Abdul Noor Choudhury And Anr. vs State Of Assam And 7 Ors.

Heard Shri N. Haque, learned counsel for the petitioners whereas the contesting respondent nos. 1 to 6 are represented by the Standing Counsel, Cooperation Department, Shri S.K. Talukdar. Ms. S. Baruah, learned State Counsel is present for the respondent no. 7.

None has appeared for the respondent no. 8.

The petitioner no. 1 claims to be the Chairman of Bhagabazar Cooperative Society in the district of Cachar and the petitioner no. 2 is the Secretary of the said Society.

It is the case of the petitioners that a resolution was adopted by the Society requiring the assistance of a Secretary and pursuant to the said resolution, the petitioner no. 2 vide order dated 22.05.2018 was appointed as the Secretary.

The petitioners are now aggrieved by an order dated 01.11.2019 by which, the deputation of the petitioner no. 2 who is substantively a Junior Inspector / Auditor of Cooperative Societies has been withdrawn and the respondent no. 8 is placed as the Secretary of the Cooperative Society. Being aggrieved, the present petition has been filed.

Shri Hoque, the learned counsel for the petitioners by relying upon the Assam Cooperative Societies Act, 2007, more particularly, Section 48 of the Act thereof has submitted that a Secretary in a Cooperative Societies can be appointed by the State Government based upon an application by the Society which is supported by a resolution.

It is the submission of the learned counsel for the petitioners that pursuant to such resolution, vide the order dated 22.05.2018, the petitioner no. 2 was appointed as Secretary whose substantive posting is a Junior Inspector / Auditor of Cooperative Societies.

It is the contention of the learned counsel that while the appointment of the respondent no. 8 is being done, the same is not preceded by the pre- conditions embodied in Section 48 of the Act and therefore, there is jurisdictional error in such appointment which would call for an interference by this Court.

So far as the removal of the petitioner no. 2 from the post of Secretary is concerned, it is submitted that there was no resolution from the Society in question and in absence of such resolution, there was no requirement to pass the order dated 01.11.2019.

Per contra, Shri Talukdar, the learned Standing Counsel, Cooperation Department submits that the entire premise of filing this writ petition is fallacious.

By drawing the attention of this Court to the writ petition, Shri Talukdar, the learned Standing Counsel has submitted that the Society is not a petitioner aggrieved and it is only the Chairman who has approached this Court in its individual capacity along with the incumbent who was the beneficiary of the initial order dated 22.05.2018. The learned Standing Counsel submits that by itself would raise serious doubts on the bona fide of the petitioners in approaching the Court as it appears that there is vested interest of the petitioners in filing a joint petition in their individual capacity.

Coming to the pleaded case, Shri Talukdar, the learned Standing Counsel submits that though the argument with regard to Section 40 of the Act is not a part of the pleadings, that argument would also not be applicable in view of the clear provision of law laid down in Section 49 of the Act of 2007 which provides for appointment of a Chief Executive, by whatever designation called of every Cooperative Societies to be appointed by the Board or by the State Government. It is clarified that such appointment is normally known as the Secretary.

The learned Standing Counsel submits that there is no jurisdictional error in issuing the order dated 01.11.2019 which has been impugned in the present writ proceedings and the same has been issued only with the interest of public service. Countering the submission of the learned Standing Counsel, Shri Hoque, the learned counsel for the petitioners submits that though Section 49 of the Act gives power to the State Government to make such appointment, the said appointment has to be a full time appointment which is not seen from the impugned order dated 01.11.2019.

It is submitted that the order dated 01.11.2019 specifically states that the respondent no. 8 has been appointed as the Secretary of the Society temporarily till a regular Secretary is appointed by the Society.

Ms. S. Baruah, learned State Counsel appearing for the Deputy Commissioner endorses the submissions of Shri Talukdar, the learned Standing Counsel and submits that there is no infirmity in the order dated 01.11.2019.

The rival submissions of the learned counsel for the parties have been duly considered.

First let us deal with the relief claimed in the writ petition. While the order dated 01.11.2019 has been assailed, there is a specific prayer to allow the petitioner no. 2 to continue as function as Secretary of the Society till March, 2020 which is now over.

In any case, what intrigues this Court is that there is no vested right casted upon an incumbent who is appointed as the Secretary of a Society as it is the prerogative of the State Government for such appointment and tenure. What is of paramount importance is the interest of public.

A bare reading of the order dated 01.11.2019 would give a picture that the affairs of the Society in question is badly hampered due to poor performance of the petitioner no. 2.

Under those circumstances, the order have been passed by which the respondent no. 8 has been appointed as the Secretary of the Society in question.

This Court is unable to accept the submission of the learned counsel for the petitioners that it is only upon an application supported by a resolution by the Society that the Government is youth power to appoint a Secretary of the Society. On the other hand, this Court finds force in the submission of Shri Talukdar, the learned Standing Counsel that Section 49 of the Act gives the jurisdiction and power to the State Government to make such appointment. Though the expression full time employee is used in the Section 49 of the Act, that would only mean that the Secretary to be appointed would be a full time employee of the Society and there is nothing permanency attached to such appointment.

The learned Standing Counsel has also placed before this Court two orders passed by this Court in two different writ petitions being WP(C) No. 2827/2019 and WP(C) No. 2379/2019 and both are instituted by the present petitioner no. 2 wherein the prayer was to allow him to function in a particular Cooperative Society. This Court has dismissed both the writ petitions by observing that since the substantive post of the petitioner no. 2 is Junior Inspector cum Auditor of Cooperative Society, there is no vested right to hold the post of Secretary of any Society.

Under the aforesaid facts & circumstances, this Court is of the opinion that no case for interference by this Court in exercise of powers under Article 226 of the Constitution of India is made out and accordingly the same is dismissed.