Writ Appeal No. 2224 of 2016 (against the judgment in W.P.(C) No. 24614 of 2015), Kerala High Court

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE SATHISH NINAN** **THURSDAY ,THE 27TH DAY OF SEPTEMBER 2018 / 5TH ASWINA, 1940** ## **WA.No. 2224 of 2016** **AGAINST THE JUDGMENT IN WPC 24614/2015 OF HIGH COURT OF KERALA DATED 26-09-2016** ## **APPELLANTS/RESPONDENTS 4 TO 8 & 10:** - **1 SHAJITH K., SR. ACCOUNTANT, KOZHIKODE DISTRICT CO-OPERATIVE BANK, HEAD OFFICE, KOZHIKODE PIN-673002.** - **2 PRADEEPKUMAR K.C., SR. ACCOUNTANT, KOZHIKODE DISTRICT CO-OPERATIVE BANK, WEST HILL BRANCH, KOZHIKODE PIN-673005.** - **3 SURESH K.,SR. ACCOUNTANT, KOZHIKODE DISTRICT CO-OPERATIVE BANK, PAYYOLI BRANCH, PAYYOLI P.O., KOZHIKODE PIN-673523.** - **4 PRADIKUMAR C.M.,SR. ACCOUNTANT KOZHIKODE DISTRICT CO-OPERATIVE BANK MEPPAYUR BRANCH, KOZHIKODE DISTRICT PIN-673524.** - **5 VINODAN CHERIYALATH, SR. ACCOUNTANT, KOZHIKODE DISTRICT CO-OPERATIVE BANK, KUTTIADI BRANCH,KUTTIADI, KOZHIKODE PIN-673508.** - **6 PADMAJAKUMARI K.P.,SR. ACCOUNTANT, KOZHIKODE DISTRICT CO-OPERATIVE BANK, NADAKKAVU BRANCH, NADAKKAVU, KOZHIKODE – 673 011.** **BY ADV. SRI.P.N.MOHANAN** ## **RESPONDENTS/PETITIONERS/RESPONDENTS 1 TO 3,9,11, TO 18:** **1 E. HAMZA,SENIOR ACCOUNTANT, KOZHIKODE DISTRICT CO-OPERATIVE BANK LTD. NO. F.1635,P.O.CHALAPPURAM, KALLAI ROAD,KOZHIKODE – 673 002.** W.A.No.2224/2016 2 - **2 O.SANTHOSH BABU,SENIOR ACCOUNTANT, KOZHIKODE DISTRICT CO-OPERATIVE BANK LTD. NO.F 1635,P.O.CHALAPPURAM, KALLAI ROAD,KOZHIKODE-673002.** - **3 RAVEENDRAN AREEKKARA,BRANCH MANAGER, KOZHIKODE DISTRICT CO-OPERATIVE BANK, NADAPURAM BRANCH,KOZHIKODE.** - **4 P.K.SURESH,BRANCH MANAGER, KOZHIKODE DISTRICT CO-OPERATIVE BANK, PERAMBRA BRANCH,KOZHIKODE.** - **5 STATE OF KERALA,REPRESENTED BY THE SECRETARY,CO-OPERATIVE (B) DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM-605001.** - **6 JOINT REGISTRAR CO-OPERATIVE SOCIETIES, OFFICE OF THE JOINT REGISTRAR, LINK ROAD,KOZHIKODE-673002.** - **7 KOZHIKODE DISTRICT CO-OPERATIVE BANK, REPRESENTED BY ITS GENERAL MANAGER, KALLAYI ROAD,KOZHIKODE-673002.** - **8 ANILKUMAR,SR.ACCOUNTANT, KOZHIKODE DISTRICT CO-OPERATIVE BANK, CALICUT MAIN BRANCH,CALICUT-673002.** - **9 SUNIL K.A.,SR.ACCOUNTANT, KOZHIKODE DISTRICT CO-OPERATIVE BANK, HEAD OFFICE,KOZHIKODE DISTRICT-673002.** - **10 MOHAMMED M.,SR.ACCOUNTANT, KOZHIKODE DISTRICT CO-OPERATIVE BANK, PANTHEERANKAVU BRANCH,KOZHIKODE DISTRICT.** - **11 PRABITHA,SR.ACCOUNTANT, KOZHIKODE DISTRICT CO-OPERATIVE BANK, PANNIYANKARA BRANCH,KOZHIKODE DISTRICT.** - **12 CHERUPUSHPAM A.,SR.ACCOUNTANT, KOZHIKODE DISTRICT CO-OPERATIVE BANK, BEYPORE BRANCH ,BEYPORE,KOZHIKODE 673015.** W.A.No.2224/2016 3 - **13 SUMA M.K.,SR.ACCOUNTANT, KOZHIKODE DISTRICT CO-OPERATIVE BANK, ATHOLI BRANCH,KOZHIKODE DISTRICT-673315.** - **14 KISHNA M.,SR.ACCOUNTANT, KOZHIKODE DISTRICT CO-OPERATIVE BANK, HEAD OFFICE,KOZHIKODE-673002.** - **15 JAYAPRAKASAN K.,SR.ACCOUNTANT, KOZHIKODE DISTRICT CO-OPERATIVE BANK, MAVOOR ROAD BRANCH,KOZHIKODE DISTRICT-673661.** - **16 BAIJU K.,SR. ACCOUNTANT, KOZHIKODE DISTRICT CO-OPERATIVE BANK, IT DIVISION,HEAD OFFICE,KOZHIKODE-673002.** - **BY ADV. SRI.P.C.SASIDHARAN SC KOZHIKODE DISTRICT CO-OPERATIVE BANK R1 TO R4 ADV.SMT.SOORYA BY SENIOR GOVERNMENT PLEADER SRI.K.R.DEEPA** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 27.09.2018, ALONG WITH WA.2231/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.No.2224/2016 4 **==> picture [47 x 11] intentionally omitted <==** ## **JUDGMENT** ## **Chitambaresh, J.** The writ petitioners who are employees of the Kozhikode District Co-operative Bank Ltd. ('the Bank' for short) staked claim for promotion to the post of branch manager by seeking relaxation from educational qualification. They did not possess the requisite qualification and hence sought relaxation under Rule 185(8) of the Kerala Co-operative Societies Rules, 1969 ('the Rules' for short). The managing committee of the Bank passed resolutions dated 17.06.2011 and 02.01.2013 in respect of petitioner Nos. 1 to 3 and petitioner No.4 respectively recommending for the relaxation. The matter was pending with the Registrar of Co-operative Societies when several vacancies to the post of branch manager arose in the Bank on 31.08.2013. The Bank thereupon promoted respondents 4 to 18 in the writ petition as branch manager to fill up the vacancies provisionally even though they were far junior to the petitioners in the feeder category. 2. The Registrar by Ext.P4 order dated 03.03.2014 did grant relaxation from the educational qualification on the basis W.A.No.2224/2016 5 of the recommendation of the managing committee though only prospectively. The said order was confirmed by Ext.P9 order dated 25.06.2015 of the Government in appeal by the petitioners which was impugned in the writ petition claiming benefit from the date of resolutions. The learned single Judge has quashed Exts.P4 and P9 orders and declared that the relaxation of educational qualification would take effect from the date of resolutions itself. Respondents 4 to 18 have filed these writ appeals contending inter alia that the benefit of relaxation of educational qualification could not have been granted with retrospective effect. 3. We heard Mr. P.N.Mohanan, Advocate and Mr. M.Sasindran, Advocate on behalf of the appellants and Ms.Soorya, Advocate on behalf of the contesting respondents as well as Mrs. K.R. Deepa, Senior Government Pleader. 4. It shall be competent for the committee of a Society to relax the qualification of an employee for the purpose of promotion with the prior approval of the Registrar as per Rule 185(8) of the Rules as it earlier stood. The 'prior' approval has been converted to a 'post' approval by the Registrar on the request of the Society as per Rule 185(8) of the Rules W.A.No.2224/2016 6 amended with effect from 03.09.2005. The amended Rule reads as under: “8. It shall be competent for the Registrar of Co-operative Societies to relax the qualification, other than basic qualification and pass in the competitive examination specified in sub-rule(5), of an employee, for the purpose of promotion in deserving cases, on the request of a society by passing a resolution subject to the following conditions:- (a) x x x x x x (b) x x x x x x (c) x x x x x x (d) x x x x x x (e) x x x x x x (f) x x x x x x (g) x x x x x x (h) x x x x x x The mere fact that the 'prior' approval has been converted to a 'post' approval as per Rule 185(8) of the Rules as amended does not mean that the benefit of relaxation would inure only from the date of the order of the Registrar. The power to W.A.No.2224/2016 7 recommend for the relaxation is still with the managing committee of the Society as has been held by judgment dated 20.07.2015 in WP(C) No. 14694/2014. 5. That there is no significant paradigm shift in the power of both the Society and the Registrar even after amendment has been noticed in **Karthikeyan P.S. and others v. Registrar and others** [2011 (1) KHC 525 (DB)]. It was held therein as follows: “9. It can be seen that prior to the last amendment, the Committee of a Society could relax the qualification in a deserving case, of course, with the prior approval of the Registrar. But going by the provisions contained in the above sub-rule, as it now stands, the role of the Registrar has become a little more prominent. If a request is made by the Committee of a Society to relax the educational qualification of any one of its employees by passing a resolution in this regard, the Registrar shall be competent to relax the qualification. Thus there is an apparent subtle shift in the power of both the Society and the Registrar, though in the ultimate analysis there may not be a significant paradigm shift in the power of the Registrar.”(emphasis supplied) We are in perfect agreement with the above reasoning and hold that the benefit of relaxation of qualification as approved by the Registrar would inure from the date of resolutions itself W.A.No.2224/2016 8 even as per Rule 185(8) as amended. The learned Single Judge was justified in quashing Ext.P4 and P9 orders to the extent it granted the benefit of relaxation from educational qualification from the date of order only. 6. It transpires that respondents 4 to 18 in the writ petition had been provisionally promoted as branch managers soon after the vacancies arose on 31.08.2013 when the matter was engaging the attention of the Registrar. Such promotion was only a stop gap arrangement to mann the post of branch manager till orders are passed by the Registrar either approving or disapproving relaxation. That by itself will not clothe respondents 4 to 18 to cling on to the post of branch manager even after approval is granted for the relaxation of the educational qualification of the petitioners. It is to avert such contingency are resolutions for relaxation taken in anticipation of vacancies [see **Mariyamma v. Thrissur District Co-operative Bank Ltd.** [2018 (3) KLT 863]. Nothing much turns out on Ext.R11(a) judgment wherein the question of relaxation of educational qualification of the petitioners was directed to be reconsidered for them to be reckoned for promotion to the 'existing' vacancies. The W.A.No.2224/2016 9 existing vacancies can only be the vacancies to which the petitioners stake a claim and not those vacancies which arise in future as is contended in the appeal. We do not find any illegality in the judgment impugned wherein the learned single Judge has directed all consequential benefits including seniority to be extended to the writ petitioners. The writ appeals are dismissed. No costs. Sd/- **V. CHITAMBARESH JUDGE** Sd/- **SATHISH NINAN JUDGE** ncd W.A.No.2224/2016 10 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 CERTIFIED COPY OF THE JUDGMENT DATED 2.9.2016 IN WPC NO.24614/2015**