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2010 DIGILAW 41 (KER)

N. Hariharan v. N. Haneesa Beevi

2010-01-14

C.N.RAMACHANDRAN NAIR, V.K.MOHANAN

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Judgment :- Ramachandran Nair, J. Writ Appeal is filed by respondents 3,5,6 and 7 in the W.P.(C) challenging the judgment of the learned Single Judge declaring Ext.P4 provisional order of promotion and Ext.P7 approval by the Registrar of Co-operative Societies granting exemption from degree for promotion, as invalid and issued in violation of Rule 185(8) of the Kerala Co- operative Societies Rules, 1969(hereinafter called "the Rules"). We have heard Adv. Sri.George Poonthottam appearing for the appellants, Senior counsel Sri.Nandakumara Menon, appearing for the additional 7th respondent, Government Pleader appearing for the 4th respondent and Standing Counsel appearing for the 5th respondent. Strangely respondents 1 to 3 in the Writ Appeal who were the petitioners in the W.P.(C) have not chosen to appear or defend the judgment inspite of notice. 2. The facts leading to the dispute raised before the learned Single Judge are the following. The appellants along with 6th respondent and three others joined the service of the 5th respondent- Bank without the qualification of Degree but wit SSLC and Junior Diploma Course in Co-operation. After serving for over 25 years, the 5th respondent-Bank taking into account their longstanding blemishless service in the Bank, decided to waive requirement of Degree as a qualification for promotion and recommended to the Registrar for approval in terms of Rule 185(2), the then existing Rule providing for relaxation of qualification of Society employees for promotion. Even though the said recommendation made through resolution of the Bank was not produced in the case of all the employees involved, one such recommendation is produced in the W.P.(C) as Ext.P3. After the Bank decided to relax the educational qualification of the appellants and others by way of dispensing with Degree as a qualification for promotion to the post of Branch Manager/Superintendent, the appellants and the other persons involved were promoted temporarily vide Ext.P4 proceedings dated 19.4.2003. On the very same day i.e. 19.4.2003, the Registrar referred the recommendation of the Bank for report by the Joint Registrar and based on his report and after considering the recommendation of the Bank, the Registrar vide Ext.P7 order dated 19.11.2003 approved the waiver of qualification namely, dispensation of Degree for promotion to the appellants with a rider that the promotions, if any, given prior to the Registrar's order will take effect from the date of approval granted by him i.e. 19.11.2003. Respondents 1 to 3 in the Writ Appeal who were graduates waiting for promotion, challenged Exts.P4 and P7 before this court on the ground that relaxation of educational qualification which is in the form of dispensation of degree as a qualification for promotion by the 5th respondent and the promotion given to appellants and the 6th respondent is against Rule 185(2) subsequently substituted by Rule 185 (8) of the Rules. Even though approval given by the Registrar for relaxation of educational qualification under Ext.P7 was for 8 persons, challenge was limited to the promotion given to appellants and the 6th respondent. The 7th respondent, though had not challenged the promotions given to petitioners in the W.P.(C), got impleaded as an additional respondent in this Writ Appeal to sustain the judgment of the learned Single Judge. The short question arising for our decision is whether the learned Single Judge was correct on the interpretation given by him on Rule 185(2) in as much as he has held that the relaxation of educational qualification by the Bank should itself be initiated with the prior approval of the Registrar. In order to consider the question, we have to necessarily refer to the Rule which stood at the relevant time, which is as follows: "R.185(2) It shall be competent for the committee of a society to relax the qualifications of an employee, whether appointed before or after the commencement of these rules, for the purpose of promotion, in deserving cases, with prior approval of the Registrar and for reasons to be recorded." 3. Counsel for the appellants referred to the contents of Ext.P3 which clearly states the reasons which weighed with the Bank to grant relaxation in the Degree qualification for one of the employees who is the first appellant herein. We are told that similar recommendation was made by the Bank for relaxation of Degree qualification for promotion of other appellants as well. We are told that similar recommendation was made by the Bank for relaxation of Degree qualification for promotion of other appellants as well. It is seen from Ext.P3 that the Bank has taken into account the service of the first respondent for over 26 years in the Bank in various Grades and that he has served the Bank to it's satisfaction and that he was not involved in any irregularity leading to disciplinary proceedings and under Notification G.O.(P) No.90/2003 issued by the Government, he is entitled to have the Degree qualification dispensed with under Rule 185(2) for promotion to the post of Branch Manager/Superintendent. It is this recommendation and similar recommendations in the case of other appellants, 6th respondent and others, that were considered by the Registrar in the proceedings issued as Ext.P7 which was challenged by the respondents 1 to 3, in the W.P.(C). It is seen from Ext.P7 that prior to approval of the recommendation from the Bank with regard to relaxation of Degree qualification of the employees concerned for promotion to the post of Branch Manager/Superintendent, the Registrar has got report from the Joint Registrar who endorsed the recommendation of the Bank. It is also specifically mentioned in Ext.P7 that promotions to employees in whose cases relaxation of qualification recommended by the Bank is approved by Registrar, will take effect on regular basis only with effect from his order i.e. Ext.P7. 4. Counsel for the appellants contended that the petitioners in the W.P.(C) did not have a case that the appellants or any of the employees covered by Exts.P4 and P7 were not eligible for getting relaxation from Degree qualification for promotion. However, the dispute raised was only on the technical ground that Bank exempted them from Degree qualification under Rule 185(2) and simultaneously promoted them, which is against the provisions of the said Rule. Counsel for the appellants on the other hand contended that the case of the petitioners in the W.P.(C) and the finding of the learned Single Judge that promotions were given simultaneously on recommendation of relaxation of Degree qualification by the Bank is factually incorrect. His further contention is that approval of the decision of the Bank on relaxation by the Registrar is only for giving regular promotion. His further contention is that approval of the decision of the Bank on relaxation by the Registrar is only for giving regular promotion. We find force in this argument because in our view, under the scheme of Rule 185(2) it is for the managing committee of the society to decide on relaxation of qualification of an employee for the purpose of promotion and while deciding this, they should record their reasons justifying the decision. It is for the Society to send for approval the proposal for relaxation and promote the employee concerned only if and after the Registrar grants approval for the decision on relaxation taken by the Society. We are unable to accept the argument of the 7th respondent that even for taking a decision on relaxation of educational qualification by the Society, it needs prior approval from the Registrar. On the other hand, on a reading of Rule 185(2) we are of the view that the sequence of action should be first decision for relaxation by the Society followed by reasons to be recorded and then get the same approved by the Registrar and promotion should follow thereafter. "Prior approval" stated in the Rule only means that promotion on regular basis based on dispensation of educational qualification to the employee concerned should be given after getting approval from the Registrar of Cooperative Societies. On facts we find that irregularity if any is only in respect of the temporary promotion given to the appellants and others pending approval of the decision of the Bank for relaxation of educational qualification by the Registrar of Cooperative Societies. In fact, the Registrar is well aware of chances of such temporary promotions having been given by the Bank pending his approval and that is the reason why he has stated in Ext.P7 order of approval that the promotion, if any, given to such employees should be regularised only with effect from his order of approval. The petitioners in the W.P.(C) or the 7th respondent in the Writ Appeal have no case that Ext.P7 is violated by the Bank by regularising the promotion given to any of the persons involved with retrospective effect i.e. on any date prior to Ext.P7 which is dated 19.11.2003. The petitioners in the W.P.(C) or the 7th respondent in the Writ Appeal have no case that Ext.P7 is violated by the Bank by regularising the promotion given to any of the persons involved with retrospective effect i.e. on any date prior to Ext.P7 which is dated 19.11.2003. Nobody has challenged the temporary promotions given by the Bank to the persons referred to in Ext.P4 pending approval of the decision on relaxation taken by the Bank, by the Registrar. Therefore, in our view, the interpretation made to Rule 185 (2) by the learned Single Judge in regard to "prior approval" is not tenable. We, therefore, allow the Writ Appeal by setting aside the judgment of the learned Single Judge and by dismissing the W.P.(C). However, we make it clear that Ext.P4 issued by the Bank is only a provisional order of promotion and those promoted temporarily will get regularisation in the promoted post only with effect from the date of approval by the Registrar granted under Rule 185(2) of the Rules.