IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 12TH JUNE 2008 / 22ND JYAISHTA 1930 WA.No. 1069 of 2008() ------------------------------ AGAINST THE JUDGEMENT/ORDER IN WPC.15960/2007 Dated 06/02/2008 .................... APPELLANT/RESPONDENT -------------------------------------- VARAPPUZHA SERVICE CO-OPERATIVE BANK, LTD. NO. 1582, VARAPUZHA POST, ERNAKULAM, REP. BY ITS SECRETARY. BY ADV. SRI.P.N.MOHANAN RESPONDENTS/PETITIONER/RESPONDENTS ----------------------------------------------------------------- 1. K.P. DILIP, ACCOUNTANT, THE VARAPPUZHA SERVICE CO-OPERATIVE BANK LTD. NO. 1582, VARAPPUZHA POST, ERNAKULAM. 2. T.A. CHACKOCHAN, SENIOR CLERK, VARAPPUZHA SERVICE CO-OPERATIVE BANK, VARAPPUZHA.P.O. 3. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (G), ERNAKULAM. 4. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO CO-OPERATION (G) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER BENNY GERVACIS ADV. SRI.P.P.JACOB - R1 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12/06/2008, ALONG WITH WA NO. 1113 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & P.N.Ravindran, JJ. ===================== W.A.Nos.1069 & 1113 of 2008 ===================== Dated this the 12th day of June, 2008. JUDGMENT Ravindran,J. These appeals arise from the judgment of the learned single Judge in W.P.(C) No.15960 of 2007. W.A.No.1069 of 2008 is filed by the first respondent and W.A.No.1113 of 2008 is filed by the second respondent therein. The parties are referred to as they are arrayed in the Writ Petition. The brief facts of the case are as follows: 2. The writ petitioner entered service in the first respondent - bank on 1.7.1980. He was promoted as Junior Clerk on 10.10.1986, as Senior Clerk on 1.7.1993 and as Accountant with effect from 24.3.1998. The second respondent's father late T.C.Antony was an employee of the first respondent bank. He died while in service. On the second respondent's request, he was appointed as Junior Clerk on compassionate grounds. Since WA Nos.1069 & 1113/08 -: 2 :- the second respondent did not possesses Junior Diploma in Co- operation, which is one of the qualifications prescribed for the post of Junior Clerk, the Board of Directors of the first respondent bank moved the State Government seeking exemption under Rule 181 of the Kerala Co-operative Societies Rules, 1969, hereinafter referred to as the "Rules" for short, exempting the bank from the provisions of Rule 186(1) of the Rules for the limited purpose of enabling the bank to appoint the second respondent as Junior Clerk. By Ext.P1 order dated 29.7.1986, the State Government granted exemption to the first respondent - bank from the operation of Rule 186(1) of the Rules for the purpose of enabling it to appoint the second respondent as Junior Clerk. This was subject to the condition that the second respondent shall successfully complete the Subordinate Personal Co-operative Training Course (Junior Diploma in Co-operation) within two years from the date of joining duty. Pursuant thereto, the second respondent was appointed as Junior Clerk and he joined duty on 1.9.1986. The period of two years fixed in Ext.P1 expired on 31.8.1988. The second respondent did not complete the Subordinate Personal Co-operative Training Course (Junior WA Nos.1069 & 1113/08 -: 3 :- Diploma in Co-operation) within the said period. On the terms of Ext.P2, the second respondent could not have continued in service as Junior Clerk after 31.8.1988. However, the first respondent bank moved the Joint Register of Co-operative Societies, Ernakulam seeking extension of the period of exemption granted as per Ext.P1 for a further period of two years. By Ext.P2 order passed on 7.1.1989, the Joint Registrar granted the said request. The second respondent acquired the qualification on 11.5.1990. A vacancy of Senior Clerk arose in July, 1993 and in that vacancy the writ petitioner was promoted. After the writ petitioner was promoted as Senior Clerk on 1.7.1993, the second respondent raised an industrial dispute relying on Exts.P1 and P2 and contending that as he was appointed as Junior Clerk earlier than the writ petitioner, he is entitled to be promoted to the post of Senior Clerk earlier than the writ petitioner. The writ petitioner got himself impleaded in the industrial dispute. While the dispute was pending before the Industrial Tribunal, the writ petitioner filed O.P.No.13532 of 1998 in this Court challenging Ext.P2. While the said Original Petition was pending, the Industrial Tribunal passed Ext.P3 award on WA Nos.1069 & 1113/08 -: 4 :- 1.6.1999 holding that the validity of the earlier promotion given to the writ petitioner as Senior Clerk would depend upon the decision of this Court on the sustainability or otherwise of Ext.P2. The Kerala State Co-operative Employees Union which had espoused the cause of the second respondent before the Industrial Tribunal filed O.P.No.11358 of 2000 in this Court challenging Ext.P3 award, which was produced and marked as Ext.P2 therein. 3. After the second respondent successfully completed the Subordinate Personal Co-operative Training Course (Junior Diploma in Co-operation) the first respondent bank moved the State Government seeking extension of the exemption earlier granted for the period from 1.9.1989 to 1.9.1990 with a view to enable the the second respondent to continue in service as Junior Clerk. By Ext.P5 order passed on 22.9.1999, the State Government granted the said request. The writ petitioner thereupon filed O.P.No.9666 of 2000 in this Court challenging Ext.P5 order. While O.P.No.9666 of 2000 was pending, O.P.No.13532 of 1998 came up for hearing on 27.11.2003. On that day, O.P.No.13532 of 1998 was dismissed as infructuous WA Nos.1069 & 1113/08 -: 5 :- without prejudice to the contentions of the writ petitioner. Thereafter, O.P.No.9666 of 2000 filed by the writ petitioner challenging Ext.P5 order (which had been produced and marked as Ext.P7 therein) was heard along with O.P.No.11358 of 2000 filed by the Kerala Co-operative Employees Union challenging Ext.P3 award (produced and marked as Ext.P2 therein). By judgment delivered on 30.6.2006, a learned Single Judge of this Court quashed Ext.P5 (Ext.P7 in O.P.No.9666 of 2000) and directed the State Government to pass fresh orders in the matter after notice to the writ petitioner, the first respondent - bank and the employees union which represented the second respondent. Ext.P3 award was also set aside and the Tribunal was directed to pass an award on the merits. Thereafter, the State Government passed Ext.P7 order dated 12.7.2007 rejecting the writ petitioner's contention holding that in view of Note 3 to Rule 186 which was introduced with effect from 13.10.1988 as per notification issued in September 1990, persons given employment under the dying-in-harness scheme are eligible for relaxation from qualification for a period of three years and therefore, no reasons exist to interfere with Ext.P2. The writ WA Nos.1069 & 1113/08 -: 6 :- petitioner thereupon filed W.P.(C)No.15960 of 2007 seeking the following reliefs: "i. Issue a writ of certiorari or any other writ or order calling for the records leading to the issue of Ext.P2 & Ext.P7 and quash the same. ii) Issue a writ of mandamus or any other writ or order directing the first respondent to consider the petitioner as senior over the second respondent and give due promotions without delay." 4. By judgment delivered on 6.2.2008, the learned Single Judge held that the Joint Registrar was not competent to enlarge the period of exemption stipulated in Ext.P1 and that as the second respondent acquired the training qualification on the strength of Ext.P2 within the enlarged time, he cannot claim seniority over the writ petitioner, who was qualified earlier than the second respondent. The writ petitioner admittedly possessed all the prescribed qualifications when he entered service as Junior Clerk. The learned Single Judge therefore held that the writ petitioner shall be treated as senior to the second respondent in the category of Junior Clerk and in the higher posts. The first WA Nos.1069 & 1113/08 -: 7 :- respondent - bank and the second respondent have therefore filed these Writ Appeals canvassing the correctness of the decision of the learned Single Judge. 5. We have heard Sri.P.N.Mohanan, the learned counsel appearing for the appellant in W.A.No.1069 of 2008 and Sri.P.V.Baby, the learned counsel appearing for the appellant in W.A.No.1113 of 2008. It is not in dispute that the period of exemption granted as per Ext.P1 expired on 31.8.1988. The period of exemption was not extended by the State Government. The second respondent admittedly did not complete the Subordinate Personal Co-operative Training Course (Junior Diploma in Co-operation) within the period stipulated in Ext.P1 and therefore, his continuance in service after 31.8.1988 was irregular. He acquired the qualification only on 11.5.1990. Though by Ext.P2, the Joint Registrar of Co-operative Societies had extended the period of exemption, as rightly held by the learned Single Judge, the Joint Registrar of Co-operative Societies was incompetent to do so. Therefore, Ext.P2 is of no effect. It was only on 25.9.1990 that Note 3 to Rule 186 was incorporated in the rules with retrospective effect from WA Nos.1069 & 1113/08 -: 8 :- 13.10.1988 exempting dependents of employees who die-in- harness from clearing the Subordinate Personal Co-operative Training Course (Junior Diploma in Co-operation) for a period of three years. The second respondent was appointed on 1.9.1986. The two year period prescribed in Ext.P1 expired on 31.8.1988 long before Note 3 was incorporated in the rules. Note 3 to sub rule (1) of Rule 186 which came into force on 13.10.1988 cannot in our opinion govern the case of the second respondent who was appointed on 1.9.1986. Further, the period of exemption had also expired on 31.8.1988. Only dependents of employees who die-in-harness appointed on and with effect from 13.10.1988 can claim the benefit of Note 3. In other words, the period of three years referred to in Note 3 would apply only to appointments made on and after 13.10.1988. The second respondent had not acquired the training qualification within the period stipulated in Ext.P1 which expired on 31.8.1988 and the benefit of Note 3 was also not available to him. We therefore agree with the learned Single Judge that the second respondent, who continued in service only by reason of Ext.P2, and cleared the test within the extended period of exemption granted by an in-competent WA Nos.1069 & 1113/08 -: 9 :- authority, cannot claim seniority over the writ petitioner relying on Ext.P2. In our opinion, the decision of the Government in Ext.P7 that Ext.P2 order passed by the Joint Registrar of Co- operative Societies is just and fair, is plainly untenable. Under Rule 181 of the Rules, the only authority competent to grant exemption is the State Government. The rules do not contemplate delegation of the power to grant exemption to any other authority. Therefore, Ext.P2 order is non est in law. The second respondent cannot claim any benefit thereunder and claim seniority over the writ petitioner who was fully qualified when he was appointed as Junior Clerk only on 1.10.1986. As the second respondent became qualified to hold the post of Junior Clerk only on 11.5.1990 and was not entitled to the benefit of Note 3 to Rule 186(1) and as he admittedly did not acquire the training qualification during the period of exemption originally granted as per Ext.P1, he cannot claim the benefit of his past service as Junior Clerk with effect from 1.9.1986. He has qualified service only from 11.5.1990. In that view of the matter, the second respondent is not entitled to claim seniority over the writ petitioner in the category of Junior Clerk and higher posts. We WA Nos.1069 & 1113/08 -: 10 :- find no reason to interfere with the judgment of the learned Single Judge. The Writ Appeals accordingly fail and they are dismissed in- limine. J.B.Koshy, Judge. P.N.Ravindran, Judge. ess 26/6