M.ABOOBACKER v. The Thenhipalam Service Co-Operative Bank Ltd. & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 26TH AUGUST 2011 / 4TH BHADRA 1933 WP(C).No. 20969 of 2010(U) -------------------------- PETITIONER(S): - --------------- M.ABOOBACKER, MANNILTHODY, KADAKKATTUPARA, THENHIPALAM P.O., MALAPPURAM DISTRICT-673 636. BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT(S): - --------------- 1. THE THENHIPALAM SERVICE CO-OPERATIVE BANK LTD.NO.D.1969, THENHIPALAM P.O., MALAPPURAM DISTRICT-673 636. 2. THE JOINT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES, MALAPPURAM-676 505. 3. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM-695 001. 4. STATE OF KERALA, REPRESENTED BY THE SECRETARY CO-OPERATION (C) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. BY ADV. SRI.E.NARAYANAN FOR R1 BY GOVT. PLEADER SRI.P.M.MANOJ. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) NO.20969 of 2010 EXT.P1 COPY OF THE RESOLUTION NO.XII DATED 23.12.2002 EXT.P2 COPY OF THE ORDER DATED 5.3.2004 OF THE 3RD RESPONDENT. EXT.P3 COPY OF THE ORDER DATED 15.6.2007 OF THE 3RD RESPONDENT. EXT.P4 COPY OF THE ORDER DATED 8.5.2009 OF THE 4TH RESPONDENT. EXT.P5 COPY OF THE JUDGMENT IN W.P.(C) No.29679 OF 2004 DATED 23.11.2005. //TRUE COPY// P.A. TO JUDGE. ## **P.N. RAVINDRAN, J.** ------------------------------- ## **W.P (C) No.20969 of 2010** ------------------------------- ## **Dated this the 26[th] day of August, 2011** ## **J U D G M E N T** The petitioner is a former Secretary of the Thenhipalam Service Co-operative Bank Ltd., the first respondent herein. He entered service in the first respondent bank on 20.4.1970. He was promoted as Assistant Secretary/ Chief Accountant with effect from 1.10.2001. The post of Secretary of the first respondent bank fell vacant on 30.9.2001. The petitioner was thereupon given charge of the Secretary of the first respondent society. When the post of Secretary fell vacant, the petitioner possessed a pass in the Secondary School Leaving Certificate Examination and Junior Diploma in Cooperation. Under rule 186 of the Kerala Co-operative Societies Rules, 1969, only graduates can be appointed as Secretary of the cooperative societies. Rule 185(8) however empowers the Registrar of Co-operative Societies to exempt in deserving cases employees of cooperative societies who fulfill the conditions stipulated in the said rule from possessing a degree for the purpose of promotion to a higher post. Prior to 3.9.2005, the rule contemplated prior approval of the Registrar of Co-operative Societies before promoting the applicants. With effect from 3.9.2005, the rule was amended taking away the W.P.(C) No.20969 of 2010 2 necessity of obtaining prior approval, but empowering the Registrar to exempt employees from possessing graduation. 2. After the vacancy of Secretary arose and the petitioner was put in charge, the managing committee of the first respondent society that met on 23.12.2002 resolved to request Registrar of Cooperative Societies to relax the qualification of graduation with effect from 1.10.2001 for the purpose of promoting the petitioner to the category of Secretary. A request was also made in that regard through the Assistant Registrar of Co-operative Societies (General) Malappuram. By Ext.P2 order dated 5.3.2004, the Registrar of Cooperative Societies approved the relaxation granted by the Board of Directors of the first respondent society subject to the stipulation that the approval will take effect only from the date of the order, namely, 5.3.2004. Aggrieved thereby, the first respondent society filed a review petition before the Registrar of Co-operative Societies and it was rejected by Ext.P3 letter dated 15.6.2007 on the ground that it is belated and also on the ground that it would adversely affect the petitioner. The petitioner thereafter filed an appeal before the Government challenging Ext.P3. By Ext.P4 order dated 8.5.2009, the Government rejected the said appeal. Hence this writ petition. W.P.(C) No.20969 of 2010 3 3. The main contention raised by the petitioner is that as the Registrar of Co-operative Societies is only concerned with the grant of approval for the relaxation and the date with effect from which the relaxation is to be given is within the province of the committee which decided to give the relaxation, the impugned order is liable to be set aside. Reliance is placed on the unreported decision of this Court in W.P.(C) No.29679 of 2004 (Ext.P5) in support of the said contention. 4. I heard Sri.V.G.Arun, learned counsel appearing for the petitioner , Sri.E.Narayan, learned counsel appearing for the first respondent and Sri.P.M.Manoj, learned Government Pleader appearing for respondents 2 to 4. From a reading of the impugned order, it is evident that the petitioner was found entitled to relaxation of qualification for the purpose of promoting him to the category of Secretary. The orders also disclose that the petitioner fulfilled the conditions stipulated for grant of an order of exemption. However, though initially sub-rule (8) of section 185 of the Kerala Co-operative Societies Rules stipulates that prior approval of the Registrar of Cooperative Societies has to be obtained, the said provision was substituted by SRO.No.869 of 2005 dated 3.9.2005 published in the W.P.(C) No.20969 of 2010 4 Kerala Gazette Extra Ordinary No.2065 dated 3.9.2005. As per the sub-rule (8) thus substituted, no prior approval is required and all that is contemplated is an order of relaxation to the Registrar of Cooperative Societies based on the request of the society and the conditions subject to which such relaxation can be granted are stated in the rules. Further, the learned single Judge of this Court has in W.P.(C) No.29679 of 2004 held while quashing an order of relaxation which was passed prior to the substitution of sub-rule (8) of rule 185 of the Kerala Co-operative Societies Rules that it is within the province of the committee to decide upon the date from which exemption should be granted. The same view was reiterated by this Court in **Dasan v. Registrar of Co-operative Societies** (2007 (1) KLT 581) and the unreported decision of this Court in W.P.(C) No.1424 of 2010. The judgment in W.P.(C) No.1424 of 2010 was affirmed by a Division Bench of this Court in W.A.No.361 of 2011. The Registrar of Cooperative Societies is a party to all these judgments. The judgments referred to above have also attained finality. In such circumstances, I am of the opinion that the petitioner is entitled to succeed. I accordingly allow the writ petition, quash Exts.P3 and P4 orders and declare that the stipulation in Ext.P2 order to the effect W.P.(C) No.20969 of 2010 5 that the order of relaxation will take effect only from 1.10.2001 as resolved by the Board of Directors of the first respondent. Consequently, the petitioner will be entitled to all service benefits on that basis. **P.N. RAVINDRAN, JUDGE.** nj. ## **P.N.RAVINDRAN, J.** -------------------------------------- W.P.(C) No.20969 of 2010 ## **JUDGMENT** Dated:- 26[th] August, 2011 --------------------------------------