M.P. Mani v. Tirur Urban Co-operative Bank Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **WEDNESDAY, THE 3RD DAY OF APRIL 2013/13TH CHAITHRA 1935** ## **WP(C).No. 29610 of 2012 (A)** **----------------------------** **PETITIONER(S) :** **----------------------** **M.P.MANI, AGED 49 YEARS, BRANCH MANAGER (IN CHARGE) TIRUR URBAN CO-OPERATIVE BANK LTD.NO.1818, TIRUR, MALAPPURAM DISTRICT.** **BY ADVS.SRI.P.N.MOHANAN SMT.I.VINAYAKUMARI** **RESPONDENT(S) :** **------------------------** **1. TIRUR URBAN CO-OPERATIVE BANK LTD.NO.F.1818, REPRESENTED BY ITS SECRETARY, TIRUR-676 101 MALAPPURAM.** **2. MANAGING COMMITTEE OF TIRUR URBAN CO-OPERATIVE BANK LTD.NO.F.1818, REPRESENTED BY ITS PRESIDENT, TIRUR-676 101 MALAPPURAM DISTRICT.** **3. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (G) MALAPPURAM-676 001.** **4. REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM-695 001.** **5. GOVERNMENT OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT CO-OPERATIVE DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM-695 001.** - **R1 & R2 BY ADV. SRI.M.SASINDRAN R3 TO R5 BY SRI.R.PADMARAJ, GOVERNMENT PLEADER** - **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-04-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **AMV** ## **WP(C).No. 29610 of 2012 (A)** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** **EXT.P1: COPY OF THE RESOLUTION DATED 20.9.2010 OF THE BANK. EXT.P2: COPY OF THE LETTER DATED 1.11.2010 OF THE ASSISTANT REGISTRAR. EXT.P3: COPY OF THE LETTER DATED 4.5.2011 OF THE GOVERNMENT. EXT.P4: COPY FO THE JUDGMENT DATED 4.8.2011 IN WPC NO.14929/11. EXT. P5: COPY OF THE ORDER OF THE GOVERNMENT DATED 24.12.2011. EXT.P6: COPY OF THE PROVISIONAL DEGREE CERTIFICATE IN B.A.POLITICS ISSUED BY THE TAMIL NADU OPEN UNIVERSITY DATED 10.4.2012. EXT.P7: COPY OF THE MARK SHEET OBTAINED IN THE EXAMINATION HELD DURING THEYEAR 2009 TO 2012.** **EXT.P8: COPY OF THE COMMUNICATION DATED 19.6.2012 OF THE FIRST RESPONDENT. EXT.P9: COPY FO THE GOVERNMENT ORDER DATED 17.7.65. EXT.P10: COPY OF THE LIST OF THE UNIVERSITIES APPROVED BY UNIVERSITY GRANTS COMMISSION. EXT.P11: COPY OF THE NOTIFICATION ISSUED BY UNIVERSITY GRANTS COMMISSION DATED AUGUST 2004. EXT.P12: COPY OF THE COMMUNICATION DATED 8.4.08 OF THE INDIRA GANDHI NATIONAL OPEN UNIVERSITY. EXT. P13: COPY OF THE JUDGMENT DATED 24.11.2010 IN WP(C)NO.23529/2010. EXT. P14: COPY OF THE JUDGMENT REPORTED IN 2005 (1) KLT 680. EXT.P15: COPY OF THE JUDGMENT REPORTED IN 2011 (3) KHC 65. EXT.P16: COPY OF THE SENIORITY LIST OF THE YEAR 2010. EXT.P17: COPY OF THE SENIORITY LIST OF THE YEAR 2012. EXT.P18: COPY OF THE ORDER DATED 02.02.2010 OF THE GOVERNMENT. RESPONDENTS' EXHIBITS : NIL /TRUE COPY/ P.A.TO JUDGE** **AMV** ## **A.M.SHAFFIQUE, J** ## *** * * * * * * * * * * * *** W.P.C.No.29610 of 2012 ---------------------------------------Dated this the 3[rd] day of April 2013 ## **J U D G M E N T** The petitioner inter alia seeks for a direction to promote the petitioner to the post of Branch Manager in the light of Ext.P6 provisional degree certificate issued by the Tamil Nadu Open University and also for a declaration that the degree obtained from the Tamil Nadu Open University being approved by the University Grants Commission is sufficient for the purpose of promotion in terms with Rule 186 of the Co-operative Societies Act (hereinafter referred as the Act). The facts as disclosed would indicate that the petitioner joined as a Junior Clerk in the 1[st] respondent bank on 28/01/1986. His qualification was S.S.L.C and J.D.C. He was promoted as a Senior Clerk on 23/12/1996 and as Accountant on 01/12/2006. The next promotion post is that of Branch Manager. According to the petitioner, since he did not have the requisite qualification at the relevant time, the W.P.C.No.29610/2012 2 Committee, by Ext.P1 recommended to grant exemption to the petitioner for acquiring the said qualification for graduation. The said recommendation is pending consideration before the department. In the meantime, the petitioner passed the degree examination held in January 2012 as evident from Ext.P6 dated 10/04/2012, the provisional certificate issued by the Comptroller of Examinations, Tamil Nadu Open University. 2. According to the petitioner, when he approached the Bank for being selected to the next promoted post from the Feeder Category of Accountant, the Bank had taken a stand that the Degree obtained from outside Universities are required to be certified by any of the Universities in the State of Kerala as equivalent to the qualification prescribed. 3. According to the petitioner, the reasons stated for denying him promotion is totally baseless as Rule 186(1) only indicates that the candidates should be a degree holder from a recognised University. Reliance is placed on W.P.C.No.29610/2012 3 Exts.P13, P14 and P15 judgments as well. According to the petitioner, he is the senior most person in the post of Accountant and is entitled to be promoted to the post of Branch Manager. 4. Counter affidavit is filed by the 1[st] respondent inter alia contending that in so far as the petitioner has obtained a certificate from the Tamil Nadu Open University which is based on a distance education programme, unless it is recognised as a proper course by any of the Universities in the State of Kerala, the same cannot be accepted. Reference is made to Rule 186 to indicate that in respect of Distance Education Programme, specific provisions had been made in the Rule itself for accepting the same as equivalent qualification. Since degree obtained from Distance Education Programme is not considered to be a proper qualification under the Rules, unless the Government specifically clarifies that such Degrees can also be taken into consideration for the purpose of giving promotion to persons W.P.C.No.29610/2012 4 who had obtained Degrees by adopting the Distance Education course, the petitioner is not entitled to get any such direction or declaration as the case may be. 5. The learned counsel for the respondent also refers to Ext.P18 Government Order to indicate that even the Government had made it very clear that those persons who obtained Degree from Distance Education Programmes applying for various posts in Government of Kerala or Public Sector Undertakings or other institutions, the Degree so obtained should be from a recognised university and Special Rules for the post does not make distinction between the degrees acquired through Distance Education and regular course of study. Ext.P18 is with reference to a clarification issued by the Government in respect of students of M.B.A degree course under the School of Distance Education Programme of Mahatma Gandhi University as basic qualification for the various posts in the Government of Kerala. W.P.C.No.29610/2012 5 6. The short question to be considered in the writ petition is whether it is open for the Bank to insist for an equivalence certificate from the petitioner to indicate that the degree certificate which he had obtained through a distance education programme is equivalent to the qualification which is prescribed under Rule 186(1) or not. 7. Rule 186(1) clearly indicates that the basic qualification for promotion to the post of Branch Manager is graduation from a recognised university. It is either B.A, B.Sc or B.Com degree of a recognised university. The question is whether Tamil Nadu Open University is a recognised university. It is the specific contention of the petitioner that it is a University approved by the University Grants Commission. Evidence to that effect is Ext.P10 and P11. The Distance Educational Programme of the Tamil Nadu Open University is approved by the Distance Education Council of Indira Gandhi National Open University as evident from Ext.P12 dated 08/04/2008. Such being the situation, W.P.C.No.29610/2012 6 there cannot be any dispute that the Tamil Nadu Open University is a recognised university. 8. Then the question is whether the respondent Bank could refuse the said graduation. The main argument of the learned counsel for the respondent is that since the Rule was not amended or the Government has not given any clarification that the degrees obtained under the Distance Education Programme would be accepted as a proper qualification, the Rule which has been incorporated much before such distance education programmes being started, cannot be relied upon to contend that such programmes also give valid graduation certificates. Under law, there is no distinction between the degree certificate obtained by way of distance education programme or by way of regular study. If any distinction has to be drawn between such Degrees and such persons are to be separately classified, definitely it was well within the powers of the Government to have amended the Rule in order to indicate that the Degree W.P.C.No.29610/2012 7 certificates obtained from distance education programme will not be considered for the purpose of promotion or for giving any other benefits. As long as such an amendment has not been made, one has to give the literal interpretation to the word “degree” of a recognised University. As long as the petitioner or any other person obtains a degree from a recognised university either by attending a regular course or by a distance education programme, it cannot be said that it is not a “degree” of a recognised university. 9. That being the situation, one cannot proceed on the basis that merely because the distance education programmes have commenced subsequent to the Rule coming into force, such degrees are ruled out for being considered for the purpose of considering the qualification of the petitioner. I am also fortified by the views taken in the judgment relied upon by the petitioner in **Mujeeb Rahman v. State of Kerala** _[2005(1) KLT 680_ ] and **State of Kerala and Others v. Thulasibai and Others** _[2011(3) KHC 65_ W.P.C.No.29610/2012 8 ## _(DB)]_ . 10. In the result, the writ petition is allowed. It is declared that the petitioner having obtained a degree certificate from the recognised university is entitled to make a claim for the available vacancy to the post of Branch Manager. If the documents are not available with the 1[st] respondent Bank, the petitioner shall make available all the original documents for verification and on that basis the 1[st] respondent bank shall pass appropriate orders for appointing the petitioner to the post of Branch Manager. This Court had passed an interim order directing respondents 1 and 2 not to fill up one post to the substantive vacancy of the Branch Manager. In that event, if that post is available, the petitioner is entitled to make a claim for that post. (sd/-) ## **(A.M.SHAFFIQUE, JUDGE)** jsr W.P.C.No.29610/2012 9 W.P.C.No.29610/2012 10 W.P.C.No.29610/2012 11