IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1387 of 2009 MANISH KUMAR VERMA son of late Kameshwar Verma, resident of village Bhuidhara, P.S. Samastipur Muffasil, District- Samastipur. Versus 1. THE STATE OF BIHAR through the Secretary, Co- operative Department, Government of Bihar, New Secretariat, Patna. 2. The Registrar, Co-operative Societies, Government of Bihar, New Secretariat,Patna. 3. The Deputy Registrar (Judicial),Government of Bihar, New Secretariat,Patna. 4. The Administrator –cum – District Magistrate , The Samastipur District Central Co-operative Bank Ltd.,Collectorate, Samastipur at Samastipur. 5. Managing Director, The Samastipur District Central Co-operative Bank Ltd., at P.O., P.S. & District- Samastipur. ----------- For the Petitioner : Mr. Umesh Pd.Singh, Sr.Adv. Mr. Amod Kumar. For the State : Mr. Rajesh Kumar Sinha, A.C. to G.P. 20 For the Bank : Mr. K.K. Sinha 3 11.8.09 A short issue in this Writ application is with regard to the validity of memo no. 585, dated 16.12.2008, issued by the Managing Director of the Samastipur , Central Co-operative Bank Ltd. by which order, the services of the petitioner have been terminated/ discontinued with immediate effect. Counter affidavits have been filed by the respondent- State and the Bank and rejoinders thereto. Having heard learned counsel for the parties , with their consent, this writ application is being disposed of at this stage itself. Petitioner’s father was in service of the said Bank. He died in harness on 5.6.2003. He was Senior Accountant in the Bank. In conformity with Rule 38 of the Central Co-operative Bank Service 2 Rules, as framed by the State Government and enforced under Section 66B of the Bank Co-operative Societies Act, 1935 as also the Circular of the State Government dated 11.5.2001 ( Annexure 1) of the State Government in the department of Co-operative. the matter of compassionate appointment of the petitioner was taken up in the meeting of the Committee for Compassionate Appointment of the respondent- Bank on 8.1.2004 , as constituted by the State Government. It accepted the request for compassionate appointment of the petitioner and recommended the same. Thereafter, the Executive Committee of the Bank considered the same on 25.1.2004 and permitted the Managing Director to make appointment and issue appointment letter accordingly. Accordingly on 19.7.2004, the Managing Director of the respondent- Bank issued appointment letter to the petitioner and pursuant thereto he joined. These actions of the Managing Director were then placed before the Board of Director of the Bank and were approved .While so approving the same, the Board of Director opined that salary would be paid after approval of the Registrar, Co-operative Societies, Govt. of Bihar. While the matter was pending consideration and the petitioner was not being paid, he approached this High Court by filing CWJC No. 11720 of 2005. While the writ petition was pending, it appears that the Chairman of the Bank endorsed upon the Attendance Register that the petitioner’s services were dispensed with and did not permit him to continue. When the writ petition was already pending, petitioner filed I.A. No. 3252/07 in the said writ petition bringing these facts on record and 3 challenging the action of the Chairman. The writ petition was heard and ultimately allowed by judgment and order dated 6.8.2007. The order of the Chairman , preventing the petitioner from working , was set aside. This Court also held that before any action could be taken against the petitioner any communication with regard to petitioner must be disclosed to the petitioner. In response thereto, by letter dated 10.10.08, petitioner was informed that in view of the decision of the Board of Director by which his appointment was approved and for payment of his salary, communication was made to the Registrar, Co- operative Societies. The Registrar, Co-operative Societies by his letter dated 8.12.2004 disapproved the appointment of the petitioner on compassionate ground. The petitioner was thus asked to explain why his services be not terminated. Petitioner filed his reply along with enclosures clearly stating that there was no illegality committed in his appointment on compassionate ground as in the said show cause a reference has been made to Section 11(1) of the Banking Regulation Act, 1949. Petitioner also enclosed therewith a notification of the Reserve Bank of India, dated 2nd June, 2000 by which the Reserve Bank of India has declared that provision of Rule 11(1) of the Banking Regulation Act would not apply to the respondent- Bank upto 31st March, 2004. As would be seen from the facts above, petitioner’s appointment was recommended much before 31st March , 2004 when admittedly and undisputedly the provision of Section 11(1) of the Act was not applicable. Be that as it may, the matter was then placed before the Board of Bank on 16.12.2008 and thereafter the decision of 4 the Board of Director was communicated by the Managing Director, vide impugned order, as contained in Annexure 10. A reference to the resolution of the Board of Director pursuant to which the impugned order was issued, which is Annexure A to the first counter affidavit of the Bank, would show that all they considered is that they had sought the approval of the Registrar, Co- operative Societies , who had disapproved and therefore pursuant to order passed by the High Court in the writ petition and the interlocutory application it was decided to terminate the services of the petitioner. This Court wonders where such directions were issued either in the interlocutory application or on the writ petition. To the contrary, based on the facts as averred in the interlocutory application, the writ petition was allowed and purported order of termination was set aside. Be that as it may, one must refer to memo no. 3415, dated 10.6.2008 issued from the office of the Registrar Co-operative Societies ,in response to a query under Right to Information Act. The query was specifically as to under what provision and/or authority the approval of the Registrar, Co-operative Societies is required for appointment of a person in a Bank on compassionate ground. The response was that there is no such requirement in law and the Board of Bank is competent to take such a decision .The said communication is Annexure 6 to the writ petition. It was also annexed along with show cause and was Annexure 6 to the show cause as well. At this stage, Court’s query as to from where does the Registrar- Co-operative 5 Societies derive the authority to grant approval or otherwise for appointment of an employee in a Co-operative Bank. Learned counsel submitted that no appointment in any Central Co-operative Bank can be made in view of Rule 33 of the Bihar Co-operative Societies Rule, as framed under the Bihar Co-operative Societies Act. For the sake of appreciation Rule 33 is quoted hereunder : “33. (1) Appointment of paid employees- (1) The appointment of a paid employee in any registered society shall be subject to such condition as to qualification, designation, scale of pay and traveling allowances, furnishing of security, compulsory contribution to provident fund, grant of leave, salary, increment, transfer, punishment, suspension, removal or dismissal as may from time to time, be determined by the Registrar by general or special order. (2) A registered society aggrieved by any order of the Registrar under sub-rule (1) may within sixty days of the receipt of such order, prefer an appeal against the order to the State Government and the decision of the State Government thereon shall be final. (3) Any appointment made hereinafterr in contravention of the conditions determined by the Registrar under sub-rule (1) shall be void as if no such appointment ever existed and salary and other allowances paid , if any, to such persons shall be recoverable under Section 40 of the Act.” To my mind a plain and simple reading of Rule 33 aforesaid would show that it confers no such authority, which the 6 Registrar assumes himself. In my view Rule 33 only gives power to the Registrar to issue general or special direction with regard to appointment and other matters. Those directions are general policy directions. By any stretch of imagination appointment of a person can be read therein. To the contrary, sub-rule(3) of Rule 33 makes abundantly clear that if the Registrar finds an appointment to the contrary of the Act or the Rule or the direction issued thereunder then alone he can annul such appointment but not otherwise. Even this cannot be read to give some sort of power of approval to the Registrar. Then the learned counsel for the State refers to Section 66B of the Act. That provision on the face of it is enabling or authorizing provision and does not talk about the Registrar’s power to grant approval of appointment. It gives power to the State Government to issue direction and nothing more. The Bank now tried to assail its own earlier decision as being wrong on the ground that at the time when compassionate appointment was granted to the petitioner, the Bank was running in loss. It should not have made appointment as by virtue of appointment the loss would have only increased. In my view, the Bank cannot be permitted to challenge its own action. It cannot be said that though it had authority, it should not have exercised, having exercised it. Five years after the decision was taken and appointment made, the Bank cannot turn around and review its decision of appointment. Once a person is appointed he can only be terminated on known ground as per service Rules. Petitioner had right to make an application for 7 compassionate appointment. He made an application .The Bank had the authority to accept it or to reject it on disclosed ground. It chooses to accept it. Contract of employment was complete. Petitioner did not do anything, which empowered the Bank to cancel the appointment. The appointment could not be so cancelled. Thus, on all counts I find that the petitioner was validly appointed on compassionate ground and that the cancellation of that appointment by the respondent- Bank as has been assailed in the present writ petition cannot be sustained. The cancellation of petitioner’s appointment is wholly without jurisdiction, perverse and arbitrary. The impugned order, as contained in Annexure 10 to the Writ petition as well as the decision of the Board of Director, as contained in Annexure A to the Bank’s first counter affidavit are thus liable to be quashed and are quashed as such. Petitioner would be deemed to be in continued service right from the time of his appointment for all practical purposes. With the aforesaid observation and direction this writ petition stands allowed. SINGH (Navaniti Prasad Singh, J.)