Patna High Court
Satish Kumar And Ors. vs State Of Bihar on 10 April, 1989
Equivalent citations: 1989(37)BLJR138
Author: N.P. Singh
Bench: N.P. Singh
JUDGMENT N.P. Singh, J.
1. These writ applications have been filed on behalf of the petitioners for quashing an order dated 9-2-1987 issued by the Administrator, Magadh Central Co-operative Bank Ltd. Gaya, (hereinafter referred to as 'the said Bank') terminating the services of the petitioners on the ground that their appointments, were in contravention of the procedure prescribed by the Registrar, Co-operative Societies, Bihar, The appointments of the petitioners had been made on temporary basis.
2. The Co-operative Bank is governed by the provisions of the Bihar and Orissa Co operative Societies Act, 1935 (hereinafter referred to as 'the Act') the primary function being to finance Co-operative Societies. The petitioners were appointed on temporary basis between 24-2-1985 and 7-7-1985 by the Honorary Secretary of the Bank, when the Managing Committee thereof was functioning. The Registrar, Co-operative Societies issued a letter dated 26-12-1985 directing the Board of Directors and the Executive Officer of the said Bank to terminate the services of the petitioners with effect from 31-12-1985. Pursuant to that direction the Executive Officer of the said Bank terminated the services of the petitioners and others by letter dated 31-12-1985 after paying the salary upto 31-12-1985. Being aggrieved by the orders of termination the petitioners filed writ applications (C.W.J.C. No. 1250 of 1986, C.W.J.C. No. 5529 of 1985 and C.W.J.C. No. 2239 of 1986). Those writ applications were allowed on 28-11-1986 and the order dated 31-12-1985 terminating the services of the petitioners was quashed on the ground that when the Managing Committee of the Co-operative Bank in question had not been superseded, then the Registrar had no authority under the provisions of the Act or the Rules to direct the Executive Officer of such Bank to terminate the services of the employees of the Bank.
3. By a notification dated 2-1-1987 the State Government dissolved the Managing Committee of the Bank and appointed an Administrator to manage the affairs of the Bank. The Administrator so appointed, issued the impugned order dated 9-2-1987 cancelling the appointments of the petitioners and others on the ground that such appointments had been made in contravention of the procedure prescribed by the Registrar, Cooperative Societies, and circulated by communications dated 9-2-1980 and 12-10-1980.
4. Counter affidavits have been filed on behalf of the respondents. It has been said that as the affairs of the Co-operative Bank were being grossly mis-managed, the State Government dissolved the Managing Committee in exercise of the powers conferred on the State Government by Section 41(6) of the Act and appointed the Administrators to manage the affairs of the said Co-operative Bank. It has been stated that as the appointments of the petitioners had been made in an illegal manner by the then Honorary Secretary without following the procedure prescribed for making appointments after the dissolution of the Managing Committee by the State Government, the Administrator, terminated the services of the petitioners. It has also been pointed out that no advertisement was made inviting applications for appointment to the posts against which the petitioners were appointed. Regarding the claim of the petitioners that such advertisement was published in 'Magadh Dharti' it has been stated that it could not be ascertained whether this Magadh Dharti is a daily, weekly or a monthly magazine and from where it is published. It has also been said on behalf of the Administrator that the petitioners had been appointed on buff-sheets issued by the then Honorary Secretary ignoring all procedures prescribed for appointments. It has been stated that when the Bank was running a heavy loss at the relevant time, to the tune of Rs. 7 to 15 lacs each year, the Honorary Secretary put an additional burden to the tune of Rs. 5 lacs annually by appointing 34 persons including the petitioners. In respect of the earlier writ applications filed on behalf of the petitioners, which were allowed on 28-11-1986, it has been stated that this Court in the judgment itself had given option to the respondents of those writ applications to terminate the services of the petitioners in accordance with law.
5. There is no dispute that the appointments of the petitioners made by the then Honorary Secretary of the Bank, was on temporary basis. Faced with the situation that in the impugned order of termination there is no stigma against the petitioners, a stand was taken on-behalf of the petitioners that, after the disposal of the earlier writ applications (CWJC No 1250 of 1986 and CWJC No. 5529 of 1985), the Managing Committee of the Bank confirmed the services of the petitioners in its meetings held in the month of December, 1986. The Managing Committee, as already stated above, was dissolved on 2-1-1987. The petitioners have not produced any material in support of the aforesaid stand that after the disposal of the writ applications filed earlier they became permanent employees of the said Bank and as such the Administrator could not have terminated their services without initiating proceeding for removal against them. On the direction by the Court the proceeding hook of the Managing Committee was produced on behalf of the respondents and the learned Standing Counsel, pointed out that neither there is any order nor any resolution of the Managing Committee confirming the appointments of the petitioners at any stage. The learned Counsel for the petitioners after perusing the proceeding book of the meetings of the Managing Committee, abandoned the stand that the petitioners had become permanent employees of the Bank in question, before their services were terminated.
6. According to the petitioners even if they were temporary employees of the Bank, as their services have been terminated on the ground that their appointment itself was illegal and against the procedure prescribed by the Registrar for making appointments in the Co-operative Banks they are entitled to satisfy this Court that there was no illegality in the appointments of the petitioners and all procedures prescribed had been followed. It was pointed out that the two communications dated 9-2-1980 and 12-10-1980 issued by the Registrar, Co-operative Societies, Bihar, to different Co-operative Societies containing directions in respect of making appointments, themselves are without any authority of law because the Registrar, Co-operative Societies, could not have issued any such direction to the Managing Committees of the Co-operative Banks. It was urged that Section 66-B which was introduced in the Act vests power in the State Government to issue from time to time by way of special or general order in connection with the recruitments by Co-operative Societies but the two communications have not been issued by the State Government. Section 66-B of the Act is as follows:--
66-B. Notwithstanding anything contained in this Act or the Rules and bye-laws made thereunder, the State Government may, from time to time, by special or general order, determine the nature and number of posts to be created and the mode of recruitment or personnel by Co-operative Societies and prescribe among other things--
(1) the qualifications, age and experience, (2) the pay scale and other emoluments. (3) the method of recruitment, (4) the conditions of service, and (5) the disciplinary procedure to be followed.
This aspect of the matter has been examined by this Court in the case of Rabindra Kumar Sudhansu and Ors. v. Registrar, Co-operative Societies Bihar and Ors. C.W.J.C. No. 5061 of 1986, decided on 12-8-1988 and it has been pointed out that the power under Section 66-B of the Act can be exercised only by the State Government It is not the stand of the respondents in the present application that the two communications aforesaid dated 9-2-1980 and 12-10-1980 had been issued by the State Government in exercise of the power under Section 66-B of the Act.
7. According to the respondents the directions had been issued by the Registrar in exercise of the power conferred on him by Rule 33 of the Bihar Co-operative, Societies Rules, 1959 (hereinafter referred to as 'the Rules'). Rule 33 of the Rules is as follows:
33. Appointment of paid employees.--(1) The appointment of a paid employee in any registered Society shall be, subject to such conditions as to qualifications, designation, scale of pay and travelling allowances, furnishing of security, compulsory contribution to provident fund, grant of leave salary increment, transfer, punishment, suspension, removal or dismissal as may, from time to time, be determined by the Registrar by general or special order.
(2) A registered Society aggrieved by any order of the Registrar under Sub-rule (1) may within sixty days of the receipt of such order, prefer an appeal against the order to the Slate Government and' the decision of the State Government thereon shall be final.
On behalf of the petitioners it was pointed out that Rule 33(1) vests power in the Registrar to prescribe qualifications, designation, scale of pay and other conditions of services mentioned in the said sub-rule including transfer, punishment, suspension, removal or dismissal, by general or special order ; it does not speak about conditions for appointment. In other words, the Registrar while exercising the power under Rule 33 can by general or special order prescribe the conditions in respect of qualification, designation, scale of pay, transfer, punishment, suspension, removal or dismissal but not the conditions on which appointments by such Societies shall be made. In my view, it is difficult to accept this contention. The heading of Rule 33 is "appointment of paid employees;". That rule opens with the words, "The appointment of a paid employee in any registered ' society shall be subject to such conditions as to " and covers all possible conditions of service from qualification upto dismissal, then it is futile to urge that the Registrar, Co-operative Societies in exercise of power under that rule cannot prescribe the conditions under which appointments should be made including the procedures for making such appointments like proper advertisement, constitution of Selection Committee, selection of the applicants strictly in order of merit. From a bare reference to communications dated 9-2-1980 and 12-10-1980 it shall appear that the Registrar by letter dated 9-2-1980 had directed the Honorary Secretary and Executive Officer of different Co-operative Societies to fix up the strenth of the employees, qualifications, and salary in accordance with the recommendation of the Committee which had been constituted by the State Government. It had further directed that the appointments should be made keeping in view the financial condition of each Co-operative Society. A copy of the recommendation of the Committee was also enclosed with that letter. In the communication dated 12-10-1980 the Registrar apart from other directions impressed the Secretary and other Executive Officers of different Co-operative Societies not to make appointments without proper creation of posts keeping into consideration the financial condition of the Societies. It was also said that before creating posts the approval of the Registrar should be taken. In my view, as the appointment of a paid employee in any registered Society is subject to any general or special order issued by the Registrar in exercise of power under Rule 33 aforesaid the Registrar by the two communications aforesaid could have directed the different Co-operative Societies to make appointments keeping in view the financial conditions of the Co-operative Societies and to create posts with prior approval of the Registrar. That direction shall not be beyond Rule 33 of the Rules. As I have already pointed out above that when rule ve(sic)ts power in the Registrar to prescribe conditions as to qualifications, designation, scale of pay, travelling allowance, grant of leave salary, increment, transfer, punishment, suspension, removal or dismissal, then certainly the Registrar can also direct about creation of posts keeping in view the financial status of the Co-operative Society, in question. As such, if the Administrator while terminating the services of the petitioners has observed in the impugned order that their appointments had been made without following the directions in the two communications of the Registrar, the order of termination simpliciter shall not become invalid so as to be liable to be quashed by this Court.
8. It may be mentioned that a Full. Bench of this Court in the case of Bijoy Kumar Bharti and Ors. v. The State of Bihar and Ors. 1983 PLJR 667 has held that even if the order terminating the services of a temporary employee says that his appointment was illegal, that does not amount to a stigma so that such an order becomes justiciable. In that very judgment it has been observed that, of course, the person affected, may in an appropriate case satisfy this Court that his initial appointment, although on temporary basis, was not illegal. In the instant case I have already pointed out that the stand of the respondent is that before making appointments of the petitioners, there was no advertisement in any newspaper inviting appointments from people in general and the appointments are said to have been made on buff-sheets issued by the then Honrary Secretary.
The procedure followed in making appointments of the petitioners not only contravened the direction of the Registrar but also was in violation of requirements under Articles 14 and 16 of the Constitution. It need not be pointed out that Statutory bodies while making appointments are required to give opportunity to all eligible persons for being considered by inviting applications through proper notice.
9. On behalf of the petitioners it was also submitted that the Administrator before terminating the services of the petitioners should have given art opportunity to show cause on principles of natural justice. This aspect of the matter has also been examined in the aforesaid Full Bench judgment in the case of Bijoy Kumar Bharti (supra), In that case the Full Bench has pointed out after referring to the several judgments of the Supreme Court that when the service of a temporary employee is terminated without sigma, there is no question of following the principles of natural justice. It has also been pointed out in that judgment that merely saying that the temporary appointment was illegal does not amount to stigma. Of course, in appropriate case, as already stated above, person concerned may satisfy this Court that his appointment had been made, although on temporary basis but after following all the procedures prescribed for making appointments.
10. On behalf of the petitioners our attention was drawn to some of the judgments of this Court where orders of termination issued against employees of some Co-operative Banks have been quashed. It may he pointed out that in all those cases the orders of termination had been issued by the Secretary or the Executive Officers of the Banks on the direction issued by the State Government or the Registrar, when the Managing Committees of such Societies or Bank were functioning and had not been dissolved. In that background it was held that the Registrar or the State Government had no authority under the provisions of the Act or the Rules to issue orders directing such Managing Committees or the Executive Officers of such Societies or Banks to terminate the services of the employees of such Societies or Banks. So far the present case is concerned, the impugned order was issued after the Managing Committee of the Bank was dissolved in exercise of the powers under Section 41(6) of the Act by the State Government and an Administrator was appointed. In the facts and circumstances of the present case it is the Administrator so appointed by the State Government who has taken the decision to terminate the service of the petitioners. As the order to terminate the services of the petitioners has been issued by the Administrator on the basis of decision taken by him, the decisions referred to above are not applicable.
11. Accordingly, the writ applications are dismissed, but in the circumstances of the case, there shall be no order as to costs.
N. Pandey, J.
12. I agree