Andhra HC (Pre-Telangana)
V.V.S.S. Vara Prasada Rao Patnaik vs The Co-Op. Central Bank Ltd. And Ors. on 27 February, 1996
Equivalent citations: 1996(2)ALT107
JUDGMENT Lingaraja Rath, J.
1. The fourth respondent in the writ petition, who was impleaded as a party subsequent to the filing of the petition, is the appellant. An advertisement had teen issued by the respondent No. 1 Bank for appointment of three direct recruits in category III posts. While drawing up the panel for appointment, after holding interview, the appellant and the third respondent were also included in the panel for future vacancies as the 4th and the 5th names in the panel. When their appointment orders were about to be issued in respect of vacancies which arose subsequently, Writ Petition No. 13660/86 was filed by some of the in service personnel challenging their empanelment for future posts. The writ petition having been allowed by the learned single Judge, the appeal has been preferred.
2. Before the learned single Judge the writ petition was contested by the Bank taking the stand inter alia of the respondent No. 1 being not 'State' and that a petition under Article 226 against it was not maintainable. The plea was negatived holding a circular of a Registrar, Co-operative Societies to be statutory in nature and that the circular having been violated in the empanelment of the appellant and respondent No. 3, the writ petition was maintainable.
3. Mr. Duba V.N. Babu, learned Counsel for the appellant, has submitted, in urging the appeal, of the writ petition to have been disposed of on erroneous basis treating Circular Rc. No. 5199/79-Cl(A) dated 15-3-1979 to have been issued under Rule 28(1) of the Andhra Pradesh Co-operative Societies Rules, 1964 though the circular in fact, was not issued under Rule 28(1) and that secondly under that rule the only authority vested in the Registrar is to prescribe the qualifications required for the respective posts and the securities to be furnished in respect of the posts, but that the rule does not authorise him to either devise a staffing pattern or specify the mode of recruitment. It appears from the judgment under appeal that the learned single Judge took the view of the circular to be statutory and the empanelment of the appellant and respondent No. 3 having been inconsistent with the circular, the empanelment made to have been bad for which reason they could not be appointed.
4. Learned Counsel for the appellant has filed the purported circular separately, which is also accepted by the learned Counsel for the respondents as the proceedings referred to in the Judgment. Besides, another circular of the Registrar, Co-operative Societies of 15-3-1979 i.e., on the same date and having on the same number, have also been tiled as additional material paper in the appeal. It is a circular dealing with the subject of reorganisation of staffing pattern and its implementation, as also further instruction relating to Cooperative Central Banks and apart from prescribing the educational qualifications for different posts, also purports to say the manner in which promotions and direct recruitments are to be made. The circular is not stated to have been issued under Rule 28(1). So far as the other circular of the same date referred in the impugned judgment in concerned, it appears actually to be a proceeding of the same date issued under the circular. It refers to Rule 28(1) in its context. The proceedings in paragraph 4 referred to the stipulations in the circular and stated that the qualifications required for the posts are relaxed under Rule 28(3) to enable the Co-operative Central Banks to fill up the posts of Deputy General Manager (Development), Assistant General Managers and Managers (i.e., the Category III posts) under the reorganised staffing pattern from among the employees in the next lower category to the extent of vacancies earmarked for promotion by the Management of the Bank and the Management of the Bank is permitted to fill up such vacancies by promotion according to the criteria fixed in the circular i.e., when a vacancy in higher category is earmarked for promotion by the Management, the persons in the next lower category must be given opportunity for promotion with regard to their seniority in the cadre subject to the fulfilment of the conditions relating to qualifications. In Paragraph 3 of the proceedings, the Registrar referred to the suggestions of the Reserve Bank of India regarding promotions and direct recruitments and stated that the suggestions of the team of officers has been broadly agreed to and the order had been issued inter alia that 1/3of the total number of vacancies in the category III after resultant filling up of the posts in category II, should be earmarked for direct recruitment. If there are four posts, one post shall be reserved for direct recruitment and if there are five posts, two posts shall be reserved.
5. We are unable to agree with the learned Counsel for the appellant that the circular of 15-3-1979 had not been issued by the Registrar under Rule 28 (1). Reading the circular and the proceedings together, leads to the inescapable conclusion that though the circular does not mention Rule 28 (1) as the power under which it was being issued, yet a reference of the same in the proceedings clearly shows the circular to have been issued in exercise of the powers under Rule 28(1). It is well known that if a power is exercised not expressly referring to the source of the power, yet if it can be traced to an existing provision under which the power could be exercised, it has to be treated as having been done in exercise of that power. This submission of the learned Counsel, hence has to be negatived.
6. But even so, Rule 28(1) does not authorise the Registrar to make any other provision, except to lay down the qualifications for the posts and the securities that are to be furnished for the categories of different posts. The rule is in the following words:
"28. Officers and servants of societies:- (1) No society shall appoint any person as its paid officer or servant in any category of service, unless he possesses the qualifications and furnishes the security as specified by the Registrar, from time to time, for such category of service in the society or for the class of societies to which it belongs".
To our pointed question and even after grant of adjournment tor the purpose, Mr. K. Narasimham, learned Counsel appearing for the writ petitioners and Mr. K. Palaksha Reddy, learned Counsel appearing for the respondent-Bank, are unable to bring to our notice any provision in the Co-operative Societies Act or the Rules under which power is reserved for the Regiustrar to lay down the staffing pattern or the mode of recruitment to the different posts in a Cooperative Society. Learned Government Pleader for Co-operation brings to our notice Section 116-A (1), inserted by Act X of 1970. That section, which is extracted below, dealt with only constitution of a common cadre of employees for certain societies. The section is in the following words:
"116-A. Constitution of common cadre of employees for certain societies:-(l) Not with standing any thing in this Act, where the Registrar, in the interest of the co-operative movement, considers that the creation of a common cadre of employees for any class of societies is necessary, he may, constitute an appointment committee or authorise one or more federal societies to which such class of societies is affiliated, to exercise the power of appointment, transfer and disciplinary action in respect of such categories of employees of that class of societies as may be specified by him and make such regulations as may be necessary for carrying out the said purpose. Where such appointment committee is constituted or federal society is authorised by the Registrar, the affilated societies shall not have powers to deal with such categories of employees except to the content the regulation may permit.
That power obviously concerned itself relating to the recruitment to the common cadre where creation of such cadre is necessary in the interest of the co-operative movement. The appointment of the category III posts in the Central Banks did not constitute that class and hence the power Under Section 116-A is of no help in finding a source of power for the circular and the order issued on 15-3-1979. The result of the foregoing is that the conditions laid down by the Registrar in the impugned circular and the proceedings were not issued under any statutory power and it is conceded that he does not have any statutory or executive power to lay down the conditions. That being so, the empanelment of the appellant and the respondent No. 3 could not be said to be in violation of any statutory provision and the writ petition would not be maintainable against respondent Bank, it being a co-operative society and not State which defence was specifically taken.
7. In the result, the appeal succeeds with costs and the judgment of the learned single Judge is set aside.
8. It is brought to our notice by the learned Counsel for the appellant that because of interim orders passed in the writ petition and in the writ appeal, the post had not been filled up and consequently the appellant has not been able to be appointed and further that the respondent No. 3 has been already appointed after the disposal of the writ petition. It is made clear that the interim orders are hereby vacated and that there is no legal bar for appointment of the appellant.