IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 22ND SEPTEMBER 2008 / 31ST BHADRA 1930 WP(C).No. 26695 of 2008(C) ----------------------------------------- PETITIONER: ----------------------- BOARD OF DIRECTORS, KAREEPRA PANCHAYAT SERVICE CO-OPERATIVE BANK LTD.NO:3827, KAREEPRA,KUZHIMATHICAD.P.O, KOLLAM DISTRICT, REP.BY ITS PRESIDENT C.KRISHNAN KUTTY NAIR. BY ADV. SRI.M.K.CHANDRA MOHANDAS SRI.MURALI MADANTHACODU RESPONDENTS: ------------------------- 1. THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM. 2. REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM. 3. T.OOMMACHAN, MANAGER, KAREEPRA PANCHAYAT SERVICE CO-OPERATIVE BANK LTD NO.3827, KAREEPRA, KUZHIMATHICADU.P.O, KOLLAM DISTRICT. *ADDL.R4 IS IMPLEADED: R4. B.MOHANAVALLY, BRANCH MANAGER, KAREEPRA PANCHAYAT SERVICE CO-OPERATIVE BANK LTD.NO.3827, RESIDING AT MOHANA SADANAM, CHERUMANGADU, PUTHUR, KOTTARAKKARA. (*ADDL.R4 IS IMPLEADED AS PER ORDER DTD. 22/09/2008 IN I.A.NO.11863/08) GOVERNMENT PLEADER SMT. A.G.ANEETHA FOR R1 & R2 ADV. SRI.V.G.ARUN FOR R3 SRI.T.R.HARIKUMAR FOR R3 SRI.PRASAD CHANDRAN FOR ADDL.R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/09/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.26695/2008 C APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE RESOLUTION NO.140 DTD. 30/05/2008. EXT.P2: COPY OF THE RESOLUTION NO.420 DTD. 25/08/2008. EXT.P3: COPY OF THE RESOLUTION OF THE BOARD NO.451 DTD. 04/02/2005. EXT.P4: COPY OF THE SUB RULE OF THE SOCIETY DTD. 27/06/2007. EXT.P5: COPY OF THE ORDER DTD. 25/08/2008 IN I.A.NO.110/2008 IN A.R.C.NO.132/2008. EXT.P6: COPY OF THE BOARD DECISION NO.138 DTD. 30/05/2008. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.26695 of 2008-C = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 22nd day of September, 2008. JUDGMENT 1.The petitioner, a service co-operative bank challenges Ext.P5 interim order issued by the Co- operative Arbitration Court, restraining the writ petitioner from making appointment to the post of Secretary on deputation from Co-operative Department or from District Co-operative Bank or from any other source, by paying salary, until further orders. 2.ARC.132/2008 was filed by the third respondent herein claiming that he is entitled to be considered for promotion to the category of Secretary which is at Sl.No.1 in Ext.P4 Subsidiary Rules approved by the Registrar in terms of the KCS Act and Rules. The Arbitration Court was impressed that the plaintiff has a WP(C)26695/2008 -: 2 :- prima facie case and it, obviously, granted the interim order under challenge. 3.At the outset, I may notice that the laws relating to grant of interim orders in disputes relating to seniority and for claim for promotions and appointments to higher categories within an establishment are matters well settled and governed by different binding precedents of the Apex Court which have the force of law laid in terms of Article 141 of the Constitution of India. 4.Be that as it may, focusing on the facts in hand, the writ petitioner denies the entitlement of the third respondent plaintiff to be promoted to the category of Secretary in as much as it is contended that he does not possess the requisite educational qualification in terms of Rule 186 of the KCS Rules, a mandatory requirement, going by the prescriptions in the third column of Ext.P4. But, incidentally, it is contended by Smt.B.Mohanavally, the additional respondent WP(C)26695/2008 -: 3 :- impleaded as per order on I.A.11863/2008 that she possesses the educational qualifications. However, her entitlement is also not conceded by the employer, the writ petitioner, on the premise that she does not possess two years of experience in the feeder category, namely, that of Assistant Secretary/Manager/Chief Accountant, which is at Sl.No.2 in Ext.P4 Rules. It is clarified that this Court does not, as of now, go into the nature of Ext.P4, though the learned counsel for the petitioner and the additional respondent point out that a reading of Ext.P4 would, apparently, show that the experience to be gained in terms of the prescriptions in the third column of the Subsidiary Rules is only two years’ experience after the acquisition of the qualification prescribed in Rule 186 and the Rules do not contain any specific prescription as to acquisition of a particular requisite experience in a particular category, for being considered for promotion to the higher category. WP(C)26695/2008 -: 4 :- 5.Though the fact of Rule 185A and the proviso thereto had to be deliberated upon during the course of arguments on the premise that a learned single Judge had held that there could be no deputation but only direct appointment to posts covered by Rule 185A, in the manner in which the proviso to that rule has couched (see Janardhanan Nair v. State of Kerala – 2003 (1) KLT 867), I notice that by order dated 6-12-2004 in R.P.No.82/2004 (unreported) arising from the judgment dated 12-11-2003 in W.A.383/2003 which was against the aforesaid judgment in Janardhanan Nair’s case, the Division Bench has categorically laid down that Rule 185A of the KCS Rules does not prohibit appointments by way of deputation in any society which is engaged in banking business. 6.This leads to the question whether the petitioner was entitled to the interim order as passed by the Arbitration Court and whether this Court has to go into the question whether, on facts, the employer writ petitioner bank is entitled to make an WP(C)26695/2008 -: 5 :- appointment by deputation in terms of Rule 185A of the Rules to the post of Secretary and still further, as to whether the writ petitioner has an alternate remedy by way of revision to the Kerala Co-operative Tribunal. 7.The interlocutory order passed in an arbitration proceedings, in the nature of Ext.P5, is admittedly not an appealable one under the KCS Act and Rules. In the judgment in Sukumaran Pillai v. Co-operative Tribunal [1990 (2) KLT 710], this Court held that even non-appealable orders are revisable under Section 84 of the KCS Act. That judgment occupies the field as to the availability of a remedy under Section 84. Obviously, therefore, the petitioner had an alternate remedy available by way of revision before the Co- operative Tribunal. But, having entertained the writ petition and having heard learned counsel for parties, including on behalf of the impleaded additional respondent, on merits, I do not deem it appropriate to relegate the petitioner, as of now, WP(C)26695/2008 -: 6 :- for consideration of its case by the Co-operative Tribunal. Hence, notwithstanding the availability of revisional remedy under Section 84 against Ext.P5 order, I am inclined to entertain this writ petition and exercise authority under Article 226 of the Constitution of India, particularly when certain fundamental questions referable to Rule 185A and the scope of jurisdiction to pass interlocutory orders have been raised, as noticed above. 8.Having found that in terms of the judgment in the review petition referred to above, Rule 185A applies also to societies which are engaged in banking business, the petitioner is entitled to make an appointment by recourse to that Rule. The question whether the third respondent is entitled to be promoted or considered for promotion is a matter pending consideration and is an issue on which the Arbitration Court has to ultimately deliver its award. It is, therefore, inadvisable that this Court steps in, to answer to that issue, WP(C)26695/2008 -: 7 :- particularly when, except in exceptionally exceptional glaring cases of manifest illegality, arbitrariness or administrative perversity or demonstrable case of mala fides, courts and other statutory authorities have to be extremely slow in passing interim orders in matters relating to promotions in service, as noticed by the Apex Court in different judgments which have precedential value, the guiding light of such a view, being that while passing the final order, the Tribunals and Courts are entitled to mould the relief in such a manner as to take care of the situation. 9.Be that as it may, it is also to be noticed that as of now, the Registrar of Co-operative Societies has not granted permission by way of an appropriate approval as enjoined by Rule 185A enabling the petitioner to bring in any person on deputation. I say this in the context of the allegation of the contesting private respondents that the person sought to be brought in by WP(C)26695/2008 -: 8 :- deputation does not have the experience and expertise or the technical or professional qualification which may be required for considering a person for deputation in terms of Rule 185A. Rule 185A provides for appointment by deputation of persons who are technically qualified or persons who are professionally qualified or persons with experience and expertise. Such appointment requires prior approval of the Registrar. In that context, it is for the Registrar to consider whether the person who is sought to be brought in by way of deputation is entitled to be considered for deputation. With the repository of such power being a person of high office, there is no reason to assume that proper consideration in that regard would not follow. This is all the more so because, a deputationist could be permitted to work only for a maximum period of five years within the format of Rule 185A and the argument on behalf of the petitioner is that in the normal course, exclusion of persons who have a chance of WP(C)26695/2008 -: 9 :- promotion would result in infracting the fundamental right for being considered for promotion in terms of the relevant rules and that, persons in service have the legitimate expectation in that regard. Having regard to what is aforesaid, the impugned Ext.P5 order is quashed directing that any appointment to the post of Secretary by way of direct recruitment or promotion will be subject to the final result in ARC.132/2008 of the Co- operative Tribunal, Thiruvananthapuram and any question of deputation to that post shall not be made without obtaining the prior approval of the Registrar in terms of Rule 185A, in accordance with law. The writ petition is ordered accordingly. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/240908