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2002 DIGILAW 1670 (RAJ)

Uda Ram v. State

2002-09-27

D.N.JOSHI, RAJESH BALIA

body2002
JUDGMENT 1. - Heard learned counsel for the parties. 2. The petitioner was appointed by the respondent no.5 Pokaran Kraya Vikraya Sahkari Samiti Ltd. Pokaran as a Salesman in 1963. After about serving for nine years, vide Resolution dated 15.6.1972, passed by the then Managing Committee, the petitioner was promoted as Manager on 1.7.1972 and since then he is discharging the duties as Manage-These facts are not in dispute. 3. By Resolution passed on 15.6.1972, it was decided unanimously that looking to the discharge of function by Shri Uda Ram Choudhary, he may be fixed in the pay scale prescribed by the Rajasthan State namely 110-5-160-8-200- 10-230 and he was fixed at the minimum of the pay scale at Rs. 110/- by order dated 7.7.1982. It was also part of the Resolution dated 15.6.1972 that he shall be made permanent w.e.f. 1.7.1972 as Manager and consequently, by order dated 7.7.1972 while making Shri Uda Ram as permanent on the post of Manager and fixing him at Rs. 110/- in the pay scale, it was further ordered that in future, the increments and other benefits shall be payable to the petitioner. The date of increment was fixed as 1.7.1973. Notwithstanding making of these orders, when the petitioner was not given benefit of fixation and increments, he made an application to the Managing Committee that the benefit of the Resolution dated 15.7.1972 be released to him by making fixation in the pay scale as has been revised by the State Government from time to time alongwith D.A. and House Rent allowance etc. This application was allowed by the Managing Committee of the respondent no.5 by Resolution dated 14.4.1990 and payment in pursuance thereof were made to the petitioner amounting to Rs. 66,997/-. 4. However, after Resolution dated 14.4.1990 and its implementation, on some audit objection about the impugned Resolution dated 5.2.1992, the Assistant Registrar, Cooperative Societies, Jaisalmer issued a notice to the Society to show cause against intended action to rescind the Resolution dated 14.4.1990. As per Section 32(2), the issue of notice results in automatic suspension of resolution intended to be rescinded and is rendered inoperative. 5. Aggrieved with the aforesaid order, this writ petition has been filed. As per Section 32(2), the issue of notice results in automatic suspension of resolution intended to be rescinded and is rendered inoperative. 5. Aggrieved with the aforesaid order, this writ petition has been filed. Apart from challenging it on merit, it was also contended in the writ petition that Section 32 of the Rajasthan Cooperative Societies Act itself is ultra-vires, which provides automatic cessation of the Resolution merely on issuance of notice of show cause under section 32(1) of Assistant Registrar's intention to rescind the resolution. 6. When the matter came up for hearing before us today, it has been stated by the learned counsel for the parties that since filing of the writ petition so far as the validity of Section 32 is concerned, has been upheld by this Court and no more survives for consideration. 7. Learned counsel for the petitioner has drawn our attention on the merit of the issue that petitioner's right to fixation in the pay scale on being appointed as a permanent Manager and the consequential benefits flow from the Resolution dated 15.6.1972 and said resolution of 1972 has not been objected to nor has been subject matter of challenge anywhere until now. In these circumstances, there is no foundation for issuing the impugned notice dated 5.2.1992 for denying the petitioner benefits flowing from the Resolution dated 15.6.1972 by proposal to rescind the Resolution dated 14.4.1990, which has merely come into being for giving effect to Resolution dated 15.6.1972, in pursuance of which the petitioner has been permanently appointed as Manager w.e.f. 1.7.1972 and was fixed at the minimum of the pay scale then application to the post of Manager and fixing the date of increments in the grade. 8. Learned counsel for the respondents has urged that as the challenge to the vires of the provisions of Section 32 of the Act no more survives, this Court ought not to interfere as the impugned notice is only a show cause notice. 9. Having carefully considered the contentions, we are of the opinion that the objection to enter into the merits of the case, at this stage raised by the learned counsel for the respondent, cannot be entertained. 9. Having carefully considered the contentions, we are of the opinion that the objection to enter into the merits of the case, at this stage raised by the learned counsel for the respondent, cannot be entertained. It is apparent in view of the provisions of Section 32(2) of the Rajasthan Cooperative Societies Act, 1965 that merely on receipt of intimation from the Registrar of his proposal to rescind the resolution under sub-section (1), the said resolution shall cease to have effect until the Registrar passes final orders in the matter. Thus, by mere intimation of the notice like Ex.4 dated 5.2.1992, the petitioner rights are adversely effected and it cannot be said that it is merely a show cause notice not effecting any personal right of the petitioner. Moreover, when the very foundation for invoking the provisions of Section 32 of the Act is non-existent or the power has been exercised perversely, the petition would not be dismissed solely on this ground for sending the petitioner back to the Registrar after this distance of time. 10. On the merits of the case, it is apparent that the petitioner was appointed as permanent Manager of the respondent no.5-Society w.e.f. 1.7.1992 by Resolution dated 15.6.1972. There is no proposal to rescind that Resolution and perhaps, it would not have otherwise been justified to rescind that Resolution after expiry of 20 years when the petitioner has continuously discharged the functions of Manager under that order nor there is any proposal to remove the petitioner from his permanent posting, as permanent posting is not vide Resolution dated 14.4.1990. 11. Moreover, in pursuance of Resolution dated 15.6.1972, an order was in fact issued on 7.7.1972 appointing the petitioner as a permanent Manager in the pay scale of Rs. 110-230. As a result of permanent appointment, the consequential benefits of increments and D.A. payable in the pay scale became due to the petitioner w.e.f. 1.7.1972 and said effect was given effect to as per order dated 7.7.1972. However, actual benefits, which flew from Resolution dated 15.6.1972 and consequential orders were not revised. The Resolution dated 14.4.1990 was merely to give effect the order dated 7.7.1972 of the benefits arising thereunder and was not a resolution of giving any fresh benefit to the petitioner. However, actual benefits, which flew from Resolution dated 15.6.1972 and consequential orders were not revised. The Resolution dated 14.4.1990 was merely to give effect the order dated 7.7.1972 of the benefits arising thereunder and was not a resolution of giving any fresh benefit to the petitioner. In the absence of any objection to or challenge to the Resolution dated 15.6.1972 from any quarters, there is no foundation for entertaining any issue about the validity of the Resolution dated 14.4.1990. In other words, satisfaction about the incorrectness of Resolution dated 14.4.1990 has been reached on non existent materials. Therefore, the notice itself results in affecting the petitioner adversely, which action in our opinion is wholly untenable and amounts to unreasonable exercise of powers under section 32 of the Act, which cannot be sustained. 12. Accordingly, the petition is allowed. The notice Annexure 5 dated 5.7.1992 is quashed and effect shall be given to Resolution dated 15.6.1972 and orders passed in consequence thereto by implementing Resolution dated 14.4.1990. There shall be no order as to costs.Writ Petition Allowed. *******