Pramod Sherin M. et al. v. Vadakara Co-operative Rural Bank Ltd. et al.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** ## **TUESDAY, THE 16TH DAY OF AUGUST 2016/25TH SRAVANA, 1938** ## **WP(C).No. 13126 of 2010 (M)** ## **--------------------------------------------** ## **PETITIONER(S) :** ## **--------------------------** **1. PRAMOD SHERIN.M, MANDOLLATHIL HOUSE, NEAR CIVIL STATION, VATAKARA, KOZHIKODE DISTRICT.** **2. PRAVEENA M.P., PANCHAMI, P.O.VAIKALASSERY, VATAKARA, KOZHIKODE DISTRICT.** **3. REENA.R, SREERANJINI, NEAR PUBLIC LIBRARY, VATAKARA, KOZHIKODE DISTRICT.** **4. PRABHAKARAN T.K., KUNIYIL HOUSE, NUT STREET P.O., VATAKARA, KOZHIKODE DISTRICT.** **5. CHANDRAN.O.P., OTTAPILAKKOOL HOUSE, KEEZHAL P.O.,** - **VATAKARA, KOZHIKODE DISTRICT.** ## **BY ADV. SRI.M.P.ASHOK KUMAR** ## **RESPONDENT(S) :** - **----------------------------** **1. VADAKARA CO-OPERATIVE RURAL BANK LTD. NO.F.1264, VATAKARA, KOZHIKODE DISTRICT, REPRESENTED BY ITS SECRETARY.** **2. JEEJA T.P., TYPIST, VADAKARA CO-OPERATIVE RURAL BANK LTD., VATAKARA, KOZHIKODE DISTRICT.** **3. KERALA CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM.** **4. CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM.** - **R1 BY ADVS. SRI.B.KRISHNAN** ## **SRI.R.PARTHASARATHY** - **R2 BY ADV. SRI.P.N.MOHANAN** ## **R3 & R4 BY SR. GOVERNMENT PLEADER SRI.PAUL VARGHESE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-08-2016, THE COURT ON 16-08-2016 DELIVERED THE FOLLOWING:** Msd. **WP(C).No. 13126 of 2010 (M) --------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** **EXHIBIT P1: THE PHOTOCOPY OF THE SENIORITY LIST DATED 23.09.2003. EXHIBIT P2: THE PHOTOCOPY OF THE SENIORITY LIST DATED 09.01.2004. EXHIBIT P3: PHOTOCOPY OF THE FEEDER CATEGORY RULES.** **EXHIBIT P4: PHOTOCOPY OF THE ORDER DATED 28.08.2003.** **EXHIBIT P5: PHOTOCOPY OF THE AWARD DATED 26.09.2006 IN A.R.C.NO.35/2004.** **EXHIBIT P6: PHOTOCOPY OF THE JUDGMENT DATED 06.08.2009 IN APPEAL 13/2007.** ## **RESPONDENT(S)' EXHIBITS :** **EXHIBIT R2(A): A TRUE COPY OF THE CIRCULAR NO.37/84 DATED 25.08.1984.** **EXHIBIT R2(B): A TRUE COPY OF THE DETAILS OF HIS PROMOTION OBTAINED UNDER RIGHT TO INFORMATION ACT.** **//TRUE COPY//** **P.A.TO JUDGE.** Msd. ## **SHAJI P. CHALY, J.** ----------------------------------------------- **W.P.(C). No.13126 of 2010 ----------------------------------------------Dated this the 16[th] day of August, 2016** ## **JUDGMENT** This writ petition is filed seeking to set aside Ext.P5 order passed by the 4[th] respondent in ARC No.35/2004 and Ext.P6 judgment passed by the 3[rd] respondent in A.P. No.13/2007, whereby claims of the petitioners to have seniority over the 2[nd] respondent were declined. 2. Material facts for the disposal of the writ petition are thus; Petitioners are working in different branches of the 1[st] respondent bank. Petitioners 1 to 3 joined the service of the bank as Junior Clerks on 25.4.1998, 29.3.2000 and 29.3.2000 respectively, 4[th] petitioner joined on 6.12.1993 as Salesman/Peon. Later, 4[th] petitioner acquired the qualification of JDC in May, 2000 and promoted as Junior Clerk on 2.2.2002. Fifth petitioner joined the bank on 24.2.1997 and acquired JDC in May, 2000 and promoted as Junior Clerk on W.P.(C). No.13126 of 2010 2 2.2.2002. Second respondent joined service of the bank on 24.2.1997 as Typist. Her educational qualification was PDC and KGTE. Thereafter, she acquired the qualification of JDC in May, 2002. 3. On 5.3.2002, 1[st] respondent published the seniority list of staff as on 2.2.2002. In that list, petitioners were ranked as 31, 34, 35, 37 and 38 respectively. However, the seniority of the 2[nd] respondent was shown as 29. According to the petitioners, at that point of time, 2[nd] respondent was not even having the prescribed qualification. She acquired the qualification only after publication of the rank list. Since there were several anomalies, 1[st] respondent published a revised seniority list on 23.9.2003, evident from Ext.P1. In Ext.P1, petitioners were correctly ranked above the 2[nd] respondent as rank No.30, 33, 34, 36 and 37 respectively in accordance with the date in which they were holding the post of Junior Clerks and the 2[nd] respondent was assigned rank No.39. 4. However, as per Ext.P2 seniority list dated 9.1.2004, W.P.(C). No.13126 of 2010 3 1[st] respondent revised Ext.P1 seniority list, in which, 2[nd] respondent was ranked above the petitioners as rank No.30 and the petitioners were brought down to rank Nos.31, 34, 35, 37 and 38 respectively. Therefore, according to the petitioners, Ext.P2 seniority list was published against the feeder category rules and directions of the department as per Ext.P3. On acquiring the required qualification, petitioners were appointed/promoted as Junior Clerks much before the acquisition of qualification by the 2[nd] respondent. Moreover, 2[nd] respondent was not given cadre change from Typist to Junior Clerk. It is also urged, 2[nd] respondent became eligible to be included in the seniority list of Junior Clerk only after she is re-designated as Junior Clerk, and even then she will be the junior most among the Junior Clerks. 5. That apart it is contended that, even though post of Junior Clerk and Typist carry the same scale of pay, both cannot be treated as identical for promotion. That, qualification for the two posts are different. While JDC is not required for the post of Typist, JDC is mandatory for the post W.P.(C). No.13126 of 2010 4 of Junior Clerk. Therefore, since the 2[nd] respondent acquired JDC only in May, 2002, she becomes eligible and qualified to be appointed to the post of Junior Clerk only from that date. It is also contended that as per Ext.P4, the said aspect was further reiterated by the Assistant Registrar of Co-operative Societies in the order dated 28.8.2003. 6. Therefore, according to the petitioners, 1[st] respondent wrongly and arbitrarily ranked the 2[nd] respondent above the petitioners in the seniority list in violation of the rules and various administrative instructions issued by the department. It was in that circumstances, challenging Ext.P2 seniority list, petitioners filed ARC No.35/2004 before the 4[th] respondent, under Section 69 of the Kerla Co-operative Societies Act (hereinafter called “the Act”). However, it was dismissed. Aggrieved, petitioners have preferred appeal before the 3[rd] respondent, which also was dismissed affirming the order of the 4[th] respondent. It is thus aggrieved, this writ petition is filed. 7. Second respondent has filed a counter affidavit W.P.(C). No.13126 of 2010 5 disputing the claims and demands raised by the petitioners. According to the 2[nd] respondent, promotions in the Cooperative Societies are being done on the basis of Ext.P3 feeder category sub-rules approved by the Joint Registrar in terms of Rule 185(1) of the Kerla Co-operative Societies Act and Rules, hereinafter called “the Act” and “the Rules”. Ext.P3 feeder category sub-rules was approved by the Joint Registrar during November, 2001 and it was not challenged at any point of time. If aggrieved by Ext.P3 feeder category sub-rules, effective alternative remedy of appeal under Section 83(1)(j) of the Kerla Co-operative Societies Act is available to the petitioners, is the contention. So also it is stated that, 2[nd] respondent was appointed as Typist/Junior Clerk on 24.2.1997. As per Ext.P3 feeder category sub-rules for promotion, Typist or Junior Clerk is the feeder category for promotion to the post of Senior Clerk. According to rule 186 of the Rules, qualification for the post of Senior Clerk is SSLC with JDC. Second respondent has acquired JDC during May, 2002. Therefore, the Managing Committee promoted the 2[nd] W.P.(C). No.13126 of 2010 6 respondent as Senior Clerk w.e.f. 1.3.2005 and became Accountant on 1.2.2006. Feeder category sub-rules was prepared in terms of Circular Instruction No.37/84 dated 25.8.1984 of the Registrar of Co-operative Societies, evident from Ext.R2(a). In the Circular it is clearly stated that, Typists working in the banks are eligible for promotion to the higher post of Junior Clerk, if they possesses the required qualification. Since 1984 throughout Co-operative Societies, Typist/Junior Clerks were promoted as Senior Clerks on passing of obligatory qualification of the Junior Diploma Course. Petitioners have not challenged Ext.R2(a) Circular, which has a statutory backing under Section 66A of the KCS Act. At this distance of time, the attack on Ext.P3 feeder category sub-rules will not survive without challenging Circular No.37/84. If Ext.P3 is set aside Ext.R2(a) will survive and hence promotion given to the 2[nd] respondent as Senior Clerk on 1.3.2005 is valid. It was thereupon that, Ext.P2 seniority list was published on 9.1.2004 and the same was prepared on the basis of date of joining service. It is also W.P.(C). No.13126 of 2010 7 contended that petitioners 4 and 5 passed Junior Diploma Course and both of them were promoted as Junior Clerk on 2.2.2002. Then they were promoted as Senior Clerk and Accountant. So also it is contended that on the basis of Ext.P3 feeder category sub-rules, one Pradeepkumar of the bank was given promotion while he was working as Typist to the post of Senior Clerk . In that case, Pradeepkumar joined the service of the bank as Junior Clerk/Typist on 21.06.1986. Later he passed B.Com Co-operation during September, 1992 and then he was promoted as Senior Clerk in terms of Ext.P3 feeder category sub-rules, evident from Ext.R2(b) and his promotion was not challenged so far. According to the 2[nd] respondent, Ext.P3 cannot be anulled so long as Circular No.37/84 dated 25.8.1984 is in force. Moreover, it is submitted, this writ petition is filed challenging the award of the Arbitration Court and the judgment of the Tribunal and therefore, any documents produced in this writ petition without testing the veracity of the same before the respective statutory authorities may not be considered for the purpose of W.P.(C). No.13126 of 2010 8 deciding the issues in question. Therefore, 2[nd] respondent sought for dismissal of the writ petition. 8. Heard learned counsel for the petitioners, learned Government Pleader, learned counsel appearing for the 1[st] respondent and perused the documents on record and the pleadings. 9. Arbitrator has tried ARC No.35/2004 along with ARC No.138/2003 filed by the 2[nd] respondent against the bank and one Prakasan and after evaluating the facts and circumstances, Arbitration Court has found that Ext.P2 Seniority list dated 9.1.2004 is legally valid and the same was published by the 1[st] respondent after considering the total seniority in service, seniority on the date of acquiring eligible qualification for promotion and the feeder category sub-rules. The contention raised by the petitioners with respect to the category change from the post of Typist to the post of Junior Clerk in accordance with the vacancy available on that date and it shall effect the category change to the post of Junior Clerk if there is any vacancy available on that date, and put her as junior most in W.P.(C). No.13126 of 2010 9 the seniority list of Junior Clerk. However, the said contention was not appreciated by the Arbitration Court and held that, the management has ample right to make feeder category sub-rules and that right was protected by the Act, and the statutory rules, does not envisage a procedure of category change in the cooperative sector. That apart it is also held that category change of Typist to Junior Clerk is not contemplated in the Kerala Cooperative Societies Act and Rules. Arbitration court has also found that Ext.P2 seniority list is prepared on the basis of the length of service of the petitioners as well as the 2[nd] respondent and the same is legal and valid. 10. Third respondent Tribunal re-appreciated the entire contentions raised by the petitioners with respect to category change, length of service etc. etc and has arrived at the finding that Ext.P2 seniority list is in accordance with the feeder category sub-rules in vogue and no manner of interference is required in the order passed by the Arbitration Court. 11. Taking into account the factual circumstances narrated above, and the findings of the Arbitration Court and the W.P.(C). No.13126 of 2010 10 Tribunal, the issue to be decided is, whether any illegality, arbitrariness or any other legal infirmities, taint the orders of the authorities below warranting interference under Article 226 of the Constitution of India. The prime contention advanced by learned counsel for the petitioners is that, the 2[nd] respondent has acquired qualification of JDC only in May 2002 and therefore, her seniority as Junior Clerk can only be counted from the date on which she acquired JDC. According to learned counsel, petitioners 1 to 3 joined the service as Junior Clerks and petitioners 4 and 5 even though did not have qualification of JDC, they also acquired the qualification of JDC prior to the 2[nd] respondent, and the petitioners are senior to the 2[nd] respondent in the post of Junior Clerk, and therefore, Ext.P2 seniority list upheld by the Arbitration Court and the Tribunal cannot be sustained under law. Learned counsel has also invited my attention to Ext.P4 order dated 28.8.2003 passed by the Assistant Registrar of Co-operative Societies, Vadakara where, certain directions are issued to the 1[st] respondent bank to the effect that, as per the instructions received, the post of typist even though has the same scale of pay, when seniority list is W.P.(C). No.13126 of 2010 11 prepared, post of Typist cannot be equated with the post of Junior Clerk. Further it is stated therein that the seniority in the post of Junior Clerk is to be counted from the date on which the qualification was acquired and if there is vacancy in the post of Junior Clerk, category can be changed, and appointment can be made to the post, when there is vacancy. That apart, it is also stated therein, only by making category change, Typists can enter into the post of Junior Clerks, and will acquire the seniority from the said date only. Therefore, it is the contention of learned counsel for the petitioners that, this is an instruction issued by a superior authority to the 1[st] respondent bank, which is bound to be followed by the 1[st] respondent. Therefore, it is contended, admittedly petitioners have acquired JDC qualification much prior to the 2[nd] respondent and holding the post of Junior Clerks and therefore, petitioners are much senior to the 2[nd] respondent and viewed in that manner, Ext.P2 seniority list cannot be sustained under law and the Arbitration Court as well as the Tribunal went wrong in non-suiting the petitioners. 12. To the said contention, learned counsel for the 2[nd] respondent stated that, Ext.P4 order issued by the Assistant W.P.(C). No.13126 of 2010 12 Registrar was never a subject matter in the proceedings before the Arbitration Court and the Tribunal. That apart, it is also contended that, the power to issue any instruction to a cooperative society in the category of the 1[st] respondent, vests with the Joint Registrar and therefore, Ext.P4 instruction is not at all binding on the 1[st] respondent bank. Relying on SRO No.198/69, it is contended, exercise of the power of Registrar is guided by the said notification and in terms of the power so conferred, Assistant Registrar is not vested with power to issue Ext.P4 and make any such directions. Learned counsel has also invited my attention to Appendix III and the staff pattern provided thereunder. According to the counsel, Junior Clerk and Typist for promotion to the next higher post is treated equivalently, and as and when a Typist acquires qualification of JDC, is entitled to be promoted to the post of Senior Clerk in accordance with the seniority acquired from the date of joining service. Therefore, according to the counsel, the order passed by the respective authorities is in accordance with law and no manner of interference is warranted. 13. Learned counsel for the petitioner has invited my W.P.(C). No.13126 of 2010 13 attention to the judgment of the Apex Court in State of **Bihar v. Akhouri Sachindra Nath** [1991 Suppl.(1) SCC 334] **and Union of India and others v. Anusekhar Guin and others** [AIR 1989 SC 377]. In the State of **Bihar** case supra, question with respect to the seniority among promotees and direct recruits were considered, and held that retrospective promotion should not date back to a period when the promotees were not born in the category so as to adversely affect direct recruits already in the category, and further that the seniority to be reckoned on the basis of length of service. So also in the case of **Union of India and others** supra, it was held that counting continuous length of service for fixation of seniority is a well accepted rule when the service rule does not prescribe a mode fixing inter se seniority. Learned counsel for the 2[nd] respondent on the contrary invited my attention to judgment of this court in **Thankamma v. Registrar of Co-operative Societies** [1995(2) KLT 39, C.No.52], wherein it was held, those who acquired qualification during the course of their employment and have put in more number of years in service, will get preference over those juniors, who were qualified at the beginning and the W.P.(C). No.13126 of 2010 14 qualifications are to be taken into consideration as on the date of occurrence of the vacancy. Learned counsel has also relied on the judgment of the Apex Court in **D.P.Das v. Union of India and others** [(2011) 8 SCC 115], wherein it was held that in the absence of any specific rule or even executive instruction, seniority among persons holding similar posts in same cadre has to be determined on basis of length of service and not on any other fortuitous circumstances. It was also held therein that determination of seniority is a vital aspect in the service career of an employee and his future promotion is dependent on this and therefore, the determination of seniority must be based on some principles, which are just and fair, which is the mandate of Articles 14 and 16. Further held, in the absence of any specific rule, the seniority amongst persons holding similar posts in the same cadre has to be determined on the basis of the length of the service. 14. Taking into account the totality of the factual and legal circumstances put forth by the respective counsel, the predominant aspect that comes up for consideration is the feeder category sub-rules provided by the 1[st] respondent W.P.(C). No.13126 of 2010 15 society, which is not under dispute. As per Rule 6, the post of Junior Clerk and Typist are equated posts. Feeder category for promotion is shown as Attender/Bill Collector. As per rule 5, promotion to Senior Clerk is from the category of Junior Clerks/Typists. Therefore, it can be seen that post of Junior Clerk and Typist comes under one category, which thus means, a Typist who is acquiring the qualification of JDC is treated at par with the Junior Clerk and he is entitled to occupy the post of Senior Clerk as and when the qualification to the post of Junior Clerk is acquired. According to the learned counsel for the petitioners, the promotion to the post of Senior Clerk is guided by Ext.P4 instruction issued by the Assistant Registrar of Co-operative Societies. As discussed above, the Assistant Registrar of Co-operative Societies is not vested with powers to issue any instructions of the sort. So also Ext.P4 was not a subject matter of consideration before the Arbitration Court as well as the Tribunal. 15. Arbitration Court as well as the Tribunal entered into conclusive findings on the basis of the case projected by the W.P.(C). No.13126 of 2010 16 respective parties and therefore, taking into account the circumstances discussed, the award and judgment, I am of the considered opinion that there is no error of jurisdiction, illegality or irrationality committed by the Arbitration Court as well as the Tribunal in arriving at the conclusions. Moreover, the judgment relied on by the learned counsel for the petitioners are rendered by the Apex Court under different fact situations. Therefore, the same cannot be relied on, for the purpose of considering the question arose in this writ petition. However, from the principles of law laid down by the Apex Court as well as this court in the judgments relied on by the learned counsel for the 2[nd] respondent, it is categoric and clear, in the absence of a rule in the matter of providing promotion the length of service rendered by the respective employees vis-a-vis the qualification are to be taken into account and the seniority fixed accordingly. In such circumstances, it can be seen that, the method adopted by the 1[st] respondent as per Ext.P2 seniority list is on the basis of the length of service rendered by the petitioners as W.P.(C). No.13126 of 2010 17 well as the 2[nd] respondent in the 1[st] respondent society and Ext.P2 seniority list was drawn, taking into account the length of service of the petitioners, and on acquiring required qualification by the 2[nd] respondent. Viewed in that circumstances, I do not think that petitioners have not made any case entitling them to succeed in the writ petition, invoking the power of judicial review conferred on this court under Article 226 of the Constitution of India. Resultantly writ petition fails and accordingly dismissed. Sd/- **SHAJI P. CHALY JUDGE** smv 09.08.2016