IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 14TH SEPTEMBER 2010 / 23RD BHADRA 1932 WP(C).No. 17504 of 2010(K) ---------------------------------------- PETITIONER(S): ----------------------- RAJU.P.V,PEON,CHUZHALI SERVICE CO-OP; BANK LTD.NO.LL-134,CHUZHALI.P.O,THALIPARAMBA, KANNUR DISTRICT. BY ADVS. SRI.V.G.ARUN SRI.T.R.HARIKUMAR SRI.JAYAN V.EAPEN RESPONDENT(S): -------------------------- 1. CHUZHALI SERVICE CO-OPERATIVE BANK LTD, NO.LL-134,CHUZHALI.P.O,THALIPARAMBA, KANNUR DIST, REPRESENTED BY ITS SECRETARY. 2. BOARD OF DIRECTORS OF THE CHUZHALI SERVICE CO-OPERATIVE BANK LTD.NO.LL-134, CHUZHALI.P.O,THALIPARAMBA,KANNUR DISTRICT, REPRESENTED BY ITS PRESIDENT. 3. THE JOINT REGISTRAR (GENERAL OF CO-OPERATIVE SOCIETIES, KANNUR. 4. THE ASSISTANT REGISTRAR (GENERAL)OF CO-OPERATIVE SOCIETIES,THALIPARAMBA, KANNUR. 5. THE KERALA CO-OPERATIVE SERVICE EXAMINATION BOARD,THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. R1 & R2 BY ADV. SRI.M.SASINDRAN R3 & R4 BY GOVERNMENT PLEADER SRI.K.C. SANTHOSH R5 BY ADV. SRI.P.U.SHAILAJAN,SC,CO-OP.SERVICE EXAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/09/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.17504/2010 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE JUDGMENT IN COC NO.337 OF 2006 DATED 31/10/2006. P2 COPY OF THE SENIORITY LIST DATED 6/1/2009. P3 COPY OF THE DEGREE CERTIFICATE ISSUED TO THE PETITIONER FROM THE UNIVERSITY OF CALICUT DATED 30/12/1986. P4 COPY OF THE MARK LIST ISSUED TO THE PETITIONER FROM THE UNIVERSITY OF CALICUT DATED 29/6/2007. P5 COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 17/12/2009. P6 COPY OF THE NOTIFICATION PUBLISHED IN MATHRUBHOOMI THOZHILVARTHA DATED 23/1/2010. P7 COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 5/4/2010. P8 COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT DATED 22/4/2010. RESPONDENT'S EXHIBITS: R1(A) COPY OF THE FEEDER CATEGORY RULES DATED 29/2/1980. R1(B) COPY OF THE PROPOSED FEEDER CATEGORY RULES DATED 26/4/2010. /TRUE COPY/ P.S.TO.JUDGE sts C.T. RAVIKUMAR, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P.(C)No.17504 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of September, 2010 J U D G M E N T The petitioner who is a peon in the first respondent bank filed this writ petition challenging Ext.P6 notification and to declare him as the senior most employee in the feeder category liable to be promoted to the post of Junior Clerk in the first respondent bank. Ext.P6 is the notification issued by the 5th respondent Board for the purpose of filling up of the post of Junior Clerk in the first respondent bank. As per Ext.P6 dated 23.1.2010 applications were called for various posts and the petitioner is staking claim for promotion to the post of Junior Clerk, which was also included in the notification, relying mainly on the provisions under Rule 185 of the Kerala Co-operative Societies Act and Circular Nos.44/82 dated 28.9.1982, 37/84 and 37 A/84 dated 25.8.1984 and 13.9.1984 respectively. 2. A counter affidavit has been filed in this writ petition by the first respondent. In essence, the contention of the first respondent is that going by Ext.R1(a) feeder category rules, WPC.No.17504/2010 : 2 : the petitioner who holds the post of peon is not eligible for promotion to the post of Junior Clerk as the category of peon is not among the feeder category for promotion to the post of Junior Clerk. Relying on Ext.R1(a), it is submitted that the post of Bill Collector is the feeder category for promotion to the post of Junior Clerk. That apart, it is contended that on 26.4.2010 certain amendments were proposed to be brought into Ext.R1(a) feeder category rules as is obvious from Ext.R1 (b) proposed feeder category rules. In Ext.R2(b) it is stated thus:- “This rule shall come into force with effect from the date of approval of the scheme.” At the time of filing of the counter affidavit, no approval was obtained to Ext.R1(b) from Joint Registrar. However, the learned Government Pleader submitted that subsequently the Joint Registrar has approved Ext.R1(b). The verity of the said submission was not disputed by the other parties. As per Ext.R1(b), the posts of Bill Collector/Attender/Salesman from the feeder category for promotion to the post of Junior Clerk and the post of peon falls in the feeder category to the post of Bill Collector/Attender/Salesman. Based on the said position, WPC.No.17504/2010 : 3 : the learned counsel for the respondent contends that there is no merit in the contentions of the petitioner and Ext.P6 notification is not liable to be interfered with. 3. As already noticed, the petitioner assails Ext.P6 mainly on the ground that it is opposed to Rule 185 of the rules and the circular Nos.44/82, 37/84 and 37A/84. For the purpose of appreciating the said contention it is necessary to refer to Rule 185 of the Kerala Co-operative Society Rules and it is so far as relevant reads thus:- “185. Promotion:-(1) Subject to the provisions of sub- rules(2), (3) and (4), appointments to the categories of posts in a society, other than those mentioned in sub- rules(2), (3) and (4), shall be made by promotion, on the basis of seniority in the feeder category. The feeder categories for this purpose shall be specified by the society by framing suitable regulations, with the approval of the Registrar. [Provided that if the senior employee/employees in the feeder category to a post relinguishes promotion,the immediate junior to the employee/employees in the feeder category shall be promoted. Provided further that if all the employees in the feeder category to a post relinguishes promotion an employee on the immediate lower category shall be promoted to the post after promoting him to the feeder category post by creating a supernumerary post. The supernumerary post so created shall be abolished on promotion of the said employee to the higher posts.] [Provided also that the promotion from sub staff category to the post of Junior Clerks shall be made only if such employees are having the required qualification and minimum three years service in the feeder category.]” WPC.No.17504/2010 : 4 : 4. The learned counsel appearing for the petitioner contends that going by the third proviso to Rule 185, promotion from sub staff category to the post of Junior Clerk shall be made only if such employees are having the required qualification and minimum three years service in the feeder category. 5. A perusal of circular No.37/84 dated 28.8.1984 would reveal that as per circular No. 44/82 dated 28.9.1982, peon/attenders working under the primary co-operative societies were made eligible to be included in the feeder category for promotion as Junior Clerks if they possess the educational qualifications stipulated under Rule 186 of KCS Rules, 1969 and got 3 years continuous service in the society. In fact, as per the said circular No. 37/84 certain other posts such as Bill Collector, store Keeper etc., were ordered to be included for the purpose of effecting promotion to the post of Junior Clerk. This circular was subsequently amended by Circular No. 37 A/84 dated 13.9.1984. As far as the case on hand is concerned not much of a difference has been brought WPC.No.17504/2010 : 5 : about by the amendment. In short, as per the aforesaid circulars, peon/attender working in the primary Co-operative Societies were made eligible to be included in the feeder category as Junior Clerks. The question to be considered is whether after making the category of peon eligible to be included in the feeder category for promotion as Junior Clerk as per the aforesaid circulars the said post could be excluded from the feeder category for promotion to the post of Junior Clerk in the first respondent bank and whether the failure to include the said post in the feeder category for promotion as Junior Clerk would vitiate Ext.P6 notification. As noticed earlier, the contention of the petitioner is that Ext.P6 notification violates Rule 185 of KCS Rules besides being opposed to the circulars referred above. In the aforesaid situation, Ext.P6 notification issued for the purpose of initiating selection process could not be acted upon and the respondents are bound to effect promotion from among the qualified hands available under the sub staff category in the first respondent bank in terms of Rule 185 of the Rules and the above mentioned circulars. The Act, the Rules and also WPC.No.17504/2010 : 6 : the Feeder Category Rules, are silent about the posts that fall under the common designation of sub staff category, it is further submitted. 6. The learned counsel appearing for the first respondent refuted the contentions raised on behalf of the petitioner. It is contended that Ext.P6 notification cannot be construed as one that violates Rule 185 of the KCS Rules. To drive home the said point, the learned counsel bring to my attention that as per Rule 185, a feeder category for the purpose of promotion in terms of Rule 185 has to be specified by each society by framing suitable regulations with the provisions of the Registrar. In other words, it permits each society to frame feeder category rules and to specify the feeder category for promotion to each higher posts. In that context, it is submitted that Ext.R1(a) is a feeder category rule framed by the first respondent. It is dated 19.5.1980. Conspicuously, the post of peon did not find place in the said rule. Obviously, the said post was created only subsequently. However, it is a fact that even after creation of the post of peon no amendment was brought into Ext.R1(a) feeder WPC.No.17504/2010 : 7 : category rules so as to make the post of peon as a feeder category for promotion to the post of Junior Clerk. Therefore, as long as Rule 185 permits the society to frame its own regulations or feeder category rules for the purpose of promotion by framing suitable regulations, with the apporval of the Registrar and Ext.R1(a) framed in consonance with the said provisions did not include the post of peon in the feeder category for promotion to the post of Junior Clerk, the petitioner cannot aspire promotion to the said post of Junior Clerk merely because he possess the prescribed qualification and experience for promotion to the post of Junior Clerk. 7. With respect to the contentions advanced by the petitioner relying on the circular Nos.44/82, 37/84 and 37 A/84, it is submitted by the learned counsel for the respondents hat they cannot take away or nullify the impact or effect of the feeder category rules framed in consonance with the provisions under Rule 185 of the Rules. That apart, the learned counsel appearing for the respondent submitted that the very fact that both Exts.R1(a) and R1(b) were approved by the Registrar would suggest that the feeder category rules WPC.No.17504/2010 : 8 : framed by the first respondent as per Ext.R1(a) and as also Ext.R1(b) do not go against the provisions under 185 or in that matter, go against any of the provisions under the Kerala Co- operative Societies Act and Rules. Merely because it stands against the the aforesaid circulars cannot nullify the impact or effect of the feeder category rules. In short, the contention is that as long as such an amendment was not brought into the feeder category rules relying on the circulars the petitioner cannot as a matter of right claim promotion on the ground that he fulfills the qualifications and experience for promotion to the post of Junior clerk. 8. A scanning of the rival contentions would make it clear that the question whether Ext.P6 notification can be acted upon for the purpose of filling up of the post of Junior Clerk now available in the first respondent bank has to be decided based on the answer to the question whether the post of peon should be taken as a category included in the feeder category for promotion to the post of Junior Clerk. As already noticed herein before, admittedly going by Exts.R1(a) and R1 (b), the post of peon does not fall within the feeder category. WPC.No.17504/2010 : 9 : A perusal of Rule 185 would reveal that at the first instance it is up to each society to frame its own feeder category rule. At the time of granting approval it is open to the Registrar to look into the aspect whether it is contrary to any of the provisions of the Act or Rules. Therefore, necessarily once an approval is granted by the Registrar normally it would take in the presumption that the feeder category rule does not violate any of the provisions of the Act or Rules. I may now deal with the contentions raised by the petitioner relying on the circular Nos. 44/82, 37/84 and 37 A/84. According to the Concise Oxford Dictionary, 'Circular' is something addressed to a circle of persons and it means notice, advertisement etc., reproduced for distribution. Admittedly, as per Circular No44/82 dated 28.9.1982 Peons/attenders working in the primary Co-operative Societies have been made eligible to be included in the feeder category for promotion as Junior Clerks if they possess the educational qualifications stipulated under Rule 186 of the KCS Rules, 1969 and have got 3 years service in the society. As per Circular No.37/84 dated 25.8.1984 the benefit extended to category of peons/attenders have been, WPC.No.17504/2010 : 10 : virtually, extended to certain other categories viz., Sales man/ Depot Manager, Store Keeper, Bill Collector, Typists, Appraiser etc, working in the primary Co-operative Societies, on regular basis and they were also permitted to be included in the feeder category for promotion as Junior Clerks subject to certain conditions specifically mentioned thereunder. This circular was subsequently amended as per circular No.37 A/84 dated 13.9.84. As per the same the words 'typists' mentioned in paras 1 and 2 of the circular No.37/84 dated 25.8.84 was deleted and para 3 in the said circular was substituted as follows:- “ In the circumstances employees belonging to other categories lower than Junior Clerk like Salesman, Depot Manager, Store Keeper, Bill Collector, Appraiser etc., working on regular basis in the primary Co-operative Societies may also be included in the feeder category for promotions as Junior Clerk subject to the condition that they should (a) hold S.S.L.C. Or higher educational qualification (b) have successfully undergone JDC or HDC and (c) have completed 3 years full time regular and continuous service in the same primary Co- operative Society.” It is thus obvious from the above circulars that the circular No.44/82 dated 28.9.1982 in the circular relevant for the WPC.No.17504/2010 : 11 : purpose of the case. 9. As per the same the Peons/Attenders working in the primary Co-operative Societies have been made eligible to be included in the feeder category for promotion as Junior Clerk subject to their fulfilment of conditions regarding qualification and experience. In fact, as per the subsequent circulars employees working on regular basis in the primary Co-operative Societies against various posts specifically mentioned thereunder are also permitted to be included in the feeder category for promotion as Junior Clerk subject to the satisfaction of the conditions regarding qualification, experience etc. A scanning of the above mentioned circulars would reveal that they are issued under the authority of Registrar of Co-operative Societies they were not issued under any enactment. Therefore, the mere fact that the circular was issued under the authority of the Registrar is not sufficient to give it an effect of law. In fact, as per the relevant circular the category of Peon/Attender were only made eligible to be included in the feeder category for promotion as Junior Clerk subject to the fulfilment of the prescribed qualification and WPC.No.17504/2010 : 12 : experience. In fact, that was circulated to all the Joint Registrars with a request to bring its contents to the notice of all Primary Co-operative Societies falling their administrative control. Exts. R1(a) is dated 29.2.1980 and Ext.R1(b) is dated 26.4.2010. Evidently, despite the existence of the circulars Ext.R1(b) feeder category rules were also approved by the Registrar. If that be the position, the question is whether the action on the part of the first respondent in not amending the feeder category to include the post of peon as a feeder category for promotion to the post of Junior Clerk would vitiate the selection process as per Ext.P6. In that context, it is to be noted that there is no challenge in this writ petition against the feeder category rules. Therefore, this Court is not called upon to decide the legality or otherwise of the feeder category rules framed by the first respondent and approved by the Registrar. In Ext.R1(a) or R1(b) the post of peon is not included in the feeder category for promotion to the post of Junior Clerk. Therefore, the contention of the petitioner that the post of Peon is the feeder category for promotion to the post of Junior Clerk cannot be accepted. In the light of WPC.No.17504/2010 : 13 : Exts.R1(a) and R1(b), Ext.P6 cannot be said to be opposed to Rule 185 of the Rules. There is reason to interfere with the selection proceedings initiated as per Ext.P6 in the circumstances. Accordingly, this writ petition is dismissed. Sd/- (C.T. RAVIKUMAR, JUDGE) jma //true copy// P.A to Judge