K.K. Chacko and Another vs N.V. Joseph and Others

Kochu Thommen, Ag. C. J.

This appeal arises from the judgment in O.P. No. 5803 of 1981. The appellants are respondents 4 and 5 in the Original Petition. The learned Judge held that the impugned order Ext P4 was invalid. By that order the Government upheld the approval granted by the Registrar for relaxation of the qualifications granted by the Committee of the second respondent-Society in favour of the appellants-respondents 4 and 5 in purported exercise of the power under Rule 185(2) of the Kerala Co-operative Societies Rules, 1969 (the "Rules"). The learned Judge held that the Registrar had no power under that rule to approve relaxation of the basic academic qualification. The appellants are admittedly not matriculates or persons holding equivalent qualification. Rule 185 says:

Promotions.-(1).....................

(2) It shall be competent for the committee of a society to relax the qualifications of an employee for purpose of promotion in deserving cases with the prior approval of the Registrar and for reasons to be recorded in writing.

The qualifications are those prescribed under Rule 186 which says:

Qualifications.- (1) No person shall be eligible for appointment in any post unless he possesses the qualifications prescribed for the post as shown below:

......

Admittedly the appellants do not have the qualifications prescribed under Rule 186 for the post in question. The first appellant is temporarily holding the post of Secretary and the second appellant is temporarily holding the post of Accountant. It is in these posts that the appellants are sought to be regularised by the Society by relaxing the minimum qualifications.

Although the appellants are not qualified in terms of Rule 186 they are entitled to be regularised provided they have the requisite qualifications in terms of the bye-laws which were in force prior to 1-1-1974 when Chapter XV of the Kerala Co-operative Societies Rules came into force. This is clear from note (1) to Rule 186 as well as Rule 200. Note (1) to Rule 186 says:

Note:- 1. Nothing in this rule shall apply to the present incumbents for the present post they hold.

Rule 200 reads:

Savings - Nothing in these Rules or any rules made thereunder shall operate to debar from enjoyment of any person or employee of any right or privilege of emoluments to which fie is entitled by the term of any contract or agreement or conditions of service subsisting between such person and a Co-operative Society on the date on which these Rules shall come into force. Nothing in these Rules shall be interpreted as disqualification for promotion to a higher post and benefits conferred by these Rules to the existing employees of any Co-operative Society.

These provisions have been considered by this Court in two decisions. In Narayanan Nair v. Kottayam Dist. Co-op, Bank, 1984 KLT 248, a Division Bench of this Court held:

......... On a combined reading of Rules 185, 186 and 200, it has to be held that the right to promotion to the higher posts of those already in service but not possessing the higher qualifications introduced under the Rules, is preserved and protected; the protection is not confined to the emoluments of the posts they held at the time of the coming into force of the Rules. We do not find any reason to restrict the right of such promotion to the immediately higher posts. The safeguard intended was for the incumbents in office and in respect of promotions. A liberal interpretation is warranted having regard to the wording of the Rule and the subject underlying it.

The protection thus secured for the existing employees by virtue of these provisions was again recognised by this Court in Krishnankutty Nair v. Joint Registrar, Co-op. Societies. 1984 KLT 788. It is no longer disputed that the appellants are entitled to be promoted to higher posts provided they were qualified in terms of the bye-laws which existed prior to the coming into force of these Rules.

The Special Bye-laws relating to service conditions of employees, which constituted the contract of employment of the relevant time, provided:

The following shall ordinarily be the minimum academic qualifications to be satisfied by the various categories of staff to be employed by the society. Secretary, Accountant & Clerks

(a) Secondary School Leaving Certificate or its equivalent.

(b) Training in a Co-operative Training institute recognised by the Registrar of Co-operative Societies, the standard of the training imparted being at least equal to that prescribed for Subordinate Personal by the central committee for Co-operative training. But the board will have the right, subject to the approval of the Registrar of Co-operative Societies to relax these conditions in the case of persons whose services in the opinion of the Board are useful for the better and efficient working of the Bank.

(emphasis supplied)

Counsel for the appellants Shri. Ibrahim Khan contends that rule 185 (2) enables the Registrar to grant approval for relaxation of the Rules. The bye-laws also provide that the Registrar is competent to grant such relaxation. as stated in Ext. P4, the Registrar granted approval for the relaxation. Counsel therefore contends that the Government rightly held in Ext, P4 that the relaxation of the qualifications as approved by the Registrar, on the basis of the recommendation of the Society, was correct.

Sub-rule (2) of Rule 185 confers power on the Registrar to give approval for relaxation from the qualifications mentioned under the Rules. The qualifications under the Rules are specified under Rule 186. The power of relaxation referred to in sub-rule (2) of Rule 185 relates to the qualifications specified under the Rules. However an employee who has been in the service of the Society since prior to the date on which the Rules came into force and who was qualified to hold the post which he held or any promotional post in terms of the bye-laws is well protected by Rules 185, 186 and 200, even if he lacks the qualifications prescribed under Rule 186: see Narayanan Nair v. Kottayam Dist. Co-op. Bank, 1984 KLT 248. This position is not disputed by counsel for the present respondents.

However Sri. Radhakrishnan, appearing for the respondents, points out that the appellants are not qualified even in terms of the bye-laws for the promotion they are seeking. They seek to be regularised respectively as Secretary and Accountant for either of which the minimum academic qualification is Secondary School Leaving Certificate or its equivalent (see clause (e) of bye-law (2)). The approval of the Registrar to relax the conditions prescribed under the bye-laws relates only to clauses (b) which deals with practical training, and not academic qualification. Counsel therefore contends that even in terms of the bye-laws the Registrar had no power to grant relaxation from the minimum academic qualifications. This power is confined only to the training qualification mentioned in clause (b) of bye-law (2). Counsel further points out that even assuming that the Registrar had such power to grant approval for relaxation from the minimum academic qualifications, in so far as the bye-laws ceased to operate to the extent that they conflicted with the Rules, what is protected under Rules 185, 186 and 200 is only an acquired right and not a Tight which had not accrued on the date on which the Rules themselves came into force. The Registrar has no power in terms of the bye-laws to grant relaxation after the coming into force of the Rules, if such relaxation would conflict with the qualifications prescribed under Rule 186. These are indeed weighty arguments.

The power to relax mentioned under sub-rule (2) of Rule 185 is, as stated above, a power with reference to the qualifications prescribed under Rule 186 and not with reference to the bye-laws If a person does not have the requisite qualifications in terms of Rule 186, he may be granted relaxation from those qualifications by recourse to the power under Rule 185 (2). That is specially meant for the protection of persons who came into the service of the Society after the Rules came into force, but those who have been in its service since prior to the coming into force of the Rules are sufficiently well protected by reason of Note (1) to Rule 186 as well as Rule 200. The power of the Registrar under the bye-laws is necessarily confined within the bounds of the Rules, unless the power had been exercised in terms of the bye-laws before the Rules came into force. If by such valid exercise of power a right had been conferred upon the employes such right remains protected by reason of Rule 200 and other provisions. In the present case admittedly no such right had accrued. Bye-law (2) says the "following shall ordinarily be the minimum academic qualifications". The word ''ordinarily'' shows that in special cases, the Society could appoint a person who did not possess the requisite qualifications prescribed under the bye-laws. The appellants are persons who had not acquired Secondary School Leaving Certificate or its equivalent . Even so they were holding the post of Clerks. They are entitled to hold this post, for they had been appointed by the Society in terms of the bye-laws before the Rules came into force. But they can be promoted to higher posts only if they are qualified in terms of the bye-laws to hold the higher posts. The higher posts of secretary and accountant are posts for which the minimum academic qualification is S.S.L.C. By reason of acquired rights they hold their present posts even without the minimum academic qualifications, which were ordinarily required in terms of the bye-laws, and they shall not be disturbed from these posts. But the question is can they be promoted to higher posts merely by reason of the protection under Rule 200. As we stated earlier Rule 200 and Note (1) to Rule 186 protect only acquired rights. If such a right had been acquired for promotion by obtaining the relaxation in terms of the bye-laws before the Rules came into force, that right would have been protected. Admittedly no such right had been acquired. Assuming that the Registrar was competent to relax the academic qualification mentioned under clause (a) of bye-law 2, and not merely clause (b), the Registrar had such power only so long as the bye-laws operated in full force prior to the coming into force of the statutory Rules. Once the Rules came into force, the requisite qualifications were these prescribed under Rule 186, and the power of the Registrar under the Rules was to grant relaxation from those statutorily prescribed qualifications for the protection of rights already acquired under the bye-laws. No such right had accrued under the bye-laws, for the Registrar had not granted any relaxation in terms of the bye-laws before the coming into force of the Rules. In the circumstances, while it is competent for the appellants to continue in their regular posts they shall not be, without the qualifications prescribed under the bye-laws, entitled to further promotions. The learned Judge has, in our view, rightly held that Ext. P4 order is invalid. The appeal is dismissed in costs.