IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 26TH MAY 2010 / 5TH JYAISHTA 1932 WP(C).No. 33725 of 2008(M) -------------------------- PETITIONER(S): --------------- JUSTIN.O.J., SECRETARY, CHAVAKKAD TALUK RURAL HOUSING CO-OPERATIVE SOCIETY, LTD.NO.344, PAVARATTY P.O. BY ADV. SRI.P.N.MOHANAN RESPONDENT(S): ---------------------- 1. GOVERNMENT OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, CO-OPERATIVE DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, THRISSUR. GOVERNMENT PLEADER SRI.T.T.MUHAMOOD FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 33725/2008 APPENDIX PETITIONER'S EXHIBITS : EXT.P1: COPY OF THE RESOLUTION OF THE MANAGING COMMITTEE DATED 18.9.2006. EXT.P2: COPY OF THE LETTER DATED 16.1.2008 OF THE FIRST RESPONDENT. EXT.P3: COPY OF THE ORDERS G.O.(P) NO.77/08/CO-OP DATED 17.3.08, G.O.(P) NO.18/08/CO-OP DATED 7.1.08, G.O.(P) NO.16/08/CO-OP DATED 7.1.08, G.O.(P) NO.4/08/CO-OP DATED 2.1.08, G.O.(P) NO.40/07/CO-OP DATED 17.1.07, G.O.(P) NO.102/08/CO-OP DATED 19.4.08, G.O.(P) NO.116/08/CO-OP DATED 8.5.08. EXT.P4: COPY OF THE JUDGMENT DATED 6.8.2008 IN W.P.(C) NO.14986/08. EXT.P5: COPY OF THE ORDER DATED 24.10.2008 OF THE FIRST RESPONDENT. RESPONDENTS' EXHIBITS : NIL //TRUE COPY// P.A. TO JUDGE K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.33725 of 2008 --------------------------------------------- Dated this the 26th day of May, 2010 JUDGMENT In this Writ Petition, the petitioner challenges Ext.P5 order dated 24.10.2008 passed by the Government rejecting the prayer for exemption under Rule 181 of the Kerala Co- operative Societies Rules. 2. The petitioner joined as an Attender in Chavakkad Taluk Rural Housing Co-operative Society Ltd. No.344, on 5.10.1987. He was promoted as Junior Clerk on 28.1.2000 and later, promoted as accountant on 1.5.2005. The next promotion to which the petitioner could aspire was to the post of Secretary. For being appointed as the Secretary, a candidate should have graduation with JDC. The vacancy of the Secretary arose on 19.9.2006. The petitioner being not W.P.(C) No.33725/2008 2 fully qualified for being promoted as the Secretary, the managing committee passed Ext.P1 resolution on 18.9.2006 stating that it is necessary to grant exemption to the Society for the purpose of accommodating the petitioner as the Secretary, by relaxing the requirement of qualifications for the candidate. 3. The request made by the Society was rejected by the Government as per Ext.P2 order dated 16.1.2008. That order was challenged in Writ Petition No.14986 of 2008 which was disposed of as per Ext.P4 judgment dated 6th August 2008. As per Ext.P4 judgment, the Government was directed to consider the matter afresh and to take a decision in the matter after affording an opportunity of being heard to the petitioner. Thereafter, in compliance with Ext.P4 judgment, Ext.P5 order was passed by the Government, which is under challenge in this Writ Petition. W.P.(C) No.33725/2008 3 4. The qualification for promotion as Secretary of a Primary Co-operative Society is Graduation with HDC or JDC. Admittedly, the petitioner is not a Graduate. However, exemption could be granted under Rule 185(8) of the Kerala Co-operative Societies Rules by the Registrar of Co-operative Societies. Sub Rule (8) of Rule 185 provides that it shall be competent for the Registrar of Co-operative Societies to relax the qualification, other than basic qualification and pass in the competitive examination specified in Sub Rule (5), of an employee, for the purpose of promotion in deserving cases, on the request of a Society by passing a resolution. This exercise of power of exemption is subject to certain conditions. Clause (b) of Sub Rule (8) provides for one such condition. Clause (b) provides that where the academic qualification prescribed is Graduation and above, exemption from acquiring the said qualification may, be considered if the incumbent satisfied the following conditions, namely:- (i) should have passed JDC or equivalent ; W.P.(C) No.33725/2008 4 (ii) should have a minimum service of five years in the feeder category; and iii) should not be less than 45 years of age. 5. In the present case, the petitioner has passed JDC. But, he did not have the minimum service of five years in the feeder category. He was above 45 years at the time when the resolution was taken by the managing committee. In these circumstances, on account of the fact that the minimum service in the feeder category was not satisfied, the Registrar could not consider the request for exemption, under Sub Rule (8) of Rule 185. Therefore, the managing committee forwarded the application for exemption to the Government through the Registrar of Co-operative Societies. Rule 181 provides that the State of Kerala may, by general or special order and subject to conditions as they deem fit, exempt any registered society or class of such societies from any of the provisions of these rules or may direct that such provisions shall apply to such W.P.(C) No.33725/2008 5 society or class of societies with such modifications as may be specified in the order. 6. As per Ext.P5 order, the Government rejected the request of the managing committee, to grant exemption, on certain grounds. The reference to the Government for exemption under Rule 181 was necessary because the petitioner did not have the minimum service of five years in the feeder category at the relevant time. But, now the petitioner has the required service of five years in the feeder category. Therefore, he has satisfied all the three conditions in Clause (b) of Sub Rule (8) of Rule 185 of the Kerala Co-operative Societies Rules. Now the question is whether the Government having rejected the application for exemption under Rule 181, the Registrar is precluded from dealing with an application under Rule 185(8)(b) and in considering the same. Only on the ground that the Government had rejected the request, I do not think that any W.P.(C) No.33725/2008 6 such bar would apply. The power to be exercised under Rule 181 is quite different from that under Rule 185. For being promoted as the Secretary, the Registrar could grant exemption provided the incumbent had the necessary experience. The thrust is on the experience. In such cases, exemption can be granted in respect of acquiring the educational qualifications. On the other hand, the power to be exercised under Rule 181 is a wider power which covers all the rules in the Kerala Co-operative Societies Rules. The Government has to consider the request for exemption in that context. When the Registrar has to consider the request for exemption under Sub Rule (8) of Rule 185, the consideration which the Government made in Ext.P5 order may not be quite relevant before the Registrar. Therefore, I do not think that there is any bar as of now for the Registrar to consider any request for exemption, the petitioner having acquired the minimum experience of five years in the feeder category. It is submitted by the learned counsel for the petitioner that as per W.P.(C) No.33725/2008 7 resolution dated 15.5.2010, the Society has resolved to apply to the Registrar for exemption under Rule 185(8) of the Rules and the necessary proforma was submitted before the Registrar. It is made clear that the request for exemption so made by the Society to the Registrar, shall be considered by the Registrar on the merits untrammelled by the observations made in Ext.P5 order by the Government. 7. I do not think that the challenge against Ext.P5 order in the Writ Petition would sustain. The Government have stated cogent reasons for rejecting the application for exemption. It cannot be said that the reasons stated for rejecting the prayer for exemption are arbitrary or unreasonable. Of course, the learned counsel for the petitioner sought to rely on Ext.P3 series orders to justify the contention that different standards were adopted by the Government in different cases. The learned Government Pleader submitted that Ext.P3 series orders would indicate W.P.(C) No.33725/2008 8 that such orders were passed on the peculiar facts of those cases and it cannot be said that there was a discrimination in the case of the petitioner. I am not inclined to accept the contention put forward by the petitioner in this regard, in the facts and circumstances of the case. 8. For the aforesaid reasons, the challenge against Ext.P5 fails and the Writ Petition is liable to be dismissed. I do so. It is made clear that the dismissal of this Writ Petition would not be a bar for the Registrar to consider the request for exemption under Sub Rule (8) of Rule 185 of the Kerala Co-operative Societies Rules. The Registrar shall consider the application for exemption said to be made by the Society as per its resolution, untrammelled by any of the observations or findings in Ext.P5 order. The Registrar need confine to Rule 185(8) and should not be guided by the ground for rejecting the exemption under Rule 181 of the Rules. It is made clear that I have not expressed any view on the merits of the W.P.(C) No.33725/2008 9 request for exemption under Sub Rule (8) of Rule 185 of the Kerala Co-operative Societies Rules. The Writ Petition is dismissed subject to the above observations. K.T.SANKARAN, JUDGE csl