IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 2120 of 2007(B)
1. M.S.SURESH, SECRETARY,
... Petitioner
2. ELAVALLY SERVICE CO-OP. SOCIETY LTD.
Vs
1. JOINT REGISTRAR OF CO-OP.SOCIETIES
... Respondent
2. STATE OF KERALA REP. BY SECRETARY TO
For Petitioner :SRI.P.N.MOHANAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :28/01/2008
O R D E R
THOTTATHIL B. RADHAKRISHNAN, J.
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W.P(C) No. 2120 OF 2007
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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
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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
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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
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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
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