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Kerala High Court · body

2018 DIGILAW 669 (KER)

Mariyamma v. Thrissur District Co operative Bank Ltd.

2018-08-14

SATHISH NINAN, V.CHITAMBARESH

body2018
ORDER : V. Chitambaresh, J. 1. Divergent views on the question of passing an order of relaxation of the educational qualification of an employee for the purpose of promotion in terms of R.185(8) of the Kerala Co-operative Societies Rules, 1969 (‘the Rules’ for short) in anticipation of an arising vacancy by the Registrar of Co-operative Societies has led to this reference in the batch of Writ Petitions. 2. It shall be competent for the Registrar of Co-operative Societies to relax the qualification of an employee for the purpose of promotion in deserving cases in terms of R.185(8) of the Rules. But such relaxation can be granted only for the qualification other than basic qualification and pass in the competitive examination specified in R.198(5) of the Rules. Of course the relaxation can only be on the request of the Society by passing a resolution to that effect and subject to the conditions enumerated in (a) to (h) of R.185(8) of the Rules. R.185(8)(h) is as follows: “an employee who requires relaxation of educational qualification of graduation may be promoted to higher post only after getting the order of such relaxation from the Registrar of Co-operative Societies.” Therefore the existence of an order of relaxation by the Registrar of Co-operative Societies is essential before an employee who requires relaxation of educational qualification of graduation be promoted. 3. It is not as if the Registrar of Co-operative Societies would issue an order of relaxation of educational qualification on the day next to the date of receipt of the request of the Society supported by a resolution. R.185(8) of the Rules itself gives leverage to the Registrar of Co-operative Societies in as much as he is obliged to pass an order of relaxation of educational qualification only in ‘deserving cases’. It may take time for the Registrar of Co-operative Societies to decipher as to whether an employee for whom relaxation is sought falls in the category of deserving cases or not. The post to which promotion is sought by the employee after relaxation from the educational qualification cannot be allowed to remain vacant for long till the exercise is completed. A junior employee may at the same time stake claim for promotion on the ground that he is already qualified on the date of occurrence of the vacancy without any need for relaxation. A junior employee may at the same time stake claim for promotion on the ground that he is already qualified on the date of occurrence of the vacancy without any need for relaxation. Undue delay on the part of the Registrar of Co-operative Societies to pass an order of relaxation would compel the Society to promote the junior hand as having the requisite qualification. The senior hand even if he gets relaxation of educational qualification from the Registrar of Co-operative Societies at a later date would be placed below the junior hand in the promoted post. 4. It is to remove the anomaly and the iniquitous position has the practice of passing an order of relaxation of educational qualification by the Registrar of Co-operative Societies well ahead become prevalent. The expression ‘for the purpose of promotion’ occurring in R.185(8) of the Rules has to be understood as ‘for the object of promotion’ lest it does violence to the principles of statutory interpretation. R.185(8) of the Rules cannot be interpreted to mean that an order of relaxation of educational qualification can be passed only after a vacancy for promotion has arisen. A vacancy is a sine qua non for promotion and an order of relaxation of educational qualification for an employee is passed by the Registrar of Co-operative Societies to facilitate promotion. The apprehension that the ratio between the promotees and direct recruitees would be upset by effecting promotion on the basis of the order of relaxation is misplaced. This is because only provisional promotion would normally be granted and the promotees hold the post till the ratio is maintained by direct recruitment through Public Service Commission. 5. We answer the reference holding that the Registrar of Co-operative Societies is competent to relax the qualification of an employee for the purpose of promotion in deserving cases in anticipation of an arising vacancy. Post the Writ Petitions for hearing as per roster.