High Court

Judgment

1. Heard learned counsel for the petitioner and the learned Additional Chief Standing Counsel appearing for the State- respondents.

2. This writ petition has been filed seeking the following relief:- "(i) Issue a writ, order or direction in the nature of certiorari calling for record and quash impugned order/communication/letter dated 6.11.2024 (Annexure No.1) from the post of Secretary of Matsyajivi Sahkari Samiti Ltd."

3. By means of a communication dated 6.11.2024, the Chief Executive Officer, Fisheries has directed the Committee of Management to remove the Secretary and to take steps for appointment of a new Secretary in compliance of the relevant rules inasmuch as the appointment of the present Secretary was found to be in violation of Rule 124(1) of the Uttar Pradesh Cooperative Societies Rules, 19681. 1 Rules, 1968 2

4. On the basis of instructions, the submissions of the learned

Additional Chief Standing Counsel are two fold. Firstly, it is stated that the communication dated 6.11.2024 itself refers to a letter dated 12.10.2024 which is, in fact, an order passed by the Director, Fisheries directing the Society for removal of Sri Vinod Kumar from the post of Secretary of the Society as his appointment was in violation of Rule 124(1) of the Rules, 1968. The order of

12.10.2024 further directs steps to be taken by the Society for appointment of a new Secretary. Secondly, it is submitted by the learned Additional Chief Standing Counsel that by means of a notification of 28.1.1983, the Director of Fisheries was conferred the powers of the Registrar under the provisions of the Uttar Pradesh Cooperative Societies Act, 19652. Copies of the notification dated 28.1.1983 and the order dated 12.10.2024 passed by the Director of Fisheries are taken on record.

5. A perusal of the writ petition reflects that though the Cooperative Society is a body corporate by the name under which it is registered, having perpetual succession and a common seal, with power, inter alia, to institute suits and other legal proceedings, the writ petition has been filed through the Secretary against whom the impugned communication is directed. In the affidavit in support of the writ petition, the Secretary, Sri Vinod Kumar, has deposed in his personal capacity stating that he is the petitioner. It is also important to state that there is no resolution of the Committee of Management on record authorising its Secretary, Sri Vinod Kumar, to file this petition before this Court.

6. It is stated in the petition that the Secretary, Sri Vinod 2 Act, 1965 3 Kumar, was appointed as Secretary of the Society on 1.7.2021.

7. The order dated 12.10.2024 passed by the Director Fisheries, which order has neither been mentioned, nor enclosed nor challenged in this writ petition, reads as follows:- मत्स्य निनिदेशालय, उत्तर नप्रदेश, लखनिऊ न िदनिांकः12/10/2024 सह०शा न/सामान्य/सहारनिपुर/2024-25 पत्रांकः1269 01- सभापित/उपसभापित मत्स्य नजीवी नसहकारी नसिमित निलिमटेड, भारीदीनिदारपुर जनिपद नसहारनिपुर नद्वारा नसहायक निनिदेशक नमत्स्य, सहारनिपुर 02- प्रबंध नकमेटी मत्स्यजीवी नसहकारी नसिमित निलिमटेड नभारीदीनिदारपुर जनिपद नसहारनिपुर नद्वारा नसहायक निनिदेशक नमत्स्य, सहारनिपुर िवषयः न मत्स्य न जीवी न सहकारी न सिमित न िल० न भारीदीनिदार, जनिपद-सहारनिपुर न के सिचिव नकी निनियुिक्ति नके नसम्बन्ध नमे। उपयु रक्ति निवषयक नमत्स्य नजीवी नसहकारी नसिमित निल० नभारीदीनिदार, जनिपद- सहारनिपुर नके नअध्यक्ष नश्री नअमनि न कु मार नद्वारा नकी न गयी न िशकायती नपत्र नपर नसहायक िनिदेशक नमत्स्य, सहारनिपुर नद्वारा नजांचि नकरते नहुए नआख्या नउपलब्ध नकरायी नगयी नहै। सहायक निनिदेशक नमत्स्य, सहारनिपुर नद्वारा नप्रेिषत नउक्ति नआख्या नके नअवलोकनिोपरांत नयह स्पष्ट न होता न है न िक न श्री न िवनिोद न कु मार न का न मत्स्य न जीवी न सहकारी न सिमित न िल० भारीदीनिदार नके नसिचिव नपद नपर नअनिुमोदनि नउ०प्र० नसहकारी नसिमित नअिधिनियम-1965 एवं न उ०प्र० न सहकारी न सिमित न िनियमावली-1968 के न िनियम न124(1) के न िवरुद्ध न है, िजसके नअनिुसार नकोई नभी नसहकारी नसिमित निकसी नऐसे नव्यिक्ति नको नअपनिा नसिचिव निनियुक्ति निही नकरेगी नजो नसिमित नकी नप्रबंध नकमेटी नके निकसी नसदस्य नका निनिकट नसम्बन्धी नहो, जबिक नसिचिव नश्री निवनिोद नकु मार नकी नपत्निी नश्रीमती नमुन्नी नदेवी, 15.11.2021 को नउ०प्र० राज्य न सहकारी न सिमित न िनिवारचिनि नआयोग न लखनिऊ न द्वारा न घोिषत न चिुनिाव न पिरणाम न मे संचिालक नमंडल नकी निनिवारिचित नसूचिी नमे नक्रमांक नसंख्या-06 पर नदजर नहै। अतः न उक्ति न के न क्रम न मे नआपको न िनिदेिशत निकया न जाता न है न िक न िनियमानिुसार कायरवाही नकरते नहुए नश्री निवनिोद नकु मार नको नसिचिव नपद नसे निनिष्कािसत नकरते नहुए। ननिये सिचिव नको निनियुक्ति नकरनिे नकी नकायरवाही नकरनिा नसुिनिित श्चित नकरे। (निरुस्सबूर नरहमानिी) िनिदेशक नमत्स्य उत्तर नप्रदेश"

8. It is reflected from perusal of this order dated 12.10.2024 4 that the Chairman of the Society had filed a complaint regarding the appointment of Secretary of the Society, on which the Assistant Director (Fisheries), after conducting an inquiry, had submitted a report. It is stated in the order that the recommendation made in favour of Sri Vinod Kumar for the post of Secretary is contrary to the provisions of Rule 124(1) of the Rules, 1968, according to which, no Cooperative Society can appoint as its Secretary who is a close relative of a member of the Committee of Management of the Society. Whereas, Smt. Munni Devi, who is the wife of the Secretary, Sri Vinod Kumar, was elected by means of the election conducted by the U.P. Cooperative Societies Election Commission, Lucknow on 15.11.2021 and her name is registered at serial no.06 of the election list of the Committee of Management. Accordingly, it was directed to the Chairman that Sri Vinod Kumar be expelled from the post of Secretary and steps be taken for appointment of a new Secretary.

9. It is pertinent to mention here that the aforesaid communication dated 6.11.2024 recites the contents of the order dated 12.10.2024 passed by the Director Fisheries. It is also relevant to note that neither the contents of the order dated

12.10.2024 nor have those of the communication dated 1.11.2024 been denied by the deponent of this petition, who states himself to be the petitioner.

10. Rules 124 and 125 of the Rules, 1968 read as follows:- “124. (1) No co-operative society shall appoint any person as its secretary who does not possess the qualifications laid down under Section 120, or who fails to furnish the security as may, if any, be required under that Section or who is a near relation of a member of the Committee of Management of the Society. Every such appointment shall be subject to the regulations, if any, framed under Section 5 121 or 122. (2) Where the Government- has subscribed to the share capital of co-operative (a) society to the extent of not less than one lakh rupees; or has given loans or made advances to a co-operative (b) society; or (c) has guaranteed the repayment of principal and the payment of interest on debentures issued by a co-operative society; or (d) has guaranteed the repayment of principal and payment of interest and loans and advances to a co- operative society; then, the appointment of the Secretary of such a co- operative society shall be made subject to the prior approval of the Registrar, as provided in Rule 125.

125. (1) While sending to the Registrar for his approval the proposal of appointment of any person as its Secretary the co-operative society shall submit to the Registrar entire records relating to the selection and shall also give reasons for selecting a particular candidate. (2) If the person whose name has been submitted by the society to the Registrar under sub-rule (1) is considered by the Registrar as unsuitable, he shall intimate his objections to the society. (3) On receipt of the objections from the Registrar under sub-rule (2), the society shall, in the light of his objections, reconsider the matters and suggest out of the applicants another name who is considered as most suitable. While doing so, the society shall also mention two more persons who in the opinion of the society, are fit to be appointed as Secretary. (4) The Registrar may approve for appointment the candidate described as most suitable by the society and if he considers such a candidate as unsuitable, he may approve one of the other two candidates and intimate his approval to the society with reasons. (5) When the number of applicants does not exceed one or two, the Registrar may require the society to notify the vacancy again or he may approve the candidate selected by the society, as he may consider proper. Explanation. - For the purpose of this rule, a candidate will be considered unsuitable by the Registrar only if- 6 (i) the candidate does not fulfill the qualification laid down under Section 120 or under the regulations framed under Section 121 or Section 122 or under any other provisions of the rules and the bye-laws, or (ii) the candidate is a near relation of a Member of the Committee of Management,or (iii) having regard to the education, experience or other relevant qualifications, an obviously better candidate out of the applicants, in the opinion of the Registrar, is available for appointment.”

11. In the Explanation to Rule 125, a candidate will be considered unsuitable by the Registrar if the candidate is a near relation of a member of the Committee of Management. Admittedly, the deponent of this petition namely, Sri Vinod Kumar, is the husband of the aforesaid Smt. Munni Devi, who was declared elected as a member of the Committee of Management of the petitioner-Society on 15.11.2021. The deponent claims to have been appointed as Secretary of the Society on 1.7.2021. Therefore, on the election of his wife to the Committee of Management, he forfeited his right to continue as the Secretary in view of the provisions of Rules 124 and 125. His candidature, therefore, was rendered unsuitable in view of the explanation to Rule 125 of the Rules, 1968.

12. Under the provisions of the Act, 1965, the Registrar has been given wide ranging powers including powers under Sections 38 and 120 thereof. The Director Fisheries in its order of 12.10.2024 has taken care to direct the Committee of Management to remove Sri Vinod Kumar from the post of Secretary. This has been done apparently keeping in view the autonomy of the Society and the provisions of sub-section (1) of Section 31 of the Act, 1965 which provides for a Secretary of a Cooperative Society to be appointed 7 and removable by the Society. There is no illegality or want of jurisdiction or violation of any fundamental or legal right of the petitioner that has been violated by the Director Fisheries in the matter of passing the order dated 12.10.2024 pursuant to which the impugned communication dated 6.11.2024 was made.

13. This petition is, therefore, dismissed. Order Date :-07.01.2025 SK

Additional Chief Standing Counsel are two fold. Firstly, it is stated that the communication dated 6.11.2024 itself refers to a letter dated 12.10.2024 which is, in fact, an order passed by the Director, Fisheries directing the Society for removal of Sri Vinod Kumar from the post of Secretary of the Society as his appointment was in violation of Rule 124(1) of the Rules, 1968. The order of

12.10.2024 further directs steps to be taken by the Society for appointment of a new Secretary. Secondly, it is submitted by the learned Additional Chief Standing Counsel that by means of a notification of 28.1.1983, the Director of Fisheries was conferred the powers of the Registrar under the provisions of the Uttar Pradesh Cooperative Societies Act, 19652. Copies of the notification dated 28.1.1983 and the order dated 12.10.2024 passed by the Director of Fisheries are taken on record.

5. A perusal of the writ petition reflects that though the Cooperative Society is a body corporate by the name under which it is registered, having perpetual succession and a common seal, with power, inter alia, to institute suits and other legal proceedings, the writ petition has been filed through the Secretary against whom the impugned communication is directed. In the affidavit in support of the writ petition, the Secretary, Sri Vinod Kumar, has deposed in his personal capacity stating that he is the petitioner. It is also important to state that there is no resolution of the Committee of Management on record authorising its Secretary, Sri Vinod Kumar, to file this petition before this Court.

6. It is stated in the petition that the Secretary, Sri Vinod 2 Act, 1965 3 Kumar, was appointed as Secretary of the Society on 1.7.2021.

7. The order dated 12.10.2024 passed by the Director Fisheries, which order has neither been mentioned, nor enclosed nor challenged in this writ petition, reads as follows:- मत्स्य निनिदेशालय, उत्तर नप्रदेश, लखनिऊ न िदनिांकः12/10/2024 सह०शा न/सामान्य/सहारनिपुर/2024-25 पत्रांकः1269 01- सभापित/उपसभापित मत्स्य नजीवी नसहकारी नसिमित निलिमटेड, भारीदीनिदारपुर जनिपद नसहारनिपुर नद्वारा नसहायक निनिदेशक नमत्स्य, सहारनिपुर 02- प्रबंध नकमेटी मत्स्यजीवी नसहकारी नसिमित निलिमटेड नभारीदीनिदारपुर जनिपद नसहारनिपुर नद्वारा नसहायक निनिदेशक नमत्स्य, सहारनिपुर िवषयः न मत्स्य न जीवी न सहकारी न सिमित न िल० न भारीदीनिदार, जनिपद-सहारनिपुर न के सिचिव नकी निनियुिक्ति नके नसम्बन्ध नमे। उपयु रक्ति निवषयक नमत्स्य नजीवी नसहकारी नसिमित निल० नभारीदीनिदार, जनिपद- सहारनिपुर नके नअध्यक्ष नश्री नअमनि न कु मार नद्वारा नकी न गयी न िशकायती नपत्र नपर नसहायक िनिदेशक नमत्स्य, सहारनिपुर नद्वारा नजांचि नकरते नहुए नआख्या नउपलब्ध नकरायी नगयी नहै। सहायक निनिदेशक नमत्स्य, सहारनिपुर नद्वारा नप्रेिषत नउक्ति नआख्या नके नअवलोकनिोपरांत नयह स्पष्ट न होता न है न िक न श्री न िवनिोद न कु मार न का न मत्स्य न जीवी न सहकारी न सिमित न िल० भारीदीनिदार नके नसिचिव नपद नपर नअनिुमोदनि नउ०प्र० नसहकारी नसिमित नअिधिनियम-1965 एवं न उ०प्र० न सहकारी न सिमित न िनियमावली-1968 के न िनियम न124(1) के न िवरुद्ध न है, िजसके नअनिुसार नकोई नभी नसहकारी नसिमित निकसी नऐसे नव्यिक्ति नको नअपनिा नसिचिव निनियुक्ति निही नकरेगी नजो नसिमित नकी नप्रबंध नकमेटी नके निकसी नसदस्य नका निनिकट नसम्बन्धी नहो, जबिक नसिचिव नश्री निवनिोद नकु मार नकी नपत्निी नश्रीमती नमुन्नी नदेवी, 15.11.2021 को नउ०प्र० राज्य न सहकारी न सिमित न िनिवारचिनि नआयोग न लखनिऊ न द्वारा न घोिषत न चिुनिाव न पिरणाम न मे संचिालक नमंडल नकी निनिवारिचित नसूचिी नमे नक्रमांक नसंख्या-06 पर नदजर नहै। अतः न उक्ति न के न क्रम न मे नआपको न िनिदेिशत निकया न जाता न है न िक न िनियमानिुसार कायरवाही नकरते नहुए नश्री निवनिोद नकु मार नको नसिचिव नपद नसे निनिष्कािसत नकरते नहुए। ननिये सिचिव नको निनियुक्ति नकरनिे नकी नकायरवाही नकरनिा नसुिनिित श्चित नकरे। (निरुस्सबूर नरहमानिी) िनिदेशक नमत्स्य उत्तर नप्रदेश"

8. It is reflected from perusal of this order dated 12.10.2024 4 that the Chairman of the Society had filed a complaint regarding the appointment of Secretary of the Society, on which the Assistant Director (Fisheries), after conducting an inquiry, had submitted a report. It is stated in the order that the recommendation made in favour of Sri Vinod Kumar for the post of Secretary is contrary to the provisions of Rule 124(1) of the Rules, 1968, according to which, no Cooperative Society can appoint as its Secretary who is a close relative of a member of the Committee of Management of the Society. Whereas, Smt. Munni Devi, who is the wife of the Secretary, Sri Vinod Kumar, was elected by means of the election conducted by the U.P. Cooperative Societies Election Commission, Lucknow on 15.11.2021 and her name is registered at serial no.06 of the election list of the Committee of Management. Accordingly, it was directed to the Chairman that Sri Vinod Kumar be expelled from the post of Secretary and steps be taken for appointment of a new Secretary.

9. It is pertinent to mention here that the aforesaid communication dated 6.11.2024 recites the contents of the order dated 12.10.2024 passed by the Director Fisheries. It is also relevant to note that neither the contents of the order dated

12.10.2024 nor have those of the communication dated 1.11.2024 been denied by the deponent of this petition, who states himself to be the petitioner.

10. Rules 124 and 125 of the Rules, 1968 read as follows:- “124. (1) No co-operative society shall appoint any person as its secretary who does not possess the qualifications laid down under Section 120, or who fails to furnish the security as may, if any, be required under that Section or who is a near relation of a member of the Committee of Management of the Society. Every such appointment shall be subject to the regulations, if any, framed under Section 5 121 or 122. (2) Where the Government- has subscribed to the share capital of co-operative (a) society to the extent of not less than one lakh rupees; or has given loans or made advances to a co-operative (b) society; or (c) has guaranteed the repayment of principal and the payment of interest on debentures issued by a co-operative society; or (d) has guaranteed the repayment of principal and payment of interest and loans and advances to a co- operative society; then, the appointment of the Secretary of such a co- operative society shall be made subject to the prior approval of the Registrar, as provided in Rule 125.

125. (1) While sending to the Registrar for his approval the proposal of appointment of any person as its Secretary the co-operative society shall submit to the Registrar entire records relating to the selection and shall also give reasons for selecting a particular candidate. (2) If the person whose name has been submitted by the society to the Registrar under sub-rule (1) is considered by the Registrar as unsuitable, he shall intimate his objections to the society. (3) On receipt of the objections from the Registrar under sub-rule (2), the society shall, in the light of his objections, reconsider the matters and suggest out of the applicants another name who is considered as most suitable. While doing so, the society shall also mention two more persons who in the opinion of the society, are fit to be appointed as Secretary. (4) The Registrar may approve for appointment the candidate described as most suitable by the society and if he considers such a candidate as unsuitable, he may approve one of the other two candidates and intimate his approval to the society with reasons. (5) When the number of applicants does not exceed one or two, the Registrar may require the society to notify the vacancy again or he may approve the candidate selected by the society, as he may consider proper. Explanation. - For the purpose of this rule, a candidate will be considered unsuitable by the Registrar only if- 6 (i) the candidate does not fulfill the qualification laid down under Section 120 or under the regulations framed under Section 121 or Section 122 or under any other provisions of the rules and the bye-laws, or (ii) the candidate is a near relation of a Member of the Committee of Management,or (iii) having regard to the education, experience or other relevant qualifications, an obviously better candidate out of the applicants, in the opinion of the Registrar, is available for appointment.”

11. In the Explanation to Rule 125, a candidate will be considered unsuitable by the Registrar if the candidate is a near relation of a member of the Committee of Management. Admittedly, the deponent of this petition namely, Sri Vinod Kumar, is the husband of the aforesaid Smt. Munni Devi, who was declared elected as a member of the Committee of Management of the petitioner-Society on 15.11.2021. The deponent claims to have been appointed as Secretary of the Society on 1.7.2021. Therefore, on the election of his wife to the Committee of Management, he forfeited his right to continue as the Secretary in view of the provisions of Rules 124 and 125. His candidature, therefore, was rendered unsuitable in view of the explanation to Rule 125 of the Rules, 1968.

12. Under the provisions of the Act, 1965, the Registrar has been given wide ranging powers including powers under Sections 38 and 120 thereof. The Director Fisheries in its order of 12.10.2024 has taken care to direct the Committee of Management to remove Sri Vinod Kumar from the post of Secretary. This has been done apparently keeping in view the autonomy of the Society and the provisions of sub-section (1) of Section 31 of the Act, 1965 which provides for a Secretary of a Cooperative Society to be appointed 7 and removable by the Society. There is no illegality or want of jurisdiction or violation of any fundamental or legal right of the petitioner that has been violated by the Director Fisheries in the matter of passing the order dated 12.10.2024 pursuant to which the impugned communication dated 6.11.2024 was made.

13. This petition is, therefore, dismissed. Order Date :-07.01.2025 SK