IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.8.2008 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.Nos.3068,3069 and 3071 of 2001 O.Jayaraman .. Petitioner in W.P.No.3068 of 2001 M.Ramasamy .. Petitioner in W.P.No.3069 of 2001 V.P.Raman .. Petitioner in W.P.No.3071 of 2001 vs. 1. The Joint Registrar of Co-operative Societies Madurai 2. Thummukundu Primary Agricultural Co-operative Bank Ltd., Thummukundu, Usilampatti Taluk Madurai District rep. by its Special Officer .. Respondents in all the writ petitions These writ petitions are filed under Article 226 of the Constitution of India praying for the issuance of Writs of Certiorarified Mandamus to call for the records of the respondents particularly that of the second respondent relating to proceedings dated 23.9.2000 terminating the petitioners from service quash the same and consequently direct the respondents to reinstate the petitioners with continuity of service, full backwages and other attendant monetary and service benefits. For petitioners : Mr.T.S.Rajamohan For Respondents : Ms.D.Geetha Additional Government Pleader for R1 Mr.N.Damodaran for R2 C O M M O N O R D E R Heard Mr.T.S.Rajamohan, the learned counsel appearing for the https://hcservices.ecourts.gov.in/hcservices/ petitioners and Ms.D.Geetha, the learned Additional Government Pleader appearing for the first respondent as well as Mr.N.Damodaran, the learned counsel appearing for the second respondent. 2. Since the issues involved in the above writ petitions have arisen out of the same facts and circumstances, a common order is passed. The succinct facts of the case are as follows: 3. The petitioners had joined in the service of the second respondent Bank, as Salesmen, based on the resolution passed by the second respondent Bank. Pursuant to the said appointments, the petitioners' pay scales had also been fixed. The petitioners have been in continuous and uninterrupted service with the second respondent Bank for more than 240 days in a calendar year. Thus, they are qualified to be conferred permanent status, under the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981. However, after the elections were conducted for the Management of the second respondent bank, the elected Board had assumed office. Subsequently, the elected Board was superseded by the proceedings of the first respondent and a Special Officer had been appointed to manage the day to day affairs of the second respondent Bank. On the assumption of charge, the second respondent had terminated the services of the petitioners, without issuing show cause notices. Challenging the said impugned orders, the petitioners have preferred the present writ petitions, under Article 226 of the Constitution of India. 4. No counter affidavit has been filed on behalf of the respondents. 5. The learned counsel appearing for the petitioners had contended that the impugned orders passed by the second respondent are ultra vires and contrary to the principles of natural justice and therefore, they are liable to be set aside. The Special Officer of the second respondent bank does not have any legal right to issue the orders of termination, as the appointment orders, appointing the petitioners in service, had been passed by the President of the second respondent Bank. The second respondent had not followed the provisions of Section 77 of the Tamil Nadu Co-operative Societies Act, 1983, according to which, the second respondent ought to have passed the impugned orders only after getting the necessary directions from the Registrar of the Co-operative Societies. Since the petitioners had been in service for more than 240 days, their service should have been regularised in accordance with the provisions of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981. Since the petitioners were fully qualified to hold the posts in which they were appointed, the https://hcservices.ecourts.gov.in/hcservices/ second respondent does not have the power or authority to remove them from service without following the due procedures established by law. Even if the appointments of the petitioners are said to be irregular, the Registrar of Co-operative Societies, by proceedings, dated 12.5.2000, has observed that the Government of Tamil Nadu is considering the regularisation of such irregular appointments. Therefore, the orders of termination issued by the second respondent are premature and without jurisdiction. Further, in view of G.O.Ms.No.55, Cooperation, Food and Consumer Protection Department, dated 24.3.2000, the first respondent is the cadre authority and he alone can alter the service conditions of the employees coming under the common cadre. Therefore, the impugned orders passed by the second respondent are without jurisdiction. Since no notice had been given to the petitioners before they were terminated from service, the principles of natural justice had been violated and therefore, the impugned orders are liable to be set aside. 6. Per contra, the learned counsels appearing for the respondents had submitted that the petitioners had been appointed in service by the resolution passed by the second respondent Bank, without following the provisions of law and the Government orders and circulars. The petitioners had been appointed, illegally, contrary to Rule 149 of the Tamil Nadu Co-operative Societies Rules, 1988, without calling for the names of the candidates through the employment exchange. The appointments had also been made without following the communal roster. The appointments were contrary to the conditions prescribed in the circular of the Registrar of Co- operative societies in Na.Ka.40345/97, P.A.B, dated 1.8.1997. The appointments have been made without the prior permission of the Deputy Registrar of the Co-operative societies. In such circumstances, the petitioners had been removed from service by the orders of the special officer of the second respondent Bank. 7. The learned counsels appearing for the respondents had further submitted that the writ petitions are not maintainable, since they have been filed challenging the orders passed by the special officer, representing the second respondent Bank, which is not amenable to writ jurisdiction, as it cannot be categorised as "State" within the meaning of Article 12 or as a "person" or "authority" within the meaning of Article 226 of the Constitution of India. Since the petitioners have an alternative efficacious remedy under the Tamil Nadu Co-operative Societies Act, 1983, and the rules framed thereunder, to establish their rights, by challenging the impugned orders passed against them, they cannot come before this Court by way of writ petitions, under Article 226 of the Constitution of India. 8. The Larger Bench of this Court, in MARAPPAN K. Vs. THE DEPUTY REGISTRAR OF CO-OPERATIVE SOCIETIES, NAMAKKAL, (2006 (4) CTC 689), has held as follows: https://hcservices.ecourts.gov.in/hcservices/ "21. From the above discussion, the following propositions emerge: (i) If a particular co-operative society can be characterised as a 'State' within the meaning of Article 12 of the Constitution (applying the tests evolved by the Supreme Court in that behalf) it would also be 'an authority' within the meaning and for the purpose of Article 226 of the Constitution. In such a situation, an order passed by a society in violation of the bye-laws can be corrected by way of writ petition; (ii) Applying the tests in Ajay Hasia it is held that a co-operative society carrying on banking business cannot be termed as an instrumentality of the State within the meaning of Article 12 of the Constitution; (iii) Even if a society cannot be characterised as a 'State' within the meaning of Article 12 of the Constitution, a Writ would lie against it to enforce a statutory public duty cast upon the society. In such a case, it is unnecessary to go into the question whether the society is being treated as a 'person' or 'an authority' within the meaning of Article 226 of the Constitution and what is material is the nature of the statutory duty placed upon it and the Court will enforce such statutory public duty. Although it is not easy to define what a public function or public duty is, it can reasonably said that such functions are similar to or closely related to those performable by the State in its sovereign capacity. (iv) A society, which is not a 'State' would not normally be amenable to the writ jurisdiction under Article 226 of the Constitution, but in certain circumstances, a writ may issue to such private bodies or persons as there may be statutory provisions which need to be complied with by all concerned including societies. If they violate such statutory provisions a writ would be issued for compliance of those provisions. (v) Where a Special Officer is appointed in respect of a co-operative society which cannot be characterised as a 'State' a writ would lie when the case falls under Clauses (iii) and (iv) above. https://hcservices.ecourts.gov.in/hcservices/ (vi) The bye-laws made by a co-operative society registered under the Tamil Nadu Co- operative Societies Act, 1983 do not have the force of law. Hence, where a society cannot be characterised as a 'State', the service conditions of its employees governed by its bye-laws cannot be enforced through a Writ Petition. (vii) In the absence of special circumstances, the Court will not ordinarily exercise power under Article 226 of the Constitution of India when the Act provides for an alternative remedy. (viii) The decision in M.Thanikkachalam v. Madhuranthagam Agricultural Co-operative Society, 2000 (4) CTC 556, is no longer good law, in view of the decision of the Seven-Judge Bench of the Supreme Court in Pandeep Kumar Biswas case and the other decisions referred to here before. The Reference is answered accordingly. Registry is directed to place the paper before the appropriate Bench for its disposal. 9. In R.RATHAKRISHNAN Vs. DY.REGISTRAR OF CO-OP. SOCIETIES (2007) 6 MLJ 455), a Full Bench of this Court has held, in paragraphs 13, 16 and 17 of its order, as follows: "13. From the aforesaid findings of the Supreme Court in the case of A.Umarani v. Registrar of Co-operative Societies (supra), the following facts emerge: (i) G.O.Ms.No.86, dated 12.3.2001, was declared as nullity, the State Government having no power to issue such order. (ii) Rule 149 framed under Act, 1983, reflect the legislative recruitment policy and such provisions are mandatory in nature. (iii) Regularisation cannot be the mode of recruitment by any State within the meaning of Article 12 of the Constitution of India or any body or authority governed by the statutory Act or Rules framed thereunder. https://hcservices.ecourts.gov.in/hcservices/ (iv) Appointments made in violation of mandatory provision of the statue ignoring the minimum educational qualification, etc., is wholly illegal, which cannot be cured by taking recourse to regularisation. Those who have come by the backdoor should G.O.Ms.No.2000-Home dated 16.8.1976 through that and for that no show cause notice is required to be issued. In view of such finding of Supreme Court in A.Umarani v. Registrar of Co-operative Societies (supra), the observations, findings and directions given by Division Bench of this Court in L.Justine v. Registrar of Co-op. Societies, Chennai (supra) at paragraph 19(i) last portion of paragraph 19(v) and the finding with regard to regularisation of service of employees recruited prior to 12.3.2001, stand overruled. 16. In a recent judgment in Punjab Water Supply & Sewerage Board v. Ranjodh Singh (2007) 2 SC 491, the Supreme Court, while distinguished irregular and illegal appointments, noticed the Constitution Bench decision of the Supreme Court in Secretary, State of Karnataka v. Uma Devi (3) AIR 2006 SC 1806: (2006) 4 SCC 1: 2006-II-LLJ-722: (2006) 2 MLJ 326 and held that departmental instruction cannot prevail over statutory rule and constitutional provisions. "Any appointment, thus, made without following the procedure will be ultra vires." 17. The question of regularisation of illegal appointees fell for consideration before Constitution Bench of Supreme Court in Secretary, State of Karnataka v. Uma Devi (supra). In the said case, the Supreme Court held that persons appointed in violation of Article 14 and 16 are class by themselves, such appointees, though appointed de hors the statutory rule, their services cannot be regularised. In the said case of Secretary, State of Karnataka v. Uma Devi (supra), the Supreme Court further cautioned the High Courts and made the following observations at pp.332 & 336 of MLJ: "4......... Whether the wide powers under Article 226 of the Constitution are intended to be used for a purpose certain to defeat the concept https://hcservices.ecourts.gov.in/hcservices/ of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognised by our Constitution, has to be seriously pondered over. It is time, that the Courts desist from issuing orders preventing regular selection of recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. The passing of orders for continuance tends to defeat the very constitutional scheme of public employment. It has to be emphasised that this is not the role envisaged for the High Courts in the scheme of things and their wide powers under Article 226 of the Constitution are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the guardian of equal rights protection should not be forgotten. 12. In spite of this scheme, there may be occasions when the sovereign State or its instrumentalities will have to employ persons, in posts which are temporary, on daily wages, as additional hands or taking them in without following the required procedure, to discharge the duties in respect of the posts that are sanctioned and that are required to be filled in terms of the relevant procedure established by the Constitution or for work in temporary posts or projects that are not needed permanently. ...... Once this right of the Government is recognised and the mandate of the constitutional requirement for public employment is respected, there cannot be much difficulty in coming to the conclusion that it is ordinarily not proper for the Courts whether acting under Article 226 of the Constitution or under Article 32 of the Constitution, to direct absorption in permanent employment of those who have been engaged without following a due process of selection as envisaged by the constitutional scheme." 10. The Supreme Court, in SECY., STATE OF KARNATAKA Vs. UMA DEVI (3) ((2006) 4 SCC 1), has held as follows: https://hcservices.ecourts.gov.in/hcservices/ "It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain—not at arm’s length—since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the temporary, contractual, causal or daily-wage employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution. It is therefore not possible to accept the argument that the State action in not https://hcservices.ecourts.gov.in/hcservices/ regularising the employees was not fair within the framework of the rule of law. Orders for absorption, regularisation or permanent continuance of such employees are passed apparently in exercise of the wide powers under Article 226 of the Constitution. The wide powers under Article 226 are not intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognised by our Constitution. It is time that the courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. The passing of orders for continuance tends to defeat the very constitutional scheme of public employment. It has to be emphasised that this is not the role envisaged for the High Courts in the scheme of things and their wide powers under Article 226 are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the guardian of equal rights protection should not be forgotten. 11. From the above decisions, it is clear that there cannot be a direction from this Court to the respondents to regularise the illegal appointments. From the contentions raised before this Court by the learned counsels appearing for the respondents and on a perusal of the records available, it is clear that the appointments made by the Management of the second respondent Bank, appointing the petitioners in service, are contrary to Rule 149 of the Tamil Nadu Co-operative Societies Rules, 1988. The appointments of the petitioners have not been made through the employment exchange. Further, the circulars issued by the Registrar of Co-operative Societies, with regard to such appointments, have also not been complied with. The petitioners have not been in a position to show that their appointments have been made in accordance with the prevailing laws applicable to such appointments. Once it is found that the appointments are contrary to the provisions of law, the petitioners cannot be permitted to claim that their dismissal from service are not in accordance with the provisions of the Industrial Disputes Act, 1947, the Tamil Nadu Co-operative Societies Act, 1983, and the rules framed thereunder. Therefore, the reliefs sought for by https://hcservices.ecourts.gov.in/hcservices/ the petitioners in the above writ petitions are liable to be rejected. Hence, the writ petitions stand dismissed. Consequently, connected W.M.P.Nos.4231,4232 and 4234 of 2001, are also dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar lan To: 1. The Joint Registrar of Co-operative Societies Madurai 2. The Special Officer Thummukundu Primary Agricultural Co-operative Bank Ltd., Thummukundu, Usilampatti Taluk Madurai District 1 cc To Mr. N.Damodaran, Advocate, SR.45898 W.P.Nos.3068,3069, and 3071 of 2001 JSV [CO] RB 20/10/2008 https://hcservices.ecourts.gov.in/hcservices/