JUDGMENT Hon’ble V.K. Shukla, J.—Petitioners, in writ petition No. 11112 of 1980 are questioning the validity of the action dated 11.11.1980, wherein Mathura Zila Sahkari Bank Limited, Mathura has communicated that all promotions, which have been made after July 25, 1972 are being cancelled with effect from 11.11.1980. Petitioners submit that District Cooperative Bank, Mathura is a Central Cooperative Society registered under the U.P. Cooperative Societies Act, 1965. Petitioners have contended that Committee of Management of District Cooperative Bank, Mathura was suspended in exercise of power vested under Section 35 (1) of the U.P. Cooperative Societies Act, 1965, and the Assistant Registrar, Cooperative Societies, Mathura, was appointed as Administrator to run and manage the affairs and the administration of the Bank. Petitioners have claimed that initially, they had been performing duties as junior clerk and thereafter, they had been promoted to higher post. Petitioners have further contended that their promotion was validly made and there was no short coming in the same. Petitioners have contended that in spite of the fact that they had been validly promoted, order dated 11.11.1980 has been passed. 2. On presentation of writ petition this Court stayed the operation of the aforementioned order and the stay continued to remain operative, and on the strength of interim order, petitioners continued to discharge duties on the promoted post. The said writ petition was dismissed in default on 20.5.2003. Based on the order dismissing writ petition in default, order dated 31.8.2005 reverting the petitioners has been passed. At this juncture writ petition No. 69498 of 2005 has been filed. On presentation of this writ petition, record of earlier writ petition No. 11112 of 1980 was directed to be clubbed together. 3. Counter affidavit has been filed in the main writ petition, and therein it has been contended that each one of the petitioners was promoted after the prescribed cut-off date, as such they had no right to continue on the post, as the said promotion had been made without taking any prior concurrence of the U.P. Cooperative Institutional Service Board, and as such promotion of petitioners were void and petitioners had no right to continue on the posts in question. 4. After pleadings aforementioned have been exchanged, both the writ petitions have been taken up together for final hearing and disposal with the consent of the parties. 5. 4. After pleadings aforementioned have been exchanged, both the writ petitions have been taken up together for final hearing and disposal with the consent of the parties. 5. Sri K.P. Agrawal, Senior Advocate, appearing for the petitioners, contended with vehemence that in the present case, order of promotion was passed by the competent authority concerned and the same has been cancelled without providing any opportunity of hearing, as such the said action is vitiated in law. Apart from this, it has been contended that petitioners have continued on the promoted post for substantially long period, as such their position may be made intact and they may be permitted to continue on the promoted post. 6. Sri Kandarp Narain Mishra, learned Counsel appearing for the respondents, on the other hand, contended that promotion of petitioners had been made without there being any permission from the U.P. Cooperative Institutional Service Board, as such order which has been passed is valid order and no interference is required to be made. 7. After the respective arguments have been advanced, respective dates of promotion of petitioners as furnished by them are being quoted below: Name of petitioners Date of promotion Designation 1. Surendra Singh 1.12.1972 Assistant Accountant 2. Bhudeo Singh 1.2.1973 Assistant Accountant 3. Dharam Singh 1.12.1972 Assistant Accountant 4. Kamal Singh 1.12.1972 Assistant Accountant 5. Chandrapal Singh 1.1.1973 Assistant Accountant 6. Pancha Ram 1.1.1973 Assistant Accountant 7. Mahendra Pratap Singh 1.12.1972 Assistant Accountant 8. Ranjeet Singh 1.7.1973 Supervisor 9. 1.12.1979 Cashier/clerk 8. After the respective date of promotion has been noted, now the relevant provisions and pronouncement, which cover the field are being looked into: Section 122 of the U.P. Cooperative Societies Act, 1965 empowers the State Government for constituting an authority or authorities for the recruitment, training and disciplinary control of the employees of Cooperative Societies, or a class of Cooperative Societies, and also requiring it for framing the regulations regarding recruitment, emoluments, terms and conditions of service including disciplinary control of such employees. Section 122 of 1965 Act reads as follows : “122. Section 122 of 1965 Act reads as follows : “122. Authority to control employees of Co-operative Societies.—(1) The State Government may constitute an authority or authorities, in such manner as may be prescribed, for the recruitment, training and disciplinary control of the employees of cooperative societies, or a class of cooperative societies and may require such authority or authorities to frame regulations regarding recruitment, emoluments, terms and conditions of service including disciplinary control of such employees, and subject to the provisions contained in Section 70, settlement of disputes between an employee of a cooperative society and the society. (2) The regulations farmed under sub-section (1) shall be subject to approval of the State Government and shall, after such approval, be published in the Gazette, and take effect from the date of such publication and shall supersede any regulations made under Section 121.” 9. The State Government in exercise of its power under sub-section (1) of Section 122 of the Act, constituted an authority known as the U.P. Cooperative Societies Institutional Service Board for the recruitment, training and disciplinary control of the employees of cooperative societies, including the District or Central Cooperative Banks in the State vide Notification No. 366/XII-C-3-71, dated 4-3-1972 (published in U.P. Gazette Extraordinary dated 4-3-1972 directing it for framing regulations as required under sub-section (2) of Section 122 of the Act. The Board was constituted on 27-7-1972, however, it could not frame regulations as envisaged by the order constituting it till 3-7-1973 when it framed the regulations known as U.P. Cooperative Societies Employees Service Regulations, 1973 vide Notification No. 2524-C (1)/XII/C-3- 36 (5)-71, dated 3-7-1973 (published in U.P. Gazette Extraordinary dated 3-7-1973). During this intervening period, the Board issued various executive orders, one such being issued on 2-7-1972. Paragraph 3 thereof laid down that the appointments to all the posts of cooperative societies establishment shall be made by the Board and paragraph 25 (b) prohibited for making even promotions without its approval. Ignoring the said mandatory directions of the Board, appointments were made in some of the cooperative banks during this period. 10. By means of Notification No.7514-C (1)/XII-C-2-36 (3)-71, dated 31.12.1975 (published in U.P. Gazette Extraordinary dated 6-1-1976) the aforesaid regulations of 1973 after being rescinded were replaced by Regulations known as U.P. Cooperative Societies Employees Service Regulations, 1975. The Regulations 5 and 15 are being extracted below: “5. 10. By means of Notification No.7514-C (1)/XII-C-2-36 (3)-71, dated 31.12.1975 (published in U.P. Gazette Extraordinary dated 6-1-1976) the aforesaid regulations of 1973 after being rescinded were replaced by Regulations known as U.P. Cooperative Societies Employees Service Regulations, 1975. The Regulations 5 and 15 are being extracted below: “5. Recruitment.—(i) Recruitment for all appointments in a cooperative society shall be made through the Board whether the recruitment is : (a) direct, or (b) by promotion from employees already in the service of the society. (c) by taking on deputation or otherwise a person who is already in the service of any other society registered or deemed to have been registered under the Act. (ii) Notwithstanding anything in clause (i) no reference to the Board shall be necessary in the following cases : (a) when it is proposed to fill with the concurrence of the Registrar any post by means of deputation of a Government servant, or (b) when officiating promotion is made by the appointing authority from a lower rank to the next higher rank for a period not exceeding six months. (iii) The Board may pending selection, permit stop gap arrangements to be made by the appointing authority for such period as the Board may consider necessary. Intimation of such appointment shall be given to the Board within a month of such appointment. (iv) To facilitate the performance of the duties enjoined upon the Board under clause (i), every cooperative society shall communicate to the Board by 31st December every year the approximate number of vacancies likely to arise during the course of the next calendar year by reasons of creation of new posts, retirement, deputation or otherwise. (v) Notwithstanding anything contained in clause (i) recruitment to the post of Category IV employees mentioned in Regulation 6 shall be made by a selection committee consisting of (a) secretary of the appointing society, (b) a nominee of the Board who shall be the chairman of the selection committee, and (c) Assistant Registrar of the district concerned. (vi) Selection made by the Selection Committee referred to in clause (v) and appointments made on the basis thereof shall be provisional and be subject to the approval of the Board. (vi) Selection made by the Selection Committee referred to in clause (v) and appointments made on the basis thereof shall be provisional and be subject to the approval of the Board. (vii) Notwithstanding the provisions of clause (iv), a cooperative society in which appointment is to be made shall send to the Board a requisition in the form specified in Appendix ‘A’ at least three months before the vacancy is sought to filled up. (viii) In making recruitment to any post, the Board may require the appointing society or the society to which the appointing Society is affiliated to send one of its officers to the Board, and when the recruitment is to be made for a technical post or a post requiring specialized knowledge or skill, the Board may also request any appropriate institution or authority to depute a technical adviser to assist the Board.” “15 (i) No appointment shall be made except in the manner provided for in the regulations hereinbefore. Where recruitment through or with the approval of the Board is provided for in Regulation 5, no appointment shall be made except of the candidate and in the order mentioned in the list communicated by the Board. (ii) Subject to the provisions of clause (i), appointment shall be made by the Committee of Management of the Society or by such authority as may be specified in the bye-laws : Provided that the letter of appointment shall, in the case of Secretary, be issued by the Chairman, and in all other cases, it shall be issued by the Secretary of the Society, the letter of appointment shall contain the name of the post, place of posting, nature of appointment, such as regular or temporary, probationary period and security, if any, salary with scale and conditions referred to in Regulation 14 and the date by which he has to join.” 11. The Board through its letter No. 134/Mandal/76, dated 27-3-1976 directed that all the appointments made after 25-7-1972 of the candidates who had not been selected by the Board, be terminated. Such termination became the subject matter of challenge before this Court in Writ Petition No.235 of 1977 connected with writ petition Nos. The Board through its letter No. 134/Mandal/76, dated 27-3-1976 directed that all the appointments made after 25-7-1972 of the candidates who had not been selected by the Board, be terminated. Such termination became the subject matter of challenge before this Court in Writ Petition No.235 of 1977 connected with writ petition Nos. 224 and 240 of 1977 and a Division Bench of this Court while upholding the termination took the following view : “In the present case, the power of the Board is administrative and after the constitution of the Board, the power which the secretary enjoined under the bye-laws become subsurvient to the power conferred on the Board under Section 122 and the Board could, once they were invested with the power under Section 122, issue administrative direction for effective exercise of that power till such time the regulations were not framed.” 12. The Hon’ble Apex Court also in the case of Virendrapal Singh v. District Assistant Registrar, Cooperative Societies, Etah, 1980 UPLBEC 202, took the view that after constitution of Board and the issuance of administrative instructions some Cooperative Societies chose to make appointment, such appointments have necessarily to be held invalid. The Regulations do not empower the Committee of Management to make appointment usurping the power of Institutional Service Board. Paragraph 13 of the judgment being relevant is quoted below : “13. In some of cases it was urged that some persons who had been appointed before the Cooperative Society Employees Service Regulations, 1975 (made under Section 122 of the Act), had been illegally discharged by the Administrator. On a perusal of the relevant affidavits and counter affidavits, we find that their appointments were made after the constitution of the U.P. Cooperative Institutional Service Board in whom vested the power of recruitment of employees of Cooperative Societies under Section 122 of the Act. Pending the making of the U.P. Cooperative Societies Employees Service Regulations prescribing the method of recruitment etc. administrative instructions had been issued to all the Cooperative Societies that appointment to all posts in Cooperative Societies would be made by the Board. If despite the constitution of the Board and the issuance of administrative instructions some Cooperative Societies chose to make appointment, such appointments have necessarily to be held to be invalid. administrative instructions had been issued to all the Cooperative Societies that appointment to all posts in Cooperative Societies would be made by the Board. If despite the constitution of the Board and the issuance of administrative instructions some Cooperative Societies chose to make appointment, such appointments have necessarily to be held to be invalid. The fact that regulations had not been made when the appointments were made did not empower the Committee of Management to make the appointments usurping the power of the U.P. Cooperative Institutional Service Board. It appears that such persons as were appointed by the Committee of Management during the interregnum were given an opportunity to appear before the U.P. Cooperative Institutional Service Board and were screened, some were selected and some were not.” 13. This Court in the case of Jasraj Singh Sajwan and others v. District Cooperative Bank Ltd. Pauri Garhwal and others, (1991) 2 UPLBEC 998, has followed the judgment in the case of Virendrapal Singh (supra). The Division Bench of this Court as well as the Hon’ble Apex Court has approved the cut-off date 25.7.1972 and has held that promotions made after the said date were not permissible. Here, in the present case, as each one of the petitioner has been promoted after 25.7.1972, and the said promotion being made without there being any concurrence of the U.P. Cooperative Societies Institutional Service Board, no legal sanctity could be attached to the same, and the said promotions are, consequently, held to be invalid, and cannot be subscribed. 14. Much emphasis has been laid by the petitioners on the fact that no notice or opportunity had been provided for. Compliance of natural justice is not a rigid rule and same has to be seen in the facts and circumstances of each case. In the present case, from the own showing of petitioners their promotions have been made in flagrant violation of the instructions i.e. without taking prior permission from the U.P. Cooperative Institutional Service Board. Giving of opportunity to the petitioners in no way would improve the case of the petitioners. Hon’ble Apex Court in the case of Aligarh Muslim University v. Mansoor Ali, AIR 2000 SC 2783 has taken the view that absence of notice to show cause does not make any difference as on admitted or indisputable facts only one view is possible. Giving of opportunity to the petitioners in no way would improve the case of the petitioners. Hon’ble Apex Court in the case of Aligarh Muslim University v. Mansoor Ali, AIR 2000 SC 2783 has taken the view that absence of notice to show cause does not make any difference as on admitted or indisputable facts only one view is possible. Here, in the past, up to the level of Apex Court promotion/appointment made in by-passing the authority of the U.P. Cooperative Institutional Service Board has been deprecated and has not been approved, as such merely because no opportunity was provided, the same will make no difference in the facts of the present case. The promotions of the petitioners being made without prior concurrence of the U.P. Cooperative Institutional Service Board is unsustainable. Consequently, the order impugned is not liable to be interfered with. However, this fact has been admitted by Sri Kandarp Narain Mishra that after according promotion to the petitioners, matter has been referred to U.P. Cooperative Societies Institutional Service Board, but the Board has not taken any decision in regard to the same on account of pendency of present writ petitions. As far as this Court is concerned, it never restrained the U.P. Cooperative Societies Institutional Service Board from taking decision in the matter of promotion. The U.P. Cooperative Societies Institutional Service Board ought to have taken decision in the present case. However, as the matter is still pending, it is hereby directed that U.P. Cooperative Societies Institutional Service Board shall take decision in regard to promotion of petitioners who are still in service, within two months from the date of receipt of a certified copy of this order. It is made clear that the amount in question which has been paid to the petitioners pursuant to their continuance on promoted post on the strength of interim order of this Court, shall not be recovered from them. Hon’ble Apex Court in the case of State of U.P. and another v. Shiv Narain Upadhyaya, J.T. 2005 (6) SC 444 has taken the view that once on the strength of interim order an incumbent continued to function, then it would be inequitable to direct refund of salary. Hon’ble Apex Court in the case of State of U.P. and another v. Shiv Narain Upadhyaya, J.T. 2005 (6) SC 444 has taken the view that once on the strength of interim order an incumbent continued to function, then it would be inequitable to direct refund of salary. Similarly, in the case of Surya Deo Mishra v. State of U.P. and others, 2006(1) ESC 379 (All) (FB), similar view has been taken by a Full Bench of this Court that when amount in question has been paid to an incumbent under the interim order, the said amount should not be recovered/adjusted. On the principles laid down by the Hon’ble Apex Court and the Full Bench of this Court, as already directed above the amount paid to the petitioners is not liable to be recovered. However, continuance of petitioners qua promotional post shall abide by final order that may be passed by U.P. Cooperative Societies Institutional Service Board. 15. Learned Counsel for the petitioner has placed reliance on the judgment of Hon’ble Apex Court in the case of Nirmal Chandra Bhattacharya v. Union of India, 1991 Supp (2) SCC 363, for the proposition that no rule or order which is meant to benefit employees should normally be construed in such a manner as to work hardship and injustice specially when its operation is automatic and if any injustice arises, then it is primary duty of Court to resolve it in such manner that it may avoid loss to one without giving undue advantage to other. Said legal proposition is not disputed, but here the facts of case are all together different as pending the making of U.P. Cooperative Societies Employees Regulations, Administrative instructions had been issued forbidding appointments, including promotions and promotions/appointments made in breach of aforesaid directive have not been condoned by Division Bench of this Court and Hon’ble Apex Court. 16. Another judgment on which reliance has been placed in the judgment of Hon’ble Apex Court in the case of Bhagauti Prasad v. Delhi State Mineral Development Corporation, AIR 1990 SC 371 , for the proposition that once incumbents have been permitted to work for considerable length of time, it would be hard and harsh to deny them confirmation. 16. Another judgment on which reliance has been placed in the judgment of Hon’ble Apex Court in the case of Bhagauti Prasad v. Delhi State Mineral Development Corporation, AIR 1990 SC 371 , for the proposition that once incumbents have been permitted to work for considerable length of time, it would be hard and harsh to deny them confirmation. Said legal proposition is not disputed, however in the case of daily wagers, Hon’ble Apex Court in its latest pronouncement dated 10.4.2006 in the case of Secretary, State of Karnataka and others v. Umadevi and others for considering the matter of regularization of daily wagers working for more than ten years directed for consideration of regularization, but said benefit has not been extended qua daily wagers who continued to perform duties on the strength of interim order. Consequently, no benefit of continuance on the strength of interim order can be extended. Relevant extract of said judgment is being quoted below : “44. One aspect needs to be clarified, there may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa (supra), R.N. Nanjundappa (supra) and B.N. Nagarajan (supra) and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of Courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned vacant posts but not under the cover of orders of Courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed, the process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme 45. It is also clarified that those decisions which run counter to the principles settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents.” 17. Subject to observations made above, writ petitions are dismissed. Petitions Dismissed. ————