IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.01.2010 CORAM: THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN W.P.Nos.38038 & 36157 of 2006 A.Murugaiyyan ... Petitioner in Both W.Ps. versus 1. The Director of Co-operative Audit, Chepauk, Chennai – 5. 2. The Assistant Director of Co-operative Audit, pudukkottai. 3. The Registrar of Co-operative Societies, Kilpauk, Chennai-10. ... Respondents in W.P.No.38038 of 2006 1.The Secretary to Government, Co-operative, Food and Consumer Protection Department, Secretariat, Chennai – 9. 2.The Registrar of Co-operative Societies, Kilpauk, Chennai – 10. ... Respondents in W.P.No.36157 of 2006 PRAYER in W.P.No.38038 of 2006: This writ petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.7222 of 1998 from the file of the Tamil Nadu Administrative Tribunal to call for the records on the file of the first respondent in connection with the order passed by him in his proceedings Na.Ka.38437/93 a Pa A1 dated 07.02.1998 and also on the file of the second respondent in his proceedings Na.Ka.No.1525/98 Pa.Tho.dated 16.02.1998 and quash the same and direct the respondent to allot the petitioner to the Co-operative Department. https://hcservices.ecourts.gov.in/hcservices/ PRAYER in W.P.No.36157 of 2006: This writ petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.6578 of 1998 from the file of the Tamil Nadu Administrative Tribunal to call for the records on the file of the second respondent in connection with the orders passed by him in his proceedings Na.Ka.34128/96 Pa.Tho.2 dated 14.07.1998 and quash the same and direct the respondent to promote the petitioner to the post of Sub-Registrar in Co-operative Department itself. - - - For Petitioner : Mr.Singaravelan For Respondents: Mr.S.Shiva Shanmugam Government Advocate C O M M O N O R D E R The Original Applications in O.A.Nos.7222 and 6578 of 1998 before the Tamil Nadu Administrative Tribunal are the present writ petitions. 2. The petitioner was initially selected for appointment to the post of Junior Assistant through Employment Exchange and he joined the service on 13.07.1981. He was promoted to the post of Junior Inspector of Co-operative Societies on 13.06.1988. In September 1992, he was further promoted to the post of Senior Inspector of Co-operative Societies. 3. The new Department viz., Co-operative Audit Department came into existence and options were called from the employees as to their willingness to go to the newly constituted Department. The options were called in 1991. The petitioner expressed his willingness on 20.11.1991 to go to Audit Department. The Director of Co-operative Audit passed an order dated 07.02.1998 allotting him as Senior Inspector of Co-operatives in Pudukottai. The Deputy Registrar of Co- operative Societies, Pudukottai passed the consequential order dated 16.02.1998 relieving him from the Co-operative Department, so as to permit the petitioner to join in the Co-operative Audit Department. 4. The petitioner filed O.A.7222/98 (W.P.No.38038 of 2006) to quash the order dated 07.02.1998 of the Director of Co-operative Audit and the order, dated 16.02.1998 of the Deputy Registrar of Co- operative Registrar, Pudukottai relieving him from the Co-operative Department. 5. In the mean time, the petitioner filed O.A.No.998 of 1998 praying for direction to the respondents therein to promote him as Co-operative Sub-Registrar on the basis of his continuance in the Co- operative Department with all benefits. The Tribunal disposed the https://hcservices.ecourts.gov.in/hcservices/ O.A.No.998 of 1998 on 09.02.1998 directing the third respondent in that Original Application to pass orders on the representation of the petitioner dated 27.01.1998 regarding cancellation of option for going to Co-operative Audit Department as per rules, within six weeks. The Registrar of Co-operative Societies passed an order dated 14.07.1998 communicating the order of the Government, based on the direction dated 09.02.1998 issued by the Tribunal in O.A.No.998 of 1998. The petitioner filed O.A.No.6578 of 1998 (W.P.No.36157 of 2006) to quash the order dated 14.07.1998 of the Registrar of Co-operative Societies and for consequential direction to promote him as Sub- Registrar in Co-operative Department. 5. The respondents filed reply affidavit in O.A.No.7222 of 1998 (W.P.No.38038 of 2006). The following are the averments contained in the reply affidavit. The Government ordered for creation of a separate Department namely Co-operative Department in G.O.677, Co-operative Department dated 22.11.1978. The said Department came into existence on 17.06.1981. The Adhoc rules for the subordinates of this Department were approved in G.O.253, Finance Department, dated 31.03.1986. The Adhoc rules for ministerial staff of this Department was approved in G.O.No.1057, Finance Department, dated 27.09.1990. In these circumstances, the Government in its letter dated 01.07.1991 gave instructions to the Department of Co-operative Audit for calling options in respect of ministerial staff. Accordingly, the Director of Co-operative Audit called for options from all the ministerial staff who were in the Co-operative Audit Department as on 20.08.1997, as per his circular dated 09.09.1991. While so, some of the staff, who were working in the Co-operative Audit Department as on 20.08.1997, were subsequently promoted as Junior Inspector of Co-operative Societies by the Registrar of Co-operative Societies and transferred to the Co-operative Department. Hence, the Registrar of Co-operative Societies was addressed in this regard and his consent was also requested for permanent absorption of the staff who exercised option to come over to Co-operative Audit Department. The Registrar of Co- operative Societies gave his consent for absorption for 72 optees in his letter dated 30.06.1993. Based on the said consent letter, the Finance Department was addressed for allotting all the 72 opted persons to the Co-operative Audit Department on a permanent basis. The Finance Department issued G.O.159, dated 05.03.1996 allotting 72 optees to Co-operative Audit Department, after consulting the Tamil Nadu Public Service Commission. The break-up of 72 optees were 40 Junior Co-operative Auditors, 19 Junior Assistants, 12 Typists and one Steno-Typist. The order dated 07.02.1998 of the Director of Co- operative Audit impugned in W.P.No.38038 of 2006 was a consequential order based on above said G.O.No.159, dated 05.03.1996. The petitioner is one among the 72 optees. He expressed his willingness for permanent absorption in Co-operative Audit Department in the category of Junior Co-operative Auditor. He was Junior Inspector of Co-operative Societies in 1991, while he exercised his option. In the https://hcservices.ecourts.gov.in/hcservices/ meanwhile, the petitioner was promoted as Senior Inspector of Co- operative Societies by the Registrar of Co-operative Societies. Taking into account this promotion, the petitioner was given posting to the equivalent category, namely, Senior Co-operative Auditor in the Co-operative Audit Department, which carries the same scale of pay of Senior Inspector of Co-operative Societies, as per the proceeding dated 07.02.1998 of the Director of Co-operative Audit which is impugned in this writ petition. Since, the Government passed orders in G.O.159 in 1996 itself for absorption in Co-operative Audit Department, the petitioner could not expect promotion in his parent Department after 1996. If the petitioner was really interested in serving in the Co-operative Department, he should have expressed his unwillingness in writing before the orders were passed in G.O.159. But the petitioner gave representation only on 28.01.1998 belatedly, after the issuance of G.O.159. Hence he could not be allowed to shift his stand as and when he likes. It is stated that a concession was shown to him by absorbing him as Senior Co-operative Auditor in the Co-operative Department without affecting the status which he enjoys in the parent Department. It is also stated that the seniority of the petitioner would not be affected in the Co-operative Audit Department, since the common seniority hither to followed by the Registrar of Co-operative Societies is being followed in the Co- operative Audit Department also and no direct recruitment of Senior Co-operative Auditor had taken place till 1998. Since, he was absorbed in 1996 by G.O.159 and he was allotted as Senior Co- operative Auditor by the Director of Co-operative Audit, in his order dated 07.02.1998, his seniority would not be affected. In these circumstances, the respondents in W.P.No.38038 of 2006 prayed for dismissal of the writ petition. 6. Heard Mr.Singaravelan, learned counsel for the petitioner and Mr.S.Shiva Shanmugam, learned Government Advocate for the respondents. 7. The learned counsel for the petitioner states that the petitioner is still continuing in Co-operative Department and that therefore he should not be disturbed at this distant point of time. His main grievance is that if he is transferred to Co-operative Audit Department, his chances of promotion would be affected. 8. On the other hand, the learned Government Advocate submits that W.P.No.38038 of 2006 has to be rejected on the simple ground for not questioning G.O.159 and questioning the consequential order dated 07.02.1998. It is also submitted that the petitioner is assured of protection of his seniority in the Co-operative Audit Department. The learned Government Advocate relies on para 10 of the reply affidavit in this regard. It is submitted that there was no direct recruitment of Senior Co-operative Auditor till 1998 and since the petitioner was absorbed in February 1998 itself as Senior Co- https://hcservices.ecourts.gov.in/hcservices/ operative Auditor, his interest could not be affected, as his seniority was protected. The learned Government Advocate also submits that while the impugned order dated 16.02.1998 was passed by the Deputy Registrar of Co-operative Societies, the Deputy Registrar was not made as a party. It is submitted that the writ petition deserves to be dismissed, on this ground alone. 9. As far as, W.P.No.36157 of 2006 is concerned, the learned counsel for the petitioner submits that the Registrar of Co-operative Societies was not correct in passing the impugned order dated 14.07.1998 refusing to accede to the claim of the petitioner for retention in the parent Department itself. 10. The learned Government Advocate submits that the order dated 14.07.1998 of the Registrar is only communicating the order of the Government dated, 01.07.1998, Finance Department and that the Finance Department is not made as a party. It is also stated that the petitioner did not seek to quash the order dated 01.07.1998 of the Government and on the other hand, the petitioner seeks to quash the consequential order dated 14.07.1998. 11. As rightly pointed out by the learned Government Advocate, the W.P.No.38038 of 2006 deserves to be dismissed on the simple ground for not challenging the G.O.159, Finance Department, dated 05.03.1996 as the order dated 07.02.1998, which is the impugned in the Writ petition, is only a consequential order. Further, in this writ petition the Government is also not made a party. Furthermore, as rightly contended by the learned Government Advocate, while the order dated 16.02.1998 was passed by the Deputy Registrar of Co- operative Societies, he was not made as a party in the writ proceeding. Without going into merits, the writ petition was dismissed for non-joinder of proper parties and for questioning only the consequential order. 12. As far as the W.P.No.36157 of 2006 is concerned, the order dated 01.07.1998 of the Finance Department of the Tamil Nadu Government was not in question. On the other hand, the order dated 14.07.1998 of the Registrar of Co-operative Societies based on the order, dated 01.07.1998 is in question. Furthermore, the Finance Department is not made as a party. The Government passed G.O.159, Finance Department, dated 05.03.1996 allotting the 72 optees including the petitioner to the Co-operative Audit Department, based on the willingness expressed by the petitioner. It is found from the order dated 01.07.1998 that the Government could not accept the request of the petitioner for his retention in the parent Department, after he was permanently allotted to the newly created Department based on his option. The learned Government Advocate also has brought to my notice that his request is only in 1998, after the Government Order No.159 was passed in 1996. The learned Government Advocate also https://hcservices.ecourts.gov.in/hcservices/ submits that he was accommodated in the Co-operative Audit Department in the promoted post, by posting him as Senior Co-operative Auditor in the Co-operative Audit Department. It is further submitted that his seniority could not be affected in the new Department. Hence, I find no infirmity in the order dated 14.07.1998 of the Registrar of Co-operative Societies. 13. The learned Government Advocate submits that the continuance in the parent Department pursuant to the interim order could not be cited while disposing the writ petition. I find merit in the submission made by the learned Government Advocate. Hence the continuance of the petitioner in Co-operative Department pursuant to the interim order could not be cited for deciding the issue involved in the writ petition. 14. For the aforesaid reasons the writ petitions fail and the same are dismissed. No costs. 15. It is made clear that the petitioner is at liberty to approach the Government, if he so advised and at such an event, the Government could decide the matter in accordance with law. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rns To 1. The Director of Co-operative Audit, Chepauk, Chennai – 5. 2. The Assistant Director of Co-operative Audit, pudukkottai. 3. The Registrar of Co-operative Societies, Kilpauk, Chennai-10. 4. The Secretary to Government, Co-operative, Food and Consumer Protection Department, Secretariat, Chennai – 9. https://hcservices.ecourts.gov.in/hcservices/ 5. The Registrar of Co-operative Societies, Kilpauk, Chennai – 10. 1 cc To Mr.R.Singaravelan, Advocate, SR.3852 1 CC to the Government Pleader SR NO.4073 & 4074 W.P.Nos.38038 & 36157 of 2006 RJ(CO) sra 18.02.2010 https://hcservices.ecourts.gov.in/hcservices/