Mary T.M vs State Of Kerala
2021 Latest Caselaw 4446 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                THE HONOURABLE MR. JUSTICE AMIT RAWAL

     MONDAY, THE 08TH DAY OF FEBRUARY 2021 / 19TH MAGHA,1942

                      WP(C).No.35822 OF 2015(C)


PETITIONER:

               MARY T.M.,
               AGED 58 YEARS,
               THOTTUNGAL, KADAVOOR P.O, MUVATTUPUZHA,
               ERNAKULAM DISTRICT WORKING AS ASST.SECRETARY,
               KADAVOOR SERVICE CO.OP BANK LTD. NO.1882,
               KADAVOOR P.O, MUVATTUPUZHA 686 671.

               BY ADVS.
               SRI.K.A.SALIL NARAYANAN
               SRI.B.HARISH KUMAR

RESPONDENTS:

      1        STATE OF KERALA,
               REPRESENTED BY ITS SECRETARY,
               DEPARTMENT OF CORPORATION, STATE SECRETARIAT,
               THIRUVANANTHAPURAM - 695 001.

      2        THE REGISTRAR OF CO-OPERATIVE SOCIETIES,
               THIRUVANANTHAPURAM - 695 001.

      3        THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES,
               ERNAKULAM - 682 011.

      4        THE KADAVOOR SERVICE CO-OPERATIVE BANK LTD. NO.1882
               KADAVOOR P.O, MUVATTUPUZHA, PIN - 686 671,
               REPRESENTED BY ITS PRESIDENT,
               KADAVOOR SERVICE CO-OPERATIVE BANK LTD.,
               KADAVOOR, MUVATTUPUZHA, ERNAKULAM DISTRICT.


               R2 BY ADV.SRI SHEMEER P.M.
               R4 BY ADV.SRI.SAJITH.N.S.
               SRI.B.HARISH KUMAR, GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD            ON
08.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.35822 OF 2015             -2-




                                 JUDGMENT

Dated this the 8th day of February 2021

Petitioner, who retired from service on 30.11.2015,

preferred present writ petition on 25.11.2015 seeking her

promotion as Assistant Secretary/Chief Accountant of

Kadavoor Service Co-operative Bank with effect from

05.03.2014 instead of 20.08.2015 as indicated in Ext.P7.

2. On 13.06.1982, petitioner entered into service of

the Bank. In 1984-85 completed her JDC. With effect from

15.12.2007 worked as a Branch Manager of the Bank. The

feeder post to the Assistant Secretary category was Branch

Manager. Petitioner being senior most in the seniority list

and qualified except that she did not have qualification of

graduation was eligible. Since the Kerala Co-operative

Rules envisage the provision of granting exemption in

qualification, administrators of the Bank took a decision

on 05.03.2014 to seek sanction of the Registrar of Co-

operative Societies for promoting her to the post of

Assistant Secretary by recommending the case of granting

exemption of qualification of graduation. Registrar of Co-

operative Societies as per the provisions of Rule 185(8)

granted sanction to be effective from the date of the order,

i.e., 20.08.2015. It was contented that the sanction had to

be considered from the date 05.03.2014 instead of

20.08.2015, the date of the order. Since the petitioner had

retired from service on 30.11.2015, it would have effected

her pensionary benefits and pay scale.

3. On the other hand, learned counsel for the Co-

operative Bank opposed the writ petition and submitted

that promotion had to be considered only with effect from

Ext.P7 communication dated 20.08.2015, the date of

sanction and not from the date of recommendation.

4. I have heard counsel for the parties and

appraised the paper books.

5. Rule 185(8) of Co-operative Society Rules, 1969

empowers the Registrar of Co-operative Societies to relax

qualification other than basic qualification of an employee

for the purpose of promotion in deserving cases, on receipt

of the request of Society by passing the resolution subject

to the conditions enumerated therein. As far as exemption

from academic qualification was concerned, the other

conditions, i.e., passed JDC or equivalent, minimum service

of five years in the feeder category and should not be less

than forty five(45) years of age is required to be satisfied.

The other conditions under the Section, would not be

relevant for adjudication as they pertain to different

contingencies. Section 185(8) reads thus:

"(8) It shall be competent for the Registrar of Co-operative Societies to relax the qualification, other than basic qualification and pass in the competitive examination specified in sub-rule(5), of an employee, for the purpose of promotion in deserving cases, on the request of a society by passing a resolution subject to the following conditions:-

a)Minimum educational qualification for ministerial and supervisory posts other than those requiring technical qualification shall be SSLC. Exemption from passing SSLC shall not be granted under any circumstances provided that in the case of employees who were appointed direct to the ministerial posts before 1-1-1974 SSLC need not be insisted.

b)Where the academic qualification prescribed is graduation and above, exemption from acquiring the said qualification may be considered if the incumbent satisfied the following conditions, namely:-

i) should have passed JDC or equivalent;

ii) should have a minimum service of five years in the feeder category; and

iii) should not be less than forty-five years of age.

[Provided that service of five years in the feeder category can be relaxed in the case of those who have completed fifty three years of age and there should not be a qualified graduate who has completed twenty years of service in the same post in the feeder category, junior to that incumbent].

c)Employees of the sub-staff category shall not be exempted in any case from Co-operative training qualification for promotion to the clerical category.

d) The resolution of the Board of Directors of the society should indicate clearly the reasons justifying exemption and a history of service of the incumbent with details of punishment awarded and results of the performance appraisal.

e)The incumbent should not have been punished by imposing any of the following penalties within a period of five years prior to the date of resolution:

i) Withholding of increments with cumulative effects;

                  ii)         Withholding of promotion
                  iii)        Recovery from the pay of the whole or part of

any pecuniary loss caused to the society, by

negligence or breach of orders or other wise.

                  iv)     Reduction to a lower rank.
                  f)      The Board of Directors shall verify and satisfy

themselves about the competency of the incumbent to the post to which he is promoted.

g) Exemption from qualification other than Co-

operative Training qualification should be obtained at the time of promotion to each cadre which means ministerial cadre, supervisory cadre and chief executive.] [Provided that under no circumstances exemption shall be granted from possessing the required academic qualification and experience for the purpose of effecting promotion to the posts of Chief Executive of the Credit Societies/Banks come within sub class A and B of class 1 of rule 15, Accounts Officer in the Kerala State Co- operative Bank Ltd., Branch Manger or equivalent posts in the District Co-operative Banks, Deputy Manager in the Kerala State Co-operative Agricultural and Rural Development Bank and Assistant Secretary/Manager and equivalent posts in Urban Co-operative Banks having a deposit of more than ten crores.

Provided further that the above provision shall not be applicable to those employees who are working in the feeder post of the above mentioned posts in such Societies/Banks as on the date of notification of this rule.

Provided also that under no circumstances relaxation of any qualification shall be granted to the employees who entered the service of Primary/Central/Apex Co-operative Societies/Banks/ Institution on and after the date of this notification]

Provided also that the above exemption shall not be applicable to those employees who are holding charge of the post of Assistant Secretary/Manager, Chief Accountant/Chief Cashier in such societies/Banks, as on the date of notification of this rule;

(h) and employee who requires relaxation of educational qualification of graduation may be promoted to higher post only after getting the order of such relaxation form the Registrar of Co-operative Societies."

6. Contents of recommendation dated 05.03.2014

was to the following effect:

1. That from 13/06/1982 petitioner was working as a peon in the Bank.

2. The petitioner is aged about 56 years and she is working as Branch Manger from 15/12/2007.

3. Petitioner has an unblemished service record.

4. Petitioner has all eligibility to be promoted except for the fact that she is not a graduate.

5. Therefore to promote the petitioner to the post of Assistant Secretary/Chief Accountant, the sanction of the Joint Registrar of Co-operative Societies needs to be applied for in terms of Rule 186 of the Co- operative Societies Rules.

7. Vide Ext.P7 Registrar accorded the sanction and

made effective from the date of the order. The order

reads thus:

PROCEEDINGS OF THE REGISTRAR OF CO-

OPERATIVE SOCIETIES, KERALA

No.EM(3)39824/15/K.Dis Thiruvananthapuram,Dated:20.08.2015

Sub:- The Kadavoor Service Co-operative Bank Ltd-

No.1882. Exemption from the educational qualification for giving Promotion to the employee granted - Orders issued.

Read:- 1. Resolution No.367 dated:05-03-2014 of the Board of Directors of the Kadavoor Service Co- operative Bank Ltd - No.1882.

2. Letter No.CRP 3393/14 dated:20-08-2014 and 17.07.15 of the Joint Registrar of Co-operative Societies (General), Ernakulam.

As per the resolutions read as 1st paper above, the Board of Directors of the Kadavoor Service Co-operative Bank Ltd - No.1882 resolved to request the Registrar of Co- operative Societies for the relaxation of educational qualification of graduation to Smt.Mary T.M, Branch Manager of the Bank for promoting her as Assistant Secretary/Chief Accountant of the Bank in considering of her long service and satisfactory performance of duties.

The qualification prescribed for the post of Assistant Secretary/Chief Accountant of the Kadavoor Service Co- operative Bank Ltd-No.1882 is graduation and HDC/JDC. Smt.Mary T.M. is not a graduate. In order to promote her to the post of Assistant Secretary /Chief Accountant of the Kadavoor Service Co-operative Bank Ltd-No.1882. approval of the Registrar of Co-operative societies for the relaxation of the prescribed qualification of graduation is required as per Rule 185(8) of the Kerala Co-operative Societies Rules 1969.

As per Rule 185(8) of the Kerala Co-operative Societies Rules, 1969 for the purpose of relaxing an employee from the educational qualification of graduation for giving promotion, the following conditions are to be satisfied:

1.1. Should have passed JDC or equivalent 1.2. Should have a minimum of 5 years in the feeder

category provided that service of 5 years in the feeder category can be relaxed in the case of those who have completed 53 years of age and there should not be a qualified graduate who has completed twenty years of service in the same post in the feeder category, junior to that incumbent.

1.3. Should not be less than 45 years of age.

Smt.Mary T.M. has passed SSLC and JDC and has completed 45 years of age. She has also completed 5 years of service in the feeder category post of Secretary of the Kadavoor Service Co-opertive Bank Ltd-No.1882.

The proposal of the Bank has been recommended by the Joint Registrar (General), Ernakulam.

Considering the circumstances reported by the Bank and as recommended by the Joint Registrar (General), Ernakulam, the undersigned is pleased to issue the following orders.

ORDER In exercise of the powers conferred on me under Rule 185(8) of the Kerala Co-operative Societies Rules 1969, I hereby relax of the educational qualification of graduation as stipulated in Rule 186(1) of the Kerala Co- operative Societies Rules, 1969, to Smt.Mary T.M., Branch Manager of the Kadavoor Service Co-operative Bank Ltd- No.1882 for the purpose of promoting her as Assistant Secretary/Chief Accountant of the Bank subject to the condition that the promotion should be against the vacancy in the sanctioned post, in accordance with provisions in Rule 185 of Kerala Co-operative societies Rules, 1969, Circular directions of Registrar of Co- operative Societies and Order of Hon'ble Court, if any, in this regard. This will take effect from the date of this order.

Sd/-

S.Lalithambika I.A.S.

Registrar of Co-operative Societies To The Secretary, The Kadavoor Service Co-operative Bank Ltd - 1882. Kadavoor P.O. Moovattupuzha-686671. Copy to:-

1. The Joint Registrar Co-operative Societies (General),

Ernakulam.

2. Stock File.

3. Spare.

//Forwarded by order//

Sd/-

Assistant Registrar (E.M.)"

I am of the view that the contents of letter dated

05.03.2014 are only recommendatory and the date relevant

for considering the promotion of the petitioner would be

the date of sanction i.e., 20.08.2015. The grievance

expressed is only figment of imagination. No provision of

any other Rule or judgment in support of the submission

have been cited. Petition sans merit, accordingly,

dismissed.

Sd/-

AMIT RAWAL

JUDGE

vv

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 P1 - TRUE COPY OF THE SENIORITY LIST OF THE BANK DATED 02.06.2015

EXHIBIT P2 P2 - TRUE COPY OF THE PART TIME ADMINISTRATORS DECISION OF KADAVOOR SERVICE CO- OPERATIVE BANK DATED 05.03.2014

EXHIBIT P2(A) TRUE TRANSLATION OF EXHIBIT P2

EXHIBIT P3 TRUE COPY OF THE COMMUNICATION DATED 24.03.2014 ISSUED BY THE SECRETARY OF THE BANK TO THE 2ND RESPONDENT

EXHIBIT P3(A) TRUE TRANSLATION OF EXHIBIT P3

EXHIBIT P4 TRUE COPY OF THE ENCLOSURE TO EXHIBIT P3, ISSUED IN TERMS OF CIRCULAR NO.7/1998

EXHIBIT P4(A) TRUE TRANSLATION OF EXHIBIT P4

EXHIBIT P5 TRUE COPY OF THE COPY OF FORM-A, WHICH IS A MANDATORY PRE-REQUISITE FOR APPLICATIONS IN THE NATURE OF EXHIBIT P3

EXHIBIT P6 TRUE COPY OF THE COMMUNICATION DATED 02.06.2015 ISSUED BY THE SECRETARY OF THE BANK TO THE 2ND RESPONDENT

EXHIBIT P6(A) TRUE TRANSLATION OF EXHIBIT P6

EXHIBIT P7 TRUE COPY OF THE ORDER NO.VM(3)39824/15/K.DIS DATED 20.08.2015