IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 6TH APRIL 2009 / 16TH CHAITHRA 1931 WP(C).No. 23298 of 2005(W) ----------------------------------------- PETITIONER(S): ------------------------- 1. E.P. MARY, BRANCH MANAGER, ARANATTUKARA ORIENTAL CO-OPERATIVE BANK LTD., ARANATTUKARA, TRICHUR. 2. K.C. JOHNSON, ACCOUNTANT, -DO-. 3. K.G. PADMINI, ACCOUNTANT, -DO-. 4. T.G. AMBUJAKSHI, SENIOR CLERK, -DO-. 5. V.F. OMANA, SENIOR CLERK, -DO-. BY ADVS. MR.V.G.ARUN, MR.T.R.HARIKUMAR. RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, CO-OPERATION DEPARTMENT, TRIVANDRUM. 2. ASSISTANT REGISTRAR OF CO-OP. SOCIETIES GENERAL, TRICHUR. 3. ARANATTUKARA ORIENTAL CO-OPERATIVE BANK, TRICHUR BY ITS SECRETARY. 4. P.B.PANICKER, VIDYA BHAVAN, POOTHOLE, TRICHUR-8. 5. MRS. PRAMA PAUL, CHITTALAPPILLY, KUNHAPPAN HOUSE, ARANATTUKARA, TRICHUR-18. R1 & R2 BY GOVERNMENT PLEADER MR. I.V.PRAMOD R3 BY ADV.SMT.N.SUDHA DEVI R4 BY ADV.MR.T.M.CHANDRAN R5 BY ADV.MR.S.SUJITH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/04/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.23298/2005 W APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE AGREEMENT DTD. 24/04/1995 EXECUTED BETWEEN THE BANK AND THE UNION. EXT.P2: COPY OF THE RESOLUTION NO.61 DTD. 12/11/1993 WITH THE ORDER APPROVING SAME NO.CRP 6139/93 DTD. 6/01/1994. EXT.P3: COPY OF THE PROCEEDINGS OF THE COMMITTEE MEETING DTD. 24/04/1995. EXT.P4: COPY OF THE ORDER ISSUED TO THE FIRST PETITIONER DTD. 25/04/1995. EXT.P4(A): COPY OF THE SAME ISSUED TO THE 2ND PETITIONER. EXT.P4(B): COPY OF THE SAME ISSUED TO THE 2ND PETITIONER. EXT.P4(C): COPY OF THE SAME ISSUED TO THE FOURTH PETITIONER. EXT.P4(D): COPY OF THE SAME ISSUED TO THE FIFTH PETITIONER. EXT.P5: COPY OF THE LETTER NO.633/95 DTD. 28/04/1995 OF THE ASSISTANT REGISTRAR. EXT.P6: COPY OF THE ORDER IN CMP.13215/95 IN OP.7639/95 DTD. 17/05/1995 OF THIS HON'BLE COURT. EXT.P7: COPY OF THE ORDER IN CMP 13215/95 IN O.P.7639/95 DTD. 12/06/1995. EXT.P8: COPY OF THE PROCEEDINGS OF THE ASST.REGISTRAR NO.E.1495/95 DTD. 14/08/1995. EXT.P9: COPY OF THE LETTER NO.6135/C3/96/CO-OP. DTD.29/07/1996. EXT.P10: COPY OF THE ORDER G.O.RT.NO.327/97/CO-OP. DTD. 20/08/1997. EXT.P11: COPY OF THE JUDGMENT IN O.P.17476 OF 1997 DTD.1/06/2001. EXT.P12: COPY OF THE INTERIM ORDER IN CMP.5149/2001 IN W.A. 2294/2001. EXT.P13: COPY OF THE JUDGMENT IN W.A.NO.2294 OF 2001 DTD. 8/11/2001. EXT.P14: COPY OF THE G.O.(RT) NO.58/2002/CO-OP. DTD. 31/01/2002. Kss ..2/- ....2...... WPC.NO.23298/2005 W EXT.P15: COPY OF THE PROCEEDINGS NO.2169/02 DTD.21/01/2004. EXT.P16: COPY OF THE REVISION PETITION FILED BEFORE THE GOVERNMENT DTD. 21/05/2004. EXT.P17: COPY OF THE PROCEEDINGS OF THE PRESIDENT OF THE BANK DTD. 1/11/2004. EXT.P18: COPY OF THE ORDER G.O.(RT) NO.205/2005/CO-OP. DTD. 26/03/2005. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.23298 of 2005-W = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 6th day of April, 2009. JUDGMENT 1.The petitioners are employees of the third respondent. Following Ext.P1 settlement dated 24.4.1995, it was resolved to effect promotion in the establishment of the third respondent with effect from 7.2.1994. Ext.P2 Feeder Category Rules were framed. Thereafter, Exts.P4 to P4(d) promotion orders were issued on the basis of Ext.P3 resolution. There were some bickerings in the committee and the fourth respondent, a member of the then committee filed a complaint to the Assistant Registrar who, in turn, issued Ext.P5 order requiring the bank to keep the promotions in abeyance. This Court issued Ext.P6 order of stay of that order in O.P.7639/1995. Pending that writ petition, this Court relegated the parties for consideration of the case by the Assistant WP(C)23298/2005 -: 2 :- Registrar who decided that issue against the petitioners. Challenge to that decision was left open to be considered in a statutory appeal, though O.P.7639/1995 was amended. The petitioners filed an appeal, which was decided by the Government as per Ext.P10 holding the promotions to be irregular. The Division Bench of this Court as per Ext.P13 judgment, arising from O.P.17476/1997, directed reconsideration of that appeal. The Government relegated the matter to the Assistant Registrar for fresh disposal. Following that Ext.P14 order, the Assistant Registrar held the promotions as irregular as per Ext.P15 order. The Government have confirmed that decision as per the impugned Ext.P18. During the pendency of Ext.P16 revision leading to Ext.P18 order, the petitioners were promoted with effect from 7.11.2000 after cancelling the earlier promotions with a further direction that they should return the salary and allowances received from 7.2.1994. This decision Ext.P17 and the revisional order of the Government Ext.P18 are WP(C)23298/2005 -: 3 :- under challenge. 2.The Government noticed that in 1989, the bank was given an order of temporary sanction for one year for starting a new branch. In 1990, that was extended for another year, though no new post was allowed. There was no further sanction until 7.11.2000 when permanent sanction was accorded for the branch. Therefore, the question of approval of the date of promotion of the petitioners as any date before 7.11.2000 will not stand. The impugned Ext.P18, to that extent, does not warrant interference. The further question is as to how any emoluments drawn in excess of that which was due in terms of what is stated above, is to be reconciled. If the petitioners had discharged duties and responsibilities attached to the posts to which they were promoted with effect from any date prior to 7.11.2000, then notwithstanding the fact that their such promotions were irregular, it WP(C)23298/2005 -: 4 :- would be unjust to direct them to refund the amounts received and enjoyed by them. It is so declared. However, if the petitioners had not actually discharged such duties and responsibilities, they would not be entitled to amounts overdrawn on the basis of any retrospective promotion. The impugned decision directing recovery will stand modified in terms of this declaration. The writ petition is ordered accordingly. No costs. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/030409