The petitioners herein joined the second respondent society as a Sales women on 29.06.1992 and thereafter, they were promoted as Clerks on 01.08.1999. The third respondent joined the office of the second respondent as a Salesman on 02.11.1987. Thereafter, the petitioners and the third respondent finished the training in the month of July 1997. However, the petitioners were appointed as Clerks by way of resolution by the Board of Directors of the third respondent society with effect from 11.08.1999.
2. Challenging the said appointment, the third respondent raised a dispute under Section 90 of Tamil Nadu Co-operative Societies Act, 1983. The first respondent, exercising the power under Section 90 of the said Act, has set aside the appointment of the petitioners by holding that the promotion of the petitioners are irregular since the same has been made contrary to Rule 149 of the Tamil Nadu Co-operative Societies Rules, 1988 and without obtaining prior permission from the authorities. It has been further held that, admittedly, the third respondent is a senior to the petitioners. Therefore, under those circumstances, the first respondent has set aside the order of promotion made in favour of the petitioners and also ordered recovery as against the petitioners. Challenging the said order passed by the first respondent dated 15.07.2002 the present writ petition is filed.
3. The learned counsel for the petitioners submitted that the order passed by the first respondent is liable to be set aside since the same is one without jurisdiction. The learned counsel relied upon the judgment of this Honourable Court in The Management of Madras Atomic Power Project Employees Consumers (Co-operative Stores Limited, Kalpakkam rep by its Special Officer) vs. The Deputy Commissioner of Labour (Appeal) Madras-6 and 2 others reported in 2000 (III) CTC 738 in support of the contention that while exercising the power under Section 90 of Tamil Nadu Co-operative Societies Act, 1983 the disputes between the employers cannot be decided. Therefore, the learned counsel for the petitioners submitted that the impugned order has to be set aside as one without jurisdiction and the only recourse open to the respondents is to take appropriate action under Section 153 of the said act which provides revisional powers to the authorities.
4. With regard to the exercise of such power the learned counsel appearing for the second respondent submitted that inasmuch as the appointment of the petitioners being unauthorised and irregular having been made contrary to the provisions of the Act and Rules, the petitioners cannot challenge the impugned order since the petitioners do not have any legal right to do so. The learned counsel further submitted that the petitioners who have not raised the question of jurisdiction before the first respondent cannot raise the same for the first time in the writ petition. The learned counsel also relied upon the judgment of the Honourable Apex Court in Ashwani Kumar vs. State of Bihar, reported in (1997) 2 SCC Page-1 in support of his contention that when an appointment is made in excess of the sanctioned post any such appointment will have to be held as void. The learned counsel also relied upon the judgment of the Full Bench in R.Rathakrishnan vs. The Deputy Registrar of Co-operative Societies, Dindigul Circle, Dindigul reported in 2007 (5) CTC 369 and submitted that when there is an appointment made contrary to the Act and Rules the power under
Article 226 of the Constitution of India cannot be exercised.
5. In the present case on hand, the petitioners have been reverted as Sales Women pursuant to the orders passed by the first respondent. A reading of Section 90 of the Tamil Nadu Co-operative Societies Act would show that the dispute raised by the third respondent being one of fixation of seniority and seeking appointment to the higher post, cannot be decided by the first respondent by exercising the power under Section 90 of the Tamil Nadu Co-operative Societies Act. As contended by the learned counsel for the petitioner, the Honourable High Court in the judgment The Management of Madras Atomic Power Project Employees Consumers (Co-operative Stores Limited, Kalpakkam rep by its Special Officer) vs. The Deputy Commissioner of Labour (Appeal) Madras-6 and 2 others reported in 2000 (III) CTC 738 has held that service matters cannot be decided by the first respondent by exercising the power under section 90 of the Tamil Nadu Co-operative Societies Act.
6. However, in the present case on hand, it is not the case of the petitioners that they have been appointed within the cadre strength and also in accordance with Rule 149 of the Tamil Nadu Co-operative Societies Rules. Therefore, this court is of the opinion that the appointments have been made contrary to the Rules and Regulations the same cannot be restored by this Honourable High Court by exercising the power under
Article 226 of Constitution of India.
7. The learned counsel for the petitioners submitted that they would come within the cadre strength. This court is of the opinion that the matter has to be considered by the authorities. Inasmuch as the Board of Directors while passing resolution and appointment the petitioners have not got the prior approval from the authorities and the petitioners are not able to establish before this court that they have been appointed within the cadre strength, this court cannot grant relief to the petitioners.
8. Even assuming the order passed with the first respondent dated 15.07.2002 is set aside, the same will not confer any benefit to the petitioners by relying on order of promotion promoting them as Clerks because it is a well established principle of law that the power of this court under
Article 226 of Constitution of India is discretionary. When setting aside an order would result in the restoration of another illegal order then the court cannot exercise the power. Therefore, while setting aside the order of the first respondent as being one without jurisdiction, this court is not constrained to go into facts of the case and in view of the fact that the petitioners have been reverted back, this court is of the opinion that no ground is made out to restore the promotion of the petitioners pursuant to the setting aside of the order of the first respondent.
9. Inasmuch as the contention of the second respondent that the petitioner has been appointed in total contradiction of the provision of the Tamil Nadu Co-operative Societies Act, 1983 and the Rules this court is of the opinion that it is a fit case where the Registrar or Joint Registrar of the Tamil Nadu Co-operative Societies will have to be directed to exercise the power under Section 153 (3) of Tamil Nadu Co-operative Societies Act and go into the question as to whether the promotion made in favour of the petitioners by promoting them as clerks in accordance with the provisions of the Co-operative Societies Act and the Rules or not. Therefore, this Court directs the Registrar or the Joint Registrar, as the case may be, to go into the said question and decide the same within a period of 3 months from the date of receipt of a copy of this order. The said authority is also directed to issue notice to the petitioners as well as to the third respondent before deciding the same. It is made clear that the petitioners are not entitled to be appointed as clerks pending adjudication of the final order to be passed by the authorities.
10. The impugned order is hereby set aside for the reason that the order of recovery has been made by the first respondent by exercising the power under Section 90 of the Tamil Nadu Co-operative Societies Act which is not permissible in law. It also M.M. SUNDRESH, J.
ssp seen that before passing the said order of recovery, the first respondent has not been given any opportunity to the petitioners. Therefore, the issue of recovery also will have to be decided by the authorities while exercising the power under Section 153 of the Tamil Nadu Co-operative Societies Act.
11. With these observations, these writ petitions are disposed of. No costs.
ssp To
1. The Deputy Registrar of Co.op.
Societies, Thirukovilur Circle Thirukovilur, Villupuram District
2. The Elavanasur Kottai Primary Agricultural Co.op.Bank, Elavanasur Kottai rep.by its Special Officer, Elavanasur Kottai Ulunthur Pettai Taluk
3. P.Amavaasai, Salesman Elavanasur Kottai Primary Agricultural Co.op.Bank Ltd., Elavanasur Kottai, Ulunthurpettai Taluk