IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 24TH FEBRUARY 2009 / 5TH PHALGUNA 1930 WA.No. 2064 of 2004(B) ---------------------- AGAINST THE JUDGEMENT IN WPC.16093/2003 .................... APPELLANTS: PETITIONERS ------------------------- 1. P.GOPAKUMAR, SENIOR ACCOUNTANT, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., ANCHALUMMOOD BRANCH, KOLLAM. 2. A.LATHA, SENIOR ACCOUNTANT, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., PARAVOOR BRANCH. 3. K.VIJAYACHANDRAN, SENIOR ACCOUNTANT, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., HEAD OFFICE, KOLLAM. 4. P.BHARGAVAN PILLAI, SENIOR ACCOUNTANT, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., KANNANELLOOR BRANCH. 5. SUGANTHI.Y., SENIOR ACCOUNTANT, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., KOLLAM BRANCH, KOLLAM. 6. K.PUSHPAKUMARI AMMA, SENIOR ACCOUNTANT, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., SASTHAMCOTTA BRANCH. 7. K.GOPALAKRISHNAN, SENIOR INSPECTOR, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., CHAKKUVALLY BRANCH. 8. S.SHERAFUDEEN KUNJI, SENIOR ACCOUNTANT, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., KUNHIKODE BRANCH. BY ADV. SRI.P.RAVINDRAN, SENIOR ADVOCATE WA 2064/04 RESPONDENTS:RESPONDENTS: ------------------------------------- 1. KOLLAM DISTRICT CO-OPERATIVE BANK LTD., REPRESENTED BY ITS GENERAL MANAGER, HEAD OFFICE, KOLLAM. 2. GOVERNMENT OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 3. REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM. 4. K.CICILY, JUNIOR ACCOUNTANT, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., HEAD OFFICE, KOLLAM. 5. P.CHANDRAN PILLAI, SENIOR INSPECTOR, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., ANCHAL BRANCH. 6. K.MURALEEDHARAN PILLAI, SENIOR ACCOUNTANT, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., PUTHUR BRANCH. *7. S.REMANI BAI, SENIOR ACCOUNTANT, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., KUNDARA BRANCH.(DELETED) 8. A.B.RAJENDRAN PILLAI, SENIOR ACCOUNTANT, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., HEAD OFFICE, KOLLAM. *9. G.KUNJACHAN, SENIOR ACCOUNTANT, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., KOTTARAKKARA EVENING BRANCH.(DELETED) 10. C.RAVINDRAN, SENIOR ACCOUNTANT, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., CHAMAKKADA BRANCH. 11. G.SUDHAKARAN, SENIOR ACCOUNTANT, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., HEAD OFFICE. *12. D.SUJATHAN, SENIOR ACCOUNTANT, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., CHATHANNOOR BRANCH.(DELETED) *13. R.RAVINDRAN PILLAI, SENIOR ACCOUNTANT, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., THEVALAKKARA BRANCH.(DELETED) 14. R.SUGATHAN, SENIOR INSPECTOR, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., KOLLAM BRANCH. WA 2064/04 15. R.RAVINDRA KURUP, SENIOR ACCOUNTANT, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., SASTHAMCOTTA BRANCH. 16. L.PRABHAVATHY, SENIOR ACCOUNTANT, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., KOTTARAKKARA BRANCH. 17. A.SURENDRAN, SENIOR INSPECTOR, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., PUTHUR BRANCH. 18. K.N.LALITHAMBIKA, SENIOR ACCOUNTANT, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., CHATHANNOOR BRANCH. 19. K.K.SASIDHARAN, SECRETARY, (ON DEPUTATION) URUKUNNU SERVICE CO-OP. BANK, PUNALUR. 20. G.BAHULEYAN, SENIOR ACCOUNTANT, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., KOLLAM BRANCH. 21. P.V.RAVINDRAN, SENIOR INSPECTOR, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., KUNDARA BRANCH. 22. C.VIDYADHARAN PILLAI, SENIOR ACCOUNTANT, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., CHADAYAMANGALAM BRANCH. 23. K.SIVASANKARAN UNNITHAN, SENIOR INSPECTOR, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., CHATHANNOOR BRANCH. 24. K.RAJENDRAN, SENIOR ACCOUNTANT, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., KARUNAGAPPILLY BRANCH. 25. H.KANAKALATHA PILLAI, SENIOR ACCOUNTANT, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., KARUNAGAPPILLY BRANCH. 26. N.KUTTAN PILLAI, SENIOR ACCOUNTANT, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., PUTHUR BRANCH. 27. T.SASIDHARA PRASAD, SENIOR ACCOUNTANT, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., KARUNAGAPPILLY BRANCH. 28. A.HABEEB, SENIOR INSPECTOR, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., PUNALUR BRANCH. WA 2064/04 29. A.KOCHURAMAN, SENIOR ACCOUNTANT, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., CHAKKUVALLY BRANCH. 30. K.KRISHNANKUTTY, SENIOR ACCOUNTANT, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., MANAPPALLY BRANCH. 31. R.RAJENDRAN PILLAI, SENIOR ACCOUNTANT, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., KANNANALLOOR BRANCH. 32. T.RAMACHANDRAN, SENIOR ACCOUNTANT, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., SASTHAMCOTTAH BRANCH. 33. V.RAJAN NAIR, SENIOR ACCOUNTANT, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., HEAD OFFICE BRANCH. 34. V.SREEKUMAR, SENIOR ACCOUNTANT, KOLLAM DISTRICT CO-OPERATIVE BANK LTD., CHAVARA BRANCH. *R7, R9, R12 & R13 ARE DELETED FROM THE PARTY ARRAY AS PER ORDER DT. 11.2.09 IN I.A.127/09. ADV .SRI.B.VINOD SC KOLLAM DC FOR R1 SRI.B.SURESH KUMAR FOR R8 SRI.T.V.NEEMA SRI.K.RAMAKUMAR, SENIOR ADVOCATE GOVERNMENT PLEADER SRI.LEO GEORGE SRI.V.G.ARUN FOR R4,22, 24, 27, 32 SMT.C.G.PREETHA FOR R8 SRI.B.SURESH KUMAR FOR R14,15,17-21&31 SRI.T.R.HARIKUMAR FOR R4, R22,24,27 & 33 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 17/02/2009, THE COURT ON 24/02/2009 DELIVERED THE FOLLOWING: KURIAN JOSEPH & S.S. SATHEESACHANDRAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No.2064 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 24th February, 2009 JUDGMENT Kurian Joseph,J. The petitioners in W.P.C.No.16093 of 2003 are the appellants. The Writ Petition was filed mainly with the following prayers: a) declare that Ext.P2 to the extent it violates Rule 185 (8) of the Co-operative Societies Rules, enabling the Managing Committee to grant exemption from acquisition of basic qualification, respective of the date of entry in service as unconstitutional and ultravires the rules making power of the Government. b) call for the records leading to Exts.P1 and P4 and quash the same by the issue of a writ in the nature of certiorari or any other such appropriate writ, order or direction. c) stay the operation of Exts.P1 and P4, pending disposal of the writ petition. d) issue any other such writ, order or direction as this Hon'ble Court may deem fit and necessary in order to meet the ends of justice on the facts and in the circumstances of the instant case. WA NO.2064/04 2 The issue pertains to promotion in the 1st respondent-Co-operative society. The party respondents though seniors do not possess the academic qualification. Rule 185(8) of the Kerala Co-operative Societies Rules however permits the managing committee of the society to relax the qualification with prior approval of the Registrar. As per the impugned Exts.P1 and P4 orders, the Committee in management of the Society promoted the party respondents anticipating approval from the Registrar required under Rule 185(8) of the Kerala Co-operative Societies Rules, 1969. It appears that the initial attempt for relaxation of qualification was returned since the request was defective and thereafter fresh resolution was taken in the matter of relaxation of qualification and the Bank submitted another request for relaxation of qualification on 7.4.2004. That request was granted as per Ext.R1(d) and Ext.R1(e) orders dated 22.5.2004. Ext.R1(d) is in respect of one set of officers and Ext.R1(e) is in respect of another set. Those orders were passed when the Writ Petition was pending. The learned Single Judge held that promotions and postings are matters of internal administration and normally a writ will not lie. With reference to the contention that the promotions can be made only with respect to the date of occurrence of the vacancy, it was further held that occurrence of vacancy by itself will not confer a right on a WA NO.2064/04 3 qualified person to claim promotion as of right. Still further it was held that there is no irregularity in giving promotion to a senior provisionally and in anticipation of relaxation. The learned Single Judge also observed that subsequent orders Exts.R1(d) and R1(e) had adequately taken note of the situation. Thus, the Writ Petition was dismissed and hence, the appeal. 2. Mr.P.Ravindran, learned Senior Counsel submitted that prayer (a) in the Writ Petition is not pressed and that the grievance is limited to prayers (b) and (c). As already observed by us above, the essential grievance is with respect to the promotion to the unqualified seniors in the 1st respondent-Bank. Rule 186 of the Kerala Co-operative Societies Rules provides that only those employees possessing the prescribed qualification can be considered for promotion. But realising that the prescription of the qualification would create heart-burn to the existing employees, a provision for relaxation of the qualification was introduced as Rule 185(8) which reads as follows: “It shall be competent for the committee of a society to relax the qualification, other than pass in the competitive examination, specified in sub-rule (5), of an employee, for the purpose of promotion, in deserving cases, with the prior approval of the Registrar, and for WA NO.2064/04 4 reasons to be recorded.” The main contention of the learned Senior Counsel is that the Registrar having given approval only by Exts.R1(d) and R1(e) orders dated 22.5.2004, there has to be a consequential order by way of promotion since promotion could not have been effected before granting approval to the relaxation of qualification as proposed by the Committee. 3. The learned Special Government Pleader submits that though the expression is prior approval, since the question of promotion can be considered only when the vacancy arises, it has been the practice to promote the available senior provisionally, in anticipation of the relaxation from the qualification. It is also brought to our notice that the selection by way of a competitive examination for assessing the merit and ability is also not insisted now in view of the order by the Apex Court to maintain status quo with regard to the competitive examination. 4. Even otherwise we find from Exts.R1(d) and R1(e) orders that the Registrar of the Co-operative Society who is the competent authority to issue appropriate guidelines in the matter has taken note of the situation and has made it clear in those orders that “promotion if any given by the bank to the incumbents before getting educational WA NO.2064/04 5 exemption from Registrar of Co-operative Societies is with effect from this order.” Thus, the promotion, if any given by the Bank in anticipation of the approval for the relaxation of educational qualification proposed by the Committee has effect only from 22.5.2004, the date of Exts.R1(d) and R1(e). There is no dispute that the Registrar is competent to issue such a clarification regarding the date of effect of the promotion. According to the petitioners also, any promotion in relaxation of qualification can be given only after the approval by the Registrar of the relaxation in educational qualification as proposed by the Committee. The Registrar has granted the approval only on 22.5.2004. Therefore, the promotion takes effect only from 22.5.2004. Another contention advanced by the learned Senior Counsel is that the appellants having been duly promoted on 7.3.2005, the promotions granted to the party respondents as per Exts.P1 and P4 read with Exts.R1(d) and R1(e) orders cannot have any adverse impact on them. Whether such promotions can have any adverse impact on them or not, is not an issue for this court at this stage to embark on adjudication. These are matters coming under Section 69(2)(d) of the Kerala Co-operative Societies Act and it is for the appellants-petitioners to take recourse to such remedy before the Co-operative Arbitration Court. Though Exts.R1(d) and R1(e) orders WA NO.2064/04 6 are also not under challenge, in case the appellants have any grievance with regard to those orders, the appellants have an effective statutory remedy under Section 83(1) (j) before the Government by way of an appeal. Therefore, we make it clear that the judgment under appeal will not stand in the way of the appellants pursuing their statutory remedies either before the Co-operative Arbitration Court or before the Government. Subject to the above clarification, the Writ Appeal is dismissed. All pending interlocutory applications are closed. KURIAN JOSEPH, JUDGE srd S.S. SATHEESACHANDRAN, JUDGE WA NO.2064/04 7