IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 30.11.2009 Coram The Honourable Mr. Justice K.CHANDRU Writ Petition Nos.21576 and 25369 of 2008 and M.P.No.2 of 2008 in W.P.21576 of 2008 --- K.Amsaveni ..Petitioner in W.P.21576/2008 M.Subramaniyan ..Petitioner in W.P.25369/2008 Vs 1.State of Tamil Nadu rep. By its Secretary to Govt Cooperation, Food and Consumer Protection Department Secretariat, Chennai-600 009. 2.The Registrar of Cooperative Societies NVN Natarasan Maaligai 170, EVR Periar High Road Kilpauk, Chennai-600 010 3.The Erode District Central Cooperative Bank Ltd rep. By its Special Officer, Bhavani Road, Erode-638 002. .. RESPONDENTS in both the WPs Prayer:- Writ Petition under Article 226 of the Constitution of India, praying for the issuance of a writ of Certiorarified Mandamus calling for the entire records relating to the impugned G.O.(Rt) No.137 dated 17.07.2008 issued by the 1st respondent and quash the same as without jurisdiction and authority and consequently direct the respondents to implement the provisions of Rule 149(2)(i) of the Rules framed in consonance with Section 73 of the Tamil Nadu Cooperative Societies Act, 1983 and (ii) of the Tamil Nadu Co- op.Societies Rules 1983 by ordering for cancellation of appointments if any made in the District Central Co-op.Banks in Violation of Rules 149(2) consequent to the impugned G.O. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners : Mr.K.Premkumar For respondents : for R1 & R2 : Mr.R.Neelakantan, G.A. For R3 in W.P.21576/2008:- Mr.M.Dhandapani For R3 in WP.25369/2008:-Mr.B.K.Girish Neelakantan. O R D E R The two petitioners are employees of Dharapuram Agricultural Producers' Co-operative Marketing Society and Perundurai Agricultural Producers' Cooperative Marketing Society. Both the petitioners have come forward to challenge the Government Order in G.O.(Rt).No.137, Cooperation, Food and Consumer Protection Department dated 17.07.2008. Insofar as in the said G.O., it directs the consideration of filling up of the vacancies in various District and Central Cooperative Banks to the extent of 50% with the qualified candidates drawn from various Primary Agricultural Cooperative Bank for the purpose of filling up those posts. There was no necessity to conduct any written test and they have to follow earlier guidelines of G.O.(Rt).No.249, Cooperation dated 31.10.2006. By the said requirement excepting the Chennai Central Cooperative Bank in the other District Central Cooperative Banks those posts were to be filled up. 2. In the same order, there were six directions which were given while considering such candidates. They are as follows:- (a) Such candidates must have regularly appointed in accordance with the bye-laws. (b) They should not have crossed 40 years of age. (c) They should not have involved in the criminal and vigilance cases. (d) they should not have involved in a Departmental enquiries and should not have suffered severe punishment for 5 years. (e) They should not have subjected to enquiry under Section 81 Cooperative Societies Act, 1983 and should not have facing surcharge proceedings under Section 87. There should not be any proceedings pending for recovery of any amount for surcharge. 3. The petitioners were aggrieved by the reservation of 50% of vacancy exclusively to employees of Primary Agricultural Cooperative Banks (PACBs). Their contention is that the said reservation not only deprives other employees engaged is other than PACBs and the said direction is in direct conflict to Rule 149(2) of the Tamil Nadu Cooperative Societies Act. According to the petitioners, Proviso to Rule 149(2) grants permission to any society to fill up vacancies by direct recruitment. For candidate to be appointed https://hcservices.ecourts.gov.in/hcservices/ compassionate ground, absorption of surplus employees from other cooperative society, posts for which Recruitment Bureau has been constituted under Section 74 of the Act or in respect of which a common cadre of service has been constituted under Section 75 of the Act these provisions will apply. 4. This Court is at a loss to understand as to how the petitioners can invoke proviso of Rule 149(2). In case of direct recruitment itself, categories which are coming under that proviso also can be considered. It is unthinkable that the present order issued by the Government interfere with the statutory rules framed under the Tamil Nadu Cooperative Societies Act. In fact, in respect of direct recruitment, the rule did not contemplate any change. The Government by the impugned order has only directed the societies to grant 50% of posts to various PACB employees, if they are qualified. In so far as petitioners are concerned, neither the G.O., nor the Rule 149(2) enables them to be absorbed in any other co-operative society and it is not their condition of service. They cannot get appointment in some other society. Therefore, the attack by the petitioners against the order of the Government is misconceived. 5. The learned counsel for the petitioners submitted that G.O., is in the form of an administrative direction and such a direction cannot be granted in the light of the Full Bench judgment of this Court in R.Rathakrishnan Vs. Deputy Registrar of Cooperative Societies, Dindigul Circle reported in 2007(5) CTC 369. The said Full Bench came to be constituted in the aftermath of the stand taken by the State Government to get over the earlier Division Bench judgment of this court in L.Justin Vs Registrar of Cooperative Societies reported in 2002(4) CTC 385. The said judgment was also confirmed by the Supreme Court in A.Umarani Vs. Registrar of Co- op.Societies, 2004(7) SCC 122. The purport of the said decision that irregular appointees have no right to continue in the post in any co-operative society in the light of the Rule 149 of the Tamil Nadu Co-operative Societies Act, 1988. 6. To get over the said decision, the State Government issued certain orders which are referable to Article 162 of the Constitution of India. Therefore, this court held that considering the earlier legal precedents, the Government cannot exercise such jurisdiction under Article 162 of the Constitution or other Act and direct regularisation of any employee including employees of the Cooperative Society if the employments were made in contravention of the constitutional mandate. It is also stated that Article 226 of the Constitution of India cannot be used for the purpose of giving interim relief which will be a final relief without determining main issue. The said decision has no relevance in deciding the present case. https://hcservices.ecourts.gov.in/hcservices/ 7. On the contrary, in the present case, in the Government Order there is no direction to consider employees who were appointed contrary to any rules or regulations. But the conditions clearly stipulates that the employees who are employed in accordance with the sanction alone were directed to be considered for vacancies in the District Central Cooperative Banks. 8. The other submission that dehors Rule 149, the Government has no power to give directions also cannot be countenanced by this court, especially, in the context of Section 181 and 182 of the Co- operative Societies Act. In the present circumstances apart from direct recruitments to be made by any District Central Cooperative Bank, 50% of the vacancies arise in such banks will have to be filled up by employees working in various PACBs. It is only an additional concession given to societies to absorb in to a District Chennai Central Co-operative Banks. Neither the Central Cooperative Banks nor any aggrieved persons have questioned such a direction to recruit vacancies in those societies. 9. The grievance of the petitioners is really that there cases were not considered while the Government gave such directions. It must also to be noted that the employees association in various co- operative thrift society through their federation challenged the same G.O. For the reasons best known to them they withdrew the writ petition in W.P.No.19443 of 2008 by the order of this court dated 26.09.2008. No member can come forward for a similar relief. This point is noted only because the collective opinion of the union is not to continue the litigation. 10. In any event, in the present case the petitioners contended that apart from issues already dealt with such an executive instruction cannot be issued against a statutory rule. As already noted the power of District Central Cooperative Bank to resort to direct recruitment had not been hampered by the said order. The order only confines 50% of the vacancies to be filled up with the existing PACB staff. In such a case, exemption was granted from their being sponsored by an employment exchange. 11. The petitioners in so far as they are working in the cooperative society has to have their line of promotion only within the bye-laws of that society. Moving from one society to other society may not arise except by Rule 149(2)(a) which was introduced by G.O.326, Co-operation 23.11.2007. The said amendment facilitates deputation from one society to another society with a maximum period of three years. The petitioners right have neither been affected by the impugned order by the said G.O. https://hcservices.ecourts.gov.in/hcservices/ 12. Accordingly, the writ petitions stand dismissed. No costs. Consequently, connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar nvsri To 1.The Secretary to Govt Cooperation, Food and Consumer Protection Department Secretariat, Chennai-600 009. 2.The Registrar of Cooperative Societies NVN Natarasan Maaligai 170, EVR Periar High Road Kilpauk, Chennai-600 010 3.The Special Officer, Erode District Central Cooperative Bank Ltd, Bhavani Road, Erode-638 002. +2ccs to Mr.K.Premkumar, Advocate Sr 64866 & 64865 +1cc to Govt. Pleader Sr 64999 +1cc to Mr.B.K.Girish Neelakantan, Advocate Sr 65536 KU(CO) km/11.1. W.P.No.21576 and 25369 of 2008 https://hcservices.ecourts.gov.in/hcservices/