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2017 DIGILAW 284 (KER)

SHIRLY GEORGE v. FACT EMPLOYEES CO-OPERATIVE CREDIT SOCIETY LTD.

2017-02-08

P.B.SURESH KUMAR

body2017
JUDGMENT : Common issues arise for consideration in these writ petitions and as such, they are disposed of by this common judgment. The parties and exhibits are referred to, as they appear in WP.(C).No.34511 of 2016. 2. The petitioner entered the service of the first respondent, a society registered under the Kerala Co-operative Societies Act, as a Junior Clerk. She was promoted later as Senior Clerk. She was promoted thereafter, to the post of Accountant. A vacancy of Chief Accountant arose in the society on 30.11.2013. The petitioner being the senior most claimant in the post of Accountant as on 30.11.2013, she was given charge of the Chief Accountant from 30.11.2013. There is only one post of Chief Accountant in the service of the society. The petitioner was regularised as Chief Accountant later with effect from 23.02.2015. The petitioner was put in charge of the Secretary of the society on 01.04.2015, when the incumbent in the said post attained the age of superannuation. The petitioner was regularised in the post of Secretary later, with effect from 27.09.2016. While so, the petitioner retired on 30.09.2016. On the retirement of the petitioner, she was disbursed terminal benefits for having discharged duty as Chief Accountant and Secretary only with effect from the respective dates on which she was regularised in those posts. The case of the petitioner is that in so far as she was the senior most claimant in the post of Accountant as on 30.11.2013, she should have been appointed as Chief Accountant on 30.11.2013. Likewise, it is also the case of the petitioner that she should have been appointed on regular basis as Secretary with effect from 01.04.2015. It is the further case of the petitioner that having regard to the facts and circumstances, as per Ext.P8 order, the Joint Registrar of Co- operative Societies concerned has directed the society to regularise the service of the petitioner in the post of Chief Accountant with effect from 30.11.2013 and in the post of Secretary with effect from 1.4.2015. Ext.P8 order has not been given effect to by the society. It is the further case of the petitioner that despite Ext.P8 order, she is not being disbursed even the admitted terminal benefits. Hence this writ petition, seeking directions to the society to give effect to Ext.P8 and disburse to the petitioner the remaining terminal benefits. 3. Ext.P8 order has not been given effect to by the society. It is the further case of the petitioner that despite Ext.P8 order, she is not being disbursed even the admitted terminal benefits. Hence this writ petition, seeking directions to the society to give effect to Ext.P8 and disburse to the petitioner the remaining terminal benefits. 3. In the counter affidavit filed, it is contended, among others, by the society that the petitioner was not qualified for appointment to the post of Chief Accountant on 30.11.2013; that she became qualified for appointment as Chief Accountant only on 23.02.2015; that the petitioner was not qualified for appointment to the post of Secretary on 01.04.2015; that the petitioner became qualified for appointment as Secretary only on 27.09.2016 and that it is on account of the said reasons that she was not regularised in the posts of Chief Accountant and Secretary with effect from the respective dates on which vacancies arose in the said posts. As regards Ext.P8 order, the case set up by the society is that the same is one rendered without jurisdiction and without notice to the society. 4. Heard the learned counsel for the petitioner, the learned Government Pleader as also the learned counsel for the first respondent society. 5. Relying on Rule 185(2) and 185(5) of the Kerala Co-operative Societies Rules, the learned counsel for the society pointed out that the post of Chief Accountant being a post equivalent to the post of Assistant Secretary provided for under clause (iv) of Rule 185(2) of the Rules, the same could be filled up only by promotion from the feeder category in accordance with the merit and ability to be assessed through the qualifying examination. According to the learned counsel, the petitioner has passed the qualifying examination only on 23.02.2015. As regards the delay in regularising the petitioner in the post of Secretary, the learned counsel for the society pointed out that the feeder category rules applicable to the society enable the society to effect promotion only after completion of three years service in the feeder category and that the same was amended as one year only with effect from 27.09.2016. Per contra, the learned counsel for the petitioner pointed out that the third proviso to Rule 185(5) of the Rules empowers the society to effect promotions against 10% of the vacancies without insisting a pass in the qualifying examination and the petitioner was entitled to the benefit of the said proviso in the matter of her appointment to the post of Chief Accountant. As regards the contention raised by the society relying on the feeder category rules, the learned counsel for the petitioner pointed out that Rule 185 does not prescribe any minimum service in the feeder category and therefore, the petitioner should have been promoted to the post of Secretary on the date on which the vacancy arose in the said post ignoring the feeder category rules. 6. The issues arise for consideration is whether the petitioner is entitled to promotion to the post of Chief Accountant with effect from 30.11.2013 as also to the post of Secretary with effect from 01.04.2015. These are issues primarily to be decided by the competent authority under the Kerala Co-operative Societies Act and not matters to be decided in a proceedings under Article 226 of the Constitution of India for the first time. The fact that Ext.P8 is an order passed without notice to the society is not disputed. W.P.(C).No.35782 of 2016 is preferred by the society challenging Ext.P8 order. The Joint Registrar of Co-operative Societies is not expected to pass orders in the nature of Ext.P8 without notice to the society. In the circumstances, the writ petitions are disposed of as follows :- (i) Ext.P8 in WP.(C).No.34511 of 2016 is quashed. The Joint Registrar of Co-operative Societies concerned is directed to consider the representation of the petitioner referred to in Ext.P8 afresh, after affording the petitioner as also the Society an opportunity of hearing. The society is permitted to raise all objections in the said proceedings, including their objection that the Joint Registrar has no jurisdiction to pass orders in matters like this. (ii) In the meanwhile, the society shall disburse the terminal benefits due to the petitioner except the benefits due in respect of her service as Chief Accountant from 30.11.2013 to 23.2.2015 and as Secretary from 01.04.2015 to 27.09.2016. The benefits as directed shall be paid within two weeks from the date of receipt of a copy of this judgment. (ii) In the meanwhile, the society shall disburse the terminal benefits due to the petitioner except the benefits due in respect of her service as Chief Accountant from 30.11.2013 to 23.2.2015 and as Secretary from 01.04.2015 to 27.09.2016. The benefits as directed shall be paid within two weeks from the date of receipt of a copy of this judgment. If the said order is not complied with within the time stipulated, the benefits shall carry interest at the rate of 9% per annum thereafter.