JUDGMENT M. Katju and Mrs. Poonam Srivastava, JJ.
1. This special appeal has been filed against the Judgment and order dated 13.10.2003 passed by the learned single Judge in Civil Misc. Writ Petition No. 32447 of 1992, Babu Lal Shukla v. Secretary-cum-General Manager, District Cooperative Bank Ltd., Allahabad and Ors.
2. The appellant was working as Peon-cum-Guard as a class IV employee in District Co-operative Bank Ltd., Allahabad (hereinafter referred to as the Bank) since 1st June, 1992. Initially his academic qualification was only class 8th but later he passed High School Examination in second division in 1987. The writ petition was filed by the petitioner for his claim of promotion to class III post which was denied by order dated 20.2.1992 on the ground that he did not possess the minimum educational qualification as he was only High School passed whereas the requirement was Intermediate. The contention of the appellant is that his seniority upto 1991 was shown at serial No. 39 but subsequently in the seniority list which was published on 9th May, 1991 the petitioner was placed at serial No. 42. The grievance of the appellant-petitioner was that the concerned authority promoted some persons who were junior to the petitioner, whereas the petitioner was denied his claim. He filed a representation on 29.10.1991 but he was not given his due promotion and was informed that the requisite qualification for promotion in class III post was Intermediate and hence he is not eligible for consideration for promotion to class III.
3. Regulation 27 of the U. P. Cooperative Societies Employees Service Regulations, 1975 (hereinafter referred to as the Regulation 1975) framed under Section 122 of the U. P. Co-operative Societies Act, 1965 (hereinafter referred to as the Act) prescribed the minimum qualification of five years' continuous service and High School from the U. P. Intermediate Board or any other equivalent examination for appointment in a class III post. The contention of the contesting respondents was that in exercise of power under Section 120 of the Act, the Registrar, Co-operative Societies had enhanced the minimum qualification from High School to Intermediate or any other equivalent examination, and since the petitioner did not possess Intermediate qualification, his claim for promotion to class III post could not be considered.
4. The learned single Judge considered the arguments advanced on behalf of the parties and dismissed the writ petition holding that the Registrar has full authority to prescribe the minimum qualification and a bare perusal of the provisions contained in Sections 120 and 122 of the Act makes it clear that so far as the qualification is concerned, the power has been left with the Registrar to prescribe the same from time to time. The Circular dated 31.8.1988 issued by the Registrar of Cooperative Societies exercising the power under Section 120 of the Act has statutory force as it was a special power conferred on the Registrar. It is alleged that in the circumstances, the Regulations of 1975 framed under Section 122 of the Act will not prevail. Reliance was placed on a Division Bench decision of this Court in Ram Chandra Dixit v. Deputy Registrar, Cooperative Societies. 1980 UPLBEC 325 and Shyam Narain Pandey and Ors. v. Assistant District Registrar and Ors., 1980 UPLBEC 195. The learned single Judge came to the conclusion that Section 120 of the Act gives special power to the Registrar, Co-operative Societies U. P. to determine the qualification of the officers and the Regulations framed under Section 120 of the Act shall stand superseded so far as it relates to the minimum qualification prescribed for promotion of an employee from Class IV to Class III.
5. The appellant has placed reliance on the decision of a learned single Judge in Civil Misc. Writ Petition No. 3270 of 1990, Ved Prakash Sharma v. U. P. Co-operative Institutional Services Board and Ors., decided on 3.4.1991 (Annexure-2 to the stay application of the special appeal) where the Circular/Notification dated 31.8.1988 which is also subject matter in the present special appeal, fixing minimum qualification for promotion to Grade III as Intermediate was held to be illegal and the writ petition was allowed.
6. Learned counsel for the appellant has also relied on a decision of the Supreme Court in Om Prakash Maurya v. U. P. Co-operative Sugar Factories Federation and Ors., AIR 1986 SC 1844. It appears that this decision was not placed before the learned single Judge. The Supreme Court has held in that decision that if there are two set of rules regulating the rules of Co-operative Societies, the regulations framed under Section 122 and approved by the State Government will prevail. The 1975 Regulations have been framed under Section 122 of the Act and after due approval by the State Government and published in the official Gazette vide Notification No. 7515 (C) XII-C-37-74, dated December 31, 1975 and hence will prevail over the Circular dated 31.8.1988 issued by the Registrar. The question that came up before the Apex Court and was considered in the decision of Om Prakash Maurya (supra) was as to whether the Regulations framed by the Institutional Service Board constituted as an authority under Section 122 (1) regulating the conditions of service of employees of the Co-operative Societies would prevail over the Rules framed by the Registrar under Section 121 (1) which confers powers on the Registrar Co-operative Societies (which may include any other subordinate officer) regulating the condition of service of employees of the Co-operative Societies which do not require approval of the State Government. The Supreme Court held that after the approval of the State Government as required by Sub-section (2) of Section 122, the Regulations, if any, framed under the said provision will be applicable to the employees of the Co-operative Societies and will prevail.
7. In view of the decision of the Supreme Court whereby the controversy was set at rest, regarding the Regulations framed under Section 122 and the Circulars issued under Section 120 or 121 of the Act as the case may be, the qualification for promotion to class III as prescribed under the Regulations of 1975 being High School will prevail and the minimum qualification of Intermediate fixed by means of Circular dated 31.8.1988 is not valid.
8. In the circumstances, the judgment of the learned single Judge dated 13.10.1993 in Civil Misc. Writ Petition No. 32447 of 1992 is set aside and the appeal is allowed. There shall be no order as to cost.