Dinesan C.K. v. Government of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR** **WEDNESDAY, THE 27TH OCTOBER 2010 / 5TH KARTHIKA 1932** **WP(C).No. 400 of 2010(Y)** **------------------------------------** **PETITIONER(S):** **-----------------------** **DINESAN C.K., ACCOUNTANT, THE EDACHERI SERVICE CO-OPERATIVE BANK, LTD.NO.9349, P.O.EDACHERI, KOZHIKODE DISTRICT, PIN - 673 502.** **BY ADV. SRI.P.N.MOHANAN** **RESPONDENT(S):** **--------------------------** **1. GOVERNMENT OF KERALA, REPRESENTED BY ITS SECRETARY, CO-OPERATIVE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (G), KOZHIKODE DISTRICT.** **3. THE EDACHERI SERVICE CO-OPERATIVE BANK, LTD.NO.9349, REPRESENTED BY PRESIDENT, P.O.EDACHERI, KOZHIKODE DISTRICT, PIN - 673 502.** **R1 & R2 BY GOVERNMENT PLEADER SRI.P.M.MANOJ** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/10/2010, ALONG WITH WP(C)NO.25259/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C)NO.400/2010** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE RESOLUTION OF THE MANAGING COMMITTEE DATED 24/1/2008 ALONG WITH COVERING LETTER DATED ½/2008.** - **P2 COPY OF THE KERALA GAZETTE DATED 22/3/2008.** - **P3 COPY OF THE JUDGMENT REPORTED IN 2008 (1) KLT 478** - **P4 COPY OF THE COMMUNICATION DATED 3/5/08 OF THE REGISTRAR** - **P5 COPY OF THE COMMUNICATION DATED 31/12/2008 OF THE JOINT REGISTRAR** - **P6 COPY OF THE JUDGMENT DATED 10/8/09 IN WP(C) NO.37559/08.** - **P7 COPY OF THE ORDERS WITH DATED ARE AS FOLLOWS G.O.(P) NO.199/08/CO.OP.DATED 1/9/08, G.O.(P)NO.4/08/CO.OP. DATED 2/1/08, G.O.(P) NO.205/08/CO.OP. DATED 3/9/08, G.O(P)NO.207/08/CO.OP. DATED 3/9/08, G.O(P) NO.197/08/CO.OP. DATED 30/8/08, G.O(P)NO.198/08/CO.OP. DATED 30/8/08, G.O(P) NO.200/08/CO.OP.DATED 2/9/08, G.O(P)NO.208/08/CO.OP. DATED 3/9/08, G.O(P) NO.210/08/CO.OP. DATED 3/9/08, G.O(P)NO.159/08/CO.OP. DATED 28/6/08, G.O(P) NO.11/07/CO.OP. DATED 4/1/07, G.O(P)NO.8/07/CO.OP. DATED 4/1/07, G.O(P) NO.17/08/CO.OP. DATED 7/1/08, G.O(P)NO.62/07/CO.OP.DATED 15/2/07, G.O(P) NO.29/07/CO.OP.DATED 8/1/07, G.O(P)NO.30/07/CO.OP. DATED 8/1/07, G.O(P) NO.5/07/CO.OP. DATED 4/1/07, G.O(P)NO.12/07/CO.OP. DATED 4/1/07, G.O(P) NO.203/06/CO.OP. DATED 22/12/06, G.O(P)NO. 07/07/CO.OP. DATED 4/1/07, G.O(P) NO.28/07/CO.OP. DATED 8/1/07, G.O(P) NO.26/07/CO.OP. DATED 8/1/07, G.O(P) NO.16/08/CO.OP. DATED 7/1/08, G.O(P)NO.18/08/CO.OP. DATED 7/1/08, G.O(P) NO.5/08/CO.OP. DATED 2/1/08, G.O(P)NO.3/08/CO.OP. DATED 2/1/08, G.O(P) NO.14/07/CO.OP. DATED 5/1/07, G.O(P)NO.9/07/CO.OP. DATED 4/1/07, G.O(P) NO.209/08/CO.OP. DATED 3/9/08 ISSUED BY THE GOVERNMENT.** **RESPONDENT'S EXHIBITS:** **NIL** ## **/TRUE COPY/** **P.A.TO.JUDGE** **sts** ## **C.T.RAVIKUMAR, J.** ------------------------------------- W.P.(C)Nos.400 & 25259 of 2010 -------------------------------------Dated 27[th] October, 2010 ## **JUDGMENT** Common questions involved in these writ petitions and therefore, they were heard jointly and are being disposed of by this common judgment. 2. The petitioner in the former writ petition is an employee of Edacheri Service Co-operative Bank, the 3[rd] respondent therein. The petitioners in the latter writ petition are employees of Arackal Service Co-operative Bank, the 2[nd] respondent therein. The petitioner in the former writ petition and the first petitioner in the latter writ petition commenced their service under the said respective banks as Junior Clerks. The second petitioner in the latter writ petition entered in service as a salesman. On obtaining further promotions on diverse dates, all of them reached up to the level of Accountant. Their next promotion post is Branch Manager/Internal Auditor. 3. Admittedly, the petitioners do not possess the minimum prescribed academic qualification viz., graduation under Rule 186 of the Kerala Co-operative Societies Rules (for short `the Rules'), for promotion in terms of Rule 185 of the Rules. They are undergraduates with Junior Diploma in Co-operation (JDC) qualification. In terms of Sub-rule (8) of WP(C).Nos.400 & 25259/2010 2 Rule 185 of the Rules, the Registrar got the power to relax the qualification for the purpose of promotion on the request of a society by passing a resolution to that effect subject to the conditions imposed thereunder. To earn eligibility for consideration for exemption from possessing academic qualification of graduation and above, the incumbent should have passed JDC or equivalent, should have completed a minimum service of five years in the feeder category and should not be less than 45 years of age. As noticed hereinbefore, the petitioners do not possess the prescribed academic qualification of graduation though they possess the minimum required technical qualification of JDC. In terms of Rule 181 of the Rules the Government have power to grant exemption to any registered society or class of societies from the applicability of any of the provisions in the Rules. Rule 181 reads thus:- ## _“_ _**181. Power to exempt from Rules** .- The_ _State Government may, by general or special order and subject to such conditions as they deem fit, exempt any registered society or class of such societies from any of the provisions of these rules or may direct that such provisions shall apply to such society or class of societies with such modifications as may be specified in the order.”_ 4. In the light of the provisions under Rule 181 of the Rules, the third respondent society in the former writ petition passed a resolution to request the Government to grant exemption from WP(C).Nos.400 & 25259/2010 3 possessing the prescribed minimum qualification regarding age and education viz., graduation for the purpose of promotion to the post of Branch Manager. Pursuant to the same, Ext.P1 request was made to the Government. In the case of the petitioners in the latter writ petition the second respondent society resolved to request the Government to exempt the first petitioner from possessing the prescribed minimum academic qualification of graduation and also the minimum prescribed qualification regarding age and experience. A similar resolution was passed in the case of the second petitioner to request for exemption from the prescribed minimum educational qualification of graduation and also minimum prescribed qualification regarding experience. Consequently, as per Exts.P1 and P2 appropriate requests have been made to the first respondent Government for the purpose of granting them promotion to the post of Branch Manager. As per Ext.P5 in the former writ petition, the request for exemption for the petitioner therein was rejected. The same was communicated to the 3[rd] respondent therein as per Ext.P5. Exts.P4 and P5 are under challenge in the former writ petition. It is also sought for a declaration that exemption granted to an employee of the third respondent bank in Ext.P2 therein is an exemption to the employees of the third respondent bank, in terms of Rule 181. Consequently, a writ of mandamus directing the first WP(C).Nos.400 & 25259/2010 4 respondent to grant exemption to the petitioner from acquiring the qualification of graduation as has been given to another employee of the same bank as is obvious from Ext.P2, is also sought for. As regards the petitioners in the latter writ petition, no action was taken on Exts.P1 and P2 requests made on their behalf. The prayer in the latter writ petition is for a declaration that the exemption granted by the Government in Ext.P5 under Rule 181 is applicable to the petitioners and there is no need of a separate order in the case of other employees of the bank. Though notices were served on the respondents in both these writ petitions they had not chosen to file counter affidavit in these writ petitions. In fact, time and again time was granted. The learned counsel for the petitioners submitted that the matter in issue is squarely covered in favour of the petitioners by the decision of this Court in _**Praveenchandran**_ v. _**State of Kerala**_ (2008 (1) KLT 478). Thus, the question to be decided in these cases is whether the petitioners are entitled to the reliefs sought for in these writ petitions in the light of _**Praveenchandran's**_ case (supra). There cannot be any dispute with respect to the facts as they are borne out from records. 5. As noticed hereinbefore, evidently, the petitioners are undergraduates and thus unqualified for promotion owing to nonpossession of the prescribed academic qualification of graduation. That WP(C).Nos.400 & 25259/2010 5 apart, all of them are lacking one or other of the conditions with respect to the prescribed minimum qualification regarding age and education for the purpose of promotion. At the same time, all of them possess the minimum prescribed technical qualification of JDC. It was in the said circumstances that the respective bank as per Ext.P1 in the former writ petition and as per Exts.P1 and P2 in the latter writ petition, requested the Government to invoke the power under Rule 181 of the Rules and to grant exemption subject to the provisions thereunder. As per Ext.P5, the request for exemption in respect of the petitioner in the former writ petition was rejected. In the case of petitioners in the latter writ petition the said requests made as per Exts.P1 and P2 are still remaining unattended. In the said context, it is relevant to note that as per Ext.P2 order dated 17.3.2008 Government have granted exemption by invoking the provisions under Rule 181 of the Rules to Edacheri Service Cooperative Bank wherein the petitioner in the former writ petition is working, from the provisions of item (ii) of clause (b) of sub-rule (8) of rule 185 and sub-rule (1) of rule 186 of the said rules for the purpose of relaxing educational qualification of graduation to one Sri.K.Nanu for the purpose of promoting him as Branch Manager of the Bank. Similarly, Ext.P5 in the latter writ petition would reveal that by invoking the powers under Rule 181 of the Rules Government have exempted Arackal Service WP(C).Nos.400 & 25259/2010 6 Co-operative Bank, the bank wherein the petitioners in the latter writ petition are working, from the provisions of item (ii) of clause (b) of subrule (8) of rule 185 of the Rules for the purpose of enabling the bank to exempt the educational qualification of graduation to one Sri.B.Krishnankutty in the matter of promotion to the post of Branch Manager of the Bank. It is thus obvious from Ext.P2 in the former writ petition and Ext.P5 in the latter writ petition that the concerned societies were exempted by the Government from the application of the provisions specifically mentioned thereunder, by invoking the power under Rule 181 of the Rules. Eventually, the question will precipitate into one as to whether the exemptions granted in terms of Exts.P2 and P5, mentioned above, are individual or institutional. In fact, it is the same question that was pointedly posed for consideration in the decision reported in _**Praveenchandran's**_ case (supra). The decision in _**Praveenchandran's**_ case (supra) to the extent it relevant for the purspose of this case reads thus:- _“In terms of R.181, the Government has the power to grant exemption to any registered society or class of societies from any of the provisions of the Rules. That power is to grant exemption for the institution as such, i.e., the society or to a class of societies. That rule is not one, whereby the Government cannot pick and choose between different employees. Therefore, the Government cannot pick and choose between different employees of a co-operative society while making an_ WP(C).Nos.400 & 25259/2010 7 _order of exemption under R.181. If the Government concludes, as has been done as per Ext.P4 order, that the Society is entitled to exemption under R.181, there is no reason why the benefit of that exemption shall not be available to all the employees of that society. When the Government has exercised power under R.181 and exempted the society from the provisions of R.185(8)(b)(ii), such relaxation applies to the institution, i.e., the society and not to any individual employee. Therefore, Exts.P4 and P5 series decisions, whereby the Government made those orders as if the exemption granted thereby is for the purpose of the employees named in those orders, can be treated only as an order of exemption to the institution, the society and not an order of exemption confined to be in favour of the employees mentioned therein. Hence, the benefit of the decision contained in Exts.P4 and P5 series granting exemption, would ensure to the benefit of all the employees of that establishment, including the petitioners.”_ It is thus obvious from the above extracted portion of the above decision that this Court held that exemption provided under Rule 181 when once granted is available to the institution as such i.e., society or a class of societies. Further, it is held that it is not a rule permitting the Government to meddle with individual cases of employees and, therefore, Government cannot pick and choose between different employees of a Co-operative society while making an order of exemption under Rule 181. The impact and effect of the said decision is such that when once the exemption is granted from the applicability of certain provisions of the Rules it is available to the institution. Therefore, WP(C).Nos.400 & 25259/2010 8 exemption granted as per Ext.P2 in the former writ petition is applicable to Edacheri Service Co-operative Bank and the exemption granted in and vide Ext.P5 in the latter writ petition is applicable to the Arackal Service Co-operative Bank. Relying on the decision reported in **2008 (1) KLT 478** (supra) Ext.P6 judgment in the former writ petition has been rendered by this Court. In the said circumstances, I am of the considered view that Ext.P5 in the former writ petition is liable to be quashed. I do so. As already noticed hereinbefore, as per Ext.P5 in the latter writ petition the society was exempted from the applicability of certain provisions, namely, item (ii) of clause (b) of sub-rule (8) of Rule 185. However, the requests made for exemption in the case of the petitioners in the latter writ petition are gathering dust. In the above circumstances, these writ petitions are disposed of declaring that the petitioner in the former writ petition is eligible for the benefit of exemption granted as per Ext.P2 and in the case of the petitioners in the latter writ petition they are eligible for the benefit of exemption as allowed in and vide Ext.P5, for the purpose of promotion to the post of Branch Manager. Consequently, the claim of the petitioner in the former writ petition for promotion to the post of Branch Manager under the third respondent society and the claims of the petitioners in the latter writ petition for promotion to the post of Branch Manager WP(C).Nos.400 & 25259/2010 9 under the second respondent society, shall be considered on the basis of the declaration subject to the availability of vacancies. Sd/C.T.RAVIKUMAR Judge TKS