High Court of KeralaSingle Judge2019-03-22Writ petition allowed and directions issued for...

V.R. Sunitha v. Kuzhur Service Co-operative Bank Ltd and Others

Case / Petition Number:WP(C).No. 17913 of 2018

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Devan Ramachandran
Judgment Date: 2019-03-22
Court Decision / Holding: The writ petition is allowed. The 1st respondent Bank is directed to promote the petitioner to the post of Secretary if she is not ineligible or disqualified, and to appoint her within one month from the date of receipt of a copy of the judgment. All further proceedings regarding direct recruitment (Ext.P20) to the post of Secretary, to the extent they relate to direct recruitment, are quashed.
Final Disposition: Writ petition allowed and directions issued for promotion; quashing of direct recruitment to the post of Secretary to the extent of direct recruitment.

Parties to the Case

Appellants / Petitioners

V.R.Sunitha

Respondents

Kuzhur Service Co-operative Bank Ltd represented by its President, Kuzhur, Thrissur District
Joint Registrar of Co-operative Societies, Thrissur
Secretary, Kerala Co-operative Examination Board, Thiruvananthapuram
State of Kerala represented by its Secretary, Department of Cooperation, Thiruvananthapuram

Legal Representation & Advocates

Counsels for Petitioners

• Suresh Kumar Kodoth
• K.P. Antony Binu

Counsels for Respondents

• Joseph Kurian Vallamattam (advocate for 1st respondent)
• A.A. Ziyad Rahman
• Lal K. Joseph
• Bimal K. Nath (Sr. GP)

Case Synopsis & Summary

This is a writ petition filed in the Kerala High Court by V.R. Sunitha, then working as Assistant Secretary of Kuzhur Service Co-operative Bank Ltd, challenging denial of promotion to the post of Secretary, which fell vacant on 01-09-2017. The petitioner contends that Rule 185(2) of the Kerala Co-operative Societies Rules (KCS Rules) governs appointments and prohibits direct recruitment to the Secretary post. The Bank argues for direct recruitment to the Secretary post, claiming its bye-laws permit such appointment and that the selection would infuse professionalism. The petition is supported by the State and by the Department of Cooperation, while the Bank maintains it is within its rights to recruit directly as per its bye-laws, and relies on a prior Supreme Court/High Court principle that may permit such by-direct recruitment under certain conditions. The court, noting that Rule 185(2) does not explicitly cover the Secretary post and relying on the Mattanchery Mahajanik Co-operative Urban Bank decision, affirms that direct recruitment cannot contravene the KCS Rules. It directs the Bank to promote the petitioner to Secretary if eligible and appoint within one month, and quashes the direct recruitment process Ext.P20 to the extent it seeks to appoint by direct recruitment. The judgment thus reiterates the supremacy of the KCS Rules over bye-laws in appointments to key posts in co‑operative banks.

Provisions of Law Cited

Kerala Co-operative Societies Act (KCS Act)Rule 185(2) of the Kerala Co-operative Societies Rules

Legal Doctrines & Maxims

de hors

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner submits that the vacancy for the post of Secretary has not been filled and she is fully qualified and eligible for promotion under Rule 185(2) of the KCS Rules; the Bank cannot appoint a Secretary by direct recruitment in contravention of the KCS Rules, even if bye-laws permit it. It is urged that the Feeder Category Rules are not a valid override of the KCS Rules, and that the vacancy should be filled by promotion rather than direct recruitment. The petitioner seeks a directive mandating promotion within a short time frame and quashing any move towards direct recruitment.

Contentions of Respondents

The Bank contends that it does not favor a particular candidate and seeks to fill the Secretary post through direct recruitment as permitted by its bye-laws to infuse professionalism. It cites the provision of Rule 185(2) as supporting direct recruitment and relies on the Mattanchery Mahajanik Co-operative Urban Bank Ltd. decision to justify its stance. The respondents also contend that the petitioner is qualified, suggesting that if promoted, the decision should be implemented de hors feeder category rules, unless legally challenged. Overall, they argue for upholding the bye-laws and the direct recruitment process while contesting the petition’s prayer for immediate promotion.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Mattanchery Mahajanik Co-operative Urban Bank Ltd, Kochi and Another v. Rejendran M. and Others	2016(2) KHC 781	Positive	The case is cited as establishing the legal principle that direct recruitment cannot override the Kerala Co-operative Societies Rules; the present judgment adopts this principle to hold that the Bank cannot appoint the Secretary by direct recruitment in contravention of the KCS Rules.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** # **FRIDAY ,THE 22ND DAY OF MARCH 2019 / 1ST CHAITHRA, 1941** ## **WP(C).No. 17913 of 2018** ## **PETITIONER/S:** **V.R.SUNITHA, AGED 48 YEARS, W/O. JAYAKUMAR, R/AT VALIYOLIPARAMBIL,P.O KUZHUR, WORKING AS ASST. SECRETARY,KUZHUR SERVICE CO-OPERATIVE BANK LTD NO. 540, THRISSUR DISTRICT.** **BY ADVS. SRI.SURESH KUMAR KODOTH SRI.K.P.ANTONY BINU** ## **RESPONDENT/S:** - **1 KUZHUR SERVICE CO-OPERATIE BANK REPRESENTED BY ITS PRESIDENT P.O KUZHUR, THRISSUR DISTRICT 680 734.** - **2 JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES THRISSUR, 680 020** - **3 SECRETARY, KERALA CO-OPERATIVE EXAMINATION BOARD,THIRUVANANTHAPURAM 695 001.** - **4 STATE OF KERALA REPRESENTED BY ITS SECRETARY,DEPARTMENT OF COOPERATION, THIRUVANANTHAPURAM, 695 001.** **BY ADVS. SRI.JOSEPH KURIAN VALLAMATTAM** **SRI.A.A.ZIYAD RAHMAN SRI.LAL K.JOSEPH SRI.BIMAL K.NATH-SR.GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 17913/18 2 ## **JUDGMENT** The petitioner says that she is working as an Assistant Secretary in the services of the 1[st] respondent Co-operative Bank and complains that she has been denied her legitimate promotion to the post of Secretary, under Rule 185(2) of the Kerala Co-operative Societies Act (KCS Act for short) which, fell vacant on 01.09.2017. She alleges that contrary to the provisions of the KCS Rules, the Bank is now attempting to appoint another person of their choice through direct recruitment and that this is in flagrant violation of Rule 185(2) of the KCS Rules. 2. Sri. A.A. Ziyad Rahman, the learned counsel for the 1[st] respondent-Bank, in response to the allegation of the petitioner, submits that his client does not have any interest in any particular candidate, but that they decided to fill up the post of Secretary through direct recruitment because the approved Bye-laws of the WPC 17913/18 3 Bank permits such appointment and also because they wanted to infuse professionalism through qualified and competent persons into the working of the Bank. 3. Even when Sri. Ziyad Rahman makes his case for the Bank as afore, the specific submissions of Sri. Bimal K. Nath, the learned Senior Government Pleader, is that the 1[st] respondent-Bank cannot make any appointment in contravention of the KCS Rules even if their Bye-laws permit it. He says that declaration of law to this effect has been made by this Court through the judgment in **Mattanchery Mahajanik** **Co-operative Urban Bank Ltd, Kochi and Another v. Rejendran M. and Others [2016(2) KHC 781]** . He further says that the counter affidavit of the 2[nd] respondent also clearly avers that the petitioner is fully qualified and entitled to be appointed as the Secretary of the Bank, going by Rule 185(2) of the KCS Rules. He then adds that WPC 17913/18 4 since the petitioner concededly has the qualification and eligibility to be promoted as the Secretary, the 1[st] respondent must promote her under Rule 185(2) _de hors_ their Feeder Category Rules which have been framed contrary to the KCS Rules. 4. Sri. Suresh Kumar Kodoth, the learned counsel for the petitioner, affirms the submissions made by the learned Senior Government Pleader and asserts that the vacancy has still not yet been filled up and that the selection process is still being continued by the 1[st] respondent. He, therefore, prays that on account of the conceded position that his client is fully qualified and eligible for being promoted, this Court direct the Bank to do so within a short time frame. 5. Taking note of the afore submissions and particularly being guided by the judgment of this Court in **Mattanchery Mahajanik** ( _supra_ ), I WPC 17913/18 5 am of the firm view that since Rule 185(2) of the KCS Rules does not take in the post of Secretary, thus enabling the Bank to appoint a person by direct recruitment, the 1[st] respondent- Bank cannot make any such appointment in contravention of the KCS Rules, even if their approved Bye-laws permit so. This is the indubitable declaration of law by this Court and I am bound by the same. In the afore circumstances, I order this writ petition and direct the 1[st] respondent-Bank to forthwith consider the promotion of the petitioner; and if there is no ineligibility or disqualification against her, then to appoint her as its Secretary within a period of one month from the date of receipt of a copy of this judgment. Needless to say, all further proceedings pursuant to Ext.P20 notification, to the extent to which it relates to the appointment by direct WPC 17913/18 6 recruitment to the post of the Secretary of the 1[st] respondent-Bank, will stand quashed. ## **Sd/-** **DEVAN RAMACHANDRAN** RR **JUDGE** WPC 17913/18 7 ## APPENDIX ||APPENDIX| |---|---| |PETITIONER'S/S|EXHIBITS:| |EXHIBIT P1|TRUE COPY OF FEEDER CATEGORY RULES| |EXHIBIT P2|TRUE COPY OF STAFF PATTERN| |EXHIBIT P3|TRUE COPY OF PROCEEDINGS DATED 08-07-| ||2013 BY 2ND RESPONDENT| |EXHIBIT P4|TRUE COPY OF B.COM DEGREE CERTIFICATE| ||DATED 14-03-1995 OF UNIVERSITY OF| ||CALICUT| |EXHIBIT P5|TRUE COPY OF CERTIFICATE DATED 29-09-| ||2013 AWARDED BY CO-OP EXAM BOARD.| |EXHIBIT P6|TRUE COPY OF CERTIFICATE DATED 29-11-| ||1997,ISSUED BY INTEGRATED CO-| ||OPERATIVE DEVELOPMENT PROJECT.| |EXHIBIT P7|TRUE COPY OF CERTIFICATES DATED 28-| ||04-1998, ISSUED BY INTEGRATED CO-| ||OPERATIVE DEVELOPMENT PROJECT.| |EXHIBIT P8|TRUE COPY OF CERTIFICATE ISSUED BY| ||KERALA STATE CO-OPERATIVE BANK FOR| ||ATTENDING TRAINING FROM 30-06-2008-2-| ||7-2008 INTEGRATED CO-OPERATIVE| ||DEVELOPMENT PROJECT| |EXHIBIT P9|TRUE COPY OF CERTIFICATE DATED 19-02-| ||2011 ISSUED BY INSTITUTE OF CO-| ||OEPRATIVE MANAGEMENT| |EXHIBIT P10|TRUE COPY OF CERTIFICATE DATED 13-3-| ||2018 ISSUED BY INTEGRATED CO-| ||OPERATIVE DEVELOPMENT PROJECT.| |EXHIBIT P11|TRUE COPY OF REQUEST LETTER DATED 03-| ||06-2016 SUBMITTED BEFORE FIRST| ||RESPONDENT| |EXHIBIT P12|TRUE COPY OF REPRESENTATION DATED 20-| ||07-2017 BEFORE 2ND RESPONDENT.| |EXHIBIT P13|TRUE COPY OF DECISION NO. 8 DATED 19-| WPC 17913/18 8 08-2017 OF 1ST RESPONDENT EXHIBIT P14 TRUE COPY OF PROCEEDING DATED 26-082017 OF 2ND RESPONDENT EXHIBIT P15 TRUE COPY OF REPRESENTATION DATED 1601-2018 BEFORE 1ST RESPONDENT EXHIBIT P16 TRUE COPY OF REPRESENTATION DATED 0302-2018 BEFORE 2ND RESPONDENT EXHIBIT P17 TRUE COPY OF REPRESENTATION DATED 3- 03-2018 BEFORE 2ND RESPONDENT EXHIBIT P18 TRUE COPY OF ORDER DATED 06-04-2018 EXHIBIT P19 TRUE COPY OF REPRESENTATION DATED 3- 03-2018 BEFORE 3RD RESPONDENT EXHIBIT P20 TRUE COPY OF NOTIFICATION DATED 1605-2018 ISSUED BY 3RD RESPONDENT. ## RESPONDENTS' EXHIBITS: EXHIBIT R1(A) TRUE COPY OF COMMUNICATION DATED 15.03.2018.