S. Shajihan v. State of Kerala & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 15[TH] DAY OF MARCH 2023 / 24TH PHALGUNA, 1944`** ## **`WP(C) NO. 678 OF 2016`** ## **`PETITIONER/S:`** ``` S.SHAJIHAN, AGED 57 YEARS ``` ``` S/O. SHAHUL HAMEED, BRANCH MANAGER (RETIRED), MAYYANAD REGIONAL CO-OPERATIVE BANK LIMITED NO.94,MAYYANAD P.O., KOLLAM, RESIDING AT NADAKAVIL, VADAKKEVILA P.O., KOLLAM. ``` ``` BY ADV SRI.B.MOHANLAL ``` ## **`RESPONDENT/S:`** - `1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, COOPERATIVE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.` - `2 THE REGISTRAR OF CO-OPERATIVE SOCIETIES CO-OPERATIVE DEPARTMENT, THIRUVANANTHAPURAM.` - `3 THE JOINT REGISTRAR GENERAL OF CO-OPERATIVE SOCIETIES` - `COLLECTORATE, CUTCHERY P.O., KOLLAM-691 013.` - `4 THE ASSISTANT REGISTRAR GENERAL OF CO-OPERATIVE SOCIETIES` - `COLLECTORATE, CUTCHERY P.O., KOLLAM-691 013.` - `5 THE MAYYANAD REGIONAL CO-OPERATIVE BANK LIMITED NO.94` - `MAYYANAD P.O., KOLLAM, REPRESENTED BY ITS SECRETARY.` ``` BY ADVS. SRI.A.JANIKOLLAM SRI.P.MARTIN JOSE SRI.P.PRIJITH ``` ## **`OTHER PRESENT:`** ``` SRI.K.M.FAISAL, GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2- W.P.(C). No. 678 of 2016 ## **P.V.KUNHIKRISHNAN, J.** ====================================================== W.P.(C) No. 678 of 2016 ============================================================= Dated this the 15[th] day of March, 2023 ## **JUDGMENT** The above writ petition is filed with following prayers: _“i. To call for the records leading to Ext.P11 from the 2nd Respondent and issue a writ of certiorari or other appropriate writ order or direction quashing Ext.P11 Order to the extent it orders declining to give exemption from qualification to the Petitioner with effect from the date of Ext.P1 Resolution of the 5[th] Respondent Bank dated 27/12/2010._ _ii. To issue a writ of mandamus or other appropriate writ order or direction commanding the 2[nd] Respondent to pass orders granting exemption from qualification to the Petitioner under Rule 185(8) of the Co-Operative Societies Rules taking into consideration Ext.P1 Resolution within a stipulated time as directed by this Hon'ble Court and grant promotion to the Petitioner to the post of Branch Manager in the 5[th] Respondent Bank with effect from 27/12/2010 and disburse the salary and other emoluments to the Petitioner._ _iii . To issue a writ of mandamus or other appropriate writ order or direction commanding the 2[nd] Respondent to consider and dispose of Ext.P13 Application submitted by the Petitioner within a stipulated time as directed by this Hon'ble Court and pass orders granting exemption from_ 3- W.P.(C). No. 678 of 2016 _qualification to the Petitioner under Rule 185(8) of the CoOperative Societies Rules taking into consideration Ext.P1 Resolution and grant promotion to the Petitioner to the post of Branch Manager in the 5[th] Respondent Bank with effect from 27/12/2010 and disburse the salary and other emoluments to the Petitioner._ _iv. To declare that the Petitioner is entitled to get exemption from qualification for promotion to the post of Branch Manager in the 5[th] Respondent Bank with effect from 27/12/2010 by granting exemption under Rule 185(8) of the Co-Operative Societies Rules taking into consideration Ext.P1 Resolution and to disburse the salary and other emoluments._ _v. To issue such other reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case.” (sic)_ 2. This writ petition is filed challenging Ext.P11 order declining to grant exemption from qualification of the petitioner to the post of manager in the 5[th] respondent bank with effect from 27.12.2010. According to the petitioner, he is entitled exemption from the date of Ext.P1 resolution itself which is 27.12.2010. It is submitted that the petitioner already retired from service on 30.11.2015. 4- W.P.(C). No. 678 of 2016 3. Today, when the matter came up for consideration, the counsel for the petitioner submitted that the point raised in this case is considered by a Division Bench of this Court in **Shajith v. Hamza** [2018 (4) KHC 857]. It is stated in the above judgment that the relaxation of educational qualification would take effect from the date of resolution itself. If that is the case, the impugned order will not stand. It will be better to extract the relevant portion of the judgment in Shajith’s case (supra). _“2. The Registrar by Ext.P4 order dated 03.03.2014 did grant relaxation from the educational qualification on the basis of the recommendation of the managing committee though only prospectively. The said order was confirmed by Ext.P9 order dated 25.06.2015 of the Government in appeal by the petitioners which was impugned in the Writ Petition claiming benefit from the date of resolutions. The learned single Judge has quashed Exts.P4 and P9 orders and declared that the relaxation of educational qualification would take effect from the date of resolutions itself. Respondents 4 to 18 have filed these Writ Appeals contending inter alia that the benefit of relaxation of educational qualification could not have been granted with retrospective effect._ 5- W.P.(C). No. 678 of 2016 ## _Xxxxx_ _5. That there is no significant paradigm shift in the power of both the Society and the Registrar even after amendment has been noticed in Karthikeyan P.S & Ors. v. Registrar & Ors., 2011 (1) KHC 525 (D.B.). It was held therein as follows”_ _“9. It can be seen that prior to the last amendment, the Committee of a Society could relax the qualification in a deserving case, of course, with the prior approval of the Registrar. But going by the provisions contained in the above sub rule, as it now stands, the role of the Registrar has become a little more prominent. If a request is made by the Committee of a Society to relax the educational qualification of any one of its employees by passing a resolution in this regard, the Registrar shall be competent to relax the qualification. Thus there is an apparent subtle shift in the power of both the Society and the Registrar, though in the ultimate analysis there may not be a significant paradigm shift in the power of the Registrar." (emphasis supplied)._ _We are in perfect agreement with the above reasoning and hold that the benefit of relaxation of qualification as approved by the Registrar would inure from the date of resolutions itself even as per Rule 185(8) as amended. The learned Single Judge was justified in quashing Ext.P4 and P9 orders to the extent it granted the benefit of relaxation from educational qualification from the date of order only.”_ 6- W.P.(C). No. 678 of 2016 In the light of the above dictum laid down by this Court, Ext.P11 is to be set aside to the extent it denies the benefit from the date of Ext.P1 resolution. Therefore, this writ petition is allowed in the following manner: 1. Ext.P11 is set aside to the extent it decline exemption from qualification to the petitioner with effect from the date of Ext.P1 resolution of the 5[th] respondent Bank, i.e., dated 27.12.2010. The petitioner is entitled exemption from qualification with effect from 27.12.2010. 2. Respondents 3 to 5 will pass necessary consequential order and disburse the benefits, if any, as expeditiously as possible, at any rate within four months from the date of receipt of a certified copy of this judgment. sd/- ## **P.V.KUNHIKRISHNAN JUDGE** das 7- W.P.(C). No. 678 of 2016 ## **`APPENDIX OF WP(C) 678/2016`** ## `PETITIONER EXHIBITS` - `Exhibit P1 THE TRUE COPY OF THE RESOLUTION NO: 342 DATED 27/12/2010 ISSUED BY THE BOARD OF DIRECTORS OF THE 5TH RESPONDENT BANK TO THE 3RD RESPONDENT AND ITS ENGLISH TRANSLATION.` - `Exhibit P2 THE TRUE COPY OF THE PERFORMA OF APPLICATION NO:E.M.(3)44676/97 DATED 15/03/1998 AS PER CIRCULAR NO:7/1/1990 SUBMITTED BY THE 5TH RESPONDENT TO THE 3RD RESPONDENT.` - `Exhibit P3 THE TRUE COPY OF THE COMMUNICATION REFERENCE NO: 272/10 DATED 19/02/2011 SUBMITTED BY THE 5TH RESPONDENT TO THE RESPONDENTS 3 AND 4.` - `Exhibit P4 THE TRUE COPY OF THE COMMUNICATION NO: 321/13 DATED 28/11/2013 ISSUED BY THE 5TH RESPONDENT TO HE 3RD RESPONDENT.` - `Exhibit P5 THE TRUE COPY OF THE RESOLUTION NO: 246 DATED 20/12/2013 ISSUED BY THE BOARD OF DIRECTORS OF THE 5TH RESPONDENT BANK TO THE 3RD RESPONDENT.` - `Exhibit P6 THE TRUE COPY OF THE COMMUNICATION NO: CRP(2)9166/13 DATED 05/02/2014 AND SCHEDULE OF THE CIRCULAR NO: 31/2013 ISSUED BY THE 3RD RESPONDENT TO THE 5TH RESPONDENT.` - `Exhibit P7 THE TRUE COPY OF THE COMMUNICATION NO: 453/14 DATED 13/03/2014 ISSUED BY THE 5TH RESPONDENT BANK.` - `Exhibit P8 THE TRUE COPY OF THE COMMUNICATION DATED 04/02/2015 ISSUED BY THE 5TH RESPONDENT TO THE RESPONDENTS 2 TO 4.` - `Exhibit P9 THE TRUE COPY OF THE REPRESENTATION DATED 18/08/2015 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT.` - `Exhibit P10 THE TRUE COPY OF THE JUDGMENT DATED 20/11/2015 IN W.P.(C) NO: 32872/2015 OF THIS HON'BLE COURT,` 8- W.P.(C). No. 678 of 2016 ``` Exhibit P11THE TRUE COPY OF THE ORDER NO:EM(2) 52454/15 DATED 28/11/2015 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER AND ITS ENGLISH TRANSLATION. Exhibit P12THE TRUE COPY OF THE ORDER NO: 467/15 DATED 22/12/2015 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER. Exhibit P13THE TRUE COPY OF THE REPRESENTATION DATED 10/12/2015 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. ```