M. Athiyappan v. Deputy Registrar of Cooperative Societies, Tiruchengode, Namakkal District
2012-06-18
C.T.SELVAM
body2012
DigiLaw.ai
Judgment :- 1. The petitioner has filed this Writ Petition challenging the order of the first respondent dated 16.05.2005. 2. The petitioner was appointed as a night watch man in the second respondent bank on 01.01.1998 on daily wages. On 01.04.1999, he was put on consolidated pay. It is the undisputed position that the petitioner was not absorbed in service through the employment exchange. Under the proceedings under challenge, the first respondent has required the petitioner to show cause why his service should not be terminated since he did not possess requisite qualification viz., 8th standard pass, as on the date of his appointment. 3. It is the contention of the petitioner that he indeed was so qualified. In judgment of this Court in L.Justine and another vs. The Registrar of Coop. Societies, Chennai – 10 and two others (2002) 4 CTC 385 , a Division Bench, while dealing with the need to effect appointment in keeping with the rules prevalent, afforded a window of opportunity to those appointed not so between the period 08.07.1982 and 11.03.2001. It held that those who had been absorbed in service other than through the employment exchange during such period could be retained in service provided they held other requisite qualifications. In appeal against such judgment and in the decision of Honourable Apex Court in A.Umarani v. Registrar of Co-op Societies, 2004 (7) SCC 122, it has been held that appointments would have to be made in keeping with the rules prevalent and it would not be open to this Court to afford a window of opportunity to those who were not so appointed. 4. A Full Bench of this Court in R.Radhakrishnan vs. The Deputy Registrar of Cooperative Societies, Dindigul Circle, Dindigul, (2007) 5 CTC 369 , explained the judgment in Umarani's case as follows: "13. From the aforesaid findings of the Supreme Court in the case of Umarani, the following facts emerge: i. G.O.Ms.No.86 dated 12th March, 2001, was declared as a nullity, the State Government having no power to issue such order. ii. Rule 149 framed under Act, 1983, reflect the legislative recruitment policy and such provisions are mandatory in nature. iii. Regularisation cannot be the mode of recruitment by any State within the meaning of Article 12 of the Constitution of India or any body or authority governed by the statutory Act or Rules framed thereunder. iv.
ii. Rule 149 framed under Act, 1983, reflect the legislative recruitment policy and such provisions are mandatory in nature. iii. Regularisation cannot be the mode of recruitment by any State within the meaning of Article 12 of the Constitution of India or any body or authority governed by the statutory Act or Rules framed thereunder. iv. Appointments made in violation of mandatory provision of the statute ignoring the minimum educational qualification, etc. is wholly illegal, which cannot be cured by taking recourse to regularisation. Those who have come by the backdoor should go through that and for that no show cause notice is required to be issued. In view of such finding of Supreme Court in A.Umarani's case (supra), the observations, findings and directions given by Division Bench of this Court in Justine's case at paragraph 19(i), last portion of paragraph 19(v) and the finding with regard to regularisation of service of employees recruited prior to 12th March, 2001, stand overruled. 14. So far as letter No.22322/CG/1/2005-7 dated 2nd November 2006, is concerned, it is based on G.O.Ms.No.86 dated 12th March, 2001, and judgment passed by Division Bench of this Court in L.Justine's case. The said G.O.Ms.No.86 dated 12th March, 2001, having been declared nullity by Supreme Court and the judgment in L.Justine's case relating to regularisation of service of employees of Co-operative Societies appointed prior to 12th March, 2001, having been reversed by Supreme Court in A.Umarani's case, and in view of finding that the State Government has no jurisdiction to issue order under Article 162 of the Constitution of India or Rules 182 and 170 for regularisation of service, letter No.22322/CG/1/2005-7 dated 2nd November 2006, cannot be upheld, being without jurisdiction and nullity. In fact the said letter has not been issued by the State Government, but by the Secretary, Co-operation, Food and Consumer Protection Department, who has no jurisdiction to amend any statutory rule. Learned Advocate General has also accepted that it is without jurisdiction and that the State Government will withdraw the said letter. 15. In view of the judgment of the Supreme Court rendered in the case ofA. Umarani, it is not open for Court to permit the employees to continue in service by interim arrangement until final decision is taken on the basic question.
15. In view of the judgment of the Supreme Court rendered in the case ofA. Umarani, it is not open for Court to permit the employees to continue in service by interim arrangement until final decision is taken on the basic question. Such orders having been passed by Division Bench on 20th November 2006 in W.P.No.17570 of 2005 Saravanan v. The Deputy Registrar of Co-operative Societies, and followed in W.P. (MD) No.2640/05, etc., P.Jeyanthi Devi v. The Deputy Registrar, Co-operative Societies, Madurai, dated 4th Dec., 2006, and both orders being contrary to the principle laid down by the Supreme Court in A.Umarani's case, cannot stand the test of legal scrutiny." 5. Given the aforesaid position in law, it is to be informed that the challenge to the impugned notice does not call for an answer. Accordingly, the Writ Petition is dismissed. No costs. Consequently, the connected miscellaneous petition is closed.