V.S. Ramakrishnan v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **WEDNESDAY, THE 4TH DAY OF APRIL 2018 / 14TH CHAITHRA, 1940** **WA.No. 1555 of 2017** **IN WP(C) 25660/2003 of HIGH COURT OF KERALA DATED 01-12-2015** ## **APPELLANT(S)/PETITIONER IN W.P(C) NO 25660/2003:** **V.S.RAMAKRISHNAN ASSISTANT SECRETARY(RETIRED) WANDOOR SERVICE CO-OPERATIVE BANK LTD, WANDOOR P.O, MALAPPURAM** **BY ADV.SRI.P.P.JACOB** ## **RESPONDENT(S)/RESPONDENTS 1 TO 4 IN W.P(c) 25660/2003:** **1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT CO-OPERATIVE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001** **2. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES(G) MALAPPURAM,** **OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES(G) MALAPPURAM.** **3. THE WANDOOR SERVICE CO-OPERATIVE BANK LTD WANDOOR, MALAPPURAM REPRESENTED BY ITS PRESIDENT.** **4. M. MEDINI,SECRETARY(RETIRED) WANDOOR SERVICE CO-OPERATIVE BANK LTD, WANDOOR, MALAPPURAM** **R3 BY ADV. SRI.B.S.SWATHY KUMAR R3 BY ADV. SMT.ANITHA RAVINDRAN** **R4 BY ADV. SRI.K.ANAND** **R1 BY GOVERNMENT PLEADER SMT. K.R. DEEPA.** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 04-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WA.No. 1555 of 2017** **APPENDIX** **PETITIONER(S)' EXHIBITS:** **ANNEXURE I TRUE COPY OF THE JUDGMENT IN O.P. 1423/98 DATED 16.12.2003** ## **RESPONDENT(S)' EXHIBITS: NIL** ## **RP** **//TRUE COPY//** **PA TO JUDGE** ## **C.T.RAVIKUMAR, J.** ## **& MARY JOSEPH, J.** ======================== **W.A.No. 1555 OF 2017** ======================== Dated this the 4[th] day of April, 2018 ## **J U D M E N T** ## **C.T.RAVIKUMAR, J.** The unsuccessful petitioner in W.P.(C)No. 25660 of 2003 preferred this appeal on being aggrieved by the judgment passed thereon. He filed the said Writ Petition seeking quashment of Ext. P7 and P10 orders passed respectively by the second and first respondents. Consequential reliefs were also sought for. As per Ext. P7, the promotion granted to the appellant by granting relaxation of qualification, invoking the power under Rule 185 (8) of the Co-operative Societies Rule (for brevity 'Rule' only) was interfered by the 2[nd] respondent. The 1[st] respondent, in the appeal, affirmed the said order passed by the 2[nd] respondent as per Ext.P10. After hearing the learned counsel on both sides, and considering the relevant provisions, the learned Single Judge dismissed the Writ Petition as per impugned judgment. It is in the said circumstances, this writ appeal has been preferred. **W.A.No. 1555 OF 2017** 2 2. The service particulars of the petitioner vis-a-vis the 4[th] respondent requires reference for a proper consideration of this appeal. The petitioner entered into the service of the 3[rd] respondent as a Junior Clerk on 16.04.1980. He was promoted as Senior Clerk on 01.05.1982. Thereafter, he was given further promotions as Accountant on 02.05.1983, as Internal Auditor on 30.06.1997 and thereafter as Assistant Secretary on 01.07.1997. In the case of the 4[th] respondent, she commenced her service under the 3[rd] respondent on 09.05.1983 as Junior Clerk. She was promoted as a Senior Clerk and thereafter as Internal Auditor on 01.07.1997. Later, she was promoted as a Manager on 01.12.1998. While they were working in the respective posts as aforesaid, there occurred vacancy in the post of a Secretary in the bank, evidently on the retirement of the incumbent holding the said post, on 29.02.2000. In fact, the vacancy in the post of Secretary occurred on 01.03.2000. The appellant who was working as Assistant Secretary was put in additional charge of the post of the secretary and thereafter the Board of **W.A.No. 1555 OF 2017** 3 Director of the bank passed Resolution No.16 on 20.10.2000, as is evident from Ext.P4, resolved to request the Registrar to grant approval of relaxation of qualifications for promoting the appellant to the post of a Secretary. In fact, such a resolution was passed pursuant to the representations dated 13.12.1999, 28.3.2000 and 20.7.2000 of the appellant seeking relaxation of the rules as provided under Rule 185(8) of 'the Rules' and to promote him to the post of Secretary. Ext.P4 was recommended by the Joint Registrar. Thereupon, the Registrar of Co-operatives Societies as per Ext. P5 dated 07.02.2001 granted approval for relaxation. In fact, Ext.P4 would reveal that as per resolution No.16 the Board of Director had virtually, resolved to give exemption to the appellant from qualification, for giving promotion, subject to the permission of the Registrar and further to request the Registrar to give exemptions. Consequently, as per Ext.P6 dated 09.02.2001 the appellant was promoted as Secretary of the bank with effect from 07.02.2001. Aggrieved by Ext.P6, the 4[th] respondent filed O.P.No.4770 of 2001. Based **W.A.No. 1555 OF 2017** 4 on the directions in the judgment passed thereon the Joint Registrar, who was discharging the function of the Registrar, invoked the power of the Registrar and passed Ext. P7 order. As per Ext. P7 order, it was held that the 4[th] respondent who was the senior most qualified hand for promotion to the post of a Secretary of the bank was not heard at the time of promotion, rather, at the time of granting relaxation to the appellant and being the senior most qualified person in the feeder category for promotion to the post of a secretary she was entitled to be promoted against the vacancy of Secretary occurred on 01.03.2000. Subsequent to the passing of Ext. P7 order, the appellant herein had approached this Court by filing O.P.No.8699 of 2002. In fact, Ext.P7 was produced and marked in the said Writ Petition as Ext. P10. This Court as per Ext.P8 judgment disposed of the said Writ Petition. 3. A perusal of Ext. P8 would reveal that the learned single judge had taken into account the precarious situation occurred by issuance of two orders passed by the authorities viz., the Registrar himself and then the officer exercising the **W.A.No. 1555 OF 2017** 5 powers of Registrar. Evidently, such conflicting orders were passed in relation to the very same subject matter. As noticed hereinbefore the Registrar had granted approval for relaxation of rule governing qualification, given to the petitioner as per Ext.P5 order dated 07.02.2001. Pursuant to the judgment in W.P.(C)No. 4770 of 2001 the Joint Registrar exercising the powers of Registrar passed Ext. P7 order. At the time of granting relaxation, the 4[th] respondent who was senior most qualified hand for promotion to the post of the secretary was not heard and she being senior most person possessing the prescribed qualification on the occurrence of vacancy she was rightful claimant for the post of the Secretary. The learned Single Judge took note of this situation. In fact, Ext.P7 order was passed by the Joint Registrar exercising the powers of Registrar. Approval for relaxation of qualification in favour of the appellant, was produced as Ext.P10 and it is in question. As per Ext.P8 judgment, the learned single judge held that both the said orders could be challenged before the Government in **W.A.No. 1555 OF 2017** 6 invocation of the powers under Section 87 of Kerala Cooperative Societies Act and consequently, granted liberty to the petitioner/appellant herein as also the 4[th] respondent to prefer revision petitions before the Government challenging the orders within the time limit stipulated thereunder. Further, it was ordered therein thus:- “ The present arrangement for manning the post of a secretary will continue till the disposal of the revision petition by the Government and who ever succeeds, will be entitled to all consequential benefits notionally.” 4. Availing the liberty granted by this Court as per Ext.P8 judgment in O.P.No.8699 of 2002, both the appellant and the 4[th] respondent herein filed revision petitions. The revision petition filed by the appellant herein, before the Government, is produced as Ext. P9. Evidently, the 4[th] respondent herein had also filed the revision petition. Those revision petitions were considered jointly by the Government and Ext. P10 order dated 02.05.2003 was passed. As per Ext.P10, Government had arrived at a conclusion that there **W.A.No. 1555 OF 2017** 7 is no illegality or irregularity in Ext. P7 order passed by the Joint Registrar and consequentially declined to interfere with Ext. P7 order. In other words, the order holding that the 4[th] respondent is the rightful claimant for promotion to the post of Secretary of the bank was upheld by the bank. Essentially, it is in the said circumstances that challenging Exts.P7 and P10, the appellant preferred the Writ Petition, the judgment of which is under challenge in this appeal. 5. The core contention of the appellant is that he is the senior most person available in the feeder category at the time of occurrence of the vacancy in the post of the Secretary. Going by Rule 185(1) of 'the Rules' promotion to the said post is to be made only by promotion. Being the senior most candidate and at the same time considering the fact that he was lacking the basic qualification for appointment to the said post, the Board of Directors of the bank thought it fit to invoke the power under Rule 185 (8) to grant relaxation from possessing the required qualification for promotion and consequently, passed resolution in that 8 ## **W.A.No. 1555 OF 2017** regard as can be seen from Ext.P4. According to the learned counsel for the appellant, there is no illegality in the said action. 6. It is further submitted that when the said resolution got approval from the Registrar, as can be seen from Ext.P5, he should be deemed as a person possessing qualification for the promotion to the post of Secretary. The said contention is absolutely untenable in the light of the decision in **Vijayamma Vs. St.Mary's U.P.School, reported in [2001** **(2) KLT 469]** . In the said decision it was held that an exemption from a qualification, would not exempt a person possessing an equivalent qualification. Certainly, after granting exemption/relaxation it cannot be held that the exempt is not having that qualification which was relaxed and therefore, thereby disentitled to be considered for promotion. But, at the same time, in the case on hand, the question to be decided is whether the committee was justified in ignoring the rightful claim of the 4[th] respondent as the senior most qualified hand for promotion to the post **W.A.No. 1555 OF 2017** 9 of Secretary while granting such relaxation. 7. The learned counsel appearing for the appellant contended that there is only one sanctioned post of Assistant Secretary and therefore, it is absolutely incorrect to say that besides him, another candidate was also available for being considered for promotion, in the feeder category. We are of the considered view that the said contention of the petitioner cannot be sustained in view of his own pleadings. In this context, it is only apt to refer to the pleadings of the appellant in paragraph 2 of the Writ Petition, it reads as follows:- “The 4[th] respondent is far junior to the petitioner. She entered services on 09.05.1983 as Junior Clerk. After her promotion as Senior Clerk etc, she was promoted as Internal Auditor on 01.07.1997 and thereafter as Manager on 01.12.1998.” 8. In this situation, it is also relevant to refer to Ext. P4. Ext. P4 is the resolution of approval of relaxation granted by the bank in favour of the appellant dated 13.12.1999. The following recital from Ext. P4 assume relevance in the 10 ## **W.A.No. 1555 OF 2017** contextual situation:- 3.12.99 ത�യത�ക� 8540/98 ആർ.ഡ�.ഐ.എസ� കലനപക�ര� മലപറ� ജ��യ�ന� ര��സ�ർ അ�ഗ�കര�ച�ടളള ബ�ങ�നന ഫ�ഡർ ക�റഗറ� സബ� റൾ (6) (7) പക�ര� നസകടറ� തസ�ക സ�ധ�രണ ഗത�യ�ൽ ഉജ01�ഗകയറ� വഴ� ന�കജ4ണത�, അത�നളള ഫ�ഡർ ക�റഗറ� ജ8�സകൾ അസ�സന� നസകടറ�/ മ�ജന�ർ /ച�ഫ� . അക<ണന� എന�വയമ�ണ� 9. The very resolution passed by the respondent bank itself would reveal that feeder category consists of 3 posts viz. Assistant Secretary/Manager/Chief Accountant. This fact was taken into account by the Joint Registrar while passing Ext.P7 and by the Government while passing Ext.P10. In the said circumstances, the petitioner cannot be heard to contend that there is only one feeder category for promotion to the post of secretary, viz., Assistant Secretary. In fact, the indisputbale position is that Assistant Secretary/Manager/Chief Accountant constitute the feeder category, for promotion to the post of Secretary. The very recital in paragraph 2 of the Writ petition filed by the petitioner would also reveal that on 01.12.1998, the 4[th] respondent stood promoted to the post of a Manager. It is **W.A.No. 1555 OF 2017** 11 only subsequent to her promotion as Manager that the post of secretary fell vacant on 01.03.2000. In such circumstances, we are of the considered view that the contention of the appellant that he was the sole candidate available for promotion to the post of secretary in the feeder category is not only incorrect but also misleading. 10. The facts expatiated thus would reveal that on the date of occurrence of vacancy viz; 01.03.2000 the only candidate available in the service of the 3[rd] respondent in the feeder category, possessing the requisite qualification for promotion to the post of Secretary was the 4[th] respondent. Though the appellant was working as the Assistant Secretary viz., one of the posts in the feeder category, he was not possessing the qualification of graduation required for promotion to the said post of Secretary. The petitioner did not have the requisite qualification of graduation for promotion to the post of Secretary on the date of occurrence of vacancy in the post of Secretary. If he was qualified, there was absolutely no reason or necessity to grant **W.A.No. 1555 OF 2017** 12 relaxation to him from possessing the prescribed qualification of graduation. The very fact that he was granted relaxation itself would reveal that he was lacking the requisite qualification for promotion to the post of the Secretary. Therefore, the question is when a qualified candidate was available in the feeder category on the date of occurrence of vacancy, detrimental to the interest of such a qualified candidate whether relaxation could have been effected for the purpose of effecting promotion to the post of Secretary. 11. We have perused the resolution passed by the bank for the purpose of granting relaxation to the appellant. In this contextual situation it is relevant to refer to Section 185(8) of the Act. Going by the said provision whenever relaxation is granted the reasons therefore have to be recorded. On scanning of Ext. P4, it is seen that the following reasons have been given there:- The appellant was working as Assistant Secretary from 01.07.1997. He has been holding additional charge of secretary on 01.03.2000. **W.A.No. 1555 OF 2017** 13 Further that for the progress, smooth functioning and better interest of the Bank the appellant has to be appointed by promotion. It can be seen that in the very same resolution itself, it is stated that requisite qualification for promotion to the post of Secretary is possession of graduation. After narrating the said aspects, it was stated therein thus:- "ബ�ങ�നന ഭ�വ� പജര�ഗത�, സഗമമ�യ പവർ4ന�. ഉ4മ ത�ൽ8ര1� എന�വയ� 8ര�ഗണ�ച� ട�യ�നന ഉജ01�ഗകയറ� നൽക� ന�യമ�ജകണത� അന�വ�ര1മ�ണ� എന� ഭരണസമ�ത�ക� ജബ�01നGട�ടണ�. ഉജ01�ഗകയറ� നൽകനത�ന� സർവകല�ശ�ല ബ�ര0 സമ�0�കല�ൽ ന�ന� ര��സ�റനട അനവ�04�ന� വ�ജ0യമ�യ� ശ�.വ�.എസ�. ര�മക1ഷന� ഇളവനവ0�ക�ൻ ഈ ഭരണസമ�ത� ജയ�ഗ� ത�രമ�ന�കകയ�, അപക�ര� ഇളവ� സഹകരണ സ�ഘ� അനവ0�യനത�ന� ബഹമ�നനGട ര��സ�ജറ�ട� ഉച�ത മ�ർഗ4�ൽ അജ8ക�ക�ൻ ത�രമ�ന�കകയ� നചയന.” 12. True that perusal of the provisions under Section 185(8) of the Act would reveal that the power to grant relaxation vests with the committee. But, when discretion is **W.A.No. 1555 OF 2017** 14 conferred on an authority, it has to be exercised in accordance with the relevant provisions. In other words, ignoring the provisions merely because discretion is vested with an authority, an authority cannot act in a capricious manner while exercising that power. Exercise of such a power without giving due regard to the provisions of law would be amount to arbitrariness. While considering the exercise of discretion the maxim 'Discretio est discernere per legem quid sit justum' means 'Discretion is to know through law what is just' is to be borne in mind. In this contextual situation it is also apt to refer to the decision of the Hon'ble Apex Court in **Aero Traders Pvt. Ltd. v. Ravinder Kumar Suri** reported in [ **AIR 2005 SC 15].** The Apex Court held therein thus:- “The word "discretion" connotes necessarily an act of a judicial character, and, as used with reference to discretion exercised judicially, it implies the absence of a hard-and- fast rule, and it requires an actual exercise of judgment and a consideration of the facts and circumstances which are necessary to make a sound, fair and just determination, and a **W.A.No. 1555 OF 2017** 15 knowledge of the facts upon which the discretion may properly operate. (See 27 Corpus Juris Secundum page 289). When it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reason and justice and not according to private opinion; according to law and not humour. It only gives certain latitude or liberty accorded by statute or rules, to a judge as distinguished from a ministerial or administrative official, in adjudicating on matters brought before him.” Therefore, to eschew the elements of arbitrariness discretion has to be exercised with due regard to the provisions of law and accompanying circumstances. When a qualified hand is available in a feeder category for promotion to a particular post without assigning proper reasons if relaxation is given to an unqualified hand it cannot be said to be a rightful exercise of discretion. 13. It is to be noted that all these aspects were virtually considered by the Joint Registrar while passing Ext. P7 order. Regarding factual aspects pertaining to the service particulars of the appellant and the 4[th] respondent, there is no dispute. The fact that the 4[th] respondent was having the **W.A.No. 1555 OF 2017** 16 qualification for promotion to the post of Secretary and that the appellant was not having said qualification, cannot disputed and in fact, it is not disputed. In such circumstances, on going through Ext. P4, we do not find any reason to hold that the Joint Registrar had committed any illegality while passing Ext.P7 order holding the 4[th] respondent as the sole person available in the feeder category for promotion on the date of occurrence of vacancy in the post of Secretary viz; on 01.03.2000. 14. The appellant is having a case that the Joint Registrar was not justified in holding that 4[th] respondent as the rightful candidate to be granted promotion. In this context it is relevant to refer to his pleadings in Ext. P9 revision petition. The case is that he is the rightful candidate as he being the senior most person in the category of Assistant Secretary. The committee had granted relaxation lawfully and by virtue of the relaxation granted is entitled to be promoted to the post of Secretary, is his contention. In the revision petition filed by the 4[th] respondent she claimed **W.A.No. 1555 OF 2017** 17 for appointment to the post of the Secretary contending that as on date of occurrence of vacancy, she was the senior most qualified hand available in the feeder category. In the facts and circumstances, being called upon to consider the matter especially in the light of the decision of this Court in Ext. P8 judgment, the Joint Registrar cannot be said to have committed an error in identifying the 4[th] respondent as the rightful claimant for promotion to the post of Secretary in the bank, which occurred on 01.03.2000. 15. As per Ext. P10 Government had considered all the relevant aspects and found no reason to interfere with the order passed by the Joint Registrar in Ext. P7. All these aspects were carefully considered by the learned Single Judge to arrive at the conclusion that there was absolutely no justification in granting relaxation when the 4[th] respondent, the person who was possessing all requisite qualification was available for being considered for promotion to the post of Secretary. Upshot of the discussion is that we do not find absolutely any reason to interfere with the judgment passed 18 ## **W.A.No. 1555 OF 2017** by the learned Single Judge. In the said circumstances, this appeal must fail and accordingly, dismissed. Sd/- **C.T.RAVIKUMAR JUDGE** Sd/- **MARY JOSEPH JUDGE** rp/07.04