3 as Bill Collector on 3.3.08. The 3[rd] respondent was further granted promotion as Junior Clerk on 3.3.09. The Tribunal found that the 1[st] proviso to Rule 185 of the Rules only provides for promotion of a junior in the feeder category in the event of relinquishment by the seniors and that under the second proviso, if all those in the feeder category relinquished the claim for promotion, employees in the immediate W.P(c).No.13754/13 6 lower category can be promoted, only to the feeder category by creating a supernumerary post. Therefore, it was found that promotion from sub staff category to the post of Junior Clerk can be made only if such employees have completed minimum 3 years of service in the feeder category. The petitioner, who was not working in the feeder category i.e the post of Attender, was not qualified for promotion as Junior Clerk. It was further found that though Peon and Attender under the bank were in the sub staff category, the feeder category rules provide for promotion to the post of Junior Clerk only from the post of Attenders. Therefore, the order of the Arbitration Court was reversed, however without interfering with the directions regarding refund. Accordingly, seniority list was upheld. The petitioner has filed this writ petition challenging the judgment of the Cooperative Tribunal relying on Rule 185 of the Rules. 5. The respondents have filed counter affidavits supporting the judgment of the Cooperative Tribunal. The 1[st] respondent Society has stated that the post of Peon/Watchman is not a feeder post to Junior Clerk/Cashier/Typist. As per Ext.P1 itself it is clear that the feeder category for promotion to the post of Junior Clerk is Bill Collector/Salesman/Attender and the promotion post for Peon/Watchman is Bill Collector/Salesman/Attender. Clause VI of Ext.P1 provides that in the case of non availability of staff in the feeder category with requisite qualification as per Rule 186 when there are no suitable deserving persons in the opinion of the Board of Directors appointment to such posts shall be made by direct recruitment with the prior approval of the Joint Registrar of the Cooperative Societies. Therefore, it is stated W.P(c).No.13754/13 7 that Peon/Watchmen cannot be promoted to the post of Junior Clerk directly. It is also their case that in Ext.P3 judgment this Court had not gone into the claim of the petitioner for promotion though it was observed that the qualification should be reckoned as on the date of occurrence of vacancy and therefore the petitioner cannot rely on the said judgment. According to them, he was given promotion as Junior Clerk on working arrangement. The promotions of respondents 2 and 3 have been made on the basis of seniority list in the feeder category. It is also stated that the petitioner's appointment as Junior Clerk was over and above the sanctioned strength of clerical post in the bank, as a ratio of 1:1 has been maintained between Senior Clerk and Junior Clerk. 6. On consideration of the rival contentions on either side the question to be examined is whether the petitioner could have been promoted as Junior Clerk as on 1.6.2007. The relevant provisions which are applicable for the same are Rule 185 of the Kerala Cooperative Societies Rules as well as the provisions contained in Ext.P1 feeder category rules of the 1[st] respondent bank. 7. The petitioner does not dispute Ext.P1 rules in which the various posts in the Bank along with the method of appointment, qualification etc. are provided. These Rules are stated to be issued and approved under Rule 185 of the Kerala Cooperative Societies Rules. Peon/Watchman comes under category No.8; the immediate higher post Bill Collector/Salesman is category No.7 and Junior Clerk/Cashier/Typist comes under category 6. The qualification for appointment to the post of Peon/Watchman is 7[th] std. and that of Bill Collector is pass in SSLC. For appointment as Junior W.P(c).No.13754/13 8 Clerk/Cashier the qualification prescribed is SSLC or equivalent and successful completion of Junior Diploma in Cooperation. Category No.7 - Bill Collector/Salesman/Attender forms the promotion post of Peon/Watchman; whereas the feeder category for promotion to the post of Junior Clerk category No.6 is Bill Collector/Salesman/Attender. Ext.P1 feeder category rules do not provide for promotion of persons from the categories which are lower to feeder category. At the same time, clause VI provides that in the case of non availability of staff in the feeder category with requisite qualification as per Rule 186 of KSC Rules and if there are no suitable deserving persons in the opinion of the Board of Directors, such posts shall be filled up by direct recruitment with the prior approval of Joint Registrar of Cooperative Societies. The petitioner is claiming promotion on the basis of Rule 185, which reads as follows: _“185. Promotion:- (1) Subject to the provisions of sub-rules (2), (3) and (4), appointments to the categories of posts in a society, other than those mentioned in sub-rules (2, (3) and (4), shall be made by promotion, on the basis of seniority in the feeder category. The feeder categories for this purpose shall be specified by the society by framing suitable regulations, with the approval of the Registrar._ _[Provided that if the senior employee/employees in the feeder category to a post relinquishes promotion, the immediate junior to the employee/employees in the feeder category shall be promoted._ _Provided further that if all the employees in the feeder category to a post relinquishes promotion an employee on the immediate lower category shall be promoted to the post after promoting him to the feeder category post by creating a supernumerary post. The supernumerary post so created shall be abolished on promotion of the said employee to the higher posts._ _Provided also that the promotion from sub staff category to the post of Junior Clerks shall be made only if such employees are having the required qualification and minimum three years service in the feeder category.Xxx xxxx xxxxx xxxxx xxxxx”_ . Admittedly, the petitioner was the only person who was qualified when the vacancy arose on 1.6.2007. But the question is whether the petitioner who was in a category lower to the feeder category could be promoted as Junior Clerk merely on the ground W.P(c).No.13754/13 9 that he was having the prescribed qualification. According to Rule 185 of the rules, appointment to the categories of posts in a society other than those mentioned in sub rules 2, 3 and 4 is to be made by promotion on the basis of seniority in the feeder category. The post of Junior Clerk does not come under sub rule 2 to 4. Therefore, appointment has to be made by promotion from the feeder category. There is no dispute with respect to Ext.P1 feeder category rules. Rule 185 further provides that if senior employee in the feeder category to a post relinquishes promotion, the immediate junior in the feeder category shall be promoted. There is a further proviso that if all the employees in the feeder category relinquish their promotion, an employee on the immediate lower category shall be promoted to the post after promoting him to the feeder category post by creating a supernumerary post. There is a further proviso that promotion from sub staff category to the post of Junior Clerks shall be made only if such employees are having the required qualification and minimum 3 years service in the feeder category. The petitioner is having more than 3 years service in the sub staff category, but not in the feeder category. 8. The finding of the Cooperative Tribunal is that the proviso deals with a circumstance where employees in the feeder category relinquish promotion and then only promotions can be made from the immediate lower category and it also provides that person in the lower category shall be promoted to the feeder category by creating a supernumerary post. The third proviso provides not only for the requisite qualification for the person in the sub staff category, but also to have 3 years service in the feeder category. Though it is argued by the learned counsel for the petitioner W.P(c).No.13754/13 10 that the provisos have to be applied even in the absence of qualified hands in the feeder category and such a situation arose as on 1.6.2007, the reading of the proviso would show that these provisos are to be applied only when relinquishment is made. Therefore, though the petitioner is having more than 3 years service in the sub staff category he was not having 3 years service in the feeder category as required under the 3[rd] proviso. If the proviso was worded differently and could be applied in the absence of qualified hands in the feeder category, the petitioner would have been eligible for promotion. 9. Though the promotions to the post of Junior Clerk are made from the sub staff category itself, it is not understood why 3 years service is insisted in the feeder category after one is promoted creating a supernumerary post. However this writ petition is one challenging the order passed by the Cooperative Tribunal, in exercise of its appellate/revisional jurisdiction. Therefore, the question of interpretation of the provisions in Rule 185 of the KCS Rules is not called for in these proceedings. What is required to examine is whether the order of the Tribunal is perverse or suffers from any patent illegality. The finding in Ext.P3 judgment that the eligibility would be determined as on the date of occurrence of vacancy, does not also help the petitioner, because that eligibility should be between employees who are in the feeder category. At any rate, the rival claims of the employees had not come up for consideration in that case. Therefore, the petitioner cannot claim promotion based on that finding unless he was in the feeder category as on the date of occurrence of vacancy or before respondents 2 and 3 acquired qualification. W.P(c).No.13754/13 11 10. Relying on the judgments of this Court in _**Indian Coffee Board Workers Cooperative Society Ltd. v. Antony K.M. And Ors.**_ [2017 (5) KHC 79] and _**State of Kerala v. Fr. Xavier Karuvallil & Ors.**_ [2015 (4) KHC 210], the learned counsel for the petitioner argued that a purposive interpretation is required and the provisos under Rule 185 have to be interpreted in such a manner that the proviso would take in a circumstance where qualified hands are not available in the feeder categories. Though, I am also of the view that there is ambiguity in the rule, I am unable to accept the same since such an interpretation is not called for in these proceedings. It is also pertinent to note that the judgment in _**Indian Coffee Board Workers Cooperative Society Ltd. v. Antony K.M & Ors.** (supra_ ) was with respect to the proceedings which were directly under challenge before this Court and this Court held that the rules or bye-laws cannot be in conflict with the statutory provisions. But, the petitioner is not challenging the feeder category rules. 11. The Tribunal has considered the case with reference to the approved feeder category rules as well as Rule 185. It cannot be said that Ext.P17 judgment warrants any interference under Article 226 of the Constitution of India. Accordingly the writ petition is dismissed. Sd/- _**(P.V.ASHA, JUDGE)**_ _rtr/_ W.P(c).No.13754/13 12 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**EXHIBIT P1**|**EXHIBIT-P1: A TRUE COPY OF THE APPROVED**| |---|---| ||**FEEDER CATEGORY RULES OF THE 1ST RESPONDENT**| ||**BANK.**| |**EXHIBIT P2**|**EXHIBIT-P2: A TRUE COPY OF THE PROCEEDINGS**| ||**OF THE 4TH RESPONDENT STAYING PROMOTIONS TO**| ||**THE POST OF JUNIOR CLERK DATED 3.7.2007.**| |**EXHIBIT P3**|**EXHIBIT-P3: A TRUE COPY OF THE JUDGMENT OF**| ||**THIS HON'BLE COURT DATE 3.1.2008 IN W.P.(C)**| ||**NO.21940 OF 2007.**| |**EXHIBIT P4**|**EXHIBIT-P4: A TRUE COPY OF THE ORDER OF THE**| ||**4TH RESPONDENT DATED 11.2.2008.**| |**EXHIBIT P5**|**EXHIBIT-P5: A TRUE COPY OF THE ORDER OF THE**| ||**1ST RESPONDENT BANK PROMOTING THE PETITIONER**| ||**HEREIN TEMPORARILY TO THE POST OF JUNIOR**| ||**CLERK, DATED 8.3.2008.**| |**EXHIBIT P6**|**EXHIBIT-P6: A TRUE COPY OF THE TRANSFER**| ||**ORDER DATED 2.6.2008.**| |**EXHIBIT P7**|**EXHIBIT-P7: A TRUE COPY OF THE TRANSFER**| ||**ORDER DATED 8.08.2008.**| |**EXHIBIT P8**|**EXHIBIT-P8: A TRUE COPY OF THE OBJECTION**| ||**FILED BY THE PETITIONER, DATED 30.5.2009,**| ||**AGAINST THE DRAFT SENIORITY LIST PUBLISHED**| ||**BY THE 1ST RESPONDENT SOCIEIETY.**| |**EXHIBIT P9**|**EXHIBIT-P9: A TRUE COPY OF THE SENIORITY**| ||**LIST APPROVED AS PER THE RESOLUTION NO.11**| ||**DATED 26.6.2009.**| |**EXHIBIT P10**|**EXHIBIT-P10: A TRUE COPY OF THE ORDER OF THE**| ||**1ST RESPONDENT DATED 9.7.2009.**| |**EXHIBIT P11**|**EXHIBIT-P11: A TRUE COPY OF THE ORDER OF THE**| ||**1ST RESPONDENT DATED 14.7.2009.**| |**EXHIBIT P12**|**EXHIBIT-P12:A TRUE COPY OF THE PLAINT IN**| ||**A.R.C.NO.100 OF 2011 ON THE FILE OF THE CO-**| ||**OPERATIVE ARBITRATION COURT KOZHIKODE.**| |**EXHIBIT P13**|**EXHIBIT-P13: A TRUE COPY OF THE COUNTER**| ||**STATEMENT FILED BY THE 2ND RESPONDENT,**| ||**BEFORE THE ARBITRATION COURT.**| W.P(c).No.13754/13 13 |**EXHIBIT P14**|**EXHIBIT-P14: ATRUE COPY OF THE COUNTER**| |---|---| ||**AFFIDAVIT FILED BY THE 3RD RESPONDENT,**| ||**BEFORE THE ARBITRATION COURT.**| |**EXHIBIT P15**|**EXHIBIT-P15: A TRUE COPY OF THE AWARD OF THE**| ||**ARBITRATION COURT, KOZHIKODE, DATED**| ||**28.6.2012, IN A.R.C.NO.100 OF 2011.**| |**EXHIBIT P16**|**EXHIBIT-P16:A TRUE COPY OF THE APPEAL**| ||**MEMORANDUM IN APPEAL NO.81/12 OF THE CO-**| ||**OPERATIVE TRIBUNAL.**| |**EXHIBIT P17**|**EXHIBIT-P17: A TRUE COPY OF THE COMMON**| ||**JUDGMENT PASSED BY THE KERALA CO-OPERATIVE**| ||**TRIBUNAL IN APPEAL NO.81 OF 2012, APPEAL**| ||**NO.82 OF 2012 AND REVISION PETITION NO.95 OF**| ||**2012.**| |RESPONDENTS'EXHIBITS|| |EXT.R1(a)|TRUE COPY OF AUDIT OBJECTION ALONG WITH ORDER DATED| ||19.10.2011.|