Vanaja v. Co.op. Societies, Thirukovilur Circle

IN THE HIGH COURT JUDICATURE AT MADRASDATED : 17.09.2009CORAMTHE HONOURABLE MR.JUSTICE M.M. SUNDRESH W.P.No.39268 and 39269 of 2002 1. Vanaja ..Petitioner in W.P.No.39268/20022. R.Renuka ..Petitioner in W.P.No.39269/2002 Vs.1. The Deputy Registrar of Co.op. Societies, Thirukovilur Circle Thirukovilur, Villupuram District2. The Elavanasur Kottai Primary Agricultural Co.op.Bank, Elavanasur Kottai rep.by its Special Officer, Elavanasur Kottai Ulunthur Pettai Taluk3. P.Amavaasai, Salesman Elavanasur Kottai Primary Agricultural Co.op.Bank Ltd., Elavanasur Kottai, Ulunthurpettai Taluk ..RespondentsPRAYER: Writ petitions filed under Article 226 of the Constitutionof India praying to issue a Writ of Certiorari calling for theentire records relating to impugned order passed by the firstrespondent in the proceedings No.1254/2001-02 dated 15.07.2002 andquash the same. For Petitioners : Mr.C.PrakasamFor Respondent-1: Mrs.Lita Srinivasan Government AdvocateFor Respondent-2: Mr.S.V.Durai Solai MalaiFor Respondent-3: Mrs.VedavallikumarO R D E RThe petitioners herein joined the second respondent society asa Sales women on 29.06.1992 and thereafter, they were promoted asClerks on 01.08.1999. The third respondent joined the office of thesecond respondent as a Salesman on 02.11.1987. Thereafter, thepetitioners and the third respondent finished the training in the https://hcservices.ecourts.gov.in/hcservices/ month of July 1997. However, the petitioners were appointed asClerks by way of resolution by the Board of Directors of the thirdrespondent society with effect from 11.08.1999. 2. Challenging the said appointment, the third respondentraised a dispute under Section 90 of Tamil Nadu Co-operativeSocieties Act, 1983. The first respondent, exercising the powerunder Section 90 of the said Act, has set aside the appointment ofthe petitioners by holding that the promotion of the petitionersare irregular since the same has been made contrary to Rule 149 ofthe Tamil Nadu Co-operative Societies Rules, 1988 and withoutobtaining prior permission from the authorities. It has beenfurther held that, admittedly, the third respondent is a senior tothe petitioners. Therefore, under those circumstances, the firstrespondent has set aside the order of promotion made in favour ofthe petitioners and also ordered recovery as against thepetitioners. Challenging the said order passed by the firstrespondent dated 15.07.2002 the present writ petition is filed. 3. The learned counsel for the petitioners submitted that theorder passed by the first respondent is liable to be set asidesince the same is one without jurisdiction. The learned counselrelied upon the judgment of this Honourable Court in The Managementof Madras Atomic Power Project Employees Consumers (Co-operativeStores Limited, Kalpakkam rep by its Special Officer) vs. TheDeputy Commissioner of Labour (Appeal) Madras-6 and 2 othersreported in 2000 (III) CTC 738 in support of the contention thatwhile exercising the power under Section 90 of Tamil Nadu Co-operative Societies Act, 1983 the disputes between the employerscannot be decided. Therefore, the learned counsel for thepetitioners submitted that the impugned order has to be set asideas one without jurisdiction and the only recourse open to therespondents is to take appropriate action under Section 153 of thesaid act which provides revisional powers to the authorities.4. With regard to the exercise of such power the learnedcounsel appearing for the second respondent submitted that inasmuchas the appointment of the petitioners being unauthorised andirregular having been made contrary to the provisions of the Actand Rules, the petitioners cannot challenge the impugned ordersince the petitioners do not have any legal right to do so. Thelearned counsel further submitted that the petitioners who have notraised the question of jurisdiction before the first respondentcannot raise the same for the first time in the writ petition. Thelearned counsel also relied upon the judgment of the HonourableApex Court in Ashwani Kumar vs. State of Bihar, reported in (1997)2 SCC Page-1 in support of his contention that when an appointmentis made in excess of the sanctioned post any such appointment willhave to be held as void. The learned counsel also relied upon thejudgment of the Full Bench in R.Rathakrishnan vs. The DeputyRegistrar of Co-operative Societies, Dindigul Circle, Dindigul https://hcservices.ecourts.gov.in/hcservices/ reported in 2007 (5) CTC 369 and submitted that when there is anappointment made contrary to the Act and Rules the power underArticle 226 of the Constitution of India cannot be exercised. 5. In the present case on hand, the petitioners have beenreverted as Sales Women pursuant to the orders passed by the firstrespondent. A reading of Section 90 of the Tamil NaduCo-operative Societies Act would show that the dispute raised bythe third respondent being one of fixation of seniority and seekingappointment to the higher post, cannot be decided by the firstrespondent by exercising the power under Section 90 of the TamilNadu Co-operative Societies Act. As contended by the learnedcounsel for the petitioner, the Honourable High Court in thejudgment The Management of Madras Atomic Power Project EmployeesConsumers (Co-operative Stores Limited, Kalpakkam rep by itsSpecial Officer) vs. The Deputy Commissioner of Labour (Appeal)Madras-6 and 2 others reported in 2000 (III) CTC 738 has held thatservice matters cannot be decided by the first respondent byexercising the power under section 90 of the Tamil NaduCo-operative Societies Act. 6. However, in the present case on hand, it is not the case ofthe petitioners that they have been appointed within the cadrestrength and also in accordance with Rule 149 of the Tamil Nadu Co-operative Societies Rules. Therefore, this court is of the opinionthat the appointments have been made contrary to the Rules andRegulations the same cannot be restored by this Honourable HighCourt by exercising the power under Article 226 of Constitution ofIndia. 7. The learned counsel for the petitioners submitted that theywould come within the cadre strength. This court is of the opinionthat the matter has to be considered by the authorities. Inasmuchas the Board of Directors while passing resolution and appointmentthe petitioners have not got the prior approval from theauthorities and the petitioners are not able to establish beforethis court that they have been appointed within the cadre strength,this court cannot grant relief to the petitioners. 8. Even assuming the order passed with the first respondentdated 15.07.2002 is set aside, the same will not confer any benefitto the petitioners by relying on order of promotion promoting themas Clerks because it is a well established principle of law thatthe power of this court under Article 226 of Constitution of Indiais discretionary. When setting aside an order would result in therestoration of another illegal order then the court cannot exercisethe power. Therefore, while setting aside the order of the firstrespondent as being one without jurisdiction, this court is notconstrained to go into facts of the case and in view of the factthat the petitioners have been reverted back, this court is of theopinion that no ground is made out to restore the promotion of the https://hcservices.ecourts.gov.in/hcservices/ petitioners pursuant to the setting aside of the order of the firstrespondent. 9. Inasmuch as the contention of the second respondent thatthe petitioner has been appointed in total contradiction of theprovision of the Tamil Nadu Co-operative Societies Act, 1983 andthe Rules this court is of the opinion that it is a fit case wherethe Registrar or Joint Registrar of the Tamil Nadu Co-operativeSocieties will have to be directed to exercise the power underSection 153 (3) of Tamil Nadu Co-operative Societies Act and gointo the question as to whether the promotion made in favour of thepetitioners by promoting them as clerks in accordance with theprovisions of the Co-operative Societies Act and the Rules or not.Therefore, this Court directs the Registrar or the Joint Registrar,as the case may be, to go into the said question and decide thesame within a period of 3 months from the date of receipt of a copyof this order. The said authority is also directed to issue noticeto the petitioners as well as to the third respondent beforedeciding the same. It is made clear that the petitioners are notentitled to be appointed as clerks pending adjudication of thefinal order to be passed by the authorities. 10. The impugned order is hereby set aside for the reason thatthe order of recovery has been made by the first respondent byexercising the power under Section 90 of the Tamil NaduCo-operative Societies Act which is not permissible in law. It alsoseen that before passing the said order of recovery, the firstrespondent has not been given any opportunity to the petitioners.Therefore, the issue of recovery also will have to be decided bythe authorities while exercising the power under Section 153 of theTamil Nadu Co-operative Societies Act. 11. With these observations, these writ petitions are disposedof. No costs. ssp Sd/- Asst. Registrar /True Copy/ Sub Asst.Registrar To1. The Deputy Registrar of Co.op. Societies, Thirukovilur Circle, Thirukovilur, Villupuram District. https://hcservices.ecourts.gov.in/hcservices/

2. The Elavanasur Kottai Primary Agricultural, Co.op.Bank, Elavanasur Kottai rep.by Elavanasur Kottai, Ulunthur Pettai Taluk.+2 ccs to Mrs. P.V. Rajeswari, Advocate, SR.Nos.48337 & 48338.+2 ccs to Mr. S.V. Duraisolaimalai, Advocate, SR.No.47888.+1 cc to Mr. C. prakasam, Advocate, SR.No.48271.+1 cc to the Government Pleader, High court,Madras-104.SR.No.48391.W.P.No.39268 and 39269 of 2002SGL (co)ar/8.10.2009.