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Judgment
K. Chandruw, J.—The Petitioners in all these writ petitions are strangers to the fourth Respondent Bank in whose service they wanted to get
in to as Assistants. They have been filing cases after cases before this Court with one relief or other. The fourth Respondent Bank is the Salem
District Central Cooperative Bank Limited, represented by its Special Officer. The bank has its own special bylaws relating to the service
conditions of its employees. The rules were framed under Rule 149 of the Tamil Nadu Cooperative Societies Rules, 1988 (for short TNCS Rules)
and they were approved by the State Government vide Rule 149(1) of the TNCS Rules vide G.O. Ms. No. 84, Consumer, Food and Consumer
Protection Department, dated 15.3.2004. As per bylaw No. 10, it is stated as follows:
10.AGE AT ENTRY AND AGE OF RETIREMENT. In matters of age for appointment and retirement, the provisions contained in Sub-rule (3)
of Rule 149 shall be followed.
(Emphasis added)
Rule 149(3) of the TNCS Rules has stipulated that in the matters of reservation for appointments and age for appointment and retirement, the
rule applicable to the Government servants shall be followed. The original rule enacted reads as follows:
149(3)In matters of reservation for appointments and age for appointment and retirement, the rule applicable to the Government servants shall be
followed.
Subsequently, the rule underwent a change by S.R.O.A-34/2005 by which the words ""age for appointment and retirement"" were dropped from
the rule. By the said amendment, the Cooperative Societies need not follow the Government rule and they can have their own bylaws. The fourth
Respondent Bank had issued a press publication informing that there were 30 posts of Assistants to be filled up. Therefore, they had called for
requisition from the District Employment Exchange. The persons who were aspiring to apply for the posts must have degree along with
Cooperation training or B.A. or B. Com in Cooperation subject. It is also stated as as on 1.4.2008, they should not have crossed 35 years. In
respect of persons belonging to MBC, SC, ST and BC, they should be below 40 years. At the time of the said press publication and the
requisition called for, the Petitioners herein had crossed the age limit stipulated therein. Though they were not in employment in Bank or
employment in any other cooperative societies, they sent representations stating that by G.O. Ms. No. 98, Personnel and Administrative Reforms
Department, dated 17.7.2006, the State Government had granted relaxation from the upper age limit for a period of five years. Therefore, they
were eligible for such relaxation and their cases should be considered.
This Court while entertaining the writ petitions in W.P. No. 33000 of 2007 and batch cases, by an order dated 10.09.2008 had directed the
District Employment Officer, Salem to consider their representations for sponsoring their names. Another person by name T. Chandrasekaran filed
W.P. No. 4124 of 2008 seeking for a direction to forward his name for consideration by the Cooperative bank. That writ petition was also
disposed of by an order dated 30.09.2008 directing the person''s name to be sponsored. In the mean while, the fourth Respondent bank informed
various aspirants that as per G.O. Ms. No. 222, Cooperation, Food and Consumer Protection Department, dated 13.7.2007, five years''
relaxation will come to 32+5 = 37 years in respect of MBC. Since the Petitioners had crossed that age, their request for considering to the post of
Assistants will not arise. In each of the case, the Petitioner had beyond the age stipulation by the Bank.
Thereafter, the Petitioners once again came before this Court with batch of writ petitions being W.P. Nos. 30578 of 2008 and batch cases
(since reported in 2009 (5) CTC 237). In that batch of cases, the prayer of the Petitioner was that the communication sent by the bank negativing
their claims should be set aside and their claims for appointment should be considered by the Bank. The learned Judge of this Court had posed a
question as to whether the District Central Cooperative Banks registered under the Tamil Nadu Cooperative Societies Act, 1983 was amenable to
the writ jurisdiction? After going through various contentions, in paragraph 32 of the order, it was observed as follows:
In the result, the writ petitions fail and they are accordingly dismissed. However, the Petitioners are at liberty to work out their remedies as
indicated above in accordance with law. If any representation in this regard is made by the Petitioners either to the Government or to the Registrar
of Co-operative Societies, the same shall be considered in the light of the findings and observations made above and appropriate order shall be
passed within four weeks from the date of representation....
Taking advantage of the said observation, the Petitioners sent representations to the State Government dated 09.10.2009. Their representations
sent to the Government were forwarded to the second Respondent Registrar of Cooperative Societies and he was directed to dispose of those
representations. On receipt of the representations, the second Respondent by communication dated 11.11.2009 held that in respect of cooperative
societies, the age for appointment will be as to what is prescribed by the cooperative societies and covered by various circulars and letters. In that
communication, the Registrar had stated as follows:
(1)The Rule 149(3) of TNCS Rules 1988 has been amended in G.O. Ms. No. 133 Cooperation, Food and Consumer Protection Department
dated 14.7.05 in which for the words ""age for appointment and retirement"", the words ""age for retirement"" were substituted and hence the original
provisions of Rule 149(3) is not applicable to cooperatives since 14.7.05. The rule prior to amendment cannot be followed after 14.7.05. Based
on Government Order No. 133, CF and CP Department dated 14.7.2005, Registrar vide circular No. 19/2007 dated 24.8.07 and vide letter No.
Rc.77915/03/SF4 dated 3.9.2007 has prescribed the age limit for entry level posts in cooperative institutions. As per the said circular and letter,
the maximum limit for BC & MBC is 32 years. With the relaxation given by Government in G.O. No. 222 dated 13.7.2007 the maximum age limit
for appointment in cooperatives in respect of BC & MBC is 37 years. In the same circular, it is instructed that for computing the age, the 1st
January of the year of appointment shall be adopted. The Petitioner''s name was sponsored by the Employment Exchange in its letter dated
19.9.2008, the Petitioner has crossed the age limit of 37 years fixed for BC/MBC as on 1.1.2008.
(2)Government in G.O. No. 98 P and A R Department dated 17.07.06 have relaxed the age limit for entry in the Government service by five
years. Had the norms applicable to Government servants are applicable to employees of Cooperatives, Government might not have issued a
separate Government order with regard to relaxation of age limit for entering into service. As the Cooperatives are independent legal entities,
Government in G.O. No. 222, Cooperation Food and Consumer Protection Department dated 13.7.07 have issued a separate order and relaxed
the age limit for entry level posts by 5 years. This itself is a clear proof that the age limit as applicable to Government servants is not applicable to
cooperatives. The rule applicable for appointment in Government service and in cooperative institutions are entirely different and cannot be
compared.
The Petitioners after getting orders from the second Respondent sent applications purporting to be one u/s 153(1) of the Tamil Nadu
Cooperative Societies Act, 1983 to the State Government vide their applications, dated 24.11.2009. They had reiterated the same contentions
that the orders of the Bank negativing their claims for the posts of Assistants solely on the ground that they had crossed the upper age of 37 years
was untenable and that they are eligible to get age exemption. When the State Government did not deal with their revision petitions purported to be
u/s 153, they came once again before this Court with W.P. Nos. 13592 to 13605 of 2010. Those writ petitions came to be disposed of by an
order dated 29.06.2010. Pursuant to the directions issued by this Court, the State Government had rejected the revision petitions filed by the
Petitioners u/s 153 by their order in G.O. Ms. No. 100, Cooperation, Food and consumer Protection Department, dated 9.8.2010. In that order,
the first Respondent State government held that as per Rule 149(1)(i), the qualification for entry into various posts will be only as per the special
bylaws of the society. In respect of the fourth Respondent Cooperative Bank, the special bylaws were amended with retrospective effect from
24.8.2007. As per special bylaws, the age prescribed was 35 years for SC and ST community, 32 years for BC and MBC communities and that
for other communities it was 30 years. As per G.O. Ms. No. 222, Cooperation, Food and Consumer Protection Department dated 13.7.2007, a
person who is entering into the service of cooperative society can be given only maximum of five years'' relaxation. Therefore, the Government had
informed that since the bylaws provide for upper age limit and even after the grant of concession of five years, since the Petitioners had crossed the
upper age limit, their request cannot be entertained.
Undaunted by the reply sent by the Government, the Petitioners once again filed review petitions purporting to be u/s 154 of the Tamil Nadu
Cooperative Societies Act, 1983 and asked for a review of its earlier order. In that they had stated that the present appointment drive cannot be
covered by the amended bylaws. Therefore, the Government order should be reviewed. The State Government by the impugned order made in
G.O. Ms. No. 33, Cooperation, Food and Consumer Protection Department dated 01.03.2011 had dismissed their review applications. With
reference to the contention that the amended bylaws not applicable to the present recruitment drive, in paragraph 9 of the order, it was stated as
follows:
...it is found that the entire process of appointment was commenced on the basis of the letter Rc.3904/96/E1, dated 79.2007 of the Salem
District Central Cooperative Bank to the Employment Exchange, Salem. The 5 years relaxation given in G.O. Ms. No. 38 P&AR(S) Department
dated 17.7.2006 shall apply for Government jobs. From para 3 of the said G.O it is clear that the said G.O is not applicable for recruitment of
employees in Cooperative Societies. The 5 years relaxation for appointment in Cooperative Societies was given by the Government only in G.O.
Ms. No. 222 Cooperation, Food and Consumer Protection (CJ1) Department dated 13.7.2007. If the 5 years relaxation given in G.O. Ms. No.
98, dated 17.7.2006 is applicable for appointment in Cooperatives, the Government wold not have issued the G.O. MsNo. 222 Cooperation,
Food and Consumer Protection (CJ1) Department dated 13.7.2007. The age limit specified in the Registrar''s Circular No. 19/2007, dated
24.8.2007 for appointment in Cooperative societies for candidates belonging to BC, MBC and Denotified Tribes shall be 32 years. The byelaws
of the Bank were amended on 30.6.2008 with retrospective effect from 24.8.2007 i.e., the date of issue of the Registrar''s said Circular. As per
Sub-section (8) of Section 11 of the TNCS Act, 1983 an amendment to the byelaws of a society shall take effect from the date if any, specified in
the amendment. As the TNCS Act provides for retrospective amendment of byelaws of the society, the above said amendment of the Salem
District Central Cooperative Bank is lawful. As the entire process of appointment has commenced from 7.9.2007, the age limit of 32 years fixed
for the BC and MBC candidates followed as per the amended byelaw No. 10 of the byelaws of the Salem District Central Cooperative Bank is
correct. By applying the 5 years relaxation given in G.O. MsNo. 222 Cooperation, Food and Consumer Protection (CJ1) Department dated
13.7.2007, the maximum limit for BC/MBC candidates shall be 37 years. As all the applicants have crossed the maximum age of 37 years, they
are not eligible for appointments as per the provisions of the byelaws in force at the time of appointment.
With reference to the posts being filled up with overaged persons as alleged by the Petitioners, the same was refuted and in paragraph 10, it was
stated as follows:
On the Petitioner''s averments as stated in (v) above, it is found that consequent to the order of the Hon''ble High Court on the Contempt
Petition No. 90 of 2004, 58 persons were appointed in the Respondent bank reckoning the age at entry as on 1.3.2001. At the time the age at
entry prescribed was 35 years in the SC, BC, MBC and Denotified Tribes and 30 years for others as per the circular of Registrar of Co-operative
Societies Rc 135138/96 CBS1, dated 7.10.1996. The Petitioners'' averment that applicants who have crossed 35 years were appointed pursuant
to the said Contempt Petition is not correct. As regards to the age limit followed by the Erode District Central Co-operative Bank in its
recruitment, the same cannot be applied to the Salem District Central Co-operative Bank because each District Central Cooperative Bank is a
separate entity whose appointments / recruitments are governed by their unique and specific provisions in their individual special byelaws.
It is in that view of the matter, the State Government had refused to review its own earlier order. The Petitioners are once again before this
Court for the nth time challenging the present review order.
Mr. R. Muthukumarasamy, learned Senior counsel appearing for Petitioners contended that the Government''s impugned order was illegal and
it is contrary to the earlier order passed by this Court reported in 2009 (5) CTC 237.
The Petitioners cannot clutch on to a stray observation made in paragraph 31 of the earlier order wherein it was stated ""that the grievances of
the Petitioners are well founded and the court was unable to give remedy and it was helpless to issue any direction because of non maintainability
of the writ petitions"" cannot be torn out of context. If this Court lacks power to entertain any writ petition and after holding such writ petitions are
not maintainable, any further observation made on the merits of the case will have to be considered as ""obiter dicta"" and not binding on the
authorities.
First of all, the Petitioners'' locus standi to file such writ petitions has to be considered before dealing with the merits of their claims. The
Petitioners are rank outsiders to the service in question and they have made applications for employment in a cooperative society. Only if they
come within the requisition made to employment exchange or under the notification, they will be considered. As per the requisition made by the
fourth Respondent Bank, the Petitioners are ineligible to be sponsored. The special bylaws framed and approved by the Government which is
relied upon by the Respondents are statutory in character. As rightly held by the State Government, it has been brought with retrospective effect.
The Petitioners cannot have any grievance over the application of special bylaws as they are not in service of the bank and they are not coming
within the age restriction prescribed therein.
Secondly, merely because they are aspirants for the posts, they do not get locus standi to question the special bylaws which were framed by
the society and implemented after prior approval of the State Government. When once they have no locus standi to question the bylaws framed by
the society and such bylaws are not in conflict with the provisions of the Cooperative Societies Act and rules, there cannot be any grievance
expressed over the same. It is not as if the society did not consider any age relaxation as pr the Government Order applicable to the cooperative
society, i.e., G.O. MsNo. 222, Cooperation, Food and Consumer Protection Department dated 13.7.2007. Having obtained five years relaxation,
they cannot have second relaxation basing upon some other Government letter or order which are having no binding effect on the society. In fact,
u/s 182, the State Government has power to give direction only in public interest and by such direction, they can make the Registrar to make an
enquiry into the affairs of the society. The power u/s 182 is not a general power and that power cannot be used for the society to make
appointment in a particular fashion contrary to its own bylaws. Though the power of the Registrar to give directions in public interest is slightly
wider as per Section 181, even such power cannot be given relating to appointment of the Secretary or paid servant of the cooperative society.
The power u/s 181 is held to be general in nature. In this context, it is necessary to refer to a judgment of this Court in T. Mutheeswaran Vs. The
Registrar of Co-operative Societies (Housing) Gandhi Nagar, Adayar, Chennai - 20 and three others, . Therefore, the Petitioners cannot have any
locus standi to question the special bylaws framed by the fourth Respondent cooperative bank.
Further, the Petitioners have had three rounds of litigation before this Court. In their first representation, the State Government had forwarded
it to the second Respondent to be dealt with by him. The second Respondent by an order dated 11.11.2009 had negatived their request. The
power exercised on the part of the second Respondent can only be referable to Section 153 of the Tamil Nadu Cooperative Societies Act,
wherein he has got power of revision. Even proviso to Section 153(1) prescribes limitation for the exercise of such power. u/s 153, both the State
Government and the second Respondent have concurrent powers. Notwithstanding the order passed by the second Respondent, dated
11.11.2009, the Petitioners once again had invoked the jurisdiction of Section 153 with the first Respondent by their petitions dated 24.11.2009.
The State Government had negatived the revisions filed by them by passing G.O. Ms. No. 100, Cooperation, Food and Consumer Protection
Department dated 9.8.2010. The Petitioners should have been lest contended with that order. On the contrary, they had filed review applications
u/s 154. The said review is available for applicants in revision petition or Respondent if the order passed u/s 152 or 153 that too on the basis of
discovery of new and important facts which after exercise of due diligence were not then within the knowledge or could not be produced by them
when the order was made or on the basis of some mistakes or error apparent on the face of the record or for any other sufficient reason. It is not
clear as to how such review is maintainable when the Petitioners in their applications had only re-stated their earlier contentions in the revision.
They had not made out any ground for reviewing the order. But, nevertheless the State Government had entertained the review and dismissed it on
merits. Therefore, this Court is not inclined to go into the maintainability of the review though their applications for review are totally misconceived.
Since the State Government had clarified that the order of the Government will not apply to the Cooperative society and such order relating to the
Cooperative society in G.O. Ms. No. 222, Cooperation, Food and Consumer Protection Department dated 13.07.2007, the Petitioners have no
right to agitate the said issue again and again.
The action of the Petitioners are nothing but raids on this Court. Already they had three rounds of litigation before this Court besides one
before the Registrar and two rounds before the State Government. That too the Petitioners were not employees of the cooperative bank, but rank
outsiders and mere aspirants to get an employment in the society.
Similar challenges made to the selection made by various District Central Cooperative Banks, such as Sivaganga, Virudhunagr and
Ramanathapuram Banks were dismissed by the Madurai Bench of this Court.
Further the question as to whether the employer can fix the upper age limit and that the relaxation available in terms of the G.O can be
enforced came to be considered by the Supreme Court in a judgment in Tirumala Tirupati Devasthanams Vs. K. Jotheeswara Pillai (D) by LRs.
and Others, . In that case, the Supreme Court dealt with the similar issue in the Tamil Nadu Civil Services. The following passages found in
paragraphs 6, 7, 9 and 10 may be usefully extracted below:
Rule 4 gives a long list of rules made by the Government of Andhra Pradesh in respect of the employees of the State Government which have
been made applicable to Tirumala Tirupathi Devasthanams employees, which includes the Fundamental Rules and the Subsidiary Rules issued
thereunder,the Andhra Pradesh Civil Services (Conduct) Rules, 1964, the Andhra Pradesh Civil Services (Classification, Control and
Appeal)Rules, 1963, etc. Rule 11 of the Rules clearly provides that noperson shall be eligible for appointment to the service by directrecruitment to
any post in the service of Tirumala TirupathiDevasthanams in Annexure II if he has completed the age of 28years or the age prescribed therefor in
the said annexure as on 1stJuly of the year in which the notification for recruitment is issued. It also provides for general relaxation of age in
accordance with the orders issued by the Government and also in respect of personsbelonging to reserved categories such as Scheduled Castes
and Scheduled Tribes and backward classes. Thus the Rules make complete provisions regarding qualification and age for direct recruitment and
also in respect of category of persons to whomrelaxation can be granted which would be in accordance with the government orders. The Rules do
not mention anywhere that while making direct recruitment any services rendered as an NMR employee has to be taken into consideration or some
relaxation inage is to be granted on its basis. The writ Petitioners had worked for a brief period as NMR employees in 1984-86. It was after a gap
of more than six years that they were appointed by way of directrecruitment on 17-8-1992. Under the Rules they were clearly ineligible for being
given any appointment as admittedly they were overage.
Learned Single Judge allowed the writ petition mainly on the ground that on two earlier occasions the Appellant had granted exemption from age
and qualifications and no material was placed before the High Court as to why such a discretion could not be exercised by the Appellant in favour
of the employees concerned, namely, the writ Petitioners. The learned Single Judge has also issued a writ of mandamus to the Appellant to
consider whether Writ Petitioner 5 was entitled for exemption from the requirement of age-limit having regard to certain G Os issued by the
Revenue Department of the State Government.
....
The learned Single Judge has also issued a writ of mandamus directing the Appellant to consider the case of Writ Petitioner 5 as to whether he
was entitled for exemption from age qualification. As already mentioned the Rules do not make any provision for granting exemption except to the
limited extent as provided in the second para of Rule 11. The principles, on which a writ of mandamus can be issued, are well settled and we will
refer to only one decision rendered in Bihar Eastern Gangetic Fishermen Coop. Society Ltd. v. Sipahi Singh where this Court observed as under:
(SCC p.152, para15)
[A] writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the
part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute
and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that
mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the
aggrieved party has a legal right under the statute to enforce its performance.
There being no statutory provision or rule providing for exemption from eligibility criterion, the learned Single Judge clearlyerred in issuing a
writ of mandamus against the Appellant directingit to consider the case of Writ Petitioner 5 for granting him exemption from the rule providing for
upper age-limit for fresh appointment.
It has to be held that the Petitioners can have no right or vested interest for getting age relaxation. Hence all the writ petitions will stand
dismissed. However, there will be no order as to costs.