Kunhiraman K.K. v. State of Kerala and Others (WP(C) 27847 of 2013)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 18TH DAY OF DECEMBER 2013/27TH AGRAHAYANA, 1935** ## **WP(C).No. 27847 of 2013 (E)** **----------------------------** ## **PETITIONER(S): --------------------------** **KUNHIRAMAN K.K. S/O.GOVINDAN NAMBIAR ASSISTANT SECRETARY(SECRETARY -IN-CHARGE) KOOTTUMUGHAM SERVICE CO-OPERATIVE BANK LTD.NO.C.72 PO KOOTUMUGHAM, SREEKANDAPURAM, KANNUR DISTRICT** **BY ADVS.SRI.M.SASINDRAN** **SRI.P.K.SUBHASH** **RESPONDENTS:** **----------------------------** **1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT DEPARTMENT OF CO-OPERATION, SECRETARIAT THIRUVANANTHAPURAM 695 001.** **2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES THIRUVANANTHAPURAM 695 001.** **3. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) KANNUR 670 001.** **4. KOOTTUMUGHAM SERVICE CO-OPERATIVE BANK LTD.NO.C.72 PO KOOTTUMUGHAM 670 631, SREEKANDAPURAM KANNUR DISTRICT, REPRESENTED BY ITS PRESIDENT** **R4 BY ADV. SRI.M.B.PRAJITH** **R BY GOVERNMENT PLEADER SRI NOUSHAD THOTTATHIL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 27847 of 2013 (E)** **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-------------------------------------** **EXHIBIT P1 COPY OF THE LETTER ISSUED TO THE JOINT REGISTRAR** **EXHIBIT P2 COPY OF THE RESOLUTION DATED 31/10/2012 WHICH HAS BEEN ADOPTED BY THE SOCIETY** - **EXHIBIT P3 COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT JOINT REGISTRAR DATED 4/2/2013** - **EXHIBIT P4 COPY OF THE SENIORITY LIST PUBLISHED BY THE 4TH RESPONDENT BANK DATED 1/8/2010** - **EXHIBIT P5 COPY OF THE ORDER ISSUED BY THE JOINT REGISTRAR ON BEHLAF OF THE REGISTRAR DATED 11/6/2013** **EXHIBIT P6 COPY OF THE RELEVANT EXTRACTS FROM THE FEEDER CATEGORY RULES OF THE SOCIETY INTRODUCED IN THE YEAR 2009.** **RESPONDENT(S)' EXHIBITS** **---------------------------------------** ## **TRUE COPY** **P.A TO JUDGE** **K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P(C) No. 27847 of 2013 E** **- - - - - - - - - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 18[th] day of December, 2013** ## **J U D G M E N T** The petitioner is an Assistant Secretary aspiring to the post of Secretary on the basis of resolution passed by the Managing Committee of the respondent Bank to exempt, the education qualification required, under Rule 186 of the Cooperative Societies Rules, 1969. Admittedly, the petitioner joined in the respondent Bank as an Attender on 4.2.1980 and was promoted as Junior Clerk on 1.2.1981. Subsequently, he was promoted to the post of Branch Manager on 1.9.2009 and then as Assistant Secretary. While so a vacancy arose in the post of Secretary on 1.7.2012. The Bank thought it fit to promote the petitioner to the said post and since he did not have the required educational qualification, the Managing Committee made a valid resolution to exempt such qualification as per Ext.P1 dated 13.10.2012 which was forwarded to the Joint Registrar for approval by Ext.P2. The petitioner is aggrieved by the refusal to grant approval as communicated by Ext.P5. WPC.27847/2013 : 2 : 2. In Ext. P5 the Joint Registrar has found two reasons to decline approval. Primarily the Joint Registrar holds that the petitioner's promotion to the post of Junior Clerk is against Rule 185 of the Kerala Co-operative Societies Rules, 1969, since he has been promoted to the post without three years service in the feeder category. The Joint Registrar also finds that the financial position of the Bank is not one fit to make a promotion from the Assistant Secretary's post and a more professional hand is required to be a Chief Executive Officer. 3. Who is to be the Chief Executive Officer of the Bank is a decision which has to be taken by the respondent Bank and the Joint Registrar cannot impose his views in the matter. In any event, the feeder category Rules provides for promotion of the existing employees of the Bank, then necessarily the Bank is bound to do so and and in cases where there are no qualified hands the Bank would also be entitled to look into whether an unqualified hand can be promoted on the basis of experience; that is the satisfaction to be entered into by the Managing Committee. With respect to the contention that the petitioner was promoted to the post of Junior Clerk without having been continued in the feeder category post of three years, Rule 201 comes to the aid of the petitioner. In fact, in WPC.27847/2013 : 3 : a similar situation this Court has considered the effect of Rule 201 in W.P(C) 16422 of 2009, wherein it was held so:- 3. A reading of Ext.P4 shows that the only reason stated for declining the request in Ext.P1 was that the petitioner entered service of the Bank only on 1.3.1979, and that the benefit of Rule 201 is available only to those who have entered service prior to 1.1.1974. Rule 201 reads as under:- - “Rule 201: Special provisions in respect of certain promotions:- All promotions of employees, who were in service of any Cooperative Society before the commencement of the Kerala Cooperative Societies (Amendment) Rules, 1988 issued under G.O (MS)No.18/88 Co-op/dated the 17[th] day of June, 1988, made to any higher post or posts after 1[st] WPC.27847/2013 : 4 : day of January, 1974 and before the publication of the said rules in the Gazette shall be deemed to have been made in accordance with the provision of Rules 185 and 200 as amended by the said Rules”. From a plain reading of this Rule, it is evident that by virtue of this Rule, all promotions of employees, who were in service before 17.06.1988, made to any higher post, or posts after the 1[st] day of January, 1974, and before the publication of the amendment Rules referred to above, shall be deemed to have been made in accordance with the provisions of Rules 185 & 200 as amended by the said Rules. Thus, by virtue of this Rule, all promotions effected during the period from 1.1.1974 to 17.6.1988 are saved by this Rule. There is nothing in this Rule to indicate WPC.27847/2013 : 5 : that the operation of this Rule is confined to those employees, who entered service prior to 1.1.1974, as mentioned in Ext.P4. The position is also clarified by this Court in **Thakamani Amma v. Kerala State Co-operative Pension Board (2000(3)KLT Short Note 64, Case NO.69)** . 4. In view of the above, necessarily Ext.P4 needs to be quashed and I do so. Accordingly, this writ petition will stand disposed of directing the 2[nd] respondent to consider Ext.P1, in the light of this judgment, and pass orders thereon. This shall be done as expeditiously as possible, at any rate, within eight weeks of production of a copy of this judgment.” The said decision was challenged in appeal by the State and the same was confirmed by judgment dated 7.1.2013 in W.A No.534/2010. In the instant case also, the petitioner has been WPC.27847/2013 : 6 : promoted before the Kerala Co-operative Societies amendment Rule 1988 came into force with effect from 17.6.1988. Such promotion being after 1.1.1974 the order of the Joint Registrar as seen in Ext.P5 is not proper and legal. Ext.P5 is set aside. In such circumstance, it is directed that the Joint Registrar grant approval for exemption within one week from the date of production of certified copy of this judgment. Sd/- ## **(K. VINOD CHANDRAN, JUDGE)** jma **//** true copy// P.A to Judge