G.Bhaskar v. The Joint Resgistrar of Co-operative Societies, Tuticorin Region, Tuticorin & Ors.

THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.No.19646 of 2001 G.Bhaskar .. Petitioner .Vs.

The Joint Resgistrar of Co-operative Societies, Tuticorin Region, Tuticorin.

The Special Officer, Eral Primary Agricultural Co-operative Bank, Eral-628 801. Tuticorin District. .. Respondents Prayer: Writ Petition came to be numbered under Article 226 of Constitution of India praying for a writ of Certiorarified mandamus to call for the records in pursuant to the Impugned Order of termination passed by the 2nd respondent in proceeding dated 26.5.2001 and the Appellate Order passed by the 1st respondent in Proc. Fna. Ka.7622/2001 Sa.Pa. dated 29.8.2001 and quash these orders and consequently direct the respondents to reinstate the petitioner in service with full back wages and other consequential service benefits and to pass any other further or other orders. For petitioner : Mr. S.M.Subramaniam For respondents : Mr.P.Subramaniam, AGP, for R1 : Mr.A.R.Nixan, for R2

O R D E R By order dated 26.5.2001, the Special Officer, Eral Primary Agricultural Co-operative Bank, Tuticorin, has terminated the services of the petitioner from the Bank. Aggrieved by the same, the petitioner preferred a Revision Petition dated 31.5.2001 under section 153 of the Tamilnadu Co-operative Societies Act. By order dated 29.8.2001, the Joint Registrar of Co-operative Society, Tuticorin, the Revisional Authority has dismissed the Revision Petition. As against the said order, the petitioner has filed the present writ petition.

2. Assailing the impugned order Mr.S.M.Subramaniam, learned counsel appearing for the writ petitioner submitted that the respondents have failed to consider that he was appointed through District Employment Exchange on 25.3.1995 and that he was transferred to the second respondent Society and therefore, the initial appointment of the petitioner cannot be said to be irregular. Even assuming that the appointment made is irregular, as per G.O.Ms.No.86, Co-operation, Food and Consumer Protection Department, dated 12.3.2001, employees though appointed irregularly should be regularised if they had put in 480 days of service. According to the petitioner, he had already worked for more than five years and therefore the termination of the petitioner from the second respondent society is contrary to the above said Government Order. Thirdly, he submitted that no show cause notice was issued to the petitioner, before issuing the order of termination and therefore, there is a violation of principles of natural justice.

On the basis of the averments made in the counter affidavit filed by the Joint Registrar of Co-operative Societies, Thoothukudi Region, Thoothukudi, Mr.P.Subramaniam, Learned Additional Government Pleader submitted that the petitioner was appointed as Clerk in the second respondent Bank on 7.3.2001, by the erstwhile Board of Directors and he had joined duty on 10.3.2001. He further submitted that there is no provision in the Tamilnadu Co-operative Societies Act, 1983 and the rules framed in 1988, to transfer an employee from one Primary Co-operative Society to another Co-operative Society. As per Rule 149 (2) of the Tamilnadu Co-operative Societies Rules 1988, no appointment by direct recruitment for any post shall be made except by calling for a list of eligible candidates from Employment Exchange. Therefore, the appointment of the writ petitioner in Eral Primary Agricultural Co-operative Bank is in violation and contrary to the Tamilnadu Co-operative Societies Act and the rules framed thereunder. Therefore, he submitted that the termination of the writ petitioner from service on 26.5.2001 is in conformity with the rules.

As regards the applicability of G.O.Ms.No.86, Co-operation, Food and Consumer Protection Department, dated 12.3.2001, learned counsel for the first respondent submitted that as per conferment of permanent status Act, 1981, the services of the employees who have completed 480 days of continuous service in two years as on 12.3.2001 were eligible for regularisation. But the petitioner did not complete 480 days of continuous service in Eral Primary Agricultural Co-operative Bank as on 12.3.2001 and therefore, he is not entitled to seek for regularisation. As the appointment of the petitioner itself was contrary to the statutory rule 149 (2) of the Tamilnadu Co-operative Societies Rules, 1988, the petitioner cannot claim any right for continuation of services. For the above said reasons, he prayed for dismissal of the writ petition.

Heard the learned counsel appearing for the parties and perused the materials available on record.

Pleadings and materials disclose that pursuant to a resolution dated 7.3.2001, passed by the erstwhile Board of Directors of the second respondent Bank, the petitioner was appointed as Clerk on 10.3.2001. Subsequently, the Special Officer of the second respondent Bank has found that about five persons including the writ petitioner were appointed by the erstwhile Board of Directors, contrary to the rules and the bylaws of the society and therefore, issued orders on 26.5.2001, terminating their services. When the said order of termination challenged before the Revisional Authority under section 153 of the Tamilnadu Co-operative Societies Act, the petitioner inter alia had contended that earlier, he was appointed as an Accountant in T.N.H.89, Sayarpuram Senthiyambalam Technical Weavers Co-operative and Sales Society. Due to financial constraint, he was transferred to Eral Murugan Sengundher Weavers Co- operative and Sales Society, as Manager. Since, the said society had also faced financial constraint, with their permission, the petitioner applied for the post of Clerk in the second respondent Co- operative Bank and on the basis of a resolution passed by the erstwhile Board of Directors of the Bank, he was appointed on 10.3.2001. The petitioner has further contended that he was not given a show cause notice before terminating his services.

Per contra, the second respondent Bank inter alia has contended that the appointment of the writ petitioner is contrary to Rule 149 (2) of the Tamilnadu Co-operative Societies rules, 1988 and In that, there is for no provision of transfer of employees from one co-operative Society to another. Besides, the second respondent has also contended that the appointment is contrary to the cadre strength. Admittedly, there is no specific provision in the Co- operative Societies Act, at the relevant point of time enabling in transfer of a person from one Society to another.

Dealing with the above issue of transfer, it could be seen from the impugned order that the Revisional Authority has considered the judgement of the Supreme Court reported in General Officer, Commanding-in-Chief Vs. Subesh Chandar Yadav (1988 (2) Supreme Court Cases) at page 351, wherein the Supreme Court has held that "rule making power cannot go beyond the statutory power. In that case the transfer of employees of one autonomous body to another by means of a rule was held illegal. " Applying the judgment of the reported case, to the facts of this case, it could be seen that the rule making authority under the Tamil Nadu Co-operative Societies Act has no power to transfer an employee from one society to another and in the absence of the same, the contention that the petitioner was transferred from one society to another society. As per the statutory rules, the post of Clerk has to be filled up only through Employment Exchange by direct recruitment subject to the satisfaction of educational qualifications and other requirements. In the case on hand the petitioner has been directly appointed as Clerk by the erstwhile Board of Directors on 7.3.2001 without getting any proposal from the employment exchange.

Perusal of the impugned order also shows that the appointment is not in conformity with G.O.Ms.No.81, Food and Consumer Protection Department, dated 4.5.2000, where orders have been issued that the establishment cost should not exceed more than 3 percentage of the income. In the case on hand, the revisional Authority on verification of the records has also found that the establishment cost of the second respondent society was 3.95 percentage at the relevant time and therefore held that the appointment was also contrary to the above said government order. Lastly, the revisional Authority has also found that the writ petitioner had not completed 480 days of service to consider his case for conferment of permanent status or regularisation as per G.O.Ms.No.86, Co-operation, Food and Consumer Protection Department, dated 12.3.2001. The petitioner, was appointed on 10.3.2001 by the erstwhile Board of Directors of the second respondent and since his appointment was not in accordance with the statutory rules and procedure, the Special Officer of the second respondent Bank has rightly terminated his services.

The Supreme Court on more than one occasions has held that the persons who have been appointed contrary to statutory rules cannot seek for regularisation. The petitioner has no legal right for appointment by way of transfer and therefore, he cannot take advantage of the same. The rejection of the revision Petition cannot be interfered with, for the reasons stated supra.