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2020 Supreme(Ker) 39
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.K. Jayasankaran Nambiar, J.
K.S.Rema Devi – Petitioner
Versus
The Kerala Co-Operative Service Examination Board and Ors. – Respondents
W.P(C).No.20736 OF 2019(N)
Decided On : 22-01-2020
For the Petitioner: Sri. T.R.Harikumar, Sri. Arjun Raghavan, Advs.
For the Respondent: Smt. S.L. Sylaja, SC, Sri. Bimal K. Nath, Sr. Government Pleader, Sri. P.C. Sasidharan, SC
IMPORTANT POINT
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 Rule also mandates that the feeder categories for this purpose shall be specified by the Society, by framing suitable regulations with the approval of the Registrar. In my view, the said Rule only mandates that when the approved Feeder Category Rules mandate that appointment to any posts in the Society shall be effected only by promotion on the basis of seniority in the feeder category, then that method alone has to be adhered to by the Society concerned, for the purposes of filling up vacancies to the post
Headnote:
Feeder Category Rules -The Kerala Co-operative Societies Act and Rules-Rule 185(1)- Promotion on the basis of seniority in the feeder category- It provides for promotion on the basis of seniority in the feeder category. After the amendments brought into our Constitution, and pursuant to the inclusion of the Co-operative principles as guiding principles in the Kerala Co-operative Societies Act, the said principles ought to guide the interpretation of the provisions of the said statute. Thus viewed, Rule 185 should be interpreted in a manner that would promote functional autonomy and independence of Co-operative Societies and a Society should be given the freedom to effect appointments in the manner specified in its approved Feeder Category Rules, whenever there is no eligible candidate for promotion in the feeder category
Statement of facts:
The petitioner was promoted as an Accountant with effect from 27.1.2019 and Ext.P1 Feeder Category Rules, that were in vogue in the 4th respondent, was amended by Ext.P10 Rules which took effect from 30.1.2019-Ext.P7 Notification and Ext.P9 order of the 2nd respondent are impugned, and there is a further prayer for a declaration that Ext.P10 Feeder Category Rules are ultra vires the provisions of the Kerala Co-operative Societies Act and Rules.
Finding of the court:
The petitioner herein is at any rate ill-suited to maintain this writ petition, on account of her not being eligible, as per the Feeder Category Rules, to be promoted to the post of Secretary under the 4th respondent
Result:
Dismissed
JUDGMENT :
The petitioner is stated to be working as an Accountant in the 4th respondent Society, and was appointed as Secretary in charge with effect from 1.6.2017. The facts in the writ petition would reveal that the petitioner was initially appointed as Peon on 4.11.2003. She was later promoted as Junior Clerk with effect from 1.5.2005 and thereafter as Senior Clerk with effect from 1.11.2013. While she was working in the post of Senior Clerk, the 4th respondent Society was reclassified as a Class-III Society with effect from 28.3.2017. Immediately thereafter, a vacancy arose in the post of Secretary with effect from 31.5.2017, consequent to the retirement of the erstwhile incumbent. It was therefore that the petitioner was put in charge as Secretary with effect from 1.6.2017 when the post of Secretary was vacant. During the said period, the petitioner preferred Ext.P2 representation before the 2nd respondent on 18.6.2018, followed by a similar representation dated 15.10.2018 before the 4th respondent, seeking promotion as Accountant with effect from 1.6.2016, and thereafter as Secretary in accordance with the Feeder Category Rules pertaining to the 4th respondent Society as approved by the 2nd respondent. While the said representation remained unanswered, the petitioner preferred a further representation [Ext.P4] dated 17.10.2018 before the 1st respondent Board referring to the earlier representation, and seeking a deferment of the proposal for direct recruitment that had been notified by the 1st respondent Board to the post of Secretary in the meanwhile. To the last mentioned representation, the petitioner received Ext.P5 reply indicating that her proposal was being considered, and she was asked to submit a report with regard to the additional financial burden that the 4th respondent Society would have to incur consequent to any promotion granted to her to the post of Secretary. While the petitioner furnished the details sought for, the 1st respondent proceeded to issue Ext.P7 Notification dated 27.12.2018 notifying the post of Secretary in the 4th respondent Society for filling up through direct recruitment. On coming to know of the said Notification, the petitioner immediately filed W.P.(C).No.1532/2019 before this Court pointing out that the Notification had been issued at a time when Ext.P2 representation preferred by her before the 2nd respondent was pending consideration, and she had been assured of a favourable consideration by the said respondent. By Ext.P8 judgment, the said writ petition was disposed directing the 2nd respondent to consider and pass orders on Ext.P2 representation within a specified time frame. The 2nd respondent thereafter proceeded to pass Ext.P9 order dated 6.7.2019 rejecting the representation of the petitioner, and finding that the petitioner was not included in the feeder category to the post of Secretary for the purposes of consideration of her case for promotion as Secretary. It merits mention at this stage that, in the meanwhile, the petitioner was promoted as an Accountant with effect from 27.1.2019 and Ext.P1 Feeder Category Rules, that were in vogue in the 4th respondent, was amended by Ext.P10 Rules which took effect from 30.1.2019. In the writ petition, Ext.P7 Notification and Ext.P9 order of the 2nd respondent are impugned, and there is a further prayer for a declaration that Ext.P10 Feeder Category Rules are ultra vires the provisions of the Kerala Co-operative Societies Act and Rules.
2. A counter affidavit has been filed on behalf of the respondents 3 and 4, where the factual averments with regard to the appointment of the petitioner to various posts is denied, and it is clarified that the petitioner commenced her service as Peon only on 4.11.2003, and hence, her promotion to the post of Junior Clerk with effect from 1.5.2005 itself was contrary to the Rule that mandated a minimum service of three years in the feeder category before being promoted to the next higher post. It is t
