BY AD vs C.D.DILEEP

SMT.NISHA BOSE, SR.GP SRI.RAMAKRISHNAN.P R8 – THIS WRIT APPEAL WAS FINALLY HEARD ON 24.03.2025, THE COURT ON 2.4.2025 PASSED THE FOLLOWING: 3 WA No.1525 of 2024 2025:KER:27523 Muralee Krishna, J. JUDGMENT This writ appeal is filed under Section 5(i) of the Kerala High Court Act, 1958 by the additional 6th respondent in W.P.(C)No. 35140 of 2019. The writ petition was one filed under Article 226 of the Constitution of India by the respondents 1 to 3 herein, seeking the following reliefs: “(i) To call for the records leading to the Ext.P9 order of the 5th respondent Bank and to quash the Ext.P9 by issuance of a writ of certiorari or any other appropriate writ, order or direction. (ii) To declare that the Ext.P10 Government Order is not applicable to the petitioner's service conditions. (iii) Issue a writ of mandamus or any appropriate writ or order directing the 3rd respondent to rescind leading to the Ext.P9 order of the 5th respondent Bank. (iv) Issue a writ of mandamus or any appropriate writ or order directing the 3rd respondent to direct the 5th respondent Bank to pass fresh resolution and orders for changing the category of the petitioners to junior clerk. (v) Issue a writ of mandamus or any appropriate writ or order directing the 3rd despondent to consider and pass orders in the pending Ext.P11.” 2. As per the impugned judgment dated 30.06.2022 the learned Single Judge allowed the writ petition and set aside Ext.P9 4 WA No.1525 of 2024 2025:KER:27523 communication dated 21.11.2019 of the 8th respondent send to respondents 1 to 3, declaring that Ext.P10 order of the Government dated 25.07.2015 cannot override the provisions of Ext.P2 By-laws in the Society; with a consequential direction to the competent Authority of the Society to consider the claim for promotion of respondents 1 to 3 as expeditiously as possible, but not later than two months from the date of receipt of a copy of that judgment.

3. The writ petitioners-respondents 1 to 3 were appointed in the 8th respondent Co-operative Bank as Appraisers on

02.06.2016, by completing the regular recruitment process. According to respondents 1 to 3, they are qualified for the post of Junior Clerk by way of category change on completion of three years of service as per Ext.P2 feeder category sub-rules of the Bank and circular No.57 of 2003 issued by the 5th respondent. On

02.06.2019 there was a vacancy of Junior Clerk available in the Bank and hence respondents 1 to 3 submitted Ext.P8 representation dated 11.11.2019 before the 8th respondent Bank for category change. The said representation was rejected by the Managing Committee of the Bank as per the decision dated 5 WA No.1525 of 2024 2025:KER:27523

15.11.2019 and the same was intimated to respondents 1 to 3 by Ext.P9 communication dated 22.11.2019. It was citing the reason of Ext.P10 Government Order dated 15.07.2015, representation of respondents 1 to 3 was rejected by the Bank.

4. Heard the learned counsel for the appellant, the learned Senior Government Pleader, the learned counsel for the respondents 1 to 3 and the learned counsel for the 8th respondent.

5. The learned counsel for the appellant would submit that Ext.P10 order of the Government was issued much prior to the joining in service by respondents 1 to 3 and hence binding on the parties. The appellant is losing his chances of promotion by virtue of the judgment of the learned Single Judge and hence interference in this appeal is highly necessary.

6. The learned counsel for respondents 1 to 3 - writ petitioners argued that by the restrictive clauses in Ext.P10, the provisions of Ext.P2 By-laws cannot be made otiose unless the By- laws are amended. Moreover, Ext.P10 is applicable only to contract employees and not to the employees appointed on a regular basis. The learned Single Judge has correctly appreciated the facts and passed the impugned judgment. 6 WA No.1525 of 2024 2025:KER:27523

7. The learned Senior Government Pleader would argue that the post of Appraiser is not a feeder category to the post of Junior Clerk/Junior Cashier.

8. The respondents 1 to 3 were appointed in the 8th respondent Bank in the post of Appraiser with effect from

02.06.2016. As per Ext.P1 staff pattern of the 8th respondent, there are altogether 13 categories of posts approved in the Bank. Category 10 is the Appraiser having five posts. As per Ext.P2 feeder category sub-rule, appointment of Junior Clerk/Cashier is shown in serial No.6. The appointment to that post is by way of direct recruitment and by way of by transfer from the post of Typist/Data Entry Operator/Appraiser with specified qualification and completed three years continuous service Bank/Attendant and Peon posts with specified qualification and completed three years continuous service in the Bank by promotion. In Ext.P2, it is also stipulated that promotions from the post of Appraiser to other Ministerial and Supervisory cadres can be given to those employees who were in service prior to

15.07.2015 alone and such promotions cannot be given by category change to the Appraisers who were appointed after that 7 WA No.1525 of 2024 2025:KER:27523 date.

9. The appointment of respondents 1 to 3 was made after Ext.P10 order of the Government. On the basis of Ext.P10, the Bank rejected Ext.P8 common representation dated 11.11.2019 submitted by respondents 1 to 3 for category change. From Ext.P10 it could be gathered that the said order pertains to service conditions of persons employed on a commission basis. As per Clause 13 of Ext.P10 it is stipulated that the Appraiser posts which require technical knowledge have to be retained as a Class and no promotion to the post of Ministerial/supervisory cadre can be given from that post. However, in Clause 13 it is clarified that the restriction against promotion of Appraisers to the higher post of Ministerial and supervisory cadres is not applicable to the persons who are working as regular employees as on the date of that order, in accordance with the feeder category Rules. Thus, in Ext.P10 there is a restriction in giving promotion to the Appraisers who entered service after 15.07.2015 to the post of Junior Clerk/Junior Cashier by way of category change. The learned Single Judge failed to properly appreciate these aspects, which resulted in allowing the writ petition. The impugned judgment is, therefore, 8 WA No.1525 of 2024 2025:KER:27523 liable to be set aside. In the result, the writ appeal is allowed by setting aside the impugned judgment dated 30.06.2022 in W.P.(C)No.35140 of 2019 and the writ petition stands dismissed. Sd/- ANIL K.NARENDRAN, JUDGE Sd/- MURALEE KRISHNA S., JUDGE