Tirur Motor Transport Co-Operative Society Ltd. v. Joint Registrar of Co-Operative Societies (General)
2020-03-12
BECHU KURIAN THOMAS, C.T.RAVIKUMAR
body2020
DigiLaw.ai
JUDGMENT : C.T. Ravikumar, J. The appellants were the petitioners in WP(C) No.28058/2019. This appeal is preferred against the judgment passed thereon. The first appellant is Tirur Motor Transport Co-operative Society which is registered under the Kerala Cooperative Societies Act and the Rules framed thereunder. The second appellant is its Secretary. They filed the writ petition seeking quashment of Ext.P8 and issuance of a Writ of Mandamus commanding the first respondent to reconsider Ext.P6 resolution and to grant retrospective operation to Ext.P4 feeder category from 01.01.2003 in the light of the dictum laid down in the decision reported in Skaria v Joint Registrar [ 1993 (1) KLT 328 ]. Declarations to the effect that the 2nd petitioner/ 2nd appellant is entitled to pay revisional benefits with effect from 01.04.2014 notwithstanding the objection raised in Ext.P5 dated 12.06.2018 and that in terms of Ext.P2 pay revision order, there is no need of further approval of the pay revision by the 2nd respondent, the Assistant Registrar in view of the approval of the same by the Auditor, were also sought for. The pleadings in the writ petition as also in this appeal would reveal that the petitioners are aggrieved by the rejection of the prayer to grant retrospective operation to Ext.P4, as sought for under the resolution passed, on 01.06.2016. The pleadings would reveal that as per the resolution dated 01.06.2016, the Managing Committee prepared feeder category and forwarded the same for approval of the Joint Registrar. The same was considered and approved by the Joint Registrar as is evident from Ext.P4. Earlier, in the matter of pay revision, Ext.P3 resolution was passed by the Managing Committee of the society on 26.05.2017. The resolution was, in fact, forwarded to the Assistant Registrar along with a statement of pay fixation. The pay fixation was returned by the Assistant Registrar stating that there is no feeder category approved by the department for the purpose of promotion. In fact, it is in the said circumstances that the Management prepared feeder category Rules as per the resolution dated 01.06.2016 and forwarded it for the approval of the Joint Registrar. Ext.P4 is the approved said feeder category Rules.
In fact, it is in the said circumstances that the Management prepared feeder category Rules as per the resolution dated 01.06.2016 and forwarded it for the approval of the Joint Registrar. Ext.P4 is the approved said feeder category Rules. The case of the petitioners is that there occurred certain mistakes in the pay fixation and thereupon, the Managing Committee passed another resolution in its Meeting held on 11.07.2018 requesting the Joint Registrar to grant retrospective operation to Ext.P4 feeder category with effect from 01.01.2003, in order to rectify the mistakes in granting promotion to the employees. Ext.P6 which carried such a request was declined as per Ext.P8. 2. A counter affidavit was filed by the first respondent before the writ court. It is stated therein that upon verification of the resubmitted application from the appellants to get approval to the pay fixation of the 2nd respondent in the post of Secretary, it was noticed that he was granted promotion to the post of Secretary on 08.02.2011 whereas the said feeder category was approved only with effect from 18.05.2017. As the feeder category was approved only on 18.05.2017, promotion granted earlier, when no such post was in existence could not be approved, it is stated in the counter affidavit. In short, contending that Ext.P8 order is perfectly in order, the respondents sought for dismissal of the writ petition. After considering the rival contentions with reference to the relevant provisions of law the learned Single Judge dismissed the writ petition. However, it is ordered that since the 2nd petitioner was appointed as the Secretary with effect from 08.02.2011 and had worked as such, during the period up to Ext.P8 the payments already effected to him for the said service should not be recovered. It is dissatisfied with and feeling aggrieved by the said judgment that the appellants herein preferred this appeal. 3. Heard the learned counsel for the appellants as also the learned Government Pleader. 4. A careful scanning of the pleadings of the appellants would reveal that their contention is that the Managing Committee of the appellant society got power to make modification in the feeder category rules to rectify its defects, if any, while granting promotion.
3. Heard the learned counsel for the appellants as also the learned Government Pleader. 4. A careful scanning of the pleadings of the appellants would reveal that their contention is that the Managing Committee of the appellant society got power to make modification in the feeder category rules to rectify its defects, if any, while granting promotion. It is also their case that such a power is exercised by the Managing Committee in order to avoid reversion of the employees, who were granted promotion, and thereby, to avoid, virtually a chain of reversions. According to the appellants, they sought for only an innocuous and inconsequential relief under Ext.P6 i.e. to give retrospective operation to the feeder category from 01.01.2003 instead of 18.05.2017 solely to avoid reversion of promotees to various posts. The learned Single Judge had failed to appreciate the aforesaid aspects as also of the fact that there was no illegality in the promotion given to the employees. Shortly stated the contention is that the amendment was sought with retrospective effect in the feeder category only to rectify mistakes with a view to avoid reversion of employees. 5. The learned Counsel appearing for the appellants, drew our attention to Section 80(3) of the Kerala Co-operative Societies Act (for brevity, 'the Act'). A bare perusal of the said provision would reveal that it confers power to frame rules retrospectively or prospectively only to the Government. The said Section reads thus : 80. Officers, etc. of Co-operative Societies :- (3) The Government shall, make rules either prospectively or retrospectively regulating the qualification, remuneration, allowances and other conditions of service of the officers and servants of the different classes of societies specified in sub-sec.(1). 6. In the context of the contentions raised, it is also relevant to refer to sub-rule (1) of Rule 185 (in short, the 'KCS Rules'), which reads thus : 185. Promotion.-(1) Subject to the provisions of sub-rules (2), (3) and (4), appointments to the categories of posts in a society, other than those mentioned in sub-rules (2), (3) and (4), shall be made by promotion, on the basis of seniority in the feeder category. The feeder categories for this purpose shall be specified by the society by framing suitable regulations, with the approval of the Registrar.
The feeder categories for this purpose shall be specified by the society by framing suitable regulations, with the approval of the Registrar. [Provided that if the senior employee/ employees in the feeder category to a post relinquishes promotion, the immediate junior to the employee/ employees in the feeder category shall be promoted. Provided further that if all the employees in the feeder category to a post relinquishes promotion an employee on the immediate lower category shall be promoted to the post after promoting him to the feeder category post by creating a supernumerary post. The supernumerary post so created shall be abolished on promotion of the said employee to the higher posts.] [Provided also that the promotion from sub staff category to the post of Junior Clerks shall be made only if such employees are having the required qualification and minimum three years service in the feeder category.] [Provided also that no employee of a society shall be promoted to the next higher post, if he has not successfully completed a short term training programme/ course conducted by the following institution on the subject which is relevant to the objects/ activities of the society in which he is employed :- (a) Short Term Credit Societies.-Agricultural Credit Staff Training Institute (ACSTI) or Institute (ACSTI) or Institute of Co-op. Management, Thiruvananthapuram/ Kannur of Kerala Institute of Making the Best (KIMB), Alappuzha. (b) Long Term Credit Societies.-Staff Training College of Kerala State Co-operative Agricultural and Rural Development Bank or Kerala Institute of Making the Best (KIMB) Alappuzha. (c) Other Societies -Institute of Co-operative Management, Thiruvananthanum/Kannur or Kerala Institute of Making the Best (KIMB), Alappuzha or Kerala Institute of Co-operative Management, Neyyardam]. Provided also that each employee of a Co-operative society, in the ministerial cadre shall be deputed by the committee, for a short term training programme conducted by the institutions mentioned above or any other institutions approved by the Registrar of Co-operative Societies, once in three years, and no exemption shall be granted by the Government/Registrar of Co-operative Societies/the Committee in attending and completing the training. Provided further that no annual increment shall be sanctioned to the employee, (after the expiry of four years if he has not attended the training programme). 7.
Provided further that no annual increment shall be sanctioned to the employee, (after the expiry of four years if he has not attended the training programme). 7. Thus, a mere glance at those provisions would reveal that Section 80(3) of the KCS Act and Rule 185(1) of the KCS Rules are different and distinct and they operate on different fields. The power to make laws in respect of Co-operative Societies registered under the KCS Act is within the exclusive domain of State Legislature since it is a subject covered by Entry 32 of List II in the VIIth Schedule of the Constitution. Section 80 of the KCS Act occurring in Chapter XII relates to establishment. As per sub-section (3) of Section 80 of the KCS Act the State is empowered to make rules, prospectively or retrospectively to regulate the qualification, remuneration, allowances and other conditions of service of officers and servants of the different classes of societies specified in sub-section (1) thereof. Rule 185 occurring in Chapter XV of the KCS Act is actually part of subordinate legislation and it relates to promotion, conduct of examination by the Co-operative Service Examination Board, relaxation of qualification other than basic qualification and pass the Cooperative examination specified in sub-rule (5). 8. Thus, it is evident that Rule 185(1) empowers the society to frame suitable regulations for the purpose of specifying categories for the purpose of promotion, with the approval of the Registrar. Obviously, it is invoking the said power conferred under sub-rule (1) of Rule 185 that the Managing Committee of the society passed a resolution on 01.06.2016 specifying the feeder category and forwarded it for the approval of the Joint Registrar. The feeder category was approved by the Registrar as can be seen from Ext.P4. In that context, it is worthwhile to refer to Clause (1) of Ext.P4, which reads thus : 9. Ext.P4 thus makes it clear that the feeder category prepared and forwarded for approval of the Joint Registrar and subsequently, approved by the Registrar, is to the effect that the Rules there under would come into operation only with effect from the date on which the Registrar grants approval for the same. The order of approval is dated 18.05.2017. Needless to say that in such circumstances, feeder category approved by the Registrar took its effect from 18.05.2017.
The order of approval is dated 18.05.2017. Needless to say that in such circumstances, feeder category approved by the Registrar took its effect from 18.05.2017. It is only thereafter that another resolution was passed by the Managing Committee of the first appellant. Ext.P6, which is the copy of the resolution dated 14.07.2018 would show that as per the same it was decided to request the Joint Registrar to give retrospectivity to the approval to the feeder category with effect from 01.01.2003. As decided under Ext.P6 requisition was made to the Joint Registrar and then the appellants approached this Court by filing WP(C).No.26429/2018. Without considering the contentions raised therein on merits, this Court disposed of the writ petition with a direction to the first respondent to consider Ext.P6 resolution and to take a decision thereon, after following due procedure, as expeditiously, but within the time limit stipulated therein. It is the consideration of Ext.P6 in compliance with the directions in Ext.P7 judgment that culminated in Ext.P8 order. 10. In Ext.P8 order, it is stated that appointments/ promotions in a society have to be done in accordance with seniority in the feeder category, going by Rule 185(1) of the 'KCS Rules'. It is specifically stated there under that the 2nd appellant was given promotion to the post of Secretary on 08.02.2011 and the feeder category Rules were framed on 01.06.2016 and forwarded for the approval of the Joint Registrar. It was approved on 18.05.2017. In short, such a promotion was granted to the 2nd appellant in the absence of the said feeder category. The Joint Registrar cannot be found fault with in granting approval to Ext.P4 with effect from the date of its approval, as Ext.P4 itself would reveal that regulation itself was framed in such a manner to give effect to its approval only from the date of its approval by the Registrar. When that is the specific provision incorporated in the feeder category framed and forwarded by the society as can be seen from Clause (1) in Ext.P4, for approval of the Registrar and when the Registrar granted approval as requested for, the appellants cannot attribute anything against the Joint Registrar in the matter of grant of approval, without attaching retrospectivity to it.
The question is whether the appellants got any indefeasible right to seek for retrospective effect to the feeder category merely because they sought as such under Ext.P6 especially, in the light of clause (1) in Ext.P4. A perusal of Ext.P6 would reveal that they are seeking retrospectivity to the feeder category, which was already approved as on 18.05.2017, with effect from 01.01.2003. The Joint Registrar found that there is no specific provision enabling to grant retrospectivity to feeder category which was already approved and consequently rejected the request under Ext.P6, as per Ext.P8. Taking into account the totality of the said circumstances, with reference to the provision under Rule 185(1) of KCS Rules, the learned Single Judge held that there is no illegality in Ext.P8 order. Though various grounds have been raised to challenge the judgment of the learned Single Judge, on a careful consideration of grounds A to D, we do not find any sustainable ground warranting interference with the judgment of the learned Single Judge. There can be little doubt with respect to the position that in invocation of the power under Section 5 of the High Court Act, an appellate interference is not justifiable solely on the ground that another view is also possible on the facts and circumstances of the case. A perusal of the grounds A to D would reveal that there is no case for the appellants that the judgment of the learned Single Judge is infected with any illegality or perversity. The sole reason to assail the judgment of the learned Single Judge is that the fact that retrospectivity was sought for to Ext.P4 feeder category solely for the purpose of avoiding reversion of persons/ employees who were granted promotion, was not properly appreciated by the learned Single Judge. Virtually, the sole ground taken to assail Ext.P8 is that the order in Ext.P8 is against the dictum laid down by this Court in Skaria's case (supra). In such circumstances, the question is what is the dictum laid down there under and whether Ext.P8 is against the said dictum. 11. Paragraphs 5 and 6 in Skaria's case (supra) would reveal the dictum laid down by the Division Bench. “5. Rule 185 (1) of the Rules made under the Cooperative Societies reads as follows : “185.
In such circumstances, the question is what is the dictum laid down there under and whether Ext.P8 is against the said dictum. 11. Paragraphs 5 and 6 in Skaria's case (supra) would reveal the dictum laid down by the Division Bench. “5. Rule 185 (1) of the Rules made under the Cooperative Societies reads as follows : “185. Promotions:-(1) Appointments to higher categories of service in a Society shall ordinarily be made by promotion from among members eligible for appointment to such category in accordance with these rules on the basis of seniority in the feeder category. The feeder category for this purpose shall be prescribed by the society by framing suitable subsidiary regulations with the approval of the Registrar.” (emphasis supplied) As stated above, the Society had made Feeder Category Rules as provided in the latter part of R.183(1) to the effect that the post of Secretary should be filled by promotion. The Society has now sought permission for recruitment to the said post by direct recruitment rather than by promotion. The Joint Registrar granted permission for such conversion. In our view, the latter part of R.185(1) permits modification of the Feeder Category Rules or Regulations with the approval of the Registrar. Therefore, the approval is in order. 6. The next contention is that such Feeder Category Rules or Regulations should provide that the recruitment is always to be by promotion and not by way of direct recruitment. This contention cannot be accepted in view of the word “ordinarily” used in the first part of R.185(1). If the contention of the appellant is to be accepted, it would amount to replacing the word 'ordinarily' by the word “invariably”. (underline supplied) 12. The first appellant in Skaria's case (supra) was an Accountant and appellants 2 to 4 were Senior Clerks in the Society concerned. Challenge in the writ petition was against the order passed by the Joint Registrar of Co-operative Societies granting permission to the Society to amend the Feeder Category Rules framed by the society so as to enable the Society to make direct recruitment to the post of Secretary instead of filling the same by promotion.
Challenge in the writ petition was against the order passed by the Joint Registrar of Co-operative Societies granting permission to the Society to amend the Feeder Category Rules framed by the society so as to enable the Society to make direct recruitment to the post of Secretary instead of filling the same by promotion. Evidently, the Division Bench took note of the position of law then obtained under Rule 185(1) of the KCS Rules and repelled the contention that in terms of the said rule the Feeder Category Rules or Regulations should provide that the recruitment must always be promotion and not by way of direct recruitment occurring in the first part of Rule 185(1). It was held that acceptance of the contention of the appellants would amount to substitution of the expression 'ordinarily' by 'invariably'. Thus, paragraph 6 would reveal the reason for the decision. 13. Obviously, Rule 185(1), since then, underwent a sea change; firstly, it was substituted by SRO.159/98 published in Kerala Gazette No.43 dated 11.02.98 and thereafter, the same was substituted by SRO 369/99 published in Kerala Gazette No.44 dated 28.04.99. The afore-extracted Rule 185(1) would reveal the position subsequent to the substitution brought in as per SRO dated 28.04.99. In fact, as per the said SRO dated 11.02.98 the word 'ordinarily' which was given emphasis by the Division Bench and formed foundation for the conclusion, as can be seen from paragraph 6 in Skaria's case (supra), was deleted w.e.f.11.02.1998. The amended Rule 185(1) was again amended as per SRO 369/99 dated 28.04.99, whereby it was provided that appointment “shall” be made by promotion except in the posts mentioned in sub rules (2), (3) and (4). Thus, it can be seen that after the amendment brought in as per SRO 369/99 dated 28.04.99 appointment shall 'invariably' be made by promotion except in the posts mentioned in sub-rules (2), (3) and (4) of rule 185. Thus, virtually the decision in Skaria's case (supra), in such circumstances, lost its relevance and precedential value. 14. We have already referred to Clause (1) of Ext.P4 which makes it clear that the approved Feeder Category Rules took its effect only from the date of approval by the Joint Registrar in terms of Clause (1) formulated by the Society.
Thus, virtually the decision in Skaria's case (supra), in such circumstances, lost its relevance and precedential value. 14. We have already referred to Clause (1) of Ext.P4 which makes it clear that the approved Feeder Category Rules took its effect only from the date of approval by the Joint Registrar in terms of Clause (1) formulated by the Society. It being so, how can the appellants seek for grant of approval for retrospective operation to it with effect from 01.01.2003, merely because they passed a resolution in that regard. No specific provision was brought to our attention mandating that it is obligatory on the part of the Joint Registrar to approve any such resolution. Certainly, for the reasons assigned hereinabove, the decision in Skaria's case (supra) cannot lend any support to the said claim. 15. Ext.P4 resolution cannot put the Joint Registrar under an obligation to grant approval to any such request. At any rate, the said action on the part of the Joint Registrar in declining the request made under Ext.P6, as per Ext.P8 cannot be said to be illegal or against the provisions of any specific provision under the KCS Act or Rules warranting an interference. Virtually, the writ court has only accepted the said position by declining to interfere with Ext.P8. We do not find any illegality or perversity in the impugned judgment in the said circumstances. Resultantly, this appeal fails and accordingly dismissed.