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2013 DIGILAW 392 (MAD)

J. George v. State Of Tamilnadu Rep By Its Secretary Cooperation Food And Consumer Protection Department

2013-01-18

K.CHANDRU

body2013
JUDGMENT 1. The 65 petitioners, who are working in different co-operative Societies holding different posts have come forward to file the present writ petition, seeking for a direction to the respondents to consider their claim for regularization of their services with effect from 22.06.2007 and in terms of the cadre strength prescribed to the respective societies in which the petitioners are in employment and also to grant monetary benefits with effect from 01.01.2007. 2. In this writ petition, the petitioners have made only the State of Tamil Nadu and the Registrar of Cooperative Societies as parties. The societies in which they are working have not been made as parties to the writ petition. In the typed set, the petitioners have given the place in which they are working along with the designation and date of appointment. 3. It must be noted, as regularization is against the post which the petitioners are holding, such regularization has to be done only by the respective co-operative societies in which the petitioners are employed. Instead of seeking relief against the employer, the petitioners' attempt to seek for a direction to the State Government and to the Registrar of Cooperative Societies is misconceived and such a direction can never be given. Even assuming there are any Government orders in favour of the petitioner, they will have to move the appropriate society with a representation and in case, the society has negatived such claim, the remedy open to them is to move the Revisional Authority under Section 153 of the Tamil Nadu Co-operative Societies Act. The petitioners have ingeniously framed the prayer seeking for a direction to the respondents viz., State of Tamil Nadu and the Registrar of Cooperative Societies who are not employers of the petitioners. 4. The Supreme Court while dealing with cooperative societies has held that they are not an instrumentality to the State and the Government cannot have general power under Article 162 to give directions, vide its judgment in A. Umarani v. Registrar, Coop. Societies reported in (2004) 7 SCC 112 . In paragraphs 22, 23 and 60, it was observed as follows : "22.Section 182 of the 1983 Act reads as under: “182. Societies reported in (2004) 7 SCC 112 . In paragraphs 22, 23 and 60, it was observed as follows : "22.Section 182 of the 1983 Act reads as under: “182. Power of Government to give directions.—(1) The Government may, in the public interest, by order, direct the Registrar to make an inquiry or to take appropriate proceedings under this Act, in any case specified in the order, and the Registrar shall report to the Government the result of the inquiry made or the proceedings taken by him within a period of six months from the date of such order or such further period as the Government may permit. (2) In any case, in which a direction has been given under sub-section (1), the Government may, notwithstanding anything contained in this Act, call for and examine the record of the proceedings of the Registrar and pass such orders in the case as they may think fit: Provided that before passing any order under this sub-section the person likely to be affected by such order shall be given an opportunity of making his representation.” 23. A bare perusal of the aforementioned provision would clearly go to show that the impugned government order could not have been issued by the State in terms thereof as the same can be taken recourse to only for the purposes mentioned therein and not for any other. It is not a case where the Government directed the Registrar to make an enquiry against a person in the public interest. Article 162 of the Constitution of India provides for extension of executive power to the matters with respect of which the legislature of the State has power to make laws. Article 162 of the Constitution by no stretch of imagination is attracted as the source of the power of the State to pass an appropriate order must be traced to the provisions of the Act itself. If the State had no power to issue the said GOMs No. 86 dated 12-3-2001, the same must be held to be a nullity. 60. Although we do not intend to express any opinion as to whether the cooperative society is a “State” within the meaning of Article 12 of the Constitution of India but it is beyond any cavil of doubt that the writ petition will be maintainable when the action of the cooperative society is violative of mandatory statutory provisions. 60. Although we do not intend to express any opinion as to whether the cooperative society is a “State” within the meaning of Article 12 of the Constitution of India but it is beyond any cavil of doubt that the writ petition will be maintainable when the action of the cooperative society is violative of mandatory statutory provisions. In this case except the nodal centre functions and supervision of the cooperative society, the State has no administrative control over its day-to-day affairs. The State has not created any post nor could it do so on its own. The State has not borne any part of the financial burden. It was, therefore, impermissible for the State to direct regularisation of the services of the employees of the cooperative societies. Such an order cannot be upheld also on the ground that the employees allegedly served the cooperative societies for a long time. 5. In the light of the same, the writ petition cannot be entertained both on the ground of non-joinder of parties as well as the relief not being claimed against the appropriate employer. Hence, the writ petition stands dismissed. No costs. Connected miscellaneous petition is closed.