IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.8.2008 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.No.3728 of 2001 K.Selvan .. Petitioner vs. 1. The President Thiruparamkundram Cooperative Primary Agricultural & Rural Development Bank Limited Thirunagar, Madurai 2. The Additional Registrar of Cooperative Societies Kilpauk, Chennai – 600 010 .. Respondents This writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records relating to the order of the first respondent dated 28.1.2000 issued in the Ref.No.Nil and the order of the second respondent dated 21.9.2000 issued in the Ref.No.Na.Ka.No.49196/2000 chapa 1 and quash the same and direct the respondents to reinstate the petitioner with all consequential benefits. For petitioner : Mr.R.Muthukumar For Respondents : Mr.P.Srinivasan for R1 Ms.D.Geetha Additional Government Pleader for R2 O R D E R Heard R.Muthukumar, the learned counsel appearing for the petitioner as well as Mr.P.Srinivasan, the learned counsel appearing for the first respondent and Ms.D.Geetha, the learned Additional Government Pleader appearing for the second respondent. 2. The petitioner has stated that he was appointed as a clerk in the first respondent Bank on a fixed pay of Rs.1,800/- per month, https://hcservices.ecourts.gov.in/hcservices/ by an order of the first respondent, dated 1.2.1997. In the year 1998, the petitioner was deputed for cooperative training for one year. After completion of the training, the petitioner's service was confirmed in the post of Supervisor, by an order, dated 27.9.1999. However, in the month of January, 2000, the petitioner was removed from service by an order of the first respondent, dated 28.1.2000. 3. The petitioner has further stated that he had challenged the said order before this Court in a writ petition in W.P.No.2559 of 2000. The said writ petition had been disposed of, by an order, dated 11.2.2000, directing the petitioner to avail the remedy of revision under the provisions of the Tamil Nadu Co-operative Societies Act 1983. This order has been confirmed in W.A.No.428 of 2000. Thereafter, pursuant to the said orders, the petitioner had filed a revision before the second respondent. The said revision petition had been rejected by the second respondent, by an order, dated 21.9.2000. Since the order of the first respondent, dated 28.1.2000 and the order of the second respondent, dated 21.9.2000, are illegal and unsustainable in the eye of law, the present writ petition has been filed, under Article 226 of the Constitution of India, challenging the said orders. 4. In the counter affidavit filed on behalf of the first respondent, the claims made by the petitioner have been denied. The Registrar of Co-operative Societies appointed in accordance with the provisions of the Tamil Nadu Co-operative Societies Act, 1983, is the final authority to issue directions for the guidance of the Cooperative Institutions, under Section 181 of the said Act. Further, the administration of the elected Board of the Cooperative Institutions are governed by the Registered By- laws and the Special By-laws of the respective Institutions. The Registrar of Cooperative societies has been issuing the circulars from time to time, instructing the cooperative Institutions to keep the establishment and contingent expenses within 2% of the working capital of such Institutions. 5. It has been further stated that when the vacancy arises in the approved cadre strength, it should be filled up only with the prior permission of the Registrar and by following the provisions of law applicable to such appointment. Rule 149 of the Tamil Nadu Cooperative societies Act, 1988, prescribes some of the conditions to be followed, while making appointments to the posts in the cooperative Institutions. One of the conditions prescribed is that the candidate should be appointed through the employment exchange. Such a condition has not been followed in the present case as the petitioner has been appointed without following such a procedure established by law. In fact, the petitioner had been appointed in a non-existing post. When the irregularity in the appointment of the petitioner had been brought to the knowledge of the Department, an inspection under Section 82 of the Tamil Nadu Cooperative Societies https://hcservices.ecourts.gov.in/hcservices/ Act, 1983, had been ordered. It was found that the Board of the Management of the first respondent Bank had violated the norms laid down for making such appointment. Therefore, the Deputy Registrar of Cooperative Societies, Madurai, had initiated the proceedings, under Sections 87 and 88 of the Tamil Nadu Cooperative Societies Act, 1983, against those, who had violated the rules and the law while making such appointments. 6. Further, various other irregularities were found to have been committed in a number of cooperative Institutions, including the conclusion of illegal settlements under the provisions of the Industrial Disputes Act, 1947. After the elected Boards were dissolved and Special officers were appointed, invoking Section 89 of the Tamil Nadu Cooperative Societies Act, the Registrar of Cooperative Societies had instructed all the Special Officers to take appropriate measures to rectify the irregularities in the appointments, promotions, wage revisions etc., found to have been committed by the Management of the Cooperative Institutions. Accordingly, the Special Officer of the first respondent Bank had retrenched the irregularly appointed persons including the petitioner by invoking the power vested in him. Since the petitioner had been appointed in a non-existing post and beyond the cadre strength approved for the first respondent bank, the said appointment was irregular. Since the petitioner had not been appointed through the employment exchange, as prescribed by Rule 149 of the Tamil Nadu Cooperative Societies Rules, 1988, the appointment of the petitioner is also illegal. Therefore, the petitioner cannot claim that his retrenchment from service is illegal and void. He cannot invoke the provisions of the Industrial Disputes Act, 1947, to justify his illegal appointment, nor can he take shelter under the provisions of the Act for nullifying the impugned orders passed by the first respondent, retrenching him from service. Since an illegally appointed person cannot claim any right to the post in which he was so appointed, his appointment cannot be protected by invoking the provisions of law, including the Industrial Disputes Act 1947, as held by the Supreme Court in STATE OF U.P. Vs. DESH RAJ ((2007) 1 SCC 257), ASHOK KUMAR SONKAR Vs. UNION OF INDIA ((2007) 4 SCC 54) and STATE OF JHARKHAND Vs. MANSHU KUMBHKAR ((2007) 8 SCC 249). 7. The learned counsel appearing for the petitioner had submitted that the impugned orders are contrary to the law applicable to the petitioner's service, since the order of his appointment does not mention about the accumulated work. The reason for the petitioner's appointment being the accumulated work, his retrenchment stating the reason that the accumulated work had been cleared and therefore, he was being retrenched, are not acceptable. 8. The learned counsel appearing for the petitioner had also stated that the reason given in the impugned order of the first https://hcservices.ecourts.gov.in/hcservices/ respondent for retrenching the petitioner from service is that he was not appointed through the employment exchange is also not acceptable, as the said appointment was made by the first respondent and it is not due to the fault of the petitioner. Further, three other persons had been taken back in the service while the petitioner alone had been retrenched. Therefore, the reason stated by the first respondent retrenching the petitioner from service is not sustainable. Since the procedure contemplated under Section 25-F of the Industrial disputes Act, 1947, had not been followed, the impugned order of the first respondent retrenching the petitioner from service is illegal and liable to be set aside. 9. In view of the submissions made by the learned counsels appearing for the petitioner as well as the respondents and in view of the decisions of the Supreme Court cited above, it is clear that the petitioner has been illegally appointed by the first respondent and therefore, the order of the first respondent, dated 28.1.2000, issued in the Ref.No.Nil and the order of the second respondent, dated 21.9.2000, issued in the Ref.No.Na.Ka.No.49196/2000 chapa 1, dismissing the revision petition filed by the petitioner, cannot be found to be illegal. Since the appointment of the petitioner is not in accordance with the provisions of Rule 149 of the Tamil Nadu Cooperative Societies Rules, 1988, and the circulars of the Registrar of the Co-operative societies, the petitioner cannot take shelter under the provisions of Section 25-F of the Industrial disputes Act, 1947, to claim that his retrenchment from service by the first respondent is illegal. Since the petitioner cannot claim any right over the post in which he was illegally appointed, there is no cause or reason for this Court to hold that the impugned orders of the respondents are unsustainable in the eye of law. 10. In such view of the matter, the reliefs sought for by the petitioner cannot be granted by this Court. Hence, the writ petition stands dismissed. No costs. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar lan https://hcservices.ecourts.gov.in/hcservices/ To 1. The President Thiruparamkundram Cooperative Primary Agricultural & Rural Development Bank Limited Thirunagar, Madurai. 2. The Additional Registrar of Cooperative Societies Kilpauk, Chennai – 600 010. W.P.No.3728 of 2001 LA (CO) GSK 22.12.2008. https://hcservices.ecourts.gov.in/hcservices/