Point of Law: 2nd proviso to Rule 185(1) is that if all employees in feeder category to a post relinquishes promotion, then an employee in immediate lower category shall be promoted to feeder category.

JUDGMENT :

ALEXANDER THOMAS, J.

The aforecaptioned writ appeal has been directed against the impugned judgment dated 22.03.2023, rendered by the learned Single Judge dismissing WP(C) No.9880/2022. The appellant herein is the petitioner in the WP(C) and the respondents herein are the respondents in the WP(C).

2. Heard Sri.Pramod J. Dev, learned counsel appearing for the appellant, Sri.K.P.Harish, learned Senior Government Pleader appearing for official respondents 1 & 2 and Sri.B.S.Swathikumar, learned counsel appearing for R3 & R4 (Co-operative Society Employer).

3. The prayers in the instant Writ Petition (Civil) WP(C) No.9880/2022, filed by the appellant herein, are as follows:

(i) To issue appropriate writ order or direction declaring that the respondents 3 & 4 are bound to fill up the post of Assistant Secretary in the society by promotion.

(ii) To issue a writ of certiorari or other appropriate order or direction quashing Ext.P6 order passed by the 2nd respondent.

(iii) To issue a writ of mandamus or other appropriate order or direction directing the respondents 3 & 4 to fill up the post of Assistant Secretary in the society by promotion expeditiously.

(iv) To issue a writ of mandamus or other appropriate order or direction restraining the respondents 3 and 4 from filing up the post of Assistant Secretary in the society by direct recruitment.

(v) To grant such other and further reliefs as this Hon’ble Court may deem fit to grant in the facts and circumstances of the case.”

4. The learned Single Judge after hearing both sides has rendered the impugned judgment on 22.03.2023 dismissing the above WP(C) on the ground that the claim of the petitioner for promotion to the post of Assistant Secretary/Manager even though he is in a feeder category which is two places down the ladder viz, Head Clerk/Accountant by relying on Rule 185(1), 2nd proviso is not tenable, inasmuch as he is not in the feeder category concerned namely Chief Accountant/Chief Cashier and further that this was done by relinquishing the promotion to the held post in question etc and that therefore, though the vacancy in question arose in the promotion turn of 3:1 ratio, since none was qualified, the respondent Co-operative employer was justified in resorting to the method of appointment by direct recruitment by invoking the “Doctrine of Necessity”. It is this judgment of the learned Single Judge dismissing the above WP(C) that is under challenge in this intra court appeal instituted under Sec.5(i) of the Kerala High Court Act.

5. We have heard both sides in extenso and we are of the considered view for the reasons to be stated hereinafter, that the impugned judgment is a well considered one and is not liable for interdiction at the hands of the appellate Court. Before giving the reasons for arriving at this conclusion, it may be pertinent to refer to the basic facts of the case.

6. The appellant is presently working in the category of Accountant/Head Clerk in the 4th respondent Co-operative Society. While so, the 4th respondent Co-operative Society has issued Ext.P2 selection notification dated 03.08.2021 inviting applications from eligible candidates for selection by direct recruitment to the post of Assistant Secretary. The appellant has claimed that he has applied for appearing in the qualifying examination conducted by the Examination Board concerned and he had appeared and participated in the qualifying examination which is a requisite for promotion to the post of Assistant Secretary/Manager, but later the authorities concerned has refused to publish his result on the ground that he is not in the feeder category of Chief Accountant/Chief Cashier. Further the appellant has asserted that there is a ratio of 3:1 for promotion to the post of Assistant Secretary/Manager for working out the two methods of recruitment namely, promotion and direct recruitment and that g