Madras High Court
Velusamy vs The Secretary To Government on 23 March, 2018
Bench: S.Manikumar, V.Bhavani Subbaroyan
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.03.2018
CORAM:
THE HON'BLE MR.JUSTICE S.MANIKUMAR
AND
THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
W.P.No.6596 of 2018
and WMP No.8196 of 2018
Velusamy ... Petitioner
vs.
1. The Secretary to Government,
Animal Husbandry, Dairying and Fisheries Department,
Fort St. George,
Chennai - 600 009.
2. The Chairman,
Tamil Nadu Public Service Commission,
TNPSC Road,
Park Town,
Chennai - 600 003.
3. The Managing Director,
Milk Producers and Dairy Development Department,
Madhavaram Milk Dairy,
Chennai - 600 051.
4. The General Manager,
Coimbatore District Co-operative
Milk Producers' Union Limited,
Pachampalayam,
Coimbatore - 641 010 ... Respondents
WRIT Petition filed under Article 226 of the Constitution of India, praying
for the issuance of a writ of certiorarified mandamus, to call for the records
http://www.judis.nic.inrelating to the impugned notification dated 10.02.2018 published in Daily
Thanthi Tamil Newspaper vide advertisement No.0902/Estt.I/2018 issued by
the 4th respondent and to quash the same consequently direct the 2nd
respondent to conduct the selection process and to select the deserving
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candidates for appointment with the 4th respondent cooperative society
based on petitioners representation dated 09.02.2018.
For Petitioner : Mr.C.Prabakaran
for Mr.C.S.Saravanan
For Respondents : Mr.E.Manokaran (for R1)
Additional Government Pleader
Mr.L.P.Shanmugasundaram (for R3 & R4)
Standing counsel
ORDER
(Order of the Court was made by S.MANIKUMAR, J) Claiming himself to be a public interest litigant, and alleging irregularities in the matter of selection, instant writ petition has been filed, to call for the records relating to the impugned notification dated 10.02.2018 published in Daily Thanthi Tamil Newspaper, vide advertisement No.0902/Estt.I/2018 issued by the 4th respondent and to quash the same. Consequently, the petitioner has prayed for a direction to the 2nd respondent to conduct the selection process and select deserving candidates for appointment in the 4th respondent cooperative society, based on petitioners representation dated 09.02.2018.
2. In Ashok Kumar Pandey vs. State of W.B., reported in (2004) 3 SCC 349, the Apex Court at paragraphs 5 to 16, held as follows:-
“5. It is necessary to take note of the meaning of the expression “public interest litigation”. In Stroud’s Judicial Dictionary, Vol. 4 (4th Edn.), “public interest” is defined thus:
http://www.judis.nic.in “Public interest.—(1) A matter of public or general interest ‘does not mean that which is interesting as gratifying curiosity 3 or a love of information or amusement; but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected’.”
6. In Black’s Law Dictionary (6th Edn.), “public interest” is defined as follows:
“Public interest.—Something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests of the particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of local, State or national Government.”
3. In Janata Dal case (1992 (4) SCC 305 = 1993 SCC (Cri) 36) this Court considered the scope of public interest litigation. In para 53 of the said judgment, after considering what is public interest, this Court has laid down as follows: (SCC p. 331, para 53) “The expression ‘litigation’ means a legal action including all proceedings therein initiated in a court of law with the purpose of enforcing a right or seeking a remedy. Therefore, lexically the expression ‘PIL’ means a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected.”
4. In para 62 of the said judgment, it was pointed out as follows:
http://www.judis.nic.in (SCC p. 334) “Be that as it may, it is needless to emphasise that the 4 requirement of locus standi of a party to a litigation is mandatory; because the legal capacity of the party to any litigation whether in private or public action in relation to any specific remedy sought for has to be primarily ascertained at the threshold.”
5. In para 98 of the said judgment, it has further been pointed out as follows: (SCC pp. 345-46) “While this Court has laid down a chain of notable decisions with all emphasis at their command about the importance and significance of this newly developed doctrine of PIL, it has also hastened to sound a red alert and a note of severe warning that courts should not allow its process to be abused by a mere busybody or a meddlesome interloper or wayfarer or officious intervener without any interest or concern except for personal gain or private profit or other oblique consideration.”
6. In subsequent paras of the said judgment, it was observed as follows: (SCC p. 348, para 109) “It is thus clear that only a person acting bona fide and having sufficient interest in the proceeding of PIL will alone have a locus standi and can approach the court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration. Similarly a vexatious petition under the colour of PIL brought before the court for vindicating any personal grievance, deserves http://www.judis.nic.inrejection at the threshold.” 5
7. It is depressing to note that on account of such trumpery proceedings initiated before the courts, innumerable days are wasted, which time otherwise could have been spent for the disposal of cases of the genuine litigants. Though we spare no efforts in fostering and developing the laudable concept of PIL and extending our long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievances go unnoticed, unrepresented and unheard; yet we cannot avoid but express our opinion that while genuine litigants with legitimate grievances relating to civil matters involving properties worth hundreds of millions of rupees and substantial rights and criminal cases in which persons sentenced to death facing the gallows under untold agony and persons sentenced to life imprisonment and kept in incarceration for long years, persons suffering from undue delay in service matters — government or private, persons awaiting the disposal of tax cases wherein huge amounts of public revenue or unauthorized collection of tax amounts are locked up, detenus expecting their release from the detention orders etc. etc. are all standing in a long serpentine queue for years with the fond hope of getting into the courts and having their grievances redressed, the busybodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no real public interest except for personal gain or private profit either of themselves or as a proxy of others or for any other extraneous motivation or for glare of publicity, http://www.judis.nic.in break the queue muffling their faces by wearing the mask of public interest litigation and get into the courts by filing vexatious and frivolous petitions 6 of luxury litigants who have nothing to lose but trying to gain for nothing and thus criminally waste the valuable time of the courts and as a result of which the queue standing outside the doors of the courts never moves, which piquant situation creates frustration in the minds of the genuine litigants.
8. Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armoury of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be allowed to be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity-oriented or founded on personal vendetta. As indicated above, courts must be careful to see that a body of persons or member of public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique consideration. The court must not allow its process to be abused for oblique considerations by masked phantoms who monitor at times from behind. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives and try to http://www.judis.nic.in bargain for a good deal as well to enrich themselves. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of 7 such busybodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs.
9. The Council for Public Interest Law set up by the Ford Foundation in USA defined “public interest litigation” in its Report of Public Interest Law, USA, 1976 as follows:
“Public interest law is the name that has recently been given to efforts which provide legal representation to previously unrepresented groups and interests. Such efforts have been undertaken in the recognition that ordinary marketplace for legal services fails to provide such services to significant segments of the population and to significant interests. Such groups and interests include the proper environmentalists, consumers, racial and ethnic minorities and others.”
10. The court has to be satisfied about: (a) the credentials of the applicant; (b) the prima facie correctness or nature of information given by him; and (c) the information being not vague and indefinite. The information should show gravity and seriousness involved. Court has to strike a balance between two conflicting interests: (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the court cannot afford to be http://www.judis.nic.in liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere 8 reserved by the Constitution to the executive and the legislature. The court has to act ruthlessly while dealing with imposters and busybodies or meddlesome interlopers impersonating as public-spirited holy men. They masquerade as crusaders of justice. They pretend to act in the name of pro bono publico, though they have no interest of the public or even of their own to protect.
11. Courts must do justice by promotion of good faith, and prevent law from crafty invasions. Courts must maintain the social balance by interfering where necessary for the sake of justice and refuse to interfere where it is against the social interest and public good. (See State of Maharashtra v. Prabhu (1994 (2) SCC 481 = 1994 SCC (L&S) 676) and A.P. State Financial Corpn. v. Gar Re-Rolling Mills (1994 (2) SCC 647 = AIR 1994 SC 2151. No litigant has a right to unlimited draught on the court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be misused as a licence to file misconceived and frivolous petitions. [See Buddhi Kota Subbarao (Dr) v. K. Parasaran (1996 (5) SCC 530 = 1996 SCC (Cri) 1038 = JT 1996 (7) SC 265] Today people rush to courts to file cases in profusion under this attractive name of public interest. Self-styled saviours who have no face or ground in the midst of public at large, of late, try to use such litigations to keep themselves busy and their names in circulation, despite having really http://www.judis.nic.in become defunct in actual public life and try to smear and smirch the solemnity of court proceedings. They must really inspire confidence in 9 courts and among the public, failing which such litigation should be axed with a heavy hand and dire consequences.
12. As noted supra, a time has come to weed out the petitions, which though titled as public interest litigations are in essence something else. It is shocking to note that courts are flooded with a large number of so-called public interest litigations, whereas only a minuscule percentage can legitimately be called as public interest litigations. Though the parameters of public interest litigation have been indicated by this Court in a large number of cases, yet unmindful of the real intentions and objectives, courts at times are entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilized for disposal of genuine cases. Though in Duryodhan Sahu (Dr) v. Jitendra Kumar Mishra (1998) 7 SCC 273, this Court held that in service matters PILs should not be entertained, the inflow of the so-called PILs involving service matters continues unabated in the courts and strangely are entertained. The least the High Courts could do is to throw them out on the basis of the said decision. This tendency is being slowly permitted to percolate for setting in motion criminal law jurisdiction, often unjustifiably just for gaining publicity and giving adverse publicity to their opponents. The other interesting aspect is that in the PILs, official documents are being annexed without even indicating as to how the petitioner came to possess them. In http://www.judis.nic.in one case, it was noticed that an interesting answer was given as to its possession. It was stated that a packet was lying on the road and when out 10 of curiosity the petitioner opened it, he found copies of the official documents. Apart from the sinister manner, if any, of getting such copies, the real brain or force behind such cases would get exposed to find out whether it was a bona fide venture. Whenever such frivolous pleas are taken to explain possession, the court should do well not only to dismiss the petitions but also to impose exemplary costs, as it prima facie gives impression about oblique motives involved, and in most cases shows proxy litigation. Where the petitioner has not even a remote link with the issues involved, it becomes imperative for the court to lift the veil and uncover the real purpose of the petition and the real person behind it. It would be desirable for the courts to filter out the frivolous petitions and dismiss them with costs as aforestated so that the message goes in the right direction that petitions filed with oblique motive do not have the approval of the courts.”
(i). In Dr.B.Singh (Dr.) v. Union of India, reported in (2004) 3 SCC 363, the Hon'ble Supreme Court decided the case on the same lines and held that PIL is not maintainable in service matters.
(ii). In Gurpal Singh vs. State of Punjab, reported in JT 2005 (5) SC 389, the Hon'ble Apex Court held that PIL is not maintainable in service matters.
http://www.judis.nic.in
(iii). In Indian Consumers Welfare Council vs. Union of India and 11 another, reported in 2005 (3) L.W. 522, the abovesaid Council, filed a public interest writ petition, challenging a notification, issued by the 2nd respondent therein, by which, applications were invited, from degree holders, with degree in education, and consequently, prayed for a direction to the respondent therein, to appoint only those teachers, who were trained in teaching primary sections, for handling classes from 1st to 7th standards, to the post of Secondary Grade Teachers. Following the decision in Gopal Singh vs. State of Punjab, reported in 2005 J.T. [5] SC 389, the Hon'ble Apex Court ordered as follows:-
“This is a public interest litigation in respect of a service matter. It has been repeatedly held by the Supreme Court that no public interest litigation lies in service matters, the last decision being Gopal Singh vs. State of Punjab (2005 J.T. [5] SC
389. Accordingly, this writ petition is dismissed.”
(iv). In N.Veerasamy vs. Union of India, reported in (2005) 2 MLJ 564, while considering a public interest litigation filed by a treasurer of a political party, praying to take action again Mrs.Lakshmi Pranesh, IAS, the fifth respondent therein, under the All India Services (Discipline and Appeal) Rules, 1969, for allegedly making allegations against a leader of a political party, following the above judgments of the Honourable Apex Court, a Hon'ble Division Bench of this Court held as follows:- "It is settled law that no writ in the form of public interest litigation will lie under Article 226 http://www.judis.nic.in of the Constitution in service matters. The petitioner has no locus standi to file the public interest litigation. The extraordinary powers of the High 12 Court under Art.226 of the Constitution in matters of this kind is required to be used sparingly and only in extraordinary cases." "The service matters are essentially between the employer and the employee and it would be for the State to take action under the Service Rules and there is no question of any public interest involved in such matters."
"The petition is not only not maintainable either in law of facts but also would amount to abuse of the process of Court."
(v). In B.Srinivasa Reddy vs. Karnataka Urban Water Supply and Drainage Board Employees Association and others, reported in 2006 (11) SCC 731, at paragraph 61, the Apex Court held that in service matters only the non appointees can assail the legality of the appointment procedure.
(vi). In Neetu vs. State of Punjab, reported in 2007 (10) SCC 614, the Hon'ble Apex Court held as follows:-
“The scope of entertaining a petition styled as a public interest litigation, locus standi of the petitioner particularly in matters involving service of an employee has been examined by this court in various cases.” Referring to the decisions in Dr.Duryodhan Sahu and others vs. Jitendra Kumar Mishra and others, reported in 1998 (7) SCC 273 and Ashok Kumar Pandey v. State of W.B reported in (2004 (3) SCC 349), cited supra, the Apex Court held that PIL in service matters has been held as not maintainable.
http://www.judis.nic.in 13
(vii). In Seema Dharmdhere, Secretary, Maharashtra Public Service Commission vs. State of Maharashtra, reported in 2008 (2) SCC 290, the Apex Court restated that PIL is not maintainable in service matters.
(viii). In Hari Bansh Lal vs. Sahodar Prasad Mahto and others, reported in 2010 (9) SCC 655, claiming himself as Vidyut Shramik Leader, a writ petition was filed before the High Court, challenging the appointment of Mr.Hari Bansh Lal, who was appointed, as the Chairman of Jharkand State Electricity Board. The High Court declared that his appointment was not only arbitrary, but also, contemptuous, and ultimately, quashed his appointment, which gave rise to an appeal, before the Apex Court.
Addressing the issue, as to whether a public interest writ petition, is maintainable in service matters, following the earlier decisions in Dr.Duryodhan Sahu and others vs. Jitendra Kumar Mishra and others, reported in 1998 (7) SCC 273 and Ashok Kumar Pandey v. State of W.B reported in (2004 (3) SCC 349) and other decisions, the Hon'ble Supreme Court held as follows:- PIL in service matters:
(ix) About maintainability of the Public Interest Litigation in service matters except for a writ of quo warranto, there are series of decisions of this Court laying down the principles to be followed. It is not seriously contended that the matter in issue is not a service matter. In fact, such http://www.judis.nic.in objection was not raised and agitated before the High Court. Even otherwise, in view of the fact that the appellant herein was initially 14 appointed and served in the State Electricity Board as a Member in terms of Section 5(4) and from among the Members of the Board, considering the qualifications specified in sub-section (4), the State Government, after getting a report from the vigilance department, appointed him as Chairman of the Board, it is impermissible to claim that the issue cannot be agitated under service jurisprudence.
(x) We have already pointed out that the person who approached the High Court by way of a Public Interest Litigation is not a competitor or eligible to be considered as a Member or Chairman of the Board but according to him, he is a Vidyut Shramik Leader. Either before the High Court or in this Court, he has not placed any material or highlighted on what way he is suitable and eligible for that post.
..............
(xi) The same principles have been reiterated in the subsequent decisions, namely, Dr. B. Singh vs. Union of India and Others, (2004) 3 SCC 363, Dattaraj Nathuji Thaware vs. State of Maharashtra and Others, (2005) 1 SCC 590 and Gurpal Singh vs. State of Punjab and Others, (2005) 5 SCC 136.
(xii) The above principles make it clear that except for a writ of quo warranto, Public Interest Litigation is not maintainable in service matters. http://www.judis.nic.in
(xiii). In Girjesh Shrivastava and others vs. State of Madhya Pradesh 15 and others, reported in 2010 (10) SCC 707, appointments were challenged in PIL, on the grounds of contravention of rules, regarding reservation of ex- servicemen. The High Court allowed the writ petition and ordered cancellation of appointments, and dismissed the review petitions also. While considering the issue, as to whether the matter ought to have been taken, as service dispute and not PIL, the Hon'ble Supreme Court, after considering a catena of decisions, at paragraphs 14 to 19 has held as follows:-
14. However, the main argument by the appellants against entertaining WP (C) 1520/2001 and WP (C) 63/2002 is on the ground that a PIL in a service matter is not maintainable. This Court is of the opinion that there is considerable merit in that contention.
15. It is common ground that dispute in this case is over selection and appointment which is a service matter.
16. In the case of Dr. Duryodhan Sahu and others vs. Jitendra Kumar Mishra and others (1998) 7 SCC 273, a three judge Bench of this Court held a PIL is not maintainable in service matters. This Court, speaking through Srinivasan, J. explained the purpose of administrative tribunals created under Article 323-A in the backdrop of extraordinary jurisdiction of the High Courts under Articles 226 and 227. This Court held "if public interest litigations at the instance of strangers are allowed to be entertained by the (Administrative) Tribunal, the very object of speedy disposal of service matters would get defeated" (para 18). Same reasoning applies here as a Public Interest Litigation has been filed when the entire dispute relates to selection and appointment.
17. In B. Srinivasa Reddy v. Karnataka Urban Water Supply http://www.judis.nic.in & Drainage Board Employees' Association and others, reported in (2006) 11 SCC 731 (II), this Court held that in service matters only 16 the non-appointees can assail the legality of the appointment procedure (See para 61, page 755 of the report).
18. This view was very strongly expressed by this Court in Dattaraj Nathuji Thaware v. State of Maharashtra and others, reported in (2005) 1 SCC 590, by pointing out that despite the decision in Duryodhan Sahu (supra), PILs in service matters `continue unabated'. This Court opined that High Courts should `throw out' such petitions in view of the decision in Duryodhan Sahu (supra) (Para 16, page 596).
19. Same principles have been reiterated in Ashok Kumar Pandey v. State of W.B., reported in (2004) 3 SCC 349, at page 358 (Para 16).
(xiv). In Soma Velandi vs. Dr.Anthony Elangovan, reported in 2010 (4) CTC 8, following Gurpal Singh vs. State of Punjab, reported in JT 2005 (5) SC 389, a Hon'ble Division Bench held that PIL is not maintainable in service matters.
(xv) In Bholanath Mukherjee and others vs. Ramakrishna Mission Vivekananda Centenary College and others, reported in 2011 (5) SCC 464, before the Hon'ble Supreme Court, a direction to set aside the appointment of the 3rd respondent therein, as Principal, was sought for, as the 3rd respondent was junior, to them, and did not have the requisite qualification. Reiterating the legal position that PIL is not maintainable in service matters, the Hon'ble Apex Court declined to entertain the challenge http://www.judis.nic.in to the notices issued to Ramakrishna Mission to reconstitute the 17 committees.
13. We wish to incorporate the views of the Hon'ble Apex Court, while entertaining Public Interest Writ Petition, in Ayaaubkhan Noorkhan Pathan vs. State of Maharashtra and others, reported in 2013 (4) SCC
465. At paragraphs 14 and 15, the Apex Court, observed as follows:-
14.This Court has consistently cautioned the courts against entertaining public interest litigation filed by unscrupulous persons, as such meddlers do not hesitate to abuse the process of the court.
The right of effective access to justice, which has emerged with the new social rights regime, must be used to serve basic human rights, which purport to guarantee legal rights and, therefore, a workable remedy within the framework of the judicial system must be provided. Whenever any public interest is invoked, the court must examine the case to ensure that there is in fact, genuine public interest involved. The court must maintain strict vigilance to ensure that there is no abuse of the process of court and that, “ordinarily meddlesome bystanders are not granted a Visa. Many societal pollutants create new problems of non-redressed grievances, and the court should make an earnest endeavour to take up those cases, where the subjective purpose of the lis justifies the need for it. (Vide: P.S.R. Sadhanantham v. Arunachalam & Anr., AIR 1980 SC 856; Dalip Singh v. State of U.P. & Ors., (2010) 2 SCC 114; State of Uttaranchal v. Balwant Singh Chaufal & Ors., (2010) 3 SCC 402; and Amar Singh v. Union of India & Ors., (2011) 7 SCC 69)
15. Even as regards the filing of a Public Interest Litigation, this Court has consistently held that such a course of action is not permissible so far as service matters are concerned. (Vide: Dr. Duryodhan Sahu & Ors. v. Jitendra Kumar Mishra & Ors., http://www.judis.nic.in AIR 1999 SC 114; Dattaraj Natthuji Thaware v. State of Maharashtra, AIR 2005 SC 540; and Neetu v. State of Punjab & Ors., AIR 2007 SC 18
758)
14. In Tmt.Sumathi and four others vs. State, rep. by the Chief Secretary to the Government of Tamil Nadu, Chennai and 15 others (W.P.No.25704/2013, Decided on 13.03.2014), a Hon'ble Division Bench of this Court, held that PIL is not maintainable in service matters.
15. In Tmt.P.Lakshmi vs. State, rep. by the Chief Secretary, (W.P.No.25704/2013 Decided on 13.03.2014), the Hon'ble First Bench of this Court, held that writ petition is not maintainable, in service matters.
16. Sections 73, 74, and 75 of the Tamil Nadu Co-operative Societies Act, 1983, reads thus:
73. Appointment of paid officers and servants of registered society and their conditions of service.- Subject to the provisions of sections 74,75,76 and 77 and subject to the rules made in this behalf. a registered society may appoint such paid officers and servants as are necessary for the efficient performance of its functions:
Provided that the qualifications for the appointment of paid officers and servants, the conditions of service including disciplinary control and the cadre strength of such officers and servants of a registered society or class or category of registered societies shall be such as may be prescribed.
Explanation I.- For the purposes of this chapter " paid officers " does not include the president,vice-president and the http://www.judis.nic.in members of the board.
Explanation II.- For the purposes of this chapter and other 19 provisions of this Act, "competent authority" authority constituted under sub-section (3) of section 75 and include the single officer referred to in the proviso to the said sub-section (3) of section 75.
74. Recruitment Bureaus.- (1) The Government may, by notification constitute Recruitment Bureaus at the State and district levels for the recruitment of such categories of paid officers and servants for employment by such class or classes or category or categories of registered societies as may be prescribed. Nothing contained in this section shall apply to any of the posts in respect of which common cadre of service has been constituted under section 75.
(2) The manner of constitution of the Recruitment Bureaus and the procedure to be followed by such Bureaus be such as may be prescribed.
75. Constitution of common cadre of service.- (1) Notwithstanding anything contained in this Act or the bylaws made there under and subject to the rules made by the Government in this behalf, the Government may, in the interest of the co-operative movement, constitute from time to time, by order in respect of-
(i) scheduled co-operative societies: or
(ii) Primary societies affiliated to such scheduled co-operative societies, or
(iii) co-operative sugar mills, co-operative spinning mills, co- operative tea factories and such other registered societies prescribed for the purpose of sub-section (4) of section 33; or http://www.judis.nic.in
(iv) such other class or category of registered societies in which the Government have taken shares or given financial or other 20 assistance as may be notified by the Government.
One or more common cadre of service in respect of the posts of secretaries, assistant secretaries, executive officers assistant executive officers general managers, assistants general managers, managers, assistant managers. Purchase managers, purchase officers, assistant purchase officers, development officers, chief accountants, chief accounts officers, accounts officers and such other class or classes of posts as may be notified by the Government. The common cadre of service under this section may be constituted either separately in respect of the said posts in any group of registered societies mentioned in item (i) or item (ii) or item (iii) or item (iv) as the case may be or jointly for the aforesaid posts in one or more of the groups of registered societies mentioned in the said items (i), (ii), (iii), and
(iv) or of two or more of the registered societies in any one of the groups mentioned in the said items.
(2) When any such common cadre of service is constituted under sub-section (1) in respect of any post, all the employees holding, such posts on the date of constitution of such common cadre of service, shall be deemed to have been absorbed in the common cadre of service with effect on land from the date of constitution of such common cadre of service:
Provided that the salary (including allowances) of any such employees shall not be varied to his disadvantages;
Provided further that any such employee may, within such period as may be prescribed, by notice in writing to the competent authority constituted under sub-section (3) intimate his option for not becoming a member of such common cadre of service, and in that event, his services in the registered society http://www.judis.nic.in shall stand determined with effect on and from the date of such notice and he shall be entitled to either.-21
(i) all the terminal benefits to which he would have been eligible under the by-laws or contract or award applicable to him immediately before the date of constitution of such common cadre of service as if such employee had retired from service ; or
(ii) compensation which shall be equivalent to fifteen days, salary of such employee (including allowances) for every completed year of continuous services or any part thereof in excess of six months whichever is higher.
Explanation. _ For the purpose of this sub-section," continuous services" shall means an uninterrupted services including service which may by interrupted on account of sickness or authorized leave or an accident.
(3) The order under sub-section (1) shall provide for the constitution of the competent authority which shall be a committee consisting of both officers of the Government and non-officials and the total strength of such committee shall not exceed five, from among whom one of the officers of the Government not below the rank of Joint Registrar in the Co- operative Department or not below such rank in other departments of the Government as may be prescribed shall be appointed by the Government as the chairman to exercise the powers of recruitment, appointment, transfer and disciplinary control (including censure, stoppage of increment, withholding of promotion, suspension by way to punishment, reduction to a lower rank in the seniority list or to a lower post or time scale whether in the same service or in another service or to a lower stage in a time scale, compulsory retirement, removal or dismissal) and such other powers as may be prescribed in respect http://www.judis.nic.in of holders of posts in such other powers as may be prescribed in respect of holders of posts in such common cadre of service. 22 After the constitution of such competent authority, the registered society concerned cadre of service, exercise any of the powers which are conferred shall not in respect of holders of posts in such by or under this Act or the rules made thereunder on the competent authority in respect of each common cadre of service: There shall be a separate competent authority in respect of each common cadre of service.
Provided that the Government may direct that for such period not exceeding three years from the date of constitution of a common cadre of service, such committee in relation to that common cadre of service, shall consist of only a single officer of the Government not below the rank of Joint Registrar in the Co- operative Department or not below such rank in other departments of the Government as may be prescribed; and such officer shall be the "competent authority constituted under sub- section (3) of section 75" for the purposes of this Act and any reference to the competent authority in this Act shall, for the period mentioned in this proviso, be construed as a reference to the single officer aforesaid.
Provided further that the registered society under which an employee borne on a common cadre of service is for the time being employed shall also have the power to impose on such employee the penalty of censure or stoppage of increment up to two years without cumulative effect.
Explanation.-
For the purposes of this sub-section.-
(i) "officers of the Government" means Government servants subordinate to the Registrar for the State not below the rank of Deputy Registrar in the Co-operative Department or not below http://www.judis.nic.in the rank of Assistant Director in other department of the Government:
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(ii) "non-officials" means president, vice-president or any other member of the board of a registered society of the same class or category in respect of which common cadre of service is constituted.
(4) (a) The registered society under which an employee borne on a common cadre of service is employed may request the competent authority to take disciplinary action on, or to transfer, such employee, and if the competent authority fails to take action within a period of thirty days from the date of such request, the registered society may report the matter to the Registrar for taking such action as he may deem necessary.
(b) If in the opinion of the Registrar, whether upon a request under clause (a) of otherwise, it is necessary or expedient in the interest of any registered society, to take disciplinary action on, or to transfer from any registered society, an employee borne on a common cadre of service, the Registrar may direct the competent authority to take disciplinary action on, or to transfer, such employees; and where the competent authority fails so to do, the Registrar may himself take disciplinary action on, or order the transfer of, such employee from the registered society concerned.
(5) (a) Any employee of a common cadre of service aggrieved by any order of the competent authority relating to censure, stoppage of increment, withholding of promotion, suspension by way of punishment, reduction to lower rank, in the seniority list, or to a lower post or time scale whether in the same service or in another service or to a lower stage in a time scale, compulsory retirement, removal or dismissal, may appeal to the Registrar against such order within sixty days from the http://www.judis.nic.in date of such order and the Registrar shall follow such procedure as may be prescribed for the disposal of the appeal.24
(b) Where the order appealed against is that of the Registrar for the State, the appeal under sub-clause (a) shall lie to the Government:
Provided that in disposing of an appeal under this sub- section, the Registrar or the Government, as the case may be, shall give a reasonable opportunity of being heard to the parties concerned:
Provided further that the Registrar or the Government, as the case may be, may pass such interlocutory order pending the decision on the appeal as he or they deem fit: Provided also that the Registrar or the Government, as the case may be, may award costs in any proceedings, under this sub- section to be paid either out of the funds of the competent authority or by such party to the appeal as the Registrar of the Government, as the case may be, may deem fit.
(6) (a) Any employee borne on a common cadre of service, aggrieved by an order relating to censure or stoppage of increment, passed by a registered society, may appeal to the competent authority.
(b) An appeal under this sub-section shall be made within sixty days from the date of the order appealed against and the competent authority shall follow such procedure as may be prescribed for the disposal of the appeal.
Provided that, in disposing of an appeal under this sub-section, the competent authority shall give a reasonable opportunity of being heard to the parties concerned.
Provided further that the competent authority may pass such interlocutory order pending the decision on the appeal as the competent authority may deem fit.
http://www.judis.nic.in Provided also that the competent authority may award costs in any proceedings under this sub-section, to be paid either out of 25 the funds of the registered society or by such party to the appeal, as the competent authority may deem fit.
(7) The provisions of section 41 of the Tamil Nadu Shops and Establishment Act, 1947 (Tamil Nadu Act XXXVI of 1947) shall not apply to the employees of common cadre of service constituted under sub-section (1).
(8) The Government may, be general or special order, require the registered society or class or category of registered societies concerned to make contribution of such sum as may be fixed by them towards the full or partial recoupment of the expenditure incurred or likely to be incurred by the competent authority.
(9) The Government may, by rules, specify the rate at which the registered societies shall contribute towards the salary (including allowances), subsistence allowance, leave salary, provident fund and gratuity and such other sums or allowances as may be prescribed of the employees of the common cadre of service.
(10) Any sum to be contributed under sub-section (8) or sub-section (9) may be recovered as if it were an arrear of land revenue and for the purposes of such recovery, the Registrar shall have the powers of a Collector under the Tamil Nadu Revenue Recovery Act. 1864 (Tamil Nadu Act II of 1864).
17. Rule 149(2) of the Tamil Nadu Co-operative Societies Rules, 1988, reads thus:
"149(2). No appointment by direct recruitment to any post shall be made except by calling for a list of eligible candidates from http://www.judis.nic.in the Employment Exchange and also giving due publicity by means of announcement in the notice board of the society and also of the 26 affiliated societies, inviting application from the eligible employees of such societies. Where the employment exchange issues a non- availability certificate, the society shall invite applications by giving advertisement in more than one daily newspaper in which one should be in regional language having wide circulation throughout the State:
Provided that the above stipulation shall not apply --
(i) to the appointment made on compassionate grounds;
(ii) for the absorption of surplus employees of other cooperative societies;
(iii) to the posts for which a Recruitment Bureau has been constituted under Section 74 of the Act or in respect of which a common cadre of service has been constituted under Section 75 of the Act.
(2-A) A Society may transfer an employee to another society for a period of not less than one year on deputation basis and the other society may avail the services of that employee on the terms and conditions agreed to by both the societies:
Provided that no such transfer shall be made for a period exceeding three years."
18. Impugned notification dated 10.02.2018 is extracted hereunder:
Advertisement No.0902/Estt.1/2018 Dated:10.02.2018 The Coimbatore District Cooperative Milk Producers' Union Limited, invites applications in the prescribed format from the employees of the Milk Producers' Cooperative Societies only under the jurisdiction of the Coimbatore District Cooperative Milk Producers' Union Limited, (Coimbatore and part of Tiruppur Districts)
1. Details of Posts(2):-
S.No. Name of the Post Pay Scale No. of
http://www.judis.nic.in Vacancies
1 Extension Officer Grade-II 5200-20200 GP-2400 4
2 Junior Executive (Office) 5200-20200-GP-2400 2
27
2. Application fees and Processing fees:-
The candidates belonging to the OC/MBC/BC should pay an application processing fee of Rs.250/- by means of DD in favour of General Manager, Coimbatore District Cooperative Milk Producers' Union Limited, Coimbatore (Non-Refundable). SC/SCA/ST candidates are exempted from payment of application processing fees.
3. How to Apply:-
The eligible employees of the Primary Milk Producers' Cooperative Societies ranging from vendor to Secretary and from daily wages to consolidated pay etc., are eligible to apply. Application Format and other details such as qualifications prescribed for the post, age and mode of selection are available in website, www.aavinmilk.com. The filled in application complete in all aspects along with DD & xerox copies of required documents should be sent to the "General Manager, Coimbatore District Cooperative Milk Producers' Union Limited, Pachapalayam, Kalampalayam (Post), Coimbatore - 641 010, either by Registered Post or by Speed Post only.
Candidates now working in Cooperative Milk Producers' Societies in the area of operation of the Coimbatore District Cooperative Milk Producers' Union Limited, Coimbatore (i.e. in Coimbatore and part of Tiruppur Districts) only can apply for the post earmarked and others need not apply.
4. Last Date of receipt of application: 27.02.2018 UPTO 05.30 PM"
19. Appointment is governed by the provisions of Tamil Nadu Co-
operative Societies Act, 1983 and the rules framed thereunder. Selection http://www.judis.nic.in and appointment is not governed by the Tamilnadu Government Servants (Conditions of Service) Act, 2016 (Tamilnadu Act No.14 of 2016) or the rules 28 made therein. Tamilnadu Public Service Commission is not the authority to select candidates for Co-operative Societies. Relief sought for, is misconceived.
20. In the instant case appointment to various categories in Coimbatore District Co-operative Milk Producers' Union Limited, Coimbatore, has to be made by the General Manager, Coimbatore District Co-operative Milk Producers' Union Limited, Coimbatore, the 4th respondent. Hence, the instant writ petition is dismissed. No Costs.
Consequently, the connected Writ Miscellaneous Petitions are closed.
(S.M.K., J.) (V.B.S., J.) 23.03.2018 Index: Yes Internet: Yes.
Speaking / Non-speaking order.
ars http://www.judis.nic.in 29 S.MANIKUMAR,J.
AND V.BHAVANI SUBBAROYAN, J.
ars To
1. The Secretary to Government, Animal Husbandry, Dairying and Fisheries Department, Fort St. George, Chennai - 600 009.
2. The Chairman, Tamil Nadu Public Service Commission, TNPSC Road, Park Town, Chennai - 600 003.
3. The Managing Director, Milk Producers and Dairy Development Department, Madhavaram Milk Dairy, Chennai - 600 051.
4. The General Manager, Coimbatore District Co-operative Milk Producers' Union Limited, Pachampalayam, Coimbatore - 641 010 W.P.No.6596 of 2018 and WMP Nos.8195 & 8196 of 2018 http://www.judis.nic.in 23.03.2018