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Rajasthan High Court · body

2001 DIGILAW 1128 (RAJ)

K. S. Choudhary v. State of Rajasthan

2001-07-21

J.C.VERMA

body2001
JUDGMENT 1. - The service conditions of the petitioner are governed by the Rajasthan State Cooperative Union Jaipur Employees' Service Rules, 1982 (here-in-after referred to as the Rules). Rule 6 prescribes the method of recruitment i.e. by direct recruitment, by promotion, by deputation for recruitment by promotion which says that for purposes of recruitment to the category of employees for promotion, a selection strictly on seniority cum merit or merit alone shall be made from among all persons eligible for such promotion under the provisions of these rules on the first day of calender year in which promotions are to be considered by the promotion committee. In the Schedule attached to the said rules only the post of Assistant Cooperative Education Officer (here-in-after called ACEO) is to be filled up by promotion by way of merit from the 'Project Officers and PRO'S who had got three years experience on lower posts with HDC at Sr. No. 2 of the Schedule. The post of the Publicity Officer/PRO is to be filled up by selection/by promotion from Lecturers/Co-operative Educational Instructors. 2. The petitioner is aggrieved against the promotion of respondent No. 6 B.S. Soyal as ACEO made vide order dated 15.10.1994 and also the amendment made on 15.10.1994 whereby the schedule as attached to the rules were amended as to include the post of 'Principal' along with PRO and Project Officer for the promotion to the post of ACEO. 3. It is the contention of the petitioner that right upto 15.10.1994, the persons holding the post of 'Principal' were not eligible for consideration to the post of ACEO and by such an amendment made on 15.10.1994 the 'Principals' have also been made eligible and DPC held on the same day had selected respondent No. 6 Mr. Soyal and as such says that the appointment of Mr. Soyal be quashed with the further submission that the petitioner be offered the appointment of ACEO who was working as Publicity Officer at that time and who have been unnecessarily reverted back to the post of Lecturer. 4. The petitioner who had initially entered in the service as a Cooperative Educational Instructor in the year 1962 was selected in open selection by the Selection Board on the post of Lecturer on merit No. 9 vide Annexure-9. 4. The petitioner who had initially entered in the service as a Cooperative Educational Instructor in the year 1962 was selected in open selection by the Selection Board on the post of Lecturer on merit No. 9 vide Annexure-9. He was appointed as Publicity Officer, vacant post at that time on temporary basis on 26.3.1980 (Annexure-11) and ultimately promoted to the said post on 2.4.1980 vide Annexure-12. Vide Annexure-13 dated 10.1.1991 being holder of the single post, his name was shown on the list of employees which otherwise purports to be the seniority list for different cadres. The rules governing the department came into existence in the year 1982 in which rules the post of the Publicity Officer/Public Relation Officer has been shown along with the post of ACEO. The petitioner was also given leave vacancy charge in August 1980 of the post of ACEO vide Annexure-15 as incumbent of the post Laxman Singh had proceeded on leave. Vide Annexure-27 the Registrar Cooperative Societies, exercising powers under section 4(1) of the Rules of 1966 of the Rajasthan Cooperative Societies Act and Rules had amended the schedule attached to the earlier rules for filling up the promotional post of ACEO by adding the designation of 'principal' as well in the following manner:- S. No. Name of Post No. of Existing new posts Method of Recruitment (Existing provision) Method of recruitment provision 1. Asstt. Co-operative By promotion seniority cum merit) from project officers and public relation officer By promotion (only by merit from project officers/public relation officer/Principal) 5. It was further mentioned that the Rules shall come into force immediately. On the same day, meeting of the DPC was also conducted. The petitioner was also informed vide Annexure-32 that the Registrar had abolished the post of Publicity Officer and, therefore, the petitioner was ordered to be reverted to the post of Lecturer w.e.f. 22.11.1994. The petitioner is alleging malafide by giving certain examples in regard to amendment of the rules and by declaring the post of Publicity Officer held by the petitioner to be surplus and his reversion. He further challenges the appointment of respondent No. 6 as 'Principal.' 6. In the written statement, the facts as stated are not denied but it is submitted that right from 1980 the post of ACEO was being handled by the 'Principal' and even after 1982 it was so being handled by 'Principal'. He further challenges the appointment of respondent No. 6 as 'Principal.' 6. In the written statement, the facts as stated are not denied but it is submitted that right from 1980 the post of ACEO was being handled by the 'Principal' and even after 1982 it was so being handled by 'Principal'. It is stated that in the year 1980 the post was being handled by Laxman Singh right upto 1993 and the decision to move the amendment in the rules by the Administrator of the Rajasthan State Cooperative Union was taken on 4.12.1993 by the then Administrator and on the said decision having been taken, the Registrar ultimately amended the rules as authorised by Rule 41(1) of the Rules. It is further submitted that the post of ACEO was required to be filled up by member of Scheduled Caste ant similar was the position in regard to the post of Publicity Officer. It is contended that the post of Publicity Officer was created only on temporary basis and, therefore, it was abolished. The respondent is justifying by relying on a resolution dated 13.9.1994 (Annexure R/3-B) wherein it is stated that the word 'Principal' was left from inclusion in the rules inadvertently and by mistake for the purpose of promotion to the post of ACEO. 7. From the said pleadings and submissions the following points are required to be determined for the decision of this case; (i) whether any person holding the post of 'Principal' was entitled to be considered in the meeting of the DPC held on 15.10.1994 on which date the rule itself was amended; (ii) whether as the rules applicable prior to 15.10.1994, the Project Officer or the Publicity Officer only could have been considered; (iii) Whether a person who is not eligible under the rules can be considered for promotional post in anticipation of amendment of rules. 8. 8. Even though, the amendment is assumed to be permissible, whether the Administrator appointed to the institution could take a policy decision to allow the amendment as per Sec. 36 of the Co-operative Societies Act in view of the judgment reported in the case of Rahas Bihari Das and others v. State of Orissa and others-AIR 1995 Orissa 23 when specially the election programme had already been published and objections and nominations were to be received on 14.10.1994 and scrutiny was to be done and the election was to be completed by 19.10.1994 as per Annexure-29 as per the submissions made in the writ petition. Rule was amended on 15.10.1994 and the meeting of the DPC was also held on the same day, even the selection was made on the same day. 9. Rule 26 of the Rules provides that the amendment in the rules are to be made by the Board of Directors of the Union with the prior approval of the Registrar. Selection is to be made from all persons eligible for such promotion on the first day of calender year in which the promotions are considered, i.e. that the promotees shall be eligible for promotion on 1.1.1994. 10. The respondent was directed to produce all the relevant record, which had compelled the administrator for moving the amendment, calling the DPC on the same date of amendment, considering the name of respondent No. 6 for the said post etc. but the respondent had shown its inability to produce the record relating to selection, considering the names and even the record about the abolition of post of Publicity Officer etc. for perusal of the court, even though certain photostat copy of noting portion has been produced by stating that original record had been taken away by the earlier chairman. Some of the photostat copies of the letters which are not relevant were shown to the court. Non production of the record can lead to adverse inference if so required. On one of the photostat copy of the notes dated 13.9.1994, suggesting of the said amendment in the rules by the Administrator has been placed on record wherein the Administrator has ordered that the method of recruitment by promotion be changed from seniority cum merit to only merit. He himself has passed the resolution i.e. he is author of amendment and also final authority to take the decision. He himself has passed the resolution i.e. he is author of amendment and also final authority to take the decision. He has stated in the order that in the year 1982 the word 'Principal' could not have been added by inadvertence and, therefore, it should be added now. Letter has been sent to the Registrar. The respondent had not produced any such letter with the written statement and now is placed on record in the court and marked as Annexures C-1 and C-11. No record or document has been produced as to how and in what circumstances statutory post of Publicity Officer was abolished by the Administrator. 11. Even though no original proceedings of DPC have been produced on record, but a photostat copy of the same had been so produced wherein six names were considered and the respondent No. 6 was selected. The proceedings of the selection of DPC are placed on record as Annexure-C-111. 12. From the above-said facts it is clear; (1) that on 1.1.1994 i.e. the date fixed for eligibility for promotional post of ACEO, the respondent No. 6 was not eligible at all as he was not falling in the ambit of rules and the Schedule attached. Only those candidates could be considered for the post of ACEO who were eligible i.e. Public Relation Officer and Project Officer having the minimum qualifications in their possession; (2) 'Principal' was not included on 1.1.1994 and as such his name could not have been considered at all on 15.10.1994 from which date the amendment was made effective. If at he could be considered for the said post, he could have only be considered subsequent to the coming into force of the amended rules i.e. from the next year. 13. The contention of the respondent cannot be accepted that because initially one Laxman Singh who was also Principal was holding the said promotional post, therefore, the present respondent No. 6 was also entitled to hold the post Laxman Singh was posted/promoted as ACEO in the year 1980 when there were no rules applicable or the existence as the rules had come into force in the year 1982. The rules have statutory force. It is settled law that the statutory rules shall always have preference over any other executive instructions. The rules have statutory force. It is settled law that the statutory rules shall always have preference over any other executive instructions. The contention of the respondent that by framing the rules in the year 1982, by inadvertence the post of 'Principal' was omitted and only mistake was being remedied by appointing the 'Principal' to the post. This contention has no force in law. If the rules say that the promotion is to be made as per the rules from amongst the eligible persons, no indirect recourse can be adopted to bye-pass the rules. This contention of the respondent cannot be accepted. I also find force in the submission of the learned counsel for the petitioner that the rule has been amended as to include the name of 'Principal' with the ulterior motive to benefit respondent No. 6. It is really strange and looks unnatural that the rule itself are amended on 15.10.1994 which come into effect immediately, the name of respondent No. 6 is included in the list on the same day as prior to that his name could not have been under contemplation for the reason that he was not eligible to or considered under the rules and the meeting itself is held on 15.10.94 and 9ven the appointment order is also issued on the same day. The Administrator of the union of the institution appointed under section 36 of the Act did act with ulterior motive to benefit the respondent No. 6. He converted himself in the Board of Directors; he passed the resolution himself and sent it to Registrar for approval to amend the rules and the Registrar, too, without application of mind, seems to have signed it on dotted lines. Non production of the original record to find out as to how the mind was applied speaks volumes. It cannot be believed that the original record has been taken away by the chairman as has been told to the court even though some photostat copies of the record still have been made available. 14. I agree with the learned counsel for the petitioner that the Administrator is appointed to look into the affairs of the committee pending the formation of the committee when it is duly elected. The election was to be concluded on 19.10.1994. 14. I agree with the learned counsel for the petitioner that the Administrator is appointed to look into the affairs of the committee pending the formation of the committee when it is duly elected. The election was to be concluded on 19.10.1994. The nomination had already been filled upto 14.10.1994 but still the Administrator goes ahead with constituting of the DPC, selecting respondent No. 6 on 15.10.1994 itself. There is safe-guard provided under Rule 26 of the rules that the amendment can only be made by the Board of Directors with the approval of the Registrar. The administrator can function in place of committee but he does not convert himself into the Board of Directors as that goes contrary to the spirit of the Cooperative institutions. The totality of the circumstances do point out the accusing finger 2 towards the Administrator that he was out to bye-pass the rules and appoint respondent No. 6 in all circumstances. The Administrator had even gone too far to get the amendment incorporated in the selection to be made 'on merit only' and 'not on seniority cum merit'. The letter Annexure C-11 speaks volumes in this regard. The amendment of 15.10.1994 as incorporated was neither legal nor in accordance with law as having not been made by the Board of Directors. In any case in the garb of said amendment, the name of respondent No. 6 could not have been included before the DPC for consideration as on 1.1.1994 i.e. the cut off date, he was not eligible person under Schedule as such the amendment dated 15.10.1994 along with : promotional order of respondent No. 6 is to be quashed and is quashed. 15. The action of the respondent in declaring the post of Publicity Officer held by the petitioner has also been challenged. The post is said to have been abolished vide some order dated 11.11.1994 and as communicated on 22.11.1994. Publicity Officer is statutory post under the : rules such like the other posts of Chief Executive and Cooperative Education Officer, ACEO, Research Officer etc. The posts have been included in service in Schedule attached to the rules. Until and unless the Schedule itself is amended in accordance with law, the post of Publicity Officer could not have been declared to have been abolished. The posts have been included in service in Schedule attached to the rules. Until and unless the Schedule itself is amended in accordance with law, the post of Publicity Officer could not have been declared to have been abolished. It seems that because of the reason that the petitioner had been objecting to the illegal promotions and working of the Administrator as has been mentioned in the writ petition, the petitioner was not even deprived of for the post of ACEO by making 'Principal' as eligible by way of amendment but the respondent without any authority of law had abolished the post of Publicity Officer by declaring it surplus saying it to be the temporary post. Only one post which is encadred in the rules cannot be held to be temporary post specially when the petitioner having been so appointed as Publicity officer in the year 1980 continued to hold the post till 1994. It was held by Supreme Court in the case of N.S.K. Nayar and others v. Union of India & Ors., AIR 1992 SC 1574 that the appointments which are made under the rules and continued for 15 years cannot be considered as officiating or temporary appointments and as such the very basis of the respondent that the post of Publicity Officer was only a temporary post or adhoc post has no basis at all. It is a permanent post under the rules as mentioned in the Schedule attached to the rules which schedule has not been amended. On both the counts the petition succeeds. 16. For the above-said discussions and reasons, the petition is allowed and the impugned orders of promotion/appointment of respondent No. 6, along with the amendment dated 15.10.1994 and the action of the respondent in declaring the post of Publicity Officer as temporary post and surplus post is set-aside and any actions taken in consequence of the above-said illegal action of the respondent are also set aside. The respondent No. 6 shall immediately relinquish the post on which he was illegally appointed as ACEO which shall be filled up in accordance with the rules as per discussion above within one month. The petitioner, shall be entitled to consequential benefits if he has been reverted from the post of Publicity Officer as if the order had not been passed at all. 17. The writ petition is allowed with cost of Rs. The petitioner, shall be entitled to consequential benefits if he has been reverted from the post of Publicity Officer as if the order had not been passed at all. 17. The writ petition is allowed with cost of Rs. 15,000/- which shall be paid to the petitioner by the respondents but shall be recovered from the officer who was then Administrator and also from respondent No. 6 in equal share who has been benefited because of illegal action of the Administrator during the time, from their salary under intimation to this court within one month of the receipt of a certified copy of this order.Writ Petition Allowed With Costs of Rs. 15,000/-. *******