Manju Murali v. Joint Registrar of Co-operative Societies (General), Government of Kerala, S. Sajitha, Kandalloor Farmers Service Co-operative Bank Ltd. No.1410, Kandalloor P.O., Alappuzha and Praseeda

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **TUESDAY, THE 3[RD] DAY OF AUGUST 2021 / 12TH SRAVANA, 1943** **WP(C) NO. 600 OF 2019** ## **PETITIONER/S:** **MANJU MURALI, JUNIOR CLERK, KANDALLOOR FARMER'S SERVICE CO-OPERATIVE BANK LTD. NO.1410, KANDALLOOR P.O., ALAPPUZHA.** **BY ADVS. P.N.MOHANAN SRI.C.P.SABARI SMT.AMRUTHA SURESH** ## **RESPONDENT/S:** - **1 JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, ALAPPUZHA-688011.** - **2 GOVERNMENT OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, CO-OPERATIVE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **3 S. SAJITHA, JUNIOR CLERK, KANDALLOOR FARMER'S SERVICE CO-OPERATIVE BANK LTD. NO.1410, KANDALLOOR P.O., ALAPPUZHA-690535.** - **4 KANDALLOOR FARMERS SERVICE CO-OPERATIVE BANK LTD. NO.1410, REPRESENTED BY ITS SECRETARY, KANDALLOOR P.O., ALAPPUZHA-690535.** - **5 PRASEEDA** **PEON, KANDALLOOR FARMERS SERVICE CO-OPERATIVE BANK LIMITED NO.1410, KANDALLOOR, KAYAMKULAM (*ADDL.R5 IS IMPLEADED AS PER ORDER DATED 27.9.2019 IN IA.1/2019 IN WP(C))** **BY ADVS. SRI.K.JAJU BABU (SR.) SRI.P.P.JACOB K.N.CHANDRABABU SMT.M.U.VIJAYALAKSHMI** **WP(C) NO. 600 OF 2019 ..2..** **SRI.BRIJESH MOHAN** **GOVERNMENT PLEADER SMT K.B SONY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 600 OF 2019 ..3..** ## **JUDGMENT** The petitioner joined service in the 4[th] respondent Cooperative Bank (Bank) as Record Keeper on 13.7.2013. The 3[rd] respondent joined service as Field Man in the Bank on the same date. 2. By Ext. P1 resolution of the Bank, the petitioner was granted Leave Without Allowance (LWA) from 18.8.2014 for one year to join for HDC Course. 3. While so, 6 vacancies arose in the cadre of Junior Clerk in the Bank. As per the Feeder Category Sub Rules, sub staff of the Bank are eligible to get promotion to the post of Junior Clerk, provided they are qualified in terms of Rule 186 of the Kerala Co-operative Societies Rules (KCS Rules, for short) and completed three years of service in the feeder category. Accordingly, the petitioner, the third respondent, the additional **WP(C) NO. 600 OF 2019 ..4..** 5[th] respondent and another sub staff were promoted as Junior Clerks in the Bank with effect from 01.07.2017. 4. The decision to promote the petitioner as Junior Clerk with effect from 01.07.2017 by the Bank as per Ext. P11 resolution was challenged by the third respondent before the 1[st] respondent Joint Registrar of Co-operative Societies (General) by means of a complaint dated 06.07.2017. On the said complaint, the 1[st] respondent called for a report from the Assistant Registrar (General) and passed Ext.P3 order holding that the period from 18.8.2014 to 17.8.2015 **,** during which the petitioner was on LWA cannot be counted as service as per Rule 110C, Appendix XII B of Part I KSR and when this period is deducted, she will complete three years service as Record Keeper only on 15.07.2017 and she will become qualified for promotion as Junior Clerk only on 15.07.2017 and therefore, the decision of the Bank to promote her as Junior Clerk is not in order and the Bank has to reconsider the decision and rearrange the promotion **WP(C) NO. 600 OF 2019 ..5..** of the petitioner with effect from 15.07.2017. 5. Ext.P3 order was challenged by the petitioner before the second respondent-Government by filing appeal invoking section 83(1)(j) of the Kerala Co-operative Societies Act,1969 (KCS Act, for brevity). The third respondent got herself impleaded as an additional respondent in the appeal. In the appeal, the petitioner contended that, the Joint Registrar has absolutely no jurisdiction to decide the dispute regarding promotion and _inter se_ seniority of employees of Co-operative societies in view of section 69(2) (d) of the KCS Act and it is for the Co-operative Arbitration Court to decide the disputes regarding promotion. On merits, the petitioner contended that, the period of leave availed for the HDC Course has to be reckoned as service in the feeder category for promotion. 6. The Government, by Ext.P7 order, rejected the appeal and confirmed the order of the Joint Registrar in Ext.P3. The Government also took the view that, in view of the provisions of **WP(C) NO. 600 OF 2019 ..6..** Appendix XII B of Part I KSR, the period during which the petitioner availed LWA cannot be counted as service in the feeder category for promotion. The Government further held that, the Joint Registrar did not interfere in the _inter se_ seniority dispute of the employees of the Bank; but only directed the Bank to reconsider and rectify the decision to promote the petitioner against the provisions of KSR and Rule 185 of the KCS Rules. Challenging Exts.P3 and P7 orders, the petitioner has preferred this writ petition. 7. According to the petitioner, the Joint Registrar has no jurisdiction to entertain any dispute regarding the promotion or _inter se_ seniority of employees of Co-operative societies and only the Co-operative Arbitration Court can adjudicate the said disputes in terms of the provisions under section 69(2)(d) of the KCS Act. The petitioner also contends that leave for study purpose availed by the petitioner to pursue HDC Course can be counted for the purpose of seniority and promotion. **WP(C) NO. 600 OF 2019 ..7..** 8. The additional 5[th] respondent, who was also promoted along with the petitioner and the third respondent as Junior Clerk, has got herself impleaded as a respondent in the writ petition. 9. On behalf of the Government, a counter affidavit has been filed wherein it is stated that in view of the provisions under Appendix XII B of Part I KSR, the period during which the petitioner availed LWA cannot be counted for the purpose of promotion and if this period is deducted, the petitioner has 15 days drop in service for completing three years as per Rule 185 of the KCS Rules and she is eligible for promotion only with effect from 15.07.2017. With regard to the jurisdiction of the Joint Registrar to decide the dispute regarding promotion, it is stated that the Joint Registrar was exercising the powers under Rule 176 of the KCS Rules when the illegality in the matter of promotion to the post of Junior Clerk in the Bank was brought to the notice by the third respondent. 10. The third respondent has filed a counter affidavit **WP(C) NO. 600 OF 2019 ..8..** wherein she has contended that the period during which the petitioner was on LWA cannot be counted for the purpose of seniority. The third respondent has a further case that as per the KCS Rules, an employee with the prescribed qualification and three years' continuous service in the feeder category alone is qualified for promotion and the petitioner acquired HDC qualification only after 17.8.2015 and as such, the petitioner can be considered for promotion only after three years after acquisition of qualification _viz_ ., HDC. According to the third respondent, the petitioner is eligible for promotion only in 2018. 11. On behalf of the 4[th] respondent Bank, a counter affidavit has been filed stating that the Joint Registrar and Government have found that the period of LWA, when excluded, the petitioner becomes qualified for promotion only with effect from 15.7.2017 and not 1.7.2017. 12. The additional 5[th] respondent has filed a counter affidavit contending that the Joint Registrar did not resolve any **WP(C) NO. 600 OF 2019 ..9..** dispute regarding promotion or seniority; but only directed to cure the defect committed by the managing committee and no service dispute exists to exclude the jurisdiction of the Joint Registrar. 13. Heard the learned counsel for the petitioner, the learned Government pleader for respondents 1 and 2 and the learned counsel for the respondents 3, 4 and 5. 14. The main question to be decided is whether the Joint Registrar has jurisdiction to decide the dispute regarding promotion granted to the petitioner as Junior Clerk in the 4[th] respondent Bank with effect from 01.07.2017 in view of the provisions of section 69(2)(d) of the KCS Act. This question is **Prakasini** _**v**_ **.** no longer _res integra_ in the light of the decision in **Joint Registrar [2006 (1) KLT 199: 2006 KHC 452]** and subsequently followed in catena of decisions including **Raveendran** _**v**_ **. State of Kerala [2007(3) KLT 558: 2007 (3) KHC 780]** and **[Kanjoor Service Co-operative Bank Ltd.** _**v**_ **.** **WP(C) NO. 600 OF 2019 ..10..** **Joint Registrar of Co-operative Societies (General) [2016 (3) KLT 73: 2016 KHC 595].** In **Prakasini** 's case (supra), this Court has taken the view that _inter se_ seniority between employees is to be decided by the Arbitration Court and not by the Joint Registrar under R.176 of the KCS Rules. Following the decision in **Prakasini** 's case, the Division Bench, in **Raveendran** 's case (supra), held that, in the light of section 69(2) (d) of the KCS Act, the dispute in connection with the employment of officers and servants of different classes of societies specified in sub-s. (1) of section 80 including their promotion and _inter-se_ seniority has to be decided by the Arbitration Court and not by the Joint Registrar or by the Government. 15. The case of the Government in their counter affidavit is that the Joint Registrar was exercising the powers under Rule 176 of the KCS Rules to rectify the illegality in the matter of promotion effected by the Bank contrary to rules. In **Kanjoor** **WP(C) NO. 600 OF 2019 ..11..** **S.C.B** case (supra), this Court held that the Joint Registrar cannot, in exercise of his powers conferred under the KCS Rules, interfere with or deal with a dispute overriding the exclusion of his authority by virtue of the provisions contained in the Act, by adopting summary procedure under Rule 176, by rescinding In _**v**_ **.** resolution of the Co-operative societies. **Jayarani T Assistant Registrar of Co-Operative Societies [2016 (4) KLT 653: 2016 (2) KLJ 446: 2016 KHC 595]** , this Court held that Rule 176 of the KCS Rules is a generic, ominibus provision, whereas Section 69 is a specific provision and special law will always prevail over the general law and questions as to any aspects of service (employment) in the society can be adjudicated only by Co-operative Arbitration Court. As held in **Prakasini** 's case (supra), going by section 69(2)(d) of KCS Act, there is a clear statutory exclusion of the authority of the Joint Registrar under Rule 176 of the KCS Rules, and there cannot be any statutory adjudication by any authority other than the Arbitration **WP(C) NO. 600 OF 2019 ..12..** Court or the Registrar, as the case may be, of any dispute in relation to a decision as to _inter se_ seniority between employees, taken by the employer. Therefore, it is trite that the Joint Registrar cannot invoke Rule 176 of the KCS Rules and adjudicate dispute regarding promotion or _inter se_ seniority between employees and rescind the resolution of the Bank effecting promotion. In view of section 69(2)(d) of the KCS Act, the Joint Registrar has no jurisdiction to interfere with the promotion of employees of the Bank. 16. Relying on the decision of this Court in **S.** _**v**_ **Madhavikutty . State of Kerala and Others [2008 (1) KHC 174: 2008(1) KLT 692: ILR 2008(1) Ker. 225]** , Sri.Brijesh Mohan, the learned counsel for the 3[rd] respondent contended that even assuming that the order passed by the Joint Registrar is without jurisdiction, still, this Court need not interfere with the same, if justice has been done. Sri.Brijesh also relied on the _**v**_ **.** decision reported in **Mohamed Shafi Vadakke Peediyakkal** **WP(C) NO. 600 OF 2019 ..13..** **Kerala Public Service Commission and Others** reported in **[2012 (3) KHC 770: 2012(4) KLT SN 7: 2012(3) KLT 861]** to contend that the experience prescribed should be obtained after acquiring the basic qualification prescribed for the post and that the petitioner has not completed three years of service after acquiring HDC when she was promoted. It is to be noted that, in **Madhavikutty** 's case, (supra), this Court found that petitioner therein has chosen, not to point out the lack of jurisdiction of the Registrar or the Government before those authorities, when the matter was heard. The learned Judge, therefore, held that, the petitioner who took the chance before both the forums, cannot be permitted to turn round and cry about the lack of jurisdiction when the decision goes against her. Therefore, this Court held that there is nothing wrong with the Registrar, hearing and deciding the petition under Rule 176 filed by the writ petitioner, that too, as per the earlier direction of the Division Bench of this Court. It was in the said circumstances that this Court held that, **WP(C) NO. 600 OF 2019 ..14..** even assuming an order is passed by an authority having no jurisdiction, still, this Court need not interfere with the same if justice has been done. Here, the circumstances are different. Ext.P3 order was passed by the Joint Registrar on the 3[rd] respondent's complaint, without hearing the petitioner. In the appeal preferred by the petitioner against Ext.P3 before the Government, the specific contention was that the Joint Registrar has no jurisdiction to decide the dispute regarding promotion/seniority of employees of Co-operative societies in view of section 69(2)(d) of the KCS Act. Therefore, the orders of the Joint Registrar and the Government need to be interfered with, as one passed without jurisdiction. Accordingly, without prejudice to the right of respondents 3 and 5 to challenge Ext. P11 resolution before the Arbitration Court under section 69 of the KCS Act, Exts. P3 and P7 orders are set aside. If respondents 3 and 5 take recourse to such remedy within one month from date of receipt of the certified copy of the judgment, the same shall be **WP(C) NO. 600 OF 2019 ..15..** considered by the Arbitration Court on merits and a decision thereon shall be taken within three months from the date on which the last one of such petition is filed within the above time frame. I make it clear that this Court has not expressed any opinion, observation or views on merits. Writ petition is disposed of. No order as to costs. Sd/- **MURALI PURUSHOTHAMAN JUDGE** SB //true copy // P.A to Judge **WP(C) NO. 600 OF 2019 ..16..** ## **APPENDIX OF WP(C) 600/2019** ## **PETITIONER EXHIBITS** **EXHIBIT P1 A TRUE COPY OF THE RESOLUTION NO.325 DATED 11.8.2014 OF THE FOURTH RESPONDENT BANK** - **EXHIBIT P2 A TRUE COPY OF THE FEEDER CATEGORY APPROVED BY THE DEPARTMENT** - **EXHIBIT P3 A TRUE COPY OF THE ORDER DATED 4.12.2017 OF THE FIRST RESPONDENT** **EXHIBIT P4 A TRUE COPY OF THE JUDGMENT DATED 31.10.2016 IN WPC.28847/2014** - **EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 8.9.2015 OF THE JOINT REGISTRAR, KOZHIKODE** - **EXHIBIT P6 A TRUE COPY OF THE APPEAL DATED 22.1.2018 FILED BEFORE THE GOVERNMENT** - **EXHIBIT P7 A TRUE COPY OF THE ORDER 22.12.2018 OF THE GOVERNMENT** - **EXHIBIT P8 A TRUE COPY OF THE RANK LIST PUBLISHED BY THE BANK ON 8.7.2013** - **EXHIBIT P9 A TRUE COPY OF THE ORDER DATED 11.7.2013 OF THE BANK** - **EXHIBIT P10 A TRUE COPY OF THE RESOLUTION 325 DATED 11.8.2014 OF THE BANK** - **EXHIBIT P11 A TRUE COPY OF THE RESOLUTION NO 381(2) DATED 30.6.2017 AND THE ORDER DATED 30.6.2017** ## **RESPONDENT EXHIBITS** **EXHIBIT R1(a) TRUE COPY OF THE JOINING REPORT OF THE PETITIONER JOINED DUTY ON 15.07.2013.** **WP(C) NO. 600 OF 2019 ..17..** **EXHIBIT R1(b) TRUE COPY OF THE JOINING REPORT OF THE THIRD RESPONDENT, JOINED DUTY ON 13.07.2013.** **EXHIBIT R1(c) TRUE COPY OF THE LEAVE SANCTIONING ORDER.** **EXHIBIT R1(d) TRUE COPY OF THE EVIDENCE.** **EXHIBIT R1(e) TRUE COPY OF THE ORDER PASSED BY THE GOVERNMENT DATED 22.12.2018.** **EXHIBIT R1(f) TRUE COPY OF THE CIRCULAR 37(a)/84 OF REGISTRAR OF CO-OPERATIVE SOCIETIES.** **EXHIBIT R5(a) TRUE PHOTOCOPY OF THE APPOINTMENT ORDER ISSUED BY THE BANK TO THE FIFTH RESPONDENT DATED 11.07.2013** **EXHIBIT R5 (b) TRUE PHOTOCOPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE FOURTH RESPONDENT DATED 15.04.2017** - **EXHIBIT R5 (c) TRUE PHOTOCOPY OF THE LETTER ISSUED BY THE BANK TO THE FIFTH RESPONDENT DATED 25.04.2017** - **EXHIBIT R5 (d) TRUE PHOTOCOPY OF THE STATEMENT FILED BY THE FOURTH RESPONDENT DATED 02.05.2017** - **EXHIBIT R5 (e) TRUE PHOTOCOPY OF THE GOVERNMENT CIRCULAR DATED 30.12.2005 ENDORSED BY THE REGISTRAR DATED 14.03.2006** - **EXHIBIT-R3(A) TRUE COPY OF THE APPOINTMENT ORDERR VIDE NO. 367/13-14 DATED 11/07/2013 ISSUED BY THE 4TH RESPONDENT** **EXHIBIT-R3(B) TRUE COPY OF THE ORDER DATED 30/06/2017 ISSUED BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT**