Allowed

Divakaran B. v. Nekraje Service Co-Operative Bank

Kerala HC26 May 2023WP(C)/5114/2012

Case brief

AI extract

What is this about?

Court set aside Tribunal order dismissing promotion claim. Held Tribunal erred in treating 1988 Feeder Rules as inapplicable and in deeming petitioner waived rights; remanded for reconsideration including an appointee made during pendency.

What did the court decide?

Ext.P9 set aside; Tribunal directed to reconsider appeal after hearing both sides and the person appointed as Secretary in 2008.

Divakaran B. Vs Nekraje Service Co-Operative Bank — Succession and Inheritance | Kerala HC (2023)

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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 DEVAN RAMACHANDRAN

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FRIDAY, THE 26TH DAY OF MAY 2023 / 5TH JYAISHTA, 1945

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WP(C) NO. 5114 OF 2012

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AGAINST THE JUDGMENT IN AP 32/2009 OF KERALA CO-OP.TRIBUNAL, THIRUVANANTHAPURAM.

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PETITIONER:

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DIVAKARAN B.
INTERNAL AUDITOR,
NEKRAJE SERVICE CO-OPERATIVE BANK,
NEKRAJE, KASARAGOD DISTRICT.
BY ADVS.
SRI.M.SASINDRAN
SRI.ARUN CHANDRAN

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RESPONDENTS:

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1 NEKRAJE SERVICE CO-OPERATIVE BANK REPRESENTED BY ITS PRESIDENT, NEKRAJE P.O., KASARAGOD DISTRICT-671543.

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2 NARAYANAN NAIR.K. SECRETARY, NEKRAJE SERVICE CO-OPERATIVE BANK, NEKRAJE P.O., PIN 671543, KASARAGOD DISTRICT.

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3 KERALA CO-OPERATIVE TRIBUNAL THIUVANANTHAPURAM-695001, REPRESENTED BY ITS SECRETARY. BY ADVS. GEORGE POONTHOTTAM (SR.) NISHA GEORGE

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
26.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 5114 OF 2012 2

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JUDGMENT

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The petitioner is working in the 1^st respondent – Bank and he stakes claim to the post of Secretary, which fell vacant on 01.07.2000. Same was not acceded to on the ground that he was, at that time, working only as an Internal Auditor and not as an Assistant Secretary/Chief Accountant, which was the feeder category for promotion to the post of Secretary as per the then extant Feeder Category Rules dated 02.12.1988.

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It transpires that the petitioner, thereupon, approached the 1^st respondent – Bank, through Exts.P3 and P4, for an alternative relief of being promoted to the post of Assistant Secretary, but when the same was also not acceded to, he approached this Court through W.P(C)No.27680 of 2005, which was disposed of directing him to approach the Co-operative Arbitration Court under the Statutory Scheme.

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The petitioner says that he did so by filing ARC No.66 of 2006, but that same was disposed of by the Presiding Officer through Ext.P7 order, without considering any of the relevant aspects; and which order was, thereafter, confirmed by the Kerala Co-operative Tribunal (‘Tribunal’ for short) through Ext.P9 order.

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WP(C) NO. 5114 OF 2012 3

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The petitioner thus impugns Ext.P9 order as being illegal and unlawful and prays that same be set aside, leading to a direction to the 1^st respondent – Bank to promote him as Secretary with effect at least from 01.09.2001, de hors Ext.P2 which is the subsequent Feeder Category Rules.

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In response to the afore submissions Sri.M.Sasindran – learned counsel for the petitioner, Smt.Nisha George – learned Standing Counsel for the 1^st respondent – Bank, submitted that, as has been rightly found in Exts.P7 and P9 orders by the learned Arbitrator and the learned Tribunal, the Feeder Category Rules applicable at the time when the vacancy arose in the post of Secretary was the one dated 02.12.1988, in which, the post of Assistant Secretary/Chief Accountant is shown to be the feeder post. She submitted that such a post was available in the staff pattern dated 22.09.1988 sanctioned to the Bank; but conceded that, through a subsequent staff pattern dated 18.08.2000 - a copy of which is on record as Ext.P1, the post of Internal Auditor was included in the place of Assistant Secretary/Chief Accountant and therefore, making it impossible for her client to grant promotion to the petitioner as sought for by him. She argued that, in any event, these aspects have now become completely irrelevant

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WP(C) NO. 5114 OF 2012 4

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because the petitioner himself made Ext.P5 representation before the Bank, seeking to be appointed as an Assistant Secretary, thus rendering it manifest that he was also aware of the impediment faced by him. She pointed out that all these aspects have been considered by the Arbitrator and the Tribunal in Exts.P7 and P9 and therefore, prayed that this writ petition be dismissed.

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I have examined the impugned orders, namely Exts.P7 and P9, on the touchstone of the pleadings on record and the rival submissions.

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The learned Arbitrator has, on facts, found that the Feeder Category Rules applicable at the time when the vacancy arose in the post of Secretary was the one dated 02.12.1988, in which the post of Assistant Secretary/Chief Accountant has been shown as the feeder post. This is not disputed. However, it has also then found that the staff pattern dated 22.09.1988, which contained the afore post, was amended by the Joint Registrar on 18.08.2000, deleting the said post and including the post of Internal Auditor in its place. Subsequently Ext.P2 - Feeder Category Rules were brought into effect in the year 2005, and this is where the entire controversy arose.

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Pertinently, at the time when the vacancy arose, there is

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WP(C) NO. 5114 OF 2012 5

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no doubt that it was the Feeder Category Rules of the year 1988 and the Staff Pattern of the said year, which were applicable. This was so even at the time when the vacancy arose on 01.07.2000. However, the Staff Pattern was admittedly changed by the Joint Registrar on 18.08.2000, but without amending the Feeder Category Rules; and a resultant situation arose, where, even though said Rules contained the provision of only an Assistant Secretary/Chief Accountant being eligible to be promoted to the post of Secretary, there were no such post in the Bank. This aspect unfortunately has not been considered either by the Arbitrator or by the Tribunal, but they have gone on to hold that, for such reason, only Ext.P2 - Feeder Category Rules of the year 2005 would apply; and therefore, that the petitioner could not have aspired to be promoted as the Secretary with effect from either 01.07.2000 or 01.09.2001, as has been claimed by him.

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That said, the further question as to whether petitioner

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can be seen to have waived his rights for promotion merely because he had preferred Ext.P5 representation for being promoted as an Assistant Secretary, would also have to be reconsidered because both the Authorities have found that this would virtually lead to a situation where the petitioner should be

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WP(C) NO. 5114 OF 2012 6

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reckoned to have waived his rights for promotion to the post of Secretary. I am afraid that Ext.P5 representation by itself would not have been interpreted in such manner because, had the petitioner obtained a right to be promoted as Secretary without having to be promoted as Assistant Secretary, then Ext.P5 would have no relevance; and hence the question of his right to be promoted as Secretary during the time when the Feeder Category Rules did not contain the post of Assistant Secretary/Chief Accountant for promotion to the said post, ought to have been considered and answered specifically.

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I do not propose to speak any further in this issue because I am certainly of the view that the matter will require to be reconsidered by the learned Tribunal because Ext.P9 has been issued without evaluating the afore issues.

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After I dictated this part of the judgment, Smt.Nisha George - learned Standing Counsel appearing for the 1^st respondent – Bank, intervened to say that, pending the Arbitration proceedings, her client had appointed a person as the Secretary in the year 2008 through direct recruitment and that he is still in service. She argued that, therefore, for such reason also, this writ petition ought to be dismissed.

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WP(C) NO. 5114 OF 2012 7

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I am afraid that I cannot find favour with this because appointment has been made pending lis and subject to the orders to be issued by the Arbitrator or the Tribunal. Therefore, when this Court cannot find favour with Exts.P7 and P9 for the above cited reasons, appointment of a person through direct recruitment in the year 2008, when the disputes were alive, cannot be the sole reason to defeat the rights of the petitioner.

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I, therefore, deem it appropriate to clarify that while the afore exercise is completed, the person who has been appointed in the year 2008 will also require to be heard.

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In the afore circumstances, without entering into the merits of the rival contentions between the parties, but solely for the afore purpose, I allow this writ petition and set aside Ext.P9; with a consequential direction to the learned Tribunal to reconsider the appeal filed by the petitioner and take a decision thereon, after hearing both sides, as also the person who has been appointed as the Secretary through direct recruitment by the Bank in the year 2008; thus culminating in an appropriate order and necessary action thereon, as expeditiously as is possible, but not later than six months from the date of receipt of a copy of this judgment.

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To obtain an expeditious compliance of the afore

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WP(C) NO. 5114 OF 2012 8

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directions, I order the parties to mark appearance before the Tribunal at 11.00 a.m. on 26.06.2023.

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Sd/-

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DEVAN RAMACHANDRAN

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JUDGE

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MC/26.5

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WP(C) NO. 5114 OF 2012 9

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APPENDIX OF WP(C) 5114/2012

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PETITIONER EXHIBITS

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EXHIBIT P1A TRUE COPY OF THE RE-FIXED STAFF PATTERN
AND FEEDER CATEGORY OF THE 1ST RESPONDENT
DATED 18.08.2000

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EXHIBIT P2A TRUE COPY OF THE AMENDED FEEDER CATEGORY
RULES DATED 8.6.2005 BY THE JOINT REGISTRAR
EXHIBIT P3A TRUE COPY OF THE REQUEST DATED 16.12.2002.
EXHIBIT P4A TRUE COPY OF THE REQUEST DATED 3.6.2004.
EXHIBIT P5A TRUE COPY OF THE REPRESENTATION DATED
29.06.2005.

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EXHIBIT P6A TRUE COPY OF THE ARBITRATION CASE IN
A.R.C.NO.66 OF 2006 FILED BY THE PETITIONER
DATED 2.12.2006.
EXHIBIT P7A TRUE COPY OF THE AWARD DATED 16.7.2008 IN
A.R.C. NO.66 OF 2006 OF THE CO-OPERATIVE
ARBITRATION COURT, THIRUVANANTHAPURAM.
EXHIBIT P8A TRUE COPY OF THE APPEAL MEMORANDUM FILED
BY THE PETITIONER BEFORE THE TRIBUNAL DATED
7.10.2009.
EXHIBIT P9A TRUE COPY OF THE JUDGMENT IN A.P.NO.32 OF
2009 DATED 28.4.2011 OF THE KERALA CO-
OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM.

Divakaran B. v. Nekraje Service Co-Operative Bank

Case brief

What is this about?

What did the court decide?

Divakaran B. v. Nekraje Service Co-Operative Bank

Case brief

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What did the court decide?

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