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Judges : K.S.RADHAKRISHNAN,K.BALAKRISHNAN NAIR
M.M.Rajappan - Appellant
Versus
R.Vasudevan Nair - Respondent
Case No : WA No 3918 of 2001
Decided On : 03/11/2002
Advocates Appeared :
For the Petitioner: T.R. Ramachandran Nair, Advocate. For the Respondent: R1 P.K. Behanan, Advocate, R4-R6 Lal George (Govt. Pleader), R2 K.R. Kurup, Advocate.
Kerala Co-operative Societies Act – S. 80 109 – Kerala Co-operative Societies Rules, 1969 – R. 185 186 200 – Promotion in Co-operative Societies – The question that has come up for consideration in this case is whether R. 200 of the Kerala Co-operative Societies Rules, 1969 would save the right of the writ petitioner who had entered service prior to 1.1.1974 for promotion to the post of General Manager de hors sub-s. (3A) of S. 80 of the Kerala Co-operative Societies Act and sub-r. (4) of R.185 read with sub-r. (1B) of R. 186(1) of the Kerala Co-operative Societies Rules – Learned Single Judge took the view that the R. 200 would still save the petitioner and allowed the Writ Petition and quashed Ext. P4 letter of the Joint Registrar and directed the Registrar of Co-operative Societies to accord sanction for appointment as General Manager – Held, Mere fact that he had a right to get promotion prior to 1.1.1974 and by the then existing bye - laws would not mean de hors any statutory provision he is entitled to get promotion – Court is of the view R. 200 does not save those rights– R. 200 saves only those rights which are saved by R.200 – Further under S.80(3) of the Act Government could make rules either prospectively or retrospectively regulating qualification and other conditions of service –Court is of the view if at all persons who entered service prior to 1.1.1974 have got a right that is an inchoate right– There is nothing to show that an act was done or any advantage taken of to term it as accrued right–The contention of the petitioner that right has been accrued to him which has been saved by R. 200 and consequently all statutory amendments effected subsequently cannot have the effect of taking away that right has to be rejected –There is a clear provision in the parent statute that is, Co-operative Societies Act that is, S. 80(3A) which specifically states that notwithstanding anything contained in this Act or the rules made or orders issued thereunder or in the bye-laws of any society relating to the recruitment and conditions of service of officers and servants of societies, all appointments officers and servants of the societies mentioned in the Schedule for which direct recruitment is resorted to shall be made from a select list of candidates furnished by the Kerala Public Service Commission –This provision is in the parent Act employing a non-obstante clause – A Section beginning with non-obstante clause gives the enacting part of Section in case of conflict an overriding effect– R.200 cannot take away or nullify the effect of any provision in the parent Act– S. 80(3A) was given effect to fully by Rr.182(3), 185(1) and 185(4) read with R.186(1) (1B)– R.200 cannot be interpreted so as to set at naught those provisions in the parent Act supplemented by the amended rules–Court istherefore of the opinion that R. 200 does not save those persons who entered service prior to 1.1.1974 from the rigor of statutory provision of S. 80(3A) read with Rr. 109(1)(XV), 182 (3), 185(1), 185(4) read with R.186 (1) (1B)–In such circumstances Court is of the view learned single Judge was not justified in taking the view that persons like the petitioner are entitled to get promotion to the post of General Manager de hors the amendment –Court therefore declare that the Registrar has rightly rejected approval of appointment of the writ petitioner– Appeal is accordingly allowed– Judgment of the learned Judge is set aside– Appeal Allowed
Radhakrishnan, J.
The question that has come up for consideration in this case is whether Rule 200 of the Kerala Co-operative Societies Rules, 1969 would save the right of the writ petitioner who had entered service prior to 1.1.1974 for promotion to the post of General Manager de hors sub-section (3A) of Section 80 of the Kerala Co-operative societies Act and Sub-rule (4) of Rule 185 read with sub-rule (1B) of Rule 186(1) of the Kerala Co-operative Societies Rules. Learned single judge took the view that the Rule 200 would still save the petitioner and allowed the writ petition and quashed Ext. P4 letter dated 31.3.2001 of the Joint Registrar and directed the Registrar of Co-operative Societies to accord sanction for appointment as General Manager.
2 Writ petitioner entered service of the Idukki District Co-operative Bank prior to 1.1.1974 and is now working as Senior Deputy General Manager of the Bank. He had B.com with Co-operation which was sufficient qualification for promotion to the post of General Manager prior to the coming into force of Rule 185 of the Rules. As per Clause 33(iii) of the bye-laws of the Bank post of General Manager could be filled up by promotion with the prior approval of the Registrar of Co-operative Societies. The Bank however passed a resolution dated 29.11.2000 resolving to promote the petitioner as General Manager and sought approval of the Registrar of Co-operative Societies. Resolution was forwarded by letter dated 30.11.2000 to the Registrar of Co-operative Societies which stated that as per Rule 200 of the Co-operative Societies Rules writ petitioner is eligible for promotion to the post of General Manager though entered service prior to 1.1.1974. Writ petitioner was then posted as General Manager on 1.1.2001.
3. Registrar of co-operative Societies by letter dated 31.3.2001 however refused approval stating that as per G.O. (P) No. 68/99/Co-op. dated 19.4.1999 substantive vacancies in the post of General Manager of District Co-operative Bank be filled up only by direct recruitment. It was also stated that retrospective effect was not given to the said order nor would the incumbent get protection under Rule 200 of the Kerala Co-operative Societies Rules. Aggrieved by the refusal of the Registrar of Co-operative Societies to approve the appointment, writ petition was preferred.
4. Learned single judge took the view that even though Rules 185 and 186 were amended, Rule 200 stipulated that the amended rules should not be interpreted as disqualification for promotion to any higher post or posts to the employees in service of a co-operative society as on the first January 1974 provided they possessed the qualification if any prescribed in the bye-laws or other service regulations of such society. Learned judge held that in spite of amendment of Rules 185 and 186 prescribing the avenues and qualification for promotion to different posts. If the person who is in service on or before 1.1.1974 is possessed of the qualification prescribed in the bye-laws or other service regulations of the co-operative societies, his promotion to the higher post cannot be denied by contending that he is not possessed of higher qualification prescribed by subsequent amendment of the rules or the avenue for promotion to a particular post is taken away by the subsequent amendment of the rules. Learned judge therefore quashed Ext. P4 order of the Registrar declining approval to the appointment of the writ petitioner. Aggrieved by the same, this writ appeal has been preferred by the sixth respondent in the writ petition.
5. In view of the importance of the matter, we directed the Government Pleader to file a counter affidavit in the writ appeal. Consequently a detailed counter affidavit was filed by the Registrar of Co-operative Societies. When the matter came up for hearing we heard learned counsel for the appellant, Sr. T.R. Ramachandran Nair, Counsel for the writ petitioner Sri P.K. Behnan, counsel for the Bank S
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