ivil Appeal Nos
4676  4793 of 1989
From the Judgment and Order dated 261089 of the Bombay High Court in WP No 3976 of 1989
PC Jain SS Ray BA Mansodkar Manoj Swarup PH Parekh JH Parekh Sunil Dogra
AM Khanwilkar VD Khanna and AS Basme for the appearing parties
The following Judgments of the Court were delivered RAY J This is an appeal under Article 133 of the Constitution of India against the Judgment and Order dated October 26 1989 passed by the High Court of Bombay in Writ Petition No 3976 of 1989 whereby the High Court directed the Registrar of Cooperative Societies to give fresh notice to the elected members as well as to the 3 persons namely 2 nominees of the Financial Institutions and the expert co opted member
494 The matrix of the case is that the appellants who are the duly elected Directors of the Sanjay Sahakari Sakhar Karkhana Ltd hereinafter to be termed as Karkhana signed a requisition and sent the same to the respondent No 3 the Joint Director of Sugar and Joint Registrar Co operative Societies Maharashtra State Pune requesting him to summon a special meeting of the Committee of the Karkhana to con sider the proposed motion of no confidence against the Chairman of the Committee Dattatraya Waman Patil respond ent No 1
This requisition was signed by more than 13rd of the total members of the committee in accordance with the provision of Clause 2 of Section 73 ID of the Maharashtra Cooperative Societies Act 1960 Maharashtra Act No XXIV of 1961
The above requisition was received in the office of the Joint Director of Sugar and Joint Registrar Cooperative Societies Maharashtra State Pune the respondent No 3
On 691989 the respondent No 3 issued a notice dated September 13 1989 convening a special meeting of the Manag ing Committee of Karkhana ie Board of Directors of the Karkhana on 259
This notice was issued as contem plated by Clause 3 of Section 73 ID of the Act
This notice was sent to all the members of the Committee of the Karkhana who at that time were entitled to sit and vote at any meeting of the Committee ie the elected members of the said Committee of Management
Over and above a copy of the notice was sent to the office of Registrar Deputy Director of Sugar Aurangabab Presiding Officer
A copy of this notice was also sent to the office of the Managing Director of the Karkhana as by way of this notice the Managing Director had been directed to produce the minute book of the Committee meeting and hand over possession thereof to the Presiding Officer at the commencement of the special meet ing
On 18989 the respondent No 1 filed writ petition No 3976 of 1989 before the High Court at Bombay challenging the requisition notice dated 5989 signed by the 10 appellants who are elected members of the Managing Committee as well as notice dated 13989 issued by the respondent No 3 mainly on the ground that under the scheme of the Act read with the Rules and the bye laws of the Karkhana coopted member and nominees of the Financial Institutions who are members of the Board of Directors of the Karkhana and are entitled to sit and vote at the special meeting when the Committee considers the vote of no confidence under Section 73 ID of the Act are required to be served with the said notices of requisition enabling them to partici 495 pate in the said special meeting
This writ petition was heard by the Division Bench of Bombay High Court on 261089
On a consideration of the provisions of Section 73 ID read with Rule 57A and bye law No 29 of the Bye Laws of the Society the High Court allowed the writ petition holding that the 3 members of the second Category who have got a limited right to vote at a meeting except at a meeting to elect Chairman or Vice Chairman are entitled to be served with notices of the special meeting and to participate in the said meeting and as the two nominees of the Financial Institutions and the expert Coopted members had not been served with the notices of requisition meeting the requisi tion meeting cannot be held
Instead of quashing the notice issued by the respondent No 3 convening the meeting the High Court directed the Registrar the respondent No 3 to issue fresh notices to the elected members as well as to the 3 Directors of the Second category gory before holding the meeting and disposed of the writ petition accordingly
The High Court however restrained the Chairman to enter into new contracts and as well as giving any fresh commitment on behalf of the Karkhana
The appellants filed a petition under Article 133 of the Constitution of India against the Judgment and order dated October 26 1989 passed by the High Court Bombay in Writ Petition No 3976 of 1989
The High Court by Order dated 261089 granted certificate for appeal to this Court under Article 1341 of the Constitution of India on the following questions Whether the nominees of the Financial Institutions and the expert co opted by the Committee under Bye law 29 are in cluded within the expression Committee members who are for the time being entitled to sit and vote at any meeting of the Committee In order to decide the above question it is appropriate to consider the relevant provisions of the Maharashtra Cooperative Societies Act 1960 to be hereinafter called the Act  and the rules framed thereunder as well as the rele vant bye laws of the particular Cooperative Society in question
The Karkhana is a Cooperative Society governed by the Maharashtra Cooperative Societies Act
Section 27 defines Committee as the Committee of Management or Board of Direc tors or other directing body by whatever name called in which the management of the affairs of the society is vested under Section 73 of the said Act
496 Section 27 which deals with the voting powers of the members provides in Sub section 9  that no nominee of the Government or of my Financial Bank on any society shall be entitled to vote at any election of its Committee
Section 73 states that the management of every society shall vest in a Committee constituted in accordance with this Act the rules and bye laws which shall exercise such powers and perform such duties as may be conferred or imposed respec tively by this Act Rules and the Bye laws
Therefore the management of every Cooperative Society is vested in the Committee of management or for that in the Board of Direc tors of the Society
Section 73 ID which is relevant for determination of the said question is quoted below 73 ID 1 A President Vice President Chairman ViceChair man Secretary Treasurer or any other officer by whatever designation called who holds office by virtue of his elec tion to that office shall cease to be such President Vice President Chairman Vice Chairman Secretary treasurer or any other officer as the case may be if a motion of no confidence is passed at a meeting of the committee by two third majority of the total number of Committee members who are for the time being entitled to sit and vote at any meeting of the committee and the office of such President Vice President Chairman Vice Chairman Secretary treasur er or any other officer as the case may be shall thereupon be deemed to be vacant
The requisition for such special meeting shall be signed by not less than one third of the total number of members of the committee who are for the time being entitled to sit and vote at any meeting of the committee and shall be delivered to the Registrar
The requisition shall be made in such form and in such manner as may be prescribed Provided that no such requisition for a special meeting shall be made Within a period of six months from the date on which any of the officers referred to in sub section 1 as en tered upon his office
3 The Registrar shall within seven days from the date of receipt of the requisition under sub section 2 convene a special meeting of the committee
The meeting shall be held on a date not later than fifteen days from the date of issue of the notice of the meeting
 497 Rule 57A Motion of no confidence against the officers of the Society 1 The requisition to call the special meeting of the committee of a society to consider a motion of no confidence against the President Vice President Chairman ViceChair man Secretary Treasurer or other officer of the society by whatever designation called who holds office by virtue of his elections to that office shall be made in Form M 18
The requisition shall be accompanied by a the grounds of no confidence b the text of the motion of no confidence to be moved c the name of the committee members who shall move the motion of non confidence d a list of members of the committee specifying their full names and address who are for the time being entitled to sit and vote at any meeting of the committee e signatures of the members of committee who are signing the requisition duly attested by the Chief Executive Officer of the society or Special Executive Magistrate or Executive Magistrate or any Gazetted Officer of the Government
2 The requisition referred to in sub rule 1 shall be delivered in person to the Registrar
Such requisition or requisitions shall be delivered in duplicate in each case
The Registrar on ascertaining that the requisition or requi sitions as the case may be have been signed by not less than 13rd members of the Committee who for the time being are entitled to sit and vote in any meeting of the commit tee of society
a receive and acknowledge the requisition under his signa ture with date and time b issue notice within 7 days from the date of receipt of the requisition convening the special meeting for that purpose specifying therein place date time name and desig nation of the officer who shall be presiding over such 498 meeting to all the members of the Committee the Presiding Officer and the Managing Director General Manager Manager Paid Secretary Group Secretary or such employee of the society to whom the Registrar has directed to produce minute book of Committee meetings of the society
This notice of no confidence shall also be issued to the offi cer or officers against whom the motion of noconfidence is being moved
and shall be accompanied by the copy of the requisition along with enclosures and agenda
5 The time of the meeting shall be between office hours of the authorised officer
The meeting shall be held either in the office of the Registrar or in the office of the person authorised by the Registrar to preside over the meeting
6 No other subject except the motion or motions of nocon fidence shall be kept on the agenda
7d The Registrar or the officer authorised to preside over the meeting shall not allow any other person to enter the place of meeting except the person or persons appointed to assist him the officer of the society who has produced the minute book the officer or officers against whom the motion of no confidence is moved the members of the committee who are for the time being entitled to sit and vote in any meeting of the committee who are present at the commence ment of the meeting and police officer or officers if called by him to maintain the law and order
BYE LAW No 29
Board of Directors A xxxxxx B xxxxxx to E xxxxxx F Managing Director and representatives in sub clause d and e Coopted Technical Director shall not be enti tled to function as Chairman and Vice Chairman
The 499 representatives referred to in above sub clause d and technical expert coopted as per provisions of sub clause e and Managing Director will not be entitled to vote at the meeting for the election for Chairman and Vice Chairman The representative of the State Government shall not be entitled to vote on any subject at any meeting of the Board But his opinion will be recorded in the minute book
He will not be responsible for mismanagement and negligence of the Board
Further no action can be taken against him for any losses sustained to the Karkhana due to the mismanagement and the negligence of the Board
 It has been contended on behalf of the appellant that Section 27 sub section 9  debars the Government nominee or the nominee of any Financing Bank on any society to vote at any election of the Committee of the Society and as such except the elected Directors other Directors can not partic ipate in the election of the Managing Committee of the Society and cannot vote for such election
It has been also submitted that under section 73 ID Clause A in the special meeting convened for consideration of no confidence motion against the Chairman and Vice Chairman of the society and other officers of the society only the members who are for the time being entitled to sit and vote at any meeting of the Committee may participate and vote in the said meeting
It has also been provided therein that as soon as vote of no confidence is passed against the Chairman of the managing committee of the society by 23rd majority of the total number of committee members who are for the time being entitled to sit and vote the office of Chairman etc
shall be deemed to be vacant
Therefore it has been submitted that the word at any meeting of the committee shall be deemed to refer to all the meetings of the managing commit tee or the Board of Directors
The nominees of the Financial Institutions and also the coopted expert coopted Technical Director having been not entitled to function as a Chairman and Vice Chairman and not to vote at the meeting of the election for Chairman and Vice Chairman of the Board of Directors are not entitled to sit and vote in the special meeting convened for the purpose of consideration of the no confidence motion against the Chairman of the Board of Directors
It has also been contended in this connection that the Chairman of the managing committee or of the Board of Directors is elected by the elected Directors of the managing committee
It is against the democratic principles that the motion of no confidence against the Chairman for removal from his elected office are to be passed by the 23rd majority of the members of the Board of Directors including the Directors who 500 are representatives of the Financial Institutions and expert nominee co opted Mr SS Ray learned counsel appearing on behalf of the respondent No 1 has on the other hand joined issues and submitted that the right to participate in the special meeting convened for consideration of no confidence motion against the Chairman is a statutory right flowing from the provisions of the statute
This right has been conferred expressly by the provisions of section 73 ID read with Rule 57A Clause 2b read with Clause 7D ie members of the committee who are for the time being entitled to sit and vote in any meeting of the Committee Though Section 27 sub section 9 enjoins that no nominee of the Government or of financing bank or of any society shall be entitled to vote at any election of its committee
This merely means and signifies that the nominee of the Government as well as of the Financial Institutions are not entitled to participate in the election meeting of the society and from casting their votes in such meeting
Bye law 29 of the Bye Laws of the Society provides that the Board of Directors of the Karkhana would consist of the following members section No Particulars No of Members
Members falling under Bye elected producer 11 law No29A members 2
Members failing under Bye elected by society 01 law No29B members 3
Members falling under Bye Managing Director 01 law No29C Ex officio
Members falling under Bye Representative of 01 law No29Di the financing agency
Members falling under Bye Representatives of 01 law No 29Dii Indian Finance Corporation of India LIC IDBI etc
Not more than two In the present case only 6
Members falling under Representative of NIL Bye law No 29Diii ICICI One In the present case
Members falling under Bye Nominee of the 01 law NO29Div State Government 501 8
Members falling under Bye Expert nominee 01 law No 29E
co opted
Members falling under elected from SC 02 bye law No 29G ST and Weaker rw section 73B Section
Total Strength 19 It is also evident from the provisions of Bye law No 29 that the Representative of the State Government shall not be entitled to vote on any subject at any meeting of the Board but his opinion may be recorded in the minute book
So far the representatives referred to in Clause Di and Dii in Bye law No 29 that is representative of the financing institutions as well as the expert nominee co opted fall ing under Bye law 29E are entitled to participate in the special meeting and also cast their votes in such meeting
This being the position it is against the provisions of the Act Rules and Bye laws of the society to hold that the members falling under Bye law 29Di and ii as well as the expert nominee co opted under Bye law 29E are not entitled to sit and vote in the meeting of the committee convened for consideration of the no confidence motion against the Chairman Board of Directors or for that of the Managing Committee
This interpretation will be wholly going against the clear meaning of the expression namely members who are entitled to sit and vote at any meeting of the committee
The right to participate in the special meeting as well as to vote for such meeting is a statutory right and it flows from the provision of the Act Rules and Bye laws of the Society
It has nothing to do with the democracy
The words entitled to sit and vote in any meeting o the socie ty refer to member to sit and vote not in every meeting but in any meeting of the society
The only express bar as provided in section 27 is that the members that is the Directors representatives of the Financial institutions as well as the Expert Director co opted are not competent to participate only in the election of members of the society
The said Directors have been conferred the right to partici pate in any meeting including the special meeting of the Board of Directors or of the Managing Committee of the society 
It is appropriate to refer of Jamuna Prasad Mukhariya and Others vs Lachhi Ram and Others 1955 Vol 1 SCR 608 at 610
It has been observed The right to stand as a candidate and contest the election is not a common law right
It is a special right created by statute and can only be exercised on the conditions laid 502 down by the statute
The Fundamental Rights Chapter has no bearing on a right like this created by statute
The appel lants have no fundamental right to be elected Members of Parliament
If they want that they must observe the rules
 We have gone through the Judgment rendered by our Learned Brother Hon ble Mr Justice RM Sahai we are however unable to concur with the views expressed by our Learned Brother and the findings arrived at therein
We therefore hold that the requisition meeting that has been convened cannot be held as the representatives of the Finan cial Institutions in the Board of Directors as well as the Expert Director co opted under the relevant provisions of Bye law No 29 have not been served with the requisition notices of special meeting convened by the respondent No 3 pursuant to the said requisition notice
The impugned notice convening the special meeting is wholly illegal and unwar ranted
Furthermore as we have found hereinbefore that the two Directors representing the Financial Institutions as well as the expert nominee co opted are entitled to parti ciapate in the special meeting of the committee and also to vote at the same meeting as regards the no confidence mo tion the non service of the notic of the said meeting on the aforesaid Directors renders the said special meeting illegal as there has been an infringement of the provisions of the said Act Rule 57A of the Maharashtra Cooperative Societies Rules 1961 and Bye Laws 29Di and ii and 29E of the Bye Laws of the Society
We therefore dismiss the appeal and allow the writ petition filed in the High Court
The appellants will pay costs quantified at Rs 5000 to the respondents
RM SAHAI J
The short question of law that arises for consideration in this appeal directed against the order of Bombay High Court is whether the nominees of financial institutions and co opted Technical Directors who are not entitled under bye law 29 of the Sanjay Sahakari Sakhar Karkhana Ltd hereinafter called as Society  framed under Maharashtra Co operative Societies Act 1960 for brevity Act  either to function as Chairman or Vice Chairman of the Board of Directors of the Society or to vote at their election are entitled to participate in a special meeting requisitioned for consideration of motion of no confidence under Section 73 ID of the Act
Resolution to requisition a special meeting to consider motion of no confidence against Chairman of the Board signed by more than 13rd members of the Board was deliv ered to the Registrar as 503 required by Rule 57 A along with a list of members who were entitled to sit and vote
Notices on it were issued under Clause b of sub rule 2 of rule 57 A to elected members only
Validity of it and consequent proceedings were chal lenged before the High Court amongst others for being violative of rule 57 A as it required the Registrar to issue notices to all members of the Board
Further nominees of financial institutions being vitally involved in the welfare of the Society their presence was essential for effective and meaningful discussion even if they were not entitled to sit and vote
Various other objections were raised
But the High Court did not find merit in any except the one relating to non issuance of notice to nominees of financial institu tions and the expert co opted by the Board
Reason for it was wider construction of the expression who are for the time being entitled to sit and vote at any meeting of the committee used in section 731D of the Act
The High Court found that even though it would have been more logical to restrict such right to those alone who were entitled to elect yet it widened the ambit of expression because if two meanings were possible then the meaning which extended the right to vote rather than that limited should be accepted
It also found that right to vote on a resolution of no confidence being an important matter affecting the Society it should be extended to even nominated members who had a right to vote at some meeting
Bye law 29 framed by the Society gives out the Consti tution of the Board of Directors comprising of elected ex officio representatives and co opted members
But right to be elected as Chairman or Vice Chairman of the Board or even voting at the meeting of such election has been confined to elected members by clause F which is extracted below Managing Director and representatives in sub clauses d and e Co opted Technical Director shall not be entitled to function as Chairman and Vice Chairman
The representa tives referred to in above sub clause d and technical expert director coopted as per provisions of subclause e and Managing Director will not be entitled to vote at the meeting for the election of Chairman and ViceChairman
The representative of the State Government shall not be entitled to vote on any subject at any meeting of the Board
But his opinion will be recorded in the minute book
He will not be responsible for mismanagement and negligence of the board
Further no action can be taken against him for any losses sustained to the Karkhana 504 due to the mismanagement and the negligence of the board   The question is how does it reflect on the right to participate in a meeting of no confidence against the Chair man of the Board For this purpose it is necessary to ex tract sub section 1 of section 731D which reads as under A President Vice President Chairman Vice Chairman Secretary Treasurer or any other officer by whatever desig nation called who holds office by virtue of his election to that office shall cease to be such President Vice Presi dent Chairman Vice Chairman Secretary Treasurer or any other officer as the case may be if a motion of noconfi dence is passed at a meeting of the committee by twothird majority of the total number of committee members who are for the time being entitled to sit and vote at any meeting of the committee and the office of such President Vice President Chairman Vice Chairman Secretary Treasurer or any other officer as the case may be shall thereupon be deemed to be vacant This sub section provides the manner in which a Chairman or Vice Chairman who holds such office by virtue of his election may cease to hold it
It also provides the method of such removal by twothird majority of the total members of the committee who are for the time being entitled to sit and vote in any meeting of the Committee
It is thus clear that the right to remove and elect Chairman and ViceChairman has been restricted to only limited class of members
Who are they Elections in a democracy have been conceived as an instrument of selecting the best qualitatively superior and politically valuable
Who should be entitled to reverse the selection Those who elect or any other numbers increased by any methodology or law adding representatives and nominees not entitled to participate in selection
If the value of elective process has to have primacy then those worthy of choice should not be permitted to be squeezed out by those who are precluded from leadership or electing the leader
This basic concept does not stand altered or modified either by any provision in the Act or Rules
Literal construction of expression entitled to sit and vote  if it results in negation of democratic process or is against logic and is fraught with danger of removal of an elected representative by 505 nominees of financial institutions or government then it has to be avoided
Reverting to statutory right the scheme of the Act does not warrant the conclusion that such members are entitled to participate in meeting requisitioned under section 73 ID
Sub section 9 of Section 27 reads as under No nominee of the Government or of any financing bank on any society shall be entitled to vote at any election of its committee
 It clearly and unequivocally debars nominees of finan cial institutions or Government representatives from exer cising any right to vote at any election meeting
Therefore the provisions in the bye law debarring such a member from voting at election of Chairman or ViceChairman cannot be interpreted to mean as permitting such representatives to vote at other election meeting as that may result in invali dating the bye law
Even if such members have some right to vote in some meetings other than election meetings or they have a right to record their opinion it does not entitle them to participate or even served with notice of vote of confidence as nature of meeting for considering motion of no confidence has all the characteristics both in content and effect of an election meeting
Voting is sine qua non of election and under clause i of sub rule 7 of Rule 57 A the decision to retain Chairman is arrived at by voting and such right namely right to vote in election meeting being non existent in nominees of financial institutions or of Government the expression entitled to sit and vote used in section 73 ID has to be read as excluding such members from its ambit
Such reading of the provision is necessary not only because it is more logical but also that is the outcome of combined reading of sub section 9 of section 27 sec tion 73 ID and bye law 29
For these reasons this appeal succeeds and is allowed
The Writ Petition filed in the High Court is dismissed
But there shall be no order as to costs
Y Lal Appeal dismissed


Summary:
The appellant a diploma holder was in 1964 appointed as Transport Officer Class I Technical Grade Group A which post was later redesignated and merged with the post of Mechanical Engineer Junior in 1968
The Geological Survey of India Group A  and Group B  posts Recruitment Rules 1967 framed under Article 309 of the Constitution were brought into force in 1969
The appellant was promoted as a Mechanical Engineer Senior in 1973 and his conditions of service were governed by the said Rules which had been amended from time to time
One such amendment made in 1984 prescribed that for promotion to the post of Director ME a degree in Engineering was a requisite qualifica tion
The appellant challenged before the Central Adminis trative Tribunal the validity of the said notification on the ground that it affected his chances of promotion or alternatively his right to be considered for promotion to the post of Director ME
It was contended that applying the amended Rule in so far as the appellant was concerned would amount to giving retrospective effect to the operation of the rule and no retrospective rule could be framed under Article 309 of the Constitution
The Tribunal rejected the contention and held that it was for the Government to pre scribe such qualifications as it considered fit and the Tribunal could not interfere unless it was shown to be perverse
Aggrieved against the Tribunal s order the appellant has preferred this appeal by special leave
Dismissing the appeal this Court HELD 1
Mere chance of promotion is not condition of serv ice 445 and the fact that there was reduction in the chances of promotion did not tantamount to a change in the conditions of service
A right to be considered for promotion is a term of service but mere chances of promotion are not
448D state of Maharashtra and Anr
vs Chandrakant Anant Kulkarnt and Others   relied on
TR Kapur and Others vs State of Harvana and Others 1986 Suppl SCC 584 referred to 2
In the instant case no retrospective effect has been given to the said amended rule
It is not the case that the appellant has been reverted from the post which he occupies on the ground of lack of any qualification
The only effect is that his chances of promotion to the higher post is adversely affected
Alteration of rules of eligibility cannot be invalidated on the ground that an employee s claim to be eligible for promotion is adversely affected
This cannot be regarded as retrospective effect being given to the amendment of the rules carried out by the Notification and the challenge to the said notification on that ground must fail
448F G 3
The fact that for the higher post of Deputy Director General Engineering Service it is not necessary to hold a graduate degree is no reason why a degree requirement for the post of Director Mechanical should be regarded as unreasonable or bad in law
It is for the Government to decide what qualification was required for promotion to the post of Director ME and unless that requirement was totally irrelevant or unreasonable it could not be said to be bad in law
419B C