IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 28TH AUGUST 2009 / 6TH BHADRA 1931 OP.No. 12988 of 2002(U) ---------------------------------- PETITIONER: ------------------- K.T.MATHEW, SENIOR ACCOUNTANT, IDUKKI DISTRICT CO-OPERATIVE BANK LTD., IDUKKI. BY ADV. MR.P.P.JACOB. RESPONDENTS: ------------------------ 1. IDUKKY DISTRICT CO-OPERATIVE BANK LTD., IDUKKY, REPRESENTED BY ITS GENERAL MANAGER. 2. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), IDUKKY/ADMINISTRATOR, IDUKKY DISTRICT CO-OPERATIVE BANK. 3. V.S.SASIDHARAN, SENIOR ACCOUNTANT, IDUKKY DISTRICT CO-OPERATIVE BANK LTD., IDUKKY. 4. MARYKUTTY JOSEPH, SENIOR ACCOUNTANT, IDUKKY DISTRICT CO-OPERATIVE BANK LTD., IDUKKY. 5. EMILY PHILIP, SENIOR ACCOUNTANT, IDUKKY DISTRICT CO-OPERATIVFE BANK LTD., IDUKKY. 6. K.V. JOY, SENIOR ACCOUNTANT, IDUKKI DISTRICT CO-OPERATIVE BANK LTD., IDUKKI. R1 BY MR.P.C.SASIDHARAN, SC, CO-OP. BANK, R2 BY GOVT. PLEADER MR.ARAVINDAKUMAR BABU.T.K, R3 TO R5 BY ADV. MR.GEORGE POONTHOTTAM, THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 27/08/2009, THE COURT ON 28/08/2009 DELIVERED THE FOLLOWING: O.P. NO. 12988/2002-U: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE SENIORITY LIST DTD. 22/11/85 PUBLISHED BY THE R.1. EXT.P.2: COPY OF THE FINAL SENIORITY LIST DTD. 29/04/86 PUBLISHED BY R.1. EXT.P.3: COPY OF THE JUDGMENT IN O.P. NO. 751/89 DTD. 02/06/94 OF THIS HONOURABLE COURT. EXT.P.4: COPY OF THE JUDGMENT IN O.P. NO. 15832/01 DTD. 09/01/2002 OF THIS HONOURABLE COURT. EXT.P.5: COPY OF THE NOTICE DTD. 21/03/2002 ISSUED BY THE R.2. EXT.P.6: COPY OF THE ORDER ISSUED BY R.2. DTD. 10/05/2002 BEARING NO. CRB 2410/01. EXT.P.7: COPY OF THE JUDGMENT IN A.P. 67/87 DTD. 14/10/88. EXT.P.8: COPY OF THE NOTE PREPARED BY THE R.1. DTD. 04/02/80. EXT.P.9: COPY OF THE RELEVANT PAGES OF THE NOTIFICATION ISSUED BY P.S.C. DTD. 24/10/99 RELATING TO SELECTION TO THE DCB. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. V.K.MOHANAN, J. ---------------------------------------- O.P. No.12988 OF 2002 ---------------------------------------- Dated, 28th day of August, 2009 JUDGMENT It is the fourth round litigation before this Court as far as the petitioner is concerned. For the last 27 years, the petitioner is agitating to get fixed his seniority among the employees of the first respondent Bank. At the time of filing the above writ petition, the following are the prayers: “i) Declare that the first and second respondents are bound to follow 1 : 1 ratio in fixing seniority and petitioner is entitled to get promotion as per final seniority list published vide resolution No.924 dated 29.4.1986; ii) Set aside the order issued by the second respondent bearing No.CRB 665/2002 dated 10.5.2002; iii) Direct the respondent No.1 to promote the petitioner to the post of Branch Manager immediately; iv) Direct the respondent to issue copy of order No.CRB 665/2002 dated 10.5.2002 and such other reliefs which may deem fit and proper in the facts and circumstances of the case.” 2. In fact, prayer Nos. 2 and 4 are against an OP 12988/02 -:2:- order shown as Order No. CRB 665/2002 dated 10.5.2002. Ext.P5 produced in the writ petition is a copy of the notice issued by the 2nd respondent asking the petitioner to appear in an enquiry. According to the petitioner at the time of filing the writ petition, he was not given a copy of the order impugned, and hence, the 4th prayer was moulded accordingly, and subsequently, the order pursuant to Ext.P5 notice was issued to him on 10.5.2002 and the same is produced as Ext.P6 as per CMP No.22826/2002. 3. After hearing, when the matter was taken for disposal, it is noted that no relief is actually sought against the order under challenge. Hence, the matter was suo motu posted in the list of “To be spoken to” on 10.8.2009 and the counsel sought time to file a petition to amend the writ petition and, accordingly, time was granted. Thus, I.A.No.10855/09 was filed, which was allowed on 26.8.2009. Thus, in the amended writ petition, the 2nd prayer is to set aside Ext.P6 order issued by the second respondent dated 10.5.2002 bearing CRB OP 12988/02 -:3:- No.2410/01. The 4th prayer is amended by incorporating the correct order number. 4. The case of the petitioner is that pursuant to the application invited by the first respondent bank, to the post of Clerk, he had applied for the same and as he had successfully come out in the written test and interview, he was selected and appointed to the post of Clerk in the year 1982, and accordingly, he joined in the service of the first respondent bank on 7.6.82. According to the petitioner, total vacancies are divided into two, and 50% to be filled up from the candidates from society quota and the other 50% to be filled up from open quota candidates. It is the claim of the petitioner that he was assigned rank No.3 in the list in the open merit quota and Rank No.5 in the combined seniority list. Respondents 3 to 5 herein are the inservice candidates. Ext.P1 is the provisional list prepared and published by the Ist respondent bank as per resolution No. 813 dated 19.11.85. According to the petitioner, the combined seniority list was to prepare in the ratio of 1:1 between OP 12988/02 -:4:- the society quota and open quota. Since Ext.P1 list was not in accordance with the above ratio, according to the petitioner, he preferred objection to Ext.P1 provisional seniority list and subsequently, after hearing the objection of the petitioner as well as other aggrieved persons, the Ist respondent, by resolution No.924 dated 30.4.1986, had prepared and published the final seniority list , i.e. Ext.P2. According to the petitioner, he joined in service on the first respondent bank on 7.6.82. The contesting respondents joined in the service on the following dates, viz., 3rd respondent on 14.6.82; 4th respondent on 15.6.82; 5th respondent also on 14.6.82, but Addl.6th respondent on 10.6.82. Hence, considering the date of joining in service also, he is the senior- most. Thus, as per Ext.P2, the rank number assigned to the petitioner was '5' whereas the Respondents 3 to additional 6th respondent were given rank numbers in the following order respectively , ie., 10, 12, 14 and 8. 5. It is the further case of the petitioner that against the Ext.P2 list, the additional 6th respondent and OP 12988/02 -:5:- another employee had filed ARC No.5/86 before the Arbitrator which resulted in Award dated 18.11.87 by which resolution 924 dated 30.4.86 was rescinded. Aggrieved by the said award, the petitioner preferred an appeal before the Co-operative Tribunal as AP 67/87 by which the award in ARC No.5/86 has been set aside. Though the Tribunal judgment is dated 14.11.88, the bank adopted a resolution dated 7.12.87 as Resolution No.1195 accepting and approving the seniority list approved as per Resolution No.813 dated 19.11.85 as the final seniority list. That being the position, the very same person filed another ARC ie. ARC No.4/88 before the Arbitrator and by award dated 22.2.89, the said ARC was dismissed in limine. 6. Thus, the additional 6th respondent and the other persons who were the petitioners in the award, approached this Court by filing O.P.No.751/89 which was dismissed by this court by an elaborate judgment dated 2.6.94 holding that the seniority fixed by the Ist respondent bank as early as in the year 1986 was settled OP 12988/02 -:6:- and the same cannot be reopened. Ext.P3 is the judgment of this Court in O.P.No.751/89. Though as per Ext.P3 judgment, Ext.P2 list was approved, no consequent promotion was effected in spite of the authorities were repeatedly requested for the same. Hence, the petitioner approached this Court by fling OP No.15832/2001 which resulted in Ext.P4 judgment dated 9.1.2002. Dissatisfied with Ext.P4 judgment, the petitioner preferred Writ Appeal No.468 of 2002 which was also dismissed by judgment dated 25.2.2002. 7. After Ext.P4 judgment and the judgment in the writ appeal referred above, the petitioner received Ext.P5 notice dated 21.3.2002 issued by the 2nd respondent asking the petitioner to appear before him on 5.4.2002 for hearing. Alleging that without giving a copy of the order passed pursuant to the said hearing, and steps were taken to promote other contesting respondents, the petitioner approached this Court by filing the present writ petition on 11.5.2002. According to the petitioner, in the meanwhile, he received the final order passed by the OP 12988/02 -:7:- 2nd respondent, which produced as Ext.P6. Petitioner challenged Ext.P6. 8. His contention of the petitioner is that for fixing seniority of the employees, ratio of 1:1 between the service hands and open quota candidates has to be maintained and, at any rate, the petitioner is senior among the contesting candidates as he was assigned rank No.3 in the merit quota and Rank No.5 in the combined seniority list originally and as he had joined in the service of the first respondent bank on 7.6.82 in the post whereas the contesting respondents were joined subsequently, and, considering the above aspects, the correct seniority was assigned to the petitioner as per Ext.P2 list by the first respondent bank. According to the petitioner, now the 2nd respondent as per Ext.P6 proceedings, approved the resolution No.813 dated 19.11.1985 adopted by the bank, which is arbitrary and illegal and without assigning cogent and satisfactory legal grounds but due to extraneous consideration. 9. The contesting respondents 1, 3 to 5 and the 2nd OP 12988/02 -:8:- respondent have filed separate counter affidavits. Reply affidavits and additional counter affidavits are also seen filed and as such the pleadings are complete. 10. The main contention raised by the Ist respondent bank is that the bank followed the seniority list approved on 19.11.85 and promotion was effected on the basis of such list and the petitioner was also given promotion accordingly and the same was accepted by him without any hesitation. The bank has filed an additional counter affidavit later on 29.6.2002 and produced Exts.R1(a) and R1(b) along with it. In the counter affidavit filed by the Ist respondent it is stated that a Sub-Committee was appointed by the Board of Directors to go through the issue and to submit a report, and according to the report of the Sub-Committee, the decision taken by the Board of Directors on 19.11.85 was correct and thus the Board approved the said decision, as per Resolution dated 16.2.1995. Ext.R1 (a) is the said resolution dated 16.2.95. The consequent order issued on 17.12.87 is Ext.R1(b). Thus according to the bank, the OP 12988/02 -:9:- promotion granted to the employees, including the petitioner in the cadre of Junior Accountant and Senior Accountant were in accordance with the above resolution and seniority list. According to the bank, the Joint Registrar had also approved the decision of the Board of the Bank taken on 19.11.85 as per the resolution No.813 fixing the seniority according to the merit placed in written test and interview. The bank has also stated that as per the order dated 10.5.2002 of the 2nd respondent in CRB-2410/01, promotion was also given to certain persons to the post of Branch Managers. The specific contention taken by the bank is to the effect that ratio 1:1 as claimed by the petitioner is not prescribed in the service rules for fixing seniority. Therefore, according to the bank, the petitioner's claim cannot be entertained. 11. Respondents Nos. 3 to 5 raised the following contentions. According to them, by Ext.P3 judgment, the petitioner's seniority in relation to respondents 3 to 5 is not settled. In that judgment what considered was the OP 12988/02 -:10:- legality of the refusal by the Arbitrator in entertaining a second ARC. After the appointment, a final integrated seniority list was published on 22.11.85 based upon the merit in the selection which was made on the basis of the subsidiary rules which was in force at the relevant time. It was subsequently, the Board of Directors of the bank took a decision on 29.4.1986 to revise the said list by following the ratio 1:1 and that decision was not given effect. According to them in the award passed in ARC 5/86, the bank alone was the respondent and no other persons were impleaded and it was under that circumstances, the Tribunal set aside the said award and the Tribunal had not gone into the merits of those case. Thus the same plaintiffs in ARC 5/86 preferred another Arbitration Case and the same was dismissed as there was no cause of action. According to the Respondents 3 to 5, it is the above award challenged in OP No.751/89. So according to the respondents, neither the Tribunal nor this Court has approved the resolution No.924 dated 29.4.86. It is also contended that as the petitioner has OP 12988/02 -:11:- accepted the promotion given asper the resolution No.1195 dated 7.12.87, the petitioner is estopped from raising contentions against the said list. It is also the contention of the respondents 3 to 5 that against the judgment in OP 15832/01, the petitioner had preferred writ appeal in which the Division Bench had held that the seniority in relation to the appellants and respondents 3 to 5 was not settled. Therefore, the petitioner is bound by the said judgment. Thus, according to the respondents, the order passed by the Joint Registrar is perfectly valid and in accordance with the law. 12. In the counter affidavit filed by the 2nd respondent, it is stated that in 1982 selection, 50% of the vacancies was filled by candidates from open quota on merit basis, and 50% vacancies were alloted to candidates from affiliated primary Societies. According to the 2nd respondent, the Board of Directors of the Bank has refixed the seniority of employees in the ratio of 1:1 between the open quota and society quota as per Ext.P2 resolution No.924 dated 30.4.1986. According the OP 12988/02 -:12:- the 2nd respondent, the said resolution is not sustainable as per the statutory provisions especially under the rule 187 of the Kerala Co-operative Societies Rules and there is no indication in the said rules that the seniority is to be fixed in the ratio 1:1 between open quota and society quota candidates. According to the 2nd respondent, 1:1 ratio was adopted by the bank without observing official formalities such as inviting objection etc., and moreover, the list is not published till date and remained inoperative also. Hence, Ext.P1 seniority list published was valid and sustainable, and also promotions to higher posts were made from that list since the publications of the list till date. Hence Ext.P2 list was not valid and unsustainable. According to the 2nd respondent, he had functioned as the Administrator of the Ist respondent bank. It is also contended that the Ext.P3 judgment was dismissed on the ground of res judicata and without any direction to the authority. It is also pointed out that the writ petition is not maintainable as a statutory remedy is available to the petitioner. OP 12988/02 -:13:- 13. I have heard Sri P.P.Jacob, the learned counsel appearing for the petitioner; Sri George Poonthottam, the learned counsel appearing for respondents 3 to 5 and also Sri P.C.Sasidharan, the learned counsel appearing for the Ist respondent bank and also the learned Government Pleader. 14. Sri P.P.Jacob, the counsel appearing for the petitioner emphatically submitted that the Ext.P6 order passed by the Ist respondent is highly illegal and arbitrary. By Ext.P3 judgment, this court had already approved the seniority list published and approved by the Ist respondent bank as per Ext.P2 list and therefore the 2nd respondent cannot go against such finding, especially, Ext.P3 was not challenged in any court. It is also pointed out that, in the absence of any procedure or rules regarding the seniority to be fixed among the service hands and open quota candidates, ratio 1:1 is the more proper and scientific approach and the same is being followed in the Co.operative Institutions now on days. It is also pointed out by the learned counsel that the OP 12988/02 -:14:- authority is vested with the Board of Directors of the first respondent bank and by exercising such authority, the bank has set aside the seniority fixed as per Ext.P1 resolution and approved the seniority list in the ratio 1:1 by resolution No.924 dated 30.4.86. As on today, the said Resolution is the final resolution on the matter and thereafter no valid, legal and proper resolution was passed modifying the said resolution. Neither the statutory authorities, viz., the Arbitration Court, nor the Tribunal, had rescinded the said resolution but the same was approved. In the judgments of this Court also, the said resolution was approved and no authority was given to the 2nd respondent to reopen the seniority once settled and approved by this court. The learned counsel submitted that the petitioner is entitled to get seniority over the contesting respondents, even if the merit in the written test and interview is considered as criteria. It is pointed out that all the contesting respondents joined in service only subsequent to the petitioner joined in service and as such they are juniors to the petitioner. In support OP 12988/02 -:15:- of the arguments advanced by the counsel for the petitioner, he placed reliance upon the following decisions: Karnataka Power Corporation Ltd. v. Thangappan (2006(2) KLT SN 89 (case No.110) and, Vidya Sagar v. State of U.P. (2005(3) KLT SN 39 (Case No.46). 16. The learned counsel for the contesting respondents 3 to 5 submitted that Ext.P6 order is issued by the 2nd respondent on the basis of the direction issued by this Court as per Ext.P4 judgment and hence, the contention of the counsel for the petitioner that the Joint Registrar has no jurisdiction to issue Ext.P6 in view of Ext.P3 judgment, is baseless and unsustainable. It is also pointed out by the learned counsel that the contesting Respondents 3 to 5 were not parties in Ext.P3 judgment and therefore, whatever contained in that judgment are not bound by Respondents 3 to 5. It is also pointed out by the learned counsel that the Division Bench has already found that the seniority list relied on by the petitioner is not a proper list as far as these Respondents are OP 12988/02 -:16:- concerned. According to the learned counsel, the Division Bench has observed that the appellant's seniority in relation to respondents 3 to 5 was not settled by Ext.P3 judgment of this Court and hence there is no merit in the contention that the said seniority list cannot be reopened. Thus on the basis of the above observation of the Division Bench, the learned counsel submitted that the decision of the Board of Directors of the first respondent bank approving the Ext.P1 list and the order now passed by the Joint Registrar vide Ext.P6 are absolutely correct and no interference is warranted. 14. The counsel for the Ist respondent bank submitted that the dispute is with respect to seniority list that published during the year 1982 and based upon Ext.P1 list, several promotions were effected including in the case of the petitioner who was promoted as Branch Manager. Therefore, it is submitted that the interference at this belated stage, even if the same is justifiable, will disturb and upset the entire seniority position. 17. I have carefully considered the arguments OP 12988/02 -:17:- advanced by the counsels representing the respective parties. I have also perused the materials on record. 18. At the outset, it is to be noted that the appointments to the post of Typists, Clerks, Clerk-cum- Cashier, were made by the first respondent bank during the year 1982. The dispute regarding the seniority thus relates back to the year 1982. Now, 27 years are over. It is also beyond dispute that promotions were effected during the above period. Therefore, I myself is aware that any intervention at this stage is likely to disturb the seniority of the incumbents, this Court cannot ignore the illegality and impropriety occurred in this matter. 19. However, on an analysis of the materials on record and on appreciation of the arguments advanced by the learned counsel, it can be seen that by resolution Nos. 813 dated 19.11.85, a combined seniority list was published as approved on 6.8.85, against which the petitioner and certain other persons filed objection on the basis of which the bank published Ext.P2 list. Ext.P1 list was prepared on the basis of the marks obtained by the OP 12988/02 -:18:- candidates in the written test and the interview. This was reconsidered on the basis of the objection raised by the petitioner and accordingly, a new combined seniority list was prepared at the ratio of 1 : 1 between the candidates coming under the society quota and open quota. 20. Though the additional 6th respondent and another person challenged Ext.P2 list by filing ARC 5/86 and got an award dated 18.11.87 rescinding resolution No.924 dated 30.4.86, the said award was set aside by the Co. operative Tribunal as per its judgment dated 14.11.88 in A.P. No.67/87. In this juncture, it is relevant to note that in ARC No.5/86, the petitioner and similarly situated persons were not made as parties. Only the first respondent bank was made as a party. Therefore, when the petitioner came to know about the award, he filed appeal before the Tribunal and the Tribunal set aside the award as a result of which Resolution No.924 dated 30.4.86 and Ext.P2 list were restored. Though the same plaintiffs in ARC 5/86 preferred ARC 4/88, the same was dismissed. OP 12988/02 -:19:- 21. But in the meanwhile, the first respondent bank adopted resolution No.1195 dated 7.12.87 by which it was decided to declare and approve the list prepared and approved by Resolution No.813 dated 19.11.85 as the correct and final seniority list. In this juncture, it is pertinent to note that, though the Tribunal by its judgment dated 14.11.88 in A.P. No.67/87 in which the first respondent bank was a party set aside the award dated 18.11.87 in ARC 5/86, no curiosity was shown and no timely action was taken consequent to the same, as the bank has shown in the case of the award dated 18.11.87 in ARC 5/86. Therefore, the decision of the Ist respondent bank, to approve the seniority list as decided by it as per its resolution No.813 dated 19.11.85, by resolution No.1195 dated 7.12.85 has no legal sanctity and the same is bound to go.. 22. In Ext.P3 judgment, it is observed that the parties to the above writ petition has no dispute that the ratio 1:1 has to be applied. According to the learned Judge, the dispute was regarding the method of OP 12988/02 -:20:- application of the ratio. In Ext.P3 this Court has held: “ 3) The ranking of the Clerks in the third respondent as fixed by the Board of Directors as early as in the year 1986 was settled and remained unchallenged so far those who were not made parties to the challenge raised before the authorities by the petitioners all these years. Any litigation that may have the remote possibility of unsettling the settled position would be just and fair to those who were kept in the dark regarding the challenge to their position in the seniority list all those years and it will not be fair for this court to interfere in the matter. In the circumstances I am not issuing any direction to reopen the settled position. Further there is considerable force in the arguments raised by the respondents to the effect that the adjudication of the grievances set out by the petitioners have been finally settled by Ext.P3 judgment of the Kerala Co- Operative Tribunal. This is all more so because it was at the instance of the petitioners that the jurisdiction of the hierarchy of authorities under the Co-operative Societies Act was invoked earlier for the determination of the dispute in question. In the circumstances the de novo initiation of proceedings on the same cause of action before the same authorities by the petitioners cannot be permitted in view of the settled position of law in this respect.” This court came into such conclusion after hearing the additional 6th respondent herein who is one of the petitioners therein and also the