IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 10TH AUGUST 2009 / 19TH SRAVANA 1931 WP(C).No. 30709 of 2004(E) -------------------------------------- PETITIONERS: --------------------- 1. M.K.SUBHAGA, HEAD CLERK, STATE CO-OPERATIVE UNION, OOTTUKUZHY, THIRUVANANTHAPURAM. 2. THE KAMALABAI AMMA, HEAD CLERK, STATE CO-OPERATIVE UNION, OOTTUKUZHY, THIRUVANANTHAPURAM. BY ADVS. MR.GEORGE POONTHOTTAM, SMT.PREETHA G. PILLAI. RESPONDENTS: ------------------------ 1. STATE CO-OPERATIVE UNION, OOTTUKUZHY, THIRUVANANTHAPURAM, REPRESENTED BY THE CHAIRMAN. 2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM. 3. R.SATHEESA KURUP, U.D.CLERK, CO-OPERATIVE TRAINING CENTRE, CHERTHALA. 4. B.S.SREEDEVI, U.D.CLERK, STATE CO-OPERATIVE UNION, OOTTUKUZHY, THIRUVANANTHAPURAM. R1 BY ADVS. MR.C.P.MOHAMMED NIAS, MR. V.G. ARUN, R2 BY GOVT. PLEADER MR. K.S. MOHAMMED HASHIM, R3 & R4 BY ADVS. MR.B.RAGUNATHAN, MR.G.S.MOHANDAS. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.30709/2004-E: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER NO. A.D.M(1)/9610/2000 DTD. 11/10/2000. EXT.P.2: COPY OF THE STAFF REGULATIONS TO THE STATE CO-OPERATIVE UNION, G.O.MS.155/AD. DT. 20/04/1981. EXT.P.3: COPY OF THE ORDER IN C.M.P. NO. 48562/00 IN O.P. NO. 28829/2000 DTD. 4TH DECEMBER 2000. EXT.P.4: COPY OF THE JUDGMENT IN O.P. NO. 28829/2000 DTD.5TH JANUARY 2004. EXT.P.5: COPY OF THE REPRESENTATION FILED BY THE PETITIONERS DTD. 01/03/2004. EXT.P.6: COPY OF THE JUDGMENT IN W.P.(C).NO.12214/2004 DTD. 06/04/2004. EXT.P.7: COPY OF THE WRITTEN SUBMISSION GIVEN BY THE PETITIONERS DTD. 18/05/2004. EXT.P.8: COPY OF THE ORDER NO. PT (1)9450/2004 DTD. 30/09/2004. EXT.P.9: COPY OF THE G.O.RT.NO.191/90/CO-OP. DTD. 14/05/1990. EXT.P.10: COPY OF THE G.O.(P).NO.44/90/(1)/FIN. DTD. 17/01/1990. EXT.P.11: COPY OF THE OFFICE ORDER DTD. 12/03/1990. EXT.P.12: COPY OF THE OFFICE ORDER NO. 2/05 DTD. 16/02/2005. RESPONDENTS' EXHIBITS: EXT.R1.A: COPY OF THE AJENDA NOTE (MDM (1) 9610/2000). EXT.R1.B: COPY OF THE REQUEST DTD. 04/02/2007 MADE BY THE STATE CO- OPERATIVE SOCIETIES UNION. EXT.R1.C: COPY OF THE ORDER DTD. 23/04/2008 PASSED BY THE GOVERNMENT. EXT.R4.A: COPY OF THE ORDER DTD. 29/11/2007 OF THE R.1. //TRUE COPY// P.A. TO JUDGE. Prv. ANTONY DOMINIC,J. --------------------- W.P.(C).No.30709 OF 2004 ------------------------ Dated this the 10th day of August, 2009. JUDGMENT Petitioners joined in the service of the first respondent as LD clerks. Subsequently, Ext.P2 staff regulations, which were approved by the Government and notified on 20.4.1981, were implemented. In so far as this writ petition is concerned, clause 34 of Ext.P2, being relevant is extracted below for reference. “(a) The Registrar shall have power to alter, add to or repeal all or any of these regulations from time to time as and when deem fit. (b). Any doubt regarding the interpretation of the rules shall be referred to the Registrar for clarification and his clarification shall be accepted by all concerned.” 2. By Ext.P1 order dated 11.10.2000, petitioners who had in the meantime promoted as UD Clerks were promoted as Head Clerks. Respondents 3 and 4 herein WP(c).No.30709/04 2 challenged Ext.P1 order of promotion, in O.P.No.28829/2000 filed before this court, in which an interim order was passed on 12.10.2000, restraining the petitioners from functioning in the promoted post. 3. However, that order was subsequently vacated by Ext.P3 order dated 4.12.2000, which clarified that the promotion will however be subject to the result of the Original Petition. The Original Petition was finally disposed of by Ext.P4 judgment, rendered on 5.1.2004, where taking note of the power of the Registrar as available under clause 34 of Ext.P2 regulations, this court directed that, if the petitioners therein move the Registrar by filing a representation, against Ext.P1order referred to above, the said Officer shall consider and dispose of the same after hearing the affected parties. 4. It is stated that in pursuance to Ext.P4 judgment, Ext.P5 application was filed by respondents 3 and 4, in which prayer was made to rescind the decision of the Managing Committee of the first respondent and Ext.P1 order of promotion. Ext.P5 application was considered as directed in Ext.P4 judgment and the Registrar passed Ext.P8 order dated WP(c).No.30709/04 3 30.9.2004. The concluding portion of Ext.P8 order reads as under. “I am of the view that LDC/UDC and Head Clerk are doing the same duties, there is no structural changes in the duties of a Head Clerk when promoted from UDC and as such the promotion prescribed for Head Clerk is not in conformity with the regulations in existence, since there is no change of duties of clerk whether LDC, or Head Clerk. The only difference is in the scale of pay for the post. The post of Head Clerk is not a direct recruitment post. It being a promotion post, the qualification prescribed for Head Clerk is not justifiable in law. Further the Managing Committee of the State Co-operative Union has not considered the spirit of the agenda notes, which is marked as Ext.P12 in the O.P, and simply decided to promote the respondents 5 and 6, by shirking their responsibilities. I came to the conclusion that it might have been occurred by an omission to include JDC also for consideration of promotion of UDC for Head Clerk. Therefore I direct that the State Co- operative Union shall take appropriate action to rectify the omission with immediate effect. The senior most LDCs Smt. B.S.Sreedevii and R. Satheesa Kurup as per the seniority list published by the State Co-operative union are eligible to get promotion at the time when Smt. M.K. Subhaga and Smt. Kamalabai Amma were promoted. So the Union shall give promotion to the incumbents prior to Smt. Subhaga and Smt. Kamalabai Amma as per the seniority in the U.D Clerks category. “ 5. This order therefore shows that according to the WP(c).No.30709/04 4 Registrar, the omission to include JDC in the staff regulations as a qualification for the post of Head Clerk was an omission. On that basis he ordered that the first respondent shall take appropriate action to rectify the omission and further, to give promotion to respondents 3 and 4, prior to the date on which the petitioners were given promotion. It is challenging this order that this writ petition is filed and by order dated 19.10.2004, this court directed that the said order shall be implemented only after obtaining orders from this court. 6. This writ Petition was however disposed of by judgment dated 5.7.2007 relegating the petitioner to pursue the remedy of appeal as provided under Section 83(2) of the Co-operative Societies Act. The contesting respondents pointed out that petitioners did not pursue the appellate remedy as provided in the judgment and therefore on 19.11.2007 they represented to the first respondent requesting to extend them the benefit of promotion as ordered in Ext.P8. It is stated that on their representation, resolution dated 28.11.2007 was passed, to promote them in pursuance to Ext.P8 and accordingly by Ext.R4(a) order dated WP(c).No.30709/04 5 29.11.2007 they were promoted as Head Clerks as directed in Ext.P8. 7. Respondents 3 and 4 submits that on the next day, ie 30.11.2007, the petitioners herein filed I.A.No.15974/07 requesting for enlarging the time prescribed in the judgment dated 5.7.2007 to file appeal. It is stated that during the pendency of the said interlocutory application, on 13.12.2007 they filed RP.No.1245/2007 with a petition to condone the delay in filing the same. It is stated that on 29.2.2008, the review petition was heard and the same was allowed and the judgment was recalled. Respondents 3 and 4 had filed, W.A. No.1601/08 against the order in the review petition recalling the judgment. But however, the writ appeal was dismissed was withdrawn by judgment dated 7th August, 2008. It is accordingly that the writ petition is now caming up for final hearing. 8. The contention raised by the counsel for the petitioners is that, although it may be open to the Registrar to exercise the power as conferred under clause 34 of Ext.P2 staff regulations, any order directing amendment of the staff WP(c).No.30709/04 6 regulation can only be with prospective effect and any retrospective amendment effected cannot affect the vested rights that have already accrued in their favour. Yet another contention raised by the counsel for the petitioner is that, clause 34 confers an executive power on the Registrar and that its exercise can only be with prospective effect. 9. Counsel for respondents 3 and 4 on the other hand contended that the writ Petition itself is not maintainable. According to him, prior to the order dated 29.2.2008, when the review petition was allowed, by Ext.R4(a) order dated 29.11.2007, they were already promoted to the post of Head Clerks with retrospective effect as ordered in Ext.P8. It is stated that in the absence of a challenge to Ext.R4(a) order, the petitioners cannot claim any relief in this writ petition. Yet another contention raised by them is that, clause 34 of Ext.P2 staff regulation confers power on the Registrar to amend or interpret the regulation and it was in exercise of that power Ext.P8 order was issued and which has been implemented by Ext.R4(a). It is contended that such order can be either perspective or retrospective. It is also contended WP(c).No.30709/04 7 that, in this case admittedly respondents 3 and 4 are seniors to the petitioners and that as rightly found by Registrar, it was only on account of the omission on the part of the authorities, that JDC was not incorporated as a qualification in the regulations, particularly on account of the fact that the said qualification found a place in the statutory rules. Therefore, according to them, it is only appropriate to give retrospective effect to the resolution. 10. The first respondent also supports the counsel for the respondents 3 and 4. In addition to the submission made by the party respondents, the counsel for the first respondent invited my attention to Ext.R1(c) order dated 23.4.2008 by which the qualifications have since been amended, incorporating JDC also as one of the qualifications. It is also pointed out that the issue of retrospectivity to Ext.P2 regulation is pending consideration of the Government and orders are awaited. 11. The first contention which requires to be answered is regarding the validity of Ext.P4, which is the first prayer in this writ petition. Although, the prayer made in this writ WP(c).No.30709/04 8 petition is to quash Ext.P8, the submission made was confined to the retrospectivity that is ordered in Ext.P8. A reading of Ext.P8 shows that, when the Registrar found the non-inclusion of JDC qualification in the regulation as a case of omission, he directed the first respondent to take appropriate action to rectify the omission with immediate effect. Proceeding further he directed that respondents 3 and 4, the senior most LDCs as per the seniority list published by the first respondent, should be given promotion prior to the date on which the petitioners have been promoted. 12. As already noticed, the petitioners were given promotion as Head Clerks by Ext.P1 order dated 11.10.2000. Therefore by Ext.P8 order dated 30.9.2004, the amendment directed is given with retrospective effect. Although, I am not in a position to accept the contention of the learned counsel for the petitioners that conditions of service cannot be altered with retrospective effect, still I cannot accept the contention of the respondents that, it is permissible to amend the rules with retrospective effect and thus deprive an employee of the vested rights that have accrued in his favour. If the vested WP(c).No.30709/04 9 rights are affected, such rules will be offending the fundamental rights guaranteed under Art.14 and 16 of the Constitution. Therefore, retrospectivity ordered in Ext.P8 cannot be upheld and to that extent Ext.P8 need to be invalidated and I do so. 13. The contention of respondents 3 and 4 that, in view of the fact that there was no challenge against Ext.R4(a) order, the petitioners cannot get any relief in this writ Petition needs to be addressed. Evidently the admitted fact is that Ext.R4(a) order of promotion was given in implementation of Ext.P8 and the challenge in this writ petition is against Ext.P8. Ext.R4(a) therefore is a dependent order, the fate of which will depend upon the outcome of the challenge against Ext.P8. 14. Once I have accepted the challenge against Ext.P8 to the extent it orders retrospectivity to the promotions, as a necessary consequences Ext.R4(a) to the extent retrospective promotions have been given need to be invalidated, as it cannot survive its own. Therefore, the contention raised by the counsel for the respondents 3 and 4 that, in the absence of any challenge against Ext.R4(a), the petitioners could not WP(c).No.30709/04 10 have approached this court also cannot be accepted. 15. True, the counsel for the first respondent relied on Ext.R1(a), the amendment effected to the rules. However, such amendment was effected only on 23.4.2008 and therefore cannot legitimize Ext.P8, to the extent it is illegal. 16. Counsel for the first respondent points out that retrospectivity to the regulation amended as per Ext.R1(c) is pending consideration of the Government. It is for the Government to consider it and I do not pronounce on the permissibility or otherwise of the request pending before the Government. It is clarified that, this judgment will not stand in the way of Government in considering the said request. In view of the declaration as above, this writ petition is disposed of quashing Ext.P8 to the extent retrospectivity is ordered to the promotions of respondents 3 and 4. Necessarily, as a further consequence, Ext.R4(a) is also quashed to that extent. (ANTONY DOMINIC) JUDGE vi/ WP(c).No.30709/04 11