K.P. Radhakrishna Menon, J.@mdashPetitioners are working as Clerk-cum-typist in the various branches of the first respondent-bank. They joined the service of the bank as such on 9-5-1972, 25-4-1973 and 26.2-1972 respectively. The Kerala Co-operative Bank Staff Regulations which came into force from 16-2-1968, for short, The Staff Regulations, prescribes the qualifications and methods of appointments for the various posts in the bank. Regulation 15 deals with the category of employees. The four categories of employees are;-
(i) Offices Grade
(ii) Senior Grade
(iii) Junior Grade and
(iv) Subordinate Grade
Following categories of posts have been included in the Junior Grade
(a) Ledger Clerks.
(b) Clerks.
(c) Steno Typist.
(d) Typists.
(e) Cashier.
(f) Record Keeper.
Regulation 28 prescribes the qualification for the various categories of posts. Yet another regulation which is relevant here is regulation 28(h) This regulation stipulates the qualifications for the post of Junior Assistant. It reads:-
A graduate of a recognised university with not less than 2 years experience in the Bank''s work as ledger clerk or non-graduate with not less than 7 years experience in the Bank''s work.
(emphasis supplied)
2. It is in this background the case of the petitioners requires to be considered. That the petitioners were appointed as clerk-cum-typist, is beyond challenge. A question would immediately arise as to whether the petitioners can be treated as typist included in the Junior Grade within the meaning of Regulation 15. After considering an identical question my brother Justice Viswanatha Iyer has observed thus :
In fact the necessity for promotional avenues for typists had been recognised by all parties, which led to the constitution of the tripartite committee and its recommendations. It cannot therefore, be contended that the grant of a benefit of promotion to a typist was in any manner illegal or uncalled for.
(See the judgment in O.P. Nos. 315, 6309/86 & 5870/88). This court was considering the claim of one Thankamani Ammal who also had been appointed as a clerk-cum-typist in the service of the Bank for promotion as Junior Assistant. The argument of the Bank in that case was that Thankamani Ammal was not entitled to get promotion as Junior Assistant because she was appointed not as a typist but only as a clerk-cum-typist. This argument of the Bank was rejected by the learned Single Judge. The Bank therefore cannot be heard to say that the petitioners are not eligible for promotion as Junior Assistant. That the petitioners have the requisite qualification, going by Regulation 28(h) cannot be disputed. A reference in this connection to the following finding of the learned Judge in the above judgment is profitable :-
Apart from that, regulation 28(h) does not bar such an interpretation. There is a clear distinction made in that sub regulation of experience with reference to a graduate and experience with reference to a non-graduate. For the former two years experience in the Bank''s work as a ledger clerk is required. For the latter seven years experience in the Bank''s work is prescribed. What is required is experience in Bank''s work. There is no particular category of work specified in sub-regulation (h) for a non-graduate. There is nothing to indicate that work as typist is not bank''s work. When the regulation is general and it had been applied in the case of other typists, I am unable to comprehend how that could not be applied in the case of Thankamani Ammal alone.
The petitioners, since they possess the requisite qualifications prescribed under 28h ought to have been promoted to the post of Junior Assistant by the bank.
3. The Bank however, has not given the petitioners the promotion. Not only that, the Bank has also taken up the stand that under no circumstance, the petitioners will be given their legitimate promotion, notwithstanding the above judgment of this Court. To see whether the Bank on its own, was prepared to take note of the above judgment and undo the injustice done to the petitioners, this court gave time (on the request of the learned counsel for the Bank) to the Bank when the matter came up for final hearing last week. Not only that the Bank has not done what was expected of the Bank, particularly in the light of the above mentioned judgment of this court, but on the other hand, the Bank is opposing this petition raising hypertechnical grounds. I shall deal with them now.
4. According to the Bank, no writ would lie against it because it is not a statutory body but only an ordinary society registered under the Co-operative Societies Act. That that is the position in law, according to the counsel, is beyond dispute in view of the Full Bench ruling of this court in Bhaskaranv. Addl. Secretary (1987(2) KLT 903 (FB)). The Full Bench after considering the question as to whether the Co-operative Society is a State within the meaning of Article 12 of The Constitution, has observed thus:-
The Co-operative Societies are not created by the Co-operative Societies Act and they are not statutory bodies. They are only functioning in accordance with the provisions of the Act. These institutions would have legal existence even if the Co-operative Societies Act was not in force. Moreover, the Government have no shares in the Co-operative Societies. There is no deep and pervasive State Control. The management of the societies does not vest in the Government or in the representatives of the Government. The management is under the effective control of a committee elected by the members of the societies. The statutory regulation or restriction in the functioning of the societies is not ''an imprint of State under Art. 12''. Therefore no writ will lie against a Cooperative Society governed by the Kerala Co-operative Societies Act.
(Headnotes)
5. Even without deciding the issue whether the Bank is a statutory authority and as such a State within the meaning of Article 12, I think, we can find an answer to the question, can a mandamus be issued to the Bank. Before this question is taken up for consideration, I shall endeavour to state the law first.
6. Consideration of the ambit of Article 226 of The Constitution is relevant in this context. The words "any person or authority" employed in this Article, as observed by the Supreme Court, shall not be confined only to the statutory authorities and instrumentalities of the State; these words cover any other person or body discharging public duty. There are however two exceptions to this rule and they are; (1) if the rights are purely of a private nature, no mandamus can be issued and similarly (2) if the authority is purely a private body with no public duty mandamus cannot be issued. The public duty is judged in the light of the obligation, whether statutory or otherwise, imposed on the person or authority for the benefit of the affected party. To enforce such obligation/duty, mandamus, if found necessary, must be issued. These words to my mind have deliberately been employed in the Article by the framers of The Constitution or else it would not have been possible for the High Court to strike at the very root of injustice which is the result of the action or inaction of persons or bodies which owe an obligation, statutory or otherwise, to the affected party. To put it differently these words have widened the field that can be permeated by the arm of public justice. When once the High Court is satisfied that such a person or authority in the discharge of the obligation aforesaid, instead of meting out justice, mets out injustice to the party for whose benefit the obligation is imposed upon the person or authority, the High Court shall not deny mandamus to the said party. I am fortified in this view by a decision of the Supreme Court in
The words ''any person or authority'' used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover Any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied. It may be pointed out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available ''to reach justice wherever it is found''. Technicalities should not come in the way of granting that relief under Article 226.
(emphasis supplied)
7. Having understood the law thus, let us see whether the case on hand is one that Falls within the framework of the two exceptions as contended for by the counsel for the Bank. First of all we shall consider the question whether the right agitated by the petitioners is purely of a private character. The answer depends upon the construction of Section 80 of The Co-operative Societies Act, for short The Act as also The Rules contained in Chapter 15 of The Co-operative. Societies Rules, for short The Rules. Section 80 (3) empowers the Government to make rules regarding the regulation, remuneration, allowances and other conditions of service of the officers and servants of the different classes of societies specified in sub-section (1) which says that the Government shall classify the societies in the State according to their type and financial position. The Government, in consultation with the State Co-operative Union, have the power to fix or alter the number and designation of the Officers and servants of the different classes of societies (see sub-section 2). It is in exercise of the power discernible from his Section 80, the Government made the rules in Chapter 15 of The Rules. These Rules, there is no dispute, modify the conditions of service of the employees of the societies. These Rules are binding on the management of the societies. The service conditions of the employees of the societies are therefore not purely of a private character.
8. Coming to the next contention of the counsel that the management of the society is vested in private management with no public duty: This also is equally unsustainable. A reference in this connection to the bye-laws of the Bank particularly bye-laws 4 and 5, is profitable. Bye-law 4 provide that the Bank shall, with the monies provided by the State Government under the State partnership, establish a fund to be called ''the principal State partnership fund''. The membership of the Bank will be opened only to the State Government and District Co-operative Banks (see bye-law 5). The general body of the Bank shall consist of Directors nominated by the Government, Directors representing District Co-operative Banks and ex-officio Directors (See bye-law 10). The Managing Director can be appointed only with the approval of the Registrar and the said Managing Director will be responsible for the general administration of the Bank subject of course to the control of the President and the Board of Directors (See bye-law 27 (3)). From these provisions it is clear that the society is not a private body and management is not vested in a private agency. Assuming that the management is vested in a private body, even then, inasmuch as the affairs of the society are managed by the Board subject to the provisions contained in The Act as also The Rules, it cannot be said that the management of the society is purely a private body with no public duty. (See para 14 of Rudani)
9. It therefore follows that there exists a legal right-duty relationship between the employees and the society and as such mandamus cannot be refused to an aggrieved party. It is true that if such an aggrieved party has some other equally convenient remedy it is in the discretion of the High Court to deny mandamus. The above contentions of the counsel for the Bank therefore are rejected. It should in this connection be remembered that the ruling of my brother Justice Viswanatha Iyer on a similar question binds the bank (the bank has accepted this ruling) and as such the mandamus prayed for requires to be issued.
10. Yet another technical plea raised by the Bank is this : Those employees who have already been promoted have not been impleaded as parties to the O.P. and therefore on the ground of non-impleadment of necessary parties, the O.P. is liable to be dismissed. This argument is without any basis for the simple reason that the main relief prayed for in the O.P. is that a writ in the nature of mandamus directing the management of the Bank to promote the petitioners to the post of Junior Assistants as they possess the requisite qualification be passed. The question whether those who have already been promoted, have validly been promoted is not the subject-matter of enquiry in this O.P. In other words no question as to the title to the office arises for consideration here. There is, therefore, no need to implead any other party. Under the circumstances this argument is liable to be rejected.
11. The respondent-bank has pressed into service yet another technical plea for which no foundation however has been laid. It is the case of the Bank that though the decision that a clerk-cum-typist is not entitled to get promotion to the post of Junior Assistant was taken by the Bank as early as in 1978, the said decision has not been challenged by the petitioners so far. In the light of the said decision, the relief prayed for in the O.P. namely a writ in the nature of mandamus directing the Bank to promote the petitioners as Junior Assistants, cannot be granted. It is true that the Bank in its counter affidavit has stated that such a decision had been taken as early as in 1978. The Bank however has not taken a Specific ground that the O.P. is liable to be dismissed on the ground of delay. Whatever that be, this argument cannot be taken cognisance of for the reason that the Bank, ignoring the said decision of the year 1978, has promoted Valsamma, Kamalammai and Velappan Nair who were also holding the post of clerk-cum-typist, as Junior Assistants in the year 1982. It is true that the Bank has an explanation as regards the promotion given to Valsamma as Junior Assistant. It has stated thus in paragraph 21 of the counter affidavit:
Smt. K. Valsamma entered service in the bank as Typist against the post of Clerk-cum-Typist/Typist Clerk applied for by her. The Committee constituted by the Government to go into the demands of employees of the bank submitted a report, on the basis of which the Board of Directors in their meeting held on 25-10-82 resolved to implement Government Order No. Ms. 209/AD dt. 2-9-1981.
This explanation, the Bank ought not to have been given in the light of the following observations contained in the judgment in O. P. Nos. 315, 6309/86 & 5870/88. Even at the risk of repetition I shall extract the said observation:
In fact the necessity for promotional avenues for typists had been recognised by all parties, Which led to the constitution of the tripartite committee and its recommendations. It cannot therefore be contended that the grant of a benefit of promotion to a typist was in any manner illegal or uncalled for.
The above decision of this court no doubt was rendered after the Bank filed its counter affidavit. The above argument of the Bank, as already noted, is liable to be rejected in the light of the above observation. The Bank has had ample opportunity to correct the above stand taken in the counter affidavit. Not only that the Bank has not chosen to properly amend its counter affidavit so that the same would fall in line with the above judgment of this court, but, on the other hand, the Bank has chosen to suppress this fact and pursue the above hypertechnical pleas. This attitude of the Bank is highly reprehensible. This contention also therefore is rejected.
12. The mandamus prayed for in this O.P. therefore requires to be granted. The Bank accordingly is directed to promote the petitioners as Junior Assistants and give them the seniority in that cadre taking into account the date on which they became eligible for promotion. Before parting with this judgment I feel I should make specific reference to the unreasonable attitude taken up by the Bank just to oppose the reliefs prayed for in the O.P. It is the duty of every party to a proceeding before a court to bring to the notice of the court all the relevant facts and assist the court to come to the correct conclusion. This duty to disclose all the facts is greater in the case of public bodies like the respondent Bank who are under an obligation to act fairly. The Bank therefore ought to have placed the judgment aforesaid before this court at the earliest opportunity and withdrawn the hypertechnical pleas. It is all the more so because the Bank has in fact conceded the claim of Thankamani Ammal, a claim identical with the claim of the petitioners, as is seen from the following excerpt from the judgment in O.P. Nos. 315 & 6309/86 and O.P. No. 5870 of 1988 :
O.P. Nos. 6309/86 and 5870/88 have been filed by George and Thankamani Ammal for directions to implement the award in question. Counsel for the Bank Sri. M.N. Sukumaran Nair submitted that the award was not implemented because of the existence of an order of interim stay from this court in O.P. No. 315/86. Since that stay stands vacated, it is submitted that the award will be implemented expeditiously. This submission is recorded, and both the original petitions are closed as not requiring any further orders. No. costs.
The Original Petition, for the above reasons, requires to be allowed With exemplary cost. I accordingly allow the O.P. with cost which I fix at Rs. 5,000/-.
