N. Rajeevan v. Alappuzha District Co-operative Bank Ltd. & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN WEDNESDAY, THE 19TH DAY OF MARCH 2014/28TH PHALGUNA, 1935 ## **W.P.(C).No.20627 of 2012 (C)** --------------------------------------------------- PETITIONER(S):- ------------------------ N.RAJEEVAN, AGED 50 YEARS, SENIOR ACCOUNTANT, ALAPPUZHA DISTRICT CO-OPERATIVE BANK LTD., ALAPPUZHA MAIN BRANCH, ALAPPUZHA. BY ADVS.SRI.V.G.ARUN SRI.T.R.HARIKUMAR. RESPONDENT(S):- --------------------------- 1. THE ALAPPUZHA DISTRICT CO-OPERATIVE BANK LTD., REPRESENTED BY ITS GENERAL MANAGER, HEAD OFFICE, ALAPPUZHA - 688 001. 2. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), ALAPPUZHA - 688 012. 3. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM - 695 001. 4. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, CO-OPERATION (C) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. W.P.(C).NO.20627 OF 2012-C **- 2 -** ## ADDITIONAL 5TH RESPONDENT IMPLEADED:- ----------------------------------------------------------------- ADDL.R5. P.G.NISHKALAN, SENIOR ACCOUNTANT, ALLEPPEY DISTRICT CO-OPERATIVE BANK, MAIN BRANCH, ALAPPUZHA. ADDITIONAL 5TH RESPONDENT IS IMPLEADED VIDE ORDER DATED 12.10.2012 IN I.A.NO.13572 OF 2012. R1 BY STANDING COUNSEL SMT.K.N.RAJANI. R2 TO R4 BY GOVERNMENT PLEADER SRI.NOUSHAD THOTTATHIL. ADDL.R5 BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SRI.S.A.ANAND THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-03-2014, ALONG WITH W.P.(C).NO.1510 OF 2014-K, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- ## W.P.(C).NO.20627 OF 2012-C ---------------------------------------- ## **APPENDIX** PETITIONER(S) EXHIBITS:- EXT.P1COPY OF THE RELEVANT PAGES OF THE SENIORITY LIST OF THE EMPLOYEES OF THE FIRST RESPONDENT BANK. EXT.P2COPY OF THE REQUEST SUBMITTED BY THE PETITIONER DATED 10.04.2009. EXT.P3COPY OF THE REPRESENTATION DATED 23.11.2010. EXT.P4COPY OF THE LETTER NO.EM(1) 52753/2010/L.DIS DATED 29.12.2010 ISSUED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT. EXT.P5COPY OF THE COVERING LETTER SUBMITTED BY THE IST RESPONDENT DATED 10.01.2012. EXT.P6COPY OF THE JUDGMENT IN WP(C)NO.28356 OF 2011 DATED 6.3.2012. EXT.P7COPY OF THE ORDER NO.EM(5)19764/2012 DATED 7.8.2012 ISSUED BY THE 3RD RESPONDENT. EXT.P8COPY OF THE PROCEEDINGS NO.EM(1)15796/09/K.DIS DATED 22.5.2009 ISSUED BY THE 3RD RESPONDENT. EXT.P9COPY OF CRB NO.1369/09/K.DIS DATED 29.5.2009 ISSUED BY THE 2ND RESPONDENT. EXT.P10COPY OF THE SANCTIONED STAFF POSITION OF THE FIRST RESPONDENT. RESPONDENTS' EXHIBITS:- ---------------------------------------NIL. vku/- ( true copy ) K. Vinod Chandran, J. ---------------------------------------------------------W.P.(C).Nos.20627 of 2012-C & 1510 of 2014-K ---------------------------------------------------------Dated this the 19[th] day of March, 2014 ## **JUDGMENT** The petitioners in both the writ petitions are Senior Accountants in the respondent-Bank. The petitioner in W.P.(C).20627 of 2012 admittedly is the senior-most Senior Accountant. However, both the writ petitioners do not have the qualification of graduation and, hence, they were not considered for promotion to the post of Branch Manager. 2. Rule 185(8) of the Kerala Co-operative Societies Rules, 1969 (for short “KCS Rules”) confers, on the Managing Committee of the Societies, power to exempt employees from the essential qualification of graduation, if they satisfy the conditions of being above 45 years of age, having minimum service of five years in the feeder category and also the qualification of SSLC and JDC. Admittedly both the petitioners satisfy the essential conditions for being granted exemption. The petitioners were granted exemption, which is evident from the resolution taken by the Managing WP(C).Nos.20627/2012 & - 2 - 1510/2014 Committee on 01.12.2011 with respect to the petitioner in W.P.(C). No.20627 of 2012 and that of the Administrator on 28.01.2013 with respect to the petitioner in W.P.(C).No.1510 of 2014. 3. With respect to the petitioner in W.P.(C).No.20627 of 2012, the Registrar of Co-operative Societies rejected the claim for exemption by Exhibit P7 produced in the said writ petition. Exhibit P7 rejection was on the ground that there are no vacancies in the cadre of Branch Manager, available in the respondent-Bank, wherein the petitioner could be accommodated. The petitioner challenged the rejection in the writ petition and there was also an interim order of stay granted, that any promotion made to the post of Branch Manager from qualified hands, who are juniors to the petitioner, would be subject to the result of the writ petition. 4. While so, again the Bank sought exemption from educational qualification with respect to the petitioner in W.P.(C). No.1510 of 2014 and another employee, on the premise that by proceedings dated 30.06.2005 there were 40 posts of Branch Managers newly sanctioned in the respondent-Bank. It was also WP(C).Nos.20627/2012 & - 3 - 1510/2014 contended by the respondent-Bank that out of the existing 35 posts of Executive Officers, 10 are remaining vacant and after effecting promotion of Branch Managers to those posts, there would be again 10 more vacancies in the post of Branch Manager. The contention of the petitioner in W.P.(C).No.1510 of 2014 was that he be permitted to be promoted to the said vacancies, for which, exemption may be granted. The Registrar sought for a report from the Joint Registrar, which, by Exhibit P5 in W.P.(C).No.1510 of 2014, went against the petitioners. Again the contention taken in Exhibit P5 was that there were no available vacancies and that there is a stay of further promotions in W.P.(C).No.20627 of 2012. 5. Primarily it has to be noticed that there is no interim stay of promotion in W.P.(C).No.20627 of 2012. The petitioner's apprehension in the said writ petition, was that qualified hands junior to him would be promoted to the post of Branch Manager, thus disentitling him from promotion despite the Managing Committee having passed a valid resolution, exempting him from educational qualification. It is also pertinent that 16 persons, subsequent to the WP(C).Nos.20627/2012 & - 4 - 1510/2014 filing of W.P.(C).No.20627 of 2012, were promoted as Executive Officers, thus resulting in further vacancies arising in the post of Branch Manager. 6. The learned counsel for the respondent-Bank submits that the promotion to the post of Executive Officer was made on administrative exigencies and only on a provisional basis. In any event, it is to be noticed that the Bank had a contention in Exhibit P4 that there were sufficient number of vacancies in the post of Branch Manager, wherein these two petitioners could be accommodated. 7. It is trite that the exemption once being resolved validly in a Managing Committee meeting of the respondent-Bank, the Department cannot go behind such exemption resolved; to deny promotion to eligible persons who do not have the necessary educational qualification. This Court has, in **Dasan v. Registrar of Co-operative Societies [2007 (1) KLT 581]** and the judgment in **W.P.(C).No.15473 of 2011** dated 19.08.2011, held that when exemption orders are validly resolved by the Managing Committee, the Department necessarily has to approve the same, subject, WP(C).Nos.20627/2012 & - 5 - 1510/2014 however, to satisfaction of the conditions enumerated in Rule 185(8) of the KCS Rules. 8. The learned Government Pleader would take a different stance, in so far as the ratio prescribed for direct recruitment and promotions. It is contended that the direct recruitment to the post of Branch Managers in the District Co-operative Bank has been initiated by the Kerala Public Service Commission and that the same is under process. So much of the vacancies that are set apart for direct recruitment, necessarily will have to be set apart for candidates who qualify in the examination conducted by the Public Service Commission and are advised, when such appointments are made. 9. Considering the totality of the circumstances, Exhibit P7 in W.P.(C).No.20627 of 2012 and Exhibit P5 in W.P.(C).No.1510 of 2014 are set aside. The Joint Registrar is directed to consider the matter afresh, based on the binding precedents aforementioned and the observations of this Court; after hearing the petitioners also, within a period of three months from today. The respondent-Bank WP(C).Nos.20627/2012 & - 6 - 1510/2014 would be entitled to promote the petitioners to any existing vacancies provisionally, subject to the confirmation by the Joint Registrar. However, despite approval being granted and promotions being made of the petitioners, when direct recruitment is made, necessarily the ratio would have to be followed and adjustments made in the promotions made, as per the seniority in the post of Branch Manager. Directions to make such provisional appointments is made only in the context of there being vacancies remaining in the respondent-Bank, which if left vacant would detrimentally affect the administration of the respondent-Bank. Writ petitions are disposed of with the above directions. No costs. Sd/K.Vinod Chandran Judge. vku/- ( true cooy )