IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 15TH NOVEMBER 2010 / 24TH KARTHIKA 1932 WP(C).No. 29220 of 2007(C) ------------------------------------ PETITIONER: -------------------- T.P.ZAINABI, BRANCH MANAGER, CALICUT NORTH SERVICE CO-OPERATIVE BANK, KUNDUPARAMBU BRANCH, KOZHIKODE. BY ADV. SRI.O.D.SIVADAS RESPONDENT(S): ------------------------ 1. CALICUT NORTH SERVICE CO-OPERATIVE BANK LTD., REPRESENTED BY ITS SECRETARY, KOZHIKODE. 2. THE SECRETARY, CALICUT NORTH SERVICE CO-OPERATIVE BANK LTD., KOZHIKODE. 3. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, KOZHIKODE. 4. GOVERNMENT OF KERALA REPRESENTED BY THE SECRETARY, DEPARTMENT OF CO-OPERATION, THIRUVANANTHAPURAM. 5. NAVEEN.K., ASSISTANT SECRETARY, CALICUT NORTH SERVICE CO-OPERATIVE BANK LTD. NO.LL.37, KARUVASSERY P.O., KOZHIKODE. BY GOVT. PLEADER SRI. M.A. ASIF R1 & R2 BY ADV. SRI.T.A.SHAJI R5 BY ADV. SRI.P.N.MOHANAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SMT WP(C).No. 29220 of 2007(C) ------------------------------------- APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER NO. C.R.P. 1926/02 K.DIS DATED 01.06.2002 ISSUED BY THE 3RD RESPONDENTS EXT.P2: COPY OF THE APPOINTMENT ORDER OF THE 1ST RESPONDENT BANK DATED 06.06.2002 ISSUED TO THE PETITIONER AS BRANCH MANAGER. EXT.P3: COPY OF THE APPROVED FEEDER CATEGORY RULES OF THE 1ST RESPONDENT EXT.P4: COPY OF THE ORDER NO. C.R.P. 4087/07 DATED 12.06.07 ISSUED BY THE 3RD RESPONDENT EXT.P5: COPY OF THE APPEAL DATED 19.06.2007 FILED BY THE BANK BEFORE THE GOVERNMENT EXT.P6: COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER BEFORE THE GOVERNMENT EXT.P7: COPY OF THE JUDGMENT DATED 25.06.2007 IN W.P.(C)No.17777 OF 2007 PASSED BY THIS HON'BLE COURT. EXT.P8: COPY OF THE ORDER NO. G.O. (Rt) No.579/07/CO-OP. DATED 13.09.2007 ISSUED BY THE GOVERNMENT TRUE COPY PA TO JUDGE SMT C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NO.29220 OF 2007 -------------------------------------------- Dated this the 15th day of November, 2010 JUDGMENT The petitioner is presently working as a Branch Manager under the first respondent-bank. She is an under graduate. The post of Branch Manager, Assistant Secretary and Secretary fall within the supervisory cadre in terms of Ext.P3 feeder category rules of the first respondent-bank. Rule 185(8) of the Kerala Co-operative Societies Rules (for short 'the Rules') enables the competent authority viz., the Registrar to grant exemption from possessing the prescribed qualifications subject to recommendation for that purpose by the concerned authority. When the post of Branch Manager fell vacant, the first respondent-bank passed Ext.P1 resolution seeking exemption from the qualifications in respect of the petitioner for the purpose of promotion to the post of Branch Manager. Based on Ext.P1, the petitioner was granted promotion to the post of Branch Manager as per Ext.P2. Later, one post of Assistant Secretary fell vacant under the first respondent -bank. The contention of the petitioner is that without considering her claim for promotion to the post of Assistant W.P.(C) NO.29220/2007 2 Secretary based on the exemption granted as per Ext.P1, the 5th respondent was appointed to the said post on 24.9.2007. Subsequently, the 5th respondent was promoted to the post of Secretary and he is presently working as Secretary under the first respondent -bank. When the first respondent-bank resorted to fill up the vacancy in the post of Assistant Secretary by direct recruitment, the petitioner approached the third respondent by filing a representation dated 25.5.2007. Ext.P4 dated 12.6.2007 is the order passed thereon by the third respondent taking note of the notification dated 10.8.2005 holding that once an exemption is granted to an employee from possession of the prescribed qualifications for the purpose of promotion to a particular post in a particular cadre, further exemption is not required for the purpose of further promotion within the said cadre. Based on Ext.P1 whereby the the petitioner was granted exemption for the purpose of promotion to the post of Branch Manager which falls within the supervisory cadre, the Registrar held that for the purpose of getting promotion to the post of Assistant Secretary belonging to the same cadre, a further exemption is not required. Consequently, a direction was given by the third respondent to the first respondent-bank to consider the petitioner for promotion to the post of W.P.(C) NO.29220/2007 3 Assistant Secretary. Feeling aggrieved by the same, the matter was taken up in appeal by the first respondent-bank as per Ext.P5. Ext.P8 is the order passed in the said appeal. Considering the finding of the 4th respondent, an exemption is required only for the purpose of an entry to a particular cadre and a further exemption is not required for getting further promotion within the cadre. Government had not interfered with the said finding. However, Government interfered with Ext.P4 order of the Joint Registrar on another ground. According to the 4th respondent, the interference by the third respondent with the proposal of the first respondent-bank to effect direct recruitment and issuing a specific direction to promote the petitioner in terms of her entitlement for exemption was not called for. In that view of the matter, the Government interfered with Ext.P4 and set aside the same as per Ext.P8. It is challenging Ext.P8 that this Writ Petition has been filed. 2. A counter affidavit has been filed by respondents 1 and 2 in this Writ Petition in support of Ext.P8. The third respondent has also filed a counter affidavit. 3. I have heard the learned counsel for the petitioner, the learned standing counsel appearing for the respondents and also the learned W.P.(C) NO.29220/2007 4 Government Pleader. The learned counsel for the petitioner submitted that since the 5th respondent who was inducted into service of the first respondent-bank by resorting to direct recruitment and ignoring the petitioner's claim for promotion, has already been promoted to the post of Secretary, the post of Assistant Secretary is vacant. The learned counsel for the petitioner further submitted that the petitioner is prepared to confine her prayers to one for a direction for consideration against the post of Assistant Secretary which is lying vacant under the first respondent- bank. In that context, it has to be noted that even as per Ext.P8, the Government have interfered with the order of the Joint Registrar as the Joint Registrar has interfered with the discretion of the first respondent- bank in the matter of effecting appointment/promotion. In other words, the Government have observed that in the matter of promotion/appointment, the authorities need not issue any direction to the bank and the right of effecting appointment, in accordance with law, is to be left with the bank. The learned counsel for the first respondent-bank submitted that the said observation of the Government is in tune with the provisions under the Kerala Co-operative Societies Act and the Rules. Primarily, the discretion is to be exercised by the bank itself and only in case of any dispute, the W.P.(C) NO.29220/2007 5 matter considered by competent authorities, in accordance with law. In short, the learned counsel for the petitioner as also the learned standing counsel for the first respondent submitted that even for filling up the resultant vacancy occured on account of promotion of the 5th respondent, the discretion has to be exercised by the first respondent-bank. It is in that context that the petitioner seeks for a direction to the first respondent-bank to consider her claim for promotion to the post of Assistant Secretary. In view of the provisions under Rule 185 (1) of the Rules, the respondent Bank is bound to consider the claim of the petitioner. It will be open to the petitioner to approach the first respondent-Bank with a claim for such consideration for promotion in terms of the aforesaid provision. In case the petitioner approaches the first respondent-Bank with such a claim, it will only be appropriate for the first respondent-Bank to consider the claim of the petitioner expeditiously. Subject to the above observations, this Writ Petition is disposed of. (C.T. RAVIKUMAR, JUDGE) spc W.P.(C) NO.29220/2007 6 C.T. RAVIKUMAR, J. JUDGMENT September, 2010 W.P.(C) NO.29220/2007 7