Smt. Suhara U.M. v. Government Servants' Co-Operative Society Ltd No. 146, Muvattupuzha & Government of Kerala Co-Operative Department

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **THURSDAY, THE 25[TH] DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA, 1943** **WA NO. 1564 OF 2021** **AGAINST THE JUDGMENT DATED 29.09.2021 IN WP(C)NO.18749/2021 OF** **HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** **SMT.SUHARA U.M. AGED 64 YEARS W/O.ABOOBACKER, EDAPPARA HOUSE, ADOOPARAMBU, MUVATTUPUZHA.** **BY ADVS. SABU FRANCIS JOHN V.VARGHESE MURALI MANOHAR.R** ## **RESPONDENTS/RESPONDENT/ADDITIONAL RESPONDENT:** **1 GOVERNMENT SERVANTS' CO-OPERATIVE SOCIETY LTD NO. 146 MUVATTUPUZHA, PIN - 686 661 REPRESENTED BY ITS SECRETARY, MUVATTUPUZHA P.O., ERNAKULAM DISTRICT.** **2 GOVERNMENT OF KERALA CO-OPERATIVE DEPARTMENT, SECRETARIAT, TRIVANDRUM, REPRESENTED BY ITS SECRETARY, PIN - 695 001.** **SRI.PETER JOSE CHRISTO,** **SRI.B.UNNIKRISHNA KAIMAL, SR.GOVT.PLEADER** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A No.1564 of 2021 2 ## **ALEXANDER THOMAS & VIJU ABRAHAM, JJ.** **=========================================** ## **W.A No.1564 of 2021** [ _arising out of the impugned judgment dated 29.09.2021 in W.P(C) No.18749/21_ ] **=========================================** Dated this the 25[th] day of November, 2021 ## **JUDGMENT** ## **Alexander Thomas, J.** The appellant herein has preferred the instant Writ Petition (Civil), W.P(C) No.18749/2021 before this Court seeking the following reliefs : - _“i) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondent to refix the salary and grant all benefits as that of the Chief Accountant of the respondent from 01..07..2013 onwards with 12% interest per annum by notional promotion._ - _ii) Award costs of the proceedings; and_ - _iii) Such other reliefs that are deemed fit and proper to allow in the interest of justice.”_ 2. The learned Single Judge after hearing both sides, has rendered the impugned judgment dated 29.09.2021 dismissing W.P(C) No.18749/2021 on the ground that the pleas made by the petitioner are highly belated and barred because of inordinate delay and latches on his part and that the vacancy in relation to the claimed promotion post had arisen on 01.07.2013 and the appellant had retired from service on W.A No.1564 of 2021 3 30.06.2013 and thereafter, the claim was made by him before the respondent-employer, only as per Ext.P-2 on 17.09.2020, which was rejected by the respondent-employer by Ext.P-4 dated 21.12.2020 and that, in view of the inordinate delay and latches on the part of the writ petitioner in agitating his rights, if any, no interference is called for in the writ proceedings, etc. 3. It is this verdict of the learned Single Judge dismissing the above writ petition (civil) filed by the appellant that is under challenge in this _intra court_ appeal filed by him under Sec.5(i) of the Kerala High Court Act. 4. Heard Sri.Sabu Francis, learned counsel for the appellant in the W.A/petitioner in the W.P(C), Sri.S.P.Aravindakshan Pillay, learned Advocate instructed by Sri.Peter Jose Christo, learned counsel appearing for the 1[st] respondent (Co-operative Society)-employer and Sri.B.Unnikrishna Kaimal, learned Senior Government Pleader appearing for the 2[nd] respondent-State of Kerala. 5. A brief reference to the facts of this case will be pertinent. According to the appellant, she had joined service of the 1[st] respondentCo-operative Society as Junior Clerk on 09.04.1984 and was later promoted as Senior Clerk in the year 1991 and was later discharging the W.A No.1564 of 2021 4 duties of Branch Manager, she was transferred to the Kothamangalam Branch. Further that, in April 2011, the appellant was re-transferred to Muvattupuzha Branch and had worked as Accountant. Further that, in December 2011, one Sri.P.D.Joseph, who was the incumbent holding the post of Branch Manager-cum-Chief Accountant of the Kothamangalam Branch of the 1[st] respondent-Society, who was suspended from service as per order dated 14.11.2011, due to alleged irregularities and later, he was dismissed from service on 27.10.2012. That, certain disputes raised by the said incumbent in relation to his termination of service, were then pending. Later, he had attained the age of superannuation from service on 30.06.2013. Hence, according to the appellant, a regular vacancy had arisen in the post of Branch Manager-cum-Chief Accountant on 01.07.2013. Further that, the appellant was performing the duties of Branch Manager of Kothamangalam Branch for the period from December 2011 to 2013. That, the appellant had submitted Ext.P-1 representation dated 30.07.2013 before the 1[st] respondent-Secretary of the Co-operative Society concerned, pointed out that she was working as Accountant and she may be promoted to the post of Chief Accountant, in which the regular vacancy had arisen on 30.06.2013, due to the attainment of superannuation period of the previous incumbent W.A No.1564 of 2021 5 concerned. According to the appellant, the 1[st] respondent had not acted upon at Ext.P-1 at any point of time. That later, the appellant had retired from service consequent to the attainment of the superannuation stage on 30.06.2013. 6. The further case of the appellant is that, it is much later that she came to know that the competent authority of the State Government has issued a statutory notification in terms of Ext.P-3 published in Kerala Gazette dated 15.03.2013. According to the appellant, by Ext.P-3, it has been statutorily notified by the Government in terms of the enabling provisions contained in the Kerala Co-operative Societies Rules, that requisite pass in eligibility test, will stand extended till 31.08.2013, etc. That, in view of Ext.P-3 statutory notification, incumbent like the appellant, stood statutorily exempted from passing the eligibility test/qualifying examination, for the purpose of regular promotion to the post of Chief Accountant. Then, immediately after coming to know about Ext.P-3 statutory notification dated 15.03.2013, the appellant had submitted Ext.P-2 representation dated 19.09.2020 before the 1[st] respondent stating that in view of Ext.P-4 notification, the appellant should be deemed to have been retrospectively promoted as Chief Accountant in the regular vacancy that arose on 30.06.2013 and W.A No.1564 of 2021 6 that, all consequential benefits thereof should be granted to her. In Ext.P-2 dated 19.09.2020, the appellant has also produced a copy of Ext.P-3 statutory notification dated 15.03.2013. The claim of the appellant in terms of Ext.P-2 representation dated 19.09.2020 has been rejected by the 1[st] respondent, as per the impugned Ext.P-4 order dated 21.12.2020. 7. The learned Single Judge, after hearing both sides, has dismissed the above W.P(C) as above. 8. We have heard both parties _in extenso_ . Sri.Sabu Francis, learned counsel for the appellant would vehemently contend that the appellant was althroughout unaware about Ext.P-3 statutory notification issued on 15.03.2013 that, incumbent like the appellant stood statutorily exempted from the qualifying examination for passing the eligibility test till 31.08.2013. It is only on this account that, she could not earlier make a claim before the 1[st] respondent on the basis of Ext.P-3 statutory notification. But that, the appellant has infact made a claim that she should be promoted to the post of Chief Accountant in the vacancy which arose on 01.07.2013, as can be seen from Ext.P-1 representation given as early as on 30.07.2013, which is exactly within 30 days from the date of occurrence of the regular vacancy on W.A No.1564 of 2021 7 01.07.2013. Further that, the main reasons stated by the 1[st] respondentEmployer for justifying the impugned Ext.P-4 rejection order, is that the appellant cannot be considered for promotion to the post of Chief Accountant, as he has not passed the eligibility test. That, this would clearly show that even the 1[st] respondent-co-operative society employer was althroughout not taken into consideration Ext.P-3 statutory notification and it may imply that either they were unaware or are rejecting the claim of the appellant for totally wrong legal reasons. But that, a retired employee like the appellant would not be penalized merely because they were ignorant about Ext.P-3 notification, etc. Sri.Sabu Francis, learned counsel appearing for the appellant has placed reliance on the judgment of a Division Bench of this Court in the case in _**Secretary to Government of India v. Samuel Thomas**_ {2017 (4) KLT SN.89(C.No.108)}, to contend for the position that, in a case like this, even if there is inordinate delay, the court can give directions in the matter of retrospective promotions, provided the claim is otherwise legally tenable, etc. We have carefully gone through the abovecited decision reported in {2017 (4) KLT SN.89(C.No.108)}. A reading of the said reported decision would indicate that, the Division Bench of the Tribunal had earlier permitted the department concerned W.A No.1564 of 2021 8 of the Government of India to promote the officers, who are otherwise eligible for promotion, but subject to the decision in the pending litigative proceedings. An interim order was earlier passed in the matter some time in the middle of the year 2010 and later the case was referred to the Principal Bench of the Tribunal and another interim order was issued on 20.09.2010 directing that the department should proceed with the promotion, but subject to the sealed cover procedure. Thereafter, the matter reached the Delhi High Court, wherein the department was directed to waste no more time and to proceed with promotions, subject to the outcome of the proceedings before the Principal Bench of the Tribunal. Further, the abovesaid second interim order was on 20.09.2010 and the appellant had retired on 28.02.2011. The department in fact had acted upon the interim direction only on 30.03.2011, by which time the appellant had retired from service. The Division Bench has held in the aforesaid decision that, had the Department acted promptly, the ad hoc promotions could have been effected well before 28.02.2011, the day on which the appellant had retired from service and nothing prevented the department to do so and that in such a case, the delay on the part of the department, shall not recoil on an unsuspecting employee, etc. W.A No.1564 of 2021 9 9. Further, Sri.S.P.Aravindakshan Pillay, learned Advocate instructed by Sri.Peter Jose Christo, learned counsel appearing for the 1[st] respondent-Co-operative Society would submit that, all what the 1[st] respondent had stated in the impugned Ext.P-4 rejection order, is that the appellant had not secured pass in the qualifying examination for eligibility test, till her retirement and that the extension granted as per Ext.P-3, is only a temporary exemption, which is to last only upto 31.08.2013 and at best an employee could have been temporarily promoted for the brief period and such an employee is promoted on the basis of a temporary promotion, would have been liable to be reverted, if he or she had not later secured pass in eligibility test and the regular promotion would have been granted in the regular vacancy only for the periods after 31.08.2013, only if the incumbent concerned had passed the eligibility test in the next examination. Further that, this aspect of the matter has been considered by a learned Single Judge of this Court in the judgment dated 06.12.2019 in W.P(C) No.21914/2019 and para 14 thereof, which reads as follows : “ _14. It is to be noted that Smt.Aparna Prathap was promoted as Administrative Officer on 6.2.2012. Her case is that she was not required to qualify the test as her promotion was covered by the exemption order. Perhaps it is necessary to refer to the purport of this Rule. The Government has the 'power to exempt' any registered society or class of society from the operation of any powers of the K.C.S Rules. It is appropriate to refer Rule 181 which reads thus:_ W.A No.1564 of 2021 10 “ _**181. Power to exempt from Rules**_ .- _The State Government may, by general or special order and subject to such conditions as they deem fit, exempt any registered society or class of such societies from any of the provisions of these rules or may direct that such provisions shall apply to such society or class of societies with such modifications as may be specified in the order_ .” _It is by virtue of this power that the Government issued the above order. As already noted, the government order does not exempt the provisions of Rule 185 from its operation. But on the other hand, the government order was limited upto the date mentioned therein or till the publication of the results. That means, temporary promotion can be effected subject to the candidates qualifying the examination. This is on account of the fact that there was delay in conducting examination from time to time. There is no exemption for applicability of the provisions. There is also no exemption to an employee from acquiring qualification. The exemption was given to the co-operative societies to meet exigencies on account of the delay in conducting the examination. The government order is very clear in this regard. Therefore, all candidates, who were promoted to higher posts are bound to acquire necessary qualification in the examination conducted immediately after the promotion.”_ It is also pointed out by Sri.Aravindakshan Pillay, learned counsel appearing for the 1[st] respondent that, the abovesaid judgment of the learned Single Judge rendered on 06.12.2019 in W.P(C) No.21914/2019, has been affirmed by a Division Bench of this Court, as per judgment dated 09.06.2021 in W.A No.2525/2019 & connected cases. Hence, it is pointed out that the claim of the appellant, is legally untenable and that the appellant cannot say that the grounds stated in Ext.P-4 rejection order, are not relevant and at best, appellant could have claimed only a temporary promotion till 31.08.2013 and not a day thereafter. W.A No.1564 of 2021 11 10. After hearing both sides, we would also hold that the abovesaid contentions of the 1[st] respondent-Society based on the judgment dated 06.12.2019 of this Court in W.P(C) No.21914/2019, as affirmed in the judgment dated 09.06.2021 of the Division Bench of this Court in W.A No.2525/2019 & connected cases, etc., will have to be seriously countenanced by this Court. However, in view of the inordinate delay on the part of the appellant, the learned Single Judge cannot be found fault with in this case. 11. So also, we are of the view that, the said reported decision of this Court in **Samuel Thomas's case** supra {2017 (4) KLT SN.89(C.No.108)}, cannot be imported to the facts of this case to hold that, the inordinate delay on the part of the appellant, is to be ignored and directions should be issued in the matter of the claimed retrospective promotion at this point of time. In the said reported decision, the Tribunal and the Delhi High Court had consistently directed the department concerned in the Government of India to make ad-hoc promotions and that was not made, even though the first interim order was passed in the middle of 2010 and the second interim order was passed on 20[th] September, 2010. The department had all the time to pass orders on ad-hoc promotions, well before the appellant therein W.A No.1564 of 2021 12 had retired from service on 28.02.2011. For no reasons, they denied it and ultimately, the ad-hoc promotions was effected only in March, 2011, by which time the appellant therein had retired from service. It is in context of these factual scenario, that the Division Bench of this Court has ordered in the abovesaid reported decision in **Samuel Thomas's case** supra that, the delay shall not re-coil on such an unsuspecting employee, etc. Therefore, we are of the view that, the _ratio decidendi_ laid down by the Division Bench of this Court in **Samuel Thomas's case** supra, cannot be imported to the facts and circumstances of this case and the plea of the appellant to the contrary, cannot be accepted by us. 12. After hearing both sides, it is seen that the appellant has no case that, after submitting Ext.P-1 representation dated 30.07.2013, she has agitated the matter before any other Forum like the Joint Registrar, Notified Registrar, etc. Even going by the pleadings, Ext.P-1 representation dated 30.07.2013 was not acted upon by the 1[st] respondent and later, she had retired from service on 30.06.2013 and that, for the first time she had made a claim for seeking retrospective promotion to the post of Chief Accountant to the regular vacancy, which arose on 01.07.2013, by submitting Ext.P-2 representation dated W.A No.1564 of 2021 13 19.09.2020, by placing reliance on Ext.P-3 statutory notification dated 15.03.2013. Ext.P-2 representation dated 19.09.2020 was rejected by the 1[st] respondent as per Ext.P-4 dated 21.12.2020. It is true that, the 1[st] respondent has stated even in Ext.P-4 that, the claim of the appellant for promotion cannot be considered, as he has not passed eligibility test. There was no reference in Ext.P-4 about the contention of the appellant based on Ext.P-3 statutory notification, etc. So, it appears that the 1[st] respondent has not addressed the issues arising out of Ext.P-3, while disposing of Ext.P-2, as per Ext.P-4, even though a copy of Ext.P-3 has been made available by the appellant at the time of submission of Ext.P-2 representation. But, that by itself cannot be a technical ground to interdict in this matter. It is for the simple reason that, the claim is in relation to a vacancy which is said to have arisen on 01.07.2013 and even after, the appellant was fully aware that, Ext.P-1 representation dated 30.07.2013 was never acted upon by the respondents, she has agitated the issue after long delay and on the other hand, she has retired from service on 30.06.2013 and has secured the terminal benefits. It is long thereafter, that the appellant has made the claim by submitting Ext.P-2 representation, as late as on 17.09.2020, which stood rejected as per Ext.P-4 on 21.12.2020. Therefore, there cannot be any doubt for us W.A No.1564 of 2021 14 that there has been inordinate delay and laches on the part of the appellant. The main ground to justify the delay is that, the appellant was never aware about Ext.P-3 statutory notification, which even according to the appellant, has been issued and published in the Gazette of Kerala, as early as on 15.03.2013. Such plea of ignorance about a statutory notification as per Ext.P-3, cannot be a ground for us to entertain the claim on merits, at this point of time, especially because of the long and inordinate delay in the matter. Therefore, we are fully in considered views of the learned Single Judge, as regards the crucial aspect of inordinate delay and laches on the part of the appellant. Hence, we are not in a position to interfere with the discretionary decision of the learned Single Judge in deciding not to entertain the writ proceedings. For these reasons the above Writ Appeal, will stand dismissed. **Sd/ALEXANDER THOMAS, JUDGE** **Sd/VIJU ABRAHAM, JUDGE** vgd