JUDGMENT
1. Heard Sri S.K. Kalia, Sri Kapil Dev, Sri Asit Chaturvedi and Sri Sudeep Seth and learned State Counsel Sri Harsh Vardhan.
2. Writ Petition No. 2570 (S/B) of 1989 has been filed by the Association of Employees viz. U.P. Co-operative Bank Employees Congress Committee of the employees working on Class III posts whereas, other writ petitions have been filed by such candidates who were selected and were allotted to particular co-operative societies for being appointed on the Managerial posts, they being selected for 'On Job Training' in terms of Regulation 5(ix) of the U.P. Co-operative Societies Employees' Service Regulations, 1975.
3. For appointment to the various posts in the Co-operative Societies, the regulations have been framed which are known as U.P. Co-operative Societies Employees' Service Regulations, 1975, in exercise of powers under Sub-section (2) of Section 122 of the U.P. Co-operative Societies Act, 1965. The aforesaid Regulations, prescribe the manner and source of recruitment, strength of staff, appointment, probation, confirmation, termination and retirement, reservation applicable to various posts, consideration by the selection committee and entire process of selection to any post. The selection and appointment has to be made through the agency of U.P. Co-operative Institutional Service Board.
4. In exception to the aforesaid procedure for appointment to the co-operative societies, the State Government as per its policy decision, framed Sub-clause (ix) of Regulation 5 of the U.P. Co-operative Societies Employees' Service Regulations, 1975, which came into force with effect from 22.2.1989. The said Sub-clause (ix) of Regulation 5 of the aforesaid Regulations was, however, omitted, vide Notification dated 3.7.1991. Sub-clause (ix) of Regulation 5 of the U.P. Co-operative Societies Employee's Service Regulations, 1975, before its omission, read as under :
"(ix) Notwithstanding anything contained in Clause (I) allotment of Diploma-holders of Institutes of Co-operative and Corporate Management Research and Training Lucknow, having the qualifications specified by the Registrar under Regulation 7 of the U.P. Co-operative Employees' Service Regulations, 1975 and Section 120 of the U.P. Co-operative Societies Act, 1965, shall be made on the advice of the Committee, which shall consist of, (1) Secretary to the Chief Minister ;
(2) Joint Secretary, Department of Co-operation, Government of U.P....Convenor ;
(3) Secretary, Department of Co-operation, Government of U.P. ;
(4) Secretary, Bureau of Public Enterprises ;
(5) Registrar, Co-operative Societies, U.P., Lucknow ;
(6) Managing Director, U.P. Sugar Mills Federation Ltd. Lucknow ;
(7) Managing Director, U.P. Agro Industrial Corporation ;
(8) Director, Mandi Parishad ;
(9) Managing Director, U.P. Co-operative Bank ;
(10) Managing Director, Provincial Co-operative Federation.
The above Committee will consider the need of the Co-operative society and expertise of the candidate and will make fair and just allotment. The Committee may evolve a fair method of allotment.
The Diploma-holders after their allotment to the concerned Co-operative Societies, will be called Management Trainees and during their on the job-training in the Societies they will be entitled to receive stipend as may be determined from time to time by the Government. After having one year's successful practical training to his credit in the Society, a Management Trainee will be appointed in the concerned Society against the Category I and II i.e. officers/Managerial posts."
5. The aforesaid Regulation gave a complete code for selection and appointment on the category I and II posts i.e., officers/Managerial posts in all the co-operative societies which was different from the normal procedure for appointment as given in Regulation 5(1). It provides the eligibility condition namely, having a diploma from the Institute of Co-operative and Corporate Management Research and Training Lucknow, of having qualifications prescribed by the Registrar under Regulation 7 of Regulations, 1975 and Section 120 of the U.P. Co-operative Societies Act, 1965. The candidature of such candidates was to be considered by the committee, the constitution of which was also provided under the aforesaid Regulations, which Committee was to consider the candidature of a candidate by taking into account the need of the cooperative society and also the expertise of the candidates for the allotment. The allotment so made, had to be fair and just. The discretion had been given to the committee to evolve a fair method of allotment. The candidate so selected, namely, the Diploma-holders after allotment to the concerned co-operative society, were to be designated as Management Trainees. During their 'On Job Training' in the societies, they were allowed stipend as may be determined by the Government from time to time. The period of such 'On Job Training' was one year and the candidates who successfully completed the practical training in the society, were to be appointed in the concerned society against category I and II Officers/ Managerial posts.
6. This scheme of selection and appointment by a duly constituted statutory committee on the need of a co-operative society to have the Management Trainee, was a procedure, which was complete in itself in the aforesaid Regulations. It calls for no ambiguity that such selected candidates were 'On Job Training' and they were to be paid stipend, the amount of which was no doubt was to be determined by the Government from time to time but actually the payment was to be made by the co-operative societies. After one year's completion of training, there was a provision in the Regulations that such trainee will be appointed on the Managerial posts. The Regulation did not say that they will only become eligible for being appointed in category I and II posts.
7. In pursuance of the aforesaid Regulations, advertisements were issued, applications were invited from the eligible and willing candidates who did possess necessary qualifications. On their performance and other qualifications, which might have been considered by the committee, the list of the selected candidates was published and they were attached to one or the other Co-operative Society where they were placed on 'On Job Training' as Management Trainee.
8. The dispute arose as some of the candidates who were similarly selected and allotted to different societies, were given appointment in terms of the aforesaid Regulations against the managerial posts, whereas, unfortunate ones like the petitioners, were not given any appointment. One Arun Kumar Srivastava who was an employee in the Co-operative Bank since before, was sent for training under the orders dated 6.9.1990, but the order for sending him in training, clearly stated that the training period of one year would be counted with effect from 15.1.1990 but when the training period in pursuance of the aforesaid order, came to an end on 14.1.1991 he was not given appointment on the post for which he was selected namely, category I and II posts. It is the case of the petitioner Arun Kumar Srivastava that during all this period after training also, he was allowed to discharge functions on Managerial post but no order was issued and nor he was paid salary and, the prayer for issuing appointment and paying salary was not acceded to and in the meantime, the notification was issued which deleted the Sub-clause (ix) of Regulation 5 of the aforesaid Regulations.
9. The argument of the petitioners is that since before the appointment could be given to the aforesaid incumbent Arun Kumar Srivastava the concerned Regulation had been omitted, he, therefore, cannot claim any right of claiming appointment on the basis of said Training and that the protection under Section 6 of U.P. General Clauses Act would also not be available unless the action taken and orders already issued are protected by a saving clause. However, it is not being disputed that Arun Kumar had completed his training much before the abolition of Sub-clause (ix) of Regulation 5 and that he could have been given appointment, prior to the said omission.
10. Rajiv Kumar and Mukesh Chandra Shukla the petitioners in other writ petitions were also selected likewise and had also completed their training under the aforesaid Regulations but after 3.7.1991 though, they were sent on 'On Job Training' much before the deletion of aforesaid Regulation. As a matter of fact, these petitioners were also sent for training under the Orders dated 6.9.1990 but since these persons were not working in the Co-operative Society to which they were attached, therefore, their period was to start with effect from 6.9.1990. Despite the omission of Rule on 3.7.1991 they were allowed to complete their training of one year which they successfully did. During all this period i.e. even after 3.7.1991, when Sub-clause (ix) of Regulation 5 was omitted, the stipend was regularly paid by the respondent societies and they were treated on 'On Job Training' as per the aforesaid provisions of the Regulations.
11. The respondents submit that the case of Rajiv Kumar and Mukesh Chandra Shukla is on a different footing as against the case of Arun Kumar Srivastava inasmuch as, they did not complete their training before the omission of Sub-clause (ix) of Regulation 5 and since they have completed the training after omission of the Sub-clause (ix) of the said Regulations, they would have no right to claim for appointment under the aforesaid Regulations.
12. Shyam Sunder petitioner has based his claim only on the ground that he possessed diploma of the Institute of the Co-operative and Corporate Management Research and Training, Lucknow, and, therefore, he was also entitled to the benefit of aforesaid Regulations in seeking appointment. There is a clear denial in the counter-affidavit of the respondents regarding eligibility of Shyam Sunder and it has been stated that Shyam Sunder was never selected by the Committee constituted under Sub-clause (ix) of Regulation 5 of the Regulations and he was never allotted to any co-operative society and, therefore, he cannot base his appointment on the strength of the said Regulations. As a matter of fact, in reply to para 10 of the writ petition it has been stated in the counter-affidavit that the petitioner was never sent for training and, therefore, so far as his writ petition is concerned, deserves to be dismissed on this ground.
13. The writ petition filed by the U.P. Co-operative Bank Employees Congress challenges the vires of Sub-clause (ix) of Regulation 5 of the Regulations as well as the appointment of Rajeev Saxena. Rajeev Saxena was a similarly situated candidate who was selected by the aforesaid committee under Sub-clause (ix) of Regulation 5 of the Regulations and was allotted to a Co-operative Society who on completion of one year training, was given appointment to the Managerial post.
14. The controversy in the present writ petitions revolves around the question that whether a candidate who has been selected for training by the committee constituted under Sub-clause (ix) of Regulation 5 of the Regulations, would have any enforceable right for seeking appointment against the Managerial post in the co-operative society where he has been sent for 'On Job Training' even after omission of the aforesaid Regulations.
15. An ancillary question which also arises for consideration is regarding the rights of the candidates who have though, completed training prior to omission of the Regulations, but have not been given appointment for any reason whatsoever, whether they can still claim appointment on the basis of the provisions of the Regulation which stood omitted by the time, when they could be given the appointment. Likewise, the right of the candidates, who started their 'On Job Training' when the regulation was in force, but could complete their training after its omission, has also to be considered in regard to their claim of appointment.
16. Learned Counsel for the respondents have placed reliance upon various judgments asserting that if a Rule is omitted, the protection of Section 6 of General Clauses Act would not be available unless there is a saving clause in the Rules itself. Relying upon the aforesaid legal proposition it has been vehemently urged that even assuming that the candidates who were sent on 'On Job Training', had completed their training period of one year successfully, they after omission of Regulation, could not claim any enforceable right for being appointed under the said Regulation, the same having not been protected by Regulation itself and that those who could not get appointment before the Regulation was omitted do not have any right of appointment.
17. There cannot be any dispute that if a Rule (Regulation) is omitted the consequence would follow, in accordance with the provisions by virtue of which the Rule (Regulation) has been omitted. The applicability of Section 6 of General Clauses Act would only mean the protection of the action taken or the orders passed in pursuance of the Rules, which stand omitted and nothing beyond that. Since in the case in hand, the question is slightly different, therefore, we have not burdened the judgment with various case law cited by the parties. The applicability of Section 6 of the General Clauses Act or existence of saving clause, would hardly be of any relevance where the Regulation in itself envisages an appointment on completion of one year training for which no further action is necessary except the issuance of a formal appointment order. There is a distinction in two terms viz. A candidate having been selected for appointment and that the candidate selected, on completion of training will be appointed. The former would have no right to seek appointment merely on the basis of his name being found in the select list but in the latter case, the selected candidate is put on 'On Job Training' who will be appointed on completion of his training. Such a case would only require the issuance of a formal order of appointment on completion of the training.
18. In the case of Shankarsan Dash v. Union of India, , the apex Court observed that it is not correct to say that if number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily, the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide or appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted.
19. In Asha Kaul v. State of Jammu and Kashmir, , the Supreme Court again had an occasion to consider the rights of selected candidates on the panel and observed as under :
"It is true that mere inclusion in the select list does not confer upon the candidates included therein an indefeasible right to appointment [State of Haryana v. Subhash Chandra Marwaha ; Mani Subrat Jain v. State of Haryana; State of Kerala v. A. Lakshmikutty] but that is only one aspect of the matter. The other aspect is the obligation of the Government to act fairly. The whole exercise cannot be reduced to a farce. Having sent a requisition/request to the Commission to select a particular number of candidates for a particular category...in pursuance of which the Commission issues a notification, holds a written test, conducts interviews, prepares a select list and then communicates to the Government.... the Government cannot quietly and without good and valid reasons nullify the whole exercise and tell the candidates when they complain that they have no legal right to appointment."
20. The action of the respondents in not giving appointment to the petitioners is not only to be adjudged on the principles that the name of selected candidate finds place in the list of candidates selected finally as in other cases in a normal procedure of selection but it has to be considered keeping in mind that there is a specific regulation, under which, they were selected for being sent on 'On Job Training' in the Societies themselves where they were to be appointed on successful completion of their practical training.
21. Sub-clause (ix) of Regulation 5 clearly means that such candidates will be appointed with no further suitability test and as a matter of fact when they were sent for 'On Job Training' they already stood appointed as Management Trainees, in the concerned Co-operative Society.
22. The petitioner Arun Kumar Srivastava is a candidate who had completed his training much before the omission of relevant Sub-clause (ix) of the Regulation 5. That being so if the respondent withheld the issuance of appointment order for no valid reason whatsoever, he cannot be put to a disadvantage or loss in getting appointment simply because of the inaction on the part of the respondents.
23. The Regulation envisages that on successful completion of practical training of one year, the appointment would be made. This required the concerned co-operative society to issue appointment order immediately on successful completion of one year training. If it has not been done, no fault can be attributed nor any action can be said to be just or reasonable which denies appointment to such a candidate. The action is per se arbitrary.
24. In respect of other petitioners who were sent for training on 6.9.1990 i.e., at the time when the Regulation was in existence and were allowed to complete their training despite the omission of Regulation on 3.7.1991 by those very societies to whom they were allotted, were also entitled for being appointed simply for the reason that it was not a selection for being appointed but a selection where the petitioner stood selected and rather, appointed and were sent on 'On Job Training'. The process of selection was complete even before the Regulation was omitted. Sending on 'On Job Training' can be given no other meaning except that it was in service training. The case of the petitioners being that of 'in service training' were entitled to be issued appointment orders particularly when they were allowed to be continued by the societies as well as the Government even after the deletion of the Regulation. In case the trainees were not entitled to appointment, the societies ought to have stopped their training or directions could have been issued for closure of the training. Instead, they were allowed to continue with the training and to complete the training successfully in September, 1991 for which they were also paid the stipend by the Co-operative Society as per the determination made by the State Government.
25. Sri Asit Chaturvedi who argued the matter on behalf of the Association of employees, has made an attempt to challenge the selection of selected candidates on the ground that Sub-clause (ix) of the Regulation 5 of the Regulations does not at any point of time, give opportunity to the U.P. Co-operative Institutional Service Board, to make selection or judge the suitability of the candidates who were appointed in societies in view of Sub-clause (ix) of Regulation 5 of the Regulations. He has further argued that the candidates who have been selected, their suitability was not adjudged by any society and, therefore, they cannot be appointed.
26. It has to be taken note of that Sub-clause (ix) of Regulation 5 of the Regulations starts with a non-obstante clause. The effect of such a clause is that the procedure for selection and appointment given under Clause (1) of Regulation 5 stands overridden by Sub-clause (ix) of Regulation 5. Sub- Clause (ix) of Regulation 5 is a distinct clause and deals with a distinct class of selected candidates as against the candidates selected under provisions of Regulation 5. It gives the eligibility criteria, the educational qualification, constitution of the statutory committee for considering selection on the basis of the need of the society and also the expertise of the candidates. The aforesaid Regulation has been framed for giving incentives to persons specially qualified and for providing them job opportunities at the higher level in the co-operative service management. Such candidates constituted a separate class who could not be treated nor can be treated with those who are governed by Clause (1) of Regulation 5 of the Regulations.
27. It is always open for the State to create a class of a homogeneous group of persons taking into consideration the special qualification for a particular purpose may be, in the circumstances of the case, for the cooperative management or otherwise. Unless such a classification does not hit a similarly situated person, it cannot be said to be arbitrary or unreasonable.
28. The petitioner Association represents employees working on Class III post as is being admitted by the parties that all such members of the Association would only be entitled to promotion on the higher post may be category I or II post and they cannot be appointed by direct recruitment.
29. Regulation 7 prescribes quota for direct recruitment as well as that of promotees. In giving appointment to the petitioners or other similarly situated candidates, their appointment are to be made against the post of direct quota which would not affect the posts/vacancies of the promotion quota. The members of the Association who cannot claim appointment under the direct recruitment quota, can have no possible grievance against the appointment of the petitioners as they are not likely to adversely affect the posts/vacancies of the promotion quota. The Association is neither having focus standi to challenge the claim of appointment of the selected candidates nor there exists any case of its grievance.
30. All such selectees who had been sent for training at the time when sub-regulation (ix) was in existence and had either completed their training before the omission of Regulation or have been allowed to complete their training even after omission of the Regulation by the Government and the societies, would have a right to get appointment under the aforesaid scheme of Sub-clause (ix) of Regulation 5 as it then stood.
31. After selection of the candidates being made by adjudging their suitability through interview and also by examining their educational qualification and performance in interview etc. and they having been sent 'On Job Training', the issuance of the appointment order was only a formality which ought to have been completed by the respondents themselves immediately after the completion of training.
32. For the reasons stated above, we allow the Writ Petition No. 5664 (S/B) of 1991 and Writ Petition No. 5798 (S/B) of 1991. We direct that necessary appointment orders be issued by the societies within a period of four weeks. We dismiss the Writ Petition No. 2570 (S/B) of 1989 and Writ Petition No. 7969 (S/B) of 1991 for the reasons already recorded.