IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 20TH JULY 2009 / 29TH ASHADHA 1931 WA.No. 570 of 2007() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.9343/2006 Dated 19/02/2007 .................... APPELLANT/PETITIONER ------------------- T.PURUSHOTHAMAN, DRIVER, KANNUR DISTRICT CO-OPERATIVE BANK, KANNUR. BY ADV. SRI.M.SASINDRAN SRI.TOJAN J. VATHIKULAM RESPONDENTS/ RESPONDENTS -------------------------- 1. KANNUR DISTRICT CO-OPERATIVE BANK, KANNUR, REPRESENTED BY ITS GENERAL MANAGER. 2. THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) KANNUR (ARBITRATOR). 3. THE KERALA CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM. 4. SHAJI V.J., S/O.JOSEPH, PEON, KANNUR DISTRICT CO-OPERATIVE BANK, KANNUR. ADV. SRI.P.NARAYANAN FOR R1 SRI.M.RAMESH CHANDER. GOVT.PLEADER, SRI.BENNY GERVASIS THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. ------------------------------ W.A.No.570 OF 2007 ------------------------------ Dated this, the 20th day of July, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The appellant is the writ petitioner. He was working as a Peon in the District Co-operative Bank, Wayanad. On 16.5.1990 he was promoted as Driver. Later, as part of disciplinary proceedings, he was reverted to the post of Peon on 26.10.1996 with pay protection. Later, he got inter bank transfer and joined the 1st respondent Kannur District Co-operative Bank as Peon. He was junior to the juniormost peon on the date he joined there. Pursuant to the said transfer order, he commenced service in the 1st respondent Bank from 1.11.1999. While so, by Ext.P2 order dated 26.6.2001, the Kannur District Co-operative Bank reappointed the appellant/writ petitioner to the post of Driver. The 4th respondent was a Peon desirous of getting promotion as Driver. So, the 4th respondent, challenging Ext.P2, filed Ext.P5 Arbitration Case before the Joint Registrar of Co-operative Societies, Kannur. The appellant filed Ext.P6 W.A.No.570/2007 :-2-: written statement. The Joint Registrar, after hearing both sides, decreed the Arbitration Case by Ext.P7, setting aside Ext.P2 and directing the Bank to take steps for appointing the 4th respondent as Driver. The appellant filed appeal against the award of the Arbitrator before the Kerala Co-operative Tribunal, Thiruvananthapuram, a copy of which is produced as Ext.P8. The Tribunal, after hearing both sides, by Ext.P11 judgment dismissed the appeal. The aggrieved appellant, challenging Exts.P7 and P11, filed the present Writ Petition. The learned Single Judge, after hearing both sides, dismissed the Writ Petition. Hence, this appeal. 2. We heard the learned counsel on both sides. The learned counsel for the appellant submitted that, the Arbitrator has no jurisdiction to deal with the dispute raised in this case, in view of the establishment of Co-operative Arbitration Court. Secondly, it is contended that though his appointment was as a Peon, he was working with the pay of a Driver and therefore, the 1st respondent Bank rightly decide to appoint him as Driver. W.A.No.570/2007 :-3-: 3. The appellant was a Peon promoted as a Driver in the Wayand District Co-operative Bank. As part of disciplinary action, he was reverted also. He joined the Kannur District Co- operative Bank as the juniormost Peon. The appellant pointed out that in 2001, the feeder category sub rules of the Kannur District Co-operative Bank were amended including Peon in the feeder category for promotion to the post of Driver. Therefore, if Peon is in the feeder category for driver, going by Rule 185 of the Co-operative Societies Rules, normally, the seniormost qualified hand in the feeder category should be promoted. If there is no qualified hand, the post has to be filled up by direct recruitment. For direct recruitment, going by the circulars issued by the Registrar, there should be invitation of applications etc. for preparing a select list for appointment. In this case, the appellant could not have been promoted unless the claims of his seniors are considered. He could not be appointed directly without inviting applications. Therefore, the appointment of the appellant made by the 1st respondent Bank as per Ext.P2 as Driver was illegal. W.A.No.570/2007 :-4-: 4. Regarding the question of jurisdiction of the Arbitrator to pass Ext.P7, the learned Single Judge has taken a plausible view. Even assuming a different view is possible, we are not inclined to interfere with the impugned orders and the judgment under appeal, as the same will result in resurrecting Ext.P2, which is a patently illegal order. But, we modify the direction issued by the Arbitrator in the Arbitration award, Ext.P7, to appoint the 4th respondent as driver. The direction can only be to consider his claim for promotion in accordance with law. The direction concerning the appointment of the 4th respondent is modified as above. Subject to the above direction, this Writ Appeal is dismissed. (K. BALAKRISHNAN NAIR, JUDGE) (C.T. RAVIKUMAR, JUDGE) ps