This writ petition is filed challenging the promotion granted to the 9th respondent as Junior Accountant.
2. The facts involved in the case would disclose that the petitioners joined as Clerks in the 1st respondent bank on 07/11/2003 and 26/06/2003 respectively. According to the petitioners, as per Exts.P1 and P2, feeder category to the next promotion post of Junior Accountant does not include Typists. 9th respondent is a Typist who joined the bank on 17/07/2002. But overlooking Exts.P1 and P2, 9th respondent was promoted as Junior Accountant / Inspector with effect from 17/11/2008.
3. The contention of the petitioner is that Exts.P1 and P2 clearly indicates that Typists cannot be in the feeder category. Ext.P1 is a proposal of Kerala Public Service Commission (KPSC) proposing the Feeder Category Rules. W.P.C.No.26451/2012 2 Ext.P2 is the proceedings of the Administrator of the Bank proposing by which the Feeder Category Rules were modified. Since the bank had promoted the 9th respondent overlooking the Feeder Category Rules, the petitioner submitted a complaint to the Assistant Registrar and Ext.P6 is the said report wherein the Assistant Registrar had indicated that the promotion given to the 9th respondent was not in accordance with the Rules. Same is the view taken by the Registrar also in terms with Ext.P8. Therefore, according to the petitioner, the whole exercise of the bank was to help the 9th respondent and therefore they seek a direction to initiate further action pursuant to Ext.P6 report and a direction to remove the 9th respondent from the post of Junior Accountant / Inspector and redraw the seniority list of Accountant assigning the entitlement of the petitioner and the other similarly situated persons.
4. Counter affidavit is filed by the 9th respondent inter alia contending that as per Ext.P9 Feeder Category W.P.C.No.26451/2012 3 Rules, Typists along with Clerk and Cashier is the Feeder Category to the post of Junior Inspector/Accountant and therefore there is no illegality on the part of the bank to promote the respondent who is admittedly senior to the petitioners.
5. It is also contended that Exts.P1 and P2 will not give any right to the petitioners to claim any change in Ext.P9 Feeder Category Rules in so far as the same had not crystalised into Rules. Reference is made to Section 80 of the Co-operative Societies Act (hereinafter referred to as the Act) and Rule 185 of the Co-operative Societies Rules (hereinafter referred as the Rules) to indicate that the Government in consultation with the State Co-operative Union has to make Rules regulating the qualification, remuneration, allowances and other conditions of service of the officers and servants of the different classes of societies. In regard to promotion Rule 185 applies and the Feeder Category Rules are to be framed by the Society with the W.P.C.No.26451/2012 4 approval of the Registrar.
6. It is also contended that Exts.P6, P7 and P8 are issued without any jurisdiction as there is no right on the part of the petitioners to approach the Registrar or Joint Registrar as the case may be since there is a specific provision under Section 69(2)(d) of the Co-operative Societies Act to approach the Arbitration Court in the event of any dispute regarding seniority.
7. The learned Government Pleader on instructions submits that certain Rules have been framed in 1998 in regard to the promotion to various posts in District Co- operative Banks. No counter affidavit is filed nor any document is produced for verification. Concerned Rule is also not made available.
8. Heard learned counsel for the petitioners, learned Government Pleader and learned counsel appearing for the 9th respondent.
W.P.C.No.26451/2012 5
9. The question to be considered in the above case is whether Exts.P1 and P2 amounts to Feeder Category Rules as provided under the Statute. Section 80(1), 80(2) and 80 (3) of the Co-operative Societies Act reads as under:
"80. Officers, etc. of Co-operative Societies:- (1) The Government shall classify the societies in the State according to their type and financial position.
(2) The Government shall, in consultation with the State Co-operative Union, fix or alter the number and designation of the officers and servants of the different classes of societies specified in sub-section (1).
(3) The Government shall, in consultation with the State Co-operative Union, make rules [either prospectively or retrospectively] regulating the qualification, remuneration, allowances and other conditions of service of the officers and servants of the different classes of societies specified in sub-sec.(1)."
W.P.C.No.26451/2012 6
Rule 185(1) of the Rules reads as under:
185. Promotion.- (1) Subject to the provisions of sub-rules (2), (3) and (4), 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 feeder categories for this purpose shall be specified by the society by framing suitable regulations, with the approval of the Registrar.
Provided that if the senior employee/employees in the feeder category to a post relinquishes promotion, the immediate junior to the employee/employees in the feeder category shall be promoted.
Provided further that if all the employees in the feeder category to a post relinguishes promotion an employee on the immediate lower category shall be promoted to the post after promoting him to the feeder category post by creating a supernumerary post. The supernumerary post so created shall be abolished on promotion of the said W.P.C.No.26451/2012 7 employee to the higher posts.
Provided also that the promotion from sub staff category to the post of Junior Clerks shall be made only if such employees are having the required qualification and minimum three years service in the feeder category.
Provided also that no employee of a society shall be promoted to the next higher post, if he has not successfully completed a short term training programme/course conducted by the following institution on the subject which is relevant to the objects/activities of the society in which he is employed:-
(a) Short Term Credit Societies.- Agricultural Credit Staff Training Institute (ACSTI) or Institute (ACSTI) or Institute of Co-
(b) Long Term Credit Societies.- Staff Training College of Kerala State Co-operative W.P.C.No.26451/2012 8 Agricultural and Rural Development Bank or Kerala Institute of Making the Best (KIMB) Alappuzha.
(c) Other Societies - Institute of Co-
operative management, Thiruvananthapuram/Kannur or Kerala Institute of Making the Best (KIMB), Alappuzha. "or Kerala Institute of Co-
operative Management, Neyyardam."
Provided also that each employees of a co-operative society, in the ministerial cadre shall be deputed by the committee, for a short term training programme conducted by the institutions mentioned above or any other institutions approved by the Registrar of Co-operative Societies, once in three years, and no exemption shall be granted by the Government/Registrar of Co-operative Societies/the Committee in attending and completing the training."
10. Going by the above provisions, it cannot be disputed that it is for the Government in consultation with the State Co-operative Union to make Rules either W.P.C.No.26451/2012 9 prospectively or retrospectively regulating the qualification, remuneration, allowances and other conditions of service of the officers and servants of the different classes of societies specified in sub-sec.(1). Rule 185 indicates that appointments to various categories of posts in a Society shall be made by promotion on the basis of seniority in the Feeder Category and the Feeder Categories for this purpose shall be specified by the Society by framing suitable regulations with the approval of the Registrar. It cannot be disputed that Ext.P9 is such a feeder category Rule that had been passed by the Society as approved by the Registrar. The only contention raised by the petitioners is that Ext.P9 is superseded by Exts.P1 and P2.
11. A Full Bench judgment of this Court in Sathyadevan v. Public Service Commission [2008(1) KLT 289 (FB)] is relevant wherein this Court, having considered the power to make Rules under Section 80 of the Act opined as under:
W.P.C.No.26451/2012 10
"6. It is submitted by the learned counsel for the Public Service Commission that Ext.P5 regulation is a rule made under S.80 of the Co-operative Societies Act and, therefore, it need not be published and thus by Ext.P5 a valid rule has been made. Ext.P5 Government Order framed regulation which is as follows: "In supersession of the orders issued in the Government orders read above, Government are pleased to approve the revised service Regulations of the employees of the District/Central co-operative Banks in the State, appended to this order for adoption by the respective Banks. Government have approved the regulation so that there is some uniformity in the matter of adopting regulations by banks."
Now we will come to S.80 of the Co-operative Societies Act. It reads as follows:
"80. Officers etc. of Co-operative Societies:-- W.P.C.No.26451/2012 11 (1) xx xx xx (2) xx xx xx
(3) The Government shall, in consultation with the State Co-operative Union, make rules (either prospectively or retrospectively) regulating the qualification, remuneration, allowances and other conditions of service of the officers and servants of the different classes of societies specified in sub-s.(1)." It authorises Government, in consultation with the State Co-operative Union, to make rules regulating the qualification, either prospectively or retrospectively, and other conditions etc., but, such rules can be framed only in consultation with the State Co- operative Union. It is not stated in Ext.P5 that such a consultation was done. Admittedly, no such consultation was done. Apart from the above, power to make rule under S.80 is only with the Government and not with the Registrar or General Manager of Societies. Rules made under S.80 are subservient to W.P.C.No.26451/2012 12 those provided for in R.186 as held in Ali v. State of Kerala (2006 (1) KLT 205). At para. 6 of the above decision it is observed as follows:
"6. Rr.185 and 186 occurring in Chapter XV of the K.C.S. Rules, 1969 relate to establishment and S.80 of the K.C.S. Act occurring in Chapter XII of the Act relates to establishment. S.109 confers on the Government power to make rules. Sub-s.(2) provides specific power to frame rules regarding the qualifications of employees of societies. R.186 is referable to the said rule making power, which is statutory and such rule is among those which are required to be made in the manner prescribed in sub-s. (1) of S.109 followed by a rule of laying as provided in sub-s.(3) of S.109. Rr.185 and 186 are therefore part of subordinate legislation while the existence of the rules provided for under S.80 (2) and (3) are essentially subservient to those provided for in Rr.184 and 186. There can be no room for W.P.C.No.26451/2012 13 any provision being made invoking sub-s.(2) or (3) of S.80 in any manner contradicting the contents of Rr.185 and 186 of the Rules." But, since Ext.P5 is with regard to service regulation, even if it is accepted as rule made under S.80, it was altered by Ext.P6 issued by the Government. According to respondents, Registrar prepared model rules and sent to the respective Co-operative Societies and they framed rules and as per the rules, even for direct recruitment for the 50% vacancies earmarked for the employees of the primary societies , degree is necessary. Therefore, it is contended that this is a rule published under S.80, but, S.80 authorises only Government to make rules. Admittedly, the rules made by the Bank or model regulations sent by the Registrar are not rules under S.80 and, therefore, the original R.186 read with Ext.P2 or Ext.P5 regulation amended by Ext.P6 Government Order will not govern the field. Learned counsel for the P.S.C. submitted that Ext.P2 only says that unless amendment of Annexure III to K.C.S. Rules, W.P.C.No.26451/2012 14 old scales of pay will be applicable. But, R.186 was not amended. Even if Ext.P5 is a rule made under S.80 issued by the Government, it is amended by Ext.P6 Government Order. So long as Ext.P6 is valid, Registrar cannot frame model rules or Co- operative Societies cannot make rules on advice of the Registrar which are inconsistent with statutory rules. Registrar or District Co- operative Societies cannot pass rules against the provisions of the Act and Rules or rules under S.80 can be framed only by Government. It is well settled law that a delegated power can be conferred by the delegate upon another. Applicable maxim is "Delegata potestas non potest delegari"
means a delegated power cannot be delegated. The maxim in short is as follows; "Delegatus non potest delegare". This principle was considered by the Supreme Court in Ganpati Singhji v. State of Ajmer (AIR 1955 SC 188). In that case, regulation empowered the Chief Commissioner to make rules. Chief Commissioner made rules. Apex W.P.C.No.26451/2012 15 Court held that action of the Commissioner in delegating the authority to the District Magistrate is ultra vires. But, if sub- delegation is authorised by the Act, the matter is different as in that case there is specific authorisation as held by the Apex Court in Pradyat Kumar v. Chief Justice of Calcutta (AIR 1956 SC 285 at p.291). It is stated by De SMITH in ' Judicial Review of Administrative Action' that even a discretionary administrative power entrusted by a statute to a particular authority cannot be further delegated except as provided in the Statute (See 4th Edition Page 303). In this connection, we also refer to the decision of the Apex Court in Sahni Silk Mills (P) Ltd. v. E.S.I. Corporation ((1994) 5 SCC 346 at p.350 & 351). Therefore, model rule suggested by the Registrar and allegedly adopted by societies is not a valid rule made under S.80 which can be framed only by Government. If R.186 is applicable, as already stated, there is no employee with the basic pay of Rs.250/- and only by Ext.P2 it is made workable. If W.P.C.No.26451/2012 16 Ext.P5 is a valid rule made by Government, as contended by the respondents, it is amended by the Government by Ext.P6.
7. As held by this court in Abdul Rasheed v. Kerala Public Servvice Commission (2002 (3) KLT 405) & Public Service Commission v. Abdul Rasheed (2007 (3) KLT 881) P.S.C. has no power to go beyond qualification prescribed by the rule. Hence, considering R.186, Appendix III to K.C.S. Rules, Ext.P2 and Ext.P5 regulation as amended by Ext.P6, we are of the opinion that petitioners who had qualification of S.S.L.C. with J.D.C. and three years continuous experience are entitled to write the test under the 50% quota reserved for in-service candidates if they are otherwise eligible and rejection of their candidature for lack of qualification cannot be sustained. In Ramesan's case (supra) Ext.P5 regulation was relied on as a rule made under S.80(3), but, it was not pointed out that Ext.P5 was amended by Ext.P6. Since Ext.P5 was amended by Ext.P6, Ramesan 's case is more applicable. W.P.C.No.26451/2012 17 Ext.P6 is still valid. We also note that by interim order of this court dated 3/10/2007 we have allowed the petitioners to participate in the test provisionally, if test is conducted subject to the result of the Writ Petitions. It is submitted that the test is yet to be conducted. So, petitioners herein also shall be allowed to write the test, if they are not otherwise ineligible. Ext.P1 notification was published in the Gazette dated 25.4.2006. More than one and a half years have passed. We make it clear that those who have not approached this court will not get the benefit as they are guilty of laches.
Therefore the position of law is very clear that unless the Rules are made in accordance with the statutory provisions, it will not have any validity. Ext.P1 is only a proposal from KPSC. Ext.P2 is the proceedings of the Administrator signed only by General Manager in-charge. Even assuming for the sake of argument that it is a resolution passed by the Society while Administrator was in post, there is nothing to W.P.C.No.26451/2012 18 indicate that Ext.P2 had been approved by the Registrar. Therefore, I do not think that neither Ext.P1 nor Ext.P2 will override the Feeder Category Rules fixed by the Society as approved by the Registrar.
12. The next question is whether the Registrar or Joint Registrar has any jurisdiction to take a decision on the complaints given by the parties. Ext.P5 is the complaint given by a few persons to correct the anomaly that have occurred in promoting the 9th respondent. Ext.P6 dated 20/03/2012 is a communication between the Joint Registrar to the Registrar apparently to indicate that the 9th respondent was appointed in violation of the KPSC Rules and therefore it is not in accordance with the prescribed procedure. Ext.P7 is another communication issued by the joint Registrar to the Assistant Registrar indicating that on the basis of the report Ext.P6, appropriate action has to be taken and a report has to be filed in that regard. Ext.P8 is the intimation issued by the Registrar to the Joint Registrars W.P.C.No.26451/2012 19 of all the Banks rejecting the request made by certain category of Typists to include them in the feeder category for promotion that too Clerk/Cashier.
13. These recommendations or opinion expressed by the Registrar or Joint Registrar may not have any relevance as contended by the learned counsel for the respondent as the issue has to be decided in accordance with the provisions of the Act. Reference is made to the judgment of the Division Bench of this Court in Raveendran v. State of Kerala [2007(3) KLT 558], Prakasini v. Joint Registrar [2006(1) KLT 199], F.A.C.T.Service Co-operative Society Ltd. v. Balakrishna Menon and others [2007 (3) ILR Kerala 483] wherein this Court had opined that if any dispute arises in connection with employment of officers and servants of the different classes of societies specified in sub Section (1) of Section 80 including their promotion and inter se seniority the same will be decided by the Arbitration Court as provided under Section 69(2)(d) of the Act. No W.P.C.No.26451/2012 20 doubt, if there is any violation of the Rules as such, it may be open for this Court to interfere if the action is apparently illegal or void. But the fact remains that, in this case the petitioner relied upon the inter office communications between the Registrar and Joint Registrar who apparently did not have jurisdiction in the matter. Arbitration Court alone will have jurisdiction in the matter.
14. That being the situation, expression of opinion by the Joint Registrar or Registrar as the case may be will have no relevance and they are not entitled to decide an inter se seniority issue. Of course, their opinion may be relevant for the purpose of amending the Rules; but as matters stand today,when Ext.P9 is in force it is not open for the petitioners to make a claim on the basis of Exts.P1 and P2. Further it is also relevant to note that in a judgment of this Court in O.P.No.13896 of 1993, Ext.P9 Feeder Category Rules were relied upon by this Court and approved the seniority given to respondents 4 and 5 in the said case who were promoted to W.P.C.No.26451/2012 21 the next category.
15. That being the situation, I do not think that as matters stand now, in the absence of any material to indicate that the Feeder Category Rules had undergone an amendment and new rules had been framed superseding Ext.P4, there is no reason to interfere with the promotion of the 9th respondent. There being no merits in the contentions raised by the petitioners this writ petition, this writ petition is dismissed. However, disposal of this writ petition shall not preclude the petitioners from approaching the Arbitration Court in terms with Section 69(2)(d) of the Act if the petitioners are able to produce any other materials to support their claim.
(sd/-) (A.M.SHAFFIQUE, JUDGE) jsr W.P.C.No.26451/2012 22 W.P.C.No.26451/2012 23 W.P.C.No.26451/2012 24