M.Subramaniyan v. State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 30.11.2009CoramThe Honourable Mr. Justice K.CHANDRUWrit Petition Nos.21576 and 25369 of 2008and M.P.No.2 of 2008 in W.P.21576 of 2008---K.Amsaveni..Petitioner in W.P.21576/2008M.Subramaniyan..Petitioner in W.P.25369/2008 Vs1.State of Tamil Nadu rep. By its Secretary to Govt Cooperation, Food and Consumer Protection Department Secretariat, Chennai-600 009.2.The Registrar of Cooperative Societies NVN Natarasan Maaligai 170, EVR Periar High Road Kilpauk, Chennai-600 0103.The Erode District Central Cooperative Bank Ltd rep. By its Special Officer, Bhavani Road, Erode-638 002... RESPONDENTSin both the WPs Prayer:- Writ Petition under Article 226 of the Constitution ofIndia, praying for the issuance of a writ of Certiorarified Mandamuscalling for the entire records relating to the impugned G.O.(Rt)No.137 dated 17.07.2008 issued by the 1st respondent and quash thesame as without jurisdiction and authority and consequently directthe respondents to implement the provisions of Rule 149(2)(i) of theRules framed in consonance with Section 73 of the Tamil NaduCooperative Societies Act, 1983 and (ii) of the Tamil Nadu Co-op.Societies Rules 1983 by ordering for cancellation of appointmentsif any made in the District Central Co-op.Banks in Violation ofRules 149(2) consequent to the impugned G.O. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners : Mr.K.PremkumarFor respondents : for R1 & R2 : Mr.R.Neelakantan, G.A.For R3 in W.P.21576/2008:- Mr.M.DhandapaniFor R3 in WP.25369/2008:-Mr.B.K.Girish Neelakantan.O R D E R The two petitioners are employees of Dharapuram AgriculturalProducers' Co-operative Marketing Society and PerunduraiAgricultural Producers' Cooperative Marketing Society. Both thepetitioners have come forward to challenge the Government Order inG.O.(Rt).No.137, Cooperation, Food and Consumer ProtectionDepartment dated 17.07.2008. Insofar as in the said G.O., itdirects the consideration of filling up of the vacancies in variousDistrict and Central Cooperative Banks to the extent of 50% with thequalified candidates drawn from various Primary AgriculturalCooperative Bank for the purpose of filling up those posts. Therewas no necessity to conduct any written test and they have to followearlier guidelines of G.O.(Rt).No.249, Cooperation dated 31.10.2006.By the said requirement excepting the Chennai Central CooperativeBank in the other District Central Cooperative Banks those postswere to be filled up. 2. In the same order, there were six directions which weregiven while considering such candidates. They are as follows:-(a) Such candidates must have regularly appointed in accordancewith the bye-laws.(b) They should not have crossed 40 years of age. (c) They should not have involved in the criminal and vigilancecases.(d) they should not have involved in a Departmental enquiriesand should not have suffered severe punishment for 5 years.(e) They should not have subjected to enquiry under Section 81Cooperative Societies Act, 1983 and should not have facing surchargeproceedings under Section 87. There should not be any proceedingspending for recovery of any amount for surcharge. 3. The petitioners were aggrieved by the reservation of 50% ofvacancy exclusively to employees of Primary Agricultural CooperativeBanks (PACBs). Their contention is that the said reservation notonly deprives other employees engaged is other than PACBs and thesaid direction is in direct conflict to Rule 149(2) of the TamilNadu Cooperative Societies Act. According to the petitioners,Proviso to Rule 149(2) grants permission to any society to fill upvacancies by direct recruitment. For candidate to be appointed https://hcservices.ecourts.gov.in/hcservices/ compassionate ground, absorption of surplus employees from othercooperative society, posts for which Recruitment Bureau has beenconstituted under Section 74 of the Act or in respect of which acommon cadre of service has been constituted under Section 75 of theAct these provisions will apply. 4. This Court is at a loss to understand as to how thepetitioners can invoke proviso of Rule 149(2). In case of directrecruitment itself, categories which are coming under that provisoalso can be considered. It is unthinkable that the present orderissued by the Government interfere with the statutory rules framedunder the Tamil Nadu Cooperative Societies Act. In fact, in respectof direct recruitment, the rule did not contemplate any change. TheGovernment by the impugned order has only directed the societies togrant 50% of posts to various PACB employees, if they are qualified.In so far as petitioners are concerned, neither the G.O., nor theRule 149(2) enables them to be absorbed in any other co-operativesociety and it is not their condition of service. They cannot getappointment in some other society. Therefore, the attack by thepetitioners against the order of the Government is misconceived. 5. The learned counsel for the petitioners submitted that G.O.,is in the form of an administrative direction and such a directioncannot be granted in the light of the Full Bench judgment of thisCourt in R.Rathakrishnan Vs. Deputy Registrar of CooperativeSocieties, Dindigul Circle reported in 2007(5) CTC 369. The saidFull Bench came to be constituted in the aftermath of the standtaken by the State Government to get over the earlier Division Benchjudgment of this court in L.Justin Vs Registrar of CooperativeSocieties reported in 2002(4) CTC 385. The said judgment was alsoconfirmed by the Supreme Court in A.Umarani Vs. Registrar of Co-op.Societies, 2004(7) SCC 122. The purport of the said decisionthat irregular appointees have no right to continue in the post inany co-operative society in the light of the Rule 149 of the TamilNadu Co-operative Societies Act, 1988. 6. To get over the said decision, the State Government issuedcertain orders which are referable to Article 162 of theConstitution of India. Therefore, this court held that consideringthe earlier legal precedents, the Government cannot exercise suchjurisdiction under Article 162 of the Constitution or other Act anddirect regularisation of any employee including employees of theCooperative Society if the employments were made in contravention ofthe constitutional mandate. It is also stated that Article 226 ofthe Constitution of India cannot be used for the purpose of givinginterim relief which will be a final relief without determining mainissue. The said decision has no relevance in deciding the presentcase. https://hcservices.ecourts.gov.in/hcservices/

7. On the contrary, in the present case, in the GovernmentOrder there is no direction to consider employees who were appointedcontrary to any rules or regulations. But the conditions clearlystipulates that the employees who are employed in accordance withthe sanction alone were directed to be considered for vacancies inthe District Central Cooperative Banks. 8. The other submission that dehors Rule 149, the Governmenthas no power to give directions also cannot be countenanced by thiscourt, especially, in the context of Section 181 and 182 of the Co-operative Societies Act. In the present circumstances apart fromdirect recruitments to be made by any District Central CooperativeBank, 50% of the vacancies arise in such banks will have to befilled up by employees working in various PACBs. It is only anadditional concession given to societies to absorb in to a DistrictChennai Central Co-operative Banks. Neither the Central CooperativeBanks nor any aggrieved persons have questioned such a direction torecruit vacancies in those societies. 9. The grievance of the petitioners is really that there caseswere not considered while the Government gave such directions. Itmust also to be noted that the employees association in various co-operative thrift society through their federation challenged thesame G.O. For the reasons best known to them they withdrew the writpetition in W.P.No.19443 of 2008 by the order of this court dated26.09.2008. No member can come forward for a similar relief. Thispoint is noted only because the collective opinion of the union isnot to continue the litigation. 10. In any event, in the present case the petitioners contendedthat apart from issues already dealt with such an executiveinstruction cannot be issued against a statutory rule. As alreadynoted the power of District Central Cooperative Bank to resort todirect recruitment had not been hampered by the said order. Theorder only confines 50% of the vacancies to be filled up with theexisting PACB staff. In such a case, exemption was granted fromtheir being sponsored by an employment exchange. 11. The petitioners in so far as they are working in thecooperative society has to have their line of promotion only withinthe bye-laws of that society. Moving from one society to othersociety may not arise except by Rule 149(2)(a) which was introducedby G.O.326, Co-operation 23.11.2007. The said amendment facilitatesdeputation from one society to another society with a maximum periodof three years. The petitioners right have neither been affected bythe impugned order by the said G.O. https://hcservices.ecourts.gov.in/hcservices/

12. Accordingly, the writ petitions stand dismissed. No costs.Consequently, connected miscellaneous petition is closed. Sd/Asst.Registrar/true copy/Sub Asst.Registrar nvsriTo1.The Secretary to Govt Cooperation, Food and Consumer Protection Department Secretariat, Chennai-600 009.2.The Registrar of Cooperative Societies NVN Natarasan Maaligai 170, EVR Periar High Road Kilpauk, Chennai-600 0103.The Special Officer,Erode District Central Cooperative Bank Ltd, Bhavani Road, Erode-638 002.+2ccs to Mr.K.Premkumar, Advocate Sr 64866 & 64865+1cc to Govt. Pleader Sr 64999+1cc to Mr.B.K.Girish Neelakantan, Advocate Sr 65536KU(CO)km/11.1. W.P.No.21576 and 25369 of 2008