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Judgment
K.P. Sivasubramaniam, J.—The petitioner being an Employees'' Union, prays for the issue of a writ of certiorarified mandamus to call for
the records relating to the proceedings of the first respondent dated 1.12.1995 and the consequential order passed by the second respondent
dated 16.12.1995 and to quash the said orders and to direct respondents 1 and 2 to fill up the vacancies from the list of seasonal employees
employed in the Vellore Co-operative Sugar Mills Ltd.
According to the petitioner, the Co-operative Sugar Mills at Vellore is administered by the Special Officer under the control of the first
respondent. The said Sugar Mills has its own Bylaws and in terms of Clause 3-A of the Special Bylaws, various categories of employees have
been mentioned. As on 13.11.1992, there were 34 Seasonal employees and their seniority was also fixed by the second respondent. As and when
the vacancies arose in the post of regular employees, the Seasonal employees would be given posting. Out of the seniority list fixed in the
proceedings dated 13.11.1992, 16 Seasonal employees were given posting in regular employment.
A vacancy in the cadre of Junior Clerk arose in the Mills. The third respondent who was working as a Junior Clerk in Cheyyar Co-operative
Sugar Mills, Cheyyar, has been appointed by virtue of the impugned proceedings dated 16.12.1995 pursuant to the order of the first respondent
dated 1.12.1995. Aggrieved by the same, the present writ petition has been filed.
Learned counsel for the petitioner contends that in terms of Clause 3 of the Special Bylaws, the second respondent is the appointing authority
for the post of Junior Clerk. As per Clause 6 of the Special Bylaws, the appointment could be made only by filling up the vacancy through the
Employment Exchange or by inviting applications by an advertisement in the Newspapers. Learned counsel further submits that each Sugar Mills is
a separate Unit of service and there is no question of inter se transfer or common seniority list. Promotions can be made only from among the staff
working in the Mills. Posting and promotion of employees from each mills would result in depriving promotional opportunities and opportunities for
confirmation of service of temporary hands and casual employees who work in the Mills for a long time with a hope that their services will be
confirmed, their claims being ignored. Learned counsel also referred to the various provisions under the Co-operative Societies Act and Rules and
also Bylaws.
In the counter filed by the first respondent, it is stated that the third respondent was earlier working at Cheyyar Co-operative Sugar Mills as per
orders of the Commissioner of Sugars, and she was deputed to Vellore Co-operative Sugar Mills, on deputation basis. However the various
Unions functioning in the Mills protested against this deputation and in view of the same, she was reverted back to Cheyyar Co-operative Sugar
Mills. She was relieved from the service of the Vellore Co-operative Sugar Mills. Subsequently, in view of the representation of the third
respondent for transfer, the Commissioner of Sugar had called for remarks. The third respondent had requested the transfer on the ground that her
husband was working at Katpadi and her children are studying at Vellore. After examining the report from the Vellore Co-operative Sugar Mills,
the Commissioner of Sugar directed the appointment of the third respondent as Junior Clerk in the existing vacancy. It is further contended that the
dispute raised by the petitioner Union cannot be entertained in a writ petition. The Commissioner of Sugar is also the Registrar of Co-operative
Societies and he has the power to issue directions in the said context u/s 181 of the Tamil Nadu Co-operative Societies Act, 1983. It is further
submitted that the third respondent was not transferred but was appointed by the Vellore Co-operative Sugar Mills, on the directions of the
Commissioner of Sugar who is the Registrar of the Co-operative Societies. Therefore, there is no question of any transfer. Appointment of
personnel from one co-operative Sugar Mills to another co-operative Sugar Mills is quite common. The Commissioner of Sugar has only
redressed the reasonable grievance of an employee working under his control. The dispute if at all could be raised only by way of a dispute before
the Labour Court.
In the counter filed by the Special Officer of Vellore Co-operative Sugar Mills also the same stand is taken. It is stated that the first respondent
Commissioner of Sugar has every right to tender advice or issue directions to the Co-operative Sugar Mills. The third respondent was a fully
qualified candidate and had sought for appointment as a Junior Assistant in the second respondent Mills.
In the counter filed by the third respondent, it is stated that she was appointed as a Junior Clerk in Cheyyar Sugar Mills and her seniority was
fixed in Cheyyar sugar Mills as a senior on 7.4.1991. As per the orders of the Commissioner''s report, dated 18.11.1995, she was deputed to
Vellore Co-operative Sugar Mills and she was working on deputation from 17.4.1989 to 27.4.1994. She was reverted back to Cheyyar Sugar
Mills by order of the Commissioner of Sugar on 15.4.1994. She then presented a petition on 1.11.1995 to the Commissioner of Sugar to transfer
her from Vellore to Cheyyar. She had requested transfer on the ground of her health condition and also the fact that her husband was employed in
the Central Government working at Vellore. In exercise of powers conferred u/s 181 of the Co-operative Societies Act and as per the
Government policy the husband and wife to be permitted to work in the same place, orders have been issued and appointing her was legal and
valid. There was no mala fides in the order. It is only the trade Union which has filed the writ petition with a mala fide intention and not any
individual employee as being aggrieved. The Joint Secretary of the petitioner''s Union has no locus standi to file the writ petition.
Mr. R. Margabandhu, learned counsel for the third respondent contends that though under By law 55, transfer by the Registrar is competent in
the case of employees in Supervisory ''C'' and categories above, including Heads of Departments to any other Co-operative Sugar Mills, under
Bylaw 3, dealing with classification of employees, there is nothing to indicate as to who belongs Supervisory or non-Supervisory category. The
third respondent was originally appointed at Cheyyar and subsequently deputed only in 1989. Thereafter, she was reverted back to Cheyyar. In
view of her family circumstances, she has sought for transfer from Cheyyar to Vellore. In exercise of the powers conferred u/s 181 of the Co-
operative Societies Act and as per the policy decision of posting spouses in the same station, the second respondent had appointed the third
respondent as Junior Clerk, and had posted her at Vellore after considering the request of the petitioner.
Now if she is to be reverted back to Cheyyar, it would result in injustice to her, losing her claims at Cheyyar. In public interest, the Registrar has
taken the decision to post the third respondent. Therefore, there was no impropriety in the postings of the third respondent. Learned counsel
further submits that u/s 181, the Registrar had ample powers over the administration of the Co-operative Societies and to pass such orders as may
be found necessary.
Learned counsel also states that the writ petition itself has been filed due to improper reasons and reference is made to paragraph No. 14 of
the affidavit in which it is contended that the third respondent being a Scheduled caste person, she was influencing the authorities to get further
promotions also.
Reliance is also placed on the judgment of a Full Bench of this Court in R.TAMILARASAN v. DIRECTOR OF HANDLOOMS 1989 (II)
L.L.N. 69 in support of his contention that a Co-operative Society is not an authority, nor an instrumentality or agency of the Government and
hence amenable to writ jurisdiction under Article 226 of the Constitution of India.
I have considered the submissions of both sides. The most primary and relevant contention and claim of the petitioner that each mill is a
separate service unit and that there is no common seniority list covering all the Sugar Mills, is not at all denied by the respondents in any of the
counter affidavits nor in the arguments before me. Under Rule 149 of the Tamil Nadu Co-operative Societies Rules, no appointment by direct
recruitment to any post shall be made except by calling for a list of eligible candidates from the Employment Exchange and also giving due publicity
by means of announcement in the Notice Board of the Society. Where the Employment Exchange issues a non-availability certificate, the Society
shall invite applications by giving advertisement in more than one daily Newspaper. This requirement is also re-emphasised in Clause 6 of the
Bylaws of the Vellore Co-operative Sugar Mills and it is made clear that no appointment by direct recruitment to the post under several categories
of service of society shall be made without notifying the vacancies to the Employment Exchange concerned and if suitable persons are not
sponsored by the Employment Exchange, then by inviting applications by advertisement at least one leading daily Newspaper.
As already extracted from the counter affidavit regarding the stand of the respondents, it is seen that the positive stand of the respondents is
that the impugned order is not a case of transfer, but a case of fresh appointment. This stand is taken obviously because there is no provision for
transfer from one Mill to another considering that each Mill is a separate unit and that there is no common seniority list. Therefore, even according
to the respondents, the impugned appointment is a fresh appointment. A fresh appointment/direct recruitment has to conform to the statutory
requirement under Rule 149(2) and Bylaw 6. The impugned posting is therefore, a glaring violation of Rule 149(2) and Bylaw 6.
In Bylaw 55, Registrar is given the power to transfer employees in Supervisory C and above categories, notwithstanding anything contained in
the Bylaws. The post in question is the category of Junior Clerk and by no stretch of imagination can the respondents take the stand that the said
post would fall under Supervisory category. Moreover, the very stand of the respondents is that this is not a case of transfer. Therefore, reference
to Bye-law 55 is totally irrelevant as to whichever category the post of Junior Clerk may fall under, supervisory or not.
The manner in which the appointment of the third respondent has been made and the counters have been filed in this case espousing the case of
the third respondent, cannot at all be appreciated. They reflect glaring favouritism to a particular individual. It is rather unfortunate that the official
respondents who should uphold the Rules and Regulations, not only violate the Regulations, but also very vociferously defend their action by filing
counter affidavits which do not reflect official propriety. I have not extracted some of the contentions raised in the counter filed by respondents 1
and 2. The Counter affidavits do not reflect adherence to Rule of law. Counter affidavits not only ignore the rule position, but are also very
argumentative expecting the court also to ignore the rule position. It is rather a matter of regret that officials should dare to take such a stand.
Much reliance is placed on Section 181 of the Tamil Nadu Co-operative Societies Act, 1983 dealing with the power of the Registrar to give
directions in public interest. A reading of the provision clearly indicates that such power is with reference to the implementation of co-operative
production and other developmental programmes undertaken by the Government, or to secure 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, depositors and creditors thereof etc. It does not give power to the Registrar to violate the statutory Rules and Regulations and the
Bylaws of the Society. The very insistence of making direct recruitment as contemplated under Rule 149 is not only to ensure the independence of
the Co-operative Society, but also to prevent any favouritism being exercised in matter of appointments. When it is conceded that the appointment
of the third respondent is a fresh one, her appointment can be done only in terms of Rule 149(2) and not in accordance with the whims and fancies
of the Registrar or the Commissioner of Sugar.
I am unable to appreciate even the tone of the letter of the Commissioner of Sugar dated 1.12.1995 stating that the Labour Union cannot
interfere in the administrative matters with regard to the appointment of individuals in the Sugar Mills and that if the demands of the Labour Unions
are to be conceded, then it will not be possible to run the administration. Such observations are uncalled for by the first respondent in an attempt to
justify his own conduct of favouritism and violating the Rules and Regulations. The Workers Union have every right to project their grievances if the
action of the higher authorities affect their chances of promotion, confirmation etc. There can be no denial of the fact that by such appointments, the
regular employees of the Mill at Vellore are bound to be affected, in particular individuals being denied their promotions or denial of confirmation
of temporary employees awaiting confirmation.
Public policy of posting spouses together in the same station, is only recommendatory even in government service and only subject to the Rules
and Regulations and availability of vacancy. Such policies and guidelines cannot override the basic mandates of Service Rules and Regulations and
by ignoring the valuable rights of other individuals.
I am also unable to accept the contention of learned counsel for the petitioner on the basis of the judgment of the Full Bench in
TAMILARASAN''s case which has been cited above. It is too late in the day to raise the said contention after the Supreme Court and this Court
in subsequent judgments have repeatedly held that that when orders are passed by statutory authorities under the Co-operative Societies Act in
violation of the Rules and Regulations, it is certainly open to this Court to interfere and set aside the illegal orders and set right the injustice or
illegality caused by such impugned orders.
Learned counsel for the third respondent contended that reverting the third respondent would cause grave injustice and her seniority will be
disturbed. I am unable to sustain the contention of learned counsel for the third respondent. In fact as far as the seniority is concerned, she has
come over to Vellore only as a fresh appointee foregoing her seniority. Now as a result of allowing this writ petition, the third respondent will be
put back in the original position at Cheyyar Mills in the same rank as she was holding at Cheyyar Mills. Probably by virtue of her seniority, she
would have also gained promotion by now in which case, she would be automatically eligible to be promoted by going back to Cheyyar Mills.
Therefore, I am unable to sustain the contention that by allowing this writ petition, the third respondent would be put to any hardship or
disadvantage. Nor can it be a ground to sustain the impugned action which is shown to be illegal.
In the result, the writ petitioner is entitled to succeed and the writ petition is allowed. No costs.