C.W.P. No.4698 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No.4698 of 2011 Date of Decision: 14.10.2011 Mrs. Urvashi Gupta and others ....Petitioners Versus Registrar Cooperative Society and others ...Respondents CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. D.S. Patwalia, Advocate for the petitioners. Mr. Anjum Ahmed, Addl.A.G., Haryana for the respondent-State. Mr. Rajvir Sihag, Advocate for respondent No.2. Mr. Girish Agnihotri, Sr.Advocate with Mr. B.J. Sheoran, Advocate for respondents No.4 to 6. ***** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ** NIRMALJIT KAUR, J. The petitioners, herein, are praying for quashing of the order dated 08.02.2011 (Annexure P-15) issued by respondent No.1-Registrar Cooperative Society (here-in-after referred to as the `RCS'), vide which, the private respondents who were placed in a diminishing ex-cadre posts of Project Officers on the recommendations of the Committee constituted by Board of Directors of respondent No.2-Bank have been merged in the cadre of Assistant Managers/Development Officer without any amendment in the service rules with a further prayer to restrain the respondents from C.W.P. No.4698 of 2011 2 disturbing the seniority of the petitioners, as well as, restraining the respondents from promoting the private respondents to the post of Manager. Facts of the case are that on 28.04.1993, four persons including three private respondents were appointed to the posts of Project Officer in pursuance to the advertisement issued by the Bank subject to the grant of relaxation to the qualification by RCS. Accordingly, the appointment letters specifically contained a stipulation that their appointment shall be subject to grant of relaxation of the qualification by respondent No.1. Respondent no.2, vide its resolution dated 12.03.1996 resolved that the earlier recommendations seeking relaxation of qualification sent by it to respondent No.1-RCS be withdrawn. Accordingly, on 14.06.1996, the respondent No.2 further proposed that since the employees who were appointed on the posts of Project Officer including respondents No.4 to 6 did not fulfill the requisite qualification as their appointment was subject to the relaxation, and therefore, in the absence of any relaxation, the private respondents could not be said to be qualified/eligible to the posts of Project Officer and they should be terminated immediately. Aggrieved by the said decision, respondent No.6 filed a Civil Writ Petition No.8715 of 1996. Meanwhile, during the pendency of the writ petition, the post of Project Officer was placed in diminishing cadre in view of the fact that the said post of Project Officer was no longer required. The private respondents were, however, protected and they were allowed to continue on the said post. The Project Officers who had been placed in diminishing cadre moved a representation praying that they should be provided promotional avenues. The said representation was considered by the Board of Directors of respondent No.2- Bank on 13.12.2007, wherein, it was decided to constitute a Committee for examining the issue of providing C.W.P. No.4698 of 2011 3 promotional avenues. The Committee submitted its report and the relevant decision of the Committee, as far as the present controversy is concerned, was as under :- “ Despite the fact that their very appointment is questionable, the Project Officers need to be provided some avenues for promotion on humanitarian grounds as they continue to be in the service of the bank for the last 15 years or so. Four of the Project Officers (S/Sh. Rambir Yadav, Suresh Pal, Onkar Mal Bishnoi and Rajiv Mathur) were offered the same grade as that of AMs/DOs by the Bank though with its and buts while remaining 5 were given grade of Rs.1640-2900 (below the grade of Accountant). The above four Project Officers, now three, (i.e. S/Sh. Rambir Yadav, Suresh Pal and Rajiv Mathur) need to be provided relief. Before providing relief, it has to be kept in mind that :- 1) The Project Officers filed a writ petition in Hon'ble High Court for grant of pay scale of AMs/DOs which was dispose off vide court order dated 22.4.1997 directing RCs to take a decision but was ultimately not granted by RCs. 2) A court order dated 13.6.1996 staying proceedings of BODs meeting dated 14.6.1996 in respect of Project Officers is pending. 3) At the time of re-structuring of staff by HBPE in the year 2004, 8 posts of POs have been abolished and the posts have been placed in diminishing cadre. It is, therefore, recommended that BOAs may consider to place the above 3 POs at the tail of list of AMs/DOs on the date of the posts are revived by BHPE as a personal measure and subject to the decision of the Hon'ble Court. In the same manner, the remaining 3 POs (i.e. Vijay Pal and Krishan) recruited in the scale of 1640-2900 initially be placed at the tail of Accountants.” The above report was placed before the Board of Administrators in its meeting held on 29.04.2008. The Board while C.W.P. No.4698 of 2011 4 accepting the recommendations of the Committee decided that the matter be referred to Haryana Bureau of Public Enterprises for its consideration. The above facts were brought to the notice of the Court in the pending CWP No.8715 of 1996. In view of the same, the said petition was disposed of with a direction that necessary action be taken in pursuance to the report of the Committee accepted by respondent No.3, except that the matter was referred to the Registrar, Cooperative Societies in stead of the Haryana Bureau of Public Enterprises for decision on account of the statement made by learned counsel for the Bank. Thus, the operative part of the order passed in CWP No.8715 of 1996 reads as under :- “ Mr. S.S.Dalal, learned counsel appearing for the Bank has filed a reply in the Court today which is taken on record and has referred to Annexure R2/1 which is the decision taken by the Bank wherein the Board of Directors in its meeting held on 29.8.2008 accepted the recommendations of the Committee and decided that the matter be referred to Haryana Bureau of Public Enterprises for its consideration. According to learned counsel for the respondent Bank the decision now has to be taken by the Registrar, Cooperative Societies as the matter has been taken out from the purview of Bureau of Public Enterprises as is evident from the notification dated 01.09.2008 attached as Annexure R2/2.” However, after passing of the said order dated 13.12.2010, another notification dated 17.12.2010 was passed by the Government, vide which, some of the matters pertaining to the Cooperative Institutions were once again brought under the purview of Haryana Bureau of Public Enterprises/Standing Committee on Public Enterprises. As such, when the respondent No.1-Registrar Cooperative Society passed the order dated 08.02.2011, some of the subjects under respondent No.2 were once again brought under the purview of respondent No.3. C.W.P. No.4698 of 2011 5 The Registrar Cooperative Society i.e respondent No.1 while deciding the matter, directed as under :- “ In view of the above discussions and in compliance with the judgment dated 13.12.2010 in CWP No.8715 of 1996, the MD, HARCO Bank has to place the petitioners namely Shri Rambir Yadav, Shri Suresh Pal and Shri Rajiv Mathur below the Assistant Managers appointed with them in the year 1993 along with the consequential benefits.” The petitioners have, therefore, challenged the order passed by respondent No.1-Registrar Cooperative Society on various grounds. The first ground being of jurisdiction, it was contended that the notification dated 29.08.2008 stood superseded vide notification dated 17.12.2010. As such, the respondent No.1 had no jurisdiction to pass the said order and the same could have been only considered by respondent No.3. Secondly, the RCS, while implementing the order passed by the Board of Governors wrongly held that the MD, HARCO Bank has to place the petitioners namely Shri Rambir Yadav, Shri Suresh Pal and Shri Rajiv Mathur below the Assistant Managers appointed with them in the year 1993 along with the consequential benefits. It was contended that the said direction was against the very spirit of the recommendation of the Committee. It was never the intention of the Committee to grant promotional avenues to the Project Officers as it had held that they should be placed at the tail end of the seniority of Assistant Manager so that existing set up should not be disturbed. It was a matter of record that on the appointed day, the respondents did not possess the stipulated qualification as required for the post of Project Officer. However, only to protect the services of the private respondents, they were placed in the diminishing cadre as a measure personal to them. As per the recommendation of the Committee, “BOAs may consider to place the C.W.P. No.4698 of 2011 6 above 3 POs at the tail of list of AMs/DOs on the date of the posts are revived by BHPE as a personal measure and subject to the decision of the Hon'ble Court.” The said posts have yet to be revived. Thus, the direction of the respondent No.1-RCS to place the petitioners namely Shri Rambir Yadav, Shri Suresh Pal and Shri Rajiv Mathur below the Assistant Managers appointed with them in the year 1993 along with the consequential benefits, was in violation of the recommendation of the Committee constituted by the Board of Directors as :- (a) the respondents were not qualified ; (b) They were placed in the diminishing cadre as a measure personal to them. (c) The same has resulted in allowing them to supersede even the Assistant Managers working for the last number of years. (d) Those who have been promoted are facing a threat of reversion. Learned counsel for respondents No.4 to 6, on the other hand, pointed out that the High Court vide order dated 13.12.2010 had directed the official respondents to take necessary steps to implement the decision of the Board of Directors. The said direction was specifically given to respondent No.1. The Haryana Bureau of Public Enterprises (HBPE) had sanctioned the posts of Project Offices in the year 1992 itself. The HBPE had filed a specific affidavit to this effect. The High Court directed the respondent No.1 to take a decision and, therefore, he finally decided in pursuance to the recommendation of the Committee. The Committee had directed that the respondent be placed at the tail end of the existing seniority list of the cadre of Assistant Manager/Development Officer on the date of the posts are revived by BHPE and since, the said posts stood revived in the year 1992, the respondents were rightly placed below the Assistant Managers appointed with them in the year 1993. At the same time, learned counsel for the respondents submitted that the matter was pre-mature as the same had been sent by the RCS-respondent No.1 to the Board for consideration for taking a final C.W.P. No.4698 of 2011 7 decision and the Board had yet to decide. Moreover, the Board was the best forum to decide and interpret the recommendation of the Committee i.e. “the BOAs may consider to place the above 3 POs at the tail of list of AMs/DOs on the date of the posts are revived by BHPE as a personal measure and subject to the decision of the Hon'ble Court,” being the appropriate authority and the author of the order, vide which, the recommendations of the Committee were accepted. On the question of jurisdiction, learned counsel for the respondents submitted that the only specific subjects were in the list which were related to Cooperative Societies that were restored to the purview of HBPE. The issue involved in the present case was not in the said list. As such, the Registrar had the jurisdiction. Moreover, the High Court had directed the respondent No.1 to decide the issue. Heard. The first question, therefore, that requires to be decided is as to whether the respondent No.1-RCS had the jurisdiction to pass the impugned order or not. There is no doubt that the notification dated 29.08.2008/01.09.2008, vide which, the decision was to be taken by the RCS as the matter had been taken out from the purview of Haryana Bureau of Public Enterprises stood superseded vide notification dated 17.12.2010. However, from the perusal of notification dated 17.12.2010, placed on record as Annexure P-17, it is evident that only certain subjects relating to Cooperative Institutions were referred for consideration of Haryana Bureau of Public Enterprises. The said subjects are as under :- i) Creation/upgradation of post(s). ii) Revision/upgradation of pay scales. iii)Formulation of Staff Service Rules/Regulations and any amendment in the existing Rules/Regulations. C.W.P. No.4698 of 2011 8 iv)Cases involving exemption from the existing instructions for effecting economy in expenditure. v) Grant of ex-gratia/bonus. The dispute, in hand, is not covered by either of the five subjects. As such, it cannot be said that the matter was required to be referred to the Haryana Bureau of Public Enterprises/Standing Committee on Public Enterprises instead of respondent No.1. Moreover, the matter was referred to respondent No.1 by the High Court vide order dated 13.12.2010 passed in CWP No.8715 of 1996. The petitioners did not file any review or modification of the said order in pursuance to the notification dated 17.12.2010 (Annexure P-17). As such, they cannot now turned around and say that respondent No.1 has no jurisdiction. With respect to the second question i.e interpretation of the recommendation of the Committee, learned counsel for the respondents admitted that the final authority is the Board and the matter has been referred to the Board for final consideration who has yet to decide. In fact, learned counsel submitted that the writ petition was, therefore, pre mature to this extent. Learned counsel for the respondents further submitted that the petitioners should have no grievance with the order dated 08.02.2011 passed by respondent No.1-RCS as the same was only recommendatory in nature and the appointing authority was the Board. Moreover, learned counsel for the respondents also placed on record a copy of the reply of the Managing Director to the Legal notice sent by the private respondents. As per the said reply, the Managing Director, in his reply, which is also a part of the Contempt Petition filed by the respondents, submitted as under :- “ As per Rule 4 of the Haryana State Coop. Apex Bank's Staff Service (Common Cadre) Rules, C.W.P. No.4698 of 2011 9 1988 dealing with appointments of the staff, the Board is competent to make all appointments (except Clerk and its equivalent posts and below). Therefore, the matter shall be placed before the Board of Directors, being competent authority for consideration.” Thus, the learned counsel for the respondents has in no uncertain terms accepted the fact that the Board of Directors was the appointing authority, the order of RCS was recommendatory in nature and the Board was the best forum to interpret the recommendation of the Committee being the author of the order which accepted the recommendations. Thus, keeping in view the submission of the learned counsel for the respondent, as well as, the arguments raised by learned counsel for the petitioners and the controversy, in hand, the Court is of the view that it would be appropriate at this stage to dispose of the present writ petition with the following directions ; (a) The matter shall be placed before the Board of Directors in view of the stand taken by the Managing Director in his reply to the legal notice sent by the respondents and placed on record and relied on by the learned counsel for the respondents. The Board of Directors, being the competent authority as admitted by the learned counsel for the respondent, shall consider as to whether the recommendation of the Committee constituted by it to place the respondents at the tail of list of AMs/DOs on the date of the posts are revived by BHPE as a personal measure has been rightly interpreted by the Registrar to place them below the Assistant Managers appointed with them in the year 1993 or not and whether the direction is in keeping with C.W.P. No.4698 of 2011 10 the purpose and spirit of recommendation of the Committee or not. (b) whether the posts stood revived in the year 1992 or are yet to be revived. (c) Both the parties are at liberty to raise all their pleas before the Members of the Board. (d) The Board shall decide the above issues after hearing both the sides. (e) The Board shall take their decision independently of the observations expressed by the RCS i.e respondent No.1. (NIRMALJIT KAUR) 14.10.2011 JUDGE gurpreet