IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 19TH JUNE 2009 / 29TH JYAISHTA 1931 WP(C).No. 37004 of 2008(E) -------------------------- PETITIONER(S): 1 ---------------- A.AMBUJAKSHI AGED 57, W/O. SETHU MADHAVAN, SETHU VIHAR THENHIPALAM P.O., MALAPPURAM DT. PIN 673 636. BY ADV. SRI.E.NARAYANAN RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, CO-OPERATIVE DEPARTMENT THIRUVANANTHAPURAM. 2. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) MALAPPURAM. 3. THE REGISTRAR OF CO-OPERATIVE SOCIETIES THIRUVANANTHAPURAM. 4. THE THENHIPALAM SERVICE CO-OPERATIVE BANK LTD, NO.D-1969, REPRESENTED BY ITS SECRETARY THENHIPALAM PO, MALAPPURAM DT. 5. THE SECRETARY THE THEHIPALAM SERVICE CO-OPERATIVE BANK LTD, NO.D-1969, THENHIPALAM PO, MALAPPURAM DT. 6. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM. ADV. SRI.R.SUDHISH FOR R4,5 SMT.M.MANJU FOR R4,5 MR.I.V.PRAMOD, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.37004/2008 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF THE RESOLUTION DATED 20/05/2004 TAKEN BY THE BOARD OF DIRECTORS OF R4 BANK. P2 : COPY OF ORDER DATED 18/08/2006 PASSED BY R2. P3 : COPY OF NOTES OF ARGUMENTS SUBMITTED ON BEHALF OF THE PETITIONER IN APPEAL NO.13600/C3/CO-OP. P4 : COPY OF ORDER DATED 05/11/2008 OF R1. P5 : COPY OF ORDER DATED 26/03/2009 PASSED BY R2. //TRUE COPY// PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.37004 of 2008 --------------------------------- Dated, this the 19th day of June, 2009 J U D G M E N T On 04/10/1979, the petitioner, who was a matriculate and JDC, was appointed in the respondent Bank as a Junior Clerk. She was promoted as senior clerk on 20/07/1984, and again as Accountant with effect from 01/01/2002. It is stated that the Bank became a Class I Bank with effect from 22/03/2001, and with the change in the staff pattern, the petitioner was promoted as Internal Auditor with effect from 01/04/2002. Though for the post of Internal Auditor, qualification required is Graduation, the Society passed resolution relaxing the qualification in terms of the provisions contained under Rule 185(8) of the Kerala Co-operative Societies Rules. Approval was declined by the Joint Registrar as per Ext.P2, and appeal to the 1st respondent was also rejected by Ext.P4. It is in view of this the writ petition has been filed, challenging Exts.P2 & P4 and for a declaration that the petitioner is entitled to be promoted as Internal Auditor with effect from 01/04/2002. WP(C) No.37004/2008 -2- 2. In Ext.P2, two reasons are stated. One is that although the post of Internal Auditor was sanctioned and the regulations approved only with effect from 23/07/2005, the petitioner was promoted with effect from 01/04/2002. It is also stated that unless a person completes five years in the feeder category, promotion cannot be effected relaxing qualification. 3. In Ext.P4 appellate order, the reasoning of the 1st respondent is as follows:- “Shri.Krishna Kumar, Office of the Registrar of Co-operative Societies has stated that the Society promoted Smt.Ambujakshi with effect from 01/04/2002 without prior approval of the Registrar of Co-operative Societies and it is against the rules. Shri.Ravi kumar, Joint Registrar of Co-operative Societies (General) has stated that as per Rule 185 of KCS Rules, the Society/Bank should obtain prior approval for the promotions of employees. In the instant case Smt.Ambujakshi was promoted on 01/04/2002 and at that time, the staff pattern of the Bank was not approved, the post of Internal Auditor post was sanctioned on 26/03/2005. The feeder category Rules of the Bank was approved on 23/07/2005 and therefore the promotion given to Smt.Ambujakshi was invalid.” 4. In so far as the finding that the post was sanctioned with effect from 23/07/2005 and that the appointment was made on 01/04/2002 is concerned, the learned counsel for the petitioner WP(C) No.37004/2008 -3- submits that till 22/03/2001, the Society was a Class II Society and from 22/03/2001 onwards, the Society became a Class I Society. It is stated that with the change in classification, staff pattern changes as provided in Appendix III, and to make consequent appointments, no sanction is necessary. Reliance is placed on a Division Bench judgment of this Court in Elampal Service Co-operative Bank Ltd. v. Government of Kerala (2000(3) KLT 389). 5. In so far as the finding that five years residency in the feeder category is needed to grant relaxation is concerned, it is stated that such a condition was incorporated in Rule 185(8)(b)(ii) only with effect from 03/09/2005. According to the learned counsel, any resolution passed under Rule 185(8) before 03/09/2005 will be effective from the date of resolution itself. Reliance is placed on the judgment in the case of Dasan v. Registrar of Co-operative Societies (2007(1) KLT 581). He contends that since the resolution was passed much prior to the amendment, the amendment has no relevance. 6. The learned Government Pleader on the other hand submits that promotion would be possible only if regulations are framed and approved. In so far as the respondent Society is WP(C) No.37004/2008 -4- concerned, regulations providing for the feeder category were framed and approved only on 23/07/2005. It is stated that promotion would be effective only thereafter, and from not prior to that date. 7. As far as the condition of five years residency in the feeder category is concerned, the learned Government Pleader submits that though the Rule was amended only with effect from 03/09/2005, during the prior period, Government Order dated 22/03/1989 and Circular No.22/89 dated 12/04/1989 governed the field and that similar conditions were incorporated in the Government order and Circular. It is pointed out that in the judgment in Kuttipuram Service Co-operative Bank v. State of Kerala (2004(2) KLT 73), though this Court has held that the Government Order is ineffective, this Court has not interfered with Circular No.22/89 issued by the Registrar exercising his powers under Section 66A of the Co-operative Societies Act. On this basis, the learned Government Pleader sought to justify Exts.P2 & P4. 8. I have considered the submissions made. The Rule 185 (1) provides that subject to the provisions of Sub Rules 2, 3 & 4, appointments to the posts other than those mentioned in the WP(C) No.37004/2008 -5- aforesaid sub rules shall be made by promotion on the basis of seniority in the feeder category. The Rule also provides that the feeder categories for the purpose of promotion shall be specified by the Society by framing suitable regulation with the approval of the Registrar. Rule 185(8) enables the Registrar to relax the qualification, but does not enable any relaxation from the feeder category Rules. Therefore, any promotion is possible only from the feeder category included in the regulation framed, with the approval of the Registrar. In this case, promotion of the petitioner to the post of Internal Auditor was effected with effect from 01/04/2002, whereas it is the admitted position that the feeder category regulations were approved only with effect from 23/07/2005. If that be so, the promotion could not have been effected prior to 23/07/2005. The learned counsel for the petitioner contended that in a case where relaxation is granted as per Rule 185(8), Rule 185(1) is inapplicable. I am not in a position to accept this contention. As already noticed Rule 185(8) only enables the Registrar to relax the qualification and no relaxation from the feeder category Rules has been provided for. Therefore, approval of regulation providing for feeder category is a condition precedent for promotion, which in WP(C) No.37004/2008 -6- this case was granted only on 23/07/2005. Therefore, findings in Exts.P2 & P4 that promotion could not have been granted prior to 23/07/2005 deserves to be upheld. 9. In so far as the five years residency is concerned, it the accepted position that similar condition was incorporated in Circular No.22/89 dated 12/04/1989. Although such a requirement was not there in the statutory Rules, still the circular governed the field, which was issued by the Registrar exercising his powers under Section 66A of the KCS Act. I do not think any further pronouncement on this issue is necessary, particularly for the reason that the circular is not under challenge in this writ petition. Having regard to the above, Exts.P2 & P4 deserve to be upheld, and I do so. The writ petition fails, and is accordingly, dismissed. (ANTONY DOMINIC, JUDGE) jg