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2017 DIGILAW 580 (UTT)

Arun Kumar Tomar v. State of Uttarakhand

2017-11-03

K.M.JOSEPH, V.K.BIST

body2017
JUDGMENT : K.M. Joseph, J. There is delay of 36 days in filing this Appeal. We have heard Mr. Jitendra Chaudhary, learned counsel for the appellant at length and Mr. Paresh Tripathi, learned Chief Standing Counsel on behalf of the State of Uttarakhand. In view of the nature of the order we propose to pass, we feel that delay in filing this appeal should be condoned. Accordingly, the delay in filing this appeal will stand condoned and the delay condonation application will stand allowed. 2. Appellant is the writ petitioner. The writ petition was filed calling in question the orders dated 02.06.2012 and 07.07.2012. Writ petitioner also sought direction not to create any hurdle in his functioning as the Secretary of the Respondent-Society. 3. Briefly put, the case of the appellant/writ petitioner is as follows: The appellant/writ petitioner was appointed as Secretary by the Managing Committee on 15.01.2007 and it was approved on 05.06.2007. He joined as Secretary. On 20.01.2007, the Deputy Registrar, Sahkari Samittee Uttarakhand illegally passed an order authorizing Shri Ram Singh, Senior Assistant/Branch Manager of U.P. Sahkari Avas Sangh Ltd. to work on the post of Secretary ignoring the appointment of the appellant/writ petitioner. The said order was not complied with by the Management Committee and Shri Ram Singh did not join. Again, on 25.04.2007, the Deputy Registrar, by amending the order, appointed Upper Jila Sahkari Adhikari (A.D.C.O) on the post of the Secretary. There was a meeting held and his appointment was not approved. There was a Resolution passed on 05.08.2007 for the permanent appointment of the appellant/writ petitioner. Thereafter, again by illegal order dated 18.11.2008, the Branch Manager, U.P. Sahkari Awas Sangh Ltd. was appointed on the post of Secretary. In the meantime, there were steps taken for election of the Managing Board. It is stated that against the order of the Additional Registrar, a Revision was filed. Appellant/Writ petitioner also refers to the Appeal filed by the appellant/writ petitioner against the appointment of the Branch Manager of the Uttar Bhartiya Sahkari Awas Sangh. Finally, to cut the long version short, by order dated 02.06.2012, the Deputy Registrar appointed Shri Pushkar Singh Pokhariya, Co-operative Inspector, Class-2 on the post of Secretary. It is the said order and the consequential order, which are called in question in the writ petition. 4. Finally, to cut the long version short, by order dated 02.06.2012, the Deputy Registrar appointed Shri Pushkar Singh Pokhariya, Co-operative Inspector, Class-2 on the post of Secretary. It is the said order and the consequential order, which are called in question in the writ petition. 4. In the counter affidavit, it is, inter alia, stated as follows: “(C) That bye-law 37 of the Samiti provides for the alternative arrangement with regard to the appointment of Secretary. According to the aforesaid provision- “as per the position and requirement of the Samiti there shall be a salaried or non salaried secretary of the Samiti, who shall either be a Branch Manager or Financing Institution or Cooperative Inspector (on deputation) and who shall be the Chief Executive Officer of the Samiti and shall function under the control of Chairman and Committee of Management constituted under the Act, Rules and Bye-laws of the Society.” It is pertinent to mention that the aforesaid provision with regard to the appointment of the Secretary has exclusively been made in perspective of security of the enormous amount invested as loan by the said Federation in the Samiti. (E) That it is pertinent to mention that the Samiti was functioning smoothly until the Committee of Management of the Samiti arbitrarily passed a resolution dated 01-06-2006 to the effect that the jurisdiction of Uttar Pradesh Sahakari Awas Sangh Ltd. Lucknow was no longer applicable/operative in the Samiti consequent to formation of Uttarakhand State and the Branch Manager of the said Federation was not entitled to continue as Secretary and, therefore it had become necessary to terminate the Secretary belonging to the said U.P. Cooperative Housing Federation. As per the resolution the Committee of Management of the Samiti confirmed Chariman’s order dated 29-05-2006 appointing petitioner as Secretary of the Samiti. The aforesaid resolution of the Samiti was in contravention of the bye-law 37 of the Samiti and therefore is not tenable in the eye of law. Copy of the order dated 29/5/2006 is being annexed as Annexure CA-1 to this affidavit. (F) That the resolution dated 01-06-2006 was forwarded to Deputy Registrar, Cooperative Societies, who, vide his order dated 22-07-2007, a copy of which is being annexed as Annexure CA-2 to this affidavit, rejected the aforesaid resolution of the Samiti under section 126 of the Uttarakhand Cooperative Societies Act, 2003. (F) That the resolution dated 01-06-2006 was forwarded to Deputy Registrar, Cooperative Societies, who, vide his order dated 22-07-2007, a copy of which is being annexed as Annexure CA-2 to this affidavit, rejected the aforesaid resolution of the Samiti under section 126 of the Uttarakhand Cooperative Societies Act, 2003. The said order of Deputy Registrar was challenged before the Appellate Authority/Secretary, Cooperative, Government of Uttarakhand. The Appellant Authority vide its order dated 04-01-2007, a copy of which is annexed as Annexure CA-3 to this affidavit, held that the resolution passed by the Samiti was in violation of the existing bye-law no. 37 and directed the Registrar Cooperative Societies to appoint a suitable person as Secretary of the Samiti. In pursuance of the aforesaid order of the Appellate Authority the Deputy Registrar on behalf of Registrar vide his order dated 25-4-2007 appointed Cooperative Inspector as Secretary in the Samiti. (G) That aggrieved by the aforesaid order of Appellate Authority and subsequent order of Deputy Registrar, the petitioner preferred Writ Petition No. 26 of 2007 (S/B) before this Hon’ble Court. The Hon’ble Court by its order dated 06-10-2012 has been pleased to pass the following order:- “….….Having regard to the nature of Clause, still existing in the byelaws of the Co-operative Society, what the Chairman did and what was ratified by the Managing Committee, was not permissible. The same having been pointed out by the Registrar and repeated by the Appellate Authority, there is no scope of interference. There is an intervention by the apex Co-operative Society. We accordingly, do not conclude that petitioner Cooperative Society has detached itself from the apex Cooperative Society. This order will not prevent the petitioners to take such recourse to law, as they may be advised, for the purpose of altering their byelaws in order to authorize its Chairman or Managing Committee to appoint a Secretary. For kind perusal of the Hon’ble Court a copy of order dated 06-09-2012 is being annexed herewith and marked as Annexure CA-4 to this affidavit. (L) That the present Secretary of the Samiti vide his letter dated 17-07-2012, 21-07-2012 & 29-07-2012 has directed the petitioner to hand over the charge of aforesaid record so as to reconcile the accounts between Samiti and said Federation but for the reasons known to the petitioner he did not paid any heed to the aforesaid letters of Secretary. (L) That the present Secretary of the Samiti vide his letter dated 17-07-2012, 21-07-2012 & 29-07-2012 has directed the petitioner to hand over the charge of aforesaid record so as to reconcile the accounts between Samiti and said Federation but for the reasons known to the petitioner he did not paid any heed to the aforesaid letters of Secretary. Apart from the aforesaid letters of the Secretary the Administrator of the Samiti vide his letter dated 30-07-2012 also directed the petitioner to hand over the charge of the Samiti to the Secretary of the Samiti but in vain. It is pertinent to mention here that in absence of the records it would not be possible for the Samiti to reconcile its accounts with the accounts of the said Federation and therefore the members of the Samiti who have already repaid their loan amount are unnecessarily being deprived of documents of their property kept as mortgage with the said Federation. For kind perusal of the Hon’ble Court a copy of letter dated 17-07-2012, 21-07-2012, 29-07-2012 & 30-07-2012 are being collectively annexed herewith and marked as Annexure CA-6 to this affidavit. (O) That it is relevant to mention that the Uttar Bhartiya Sahakari Awas Nirman Nigam Ltd Lucknow (previous name Uttar Pradesh Sahakari Awas Sangh Ltd.) has been converted into Multi State Cooperative Society in the year 2009 hence, its area of operation is extended to the State of Uttarakhand. Therefore, as per bye-law 37 the Branch Manager of the said Federation or Cooperative Inspector is eligible to be appointed as non-salaried Secretary of the Samiti.” 5. The learned Single Judge took note of the bye-law no. 37 and also the litigation in the earlier round, and dismissed the writ petition. In substance, it was held that under the bye-laws, the appellant/writ petitioner cannot be appointed as a Secretary. 6. We have heard Mr. Jitendra Chaudhary, learned counsel on behalf of the appellant/writ petitioner and Mr. Paresh Tripathi, learned Chief Standing Counsel on behalf of the State/respondent nos. 1 to 4. 7. Mr. Jitendra Chaudhary, learned counsel for the appellant/writ petitioner would submit that under the Uttaranchal Co-operative Societies Act, 2003 (hereinafter referred to as the “Act”), the Secretary can be appointed by the Committee of Management and the appellant/writ petitioner was appointed by the Committee of Management. 1 to 4. 7. Mr. Jitendra Chaudhary, learned counsel for the appellant/writ petitioner would submit that under the Uttaranchal Co-operative Societies Act, 2003 (hereinafter referred to as the “Act”), the Secretary can be appointed by the Committee of Management and the appellant/writ petitioner was appointed by the Committee of Management. No doubt, he does not dispute that the appellant/writ petitioner is working as an Accountant in the Co-operative Society; but, according to him, this will not be illegal. 8. As per the bye-laws, which we have already referred to, a person like the appellant/writ petitioner could not possibly have been appointed. The appointment of the appellant/writ petitioner was once taken up under Section 126 of the Act and it did not meet the approval of the statutory authority for the reason that it was in contravention of the bye-laws. The appeal carried, as also, the writ petition filed in this Court did not end in favour of the appellant/writ petitioner. In short, it was held that unless the bye-laws are amended, the appellant/writ petitioner could not be appointed as the Secretary. The subsequent appointment of the appellant/writ petitioner, as it turns out, has not been preceded by any change in the contents of the bye-laws. In other words, the appointment of the appellant/writ petitioner is in the teeth of the requirement under the byelaws. About this, there is no dispute. 9. Mr. Jitendra Chaudhary, learned counsel for the appellant/writ petitioner, when confronted with this situation, however, sought to surmount the obstacle in the following way: He drew our attention to Section 31 of the Act (which Act came into force in the year 2003), which provides for appointment of the Chief Executive and his emoluments and functions. It, inter alia, provides as follows: “31. Chief Executive and his emoluments and functions.—(1) There shall be a Chief Executive in every co-operative society who will be designated as Secretary in Primary Agricultural Credit Societies and Secretary, Manager or General Manager or by any other designation in Non-Agricultural Primary Societies and Central Societies below the district level, General Manager or Chief Executive in the District Level Central Co-operative Societies and Managing Director in the case of Apex Level Co-operative Societies.” Next, he drew our attention to Sections 120 and 121 of the Act. The same read as under: “120. Qualifications for appointment as secretary, manager, etc. The same read as under: “120. Qualifications for appointment as secretary, manager, etc. of co-operative societies.—(1) No person shall be appointed by a co-operative society as a Chief Executive (other than Managing Director of Apex Society who will be a Government nominee) secretary, manager, accountant or as any other officer to be paid or remunerated by the society unless he possesses such qualifications and furnishes such security, if any, as may be specified by the Registrar from time to time in respect of any co-operative society or class of societies. (2) Any person appointed in contravention of the provisions contained in sub-section (1) shall be liable to removal from his office by the Registrar. 121. Power of Registrar to determine terms of employment of society.—(1) The Registrar, may, from time to time, frame regulations to regulate the emoluments and other conditions of service including the disciplinary control of employees in a cooperative society or a class of co-operative societies and any society to which such terms are applicable, shall comply with those regulations and with any orders of the Registrar, issued to secure such compliance. (2) The regulations framed under sub-section (1) shall be published in the Gazette and take effect from the date of such publication.” Further, he drew our attention to Rule 140(1) of the Uttaranchal Co operative Societies Rules, 2004 (hereinafter referred to as the “Rules”). It reads as follows: “140. (1) No co-operative society shall appoint any person as its Secretary who does not possess the qualifications laid down under Section 120, or who fails to furnish the security as may, if any, be required under that section. Every such appointment shall be subject to the Regulations, if any, framed under Section 121 or 122. Lastly, he sought to draw support from the provisions contained in Section 129 of the Act. The same read as under: “129. Every such appointment shall be subject to the Regulations, if any, framed under Section 121 or 122. Lastly, he sought to draw support from the provisions contained in Section 129 of the Act. The same read as under: “129. Provisions in regard to existing societies and their bye-laws.—(1) Any co-operative society existing on the date of coming into force of this Act and registered under the U.P. Cooperative Societies Act, 1965 or under any other law relating to co-operative societies in force in the State of Uttaranchal shall be deemed to be registered under this Act, and its byelaws shall, so far as the same are not inconsistent with the express provisions of this Act (or the rules made thereunder), continue in force until altered or rescinded according to the provisions of this Act (and the rules made thereunder). (2) Any co-operative society to which sub-section (1) applies and which conforms to the requirements of Section 77 shall be deemed to be a co-operative farming society for the purposes of Chapter XI. (3) Every co-operative society covered by sub-section (1) shall, within a period of one year from the date of coming into force of this Act, delete or amend such bye-laws as are inconsistent with the provisions of this Act and the rules and shall make such further bye-laws as may be necessary having regard to the provisions of this Act and the rules. (4) In default of action on the part of any co-operative society as required by sub-section (3), the Registrar may make necessary amendment including deletions and additions in the bye-laws of the society. (5) Every co-operative society shall within a period of one year from the date of coming into force of this Act or such further period as the Registrar may, for reasons to be recorded in writing, allow for any co-operative society, adjust its membership according to the classification of members under this Act: Provided that any existing member who cannot be adjusted into one or the other kinds of memberships shall be deemed on the expiry of the period of one year or the extended period, if any, to have withdrawn from the membership of the society with the same rights and liabilities attached as if he had withdrawn from membership before the coming into force of this Act. (6) Where a co-operative society fails to adjust membership as specified in sub-section (5), the Registrar may make the adjustment and direct as to who, if any, of the existing members shall be deemed to have withdrawn their membership under the provisions of sub-section (5) (7) Every co-operative society shall within one year of the coming into force of this Act constitute its Committee of Management in accordance with the provisions of this Act and the rules and in default thereof the Registrar shall in the manner prescribed constitute the Committee of Management. (8) Notwithstanding, anything in this Act no act or proceeding of a co-operative society or its Committee of Management shall be invalid or questioned in court merely on the ground that up to the time of adjustment of membership or re-constitution of the Committee of Management in accordance with the provisions of this section the membership of the society or the constitution of its Committee of Management was inconsistent with the provisions of this Act or the rules.” The argument of the learned counsel for the appellant/writ petitioner appears to be that bye-law no. 37 goes against the mandate of Section 129 of the Act. He would also submit that bye-law no. 37 is an addition to the provisions contained in the Act and the Rules, as provided in regard to appointment of a Secretary. The appointment of an Accountant as the Secretary is not prohibited. Next, he would also rely on a Bench decision of this Court, which is produced as an Annexure in the appeal and would contend that the U.P. Body is no longer the financing institution. 10. After hearing Mr. Paresh Tripathi, learned Chief Standing Counsel also, we find that there is no merit in this case. It is not in dispute that the appellant/writ petitioner was once appointed as the Secretary by the Committee of Management. The power under Section 126 of the Act was invoked by the Authorities. It is noteworthy that Section 126 of the Act provides for the Registrar’s power to annul any Resolution passed by the committee, inter alia, if the Resolution is in contravention of the bye-laws of the Society. The Resolution, in such a case, would become void and inoperative and be deleted from the records of the Society. We have already noticed the contents of paragraph ‘F’ of the counter affidavit in this regard. The Resolution, in such a case, would become void and inoperative and be deleted from the records of the Society. We have already noticed the contents of paragraph ‘F’ of the counter affidavit in this regard. The attempts of the appellant/writ petitioner in the appeal and in the further writ petition before this Court were unsuccessful. The result is that the byelaws cannot be overridden by making an illegal appointment against its terms. Yet, the appellant/writ petitioner appears to have been appointed again by the Committee of Management. The next argument, we notice, is an argument that bye-law no. 37 is not in accordance with the Act and the Rules. The scheme of Section 129 of the Act appears to be as follows: Under Section 129(1) of the Act, Societies, which were registered under the Uttar Pradesh Co-operative Societies Act would continue and the bye-laws would also continue, provided they are not contrary either to the Act or the Rules made thereunder. Under Sub-section (3) of Section 129, the bye-laws, to the extent of inconsistency are to be deleted or amended and the Society is to make further bye-laws as may be necessary having regard to the provisions of this Act. This exercise is to be undertaken within a period of one year from the date of coming into force of the Act itself. Sub-section 4 of the Act provides that the Registrar may make necessary amendments, including deletions and additions in the bye-laws of the Society, if there is default committed by the Society within the meaning of sub-section (3) of Section 129 of the Act. There are two aspects, which we must notice in this regard. 11. Firstly, we have not been shown, how bye-law no. 37 is contrary to any provision of the Act or the Rules. Secondly, in the litigation before the statutory authorities and in this Court, there is no case, as such, set up that the bye-laws are contrary to the Act or the Rules. On the other hand, the earlier litigation ended with the observation that as long as the bye-laws remain, they are to be conformed with. Therefore, we see no reason at all to permit the appellant/writ petitioner to contend that bye-law no. 37 is contrary to the Act or the Rules. On the other hand, the earlier litigation ended with the observation that as long as the bye-laws remain, they are to be conformed with. Therefore, we see no reason at all to permit the appellant/writ petitioner to contend that bye-law no. 37 is contrary to the Act or the Rules. We have already adverted to Rule 140 of the Rules besides, of course, Sections 120 and 121 of the Act. The conspectus of the aforesaid provisions would make it clear that there is nothing in those provisions, from which we can say that bye-law no. 37 is inconsistent with any provisions of the Act or the Rules. The persons to be appointed as the Secretary are specifically enumerated in the bye-laws. We see nothing in the Act or the Rules, which provides for somebody else to be appointed as Secretary or that the persons mentioned in the bye-laws cannot be appointed. Therefore, the bye-laws do not run counter to the Act or the Rules. 12. The Society is to be run in terms of the Act, Rules, Regulations and Bye-laws. It is not open to the Committee to disregard the provisions of its own bye-laws. The Resolution, which is passed even by the Committee, which is contrary to the bye-laws, would meet its nemesis, as is contemplated under Section 126 of the Act. 13. We do notice the argument of learned counsel for the appellant/writ petitioner that the Committee alone has the authority to appoint the Secretary. It is noteworthy that the Committee has not approached this Court against the order, by which the Co-operative Inspector has been appointed. The result of allowing the appellant’s case, at any rate, would be to revive the order of the appellant being appointed as Secretary, which is contrary to the bye-laws. In essence, we would be resuscitating an order, which is in the teeth of the bye-laws and, therefore, illegal. The jurisdiction under Article 226 of the Constitution of India is not meant to perpetuate illegality or achieve illegality; on the other hand, it is to keep authorities within the bounds of law. Therefore, we would think that the writ petition filed by the appellant/writ petitioner against the order appointing the Cooperative Inspector cannot be entertained. 14. The jurisdiction under Article 226 of the Constitution of India is not meant to perpetuate illegality or achieve illegality; on the other hand, it is to keep authorities within the bounds of law. Therefore, we would think that the writ petition filed by the appellant/writ petitioner against the order appointing the Cooperative Inspector cannot be entertained. 14. Lastly, the attempt made by the appellant/writ petitioner to draw support from a Bench decision of this Court, produced as Annexure in this appeal, also may not assist the appellant/writ petitioner. This is for the reason that we are still confronted with the specific terms of the bye-laws. The bye-laws stand even today in the very same form, as it stood when the authorities originally intervened under Section 126 of the Act. There is no dispute that the bye-laws have not been amended. Therefore, we would think that, in the circumstances, the writ petition, at the instance of the person, who was appointed by the Committee, at any rate, cannot be countenanced. This is not a case of the Society approaching the Court challenging the order passed appointing the Co-operative Inspector as the Secretary. 15. As regards the question relating to whether the Committee of Management alone has the power of appointment and the Co-operative Inspector could have been appointed by the Registrar, is not a matter, which we should go into at the instance of the appellant/writ petitioner and it is a matter, if at all, to be agitated by the Society. Therefore, we would think that the orders cannot be allowed to be impugned by the appellant/writ petitioner for the reasons, which we have already mentioned. 16. The appeal will stand dismissed without any order as to cost.