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2008 DIGILAW 104 (KER)

Dilip v. Varapuzha Service Co-operative Bank

2008-02-06

THOTTATHIL B.RADHAKRISHNAN

body2008
Judgment : 1. The second respondent was appointed in the service of the first respondent with the aid of Ext.P1 Government Order, by which, in purported exercise of authority under R.181 of the Kerala Cooperative societies Rules, 1969, hereinafter referred to as the "Rules", the Government exempted the first respondent co-operative bank from the provisions of item (ii) of sub-r.(1) of R.186 of those Rules for the limited purpose of enabling that bank to appoint the second respondent as Junior Clerk in its service subject to the condition that he shall successfully complete the JDC Course within a period of two years from the date of joining duty. According to respondents 1 and 2, there was no available slot in the institution running the course, for the second respondent to acquire the JDC qualification within that period of two years. Accordingly, Ext. P2 was issued by the third respondent exercising the powers of the Registrar enlarging the time granted in Ext.P1 Government Order for the second respondent to acquire the JDC qualification. He, thereafter, acquired that qualification. 2. After the appointment of the second respondent on 9.1986 as Junior Clerk on compassionate grounds, the petitioner, who was in the lower cadre, was promoted as Junior Clerk on 10.1986. Obviously and indisputable, he possessed the qualification of JDC even before the date of such promotion. 3. TheWrit Petition in hand raises the question as to whether the second respondent could be treated as senior to the petitioner in and from the category of Junior clerks. 4. The provision for compassionate appointments in co-operative societies, as a statutory entitlement, came into effect only by the introduction of R. 188A in the Rules with effect from 12.1988. Thereafter, Note-3 to R.186 was introduced with effect from 110.1988 by which the dependants availing employment assistance under R. 188A had a period of three years to acquire the qualifications prescribed for the post against which appointment is made. Obviously, these two rules will have no effect on the case of the second respondent because, his appointment was long before the introduction of R.188A and Note III to R.186 into the Rules. 5. Obviously, these two rules will have no effect on the case of the second respondent because, his appointment was long before the introduction of R.188A and Note III to R.186 into the Rules. 5. Therefore, the only method of attempting to sustain the appointment of the, then unqualified, second respondent as Junior Clerk is to rely on the power exercised by the Government under R.181, to issue Ext.P1, thereby granting exemption to the bank to appoint the second respondent. For one thing, such power to exempt, is to be exercised in relation to the institution and cannot be resorted to, in individual cases. That apart, the second respondent, whatever is the reason, had not obtained the qualification of JDC within the time limit of two years prescribed in Ext.P1 Government Order. As rightly pointed by the learned counsel for the petitioner, the power under R.181 to exempt from the rules, is with the Government. However, Ext. P2, enlarging the time fixed to acquire qualification in terms of Ext.P1, has been made by the Joint Registrar exercising the powers of the Registrar. That authority does not have the power to grant exemption under R.181. The power to grant exemption is always with the maker of the Rule, namely, the Government and the Rules expressly provide that the power of exemption shall be exercised only by the Government. Therefore, even if on the strength of Ext.P2, the second respondent had acquired the JDC qualification within the enlarged time and is now continuing in the service of the first respondent on the strength of such qualification, that cannot be put against the petitioner, who was already qualified. 6. In the absence of any statutory rule, the entitlement to seniority in service of a society cannot depend upon the power of the Government to grant exemption from the Rules, particularly in relation to acquisition of qualification because, the power under R.181 is one that is to be exercised not in favour of individual but one that could be exercised only in favour of the establishment and the exercise of such power cannot be to dilute the quality but could only be to further the interest of the establishment. 7. For the foregoing reasons, the impugned decisions do-not stand. 8. 7. For the foregoing reasons, the impugned decisions do-not stand. 8. In the result, this Writ Petition is allowed quashing Exts.P2 and P7 to the extent they regulate seniority and it is declared that the first respondent shall treat the petitioner as senior to the second respondent in and from the category of Junior Clerk onwards and shall effect due promotions and issue necessary orders in compliance of the declaration contained in this judgment, within an outer limit of three months from the date of receipt of a copy of this judgment.