LPA No.113 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CASE NO.: LPA No.113 of 2009 DATE OF DECISION: March 3, 2009 JAGTAR SINGH ...APPELLANT VERSUS FINANCIAL COMMISSIONER & OTHERS ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA. HON'BLE MS. JUSTICE NIRMALJIT KAUR. PRESENT: MR. S.S. DALAL, ADVOCATE FOR THE APPELLANT MR. R.S. SHARMA, ADVOCATE FOR CAVEATOR. ASHUTOSH MOHUNTA, J. This Letters Patent Appeal has been filed by the appellant- Jagtar Singh challenging the order/judgement dated 30.01.2009, passed by the learned Single Judge of this Court, allowing CWP No.11654 of 2008, which has the effect of quashing appointment of the appellant as Salesman in respondent No.4-Society. The writ petition had been filed by three petitioners, namely, Jasbir Singh, Salwinder Singh and Smt. Rajwinder Kaur, who have also filed a caveat petition qua the present appeal and are hence before us. However, the appellant, for reasons best known to him, has impleaded only Jasbir Singh as respondent No.10 and has not impleaded Salwinder Singh and Smt. Rajvinder Kaur as party respondent in the present appeal though they are necessary parties as the judgement/order under challenge has been passed in the writ petition filed by them. However, since the said persons are already before us, having filed a caveat petition, LPA No.113 of 2009 -2- we by overlooking this technical defect, have proceeded to hear the appeal on merits. The brief facts of the case are that the competent authority granted permission on 2.9.2005 to the respondent No.4-Society to fill up a post of salesman. The Secretary of the respondent No.4-Society issued an agenda notice for the meeting of the Managing Committee of the Society scheduled to be held on 20.9.2005 at 11:00 AM in the office of the Society for appointment of a Salesman. There were ten members of the Managing Committee including eight elected members, one member appointed by Financial Institution and one government nominee. The case of the writ petitioners, who are members of the managing committee, throughout, has been that on 20.09.2005, when they came present in the premises of the Society, as per the schedule of the meeting, the office of the Society was closed and the Secretary was also not present. The meeting was not held at the scheduled time and place as is required under the Rule 110 of Haryana Cooperative Societies Rules 1989 (for short 'the 1989 Rules'). However, the respondents No.5 to 9 assembled at some other place, convened a meeting, wrote down the proceedings in a new register/proceeding book and appointed the present appellant as Salesman in the respondent No.4-Society. In the said meeting the writ petitioners, apart from government nominee, the nominee of the Financial Institution and the Secretary of the Society were not present. The writ petitioners filed a petition under Section 27 of the Haryana Cooperative Societies Act, 1984 (for short 'the Act') for rescinding the said resolution dated 20.9.2005. Respondent No.3-the Deputy Registrar Cooperative Societies vide order dated 27.3.2006, rescinded the said LPA No.113 of 2009 -3- resolution. Respondent No.3 found as a matter of fact that the meeting was not held at the fixed time and place. Respondent No.3-Deputy Registrar further held that matter was not so important wherein the decision was required to be taken on the same day even in the absence of secretary and government nominee and the meeting could have been called again. Respondent No.3-Deputy Registrar found that proper procedure was not adopted while making the appointment of the appellant and effort was made to appoint the person of their choice by respective groups. The appellant was given appointment letter by resolution dated 20.09.2005, without any application or request, and without advertising the vacancy, so as to give other unemployed persons as opportunity to apply for the said post. Respondent No.3 found the appointment of the appellant to be contrary to the Act and the 1989 Rules. The appeal filed by respondents No.5 to 9 was dismissed by the Appellate Authority, i.e. Respondent No.2-Registrar, Co-operative Societies and the order dated 27.03.2006, was upheld. Respondent No.2, upholding the finding of respondent No.3-Deputy Registrar, held that the appointment was made in clandestine manner, without inviting applications. No opportunity was given to other potential eligible candidates to compete before making appointment. Thereafter, respondents No.5 to 9 filed a revision petition under Section 115 of the Act, which was allowed by respondent No.1, vide order dated 9.4.2008. While allowing the revision, respondent No.1 held that the Society was competent to make the appointment and relied upon Section 36 of the Act, which reads as under:- “36. Acts of Cooperative Societies not to be invalidated by LPA No.113 of 2009 -4- certain defects.- No act of a cooperative society or any committee or any officer shall be deemed to be invalid by reason only of the existence of any defect in procedure or in the constitution of the society or of the committee or any vacancy in the membership or officer there of or in the appointment or election of an officer or on the ground that such officer was disqualified for appointment for election.” Aggrieved, the writ petitioners challenged the order dated 9.4.2008, by filing the aforementioned writ petition which has been allowed by the learned single Judge vide order dated 30.01.2009. The learned Single Judge held that the respondent No.1 being revisional authority, it was incumbent upon him to have considered the issue in relation to the findings recorded by respondents No.2 and 3, which has not been done. The competence of authority is only one element of the decision making and the authority is also required to follow the procedure laid down for the exercise of the jurisdiction, which was not followed while passing the said resolution. The learned Single Judge held that reliance by respondent No.1 on Section 36 of the Act was misplaced, relying on an earlier decision of this Court in Chander Datt and others vs. The Sonepat Central Cooperative Bank Ltd. (1989 PLJ 133), wherein interpreting a similar provision, it was held that provision was to protect the bonafide interests of the Cooperative Societies and those who have dealing with them but does not validate the appointments of the staff which are in direct breach of mandatory provisions of the Statute or the rules framed thereunder. LPA No.113 of 2009 -5- The learned Single Judge held that the defects pointed out in the process and procedure by the respondents No.2 and 3 were serious in nature, viz. the meeting was not held at the place and time given in the notice; the issue of selection of Salesman could have been taken up on other day and should not have been taken up in absence of the Secretary of the Society; the society should have published the post by way of munadi etc. in the area of operation of the society so that the other unemployed youth, eligible candidates, could compete for the post; no proper procedure was adopted for filling the post. The learned Single Judge further held that the reasons assigned by respondents No.2 and 3 were sufficient to rescind the resolution and respondent No.1 – revisional authority has failed to consider these facts and circumstances. The learned Single Judge allowed the writ petition and quashed the order of the respondent No.1 dated 9.4.2008, thus in effect affirming the earlier orders of the respondents No.2 and 3 rescinding the resolution dated 20.09.2005. We have heard the learned counsel for the appellant and caveator-writ petitioners. The first contention raised by the Learned counsel for the appellant was that the writ petitioners had no locus standi or cause of action to challenge the appointment of the appellant as they were neither candidate for the said post nor in the managing committee of the respondent No.4-Society. If any, cause of action arose, it arose to the respondent No.4- Society and not to the writ petitioners in their individual capacity. We are of the considered opinion that the contention is misconceived and is liable to be rejected. Every member of the society has a right and interest to see that the society functions in accordance with the applicable statute and the rules. The writ petitioners being members of respondent No.4-Society have LPA No.113 of 2009 -6- a right to challenge any illegal or unlawful act done in the name of the Society. Hence the writ petition is maintainable. The learned counsel has relied on Section 36 of the Act in support of his contention that if there is any defect, still the same is saved under the said provision. The learned Single Judge has dealt with this issue at length and we find the view taken by the learned Single Judge is correct interpretation of the said provision. The appellant was appointed without following the prescribed procedure in derogation to the applicable statute and rules. The appointment of the appellant without any application and without advertising the posts was discriminatory and violative of Articles 14 and 16 of the Constitution of India. In view of the above, we are of the considered opinion that the order/judgement of the learned Single Judge is sound in law. There is no error or infirmity in the view taken by the learned Single Judge and we do not find any valid ground to upset the order passed by the learned Single Judge. The appeal is without merit and the same is accordingly dismissed. (ASHUTOSH MOHUNTA) JUDGE March 3, 2009 (NIRMALJIT KAUR) Gulati JUDGE