IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 W.A.No. 1635 of 2009() AGAINST THE JUDGMENT IN WPC.37004/2008 Dated 19/06/2009 APPELLANT: PETITIONER A.AMBUJAKSHI, AGED 58, W/O SETHU MATHAVAN, SETHU VIHAR, THENHIPALAM P.O, MALAPPURAM DISTRICT, PIN-673 636 BY ADV. SRI.E.NARAYANAN RESPONDENTS: RESPONDENTS 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, CO-OPERATIVE DEPARTMENT, THIRUVANANTHAPURAM. 2. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, (GENERAL), MALAPPURAM. 3. THE REGISTRAR, CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM. 4. THE THENHIPALAM SERVICE CO-OPERATIVE BANK LTD., NO.D-1969, REPRESENTED BY ITS SECRETARY, THENHIPALAM P.O, MALAPPURAM DISTRICT. 5. THE SECRETARY, THE THENHIPALAM SERVICE CO- OPERATIVE BANK LTD., NO.D-1969, THENHIPALAM P.O, MALAPPURAM DIST. BY GOVT. PLEADER SMT. A.G. ANEETHA-R1 TO R3 R. SUDHISH-R4,R5 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 28/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.A. NO. 1635 OF 2009 --------------------------------------------- Dated this the 28th day of July, 2009 JUDGMENT Balakrishnan Nair, J. The appellant is the writ petitioner. The brief facts of the case are the following: 2. The writ petitioner was appointed as Junior Clerk under the 4th respondent - Co-operative Bank on 4.10.1979. She was promoted as Senior Clerk on 20.7.1984. Still later, she was promoted as Accountant with effect from 1.1.2002. She was having S.S.L.C. and Junior Diploma in Co-operation. The next promotion post is Internal Auditor. Graduation is one of the prescribed qualifications for promotion to that post. Though as per the classification of the Society, the post of Internal Auditor was available, the feeder category rules contemplated under Rule185(1) of the Kerala Co-operative Societies Rules, 1969 (hereinafter referred to as “the Rules”) were not prescribed at the relevant time. The 4th respondent -Bank W.A.NO. 1635/2009 2 moved for approval of the feeder category sub rules. Pending approval, the Bank decided to move the Joint Registrar of Co-operative Societies for relaxation of the qualification of graduation, so that the appellant could be appointed. While so, pending approval of the feeder category sub rules and the resolution to relax the qualification, the appellant/petitioner was appointed as Internal Auditor on 1.4.2002. Later, the Joint Registrar, by Ext.P2 order dated 18.8.2006, declined to grant relaxation of qualification, as provided under Rule 185(8) of the Rules. The reason stated in the said order was that the petitioner/appellant had not completed 5 years of service in the lower post of Accountant. The petitioner preferred Ext.P3 appeal before the Government. The Government dismissed the appeal by Ext.P4 order, confirming Ext.P2 order. Challenging Exts.P2 and P4, the Writ Petition was filed. 3. Respondents 4 and 5 filed a counter affidavit supporting the writ petitioner. The learned Single Judge, after hearing both sides, dismissed the Writ Petition by the judgment under appeal. The learned Judge found that though the post of Accountant was included in the feeder category in 2002, the feeder category rules were approved only with effect from 23.7.2005. Therefore, only thereafter, the petitioner could have claimed promotion. Secondly, it was found that even if the five year period W.A.NO. 1635/2009 3 prescribed in sub-rule (8) of Rule 185 of the Rules came into force only on 3.9.2005 and, therefore, not applicable to the case of the petitioner, Circular No.22 of 1989 dated 12.4.1989 was occupying the field at the relevant time. As per the said Circular, a person who worked in the feeder category atleast for 5 years alone is eligible for relaxation of qualification for further promotion. In view of the findings on the above two points, the Writ Petition was dismissed. 4. Learned counsel for the appellant submitted that the Bank resolved to frame the feeder category sub rules in time, but the Joint Registrar took a long time to approve the same. Therefore, the same cannot affect the rights of the appellant. We notice that the feeder category sub rules were approved only on 23.7.2005. The delay, if any, for approval of the same cannot be collaterally attacked in this proceeding. Regarding the second point, learned counsel for the appellant submitted that the five year period stipulated for grant of relaxation of qualification contained in Rule 185(8) of the Rules was introduced only on 3.9.2005. So, the same cannot affect the promotion of the petitioner ordered on 1.4.2002. But, as rightly held by the learned Single Judge, at the relevant time Circular No.22 of 1989 issued by the Registrar was remaining in force. Societies are bound by the directions issued by the W.A.NO. 1635/2009 4 Registrar. Learned counsel for the appellant submitted that the appellant has filed a fresh Writ Petition challenging that circular. The challenge now raised against the above circular cannot affect the decision of the learned Single Judge, which was rendered when the circular was very much remaining in force. In view of the above position, we find nothing wrong with the decision of the learned Single Judge. Accordingly, the Writ Appeal is dismissed. But, this judgment will not affect the rights of the appellant/petitioner to claim promotion with retrospective effect, if Circular No.22 of 1989 is quashed by this Court. It is also clarified that this judgment will not affect the rights, if any, of the appellant to claim relaxation of the stipulation of completion of five years in the feeder category. (K. BALAKRISHNAN NAIR) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.A.NO. 1635/2009 5 K.BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. W.A. NO.1635/2009 JUDGMENT 28th July, 2009 W.A.NO. 1635/2009 6