IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 5.1.2010
CORAM:
THE HONOURABLE MR.JUSTICE P.JYOTHIMANI
W.P.No.3011 of 2008
R.Kasi .. Petitioner
Vs.
1. The Special Officer
Karkoodalpatti Primary Agricultural
Co-operative Bank Ltd.
Kamaraj Nagar Post
Karkoodalpatti, Rasipuram Taluk
Namakkal District.
2. The Joint Registrar of Co-op Societies
District Collector Office, II Floor
Namakkal District.
3. The Deputy Registrar of Co-operative Societies
Namakkal, Namakkal District.
4. The Secretary to Government
Co-operative, Food and Consumer
Protection Department
Government of Tamil Nadu
Secretariat, Chennai-9.
5. The Registrar of Co-operative Societies
Kilpauk, Chennai-10.
6. P.Sekar .. Respondents
PRAYER: Petition under Article 226 of the Constitution of India for issue of a writ of Certiorari to call for the records of the second respondent in respect of the impugned order passed in Rc.3192 of 2007 PACB dated 30.3.2007 and to quash the same.
For Petitioner : Mr.P.R.Dinesh Kumar
For Respondents : Ms.V.Bhavani Subbarayan
Special Government Pleader
for 1st respondent
Mr.T.Seenivasan
Additional Government Pleader
for respondents 2 to 5
Mr.S.Ayyadurai
for 6th respondent
ORDER
The writ petition is directed against the order of the second respondent dated 30.3.2007, by which the second respondent has regularised the services of the sixth respondent on certain conditions in the first respondent/Agricultural Co-operative Bank from 12.3.2001 in the post of Clerk, in which post he was initially appointed subject to the outcome of writ petition pending.
2. The facts leading to the filing of the writ petition are that the petitioner is working in the first respondent/Primary Agricultural Co-operative Bank from 1994, having originally joined as a permanent Salesman though the Employment Exchange and subsequently, promoted as Attender in the year 1998. It is the case of the petitioner that even though in the meantime he got himself qualified to be appointed to the post of Clerk, due to want of vacancy he was promoted as Attender in the year 1998. It is stated that he has also completed course in Jewel Appraisal and its Techniques, which is an additional qualification for the post of Clerk.
3. It is stated that the first respondent, who has not promoted the petitioner to the post of Clerk for want of vacancy, has passed resolution on 30.12.2006 proposing to promote the sixth respondent, P.Sekar, as a Clerk, who originally joined on 1.12.1998, and it is stated that the sixth respondent was appointed without being sponsored by the Employment Exchange and without going through the selection process and therefore, his appointment was irregular and the services of the sixth respondent were regularised by G.O.No.86, Co-operation, Food and Consumer Protection Department, dated 12.3.2001 wherein irregular appointments were streamlined and those who worked for more than 480 days were considered for permanent posts.
4. The case of the petitioner is that when he was eligible to be promoted to the post of Clerk in the year 1998 itself, he was not promoted while the sixth respondent has been illegally promoted in the year 2006, which was regularised and therefore, according to the petitioner, the conduct is arbitrary.
5. It is the case of the petitioner that when earlier he has approached this Court by filing W.P.No.2666 of 2007, this Court by order dated 24.1.2007 has directed the respondents to consider the representation of the petitioner and accordingly, the first respondent in the letter addressed to the petitioner dated 3.3.2007 has stated that no one in the first respondent/Primary Agricultural Co-operative Bank has been promoted and that if such proposal is considered the case of the petitioner will be taken care of, but within a period of 27 days the impugned order came to be passed regularising the services of the sixth respondent in the post of Clerk.
6. The impugned order is challenged on various grounds, including that the same is discriminatory; that the sixth respondent’s appointment is illegal and therefore, cannot be regularised; that the sixth respondent has worked temporarily in the permanent post of Clerk and he was favourably considered; and that the salary of the sixth respondent has been fixed to the permanent post of Clerk, which according to the petitioner is illegal.
7. In the counter affidavit filed by the first respondent, it is stated that the Public Distribution System Salesman was declared as a feeder category to the post of Attender in the year 1998 and the petitioner was promoted as Attender on 1.3.1998. It is stated that the sixth respondent, whose date of birth was 30.5.1969, has Higher Secondary Course pass qualification with Diploma in Co-operation obtained during the year 1993-1994 and was appointed as a Clerk with effect from 1.12.1998 on daily wages of Rs.50/- without recourse to employment exchange by the Board of Directors and he continued till he was regularised on 30.3.2007 and that regularisation was effected as per G.O.86, Co-operation, Food and Consumer Protection Department, dated 12.3.2001.
8. It is stated that when the said government order was challenged, ultimately the Division Bench by judgment dated 24.10.2002 in W.A.Nos.2501, 2502 and batch cases has directed to regularise the appointments and consequently the second respondent has passed orders and therefore, the impugned order is passed in implementation of the judgment in the writ appeals.
9. It is stated that simply because the petitioner has got experience of eight years he cannot claim as a matter of right to be promoted as a Clerk. It is stated that at the time when the petitioner was promoted as Attender he was not qualified for the post of Clerk for want of three years of satisfactory service as contemplated under Rule 149(1) of the Tamil Nadu Cooperative Societies Rules, 1988, and therefore, his eligibility for consideration to the post of Clerk would arise only on 1.3.2001.
10. It is stated that at the time when a post of Clerk fell vacant, the sixth respondent, who was working on temporary basis and regularised as per the order, was appointed by the Board of Directors and at that time the petitioner was not eligible and therefore, it cannot be said that the appointment of the sixth respondent is either illegal or irregular. It is stated that even if the petitioner has got any grievance, he has a right of raising a dispute under Section 90 of the Tamil Nadu Cooperative Societies Act, 1983 and without exhausting the remedy the writ petition is not maintainable.
11. The sixth respondent, in the counter affidavit, while reiterating that the writ petition is not maintainable, states that he was appointed as a Clerk on daily wage basis on 1.12.1998 and since he has passed Plus Two and Diploma in Co-operation and was eligible to be appointed as Clerk in the regular vacancy, his salary was fixed in March, 2001. It is stated that after the Board was superseded and Special Officer was appointed, the case of the sixth respondent was not considered and in fact, the time scale of pay paid to the sixth respondent was cancelled in May, 2001 and after many representations the first respondent has sent proposal to the second respondent for regularisation of services and therefore, the impugned order regularising his services was passed. It is stated that the petitioner has no locus standi to question the impugned order and that if the petitioner has any grievance against the regularisation of the sixth respondent, he can only workout his remedy available under the Act and the regularisation of the sixth respondent cannot be questioned by the petitioner.
12. While meeting the contention of maintainability, the learned counsel for the petitioner would rely upon the decision in A.Umarani v. Registrar Cooperative Societies and others, 2004 (6) Supreme 143 stating that it is a case of material irregularity and therefore, the question of maintainability cannot be raised. He would also meet the point of locus standi of the petitioner relying upon the decision in M.Kuppusamy v. The Special Officer, T.N.Co-operative Union & Other, 2007 (1) TCJ 415.
13. Mr.S.Ayyadurai, learned counsel appearing for the sixth respondent would submit that when the petitioner was aware of the appointment of the sixth respondent much earlier he has not chosen to raise his voice, but only after the regularisation of his services was effected the writ petition is filed, which according to him shows the malafide attitude of the petitioner.
14. A reference to the appointment order of the petitioner shows that the first respondent has appointed him on 31.8.1994 as a Salesman. However, the appointment of the sixth respondent on 1.12.1998 on daily wage basis was to the post of Clerk and it is not in dispute that at the time when the sixth respondent was appointed he was qualified to the said post, but not sponsored through the employment exchange. It was pursuant to the Government Order passed in G.O.No.86, Co-operation, Food and Consumer Protection Department, dated 12.3.2001, for regularisation of the employees appointed on daily wages and based on the judgment of the Division Bench of this Court dated 24.10.2002 in W.A.Nos.2501, 2502 and batch, the services of the sixth respondent were regularised.
15. Admittedly, the petitioner who was originally appointed as a Salesman in the year 1994, of course through employment exchange, was promoted as Attender in the year 1998. His case is that he got himself eligible in the year 1997 by passing the required examination for appointment as a Clerk. On the other hand, it is not in dispute that when the sixth respondent was appointed in the year 1998, he was qualified to the post of Clerk. If really at the time when the sixth respondent was appointed as a Clerk the petitioner was qualified to be considered for the post of Clerk in the first respondent, nothing prevented the petitioner from taking appropriate action in the year 1998. The petitioner, having kept quiet for nearly 9 years, has chosen to challenge the regularisation order given to the sixth respondent which was passed based on the direction given by the Division Bench of this Court. Therefore, on the face of it there is no difficulty to conclude that the writ petition at this stage is not maintainable. As submitted by the learned counsel for the respondents, if really the petitioner has any grievance against the resolution passed by the first respondent, he has remedy available under the Tamil Nadu Cooperative Societies Act for challenging such resolution in the manner known to law. In such circumstances, the writ petition as such is not maintainable.
16. It is not the claim of the petitioner that there is violation of any fundamental right or principles of natural justice. It is also not his case that the impugned order is without jurisdiction. It cannot be said that there is no effective alternative remedy available to the petitioner under the Tamil Nadu Cooperative Societies Act. The Division Bench of this Court consisting of Markandey Katju, C.J., and N.V.Balasubramanian,J., as they then were, in Indian Additives Ltd. v. Indian Additives Employees’ Union, 2005 (1) CTC 1 has held as under:
“5. Learned counsel for the first respondent then referred to the decision in Whirlpool Corporation v. Registrar of Trade Marks, 1998 (8) SCC 1, and very heavily relied on the observations made in paragraph 10 thereof, which we quote below :
“Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.”
In our opinion, the above observations of the Supreme Court cannot be held to mean that a writ petition cannot be dismissed on the ground of alternative remedy when there is an allegation of violation of any of the Fundamental Rights or the principles of natural justice or the proceedings are without jurisdiction. No doubt, it is well-settled that alternative remedy is not an absolute bar a writ petition but it is equally well-settled that ordinarily if there is an alternative remedy, the discretion under Article 226 should not be exercised and the party should be relegated to avail the alternative remedy. Hence, even if there is violation of any of the Fundamental Rights or of natural justice or the proceedings are without jurisdiction, the High Court under Article 226, on the facts of the particular case, can still dismiss the writ petition on the ground of availability of alternative remedy and ordinarily it should do so if there is an alternative remedy.”
In such view of the matter, the petitioner is not entitled to any relief and the writ petition stands dismissed. No costs.
5.1.2010
Index : Yes
Internet : Yes
sasi
To:
1. The Joint Registrar of Co-op Societies
District Collector Office, II Floor
Namakkal District.
2. The Deputy Registrar of Co-operative Societies
Namakkal, Namakkal District.
3. The Secretary to Government
Co-operative, Food and Consumer
Protection Department
Government of Tamil Nadu
Secretariat, Chennai-9.
4. The Registrar of Co-operative Societies
Kilpauk, Chennai-10.
P.JYOTHIMANI,J.
[sasi]
W.P.No.3011 of 2008
5.1.2010