Judgment 1. The writ petition is filed by the petitioner Management against the award whereby the Labour Court set aside the order of retrenchment and directed the petitioner to reinstate the second respondent with continuity of service. 2. The case of the petitioner is that it is a Co-operative Institution duly constituted under the provisions of the Tamil Nadu Co-operative Societies Act and the Rules framed thereunder. The Registrar of Co-operative Societies is the ultimate authority in the administration of all the Co-operative Institutions. The predominant object of the petitioner bank is to extend credit and such other facilities to its members to augment their agricultural produce. The elected Board of Directors is to run the Management in accordance with the powers vested on it under the said Act and Rules as well as the registered Bye-laws of the bank and registered special Bye-laws relating to the service conditions of the staff of the bank. As per various directions and circulars issued by the Registrar, the appointments should be made only within the cadre strength that too with prior approval and permission of the Deputy Registrar. Vacancies, if any, should be filled up from those surplus/retrenched employees of similar Banks of that region or from the statewide list. Only after exhausting the entire waiting list, recruitment has to be made to any post by calling the list of eligible candidates from the Employment Exchange, or by adopting other modes, if the Employment Exchange certifies that there were no eligible candidates. Communal rotation also to be followed. The Elected Board of the petitioner came to power on 01.11.1996. It took steps to get the cadre strength approved by the authorities. Accordingly, the Regional Joint Registrar of Co-operative Societies, through his proceedings dated 18.11.1997, sanctioned the cadre strength, with one Secretary, six Supervisors and one Office Assistant. The Joint Registrar further directed therein that new appointments should be made by adopting the redeployment. Contrary to the above norms, the Board engaged the second respondent on daily wage basis from 29.04.1999 and again from 11.12.1999 on consolidated wage basis as Supervisor. His appointment was neither made in a vacancy within the approved cadre strength nor by properly following the recruitment procedures. The Deputy Registrar of Co-operative Societies, Madurai, ordered for an inspection under Section 82 of the Tamil Nadu Co-operative Societies Act. His appointment was neither made in a vacancy within the approved cadre strength nor by properly following the recruitment procedures. The Deputy Registrar of Co-operative Societies, Madurai, ordered for an inspection under Section 82 of the Tamil Nadu Co-operative Societies Act. Consequently, a report filed under Section 82 revealed that the appointment of the second respondent and a few others were contrary to the recruitment procedure. Therefore, proceedings under Section 87 of the said Act was initiated against the Board by serving a notice to show-cause as to why Surcharge Proceedings should not be initiated against the Board. The Joint Registrar, Madurai also issued a notice under Section 88 of the said Act proposing super-session of the Board for the said irregularities. Anticipating stringent action against the board, the then President of the Board passed an order on 07.02.2001, terminating the service of the second respondent and four others. Aggrieved against the said order, the second respondent preferred an appeal before the Deputy Commissioner of Labour, Madurai. The appellate authority set aside the order of termination on the ground that the one month notice or pay in lieu of such notice was not given. Therefore, the second respondent was reinstated into service on 27.03.2001 with back-wages. The elected board was dissolved and the Special Officer was appointed on 25.05.2001. The Special Officer was constrained to rectify the mistakes and defects committed by the previous regime. Therefore, the Special Officer retrenched the second respondent and similarly placed others from service, by his order dated 01.09.2001. The second respondent preferred a writ petition in W.P.No.19313 of 2001 against the retrenchment and this Court directed him to raise an industrial dispute and consequently, dismissed the writ petition. Thereafter, the second respondent raised the industrial dispute in I.D.No.108 of 2002 and the same was allowed by the Labour Court as stated supra. Hence, the present writ petition is filed before this Court. 3. The writ petition was admitted on 31.03.2009 and no counter affidavit is filed by the second respondent. 4. The learned counsel appearing for the petitioner submitted that as on 18.11.1997, the approved cadre strength of the petitioner society in the cadre of Supervisor was only 6. When the petitioner was appointed as Supervisor on 29.04.1999, his appointment was beyond such cadre strength, as the petitioner's appointment was in the seventh position. 4. The learned counsel appearing for the petitioner submitted that as on 18.11.1997, the approved cadre strength of the petitioner society in the cadre of Supervisor was only 6. When the petitioner was appointed as Supervisor on 29.04.1999, his appointment was beyond such cadre strength, as the petitioner's appointment was in the seventh position. Even assuming that the appointment was within the cadre strength, such appointment is bad as the same was not made through redeployment as contemplated by various directions and circulars issued by the Registrar of Co-operative Societies. He further contended that as the appointment of the second respondent was not made through Employment Exchange the same is against Rule 149 of the Tamil Nadu Cooperative Societies Rules. He further contended that no communal rotation was also followed and the Labour Court did not consider any of the aspects and proceeded to allow the matter only on the ground that on the date of passing of the award, there was a vacancy available and the same can be taken into consideration for accommodating the second respondent. The learned counsel further submitted that the vacancy position as on the date of the award cannot be taken into consideration. It is further contended by the learned counsel that the special Bye-laws have to incorporate the procedure contemplated under Rule 149. Whether there was any special Bye-laws or not, the recruitment should be made only by following Rule 149 and such procedure cannot be ignored or deviated. He also submitted that proceedings of the Joint Registrar of Cooperative Societies, Madurai, dated 28.02.2000 and 08.09.2000 would show and prove that the appointment of the second respondent was beyond the cadre strength. The learned counsel submitted that the Labour Court had wrongly concluded that the appointment of the second respondent was within the cadre strength. 5. In support of all his submission, the learned counsel for the petitioner relied on the following decisions:- 1. 2002(4) CTC 385 (Justine, L. vs. The Registrar of Cooperative Societies) 2. (2004) SCC Labour and Service 198 (Umarani vs. The Registrar, Cooperative Societies and others,) 3. 2007(4) LLN 868 (R. Rathakrishnan vs. Deputy Registrar of Co-operative Societies, Dindigul) 4. 2007(1) SCC (L & S) 163 (State of U.P. and others Vs. Desh Raj) 5. 2009(1) SCC (L & S) 834 (State of Karnataka and others vs. G.V. Chandrashekar) 6. (2004) SCC Labour and Service 198 (Umarani vs. The Registrar, Cooperative Societies and others,) 3. 2007(4) LLN 868 (R. Rathakrishnan vs. Deputy Registrar of Co-operative Societies, Dindigul) 4. 2007(1) SCC (L & S) 163 (State of U.P. and others Vs. Desh Raj) 5. 2009(1) SCC (L & S) 834 (State of Karnataka and others vs. G.V. Chandrashekar) 6. Per contra, the learned counsel appearing for the second respondent submitted that the appointment of the second respondent was well within the cadre strength. The Labour Court had given a specific finding that such appointment was well within the cadre strength. Such finding of the Labour Court was not challenged by the petitioner in the grounds raised in support of the writ petition. No evidence was let in by the petitioner before the Labour Court that the petitioner was in the 7th position. He further contended that Rule 149 of the said Rules contemplates of framing of special Bye-laws for the methods of recruitment. No such special Bye-laws was ever framed by the petitioner society thereby fixing the cadre strength as contemplated under Rule 149(2). In the absence of such special Bye-laws, any cadre strength fixed by the Joint Registrar was without jurisdiction. The Board has not passed any resolution passing special Byelaws. The guidelines issued by this Court in Justine case reported in 2002(4) CTC 385 , more specifically under clause 3 and 5, were not followed by the petitioner in this case. The learned counsel further submitted that when the cadre strength was not fixed by the competent authority, the same cannot be relied on by the petitioner. In support of his contention, the learned counsel relied on an unreported decision of a learned Single Judge made in W.P.No.10775 of 2005 dated 29.06.2011. 7. Heard the learned counsel on either side. 8. The second respondent was appointed as a Supervisor by the petitioner Bank on 29.04.1999 and he was terminated from service on 07.02.2001. It is seen that such order of termination was challenged by the second respondent before the Deputy Commissioner of Labour, Madurai, by filing an appeal and the said order of termination was set aside by the appellate authority on the ground that no notice or pay in lieu of such notice was given to the second respondent. It is seen that such order of termination was challenged by the second respondent before the Deputy Commissioner of Labour, Madurai, by filing an appeal and the said order of termination was set aside by the appellate authority on the ground that no notice or pay in lieu of such notice was given to the second respondent. Consequently, the second respondent was reinstated into service on 27.03.2001 with back-wages and also by fixing him with time scale of pay. Thereafter, the Elected Board was dissolved and Special Officer was appointed on 25.05.2001. Consequent upon the assumption of office by the Special Officer, the order of retrenchment came to be passed against the second respondent on 01.09.2001. 9. A perusal of the order of retrenchment shows that there is a compliance of Section 25 (F)(a) of the Industrial Dispute Act, 1947, by paying wages in lieu of one month notice. At this juncture, it is to be noted that the earlier order of termination was set aside by the Commissioner of Labour only on the ground that there was no compliance of Section 25 (F)(a) of the said Act. 10. It is the contention of the learned counsel for the petitioner that the second respondent's appointment was beyond the cadre strength. It is stated that the Elected Board came to power on 01.11.1996 and thereafter, it had taken steps to get the cadre strength approved by the Regional Joint Registrar of Co-operative Societies. A perusal of the proceedings, dated 18.11.1997, issued by the Regional Joint Registrar of Cooperative Societies substantiate such contention and shows that only six Supervisor posts were sanctioned to the petitioner Bank and that any vacancy should be filled up only by redeployment. Thus from the said proceedings it is established that the petitioner Bank was approved with a cadre strength of 6 Supervisors and that any vacancy arising therefrom can be filled up only by redeployment. When such being the position, the appointment of the second respondent made on 29.04.1999 was certainly not in accordance with the said proceedings, dated 18.11.1997 issued by the Joint Registrar of Co-operative Societies. It is contended by the petitioner that the second respondent was the seventh person to get appointed as a Supervisor when already six persons were working as Supervisors in the Bank. It is contended by the petitioner that the second respondent was the seventh person to get appointed as a Supervisor when already six persons were working as Supervisors in the Bank. Therefore, it is the contention of the petitioner that such appointment of the second respondent was beyond the cadre strength. On the other hand, the learned counsel appearing for the second respondent contended that the second respondent's appointment was well within the cadre strength and the Labour Court has also given a specific finding that the appointment was well within the cadre strength. No doubt, it is true that the Labour Court had given such finding. But a perusal of the other proceedings issued by the Joint Registrar of Cooperative Societies, Madurai, dated 28.02.2000 and 08.09.2000 would show that there were eight Supervisors working as against the sanctioned cadre strength of six. Such proceedings of the competent authority issued subsequent to the appointment of the second respondent would only show that his appointment was certainly beyond the cadre strength. Even assuming that the said appointment was not beyond the cadre strength, still the said appointment cannot be made directly without following the procedure of redeployment from the other surplus retrenched employees of the similar bank of that region or from the persons waiting in the Statewide list. Rule 149(2) of the said Rules, contemplates the procedure for making direct recruitment. Under the said Rule, it is clearly stated that no appointment by direct recruitment to any post shall be made except by calling for a list of eligible candidates from Employment Exchange and also by giving due publicity by means of announcement in the notice board of the society inviting application from the eligible employees of such bank. It is further contemplated therein that when the Employment Exchange issues a Non-availability Certificate, the Society shall invite applications by giving advertisement in more than one daily newspapers. Thus, from the facts and circumstances, it is certain that the second respondent's appointment was not only within the cadre strength, but also not made by following either the process of redeployment or the procedure contemplated under Rule 149(2) of the said Rules. 11. Thus, from the facts and circumstances, it is certain that the second respondent's appointment was not only within the cadre strength, but also not made by following either the process of redeployment or the procedure contemplated under Rule 149(2) of the said Rules. 11. No doubt, the learned counsel for the second respondent contended that no special Bye-laws were framed fixing the cadre strength as contemplated under Rule 149(1) and in the absence of any special Bye-laws, there is no necessity to follow Rule 149(2). I am unable to appreciate and accept the said submission for the following reasons:- First of all a person who was appointed against well established norms, procedures and prescribed laws cannot be permitted to canvass the correctness or otherwise of certain procedural irregularities or technical lapses, even assuming that those irregularities and lapses exist in a given case. The second respondent's appointment is one such invalid and illegal appointment. Even otherwise, it is categorically stated by the petitioner in the affidavit in support of the writ petition at paragraph 10 that the Board came to power on 01.11.1996 and the Board, in accordance with the Bye-laws, took steps to approve the cadre strength and the Regional Joint Registrar of Co-operative Societies, through his proceedings dated 18.11.1997, sanctioned the cadre strength with six Supervisors. Such averments made by the petitioner were not denied or disputed by the second respondent by filing any counter affidavit. The other proceedings of the same official dated 28.02.2000 and 08.09.2000 indicating that the society exceeded the cadre strength were also not disputed by the second respondent. 12. On the other hand, the learned counsel for the second respondent only submits that there was no Bye-laws framed. I am unable to appreciate the said contention of the learned counsel for the second respondent in the absence of any specific pleadings on the side of the second respondent. Needless to say that an argument on a factual aspect has to necessarily emerge out of the pleadings and materials and not by otherwise, especially when such contention is disputed by the other side. Needless to say that an argument on a factual aspect has to necessarily emerge out of the pleadings and materials and not by otherwise, especially when such contention is disputed by the other side. Even otherwise, when the petitioner had specifically stated that the cadre strength was fixed in pursuance of the Bye-laws framed by the Bank and the same was also approved by the said authority on 18.11.1997, the second respondent cannot be permitted to question the jurisdiction of the said authority in fixing the cadre strength in these proceedings without challenging the said proceedings dated 18.11.1997. Therefore, the second respondent's contention with regard to the cadre strength has to be rejected. 13. Apart from the above said facts, it is also an admitted case that the second respondent's appointment was made without following any of the procedure contemplated under Rule 149(2). Consequently, the said appointment is in violation of Rule 149(2). At any event, when the proceedings dated 18.11.1997 of the said authority directed the filling up of vacancy only by way of redeployment, the second respondent's appointment made contra to such direction, is bad and cannot be sustained. At this juncture, it is useful to refer to the decisions relied on by the learned counsel for the petitioner. 14. In 2002(4) CTC 385 (cited supra), the Hon'ble Division Bench of this Court at paragraph 19 has held as follows:- "19. In view of the above authoritative pronouncement of the Supreme Court, which is the law of the land under Article 141 of the Indian Constitution, and as the facts of this batch of cases clearly attract the legal principles enunciated by the Supreme Court, we hold that the appointments of the staff made to the cooperative societies by the elected bodies or the officers in charge, in violation of the cadre strength or the prescription of the educational qualifications, cannot stand and are held to be null and void. ..... (emphasis supplied) 15. A perusal of the said decision of the Hon'ble Division Bench would only show that any appointment made in violation of the cadre strength or the prescription of the educational qualifications, is to be held as null and void. ..... (emphasis supplied) 15. A perusal of the said decision of the Hon'ble Division Bench would only show that any appointment made in violation of the cadre strength or the prescription of the educational qualifications, is to be held as null and void. No doubt, the learned counsel for the second respondent also relied on clause 3 and 5 of paragraph 19 of the said Judgment by contending that procedures as directed therein were not followed by the bank. A perusal of those two clauses only show that the same can be applied only in cases where cadre strength was not fixed. As I have already found that the cadre strength was fixed through the proceedings of the Joint Registrar of Co-operative Societies dated 18.11.1997, I find no substance in the contention raised by the learned counsel for the second respondent to rely on clause 3, 5 of paragraph 19 of the said judgment of the said Rules. 16. Next decision relied on by the learned counsel for the petitioner is reported in 2004 SCC Labour and Service 918 in the case of Umarani vs. The Registrar, Cooperative Societies and others, in which, the Hon'ble Supreme Court has observed that no appointment can be made in deviation of or departure from the procedure laid down under Rule 149 of the said Rules. 17. The learned counsel for the petitioner further relied on the decision reported in 2007 (4) LLN 868 (cited supra) wherein the Hon'ble Full Bench of this Court at paragraph 19 and 20 has held that the State Government cannot exercise jurisdiction under Article 162 of the Constitution of India to direct regularisation of service of any employee including employees of a Cooperative Society, if the appointments have been made in contravention of the Statutory Rule or constitutional mandate. 18. The learned counsel for the petitioner further relied on the decision of the Hon'ble Supreme Court reported in2007(1) SCC (L & N) 163 (cited supra) to substantiate his contention that the appointment made in violation of rules is illegal and void ab initio. The Hon'ble Apex Court has observed that the appointments, if made in violation of the constitutional scheme of equality as enshrined under Articles 14 and 16 of the Constitution of India, would be rendered illegal and, thus, void ab initio. The Hon'ble Apex Court has observed that the appointments, if made in violation of the constitutional scheme of equality as enshrined under Articles 14 and 16 of the Constitution of India, would be rendered illegal and, thus, void ab initio. It was further held that no regularisation rules, therefore, could have been made in derogation of the statutory or constitutional scheme. 19. The learned counsel relied on another decision of the Hon'ble Apex Court reported in 2009(1) SCC (L & S) 834 (cited supra) to contend that when the very initial recruitment itself is illegal and contrary to constitutional scheme, the regularisation also cannot be granted. In the said Judgment, the Hon'ble Apex Court has observed that initial recruitment being wholly illegal and contrary to the Constitutional scheme, the Judgment of the High Court therein cannot be upheld, whereby the regularisation was granted to persons, who have been appointed on ad hoc basis. 20. From the perusal of the above case laws relied on by the learned counsel for the petitioner, it is crystal clear that any appointment made in contravention of the Statutory Rules cannot be held valid. In this case when the appointment of the second respondent was made beyond the cadre strength and not by following the redeployment procedure as contemplated under the proceedings of the Joint Registrar of Co-operative Societies dated 18.11.1997, such appointment is bad and illegal. 21. The learned counsel for the second respondent relied on an unreported decision of the learned Single Judge made in W.P(MD)No.10775 of 2005 dated 29.06.2011. In that case, the learned Judge had found that no material was placed to show that any special Bye-laws were framed and the same were approved by the competent authority. Therefore, the learned Judge found that the cadre strength was not fixed by the competent authority and consequently, directed reinstatement of the petitioner therein. But the facts of this case are different and distinguishable from the facts of that case. I have already pointed out that the petitioner bank had categorically stated that after framing the Bye-laws, they took steps to get the cadre strength approved before the Joint Registrar of Co-operative Societies and the said official had also granted the approval through his proceedings dated 18.11.1997. I have already pointed out that the petitioner bank had categorically stated that after framing the Bye-laws, they took steps to get the cadre strength approved before the Joint Registrar of Co-operative Societies and the said official had also granted the approval through his proceedings dated 18.11.1997. When such being the factual position, in my considered view, the decision relied on by the learned counsel for the second respondent is not applicable to the facts and circumstances of the present case. 22. The Labour Court has not considered any of these aspects and had proceeded to set aside the order of retrenchment only by taking note of the deposition made by M.W.1 and also by considering the fact that there was a vacancy as on the date of the award. As I have found that the very appointment of the second respondent was not validly made, the order of retrenchment cannot be found fault with. The Labour Court ought not to have taken into consideration of other aspects. The labour Court also failed to take note of the proceedings of the Joint Registrar of the Cooperative Societies dated 18.11.1997 as well as other proceedings dated 28.02.2000 and 08.09.2000 whereby it is proved that the appointment of second respondent was beyond the cadre strength, especially when two of those proceedings were marked as Management Exhibits 1 and 3. 23. Considering all the facts and circumstances case, I am of the view that the award of the Labour Court is unsustainable. Accordingly, the same is set aside. At the same time, it is to be seen that it is not the fault of the second respondent in getting his employment otherwise than by the Rules. It is only the petitioner's bank made such illegal appointment. No doubt, the second respondent had been retrenched, but at the same time, even according to the petitioner's stand such retrenched employees are entitled to be considered for redeployment in the needy vacancy as per the proceedings of the Regional Joint Registrar of Co-operative Societies dated 18.11.1997. It is only the petitioner's bank made such illegal appointment. No doubt, the second respondent had been retrenched, but at the same time, even according to the petitioner's stand such retrenched employees are entitled to be considered for redeployment in the needy vacancy as per the proceedings of the Regional Joint Registrar of Co-operative Societies dated 18.11.1997. Therefore, if the present cadre strength of the petitioner society is having any vacancy in the post of Supervisor, or if there is any needy society, the second respondent can be considered in the said vacancy and accordingly, suitable orders can be passed thereon by taking note of the fact that the second respondent is out of employment for more than 11 years. Accordingly, the second respondent is directed to make a representation to the petitioner as well as to other competent authorities within a period of two weeks from the date of receipt of a copy of this order. Such representation, shall be considered either by the petitioner or by other competent authorities and orders shall be passed on merits and in accordance with law within a period of four weeks thereafter. 24. With these observations the writ petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.