By impugned order dated 30.01.2009, the Deputy Registrar/Special Officer of Rasipuram Agricultural Producer Co-operative Marketing society, has cancelled the appointment of the petitioner as a Typist, and seniority in the post of Junior Clerk, and placed him below one Mr.P.Rajendran, with effect from 01.02.2009, and consequently, reduced the scale of pay and fixed at Rs.2040 to 1100 and cancelled the fixation of scale of pay in the post of Typist at Rs.1320-30-1560-40-2040 and reduced the same to 1100-25-1150-30-1660. The said order is put to challenge in this Writ petition.
2. Facts leading to the Writ petition are as follows:
The petitioner was appointed as a Sales man, in 1984 in a fair price shop of the respondent society through employment exchange. On 30.03.1993, he was promoted as Junior Clerk. Though, the post of Typist was included in the cadre strength of the respondent society, it was lying vacant and since, the petitioner was the only person having the necessary qualification to be appointed to the said post, he was transferred and appointed as Typist on 30.04.1996, and his salary was fixed in the post of Typist. On the same day, another order was passed, in which he was informed that the seniority would be retained only in the post of Junior Clerk, and not in the post of Typist. By order dated 04.05.1996, his basic salary was fixed at Rs.1320 as per the approval granted by the Joint Registrar of Co-operative Societies Namakkal. Accordingly, by an order dated 06.05.1996 the respondents fixed his pay. On completion of 10 years of service, in the post of Typist, selection grade scale of pay was fixed by an order dated 26.05.2006, wherein, the petitioner was shown as Typist and his scale of pay was fixed at Rs.5400. A 12(3) settlement under the Industrial Disputes Act, was also entered into on 26.10.1998, between the employees and the respondent, and under the said settlement also, the petitioner was shown as Typist, with the scale applicable to the post. As per the cadre strength of the bank, the post of Typist is also available.
3. Referring to the proceedings dated 30.04.1996, of the Special Officer, of the respondent bank Mr.S.Venkataraman, Learned Counsel for the petitioner, submitted that the petitioner has been appointed to the post of Typist, on transfer by resolution No.3 dated 30.03.1993, and that he was directed to handle the work of Junior clerk also. He further submitted that, only after satisfying the necessary qualifications required for the post of Typist, he was appointed as Typist on transfer, and his scale of pay was fixed as per the 12(3) settlement arrived at between the employees and the employer.
4. He also submitted that, selection grade scale of pay was given on completion of 10 years of service in the post of Typist and the sequence of events would show, that the petitioner had satisfied the necessary qualification for the post of Typist and appointed in a cadre post of the society, and further awarded selection grade scale of pay, in recognition of his continuous and unblemished service, and at this juncture, it is not open to the respondents, to suo motu cancel the appointment of the petitioner in the post of Typist, and consequently, revert him to the post of Junior clerk. He submitted that Special Officer of the respondent society has no powers to act suo motu to take up the appointment of the petitioner and act contrary to 12(3) settlement.
5. Learned counsel for the petitioner further submitted that, by the impugned order of reversion and depriving him of his unblemished service for nearly 13 years, there is a gross reduction of the petitioner's salary besides, downgradation from the post of Typist. He further submitted that the respondent ought to have given a reasonable opportunity to the petitioner to putforth his contentions, regarding the entitlement of the petitioner to be retained in the post of Typist. Though the statute provides an appeal, invoking the jurisdiction of this Court under
Article 226 of the Constitution of India, cannot simply be shut down, when there is a violation of principles of natural justice. In this context, he relied on a Full Bench decision of K.Marappan Vs. The Deputy Registrar of Co-operative Societies, Namakkal circle, and another decision reported in 2006(4) CTC 689, Mathura prasad Vs. Union of India and others reported in 2007(I) SCC 292. For the above said reasons, he prayed that the impugned order be set aside and consequently prayed for issuance of a direction to the respondents, granting pay protection in the post of Typist recognising his services.
6. Per contra, Mr.R.Parthiban, Learned counsel appearing for the respondent society, made a preliminary objection to the maintainability of the Writ petition in view of the Full Bench decision stated supra, and prayed for dismissal of the Writ petition, on that score alone. Without prejudice to the above, he submitted that the Writ petitioner was appointed as a salesman during 1984 in the respondent co-operative society. On 30.03.1993, he was promoted as junior clerk along with two other employees namely, Mr.P.Rajendran, Mr.E.Pandian. Since, all the three employees joined the society on the same day, Mr.P.Rajendran was placed in the first position in the seniority list of junior clerks, on the basis of Date of Birth of all the selected candidates.
7. Learned counsel for the respondent further submitted that the post of Typist was vacant during the year 1996. On 30.04.1996, the petitioner has made a representation to the respondent's society stating that since, he was having the necessary qualifications to the post of Typist, he may be considered for appointment to the said post. The petitioner in his representation has also made clear that, he would not claim any seniority in the post of Typist. Hence, his representation was considered and appointed as Typist by order dated 30.04.1996.
8. Learned counsel for the respondent further submitted, that the petitioner has suppressed the undertaking given by him, when he had requested for appointment to the post of Typist, to this Court and obtained interim orders and therefore, he is not entitled to invoke the jurisdiction of this Court.
9. Inviting the attention of this Court, to the bye-laws, he submitted that even as per the bye-laws of the society, the post of Typist in the cadre strength of the respondents society, has to be filled up only by direct recruitment, and therefore, the appointment to the post of Typist, by way of transfer will not confer any statutory or legal right to continue in the said post.
10. He further submitted that a decision has been taken by the bank in December 2008, to the effect that the post of Typist is no longer required since, all the correspondences are being done only through computers and having regard to the fact all the employees including the petitioner, have been given training for operating computers, the respondent society by impugned order has reverted the petitioner to the original post of junior clerk, without altering his seniority in the said post of Junior clerk. He further submitted that the petitioner cannot insist that he should be allowed to continue in the said post of Typist, and given pay protection. On the aspect of show cause notice, that an opportunity should be provided to the petitioner before ordering reversion, he submitted that when the petitioner himself has given an undertaking not to claim any seniority or right, the appointment made to the post of Typist, taking into the exigency at the point of time, does not confer any legal right to the petitioner and therefore he cannot expect that he should be heard and therefore issuance of a show cause notice is only an empty formality. In support of his contention, he relied on a Division Bench judgment of this Court, in G.Nithyanandhan and another Vs. Government of Tamil Nadu through its secretary to Government, Agriculture Department, Chennai, and another reported in (2009) 1 MLJ 298.
11. Placing reliance on a decision of the Supreme Court in City and Industrial Development Corporation Vs. Dosu Aardeshir Bhiwandiwala and others reported in 2009(1) SCC 168, Learned counsel for the respondent submitted that while exercising jurisdiction under
Article 226 of the Constitution of India, this Court has to consider (a) Whether a petition reveals all the material facts, (b) Whether the petitioner has any alternative or effective remedy for the resolution of the dispute and such other factors set out in the judgment, and therefore submitted that for suppression of the fact, the petitioner is not entitled to remedy, sought for in this Writ petition.
12. On the basis of the averments contained in the rejoinder, Learned counsel for the petitioner submitted that the plea that the the Typist post is no longer required in the respondent bank, is purely out of malafide and that a Typist with a skill of operating computer can still continue in the said post and therefore, the action of the respondent in downgrading or demoting the seniority of the petitioner and reverting him to the post of clerk is wholly unwarranted.
13. Placing reliance on an unreported judgment in W.P.No.5603 of 2000 dated 02.07.2000, Learned counsel for the petitioner further submitted that, the Full Bench has also stated that when there is an alternative remedy available under the statute, that would not oust the jurisdiction of this Court, under
Article 226 of the Constitution of India and therefore, submitted that the self imposed restraint by Courts while exercising their jurisdiction under
Article 226 of the Constitution of India, would not preclude the aggrieved party to approach this Court, when there is a clear case of violation of principles of natural justice.
14. Heard the learned counsel for the parties and perused the materials available on record.
15. Materials on record shows that on 15.09.1984, the petitioner was appointed as salesman in the respondent society. Thereafter, on 30.04.1996, he was appointed to the post of Typist on transfer. In addition to the duties of Typist, he was also directed to perform such other works which he was discharging earlier i.e., in the post of junior work. A reference has been made to the representation of the petitioner dated 30.04.1996, in the order of appointment to the post of Typist and it is relavant to extract the same.
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16. The above order clearly indicates that the petitioner has been appointed as Typist, on the basis of his representation. Where a condition has been imposed that he would not insist for seniority in the post of Typist. The regulation framed under the special bye-laws approved by the Registrar of Cooperative Societies shows, one post of Typist in the cadre strength of employees in the society and that, the appointment to the said post has to be made only by direct recruitment. Therefore, the appointment of the petitioner to the post of Typist, is not as per the regulation. It is done only by way of transfer, and not by way of promotion, as the bye-laws do not provide for filling up of the said post by promotion also. No doubt, the petitioner has been awarded selection grade in the post of Typist on 26.05.2006 on completion of 10 years of service in the said post as per the 12(3) settlement between the parties. In the 12(3) settlement of the Industrial disputes Act 1947, there is no reference to the validity of appointment of the petitioner to the post of Typist and all that was considered relating to the fixation of pay scale applicable to the post of Typist and others. Therefore, this Court, is of the considered view that the settlement arrived at between the employees and the employer, under
Section 12(3) of the Industrial Disputes Act, cannot be pressed into service in support of the contention that the validity of the appointment of the petitioner to the post of Typist has been recognised or ratified by the society, and that his appointment in the post of Typist contrary to the statutory rules and regulations has been ratified.
17. Nowhere in the affidavit filed in support of the Writ petition, the petitioner has disclosed the material facts of giving an undertaking to the respondent society, that he would not claim any seniority in the post of Typist.
18. In City and Industrial Development Corporation Vs. Dosu Aardeshir Bhiwandiwala and others reported in 2009(1) SCC, 168 the Supreme Court has set out certain guiding principles for entertaining a Writ petition under
Article 226 of the Constitution of India and at paragraph No 29 and 30 of the judgment the Apex Court held as follows.
In our opinion, the High court exercising its extraordinary jurisdiction under
Article 226 of the Constitution is duty-bound to take all the relevant facts and circumstances into consideration and decide for itself even in the absence of proper affidavits from the State and its instrumentalities as to whether any case at all is made out requiring its interference on the basis of the material made available on record. There is nothing like issuing an ex parte writ of mandamus, order or direction in a public law remedy. Further, while considering the validity of impugned action or inaction the Court will not consider itself restricted to the pleadings of the State but would be free to satisfy itself whether any case as such is made out by a person invoking its extraordinary jurisdiction under
Article 226 of the Constitution.
The Court while exercising its jurisdiction under
Article 226 is duty-bound to consider whether:
(a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved;
(b) the petition reveals all material facts;
(c) the petitioner has any alternative or effective remedy for the resolution of the dispute;
(d) person invoking the jurisdiction is guilty of unexplained delay and laches;
(e) ex facie barred by any laws of limitation
(f) grant of relief is against public policy or barred by any valid law; and host of other factors.
The Court in appropriate cases in its discretion may direct the State or its instrumentalities as the case may be to file proper affidavits placing all the relevant facts truly and accurately for the consideration of the Court and particularly in cases where public revenue and public interest are involved. Such directions are always required to be complied with by the State. No relief could be granted in a public law remedy as a matter of course only on the ground that the State did not file its counter-affidavit opposing the writ petition. Further, empty and self-defeating affidavits or statements of Government spokesmen by themselves do not form basis to grant any relief to a person in a public law remedy to which he is not otherwise entitled to in law.
19. In the case on hand, the petitioner has not disclosed the method of recruitment provided under the regulations and of the specific undertaking given by him, at the time of appointment when he made a request to the respondent to appoint him as Typist, therefore this Court is of the view that the appointment of the petitioner to the said post is not in accordance with the regulations framed under the bye-laws and therefore, such appointment would not confer any legal right to insist that he should be retained in the post of Typist. Selection grade is normally given taking into consideration the stagnation of a person in a particular post and that would not clothe any right for seniority, when the appointment itself is not made as per the statutory rules/regulations, applicable to the post. Though, the petitioner has enclosed the copies of appointment order for the post of Typist, and the order granting selection grade scale of pay, he has not enclosed the copy of the representation dated 30.04.1996, in which he has given an undertaking therefore, this Court is of the view that there is a suppression of material fact.
20. The decision of the Supreme Court in Mathura Prasath case relied on by the petitioner may not be applicable to the facts of the present case. That case deals with a disciplinary proceedings where the procedure laid down under the rules were not followed and that the action taken by disciplinary authority was without application of mind. In such circumstances, the Supreme Court held that the power of judicial review, would lie if there is an error of law apparent on the face of the record. The said decision is not applicable to the facts of this case, where the respondent had taken a decision that the post of Typist is no longer required in the respondent bank, as all the employees including the petitioner were given training in working on computers. It is well settled that it is the purely the prerogative of the employer to retain or abolish a post depending upon the need. In the case on hand, the society has taken a decision that the post of Typist is no longer required and in such circumstances, the appointing authority who has appointed the petitioner as Typist at the relavant point of time, can always take a decision not to engage him as typist if there is no requirement. There is no quarrel over the preposition that an alternative remedy is not a bar for exercising judicial review. Section 152 of the Tamilnadu Co-operative Societies Act, provides for an appellate remedy to the competent authority. In the case on hand when the appointment of the petitioner to the post of Typist is not in accordance with the regulation framed under the bye-laws and when such appointment does not confer any legal right to claim either retention in the said post or seniority, issuance of a notice before order of reversion, as rightly contended by the Learned counsel for the respondent is only an empty formality as decided by this Court, in G.Nithyanandhan and another Vs. Government of Tamil Nadu through its secretary to Government, Agriculture Department, Chennai, and another reported in (2009) 1 MLJ 298.
21. In Ashok Kumar Sonkar Vs. Union of India (Union of India) and others reported in 2007 (4) SCC page 54, the Supreme Court while dealing with an issue of an opportunity of hearing the Supreme Court at para 11 as follows.
Then, the next question that arises for consideration is whether before ordering reversion, the petitioners shall be put on notice about the same and whether the failure to issue notice to them, would be violative of principles of natural justice. Though it is urged on the side of the petitioners that such notice is necessary, I am not inclined to accept the said contention for the reason that it is not the case of the petitioners that no disciplinary proceedings are pending against them. It cannot be the contention on the side of the petitioners that knowingly well about the disciplinary proceedings, they have been considered for promotion and promoted as Assistant Directors of Horticulture. It is averred on the side of the respondents that the petitioners have been included in the list of promotion by mistake and an action had been taken against the concerned officer for including the name of the petitioners. When such is the position, even assuming that notice has to be issued to the petitioners before an order of reversion, it would be only an empty formality, as contended by the learned Additional Advocate General appearing for the respondents. In view of the same, I am of the considered opinion that though normally such orders of reversion could be done only after following the principles of natural justice by issuing notice to the concerned persons, considering the above facts and circumstances, the failure to issue such notice does not vitiate the order passed by the respondents reverting the petitioners.
22. As the petitioner is not entitled to be appointed to the post of Typist on regular basis, and having regard to the undertaking given by him, which does not confer any right for retention or seniority, and when the bank has taken a decision that the post of Typist is no longer required, the decision of the bank to post him as junior clerk, and to place him below one Mr.P.Rajendran, who is his immediate senior as per the date of initial appointment to the post of junior clerk, cannot said to be arbitrary or without any basis. As this Court, has also taken the view that the petitioner has suppressed a material fact, he is not entitled to any equitable remedy.
23. In these circumstances, this court is of the considered view that the petitioner is not entitled to relief sought for in this Writ petition. Hence, the interim stay granted in M.P.No.1 of 2009 dated 26.02.2009, is vacated. The Writ petition is dismissed. Consequently, the connected Miscellaneous petitions filed by the petitioner are dismissed. No costs.
09.10.2009 nb Index : Yes To The Deputy Registrar/Special Officer, S.318, Rasipuram Agricultural Producer Co-operative Marketing Society Ltd., Rasipuram, Namakkal District. S.MANIKUMAR,J. nb W.P.No.3352 of 2009 and M.P.No.1 and 2 of 2009 09.10.2009