Allowed

G.Sureshkumar v. Karavaram Panchayath Service Co-Op.

Kerala HC25 Sept 2012WP(C)/14861/2011

Case brief

AI extract

What is this about?

In a writ petition, the Court enforced the petitioner's right to promotion to a Junior Clerk post in a cooperative bank under feeder category rules, despite the bank's alleged procedural lapses and direct recruitment of others. The petition sought a declaration of entitlement and a direction to appoint the petitioner based on seniority.

What did the court decide?

Directed the second respondent to appoint the petitioner to the post of Junior Clerk effective from 03/06/2011, reserving one post as per interim order.

G.Sureshkumar Vs Karavaram Panchayath Service… — Pension and Retirement Benefits | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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TUESDAY, THE 25TH DAY OF SEPTEMBER 2012/3RD ASWINA 1934

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WP(C).No. 14861 of 2011 (G)

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PETITIONER :

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G.SURESHKUMAR, BILL COLLECTOR, KARAVARAM PANCHAYATH SERVICE CO-OPERATIVE BANK LTD.NO.T.324, KARAVARAM.P.O.-695605,THIRUVANANTHAPURAM.

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BY ADVS.SRI.P.N.MOHANAN SMT.I.VINAYAKUMARI

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RESPONDENT(S):

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1. KARAVARAM PANCHAYATH SERVICE

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CO-OPERATIVE BANK LTD.NO.T.324, MANAGING COMMITTEE

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REPRESENTED BY ITS PRESIDENT, KARAVARAM.P.O.-695605,

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THIRUVANANTHAPURAM.

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2. KARAVARAM PANCHAYATH SERVICE

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CO-OPERATIVE BANK LTD.NO.T.324, REPRESENTED BY

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SECRETARY, KARAVARAM.P.O.-695605

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THIRUVANANTHAPURAM.

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3. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES,

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THIRUVANANTHAPURAM - 01.

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R1 & R2 BY ADVS. SRI.THOMAS ABRAHAM

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SRI.DIPU.R

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SMT.MERCIAMMA MATHEW

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SRI.V.RENJITH KUMAR

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R3 BY GOVT. PLEADER SRI. NOBLE MATHEW

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-09-2012, THE COURT ON 25-09-2012 DELIVERED THE FOLLOWING:

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...2/-

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WP(C).No. 14861 of 2011 (G)

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APPENDIX

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PETITIONER'S EXHIBITS :

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EXT.P1	: COPY OF THE ORDER DATED 12.8.03 OF THE JOINT REGISTRAR.
EXT.P2	: COPY OF THE CERTIFICATE OF JDC ISSUED BY THE STATE CO-OPERATIVE UNION ALONG WITH THE MARK SHEET.
EXT.P3	: COPY OF THE PETITION DATED 10.8.2006 SUBMITTED BEFORE THE MANAGING COMMITTEE.
EXT.P4	: COPY OF THE FEEDER CATEGORY SUB RULES DATED 16.6.93 APPROVED BY THE JOINT REGISTRAR.
EXT.P5	: COPY OF THE PETITION DATED 8.2.08 FILE BY THE PETITIONER BEFORE THE MANAGING COMMITTEE.
EXT.P6	COPY OF THE LETTER DATED 1.10.2011 OF THE PETITIONER.
EXT.P7	COPY OF THE LEAVE APPLICATION DATED 29.10.2011.
EXT.P8	COPY OF THE RELEVANT PAGE OF THE REPORT.
EXT.P9	COPY OF THE PETITION DATED 22.3.2012 SUBMITTED BEFORE THE MANAGING COMMITTEE.

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RESPONDENT'S EXHIBITS :

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EXT.R1(a)	: COPY OF THE COMMUNICATION DATED 7.3.2003.
EXT.R1(b)	COPY OF THE RESOLUTION DATED 12.4.2003.
EXT.R1(c)	COPY OF RESOLUTION DATED 12.3.05.

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(Contd...)

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WP(C).No. 14861 of 2011 (G)

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EXT.R1(d)	COPY OF THE MINUTES OF THE MEETING DATED 12.8.2006.
EXT.R1(e)	COPY OF THE MINUTES OF THE MEETING DATED 26.8.2006.
EXT.R1(f)	COPY OF THE MINUTES OF THE MEETING DATED 9.2.2008.
EXT.R1(g)	COPY OF THE MINUTES OF THE MEETING DATED 8.3.2008. //TRUE COPY//
	P.S. TO JUDGE

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**A.M.SHAFFIQUE, J. * * * * * * * * * * * * *** W.P.C.No.14861 of 2011

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Dated this the 25^th day of September 2012

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J U D G M E N T

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This writ petition is filed for a direction to the respondents to consider Exts.P3 and P5 representations and for a declaration that the petitioner is entitled to get promotion to the post of Junior Clerk as per clause 5 of Ext.P4 feeder category sub rules.

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The petitioner was appointed as a collection agent in the respondent bank on 18/01/1992. He was appointed as a Bill Collector on 16/12/2000 in the scale of Rs.4370 - 9180 which was approved by the Joint Registrar on 12/08/2003. The petitioner passed Junior Diploma in Co-operation (JDC) during May 2006 and he submitted a petition dated 10/08/2006 to the Managing Committee for appointment to the vacancy of Junior Clerk available in the Bank. Bill Collector is a feeder category to the post of Junior Clerk which is approved by the Joint Registrar in terms of Ext.P4. As per Clause 5 of Feeder Category Rules, direct recruitment to the post of Junior Clerk is possible only if qualified hands are not available in the bank. It is the case of the

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W.P.C.No.14861/2011

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petitioner that, according to Rule 186 of the Kerala Co-operative Societies Rules, he is qualified to be promoted to the post of Junior Clerk.

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It is contended that during November 2008, Bank invited applications for the post of three junior clerks; test and interview were conducted; rank list was prepared and three persons were appointed. Subsequently, one of them Smt.Beena resigned and thereafter the Bank sent advice memo to Sri.Krishna Chandran to join duty on or before 26/5/2011. But, he declined to join duty. While so, the petitioner had submitted a representation to the Managing Committee as Ext.P5 claiming promotion from the feeder category. But, his complaint is that though he was orally informed that he will be appointed immediately, but no action was taken in the matter. Hence he seeks the relief, as prayed for.

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First respondent has filed a counter affidavit. According to them, the petitioner could get through JDC only with third class and when clerical vacancy arose, he was given clerical duties; but he proved himself to be a total failure as he committed continuous mistakes in calculation of interest etc.

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W.P.C.No.14861/2011

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which led to frequent complaints from customers. According to the first respondent, petitioner himself expressed his inability to exercise such duties. It was under those circumstances that four persons i.e. three persons from general category and one person from reservation category were appointed following all the legal requirements. According to first respondent, petitioner did not object to such appointments and that he had not given any request before the Managing Committee. The Bank doubted the genuineness of Ext.P5. According to the Bank, the petitioner who had not raised any claim at various stages of recruitment, cannot raise any valid claim now after the appointments are all over.

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Additional affidavit is filed in which it is inter alia stated that after going through the records in the Bank for verifying the genuineness of the claim of the petitioner that he had submitted Ext.P3 on 10/08/2006 and Ext.P5 on 08/02/2008, it was found that no reference is made to the said letters in any of the minutes of the Managing Committee subsequent to the dates of Exts.P3 and P5 letters. If letters were received, as alleged by the petitioner, definitely it would have been presented

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W.P.C.No.14861/2011

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before the Managing Committee. In that view of the matter, they doubted the genuineness of Exts.P3 and P5.

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It is further indicated that as per Ext.P2, the petitioner passed JDC only on 15/09/2006 and the provisional certificate is dated 25/09/2006 and therefore, in the normal course, a claim for promotion could have been made only after obtaining the mark list and provisional certificate. It is further stated that appointments were made to three vacancies, two general and one reserved for S.C/S.T. The vacancy arose due to the retirements were filled on 30/11/2004, 30/11/2007 and 31/05/2008. It was the decision of the Managing Committee on 30/08/2008 not to fill up the vacancy immediately. It is also their contention that once the direct recruitees were appointed, the petitioner accepted such appointments without any demur or protest as evident from his conduct. He did not challenge such appointments even after a lapse of two years and according to the bank, this writ petition is bad for non joinder of necessary parties.

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While admitting the writ petition, an interim order was passed by this Court on 03/06/2011 stating that one post of

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W.P.C.No.14861/2011

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Junior Clerk in the second respondent Bank shall be kept reserved and shall not be filled up without getting further orders from this Court.

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The 3^rd respondent has filed a counter affidavit stating that the petitioner is qualified to be promoted to the post of Junior Clerk in accordance with Rule 186 of the Kerala Cooperative Rules. They also relied upon Rule 185 of the Kerala Co-operative Societies Rules stating that promotions to the employees in the Co-operative Banks can be done only according to seniority of employees as provided in the feeder category sub rules. They reiterated that the petitioner is the senior most employee in sub staff category and also had acquired JDC qualification. It is further stated that, in the respondent Bank there is at present one Senior Clerk and three Junior Clerks and based on classification, one post of Junior Clerk is remaining vacant. As per the approved feeder category, petitioner is eligible for promotion to the post of Junior Clerk which remained vacant. In other words, 3^rd respondent supported the stand taken by the petitioner.

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W.P.C.No.14861/2011

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There is no dispute about the fact that the petitioner is entitled for promotion to the post of Junior Clerk and it also cannot be disputed that direct recruitment was not possible without appointing the petitioner who is in the feeder category to the post of Junior Clerk. In that view of the matter, the respondent Bank ought to have appointed the petitioner to the post of Junior Clerk when the vacancy had arisen.

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Even according to the respondent, vacancy had arisen on the retirement of Smt.Nirmala on 30/11/2004, Smt.Maheswari Amma on 30/11/2007 and Smt.Radhamani on 31/05/2008. Therefore, when Ext.P3 application was filed, there was a vacancy. Submitting an application by way of Ext.P3 is not unusual. It is not disputed that the mark list and the provisional certificate were obtained on 25/09/2006. There is also no reason to doubt the genuineness of Ext.P5. Apparently, Ext.P3 or Ext.P5 have not been placed before the Managing Committee but that does not mean that the petitioner, who is an eligible candidate, cannot be promoted to the existing vacancy as per Rules. True that there is some delay on the part of the petitioner in approaching this Court. But, that does not mean that the

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W.P.C.No.14861/2011

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petitioner is not entitled for getting appointment.

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As per the counter affidavit filed by the 3^rd respondent, there is an existing vacancy. At any rate, petitioner is entitled to be appointed to the post of Junior Clerk in the available vacancy. If no such vacancy is available, the junior most among the appointees by way of direct recruitment, has to be retrenched for accommodating the petitioner. Such appointment shall be effective from 03/06/2011 when interim direction was issued by this court to reserve one post of Junior Clerk in the second respondent Bank until further orders.

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In the result the writ petition is allowed. The second respondent is directed to appoint the Petitioner to the post of Junior Clerk effective from 03/06/2011.

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(sd/-) (A.M.SHAFFIQUE, JUDGE)

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jsr

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W.P.C.No.14861/2011 8

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W.P.C.No.14861/2011 9

G.Sureshkumar v. Karavaram Panchayath Service Co-Op.

Case brief

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G.Sureshkumar v. Karavaram Panchayath Service Co-Op.

Case brief

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