WA.No.1388 OF 2020

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **FRIDAY, THE 23RD DAY OF OCTOBER 2020 / 1ST KARTHIKA, 1942** **WA.No.1388 OF 2020** **AGAINST THE JUDGMENT DATED 25.07.2019 IN WP(C) 17693/2019(J) OF HIGH COURT OF KERALA** ## **APPELLANT/NON-PARTY:** **SHYNI M.J. AGED 42 YEARS W/O.BABY ODAMPALLIL, ODAMPALLIL HOUSE, NADUVIL P.O., NADUVIL, KANNUR DISTRICT-670582.** **BY ADVS. SRI.GEORGE POONTHOTTAM (SR.) SMT.NISHA GEORGE SRI.A.L.NAVANEETH KRISHNAN** ## **RESPONDENTS/PETITIONER & RESPONDENTS:-** **1 BINOY JOSEPH AGED 43 YEARS, S/O.JOSEPH, ACCOUNTANT, NADUVIL SERVICE CO-OPERATIVE BANK LTD. NO.LL 136, RESIDING AT KUNNEL HOUSE, KARUVANCHAL P.O., KANNUR DISTRICT-670571.** **2 THE NADUVIL SERVICE CO-OPERATIVE BANK LTD.NO.LL 136,NADUVIL POST-670582, KANNUR DISTRICT REPRESENTED BY ITS SECRETARY. 3 THE BOARD OF DIRECTORS OF THE NADUVIL SERVICE COOPERATIVE BANK LTD. NO.LL 136, NADUVIL POST -670582, KANNUR DISTRICT, REPRESENTED BY ITS PRESIDENT.** WA.No.1388 OF 2020 2 **4 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KANNUR DISTRICT-670001.** **R1 BY ADV. SRI.M.SASINDRAN R4 BY SRI.T.K. ANANDKRISHNAN, SR. G.P.** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA.No.1388 OF 2020 3 ## **C.R.** ## **JUDGMENT** ## Ravikumar J. This intra court appeal is directed against the judgment dated 25.07.2019 in W.P.(C.) No. 17693/2019. The appellant was a third party to the writ petition. She preferred this appeal on obtaining leave. The first respondent herein/writ petitioner filed the writ petition seeking issuance of writ of certiorari to quash Ext.P7 and issuance of the writ of mandamus commanding the respondents 1 and 2 to promote him to the post of Internal Auditor/Branch Manager, with effect from 01.06.2018 and to grant all consequential benefits. The further prayer is to command the third respondent (the fourth respondent herein) to issue appropriate direction to the first respondent society viz., the second respondent herein, to grant promotion to the vacant post of Internal Auditor/Branch Manager, to the eligible employee in the feeder category. 2. The learned Single Judge virtually disposed of the writ petition on the following lines:- “7. In the afore circumstances, I am certain that the WA.No.1388 OF 2020 4 Bank is now obligated to consider the petitioner's request for promotion immediately and to issue an appropriate order. Resultantly, I order this writ petition and set aside Ext.P7 and consequently direct the 1[st] respondent - Bank to consider the petitioner's request for promotion as an Internal Auditor, after hearing him and his seniors in the seniority list of Accountants, as expeditiously as is possible, but not later than one month from the date of receipt of a copy of this judgment.” 3. A careful scanning of the operative portion of the impugned judgment would reveal that the learned Single Judge rightfully, did not issue any positive direction to promote the petitioner even after coming to the conclusion that the bank is obligated to consider the petitioner's request for promotion against the post of Internal Auditor which occurred on 01.06.2018 for he was qualified on the date of occurrence of the vacancy. To safeguard the interest of senior qualified hands, if any, direction was issued only to consider the petitioner's request for promotion as Internal Auditor after hearing him and also his seniors in the seniority list of the feeder category post viz., Accountant, within the time stipulated thereunder. In the said circumstances, the appellant cannot be heard to contend that prejudice has been caused to her. The contention of the appellant is that she is senior WA.No.1388 OF 2020 5 to the first respondent in the seniority list of Accountants and in view of the prayer for quashment of Ext.P7, she should have been made a party to the writ petition. 4. Heard the learned counsel appearing for the appellant, the learned counsel appearing for the first respondent as also the learned Government Pleader. 5. The grievance of the appellant has to be looked into, taking into account twin aspects. Admittedly, the post in question viz., a pivotal post of Internal Auditor has become vacant as early as on 01.06.2018. There cannot be any doubt with respect to the fact that functioning of a co-operative bank involving financial transactions without an Internal Auditor, for a period of more than two years is certainly to the detrimental to the interest, not only of the bank but also of the public at large. Going by the provisions under Rule 185 of the Kerala Co-operative Societies Rules (for short, 'the KCS Rules'), promotion is the method of appointment to fill up the post of Internal Auditor. In view of the decision of this Court in **Thankamma v. Registrar of Co-operative Societies [1995(2) KLT SN 52 (page No. 39)]** , what is to be taken into account in the matter is the qualification on the date of WA.No.1388 OF 2020 6 occurrence of vacancy. We have carefully gone through the pleadings of the appellant. Admittedly her qualification is only SSLC with JDC. In that context, it is relevant to refer to Rule 186 of the KCS Rules, which prescribes the qualifications for appointment to various posts in Co-operative Societies. 6. Rule 186(1)(i) of the KCS Rules is the relevant provision applicable to the post in question. The qualifications going by Rule 186(1)(i) of the KCS Rules is as under:- “ **Rule 186. Qualifications:-** (1) No person shall be eligible for appointment in any post unless he possesses the qualifications prescribed for the post as shown below:- - (i) All posts other than A. A degree in Commerce or Masters those requiring degree in Arts of a recognised technical qualifications, University, with Co-operation as the starting pay of special subject. which is Rs. 250 and above as it existed on the 1[st] January, 1974 and OR such pay being revised from time to time. - B(i) Any Bachelors Degree of a recognised University and - (ii) Higher Diploma in Co-operation or higher diploma in Co-op. And Business Management (H.D.C.) or H.D.C. & B.M. of State Co-operative Union of Kerala or H.D.C. and H.D.C.M. of the National Council for Co-operative Training or successful completion of the Subordinate (Junior) Personnel Co-operative Training Course (Junior Diploma in WA.No.1388 OF 2020 7 Co-operation) OR C. Diploma in Rural Services with Cooperation as optional subject OR D. B.Sc. (Co-operation & Banking) Degree of the Kerala Agricultural University.” 7. When qualification is prescribed for the post including the post of Internal Auditor and when the admitted position is that the appellant is not qualified though she is seeking exemption from possessing the qualification in view of the provisions under Rule 185(8) of the KCS Rules, we are at loss to understand how the appellant would be justified in contending that till a decision is taken thereon, the post should be kept vacant. In that regard it is also relevant to note that relaxation cannot be claimed as a matter of right, especially, taking note of the post concerned and at the same time, the right for being considered for promotion, in the absence of any conscious decision not to fill up the vacancy based on permissible grounds, is a fundamental right of a qualified senior in the feeder category. As noticed hereinbefore, a very pivotal post in the functioning of the Bank has been kept vacant from 01.06.2018. The appellant cannot be WA.No.1388 OF 2020 8 heard to contend that consideration of the question of filling up of the vacancy would violate her fundamental right under Article 16 of the Constitution of India, as the right thereunder is only the right of being considered for promotion, provided the person is qualified and falling within the zone of consideration. The provisions under Rule 185(8) of the KCS Rules would reveal that it cannot be said to be an indefeasible right. It only says, in deserving cases the competent authority could consider the question of relaxation of the qualification other than basic qualification and pass in the competitive examination specified in sub-rule (5) of Rule 185 of the KCS Rules. Further conditions required to be satisfied to grant relaxation are also specifically mentioned under sub-rule (8) of Rule 185 of the KCS Rules. Be that as it may, the fact is that when the vacancy occurred on 01.06.2018, the first respondent herein/writ petitioner was fully qualified to be appointed as an Internal Auditor. It is the inaction in filling up that vacancy despite the statutory mandate under Rule 185 of the KCS Rules that constrained the first respondent/writ petitioner to approach this Court. True that he sought for a direction to promote him, at the same time, he has WA.No.1388 OF 2020 9 also prayed that a direction be issued to the bank to consider the question of filling up of the post from among eligible employees. A mere perusal of the impugned judgment would reveal that virtually the learned Single Judge considered only the said question and the direction was only to consider the claim of the first respondent/writ petitioner for promotion along with the seniors in the category of Accountants, the feeder category for promotion to the post of Internal Auditor. In such circumstances, in the strict sense and legally, the appellant cannot have any grievance against the impugned judgment. 8. The contention of the appellant is that owing to the existence of an alternative efficacious remedy, the learned Single Judge ought not to have entertained the writ petition filed by the first respondent herein. The verdict of the Hon'ble Apex Court in **Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and Others v. R. Rudani and Others [AIR 1989 SC 1607]** would reveal that after the exposition of law in the said case, the scope of Article 226 of the Constitution of India as well as writ of mandamus has been widened. The Supreme Court has ruled that the words 'any WA.No.1388 OF 2020 10 person or authority' used in Article 226 of the Constitution of India would cover 'any other person or body performing public duty', the form of the body concerned is not very much relevant and what is relevant is the nature of the duty imposed on the body. In the light of the provisions under Rule 185 of the Rules and taking into account the nature of the transaction of the body in question, the functioning of bank in question without an Internal Auditor over a period of two years cannot be appreciated. When banking transaction takes place in the second respondent Society, it is not only in the interest of the bank, but also in the interest of the public at large that there should be an Internal Auditor in the Bank. It is ignoring all those aspects that the said post was kept vacant from 01.06.2018. The contention of the appellant is that she applied for exemption. But the fact is that invoking the power under Rule 185(8) of the KCS Rules, no exemption was granted hitherto to the appellant as noticed hereinbefore. One of the contentions of the appellant is that in view of the remedy available under Section 69(2) of the KCS Act, the learned Single Judge ought not have been entertained the writ petition. 9. Absolutely, there is no inviolable position that WA.No.1388 OF 2020 11 existence of an alternative remedy should bar the entertainment of a writ petition under Article 226 of the Constitution of India. Certainly, it is a question of discretion. True that the discretion has to be exercised in accordance with law. In this regard, it is only apposite to bear in mind the following salutary maxims:- - i) 'Discretio est discernere per legem quid sit justum', means 'the discretion is to discern through law what is just'. - ii) 'Discretio est scire per legem quid sit justum', means 'Discretion consists in knowing what is just in law'. When the discretion vested with this Court was exercised by a learned Single Judge that need not be revisited and set aside on the ground that the writ petition was not to be entertained owing to the availability of alternative remedy. The Hon'ble Apex Court in the decision in **U.P. State Spinning Co. Ltd. v. R.S. Pandey** reported in **[(2005) 8 SCC 264]** held thus:- “Usually when writ petition is entertained notwithstanding availability of alternative remedy and issues are decided on merits, this Court is slow to interfere merely on the ground of availability of alternative remedy.” WA.No.1388 OF 2020 12 10. In the decision in **Shaji K. Joseph v. Viswanath** reported in **[2011(3) KLT 513]** , a Division Bench of this Court relied on the decision in **R.S. Pandey's** case (supra) and declined to entertain the contention that writ petition ought not to have entertained owing to the existence of alternative efficacious remedy. The aforesaid decisions were followed in **Gandhigram Agro Based Industrial Co-operative Society Ltd. v. Marangattupilly Service Co-operative Bank Ltd. And Others [2019 (3) KHC 60]** in which one among us (Ravikumar, J.) was a party. That apart in this case, the learned Single Judge only directed the bank to exercise its statutory duty by issuing a direction to consider the question of filling up of that vacancy. True that in that regard the claim of the first respondent/writ petitioner and the other seniors in the seniority list of Accountants were ordered to be looked into. In the factual situations, especially taking into account the admitted position that the appellant is not qualified and the vacancy occurred on 01.06.2018 and the nature of the prayers and the relief granted, we are of the view that at best the appellant can be said to be an appropriate party and not a necessary party in the writ petition. A necessary WA.No.1388 OF 2020 13 party is one without whom no effective order could be passed and a proper party is one in whose absence an effective order could be made, but whose presence is considered proper for a complete and final decision on the question involved in such proceedings. Non-joinder of a necessary party is fatal, however non-joinder of a proper party is not fatal. (See the decisions of the hon'ble Apex Court in **A. Janardhana v. Union of India and Others** [ **AIR 1983 SC 769]** and also **State of Himachal Pradesh and Another v. Kailash Chand Mahajan and Others [AIR 1992 SC 1277]** ) 11. The learned counsel for the first respondent submitted that though the date of occurrence of vacancy is on 01.06.2018, no resolution was even passed to consider the claim of the appellant for relaxation invoking the power under Rule 185(8) of the KCS Rule. Such a resolution was passed much later, only on 30.06.2018. The learned counsel for the first respondent also placed reliance on the decision reported in **Varghese and Others** ## **v. State of Kerala and Others [1981 KLT 458]** . Considering the contentions raised in the appeal and taking into account the nature of the disposal of the writ petition and also taking into account the provisions under the KCS Act and KCS WA.No.1388 OF 2020 14 Rules, we do not find any reason to hold that the impugned judgment is infected with illegality which warrants a correction in exercise of the appellate jurisdiction. In the result, this writ appeal must be consequently dismissed. **SD/C.T.RAVIKUMAR JUDGE SD/K.HARIPAL JUDGE** **==> picture [101 x 11] intentionally omitted <==** **----- Start of picture text -----**<br> DCS/30.10.2020<br>**----- End of picture text -----**<br> WA.No.1388 OF 2020 15 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE APPLICATION DATED 10.7.2018 SUBMITTED BY THE SECRETARY OF THE BANK BEFORE THE SECRETARY TO GOVERNMENT. ANNEXURE A2 TRUE COPY OF THE JUDGMENT DATED 4.11.2019 IN RP NO.1038/2019 IN WP.(C) NO.17693/2019 PASSED BY THIS HON'BLE COURT. ANNEXURE A3 TRUE COPY OF THE JUDGMENT DATED 4.9.2019 IN WP(C) NO.24076/2019 PASSED BY THIS HON'BLE COURT. ANNEXURE A4 TRUE COPY OF THE SUBMISSION MADE BY THE BANK DATED 22.11.2019. ANNEXURE A5 TRUE COPY OF THE JUDGMENT DATED 25.8.2020 IN COC NO.1158/2020 IN W.P.(C) NO.24076/2019 PASSED BY THIS HON'BLE COURT. ANNEXURE A6 TRUE COPY OF THE JUDGMENT DATED 25.8.2020 IN COC NO.942/2020 IN W.P.(C) NO.17693/2019 PASSED BY THIS HON'BLE COURT. ANNEXURE A7 TRUE COPY OF THE LETTER DATED 15.9.2020 ISSUED BY THE SECRETARY OF THE BANK. ANNEXURE A8 TRUE COPY OF THE COMMUNICATION DATED EM(3) 4600/19 DATED 12.10.2020 ISSUED FROM THE OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES.**