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Himachal Pradesh High Court · body

2012 DIGILAW 1013 (HP)

Jyoti Devi v. State of Himachal Pradesh

2012-12-20

RAJIV SHARMA

body2012
JUDGMENT Rajiv Sharma, Judge. Respondent No. 2 issued an advertisement on 25.07.2010, whereby applications were invited for filling up the posts of Secretary and Chowkidar. The Selection Committee instead of holding interview/viva voce, conducted the written examination, in which, the petitioner has secured 16 marks. The respondent No. 2-Society filed a Revision Petition before the Registrar, Co-operative Societies. The same was assigned by the Registrar, Co-operative Societies to the Joint Registrar (Marketing) Co-operative Societies. He decided the same on 28.05.2011, holding the appointment of the petitioner unlawful. It is in these circumstances, the present petition has been filed, assailing the order, dated 28.05.2011. 2. Ms. Salochana Kaundal, learned counsel for the petitioner has vehemently argued that there was no illegality in the action of Selection Committee to hold the written examination instead of interview on 26.08.2010. She also contended that the order, dated 28.05.2011, passed by the Joint Registrar, Cooperative Societies (Marketing), Himachal Pradesh is without jurisdiction. She also contended that initially one Shri Roshan Lal was working as Secretary and thereafter his son Rajeev Kumar was appointed. The appointment of Rajeev Kumar was set aside by the Administrator on 25.10.2008 and the appeal preferred against the order, dated 25.10.2008, was also rejected by the Registrar on 29.07.2009. 3. Mr. Vikas Rathore, learned Deputy Advocate General, and Mr. Tarlok Chauhan, learned counsel for respondent No. 2, have strenuously argued that the appointment of the petitioner as Secretary was de hors Rules 8 & 9 of the H.P. Primary Agricultural Co-operative Credit Societies Employees (terms of employment & working conditions) Rules, 2001. They also contended that the Selection Committee has no jurisdiction to conduct the written examination instead of holding interview strictly as per Rules 8 & 9 of the H.P. Primary Agricultural Co-operative Credit Societies Employees (terms of employment & working conditions) Rules, 2001. They have supported the order, dated 28.05.2011. 4. The respondent-State has framed the rules, as noticed above, for Primary Agricultural Co-operative Societies registered under the Cooperative Societies Act. These rules have come into force w.e.f. 27th April, 2001. Rule-7 lays down the qualification for the post of Manager/Secretary. Rule 8 provides the mode of recruitment. According to Rule 8, the appointments to service shall be made by the Managing Committee on the recommendations of the Selection Committee. The constitution of Selection Committee has been provided under Rule 9. These rules have come into force w.e.f. 27th April, 2001. Rule-7 lays down the qualification for the post of Manager/Secretary. Rule 8 provides the mode of recruitment. According to Rule 8, the appointments to service shall be made by the Managing Committee on the recommendations of the Selection Committee. The constitution of Selection Committee has been provided under Rule 9. The Selection Committee for the selection of employees comprises of following members: (a) Chairman of the Society (b) Assistant Registrar Co-operative Societies concerned or his nominee (c) One committee member duly authorized by the Managing Committee of the Society. Separate marks have been allotted for qualification, experience, training and interview in respect of different categories of posts as per Sub-rule (2) of Rule 9. The maximum marks are 40.5 marks have been allotted for +2 examination, 2 marks for graduation, 3 marks for post graduation and one mark for one year of regular service in Govt./Corporation/Boards/or any other body corporate subject to maximum 10 marks, 10 marks for training in cooperation and 10 marks have been allotted for interview. Thus, it is evident as per Rules 8 and 9 that the Appointing Authority is the Managing Committee. The Managing Committee has to make appointment on the basis of the recommendations made by the Selection Committee. The marks have to be allocated as per Sub-rule (2) of Rule 9. These rules do not provide for any written examination. The Selection Committee on 26.08.2010 was only required to interview the candidates, but the Selection Committee has conducted the written examination on 26.08.2010, itself. The Registrar, Cooperative Societies has issued instructions to all the Assistant Registrars on 29.04.2006 to the following effect: “That violation on any provision of Service Rules such as retirement age, qualification, recruitment procedure etc. shall be treated as personal responsibility of the Assistant Registrar Cooperative Societies” 5. In this case, the Assistant Registrar has nominated the Inspector (Audit) as his nominee to be the member of the Selection Committee. It was the duty cast upon the Assistant Registrar, i.e., respondent No. 4 and Inspector Cooperative Societies (Audit), i.e., respondent No. 5 to ensure that the Selection criterion provided, is scrupulously followed. 6. Ms. Salochana Kaundal, learned counsel for the petitioner has argued that in fact all the members of the Selection Committee have given consent. It was the duty cast upon the Assistant Registrar, i.e., respondent No. 4 and Inspector Cooperative Societies (Audit), i.e., respondent No. 5 to ensure that the Selection criterion provided, is scrupulously followed. 6. Ms. Salochana Kaundal, learned counsel for the petitioner has argued that in fact all the members of the Selection Committee have given consent. The consent would not confer authority on the Selection Committee to go beyond the statutory rules. The candidates have come prepared for interview and not for the written examination on 26.08.2010. 7. Mr. Tarlok Chauhan, learned counsel for respondent No. 2 has also brought to the notice of the Court that respondent No. 5 is closely related to the petitioner. This contention has not been rebutted in a satisfactory manner. What the petitioner has stated in the rejoinder, is that respondent is not her relative. She should have placed some material on the basis of copies of Parivar Register etc. to prove that she is not closely related to respondent No. 5. It is admitted by the respondent-State in the reply that the Selection Committee has transgressed Rules 8 and 9 of the H.P. Primary Agricultural Co-operative Credit Societies Employees (terms of employment & working conditions) Rules, 2001. It is also stated in the reply that there is no concept or precondition of written test mentioned or specified in the Service Rules for any category of posts in so far as the recruitment in Primary Cooperative Societies are concerned. 8. Ms. Salochana Kaundal, learned counsel for the petitioner has also argued that the order, dated 28.05,2011, passed by the Joint Registrar (Marketing) Cooperative Societies, Himachal Pradesh, Shimla is without authority of law. In the instant case, the Joint Registrar (Marketing) Cooperative Societies, Himachal Pradesh, Shimla has treated the revision petition as representation and decided the same on 28.05.2011. He has followed the procedure prescribed and the petitioner has been offered ample opportunity to represent her case before him. The H.P. Primary Agricultural Co-operative Credit Societies Employees (terms of employment & working conditions) Rules, 2001 have been framed under Rule 56 of the Himachal Pradesh Co-operative Societies Rules, 1971. The Registrar and his delegates have the power of superintendence to see that the provisions of the Himachal Pradesh Co-operative Societies Act, rules framed thereunder, byelaws and service rules are complied with scrupulously. 9. Ms. The Registrar and his delegates have the power of superintendence to see that the provisions of the Himachal Pradesh Co-operative Societies Act, rules framed thereunder, byelaws and service rules are complied with scrupulously. 9. Ms. Salochana Kaundal, learned counsel for the petitioner has also argued that the entire exercise has been undertaken by the respondent No. 2 to give undue benefit to one Shri Roshan Lal and Shri Rajeev Kumar. 10. Now as far as Shri Roshan Lal is concerned, he is not the Secretary of the respondent-Society. The services of Shri Rajeev Kumar were terminated by the Administrator of the Society on 25.10.2008 and his appeal has also been dismissed by the Registrar of the Cooperative Societies on 29.07.2009. Neither Shri Roshan Lal nor Shri Rajeev Kumar has been added as respondents in the present petition. 11. The Joint Registrar (Marketing) Cooperative Societies, Himachal Pradesh has also correctly observed that the Managing Committee, being the appointing authority, should have taken the decision at its own level by either accepting or reviewing the recommendations made by the Selection Committee. The Joint Registrar (Marketing) Cooperative Societies, Himachal Pradesh in his order, dated 28.05.2011, has also correctly observed that respondents No. 4 and 5 were remiss in discharge of their statutory duties by not adhering to the rules. 12. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this petition and the same is dismissed, so also the pending application(s), if any. Interim order, dated 24.08.2011, is vacated. The petitioner shall cease to work as Secretary of the respondent No. 2-Society forthwith. The respondent No. 2-Society is directed to commence fresh selection process strictly as per Rules 8 and 9 of the H.P. Primary Agricultural Co-operative Credit Societies Employees (terms of employment & working conditions) Rules, 2001 and to complete the same, within a period of twelve weeks from today. No costs.