IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 34654 of 2007(A)
1. K.PADMAJA, JUNIOR CLERK,
... Petitioner
Vs
1. THE JOINT REGISTRAR OF CO-OPERATIVE
... Respondent
2. THE CO-OPERATIVE SERVICE EXAMINATION
3. THE NAGALASSERY SERVICE CO-OPERATIVE
4. THE ASSISTANT REGISTRAR OF CO-OPERATIVE
For Petitioner :SRI.P.C.SASIDHARAN
For Respondent :SRI.S.P.ARAVINDAKSHAN PILLAY
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :15/10/2008
O R D E R
THOTTATHIL B. RADHAKRISHNAN, J.
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W.P.(C).No.34654 of 2007-A
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Dated this the 15th day of October, 2008.
JUDGMENT
“CR”
1.The petitioner was appointed as Junior Clerk by
direct recruitment, on 13-3-1998, to the service
of the third respondent, a co-operative bank. She
is a post graduate in Commerce with Higher
Diploma in Co-operation.
2.The second respondent, the Co-operative Service
Examination Board issued Ext.P1 notification
calling for applications for recruitment in
different co-operative establishments, including
as Assistant Secretary in the third respondent
bank. Contending that such selection and direct
recruitment is impermissible in law, the
petitioner has filed this writ petition on the
further plea that she is entitled to be
WP(C)34654/2008 -: 2 :-
considered for promotion to that post in terms of
Rule 185 of the Kerala Co-operative Societies
Rules, 1969; the “Rules”, for short. She
instituted the writ petition after moving the
Joint Registrar seeking intervention in the
matter. Acting on the fact that the petitioner
moved the Joint Registrar, making complaint
against the bank, she was placed under
suspension. That is challenged by an amendment.
Also challenged, by way of amendment, is Ext.P6
approved Feeder Category Rules as they now stand.
The challenge thereto is on the ground that the
prescription of direct recruitment, therein, as a
method of appointment to the category of
Assistant Secretary is impermissible on the face
of the legislative mandate contained in Rule 185.
3.The President of the third respondent was
impleaded as additional fifth respondent. The
candidate who came out successful with the first
rank, following the selection in terms of Ext.P1,
was impleaded as additional sixth respondent.
WP(C)34654/2008 -: 3 :-
4.The third respondent bank and the selected
candidate impeach the entitlement of the
petitioner for being considered for promotion to
the post of Assistant Secretary and contend that
on the face of Ext.P6 approved Feeder Category
Rules, direct recruitment has been legitimately
resorted to and such a course is not
impermissible on the face of the Kerala Co-
operative Societies Act, 1969, hereinafter
referred to as the “Act” and the Rules. It is
also pointed out that the petitioner challenged
Ext.P1 notification by moving the Joint Registrar
only about 3 or 4 months after the issuance of
Ext.P1 and it is unjustifiable for the petitioner
to insist on any relief being granted in this
writ petition, in any manner, interfering with
the selection and appointment of the additional
sixth respondent, when the claim of the
petitioner is not sustainable in law. It is
accordingly contended that a writ, as sought for,
be not issued. However, the learned counsel for
WP(C)34654/2008 -: 4 :-
the bank has very fairly stated that the order
placing the petitioner under suspension was
issued because of lack of proper advice. No
attempt was made to sustain that order in the
course of arguments.
5.Going by her qualifications already noticed, the
petitioner possesses the educational
qualifications for being appointed as the
Assistant Secretary. She is, in fact, a post
graduate in Commerce and possesses Higher Diploma
in Co-operation. As of now, she is aged 42 years.
It is stated that she does not have the aid of
any rule of reservation for further movement, up
the ladder, by promotion. While it may be a
matter of heart-burn for a person to stagnate for
a quite long time in a particular post or
category, as has happened to the petitioner, the
entitlement for promotion is a matter which is
governed by the Act, Statutory Rules and approved
Feeder Category Rules. In the absence of any
complaint about any unlawful denial of any
WP(C)34654/2008 -: 5 :-
promotion, the question that arises for decision
in this case is as to whether the petitioner is
entitled to claim appointment by promotion to the
category of Assistant Secretary in the third
respondent bank, though she is stagnating in the
post of Junior Clerk from 13-3-1998, the date of
her entry into service.
6.Going by Ext.P6 Feeder Category Rules, Junior
Clerk/Junior Cashier is at Sl.No.7 and Assistant
Secretary/Manager is at Sl.No.2. In between,
there are four categories. The plea of the
petitioner, as projected by her learned counsel,
is that in terms of Rule 185(1), in the absence
of employees being available in the feeder
category to a post, for promotion; those employed
in the lower categories can be brought up the
ladder by creating a supernumerary post. This is
projected as the net effect of the second proviso
occurring after sub-rule (1) of Rule 185.
7.In view of an apparent controversy regarding the
WP(C)34654/2008 -: 6 :-
wording of that proviso as printed in certain
text books, the gazette version has been perused.
8.Sub-rules (2), (3) and (4) of Rule 185 relate to
certain categories of posts in co-operative
societies. Sub-rules (2) and (3) of Rule 185
authorize direct recruitment by maintaining a
particular ratio between promotion and direct
recruitment. The post of Assistant Secretary is a
post which falls under sub-rule (2) in case of
primary co-operative societies and urban banks
having a deposit of more than Rs.10 crores. The
third respondent does not have such financial
status. Even when sub-rule applies, there cannot
be any direct recruitment in excess of twenty
five per cent of the total strength of the
respective posts. There is only one post of
Assistant Secretary in the third respondent’s
establishment. Therefore, the post of Assistant
Secretary in the third respondent’s establishment
is not one to which sub-rule (2) applies.
WP(C)34654/2008 -: 7 :-
9.This takes us to sub-rule (1) of Rule 185. It
provides for promotion on the basis of seniority
in the feeder category. The feeder categories,
for such purpose, are to be specified by the
society, by framing suitable regulations, with
the approval of the Registrar. Therefore, when
the society frames the regulations specifying the
feeder categories, with the approval of the
Registrar, it becomes the feeder categories
prescribed for the purpose of Rule 185(1). On the
face of that feeder category, promotions have to
be effected in terms of Rule 185(1) and in terms
of the provisions of Sub-rules (2), (3) and (4)
to the extent they govern the field. The first
proviso to Rule 185(1) enjoins that on the
relinquishment of promotion to a post by a senior
in the feeder category, the immediate junior in
that category shall be promoted. The first
proviso to Rule 185(1), therefore, works in
relation to the feeder category only. The second
proviso provides further that if all the
employees in the feeder category to a post
WP(C)34654/2008 -: 8 :-
relinquish promotion, an employee on the
immediate lower category shall be promoted to the
post after promoting him to the feeder category,
by creating a supernumerary post in the feeder
category. It also postulates the abolition of the
supernumerary post so created, immediately on the
promotion of that employee from the feeder
category to the post/category to which promotion
is being made. Therefore, the second proviso
works in the zone of the feeder category and its
immediate lower category. The said proviso does
not admit any elasticity, to stretch it to
categories which are further down in the Feeder
Category Rules. Going by Ext.P6 Feeder Category
Rules, the post of Assistant Secretary, to which
the impugned selection is made is in Category
No.2. Category No.3, namely, Chief
Accountant/Chief Cashier, is its feeder category.
Category No.4 (Internal Auditor) is the category
which is the immediate lower category of Category
No.3 (Chief Accountant/Chief Cashier). Therefore,
the second proviso to sub-rule (1) of Rule 185
WP(C)34654/2008 -: 9 :-
can aid only a person in Category No.4 in Ext.P6
Feeder Category Rules to claim for the creation
of a supernumerary post in Category No.3, in
situations envisaged by that proviso; to seek
further movement up the ladder, for being
considered for appointment as Assistant
Secretary. The petitioner, who is at Category
No.7, cannot get the aid of the second proviso to
Rule 185(1), for being considered for appointment
by promotion to the post of Assistant Secretary.
10.Hence, though the petitioner possesses the
educational qualifications to hold the post of
Assistant Secretary, going by the Feeder Category
Rules, she is not eligible for being considered
for promotion to the category of Assistant
Secretary from Category No.7, Junior Clerk/Junior
Cashier, with the aid of Rule 185(1), including
the second proviso thereto.
11.This takes us to the question regarding the
availability of direct recruitment as a method of
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appointment to the category of Assistant
Secretary in the third respondent’s
establishment. Rule 185, which governs the field
of promotion, does not; and cannot be read to,
take care of situations which do not fall
directly under that rule, including the three
provisos thereto. A situation where there is no
qualified hand in the feeder category or in that
category which is the immediate lower category to
the feeder category is not conceived of,
envisaged or provided for, in Rule 185. That is
an area where a rule of promotion is not
prescribed. In the absence of any method of
appointment being prescribed, it is open to every
employer to make direct recruitment because that
is the primary manner in which relationship of
employer and employee is created. Hence, when the
field is unoccupied by any rule authorizing or
compelling promotion, or any other specified mode
or method of appointment, such field is available
for direct recruitment. So much so, the
prescription in Ext.P6 that direct recruitment
WP(C)34654/2008 -: 11 :-
shall be an alternate method of appointment to
the category of Assistant Secretary cannot be
found fault with. Not only that, Ext.P6 is
approved by the competent authority and in the
absence of any violation of the law; which, as
already noticed, is just not there; Ext.P6
prescribing direct recruitment as an alternate
method of appointment to Category No.2 (Assistant
Secretary/Manager) stands.
12.Even if the findings and reasons in the
preceding paragraphs regarding the sustainability
of direct recruitment as method of appointment
are to be impeached, that cannot be had at the
hands of the petitioner who, as already seen, is
incompetent for being considered for promotion to
the category of Assistant Secretary, she being
neither in the feeder category nor in the
category which is immediately lower to the feeder
category for the post of Assistant Secretary.
Therefore, the beacon of justice would instruct
the writ court to dissuade itself from
WP(C)34654/2008 -: 12 :-
interfering with Ext.P6 and the selection leading
to the appointment of the additional sixth
respondent. The discretion, on this point, has
necessarily to be exercised against the interest
of the petitioner.
13.The learned counsel for the petitioner stated
that without obtaining exemption under Rule 181
of the Rules, it may be impermissible to make an
appointment by direct recruitment in the case in
hand. As already noticed, there is no violation
of any rule in the matter. Therefore, requesting
for exemption does not arise. The impugned action
stands even without any exemption being granted
in exercise of the authority under Rule 181 of
the Rules.
14.The petitioner also seeks relief on alleged
entitlement for age relaxation for service
candidates for applying to the post of Assistant
Secretary. The age for direct recruitment is
statutorily fixed as per Rule 183 of the Rules.
WP(C)34654/2008 -: 13 :-
There is no power for the employer to relax that.
15.As recorded above, Ext.P5 decision placing the
petitioner under suspension is not being
supported by the third respondent employer. The
same also does not stand to reason.
In the result, while repelling all other claims
and contentions of the petitioner, this writ
petition is allowed in part quashing Ext.P5. No
costs.
THOTTATHIL B. RADHAKRISHNAN,
JUDGE.
Sha/151008