IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 28TH JANUARY 2008 / 8TH MAGHA 1929 WP(C).No. 2120 of 2007(B) -------------------------------------- PETITIONERS: ---------------------- 1. M.S.SURESH, SECRETARY, ELAVALLY SERVICE CO-OP.SOCIETY LTD. NO.F 1456, P.O.VAKA (VIA), MATTOM- 680602. 2. ELAVALLY SERVICE CO-OP. SOCIETY LTD. NO.F 1456, P.O. VAKA (VIA), MATTOM - 680602. REP.BY ITS PRESIDENT. BY ADV. SRI.P.N.MOHANAN RESPONDENTS: ------------------------- 1. JOINT REGISTRAR OF CO-OP.SOCIETIES (GENERAL), THRISSUR. 2. STATE OF KERALA REP. BY SECRETARY TO GOVERNMENT, CO-OPERATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.P.K.RAVIKRISHNAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.2120/2007 B APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER PROMOTING THE PETITIONER. EXT.P2: COPY OF THE FEEDER CATEGORY SUB RULES DTD. 23/04/05. EXT.P3: COPY OF THE RESOLUTION OF THE 2ND PETITIONER BANK DTD. 24/12/05. EXT.P4: COPY OF THE ORDER DTD. 24/02/06. EXT.P5: COPY OF THE ORDER G.O.(MS) NO.16/89 CO-OP. DTD. 22/03/1989. EXT.P6: COPY OF THE ORDER DTD. 16/11/06 OF THE 2ND RESPONDENT. /TRUE COPY/ P.A.TO JUDGE Kss THOTTATHIL B. RADHAKRISHNAN, J. ------------------------------- W.P(C) No. 2120 OF 2007 ----------------------------------- Dated this the 28th day of January, 2008 JUDGMENT Sri.P.R. Ramakrishnan retired from the post of Secretary of the second petitioner Co-operative Society on 01.01.04. As a consequence, by Ext.P1, the petitioner, then a senior clerk was put in charge of the post of the Secretary. Ext.P2 feeder category rules would show that the method of appointment to the post of Secretary is by promotion from the category of Assistant Secretary or otherwise, by direct recruitment, by deputation. From the category of Senior Clerk which was held by the petitioner while he was put in charge of the Secretary, he had to move up three stages and considered to be in the feeder category for appointment as Secretary, as per Ext.P2 feeder category rules. Following certain relinquishments by certain other employees, of their entitlements for promotion, the committee of the second petitioner resolved on 24.12.05, to exempt the petitioner from acquiring the qualification of Graduation, for being promoted as Secretary. On the basis of that resolution the second petitioner Society moved the Joint Registrar for approval. That has been WPC No. 2120 of 2007 2 rejected by the impugned order, Ext.P4, on the ground that the first petitioner is not entitled to exemption because he did not possess the minimum service of 5 years in the feeder category in terms of Rule 185(8) (b) (ii) of the Kerala Co-operative Societies Act, as amended rule with effect from 03.09.05. 2. The learned counsel for the petitioner argued that on the date of his placement as Secretary on 07.01.04, the law as it then stood did not insist any such condition for relaxation and the power of the committee to relax the qualification in deserving case; for the purpose of promotion depended only on the requirement as to the prior approval of the Registrar and that such decision should be for reasons to be recorded. This being the term of Rule 185(2), as it stood before the amendment on 03.09.05, the learned counsel for the petitioner relied on the decision of this Court in Kuttippuram Service Co-operative Bank v. State of Kerala [2004(2) KLT 73]. 3. The facts already noticed should show that all that happened on 07.01.04 is that the petitioner was put in charge of the post of the Secretary. That did not contain any action by the WPC No. 2120 of 2007 3 committee in terms of Rule 185(2), as it then stood. The Society had not then resolved to relax the qualification of the petitioner for the purpose of promotion. Nor was any reason recorded on for any such decision. Nor was the prior approval of the Registrar sought for, for such an action. Therefore, Ext.P1 cannot be treated as a decision of the committee, on 07.01.04, in terms of Rule 185(2) of the Rules as it then stood. 4. The facts would show that it was on 24.12.05 that the committee resolved to relax the qualification of the petitioner. That was evidently after Rule 185(8), as it now stands, was brought in, with effect from 03.09.05, taking away the provision of the Rule 185(2) as it earlier stood. This means that as on 24.12.05 there could not have been any relaxation of qualification in the case of the petitioner since he had not, admittedly, worked for a period of 5 years in the feeder category of Assistant Secretary, for the very simple reason that he was in the category of Assistant Secretary only as against a super numerary post, that is, one away the three super numerary posts as Assistant Secretary, Manager and Head Clerk, created to bring up the petitioner, who was then Senior WPC No. 2120 of 2007 4 Clerk to the category of Assistant Secretary, for being posted as Secretary since the other employees in the category of Assistant Secretary, Manager and Head Clerk had relinquished their claims for such promotion. Such placement against super numerary post does not qualify to be counted for the purpose of promotion by treating it as service in the feeder category of Assistant Secretary. Therefore, the impugned decision cannot be found fault with. In the result, the Writ Petition fails and the same is accordingly dismissed. No costs. THOTTATHIL B. RADHAKRISHNAN, JUDGE btt WPC No. 2120 of 2007 5