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2011 DIGILAW 731 (JK)

Kuldeep Gupta v. Kuljeet Rai

2011-12-26

Sanjay Gupta

body2011
1. Court below, while allowing the appeal of Respondent no.1 herein on 10.5.2010, passed following orders:- a. Order impugned in appeal bearing No. 6216-18 dated 7-8-09 has been passed in violation of the provisions contained in SRO 233 of 1988 i.e. The Jammu & Kashmir Cooperative Societies Service Rules, 1988. b. District Selection Board under Rule 6 has the vested jurisdiction to make appointments by way of recruitment, transfer and promotion and as such the order assailed in appeal is without jurisdiction of Managing Committee of the Bank as per SRO 233. c. As per admission made in judicial proceedings before the Learned Registrar no fresh exercise of Manager Scale III was conducted by way of issuing of fresh tentative seniority list and therefore finalizing the same by issuing final seniority list. d. The withholding of annual increments without passing a speaking order tantamount penalty and action of the respondent bank amounts victimization. 2. This revision petition is confined to only, with regard to order dated 10.5.2010 passed by Joint Registrar (Special) Cooperative Societies Division, Jammu, by virtue of which promotion of petitioners herein to the post of Chief Manager in C.C. Bank, vide order no. 6216-88 dated 7.8.2009, passed by Managing Director, C. C. Bank Ltd, has been quashed. 3. Petitioners have challenged the impugned order on the grounds, that the order is against facts and law, that order impugned has been passed without jurisdiction, that Court below was firstly to decide the question of jurisdiction and only thereafter final order was to be passed. That Court below relied upon certain orders, judgment and facts which were not before the Court. That appeal before the court below was not maintainable, because no penalty was imposed on respondent no. 1, as defined in section 19 of SRO 233 of 1988 governing the service condition of cooperative societies including banks. That court below was not competent to hear appeal in term of S.R.O 149 OF 2003. 4. Heard, both the counsels at length and perused the record and other documents annexed in the petition. 5. Counsel for the petitioners has elaborated all the grounds taken in the memo of revision petition while arguing the matter, whereas respondent no.1 has supported the impugned order. 6. Record file reveals that, Kuljeet Rai, Respondent No. 1, filed an appeal under rule 21 of J&K Co-operative Societies Service Rules, 1988, against order no. 5. Counsel for the petitioners has elaborated all the grounds taken in the memo of revision petition while arguing the matter, whereas respondent no.1 has supported the impugned order. 6. Record file reveals that, Kuljeet Rai, Respondent No. 1, filed an appeal under rule 21 of J&K Co-operative Societies Service Rules, 1988, against order no. 6216-88 dated 7.8.2009 passed by Managing Director, C. C. Bank Ltd. in pursuance to decision taken in Board Meeting on 1.8.2009, by virtue of which petitioners herein have been promoted as Chief Managers in the bank on the basis of recommendations of so called DPC constituted by the Chairman of the Board of Director, i.e. Managing Committee of Bank. Respondent no.1 also challenged withholding of his annual increments from 2007 onwards. 7. Respondent No. 1 herein challenged the promotion order before court below in appeal, stating therein, that it has been passed in clear violation of rule 6 of J&K Cooperative Society Service Rule 233 OF 1988 and also against the law reported in 1988 KLJ page 83 and SLJ 2000 page 117. Order of withholding of annual increment was also against law and was arbitrarily in nature. 8. It appears that during pendency of appeal before court below, respondent no. 1 " appellant before the court below" was suspended on 1.9.2009. That order was stayed by court below. Bank filled revision against stay order before Special Tribunal. On 15.10.2009, that revision petition was dismissed. Matter was taken before honorable high court in SWP 2032/2009. On 9.11.2009, that petition was disposed of with following directions as under:- 1. Parties present through counsel shall appear before this Court (Joint Registrar, Special Cooperative Societies, Jammu Division) on 25-11-2009. 2. Joint Registrar, special cooperative societies Jammu after considering the application/objections filed by the Citizens Cooperative Bank Ltd. Jammu shall dispose of the matter of application/objection seeking vacation of stay of bank's order no. Adm/Per/7410-11 Dated 01-09-2009 within 15 days of the parties appearing before Joint Registrar, Special. 3. the Joint Registrar, Special Cooperative Societies, Jammu shall expedite the hearing of Respondent No. 1 Mr. Kuljeet Rai's appeal and pass appropriate order there in preferably within a period of two months. 9. After passing of this direction court below heard the matter, but before passing of judgment, petitioners herein again filed a revision before Registrar Cooperative Societies and got proceeding stayed. Kuljeet Rai's appeal and pass appropriate order there in preferably within a period of two months. 9. After passing of this direction court below heard the matter, but before passing of judgment, petitioners herein again filed a revision before Registrar Cooperative Societies and got proceeding stayed. The Registrar Cooperative Societies on 27-3-2010, disposed off the revision along with a review petition filed by respondent no. 1, thereby directing the court below to pass order according to directions issued by Hon'ble High Court. 10. Court below after giving reasonable opportunity to both the parties held that promotion of petitioners herein was not according to provision OF SRO 233 of 1988 and accordingly promotion of petitioners herein was set aside. Further withholding of annual graded income of respondent no. 1 was also set aside. 11. I have given my thought full consideration to whole of aspect of the matter and law on the matter. 12. Firstly I will deal with maintainability of appeal before the court below. Rule 21 of SRO 233 deals with filing of appeal, it reads as under:- "Appeals- An appeal against an order imposing a penalty shall lie to the Divisional joint Registrar/Registrar Cooperative Societies within 30 days from the date of passing of order appealed against. So a plane reading of this section, it is evident that an appeal lies against penalty. Penalties have been defined in Rule 19 of SRO 233 of 1988. It reads as under"- Rule 19: Penalties --(1), the following penalties may for good and sufficient reasons and as hereinafter provided be imposed upon members of the service. Namely:- i. censure; ii. fine not exceeding one month's pay; iii. with holding of increments and/or promotion; iv. reduction to a lower post and/or a lower time scale and/or to a lower stage in time scale; v. recovery from pay of the whole or part of any pecuniary loss caused to Society by negligence or breach of orders/trust; Sub clause III of this rule clearly states that, withholding of increment or promotion amounts to penalty. So argument for the counsel for Petitioners, that appeal was not maintainable before court below, does not hold good. 13. Second question which is required to be decided is, as to whether promotions of petitioners were made legally or not. 14. Rule 4 of SRO 233 deals with appointment to service. So argument for the counsel for Petitioners, that appeal was not maintainable before court below, does not hold good. 13. Second question which is required to be decided is, as to whether promotions of petitioners were made legally or not. 14. Rule 4 of SRO 233 deals with appointment to service. It reads as under:- Rule- 4: Appointment to the service --(1) Appointment to the service shall be made by:- a. Direct Recruitment b. Transfer c. Promotion d. Deputation from the Government Departments other institution/employers. 15. Out of the persons who possess the minimum qualifications and other conditions for relevant post as laid down in the schedule: Provided that initially the employees in the different clauses, categories and grades on the cadre of the societies, to which the provisions of these rules are extended, shall constitute the initial constitution of the service. (2) Unless there are special reasons to be specified in writing by the Selection Board, the appointments to the posts in all classes, categories and grades of the different cadres of the service will be made by the respective Chief Executives on the recommendations of the respective Selection Boards only by direct appointment or promotion as the case be as prescribed in the schedule: Provided that if there is no candidate eligible for promotion the post shall be filled up by direct recruitment or vice-versa as the case may be. (3) As soon as any vacancy occurs in any cadre, the Chief Executive shall immediately inform the respective Selection Board and supply the detailed information as, generally or specifically in any case, is required by the Board. (4) In case for any post in a class, category or grade no candidate is available with the qualification experience etc. prescribed in the schedule, the Board shall refer the case with full details to the Registrar. 16. Bare perusal of this rule it is evident that appointment to service for a post in bank in different cadre are to be made by four ways. Clause "c" deals with appointment to the post by way of promotion. It further provide that, appointment to the post in classes, categories and grade of different category shall be made by Chief Executive on the recommendation of the respective board only by direct recruit or by promotion. So it means that promotion has to be recommended by Selection Board. Clause "c" deals with appointment to the post by way of promotion. It further provide that, appointment to the post in classes, categories and grade of different category shall be made by Chief Executive on the recommendation of the respective board only by direct recruit or by promotion. So it means that promotion has to be recommended by Selection Board. Constitution of Board has been defined in Rule -6 of 233 of 1988, it reads as under:- Rule 6. District Selection Board. -- (1) For recruitment to different posts of the service falling within the territorial jurisdiction of every Revenue District and for performing other duties prescribed under these rules, there shall be a Selection Board for each District comprising of the :- i. Deputy Registrar, Cooperative societies Chairman (Supervision) of the District. ii. District Audit Officer. Member iii. Chief Executive of the Society to which Member Vacancy to be filled pertains iv. Representative of the Cooperative Employee Member v. Assistant Registrar Member-Secretary (Nominated by the Registrar) 17. So, it is apparent that, promotion for the post of Chief Managers in the C.C. Bank Ltd., in the present case is to be made by Chief Executive on the recommendation of Selection Board constituted under rule 5 of S.R.O. 233. In the present case, it is admitted fact that Managing Director of Bank issued order no 6216-18 dated 7-8-09, thereby promoting petitioners to the post of Chief Manager in Bank, without recommendation of Selection Board. 18. Further seniority has to be reckoned as per rule 10 of SRO 233, from the date of first appointment in such class category or grade. In the present case, it is also admitted fact that respondent no. 1 is senior to petitioner no. 1 in appointment. Petitioners no. 2 and 3 are senior to respondent no. 1. Petitioner no.1 herein by way of promotion order has been placed senior to petitioners no. 2 and 4 also. It further appears that, on 13.3.1997, petitioner no.1 was promoted to Manager 111, though he was at serial no. 27 in seniority list, thereby ignoring the claim of his seniors. This way litigation started and matter finally landed to Honorable High court in Writ petition no. 251/99. Honorable High court disposed of petition on 5.3.2001, with direction to reconsider the case of petitioners within time frame. This petition was filed by 9 petitioners. There after in contempt petition no. 27 in seniority list, thereby ignoring the claim of his seniors. This way litigation started and matter finally landed to Honorable High court in Writ petition no. 251/99. Honorable High court disposed of petition on 5.3.2001, with direction to reconsider the case of petitioners within time frame. This petition was filed by 9 petitioners. There after in contempt petition no. 264/02 decided on 28.5.2003, bank submitted that Kuldeep Raj Gupta, petitioner no.1 herein, has been reverted back to manager scale 1. 19. Promotion are to made on basis of merit cum seniority and in case junior is to promoted, then due consideration has to be given to the claim of senior. In case there is total non consideration of claim of senior, then it will amount to breach of rights provided in article 16 of Constitution of India. Further any promotion made in breach of rules governing the matter is considered as void. Person who is not competent under law to pass an order, if passes such order, that order is considered to be nonest. 20. Last argument of counsel for the petitioners is that, court below was not competent to hear appeal in term of S.R.O. of 149 of 24.4.2003, is also not sustainable, because Joint Registrar special is an authority appointed under S.R.O 233 OF 1988 to hear appeal in term of rule 21. This S.R.O. was issued by Govt. under section 124 of co-operative society act 1960(old act). Now this S.R.O. has been saved as per section 177(2) of new act of 1989. No other S.R.O. has been issued by Govt. under section 176 of new act of 1989, whereby power to hear the appeal has been withdrawn. Further S.R.O. 149 OF 2003 has been issued under 3 of new act of 1989, thereby conferring powers on other officers to assist the Registrar for managing co-operatives societies in states, whereas S.R.O. 233 OF 1988 has issued by Govt. with sole aim to govern service conditions of employee of society. Further Hon'ble High Court while disposing of writ petition clearly directed the court below to dispose of the matter. 21. In view of what has been discussed above, present revision is devoid of any merits, hence it is dismissed. File of court below be sent back along with this order.