Rejesh V. and others v. Registrar of Co-operative Societies and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **THURSDAY, THE 28TH DAY OF NOVEMBER 2019 / 7TH AGRAHAYANA, 1941** ## **WP(C).No.15828 OF 2019(C)** ## **PETITIONER/S:** - **1 REJESH V., AGED 36 YEARS, BILL COLLECTOR, KOTTAYAM DISTRICT CO-OPERATIVE BANK LTD., PALA MAIN BRANCH, KOTTAYAM, RESIDING AT MAMALASSERIL HOUSE, KADUTHURUTHY P.O., KOTTAYAM DISTRICT - 686604.** - **2 ANIL GOPINATH, BILL COLLECTOR, KOTTAYAM DISTRICT CO-OPERATIVE BANK LTD., PERUMPANACHI BRANCH, KOTTAYAM, RESIDING AT UTHINTHANATHIL, CHAMBAKARA P.O., KARUKACHAL, KOTTAYAM DISTRICT - 686540.** - **3 JISHA.P.S., PEON, KOTTAYAM DISTRICT CO-OPERATIVE BANK LTD., VAIKOM MORNING AND EVENING BRANCH, KOTTAYAM, RESIDING AT THILAMKANDATHIL, ARATTUKULANGARA, VAIKOM, KOTTAYAM DISTRICT - 686141.** - **4 ASAMOL.P.R., PEON, KOTTAYAM DISTRICT CO-OPERATIVE BANK LTD., HEAD OFFICE, KOTTAYAM, RESIDING AT PAITTETTUPARAMBIL, ATHIRAMPUZHA P.O., KOTTAYAM DISTRICT - 686002.** **BY ADVS. SRI.T.R.HARIKUMAR SRI.ARJUN RAGHAVAN** ## **RESPONDENT/S:** - **1 THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM -695001.** - **2 THE PART-TIME ADMINISTRATOR, KOTTAYAM DISTRICT COOPERATIVE BANK LTD., HEAD OFFICE, KOTTAYAM - 686001 (JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOTTAYAM.** - **3 THE KOTTAYAM DISTRICT CO-OPERATIVE BANK LTD., REPRESENTED BY ITS GENERAL MANAGER, HEAD OFFICE, KOTTAYAM - 686001.** **4** **REVATHI VISWAMBRAN, BILL COLLECTOR, KOTTAYAM DISTRICT CO-OPERATIVE BANK LTD, VAIKOM MAIN BRANCH, KOTTAYAM, RESIDING AT VALIYAPARAMBIL HOUSE, KOTHAVARA P.O., VAIKOM, KOTTAYAM DISTRICT - 686607.** **5 PRASANTH K.S., BILL COLLECTOR, KOTTAYAM DISTRICT CO-OPERATIVE BANK LTD., KOTTAYAM TOWN BRANCH, KOTTAYAM, RESIDING AT KAYALIL HOUSE, KUMARAKOM, KOTTAYAM DISTRICT - 686563.** **6 SINDHUMOL NARAYANAN, BILL COLLECTOR, KOTTAYAM DISTRICT CO-OPERATIVE BANK LTD., KURUPPANTHARA BRANCH, KOTTAYAM, RESIDING AT VAIPPEL HOUSE, MEVELLORE P.O., KOTTAYAM DISTRICT - 686609.** **7 SONTHOSH KUMAR.C.R., BILL COLLECTOR, KOTTAYAM DISTRICT CO-OPERATIVE BANK LTD., MANARCADU BRANCH, KOTTAYAM, RESIDING AT MATTATHIL HOUSE, THIDANADU P.O., KOTTAYAM DISTRICT - 686123.** **8 SALINI, BILL COLLECTOR, KOTTAYAM DISTRICT COOPERATIVE BANK LTD., PAMPADY BRANCH, KOTTAYAM RESIDING AT ARUN NIVAS, CHAMBAKKARA P.O., KOTTAYAM DISTRICT-686540.** **9 PUSHPALATHA K.C., PEON, KOTTAYAM DISTRICT COOPERATIVE BANK LTD., THAZHATHANGADI BRANCH, KOTTAYAM, RESIDING AT PUTHENPARAMBIL HOUSE, THIRUVARPPU, KOTTAYAM DISTRICT - 686020.** **10 SIBY MATHEW, PEON, KOTTAYAM DISTRICT CO-OPERATIVE BANK LTD., MUNDAKAYAM EVENING BRANCH, KOTTAYAM, RESIDING AT KALAPPURAKKAL HOUSE, PARATHODE P.O., KOTTAYAM DISTRICT - 686512.** - **ADDL.R11 THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM P.O., THIRUVANANTHAPURAM-695004.** **ADDL.R11 IS IMPLEADED AS PER ORDER DATED 25.06.2019 IN I.A.NO.1/2019 IN WP(C)NO.15828/2019.** **R2-3 BY ADV. SRI.ATHUL SHAJI R4-7 BY ADV. SRI.P.N.MOHANAN** **BY SENIOR GOVERNMENT PLEADER, SMT.C.S.SHEEJA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## WPC 15828/2019 ## **JUDGMENT** ## **Dated this the 28[th] day of November, 2019** The petitioners, who are employees of the Kottayam District Co-operative Bank have approached this Court aggrieved by the promotion granted to respondents 4 to 9, who are employees working in the post of feeder category to the post of clerk-cum-cashier having no qualification of graduation. The petitioners are also employees working in the same feeder category and have graduation. 2. This Court is called upon to decide an issue regarding appointment to the post of clerk-cum-cashier from the feeder category of employees, who have no graduation. The question therefore, that arises for consideration is whether non-graduates are entitled to be promoted to the higher post of clerk-cum-cashier. The relevant rule is Rule 186 of the Kerala Co-operative Societies Rules, 1969 (for short, the “Rules”) which ``` Wpc 15828/2019 ``` ## **-:4:-** ## prescribes qualification. The relevant rule reads thus: “186. Qualifications:- (1) No person shall be eligible for appointment in any post unless he possesses the qualifications prescribed for the post as shown below: (i) All posts other than A A degree in Commerce or those requiring Masters degree in Arts of a technical recognised University, with Coqualifications, the operation as special subject. starting pay of which is Rs.250 and above as it OR existed on the 1[st] January, 1974 and such B(i) Any Bachelors degree of a pay being revised from recognised University and time to time (ii) Higher Diploma in Cooperation or higher diploma in co-op. and Business Management H.D.C or H.D.C and B.M. of State Co-operative Union of Kerala or H.D.C and H.D.C.M of the National Council for Co-operative Training or successful completion of the Subordinate (Junior) Personnel Co-operative Training Course (Junior Diploma in Co-operation. **==> picture [14 x 9] intentionally omitted <==** C. Diploma in Rural Services with Co-operation as optional subject. D. B.Sc. (Co-operation & Banking) Degree of the Kerala Agricultural University. ``` Wpc 15828/2019 ``` ## **-:5:-** |(ia) All posts to be<br>filled up by direct<br>recruitment under sub-<br>rule (2) of Rule 185<br>(ib) All Posts to be<br>filled up by direct<br>recruitment under sub-<br>rules (3) and (4) of<br>Rule 185.|(i) Graduation from a recognised<br>University with not less than<br>50% of marks in the aggregate<br>and Higher Diploma in Co-<br>operation (HDC or HDC & BM of<br>the State Co-operative Union of<br>Kerala or HDC and HDCM of<br>National Council for Co-<br>operative Training or successful<br>completion of the Subordinate<br>(Junior) Personal Co-operative<br>Training Course (Junior Diploma<br>in Co-operation).<br>Master’s Degree in Business<br>Administration or any other<br>equivalent qualification in<br>Banking or Finance as the main<br>subject, M.Com. recognised by<br>the Universities in the State,<br>M.Sc. (Co-operation and Banking)<br>of<br>Kerala<br>Agricultural<br>University or Membership in the<br>Institute<br>of<br>Chartered<br>Accountants of India, with<br>experience of not less than five<br>years in Managerial/Supervisory<br>Cadre in Kerala State Co-<br>operative Bank/Kerala State Co-<br>operative Agricultural and Rural<br>Development Bank/District Co-<br>operative Bank/Class one Super<br>Grade or Class one Special Grade<br>Primary Agricultural Credit<br>Societies/Primary Co-operative<br>Agricultural<br>and<br>Rural<br>Development<br>Bank/Nationalized<br>Banks/Scheduled Banks/Government<br>or<br>Quasi<br>Government<br>Institutions.| |---|---| ## **`Wpc 15828/2019`** ## **-:6:-** 3. The Government, invoking power under Section 109 of Kerala Co-operative Societies Act, 1969 (for short, the “Act”) read with Section 80(3) of the Act prescribed graduation as a qualification for promotion as well as direct recruitment, to the category of clerk/cashier. The Government Order dated 30.9.1986, produced as Ext.P6, prescribes the qualification for the post of Clerks/Cashiers as follows: ## “ **Qualification.** No person shall be eligible for appointment to any post noted below unless he possesses the qualification prescribed for the post. i. Clerks/Cashiers - For direct recruitment I or II Class graduates in any discipline with the H.D.C or J.D.C or B.Com I or II class with Co-operation are eligible. Protection is given to the existing staff with S.S.L.C Qualification. All sub - staff with S.S.L.C and J.D.C as on the date of notification will be eligible for promotion as Clerks/Cashiers.” 4. There was a challenge in regard to a notification issued by the Kerala Public Service Commission prescribing qualification based on the above Government Order. The challenge was mainly on the ``` Wpc 15828/2019 ``` ## **-:7:-** ground that without amending the qualification as prescribed under Rule 186 of the Rules, the Government's act of prescribing qualification invoking power under Section 109 of the Act shall have no legal sanctity. This challenge was considered by a Division Bench of this Court in **Public Service Commission v. Rameshan [2005 (4) KLT 466]** . The Division Bench in **Rameshan’s** case _(supra)_ was of the view that the prescription of qualification as referred under Rule 186 of the Rules was in relation to the pay scale obtainable in the case of a particular post. The Division Bench, after referring to the power of the Government in conjunction with Section 109 read with Section 80(3) of the Act was of the firm opinion that the Government is competent to prescribe qualifications for different categories of posts including that of clerks/cashiers. The decision in **Rameshan’s** case ( _supra_ ) was challenged before the Apex Court in Civil Appeal No. 6734/2003 and connected cases. The Apex Court dismissed the challenge affirming the ## **`Wpc 15828/2019`** ## **-:8:-** decision in **Rameshan’s** case. The Apex Court judgment was delivered on 29.1.2008. It is in this background that the petitioner contends that graduation is a requisite qualification for the purpose of promotion. 5. G.O.(MS).No.79/86 Co-op., dated 30.9.1986 was amended by the Government by another GO(MS).No.9/88 Coop. Dated 23.3.1988. By this Government Order, service regulation in regard to qualification was substituted as follows: “Government are pleased to order that clause (1) of the Service Regulations approved in the G.O. read above will be substituted with the following: ## **8(i) Clerks/cashiers:** (a) for direct recruitment the qualification for the post of clerks/cashiers will be B.A., B.Sc. or B.Com. with H.D.C./J.D.C. or B.Com. with Cooperation or B.Sc. (Cooperation Banking) of Kerala Agricultural University. (b) In the case of the posts reserved for employees of the affiliated primary cooperative societies the qualification will be SSLC with JDC and three years experience in the affiliated primary cooperative society. ``` Wpc 15828/2019 ``` **-:9:-** (c) The sub-staff of the bank will be eligible for promotion as clerk if they possess SSLC with JDC and minimum three years experience.” This Government Order does not prescribe graduation as a qualification for the purpose of promotion in the post of Clerk. 6. In the meanwhile, doubting correctness of **Rameshan’s** case **[2005 (4) KLT 466]** , a similar challenge was referred to the Full Bench in **Sathyadevan v. Public** **Service Commission [2008 (1) KLT 289 (FB)].** In **Sathyadevan’s** case, the Full Bench of this Court doubted correctness of **Rameshan’s** case mainly on a point that Rule 186 of the Rules was not amended. Apart from the aforesaid reasoning, the Full Bench was of the view that in **Rameshan’s** case, the subsequent amendment was not noted. Therefore, the Full Bench came to the conclusion that for the purpose of promotion, graduation is not required. Though the Full Bench doubted the correctness of the Government Order prescribing qualification invoking power under Section 109 read with Section 80(3) ## **`Wpc 15828/2019`** ## **-:10:-** of the Act, it did not declare that the Government Order prescribing qualification was invalid. On the other hand, the Full Bench mainly relied upon the subsequent Government Order amending the qualification. 7. In the light of the fact that Full Bench had accorded validity to the subsequent Government Order dated 23.3.1988, the dictum in **Rameshan’s** case **[2005 (4) KLT 466]** which was affirmed by Apex Court in Civil Appeals may not hold the field in regard to the qualification prescribing graduation as mandatory for promotion for the simple reason that the Government Order relied upon therein was amended by Government Order dated 28.3.1988. Therefore, in the light of the Full Bench judgment in **Sathyadevan's** case **[2008 (1) KLT 289 (FB)]** , graduation is not a requisite qualification for the purpose of promotion. The Government Order dated 28.3.1988 would hold the field unless and until substituted by another Government Order prescribing qualifications in accordance with law. ## **`Wpc 15828/2019`** ## **-:11:-** 8. The learned counsel for the petitioners referred to Ext.P1 recruitment rules of the third respondent bank. These recruitment rules prescribe graduation as a requisite qualification for direct recruitment to the post of Clerk/Cashier. In the case of promotion also, it prescribes required qualification. Therefore, it was argued that recruitment rules as above would bind the third respondent bank. The learned counsel for the party respondent questioned the validity of the recruitment rules. According to him, these recruitment rules have no sanctity as per the Act and Rules. Section 109 read with Section 80(3) of the Act refers to the power of the Government to make Rules. There is nothing on record to show that the Government has approved the aforesaid recruitment rules invoking its power under Section 109 read with Section 80(3) of the Act. In the absence of any such procedure being followed, this Court cannot consider the recruitment rules as above as valid. ``` Wpc 15828/2019 ``` ## **-:12:-** In the light of the discussions as above, there is no merit in the writ petition. Accordingly, the writ petition is dismissed. No costs. Sd/- A.MUHAMED MUSTAQUE, JUDGE ## **ms** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 A TRUE COPY OF THE RECRUITMENT RULES OF THE 3RD RESPONDENT BANK, SHOWING THE QUALIFICATION FOR PROMOTION AND DIRECT RECRUITMENT.** - **EXHIBIT P2 A TRUE COPY OF THE CADRE WISE DRAFT SENIORITY LIST OF BILL COLLECTORS AS ON 01.05.2019.** - **EXHIBIT P3 A TRUE COPY OF THE CADRE WISE DRAFT SENOIRTY LIST OF PEON AS ON 01.05.2019.** - **EXHIBIT P4 A TRUE COPY OF THE COMMUNICATION DATED** - **13.05.2019 ISSUED BY THE 3RD RESPONDENT BANK.** - **EXHIBIT P5 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIOENRS BEFORE THE 3RD RESPONDENT BANK.** - **EXHIBIT P6 A TRUE COPY OF THE RELEVANT PAGES OF THE RECRUITMENT RULES APPROVED BY THE GOVERNMENT** - **RESPONDENT'S/S EXHIBITS:** - **EXHIBIT R5(A) A TRUE COPY OF THE SRO NO.596/1973 PUBLISHED IN KERALA GAZETTE VOLUME 8 DATED 27.9.1973** - **EXHIBIT R5(B) A TRUE COPY OF THE JUDGMENT DATED 13.3.2013 IN WPC NO.26451/2012.** - **EXHIBIT R5(C) A TRUE COPY OF THE SENIORITY LIST OF JUNIOR ACCOUNTANTS.** - **EXHIBIT R5(D) A TRUE COPY OF THE JUDGMENT DATED 30.3.2017 IN WPC NO 6076/2017.** - **EXHIBIT R5(E) A TRUE COPY OF THE G.O.(MS) 9/1988 CO-OP.DATED 23.03.1988.** **EXHIBIT R2(a): TRUE COPY OF THE RECRUITMENT (AMENDMENT) RULES FOR DISTRICT CO-OPERATIVE BANKS, 2014 IN NO.EST/033/2015-19 DATED 29/04/2015. EXHIBIT R2(b): TRUE COPY OF G.O.(MS) 79/86/CO-OP. DATED 30/09/1986.**