IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 11TH JUNE 2009 / 21ST JYAISHTA 1931 WP(C).No. 4265 of 2009(G) ------------------------- PETITIONER(S): ------------------ 1. NAZAR, SENIOR ACCOUNTANT, TRIVANDRUM DISTRICT CO-OPERATIVE BANK LIMITED, KAZHAKKUTTOM BRANCH, RESIDING AT 'HIMAM', CHANDAVILA, KATTAYIKKONAM P.O., TRIVANDRUM. 2. P.S.KARTHIKEYAN, SENIOR ACCOUNTANT, TRIVANDRUM DISTRICT CO-OPERATIVE BANK LIMITED, MANIKKAVILAKOM BRANCH, RESIDING AT 'NANDANAM' THETTIKKADU LANE, KALADY, KARAMANA P.O., TRIVANDRUM - 2. 3. ABDUL MAJEED, SENIOR ACCOUNTANT, M AND E BRANCH, FORT, TRIVANDRUM. BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT(S): ------------------- 1. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, TRIVANDRUM. 2. THE TRIVANDRUM DISTRICT CO-OPERATIVE BANK, TRIVANDRUM, REPRESENTED BY ITS GENERAL MANAGER. 3. A.AMBIKA, SENIOR ACCOUNTANT, TRIVANDRUM DISTRICT CO-OPERATIVE BANK, TRIVANDRUM. 4. IBRAHIMKUNJU, SENIOR ACCOUNTANT, TRIVANDRUM DISTRICT CO-OPERATIVE BANK, TRIVANDRUM. ADV. SRI.GEORGE POONTHOTTAM FOR R3,4 GOVT.PLEADER SRI.K.C.SANTHOSH KUMAR SRI.K.G.RADHAKRISHNAN, SC FOR BANK THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.4265/09 APPENDIX PETITIONERS EXHIBITS EXT.P1: TRUE COPY OF THE FEEDER CATEGORY RULES AS PER ORDER NO.FM-48532/80/K.DIS. DT.26.12.80. EXT.P2: TRUE COPY OF THE SENIORITY LIST OF SENIOR ACCOUNTANT. EXT.P3: TRUE COPY OF THE JUDGMENT IN WPC NO.18109/03 DT.25.1.2008. EXT.P4: TRUE COPY OF THE ORDER IN WA NO.631/08 DT 3.6.08. EXT.P5: TRUE COPY OF THE RESOLUTION NO.25(1) DT 26.12.2008. EXT.P6: TRUE COPY OF THE RESOLUTION NO.25(2) DT 26.12.2008. EXT.P7: TRUE COPY OF THE REPRESENTATION DT 3.1.2009. EXT.P8: TRUE COPY OF THE REPRESENTATION DT 3.1.2009. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 4265 OF 2009 (G) ===================== Dated this the 11th day of June, 2009 J U D G M E N T Petitioners and respondents 3 and 4 are Senior Accountants working in the 2nd respondent Bank. In terms of Ext.P1 feeder category rules, the next post to which they can aspire for promotion is that of Branch Manager. While the petitioners are qualified to be promoted, respondents 3 and 4 are lacking educational qualification that is needed for promotion. Ext.P2 is the seniority list of Senior Accountants, in which respondents 3 and 4 are at Sl.Nos. 2 and 5, while the petitioners are at Sl.Nos.27, 52, 57 and 74 respectively. 2. In this writ petition, their primary grievance is against Exts.P5 and P6, whereby the 2nd respondent Bank has resolved to seek approval of the Registrar to relax educational qualification in favour of respondents 3 and 4 for their promotion to the post of Branch Managers. Petitioners state that against the resolution, they have filed Exts.P7 and P8 objections before the Registrar and the Bank itself. It is stated that the matter is still pending consideration of the Registrar and approval has not so far been WPC 4265/09 :2 : granted. 3. Petitioners submit that in several cases, Bank is abusing its power of exemption available under Rule 185(8) of the Kerala Co-operative Societies Rules, in as much as omnibus orders are being passed to ensure promotion of senior unqualified candidates, who in the process, enjoy undeserving promotions over the qualified juniors. It is stated that in respect of the 2nd respondent Bank itself, in Ext.P3 judgment in WP(C) No.18109/2003, this Court has already held that such exercise of power in an omnibus manner is illegal and beyond the contemplation of the Rules. It is on that basis, the petitioners have filed this writ petition praying to declare that the 2nd respondent cannot seek exemption from qualification for unqualified hands in a routine manner and without complying with the requirements of the rule. They also pray for a declaration that exemption can be sought only in deserving cases which should be made out in the resolution itself. Further, they are also seeking a declaration to the 1st respondent to consider Exts.P7 and P8 before taking a decision on Exts.P5 and P6 resolutions as well. WPC 4265/09 :3 : 4. As already held by this Court in Ext.P3 judgment, power of exemption conferred under Rule 185(8) of the Kerala Co- operative Societies Rules is to be exercised sparingly and that too only in deserving cases having regard to the qualification, experience, contribution, requirement etc., of the employee concerned. A reading of Exts.P5 and P6 show that such reasons have been assigned by the Bank also, though the correctness of which is disputed by the petitioners. As at present, the matter is pending before the Registrar, before whom the petitioners also have filed objections against granting approval. Therefore, the question whether the Bank has properly exercised its power of exemption available to it under Rule 185(8) is a matter for the Registrar to consider. 5. In this context, I should also make reference to the pleadings in this writ petition in so far as the 4th respondent is concerned. It is stated in the writ petition that the 4th respondent is the elected President of a Grama Panchayat and attends duty in the 2nd respondent Bank only occasionally. It is stated that it is in the case of such an employee that the Bank has chosen to exercise its power under Rule 185(8) and resolve to grant WPC 4265/09 :4 : exemption. This has been cited as an example of the manner in which that power of exemption is abused by the Bank. 6. In this case, neither the Bank nor the employees concerned have filed any counter affidavit and therefore, I should take the aforesaid averments as an admitted one. If so, certainly, this is a matter which the 1st respondent has to take into account at the time when he considers Exts.P5 and P6 for approval. 7. In so far as the declaration that the petitioners have sought that the Bank cannot seek exemption from qualification for unqualified hands in a routine manner and that such exemption can be sought only in deserving cases, the reasons of which should be made out in the resolution seeking relaxation, in view of Ext.P3 judgment referred to above, I do not think much labour is needed on this aspect. A reading of Ext.P3 judgment in WP(C) No.18109/2003 itself show that this Court has held that exemption is a power which is to be exercised sparingly in the interest of the Bank and that the rule should be construed strictly. It has been held that having regard to the relevant attendant facts and circumstances alone can the Bank exempt an employee from the qualifications laid down in the feeder category rules. WPC 4265/09 :5 : Necessarily therefore, consideration of the attendant circumstances has to be reflected in the resolution itself. In the light of the law as laid down in Ext.P3, the petitioners are justified in the aforesaid submissions made. 8. However, having regard to the fact that Exts.P5 and P6 are pending consideration of the 1st respondent, I direct that the 1st respondent shall duly advert to the law as laid down in Ext.P3 judgment, Exts.P7 objection filed by the petitioners and also the aforesaid uncontroverted averments made by the petitioners in so far as the 4th respondent is concerned, while considering the request of the Bank for approval of its resolution 9. Petitioners may produce a copy of this judgment before the 1st respondent for compliance. It is made clear that in case the decision taken by the 1st respondent is adverse to the petitioners, it will be open to them to pursue their remedies. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp