| SooperKanoon Citation | sooperkanoon.com/947459 |
| Court | Kerala High Court |
| Decided On | Dec-09-2011 |
| Case Number | O.P. No. 18048 of 1997 & O.P. No. 12170 of 1998 |
| Judge | P.R. RAMACHANDRA MENON |
| Appellant | K.R. Sasidharan Nair |
| Respondent | Joint Registrar, Co-operative Societies and Others |
1. Promotion given to the petitioners in O.P. No. 12170 of 1998 to the post of Sr. Supervisors is under challenge in O.P. No. 18048 of 1997, stating that they are not qualified in terms of Rule 186(i)(ii) of the Kerala Co-operative Societies Rules and that the same is contrary to Ext.P4 (Special Rules) framed by the Bank. Ext.P4 (Special Rules) in O.P. No. 18048 of 1997 is sought to be set aside by the petitioners in O.P. No. 12170 of 1998, stating that the same is contrary to the mandate of Rule 186 of the Kerala Co-operative Societies Rules and hence not enforceable.
2. The petitioner in O.P. 18048 of 1997, pursuant to Ext. P2 notification, was selected and appointed as Junior Clerk in the service of the respondent Bank, as per Ext. P1 appointment order dated 09.01.1986. The petitioner is a Graduate with HDC and hence qualified for the post. The probation was declared on 20.04.1987 and he was later promoted as Jr. Supervisor w.e.f. 01.03.1990 as per Ext.P3. The case of the petitioner therein is that the Bank has formulated Special Rules (Ext.P4) for appointment to the post of ‘Supervisor’ (Senior and Junior) and the post of ‘Sr.Supervisor’. sanctioned for the first time in the year 1979 carries the basic scale of pay starting from Rs. 260/-. The said basic pay being above Rs.250/-, by virtue of the mandate under Rule 186 of the Rules, a candidate for appointment to the said post should possess ‘Graduation with HDC or JDC’, which the respondents 3 to 5 (who are the petitioners in the other O.P., i.e. O.P. No. 12170 of 1998) are not having. However, the respondent Bank promoted the respondents 3 to 5 as Sr. Supervisors vide Ext. P6 proceedings dated 27.08.1993, who were having only SSLC with JDC. The grievance projected by the petitioner against their promotion was rejected by the Bank, when he filed Ext.P8 petition under Section 69 of the Kerala Co-operative Societies Act, read with Rule 176 of the Rules, to rescind the resolution promoting the respondents 3 to 5 as Senior Supervisors and to promote the petitioner. This was considered and rejected by the Joint Registrar, as per Ext.P9 order, which in turn is under challenge in O.P. No. 18048 of 1997.
3. Heard the learned Counsel for both the sides and also the learned Government Pleader appearing for the State/Department.
4. With regard to the challenge raised in O.P. No. 12170 of 1998 against Ext.P4 Special Rules framed by the Bank, it is stated in the O.P. itself that the said Special Rules are not in the conformity with the Rule 186 of the Rules and that the Government/Department has already clarified that any special Rule prescribing qualifications by the concerned Societies contrary to the qualification prescribed in Rule 186 is not valid in law and cannot be enforced.
5. The third respondent in O.P. No. 12170 of 1998 has filed a counter affidavit, virtually endorsing the averments of the petitioners therein and stating that Ext.P4 being contrary to Rule 186 of the Rules, cannot have any valid existence. It is also stated that Ext.P4 was not given effect to by the Bank, as the Bank subsequently passed a resolution cancelling Ext. P4 and a copy of the said resolution was sent for approval of the Registrar/Joint Registrar, which course is stated as not necessary and hence there is no relevance or basis for the reliance sought to be placed on the said Special Rules by the petitioner in the other O.P. (O.P.No. 18048 of 1997). It is also stated that, as per Rule 186 of the Rules, the prescribed qualification for appointment to the post of Sr. Supervisor has to be considered and decided with reference to the ‘pre-revised’ scale of pay for the said post, which was never above Rs. 250/- at the starting point of scale and hence the qualification could only be SSLC and JDC, which the petitioners in O.P. No. 12170 of 1998 are having and hence they are fully qualified to be promoted.
6. Mr. Renjith Thampan, the learned Sr. Counsel appearing for the petitioners in O.P. No. 12170 of 1998 submits that the relief sought to set aside Ext. P4 has virtually become redundant as Ext.P4 was subsequently cancelled as per the resolution taken by the Bank. In view of the stand taken by the third respondent in their counter affidavit, no further orders are required in the above O.P. It is ordered accordingly.
7. Coming to O.P.18048 of 1997, the case of the petitioner therein is that he alone was the only qualified candidate having ‘Graduation with HDC’; while the respondents 3to5, who were promoted in the year 1993 were having only ‘SSLC and JDC’ qulification. As per Ext.P5 Pay Revision brought into effect in the year 1979, the concerned posts were re-designed as ‘Sr. Supervisor’ and ‘Jr. Supervisor’ with different scales of pay of Rs. 260/18/6-368-20/1-388-22/5-498-27/6-660 (18 years)’ and Rs. 210-12/5-270-15/5-345-18/5-435-20/5-535 (20 years)’ respectively. Since the post of Sr. Supervisor is having the scale of pay above Rs. 250/-, the qualification prescribed as per Rule 186 is nothing but Graduation with HDC or JDC and as such, no promotion could have been given to respondents 3 to 5 in the year 1993 and the post ought to have been filled up only by promoting the petitioner therein, submits the learned Counsel for the petitioner. Reliance is also sought to be placed on the judgment passed by a Division Bench of this Court in W.A.No. 1716 of 1996, whereby the verdict passed by the learned Single Judge to the contrary was set aside, holding that only the persons having Graduation with HDC/JDC could be promoted to the post of ‘Sr. Supervisor’.
8. Mr. Renjith Thampan, the learned Sr. Counsel for the respondents 3 to 5 in O.P. No. 18048 of 1997 submits that, the above verdict was passed by the Division Bench without taking note of the ‘Note (i)’ of Ext.P5 Pay Revision Order, which reads as follows:
“I) Supervisors and Accountants who are now drawing the pay scale of Rs. 225-10-245-15-350-20-450 will be placed in the revised pay scale of Rs. 260-18/6-368-20/1-388-22/5-498-27/6-660.”
The post of ‘Supervisor’, as it existed at the time of Ext.P5 pay Revision carried the minimum of the scale as Rs.225/-. As such, after the pay Revision, all such posts were placed in the scale of pay starting from ‘Rs. 260/-‘ onwards and could not have been placed in any lesser scale of pay of Rs. ‘Rs. 210-112/5-270-15/5-345-18/5-435-20/5-535 (20 years)’, which virtually means that the post of Jr. Supervisor having the scale of pay Rs. 210-12/5-270-15/5-345-18/5-435-20/5-535 (20 years) was brought in for the first time in the year 1979. This being the position, the qualification for the post of ‘Sr. Supervisor’ had to be reckoned with reference to the ‘Pre-revised scale of pay’ and not otherwise.
9. That apart, the Government had clarified Vide Circular No. E(M) 1 – 1062/82 dated 15.06.1982 that the qualification had to be considered on the basis of the pre-revised scales of pay in view of ongoing steps to have the Rules amended. The learned Sr. Counsel further submits that the Rule itself has subsequently been amended by the Government w.e.f. 02.11.2010 and it reads as follows:
“186 Qualification:- (1) No person shall be eligible for appointment in any post unless he possess the qualifications prescribed for the post as shown below:-
| i) All posts other than those requiring technical qualifications, the starting pay of which is Rs.250 and above,as it existed on the1st January, 1974 and such pay being revised from time to time | A. A degree in Commerce or Masters degree in Arts of a recognized University with Co-operation as special subject. ORB. (i) B.A., B.Sc. or B.Com degree of recognized university and (ii) Higher Diploma in Co-operation or higher diploma in Co-operation and Business Management (HDC or HDC and B.M. of State Co-operative Union of Kerala or HDC and H.D.C.M. of the National Council for Co-operative Training or successful completion of the Subordinate (Junior) Personnel Co-operative Training Course)(Junior Diploma in Co-operation) OR C. Diploma in Rural Services with Co-operation as optional subject OR D. B.SC. (Co-operation and Banking) Degree of the Kerala Agricultural University. |
| Xxxxxxxxxx | xxxxxxxxxx”(emphasis is supplied) |
10. Obviously, the Rule is clarifictory in nature, as to the way in which the qualification ought to have been reckoned for posting/promotion and the necessity to have requisite qualification as prescribed for different posts. It is also relevant to note that the said amendment is in tune with the clarification issued by the Government earlier, vide Circular dated 15.06.1982, referring to the ongoing steps for amending the Rules. In other words, the Rule does not intend to bring in something new or to delete something from the already existing position. It only clarifies the intent to give effect to the original mandate under the relevant provisions of the Act/Rules in relation to the qualification. In any view of the matter, the Rule as it now stands, which stipulates to have the qualification reckoned in relation to the starting pay, as it existed on 01.01.1974, is not subjected to challenge by the petitioner in O.P. No. 18048 of 1997 and as such, the petitioner cannot have the relief sought for. Since the rule position is categoric as aforesaid, the judgment rendered earlier on 19.07.2002 by the Division Bench in W.A.No. 1716 of 1996 (before amendment of the Rule) does not come to the rescue of the petitioner. There is no merit in O.P. No. 18048/1997 and the same is dismissed accordingly.