Gopi Manoharan v. State of Kerala, Registrar of Co-operative Societies, and Venketang Farmers Co-operative Bank Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **TUESDAY, THE 12TH DAY OF FEBRUARY 2013/23RD MAGHA 1934** **WP(C).No. 33987 of 2009 (P) ---------------------------** **PETITIONER(S):** **--------------** **GOPI MANOHARAN, ACCOUNTANT, PRESENTLY WORKING AS BRANCH MANAGERIN-CHARGE, VENKETANG FARMERS CO-OPERATIVE BANK LTD.NO.R.187, VENKETANG P.O., THRISSUR DISTRICT.** **BY ADV. SRI.M.SASINDRAN** **RESPONDENT(S):** **-------------** **1. STATE OF KERALA - REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF CO-OPERATION SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM.** **3. VENKETANG FARMERS CO-OPERATIVE BANK LTD. NO.R.187, VENKETANG P.O., THRISSUR DISTRICT REPRESENTED BY ITS SECRETARY.** **R-1 BY SR. GOVERNMENT PLEADER SRI.ALOYSIUS THOMAS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 33987 of 2009 (P)** ## **APPENDIX** ## **PETITIONERS' EXHIBITS** **EXT. P1 COPY OF THE RESOLUTION DATED 27.8.2008 ADOPTED IN RESPECT OF THE FIRST PETITIONER.** **EXT. P1(A) COPY OF THE PROFORMA APPLICATION IN 'FORM 1 A'. EXT. P1(B) COPY OF THE PETITION FOR EXEMPTION. EXT. P2 COPY OF THE RESOLUTION DATED 28.1.2009, IN RESPECT OF THE PETITIONER. EXT. P3 COPY OF THE COMMUNICATION DATED 5.5.2009 ISSUED BY THE JOINT REGISTRAR TO THE SOCIETY. EXT. P4 COPY OF THE REPLY TO THE EXT. P3 COMMUNICATION, ISSUED BY THE SOCIETY TO THE JOINT REGISTRAR. EXT. P5 COPY OF THE JUDGMENT DATED 26.8.2009 IN WP(C) NO.24535 OF 2009. EXT. P6 COPY OF THE GOVERNMENT ORDER G.O.(RT) NO.588/2009/CO-OP. DATED 20.10.2009 EXT. P7 COPY OF THE GOVERNMENT ORDER DATED 20.5.2009 GRANTING EXEMPTION TO THE ALANELLOOR SERVICE CO-OPERATIVE BANK FOR GRANTING EXEMPTION TO AN EMPLOYEE COMPLETED 45 YEARS OF AGE. EXT. P8 COPY OF THE G.O. DATED 1.8.2009 GRANTING EXEMPTION TO KANNUR PRIMARY AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD., KANNUR FOR GRANTING PROMOTION TO AN EMPLOYEE HAS CROSSED 45 YEARS. EXT. P9 COPY OF THE GOVERNMENT ORDER DATED 17.11.2009 ISSUED BY THE GOVERNMENT GRANTING EXEMPTION TO ONE C.K.KUMARAN WHO HAD COMPLETED ONLY 45 YEARS OF AGE. EXT. P10 COPY OF THE G.O. DATED 4.9.2008 ISSUED BY THE GOVERNMENT.** **RESPONDENTS' EXHIBITS : NIL** **/TRUE COPY/** **Pn** **P. A. TO JUDGE** ## C.K.ABDUL REHIM,J. ------------------------------WP(C).NO. 33987 of 2009 --------------------------------Dated this the 12th day of February, 2013 ## JUDGMENT The petitioner is working as 'Accountant' in the 3[rd] respondent Bank. He does not possess the qualification of degree for promotion to the next post of Branch Manager. Under Rule 185(8) of the Kerala Co-operative Societies Rule 1969 (hereinafter the Rules) the Registrar is entitled to relax qualification for the purpose of promotion, in cases where the qualification prescribed is graduation, subject to condition that the candidate should possess JDC or equivalent, should have minimum service of 5 years in the feeder category and should have completed 45 years of age. Though the petitioner has got JDC and crossed the age of 45 years, he does not have 5 years experience in the feeder category. Therefore the Registrar is not in a position to grant exemption under Rule 185(8). Under such circumstances the Board of Directors of the 3[rd] respondent took a WP(C). 33987 /2009 2 resolution to submit application before the Government seeking exemption under Rule 181 of the Rules. On the basis of the resolution, the 3[rd] respondent Society had approached the Government. Initially the Government directed the 3[rd] respondent to cure the defects in the application submitted and the Society had forwarded another resolution adopted rectifying the anomalies pointed out. Even thereafter certain clarifications were sought for and it was furnished by the Society. Ultimately when the matter was not considered by the Government, the petitioner along with another person, with respect to whom similar exemption was sought for, had approached this court in WP(C).No.24535/2009. In Ext.P5 judgment this court directed the 1[st] respondent to consider the request invoking powers under Rule 181 and to take a decision thereon within 3 months. Ext.P6 is the consequential order issued by the Government. Exemption sought for was rejected stating the reason that, exemption from educational qualification for promotion to higher post will be granted only to those employees who attained the age of 55 years. Since the petitioner has not attained the age of WP(C). 33987 /2009 3 55, exemption sought for is rejected. It is aggrieved by Ext.P6 order, this writ petition is filed. 2. In the counter affidavit of respondents 1 and 2 it is contended that, the Government have taken a policy decision that exemption will be granted only to those employees who have attained the age of 55 years of age. Further it is mentioned that, since the petitioner is at the age of 45 years and is left with 13 years service, he has got chance to complete 5 years service in the category of Accountant . In such case he would get the benefit of Rule 185(8) in future. Learned counsel for the petitioner pointed out that, there is absolutely no policy decision taken by the Government to restrain exemptions only in the case of promotion of employees who has completed 55 years. He had specifically pointed out Exts.P7 to P10 orders where the Government have granted exemption under Rule 181 for promotion of employees of other similarly situated Societies. It is specifically contended that, in those cases the age of the employees were not considered and in most of the cases such relaxation was granted with respect to employees who are below WP(C). 33987 /2009 4 the age of 55 years. It is specifically pointed out that Ext.P9 order is issued subsequent to Ext.P6 and the employee in question whose promotion was considered in Ext.P9 is below the age of 55 years. Contention of the petitioner is that the denial of exemption for the reason mentioned in Ext.P6 will amounts to discrimination and it is an erroneous and unjustifiable exercise of powers vested on the Government. 3. It is to be noticed that, exercise of power vested under Rule 181 is basically discretionary in nature. But at the same time uniform yardstick need be followed and there cannot be any discrimination in the matter of exercise of such power. The discretion should apply equally to societies similarly situated. In other words, with respect to societies falling within a particular category it should be applied uniformly. If one of the society is denied of such benefit, which is already granted in another case, such action cannot be sustained. 4. Learned counsel for the petitioner had drawn my attention to the decision in **Praveenchandran vs. State of Kerala (2008(1) KLT 478).** A learned Judge of this court WP(C). 33987 /2009 5 observed that, in terms of Rule 181 the Government has power to grant exemption only to the institution as such, ie; to the society or a class of societies. Under the said Rule the government cannot meddle with individual cases of employees. Therefore the government cannot pick and choose between different employees of a co-operative society, while making an order of exemption under Rule 181. It is further observed that once Rule 181 is exercised, such relaxation will apply to the institution, i.e the society and not to any individual employee. 5. A Division Bench of this court has taken a slightly different view in **Mattancherry Mahajenic Co-operative Urban Bank Ltd.** v. **Girija (2012 (2) KLT 577).** It is held that the Government can vary, modify or relax any Rule not only to any or class of societies, but to a specific situation applicable to any such society. Case of individual application such as relaxation of age limit or even dispensation of qualification is permissible under Rule 181. Negativing the contention that orders of exemption contemplated under Rule 181 are general orders or special orders applicable to a class of societies and not with reference to specific claim by a person, the Division Bench WP(C). 33987 /2009 6 held that powers of Government under Rule 181 has to be considered with reference to the purpose and object for which it is provided. Facts in that case is with respect to appointment of a dependent employee by granting relaxation of age. This court held that to modify or relax any Rule not only to any society or class or societies but also to a specific situation applicable to any such society, is permissible. 6. In the case at hand, with respect to another employee of the same society, relaxation was granted in exercise of Rule 181. Denial in the case of the petitioner is on the basis that he had not attained the age of 55 years. Respondents 1 and 2 are not in a position to produce any materials or document to show that the Government have taken a policy decision in the matter of relaxation under Rule 181 and such yardstick had been uniformly applied in the case of all the societies. The reason mentioned in the counter affidavit regarding length of service left back to the petitioner and the apprehended denial of opportunity for getting promotion to the juniors etc., can only be treated as an improvement from the reasons mentioned in Ext.P6. Going by WP(C). 33987 /2009 7 the dictum laid in **Mattancherry Mahajenic Co-operative Urban Bank's** case (cited supra) I am of the considered opinion that Est.P6 order cannot be sustained. Learned Government Pleader submitted that, with respect to Exts.P7 to P10 orders specific reasons for granting relaxation has been mentioned taking note of the lengthy service rendered by the employees. Per contra, learned counsel for the petitioner contended that even in the case of another employee who had completed 26 years of service, exemption was granted. Therefore I am of the view that the matter requires reconsideration at the hands of the 1[st] respondent. 7. In the result the writ petition is allowed and Ext.P6 is hereby quashed. The 1[st] respondent is directed to reconsider the matter on the basis of the application submitted by the 3[rd] respondent seeking relaxation under Rule 181, in the matter of exempting the petitioner from acquiring the prescribed qualification for promotion to the post of Branch Manager. A fresh decision in this regard shall be taken after affording an opportunity of personal hearing to the petitioner as well as to the WP(C). 33987 /2009 8 3[rd] respondent. The matter shall be disposed of at the earliest possible, at any rate within a period of three months from the date of receipt of a copy of this judgment. C.K.ABDUL REHIM, JUDGE pmn/ WP(C). 33987 /2009 9 WP(C). 33987 /2009 10 WP(C). 33987 /2009 11