M. P. Divakaran v. Joint Registrar of Co-operative Societies, Kannur & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY, THE 17TH DAY OF AUGUST 2016/26TH SRAVANA, 1938** ## **WP(C).No. 27155 of 2007 (G)** ## **----------------------------** ## **PETITIONER :** **----------------------** ## **M.P.DIVAKARAN, CHIEF ACCOUNTANT, PALLIKKUNNU SERVICE CO-OPERATIVE BANK LIMTED, HEAD OFFICE, CHALAD, KANNUR- 670 014.** ## **BY ADVS.SRI.P.M.PAREETH SRI.MOHAMMED SHAMEEL** **RESPONDENT(S):** - **---------------------------** **1. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, KANNUR.** **2. PALLIKKUNNU SERVICE CO-OPERATIVE BANK LIMITED, REPRESENTED BY ITS SECRETARY, HEAD OFFICE,** **CHALAD, KANNUR- 670 014.** **3. SECRETARY, PALLIKKUNNU SERVICE CO-OPERATIVE BANK LIMITED, HEAD OFFICE,** **CHALAD, KANNUR- 670 014.** **4. ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, KANNUR.** **R1 & R4 BY SR GOVERNMENT PLEADER SRI.SANTHOSH PETER R2 & R3 BY ADV. SRI.T.P.PANKAJAKSHAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).NO.27155/2007** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE RESOLUTION DATED 29/7/89 PASSED BY THE COMMITTEE OF THE SECOND RESPONDENT** - **P2 COPY OF THE LETTER NO.CRP(1) 4542/07/LDIS DATED 12/7/07** - **P3 COPY OF THE RESOLUTION DATED 17/6/05 PASSED BY THE COMMITTEE OF THE SECOND RESPONDENT** - **P4 COPY OF THE LETTER DATED 23/6/05 ISSUED BY THE SECOND RESPONDENT TO THE FIRST RESPONDENT THROUGH FOURTH RESPONDENT** - **P5 COPY OF THE LETTER DATED 22/3/06 ISSUED BY THE SECOND RESPONDENT TO THE FIRST RESPONDENT** - **P6 COPY OF THE FINAL SENIORITY LIST OF EMPLOYEES OF THE BANK AS ON 31/3/05.** ## **RESPONDENT'S EXHIBITS:** ## **NIL** ## **/TRUE COPY/** ## **P.A.TO JUDGE** **sts** ## **P.V.ASHA, J.** ## **W.P.(C) No.27155 of 2007** ## **Dated this the 17[th] day of August, 2016** ## **JUDGMENT** The petitioner had entered service of the bank as Junior Clerk on 17.8.1977; he was promoted as Senior Clerk on 1.9.1984 and thereafter as Accountant on 1.6.1986. He was promoted as Assistant Secretary with effect from 1.8.1989 based on Ext.P1 resolution. In the year 1995 he was shifted as Chief Accountant. In the audit conducted in January 2005 objection was raised as against the promotion of the petitioner as Assistant Secretary granted from 1.8.1989, on the ground that the petitioner did not have a Degree in any subject, which is one of the requisite qualifications for appointment in that post. It was further found that even though relaxation of the qualification was admissible, promotion could have been made only with prior approval of the Joint Registrar of Co-operative Societies. On the basis of the objection raised in the audit, the bank in its meeting held on 17.6.2005, as per Ext.P3 resolved to seek approval from the Joint Registrar of Co-operative Societies for promotion of the petitioner with effect from 1.8.1989, considering the meritorious service rendered by the petitioner. The bank also referred to the circumstances under which he continued in the post and rendered W.P.(C) No.27155 of 2007 **==> picture [14 x 9] intentionally omitted <==** service from 1.8.1989 and the fact that no objection was raised in any of the audit reports till the year 2005. The said resolution was forwarded on 23.6.2005 as per Ext.P4 letter of the society. By Ext.P2 order the Joint Registrar of the society rejected the request of the society saying that the promotion granted to the petitioner without getting approval of the Joint Registrar when he did not have the requisite qualification was not proper and therefore it was directed that he should be reverted to the post of Accountant and the excess salary paid should be recovered and thereafter steps can be taken for seeking relaxation. 2. The petitioner submits that the direction to revert the petitioner after he rendered service in the post of Assistant Secretary since 1989, that is after rendering about 16 years of service in the post without any complaints from any corner, is highly unjust. Pointing out that there were several occasions in which several employees were granted promotion in similar circumstances without prior approval and that approval was granted, petitioner submits that at the fag end of his service career the action of the respondents causes him serious prejudice. 3. Respondents have filed counter affidavit saying that rule 185 (8) of the Kerala Co-operative Societies Rules specifically mandates W.P.(C) No.27155 of 2007 **==> picture [14 x 9] intentionally omitted <==** that the Registrar of Co-operative Societies is competent to relax the qualification of an employee for the purpose of promotion in deserving cases. Such relaxation can be made in case the 2[nd] respondent bank had sought for the same and the bank could have promoted the petitioner only with prior permission from the Registrar. In this case the bank themselves promoted the petitioner on 29.7.1989 despite the fact that the petitioner did not have the requisite educational qualification and therefore the promotion granted without getting exemption from the qualification and without authority cannot be accepted as the same is unauthorised. It was further sated that the committee of the society was competent to relax the qualification of an employee for the purpose of promotion in deserving cases with prior approval of the Registrar for reasons to be recorded, as per the Rules as amended as per SRO 724/88 dated 17.6.1989. But the stipulation contained in the said rule was not complied with by the 2[nd] respondent bank and since the request was made only on 17.6.2005 the same was rejected. Regarding the case pointed out by the petitioner with respect to the appointment of Eswaran Namboothiri it was stated that the criteria adopted therein cannot be applicable to the petitioner. It is stated that he was promoted as Assistant Secretary while the bank was in Class-IV category whereas the 2[nd] W.P.(C) No.27155 of 2007 **==> picture [14 x 9] intentionally omitted <==** respondent bank was in Class-II category at the time of promotion of the petitioner and therefore should have obtained permission before granting promotion. 4. I heard the learned counsel for the petitioner and the learned Government Pleader. 5. It is seen that the petitioner had rendered service right from 1.8.1989 as Assistant Secretary. It was on the basis of the resolution passed by the Bank for promoting the petitioner and the consequential orders that the petitioner happened to work as Assistant Secretary all these years. It is true that the society did not have any authority to promote the petitioner when he did not have the requisite qualification in the absence of a resolution relaxing the qualification, which resolution should have been taken after getting approval from the Registrar. In case there was a resolution relaxing his qualification with prior approval the promotion as per Ext.P1, would have been proper. But the society promoted him in violation of the rules. However the fact remains that the petitioner worked as Assistant Secretary from 1989 onwards; he cannot be held responsible for the absence of a resolution for seeking prior approval of Registrar for relaxing the qualification in his case; or for the promotion granted to him without getting prior approval for the same. It is also seen that in the event of W.P.(C) No.27155 of 2007 **==> picture [14 x 9] intentionally omitted <==** a request by a managing committee of a society before the Registrar, seeking prior approval for relaxation, the normal procedure is to grant the same and Registrar has no power to deny permission unless the beneficiary is not having any mandatory training qualification. In this context it is also pertinent to note that even though audit was being conducted in the society from time to time, it was only in the year 2005 that the absence of the qualification of petitioner who was granted promotion made in 1989, was found out and objected. At any rate the society, as soon as it came to know about the defect in appointment, resolved to request for approval. Even while rejecting the request what the Joint Registrar has stated is : approval can be sought after reverting the petitioner and recovering the amount from him. 6. That means the promotion of the petitioner was always possible with relaxation. That relaxation was possible even in 2005. If the society had taken a resolution to relax the qualification in the case of petitioner, there would not have been an occasion for the Joint Registrar to reject the request made in the resolution. Therefore in effect apart from a formal as well as technical effect in not seeking prior approval, it can be seen that there was no embargo for promoting the petitioner. Petitioner was not responsible for any of the W.P.(C) No.27155 of 2007 **==> picture [14 x 9] intentionally omitted <==** defects which occurred in his promotion. In this view of the matter there is no justification in directing his reversion to the post of Accountant or any other post and to direct recovery of the salary paid to him. The society or anybody else do not have a case that the petitioner did not work in the post of Assistant Secretary or that his work and conduct caused any loss or otherwise to the bank. Therefore after extracting his services for all these years it is neither just nor proper to revert the petitioner or to effect any recovery from his salary. 7. The learned counsel for the petitioner relied on the judgment of this court in _**Rajalekshmi V. State of Kerala** [1992 (1) KLT 458]_ in which the question where an objection was raised after a period of 10 years on the ground for want of qualification was considered and it was held that at this distance of time after a period of 10 years no proceedings could have been taken for reversion. Similarly in the judgment in _**Kuttipuram Service Co-operative Bank v. State of Kerala** [2004 (2) KLT 73]_ in which the employees who got promotion without having the requisite qualification or exemption was considered and those promotions were upheld by this court. The learned counsel for the petitioner also relies on the judgment dated 28.9.2015 in W.A.No.610 of 2015 in which this court considered the question of W.P.(C) No.27155 of 2007 **==> picture [14 x 9] intentionally omitted <==** reversion directed in the case of an Assistant Engineer of PWD reckoning the service rendered by him while he was on leave without allowance when the same was going to be effected at the fag end of his service career and held that the proceedings for reverting him was not proper. 8. Rule 185 (8) which prevailed at the relevant time provided for relaxation of qualification by a resolution of the bank and promotion with prior approval of the Joint Registrar. It can be seen that once bank has resolved to relax the qualification and requests for approval for promotion, the role of the Joint Registrar was to grant approval except in a case where the person who was being promoted did not have any technical qualification or training qualification. In this view of the matter the action of the Joint Registrar cannot be sustained, even though the action of the society was not proper. Petitioner cannot be held liable for any of the lapses committed by the society. In these circumstances, I set aside Ext.P10 and allow this writ petition. Sd/- **P.V.ASHA JUDGE** rkc