V.S. Sasidharan; Marykutty Joseph; K.V. Joy v. K.T. Mathew; Idukki District Co-operative Bank Ltd.; Joint Registrar of Co-operative Societies; Emily Philip

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ASHOK BHUSHAN & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **TUESDAY, THE 15TH DAY OF JULY 2014/24TH ASHADHA, 1936** ## **WA.No. 2201 of 2009 ( )** **-----------------------------------(AGAINST THE JUDGMENT IN OP.NO. 12988/2002 DATED 28-08-2009) -----------------------------** **APPELLANT(S)/RESPONDENTS 3, 4 & 6 IN THE ORIGINAL PETITION :** - **-----------------------------------------------------------------------------------------------------** **1. V.S.SASIDHARAN,SENIOR ACCOUNTANT (NOW BRANCH MANAGER), IDUKKI DISTRICT CO-OPERATIVE BANK LTD., IDUKKI.** **2. MARYKUTTY JOSEPH,** - **SENIOR ACCOUNTANT (NOW BRANCH MANAGER), IDUKKI DISTRICT CO-OPERATIVE BANK LTD., IDUKKI.** **3. K.V.JOY, SENIOR ACCOUNTANT (NOW BRANCH MANAGER), IDUKKI DISTRICT CO-OPERATIVE BANK LTD., IDUKKI.** **BY ADVS.SRI.JOICE GEORGE SRI.B.UNNIKRISHNA KAIMAL** ## **RESPONDENT(S)/PETITIONER & RESPONDENTS 1, 2 & 5 IN THE ORIGINAL PETITION:** - **--------------------------------------------------------------------------------------------------------------------------** **1. K.T.MATHEW,SENIOR ACCOUNTANT (NOW BRANCH MANAGER), IDUKKI DISTRICT CO-OPERATIVE BANK LTD., IDUKKI.** **2. IDUKKI DISTRICT CO-OPERATIVE BANK LTD.,IDUKKI, REPRESENTED BY ITS GENERAL MANAGER.** **3. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), IDUKKI/ADMINISTRATOR, IDUKKI DISTRICT CO-OPERATIVE BANK.** **4. EMILY PHILIP, SENIOR ACCOUNTANT (NOW BRANCH MANAGER), IDUKKI DISTRICT CO-OPERATIVE BANK LTD., IDUKKI.** **R1 BY ADVS. SRI.M.D.SASIKUMARAN SRI.K.S.HARIHARAPUTHRAN** **SRI.GEORGE MATHEW R2 & R4 BY SRI. GEORGE POONTHOTTAM, SC R3 BY GOVERNMENT PLEADER SRI.VIJU THOMAS** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **ASHOK BHUSHAN, J & A.M.SHAFFIQUE, J. * * * * * * * * * * * * *** W.A.No.2201 of 2009 ---------------------------------------- Dated this the 15[th] day of July 2014 ## **J U D G M E N T** ## **Shaffique,J** Respondents 3, 4 and 6 in the original petition are the appellants. The original petition is filed by the 1[st] respondent herein claiming promotion on the basis of Ext.P2 seniority list prepared by the 2[nd] respondent bank. 2. The facts involved in the original petition would disclose that the petitioner was appointed in the bank in the year 1982 as a Clerk after written test and interview complying with Rule 187 of the Kerala Co-operative Societies Rules, 1974. By virtue of the aforesaid provision, 50% of the vacancies are allotted to service quota and 50% on merit. Petitioner was rank No.3 in the merit quota and rank No.5 in the combined seniority list. Respondents 3 to 5 are persons who came from the service quota. According to the W.A.No.2201/2009 2 petitioner, they were below the petitioner in the rank list. The bank published a provisional seniority list at Ext.P1 as per Resolution No.813 dated 19/11/1985. The contention of the petitioner is that subsequently another seniority list was prepared by adopting the ratio 1:1 from the service quota and merit quota. Ext.P2 is the said rank list. As per Ext.P2, the petitioner was entitled to get promotion in preference to respondents 3 to 5. Certain employees challenged Ext.P2 promotion list before the Assistant Registrar, Co-operative Societies (ARC). Though the same was originally allowed as per Ext.P6 order, it was later set aside in an appeal filed by the petitioner. Ext.P7 is the judgment in the appeal on the ground that affected parties were not impleaded. Subsequently another Arbitration case was filed challenging Ext.P2 which was dismissed as not maintainable. Though the order of ARC was challenged before this Court in O.P.No.751 of 1989, the same came to be dismissed and therefore Ext.P2 rank list had become final. 3. But, despite the existence of Ext.P2, his juniors W.A.No.2201/2009 3 were promoted and therefore the petitioner sought for a declaration that the respondent bank was under obligation to follow 1:1 ratio for fixing the seniority and the petitioner is entitled to get promotion as per the final seniority list prepared in terms of Ext.P2. He also sought for setting aside Ext.P6, an order passed by the Joint Registrar, Co-operative Societies upholding the seniority list Ext.P1. 4. Counter affidavit is filed by the party respondents disputing the claim of the petitioner. According to them, there is no provision which enables preparation of seniority list on the basis of 1:1 ratio between the open merit candidates and society quota candidates. Reference is made to the Revised Service Regulations which, according to them, clearly indicates that the criteria for seniority of employees in different categories as the rank given in the resolution of the Executive Committee/Board of Directors while making the appointment. 5. Respondents also referred to a subsequent Resolution passed by the bank on 07/12/1987 whereby the W.A.No.2201/2009 4 bank had adopted the seniority list Ext.P1 published on 22/11/1985. The said resolution has not been challenged by any person and therefore the petitioner cannot unsettle the seniority of the respondents which had been continuing for the last several years altogether. It is further contended that respondents were promoted on the basis of Ext.P1 seniority list, all promotions in the Bank were made on that basis and therefore the petitioner could not have challenged the seniority and promotions given to the respondents after a considerably long period. 6. Learned counsel for the appellants relies upon Clause 6D of the Revised Service Regulations which reads as under: _“_ _**6D** . The criteria for seniority of the employees in different categories shall be the ranking given in the resolution of the Executive Committee / Board of Directors making the appointment as the case may be, provided that the existing list of seniority shall prevail.”_ 7. Learned counsel also relies upon the judgment of W.A.No.2201/2009 5 this Court in **Vijayan v. State of Kerala** _[1996(2) KLT 980]_ to contend that 50% reservation does not postulate the ratio of 1:1 between the general candidates and the society quota candidates. Paragraph 8 of the said judgment reads as under: _“In the background of these submissions, this court has to see whether the 50% society quota has to be distributed among the recruits by applying 1:1 ratio between the general candidates and the society quota candidates. The normal method of appointment of the Bank is by direct recruitment from the open market. But certain concessions have been granted to the employees of the member societies of an apex society for being appointed to the 50% of the vacancies arising in an apex society. Such candidates are given a weightage by way of making their experience a necessary additional qualification. The 50% reservation can definitely be reduced into a 1:1 ratio. But the rule does not postulate a ratio of 1:1 between the general candidates and the society quota candidates. The prescription of quota for appointments has always created a lot_ W.A.No.2201/2009 6 _of case law by the disappointment and disgruntled officers, by the Supreme Court as well as by this Court on the quota and rota system. A quota system may be implemented in various forms. It can be applied vacancywise, cadrewise, periodicwise etc. In this case, it is vacancywise. Therefore, unless the rule specifically lays down that the vacancies must be filled up alternatively between a general candidate and a society quota candidate, it is not possible to lay down that R.187 mandates such as a methodology. When 20 persons were selected and appointed at a given point of time, it is enough if 10 society quota candidates are appointed. The society quota candidates cannot insist that they must be placed in the list either as 1, 3, 5 or 2, 4, 6 etc. No such interpretation is possible by a plain reading of R.187. It is enough that the Bank maintains 50% society quota at a given selection. No other rights or privileges can be claimed by the society quota candidates.”_ 8. The learned Single Judge, having relied upon the entire facts and circumstances involved in the matter, formed an opinion that in so far as the challenge against W.A.No.2201/2009 7 Ext.P2 has not been upheld by the authorities under the Cooperative Societies Act and this Court did not interfere with the same, the bank has to follow Ext.P2 and promotions are to be given to the petitioner on the basis of the said seniority list. 9. The learned counsel for the appellants however submits that in so far as there is no provision enabling fixation of seniority list based on 1:1 ratio from the service quota and open merit quota, Ext.P2 seniority list has no legs to stand and therefore the judgment is liable to be set aside. 10. On the other hand, learned counsel for the 1[st] respondent would contend that going by the factual circumstances involved in the case, it is clear that challenge to Ext.P2 was allowed by the Assistant Registrar of Cooperative Societies but the said order came to be set aside by the Appellate Tribunal. It was during the relevant time when the appeal was pending that Ext.R1(b) Resolution dated 17/12/1987 was passed which by itself did not give any right to the appellants to contend that Ext.P1 list is still W.A.No.2201/2009 8 in force. It is therefore contended that when there is no valid challenge to Ext.P2 list and this Court in Ext.P3 judgment did not interfere with the decision of ARC, it is not possible for the bank to take a different view in the matter and therefore the judgment of the learned Single Judge has to be confirmed. 11. Having regard to these contentions, it is relevant to note that the regulation which prescribes preparation of seniority list is clearly spelt out in Clause 6D of the Revised Service Regulations. The Rule does not say that seniority list has to be prepared by adopting 1:1 ratio. This position is confirmed by the judgment of the learned Single Judge in **Vijayan** ’s case (supra) as well while considering Rule 187 of the Co-operative Societies Rules. In the said circumstances, there is no reason why the bank should adopt a different procedure at all. It is also brought to our notice that all along the bank was adopting Ext.P1 list for the purpose of promotion and the seniority was considered only on the basis of Ext.P1. That apart, the resolution dated W.A.No.2201/2009 9 17/12/1987 clearly indicates that the bank had revised the seniority list based on the decision of the Joint Registrar of Co-operative Societies. Paragraph 3 of Ext.R1(b) reads as under: _“Certain members included in the list preferred an arbitration case before the Joint Registrar of Co-operative Societies, Idukki challenging the revised seniority list and obtained stay order for the implementation of the same. As per reference cited (4) above the Joint Registrar of Co-operative Societies, Idukki has issued an award upholding the seniority list published on 22/11/1985 based on the resolution No.813 dated 19/11/1985.”_ **13.** Having regard to these factual situations, the only question that remains to be considered is whether there is any finality to Ext.P2 list by any judgment or order passed by the statutory authorities. Apparently, two cases were initiated by the persons involved in the matter. In the first ARC case, Ext.P2 list was set aside by the authority. The 1[st] W.A.No.2201/2009 10 respondent preferred an appeal and the appeal was allowed on the ground that the affected parties were not made parties to the lis. Thereafter, a fresh application was filed which was rejected on the ground that a fresh application will not lie on the same cause of action. The matter was taken up before this Court. This Court confirmed the same as per Ext.P3 judgment. But there was no decision by this Court on the finality of Ext.P2 seniority list. The issue involved in O.P.No.751/1989 was whether the ARC was justified in rejecting a petition on the ground that it was not maintainable. 14. Under such circumstances, we cannot accept the contention that Ext.P2 list had become final and it was not open for the bank to rely upon Ext.P1 seniority list. That apart, it is clear from the resolution at Ext.R1(b) that the bank had revoked Ext.P2 seniority list and confirmed Ext.P1. Ext.R1(b) resolution is not under challenge. That apart, the said resolution was not brought to the notice of this Court while deciding O.P.No.751/1989 or other proceedings in W.A.No.2201/2009 11 relation to the aforesaid dispute. Under these circumstances, we are of the view that the judgment impugned is liable to be set aside. All promotions to the appellants as well as the 1[st] respondent has to be based on Ext.P1 rank list. Accordingly, we set aside the impugned judgment, the writ appeal is allowed and the writ petition stands dismissed. (sd/-) **(ASHOK BHUSHAN, JUDGE)** (sd/-) ## **(A.M.SHAFFIQUE, JUDGE)** jsr W.A.No.2201/2009 12 W.A.No.2201/2009 13