IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.12.2009 CORAM THE HON'BLE MR. JUSTICE S.MANIKUMAR W.P.No.18444 of 2001 S.veerabhadran ... Petitioner vs The Special Officer, C.2089 Madapalli Famer's Service Co-operative Society Ltd., Madavalam Post, Vengalapurm Via, Tirupathur 635 658. ... Respondent Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari, to call for the records relating to the memo, dated 21.09.2001 of the respondent and quash the same. For Petitioner ... Mr.S.Venkataraman For Respondents ... Mr.M.S.Palanisamy O R D E R By order, dated 21.09.2001, the Special Officer of the respondent-Society, cancelled the appointment of the petitioner as Clerk in the said Society. The said order is challenged in this Writ Petition. 2. It is the case of the petitioner that he was initially employed on 20.04.1994 as daily wage salesman in Athiyur Primary Agricultural Co-operative Bank. Though his appointment was not through employment exchange, with the approval of the statutory authority, his services were regularised on 09.03.1998 in time scale of pay. Thereafter, the petitioner applied for transfer to the respondent-society and having regard to the vacancy and the family circumstances, the President of Athiyur Primary Agricultural Co-operative Bank, agreed for transfer and accordingly, a communication was sent to the President of the respondent-society. Thereafter, the petitioner was transferred from Athiyur Primary Agricultural Co-operative Bank to the respondent-society on 01.07.1998. When the petitioner was working in a permanent vacancy, the Board of Directors were dissolved and that a Special Officer was appointed. On the basis of the instructions from the Registrar of Co-operative Societies, Chennai, to all the Co-operative Societies in the State to terminate the services of those persons, who were irregularly employed, the petitioner was terminated from service, by order, dated 21.09.2001, on the ground that his appointment was contrary to the provisions of the Tamil Nadu Co-operative Societies Act. The said proceedings are under challenge in this Writ Petition. 3. Attacking the said order, Mr.S.Venkataraman, learned counsel for the writ petitioner submitted that the appointment of an employee by transfer from one society to another in a vacant place is permissible as per the proceedings in Mu.Mu.No.1458/88, dated 02.02.1988 of the Registrar of Co- operative Societies, Chennai, addressed to the Special Officer, Tamil Nadu Co-operative Union, Chennai, provided the concerned employee satisfies the qualification prescribed for the post. He further submitted that there is no need to resort to employment exchange and that the employee, who seeks for transfer can directly apply. He also submitted that age relaxation is also available to such employees. 4. Inviting the attention of this Court to the proceedings, dated 09.03.1998, by which, the services of the petitioner in the post of Salesman in Athiyur Primary Agricultural Co-operative Bank were regularised and the proceedings of the Deputy Registrar, dated 23.06.1998, addressed to the President of the respondent-society, wherein, he has stated that there is no provision in the Tamil Nadu Co-operative Societies Act and the rules framed thereunder relating to appointment by transfer and the permission given by the said authority to take a decision on their own, learned counsel for the petitioner submitted that the petitioner was appointed on 01.07.1998 in the vacant post of Clerk in Madapalli Agricultural Co-operative bank only after bringing it to the notice of the authority under the Act and therefore, the reason assigned by the Special Officer of the respondent- society that the petitioner was appointed, without recourse to the employment exchange, is erroneous. According to him, when there are clear instructions of the Registrar of Co-operative Societies, Chennai, enabling appointment by transfer from one Society to another, without resorting to employment exchange, the above reason is liable to be rejected. 5. Per contra, placing reliance on Full Bench decisions of this Court in Marappan, K. v. The Deputy Registrar of Co-operative Societies, Namakkal reported in 2006 (4) CTC 689, T.K.Ananda Sayanam v. Joint Registrar, Co-operative Societies, Vellore Region reported in 2007 (5) CTC 1 and R.Rathakrishnan v. The Deputy Registrar of Co-operative Societies, Dindigul reported in 2007 (5) CTC 369, Mr.M.S.Palanisamy, learned counsel for the respondent-society submitted that the Writ Petition, challenging the termination of the petitioner for violation of the statutory rules is not maintainable. He also submitted that the order of the Registrar of Co-operative Societies, Chennai passed in an isolated case, cannot be said to be a direction issued under the Act, governing appointment by transfer, as the provisions of the Act and rules do not contemplate appointment by transfer. For the above said reasons, he prayed for dismissal of the Writ Petition. 6. Heard the learned counsel for the parties and perused the materials available on record. 7. Before adverting to the facts of this case, it would be relevant to extract the principles laid down by the Full Bench of this Court in Marappan, K. v. The Deputy Registrar of Co-operative Societies, Namakkal reported in 2006 (4) CTC 689. The Full Bench of this Court, while dealing with the issue relating to the maintainability of Writ Petition against the Co-operative Societies, at paragraph 21, held as follows: "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 purposes 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 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. (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 Pradeep Kumar Biswas Case and the other decisions referred to here before." 8. In T.K.Ananda Sayanam v. Joint Registrar, Co-operative Societies, Vellore Region reported in 2007 (5) CTC 1, the another Full Bench of this Court, after extracting the judgment of the Supreme Court, at Paragraph 14, held that, "But every case of suspension or deprivation of wages for a period or termination will not entitle the employee of a Co-opeative society to move the Writ Court and contend that the right of protection under Article 21 has been violated. The employees have adequate statutory protection in law." 9. In R.Rathakrishnan v. The Deputy Registrar of Co-operative Societies, Dindigul reported in 2007 (5) CTC 369, relied on by the learned counsel for the respondent, another Full Bench of this Court, held that insofar as the appointments made in contravention of statutory rule/constitutional mandate, the State Government cannot exercise its jurisdiction under Article 162 of Constitution or under any Act to direct regularisation of services in view of clear dicta of Apex Court in Umarani's case. The Full Bench further held that the Court cannot grant interim order so as to perpetuate services of irregular/illegal appointees and Article 226 cannot be used for such purposes. 10. In the instant case, at Paragraph 3 of the affidavit filed in support of the Writ Petition, the petitioner himself has admitted that he was originally employed in Athiyur Primary Agricultural Co- operative Bank on 20.04.1994 as daily wage Salesman and thereafter, his services were regularised by the Board of Directors. When the statutory rule contemplates that the appointment should be made through Employment Exchange, the order of regularisation in the post of salesman and promotion as Clerk on 09.03.1998, has been made based on a Resolution No.4, dated 09.03.1998, passed by the Athiyur Primary Agricultural Co-operative Bank. The order of regularisation in the post of Salesman and promotion of the petitioner as Clerk in the above said Agricultural Bank is extracted hereunder: "rp.2502 Mjpa{h; bjhlf;f ntshz;ik Tl;Lwt[ t';fpapy; gzpg[hpe;J tUk; jpU.v!;.tPugj;jpud; - tpw;gidahsh;f;F ,thpd; gzpia gzp epue;juk; bra;J VGj;jh; gjtpf;F gjtp cah;t[ mspj;jJ 09.03.1998 Kjy; mKy; bra;J Miz gpwg;gpf;fg;gl;L fPH;f;fzlthW Cjpa tpfpjk; eph;zak; bra;J cj;jput[ gpwg;gpj;J Mizaplg;gLfpwJ." 11. Perusal of the impugned order shows that when employees were already working in the respondent-Society, the petitioner has been transferred and appointed as Clerk, without resorting to employment exchange on the basis of a resolution passed by the erstwhile Board of Directors, which according to the respondent, is contrary to the statutory provision under Section 74 of the Co- operative Societies Act read with rules 149, 150 and 151 of the Tamil Nadu Co-operative Societies Rules and the Government instructions. Whether the permission granted by the Registrar of Co- operative Societies, Chennai, dated 02.02.1988, in the case of an appointment by transfer is a general direction or not, is a matter to be considered by the authorities, in the light of the submission of the learned counsel for the respondent that there are no provisions in the Act or the rules enabling appointment by transfer, as each society is a separate unit for the purpose of appointment, seniority and promotion etc. 12. It is now well settled that Writ Petition against the Co-operative Societies is not maintainable. In these circumstances, following the legal principles, this Court is of the view that the Writ Petition, challenging the order of termination for violation of statutory rules, is not maintainable. 13. Record of proceedings shows that at the time of entertaining the Writ Petition, this Court in W.M.P.No.27124 of 2001, dated 05.10.2001, has granted an order of interim stay of the impugned order and on the strength of the same, the petitioner is stated to be continuing in service. During the course of the arguments, learned counsel for the petitioner submitted that proposals have been sent for regularisation of the services of the writ petitioner along with others and the same is pending consideration with the Joint Registrar of Co-operative Societies, Vellore Region, Vellore. Whether the petitioner, who has been terminated for violation of statutory provision, is entitled for regularisation or not, is left to the discretion of the competent authorities to decide. As the statute provides an alternative remedy, the petitioner is permitted to avail the same, if so advised. 14. Since the petitioner is working under the orders of this Court for nearly eight years, the petitioner is at liberty to avail the alternative remedy, explaining the cause for the delay in approaching the said authority. If any appeal or revision is filed, the said authority is directed to dispose of the same, within a period of two months from S. MANIKUMAR, J. Skm the date of receipt of a copy of this order. The services of the petitioner need not be disturbed till the disposal of the statutory remedy. 15. With the above directions, the Writ Petition is disposed of. No costs. .12.2009 skm To The Special Officer, C.2089 Madapalli Famer's Service Co-operative Society Ltd., Madavalam Post, Vengalapurm Via, Tirupathur 635 658. W.P.No.18444 of 2001