IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 5TH MARCH 2010 / 14TH PHALGUNA 1931 WA.No. 1473 of 2006() ------------------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.13350/2006 DATED 12/07/2006 .................... APPELLANT/PETITIONER: ------------------------------------- VALSAMMA MATHEW, KURAMANNIL HOUSE, ANICKAD P.O., PALLICKATHODU, KOTTAYAM. BY ADV. MR.S.RADHAKRISHNAN RESPONDENTS/RESPONDENTS: ------------------------------------------------ 1. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, SAHAKARANA BHAVAN, TRIVANDRUM. 2. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, KOTTAYAM. 3. THE MANAGING DIRECTOR, REGIONAL FARMERS SERVICE CO-OPERATIVE BANK LTD. NO.3867, ANICKAD P.O., KOTTAYAM. 4. SMT. K.R.PUSHPAKUMARIAMMA, KALLAL HOUSE, ANICKAD WEST P.O., KOTTAYAM. R1 & R2 BY GOVERNMENT PLEADER MR.LAKSHMI NARAYANAN. R3 BY MR.P. RAVINDRAN, SENIOR ADVOCATE R4 BY ADV. MR.P. GOPALAKRISHNA KURUP. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18/02/2010, ALONG WITH WPC NO. 2631 OF 2007, THE COURT ON 05/03/2010 DAY DELIVERED THE FOLLOWING: rs. Thottathil B.Radhakrishnan & P.S.Gopinathan, JJ. = = = = = = = = = = = = = = = = = = = = = = = = W.A.1473 of 2006-C & W.P(C).2631 of 2007-L = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 5th day of March, 2010. Judgment Thottathil B.Radhakrishnan, J. “CR” 1.The appellant in the captioned writ appeal is the petitioner in the connected writ petition and in the writ petition from which the writ appeal arises. We refer to her as the “petitioner”, hereinafter. She and the fourth respondent were selected and appointed to the service of the third respondent co-operative bank on the same day. The fourth respondent was the first rank holder and the petitioner, the second. With the passage of time, both of them went up the ladder in the establishment and were in the feeder category for promotion to the post of Branch Manager. It is not in dispute that the petitioner WA1473/06 & WPC2631/07 -: 2 :- is fully qualified in terms of Rule 186(1) of the Kerala Co-operative Societies Rules, 1969, hereinafter referred to as the “Rules”, to hold the post of the Branch Manager and that the fourth respondent did not possess the educational qualifications prescribed for that post. It is also not in dispute that the fourth respondent was within the bench marks on which the Registrar of Co-operative Societies could relax the qualification in terms of Rule 185(8) of the Rules. 2.Apprehending that the officer exercising the powers of the Registrar would relax the qualifications of the fourth respondent at the instance of the bank, the petitioner filed WP(C). 13350 of 2006. That was dismissed on 12.7.2006. Hence, W.A.1473 of 2006. On the date on which that writ appeal came up for admission, the Joint Registrar issued order granting relaxation. That is, therefore, challenged by the petitioner in WP (C).2631 of 2007. Having regard to the intricate WA1473/06 & WPC2631/07 -: 3 :- link between the two matters, the writ petition has been called on to the Bench to be heard along with the writ appeal. 3.The petitioner does not dispute that her rival, the fourth respondent possessed such qualifications as would make her eligible for being considered for grant of exemption from qualification in terms of Rule 185(8). However, the argument on behalf of her is that the said exercise of granting exemption can be done only with reference to the need of the establishment and it should not be permitted to be utilised to get over the entitlement of the petitioner for preferential appointment to the category of the Branch Manager, she being the only eligible candidate with the prescribed qualifications in terms of Rule 186(1). It is also argued that the need of the establishment and the interest of the establishment ought to be the paramount consideration and exemption orders are not to be issued merely to aid an unqualified person to get WA1473/06 & WPC2631/07 -: 4 :- a promotion. 4.Rule 185(8) of the Rules reads as follows: “185(8). 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 subject to the following conditions: a) Minimum educational qualification for ministerial and supervisory posts other than those requiring technical qualification shall be SSLC. Exemption from passing SSLC shall not be granted under any circumstances provided that in the case of employees who were appointed direct to the ministerial posts before 1-1-1974 SSLC need not be insisted. b) Where the academic qualification prescribed is graduation and above, exemption from acquiring the said WA1473/06 & WPC2631/07 -: 5 :- qualification may be considered if the incumbent satisfied the following conditions, namely:- i) should have passed JDC or equivalent; ii) should have a minimum service of five years in the feeder category; and iii) should not be less than forty- five years of age. c) Employees of the sub-staff category shall not be exempted in any case from co-operative training qualification for promotion to the clerical category. d) The resolution of the Board of Directors of the society should indicate clearly the reasons justifying exemption and a history of service of the incumbent with details of punishment awarded and results of the performance appraisal. e) The incumbent should not have been punished by imposing any of the following penalties within a period of WA1473/06 & WPC2631/07 -: 6 :- five years prior to the date of resolution: i) Withholding of increments with cumulative effects; ii) Withholding of promotion; iii) Recovery from the pay of the whole or part of any pecuniary loss caused to the society, by negligence or breach of orders or otherwise. iv) Reduction to a lower rank. f) The Board of Directors shall verify and satisfy themselves about the competency of the incumbent to the post to which he is promoted. g) Exemption from qualifications other than Co-operative Training qualification should be obtained at the time of each promotion to each cadre which means ministerial cadre, supervisory cadre and chief executive.” 5.The aforesaid rule will show that relaxation of WA1473/06 & WPC2631/07 -: 7 :- qualification can be granted for the purpose of promotion in deserving cases, on the request of a society by passing a resolution subject to the conditions enumerated in the rule. Considering the aforesaid rule, it was held by this Court in Haneesa Beevi v. Registrar of Co-operative Societies, 2008(1) KLT 829 that the power to grant relaxation is not to be applied as a rule, but always as an exception and the intention of the rule is not to push up all persons in the feeder category in the same priority by granting them relaxation. Considering the Full Bench decision of this Court in T.C.Sreedharan Pillai v. State of Kerala, 1973 KLT 151 referred to by the learned counsel for the petitioner and the decision of the Apex Court in State of Orissa v. Sukanti Mohapatra, (1993) 2 SCC 486, it was laid down in Haneesa Beevi(supra) that the conferment of a power to exempt should not be applied to result in dissimilar treatment and Rule 185(8) is a rule which should not be applied to work out as if it confers an unbridled power. Reference was WA1473/06 & WPC2631/07 -: 8 :- made in Haneesa Beevi(supra) to Ramendran v. State, 1988(1) KLT 576, to state that Rule 185(8) requires the society to record its reasons for relaxing the qualifications. It was stated in Haneesa Beevi(supra) as follows: “While it may be open to the employer society to grant relaxation in deserving cases, thereby meaning that the question as to whether a person deserves or not has to be considered with reference to his credential, contribution and other attended matters, any rational, reasonable and fair employer has to strike a meaningful balance between all persons, who compositely form a feeder category for promotion to a higher category. Viewing the concept of promotion in that angle, the power to grant relaxation is not to be applied as the rule, but always as an exemption and is not to be applied as if the rule aids the employer society to push up all persons in the feeder category in the same priority to the higher category by granting relaxation without specific reference and individual reasons for WA1473/06 & WPC2631/07 -: 9 :- each case, for relaxation of qualifications. It is insufficient that the employer society makes similarly worded, omnibus, though separate, statements regarding the conduct, status and contribution. The thrust must be on the demonstration by the contribution and conduct of an incumbent which would trigger any conscientious employer to decide to give such personal relaxation for the purpose of promotion and let him have a march over those qualified hands who are in the feeder category, but may be junior to the unqualified incumbent. 6.Haneesa Beevi was a case where promotions were made even before the proposal for relaxation was approved by the Registrar. But, in the case in hand, the society had drawn up a resolution (Ext.P5 in WP(C).2631 of 2007) which clearly reflects application of mind by the Board on the relevant question, that is, the appropriateness of the employee, the fourth respondent, being given an exemption in the light of her competence and contribution to the establishment; the WA1473/06 & WPC2631/07 -: 10 :- interest and need of the employer society being, to continue to derive her assistance as an employee in the still higher category, namely, cadre of the Branch Manager. The resolution states that the fourth respondent's service of 23 years had been to the extreme satisfaction of the establishment and had instilled confidence on the customers of the bank and that her service has contributed to the growth of the transactions of the bank. It was accordingly that the bank recommended for relaxation of her qualification. 7.With the aforesaid, adverting to the opening limb of Rule 185(8), it can be seen that the competence to relax qualification is conferred by the statutory rule, for the purpose of promotion in deserving cases. Therefore, the prime concern is that the candidate deserves such an exemption. The primary authority to conclude on this issue is the employer society. It is for the society to pass a resolution to that effect. Clause (d) of Rule 185(8) states that the resolution of the WA1473/06 & WPC2631/07 -: 11 :- Board of Directors of the society should indicate clearly the reasons justifying exemption and history of service of the incumbent with details of punishment awarded and results of the performance appraisal. Therefore, the focus is on the individual, to find out, firstly, as to whether it is a deserving case, having regard to the history of the service of the incumbent with particular regard to any punishment awarded and results of performance appraisal. It is clause (f) of sub-rule (8) of Rule 185 which says that the Board of Directors shall verify and satisfy themselves about the competency of the incumbent to the post to which he is promoted. Therefore, the ultimate consideration by the employer society has to be from the angle of the individual employee being a deserving candidate for such promotion, however the need of the establishment shall also be of important consideration. Hence, it is not that the bank should consider an employee for exemption only when qualified hands are not available in the WA1473/06 & WPC2631/07 -: 12 :- feeder category. Seniority, performance, competence, contribution to the establishment and various other facts and factors would go into the making of consideration as to whether a particular person is to be granted an exemption. The impugned resolution satisfies these bench marks as evidenced by the document referred to above. It is that resolution that has got the seal of approval of the competent authority. Therefore, we do not find any jurisdictional error or legal infirmity in the matter. 8.Another issue which is raised on behalf of the petitioner is that the Joint Registrar had no authority to pass the impugned order. Rule 185(8) confers the power on the Registrar. That power is on the Registrar following the amendment as per SRO.869/05 published in the Gazette on 3.9.2005. Before that, the power was on the committee to relax the qualification, with the prior approval of the Registrar. As per Notification No.255/69/AD dated 28.6.1969 published on WA1473/06 & WPC2631/07 -: 13 :- 8.7.1969, the Government of Kerala conferred on all Additional Registrars and Joint Registrars, all powers of the Registrar under the Kerala Co- operative Societies Act, 1969, hereinafter referred to as the “Act”. That notification is issued in exercise of authority under Section 3 (2) of the Act. That notification being one issued under the primary legislation, will continue to operate as regards all powers of the Registrar in terms of the Act and Rules, including in terms of any amendment to the delegated legislation, i.e., the KCS Rules from time to time unless such delegation is superseded by the Government again exercising the power under Section 3(2) of the Act and modifying Notification No.255/69/AD. Section 2(p) of the Act defines the Registrar to mean the Registrar of Co-operative Societies appointed under Section 3(1) of the Act and includes any person on whom all or any of the powers of the Registrar under the Act are conferred. The expression “Registrar” includes Joint Registrar - See Somasundaram v. WA1473/06 & WPC2631/07 -: 14 :- Joint Registrar, 1985 KLT 125. All superior officers, namely, Deputy Registrar, Joint Registrar and Additional Registrar could be Registrar as defined in Section 2(p) of the Act - See A & E Inspector, Asst.Registrar's Office, Udumbanchola v. Antony Varghese, 1987(2) KLT 233. Therefore, the mere fact that Rule 185(8) as it now stands, came into being, later in point of time than Notification No.255/69/AD, does not, in any manner, affect the power of a Joint Registrar to exercise the powers of the Registrar under Rule 185(8). That contention is also repelled. For the aforesaid reasons, the writ appeal and the writ petition fail. They are accordingly dismissed. No costs. Sd/- Thottathil B.Radhakrishnan, Judge. Sd/- P.S.Gopinathan, Judge. Sha/0203 -true copy- P.S.to Judge.