IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 26TH MARCH 2009 / 5TH CHAITHRA 1931 OP.No. 9407 of 2002(T) ----------------------------- PETITIONER(S): --------------- K.S.RADHA, W/O.P.R.RADHAKRISHNAN, PALIVATHUKKAL HOUSE, ESI ROAD, PALLURTHY, COCHIN-6. BY ADV. MR.N.N.SUGUNAPALAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT CO-OPERATIVE DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, ERNAKULAM. 3. KUZHUPPILLY SERVICE CO-OP. BANK LTD., KUZHUPPILLY, ERNAKULAM DISTRICT. REPRESENTED BY THE SECRETARY. 4. N.B.CHANDRAHASAN, MANAGER, KUZHUPPILY SERVICE CO-OPERATIVE BANK LTD., KUZHUPILLY, ERNAKULAM DISTRICT. 5. T.B.JOSHY, MANAGER, KUZHUPPILY SERVICE CO-OPERATIVE BANK LTD., KUZHUPPILLY, ERNAKULAM DISTRICT. ADV. MR.P.V.SURENDRANATH FOR R3 MR. P. RAMAKRISHNAN THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 26/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 9407 of 2002 ORDER ON C.M.P.NO.16807 OF 2002 IN O.P.NO.9407 OF 2002 CLOSED. 26.3.2009 SD/- S. SIRI JAGAN, JUDGE. APPENDIX PETITIONER'S EXHIBITS EXT.P1: COPY OF LETTER ISSUED BY THE BANK TO THE PETITIONER DATED 15-7-1991. EXT.P2: COPY OF LETTER DATED 19.7.1991 SENT BY THE PETITIONER TO THE PRESIDENT OF THE BANK. EXT.P3: COPY OF COMPLAINT DATED 27-7-1991 FILED BY THE PETITIONER TO THE DEPUTY REGISTRAR OF CO-OPERATIVE SOCIETIES. EXT.P4: COPY OF THE BYE-LAWS OF THE SOCIETY. EXT.P5: COPY OF THE REPRESENTATION FILED BY THE PETITIONER ON 19-8-1991. EXT.P6: COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 13-5-1994. EXT.P7: COPY OF THE JUDGMENT IN O.P.NO.24894/98 DATED 15-12- 1998. EXT.P8: COPY OF THE ORDER NO.CRP 8336/98/K.DIS. DATED 4-2-1999. EXT.P9: COPY OF THE ORDER DATED 1-12-1979 BY THE DEPUTY REGISTRAR OF CO-OPERATIVE SOCIEITES ERNAKULAM. EXT.P10: COPY OF THE JUDGMENT INO.P.NO.5614/99 DATED 14-2-2002. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ O.P.No.9407 OF 2002 ---------------------------------------- Dated this the 26th day of March, 2009 JUDGMENT The petitioner is an accountant in the 3rd respondent Kuzhuppilly Service Co-operative Bank Limited. She joined the Bank as a Junior Clerk on 15.6.1979. She was subsequently promoted as Senior Clerk and later as an Accountant on 1.4.1987. In 1991, the Manager’s post became vacant. By Ext.P1 memo, dated 15.7.1991, the petitioner was directed to appear for a written test to be conducted on 20.7.1991 and an interview thereafter, for the purpose of selecting persons for appointment to the post of Manager. The petitioner did not participate in the written test; instead she filed Ext.P2 representation dated 19.7.1991 taking the stand that the promotion to the post of manager shall only be by seniority and no written test and interview can be conducted for that purpose. The same was followed up by Ext.P3 representation dated 27.7.1991. At that time, Ext.P4 feeder category sub rules were in force in the bank, which contemplated promotion to the post of O.P.No.9407/02 2 officers, which expression was defined to include Manager, by selection in a test and interview conducted for that purpose. After conducting the test and interview, the bank promoted the 3rd respondent as Manager on 29.7.1991. The petitioner filed Ext.P5 representation dated 19.8.1991, before the Joint Registrar contending that Ext.P4 feeder category sub rules are against the provisions of the Kerala Co-operative Societies Act and Rules which prescribed promotion only the basis of seniority and therefore disadvantageous to the employees. By Ext.P6 dated 13.5.1994, the Joint Registrar of Co-operative Societies directed the Society to appropriately amend the feeder category sub rules, since it would affect the right of the senior employees for promotion on the basis of seniority. However, the same was not done by the Society. In the meanwhile, the petitioner filed a complaint before the 2nd respondent. This Court by Ext.P7 judgment dated 15.12.1998, in O.P.No.24894/1998 directed the 2nd respondent to consider the representation and made it clear that if any promotion is effected overlooking the petitioner’s right, the same would be provisional and subject to the decision taken by the 2nd O.P.No.9407/02 3 respondent. In the meanwhile the 4th respondent was also promoted as Manager on 15.1.1999. Pursuant thereto, the 2nd respondent considered the representation and passed Ext.P8 order dated 14.2.1999, rejecting the contentions of the petitioner and upholding the appointment of respondents 3 and 4. The petitioner challenged the same by filing O.P.No.5614/99. By Ext.P10 judgment dated 14.2.2002, that challenge was repelled by this Court on the ground that the promotion was based on existing feeder category sub rules and the rules are not under challenge as well. Thereafter, the petitioner has filed this original petition on 3.4.2002 challenging Ext.P4 feeder category sub rules, Ext.P9 order dated 28.11.1979 approving Ext.P4 and Ext.P8 order of the Joint Registrar seeking cancellation of promotion given to respondents 3 and 4 with a further prayer to promote the petitioner as Manager. According to the petitioner, the feeder category sub rules violate Rule 185 of the Kerala Co-operative Societies Rules, in so far as the Rule 185 contemplates promotions only by seniority and there feeder category sub rules framed under that Rule cannot go counter to the said O.P.No.9407/02 4 Rule. The petitioner also relies on the decision of this Court in Chandran V. State of Kerala [1994(1) KLT SN 27(Case No.26)] in support of her contention. The contention is that as per that decision, this Court held that only for extraordinary reasons can a promotion be made against seniority in the feeder category. 2. The respondents oppose the contentions of the petitioner. According to them, the feeder category sub rules were framed in accordance with Rule 185 of the Kerala Co- operative Societies Rules as it stood in the year 1979. They contend that Ext.P4 feeder category sub rules were approved by the Deputy Registrar of Co-operative Societies by Ext.P9 order dated, 28.11.1979. They would submit that it is too late in the day for the petitioner to challenge Ext.P4 feeder category sub rules, which were approved as early as on 28.11.1979 and that therefore the promotion of respondents 4 and 5 was strictly in accordance with law. 3. I have considered the rival contentions in detail. 4. I am of opinion that Ext.P10 judgment stand in the way of the petitioner challenging the promotions given to O.P.No.9407/02 5 respondents 4 and 5. Ext.P8 order and the promotions given to respondents 4 and 5 pursuant to Exts.P1 and P4 were made subject matter of challenge by the petitioner in O.P.No.5614/99. In that original petition, this Court passed the following judgment: “Petitioner is aggrieved by Ext.P8 order passed by the Joint Registrar. By Ext.P8, the Joint Registrar has come to the conclusion that the promotions granted to 4th and 5th respondents cannot be faulted since the promotions were made in accordance with Ext.P4 Feeder Category Sub Rules. It is the case of the petitioner that Feeder Category Sub Rules is against the provisions of the Act and Rules. But the fact remains that the Sub Rules were there as early as in 1979 as can be seen from Ext.P9 and the petitioner herself is governed by the said Sub Rules from the time of her joining the service. True, there is a direction by the Joint Registrar to look into the aspect of proper amendment to the Feeder Category Sub Rules since apparently according to the Joint Registrar, the existing Sub Rules has the effect of marring the chances of promotions on the basis of seniority. That is a matter for the Society to look into and take appropriate action. But any action on Ext.P6 will not help the petitioner in the instant case since the promotion effected pursuant to Ext.P1 is based on the existing Feeder Category Sub Rules and the Rules are not under challenge as well. Therefore, I dismiss this Original Petition making it clear that the society of which the third respondent is the Secretary shall take appropriate steps pursuant to Ext.P6 direction issued by the second respondent within a period of two months from the date of production of a copy of the judgment”. O.P.No.9407/02 6 In that, this Court had not reserved any right to the petitioner to again challenge promotion given to respondents 4 and 5, after challenging the feeder category sub rules also. Ext.P10 judgment has become final and therefore, the petitioner cannot now rake up the issue in the guise of challenging the feeder category sub rules also. 5. Even otherwise, I do not find any merit in the challenge against the feeder category sub rules, which were approved as early as in 1979. Nobody could appraise me of Rule 185 as it stood in 1979 on the basis of which the feeder category sub rules were framed in 1979. But the present book on Law of Co-operative Societies contains Rule 185 prior to its amendment in 1998, which reads thus: “185. Promotions:- (1) Appointments to higher categories of service in a Society shall ordinarily be made by promotion from among members eligible for appointment to such category in accordance with these rules on the basis of seniority in the feeder category. The feeder category for this purpose shall be prescribed by the society by framing suitable subsidiary regulations with the approval of the Registrar. (1A) the Registrar shall have powers to issue guidelines for adoption by the co-operative institutions with regard to fixing of seniority of employees/inter se seniority of employees of different categories. (2) It shall be competent for the committee of a O.P.No.9407/02 7 society to relax the qualifications of an employee, whether appointed before or after the commencement of these rules, for the purpose of promotion, in deserving cases, with prior approval of the Registrar and for reasons to be recorded”. (underlining supplied) Unlike in the present Rule 185 there was no stipulation in the rule prior to 1998 that the promotions shall be on the basis of seniority in the feeder category. What the rules stipulated before 1998 was that appointments to higher categories of service in a Society shall ordinarily be made by promotion from among members eligible for appointment to such category in accordance with the rules on the basis of seniority in the feeder category. It further stated that the feeder category for those purpose shall be prescribed by the Society by framing suitable subsidiary regulations with the approval of the Registrar. Therefore, at that time, the rules themselves contemplated framing of feeder category rules for promotion otherwise than on the basis of seniority in the feeder category in special circumstances. In Ext.P4 feeder category rules, it has not been stated that all promotions shall be on the basis of a written test and interview. It is only in respect of two posts O.P.No.9407/02 8 the promotion was made on the basis of written test and interview. One of these posts is that of officer, which is defined to include the post of Manager also. The post of Manager in a Co-operative Society is a very important post which requires much more than mere clerical efficiency for managing the entire bank. One should have management skills and administrative capacity also. Therefore the post of manager required out of ordinary recruitment rules for appointment on the basis of merit and ability. Certainly that only could have been the reason why at the relevant time, Ext.P4 feeder category rules were approved by the department. As such, I do not find anything wrong with Ext.P4 feeder category sub rules framed by the Bank in accordance with the rules as it obtained at the relevant time, which permitted framing sub rules for promotion on the basis of merit and ability. 6. I also find that even under the present Rule 185, in respect of posts mentioned in sub rule 2 the promotion is by selection in accordance with merit and ability. One of the posts mentioned in sub rule 2 is Asst. Secretaries/Manager in O.P.No.9407/02 9 Primary Co-operative Societies and Urban Banks having a deposit of more than Rs. 10 crores. The petitioner nor the respondents could tell me whether this Society is a Primary Co-operative Society having a deposit of more than Rs.10 crores. I mention this only to show that the question of promotion by selection on the basis of seniority and ability is not alien to the present Rule 185 also in the case of Managers of Primary Co-operative Societies. Reliance by the learned counsel for the petitioner on the Chandran’s case (supra) does not appear to be appropriate. That decision only said that for extraordinary reasons even if there are feeder category sub rules and senior qualified hands are available for promotion, it is open for the Society to effect appointment/promotion without considering the seniority in the feeder category. The contention of the petitioner is that no extraordinary reasons are mentioned in this case for promotion to the post of manager otherwise than on the basis of seniority. I am of opinion that it is the other way round. It is only where the feeder category sub rules stipulate that the promotion shall only be by seniority then the question of recording O.P.No.9407/02 10 extraordinary reasons for promotion other than by seniority arise. In this case, the feeder category sub rules themselves stipulated promotion by selection to the post of Manager. Therefore, the said decision does not support the petitioner's case. On the other hand, if at all, it supports the case of the respondents. For all the above reasons, I do not find any merit in the challenge against Ext.P4, P8, P9 and the promotions given to respondents 4 and 5 on the basis of Ext.P4 feeder category sub rules. Accordingly, the original petition is dismissed. S. SIRI JAGAN, JUDGE Acd O.P.No.9407/02 11