Allowed

Vilasini v. Registrar of Co-Op. Society

Kerala HC8 Apr 2016WP(C)/35656/2007

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging the prospective operation of an order relaxing educational qualification for promotion. Holding that relaxation should take effect from the date duties were performed, the Court recalculated the effective date from 1st July 2003 and directed the grant of consequential monetary and pensional benefits.

What did the court decide?

Exemptions granted under orders are set aside to take effect from 01.07.2003; respondents directed to grant all consequential monetary and pensional benefits.

Vilasini Vs Registrar of Co-Op. Society — Labour and Industrial Disputes | Kerala HC (2016)

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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 RAJA VIJAYARAGHAVAN V

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FRIDAY, THE 8TH DAY OF APRIL 2016/19TH CHAITHRA, 1938

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WP(C).No. 35656 of 2007 (T)

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PETITIONER(S):

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VILASINI, W/O JANARDHANAN, ATHULYA HOUSE, ECHIKKATTU PARAMBHA, POST MIE CHETHUKADAVU, KUNNAMANGALAM, KOZHIKODE.

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BY ADV. SRI.P.V.KUNHIKRISHNAN

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RESPONDENT(S):

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1. REGISTRAR OF CO-OPERATIVE SOCIETY, TRIVANDRUM.

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2. JOINT REGISTRAR (GENERAL), KOZHIKODE.

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3. KOZHIKODE NORTH SERVICE CO-OPERATIVE BANK LIMITED., REPRESENTED BY ITS SECRETARY, KOZHIKODE-673010.

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R1 & R2 BY GOVERNMENT PLEADER SMT.V.H.JASMINE. R3 BY ADV. SRI.T.A.SHAJI

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-04-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 35656 of 2007 (T)

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APPENDIX

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PETITIONER'S EXHIBITS

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EXHIBIT P1	A COPY OF THE RESOLUTION DATED 26.10.2005 OF THE 3RD RESPONDENT BANK DT.25.7.06
EXHIBIT P2	A COPY OF THE ORDER NO.EM(3) 49598/2005 K DIS.DATED 4.01.2005 OF THE 1ST RESPONDENT
EXHIBIT P3	A COPY OF THE ORDER NO.28/06 DATED 16.01.2006 OF THE 3RD RESPONDENT BANK
EXHIBIT P4	A COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT DT.5.02.2007
EXHIBIT P5	A COPY OF THE JUDGMENT IN W.P.(C) NO.13477/2007 ON THE FILE OF THIS HON'BLE COURT, ERNAKULAM DATED 20.04.2007
EXHIBIT P6	A COPY OF THE ORDER NO.EM(3)7090/07 DATED 29.09.2007

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RESPONDENTS' EXHIBITS

NIL

//True Copy//

P.A. To Judge

RAJA VIJAYARAGHAVAN V, J.

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============================== W.P.(C).No.35656 of 2007

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============================== Dated this the 08^th day of April, 2016

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J U D G M E N T

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1.Under challenge in this Writ Petition are Exts.P2 & P6

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orders passed by the Registrar of Co-operative Societies in exercise of the powers conferred on him under Rule 185 (8) of the Kerala Co-operative Societies Rules, 1969. The

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grievance of the petitioner is limited to that part of the order as per which relaxation of educational qualification of graduation granted by the Board of Directors as per Ext.P1 resolution dated 26.10.2005 was directed to take effect from the date of Ext.P2 order dated 04.01.2006 instead of from 01.07.2003, as requested for in Ext.P1 resolution.

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2.The petitioner, who has by now retired from service, had joined the services of the Kozhikode North Service Cooperative Bank on 15.12.1983 as a junior clerk. Though

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W.P.(C).No.35656 of 2007 : 2 :

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she had passed SSLC and JDC, she was not a graduate. She was promoted as senior clerk on 01.03.1987 and as accountant on 01.03.1990. She was reverted as per the orders of the Assistant Registrar of Co-operative Societies and later promoted w.e.f. 01.07.1998. From 01.07.2003 onwards, the petitioner has been working as internal auditor in the Bank as the said post was not filled up. According to the petitioner, all the duties of the internal auditor including accounting and auditing were being carried out by the petitioner in addition to her duties as an accountant in the Bank from 01.07.2003 onwards.

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3.Under Rule 186 of the Kerala Co-operative Societies Rules

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only graduates can be appointed as Internal Auditors in Co-operative Societies. However, Rule 185(8), empowers the Registrar of Co-operative Societies to relax the qualification, other than basic qualification and pass in the competitive examination for the purpose of promotion in deserving cases, on the request of a society by passing a resolution subject to certain conditions which are

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W.P.(C).No.35656 of 2007 : 3 :

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enumerated in the Rules.

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The 3^rd respondent considering the skill, performance and expertise of the petitioner, passed Ext.P1 resolution as per which it was resolved to request the 1^st respondent

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to relax the qualification with regard to insistence for graduation. The said resolution is dated 26.10.2005. The said resolution was forwarded to the 1^st respondent. The 1^st respondent approved the request of the 3^rd respondent under Rule 185(8) of the Kerala Co-operative Societies Rules, but, it was directed that the relaxation would take effect only from the date of order. In terms of Ext.P2, Ext.P3 was passed promoting the petitioner to the post of internal auditor with effect from 04.01.2006.

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It appears that aggrieved by Ext.P2 order, Ext.P4 representation was submitted by the petitioner before the bank and when no orders were passed on the same, W.P. (C).No.13477/2007 was preferred before this Court seeking direction. As per order dated 20.04.2007, the 1^st respondent was directed to pass orders taking note of the

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ratio of the judgment in Dasan Vs. Registrar of Cooperative Societies [2007 (1) KLT 581] .

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Thereafter, Ext.P6 order was passed by the 1^st respondent

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as per which, it was held that Ext.P2 order approving the resolution w.e.f.04.01.2006 was legal and valid. It was in the said circumstances that the instant Writ Petition was filed challenging the above orders.

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Though the respondents have been served with notice, they have not chosen to file a counter affidavit controverting the contentions of the petitioner.

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8.I have heard the learned counsel appearing for the petitioner, the learned Government Pleader and also the learned counsel appearing for the 3^rd respondent.

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9.The learned counsel appearing for the petitioner would fervently submit that the petitioner had been working in the post of internal auditor from 01.07.2003 onwards. It was in the said circumstances that the 3^rd respondent as per Ext.P1 resolution sought for the approval for relaxation of qualification. According to the learned

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counsel, the relaxation of qualification should take effect from 01.07.2003 onwards and not from 04.01.2006. It is

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further submitted that Ext.P2 order approving the request of the 3^rd respondent is silent as to why the relaxation of qualification was granted only with prospective effect. This is against all tenets of law and opposed to the law laid down by this Court in a catena of decisions, is the submission of the learned counsel.

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10.The learned counsel relies on the judgment of this Court in Dasan Vs. Registrar of Co-operative Societies [2007 (1) KLT 581], Kuttipuram Service Coop. Bank Vs. State of Kerala [2004 (2) KLT 73], Balakrishna Pillai G. Vs. Joint Registrar of Cooperative Societies,

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Kollam and Others [2009 (2) KHC 228] and Narayanan C.K. Vs. Mathil Service Co-op. Bank Ltd, Kannur [2014 (2) KLJ 703] to advance his contentions. He also relies on the judgment dated 09.02.2010 in W.P. (C).No.1424/2010 and judgment dated 19.08.2011 in W.P.(C).No.15473/2011. It is further submitted that the

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judgment in W.P.(C).No.1424/2010 was upheld in appeal by a Division Bench of this Court in judgment dated 18.03.2011 in W.A.No.361/2011.

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11.The learned Government Pleader would oppose the contentions and contended that Dasan (Supra) and the other judgments relied on by the learned counsel appearing for the petitioner pertained to the unamended Rule. According to the learned Government Pleader, with effect from 03.09.2005, the Rule was amended and exclusive powers have been conferred on the Registrar of Co-operative Societies to relax the qualification on the request of a society by passing a resolution to that effect. Earlier, the committee of the society was competent to relax the qualification in deserving cases for the purpose of promotion and only the prior approval of the Registrar was required.

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12.I have perused the records and find that Ext.P1 resolution was passed by the 3^rd respondent taking note of the fact that the petitioner had fulfilled all the conditions

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enumerated in Rule 185(8). Exts.P2 and P6 orders passed

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by the 1^st respondent would also reveal that the petitioner

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was entitled to relaxation of qualification for the purpose of promoting her to the category of internal auditor. The said orders unmistakably reveals that the petitioner fulfills all the conditions stipulated for grant of an order of relaxation of qualification. The assertion of the petitioner that she had been working in the post of internal auditor from 01.07.2003 has not been controverted. However, the Registrar has directed in Ext.P2 that the order of relaxation will take effect only from 04.01.2006. No reasons are seen stated as to why it was decided that the order of relaxation is to take effect only prospectively and that too from the date of order. This Court has consistently held that it is within the province of the committee to decide upon the date from which the relaxation of qualification should be granted. This was the view taken by this Court in Dasan (Supra), which was followed in several other cases. As rightly submitted by

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the learned counsel appearing for the petitioner a Division Bench of this Court in W.A.No.361/2011 had upheld the correctness of the judgment of the learned Single Judge in W.P.(C).No.1424/2010 wherein identical question was raised. In judgment dated 19.08.2011 in W.P.(C). No.15473/2011, which was a post amendment matter, this Court had held that the exemption granted prospectively by the Registrar cannot be sustained. Holding that the judgment in W.A.No.361/2011 had attained finality, this Court had held that the same was binding on the 1^st respondent. In view of the above binding precedents, I am of the view that the petitioner is entitled to succeed. Ext.P2 in so far as it directs that Ext.P1 resolution shall take effect only from 04.01.2006 is set aside. It is held that the relaxation of qualification of graduation granted by the 3^rd respondent as per Ext.P1 resolution for promoting the petitioner as internal auditor shall take effect from 01.07.2003 onwards. The petitioner is said to have retired from service and needless to say

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she shall be entitled to all service benefits on the above

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basis.

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13.In the result, this Writ Petition is disposed of declaring that exemption granted to the petitioner as per Exts.P2 & P6 orders shall take effect from 01.07.2003 onwards. The respondents are directed to grant all consequential benefits, monetary and pensional, on that basis. Necessary orders shall be passed within a period of 3 months from the date of this judgment.

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Sd/- RAJA VIJAYARAGHAVAN V, JUDGE.

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[True copy]

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P.A to Judge

Vilasini v. Registrar of Co-Op. Society

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Vilasini v. Registrar of Co-Op. Society

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