Dismissed

The Mattanchery Mahajanik Co-Operative Urban Bank LTD.NO.665 v. Rajendran M.

Kerala HC1 Mar 2016WA/90/2016

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a writ appeal arising from a writ petition challenging a direct recruitment notification for a General Manager post. The court held that Rule 185(1) of Kerala Cooperation Societies Rules mandates filling such posts by promotion and disallowed choosing between promotion and direct recruitment.

What did the court decide?

Direct recruitment notification and the amended Feeder Category Rules providing for direct recruitment for the post of General Manager were quashed; the post must be filled by promotion in accordance

The Mattanchery Mahajanik Co-Operative Urban… — Pension and Retirement Benefits | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE THE CHIEF JUSTICE MR.ASHOK BHUSHAN & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

¶4

TUESDAY, THE 1ST DAY OF MARCH 2016/11TH PHALGUNA, 1937

¶5

WA.No. 90 of 2016 () IN WP(C).26684/2013

¶6

AGAINST THE ORDER/JUDGMENT IN WP(C) 26684/2013 of HIGH COURT OF KERALA DATED 26-10-2015

¶7

APPELLANT(S)/R1 AND 2:

¶8

1. THE MATTANCHERY MAHAJANIK CO-OPERATIVE URBAN BANK LTD.NO.665 PALLIYARAKAVU ROAD KOCHI 682002 REPRESENTED BY ITS GENERAL MANAGER.

¶9

2. THE BOARD OF DIRECTORS OF THE MATTANCHERY MAHAJANIK CO-OPERATIVE URBAN BANK LTD.NO.665 PALLIYARAKAVU ROAD KOCHI 682002 REPRESENTED BY ITS CHAIRMAN.

¶10

BY ADV. SRI.GEORGE POONTHOTTAM

¶11

RESPONDENT(S)/PETITIONER AND R3-5:

¶12

1. RAJENDRAN M. DOOR NO.12/646, RAJ BHAVAN, JAWAHAR ROAD COCHIN-682002.

¶13

2. THE CO-OPERATIVE SERVICE EXAMINATION BOARD

¶14

THIRUVANANTHAPURAM, PIN-695001 REPRESENTED BY ITS SECRETARY.

¶15

3. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (G) ERNAKULAM, CIVIL STATION, B-2 BLOCK 5TH FLOOR, KAKKANAD, KOCHI-682030.

¶16

4. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT CO-OPERATION (C) DEPARTMENT, SECRETARIAT THIRUVANANTHAPURM-695001.

¶17

BY SPL.GOVT.PLEADER SMT.GIRIJA GOPAL R1 BY SRI.P.P.JACOB R2 BY SMT.K.V.RESHMI, SC

¶18

THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶19

ASHOK BHUSHAN, C.J. “C.R.” &

¶20

A.M. SHAFFIQUE, J. ================

¶21

W.A. No. 90 of 2016

¶22

=============

¶23

Dated this, the 1^st day of March, 2016

¶24

J U D G M E N T

¶25

Ashok Bhushan, C.J.

¶26

This writ appeal has been filed against judgment dated 26^th October 2015 in WP(C) No.26684/2013, by which judgment the writ petition filed by the 1^st respondent to this appeal has been allowed. The appellants, who were respondents 1 and 2 in the writ petition, have come up in the writ appeal challenging the said judgment. Parties shall be referred to as described in the writ petition.

¶27

The brief facts of the case are as follows:

¶28

The writ petitioner was a member of the Mattancherry Mahajanik Co-operative Urban Bank Limited, a Co-operative Society registered under the Kerala Co-operative Societies Act. The Committee of the Society took a decision to fill up the post of General Manager by direct recruitment and Ext.P1 notification was published in Mathrubhumi Daily on 30/9/2012. Petitioner's

¶29

W.A. No.90/16

¶30

-:2:-

¶31

case in the writ petition is that as per Rule 185 of the Kerala Cooperative Societies Rules, the posts in societies have to be filled up by promotion from the feeder categories on the basis of seniority. It was further stated that society is not in good financial condition. It was further stated that Feeder Category Rules, Ext.P2 (a), is also not in accordance with the statutory prescription. Petitioner in the writ petition has prayed for the following reliefs:

¶32

“i. issue a writ of certiorari or any other writ order or direction calling for the records leading to the issue of Ext.P1 and quash the same.

¶33

ii. Declare that appointment to the post of General Manager/Secretary in the Urban Co-operative Bank shall be made only by promotion from the suitable employees on the basis of seniority and eligibility from the Feeder Category Rules or Regulations made for the purpose of promotion and the said post cannot be filled up by resorting the method of direct recruitment as per Rule 185 of the Rules. iii. Declare that Ext.P1 notification vide Serial No.3 and consequent selection process adopted by the respondents 1 to 3 to fill up the post of General Manager in the first respondent is contrary to Rule 185 of the Rules and liable to be declared as illegal. iv. Call for the files relating to Ext.P2(a) amended Feeder Category Rule and quash the same to the extent it provide direct recruitment to fill up the post of General Manager of the first

W.A. No.90/16

-:3:-

respondent.

v. Issue a writ of mandamus or other writ or order directing the respondents 1 & 2 to fill up the post of General Manager by promotion based on the seniority/eligibility in the Feeder Category Rules framed for promotion and appointment.”

¶38

Counter affidavit was filed by the society where locus of the petitioner was questioned referring to Rule 185 where it was mentioned that feeder categories for the purposes have been specified by the Society by framing suitable regulations with the approval of the Registrar. It is stated that Ext.P2(a) has been issued with the approval of the Joint Registrar of Co-operative Societies and in view of the above, the post of General Manager of the Bank can either be filled up through direct recruitment or by promotion from among the Deputy General Managers. It was contended that Bank is entitled to fill up the post either by direct recruitment or by promotion and no error was committed in inviting application for filling up the post by direct recruitment.

¶39

Learned Single Judge after hearing the parties took the view that Feeder Category Rule cannot be in violation of the statutory provisions. On the question of locus of the petitioner to file the writ petition, learned Single Judge answered in favour of

¶40

W.A. No.90/16

¶41

-:4:-

¶42

the petitioner. Answering the third issue framed by the learned Single Judge, it was held that Ext.P2(a) is unsustainable. Writ petition was accordingly allowed.

¶43

Sri.George Poonthottam, learned counsel appearing for the appellants challenging the judgment of the learned Single Judge contends that as per Rule 185, filling up the post by promotion is contemplated when there is only one post in a particular category and which is not excluded by sub rules (2), (3) and (4). He submits that use of the word 'posts' in sub rule (1) of Rule 185 clearly indicates that the post of General Manager, which is a single post in the Society, is not covered by the main provision of sub rule (1) of Rule 185. It is further contended that the post of General Manager of the Society in question is not covered by sub rules (2), (3) and (4). Hence, it is open for the society to fill up the post either by direct recruitment or by promotion. In support of Ext.P2(a), it is contended that the Feeder Category Rules clearly indicate that it may be filled both by direct recruitment and promotion. Hence, Feeder Category Rule does not violate any provision of rules.

¶44

Learned counsel appearing for the writ petitioner

¶45

W.A. No.90/16

¶46

-:5:-

¶47

supported the judgment and contends that Feeder Category Rule clearly violated sub rule (1) of Rule 185 which mandates that all posts which are not covered by sub rules (2), (3) and (4) have to be filled up by promotion.

¶48

We have considered the submission of the learned counsel for the parties and perused the records. Sub rule (1) of Rule 185 which provides for promotion is as follows:

¶49

“185. Promotion (1) Subject to the provisions of sub-rules (2), (3) and (4), appointments to the categories of posts in a society, other than those mentioned in sub-rules (2), (3) and (4), shall be made by promotion, on the basis of seniority in the feeder category. The feeder categories for this purpose shall be specified by the society by framing suitable regulations, with the approval of the Registrar.”

¶50

Sub rules (2), (3) and (4) provide the manner of filling up different category of posts as mentioned therein by promotion or direct recruitment as per the ratio mentioned therein.

¶51

A plain reading of sub rule (1) of Rule 185 indicates that appointments to the categories of posts in a society other than those mentioned in sub rules (2), (3) and (4) shall be made by promotion. Thus, except those provided in sub rules (2), (3)

¶52

W.A. No.90/16

¶53

-:6:-

¶54

and (4), the appointment to the categories of posts in a society shall be filled up by promotion. Learned counsel for the appellants contends that since the word 'posts' has been used, the Rule contemplated that when there are more than one post in a category, only then, it has to be filled up by promotion. The use of word 'categories of posts' does not indicate that the Rule indicated that if there are more than one post in a category, only then it should be filled up by promotion. Had the legislature intended any such interpretation, the same could have been expressly mentioned. However, from under the General Clauses Act, the use of a word in plural sense can be read as singular and vice versa. We, thus, are not persuaded to accept the submission of the learned counsel for the appellants that the mere use of the word 'posts' in sub rule (1) of Rule 185 take out the post of General Manager of the Society out of the purview of sub rule (1). There is no dispute between the parties that the post of General Manager of the Society is not covered by sub rules (2), (3) and (4). Thus, the same is covered by sub rule (1) and that is to be filled up by promotion.

¶55

Now coming to the Feeder Category Rules, which is

¶56

W.A. No.90/16

¶57

-:7:-

¶58

filed as Ext.P2(a), the said has been amended by decision dated

¶59

3^rd August, 2012. The amendment proposed is as follows:

¶60

“ To be amended:

¶61

	*Name of the post*	*Feeder Category*
1.	General Manager	1. a. Direct appointment
		b. Promotion from the post of
		Deputy General Manager post.
		From those who are qualified in accordance with the Kerala
		Co-operative Law and Rules.
2.	Deputy General Manager	2. Direct appointment/Inspector of branches/Chief accountant/
		Branch manager/Internal
		auditor/Development
		officer (3:1)”

¶62

A perusal of the aforesaid amendment indicates that for General Manager, it is not provided that the post is to be filled up by promotion. Rather, a perusal of the Feeder Category Rules indicates that both direct recruitment and promotion have been used. There is no indication that when the direct recruitment is to be resorted to. As observed above, as per the statutory rule, the posts which are not covered by sub rules (2), (3) and (4) are to be filled up necessarily by promotion. When there is statutory prescription under sub rule (1) of Rule 185 for filling up the post

¶63

W.A. No.90/16

¶64

-:8:-

¶65

by promotion, there is no latitude to the managing committee to frame Feeder Category Rule giving option of filling up the post both by direct recruitment and promotion.

¶66

There may be a case that there is no person eligible for the post of promotion according to lack of prescribed qualification. By rule of necessity, in event no officer of a Society possesses the necessary qualification, the post can be filled by other modes permissible in law. The present is not a case where the Society has proceeded for direct recruitment on the finding that there is no one fulfilling the qualification for the post of General Manager. In view of the aforesaid, we are of the view that no error was committed by the learned Single Judge in setting aside Exts.P1 and P2(a).

¶67

With the observations and clarifications as made above, the writ appeal is dismissed.

¶68

Sd/-

¶69

ASHOK BHUSHAN, CHIEF JUSTICE

¶70

Sd/-

¶71

A.M. SHAFFIQUE, JUDGE

¶72

Rp2/3/2016

¶73

//True Copy//

¶74

PS to Judge

The Mattanchery Mahajanik Co-Operative Urban Bank LTD.NO.665 v. Rajendran M.

Case brief

What is this about?

What did the court decide?

The Mattanchery Mahajanik Co-Operative Urban Bank LTD.NO.665 v. Rajendran M.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Shammy Thilakan Vs v.R.Raju

Alphonsa v Vs Dr.Gireesh Cholayil

M.R.Tourist Home Vs Dr W R Reddy

Anil Ravindran Vs Kerala State,Rep;by Registrar.Co-Op,Dept

Dr Remjith G.S. Vs Manikantan Krishnan Nair

A.Sunil Vs T.Ravindran