High Court Kerala High Court

M.S.Suresh vs Joint Registrar Of … on 28 January, 2008

Kerala High Court
M.S.Suresh vs Joint Registrar Of … on 28 January, 2008
       

  

  

 
 
  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.

                           -------------------------------

                         W.P(C) No. 2120 OF 2007

                         -----------------------------------

                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

WPC No. 2120 of 2007

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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

WPC No. 2120 of 2007

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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

WPC No. 2120 of 2007

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