K.S. Rema Devi v. Kerala Co-operative Service Examination Board and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **WEDNESDAY, THE 22ND DAY OF JANUARY 2020/2ND MAGHA, 1941** ## **W.P(C).No.20736 OF 2019(N)** ## **PETITIONER:** **K.S.REMA DEVI, AGED 50 YEARS ACCOUNTANT, AZHOOR-MUTTAPPALAM SERVICE CO-OPERATIVE BANK LTD NO. T 313, MUTTAPPALAM, PERUMKUZHI P.O, THIRUVANANTHAPURAM, RESIDING AT REMA MANDIRAM, MUTTAPPALAM, PERUMKUZHI P.O, THIRUVANANTHAPURAM DISTRICT PIN 695 305** **BY ADVS.SRI.T.R.HARIKUMAR SRI.ARJUN RAGHAVAN** ## **RESPONDENTS:** |**1**|**THE KERALA CO-OPERATIVE SERVICE EXAMINATION BOARD.,**| |---|---| ||**REPRESENTED BY ITS SECRETARY, KERALA STATE CO-OPERATIVE**| ||**BANK BUILDING, OVER BRIDGE, THIRUVANNATHAPURAM 695 001**| |**2**|**THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL),**| ||**THIRUVANANTHAPURAM 695 001.**| |**3**|**THE BOARD OF DIRECTORS OF THE AZHOOR-MUTTAPPALAM SERVICE**| ||**CO-OPERATIVE BANK LTD NO. T.313, REPRESENTED BY ITS**| ||**PRESIDENT, MUTTAPPALAM, PERUMKUZHI P.O, CHIRAYINKEEZH,**| ||**THIRUVANANTHAPURAM DISTRICT PIN 695 305**| |**4**|**THE AZHOOR-MUTTAPPALAM SERVICE CO-OPERATIVE BANK LTD NO.**| ||**T 313,**| ||**REPRESENTED BY ITS SECRETARY, MUTTAPPALAM, PERUMKUZHI**| ||**P.O, CHIRAYINKEEZH, THIRUVANANTHAPURAM DISTRICT PIN 695**| ||**305**| ||**R1 BY SMT.S.L.SYLAJA, SC, CO-OPERATIVE SERVICE**| ||**EXAMINATION BOARD**| ||**R2 BY SRI.BIMAL K. NATH, SR. GOVERNMENT PLEADER**| ||**R3-4 BY SRI.P.C.SASIDHARAN, SC**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C).No.20736/2019 :: 2 ::** **“C.R.”** ## **J U D G M E N T** The petitioner is stated to be working as an Accountant in the 4[th] respondent Society, and was appointed as Secretary in charge with effect from 1.6.2017. The facts in the writ petition would reveal that the petitioner was initially appointed as Peon on 4.11.2003. She was later promoted as Junior Clerk with effect from 1.5.2005 and thereafter as Senior Clerk with effect from 1.11.2013. While she was working in the post of Senior Clerk, the 4[th] respondent Society was reclassified as a Class-III Society with effect from 28.3.2017. Immediately thereafter, a vacancy arose in the post of Secretary with effect from 31.5.2017, consequent to the retirement of the erstwhile incumbent. It was therefore that the petitioner was put in charge as Secretary with effect from 1.6.2017 when the post of Secretary was vacant. During the said period, the petitioner preferred Ext.P2 representation before the 2[nd] respondent on 18.6.2018, followed by a similar representation dated 15.10.2018 before the 4[th] respondent, seeking promotion as Accountant with effect from 1.6.2016, and thereafter as Secretary in accordance with the Feeder Category **W.P.(C).No.20736/2019 :: 3 ::** Rules pertaining to the 4[th] respondent Society as approved by the 2[nd] respondent. While the said representation remained unanswered, the petitioner preferred a further representation [Ext.P4] dated 17.10.2018 before the 1[st] respondent Board referring to the earlier representation, and seeking a deferment of the proposal for direct recruitment that had been notified by the 1[st] respondent Board to the post of Secretary in the meanwhile. To the last mentioned representation, the petitioner received Ext.P5 reply indicating that her proposal was being considered, and she was asked to submit a report with regard to the additional financial burden that the 4[th] respondent Society would have to incur consequent to any promotion granted to her to the post of Secretary. While the petitioner furnished the details sought for, the 1[st] respondent proceeded to issue Ext.P7 Notification dated 27.12.2018 notifying the post of Secretary in the 4[th] respondent Society for filling up through direct recruitment. On coming to know of the said Notification, the petitioner immediately filed W.P.(C).No.1532/2019 before this Court pointing out that the Notification had been issued at a time when Ext.P2 representation preferred by her before the 2[nd] respondent was pending consideration, and she had been assured of a favourable consideration by the said respondent. By Ext.P8 judgment, the said writ petition was disposed directing the 2[nd] respondent to consider **W.P.(C).No.20736/2019 :: 4 ::** and pass orders on Ext.P2 representation within a specified time frame. The 2[nd] respondent thereafter proceeded to pass Ext.P9 order dated 6.7.2019 rejecting the representation of the petitioner, and finding that the petitioner was not included in the feeder category to the post of Secretary for the purposes of consideration of her case for promotion as Secretary. It merits mention at this stage that, in the meanwhile, the petitioner was promoted as an Accountant with effect from 27.1.2019 and Ext.P1 Feeder Category Rules, that were in vogue in the 4[th] respondent, was amended by Ext.P10 Rules which took effect from 30.1.2019. In the writ petition, Ext.P7 Notification and Ext.P9 order of the 2[nd] respondent are impugned, and there is a further prayer for a declaration that Ext.P10 Feeder Category Rules are ultra vires the provisions of the Kerala Co-operative Societies Act and Rules. 2. A counter affidavit has been filed on behalf of the respondents 3 and 4, where the factual averments with regard to the appointment of the petitioner to various posts is denied, and it is clarified that the petitioner commenced her service as Peon only on 4.11.2003, and hence, her promotion to the post of Junior Clerk with effect from 1.5.2005 itself was contrary to the Rule that mandated a minimum service of three years in the feeder category before being **W.P.(C).No.20736/2019 :: 5 ::** promoted to the next higher post. It is thereafter stated that, inasmuch as the 4[th] respondent Society had attained the standard of Class-III Society, it was reclassified as a Class-III Society with effect from 28.3.2017, and consequently, there were additional posts that had to be incorporated between the posts of Senior Clerk and Secretary, to which posts, the petitioner could not aspire for appointment on account of the lack of necessary qualification/experience. Reference is also made to Rule 185 of the Kerala Co-operative Societies Rules to contend that it was for want of any available candidate in the feeder category to the post of Secretary, that the 4[th] respondent Society was constrained to resort to direct recruitment as a method of appointment to the post of Secretary. The counter affidavit also refers to Section 69 of the Kerala Co-operative Societies Act, to point out that inasmuch as the dispute raised in the writ petition is one that pertains to the service conditions of the petitioner employee, vis-a-vis, the 4[th] respondent Society, the matter can be adjudicated only by the Co-operative Arbitration Court under Section 69 of the Kerala Co-operative Societies Act and not by this Court. It is also averred that inasmuch as the petitioner is not qualified to seek promotion as a Secretary, going by Ext.P1 Feeder Category Rules prevailing in the 4[th] respondent Society, she does not have the locus standi to challenge **W.P.(C).No.20736/2019 :: 6 ::** the Notification calling for direct recruits to the post of Secretary. In the counter affidavit filed on behalf of the 2[nd] respondent, the decision in Ext.P9 order is sought to be justified for the reasons contained therein. 3. I have heard Sri. Arjun Raghavan, the learned counsel for the petitioner, Smt.S.L. Sylaja, the learned Standing counsel for the 1[st] respondent, Sri.Bimal K. Nath, the learned Senior Government Pleader for the 2[nd] respondent and also Sri.P.C. Sasidharan, the learned Standing counsel for respondents 3 and 4. 4. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find that this is a case where the petitioner, who was an employee of the Society, was occupying the post of Senior Clerk with effect form 1.11.2013, and notwithstanding the various representations that were preferred by her before the 2[nd] and 4[th] respondents, she was not promoted as an Accountant till 27.1.2019. In the meanwhile, the 4[th] respondent Society had been reclassified as a Class-III Society with effect from 28.3.2017, and by virtue of the said fact, it became obligatory on the said Society to incorporate additional posts in the Feeder Category Rules and to get the same approved by the 2[nd] respondent after **W.P.(C).No.20736/2019 :: 7 ::** making the necessary changes. It was pending a decision on these aspects, and in the interregnum, that the petitioner had sought for a regular promotion as Secretary, after first deeming her as notionally promoted as Accountant with effect from 1.6.2016. Since it is not in dispute that, as on the date of arising of the vacancy to the post of Secretary, namely, 1.6.2017, the petitioner was not included in the feeder category to the post of Secretary, she cannot be seen as a person competent to maintain a writ petition challenging the appointment to the post of Secretary. No doubt, it is the contention of the learned counsel for the petitioner that the issue involved in the writ petition is whether the 4[th] respondent ought not to have notionally promoted the petitioner as an Accountant with effect from 1.6.2016, and as Secretary thereafter, to the vacancy that arose to the latter post with effect from 1.6.2017. I find however, that in matters of promotion and appointment to the various posts in the establishment, there is an element of discretion for the 4[th] respondent Society, in that, there can be circumstances where the Society chooses not to fill up a post for justifiable reasons. In the instant case, I find that there was a justifiable reason, although not specifically adverted to by the 4[th] respondent Society in its counter affidavit, in that, consequent to the reclassification of the Society with effect from 28.3.2017, there was a need to incorporate **W.P.(C).No.20736/2019 :: 8 ::** additional posts between that of Senior Clerk and Secretary in the Feeder Category Rules. As a matter of fact, and as subsequent events indicate, Ext.P1 Feeder Category Rules were amended and gave way to Ext.P10 Feeder Category Rules, where these additional posts are also incorporated. The 4[th] respondent Society therefore cannot be faulted for not having resorted to a regular appointment of Secretary during the period between 1.6.2017 and December, 2018, when Ext.P7 Notification was issued for the said purpose. Given that, there was a justification for delaying the issuance of Ext.P7 Notification, and resorting to a selection for the post of Secretary, the question arises as to whether the petitioner could be said to be an aggrieved person for the purpose of challenging the said Notification. As already noticed, the petitioner was not in the feeder category to the post of Secretary as per Ext.P1 Feeder Category Rules, and much less would she be in the feeder category under Ext.P10 Feeder Category Rules. I find therefore that in any event, a writ petition impugning Ext.P7 Notification, cannot be maintained at the instance of the petitioner, who is not eligible for the post that is notified for selection. 5. The learned counsel for the petitioner, however, has an alternate contention that the 4[th] respondent Society cannot, at any **W.P.(C).No.20736/2019 :: 9 ::** rate, resort to a direct recruitment to fill up the post of Secretary through Ext.P7 Notification. It is pointed out that although Ext.P1 Feeder Category Rules clearly specifies that appointments to the post of Secretary under the 4[th] respondent, can be either by promotion from among qualified Accountants or by direct recruitment from persons having the necessary qualifications, decisions of this Court have held that posts other than those expressly mentioned in Rule 185(2), (3) and (4) of the Kerala Co-operative Societies Rules cannot be filled except by resort to promotion from among persons in the feeder category. Reference is made in this connection to Ext.P11 judgment of a learned Single Judge of this Court as also to the decision of another learned Single Judge in **Rajendran M. v. - Mattancherry Mahajanik Co operative Urban Bank Ltd. and Others - [2015 KHC 7013]** and to the decision of the Division **-** Bench in W.A.No.1256/2019 **[The Kizhuvilam Service Co operative Bank Ltd. v. C.R.Ajayakumar and others]** , affirming Ext.P11 judgment, and the decision of the Division Bench in **Mattancherry Mahajanik Co-operative Urban Bank Ltd. and Others v. - Rajendran M. and Others [2016 (2) KLT SN 93],** affirming the judgment of the learned Single Judge in **Rajendran M. v. - Mattancherry Mahajanik Co operative Urban Bank Ltd. and Others - [2015 KHC 7013]** . All the aforesaid decisions, according **W.P.(C).No.20736/2019 :: 10 ::** to the petitioner, are authorities for the proposition that a Cooperative Society cannot either expressly, through its Feeder Category Rules, or by invoking the doctrine of necessity in other cases, resort to a direct recruitment to fill up those posts other than those specifically mentioned in Rule 185(2), (3) and (4) of the Kerala Co-operative Societies Rules. It is contended therefore that the 4[th] respondent Society cannot proceed with Ext.P7 Notification to fill up the post of Secretary in the said Society, by direct recruitment. 6. Per contra, the learned Standing counsel for the 4[th] respondent Society would bring to my notice the decision of a learned **-** Single Judge of this Court in **Padmaja.K. v. Joint Registrar of Co - operative Societies and Others [ILR 2008 (4) Kerala 766** ], where, adverting to the provisions of Rule 185 of the Kerala Cooperative Societies Rules, it is stated as follows: “9. This takes us to sub-rule (1) of Rule 185. It provides for promotion on the basis of seniority in the feeder category. The feeder categories, for such purpose, are to be specified by the society, by framing suitable regulations, with the approval of the Registrar. Therefore, when the society frames the regulations specifying the feeder categories, with the approval of the Registrar, it becomes the feeder categories prescribed for the purpose of Rule 185(1). On the face of that feeder category, promotions have to be effected in terms of Rule 185(1) and in terms of the provisions of Sub-rules (2), (3) and (4) to the extent they govern the field. The first proviso to Rule 185(1) enjoins that on the relinquishment of promotion to a post by a senior in the feeder category, the immediate junior in that category shall be promoted. The first **W.P.(C).No.20736/2019 :: 11 ::** proviso to Rule 185(1), therefore, works in relation to the feeder category only. The second proviso provides further that if all the employees in the feeder category to a post relinquish promotion, an employee on the immediate lower category shall be promoted to the post after promoting him to the feeder category, by creating a supernumerary post in the feeder category. It also postulates the abolition of the supernumerary post so created, immediately on the promotion of that employee from the feeder category to the post/category to which promotion is being made. Therefore, the second proviso works in the zone of the feeder category and its immediate lower category. The said proviso does not admit any elasticity, to stretch it to categories which are further down in the Feeder Category Rules. Going by Ext.P6 Feeder Category Rules, the post of Assistant Secretary, to which the impugned selection is made is in Category No.2. Category No.3, namely, Chief Accountant/Chief Cashier, is its feeder category. Category No.4 (Internal Auditor) is the category which is the immediate lower category of Category No.3 (Chief Accountant/Chief Cashier). Therefore, the second proviso to sub-rule (1) of Rule 185 can aid only a person in Category No.4 in Ext.P6 Feeder Category Rules to claim for the creation of a supernumerary post in Category No.3, in situations envisaged by that proviso; to seek further movement up the ladder, for being considered for appointment as Assistant Secretary. The petitioner, who is at Category No.7, cannot get the aid of the second proviso to Rule 185(1), for being considered for appointment by promotion to the post of Assistant Secretary. 10. Hence, though the petitioner possesses the educational qualifications to hold the post of Assistant Secretary, going by the Feeder Category Rules, she is not eligible for being considered for promotion to the category of Assistant Secretary from Category No.7, Junior Clerk/Junior Cashier, with the aid of Rule 185(1), including the second proviso thereto. 11. This takes us to the question regarding the availability of direct recruitment as a method of appointment to the category of Assistant Secretary in the third respondent's establishment. Rule 185, which governs the field of promotion, does not; and cannot be read to, take care of situations which do not fall directly under that rule, including the three provisions thereto. A situation where there is no qualified hand in the feeder category or in that category which is the immediate lower category to the feeder category is not conceived of, envisaged or provided for, in Rule 185. That is an area **W.P.(C).No.20736/2019 :: 12 ::** where a rule of promotion is not prescribed. In the absence of any method of appointment being prescribed, it is open to every employer to make direct recruitment because that is the primary manner in which relationship of employer and employee is created. Hence, when the field is unoccupied by any rule authorizing or compelling promotion, or any other specified mode or method of appointment, such field is available for direct recruitment. So much so, the prescription in Ext.P6 that direct recruitment shall be an alternate method of appointment to the category of Assistant Secretary cannot be found fault with. Not only that, Ext.P6 is approved by the competent authority and in the absence of any violation of the law; which, as already noticed, is just not there; Ext.p6 prescribing direct recruitment as an alternate method of appointment to Category No.2 (Assistant Secretary/Manager) stands.” When I consider the rival submissions on this alternate contention of the learned counsel for the petitioner, I find that Rule 185(1) makes it subject to the provisions of Sub Rules (2), (3) and (4), which provide for filling up of substantive vacancies in certain posts either by promotion or by direct recruitment. Thereafter, the said Rule mandates that 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 Rule also mandates that the feeder categories for this purpose shall be specified by the Society, by framing suitable regulations with the approval of the Registrar. In my view, the said Rule only mandates that when the approved Feeder Category Rules mandate that appointment to any posts in the Society shall be effected only by **W.P.(C).No.20736/2019 :: 13 ::** promotion on the basis of seniority in the feeder category, then that method alone has to be adhered to by the Society concerned, for the purposes of filling up vacancies to the post. On the other hand, when the Feeder Category Rules of a Society permit the Society to opt for direct recruitment in cases where there is no person available in the feeder category for appointment through promotion, I do not find anything in Rule 185 that prohibits a Society from making such a provision in its Feeder Category Rules. To this extent, I find myself in agreement with the view taken by the learned Single Judge in **- Padmaja.K. v. Joint Registrar of Co operative Societies and Others - [ILR 2008 (4) Kerala 766** ]. I would also think that, after the amendments brought into our Constitution, and pursuant to the inclusion of the Co-operative principles as guiding principles in the Kerala Co-operative Societies Act, the said principles ought to guide the interpretation of the provisions of the said statute. Thus viewed, Rule 185 should be interpreted in a manner that would promote functional autonomy and independence of Co-operative Societies and a Society should be given the freedom to effect appointments in the manner specified in its approved Feeder Category Rules, whenever there is no eligible candidate for promotion in the feeder category. Having observed thus, I must hasten to add that I am bound by the ratio of the Division Bench judgments relied on by the learned **W.P.(C).No.20736/2019 :: 14 ::** counsel for the petitioner that take a contrary view and the observations made above are only for the purpose of suggesting that, perhaps, the contrary view expressed in the decisions referred above, requires a re-consideration. In the present case, however, I do not find the need to go into an elaborate discussion on the perceived conflict between the said judgments as noticed above, since the petitioner herein is at any rate ill-suited to maintain this writ petition, on account of her not being eligible, as per the Feeder Category Rules, to be promoted to the post of Secretary under the 4[th] respondent. I therefore dismiss the writ petition, in its challenge to Ext.P7 Notification and Ext.P9 order. **Sd/A.K.JAYASANKARAN NAMBIAR JUDGE** **prp/22/1/2020** **W.P.(C).No.20736/2019 :: 15 ::** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE FEEDER CATEGORY RULES APPROVED BY THE 2ND RESPONDENT DATED 0602-2004** - **EXHIBIT P2 A TRUE COPY OF THE REPRESENTATION DATED 18-06-2018 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT** - **EXHIBIT P3 A TRUE COPY OF THE REPRESENTATION DATED 15-10-2018 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT** - **EXHIBIT P4 A TRUE COPY OF THE REPRESENTATION DATED 17-10-2018 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT** - **EXHIBIT P5 A TRUE COPY OF THE REPLY SENT BY 3RD RESPONDENT DATED 29-11-2018.** - **EXHIBIT P6 A TRUE COPY OF THE REPLY FILED BY THE PETITIONER TO EXT-P5 DATED 08-12-2018** - **EXHIBIT P7 A TRUE COPY OF THE RELEVANT PAGE OF THE NOTIFICATION DATED 27-12-2018 ISSUED BY THE 1ST RESPONDENT** - **EXHIBIT P8 A TRUE COPY OF THE JUDGMENT DATED 13-03-2019 IN WP(C) NO. 1532 OF 2019** - **EXHIBIT P9 A TRUE COPY OF THE ORDER NO.C.R.P (2) 4021/19 DATED 06-07-2019 OF THE 2ND RESPONDENT.** **EXHIBIT P10 A TRUE COPY OF THE FEEDER CATEGORY RULES APPROVED BY THE MANAGING COMMITTEE BY RESOLUTION NO. XXII DATED 29-11-2018.** **EXHIBIT P11 A TRUE COPY OF THE JUDGMENT DATED 04-042019 IN WP(C) NO. 2274 OF 2019.** **W.P.(C).No.20736/2019 :: 16 ::** ## **RESPONDENTS EXHIBITS:** **EXHIBIT R3(a) TRUE COPY OF THE STATEMENT OF PAY FIXATION CONSEQUENT TO THE REVISION OF PAY AS PER THE GOVERNMENT ORDERS.** **EXHIBIT R3(b) TRUE COPY OF THE ORDER DATED 22/1/2011.** **EXHIBIT R3(c) TRUE COPY OF THE PROCEEDINGS DATED 25/1/2019.** - **EXHIBIT R3(d) TRUE COPY OF THE RELEVANT EXTRACT OF THE AUDITED MEMORANDUM FOR THE FINANCIAL YEAR 2016-2017.** - **EXHIBIT R3(e) TRUE COPY OF THE ELIGIBILITY LIST FORWARDED BY THE CO-OPERATIVE EXAMINATION BOARD TO THE SOCIETY.** **EXHIBIT R2(A) TRUE COPY OF EXPLANATIONS SUBMITTED BY THE PETITIONER AND THE CONCERNED OFFICIALS OF 4TH RESPONDENT.** **EXHIBIT R2(B) TRUE COPY OF THE LETTER NO.CSEB/RL/1515/18 DATED 28.05.2019.** **//TRUE COPY//** **P.S. TO JUDGE**