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2002 DIGILAW 486 (KER)

K. R. Valsala Devi v. R. Leela Bhai

2002-07-19

B.N.SRIKRISHNA, G.SIVARAJAN

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Judgment :- Srikrishna, C.J. This appeal is directed against the judgment of the learned Single Judge dated 3rd july, 1996 made in O.P.No.8583 of 1996 by which the petition was allowed and the promotion granted to the appellant as Senior Supervisor was set aside. 2. The third respondent in the appeal is a Primary Co-operative Agricultural Development Bank, a Co-operative societies registered under the provisions of the Kerala Co-operative Societies Act (herein after referred to as ‘the Act’). The 4th and 5th respondents are the joint Registrar and Registrar of Co-operative Societies, who are statutory authorities. The 6th respondent is the State of Kerala. The first and second respondents are employees of the third respondent Bank. The appellant is also an employee of the third respondent Bank. 3. The appellant joined service as a clerk on 3.12.1976. The academic qualification of the appellant is B.A. Degree with Higher Diploma in co-operation (HDC). The first respondent joined service on 1-7-1974 and her qualification is S.S.L.C. with J.D.C. (junior Diploma in Co-operation.). The second respondent also joined on the same date and has also the same qualification. 4. Under Rule 188 of the Kerala Co-operative Societies Rules (hereinafter referred to as ‘the Rules’) every society is required to adopt the staff pattern indicated in Appendix III to the Rules, according to the type and class to which it belongs. With regard to Primary Land Mortgage Bank, the staff pattern indicated in Appendix III is three posts of Supervisors with the pay scale of Rs.225-10-245-15-350-20-450. The second proviso to Rules 188 provides that, where any society is in need of any change in the pattern of staff including the scale of pay under special circumstances the same may be made by the society with the prior approval of the Registrar of Co-operative Societies. Pursuant to this, the third respondent applied to the Registrar and by his order dated 17-5-1979 (vide Ext.P8), the staff pattern was changed as indicated therein. As far as it is relevant to us, the staff pattern changed was as under: Though under the staff pattern generally applicable to Primary Land Mortgage Banks, there was only one post of Supervisor, as far as the third respondent Bank is concerned, it was permitted to have posts of junior and Senior Supervisors, for which qualifications were prescribed. 5. As far as it is relevant to us, the staff pattern changed was as under: Though under the staff pattern generally applicable to Primary Land Mortgage Banks, there was only one post of Supervisor, as far as the third respondent Bank is concerned, it was permitted to have posts of junior and Senior Supervisors, for which qualifications were prescribed. 5. Rule 188 of the Rules requires that appointments to the categories of posts in a society shall normally be made to promotion on the basis of seniority in the feeder category. The feeder categories for this purpose are required to be specified by the society by framing suitable regulations with the approval of the Registrar. As a result of Ext. P8 Regulations approved by the Registrar of Co-operative Societies, the feeder categories for Supervisor (junior and senior) were to be Clerks/Accountants/junior Supervisors, as the case may be. 6. On 14-6-1979 the State of Kerala revised the pay scales applicable to the employees of the third respondent Bank by the Government Order at Ext.P5. After scrutinizing the proposals forwarded by the Registrar of Co-operative Societies for revision of scales of pay and allowances of the employees in the Kerala Co-operative Central Land Mortgage Bank Ltd. and the Primary Land Mortgage Banks, the Government revised the scales of pay as under: 7. On 1-7-1979, the third respondent Bank promoted the appellant as junior Supervisor. This promotion was challenged by respondents 1 and 2 on the ground that it overlooked their seniority. The dispute was carried to Arbitration and an award was made finding that respondents 1 and 2 were senior and qualified to hold the post of junior supervisor. Consequently, respondents 1and 2 were directed to be promoted as junior Supervisors effective from the same date, i.e., from 1-7-1979, and placed higher in the seniority list above the appellant. 8. On 30th june, 1985, there was a vacancy in the post of Senior Supervisor. Rule 186 prescribes the qualifications required for holding different posts in the Co-operative societies. Sub-rule (1) states that no person shall be eligible for appointment to any post unless he possesses the qualifications prescribed for the post as shown. With regard to all posts, other than those requiring technical qualifications, the starting pay of which is Rs.250/- and above, the minimum qualification required is a Degree with Higher Diploma in co-operation. Sub-rule (1) states that no person shall be eligible for appointment to any post unless he possesses the qualifications prescribed for the post as shown. With regard to all posts, other than those requiring technical qualifications, the starting pay of which is Rs.250/- and above, the minimum qualification required is a Degree with Higher Diploma in co-operation. With regard to other Supervisory and Ministerial Posts not requiring technical qualifications, where the starting pay is below Rs.250/-, the minimum qualification required is S.S.L.C. or its equivalent together with junior Diploma in Co-operation. Amongst the three contestants, i.e., and respondents 1 and 2, there is no dispute that the appellant alone holds a Degree with Higher Diploma in Co-operation. Respondents 1 and 2 have the qualification of S.S.L.C. with junior Diploma in Co-operation. 9. By the order dated 9-11-1997, vide Ext.P2, the Administrator of the third respondents Bank promoted respondents 1 and 2 as junior Supervisors with effect from 1-7-1979 and the first respondent as Senior Supervisor with effect from 1-7-1985. This promotion granted to the first respondent with effect from 1-7-1985 as Senior Supervisor was challenged by the appellant before to third respondent, joint Registrar of Co-operative Societies. By an order dated 25-8-1994 (Ext.P3), the third respondent set aside this promotion granted to the first respondent and directed promotion of the appellant as senior Supervisor with effect from 1-7-1985 on the ground that it was only the appellant who was qualified to hold the post of Senior Supervisor under the Rules. This decision was again canvassed in appeal before the State Government. The State Government by its order dated 27-3-1996 (Ext.P4) confirmed the order of the third respondent holding that the appellant was justifiably entitled to the post of Senior Supervisor as she alone was qualified under the Rules. The matter was carried to this Court by the Original Petition. The learned Single Judge allowed the Original Petition and set aside the orders of the authorities below, which in effect meant that the first respondent would stand promoted as Senior Supervisor. He also gave certain directions with regard to further promotion to the post of Recovery Officer which was effected in the year 1994. Hence, this appeal. 10. The learned counsel for the appellant contends that the judgment of the learned Single Judge is contrary to the provisions of the Rules. He also gave certain directions with regard to further promotion to the post of Recovery Officer which was effected in the year 1994. Hence, this appeal. 10. The learned counsel for the appellant contends that the judgment of the learned Single Judge is contrary to the provisions of the Rules. He submits that under Rule 186(1), the post of Senior Supervisor being a post which carries the pay of Rs.250 and above, the minimum qualification required is a Degree with Higher Diploma in Co-operation, which only the appellant possesses and respondents 1 and 2 admittedly do not possess. Learned counsel for respondents 1 and 2, however, contends that the pay of Rs.250 must not be the pay of the scale as on the date of promotion, but must be the pay of the post prior to the pay revision granted by the Government Order dated 14-6-1979(Ext.P5). In our view, there is no warrant for this contention. This submission may have been relevant if the promotions were granted earlier than the bifurcation of the post of Supervisor into junior Supervisor and Supervisor by the service Regulations of the Registrar dated 17-5-1979 (Ext.P8). As far as the present case is concerned, admittedly, all three were employees promoted to the post of junior Supervisor only with effect from 1-7-1979. This was obviously after the date on which the bifurcation of posts into junior Supervisor and Supervisor had taken effect. There after, for further promotion to the post of Senior Supervisor and above, there was no justification for considering the pay prior to the pay revision. The relevant criterion for the purpose of Rule 186 would be the pay attached to the pay scale as on the date when promotion is to be made. In the present case, the promotion was made on 1-7-1985. On that date, without dispute, promotion was to be made to the post of Senior Supervisor and it carried a minimum pay of Rs.260. Consequently, under sub-rule (1) of Rule 186, the incumbent must necessarily have a minimum qualification of Degree with High Diploma in co-operation. The only person qualified is the appellant. Respondents 1 and 2 are admittedly not in possession of this minimum qualification. In our view, therefore, the appellant is entitled to succeed on this short ground only. We are unable to accept the learned Single Judge’s view that there is inconsistency between the Regulation at Ext. The only person qualified is the appellant. Respondents 1 and 2 are admittedly not in possession of this minimum qualification. In our view, therefore, the appellant is entitled to succeed on this short ground only. We are unable to accept the learned Single Judge’s view that there is inconsistency between the Regulation at Ext. P8 and the Rule 186. The contention of Mr. George Poonthotom, learned counsel for respondents 1 and 2, that there is inconsistency between the staff pattern indicated in Appendix III read with Rule 188 and the staff pattern indicated in Ext. P8, has no merit. Infact, by reason of the second proviso to Rule 188, it was permissible for the third respondent Bank to make a deviation from the staff pattern indicated in Appendix III. This was subject to the approval of the Registrar of co-operative societies, which admittedly has been given. 11. In the result, we are of the view that there is no inconsistency as contended by the learned counsel for respondents 1 and 2 or as observed by the learned Single Judge. The promotion granted to the appellant was perfectly valid and justified as the appellant possesses the minimum prescribed qualifications and respondents 1 and 2, though senior to the appellant, did not possess the minimum prescribed qualifications. In the result, the Joint Registrar and the State of Kerala were justified in upholding the promotion granted to the appellant and the learned Single judge was not justified in interfere with their orders. Consequently, we allow the appeal and set aside the judgment of the learned Single Judge to the extent it holds that the appellant was not entitled to promotion. The direction with regard to further promotion has to be worked out by the third respondent in accordance with the Rules and by following the observations made in this judgment.