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Judgment
K. Vinod Chandran, J.—The petitioners in all the above writ petitions are Senior Accountants, who claimed promotion to the post of Branch Manager on the strength of the resolution passed by the very same respondent Bank. Since there is slight difference in the grounds of rejection made by the Registrar, the facts of each writ petition are referred to herein below. In W.P. (C) No. 25805/2013, three petitioners, who were promoted to the post of Senior Accountant, respectively on 01.06.2005, 01.07.2005 and 29.06.2005 rely on the resolution passed, by the respondent Bank on 17.06.2011, under Rule 185(8) of the Kerala Co-operative Societies Rules, 1969. As per sub-rule (8) of Rule 185, the Registrar of Co-operative Societies has been conferred with the power to relax the qualification on the request of a Society, which request is supported by a resolution however subject to the condition that the incumbent has the qualification of Junior Diploma in Co-operation (JDC) or equivalent and has completed minimum service of five years in the Feeder Category and also is of age above 45 years. All the petitioners satisfied the necessary conditions which would enable them to get relaxation for consideration of promotion to the higher post of Branch Manager. A valid resolution also was passed by the Bank as is evidenced by Exhibit. P1 to P3, produced along with the writ petition. In fact, the respondent Bank had forwarded four resolutions to the Registrar of Co-operative Societies on the very same day and while one, in the case of one Sri. C.K. Balakrishnan, was approved as per Exhibit. P4, the resolution with respect to the petitioners herein were rejected by Exhibits. P5 to P7. Exhibits. P5 to P7 rejection orders contained the very same ground that there were persons with graduate qualification in the seniority list, who were juniors to the petitioners, but who had more than twenty years service in the respondent Bank.
This rejection obviously was based on the proviso to Rule 185(8), which is extracted hereunder.
Provided that service of five years in the feeder category can be relaxed in the case of those who have completed fifty three years of age and there should not be a qualified graduate who has completed twenty years of service in the same post in the feeder category, junior to that incumbent.
The proviso extracted herein above is a further relaxation granted to employees who have completed 53 years from having the five year service in the Feeder Category, as is stipulated in clause (b) of sub-rule (8). In granting such relaxation it was a condition that there should not be any qualified graduate who has completed 20 years of service in the same post in the Feeder Category, junior to the incumbent, who is sought to be granted the benefit of relaxation. This condition would be applicable only if the respondent Bank attempts to promote an employee above the age of 53 years, who does not have the required five year service in the Feeder Category, as is prescribed by sub-clause (b) of sub-rule (8). The rider to the proviso does not have any effect on clause (b) to sub-rule (8) of Rule 185. In such circumstances, Exhibits P5, P6 and P7 orders are found to be bad and the same are set aside.
In fact, this Court, had, prior to amendment of Rule 185 and after amendment dilated on the powers of the Registrar in granting exemption where a valid resolution has been passed by the respondent Bank. On a resolution being passed by the respondent Bank, the Registrar is duty bound to approve the same, subject however to availability of vacancies and no illegality being perpetrated inter alia of lack of qualification of the persons sought to be exempted. In the instant case it is clear that all the petitioners have the required qualification of JDC and has completed 45 years of age as also served for more than 5 years in the Feeder Category. Sufficient support to this position is available in K.K. Dasan Vs. Registrar of Co-operative Societies and Another and the judgment in W.P. (C) No. 15473/2011 dated 19.08.2011.
W.P. (C) No. 25804/2013 and W.P. (C) No. 26287/2013 proceeds on similar grounds since the rejection made is on the ground of non availability of vacancies. The petitioners in W.P. (C) No. 25804/2013 were promoted to the post of Senior Accountant on 13.08.2005 and 19.12.2006, while the petitioner in W.P. (C) No. 26287/2013 has been promoted to the post of Senior Accountant on 01.08.2007. The resolution with respect to the petitioners in W.P. (C) No. 25804/2013 is evidenced by Exhibits. P1 and P2 dated 13.06.2012 and 10.08.2012, while the resolution of the petitioner in W.P. (C) No. 26287/2013 is evidenced by Exhibit. P5 dated 02.01.2013. The rejection orders are produced in the respective writ petitions as Exhibit. P3 and P4 and Exhibit. P6. The rejection orders are based on the common ground that there are no available posts in the respondent Bank.
The learned counsel for the petitioners in W.P. (C) No. 25804/2013 pointedly refers to Exhibit. P5, which is the recommendation made by the Joint Registrar (General) to the Registrar of Co-operative Societies regarding the resolutions passed by the respondent Bank. The Joint Registrar has specifically mentioned the vacancies falling due in the year 2012 and it has also been recommended that exemption application for relaxation of qualification of the employees, in the Feeder Category, as resolved by the Bank may be considered favorably. Exhibit. P6 series again refers to the various vacancies arising in the Bank in the year 2013. Exhibit. P7 series are relied on by the petitioners in W.P. (C) No. 25804/2013 to contend that in fact there were promotions made from the post of Senior Accountants who had the qualification prescribed and this would belie the contention of the Registrar that there were no available vacancies in the respondent Bank.
The learned Senior counsel appearing for the petitioner in W.P. (C) No. 26287/2013 would also assail the relaxation given to one of the employees in the Cadre of Senior Accountant, namely one Sri. C.K. Balakrishnan, whose exemption application alone was favorably considered by the Registrar. The learned Senior Counsel also would rely on Food Corp. of India and Others Vs. Ashis Kumar Ganguly and Others, to assail the same as discriminatory. The learned Government Pleader however points out that there is a ratio of 3:1 prescribed to fill up the post of Branch Manager by way of promotion and direct recruitment and the direct recruitment has to be made by the Public Service Commission from a rank list prescribed after conduct of examination. In such circumstances, filling up of the vacancies in the post of Branch Manager without due regard to the ratio prescribed would lead to further complications; when such direct recruitment are attempted, is the contention.
Looking at the records produced in the aforesaid writ petitions, it is evident that there were vacancies available in the post of Branch Manager to which an employee who was exempted from possessing the required qualification and others who had the required qualification were promoted. It is also to be noticed that such promotions, orders of which are exhibited in the writ petitions, were only provisional and would definitely be subject to any direct recruitment made by the Public Service Commission.
So much of the vacancies which are set apart for direct recruitment necessarily will have to be conceded to the candidates who qualify in the examination conducted by the Kerala Public Service Commission, when the process is undertaken. I have also heard the learned Standing Counsel for the Kerala Public Service Commission who submits that the process of direct recruitment in all the Districts is underway and would be finalised in a short time. On such direct recruitment being made necessarily the ratio would have to be followed and necessary adjustments made in the promotions made provisionally. However, the vacancies remaining in the respondent Bank need not be left vacant and that would only detrimentally affect the business of the respondent Bank. The posts set apart for direct recruitment, even if filled up with those who have been granted relaxation, they would be continued only provisionally in the promoted post. Definitely on a recruitment being effected by the Public Service Commission for the purpose of maintaining the ratio; adjustments would have to be made and that is more so indicated in all the promotion orders produced herein also, where the promotions have been categorized as provisional. The promotions given to the petitioners herein also definitely would be provisional on the relaxation being permitted.
Exts. P3 and P4 in W.P. (C) No. 25804/2013 and Ext. P6 in W.P. (C) No. 26287/2013 are hereby set aside. The reason stated in the said orders, being non-availability of vacancies, is found to be factually incorrect, especially in the context of no direct recruitment having been effected, till date. In the circumstances, on the strength of the findings above, the Registrar is directed to grant relaxation to all the petitioners, since as evident from the records of the writ petitions, all the petitioners satisfied the conditions prescribed under clause (b) of sub-rule (8) of Rule 185. The resolutions passed by the respondent Bank with respect to the petitioners herein, granting relaxation of educational qualification of graduation; would stand approved and the petitioners would be considered, of course provisionally, for the next arising vacancies in the post of Branch Manager or be promoted to the existing vacancies. Though relaxation in educational qualification is permitted, their regularisation in the promoted post would depend upon the post available in accordance with the ratio of 3:1, when direct recruitment is effected.
The writ petitions are allowed. Parties are left to suffer their costs.