P. Jayakumar v. Joint Registrar of Co-operative Societies (General), Kollam, and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN`** ## **`FRIDAY, THE 11[TH] DAY OF NOVEMBER 2022 / 20TH KARTHIKA, 1944`** ## **`WP(C) NO. 31152 OF 2022`** ## **`PETITIONER:`** ``` 1P.JAYAKUMAR, SECRETARY (RETD), KULATHUPUZHA SERVICE CO-OPERATIVE BANK LTD. NO. 1867, KULATHUPUZHA.P.O., KOLLAM DISTRICT, PIN 691 310 RESIDING AT RAJESH MANDIRAM, CHOZHIYACODU.P.O., KULATHUPUZHA, KOLLAM DISTRICT ``` ``` BY ADVS. B.S.SWATHI KUMAR M.R.ANISON ANITHA RAVINDRAN HARISANKAR N UNNI N.S.SHAMILA NAVVYA UNNI V.BHARGAVI (PANANGAD) P.A.RINUSA ``` ## **`RESPONDENTS:`** ``` 1THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOLLAM, KOLLAM DISTRICT - PIN 691 001. ``` ``` 2THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), PUNALUR, KOLLAM DISTRICT - PIN 691 305. 3THE BOARD OF DIRECTORS OF THE KULATHUPUZHA SERVICE CO-OPERATIVE BANK LTD. NO. 1867, KULATHUPUZHA.P.O., KOLLAM DISTRICT PIN 691 310. REPRESENTED BY ITS PRESIDENT. ``` ``` 4THE KULATHUPUZHA SERVICE CO-OPERATIVE BANK LTD. NO. 1867, KULATHUPUZHA.P.O., KOLLAM DISTRICT - PIN 691 310 REPRESENTED BY ITS SECRETARY ``` ``` 5STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF CO-OPERATION, SECRETARIATE, THIRUVANANTHAPURAM 695 001 ``` ## `SMT.PARVATHY.K-GP` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WPC 31152/22 2 ## **`JUDGMENT`** The petitioner says that he was appointed as the Secretary of the 4th respondent – Society on the strength of a valid resolution, namely Ext.P3; but that while continuing so, he was issued with Ext.P10 order from the Office of the Joint Registrar of Co-operative Societies, saying that he could not have been promoted as Secretary but only as Assistant Secretary, under the ambit of Rule 185 of the Kerala Co-operative Societies Rules (hereinafter referred to as ‘KCS Rules’ for short). 2. The petitioner says that though he challenged Ext.P10 before this Court by filing WP(C)No.26403/2019, it was dismissed; but that when Writ Appeal No.146/2022 was preferred against it, this Court allowed him to file a Statutory Appeal before the Government, which he did through Ext.P11. He alleges that, however, Government has now issued Ext.P12 order rejecting the Appeal, but without applying its mind at all to the relevant and germane aspects; thus constraining him to approach this Court through this Writ Petition. WPC 31152/22 3 3. I have heard Sri.Harisankar N. Unni – learned counsel for the petitioner and Smt.Parvathy K. - learned Government Pleader appearing on behalf of the official respondents. 4. Sri.Harisankar Unni explained that the petitioner was working as an Accountant in the services of the Society, while there was vacancy in the posts of Assistant Secretary and Secretary. He showed me that, going by the resolutions of the Society, since the post of Internal Auditor/Branch Manager is the one immediately higher to the post of Accountant, it was resolved to initially promote him to the said post and then to the next immediate post of Assistant Secretary/Chief Accountant - which remained vacant and further to offer him the post of Secretary, because he was fully qualified. The learned counsel pointed out that, even going by Ext.P10, the competent Authority did not find any error in the promotion of his client as Assistant Secretary, but only to the extent to which it gave him further promotion to the post of Secretary, and asserted that this was on account of a misdirection because the said Authority appears to have proceeded on the precept that he was not qualified to hold such WPC 31152/22 4 post. 5. Sri.Harisankar Unni argued that the same impression has been carried forward by the Government in Ext.P12 which is evident from paragraph 8 thereof, which cites three reasons in opposition to his client’s promotion, namely: a) that the petitioner did not qualify in the statutory examination for being promoted as Assistant Secretary in the year 2017, when he was offered the impugned promotion; b) that his promotion as Secretary was in violation of the Feeder Category Sub Rules of the Society; and c) that any deviation from the Feeder Category Sub Rules by the Society could have been done only with the prior permission of the competent Authority under Rule 181 of the Kerala Co-operative Societies Rules (hereinafter referred to as ‘KCS Rules’ for short). 6. Sri.Harisankar Unni predicated that all the afore objections are untenable because, the petitioner was over 52 years at the time when he was promoted, thus being not required to pass the Departmental Examination; while the law has been well WPC 31152/22 5 settled by a catena of judgments of this Court, that grant of supernumerary posts solely for promotion would not be in violation of Rule 181 of the KCS Rules, thus leading to the undeniable position that no exemption was required to be obtained from the Society under the said Rule. He thus prayed that Ext.P12 be quashed and this Writ Petition be allowed. 7. Smt.P.A.Rinusa – learned Standing Counsel appearing for the Society, supported the petitioner in the afore contentions and argued that Ext.P12 is in error for the same reasons as have been projected by Sri.Harisankar Unni. 8. The learned Government Pleader – Smt.Parvathy K., however, vehemently submitted that the petitioner’s promotion as Secretary falls foul of the mandatory provisions of Rule 185 of the ‘KCS Rules’, because it does not provide for a person in the category of Accountant to be granted three promotions simultaneously, namely, as Internal Auditor/Branch Manager; Assistant Secretary/Chief Accountant and Secretary. She pointed out that the best the Society could have done was to promote the petitioner as Assistant Secretary, after granting him promotion in WPC 31152/22 6 the post of Internal Auditor/Branch Manager to a supernumerary post, since the same was occupied by an unqualified person; but that a further promotion to the post of Secretary was untenable, since the post of Assistant Secretary/Chief Accountant was vacant at the relevant time. 9. The learned Government Pleader then argued that, in any event, the petitioner could not have been promoted as an Assistant Secretary/Chief Accountant, since he had not, admittedly, passed the Departmental Examination and hence that the further promotion to the post of Secretary could have been made only after the Society obtained exemption, by making a request under Rule 181 of the KCS Rules. She concluded her submissions saying that, in any view of the matter, the petitioner could not have been appointed as Secretary since he had not qualified for the said post. She, therefore, prayed that this Writ Petition be dismissed. 10. I am afraid that the afore submissions of Smt.Parvathy K. cannot appeal to me for the reasons that I will presently state. 11. As seen above, the petitioner was working as an WPC 31152/22 7 Accountant, when he was given promotions to the post of Internal Auditor/Branch Manager and Assistant Secretary/ Chief Accountant, to be then promoted to the post of Secretary. It is without contest that the person occupying the post of Internal Auditor/Branch Manager was unqualified to be Secretary; while the post of Assistant Secretary/Chief Accountant was vacant. It was on such basis that, in Ext.P10, the competent Authority – the Joint Registrar, concedes that the petitioner could have been promoted as Assistant Secretary/Chief Accountant. 12. However, the stand now taken by the learned Government Pleader is that the petitioner could not have been promoted even as an Assistant Secretary/Chief Accountant because he had not passed the qualifying Departmental Examination. This argument certainly cannot be accepted because promotion to the post of Chief Accountant is governed by Sub Rule (5) of Rule 185 of the ‘KCS Rules’ and in particular, the third proviso thereunder, which makes it luculent that a person who has attained the age of 52 need not pass the qualifying examination. It is without contest that the petitioner was over 52 years at the time when he WPC 31152/22 8 was promoted to the post of Assistant Secretary/Chief Accountant; and I, therefore, fail to understand how the learned Government Pleader takes the stand that he had no qualification for such purpose. 13. That being said, further promotion of the petitioner to the post of Secretary by the Society was then granted finding that he had all qualifications for such purpose. This will have to be tested from the stand point of Rule 185(1) of the ‘KCS Rules’ which makes it clear that, for being promoted to a post higher to that of Assistant Secretary/Chief Accountant, a person will have to successfully complete the training program/course mentioned therein. 14. The petitioner vehemently submits that he has completed all such courses successfully, which is limpid from Ext.P5 certificate; and he relies on Ext.P4 list of seniority, wherein, this has been recognised and reckoned. Obviously, therefore, unless the Government had found that the petitioner’s qualifications were not genuine, a conclusion as recorded in Ext.P12 could not have been entered into. This is more so WPC 31152/22 9 because, going by the reasons recorded therein, the petitioner’s promotion to the post of Assistant Secretary and further promotion to that of Secretary alone has been objected to. As I have already seen above, the objection of petitioner’s promotion to the post of Assistant Secretary cannot find favour because he was already 52 years at that time, and his further promotion to the post of Secretary cannot also be objected to on the ground of lack of qualification, for the reasons I have said above. 15. Axiomatically, the third objection in Ext.P12 – that prior permission of the competent Authority ought to have been obtained for exemption to Rule 185 of the KCS Rules, before the promotion could have been offered to the petitioner – is also superfluous, since no such was necessary, since his promotions were effected without any violation of it. 16. The only other remaining aspect for consideration of this Court is whether the petitioner could have been granted three promotions simultaneously; but interestingly, this is not an issue that has been referred to by the Government in Ext.P12. However, in this regard also, I find in favour of the petitioner, WPC 31152/22 10 relying on the judgment of this Court in Jose Varghese v. Kottiyoor Service Co-operative Bank Ltd. (WP(C)No.17249/2012), wherein, a learned Judge of this Court has found that promotions to higher categories on supernumerary posts, cannot be seen to be a violation of Rule 185 of the KCS Rules - though I am fully conscious that what was considered therein was only promotion to one or to the category above the next immediate post, unlike the present case. 17. However, tested on the holdings and conclusions in Jose Varghese (supra), promotions of the petitioner – as long as it is not specifically inhibited by the Kerala Co-operative Societies Act or Rules – to a post which is immediately above the one to which he could have been normally promoted, is not improper because, concededly, the person in the post of Internal Auditor/Branch Manager was unqualified; while the post of Assistant Secretary/Chief Accountant was vacant. 18. The above being so declared, the fact that the petitioner has now retired from service and would only be entitled to monetary benefits by way of retiral package, without WPC 31152/22 11 any detriment being caused to any other person, also guides me to find in his favour. Resultantly, I allow this Writ Petition and set aside Exts.P10 and P12; with a consequential direction to the competent Authority of the Society to pay the petitioner all his retiral benefits, construing him to have retired from service as Secretary, subject to all other requirements being satisfied, within a period of four months from the date of receipt of a copy of this judgment. After I dictated this part of the judgment, the learned Government Pleader intervened to say that the provisions of Sub Rule 6 of Rule 185 of the ‘KCS Rules’ would also stand against the petitioner. I am afraid that even this argument cannot find favour in law because, as evident from the said Rule, it applies only to posts which are below the post of Secretary and does not take in either the posts of Assistant Secretary/Chief Accountant; or Secretary of a Society, since the same makes it clear that it applies only to those posts which are higher to those mentioned WPC 31152/22 12 in Sub Rule (3), but below Sub Rule (2) of Rule 185 of the KCS Rules. ``` Sd/- ``` ``` RR ``` ``` DEVAN RAMACHANDRAN JUDGE ``` WPC 31152/22 13 ## **`APPENDIX OF WP(C) 31152/2022`** |`PETITIONER EXHIBITS`|| |---|---| |`Exhibit P1`|`TRUE COPY OF THE ORDER NO.`| ||`CRP(2)6276/13/K. DIS DATED 3-1-2014`| ||`ISSUED BY THE 1ST RESPONDENT.`| |`Exhibit P2`|`TRUE COPY OF THE COVERING LETTER DATED`| ||`26-2-2018 ALONG WITH RESOLUTION NOS.`| ||`999, 1000, 1001 DATED 6-2-2019 SUBMITTED`| ||`BEFORE THE 2ND RESPONDENT.`| |`Exhibit P3`|`TRUE COPY OF THE RESOLUTION NO. 1085`| ||`DATED 3-3-2018 OF THE 4TH RESPONDENT.`| |`Exhibit P4`|`TRUE COPY OF THE SENIORITY LIST OF THE`| ||`EMPLOYEES OF THE 4TH RESPONDENT.`| |`Exhibit P5`|`TRUE COPY OF THE CERTIFICATE ISSUED BY`| ||`THE AGRICULTURAL CO-OPERATIVE STAFF`| ||`TRAINING INSTITUTE`| |`Exhibit P6`|`TRUE COPY OF THE REPRESENTATION`| ||`SUBMITTED BY THE PETITIONER BEFORE THE`| ||`1ST RESPONDENT DATED 8-10-2018`| |`Exhibit P7`|`RUE COPY OF THE ORDER NO. CRP(2)6737/16`| ||`DATED 20-12-2016 ISSUED BY THE 1ST`| ||`RESPONDENT.`| |`Exhibit P8`|`TRUE COPY OF THE PROCEEDINGS NO`| ||`0.8200/2018/K.DIS DATED 23-10-2018 OF`| ||`THE 1ST RESPONDENT.`| |`Exhibit P9`|`TRUE COPY OF THE ARGUMENT NOTE SUBMITTED`| ||`BY THE PETITIONER BEFORE THE 1ST`| ||`RESPONDENT DATED 21-8-2019`| |`Exhibit P10`|`TRUE COPY OF THE ORDER NO.`| ||`CRP(2)9218/18/K.DIS DATED 30-8-2019`| ||`ISSUED BY THE 1ST RESPONDENT.`| |`Exhibit P11`|`TRUE COPY OF THE APPEAL FILED BY THE`| ||`PETITIONER BEFORE THE 5TH RESPONDENT`| ||`DATED 23-3-2022`| |`Exhibit P12`|`TRUE COPY OF THE ORDER NO.G.O.`| ||`(MS)NO.435/2022/CO-OP DATED 28-6-2022 OF`| ||`THE 5TH RESPONDENT.`|