The petitioner raises a claim for exemption under Rule 185(8)(b) of the Kerala Co-operative Societies Rules, 1969. 2. The brief facts of the service of the petitioner is that, the petitioner entered the service as junior clerk in the respondent society on 25.07.1980. She was promoted as senior clerk on 01.07.1984 and again as Accountant on 01.10.1989. In the year 2003, specifically on 27.01.2003; Ext.P1 resolution was taken by the 4th respondent deciding to promote the employees of the Bank with effect from 01.04.1999, in accordance with the changed classification of the Bank from that date.
3. Admittedly, the Bank which was a class II Bank, had been classified as a class I Bank, with effect from 01.04.1999. The staff pattern, hence, had to be revised on the basis of its changed classification and the same was done as per Ext.P2. The order of the Registrar, as per Ext.P3, also made the revision of staff pattern retrospectively; with effect from 01.04.1999.
4. The petitioner relies on Ext.P4 resolution, by which, the petitioner's promotion with effect from 01.04.1999, was sought to be ratified in the post of Assistant Secretary. Ext.P4 resolved to grant exemption to the petitioner under Rule 185(8)(b) as on that date, i.e., with retrospective effect from 01.04.1999. The resolution passed by the Bank was forwarded to the Registrar, which was allowed as per Ext.P5. However, the order was made effective only from the date of Ext.P5 order, being 05.01.2006.
5. Subsequently, by Ext.P6, the Bank resolved to exempt the petitioner from the educational qualification of graduation for promoting her to the post of Secretary. The same was declined by Ext.P7 holding that the petitioner did not have five years service in the feeder category post; of Assistant Secretary. The petitioner challenges Ext.P5 to the extent the petitioner has been declined exemption from 1999 and granted only from the date of Ext.P5 order; for promotion to the post of Assistant Secretary and Ext.P7 in toto.
6. The learned counsel for the petitioner as an alternative contention relies on Ext.P9; wherein one another society was granted exemption from sub rule 1 of Rule 186 of the Kerala Co-operative Societies Rules, 1969 and claims for similar consideration of the petitioner's case. That is of no consequence since the exemption in one case cannot result in the same being granted to all. No discrimination can be alleged since the power to grant exemption is the discretion conferred on the Government, which would have to be tested on the individual fact situation.
7. Admittedly, the petitioner was continuing as Accountant from 01.10.1989 onwards. On 01.04.1999, when the classification is said to have been changed, the petitioner was not promoted to the post of Assistant Secretary nor did the Bank seek for a revision of staff pattern on the basis of the re-classification. The Bank continued in the same classification and the petitioner too; in the post to which she was appointed on 01.10.1989. Only later on, in the year 2004, the staff pattern was changed in accordance with which the petitioner could have been promoted to the post of Assistant Secretary, which post was created by the said revision of staff pattern. Such promotion admittedly could have been made only with an exemption since, the petitioner did not possess the essential qualification of graduation for promotion to the post of Assistant Secretary.
8. The respondent Bank took a resolution on 07.01.2005 as is indicated in Ext.P4 to exempt the petitioner, with retrospective effect from 01.04.1999, which was approved by the department by Ext.P5, with effect from the date of Ext.P5. With respect to the claim from 01.04.1999, the petitioner never worked in the post of Assistant Secretary from that date. If at all, a promotion could have been made, that could be only subsequent to the revision of staff pattern. Merely for the reason of the staff pattern being revised with retrospective effect, that does not enable an employee to be promoted retrospectively, since the said employee could not have worked in the said post in the earlier years and the claim of salary in a post in which an employee has not worked, could not have been granted. Ext.P4 can apply only prospectively.
9. At the time when Ext.P4 was passed, the rule as it existed mandated prior approval from the Registrar for any exemption to be effective. However, this Court in Dasan v. Registrar of Co-operative Societies [2007 (1) KLT 581] held that it is within the province of the committee to decide upon the date from which exemption should be granted and the Registrar has to necessarily grant such approval and cannot go behind a valid resolution taken by a Managing Committee. Definitely, the petitioner would have to be granted exemption and continued as Assistant Secretary from 07.01.2005, the date of Ext.P4 resolution. Even the binding precedent as aforecited would not enable a retrospective promotion or a retrospective exemption. Neither does the judgment or the binding precedent referred to, permit a retrospective promotion or a retrospective exemption nor does the rule sanction such retrospectivity.
10. Still, it has to be held that, the petitioner who was promoted to the post of Assistant Secretary and continued thereon; would have to be granted the benefits of the said post from 07.01.2005, the date of Ext.P4 order. Ext.P5 would stand modified to that extent.
11. The petitioner's further claim is with respect to her promotion as Secretary, indicated in Ext.P6. Ext.P6 is dated 16.04.2007 and exempted the petitioner from the essential qualification of graduation and resolved the exemption of such qualification for promotion to the post of Secretary. Such exemption could have been resolved by the respondent Bank, only if the petitioner satisfies the specific conditions in Rule 185 (8)(b) which specifically provides that a person should have been continued for at least five years in the feeder category for such exemption to be granted. The petitioner as per the finding of this Court above, and as revealed from the fact situation was eligible for appointment as Assistant Secretary only from 17.01.2005. Hence, this Court does not find any infirmity with Ext.P7 order of the Registrar, which rejected the resolution granting exemption on the ground that, it did not comply with the condition of the rules with respect to continuance in the feeder category for five years.
12. It is to be noticed that the petitioner is said to have retired from service, in the year 2013 and the petitioner is said to have been continued in the post of Secretary from Ext.P6 onwards. Since, the petitioner had not completed five years at the time of passing of Ext.P6, definitely the petitioner cannot be granted the pay/perks of a Secretary from that date. On 16.04.2007, the petitioner was not qualified to be posted to the post of Secretary, even with a resolution for exemption. However, on the date of completion of five years i.e., on 07.01.2010, if the petitioner had been continuing in the post of Secretary, then, necessarily based on the exemption at Ext.P6, the Registrar should approve the promotion and the petitioner would also then be entitled to the benefits in the promotion post of Secretary; by virtue of such exemption. The petitioner hence would be entitled to be considered as continuing in the post of Secretary from the date she completes five years in the feeder category post of Assistant Secretary. There shall be a declaration to the said effect.
The Registrar is directed to pass orders in accordance with the above directions. The petitioner's benefits shall be computed and if any amounts are still due, the same shall be paid to the petitioner by the respondent Bank within a period of three months from the date of receipt of a certified copy of this judgment.
The writ petition is disposed of.
AMV/16/12/ Sd/-
K.VINOD CHANDRAN, JUDGE