Shaju M. v. Registrar of Co-operative Societies and Kerala State Co-operative Bank (formerly Wayanad District Co-operative Bank)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** ## **THURSDAY, THE 23[RD] DAY OF SEPTEMBER 2021 / 1ST ASWINA, 1943** ## **WP(C) NO. 13529 OF 2020** ## **PETITIONER/S:** SHAJU M. AGED 51 YEARS SENIOR ACCOUNTANT, KERALA STATE CO-OPERATIVE BANK (FORMER WAYANAD DISTRICT CO-OPERATIVE BANK), KALPATTA, WAYANAD. BY ADV P.N.MOHANAN ## **RESPONDENT/S:** 1 REGISTRAR OF CO-OPERATIVE SOCIETIES DEPARTMENT OF CO-OPERATION, OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES, JAWAHAR SAHAKARANA BHAVAN, DPI JUNCTION, THYCAUD P. O., THIRUVANANTHAPURAM - 695 014. 2 KERALA STATE CO-OPERATIVE BANK (FORMER WAYANAD DISTRICT CO-OPERATIVE BANK), KALPATTA, WAYANAD - 673 121, REPRESENTED BY GENERAL MANAGER. BY ADVS. GOVERNMENT PLEADER SRI.GILBERT GEORGE CORREYA ## **OTHER PRESENT:** SR.GP K.P HARISH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.07.2021, THE COURT ON 23/9/2021 DELIVERED THE FOLLOWING: WPC No.13529/2020 2 ## **JUDGMENT** Petitioner joined the service of District Co-operative Bank, Wayanad, as a driver on 6/3/2003. He passed JDC and was later promoted as an Accountant and is the senior accountant, since 6/5/2014. The next promotion post of the petitioner is that of the Branch Manager. There are vacancies in that cadre. The minimum qualification prescribed for the post of Branch Manager is graduation. Rule 185(1) of the Co-operative Societies Rules provides that promotion shall strictly be in accordance with the seniority. Rule 185(8) authorises granting of exemption from academic qualification in case of employees who were non graduate and to promote strictly according to the seniority. Since the petitioner is a non graduate, invoking the above provision, the then Administrator in the office , by Ext.P1 resolution, resolved to request the Registrar of Co-operative Societies to grant exemption to the petitioner from acquiring qualification of graduation, for the purpose of promotion to the post of Branch manager. The said resolution was forwarded to the Registrar of Co-operative Societies for passing necessary orders. By Ext.P2 dated 21/5/2021, the request was declined on the premise that District Co-operative Banks are not in existence. This is under challenge in this proceedings. 2. While so, the Wayanad District Co-operative Bank along with 13 other District Co-operative Banks were amalgamated with the Kerala State Co-operative Bank to form a new entity, Kerala State Co-operative Bank. Sub section (12) of Section 74H of KCS Act, provides that, any proceeding WPC No.13529/2020 3 pending before the date of amalgamation before any such authority shall be deemed to be continued and enforced by or against the transferee bank. According to the petitioner, in spite of this provision, the Registrar of Cooperative Societies by Ext.P2 order dated 21/5/2020 turned down the request to grant exemption from acquiring the qualification on the ground that the District Co-operative banks are not in existence. Ext.P3 is the memo communicated to the petitioner. Petitioner filed this writ petition challenging Ext.P2 and praying to quash Ext.P2 and also to declare that the petitioner is entitled to get exemption from acquiring the qualification of graduation for the purpose of promotion. 3. The 2nd respondent Kerala State Co-operative Bank has filed a detailed statement traversing the various claims. It was contended that by virtue of statutory amalgamation of erstwhile District Co-operative Bank with the State Co-operative Bank, the District Co-operative Banks have ceased to exist. The Co-operative Societies Act, 1969, was amended to contain the above situation. As per section 74H of the Co-operative Societies Act , from the date of amalgamation of the District Co-operative Banks with the State Co-operative Bank, erstwhile District Co-operative Banks ceased to exist, its registration stood cancelled and every permanent and regular employees or employees on probation serving in the employment of the transferor bank immediately before the date of amalgamation, became employees of the transferee bank and held the office therein or served the transferee bank, as the case may be, and shall continue to work in WPC No.13529/2020 4 accordance therewith. It was further submitted that pursuant to the amendment of the Kerala Co-operative Societies Act, a new organogram was in place and the bank was in the process of preparing an integrated seniority promotion list. As per the new organogram, the next promotion available to the senior accountant was the accounts officer in the Kerala State Co-operative Bank. The first proviso to Rule 185 of the KCS Rules specifically states that under no circumstances, exemption shall be granted from possessing the required academic qualification and experience for the purpose of affecting promotion to the post of accounts officer in the Kerala State Co-operative Bank. In view of the said proviso, it was unambiguous that the Bank or the Registrar was not empowered to make any exemption with regard to the academic qualification, while considering the employee for promotion. 4. The State has also filed a separate counter affidavit traversing the various contentions. 5. The learned counsel for the petitioner, refuting the above claims contended that Ext.P2 order was unsustainable both legally and factually. Learned counsel contended that by virtue of sub section (12) of section 74H, any proceeding, suits, decrees, recovery certificates, appeals and all other legal proceedings pending or existing immediately before the date of amalgamation, before any Court or Tribunal or any other authority, by or against the transferor banks may, as from the date of amalgamation be continued and enforced by or against the transferee bank. The learned WPC No.13529/2020 5 counsel for the respondent vehemently contended that sub section 12 of section 74H saves only legal proceedings. According to the learned counsel, the words “suits, decrees, recovery certificates....” etc.found in sub section (12) followed by “ all other legal proceedings” should take its colour from the previous terms and can only save only “legal proceedings” and similar proceedings only. I cannot agree with this proposition. Sub section (12) starts with “any proceedings” followed by “suits, decrees....” etc. Clearly sub section 12 uses both “proceedings” and “ all other legal proceedings”. It can only be considered as denoting two different and distinct actions namely “legal proceedings” and “other proceedings”. Hence, the term “other proceedings” are proceedings under law, other than proceedings pending before judicial, quasi-judicial or Tribunals. Hence, the above contention of the respondent cannot be accepted. In the case at hand, the proceedings which were initiated by Ex.P1 decision of the Administrator on 16/5/2019 is saved by virtue of sub section (12) of section 74H which came into effect from 29/11/2019. 6. Answering the contention of the learned counsel for the second respondent, relying on first proviso to Rule 185 , learned counsel for the petitioner contended that the above proviso was subject to the next proviso and which clearly stood in favour of the petitioner. The first proviso to Rule 185 provides that, under no circumstances exemption shall be granted from possessing required academic qualification and experience for the purpose of effecting promotion to various posts mentioned therein, including the WPC No.13529/2020 6 branch manager. However, this proviso was subject to the next proviso which stated that the above proviso shall not be applicable to those employees who were working in the feeder post of the above mentioned posts in such banks/societies as on date of notification of that Rule. Clause was inserted by SRO 40/2013 with effect from 19/1/2013. There is no dispute that the petitioner stood employed in the feeder category as on the date of notification which was 19/1/2013 This fact remains undisputed. 7. Learned counsel for the respondent, answering the contention of the learned counsel for the petitioner relied on the decision in _**Haneesa Beevi v. Registrar of Co-operative Societies(2008 (1) KLT 829)**_ and contended that Rule required the society to record its reasons for relaxing the qualifications. It was further contended that, it may be open to the employer society to grant relaxation in deserving cases, thereby meaning that whether a person deserves or not to be given relaxation has to be considered with reference to all other relevant matters. Any rational, reasonable and fair employer has to strike a meaningful balance between all persons, who compositely form a feeder category, for promotion to a higher category. 8. The Learned counsel for the petitioner contended that records available clearly indicated that the petitioner had a continuous unblemished record of service, which by itself was a justification for reckoning relaxation of qualification. Learned counsel further relied on the decision in _**Karthikeyan P.S. and Others v. Registrar of Co-operative Societies and**_ WPC No.13529/2020 7 _**Others(2011 (1) KHC 525)(DB**_ ), wherein the Division Bench held that the Registrar has power to relax qualifications. It was reiterated that the relaxation must be exercised only in exceptional cases and such exercise must be with utmost care, circumspection and caution. It was pointed out by the learned counsel for the petitioner that Ext.P3 did not disclose that the petitioner stood disqualified for any reason. On the other hand, records are there to indicate that the petitioner had been in service for long time. In the light of what is stated above, it is clear that reasoning of the the authority in Ext.P3 does not appear to be legally sustainable and is liable to be set aside. Accordingly, Ext.P3 stands quashed. The writ petition is allowed. The statutory authority is directed to pass appropriate fresh orders in the light of what are mentioned above, within a period of one month from the date of receipt of a copy of this judgment. Sd/- **SUNIL THOMAS** **Judge** dpk WPC No.13529/2020 8 ## **APPENDIX OF WP(C) 13529/2020** PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE RESOLUTION NO.10 DATED 16.05.2019 OF THE WAYANAD DISTRICT COOPERATIVE BANK. EXHIBIT P2 A TRUE COPY OF THE ORDER DATED 21.05.2020 OF THE FIRST RESPONDENT. EXHIBIT P3 A TRUE COPY OF THE MEMO DATED 04.06.2020 OF THE SECOND RESPONDENT. EXHIBIT P4 A TRUE COPY OF THE ORDER DATED 24.04.2018 ISSUED IN RESPECT OF MR. DEVADAS K. EXHIBIT P5 A TRUE COPY OF THE JUDGMENT REPORTED IN 2018 (3) KLT 863.