IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 26TH JULY 2011 / 4TH SRAVANA 1933 WP(C).No. 38073 of 2010(H) --------------------------------------- PETITIONER(S): ------------------------ P.J.MAGY, SECRETARY-IN CHARGE, CHITTATTUKARA SERVICE CO-OPERATIVE BANK LTD., NO. F-1642, CHITTATTUKARA, THRISSUR-680511. BY ADV. SRI.P.N.MOHANAN SMT.I.VINAYAKUMARI RESPONDENT(S): --------------------------- 1. REGISTRAR OF CO-OPERATIVE SOCIETIES THIRUVANANTHAPURAM-PIN-695 001. 2. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES(G) THRISSUR-PIN-680 001. 3. THE CHITTATTUKARA SERVICE CO-OPERATIVBE BANK, LTD.NO.F 1642, REPRESENTED BY PRESIDENT, CHITTATTUKARA, THRISSUR-680 511. 4. GOVERNMENT OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, CO-OPERATIVE DEPARTMENT, SECRETARY, THIRUVANANTHAPURAM-695 001. R1 & R2, R4 BY SR GOVERNMENT PLEADER SRI.S.ABDUL SALAM R3 BY ADV. SRI.V.SUMESH SRI.T.A.SHAIN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.38073/2010 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE ORDER DATED 11/7/1980 OF THE JOINT REGISTRAR CLASSIFYING THE BANK AS CLASS III. P2 COPY OF THE CLASSIFICATION CLASSIFYING THE BANK AS CLASS II W.E.F. 10.81 P3 COPY OF THE RESOLUTION ALONG WITH THE COVERING LETTER AND CONNECTED DOCUMENTS FORWARDED TO THE REGISTRAR. P4 COPY OF THE RECOMMENDATION OF THE ASSISTANT REGISTRAR DATED 5/8/2008. P5 COPY OF THE ORDER DATED 3/3/2010 OF THE REGISTRAR. P6 COPY OF THE RESOLUTION DATED 22/6/83 OF THE MANAGING COMMITTEE REGARDING THE OPENING OF THE POOVATHUR BRANCH. P7 COPY OF THE FEEDER CATEGORY APPROVED ON 11/3/1991. P8 COPY OF THE LETTER DATED 27/2/2010 OF THE ASSISTANT REGISTRAR. P9 COPY OF THE LETTER DATED 11/8/2010 OF THE JOINT REGISTRAR. P10 COPY OF THE STAFF LIST P11 COPY OF THE ORDER OF THE GOVERNMENT DATED 8/12/2010. P12 COPY OF THE COMMUNICATION DATED 15/7/09 OF THE REGISTRAR. P13 COPY OF THE LETTER SENT TO THE JOINT REGISTRAR. P14 COPY OF THE COMMUNICATION DATED 13/4/2010 OF THE JOINT REGISTRAR. P15 COPY OF THE APPEAL DATED 7/4/2010 OF THE PETITIONER. P16 COPY OF THE RESOLUTION DATED 24/3/2010 OF THE MANAGING COMMITTEE. P17 COPY OF THE RESOLUTION OF THE MANAGING COMMITTEE DATED 21/7/2010. RESPONDENT'S EXHIBITS: R3(A) COPY OF THE RESOLUTION DATED 12/1/2011 PASSED BY CO-OPERATIVE SOCIETY. R3(B) COPY OF THE RESOLUTION PASSED BY THE CHITTATTUKARA SERVICECO- OPERATIVE BANK LTD. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 38073 OF 2010 -------------------------- Dated this the 26th day of July, 2011 J U D G M E N T The petitioner entered service as Junior Clerk in the third respondent co-operative society on 1.1.1974. She was promoted as Senior Clerk with effect from 13.10.1978, as Accountant with effect from 12.10.1979 and as Assistant Secretary on 1.7.1983. At the time of entry in service, she possessed a pass in the Secondary School Leaving Certificate Examination and the Junior Diploma in Co-operation. The post of Secretary in the third respondent society became vacant on 31.5.2008. The Managing Committee of the society thereupon placed the petitioner in charge with effect from 1.6.2008. The Managing Committee also adopted a resolution on 24.6.2008 to request the Registrar of Co-operative Societies to exempt the society from the provisions of rule 185(8)(b)(ii) of the Kerala Co-operative Societies Rules for the purpose of promoting the petitioner as the Secretary of the society. A request in that regard, namely Ext.P3 dated 9.7.2008, was forwarded to the Registrar of Co-operative Societies. In the resolution, which is appended to Ext.P3, it was stated that the petitioner has more than 35 years of service and having regard to her long experience the society is seeking the exemption. The Assistant Registrar of Co-operative Societies forwarded the said request to the Joint Registrar of Co-operative Societies, Thrissur along with Ext.P4 letter dated 5.8.2008. The Assistant Registrar recommended the grant of WPC No.38073/2010 2 exemption. 2. The Registrar of Co-operative Societies considered the said request and on noticing that the petitioner was promoted to the category of Assistant Secretary without being promoted to the intermediary post of Branch Manager, directed the Joint Registrar of Co-operative Societies to submit a report in the matter. The Registrar of Co-operative Societies thereafter considered the report submitted by the Joint Registrar of Co- operative Societies and sent Ext.P5 letter dated 3.3.2010 to the Joint Registrar of Co-operative Societies with copies to the Assistant Registrar of Co-operative Societies and the Secretary of the third respondent society to the effect that the request for exemption cannot be granted in view of the fact that the petitioner was promoted to the category of Assistant Secretary without being promoted to the category of Branch Manager. By that letter, the Registrar of Co-operative Societies also also directed the Joint Registrar of Co-operative Societies to take steps to promote the petitioner to the category of Branch Manger. The Joint Registrar of Co-operative Societies in turn sent Ext.P14 letter to the Secretary of the third respondent society whereby the society was directed to cancel the promotion given to the petitioner as Assistant Secretary and to promote her as Branch Manager. The Joint Registrar of Co-operative Societies also informed the Secretary of the third respondent society that from the said direction an WPC No.38073/2010 3 appeal will lie to the Government. 3. As directed in Ext.P14 letter, the petitioner filed Ext.P15 appeal before the Hon’ble Minister for Co-operation. By Ext.P11 letter dated 8.12.2010 the Government informed the petitioner that as the Government have already issued orders on 8.12.2009 directing the Registrar of Co- operative Societies to take an appropriate decision in the matter, the competent authority to take a decision in the matter is the Registrar of Co- operative Societies. The Managing Committee of the third respondent society had in the meanwhile passed Ext.P16 resolution once again requesting the Registrar of Co-operative Societies to exempt the society from the operation of the rule. The said resolution was forwarded to the Assistant Registrar of Co-operative Societies by Ext.P8 letter dated 27.3.2010 and he in turn forwarded it to the Joint Registrar of Co-operative Societies (General) Thrissur for onward transmission to the Registrar of Co-operative Societies. Later, the Managing Committee passed Ext.P17 resolution dated 21.7.2010 and the said resolution was also forwarded through the Assistant Registrar of Co-operative Societies to the Registrar of Co-operative Societies. This writ petition was thereafter filed on 21.12.2010 challenging Exts.P5 and P11 and seeking a declaration that the petitioner is entitled to get exemption under rule 185 (8) of the Kerala Co- operative Societies Rules from possessing a degree. WPC No.38073/2010 4 4. The main contention raised by the petitioner is that though a branch of the bank was inaugurated on 9.7.1983 at Poovathur pursuant to Ext.P6 resolution adopted by the Managing Committee on 22.6.1983, Ext.P7 feeder category rules governing promotion to the category of Branch Manager were approved only on 11.3.1991 and therefore it cannot be said that the petitioner's promotion to the category of Assistant Secretary without being promoted to the category of Branch Manager is irregular. It is also contended that for nearly 25 years the petitioner's promotion was not objected to and as the promotion of the petitioner was otherwise in order, the request for exemption should not have been declined on that score. 5. The second respondent has filed a counter affidavit dated 28.2.2011 wherein it is contended that the petitioner's appointment to the post of Assistant Secretary was irregular. It is also contended that when the petitioner was promoted to the category of Assistant Secretary she had not attained 45 years of age and her promotion to the category of Assistant Secretary is against rule 185(8)(b) of the Kerala Co-operative Societies Rules. It is also contended that even though the feeder category rules were approved only on 11.3.1991, the post of Branch Manager was a post available in the staff pattern of Class II societies like the third respondent society and therefore the petitioner ought to have been promoted as WPC No.38073/2010 5 Branch Manger instead of being promoted to the category of Assistant Secretary. The third respondent society has filed a counter affidavit supporting the petitioner. 6. I heard Sri.P.N.Mohanan, learned counsel appearing for the petitioner, Sri.S.Abdul Salam, learned Government Pleader appearing for respondents 1, 2 and 4 and Sri.T.A. Shain, learned counsel appearing for the third respondent. I have also gone through the pleadings and the materials on record. It is evident from the impugned orders (Ext.P5 and P11) that the request made by the third respondent society for exempting the society from the operation of rule 185(8)(b)(ii) of the Kerala Co- operative Societies Rules for the purpose of appointing a non-graduate as the Secretary of the society was declined on the ground that the petitioner's promotion to the category of Assistant Secretary with effect from 1.7.1983 was irregular. It is contended that a branch was opened at Poovathur on 9.7.1983 pursuant to the resolution adopted by the Managing Committee on 22.6.1983 and therefore the petitioner ought to have been promoted as Branch Manager instead of being promoted to the category as Assistant Secretary. The respondents have no case that the petitioner did not possess the qualifications prescribed for the post of Branch Manager. Even going by Ext.P7 feeder category rules, as the senior most employee of the bank now in service, the petitioner would have been promoted from WPC No.38073/2010 6 the category of Accountant to the category of Branch Manager and thereafter to the category of Assistant Secretary also if the society had been given exemption. The respondents have no case that when the petitioner was appointed as Assistant Secretary anyone senior to her in service was superseded. That apart, the feeder category rules providing for promotion of Head Clerks/Accountants to the category of Branch Manager were approved by the Joint Registrar of Co-operative Societies only on 11.3.1991. Besides that, for the past nearly 25 years the official respondents did not object to the continuance of the petitioner in service as Assistant Secretary. The respondents have no case that the petitioner had not completed 45 years of age as on 1.6.2008 or that she did not have 5 years service in the feeder category. The respondents have no case that qualified graduates who had completed 20 years of service as on 1.6.2008 were awaiting promotion. Such being the situation, I am of the opinion that the stand taken by the respondents in Exts.P5 and P11 cannot be sustained. The Registrar of Co-operative Societies ought to have in my opinion considered the request made by the third respondent society for exemption from the rules for the purpose of appointing the petitioner, a non-graduate as the Secretary of the society, without examining the legality of an order of promotion issued more than 25 years back. I accordingly allow the writ petition, quash Exts.P5 and P11 and WPC No.38073/2010 7 direct the Registrar of Co-operative Societies to reconsider the request made by the third respondent to exempt the society from the stipulations contained in rule 185(8)(b)(ii) of the Kerala Co-operative Societies Rules for the purpose of appointing the petitioner, a non-graduate as the Secretary of the society. A final decision in the matter shall be taken expeditiously and in any event within two months from the date of receipt a certified copy of this judgment after affording the petitioner and the Secretary of the third respondent society an opportunity of being heard. P.N.RAVINDRAN, (JUDGE) vps