IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 21ST AUGUST 2009 / 30TH SRAVANA 1931 WP(C).No. 18199 of 2007(N) -------------------------- PETITIONER(S): --------------- P.J.PRASANNA KUMARI, ACCOUNTANT, NEYYATTINKARA PRIVATE SCHOOL EMPLOYEES CO-OPERATIVE SOCIETY LTD.NO.T.369, NEYYATTINKARA. BY ADV. SRI.D.SOMASUNDARAM RESPONDENT(S): --------------- 1. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), THIRUVANANTHAPURAM. 2. NEYYATTINKARA PRIVATE SCHOOL EMPLOYEES CO-OPERATIVE SOCIETY LTD.NO.T.369, NEYYATTINKARA, REPRESENTED BY ITS SECRETARY. 3. STANLEY RAJ, BRANCH MANAGER IN CHARGE OF THE SECRETARY, NEYYATTINKARA PRIVATE SCHOOL EMPLOYEES CO-OPERATIVE SOCIETY LTD.NO.T.369, NEYYATTINKARA. 4. REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM. 5. SECRETARY TO GOVERNMENT, CO-OPERATIVE DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. ADV. SRI.ELVIN PETER P.J. FOR R3 SRI.P.RAMAKRISHNAN FOR R2 SRI.C.ANIL KUMAR FOR R2 GOVERNMENT PLEADER SRI. K.S. MOHAMMED HASHIM FOR R1,4 & 5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX Ext.P1. True copy of the approved feeder category rules. Ext.P2. True copy of the Seniority list dated 31.12.2001. Ext.P3. True copy of the representation submitted by the petitioner before the Ist respondent dated 18.3.2002. Ext.P4. True copy of the letter dated 30.7.2002 issued to the 3rd respondent . Ext.P5. True copy of the Order G.O(Rt)No.273/2003/Co.op dated 28.5.2003. Ext.P6. True copy of the Order No.CS.6790/02 dated 9.6.2003 of the Ist respondent. Ext.P7. True copy of the Govt. Order G.O(Rt)425/2005/Co.OP. dtd. 18.7.2005. Ext.P8. True copy of the order No.CS.6357/06 dated 12.3.2007 of the Ist respondent. Ext.P9. True copy of the representation submitted by the petitioner before the Ist respondent dtd.28.3.2007. Ext.P9(a).True copy of the representation submitted by the petitioner before the Government dated 28.3.2007. Ext.P10. True copy of the order passed by the Ist respondent dated 23./5.2007 Ext.P11. True copy of the order CS.6557/06 dated 10.1.2007. ANTONY DOMINIC,J. --------------------- W.P.(C).No.18199 OF 2007 ------------------------ Dated this the 21st day of August, 2009. JUDGMENT Petitioner and the 3rd respondent are employees of the 2nd respondent Bank, a Co-operative Society incorporated under the provisions of the Kerala Co- operative Societies Act. In this writ petition the prayers sought for are to quash Exts.P6 and P10 orders passed by the first respondent and to declare that the 3rd respondent was not entitled for relaxation of educational qualification for promotion to the post of Secretary and that the petitioner is entitled for promotion in preference to the 3rd respondent. 2. The facts of the case, briefly stated, are that, while the petitioner is a graduate with HDC, the 3rd respondent is only a matriculate having passed JDC. The petitioner joined in the service of the 2nd respondent as a WP(c).No.18199/07 2 Junior Clerk on 3.10.1983. She was promoted as Senior Clerk on 1.6.1985 and as Accountant on 1.7.1983 and thereafter as Internal Auditor/Branch Manager in May 2007. In so far as the 3rd respondent is concerned, he commenced service as Clerk on 8.2.1982, was promoted as Senior Clerk on 3.8.1982, as Accountant on 1.6.1985, as Manager on 1.7.2003 and as Secretary of the Bank with effect from 25.5.2007. In this writ petition, the dispute is centered around the promotion of the 3rd respondent to the post of Manager and Secretary and the facts which are relevant are as stated here under. 3. On 24.4.1998 consequent on the opening of a branch, a vacancy in the category of Manager arose, for which post, graduation is an essential qualification. The 3rd respondent, as he is only a matriculate, was not eligible and therefore the Bank passed Ext.R3(e) resolution dated 22.9.2001, requesting the Joint Registrar to exempt the 3rd respondent from possessing the educational qualification of degree. By Ext.P4 proceedings, the Joint Registrar rejected the request for WP(c).No.18199/07 3 exemption sought for, but however in Ext.P5 appellate order passed by the Government, the matter was directed to be reconsidered. Accordingly, by Ext.P6 proceedings dated 9.6.2003, the Joint Registrar granted the relaxation requested for. Petitioner filed a review petition before the Government against Exts.P5 and P6 but however by Ext.R3(f) order dated 8.1.2004, the same was dismissed by the Government after hearing the parties concerned. 4. In the meantime, with effect from 1.7.2003, on the basis of Ext.P6 order of Joint Registrar the 3rd respondent was promoted as Manager. While continuing as such, on 31.10.2006 consequent on the retirement of an incumbent from the post of Secretary a vacancy arose. It would appear that by Ext.P8 order dated 12.3.2007, the Joint Registrar ordered to promote the qualified senior and the petitioner herein staked her claim before the Joint Registrar and the Government by filing Exts.P9 and P9(a) respectively. While so, the Society by its resolution dated 7.4.2007, requested to WP(c).No.18199/07 4 exempt the 3rd respondent from the educational qualification of degree, for his promotion to the post of Secretary, which was allowed by the Joint Registrar, by Ext.P10 order dated 23.5.2007. Accordingly, with effect from 25.5.2007, the 3rd respondent was promoted as Secretary of the 2nd respondent. In the meanwhile, consequent on the bank becoming class-II, the feeder category rules were amended by Ext.R1(c) dated 6.11.2006 and accordingly the petitioner was also promoted as Internal Auditor/Branch Manager. It is in these circumstances, the writ petition is filed. 5. Of the prayers in the writ petition, the main relief sought is for quashing Exts.P6 and P10. In so far as Ext.P6 is concerned, that order is dated 9.6.2003 by which the Joint Registrar exempted the educational qualification pursuant to Ext.R3(e) resolution passed by the Society, to exempt the 3rd respondent from possessing the educational qualification for promotion to the post of Manager. The contention raised is that on the date of occurrence of vacancy of Manager, viz WP(c).No.18199/07 5 24.4.1998, when the branch was opened, the 3rd respondent had not completed 45 years and hence was not eligible for exemption. The condition of 45 years of age which was introduced in Rule 185(8) (b) of the KCS Rules on 3.9.2005 was then insisted by virtue of circular 22/89. This court in the judgment in Kuttipuram Service Co-op. Bank V. State of Kerala (2004(2) KLT 73), held that the Registrar did not have the competency to issue such a circular. However, by the amendment incorporated to Rule 185(8) of the Kerala Co- operative Societies Rules, though this condition was subsequently introduced as part of the rules, as already seen, such amendment was made only in 2005. If that be so, when the vacancy arose in 1998 or when promotion as Manager was effected on 1.7.2003, the condition that, to grant exemption, an employee should have completed 45 years of age was not in the statute book. Therefore this contention of the petitioner does not carry any weight. WP(c).No.18199/07 6 6. That apart, in my view, it is not open to the petitioner to challenge Ext. P6 not only for the reason that such challenge is highly belated, but also for the reason that when Ext.R2(e) resolution was passed by the Society on 22.9.2001, the Registrar declined exemption by Ext.P4. The 3rd respondent moved the Government in appeal and by Ext.P5 order the Government directed reconsideration of the matter. It was accordingly that by Ext.P6, the Registrar granted exemption. As already noticed, against Exts.P5 and P6, the petitioner filed a review petition before the Government on which Ext.R3(f) order was passed by the Government as early as on 8.1.2004. Although it may be true that the Government did not have any review power, still having regard to the fact that the order was obtained by the petitioner at her own instance and since has not chosen to challenge the said order, the petitioner's contentions against Ext.P6 stands concluded and the petitioner cannot now be allowed to challenge Ext.P6 at this distance of time and that too in this WP(c).No.18199/07 7 writ petition. Therefore, the prayer sought to quash Ext.P6 is only to be rejected and I do so. 7. In this context, I should also deal with the contention of the counsel for the 3rd respondent that writ petition is liable to be dismissed for suppression of material facts. He also placed reliance on the judgment in Ajith V. Executive Engineer, KSEB (1987(1) KLT 272). According to the 3rd respondent, petitioner had sought review of Ext.P5 and P6 orders, which was rejected by Ext.R3(f) order dated 8.1.2004. It is contended that suppressing Ext.R3(f), again , Ext.P6 order is sought to be quashed in this writ petition and for that reason the writ petition is liable to be dismissed. Remedy under Article 226 being discretionary, suppression of facts is a good ground for declining relief to a litigant. But, suppression of all facts need not result in rejection of a petition and so as to decline jurisdiction, suppression must be of a material fact. What would be a material fact, would depend upon the facts and circumstances of each case. Material fact would mean, a WP(c).No.18199/07 8 fact which is material for the purpose of determination of the lis and the logical corollary would be whether the same was material for the grant or denial of the relief sought. If the fact suppressed is not material for determination of the lis between the parties, the court may not refuse to exercise its discretionary jurisdiction. {See General Manager, Haryana Roadways V. Jai Bhagwan & Another (2008(4)SCC 127) and Arunima Baruah V. Union of India & ors. (2007(6) SCC 120)}. If the facts are appreciated in the light of the law laid down in the aforesaid judgments, it can be seen that in considering the prayer for quashing Ext.P6, certainly Ext.R3(f) is a relevant order, the suppression of which, is suppression of a material fact. However, counsel for the petitioner contended that, since the Govt. did not have power of review, Ext.R3(f) order was void and therefore is of no effect. But then, even a void order will bind the parties, unless avoided by instituting appropriate legal proceedings before competent forum. In this case Petitioner has not challenged Ext.R3(f) and this order has WP(c).No.18199/07 9 become final. If so, the suppression of this order, is certainly fatal and for that reason also relief should be declined to the petitioner. 8. Now what remains is the contention regarding the validity of promotion granted to the 3rd respondent as Secretary with effect from 25.5.2007. Admittedly, degree is an essential qualification prescribed for the post of Secretary and the 3rd respondent lacks this essential educational qualification. By 31.10.2006 when the vacancy arose and as on 25.5.2007, when the promotion was effected, Rule 185(8) of the KCS Rule was amended and as per Rule 185(8)(b)(ii) one of the mandatory conditions for granting exemption is that the beneficiary should have a minimum service of 5 years in the feeder category. In this case, the resolution exempting the 3rd respondent from the essential qualification of degree was passed by the Society on 7.4.2007. Since the promotion of the 3rd respondent to the post of Manager was only with effect from 1.7.2003, at the time when the above resolution was WP(c).No.18199/07 10 passed on 7.4.2007, the 3rd respondent had not completed 5 years service in the feeder category post of Manager to be granted relaxation for his promotion to the post of Secretary. 9. This contention of the petitioner is sought to be resisted by the counsel for the Society and also the 3rd respondent, referring to the judgment of this court in K.K. Dasan V. Registrar of Co-operative Societies and another (ILR 2006(4) Kerala 419), where this court has held that a resolution will have the effect from the date of resolution. However, in my view, this judgment may not be of any assistance to the 3rd respondent. A reading of the judgment shows that, in the case dealt with by this court, based on the resolution, pending approval of the Joint Registrar, promotions were given. When the Joint Registrar gave approval, it was ordered to be effective from the date of the order. In this background, the issue was considered and this court held that the approval granted will be effective from the date of resolution. WP(c).No.18199/07 11 10. In this case, a reading of Ext.R3(e) resolution shows that, the Society itself had resolved that the promotion will be granted only on the Joint Registrar granting exemption. It is for that reason that though Ext.R3(e) resolution was passed on 22.9.2001, promotion was given to the 3rd respondent only with effect from 1.7.2003 after obtaining exemption by Ext.P6 order of the Joint Registrar on 9.6.2003. Having regard to the wordings of Rule 185(8) (b)(ii) that experience prescribed has to be in the feeder category what is needed is actual working experience, which the 3rd respondent gained only from 1.7.2003. If so, his eligibility for exemption from educational qualification cannot be reckoned from the date of resolution even if exemption granted is effective from the date of resolution. The situation may have been different, had the Bank granted promotion to the 3rd respondent, without awaiting for the orders of the Joint Registrar, in which event it may have been possible to contend that exemption being effective from the date of resolution and promotion also WP(c).No.18199/07 12 having been granted simultaneously, the experience should also be counted on that basis. In this case facts being otherwise, the eligibility of the 3rd respondent to be granted exemption commenced only after 1.7.2003. Therefore, I should accept the contention raised by the counsel for the petitioner that on 7.4.2007, when resolution was passed by the Society exempting the 3rd respondent from the educational qualification for promotion to the post of Secretary, he was ineligible to be granted exemption under Rule 185(8). 11. However, question survives, whether in this writ petition, accepting the aforesaid contention, this court should invalidate the promotion to the post of Secretary, that was granted to the 3rd respondent. As already noticed, the vacancy of Secretary arose on 31.10.2006 and promotion was effected on 25.5.2007. Going by the petitioner's own averments, in 1985 itself, the Bank had become a class-II Bank and by Ext.R3(a) dated 6.11.2006 Feeder Category Rules were WP(c).No.18199/07 13 amended. Since then, the hierarchy of posts is that an Account can get promotion as Branch Manager, then as Manager and then as Secretary. If that be so, any promotion subsequent to 6.11.2006 can only be in terms of Ext.R3(a). Fact remains that, at the time when promotion was effected on 25.5.2007, the petitioner was only an Accountant and without getting promotion to the post of Branch Manager and then as Manager, she could not have aspired for promotion to the post of Secretary. True the learned counsel for the petitioner relied on the 2nd proviso to Rule 185(1) and contended that if there is any eligible candidate in the lower posts, such candidate should be given promotion. However, 2nd proviso to Rule 185(1) only provides that, if an employee in the feeder category post relinquishes promotion, an employee in the immediate lower category shall be promoted subject to the other conditions specified therein. Therefore, if at all while filling up the post of Secretary, an employee in the feeder category post of Manager had relinquished his claim it WP(c).No.18199/07 14 may have been possible for the Bank to promote an employee from the category of Branch Manager. However, in this case, neither has there been any relinquishment by anybody nor can the petitioner contend that she was in the immediate lower category to take advantage of 2nd proviso to Rule 185(1). In such a situation, petitioner could not have claim promotion to the post of Secretary. 12. Counsel for the petitioner then contended that though the Bank became a class-II bank as early as in 1985, the Bank did not get the feeder category rules amended and that without amending the rules, promotions were effected on the basis of Ext.P1, the staff regulations which was applicable , when the Bank was a class-III Bank. It is stated that, as a result of that illegality, the 3rd respondent who was only an Accountant got promotion directly to the category of Manager without working in the category of Branch Manager. It may be true that, there was delay on the part of the Bank in getting the feeder category rules amended and that the 3rd WP(c).No.18199/07 15 respondent was directly promoted to the post of Manager from the post of Accountant. But however, fact remains that nobody challenged the delay on the part of the Bank in getting the rule amended and whatever challenge that the petitioner raised was also rejected. Therefore, at this distance of time any cause of action in this respect is highly belated and this court will not be justified in entertaining any contention in this respect. From the above facts, it is therefore evident that, although strictly speaking, it can be held that exemption granted to the 3rd respondent for promotion to the post of Secretary was against the provision of Rule 185,still having regard to the fact that even if it invalidated, petitioner cannot claim promotion and if so the impugned order has not resulted in any injustice to her. For that reason, I do not think that this court should exercise its powers under Art.226 to pass a futile order. WP(c).No.18199/07 16 Writ Petition fails and is dismissed. (ANTONY DOMINIC) JUDGE vi/ WP(c).No.18199/07 17