Dismissed

K.K.Safia v. the Managing Committee of the Edarikkod Service Co-Operative Bank Ltd. No. F 10739

Kerala HC16 Jan 2018WA/1849/2015

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed an appeal against a single judge who set aside an arbitration award regarding seniority and promotion. The court held that Appendix XIIB of the Kerala Service Rules and a subsequent State circular did not apply to leave granted earlier because the Rules did not explicitly incorporate those conditions and the circular was not in force at the time of leave sanction

What did the court decide?

The writ appeals are dismissed. The impugned judgment allowing the writ petition and setting aside the arbitration award and tribunal order is upheld.

K.K.Safia Vs the Managing Committee of the… — Pension and Retirement Benefits | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN &

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THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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TUESDAY, THE 16TH DAY OF JANUARY 2018 / 26TH POUSHA, 1939

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WA.No. 1849 of 2015 IN WPC. 5491/2014

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AGAINST THE ORDER/JUDGMENT IN WP(C) 5491/2014 of HIGH COURT OF KERALA DATED 10-07-2015

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APPELLANT/2ND RESPONDENT IN WPC 5491/2014

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K.K.SAFIA SENIOR CLERK, EDARIKOD SERVICE CO-OPERATIVE BANK LTD.NO.F. 10739, EDARIKOD P.O., MALAPPURAM - 676 501.

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BY ADV.SRI.P.P.JACOB

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RESPONDENTS/PETITIONERS AND IST RESPONDENT IN WPC 5491/2014:

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THE MANAGING COMMITTEE OF THE EDARIKKOD SERVICE CO-OPERATIVE BANK LTD NO. F 10739

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EDARIKKOD P.O., MALAPPURAM - 676 501,

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REPRESENTED BY ITS PRESIDENT.

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THE EDARIKKOD SERVICE CO-OPERATIVE BANK LTD.NO.F 10739

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EDARIKKOD P.O., MALAPPURAM - 676 501,

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REPRESENTED BY ITS SECRETARY.

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ARIFA K.K. HEAD CLERK, EDARIKKOD SERVICE CO-OPERATIVE BANK LTD.NO.F 10739, EDARIKKOD P.O., MALAPPURAM - 676 501.

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R1-R2 BY ADV. SRI.V.G.ARUN R1-R2 BY ADV. SRI.T.R.HARIKUMAR R3 BY SRI.P.C.SASIDHARAN

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16-01-2018, ALONG WITH W.A.NO1854 OF 2015,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.N.RAVINDRAN &

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R.NARAYANA PISHARADI, JJ. ******************************** W.A.Nos.1849 of 2015

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& 1854 of 2015

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Dated this the 16^th day of January, 2018

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JUDGMENT

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P.N.Ravindran,J

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The appellant is the first respondent in W.P(C)No.30154 of 2013. She entered service as Peon in Edarikode Service Cooperative Bank Ltd.No.F-10739 (hereinafter referred to as 'the Bank' for short) on 24-02-2003 along with Arifa.K.K, the petitioner in the writ petition . It is not in dispute that in the selection which led to the said appointment, the writ petitioner was ranked first and the appellant was ranked third. In course of time, both of them were promoted to the category of Junior Clerk with effect from 01-04-2005 and to the category of Senior Clerk with effect from 03-01-2009. Later, pursuant to the decision of the Managing Committee of the Bank on 14-03-2011, the writ petitioner was promoted to the category of Head Clerk with effect from 24-032011. Prior to that, Ext.P3 final seniority list of employees of the Bank as on 14.03.2011, produced and marked as W.P.(C)

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W.A.Nos.1849 of 2015 &

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1854 of 2015 2

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No.30154 of 2013 was published. In that seniority list, the writ petitioner was placed at serial number 9 and the appellant at serial number 10.

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The promotion given to the writ petitioner as Head Clerk resulted in the appellant filing ARC No.170 of 2011 before the Co-operative Arbitration Court wherein she prayed that the order promoting the writ petitioner to the category of Head Clerk may be set aside and a direction may be issued to the Bank to promote her to the category of Head Clerk. She had also prayed that Ext.P3 final seniority list of employees of the Bank as on 14-03-2011 may be set aside. The Bank as well as the writ petitioner resisted ARC No. 170 of 2011 by filing separate written statements. After considering the rival contentions, by Ext.P5 award passed on 27.08.2012, the Co-operative Arbitration Court, Kozhikode declared that the appellant is senior to the writ petitioner. Ext.P3 seniority list which was produced and marked as Ext.A6 before the Co-operative Arbitration Court was set aside and the Bank was directed to prepare a fresh seniority list ranking the appellant above the writ petitioner. The promotion given to

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W.A.Nos.1849 of 2015 &

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1854 of 2015 3

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the writ petitioner to the category of Head Clerk was set aside and a direction was issued to the Bank to promote the appellant to the category of Head Clerk. Though the writ petitioner filed an appeal before the Kerala Co-operative Tribunal, it was dismissed by Ext.P7 order passed on 05-10-2013. She thereupon filed W.P.(C) No.30154 of 2013 in this court challenging Ext.P5 award and Ext.P7 order. By judgment delivered on 10-07-2015, a learned single Judge of this court allowed the writ petition and set aside Ext.P5 order passed by the Co-operative Arbitration Court and Ext.P7 order passed by the Kerala Co-operative Tribunal. The said judgment is under challenge in this writ appeal.

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The appellant and the writ petitioner were appointed as Peons in the Bank with effect from 24-02-2003. As stated earlier, in the selection held for the purpose, the writ petitioner was ranked first and the appellant was ranked third. Shortly after they entered service, the writ petitioner applied for leave without allowances during the period from 14-07-2003 to 31-03-2004. The leave applied for was sanctioned by the Managing Committee of the Bank which met on 04-07-2003, unconditionally. Ext.R1(g)

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W.A.Nos.1849 of 2015 & 1854 of 2015 4

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produced along with the additional counter affidavit dated 16-01-2014 filed by the appellant is a copy of the resolution passed by the Managing Committee of the Bank in that regard. The writ petitioner availed the leave and rejoined duty after expiry of the leave on 01-04-2004. In the meantime, the appellant's probation in the category of Peon was declared satisfactorily completed on 24-02-2004. The period of probation is one year on duty within a continuous period of two years. Since the writ petitioner had availed leave on loss of pay during the period from 14-07-2003 to 31-03-2004, her probation was declared satisfactorily completed only with effect from 12-112004. The said period was, however, within the period of two years from the date on which she joined duty namely 24-02-2003. These facts are not in dispute. Later, the writ petitioner and the appellant were promoted to the category of Junior Clerk with effect from 01-04-2005 on a temporary basis pursuant to the decision taken by the Managing Committee of the Bank on 19-032005. It was, however, stipulated in that decision that their probation in the category of Junior Clerk will commence only from

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W.A.Nos.1849 of 2015 &

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1854 of 2015 5

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the date on which they complete three years from the date of their appointment to the category of Peon. Still later, both of them were promoted to the category of Senior Clerk with effect from 03-01-2009.

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While matters stood thus, Ext.R1(c) seniority list of employees in the service of the Bank as on 31-07-2010 was published. In that seniority list, the appellant was assigned serial number 9 and the writ petitioner was assigned serial number 10. The writ petitioner objected to the rank and seniority assigned to her in the said seniority list. After considering the objections, Ext.P3 final seniority list of employees of the Bank as on 14-03-2011 was published. In that seniority list, the writ petitioner was assigned serial number 9 and the appellant serial number 10. On the day the said seniority list was published, namely 14.03.2011, the Managing Committee of the Bank met and resolved to promote the writ petitioner to the category of Head Clerk. The order of promotion followed on 24-03-2011. The appellant thereupon filed ARC No.170 of 2011 before the Cooperative Arbitration Court claiming rank and seniority above the

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1854 of 2015 6

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W.A.Nos.1849 of 2015 &

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writ petitioner and appointment as Head Clerk in preference to the writ petitioner.

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The appellant contended before the Co-operative Arbitration Court that as the writ petitioner had, during her period of probation, availed leave on loss of pay during the period from 14-07-2003 to 31-03-2004, she had only a right to rejoin service on the expiry of leave and therefore, on the terms of Appendix XIIB of Part I of the Kerala Service Rules (hereinafter referred to as 'the KSR' for short), the writ petitioner has to be treated as Junior to her in service. She also contended that in the resolution adopted by the Managing Committee of the Bank on 19-03-2005 whereby the Managing Committee decided inter alia to promote both the petitioner and the appellant to the category of Junior Clerk, she was ranked above the writ petitioner, indicating thereby that the Bank had recognised her rank and seniority above the writ petitioner. She also relied on Ext.R1(c) seniority list dated 31-07-2010 to contend that her rank and seniority over the writ petitioner was recognised therein also. The Bank as well as the writ petitioner resisted ARC No.170 of 2011. The Bank

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W.A.Nos.1849 of 2015 &

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1854 of 2015 7

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contended that the writ petitioner is senior to the appellant. It also contended that the seniority list which was published on 3107-2010 [Ext.R1(c)] was only a draft seniority list and that after considering the objections to it, Ext.P3 final seniority list was published on 14-03-2011. The Bank contended that the promotion given to the writ petitioner was in order. The writ petitioner filed a written statement raising more or less identical contentions.

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The Co-operative Arbitration Court considered the rival contentions and held relying on Appendix XII B of Part I KSR that as the writ petitioner was a probationer at the point of time when leave on loss of pay was granted to her, on rejoining duty she should be deemed to be a fresh entrant and consequently she is liable to be treated as junior to the appellant. In that view of the matter, the Co-operative Arbitration Court set aside Ext.P3 final seniority list, declared that the appellant is senior to the writ petitioner, set aside the promotion granted to the writ petitioner to the category of Head Clerk and directed the Bank to promote the appellant to the post of Head Clerk/Accountant. The writ

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W.A.Nos.1849 of 2015 &

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1854 of 2015 8

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petitioner unsuccessfully challenged the said order, a copy of which is produced and marked as Ext.P5 in the writ petition by filing an appeal before the Kerala Co-operative Tribunal. The Bank also carried the matter in appeal. The appeals were heard together and dismissed by judgment delivered on 05.10.2013. The writ petitioner filed W.P.(C) No.30154 of 2013 and the Bank filed W.P.C.No.5491 of 2014 challenging the said orders. By judgment delivered on 10-07-2015, the learned single Judge allowed both the writ petitions and set aside Ext.P5 award passed by the Co-operative Arbitration Court and Ext.P7 judgment delivered by the Kerala Co-operative Tribunal. The learned single Judge held that leave granted to the petitioner is not governed by Appendix XII B of Part 1 KSR and Rule 88 of Part 1 of KSR and therefore, the view taken by the Arbitration Court cannot be sustained. The appellant has, aggrieved thereby, filed this appeal.

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We heard Sri.P.P.Jacob, learned counsel appearing for the appellant, Sri.P.C.Sasidharan, learned counsel appearing for the writ petitioner and Sri.T.R.Harikumar, learned counsel

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W.A.Nos.1849 of 2015 & 1854 of 2015 9

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appearing for respondents 2 and 3. Learned counsel for the appellant contended, relying on Ext.R1(i) circular dated 30.12.2005 issued by the State Government as also the provisions contained in Rules 88 and 91 of Part 1 KSR and Appendix XII B thereof that the leave of the kind applied for by the writ petitioner, who was then a probationer, could have been granted only under Appendix XIIB and therefore as the Appendix XIIB contemplates loss or forfeiture of past service and also stipulates that the employee will have to rejoin duty as a fresher, the learned single Judge erred in interfering with the impugned orders. Learned counsel contended that as the petitioner was a probationer at the point of time when she was granted leave without allowances during the period from 14-07-2003 to 31-03-2004 and her probation was declared later than the date on which the probation of the appellant was declared, in view of the stipulations contained in Appendix XIIB, the writ petitioner lost her rank and seniority to the appellant. Relying on Ext.R1(j) decision, learned counsel for the appellant contended that it was on account of this fact that when the appellant and the petitioner

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W.A.Nos.1849 of 2015 &

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1854 of 2015 10

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were promoted to the category of Junior Clerk (the first promotion post), the appellant was ranked above the petitioner. Though both of them were promoted to the post of Junior Clerk on the same day, learned counsel contended that it was on account of this fact that in Ext.R1(c) seniority list of employees of the Bank as on 31-07-2010, the appellant was ranked above the petitioner. Learned counsel contended that it was on account of the influence exerted by the writ petitioner that, later the seniority position was upset and she was illegally promoted to the category of Head Clerk with effect from 24-03-2011. Learned counsel contended that as Appendix XIIB of Part 1 KSR governs the grant of leave to employees of Co-operative societies, the impugned judgment is liable to the set aside.

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Per Contra, Sri.P.C.Sasidharan learned counsel appearing for the writ petitioner and Sri.T.R.Harikumar, learned counsel appearing for the Bank contended that Appendix XIIB of Part 1 KSR as such does not apply to employees of co-operative societies. Inviting our attention to Rule 190(8) of the Kerala Cooperative Societies Rules, 1969 (hereinafter referred to as 'the

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W.A.Nos.1849 of 2015 &

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1854 of 2015 11

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Rules' for short), learned counsel contended that the said rules do not incorporate by reference, the conditions stipulated in the Kerala Service Rules for grant of different kinds of leave contemplated in the Rules. Learned counsel contended that such being the situation, the Government erred in issuing Ext.R1(a) circular and stipulating that the grant of various kinds of leave to employees of co-operative societies will be governed by the conditions stipulated in the KSR for grant of such leave. Learned counsel contended that in any view of the matter, as Ext.R1(c) circular was issued only on 30-12-2005, after the leave applied for by the petitioner was granted and after she rejoined duty, the stipulations therein cannot govern the rights of parties. Learned counsel also contended that Ext.R1(c) seniority list of employees of the Bank as on 31-07-2010 was only a provisional seniority list and after considering the objections, Ext.P3 final seniority list was published on 14-03-2011 wherein the rank and seniority of the petitioner was restored. Learned counsel contended that in such circumstances the Co-operative Arbitration Court misdirected itself when it proceeded to hold that the petitioner lost her rank

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W.A.Nos.1849 of 2015 &

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1854 of 2015 12

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and seniority when she availed leave on loss of pay during the period from 14-07-2003 to 31-03-2004.

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We have considered the submissions made at the Bar

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by learned counsel appearing on either side. We have also gone through the pleadings and the materials on the record. The short question that arises for consideration before us is whether the provisions contained in Appendix XIIB of Part 1 KSR governing grant of study leave applies to employees of Co-operative Societies in the light of the stipulations contained in Rule 190(8) of the Rules.

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“ 190. Leave Rules.-

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(1) xxx xxx (8) Every employee of a society shall be eligible for different kinds of leave (including surrender of earned leave for the purpose of encashment) as in the case of State Government employees as prescribed under the Kerala Service Rules or any order issued by Government from time to time in this regard.”

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Sub rule (1) of Rule 190 stipulates that no leave of any kind can be claimed as a matter of right and it is left to the

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W.A.Nos.1849 of 2015 &

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1854 of 2015 13

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discretion of the authority empowered to grant, refuse or revoke leave of any description according to the exigencies of service. sub rule (8) stipulates that every employee of a society shall be eligible for different kinds of leave including surrender of earned leave for the purpose of encashment as in the case of State Government employees as prescribed under KSR or any order issued by the Government from time to time in this regard. While the appellant contends that by virtue of the aforesaid stipulations, Appendix XIIB of Part 1 KSR is incorporated into the rules, the contention of the writ petitioner and Bank is that it is not the effect of sub rule (8) of Rule 190. It is their contention that sub rule (8) only declares that employees of co-operative societies are eligible for different kinds of leave available to Government servants as prescribed in the KSR. It is their contention that in the absence of any stipulation in the Rules that the grant of such leave will be subject to the terms and conditions governing the grant of leave as stipulated in the KSR, the leave applied for by the petitioner cannot be governed by the stipulations in Appendix XII B. It is their alternative contention that no such stipulation

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W.A.Nos.1849 of 2015 &

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1854 of 2015 14

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was incorporated in the decision granting leave, that Ext.R1(i) circular was not in existence at the point of time when leave was granted and therefore, in any view of the matter, the stipulations in Ext.R1(i) circular cannot govern the leave availed by the petitioner during the period from 14-07-2003 to 31-03-2004.

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It is evident from a reading of Rule 190(8) that it does not incorporate the terms and conditions governing the grant of various kinds of leave as stipulated in the KSR. In our opinion, sub rule (8) of Rule 190 only stipulates that employees of cooperative societies will also be eligible for different kinds of leave available to the State Government employees as prescribed in KSR or any order issued by the Government from time to time in that regard. It does not in express terms stipulate that in the event of such leave being granted, it will be regulated by the stipulations contained in the KSR. It is relevant in this context to note that when leave was sanctioned to the petitioner during the period from 14-07-2003 to 31-03-2004, the Managing Committee did not deem it proper and fit to impose any condition. The leave sanctioned to the petitioner was unconditional. It was not

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W.A.Nos.1849 of 2015 & 1854 of 2015 15

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stipulated in the decision granting her leave on loss of pay for the said period that she will not be entitled to any service benefit during the said period or that she will forfeit her past service and will have to rejoin duty as a fresher. It was also not stipulated that such leave is granted subject to the provisions contained in Appendix XII B of Part 1 KSR. It was more than a year after she rejoined duty that Ext.R1(c) circular was issued by the State Government on 30-12-2005. The said circular, no doubt stipulates that the employees to whom leave without allowances have been granted under Appendix XII A, XII B or XII C before declaration of probation in the category from which the officer proceeds on leave, will forfeit all service benefits that had accrued in the post prior to their proceeding on leave and will be treated as a new entrant. As stated earlier, such a stipulation was not incorporated in the decision taken by the Managing Committee of the Bank when it sanctioned leave on loss of pay to the petitioner. As regards leave without allowances under Rule 190(1) of the Rules for study purpose, it is stipulated that such leave will not be counted for increment, higher grade, pension or accumulation of

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1854 of 2015 16

¶80

W.A.Nos.1849 of 2015 &

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earned leave. In the case of employees who have completed probation and are granted leave without allowances under Appendix XII A, XII B or XII C, the stipulation is that such period of leave will not count for seniority, increment, higher grade, pension or accumulation of earned leave and half pay leave or for promotion during the currency of the leave. The short question as stated earlier is whether these terms can govern the leave granted to the petitioner. Our answer is in the negative for the reason that the stipulation in Ext.R1(i) circular was not in force as on the date on which leave on loss of pay was sanctioned to the petitioner during the period from 14-07-2003 to 31-03-2004. In the absence of a stipulation identical to the one contained in Ext.R1(i) circular in the decision taken by the Managing Committee of the Bank to grant leave on loss of pay to the petitioner, we are of the opinion that the petitioner cannot be visited with the consequences flowing from Ext.R1(i) circular. It can at best govern only grant of leave of the various kinds mentioned therein on and with effect from 30-12-2005. In that view of the matter, it is not really necessary for us in this case to

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W.A.Nos.1849 of 2015 &

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1854 of 2015 17

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decide whether the circular is in tune with Rule 190 (8) of the Rules. Even without entering a finding regarding that aspect of the matter, on the facts disclosed, the impugned judgment can be sustained. Consequently, we leave open the question whether Ext.R1(i) circular dated 30-12-2005 issued by the State Government militates against sub rule (8) of Rule 190 of the Rules.

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For the reasons stated above, we hold that there is no merit in the instant appeals. The writ appeals fail and are accordingly dismissed.

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(sd/-)

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P.N.RAVINDRAN, JUDGE

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(sd/-)

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R.NARAYANA PISHARADI, JUDGE

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jsr

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True Copy

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P.S to Judge

K.K.Safia v. the Managing Committee of the Edarikkod Service Co-Operative Bank Ltd. No. F 10739

Case brief

What is this about?

What did the court decide?

K.K.Safia v. the Managing Committee of the Edarikkod Service Co-Operative Bank Ltd. No. F 10739

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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