Judgment : The petitioners are employed as Jewel Appraisers in the services of the 3rd respondent/ The Trichy District Central Co-operative Bank Ltd. According to the petitioners, they completed more than seven years of service. The post of Jewel Appraisers in the 3rd respondent-bank, according to the petitioners, is a permanent post and as many as 32 Jewel Appraisers are employed throughout the day by the 3rd respondent-bank and the Jewel Appraisers like the petitioners work for the whole day in the bank and their job is not confined to testing the fineness of the jewels pledged with the 3rd respondent-bank. 2. According to Mr.R. Viduthalai, learned counsel for the petitioners, the work performed by the petitioners and other Jewel Appraisers includes enrolling the jewel loan applicants as members, testing the fineness of the jewels after filling up the jewel loan bond, payment vouchers, payment receipts, discharge receipts, maintaining the jewel loan ledgers and filling up the jewel loan chitta. The petitioners are licence-holders under the Gold Control Act. Even though the petitioners work through out the day, they are treated as part-time employees. The petitioners are exclusively employed by the 3rd respondent bank and they do not work in any other establishment. The petitioners are paid only on commission basis at the rate of Rs.1.50 per Rs.1,000,‘the latter representing the jewel loan amount. 3. The 1st respondent is the head of the co-operative institutions in the State of Tamil Nadu and the 2nd respondent is the Regional Head. Both of them have the over-all control and supervision of the 3rd respondent-bank. The petitioners were recruited in the year 1985 and they have completed 7 years of continuous service without any break. In fact, as per the provisions of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, which applies to the 3rd respondent establishment, all the petitioners should be made permanent since they have completed more than the minimum period of 480 days of continuous service in a period of 24 calendar months. According to the petitioners, they have a valid licence issued under the Gold Control Act to work as Jewel Appraisers and as such, they are eligible to be employed as permanent Jewel Appraisers of the 3rd respondent-bank. According to the petitioners, they have a valid licence issued under the Gold Control Act to work as Jewel Appraisers and as such, they are eligible to be employed as permanent Jewel Appraisers of the 3rd respondent-bank. The petitioners were appointed by the 3rd respondent more than seven years back and they were not sponsored by the Employment Exchange, Now, taking advantage of this fact, respondents 1 and 2 are treating the posts held by the Jewel Appraisers as vacancies and have sought to fill the 32 posts occupied by the petitioners and other persons similarly placed like the petitioners, and had directed recruitment for the above posts. The petitioners submit that in view of the long years of experience and the valid licence held by them, they should have been made permanent and no recruitment should have been resorted to treating the posts held by them as vacancies. 4. The 3rd respondent bank set in motion the recruitment process and by his letter dated 9. 1992, the 3rd respondent called for applications for appointment to the 32 posts of Jewel Appraisers. That communication clearly states that even those existing employees who are eligible to hold the post can also apply. Notwithstanding the fact that the petitioners are entitled to be regularised in service by virtue of their past experience, the petitioners also submitted their applications for the permanent post of Jewel Appraisers within the time stipulated. The petitioners submit that most of the applicants have been called for interview excepting persons like the petitioners. The interview was originally scheduled to be held on 212. 1992, later postponed to 1. 1993 and then again to 11. 1993. Interview had been completed on 11. 1993. No appointment had been made till date. While the petitioners were expecting to be sent interview cards, none of them was called for interview. Since the petitioners and other qualified Jewel Appraisers similarly placed like the petitioners were not called for interview, they enquired about the same. On enquiry, they came to know that only persons sponsored through Employment Exchange alone were favoured with the interview card and others are not to be considered for appointment, since the 1st respondent has issued clear instructions against appointments otherwise than through Employment Exchange stating that such appointments would be irregular. 5. On enquiry, they came to know that only persons sponsored through Employment Exchange alone were favoured with the interview card and others are not to be considered for appointment, since the 1st respondent has issued clear instructions against appointments otherwise than through Employment Exchange stating that such appointments would be irregular. 5. The petitioners further submit that since they are already in employment, the question of being sponsored through Employment Exchange does not arise. Further, even the very communication of the 3rd respondent dated 9. 1992 calling for applications inter alia categorically states that those who are already in employment in the Central Cooperative Banks will also be considered for appointment. According to the petitioners, the insistence on appointment only through sponsorship by Employment Exchange is not contemplated by any law and there is no such prohibition in the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959. There is no bar for considering the employees from the open market or service candidates. This contention is fortified by the judgment of the Supreme Court in the case reported in Union of India v. N.Hargopal, A.I.R. 1987 S.C. 1227: 1987 Lab.I.C. 915: (1987)3 J.T. 182: 1987 Lab.L.R. 332: (1987)1 Lab.L.J. 545: (1987)3 S.C.C. 308 : (1987)2 S.C.J. 294: (1987)2 Lab.L.N. 20: (1987)71 F.J.R. 111: (1987)55 Fac L.R. 602. This is more so in a case where the petitioners are already in the employment of the 3rd respondent bank. The petitioners have a public right to be considered for appointment to the post of Jewel Appraisers as they are otherwise eligible to be considered for promotion. This contention of the petitioners is fortified by the observations of the Supreme Court in the decision reported in S.Surendrakumar Gyani v. State of Rajasthan, A.I.R. 1993. S.C. 115. Thus, the petitioners state that the interview for the post of Jewel Appraisers was conducted on 11. 1993 but no selection or appointment had been made till date. Once the appointments are made, according to the petitioners, they will be displaced from their posts and they will be out of employment. 6. The petitioners submit that the respondents have a public duty to consider the case of the petitioners for the post of Jewel Appraisers and hence the respondents are liable to be directed by the issue of a writ of mandamus. 6. The petitioners submit that the respondents have a public duty to consider the case of the petitioners for the post of Jewel Appraisers and hence the respondents are liable to be directed by the issue of a writ of mandamus. The petitioners are entitled to continue in service since they are employed for more than seven years in the post of Jewel Appraisers. They will be put to untold suffering and hardship if their services are terminated on the appointment of the candidates proposed to be recruited. The petitioners are entitled to be considered for appointment to the post of Jewel Appraisers since they are eligible to be appointed. Thus, the petitioners have filed the above writ petition for a mandamus directing the respondents to consider the case of the petitioners for appointment to the post of Jewel Appraisers in the services of the 3rd respondent-bank. 7. The writ petition was admitted by this Court on 12. 1993 by K.S.Bakthavatsalam, J. On the same date, the learned Judge granted interim injunction in W.M.P.No.4634 of 1993 restraining the respondents from terminating the services of the petitioners pending disposal of the writ petition. In W.M.P.No.4635 of 1993, the learned Judge directed the respondents to consider the case of the petitioners also for the post of jewel appraiser before issuing any order of appointment in pursuance of the interview said to have been held by the 3rd respondent bank, during the pendency of the writ petition. The 3rd respondent bank filed W.M.P.No.11607 of 1993 to vacate the interim direction dated 12. 1993 and made in W.M.P.No.4635 of 1993. A common counter-affidavit has been filed in W.M.P.Nos.4634 and 4635 of 1993. 8. When the matter came up for orders, by consent of both parties, the main writ petition itself was taken up for hearing and I have heard Mr.R. Viduthalai for the petitioners and Mr. Vijay Narayan for the contesting 3rd respondent-bank. The 3rd respondent has also filed a detailed counter-affidavit denying the allegations contained in the affidavit filed in support of the writ petition. 9. According to Mr.Vijay Narayan, learned counsel for the 3rd respondent-bank, the relief sought for in the writ petition is to direct the respondents to consider the case of the petitioners for appointment to the post of Jewel Appraisers in the 3rd respondent bank. 9. According to Mr.Vijay Narayan, learned counsel for the 3rd respondent-bank, the relief sought for in the writ petition is to direct the respondents to consider the case of the petitioners for appointment to the post of Jewel Appraisers in the 3rd respondent bank. In respect of the post of Jewel Appraisers, the 3rd respondent is the appointing authority and respondents 1 and 2 have no role to play in the matter. The writ petition is, therefore, really directed against the 3rd respondent and respondents 1 and 2 have been added only as pro forma parties. The learned counsel submits that since respondents 1 and 2 are not necessary parties, the writ petition is liable to be dismissed on that ground. As far as the 3rd respondent is concerned, the learned counsel argues that it is a co-operative society and this Court has already taken the view that no writ will lie against a co-operative society and it is for this reason, the petitioners have impleaded respondents 1 and 2. 10. Without prejudice to the above contention Mr. Vijay Narayan submits that the services of the petitioners are utilised by the various Branch Managers of the 3rd respondent bank for appraising the value of jewels that are pledged with the bank for the purpose of taking loans. It is specifically urged by Mr. Vijay Narayan that the petitioners are not employees of the bank but on each occasion when they are called to appraise the jewels, they are paid commission at the rate of Rs.1.50 per Rs.1,000 for valuing and testing the quality of the jewels. In other words, according to the learned counsel for the 3rd respondent, the bank sends for the Jewel Appraisers to value and test the quality of the jewels. Admittedly, there is no order of appointment. They are not ad hoc employees or part-time employees of the bank and their services on commission basis need not even be terminated since it is only when necessity arises that they are called for appraising the jewels. The learned counsel further submits that the Supreme Court has also taken the view that such persons are not workmen within the meaning of the Industrial Disputes Act. 11. Mr. Vijay Narayan, learned counsel for the 3rd respondent submits that on 9. The learned counsel further submits that the Supreme Court has also taken the view that such persons are not workmen within the meaning of the Industrial Disputes Act. 11. Mr. Vijay Narayan, learned counsel for the 3rd respondent submits that on 9. 1992, the 3rd respondent notified 13 vacancies of Jewel Appraisers since the 3rd respondent had decided to make appointments on regular basis. Learned counsel invited my attention to Rule 149(3)(a) of the Tamil Nadu Co-operative Societies Rules, which states that no appointment by direct recruitment to any post shall be made except by calling for from the society applications from their employees who possess the qualifications for the post and unless the Government have accorded special sanction for recruitment by advertisement in dailies, by also calling for a list of eligible candidates from the Employment Exchange. As per Rule 149(3)(b), it is only where the Employment change issues a non-availability certificate or the Government accords special sanction, the society can invite applications from candidates including those working in other societies by advertisement in one English daily and two Tamil dailies having circulation with the area of operations of the society. Thus, the learned counsel for the 3rd respondent submits, that the direct recruitment to the post of Jewel Appraiser can be made only by calling for applications from the society itself and by calling for a list of eligible candidates from the Employment Exchange. 12. It is useful to extract Rule 149(3) (a) and (b) of the Tamil Nadu Co-operative Societies Rules: “149(3)(a) No appointment by direct recruitment to any post shall be made except by calling for from the societies applications from their employees who possess the qualifications for the post and unless the Government have accorded special sanction for recruitment by advertisement in dailies, by also calling for a list of eligible candidates from the Employment Exchange. (b) Where the Employment Exchange issues a non-availability certificate or the Government have accorded special sanction for recruitment by advertisement in dailies, the society shall invite applications from candidates including those working in other societies by advertisement in one English daily and two Tamil dailies having circulation within the area of operations of the society approved by the Government for the purposes of issue of Government advertisements.” 13. Mr.Vijay Narayan submits that in the instant case, the 3rd respondent called for applications from its own employees and also notified the vacancies to the Employment Exchange. The Employment Exchange sent a list of eligible candidates. As per the byelaws, the persons are eligible to be appointed as Jewel Appraisers by direct recruitment only if they satisfy the qualifications prescribed for the post. The maximum age limit is 30 years with a pass in S.S.L.C. and certificate under the Gold Control Act. Many of the petitioners are overaged and they do not have S.S.L.C. pass. Moreover, they were not sponsored by the Employment Exchange. Hence, if they are to be considered, there will be a gross violation of Rules 149(2) and 149(3)(a) of the Tamil Nadu Co-operative Societies Rules. Mr.Vijay Narayan further submits that this Court would not issue a mandamus directing the 3rd respondent to violate the provisions of the Act. 14. According the Mr.Vijay Narayan, the contention of the petitioners that the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, would apply, is misleading and untenable. The petitioners, according to the learned counsel for the 3rd respondent, are not workmen as per the provisions of the Act and they cannot claim permanent status in the 3rd respondent. Referring to Rule 149(4)(a) of the Tamil Nadu Co-operative Societies Rules, Mr.Vijay Narayan submits that no person shall be appointed to the services of a society if he has on the date on which he joins the post, attained the age of thirty years and in the case of persons belonging to Scheduled Castes and Scheduled Tribes, thirty-five years. 15. Mr.R. Viduthalai, learned counsel for the petitioners, in support of his contention placed strong reliance on the judgments of the Supreme Court reported in Union of India v. N.Hargopal A.I.R. 1987 S.C. 1227 and S.Surendrakumar Gyani v. State of Rajasthan, A.I.R 1993. S.C. 115. Mr.Vijay Narayan, learned counsel for the 3rd respondent, placed strong reliance on the decision of the Supreme Court reported in M/s.Puri Urban Co-operative Bank v. Madhusudan Sahu, (1992)3 S.C.C. 323 . 16.I have given my anxious consideration to the contentions advanced by both sides. The main prayer in the writ petition is for a mandamus directing the respondents to consider the case of the petitioners for appointment to the post of Jewel Appraisers in the services of the 3rd respondent. 16.I have given my anxious consideration to the contentions advanced by both sides. The main prayer in the writ petition is for a mandamus directing the respondents to consider the case of the petitioners for appointment to the post of Jewel Appraisers in the services of the 3rd respondent. It is abundantly clear that the prayer is directed only against the 3rd respondent. Respondents 1 and 2 were made parties with a view to maintain the writ petition against the 3rd respondent. There is no denial of the fact that the appointment of Jewel Appraiser is by the 3rd respondent and respondents 1 and 2 have no role at all to play in the said appointment. The decision of the recent Full Bench of our High Court has held that no writ petition is maintainable against a co-operative society. It cannot be gainsaid that the 3rd respondent is a co-operative bank registered under the Tamil Nadu Co-operative Societies Act. Applying the ratio laid down in the decision of the Full Bench, I hold that this writ petition is not maintainable and the same is liable to be dismissed. 17. There is a further hurdle in accepting the case of the petitioners. The writ petition proceeds on the assumption that the Jewel Appraisers are employees of the 3rd respondent bank and therefore, they should be appointed in the 32 vacancies notified by the 3rd respondent. Admittedly, the Jewel Appraisers are paid a commission at the rate of Rs.1.50 per Rs.1,000. No material has been placed before the court to establish the jural relationship of master and servant between the petitioners and the 3rd respondent. There is also no material to show that they were appointed as employees of the 3rd respondent bank and were paid any salary. In the absence of necessary evidence and particulars, it is unsafe to rely on the scanty material placed by the petitioners to record a finding as to whether the petitioners are employees of the 3rd respondent-bank or not. Hence, I am unable to accept the claim made by the petitioners that they are the employees of the 3rd respondent on the basis of the materials placed before me. 18. That apart, in the decision reported in M/s.Puri Urban Co-operative Bank v. Madhusudan Sahu, (1992)3 S.C.C. 323 , the Apex Court had occasion to consider whether a Jewel Appraiser engaged by Puri Urban Co-op. 18. That apart, in the decision reported in M/s.Puri Urban Co-operative Bank v. Madhusudan Sahu, (1992)3 S.C.C. 323 , the Apex Court had occasion to consider whether a Jewel Appraiser engaged by Puri Urban Co-op. Bank was a workman as defined in Sec.2(s) of the Industrial Disputes Act. After considering the contentions of the parties, the Hon’ble Supreme Court has observed as follows: “Now engaging Sahu was to require him to weigh the ornaments brought in the Bank for pledging and to appraise their quality, purity and value. He could be directed to do this but not the manner in which he shall do it. That was left to him exclusively, as it depended on his skill, technique and experience. Besides under the terms of engagement he himself responsible to the Bank for all his acts and commissions as an appraiser, and be accountable for the loss sustained by the Bank on account of under-valuation of the gold pledged with it. These terms inhered in the Bank the power to warn him and to remind him that he was not expected to be negligent in his duty. Still there was a fair element of freedom though coupled with responsibility, for Sahu in the manner in which he could do his work. Therefore, we are of the view that though Sahu claims to be a workman as commonly understood, he was not ‘employed’ as such, so as to establish a master and servant relationship, which could warrant a reunion in the event of disruption, by the intervention of the Labour Court. The allegation of the Bank before the Labour Court, as well as here, that Sahu is a reputed goldsmith and had remained gainfully employed so as to disentitle him to any back wages, which appealed to the Labour Court, had remained uncontroverted before us. It also remains uncontroverted before us that the Bank has, on its approved list, other such like appraisers and it is not obligatory for the Bank to allot work to Sahu or any other, at all. Additionally, in no event can he ask for work, or periodic remuneration or idling wages. These particulars, not by themselves, but in the totality of circumstance indicate lack of master and servant relationship.” I, therefore, find that the petitioners claim that they are the employees of the 3rd respondent is untenable. Additionally, in no event can he ask for work, or periodic remuneration or idling wages. These particulars, not by themselves, but in the totality of circumstance indicate lack of master and servant relationship.” I, therefore, find that the petitioners claim that they are the employees of the 3rd respondent is untenable. 19.Mr.R.Viduthalai, learned counsel for the petitioners, would place reliance on the observations of the Supreme Court in the decision reported in S.Surendrakumar Gyani v. State of Rajasthan, A.I.R. 1993 S.C. 115 and urged that the case of the petitioners deserves sympathetic consideration for appointment. That judgment, in my view, will not come to the aid and assistance of the petitioners because that was a case where services of temporary employees were sought to be terminated on recruitment of employees through Public Service Commission. While upholding that the recruitment of employees through Public Service Commission was legal and they are entitled to preference over the temporary employees recruited otherwise than Public Service Commission, the Supreme Court had observed that the case of temporary employees deserves a sympathetic consideration for appointment. No support can be derived from the said observation by the petitioners because the petitioners have not established that there exists the jural relationship of master and servant between them and the 3rd respondent. 20. Mr.R.Viduthalai would then argue that since the petitioners are already in employment, there is no need or necessity for sponsoring them through Employment Exchange. While meeting this argument, Mr.Vijay Narayan would place strong reliance on Rule 149(3)(a) of the Tamil Nadu Co-operative Societies Rules and submit that direct recruitment to the post of Jewel Appraiser can be made only by calling applications from employees of the society and by calling for a list of eligible candidates from the Employment Exchange. Rule 149(3)(a) of the Rules contemplates direct recruitment to any post either by calling for applications from the employees of the society who possess the prescribed qualification and by also calling for a list of eligible candidates from the Employment Exchange. Where the society wants to make direct recruitment by advertisement in dailies, it has to obtain the special sanction from the Government for recruitment by advertisement in dailies. Where the society wants to make direct recruitment by advertisement in dailies, it has to obtain the special sanction from the Government for recruitment by advertisement in dailies. Hence, I am of the view that it is open to a society under the aforesaid rule to make direct appointment by calling for applications from the employees of the society in respect of which recruitment is made and by also calling for a list of eligible candidates from the Employment Exchange. In the light of the above rule, Mr. Vijay Narayan is right in his contention that the direct recruitment to the post of Jewel Appraiser can be made by calling for applications from the employees of the society itself or also by calling for a list of eligible candidates from the Employment Exchange. According to the 3rd respondent, in order to fill up the vacancies of Jewel Appraisers, it resorted to the method of direct recruitment and called for applications from its own employees and also notified the vacancies to the Employment Exchange and the Employment Exchange sent a list of eligible candidates. In view of my earlier finding that the petitioners are not employees, the question of appointing them by calling for applications from them does not arise. There is no dispute that the Employment Exchange has not sponsored the names of the petitioners. Further, the petitioners have not satisfied the rules regarding age, educational qualification, etc. Thus, the petitioners’ contention that they are already in employment and therefore, they need not be sponsored through Employment Exchange does not merit acceptance. 21. The learned counsel for the petitioners would place reliance on the decision of the Supreme Court reported in Union of India v. N.Hargopal, (1987)3 S.C.C. 308 : A.I.R. 1987 S.C. 1227 and would urge that the 3rd respondent is not bound to make appointment through Employment Exchange especially when the petitioners are waiting to be appointed. In view of the provisions contained in Rule 149 of the Tamil Nadu Cooperative Societies Rules, it is futile to contend that the 3rd respondent can make recruitment without reference to Employment Exchange because it is a private employer. The 3rd respondent, in my view, is bound by the statutory provisions referred to supra. In view of the provisions contained in Rule 149 of the Tamil Nadu Cooperative Societies Rules, it is futile to contend that the 3rd respondent can make recruitment without reference to Employment Exchange because it is a private employer. The 3rd respondent, in my view, is bound by the statutory provisions referred to supra. Therefore, the reliance placed on the following observation of the Supreme Court in the decision cited above is of very little assistance to the petitioners: “It is clear that it is the desire of the Government of India that all government departments, government organisations and statutory bodies should adhere to the rule that not merely vacancies should be notified to the Employment Exchanges, but the vacancies should also be filed by candidates sponsored by the Employment Exchanges. It was only when no suitable candidates were available, that other sources of recruitment were to be considered. While the Government is at perfect liberty to issue instructions to its own departments and organisations provided the instructions do not contravene any constitutional provision or any statute, these instructions cannot bind other bodies which are created by statute and which function under the authority of statute. In the absence of any statutory prescription the statutory authority may however adopt and follow such instructions if it thinks fit. Otherwise, the Government may not compel statutory bodies to make appointments of persons from among candidates sponsored by Employment Exchanges only. The question, ofcourse, does not arise in the case of private employers which cannot be so compelled by any instructions issued by the Government.” 22. My attention was then drawn to the ruling of a Division Bench of our High Court reported in V.Ramaswami v. The State of Tamil Nadu, 1990 Writ L.R. 42 and reliance was placed on the following observations: “....The 3rd respondent is neither a Government Department nor a Government Organisation nor a statutory body and in such a contingency the 3rd respondent could not be called upon to adhere to any rule that the vacancy should be notified to the Employment Exchange and the vacancy should be filled up by candidates sponsored by the Employment Exchanges...” The above view will not advance the case of the petitioners because, admittedly, the 3rd respondent is bound by the statutory rules and in particular Rule 149 of the Tamil Nadu Co-operative Societies Rules. 23. 23. Consequently, I am unable to countenance any of the contentions of Mr.R.Viduthalai, learned counsel for the petitioners. Accordingly, the writ petition is dismissed. No costs.