IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 17TH JULY 2008 / 26TH ASHADHA 1930 OP.No. 10147 of 2003(G) ------------------------------------ PETITIONER: ---------------------- ABRAHAM C.VARKEY, S/O.C.J.VARKEY, CHIRAYIL HOUSE, VADAVATHOOR VILLAGE, KOTTAYAM TALUK. SECRETARY (ON LEAVE) THE KOTTAYAM CO-OP.AGRICULTURAL & RURAL DEVELOPMENT BANK LTD., BY ADV. SRI.K.SASIKUMAR SRI.SURIN GEORGE IPE RESPONDENTS: -------------------------- 1. THE R5EGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM. 2. THE KOTTAYAM CO-OPERATIVE AGRICULTURAL & RURAL DEVELOPMENT BANK LTD., POST BOX NO.198, KOTTAYAM-1, REPRESENTED BY THE PRESIDENT-IN-CHARGE. 3. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIATE, THIRUVANANTHAPURAM. 4. C.N.REGHUNANDANAN, THE KOTTAYAM CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD., KOTTAYAM-1 BY GOVERNMENT PLEADER SRI. P.K.RAVIKRISHNAN- R1 & R3 BY ADV. SRI.V.G.ARUN - R2&4 SRI.S.GOPAKUMARAN NAIR THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 17/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON C.M.P.NO.17547/2003 , I.A.NOS.10961 & 12336/2006 IN O.P.NO.10147/2003 G DISMISSED 17/07/2008 SD/-THOTTATHIL B.RADHAKRISHNAN,JUDGE APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PROCEEDINGS OF THE PRESIDENT OF THE 2ND RESPONDENT DTD. 23/12/83, BY WHICH LEAVE WAS SANCTIONED. EXT.P2: COPY OF THE APPLICATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DTD. 29/10/2001 FOR REJOINING THE DUTY. EXT.P3: COPY OF THE ORDER OF THE PRESIDENT OF THE 2ND RESPONDENT DTD. 23/03/2002, DIRECTING THE PETITIONER REJOINING DUTY AS THE SECRETARY OF THE BANK. EXT.P4: COPY OF THE PETITION DTD. 30/03/2002 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P5: COOPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DTD. 25/04/02 DIRECTINGS THE PETITION TO JOIN DUTY. EXT.P6: COPY OF THE PETITION DTD. 20/04/2002 FILED BEFORE THE 1ST RESPONDENT. EXT.P7: COPY OF THE OBJECTION FILED BY 2ND RESPONDENT DTD. NIL. EXT.P8: COPY OF THE ORDER DTD. 15/02/2003 PASSED BY THE 1ST RESPONDENT. EXT.P9 &P9(A):COPY OF THE PROFIT AND LOSS ACCOUNT, PAGE 9 AND THE INDEX SHOWING THE PROGRESS SHOWN IN ANNUAL REPORT DTD. 8/11/2001 OF THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: EXT.R2(A): COPY OF THE AGREEMENT DTD. 23/0/1979. EXT.R2(B): COPY OF THE PROCEEDINGS OF THE PRESIDENT NO.F1-(ACV) 8788 DTD. 6TH JUNE, 88. EXT.R2(C): COPY OF THE RESOLUTION NO.VII DTD. 14/12/2001. EXT.R2(D): COPY OF THE PROGRESS REPORT OF THE BANK FOR THE LAST 10 YEARS. /TRUE COPY/ Kss P.A.TO JUDGE THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.10147 OF 2003 ------------------------------------------- Dated this the 17th day of July, 2008 JUDGMENT Petitioner, then secretary of the second respondent, availed long leave without allowance for foreign service, on 23.12.1983. He, thereafter, thought it fit to return and made Ext.P2 representation on 29.10.2001. In the interregnum, the 4th respondent has moved up the ladder in the administration of the second respondent and had become the secretary of the second respondent. The committee of the second respondent decided to park the 4th respondent as the Chief Executive of the second respondent and obtained an order on 16.3.2002 from the Registrar, whereby, such a supernumerary post was created to take care of that situation. The laudable objective that rested with the Registrar and the second respondent society was that the 4th respondent had contributed his mind in surviving the society and therefore, deserves to be placed as the Chief Executive. With the passage of time, he has demitted office on superannuation. OP.10147/03 Page numbers 2. The issue in hand is as to whether the petitioner was entitled to come back and stake claim for restoration of seniority over the 4th respondent and thereby become entitled to be appointed as the Chief Executive in lieu of the 4th respondent. This issue is projected by the petitioner with reference to the principle that there could be restoration of seniority and placement in the promotion post provided the junior to such an incumbent had not been promoted before the return of a person like the petitioner, cancelling the leave for foreign service. But that contention will not apply to the case in hand for two reasons. Firstly, by Ext.P3, the petitioner was permitted to rejoin duty and the 4th respondent was appointed as Chief Executive. That order was issued on 23.3.2002. Petitioner was permitted to rejoin on 1.4.2002. Admittedly, he did not rejoin duty on or before 1.4.2002 because, even as per Ext.P4 dated 30.2.2004, he was only complaining about the decision in Ext.P3 to appoint the 4th respondent as the Chief Executive. According to the petitioner, going by Ext.P4, he was entitled to be appointed as the Chief Executive in lieu of the 4th respondent. OP.10147/03 Page numbers These materials will show that the appointment of the 4th respondent as Chief Executive took effect on 23.3.2002, the date of Ext.P3 order and therefore, even assuming that the post of Chief Executive is a promotion post from the category of secretary, such promotion of the 4th respondent was effected even before the petitioner rejoined duty, after enjoying or cancelling the leave for foreign service. As a matter of fact, he has not rejoined duty even now, since he wanted always to rejoin duty as Chief Executive and not secretary. This is clear from the fact that he filed an interlocutory application in this writ petition seeking that he may be permitted to rejoin duty. 3. The second ground on which the argument of the petitioner fails is that no feeder category rule is pointed out by the petitioner, whereby, the post of Chief Executive in the service of the second respondent is the promotion post from the category of secretary. In fact, there is no such post. The post of Chief Executive occupied by the 4th respondent till his retirement was a supernumerary one, created with the sanction of the Registrar, OP.10147/03 Page numbers to tie over the particular administrative scenario noticed above and to provide appropriate slot for the 4th respondent even if the petitioner was rejoining as secretary. For the aforesaid reasons, this writ petition fails. The same is accordingly dismissed. However, it shall not stand in the way of the petitioner moving the second respondent for an opportunity to rejoin duty as secretary. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge kkb.21/7. OP.10147/03 Page numbers ======================= THOTTATHIL B. RADHAKRISHNAN, J O.P.No.10147 OF 2003 JUDGMENT 17TH JULY, 2008. =======================