P.K. Premakumari vs Registrar of Co-Operative Societies

K. Vinod Chandran, J.—Petitioner is aggrieved with the alleged fixation of date by the Registrar while granting exemption from Rule 185(8) of the Kerala Co-operative Societies Rules, 1969, (for short ''the Rules'') being the date of Ext. P4, 13.12.2009. The petitioner joined the service of respondent Bank as Junior Clerk on 01.01.1981. The petitioner''s various promotions are not relevant for the consideration of this writ petition. Suffice it to say, she was promoted to the post of Assistant Secretary w.e.f. 01.01.2009.

Immediately after the promotion of the petitioner to the post of the Assistant Secretary w.e.f. 01.01.2009, a resolution was taken by the Bank as indicated in Ext. P2 on 27.01.2009 appointing the petitioner as the Secretary. The petitioner is said to have been placed in charge of the post of Secretary from 30.06.2006 which definitely, she was not entitled to hold, since she had not been promoted as even Assistant Secretary, the feeder category for promotion to the post of the Secretary; on that date. Subsequently on the request of the respondent Bank, the Government came out with Ext. P3 under Rule 181(2) exempting the Bank from the provisions of item No.(ii) of clause (b) of sub-rule (8) of Rule 185. Hence the respondent Bank was exempted from the condition of five years in the feeder category; in effecting promotion and appointment to the post of Secretary.

However, even then, there was an impediment insofar as the petitioner not having the required qualification of graduation. Hence, a further resolution was taken by the Bank on 27.07.2010 which matter was pending before the official respondents, as per the resolution taken by the Bank on 27.07.2010. Immediately after exemption was granted as per Ext. P3, from complying with the mandatory condition of five years service in the feeder category, the application with respect to exemption on educational qualification was taken up by the Department and the same was allowed by Ext. P4. The Registrar has prescribed the date in Ext. P4 to be the date of promotion of the petitioner to the post of Secretary.

The learned counsel for the petitioner would submit that this Court had consistently held that the Registrar has absolutely no jurisdiction to fix the date and the same has to relate back to the resolution. The counsel for the petitioner has also placed reliance on Ext. P6 decision of this Court.

On going through the facts which are disclosed, if the petitioner is otherwise qualified; looking at clause (b), sub-rule (8) of Rule 185 and a resolution is taken by the Bank to exempt the essential qualification of graduation; for the purpose of promotion to the post of Secretary, then, necessarily the same would have to take effect from the date of the resolution. However, in the present case, it is to be noticed that the petitioner, while resolving to be appointed in the post of Secretary in 2006, was neither in the feeder category nor did she have graduation. It was only in the year 2009 that she was promoted to the post of Assistant Secretary. The petitioner also did not have the academic qualification prescribed being that of graduation. Item (ii) of Rule 185(8)(b) of the Rules reads as under:

185(8)(b)(ii)-Where the academic qualification prescribed is graduation and above, exemption from acquiring the said qualification may be considered if the incumbent satisfied the following conditions namely:-

(i) should have passed JDC or

equivalent

(ii) should have a minimum service of five years in the feeder category

(iii) Should not be less than forty-five years of age.

Hence, if an employee who does not have graduation, has passed JDC or equivalent and has a minimum of five years in the feeder category and also has crossed 45 years of age, the Bank could, by a resolution, grant exemption from the requirement of graduation. In that event, the Registrar would have to definitely grant such exemption from the date of resolution of the Bank.

In the present case, it is to be noticed that the petitioner did not have the required five years experience in the feeder category which the Managing Committee of the Bank could not have resolved to be exempted. That definitely had to be done by the Government. Exemption from satisfying clause (b), sub-rule (2) of Rule 185 was granted only by Ext. P3. In such circumstances, there could be no retrospective approval for the petitioner''s appointment prior to Ext. P3. Looking at the facts of the case, exemption from graduation was resolved by the Bank in the year 2010 on which date Ext. P3 exemption was not applicable. However, when exemption to the required minimum service of five years in the feeder category, was claimed by Ext. P3, the Department had taken up consideration of resolution and passed Ext. P3 order. Definitely the date fixed by the Registrar should relate back to the date of Ext. P3 and not the date of Ext. P4 order. To that end, the afore cited decision would apply in the case of the petitioner. In such circumstances, the petitioner shall be allowed to be appointed and continued in the post of Secretary regularly from 02.09.2011; the date of Ext. P3.

The writ petition is disposed of with the aforesaid modification to Ext. P4.