T. V. Annie v. Joint Registrar of Co-operative Societies (General), Alappuzha & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN TUESDAY, THE 11TH DAY OF FEBRUARY 2014/22ND MAGHA, 1935 ## **W.P.(C).No.27943 of 2013 (P)** --------------------------------------------------- PETITIONER(S):- ------------------------ T.V.ANNIE, ASSISTANT SECRETARY, EZHUPUNNA SOUTH SERVICE CO-OPERATIVE BANK LTD.NO.1124, EZHUPUNNA SOUTH P.O., THURAVOOR, CHERTHALA, KERALA. BY ADVS.SRI.P.N.MOHANAN SRI.K.N.AJAYAN SMT.I.VINAYAKUMARI SRI.K.S.ARUNDAS SRI.C.P.SABARI RESPONDENT(S):- ---------------------------- 1. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), ALAPPUZHA - 688 001. 2. EZHUPUNNA SOUTH SERVICE CO-OPERATIVE BANK LTD.NO.1124, REPRESENTED BY ITS SECRETARY, EZHUPUNNA SOUTH P.O., THURAVOOR, CHERTHALA, KERALA - 688 532. ## 3. MANAGING COMMITTEE OF THE EZHUPUNNA SOUTH SERVICE CO-OPERATIVE BANK LTD. NO.1124, REPRESENTED BY ITS PRESIDENT, EZHUPUNNA SOUTH P.O., THURAVOOR, CHERTHALA, KERALA - 688 532. ## 4. UMADEVI, SECRETARY, EZHUPUNNA SOUTH SERVICE CO-OPERATIVE BANK LTD.NO.1124, EZHUPUNNA SOUTH P.O., THURAVOOR, CHERTHALA, KERALA - 688 532. 5. CO-OPERATIVE ARBITRATION COURT, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM - 695 001. R1 & R5 BY GOVERNMENT PLEADER SRI.P.P.PADMARAJAN. R2 & R3 BY ADV. SMT.ANU SIVARAMAN R4 BY ADVS. SRI.V.A.MUHAMMED SRI.V.RAJASEKHARAN NAIR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- WP(C).No.27943 of 2013 (P) --------------------------------------- ## **APPENDIX** PETITIONER(S)' EXHIBITS:- ------------------------------------- EXT.P1: COPY OF THE FEEDER CATEGORY APPROVED BY THE JOINT REGISTRAR. EXT.P2: COPY OF THE CHARGE MEMO DATED 13.1.2013. EXT.P3: COPY OF THE ORDER DATED 4.2.2013 OF THE THIRD RESPONDENT. EXT.P4: COPY OF THE ARGUMENT NOTE DATED 11.9.2013 OF THE BANK. EXT.P5: COPY OF THE ORDER DATED 25.9.2013. EXT.P6: COPY OF THE PLAINT ALONG WITH THE STAY PETITION (WITHOUT ANNEXURES). EXT.P7: COPY OF THE INTERIM ORDER DATED 23.10.2013 OF THE FIFTH RESPONDENT. ## RESPONDENT(S)' EXHIBITS ---------------------------------------NIL. vku/( true copy ) ## K. Vinod Chandran, J ------------------------------------W.P.(C).No.27943 of 2013-P -------------------------------------Dated this the 11[th] day of February, 2014 ## **JUDGMENT** The petitioner challenges the promotion granted to the 4[th] respondent as Secretary in the 2[nd] respondent-Bank. The admitted service details of the petitioner and the 4[th] respondent are extracted hereunder, as stated in the writ petition: ||Annie<br>(Petitioner)|Umadevi<br>(fourth respondent)| |---|---|---| |Attender|15/05/81|***| |Junior Clerk|01/02/85|11/05/85| |Senior Clerk|01/07/94|01/07/94| |Accountant|14/10/95|01/12/97| |Head Accountant|06/12/97|01/04/05| |Assistant secretary|30/04/05|***| |Secretary|Notpromoted|30/01/13| 2. The petitioner is aggrieved by the promotion granted to the 4[th] respondent as Secretary on 30.01.2013, overlooking her claim. The petitioner, hence, approached the Joint Registrar, who WP(C).27943/2013-P **==> picture [27 x 12] intentionally omitted <==** passed Exhibit P5 order, which directed the petitioner to be promoted in the place of the 4[th] respondent. This order was challenged by the 4[th] respondent before the Arbitration Court and the Arbitration Court, by Exhibit P7 interim order, permitted the 4[th] respondent to be continued as the Secretary. 3. Both parties raised questions of jurisdiction. While the petitioner contends that the Joint Registrar's order is not assailable under Section 69(1) of the Kerala Co-operative Societies Act, 1969 (for brevity “the Act”); the respondents contend that the Joint Registrar could not have assumed jurisdiction, since the _inter se_ seniority disputes between the employees is an issue specifically assigned, under Section 69 of the Act, to the Arbitration Court. The jurisdictional issues need not be considered in the nature of the orders to be passed by this Court. 4. Admittedly the petitioner and the 4[th] respondent were appointed to the post of Senior Clerk on the very same day **,** i.e., 1.7.1994. Within slightly more than an year while the petitioner was promoted as Accountant, the 4[th] respondent was promoted to that post 2 years after the petitioner's promotion. Subsequently, the petitioner was promoted as Head Accountant in 1997 and then as WP(C).27943/2013-P **==> picture [27 x 12] intentionally omitted <==** Assistant Secretary on 30.04.2005. It was thereafter on 1.4.2005 that the 4[th] respondent was promoted to the post of Head Accountant. While considering appointment by way of promotion to the post of Secretary, the 4[th] respondent was chosen above the petitioner. 5. The petitioner would rely on Exhibit P1 Feeder Category Rules, by which the promotion to the post of Secretary is to be made from the feeder category of Assistant Secretary/Chief Accountant/Branch Manager/Chief Cashier. Even if both the posts of Assistant Secretary and Head Accountant are taken to be feeder categories, entitled to be considered for promotion to the post of Secretary, undisputedly the petitioner is senior not only in the post of Assistant Secretary, but also in the post of Head Accountant. 6. The respondent-Bank as well as the 4[th] respondent would contend that the Secretary being a very crucial post in a Co-operative Bank, it is incumbent upon the Bank to look at the credentials of the persons in the feeder category to be promoted as Secretary and only those who enjoy the confidence of the respondent-Bank would be considered for promotion. The respondents would also contend that the petitioner is a person - 4 - WP(C).27943/2013-P against whom disciplinary proceedings were initiated and a penalty of censure was awarded. It is in these circumstances that the 2[nd] respondent supports the 4[th] respondent to the post of Secretary of the 2[nd] respondent-Bank. 7. As has been rightly pointed out by the learned counsel appearing for the petitioner, the Arbitration Court, while passing the interim order Exhibit P7, has proceeded on the strength of decisions which were rendered prior to the amendments brought to Rule 185 of the Kerala Co-operative Societies Rules, 1969 (for short “the Rules”). Rule 185 as it originally stood, conferred an amount of discretion on the employer-Bank, since the mandate under the Rule was only to make promotions “ordinarily” from among the members in the feeder category on the basis of the seniority. However, the amendment brought to Rule 185 made it mandatory that the promotions shall be made only on the basis of seniority in the feeder category. In such circumstance, despite the contention of the respondent-Bank that the 4[th] respondent is more suitable to the post of Secretary, the statutory mandate favours the seniority and the petitioner being the admitted senior of the 4[th] respondent, the promotion post necessarily has to be conceded to her. WP(C).27943/2013-P - 5 - 8. One other factor which assumes significance is the aspect that the petitioner while was imposed with the penalty of censure, admittedly, even going by the counter affidavit of the Bank, one increment of the 4[th] respondent also was withheld for three moths without cumulative effect, during 1994. Withholding of increment even without cumulative effect is definitely a graver penalty than censure. 9. The respondent-Bank also has a contention that, in fact, the 4[th] respondent was granted the charge of the post of Secretary long back, against which the petitioner raised no objection. Having acquiesced to such action of the Bank, the petitioner now cannot turn around and challenge the promotion of the 4[th] respondent, is the contention. Definitely on a challenge being raised then, the Bank would have resisted it pointing out that no promotion as such is being considered. It is trite that an employee has a right only to be considered for promotion, that too only when the employer takes up such consideration. Herein, obviously that was done only on 30.01.2013. The petitioner definitely has a right to be considered, she being not disqualified otherwise. True, the respondent too could be considered, being part of the feeder - 6 - WP(C).27943/2013-P category. However, on consideration, the admitted seniority of the petitioner, as per the mandate of Rule 185, tilts the scales in favour of the petitioner. 10. Exhibit P7 order of the Arbitration Court has followed the decision reported in _**Prakasini v. Joint Registrar**_ **[2006 (1) KLT 199]** , wherein it was declared that the appointment or promotion of employees are to be considered by the Co-operative Arbitration Court and the jurisdiction of the Joint Registrar is ousted in so far as such _inter se_ seniority disputes are concerned. The above proposition is further fortified by the decisions in _**Raveendran v. State of Kerala**_ **[2007 (3) KLT 558]** and _**Cheranallur Service Co-operative Bank Ltd. v. State of Kerala**_ **[2012 (3) KHC 834]** . True, the Joint Registrar's order as per Exhibit P5, is without jurisdiction, since it enters into _inter se_ seniority disputes between employees; who are necessarily to be relegated to the Arbitration Court. But, it is also to be noticed that on that aspect there is an arbitration proceeding initiated as per Exhibit P6; A.R.C.No.85 of 2013, by the 4[th] respondent. Even if the Joint Registrar's order is without jurisdiction, necessarily the Arbitration Court could go into the _inter se_ seniority dispute between the petitioner and the 4[th] - 7 - WP(C).27943/2013-P respondent in the said case. 11. Merely for the reason that the Joint Registrar is found to have acted without jurisdiction, the petitioners claim cannot be negatived. The learned counsel for the petitioner would place before me a decision of the Division Bench of this Court reported in _**Koya v. State of Kerala**_ **[1992 (2) KLT 194],** where the question dealt with was the exercise of power under Article 226, in setting aside an order which is _per se_ illegal or totally without jurisdiction, in circumstances in which such setting aside would result in an illegality being perpetrated. It was held thus: “If an order of an authority is illegal or without jurisdiction, it need not be quashed by the High Court under Art.226 of the Constitution of India if such action would result in restoration or revival of another order, which is also bad. The court is not bound to interfere merely on the establishment of an irregularity or illegality. The court must further be satisfied that such interference is called for to meet, or to further, the orders of justice. If by interfering in the matter the interests of justice are going to suffer, this Court will withhold its arm”. WP(C).27943/2013-P - 8 - 12. A corollary would also apply, since the invocation of powers under Article 226 is to serve the interests of justice and avert injustice. In the present case, an interim order has been passed by the Arbitration Court permitting the 4[th] respondent to be continued, which is _prima facie_ illegal looking at the seniority position of the petitioner and the 4[th] respondent. Even if the Joint Registrar's order is found to be without jurisdiction, that alone cannot sustain the claim of the 4[th] respondent. The sustainability of the interim order passed as per Exhibit P7, deeming the Arbitration Case as one initiated on the seniority dispute between the petitioner and the 4[th] respondent; has to be considered on its merits. 13. As was noticed above, on the amendment of Rule 185, the discretion, if at all any, granted to the employer, the respondent-Bank, to make appointments by way of promotion by undertaking a selection process is no more available. In such circumstance, Exhibit P7 interim order of the Arbitration Court is set aside. The 2[nd] respondent-Bank would necessarily have to appoint the petitioner as the Secretary, pending consideration of the _inter se_ seniority dispute between the petitioner and the 4[th] respondent, by the Arbitration Court. There shall be a direction to the 2[nd] respondent - 9 - WP(C).27943/2013-P to immediately appoint the petitioner to the post of Secretary. The issue with respect to the _inter se_ dispute between the petitioner and the 4[th] respondent shall be considered in Exhibit P6, untrammelled by any observations made by the Joint Registrar in Exhibit P5 order or this Court. Writ petition allowed. No costs. Sd/K.Vinod Chandran Judge. vku/- ( true copy )