VELLORE DISTRICT CENTRAL CO OPERATIVE BANK EMPLOYEES UNION Vs. REGISTRAR OF CO OPERATIVE SOCIETIES CHENNAI

JUDGEMENT

(1.) The impugned order that is challenged in this writ petition is that of the second respondent, Special Officer, Vellore District Central Co-operative Bank Limited, dated 11.4.2008, under which the second respondent has appointed the respondents 3 to 9 as Assistant Managers of the second respondent bank on temporary basis for a period of two years stating that after completion of first year, they would be treated as having completed the probation period.

(2.) The writ petition is filed by the Union of employees of the second respondent bank which is a Co-operative Society governed by the provisions of the Tamil Nadu Co-operative Societies Act,1983. In respect of service conditions of the employees, bye-laws have been framed by the second respondent bank. It is stated that as per Rule 149 of the Tamil Nadu Co-operative Societies Rules,1988, bye-laws were framed regarding service conditions of employees of the second respondent bank in the year 1988, which were subsequently amended including the amendment relating to fixation of cadre strength, classification of various categories of posts, qualification, method of recruitment, scale of pay, etc. and that the cadre strength of the second respondent was approved by the competent authority. It is also stated that the service conditions of employees of the second respondent are also covered by the settlements arrived at as per section 12 (3) of the Industrial Disputes Act,1947, between the management and employees on 6.2.1997 and 2.12.2003 and those matters which were not covered by the said settlements, continued to be covered by the previous settlements.2 (a ). It is the case of the petitioner Union that after the decision of a Division Bench of this Court in L. Justine and others vs. Registrar of Co. operative Societies, 2002 4 CTC 385 wherein in case where Society's cadre strength was not fixed, it was directed that the Society should frame special bye-laws in conformity with Rule 149, and subsequently, on 19.12.2002, the Division Bench in another batch of writ petitions directed the Special Officers of Co-operative Societies to frame model bye-laws after hearing the petitioner Union of workers and send the same for approval by the competent authority.2 (b ). In another judgment dated 8.1.2003, the Division Bench of this Court has clarified that in cases which are covered by the decision in Justin s case, 2002 4 CTC 385, if the cadre strength has already been fixed by taking into consideration of various Government Orders, the same would stand. It is stated that subsequently the second respondent has produced the bye-laws and the views of various Unions including the petitioner Union were called for and proposals were given, and thereafter, the second respondent framed bye-laws and sent for approval of the first respondent on 31.5.2004, which according to the petitioner Union is not one which is in accordance with law and the second respondent decided unilaterally by not taking into consideration various directions issued by the Court.2 (c ). It is stated that the set of Special bye-laws forwarded by the first respondent has been approved by the State Government in G. O. Ms. No.233, Co-operation, Food and Consumer Protection Department, dated 31.5.2004. Challenging the said G. O. , the petitioner Union has filed W. P. No.14175 of 2005 in which the operation of the said G. O. Ms. No.233, dated 31.5.2004 was stayed and the writ petition is still pending and due to the pendency of the said petition, there has been stagnation in the matter of further promotion in respect of various employees, even though employees have put in number of years of service. The first respondent has lifted ban on recruitment on 7.9.2007 with directions to fill up various posts. It was, based on the same, the petitioner Union submitted a representation on 25.10.2007 to the second respondent requesting to effect appropriate promotion to various posts, but the first respondent constituted a Committee on 3.3.2008 to fix cadre strength of all District Central Co-operative Banks and the representation of the petitioner Union was also communicated to the said Committee and the Committee is yet to submit its report. Under those circumstances, the second respondent, without reference to the above said developments, has passed the impugned order dated 11.04.2008 unilaterally appointing the respondents 3 to 9 in the post of Assistant Manager by direct recruitment.2 (d ). It is the case of the petitioner Union that there was no public advertisement regarding the recruitment and the names were called for from the Employment Exchange without following the recruitment process of selection and therefore, the said recruitment is bad. As per the existing service conditions for appointment of Assistant Managers, a person should have worked as Assistant for three years and the post of Assistant Manager has to be filled up by following 1:3 ratio, viz. , one post by direct recruitment and three posts by way of promotion from the post of Assistants and according to the petitioner Union, as on date, there are 79 eligible Assistants and many of them have got experience.2 (e ). It is also the case of the petitioner that the second respondent has never made direct recruitment for the post of Assistant Manager and the same was followed in nearly 23 District Central Co-operative Banks and therefore, the appointment of respondents 3 to 9 is illegal and the appointment is challenged on the ground that it violates Articles 14 and 16 of the Constitution of India and the appointment is against the direction or circular issued by the first respondent dated 7.9.2007 wherein vacant posts in the co-operative institutions were directed to be filled up by promotion from eligible persons in feeder category and in the absence of finalisation of cadre strength and formation of special Bye-laws as directed by this Court in Justin s case, 2002 4 CTC 385, the impugned orders of appointment are not valid and without taking into consideration the large number of employees being stagnated in the second respondent bank, the calling for names and sponsoring of names by the Employment Exchange is not proper and the second respondent has not followed 1:3 ratio of direct recruitment and departmental promotion.

(3.) In the counter affidavit filed by the second respondent along with the petition to vacate the order of injunction granted by this Court, in paragraph-11, the second respondent has stated that as per Regulations No.294, the recruitment to the post of Assistant Manager has to be effected in the ratio of 3:1 by way of promotion and direct recruitment respectively. It is stated that as on 30.11.2006, the vacancy position was 20 and on applying the above said 3:1 ratio, 16 posts were determined to be filled up by way of direct recruitment. It is stated that necessary permission was obtained from the first respondent on 4.12.2006 placing on record the recruitment requirements for 16 posts of Assistant Manager by way of direct recruitment. The said paragraph-11 of the counter affidavit is as follows: " 11. It is pertinent to submit that as per the regulations No.294 the recruitment to the post of Assistant Manager was in the ratio of 75:25 to be made by promotions and direct recruitment. The vacancy position as on 30.11.2006 being 20 on the basis of the 3:1 ratio, also taking into account the number of candidates holding the promotional posts endurable to the promotes, 16 posts were determined to be filled up by way of direct recruitment. Necessary permission was obtained from the first respondent herein by this respondent on 04.12.2006, placing on record the requirement towards filling up of the 16 posts of Assistant Managers by way of direct recruitment. " 3 (a ). A reference to the said contents of paragraph-11 of the counter affidavit shows that while admitting that the ratio to be followed for appointment to the post of Assistant Manager by way of promotion and direct recruitment as 3:1, the second respondent has appointed 16 persons by way of direct recruitment out of 20 posts which are totally and diametrically opposed to the stand of the second respondent itself. It is also seen that in paragraph 15 of the counter affidavit the understanding of the second respondent has been clearly revealed that the proposal was to appoint by promotion and direct recruitment in the ratio of 3:1 and the said paragraph-15 is as follows: " 15. In the present Writ Petition, what has been purported to be stalled in the filling up of the post of Assistant Manager under direct recruitment category and the petitioners would plead for filling up of the said category of posts also by way of promotion which would render the entire category of Assistant Manager posts as a promotional post in contrast to the prevailing regulations which has determined a ratio between promotes and direct recruiters in the 3:1 ratio. " in spite of it, admittedly, the second respondent obtained permission from the first respondent to appoint 16 persons by way of direct recruitment and 4 persons by way of promotion. The contradictory stand of the second respondent is patent even in paragraph-17 of the counter affidavit which is as follows: " 17. Therefore, it is only amongst these 63 determined posts the ratio of 3:1 is to be effected, which takes into account the manner in which recruitment of the existing staff had also been caused. Only thereupon this respondent by proceedings dated 04.12.2006 had determined that out of the vacant 20 posts, 4 has to be filled up by way of promotion and 16 were to be filled by way of direct recruitment. " 3 (c ). In paragraph-17 it is reiterated that out of 20 vacant posts only four were filled up by promotion while 16 posts were filled up by direct recruitment. It is further stated that the first respondent has not given permission to fill up four posts by promotion and only in respect of 15 posts by direct recruitment, permission was granted and therefore, 15 posts were filled up. It is further relevant to note that in paragraph-28 of the counter affidavit again a contradictory stand has been taken by the second respondent in the following words: " 28. . . . . When the said rule contemplates filling up of the post of Assistant Manager in a 1:3 ratio for each one post of direct recruitment, three posts were to be made by way of promotion, sixteen identified posts available as vacant were direct recruitment posts as per the report submitted on 04.12.2006 and only on the basis of the report dated 04.12.2006, permission was granted by the first respondent on 05.03.2007 to fill up the direct recruitment posts. "