IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 8TH FEBRUARY 2008 / 19TH MAGHA 1929 OP.No. 38850 of 2002(Y) ---------------------------------- PETITIONER: ------------------- T.R.KAMALA DEVI, INTERNAL AUDITOR, THIROOR SERVICE CO-OPERATIVE BANK LIMITED, THRISSUR BY ADV. SRI.P.RAMAKRISHNAN RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, CO-OPERATIVE (C) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 2. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) CIVIL LINES, AYYANTHOLE, THRISSUR-3 3. THIROOR SERVICE CO-OPERATIVE BANK LTD., P.O. MULANGUNNATHUKAVU, THRISSUR, REPRESENTED BY ITS SECRETARY 4. T.S.RAGHAVAN, BRANCH MANAGER, THIRUOOR SERVICE CO-OPERATIVE BANK LIMITED, P.O.MULANGUNNATHUKAVU, THRISSUR. R4 BY ADV. SRI.T.R.HARIKUMAR SRI.C.E.UNNIKRISHNAN R1 & R2 SPL.GOVT.PLEADER SRI.P.K.RAVIKRISHNAN THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 08/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP. NO.38850/2002 ORDER ON CMP. NO.65450/2002 IN OP. NO.38850/2002 DISMISSED 08.02.2008 SD/- THOTTATHIL B.RADHAKRISHNAN, JUDGE APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE PROCEEDINGS DT. 25.10.96 OF THE PRESIDENT, THIROOR SERVICE CO- OPERATIVE BANK LTD. NO.4140. EXT.P2:- COPY OF THE RESOLUTION DT. 4.12.96 PASSED BY THE DIRECTOR BOARD OF THE 3RD RESPONDENT BANK. EXT.P3:- COPY OF THE COMPLAINT DT. 7.2.2000 FROM THE PETITIONER TO THE 2ND RESPONDENT. EXT.P4:- COPY OF THE ORDER DT. 11.1.02 OF THE 2ND RESPONDENT. EXT.P5:- COPY OF THE APPEAL DT. 14.2.02 SUBMITTED BY the PETITIONER BEFORE THE IST RESPONDENT. EXT.P6:- COPY OF THE ORDER DT. 29.11.02 OF THE IST RESPONDENT. /TRUE COPY/ P.A. TO JUDGE tss THOTTATHIL B. RADHAKRISHNAN, J. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ O.P. No. 38850 of 2002-Y ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 8th day of February, 2008 J U D G M E N T Petitioner and the fourth respondent were accountants in the service of the third respondent Society. On the classification of that establishment as a Class-I Society, a post of Internal Auditor came into being in terms of appendix III of the Kerala Co-operative Societies Rules. The petitioner, being duly qualified and having the necessary experience, was posted as the Internal Auditor on 01/08/1996 in the scale of pay for the Internal Auditor. Thereafter, on 04/12/1996, the Committee of the Society resolved to exempt the fourth respondent from acquiring the qualification in terms of the Rules for the post of Branch Manager. That resolution was approved by the Joint Registrar on 26/04/1997. Thereafter, the feeder category rules were amended, the Registrar granting approval for such amendment, on 23/04/1998. On the strength of the exemption approved by the Registrar, the fourth respondent raised a claim before the Joint Registrar challenging the appointment of the O.P.No.38850/2002-Y -: 2 :- petitioner as Internal Auditor with effect from 01/08/1996. It is pointed out that the fourth respondent had made certain complaints before the Society even earlier regarding the appointment of the petitioner as Internal Auditor. The Joint Registrar, on the strength of the exemption granted on 26/04/1997 held that as on 23/04/1998, the date of effect of the amendment to the feeder category Rules, the fourth respondent was qualified to be appointed as Internal Auditor and being senior to the petitioner, he ought to have been preferred. Accordingly, the appointment of the petitioner as Internal Auditor on 01/08/1996 has been set aside, resulting in her reversion and placement of the fourth respondent as the Internal Auditor. This is under challenge. 2. Admitting the writ petition, an interim order was issued on 20/12/2002 ordering that in case the petitioner is reverted and she succeeds in the original petition, she will be entitled to all consequential benefits. O.P.No.38850/2002-Y -: 3 :- 3. With the passage of time, it is stated that, as of now, the fourth respondent has retired from service on superannuation, that he had worked as Internal Auditor during the pendency of this writ petition, until he demitted office. 4. Leaving aside the question as to whether the decision of the Registrar, dated 26/04/1997, approving the resolution passed by the Society on 04/12/1996 regarding exemption to the fourth respondent would revert back to 04/12/1996, it has to be noted that as on the date of the amendment to the feeder category Rules, i.e., 23/04/1998, the fourth respondent stood exempted from acquiring the qualification for the post of Branch Manager. The resolution to grant exemption was on 04/12/1996, i.e. after the classification of the Society as Class-I Society and the consequential occurrence of a vacancy of Internal Auditor by the coming into being of that post on the basis of Appendix III of the Rules as on 01/08/1996. On that day, indisputably, the fourth respondent was not qualified to be an Internal Auditor. Even if I were to take it that the exemption granted to the fourth respondent for promotion to the post of Branch Manager would O.P.No.38850/2002-Y -: 4 :- suffice to sustain a promotion to the category of Internal Auditor, both posts having the same qualifications prescribed for appointment, the crucial date is not the date of approval of the feeder category rules. The creation of post is the statutory impact of the classification of the Society as Class-I Society and therefore, the post, in law, has to be recognised as having arisen on 01/08/1996. Without having any approved feeder category Rules, the petitioner was appointed as Internal Auditor. She was qualified to hold that post. No open market candidate who could have aspired for direct recruitment, in the absence of service candidates for promotion, have challenged the appointment of the petitioner as Internal Auditor on 01/08/1996. With reference to 01/08/1996 the fourth respondent was indisputably unqualified to be appointed as Internal Auditor. He, as already noticed, did not have even the benefit of exemption as on 01/08/1996, the crucial date. The appointment of the petitioner in preference of the fourth respondent, as Internal Auditor, could not have been challenged by the fourth respondent at any point of time. O.P.No.38850/2002-Y -: 5 :- 5. In the light of what is stated above, though the fourth respondent did not have any right to challenge the appointment of the petitioner as Internal Auditor from 01/08/1996, I may also notice that the fourth respondent raised a claim for such appointment only after the approval of the feeder category Rules on 23/04/1998 and moved the Joint Registrar only in the year 2000. 6. For the foregoing reasons, the impugned order of the Joint Registrar holding that the fourth respondent ought to have been preferred to the petitioner for appointment as Internal Auditor is unsustainable. The view therein is based on an assertion that 23/04/1998 being the date of approval of feeder category Rules is the relevant date. It is not. The relevant date was the date of classification of the Society as Class-I Society calling for the requirement of the Internal Auditor in the service. That date is 01/08/1996. Therefore, the appointment of the petitioner as Internal Auditor with effect from 01/08/1996, whatever be the procedure called, promotion or otherwise, has to stand. O.P.No.38850/2002-Y -: 6 :- In the result, the impugned Ext.P6 is quashed and following the interim order, it is directed that the petitioner will be entitled to all consequential benefits. Writ petition is allowed as above. No costs. THOTTATHIL B.RADHAKRISHNAN, Judge ms O.P.No.38850/2002-Y -: 7 :- THOTTATHIL B. RADHAKRISHNAN, J. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ O.P. No. 38850 of 2002-Y ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ J U D G M E N T 8th day of February, 2008