IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21.07.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.17106 to 17116 of 2011 and M.P.Nos. 1 to 3 (11) of 2011 G.Senthilkumar .. Petitioner in W.P.No.17106 of 2011 M.Chinnusamy .. Petitioner in W.P.No.17107 of 2011 M.Pichamuthu .. Petitioner in W.P.No.17108 of 2011 P.Sellappan .. Petitioner in W.P.No.17109 of 2011 A.Shanmugam .. Petitioner in W.P.No.17110 of 2011 K.Radha .. Petitioner in W.P.No.17111 of 2011 K.Dasaradhan .. Petitioner in W.P.No.17112 of 2011 A.Venkatjalapathy .. Petitioner in W.P.No.17113 of 2011 C.Murugan .. Petitioner in W.P.No.17114 of 2011 D.Ayyandurai .. Petitioner in W.P.No.17115 of 2011 N.Madhesu .. Petitioner in W.P.No.17116 of 2011 Vs. 1. The Government of Tamil Nadu, rep by its Secretary to Government, Cooperation, Food and Consumer Protection Department, Fort St George, Chennai-600 009. https://hcservices.ecourts.gov.in/hcservices/ 2. The Registrar, Registrar of Cooperative Societies, N.V.Natarajan Maligai, 170,Periyar E.V.R. High Road, Kilpauk, Chennai-600 010. 3. The Joint Registrar of Cooperative Societies, Salem Region, Salem. 4. Salem District Central Cooperative Bank Ltd., rep by its Special Officer/Joint Registrar of Cooperative Societies, Head Office, Salem-636 001. 5. The District Employment Officer Salem District, Salem-636 007. .. Respondents in all writ petitions These writ petitions are preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records relating to the order passed by the 1st Respondent in G.O. (Ms) No.33 Cooperation Food and Consumer protection (CP1) Department, dated 1.3.2011 dismissing the Review Petition filed by the Petitioners and thereby confirming its earlier order dt 9.8.2010 in G.O. (Rt) No.100 Cooperation Food and Consumer Protection (CP1) Department consequently confirming the order dt 11.11.2009 in proceedings Rc. No. 4864/2009 CBS1 passed by the 2nd respondent and orders dated 11.10.2008, 15.10.2008 made in Na.Ka. No.3996/2008 Ne1, Na.Ka.No.2134/2007 Ne 1 passed by the 3rd Respondent and to quash the same and consequently to direct the Respondents to appoint the petitioners in the post of Assistants in the 4th Respondent Bank. For Petitioners : Mr.R.Muthukumarasamy, Senior Advocate for Ms.R.Gouri For Respondents : Mr.L.P.Shanmugasundaram, AGP (Co-op.) COMMON ORDER The petitioners in all these writ petitions are strangers to the fourth respondent Bank in whose service they wanted to get in to as Assistants. They have been filing cases after cases before this court with one relief or other. The fourth respondent Bank is the Salem District Central Cooperative Bank Limited, represented by its Special Officer. The bank has its own special bylaws relating to the service conditions of its employees. The rules were framed under Rule 149 of the Tamil Nadu Cooperative Societies Rules, 1988 (for short TNCS Rules) and they were approved by the State Government vide Rule 149(1) of the TNCS Rules vide G.O.Ms.No.84, Consumer, Food and Consumer Protection Department, dated 15.3.2004. As per bylaw No.10, it is stated as follows: https://hcservices.ecourts.gov.in/hcservices/ "10.AGE AT ENTRY AND AGE OF RETIREMENT. In matters of age for appointment and retirement, the provisions contained in subrule (3) of rule 149 shall be followed." (Emphasis added) 2.Rule 149(3) of the TNCS Rules has stipulated that in the matters of reservation for appointments and age for appointment and retirement, the rule applicable to the Government servants shall be followed. The original rule enacted reads as follows: "149(3)In matters of reservation for appointments and age for appointment and retirement, the rule applicable to the Government servants shall be followed." 3.Subsequently, the rule underwent a change by S.R.O.A- 34/2005 by which the words "age for appointment and retirement" were dropped from the rule. By the said amendment, the Cooperative Societies need not follow the Government rule and they can have their own bylaws. The fourth respondent Bank had issued a press publication informing that there were 30 posts of Assistants to be filled up. Therefore, they had called for requisition from the District Employment Exchange. The persons who were aspiring to apply for the posts must have degree along with Cooperation training or B.A. or B.Com in Cooperation subject. It is also stated as as on 1.4.2008, they should not have crossed 35 years. In respect of persons belonging to MBC, SC, ST and BC, they should be below 40 years. At the time of the said press publication and the requisition called for, the petitioners herein had crossed the age limit stipulated therein. Though they were not in employment in Bank or employment in any other cooperative societies, they sent representations stating that by G.O.Ms.No.98, Personnel and Administrative Reforms Department, dated 17.7.2006, the State Government had granted relaxation from the upper age limit for a period of five years. Therefore, they were eligible for such relaxation and their cases should be considered. 4.This court while entertaining the writ petitions in W.P.No.33000 of 2007 and batch cases, by an order dated 10.09.2008 had directed the District Employment Officer, Salem to consider their representations for sponsoring their names. Another person by name T.Chandrasekaran filed W.P.No.4124 of 2008 seeking for a direction to forward his name for consideration by the Cooperative bank. That writ petition was also disposed of by an order dated 30.09.2008 directing the person's name to be sponsored. In the mean while, the fourth respondent bank informed various aspirants that as per G.O.Ms.No.222, Cooperation, Food and Consumer Protection Department, dated 13.7.2007, five years' relaxation will come to 32+5 = 37 years in respect of MBC. Since the petitioners had crossed that age, their request for considering to the post of Assistants will not arise. In each of the case, the petitioner had beyond the age stipulation by the Bank. 5.Thereafter, the petitioners once again came before this court with batch of writ petitions being W.P.Nos.30578 of 2008 and https://hcservices.ecourts.gov.in/hcservices/ batch cases (since reported in 2009 (5) CTC 237). In that batch of cases, the prayer of the petitioner was that the communication sent by the bank negativing their claims should be set aside and their claims for appointment should be considered by the Bank. The learned Judge of this court had posed a question as to whether the District Central Cooperative Banks registered under the Tamil Nadu Cooperative Societies Act, 1983 was amenable to the writ jurisdiction? After going through various contentions, in paragraph 32 of the order, it was observed as follows: "32.In the result, the writ petitions fail and they are accordingly dismissed. However, the petitioners are at liberty to work out their remedies as indicated above in accordance with law. If any representation in this regard is made by the petitioners either to the Government or to the Registrar of Co-operative Societies, the same shall be considered in the light of the findings and observations made above and appropriate order shall be passed within four weeks from the date of representation...." 6.Taking advantage of the said observation, the petitioners sent representations to the State Government dated 09.10.2009. Their representations sent to the Government were forwarded to the second respondent Registrar of Cooperative Societies and he was directed to dispose of those representations. On receipt of the representations, the second respondent by communication dated 11.11.2009 held that in respect of cooperative societies, the age for appointment will be as to what is prescribed by the cooperative societies and covered by various circulars and letters. In that communication, the Registrar had stated as follows: "(1)The Rule 149(3) of TNCS Rules 1988 has been amended in G.O.Ms.No.133 Cooperation, Food and Consumer Protection Department dated 14.7.05 in which for the words "age for appointment and retirement", the words "age for retirement" were substituted and hence the original provisions of Rule 149(3) is not applicable to cooperatives since 14.7.05. The rule prior to amendment cannot be followed after 14.7.05. Based on Government Order No.133, CF and CP Department dated 14.7.2005, Registrar vide circular No.19/2007 dated 24.8.07 and vide letter No.Rc.77915/03/SF4 dated 3.9.2007 has prescribed the age limit for entry level posts in cooperative institutions. As per the said circular and letter, the maximum limit for BC & MBC is 32 years. With the relaxation given by Government in G.O.No.222 dated 13.7.2007 the maximum age limit for appointment in cooperatives in respect of BC & MBC is 37 years. In the same circular, it is instructed that for computing the age, the 1st January of the year of appointment shall be adopted. The petitioner's name was sponsored by the Employment Exchange in its letter dated 19.9.2008, the petitioner has crossed the age limit of 37 years fixed for BC/MBC as on 1.1.2008. https://hcservices.ecourts.gov.in/hcservices/ (2)Government in G.O.No.98 P and A R Department dated 17.07.06 have relaxed the age limit for entry in the Government service by five years. Had the norms applicable to Government servants are applicable to employees of Cooperatives, Government might not have issued a separate Government order with regard to relaxation of age limit for entering into service. As the Cooperatives are independent legal entities, Government in G.O.No.222, Cooperation Food and Consumer Protection Department dated 13.7.07 have issued a separate order and relaxed the age limit for entry level posts by 5 years. This itself is a clear proof that the age limit as applicable to Government servants is not applicable to cooperatives. The rule applicable for appointment in Government service and in cooperative institutions are entirely different and cannot be compared." 7.The petitioners after getting orders from the second respondent sent applications purporting to be one under Section 153 (1) of the Tamil Nadu Cooperative Societies Act, 1983 to the State Government vide their applications, dated 24.11.2009. They had reiterated the same contentions that the orders of the Bank negativing their claims for the posts of Assistants solely on the ground that they had crossed the upper age of 37 years was untenable and that they are eligible to get age exemption. When the State Government did not deal with their revision petitions purported to be under Section 153, they came once again before this Court with W.P.Nos.13592 to 13605 of 2010. Those writ petitions came to be disposed of by an order dated 29.06.2010. Pursuant to the directions issued by this court, the State Government had rejected the revision petitions filed by the petitioners under Section 153 by their order in G.O.Ms.No.100, Cooperation, Food and consumer Protection Department, dated 9.8.2010. In that order, the first respondent State government held that as per Rule 149(1)(i), the qualification for entry into various posts will be only as per the special bylaws of the society. In respect of the fourth respondent Cooperative Bank, the special bylaws were amended with retrospective effect from 24.8.2007. As per special bylaws, the age prescribed was 35 years for SC and ST community, 32 years for BC and MBC communities and that for other communities it was 30 years. As per G.O.Ms.No.222, Cooperation, Food and Consumer Protection Department dated 13.7.2007, a person who is entering into the service of cooperative society can be given only maximum of five years' relaxation. Therefore, the Government had informed that since the bylaws provide for upper age limit and even after the grant of concession of five years, since the petitioners had crossed the upper age limit, their request cannot be entertained. 8.Undaunted by the reply sent by the Government, the petitioners once again filed review petitions purporting to be under Section 154 of the Tamil Nadu Cooperative Societies Act, 1983 and asked for a review of its earlier order. In that they had stated that the present appointment drive cannot be covered by the https://hcservices.ecourts.gov.in/hcservices/ amended bylaws. Therefore, the Government order should be reviewed. The State Government by the impugned order made in G.O.Ms.No.33, Cooperation, Food and Consumer Protection Department dated 01.03.2011 had dismissed their review applications. With reference to the contention that the amended bylaws not applicable to the present recruitment drive, in paragraph 9 of the order, it was stated as follows: '9....it is found that the entire process of appointment was commenced on the basis of the letter Rc.3904/96/E1, dated 79.2007 of the Salem District Central Cooperative Bank to the Employment Exchange, Salem. The 5 years relaxation given in G.O.Ms.No.38 P&AR(S) Department dated 17.7.2006 shall apply for Government jobs. From para 3 of the said G.O it is clear that the said G.O is not applicable for recruitment of employees in Cooperative Societies. The 5 years relaxation for appointment in Cooperative Societies was given by the Government only in G.O.Ms.No.222 Cooperation, Food and Consumer Protection (CJ1) Department dated 13.7.2007. If the 5 years relaxation given in G.O.Ms.No.98, dated 17.7.2006 is applicable for appointment in Cooperatives, the Government wold not have issued the G.O.MsNo.222 Cooperation, Food and Consumer Protection (CJ1) Department dated 13.7.2007. The age limit specified in the Registrar's Circular No.19/2007, dated 24.8.2007 for appointment in Cooperative societies for candidates belonging to BC, MBC and Denotified Tribes shall be 32 years. The byelaws of the Bank were amended on 30.6.2008 with retrospective effect from 24.8.2007 i.e., the date of issue of the Registrar's said Circular. As per Sub section (8) of Section 11 of the TNCS Act, 1983 an amendment to the byelaws of a society shall take effect from the date if any, specified in the amendment. As the TNCS Act provides for retrospective amendment of byelaws of the society, the above said amendment of the Salem District Central Cooperative Bank is lawful. As the entire process of appointment has commenced from 7.9.2007, the age limit of 32 years fixed for the BC and MBC candidates followed as per the amended byelaw No.10 of the byelaws of the Salem District Central Cooperative Bank is correct. By applying the 5 years relaxation given in G.O.MsNo.222 Cooperation, Food and Consumer Protection (CJ1) Department dated 13.7.2007, the maximum limit for BC/MBC candidates shall be 37 years. As all the applicants have crossed the maximum age of 37 years, they are not eligible for appointments as per the provisions of the byelaws in force at the time of appointment." https://hcservices.ecourts.gov.in/hcservices/ 9.With reference to the posts being filled up with overaged persons as alleged by the petitioners, the same was refuted and in paragraph 10, it was stated as follows: "10.On the petitioner's averments as stated in (v) above, it is found that consequent to the order of the Hon'ble High Court on the Contempt Petition No.90 of 2004, 58 persons were appointed in the respondent bank reckoning the age at entry as on 1.3.2001. At the time the age at entry prescribed was 35 years in the SC, BC, MBC and Denotified Tribes and 30 years for others as per the circular of Registrar of Co-operative Societies Rc 135138/96 CBS1, dated 7.10.1996. The petitioners' averment that applicants who have crossed 35 years were appointed pursuant to the said Contempt Petition is not correct. As regards to the age limit followed by the Erode District Central Co-operative Bank in its recruitment, the same cannot be applied to the Salem District Central Co-operative Bank because each District Central Cooperative Bank is a separate entity whose appointments / recruitments are governed by their unique and specific provisions in their individual special byelaws." 10.It is in that view of the matter, the State Government had refused to review its own earlier order. The petitioners are once again before this court for the nth time challenging the present review order. 11.Mr.R.Muthukumarasamy, learned Senior counsel appearing for petitioners contended that the Government's impugned order was illegal and it is contrary to the earlier order passed by this court reported in 2009 (5) CTC 237. 12.The petitioners cannot clutch on to a stray observation made in paragraph 31 of the earlier order wherein it was stated "that the grievances of the petitioners are well founded and the court was unable to give remedy and it was helpless to issue any direction because of non maintainability of the writ petitions" cannot be torn out of context. If this court lacks power to entertain any writ petition and after holding such writ petitions are not maintainable, any further observation made on the merits of the case will have to be considered as "obiter dicta" and not binding on the authorities. 13.First of all, the petitioners' locus standi to file such writ petitions has to be considered before dealing with the merits of their claims. The petitioners are rank outsiders to the service in question and they have made applications for employment in a cooperative society. Only if they come within the requisition made to employment exchange or under the notification, they will be considered. As per the requisition made by the fourth respondent Bank, the petitioners are ineligible to be sponsored. The special bylaws framed and approved by the Government which is relied upon https://hcservices.ecourts.gov.in/hcservices/ by the respondents are statutory in character. As rightly held by the State Government, it has been brought with retrospective effect. The petitioners cannot have any grievance over the application of special bylaws as they are not in service of the bank and they are not coming within the age restriction prescribed therein. 14.Secondly, merely because they are aspirants for the posts, they do not get locus standi to question the special bylaws which were framed by the society and implemented after prior approval of the State Government. When once they have no locus standi to question the bylaws framed by the society and such bylaws are not in conflict with the provisions of the Cooperative Societies Act and rules, there cannot be any grievance expressed over the same. It is not as if the society did not consider any age relaxation as pr the Government Order applicable to the cooperative society, i.e., G.O.MsNo.222, Cooperation, Food and Consumer Protection Department dated 13.7.2007. Having obtained five years relaxation, they cannot have second relaxation basing upon some other Government letter or order which are having no binding effect on the society. In fact, under Section 182, the State Government has power to give direction only in public interest and by such direction, they can make the Registrar to make an enquiry into the affairs of the society. The power under Section 182 is not a general power and that power cannot be used for the society to make appointment in a particular fashion contrary to its own bylaws. Though the power of the Registrar to give directions in public interest is slightly wider as per Section 181, even such power cannot be given relating to appointment of the Secretary or paid servant of the cooperative society. The power under Section 181 is held to be general in nature. In this context, it is necessary to refer to a judgment of this Court in T.Mutheeswaran Vs. The Registrar of Cooperative Societies (Housing), Gandhi Nagar, Adyar, Chennai and others reported in 1999 (2) CTC 626. Therefore, the petitioners cannot have any locus standi to question the special bylaws framed by the fourth respondent cooperative bank. 15.Further, the petitioners have had three rounds of litigation before this Court. In their first representation, the State Government had forwarded it to the second respondent to be dealt with by him. The second respondent by an order dated 11.11.2009 had negatived their request. The power exercised on the part of the second respondent can only be referable to Section 153 of the Tamil Nadu Cooperative Societies Act, wherein he has got power of revision. Even proviso to Section 153(1) prescribes limitation for the exercise of such power. Under Section 153, both the State Government and the second respondent have concurrent powers. Notwithstanding the order passed by the second respondent, dated 11.11.2009, the petitioners once again had invoked the jurisdiction of Section 153 with the first respondent by their petitions dated 24.11.2009. The State Government had negatived the revisions filed by them by passing G.O.Ms.No.100, Cooperation, Food and Consumer Protection Department dated 9.8.2010. The petitioners should have been lest contended with that order. On the contrary, https://hcservices.ecourts.gov.in/hcservices/ they had filed review applications under Section 154. The said review is available for applicants in revision petition or respondent if the order passed under Section 152 or 153 that too on the basis of discovery of new and important facts which after exercise of due diligence were not then within the knowledge or could not be produced by them when the order was made or on the basis of some mistakes or error apparent on the face of the record or for any other sufficient reason. It is not clear as to how such review is maintainable when the petitioners in their applications had only re-stated their earlier contentions in the revision. They had not made out any ground for reviewing the order. But, nevertheless the State Government had entertained the review and dismissed it on merits. Therefore, this court is not inclined to go into the maintainability of the review though their applications for review are totally misconceived. Since the State Government had clarified that the order of the Government will not apply to the Cooperative society and such order relating to the Cooperative society in G.O.Ms.No.222, Cooperation, Food and Consumer Protection Department dated 13.07.2007, the petitioners have no right to agitate the said issue again and again. 16.The action of the petitioners are nothing but raids on this court. Already they had three rounds of litigation before this court besides one before the Registrar and two rounds before the State Government. That too the petitioners were not employees of the cooperative bank, but rank outsiders and mere aspirants to get an employment in the society. 17.Similar challenges made to the selection made by various District Central Cooperative Banks, such as Sivaganga, Virudhunagr and Ramanathapuram Banks were dismissed by the Madurai Bench of this Court. 18.Further the question as to whether the employer can fix the upper age limit and that the relaxation available in terms of the G.O can be enforced came to be considered by the Supreme Court in a judgment in Tirumala Tirupati Devasthanams v. K. Jotheeswara Pillai reported in (2007) 9 SCC 461. In that case, the Supreme Court dealt with the similar issue in the Tamil Nadu Civil Services. The following passages found in paragraphs 6, 7, 9 and 10 may be usefully extracted below: “6. Rule 4 gives a long list of rules made by the Government of Andhra Pradesh in respect of the employees of the State Government which have been made applicable to Tirumala Tirupathi Devasthanams employees, which includes the Fundamental Rules and the Subsidiary Rules issued thereunder, the Andhra Pradesh Civil Services (Conduct) Rules, 1964, the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1963, etc. Rule 11 of the Rules clearly provides that no person shall be eligible for appointment to the service by direct recruitment to any post in the service of Tirumala Tirupathi Devasthanams in Annexure II if he has completed the https://hcservices.ecourts.gov.in/hcservices/ age of 28 years or the age prescribed therefor in the said annexure as on 1st July of the year in which the notification for recruitment is issued. It also provides for general relaxation of age in accordance with the orders issued by the Government and also in respect of persons belonging to reserved categories such as Scheduled Castes and Scheduled Tribes and backward classes. Thus the Rules make complete provisions regarding qualification and age for direct recruitment and also in respect of category of persons to whom relaxation can be granted which would be in accordance with the government orders. The Rules do not mention anywhere that while making direct recruitment any services rendered as an NMR employee has to be taken into consideration or some relaxation in age is to be granted on its basis. The writ petitioners had worked for a brief period as NMR employees in 1984-86. It was after a gap of more than six years that they were appointed by way of direct recruitment on 17-8-1992. Under the Rules they were clearly ineligible for being given any appointment as admittedly they were overage. 7. Learned Single Judge allowed the writ petition mainly on the ground that on two earlier occasions the appellant had granted exemption from age and qualifications and no material was placed before the High Court as to