SANGEETHA SOMARAJ Vs. JOSE R.T. AND ORS.

JUDGEMENT

(1.) The appellant who is a third party to the writ petition, has filed this appeal with leave of the court.

(2.) As evidenced by Annexure-1 rank list, appellant is the first rank holder in the qualifying examination conducted for the post of Managing Director of the 5th respondent Society. As per the bye laws, as it was, the post of Managing Director/Secretary was to be filled by promotion on the basis of seniority from the feeder category. As revealed by Ext P3, the bye laws of the Society were amended, making provision for appointment by two modes namely, (i) Direct Appointment (ii) Promotion of Assistant Secretary(feeder category). The writ petition is filed by a former employee of the Society challenging Ext P3 amendment as violative of Rule 185 of the Co-operative Societies Rules. As per Rule 185(1), appointments to the categories of posts in a Society other than the categories mentioned in sub Rules (2), (3), and (4) shall be made by promotion on the basis of seniority from the feeder category. Evidently sub rules (2), (3) and (4) does not relate to the post of Managing Director/Secretary. Therefore, appointment of the post of Managing Director/Secretary is to be made by promotion from the feeder category on the basis of seniority. Evidently Ext P3 amendment is contrary to Rule 185(1). The amendment and the consequent notification Ext P2 were rightly quashed by the learned Single Judge.

(3.) The learned counsel appearing for the appellant would contend that as held by this Court in W.A No.90 of 2016 and by the learned Single Judge in the impugned judgment, if there is no eligible person for promotion to the concerned post based on qualification, applying the rule of necessity, the post can be filled up by other modes permissible under law; Ext P2 notification could be considered as one in exercise of the said powers. He would refer to sub rule (5) of Rule 185 to contend that no persons in the feeder category have passed the qualifying examination, and thus attempts to justify Ext P2 notification. However, a bare reading of sub rule (5) of Rule 185 reveals that it applies only to selection of candidates to the post to be filled by promotion under sub rule (2). As noticed supra sub rule (2) does not relate to Managing Director/Secretary. Hence Ext P2 cannot be sustained even on the said ground.