Madras High Court
T. Mutheeswaran vs The Registrar Of Co-Operative ... on 22 February, 1999
Equivalent citations: 1999(2)CTC626
ORDER
1. Petitioner seeks issuance of writ of certiorari or any other appropriate writ, direction or order in the nature of writ calling for the records relating to the proceedings of Registrar of Co-Operative Societies (Housing) Chennai, the first respondent made in Na.Ka.No. 11534/98/E4, dated 23.9.1998 and quash the same and pass such further orders.
2. Petitioner is a member of Kancheepuram Co-operative Housing Society Limited and his membership number is 4337. Society is having its own staff such as Secretary, Superintendent, Head Clerk, Assistant and Attender. Fourth respondent was the secretary of the society and he attained superannuation on 31.7.1998. First respondent issued proceedings in Na.Ka.No. 11534/98/E4, dated 23.9.1998, reappointing 4th respondent for one year. Same is challenged in this writ petition on the ground that it is violative to provisions of Tamil Nadu Co-operative Societies Act and Rules. 4th respondent is not eligible to be appointed and procedure for appointment is also not followed. After retirement, 4th respondent is not eligible to be appointed in the same post as Secretary since qualifications are different. According to petitioner, order is without jurisdiction and perse illegal.
3. Respondents 1 and 2 have filed common counter affidavit and respondents 3 and 4 have also filed separate affidavits. But the contentions are same. It is said that the writ petition is filed without any bona fide. Writ petitioner is one among the group who have already had some unlawful intervention with the smooth conduct of election of society and one of the contestants filed W.P.No. 6987 of 1997 alleging irregularities in the elections and the said writ petition is pending. It is said that writ petition itself is filed only with some bad motive and hostility towards 4th respondent. There is no suitable alternative to the post of Secretary within the Society and important projects, Court cases and statutory works like arbitration and execution are pending in large numbers. On the request of second respondent and on the basis of resolution passed by third respondent society, proceedings were issued by first respondent offering the post of Secretary to 4th respondent at a consolidated pay of Rs. 8,500 per month for one year. The order is purely on public interest and not with bad motive. After taking into consideration best interest of the society, where the interest and principal amounting to Rs. 1.50 crores outstanding, a service personnel having familiarity with borrowers to enable society to recover the loan amounts, service of 4th respondent is found necessary and therefore the appointment is made. There is no bar for reemployment of 4th respondent, since post of 4th respondent is not pensionable post. It is only temporary appointment on a consolidated pay of Rs. 8,500 and not on scale of pay and also not extension of service. It is said that there is no violation of law and respondent is competent to issue such instructions permitting society to appoint 4th respondent as Secretary.
4. Similar are the contentions of respondents 3 and 4. It prayed for dismissal of writ petition.
5. I heard the learned counsel on both sides.
6. The fact that 4th respondent retired from service on 31.7.1998 is admitted. Post of Secretary is vacant. It is in that post 4th respondent was appointed for a period of one year from the date of his assuming charge. Regarding appointment of paid officers, Tamil Nadu Co-Operative Societies Act provide for certain conditions. The same is dealt with in Chapter VIII. Section 73 of the Act deals with appointment of paid officers and servants of registered society and their condition of service. Section 74 deals with constitution of recruitment bureaus at the state and district level. Section 75 deals with constitution of common cadre of service. Section 76 deals with suspension of paid officers. Section 77 deals with removal of paid officer or servant of the Society.
7. In Section 73 of the Act, it is said 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 servant as are necessary for the efficient performance of its functions. Rest of the provisions are not necessary for our purpose.
8. The rules have also been framed in this regard. Rule 149 deals with Conditions of service etc., of paid officers and servants of societies and sub-rule (3) further provide that in matters of reservation for appointment, age for appointment and retirement, the rule applicable to Government Servants shall be followed.
9. In this case, 4th respondent has retired from service is admitted and he has also received his retirement benefits. It is thereafter by the impugned proceedings he was appointed for a period of one year from the date of his joining service.
10. Though respondents have justified their action in appointing 4th respondents, I do not think that their action could be validated when the Act and Rules do not support their action. When the Act does not authorise respondents 1 to 3 to appoint 4th respondent to the post of secretary, even if it is temporary or for a term, whatever may be the justifying reasons, the appointment has only to be quashed.
11. Every appointment will have to be within the four corners of Section 73 and Rule 149. Merely because there is urgency and pressure of work, respondents 1 to 3 cannot be permitted to do an illegal act. Respondents 1 to 3 are also claiming the right only under the Act and their source of power is also only under the Tamil Nadu Co-Operative Societies Act and Rules.
12. Learned Counsel for respondents at that juncture submitted, even though there may not be any provision for appointment of such persons, Section 181 of Tamil Nadu Co-Operative Societies Act empowers the Registrar to give necessary instructions in public interest and the appointment of 4th respondent could be justified under that Section. I fail to understand such an argument. Section 181 of Tamil Nadu Co- Operative Societies Act reads thus:
"Section 181: Power of Registrar to give directions in the public interest. etc. (1) Where the Registrar is satisfied that in the public interested or for the purpose of securing proper implementation of Co-Operative production and other development programmes approved or undertaken by the Government or to secure the proper management of the business of any class of registered societies generally, or for preventing the affairs of any registered society being conducted in a manner detrimental to the interests of the members, or of the depositors or the creditors thereof, it is necessary to issue directions to any class of registered societies generally or to any registered society or registered societies in particular, he may, by order issue directions to them from time to time, and all registered societies or the registered society concerned, as the case may be, shall be bound to comply with such directions.
(2) The Registrar may, by order, modify or cancel any directions issued under sub-section (1), and in modifying or cancelling such directions may impose such conditions as he may deem fit."
These are general powers given to the Registrar to give directions in public interest. When there is specific provision Section 73 and Rule 149, general provision under Section 181 cannot be applied.
13. I do not think that under Section 181 of the Act any appointment could be made when directions are for the purpose of proper implementation of Co-Operative programme or to issue directions to prevent the affairs of registered Society from being conducted detrimental to the interest of the Society. It has nothing to do with the appointment of Secretary or a paid servant to the Society. The impugned order is therefore bad.
14. At this juncture, learned counsel for respondent submitted that petitioner has no locus standi to file this writ petition and this court should not interfere under Article 226 of Constitution of India. I do not find any merit in the said contention. In the affidavit to writ petition, petitioner has even given his membership number and I do not find any ground to disbelieve the statement in the affidavit. Respondents Who are in possession of records should have placed records to show that the number mentioned in the writ petition is with regard to some other person and not of petitioner. Having failed to place material documents, they should not have allowed to contend that petitioner is not a member of the Society and therefore petitioner had no locus standi to file writ petition. According to me the said contention is without bona fide.
15. In the result, impugned order is quashed and there will be a direction to respondents 1 to-3 to terminate the services of the 4th respondent forthwith and 4th respondent is further forbeared from doing any act on the basis of the impugned order of appointment. I hold that the order of appointment of 4th respondent, though for a period of one year, is illegal and without jurisdiction.
16. The writ petition is allowed, however, there is no order as to cost. Consequently, W.M.P. Nos.25421 and 25422 of 1998 are closed.