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2009 DIGILAW 2165 (RAJ)

Rajasthan State Co v. Shri K. S. Choudhary

2009-10-15

JAGDISH BHALLA, M.N.BHANDARI

body2009
JUDGMENT 1. - These three appeals are directed against the judgment dated 21.7.2001. Since all the appeals raise common grounds of challenge, thus appeals were heard together and decided by this common judgment. 2. The petitioners/non-appellants preferred a writ petition challenging the order of promotion of Shri B.S. Soyal promoting him to the post of Assistant Cooperative Education Officer (for short `the ACEO') and amendment dated 15.10.1994 amending Rajasthan State Cooperative Union Employees' Service Rules, 1982 (for short `the Rules of 1982'). A further challenge to the orders dated 11.11.1994 and 22.11.1994 was also made. By these two orders the post of Publicity Officer held by the petitioners/non-appellants was abolished and the petitioners were reverted to the post of Lecturer. The writ petition so preferred by the petitioners-non-appellants was allowed by the impugned order. 3. Matter in dispute mainly pertains to the promotion to the post of ACEO. Prior to 15.10.1994, the aforesaid post was to be filled from and amongst eligible Project Officer and Public Relation Officer. The criteria for promotion was seniority-cum-merit. An amendment in the Rules of 1982 was proposed by the Administrator of the Rajasthan State Cooperative Union (in short `the Cooperative Union'). The proposed amendment was approved by the Registrar of Cooperative Societies on 15.10.1994 and on the same date, DPC met and recommended promotion based on the amended Rules. As per the amended Rules, a candidate holding the post of Principal was made eligible for promotion and at the same time criteria for promotion was changed from seniority-cum-merit to merit alone. As result of the amendment in the Rules, Shri B.S. Soyal was also considered for promotion amongst other eligible candidates including few candidates holding the post of Principal and as B.S. Soyal was found to be meritorious candidate by the DPC, he was granted promotion. The writ petition was filed by the petitioners to challenge the various orders already indicated. Based on those challenges, learned Single Judge formulated certain questions for its decision and all those questions were thereafter answered in favour of the non-appellant-petitioners. 4. Learned counsels appearing for the appellants argued that amendment in the Rules of 1982 dated 15.10.1994 has wrongly been quashed by the learned Single Judge. Based on those challenges, learned Single Judge formulated certain questions for its decision and all those questions were thereafter answered in favour of the non-appellant-petitioners. 4. Learned counsels appearing for the appellants argued that amendment in the Rules of 1982 dated 15.10.1994 has wrongly been quashed by the learned Single Judge. As per the provisions of Rule 26 of the Rules of 1982, the Board of Directors of the Union is authorised to make amendment in the Rules with the prior approval of the Registrar. In the instant case, since the Board of Directors not existing and Administrator was looking after the affairs of the Cooperative Union, an amendment was proposed by the Administrator within his competence. Referring to Section 36 of the Rajasthan Cooperative Societies Act, 1965 (for short `the Act of 1965 (now repealed), it is stated that the Administrator is given all the powers of the Board of Directors, thus as per Act of 1965, the Administrator proposed an amendment in the Rules by which post of Principal to be made eligible for promotion to the post of ACEO and the said amendment was proposed in the month of December 1993. The precise reason for proposed amendment was that one Laxman Singh, who was working on the post of Principal was given promotion to post of ACEO in the year 1980 and he remained on the post of till the year 1993, thus for all those relevant years, a Principal itself was holding the post of ACEO. The Administrator taking not of the aforesaid fact treated it to be a case of bona fide error that the post of Principal was not printed in the Schedule/Rules for providing avenue of promotion to the post of ACEO. The aforesaid proposal remained under consideration with the Registrar because amendment in the Rules of 1982 can be made by the Board of Directors subject to prior approval of the Registrar. The Registrar approved those amendment on 15.10.1994 and accordingly on amendment of the Rules, the promotions were made on the same date. Amendment in the Rules cannot be said to be illegal for want of competence of the Administrator to propose amendment while exercising the powers of the Board of Directors in view of Section 36 of the Act of 1965. Amendment in the Rules cannot be said to be illegal for want of competence of the Administrator to propose amendment while exercising the powers of the Board of Directors in view of Section 36 of the Act of 1965. Even further proposal for the amendment in the Rules to change the criteria from seniority-cum-merit to merit was made on 13.9.1994 and then it was approved by the Registrar while dealing with the earlier proposed amendment. The change of criteria for promotion was proposed looking to the fact that it is the second highest post in the service. The amendment was made as per the provisions of the Act and the Rules, thus should not have been struck down on the ground of malice. The learned Single Judge treating it to be a case of malice, struck down the amendment in the Rules. To support the arguments, learned counsels for appellants referred judgment in the cases of K. Nagraj v. State of Andhra Pradesh, reported in (1985) 5 SCC 523 wherein it was held that an amendment cannot be struck down on the ground of mala fides. 5. The other argument of learned counsels for appellants is that the proposal for amendment in the Rules was made in the month of December 1993 and it was approved after a period of ten months i.e. On 15.10.1994, thus there was no haste in carrying out the amendment in the Rules so as to make out a case of ulterior motive or of malice, in fact, DPC was to meet on 15.10.1994 for making promotion to the post of ACEO and since the amendment in the Rules was also approved by the Registrar on the same date, the DPC made its recommendation as per the amended Rules. The action of the DPC cannot be said to be unusual moreso when nominee of the Registrar was one of the member of the DPC, hence, knowing about the approval of the amendment, the DPC considered all the eligible candidates including the petitioner/non-appellant. As per the criteria laid down by the DPC to select meritorious candidates, the only candidate found meritorious was Shri B.S. Soyal and accordingly promotion was recommended. As per the criteria laid down by the DPC to select meritorious candidates, the only candidate found meritorious was Shri B.S. Soyal and accordingly promotion was recommended. It is urged by learned counsels for appellants that the learned Single Judge wrongly held that the DPC should not recommended a candidate for promotion in anticipation of the amendment in the Rules whereas the Rules were already amended by the time DPC took place. 6. The facts pertaining to the eligibility of the candidate in reference to Rule 8 of the Rules of 1982, it is stated that Rule 8 of the Rules of 1982 no doubt provides the eligibility of the candidate to be determined on the first day of the calender year. In case an amendment is brought subsequent to the first date of the calender year, then such amendment cannot be ignored even if eligibility of the candidate is to be looked into on 1st January of the calender year. B.S. Soyal was thus rightly considered eligible for promotion even in reference to Rule 8 of the Rules of 1982 after considering his candidature with the changed criteria of promotion. 7. According to learned counsels for appellants, learned Single Judge has unnecessarily given emphasis on certain facts to treat it to be a case of malicious action on the part of the Administrator and for that reason only the order of reversion of the petitioners/non-appellants has been set aside. In fact, no work on the post of Publicity Officer was existing and even the petitioners had admitted that he was not discharging any duties as Publicity Officer, hence, abolition of the such post and consequential reversion of the petitioner cannot be held to be illegal rather learned Single Judge unnecessarily connected the event of promotion of Shri B.S. Soyal with that of action of the abolition of the post and reversion of the petitioner thereupon. 8. Learned counsel appearing for the Cooperative Union further urged that Cooperative Union is a small organization, thus availability of the record of all the candidates so eligible for the promotion is not such an issue on which any emphasis can be made. 8. Learned counsel appearing for the Cooperative Union further urged that Cooperative Union is a small organization, thus availability of the record of all the candidates so eligible for the promotion is not such an issue on which any emphasis can be made. In fact, when the Cooperative Union could not know about the approval of the amendment, immediately record of all the eligible candidates was placed before the DPC, thus action of the respondents was in all fairness and there was no ulterior motive either in carrying out the amendment or any action in regard to the promotion. Reference of the judgment in the case of Jt. Registrar of Cooperative Societies, Kerala v. T.A. Kuttappan and other, reported in 2000 WLC (SC) Civil 550 : AIR 200G SC 2378 has been made to show that even the Hon'ble Apex Court decided matter considering the powers of the Administrator of the Cooperative Societies and it is only in those cases where the list of members was changed just prior to election of the Committee that the action of the Administrator was held to be beyond its power as given under the Act. Referring to the judgment of Orissa High Court in the case of Rahas Bihar Dass v. State of Orissa, reported in AIR 1995 Orissa 23 , it is submitted that the facts of the aforesaid case are not applicable to the present matter, thus it is prayed that the judgment of the learned Single Judge may be set aside. 9. Learned counsel appearing for petitioners/non-appellants, on the other hand, supported the judgment of the learned Single Judge. Referring to Rule 26 of the Rules of 1982, it is urged that it is only the Board of Directors, who is competent to make the amendment In the Rules with prior approval of the Registrar. The Administrator cannot act as a Board of Director and if Administrator is given certain powers under Section 36 of the Act of 1965, then it is only to carry out routine work of the Cooperative Societies and not to take a policy decision such as amendment in the Rules, thus the proposed amendment in the Rules was beyond the competence of the Administrator, it is further urged that material amendment in the rules was proposed and brought is haste and that too, when the elected board was to take charge soon. Averting to the facts of this case, it is stated that there are two amendments in the Rules of 1982 pertaining to promotion for the post of ACEO. The first amendment was to treat the Principal as eligible for promotion to the aforesaid post and second to change the criteria from seniority cum merit to merit. So far as the first amendment is concerned, it is said to have been proposed in the month of December 1993 but so far as the second amendment is concerned, it was proposed in the month of September 1994 i.e., just before the election of the Committee and in fact, the Board of Director took charge on 19.10.1994 itself i.e., just after the four days of the amendment and the promotion. For the aforesaid reason, even the Chairman of the new Board had not supported the previous action, in view of the aforesaid facts, learned counsel for non-appellants placed reliance on the judgment of Rahas Bihgr Dass (supra) and other judgment of the Hon'ble Apex Court reported in AIR 1997 SC 2925 , K. Shantharaj v. M.L. Nagaraja wherein the action of the Administrator to take a policy decision was held to be beyond its competence. Coming to the issue of malice, it is stated that every action of the Cooperative Union was to benefit B.S. Soyal. Firstly the post of Principal was proposed to be inserted in the Schedule for providing avenue of promotion to the post of ACEO and the matter did not end there because even criteria from seniority cum merit to merit was changed though earlier criteria was prevalent since inception of the Rules. Criticising the justification of the aforesaid amendment, it is stated that ; case of Laxman Singh has been referred by the Cooperative Union without clarifying that said Laxman Singh was promoted to the post of ACEO in the year 1980 when the Rules of 1982 were not even existing. An event prior to bringing of the Rules cannot be taken as the basis to give justification for amendment. An event prior to bringing of the Rules cannot be taken as the basis to give justification for amendment. This is moreso when Laxman Singh was promoted on the post ) of ACEO prior o framing of the Rules of 1982, yet while framing rules, the post of Principal was not provided avenue of promotion to the post of ACEO, thus it cannot be said to be a printing mistake in that regard, it shows that deliberately the post of Principal was not provided avenue of the promotion to the post of ACEO, hence, only justification attached for proposed amendment in the Rules became false. The Hon'ble Single Judge time and again asked appellants to bring the record but same was not produced stating that it was taken away by the then Chairman. This is moreso when the writ petition was filed just immediately after the order of promotion and knowing about the controversy raised. It was incumbent on the part of the Cooperative Union to keep its record safely. It is otherwise a case where the elected Board took charge just after four days of promotion and the Chairman of the Board, namely, Mr. Abu Saria filed an affidavit stating that reply to the writ petition has been filed without showing it to him and without taking his approval. The Court vide its order dated 26.2.2001 directed the Cooperative Union to lodge an FIR but despite of the aforesaid direction, no FIR was lodged which clearly shows that so-called lose of original file record was nothing but an effort to deny access of the file to learned Single Judge because learned Single Judge very specifically asked that even if the amendment is brought on 15.10.1994 i.e., on the date of DPC, the DPC could not have the record of candidates, who were not eligible just a prior to the date of DPC. In fact, the proposal of holding DPC along with the details of the eligible candidates and their service record is always prepared few days prior to holding of the DPC. Since the aforesaid aspect was going against the Cooperative Union, thus deliberately record was not produced and if at all it was taken away by the then Chairman, no justification could be given by the Cooperative Union as to why FIR was not lodged against him moreso when a Court order exits in that regard. Since the aforesaid aspect was going against the Cooperative Union, thus deliberately record was not produced and if at all it was taken away by the then Chairman, no justification could be given by the Cooperative Union as to why FIR was not lodged against him moreso when a Court order exits in that regard. According to learned counsel tor non-appellants, this itself is sufficient to show the conduct of the Cooperative Union. 10. Referring to Rule 8 of the Rules of 1982, it is urged that when the Rules provide specific date for determination of eligibility of a candidate, a different date cannot be taken by the respondents. It is a case where vacancy on the post of ACEO took place prior to 1.1.1994, thus 1st January of the year concerned becomes crucial date for judging eligibility of the candidate. As on 1.1.1994 the Principals were not eligible for promotion to the post of ACEO, hence, contrary to the Rules, an eligibility list was prepared determining the eligibility to be on the date of DPC because Rule so amended was not given retrospective effect and is being subordinate legislation cannot be taken otherwise as retrospective unless specifically provided. Treating B.S. Soyal as eligible candidate as on 1.1.1994 contrary to the Rules then existing is sufficient to show as to in what manner promotion has been made, hence, even if the amendment is assuming to be valid, B.S. Soyal could not have been given promotion contrary to Rule 8 of the Rules of 1982. Reference of the judgment in the case of State of Rajasthan v. R. Dayal, reported in (1997) 10 SCC 419 has been made to assist this Court wherein a rule was amended after 1st April of the year concerned i.e., the crucial date for determination of the vacancy, the Hon'ble Apex Court held that if any amendment is made during the relevant year of promotion, the amendment can be given effect for promotion only if vacancy arose subsequent to the amendment and not otherwise. Referring to the facts of this case, it is stated that vacancy took place in the year 1993 when Laxman Singh left that post and amendment having brought on 15.10.1994 could not have been given effect for promotion in the light of the aforesaid judgment. 11. Referring to the facts of this case, it is stated that vacancy took place in the year 1993 when Laxman Singh left that post and amendment having brought on 15.10.1994 could not have been given effect for promotion in the light of the aforesaid judgment. 11. It is lastly urged that even change of the criteria from seniority cum merit to merit was not proposed in the month of December 1993, but was proposed in the month of September 1994 i.e., at the time when ejection of the Cooperative Union was due and in fact immediately thereafter election took place and the Board had taken charge on 19.10.1994, hence, in the manner the amendment in the Rules for change of criteria from seniority cum merit to merit was brought is another issue which shows the malafide of the appellants. This is moreso when even the DPC evolved such a criteria to judge merit where they may select only Mr. B.S. Soyal as the meritorious candidate, if the criteria o* merit as prevalent in the State of Rajasthan is taken note of, then candidate having at least five `very good' or `outstanding' APRs out of last seven APRs as determined as meritorious candidate but herein DPC evolved its own criteria for judging the merit and this was contrary to the past practice of the Cooperative Union for determination of the merit of a candidate for promotion. These supporting facts are sufficient to show that promotion was given to B.S. Soyal in a planned manner denying such benefit to the eligible candidate. Learned counsel further made submission in response to the arguments made by learned counsels for appellants, which would then be dealt with while discussing the arguments for drawing our conclusion. 12. Learned counsel for the appellants in rejoinder stated that petitioner/non-appellant having retired, thus no purpose remains to maintain the judgment of the learned Single Judge, hence, it was prayed that looking to the aforesaid aspect, the judgment of the learned Single Judge may be set aside. 13. We have heard the learned counsels for the parties and perused the record carefully. 14. The first issue raised pertains to the competence of the Administrator to make amendment in the Rules of 1982. 13. We have heard the learned counsels for the parties and perused the record carefully. 14. The first issue raised pertains to the competence of the Administrator to make amendment in the Rules of 1982. It is mainly contended by the appellants that as per Section 36 of the Act of the Act of 1965, the Administrator can exercise all the powers of the Board of Directors hence, Administrator was competent to make amendment in the Rules subject to prior approval of the Registrar. In the present matter, the amendment in the Rules of 1982 was sought for the reason that the post of Principal could not be included due to some mistake while preparing the Rules. Moreso when, one Laxman Singh was holding promotional post in dispute despite of he being a Principal. The other argument raised by the appellants is that the amendment in the rules cannot be struck down on the ground of malafide and for which reference of the judgment of the Hon'ble Supreme Court has also been given. 15. The side opposite referring to Section 36 of the Act of 1965 and judgment of the Hon'ble Apex Court canvassed the argument that the Administrator cannot take a policy decision, but is required to carry day to day work of the Society, which are of routine nature. To appreciate the argument, it is necessary to quote Section 36 of the Act of 1965, as under- "Section 36. Removal of committee or member thereof.-(1) If, in the opinion of the Registrar, the committee of an co-operative society or any member of such committee persistently makes default or is negligent in the performance of the duties imposed on it or him by this Act or rules or the bye-laws or commits any act which is prejudicial to the interest of the society or its members, or willfully disobeys directions issued by the Registrar for the purpose of securing 1 proper implementation of co- operative production and other development programmes approved or undertaken by the Government, or is otherwise not discharging its or his functions properly, the Registrar may, after giving the committee or the 5 member, as the case may be, a reasonable opportunity to state its or his objections, if any, by order in writing (a).... (b).... 1A (a).... (b).... (c).... (d).... (e).... IB....... (b).... 1A (a).... (b).... (c).... (d).... (e).... IB....... (2) The administrator so appointed [or the committee so nominated as aforesaid] shall subject to the control of the Registrar and to such instructions as he may from time to time give, have powers to perform all or any of the functions of the committee or of 2 any officer of the society and take all such action as may be required in the interest of the society. (3)..... (4)..... (5)..... (6)..... (7)..... (8)..... (9)......" 16. Perusal of the aforesaid provision shows that the Administrator is to : look after the work of the Cooperative Society subject to control of the Registrar and as per such instruction as may be given from time to time. The provisions of Section 36 of the Act of 1965 does not give absolute power to the Administrator to work in place of the Board of Directors. Since the Administrator has to perform work under the control of the Registrar and as per the instruction of the Registrar given from time to time. Thus, certain conditions have been imposed regarding the powers of the Administrator working in place of the Board of Directors. Every word of the Statute has to be given due meaning and cannot be ignored casual. Looking to the aforesaid, it is necessary to deal with the issue as to whether the Administrator was competent to bring amendment in the Rules and further more as to whether it was in the interest of the Society or not. The factual aspect given by the appellants to justify the amendment is that one Laxman Singh holding the post of Principal was given promotion to the post of ACEO and he remained on that post for a period 13 years, thus it was taken to be a case of an error while making the Rules by not mentioning the post of Principal for providing avenue promotion to the post of ACEO. If we looks into the aforesaid factual aspect, then it reveals that Laxman Singh was given promotion to the post of ACEO in the year 1980 when the Rules were not existing. The Rules were brought only in the year 1982, this it cannot be accepted that it is a case of an error while making the Rules of 1982. If we looks into the aforesaid factual aspect, then it reveals that Laxman Singh was given promotion to the post of ACEO in the year 1980 when the Rules were not existing. The Rules were brought only in the year 1982, this it cannot be accepted that it is a case of an error while making the Rules of 1982. Even for the sake of argument, it assumed to be a case of an error i 3 appellants failed to justify as to why such error was prolonged clearly nor for a period of 13 years. Thus, the very basis taken for making the amendment in the Rules is not found to be justifiable, it is, however necessary to consider further that an amendment can be brought without justifying the reason for judicial review, hence if we ignore the factual aspect forming basis for amendment, question comes as to whether the Administrator was competent to make the amendment in the Rules of 1982. The factual aspect in that regard is divided in two parts because the amendments in the Rules of 1982 have been proposed twice. First proposal for the amendments in the Rules was made in the month of December 1993 wherein it was proposed to include post of Principal to provide avenue of promotion to the post of ACEO. The matter did not end there. The second amendment was proposed just before the election of the Society, in the second amendment, the criteria for promotion from seniority cum merit to merit was proposed. The appellants have failed to justify as to why the second amendment was proposed just before the election because proposal for it was sent on 13.9.1994 i.e., just before the election. If we look at the various judgments of the High Court as well as Hon'ble Apex Court, then it reveals that the powers of the Administrator have not been taken to be absolute. In the case of K. Shantharaj v. M.L. Nagaraja, reported in AIR 1997 SC 2925 , the powers of the Administrator have been defined. In the case of Jt. Registrar of Cooperative Societies, Kerala v. T.A. Kuttappan and others (supra), the Hon'ble Apex Court reiterated the same proposition as was made in the earlier judgment referred to above. In the case of K. Shantharaj v. M.L. Nagaraja, reported in AIR 1997 SC 2925 , the powers of the Administrator have been defined. In the case of Jt. Registrar of Cooperative Societies, Kerala v. T.A. Kuttappan and others (supra), the Hon'ble Apex Court reiterated the same proposition as was made in the earlier judgment referred to above. In those cases, the issue before the Hon'ble Apex Court was in regard to the powers of the Administrator to enroll new members so as to change the position of the electoral, in para 7 of the aforesaid judgment, following observations were made by the Hon'bie Apex Court, which are quoted hereunder for ready reference - "7. If we carefully analyse the provisions of the Act, it would be clear that the administrator or a Committee appointed while the Committee of Management of the Society is under supersession cannot have the power to enroll new members and such a question ought not to be decided merely by indulging in an exercise on semantics in ascertaining the meaning of the expression have "power to exercise all or any of the function...". Whether an authority is discharging a function or exercising a power will have to. be ascertained with reference to the nature of the function or the power discharged or exercised in the background of the enactment. Often we do express that functions are discharged or power exercised or vice versa depending upon the context of the duty or power enjoined under the law if the two expressions are inter-changeable. What is necessary to bear in mind is that nature of function or power exercised and not the manner in which it is done. Indeed this Court, while considering the provisions of Section 30-A of the Karnataka Act, which enabled a Special Officer appointed to exercise and perform all the powers and functions of the Committee of Management or any officer of the Co-operative Society (and not merely functions), to the view that the administrator or a special officer can exercise powers and functions only as may be required to the interests of the Co- operative Society. In that context, it was stated that he should conduct elections as enjoined under Saw, that is, he is to conduct elections with the members as on the rolls and by necessary implication, he is not vested with power to enroll new members of the society. In that context, it was stated that he should conduct elections as enjoined under Saw, that is, he is to conduct elections with the members as on the rolls and by necessary implication, he is not vested with power to enroll new members of the society. We may add that a Co-operative Society is expected to function in a democratic manner through an elected Committee of Management and that Committee of Management is empowered to enroll new members. Enrollment of new members would involve alteration of the composition of the society itself and such a power should be exercised by an election Committee rather than by an administrator or a Committee appointed by Registrar while the Committee of Management is under supersession. This Court has taken the view, it did, bearing in mind these aspects, though not spelt cut in the course of the judgment. Even where the language of Section 30-A of the Karnataka Act empowered a special officer to exercise and perform all the powers and functions of Committee of Management of a Co-operative Society fell for consideration, this Court having expressed that view, we do not think, there is any need to explore the difference in the meaning of the expressions "have power to exercise all or any of the functions of the Committee" in the Act and "exercise ail or any of the functions of the Committee" in the Karnataka Act as they are not different and are in substance one and the same and difference in language will assume no importance. What is of significance is that when the Committee of Management of the Co-operative Society commits any default or is negligent in the performance of the duties imposed under the Acts, rules and the bye-laws, which is prejudicial to the interest of the Society, the same is superseded and an administrator or a Committee is imposed thereon. The duty of such a Committee or administrator is to set right to default, if any, and to enable the society to carry on its functions as enjoined by law. Thus, the role of an administrator or a Committee appointed by the Registrar while the Committee of Management is under supersession, is, as pointed out by this Court, only to bring on an even keel a ship which was in doldrums. Thus, the role of an administrator or a Committee appointed by the Registrar while the Committee of Management is under supersession, is, as pointed out by this Court, only to bring on an even keel a ship which was in doldrums. If that is the objective and is borne in mind, the interpretation of these provisions will not be difficult." 17. According to learned counsel for appellants, the issue in those cases was regarding the enrollment of new members so as to change the composition of electoral before the election. In the instant case, the issue is quite different, thus according to learned counsel for appellants, the judgments referred to above have no application. Even referring to the judgment of the Orissa High Court in the case of Rahas Bihari Das and others v. State of Orissa and others, reported in AIR 1995 Orissa 23 , it is stated that the controversy therein was also similar as decided by the Hon'ble Apex Court. Thus, according to learned counsel for appellants, the learned Single Judge has wrongly applied the ratio of the judgment given by the Orissa High Court in the case of Rahas Bihari Das (supra). It is not in dispute that the facts involved in ail the cases mentioned above were in regard to the enrollment of new members of the Societies by the Administrator. If we go with the reasonings given in those judgments, it comes out that the Administrator cannot take a policy decision on certain aspects. If we see the facts of this case, the Administrator has take a policy decision to amend the Rules, that too, the second proposed amendment in the Rules was made just before the election. The perusal of Section 36 of the Act of 1965 shows that the Administrator has to work under the control of the Registrar has to work under the control of the Registrar and as per the instruction given from time to time. The appellants have failed to show that any instruction was issued by the Registrar to carry out a policy decision of the nature involved in the present case or it was so required in the interest of the Society. In the absence of such instruction, the Administrator was under an obligation to carry out the work of the Society without changing either the Rules or composition of the electoral or any such matter. In the absence of such instruction, the Administrator was under an obligation to carry out the work of the Society without changing either the Rules or composition of the electoral or any such matter. The Administrator has to carry out the work as per system existing without making a change indicated herein unless it is shown that a change is in the interest of the Society. The competence of the Administrator as per Section 36 of the Act of 1965 is not absolute. In our view, the Administrator acted beyond its competence to make proposal for the amendment in the Rules, that too, second proposal for amendment to change the criteria for promotion from seniority cum merit to merit just before the election. The appellants failed to give any justification as to why the proposal for second amendment was made by the Administrator when the new Board of Directors was to be elected and to take charge within a period of few days after the proposed amendment. The similar aspect was taken into consideration by the Hon'ble Apex Court in the judgments referred. When just before the election a policy decision was taken by the Administrator and it was held to be illegal, thus we hold that the Administrator acted beyond his competence as provided under Section 36 of the Act of 1965 to make the amendment in the Rules and accordingly the amendment in the Rules cannot be held to be valid. It is not shown to have been done in the interest of the Society. Though we hold that an amendment cannot be struck down or held to be invalid on the ground of malafide, thus to that extent, we accept the argument of the counsel for the appellants. 18. On drawing the conclusion that the Administrator acted beyond its powers conferred under Section 36 of the Act of 1965, nothing more in required to be discussed further. We will, however consider all the aspects because those aspects are quite material, rather goes in the root of the matter. Even if the amendment in the Rules of 1982 would have been held to be valid, other aspects are relevant to consider as to whether the promotion of the appellant - B.S. Soyal is valid and is as per rules. Rule 8 of the Rules, 1982 is quite material, thus quoted hereunder- "8. Even if the amendment in the Rules of 1982 would have been held to be valid, other aspects are relevant to consider as to whether the promotion of the appellant - B.S. Soyal is valid and is as per rules. Rule 8 of the Rules, 1982 is quite material, thus quoted hereunder- "8. Procedure for Recruitment by promotion : (i) Criteria for Promotion : For purposes of recruitment to the category of employees for promotion a selection strictly on seniority-cum-merit or merit alone, shall be made among all the persons eligible for such promotion under the provisions of these rules on the first day of calender year in which promotions are considered. (ii) No employee shall be considered for promotion unless he is substantively appointed and confirmed on the next lower post. If no employee substantive in next lower post is eligible for promotion, employees who have been appointed on such post on officiating basis after selection in accordance with one of the methods of recruitment, may be considered for promotion on officiating basis only in the order of seniority in which they would have been, had they been substantive on the said lower post. (iii) The promotion Committee will consist of following : (1) Chairman (2) Registrar or his nominee (3) Co-operative Education Officer (Member Secretary) For the post of Chief Executive, the Committee shall be consist of the following : (1) Chairman (2) Sp. Secretary (Co-operation) (3) Expert from University of Rajasthan/Head of Economics/Commerce (4) Registrar (Member Secretary) (iv) Procedure for selection : As soon as it is decided that a certain member of vacancies in any category of employees mentioned in the Schedule will be filled by promotion, the Chief Executive Officer shall prepare a list of all the members of category of employees from which promotion are to be made, who are eligible for promotion on the higher post and shall forward it to the promotion Committee together with the confidential rolls and personal files of the persons included in the list. (v) The promotion Committee shall consider the cases of all the persons included in the list interviewing such of them, as they may deem necessary and shall select number or candidates equal to number of vacancies likely to be filled by promotion. The names of candidates so selected shall be arranged in a list in order or preference. (v) The promotion Committee shall consider the cases of all the persons included in the list interviewing such of them, as they may deem necessary and shall select number or candidates equal to number of vacancies likely to be filled by promotion. The names of candidates so selected shall be arranged in a list in order or preference. (vi) The Committee shall also prepare a separate reserve list containing names of persons half of the number of vacancies or at least one third who may be considered suitable to fill vacancies which are likely to occur till the next meeting of the committee on temporary or officiating basis and the list so prepared shall be revised every year and shall remain in force until it is so reviewed or revised. The name of the candidates selected as suitable shall be arranged in the Order of seniority." 19. A perusal of the aforesaid Rule shows that promotion would be made from and amongst all the persons eligible on first day of calender year in which the promotions are considered. According to Rule 8 of the Rules of 1982, the crucial date for consideration of eligibility is fixed as first day of calender year 1 e. 1st January of the year of promotion. In the instant case, the promotion to the post of ACEO under challenge has been made in the year 1994 as vacancy on the post arose in the year 1993. If the eligibility of the candidate is considered as on 1st February, 1994 in the present matter, then definitely appellant-B.S. Soyal was not eligible for promotion because the post of Principal was not included for providing avenue promotion to the post of ACEO, yet the appellant was considered to be eligible for promotion in ignorance of the Rule 8 of the Rules of 1982. In the case of State of Rajasthan v. R. Dayal (supra), the Hon'ble Apex Court held that if any amendment is made under the Service Rules, then those amendment can be given effect to even for the relevant year of promotion provided vacancy arose after the amendment. In the instant case, the vacancy to the post of ACEO arose much prior to amendment, thus in view of the aforesaid judgment of the Hon'ble Apex Court, such a vacancy could not have been filled as per the amended rules for the relevant year of 1994. In the instant case, the vacancy to the post of ACEO arose much prior to amendment, thus in view of the aforesaid judgment of the Hon'ble Apex Court, such a vacancy could not have been filled as per the amended rules for the relevant year of 1994. This is moreso when the amendments in the rules have not been given retrospective effect being subordinate legislation. The appellant failed to explain as to how B.S. Soyal was held eligible for promotion as on 1.1.1994 when the post of Principal was not provided with avenue of promotion to the post of ACEO as on the crucial date. Admittedly, B.S. Soyal was holding the post of Principal. We, thus find that even if the amendment in the Rules would have been held to be valid, the promotion of B.S. Soyal is in violation of the Rules of 1982. This is only one aspect of the matter pertaining to the promotion. The second aspect pertaining to the promotion is also material in view of the arguments of the parties. From the facts available on record, it comes out that the amendment in the Rules was finally approved by the Registrar on 15.10.1994, on which date the Departmental Promotion Committee (for short `D.P.C') made its recommendations for promotion. It is stated that meeting of the D.P.C. was scheduled to be held on 10.30 A.M. of the day concerned, thus it was not possible for the D.P.C. to give effect to the amendment. According to the appellants, meeting of the D.P.C. was held later then the approval of the amendment by the Registrar. One of the members of the D.RC. was nominee of the Registrar, thus the said member was knowing about the amendment in the Rules, thus candidature of B.S. Soyal was rightly considered on the date of amendment in the Rules itself. So far as the service record of B.S. Soyal and other candidates is concerned, learned counsel for the appellants submits that its being a small organization, the record of the candidates who became eligible pursuant to the amendment was sent on the same day. So far as the service record of B.S. Soyal and other candidates is concerned, learned counsel for the appellants submits that its being a small organization, the record of the candidates who became eligible pursuant to the amendment was sent on the same day. To see as to whether factual statement of the appellants is correct or not, learned Single Judge called for the record of the case because it is generally seen that when the D.P.C. has to meet on a particular date for making recommendations for promotion, preparation of the list of eligible candidates alongwith collection of their service record is done in advance i.e. at least few days prior to the D.RC. In these circumstances, it was necessary for appellants to produce the record to substantiate the factual aspect. From the perusal of the judgment of the learned Single Judge, it comes out that despite of direction, the record was not produced. The appellants stated that record was taken away by the then Chairman. Learned Single Judge then issued direction to lodge an FIR because it becomes a case of theft or at least a serious matter of taking away the record. Despite of the direction of the learned Single Judge, the appellants did not lodge any FIR. During the course of arguments, this Court asked to the learned counsel for appellants as to why the order of the learned Single Judge was not carried out, no explanation could be given. When the seriousness attached to the order was asked, learned counsel for appellants fairly conceded that no FIR was lodged despite of the order of the learned Single Judge. This is quite a serious issue in the facts and circumstances of the case. The Cooperative Societies has failed to carry out the direction of the learned Single Judge, thus in the absence of production of the record and for non-compliance of the order of the learned Single Judge, the Court has to draw adverse inference against the appellants. The burden to substantiate the factual aspect was on the appellant-Cooperative Society which they failed to discharge. The burden to substantiate the factual aspect was on the appellant-Cooperative Society which they failed to discharge. In the absence of the material to prove the fact so stated by the appellant Cooperative Society, we have to go not only with the general perception of the fact that the list of the eligible candidates alongwith the record is prepared and sent to the D.P.C. at least a day prior to the date of the D.P.C. The aforesaid general perception has to be taken in view of the adverse inference drawn against the appellant Society who failed to produce the record despite of the order of the Court. In this case, the amendment was made on 15.10.1994 and on the same day, the D.P.C. made its recommendations for the promotion by including even candidates who were not eligible for promotion a day before the date of the D.RC. Thus, in view of the above, we cannot accept the plea taken by the appellants that Cooperative Society being a small organization, the records of the candidates becoming eligible on the day of the D.P.C. were sent rather once adverse inference is drawn, as despite of the direction of the learned Singe Judge, record was not produced, the aforesaid argument of the learned counsel for appellants cannot be accepted. Thus, in the manner exercise for promotion has been undertaken, same speaks volumes against the appellant-Cooperative Society. This is more so when the elected Chairman submitted an affidavit stating that even reply to the writ petition was filed without his approval. The conduct of Officer of the Cooperative Society in such a matter cannot be appreciated. 20. The further issue comes as to if by virtue of amendment, criteria from seniority cum merit to merit was changed, how the merit is to be judged. No instruction was issued by the Cooperative Society to lay down the criteria for judging the merit of the candidate and it is the D.P.C. itself evolved the mechanism to judge the merit. If the general instruction applicable in the State of Rajasthan is looked into, then a candidate used to be adjust meritorious when he is having outstanding or five very good APRs out of seven. This was the position existing at the time of the promotion. If the general instruction applicable in the State of Rajasthan is looked into, then a candidate used to be adjust meritorious when he is having outstanding or five very good APRs out of seven. This was the position existing at the time of the promotion. The appellants in this case had judged B.S. Soyal to be a meritorious candidate having four very good or outstanding APRs and it has been submitted that the aforesaid mechanism was evolved by the D.P.C. itself. During the course of arguments, learned counsel for appellants was asked as to whether that was the criteria adopted for judging the merit for all the posts where the promotions are to be made based on the criteria of merit. The aforesaid question was asked for the reason that Rule 8 of the Rules of 1982 provides even promotion on merit. Learned counsel for appellants stated that promotion on the basis of merit has been made on the other post, but he cannot state as to what is the criteria adopted for the same. Learned counsel for the respondents, however, stated that as and when promotion has been made on merit by the Cooperative Society, only candidates having five outstanding or very good APRs out of seven were given promotion. If that is so, then even the criteria laid down by the D.P.C. is contrary to the criteria adopted by the Cooperative Society in past. Deviation thereof is not justified by the appellant-Cooperative Society. Thus, we hold that even if the issue as already discussed by us, would have been decided in favour of the appellant-Cooperative Society, the promotion of B.S. Soyal is not justified having only four outstanding/very good APRs out of the seven. We accordingly hold that even if all the issues are decided in favour of the appellant-Cooperative Society, if promotion is given to B.S. Soyal with a different criteria, than adopted by the Cooperative Society in past, same is not justified or legal. The Cooperative Society is thus directed to look into the matter and if in past, the Cooperative Society was made promotion based on the merit and therein candidates with less than five outstanding or very good APRs were adjudged as meritorious candidates, then the present issue will not go against the appellant-Cooperative Society. The Cooperative Society is thus directed to look into the matter and if in past, the Cooperative Society was made promotion based on the merit and therein candidates with less than five outstanding or very good APRs were adjudged as meritorious candidates, then the present issue will not go against the appellant-Cooperative Society. This observation and direction have been made for the reason that learned counsel for the appellants has failed to disclose the criteria adopted by them in past while making the promotion based on merit. 21. The appellants further urged that even non-appellant K.S. Chaudhary was not eligible for the promotion on the post of ACEO as he was not holding the required post. On asking as to whether this issue was raised before the learned Single Judge, it was fairly conceded that the said issue was not raised before the learned Single Judge. Hence, it was submitted that the appellant do not press the aforesaid aspect. 22. Now comes to the issue of reversion of the non- appellant. It is seen that the order of reversion has been struck down by the learned Single Judge holding it to be a malafide act of the respondents, apart from the fact that the post of Publicity Officer was created under the Rules, hence, taken it to be a statutory post, without amendment in the Rules (Schedule), it could not have been abolished. So far as the issue of abolition of the post is concerned, since existence of the post is under the Schedule appended to the Rules, thus it could not have been abolished in the manner it is done by the respondents. Therefore, abolition of the post cannot be held to be legal. The reversion of non-appellant- K.S. Chaudhary cannot be said to be malafide inasmuch as if abolition of the post could have been held to be valid, consequence has to follow which is nothing but reversion. Thus, the reversion of non-appellant-K.S. Chaudhary cannot be said to be suffered from malafide and to that extent finding of learned Single Judge cannot be upheld but for the reason that abolition of the post has already been held to be illegal and in reference to the judgment of the Hon'ble Apex Court in the case of N.S.K. Nayar & Ors. v. Union of India & Ors., reported in AIR 1992 SC 1574 , the non-appellant cannot be held to officiate the post on temporary basis or otherwise when the non- appellant is holding the post since long. Reference of the aforesaid judgment has also been given by the learned Single Judge, hence, we conclude the issue by holding that the finding of the learned Single Judge holding absolution of the post to be illegal suffers from no error and to that extent the finding is upheld but the finding on the issue of reversion on the ground of malafide cannot be accepted and to that extent the findings are not upheld but when abolition itself has been held to invalid, reversion based on abolition cannot be maintained. The outcome of the aforesaid is that abolition as well as reversion as a consequence thereof are held to be Invalid but reversion is not set aside on the ground of malafide. 23. For the reasons discussed above, we do not find any substance in these appeals and accordingly all the three appeals are dismissed. Appellant - B.S. Soyal is holding the post for last many years, thus no recovery should be effected against him, if he is reverted to the post of Principal. It is made clear that B.S. Soyal would otherwise be entitled for promotion if the post of Principal is having other hierarchy of the promotion. The Board of Directors of the Cooperative Society would further be at liberty to amend the Rules, if so desired and this judgment will not come in their way because the amendments have been set aside on the ground of competence of the Administrator and not of the Board of Directors, if the amendment is made, it can follow with consequential action. Direction of the learned Single Judge to fill up the post of ACEO as per the Rules is upheld in the meanwhile and so as the order holding the reversion of the non-appellant to be illegal with all consequences. The order of the cost is also upheld for the reason given by the learned Single Judge, however, the cost of these appeals is made easy.Appeal dismissed - Recovery against B Restrained. *******