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N.V. Usha v/s Njarakkal Service Co-Operative Bank Ltd.


Company & Directors' Information:- USHA INDIA LIMITED [Active] CIN = U40110UP1996PLC020887

Company & Directors' Information:- USHA CORPORATION LIMITED [Active] CIN = U74999WB1996PLC078796

Company & Directors' Information:- USHA (INDIA) LIMITED [Not available for efiling] CIN = U31109DL1962PLC003656

Company & Directors' Information:- B S AND SERVICE PRIVATE LIMITED [Active] CIN = U92419MH1946PTC004912

Company & Directors' Information:- CO-OPERATIVE COMPANY LIMITED [Active] CIN = U51226DL1910PLC299886

Company & Directors' Information:- CO-OPERATIVE COMPANY LIMITED [Active] CIN = U51226UP1910PLC000093

Company & Directors' Information:- OPERATIVE INDIA PRIVATE LIMITED [Active] CIN = U74300KA2008FTC048079

Company & Directors' Information:- SERVICE CORPORATION LIMITED [Dissolved] CIN = U93090KL1946PLC001075

    Writ Petition (Civil) Nos. 27368 of 2019 & 12753 of 2018

    Decided On, 05 February 2020

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE A.K. JAYASANKARAN NAMBIAR

    For the Appearing Parties: P.P. Jacob, M.M. Monaye, M. Paul Varghese, Bincy Jose, P.N. Mohanan, Mable C. Kurian, J. Lakshmi, A.S. Sabu, Bimal K. Nath, Advocates.



Judgment Text


1. As both these writ petitions involve a common issue, they are taken up together for consideration and disposed by this common judgment. For the sake of convenience, the petitioners in both the writ petitions are referred to by their names and, the reference to facts and exhibits is from W.P.(C).No.27368/2019.

2. The petitioner, Smt.N.V Usha, entered the service of the 1st respondent Co-operative Bank as a Junior Clerk with effect from 4.3.1991, and was subsequently promoted as Senior Clerk with effect from 1.9.1996, Accountant with effect from 4.10.2006, Branch Manager with effect from 4.2.2014, Chief Accountant with effect from 1.2.2015 and Assistant Secretary with effect from 9.1.2016. In the writ petition, she is aggrieved by the condition in Ext.P8 order of the Registrar of Co-operative Societies, which, while giving effect to the Government Order, by which she obtained an exemption from the qualification requirements stipulated under Rule 185 of the Kerala Co-operative Societies Rules [hereinafter referred to as the 'Rules'], imposed a rider to the ffect that the benefit of the exemption would be available to the petitioner only with effect from the date of Ext.P8 order, namely, 2.8.2018. In her writ petition, it is the case of the petitioner that inasmuch as the Government order, and the consequential order passed by the Registrar of Co-operative Societies, granting exemption are relatable to the Resolution taken by the respondent Bank on 23.11.2016, the exemption order must relate back to the said date, and she must be held entitled for promotion to the post of Secretary to the vacancy that arose with effect from 1.7.2016.

3. W.P.(C).No.12753/2018 is filed by the 5th respondent in W.P. (C).No.27368/2019, Sri. Krishnakumar, who opposes the prayer of Smt. Usha, and impugns the order passed in her favour by the Government/Registrar granting her an exemption from the requirement of qualification under Rule 185 of the Rules. It is the case of Sri. Krishnakumar that he joined the services of the respondent Bank as Junior Clerk with effect from 2.5.1994, and was subsequently promoted as Senior Clerk with effect from 1.8.2001, Accountant with effect from 1.2.2009, Branch Manager with effect from 1.11.2014, Chief Accountant with effect from 9.1.2016. It is stated that when a vacancy arose to the post of Secretary with effect from 1.7.2016, the respondent Bank, taking note of the fact that there was no other qualified candidate eligible for promotion to the post of Secretary, considered his case for promotion and promoted him to the said post with effect from 2.2.2018. It is his contention in the writ petition that his promotion as Secretary with effect from 2.2.2018 was in accordance with the provisions of the approved Feeder Category Rules in force in the respondent Bank, and therefore, although Smt. Usha obtained an exemption from the qualification requirements with effect from 28.6.2018, the said exemption was only prospective in nature, and by that time, on account of his appointment as Secretary with effect from 2.2.2018, there was no vacant post of Secretary to which she could have been accommodated.

4. Counter affidavits have been filed in both the writ petitions, refuting the averments in the said writ petitions.

5. I have heard Sri.P.P.Jacob, the learned counsel for the petitioner in W.P.(C).No.27368/2019 and Sri.P.N.Mohanan, the learned counsel for the petitioner in W.P.(C).No.12753/2018. I have also heard Sri.M.M.Monaye, the learned counsel for the respondent Co-operative Bank in both the writ petitions and Smt.Mable C. Kurian, the learned Government Pleader for the official respondents of the State in both the writ petitions.

6. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find that the issue to be considered in these writ petitions is whether the exemption granted to Smt. Usha, from the requirement of possessing the qualifications prescribed under Rule 185 of the Rules, can be said to be in order, and if so, whether the same would take effect from a prior date, namely, 23.11.2016 ie. the date on which the respondent Bank resolved to request the Registrar to exempt her. An incidental question that arises for consideration is whether the appointment of Sri.Krishnakumar as Secretary with effect from 2.2.2018, is legal and valid, for, it is only if the said appointment is held to be illegal and in contravention of the Feeder Category Rules or any of the other provisions of the Kerala Co-operative Societies Act and Rules that there could be said to be a vacancy existing as on 2.2.2018 or thereafter, to accommodate Smt Usha, on her getting the benefit of exemption in Exts.P7 and P8 orders.

7. Sri.P.P.Jacob, the learned counsel for Smt.Usha would point out that inasmuch as the Government has, in exercise of its power, granted exemption from the requirement of possessing a graduate qualification, the requirement of minimum 5 years service in the feeder category, as well as the relaxation under the proviso to Rule 185(8)(g), the order of exemption must necessarily relate back to the date on which the Resolution was passed by the Bank to recommend the case of the petitioner for exemption. Persuasive though the said contention may seem at first blush, I am afraid, I cannot accept the same. The orders of exemption passed by the Government, as also by the Registrar, are very specific, when they state that the exemption is only from the requirements stipulated in particular provisions under Rule 185 of the Rules. The orders are also unambiguous when they indicate that the exemption is to operate only prospectively. As a matter of fact, this would ordinarily be the case going by the wording in Rule 185(8)(h) of the Rules, which clearly mandates that an employee who requires relaxation of educational qualification of graduation may be promoted to higher post only after getting the order of relaxation from the Registrar of Co-operative Societies. The question then arises as to whether the exemption granted by the Government would stand on a better footing? When I look at the Government order granting exemption to the petitioner, I find that the Government order grants the exemption only in respect of the requirement mandated under Rule 185(8)(b)(ii) and the proviso to Rule 185(8)(g). Significantly, there is no exemption granted from the requirement in Rule 185(8)(h) of the Rules. Therefore, my finding as regards prospective operation of the exemption orders granted by the Registrar, would apply equally in respect of the exemption order passed by the Government. In both cases, the exemption takes effect only from the date of grant of exemption, which is 28.6.2018.

8. The next issue that arises for consideration is whether, on account of the grant of exemption, Smt. Usha can aspire for appointment as Secretary in the respondent Bank? It has to be borne in mind that by 28.6.2018, the date with effect from which she obtained the benefit of exemption, Sri. Krishnakumar had already been appointed as Secretary in accordance with the approved Feeder Category Rules. Sri.Krishnakumar had been a Chief Accountant with effect from 9.1.2016, and going by the approved Feeder Category Rules dated 10.4.2003 [produced as Ext.R5(c) in W.P.(C).No.27368/2019], the feeder category to the post of Secretary comprises of the Assistant Secretary/Manager/Chief Accountant. There is no dispute that Sri.Krishnakumar possessed the necessary educational qualification for promotion as Secretary. The only irregularity that is pointed out by the learned counsel for Smt. Usha is that Sri. Krishnakumar did not have the prescribed three years of service in the feeder category for getting the benefit of promotion as Secretary. Although I find that the approved Feeder Category Rules clearly mandate that an aspirant to the post of Secretary must have three years of service in the feeder category posts, the Rules also provide for the grant of an exemption from this requirement by the Managing Committee of the Bank. Inasmuch as the power to grant exemption from the service requirement in the feeder category posts, is inherent in the Managing Committee, and the Managing Committee has, through its Resolution dated 2.2.2018 [Ext.P5 in W.P.(C).No.27368/2019] exercised the power to promote Sri.Krishnakumar as Secretary with effect from 2.2.2018, and also directed Smt. Usha to hand over charge of Secretary to the said Sri. Krishnakumar, it must be presumed that the Managing Committee, that had the power to grant the exemption had, in fact exercised the said power in favour of Sri. Krishnakumar. This must be so, since the existence of the power in the Managing Committee to grant such exemption is not in dispute. I also find that there is no challenge to the Feeder Category Rules in W.P.(C).No.27368/2019 preferred by Smt. Usha.

9. Before parting with these cases, I must also advert to the specific contention of the learned counsel for Smt. Usha that, in Appendix III to the Rules, the post of Chief Accountant is not immediately below the post of Secretary so as to consider the said post as included in the feeder category to the post of Secretary. When I look at Appendix III, I find that it is merely an enumeration of posts for the purposes of Rule 188 of the Rules, where every Society has to adopt the staff pattern as indicated in Appendix III to the Rules, according to the type and class to which it belongs. There is nothing in Rule 188, which suggests that the posts mentioned therein are hierarchically structured therein for the purposes of promotion. That apart, it is also not in dispute that the Feeder Category Rules adopted by the respondent bank were duly approved by the Registrar of Co-operative Societies, as mandated by the statutory provisions. I have therefore to see the hierarchy of posts in the feeder category Rules as one resulting from a harmonious reading of Rules 185(1) and 188 of the Rules. T

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his is all the more so when, as already noted, there is no challenge to the Feeder Category Rules in these writ petitions. Resultantly, I find that while the appointment of Sri. Krishnakumar as Secretary, with effect from 2.2.2018, cannot be legally faulted, and the exemption granted to Smt. Usha takes effect only from a subsequent date, namely, 28.6.2018, the latter cannot aspire for an appointment to the post of Secretary in the vacancy to which the former was appointed. 10. The upshot of the above discussion is that the prayer sought for in W.P.(C).No.27368/2019 cannot be granted, and the said writ petition is therefore dismissed. 11. As regards W.P.(C).No.12753/2018, I find that the exemption granted to the petitioner in W.P.(C).No.27368/2019, to the extent it applies prospectively from the date of the Government/Registrar's order, cannot be legally faulted. However, the appointment of the petitioner in the said writ petition, as Secretary, with effect from 2.2.2018, is found to be in order. W.P.(C).No.27368/2019 is thus dismissed and W.P. (C).No.12753/2018 disposed.
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