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Shrawan Kumar Son Of Sri Kamata ... vs U.P. Institutional Service ...

High Court Of Judicature at Allahabad|30 August, 2006


1. Heard Sri M.P. Gupta for the petitioner, Sri O.P. Singh for respondent No. 1 and Sri R.S. Singh, learned Counsel for the respondents No. 2, 3 and 4.
2. This petition is directed against an order dated 27.12.2004 passed by the respondent No. 1 by which the approval of the appointment of the petitioner has been refused.
3. Pivotal facts relevant for the decision of this petition are that eleven posts of class IV employees in District Cooperative Bank Ltd., Mirzapur were advertised on 23.6.2004. Petitioner and others applied and the petitioner was duly selected as shown in the select list published on 5th July, 2004. However, the respondent Service Board refused to grant the approval on the ground that the cut off date with respect to the age of candidates was fixed against the provisions of law.
4. Learned Counsel for the petitioner has urged that the objection raised on behalf of the Board was highly technical and since the petitioner was otherwise qualified, the approval ought to have been granted and the appointment letter issued.
5. The U.P. Cooperative Institutional Service Board was constituted in exercise of powers under Section 122 of the U.P. Cooperative Societies Act, 1965 for the purposes of recruitment, training and disciplinary control of employees of Cooperative Societies. The U.P. Cooperative Societies Employees Services Regulation, 1975, governs the service conditions of such employees. Regulation 5 provides for recruitment and appointments in the Cooperative Societies through the Board whether it is by direct recruitment or by promotion. Sub-clause (v) mandates that every selection shall be subject to the approval of the Board and the appointment can only be made with the prior approval of the Board. Regulation 12 provides that if the posts are advertised in the first half of the year, i.e. ending on June 30, the cut off date for the purpose of age shall be first of January of that year and in case of advertisement subsequent to 30th June, the cut off date would be first of July of the year of recruitment. It further provides that the candidates should not be less than 18 years or more than 35 years of age on the aforesaid cut off date. Regulation 15 provides that no appointment can be made except in the manner provided in the regulations without the prior approval of the Board and in the order as mentioned in the list communicated by the Board.
6. A copy of the advertisement is annexed with the petition and admittedly it was published on 23rd. June, 2004 but the cut off date has been fixed as 1st. July, 2004. In the impugned order the Board found that the fixation of the cut off date was against the provisions of regulation 12 and this violation deprived large number of candidates from applying for the post. It is also apparent that though the advertisement was made on 23rd June, 2004 but only eight days were given for submission of the forms i.e. uptil 30th. June, 2004, while the interview was fixed for 4th. July, 2004. The nature of the powers conferred on the Board is one of trust of vast number of eligible unemployed citizens. The Board is the repository of the interest, of all those eligible persons who may apply for recruitment. The petitioner though contends that it is a mere technicality, but the Board has to examine the matter from a larger and broader perspective and has to act as a guardian for equal right protection of such unemployed people. The Apex Court through a Constitutional Bench pronouncement in the case of Secretary State of Karnataka and Ors. v. Uma Devi (3) Ors. has cautioned the courts against individualization of justice. It held that high prerogative writs should not normally be issued except after balancing rights of the numerous persons who are not before the Court as against the few who approach it. Considering large number of decisions where directions were issued presumably on the basis of equitable considerations, it posed a question and then answered it to the following effect:
The question arises, equity to whom? Equity for the handful of people who have approached the Court with a claim, or equity for the teeming millions of this country seeking employment and seeking a fair opportunity for competing for employment ? When one side of the coin is considered, the other side of the coin has also to be considered and the way open to any court of law or justice, is to adhere to the law as laid down by the Constitution and not to make directions, which at times, even if do not run counter to the constitutional scheme, certainly tend to water down the constitutional requirements.
7. Let us apply the said principles in the present case. A copy of the select list together with the details is annexed with the petition. It shows that on 1st. of July, 2004, the petitioner was 18 years five months. Had the cut off date been fixed correctly in accordance to regulation 12, the petitioner would have been under age on 1st. of January, 2004. Similarly, there may be large number of candidates who may have become over age on 1st of July, 2004 and may not have applied in pursuance of the advertisement. As already stated hereinabove, the Board being custodian of the rights of equal opportunity to the teeming millions of unemployed youth, it was justified in refusing the approval.
8. Further, though, no time limit has been fixed under the regulations for accepting application from the candidates, eight days provided by the Bank cannot be said to be reasonable. Thus, on this score also the Board cannot be faulted. The Board has already directed the Bank to re-advertise the vacancy.
9. Lastly it is urged that in view of rule 4 read with Rule 6 of U.P. Recruitment in services (Age limit) Rules 1972, the cut-off date provided in the advertisement was in order due to the overriding effect of the Rules. In support he has relied upon a Single Judge decision of this Court in the case of Raj Vikram Khare v. 1st J. Banda 1998 (2) ESC 1331
10. The U.P. Recruitment in Services (Age limit) Rules, 1972 (hereinafter referred to as 1972 Rules) were framed under the proviso to Article 309 of the Constitution. It would be useful to note Article 309 of the Constitution:
Recruitment and conditions of service of persons serving the Union or a State. - Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State:
Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act.
11. It is apparent that the power to frame Rules under it is qua recruitment "to public services and posts in connection with the affairs of the Union or of any State". The question is whether recruitment by a Cooperative Society is recruitment to any public service in connection with the affairs of the State.
12. Cooperation is a movement. People with similar interests and goal get together to form a Society. A Cooperative Society by its very nature is an organization where people voluntarily associate together on the basis of equality for the promotion of their common economic interest which they cannot achieve by individual isolated action because of the weakness of the economic position of a large majority of them. It is purely a private organization having no nexus with the affairs of the State. No doubt, it is controlled and regulated by the U.P. Cooperative Society Act, 1965, but its character remains private and individual. Rules have been framed for maximizing economic outcome and to regulate the recruitment and conditions of service of its employees. The employees are paid from the coffers of the society and are its employees for all purposes and do not hold any civil post under the State. As noticed in the opening part of this judgment, Rules have been framed under the 1965 Act. Rules of 1972 only apply to government Servants and not to employees of Cooperative Societies, therefore neither ratio in Raj Vikram Khare (Supra) nor the rules apply in the present case.
13. Apart from the aforesaid, no pleadings have been raised in the writ petition to show how the 1972 Rules apply to employees of the Cooperative Society.
14. For the reasons above, this is not a fit case for interference under Article 226 of the Constitution of India. However, in case, any fresh recruitment is made, as directed by the Bank, the petitioner of either the present petition or the connected petitions can apply, but their claim may not be dislodged only on the ground of age. With the aforesaid observation, the petition is rejected. No order as to costs.
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Shrawan Kumar Son Of Sri Kamata ... vs U.P. Institutional Service ...


High Court Of Judicature at Allahabad

30 August, 2006
  • D Singh