IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:23.09.2008 CORAM: THE HON'BLE MR. JUSTICE P.JYOTHIMANI WRIT PETITION NO.9735 of 2008 and M.P.Nos.2,3 & 4 of 2008. Vellore District Central Co.operative Bank Employees Union rep. By its General Secretary No.37/74, Thennaimaram Street Vellore 4. .. Petitioner vs. 1.The Registrar of Co.operative Societies 170 EVR High Road Kilpauk, Chennai 600 010. 2.The Special Officer The Vellore District Central Co.operative Bank Ltd., Officers Line, Vellore. 3.P.Dheenadhayalan 4.P.Selvam 5.R.Venkataraman 6.V.Geetha 7.D.Banumathi 8.K.Palani 9.J.Jayakumar .. Respondents W.P.9735/2008: Petition filed under Article 226 of constitution of India, to issue a Writ of Certiorarified Mandamus, call for the records of the 2nd respondent pertaining to his proceedings in his proceedings Na.Ka.No.329/2006/E1.and quash the order dated 11.4.2008 and consequently direct the respondents to fill up the vacant posts in the 2nd respondent bank by way of effecting to promotion to the eligible persons. https://hcservices.ecourts.gov.in/hcservices/ For petitioner : Mr.Yashod Vardhan,Sr.Counsel for Mr.R.Sivakumar For respondents: Mrs.G.Thilagavathi for R.2 For respondents: Mrs C.K.Vishnu Priya for RR1 ORDER The impugned order that is challenged in this writ petition is that of the second respondent, Special Officer, Vellore District Central Co-operative Bank Limited, dated 11.4.2008, under which the second respondent has appointed the respondents 3 to 9 as Assistant Managers of the second respondent bank on temporary basis for a period of two years stating that after completion of first year, they would be treated as having completed the probation period. 2. The writ petition is filed by the Union of employees of the second respondent bank which is a Co-operative Society governed by the provisions of the Tamil Nadu Co-operative Societies Act,1983. In respect of service conditions of the employees, bye-laws have been framed by the second respondent bank. It is stated that as per Rule 149 of the Tamil Nadu Co-operative Societies Rules,1988, bye-laws were framed regarding service conditions of employes of the second respondent bank in the year 1988, which were subsequently amended including the amendment relating to fixation of cadre strength, classification of various categories of posts, qualification, method of recruitment,scale of pay, etc. and that the cadre strength of the second respondent was approved by the competent authority. It is also stated that the service conditions of employees of the second respondent are also covered by the settlements arrived at as per section 12(3) of the Industrial Disputes Act,1947, between the management and employees on 6.2.1997 and 2.12.2003 and those matters which were not covered by the said settlements, continued to be covered by the previous settlements. 2(a). It is the case of the petitioner Union that after the decision of a Division Bench of this Court in L.Justine and others vs. Registrar of Co.operative Societies and Others (2002 (4) CTC 385) wherein in case where Society's cadre strength was not fixed, it was directed that the Society should frame special bye-laws in conformity with Rule 149, and subsequently, on 19.12.2002, the Division Bench in another batch of writ petitions directed the Special Officers of Co- operative Societies to frame model bye-laws after hearing the petitioner Union of workers and send the same for approval by the competent authority. https://hcservices.ecourts.gov.in/hcservices/ 2(b). In another judgement dated 8.1.2003, the Division Bench of this Court has clarified that in cases which are covered by the decision in Justin's case (2002 (4) CTC 385), if the cadre strength has already been fixed by taking into consideration of various Government Orders, the same would stand. It is stated that subsequently the second respondent has produced the bye-laws and the views of various Unions including the petitioner Union were called for and proposals were given, and thereafter, the second respondent framed bye-laws and sent for approval of the first respondent on 31.5.2004, which according to the petitioner Union is not one which is in accordance with law and the second respondent decided unilaterally by not taking into consideration various directions issued by the Court. 2(c). It is stated that the set of Special bye-laws forwarded by the first respondent has been approved by the State Government in G.O.Ms.No.233, Co-operation, Food and Consumer Protection Department, dated 31.5.2004. Challenging the said G.O., the petitioner Union has filed W.P.No.14175 of 2005 in which the operation of the said G.O.Ms.No.233, dated 31.5.2004 was stayed and the writ petition is still pending and due to the pendency of the said petition, there has been stagnation in the matter of further promotion in respect of various employees, even though employees have put in number of years of service. The first respondent has lifted ban on recruitment on 7.9.2007 with directions to fill up various posts. It was, based on the same, the petitioner Union submitted a representation on 25.10.2007 to the second respondent requesting to effect appropriate promotion to various posts, but the first respondent constituted a Committee on 3.3.2008 to fix cadre strength of all District Central Co-operative Banks and the representation of the petitioner Union was also communicated to the said Committee and the Committee is yet to submit its report. Under those circumstances, the second respondent, without reference to the above said developments, has passed the impugned order dated 11.04.2008 unilaterally appointing the respondents 3 to 9 in the post of Assistant Manager by direct recruitment. 2(d). It is the case of the petitioner Union that there was no public advertisement regarding the recruitment and the names were called for from the Employment Exchange without following the recruitment process of selection and therefore, the said recruitment is bad. As per the existing service conditions for appointment of Assistant Managers, a person should have worked as Assistant for three years and the post of Assistant Manager has to be filled up by following 1:3 ratio, viz., one post by direct recruitment and three posts by way of promotion from the post of Assistants and according to the petitioner Union, as on date, there are 79 eligible Assistants and many of them have got experience. https://hcservices.ecourts.gov.in/hcservices/ 2(e). It is also the case of the petitioner that the second respondent has never made direct recruitment for the post of Assistant Manager and the same was followed in nearly 23 District Central Co-operative Banks and therefore, the appointment of respondents 3 to 9 is illegal and the appointment is challenged on the ground that it violates Articles 14 and 16 of the Constitution of India and the appointment is against the direction or circular issued by the first respondent dated 7.9.2007 wherein vacant posts in the co-operative institutions were directed to be filled up by promotion from eligible persons in feeder category and in the absence of finalisation of cadre strength and formation of special Bye-laws as directed by this Court in Justin's case (2002 (4) CTC 385), the impugned orders of appointment are not valid and without taking into consideration the large number of employees being stagnated in the second respondent bank, the calling for names and sponsoring of names by the Employment Exchange is not proper and the second respondent has not followed 1:3 ratio of direct recruitment and departmental promotion. 3. In the counter affidavit filed by the second respondent along with the petition to vacate the order of injunction granted by this Court, in paragraph-11, the second respondent has stated that as per Regulations No. 294, the recruitment to the post of Assistant Manager has to be effected in the ratio of 3:1 by way of promotion and direct recruitment respectively. It is stated that as on 30.11.2006, the vacancy position was 20 and on applying the above said 3:1 ratio, 16 posts were determined to be filled up by way of direct recruitment. It is stated that necessary permission was obtained from the first respondent on 4.12.2006 placing on record the recruitment requirements for 16 posts of Assistant Manager by way of direct recruitment. The said paragraph-11 of the counter affidavit is as follows: " 11. It is pertinent to submit that as per the regulations No.294 the recruitment to the post of Assistant Manager was in the ratio of 75:25 to be made by promotions and direct recruitment. The vacancy position as on 30.11.2006 being 20 on the basis of the 3:1 ratio, also taking into account the number of candidates holding the promotional posts enurable to the promotees, 16 posts were determined to be filled up by way of direct recruitment. Necessary permission was obtained from the first respondent herein by this respondent on 04.12.2006, placing on record the requirement towards filling up of the 16 posts of Assistant Managers by way of direct recruitment." 3(a). A reference to the said contents of paragraph-11 of the counter affidavit shows that while admitting that the ratio to be followed for appointment to the post of Assistant Manager by way of promotion and direct recruitment as 3:1, the second respondent has https://hcservices.ecourts.gov.in/hcservices/ appointed 16 persons by way of direct recruitment out of 20 posts which are totally and diametrically opposed to the stand of the second respondent itself. It is also seen that in paragraph 15 of the counter affidavit the understanding of the second respondent has been clearly revealed that the proposal was to appoint by promotion and direct recruitment in the ratio of 3:1 and the said paragraph-15 is as follows: " 15. In the present Writ Petition, what has been purported to be stalled in the filling up of the post of Assistant Manager under direct recruitment category and the petitioners would plead for filling up of the said category of posts also by way of promotion which would render the entire category of Assistant Manager posts as a promotional post in contrast to the prevailing regulations which has determined a ratio between promotees and direct recruitees in the 3:1 ratio." In spite of it, admittedly, the second respondent obtained permission from the first respondent to appoint 16 persons by way of direct recruitment and 4 persons by way of promotion. The contradictory stand of the second respondent is patent even in paragraph-17 of the counter affidavit which is as follows: " 17. Therefore, it is only amongst these 63 determined posts the ratio of 3:1 is to be effected, which takes into account the manner in which recruitment of the existing staff had also been caused. Only thereupon this respondent by proceedings dated 04.12.2006 had determined that out of the vacant 20 posts, 4 has to be filled up by way of promotion and 16 were to be filled by way of direct recruitment." 3(c). In paragraph-17 it is reiterated that out of 20 vacant posts only four were filled up by promotion while 16 posts were filled up by direct recruitment. It is further stated that the first respondent has not given permission to fill up four posts by promotion and only in respect of 15 posts by direct recruitment, permission was granted and therefore, 15 posts were filled up. It is further relevant to note that in paragraph-28 of the counter affidavit again a contradictory stand has been taken by the second respondent in the following words: " 28. .... When the said rule contemplates filling up of the post of Assistant Manager in a 1:3 ratio for each one post of direct recruitment, three posts were to be made by way of promotion, sixteen identified posts available as vacant were direct recruitment posts as per the report submitted on 04.12.2006 and only on the basis of the report dated 04.12.2006, permission was granted by https://hcservices.ecourts.gov.in/hcservices/ the first respondent on 05.03.2007 to fill up the direct recruitment posts." 4. Since there was an apparent discrepancy in the stand taken by the second respondent, the said respondent having realised the same, has filed another affidavit dated 30.8.2008. In the said affidavit, it is clarified that the second respondent has filled up the post of Assistant Manager in the ratio 3:1 viz., 3 posts by promotion and one post by direct recruitment. It is also stated that the second respondent identified 36 vacant posts and on identification of the promotion post and direct recruitment by applying the ratio 3:1, 27 posts were filled up by promotion on 1.9.2005 and 9 posts were required to be filled up by direct recruitment and by taking into account the subsequent promotions effected, the second respondent determined that as on 30.11.2006 out of 20 vacant Assistant Manager posts, 16 posts were to be filled up by direct recruitment and 4 were to be filled up by promotion and the first respondent has permitted to fill up 15 posts of Assistant Manager by direct recruitment and therefore, there is no contradictory stand taken by the second respondent. The relevant portion of the affidavit dated 30.8.2008 is as follows: " 3. Only in this manner, the ratio was required to be adhered to, and the records maintained by the bank in this regard would place on record that while filling up of the vacant post which was lying vacant upto 31.08.2005, the same had been followed by the bank. When the management was permitted to cause the filling up of the post of Asst.Manager, the bank out of the 36 vacant posts of Asst.Manager, after identifying the promotion post and direct recruitment post in the ratio of 3:1 granted 27 promotions enbloc on 01.09.2005. With the outstanding nine vacant posts which required to be filled up by direct recruitment and by taking into account the subsequent promotions effected, determined that as on 30.11.2006 out of the 20 vacant Asst.Manager posts, 16 posts are to be filled up by direct recruitment and four were to be filled by promotion. The first respondent permitted filling up of 15 posts of Asst.Manager by direct recruitment vide order dated 05.03.2007." 5. A reference to the Regulations framed by the second respondent under Bye-law No.29 to which necessary amendments were effected on 27.11.2001 and the comparison between the original Regulation No.7 and the amended Regulation No.7 which is as follows: https://hcservices.ecourts.gov.in/hcservices/ As Existing Regulation No.7 As Amended Regulation No.7 Appointment to the posts of Asst.Manager/and Manager shall be made by direct recruitment and by promotion in the ratio of 25:75 basis. Appointment to the posts of Asst.Manager and Manager shall be made by promotion and by direct recruitment in the ratio of 75:25 basis. The above said comparison shows that in fact there is no deviation since the second respondent by the Resolution has taken a definite stand that the appointment to the post of Assistant Manager or Manager should be in the ratio 3:1 by promotion and direct recruitment and the reason for not giving effect to the same is that the approval by the Government has not yet been received. 6. In such circumstances, on the factual matrix which has been stated above, especially taking into consideration of the additional affidavit filed by the second respondent on 30.8.2008, it is clear that appointment to the post of Assistant Manager in the second respondent Bank was effected in the year 2006, in which out of 20 vacant posts 16 posts were recommended to be filled up through direct recruitment and 15 posts were permitted to be filled through direct recruitment by the first respondent and the same is not against the proportionate promotion to the post of Assistant Manager in the ratio 3:1 by promotion and direct recruitment, especially by taking into consideration that on 1.9.2005 out of total number of 36 vacant posts 27 posts were filled up by promotion and the remaining 9 posts which were not filled up by direct recruitment because want permission by the first respondent due to various reasons and therefore, it was carried forward as on 30.11.2006 and hence, out of 20 vacant posts, 15 posts were filled up by direct recruitment. 7. In my considered view the stand of the second respondent in making promotion to the post of Assistant Manager in the ratio of 3:1 by promotion and direct recruitment cannot be taken to be illegal. The entire confusion arose because of the inconsistent stand taken by the second respondent in its original counter affidavit dated 4.6.2008 filed for the purpose of vacating the order of interim injunction. A reference to the list of promotions made by the second respondent in respect of the post of Assistant Manager from 22.8.2005 based on vacancy position on various subsequent dates makes it clear that the second respondent has been following the proportion 3:1 between the promotees and direct recruitees and therefore, there is no illegality in the impugned order of appointment made by the second respondent appointing the respondents 3 to 9 as Assistant Managers by direct recruitment after obtaining sponsorship from the concerned Employment Exchange. https://hcservices.ecourts.gov.in/hcservices/ 8. Even though the second respondent has raised a point about the maintainability of the writ petition on the basis of the judgement of this Court in K.Marappan vs. The Deputy Registrar of Co.operative Societies, Namakkal Circle, Namakkal (2006 (4) CTC 689), on the factual matrix which I have discussed earlier, there is no necessity for this Court to go into the said issue since the claim of the petitioner Union is that the appointment by promotion to the post of Assistant Manager must be by 3:1 ratio between promotees and direct recruitees which has been in effect followed on the facts and circumstances of the case. In view of the same, the writ petition fails and the same is dismissed. No costs. The interim order already granted stands vacated and all the miscellaneous petitions are closed. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar kh To 1.The Registrar of Co.operative Societies 170 EVR High Road Kilpauk, Chennai 600 010. 2.The Special Officer The Vellore District Central Co.operative Bank Ltd., Officers Line, Vellore. +1 cc To Mr.Mrs.G.Thilagavathi , Advocate, SR.54277 W.P.No.9735 of 2008 gv [co] gkg/6.10 https://hcservices.ecourts.gov.in/hcservices/