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CASE NO.: Appeal (civil)  1728 of 2008

PETITIONER: Suresh

RESPONDENT: Yeotmal Dist. Central Co-op. Bank Ltd. & Anr

DATE OF JUDGMENT: 04/03/2008

BENCH: S.B. Sinha & V.S. Sirpurkar

JUDGMENT: J U D G M E N T  

CIVIL APPEAL NO.      1728 OF 2008 [Arising out of  SLP (Civil) No. 5752 of 2007]

S.B. SINHA, J :          1.      Leave granted.          2.      Application of a purported circular letter dated 6.08.1996 issued by  the Registrar of the Cooperative Societies, State of Maharashtra is in  question in this appeal.

3.      Respondent No. 1 is a cooperative society registered under the  Maharashtra Co-operative Societies Act, 1960 (for short "the Act").  The  Society framed rules prescribing terms and conditions of service of its  employees. Service Rules framed by the respondent no. 1 Cooperative  Society were approved by the Registrar.   

4.      We are concerned with the post of Higher Grade: Manager; the  qualification wherefor is laid down as under:

"The candidate should be a postgraduate and  should be graduate in Economics or Law also he  should have experience in the field of Banking and  Co-operative Sector.  Preference will be given if  he has passed G.D.C. & A exam or has obtained  Diploma in Banking."   

5.      The controversy between the parties hereto arose in the following fact  situation:

       Appellant was appointed in the post of a clerk on 14.12.1974.  He was  confirmed in his service on or about 21.04.1994.  Respondent No. 2,  however, was appointed as Agricultural Development Officer on 26.02.1979  as a direct recruit.  He was brought on the Select List for the purpose of  promotion to the post of Manager in 1994.  The name of the appellant did  not figure therein.  A seniority list was published on 1.04.1995 wherein the  name of the appellant figured at Sl. No. 4; whereas the  name of the  respondent no. 2 figured at Sl. No. 1.

6.      Respondent No. 2 was promoted to the post of Senior Manager on or  about 3.10.1998.   

       Questioning the said seniority list as also the promotion of the  respondent no. 2, the appellant raised a dispute before the Cooperative  Court, Amravati.   Issues were framed having regard to the rival contentions

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of the parties.   

The following findings were recorded by the Cooperative Court in  respect of Issue Nos. (5), (5A) and (6):  "(5) Whether the disputant is entitled to  declaration that the name of opponent  No. 2 is to be removed from the seniority  list of the Select Grade Officers, in  compliance with the Service Rules.

No (5A) Whether the disputant is entitled to  declaration that promotion order issued  on dt. 3.10.1998 of opponent No. 2 is  liable to be quashed?

Yes (6) Whether the disputant is entitled to  promotion on the post of Manager from  deemed date?

Yes"

       As regards, Issue No. 6, the learned Cooperative Court opined:

"48.    As far as concern about the seniority list  published by the opponent No. 1 Bank Exh.37 in  which the name of the disputant is at serial No. 4,  and it is already held that the opponent No. 2 who  stood at serial No. 1 is not eligible or qualified for  the post of Manager.  As far as about the persons  who stood at Serial No. 2 and 3 is concern, at  serial No. 2 one M.R. Kadam is there who is  having the qualification of B.Com, H.D.C. and as  per the service Rules for the post of Manager the  employee should be post graduate and having the  graduation degree in Economics or in Law.   Therefore, those persons are also not having the  qualification for the post of Manager, and the next  person is the disputant who is having the  qualification as per the service Rules who is M.A.  Economics, B.Com. LL.B. and G.D.C. & A.,  D.C.B.  Therefore, the disputant is entitled for the  promotion on the post of Manager from the  deemed date.  Hence, I answer issue No. 6 in the  affirmative."

                The Cooperative Court allowed the said application of the appellant  by a judgment and order dated 16.08.2005 opining that the respondent No. 2  did not possess the requisite qualification.   

7.      Respondent No. 1 preferred an appeal thereagainst before the  Cooperative Appellate Court, which by reason of an order dated 21.06.2006

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was allowed, stating:

"15.    Moreover, it is pertinent to note that the  right of the opponent No. 2 to be in the select  grade candidates has been maintained by the  learned Trial Judge by recording negative finding  on Issue No. 5 in his judgment.  When the Issue  No. 5 is recorded in the negative by the Trial Judge  indirectly he has accepted the right of the opponent  No. 2 to be in the select grade, who has already  placed on Sr. No. 1 in the list published in the year  1997 and which remain undisturbed in the  proceeding before the Industrial Court filed by the  Union long back earlier to the present dispute.

***             ***             *** 18.     As per the Government Circular dated 29th  February 1988 for the post of Manager, the  requisite qualification is laid down Degree of  recognized University in Economics/ Commerce/  Chartered Accountant and Diploma in Cooperation  and Accountancy/ Diploma, in Cooperative  Business Management.  If, the above mentioned  qualification as laid down in the Government  Circular for the post of Manager is considered, I  find it is rightly submitted by the Advocate Shri  Parakhi that opponent No. 2 is having Master’s  degree with subject of Economics i.e. M.Sc (Agril)  having Economics subject and he was also having  Diploma in cooperative Banking.  As per the said  Circular dated 29th February, 1988, the educational  qualification as are laid down with several  Degrees, if one of those is possessed, the person  can be posted to the post of Manager.  Here, the  opponent No. 2 is having Degree/ Master’s Degree  i.e. M.Sc. (Agri.) having Economics subject  therein and in addition to it he is also having  independent educational qualification as Diploma  in Cooperative Banking.  His appointment itself is  in select grade.  So, it cannot be said that he does  not possess a qualification to bring him within the  select list candidate and also to be appointed to the  post of Manager.  The another letter dated  6.8.1996 issued by the Commissioner for  Cooperation, Pune also is referred by Advocate  Parakhi from record (Record Page No. 395).  As  per the said Circular, a person in the post of officer  is required to possess any one of the qualification  as laid down in Paragraph \026 2 thereto amongst  which D.C.B. is one of the educational  qualification and it is possessed by the opponent  No. 2.  So though the disputant is having Law  Degree and other several Diploma’s in addition to  his Commerce Degree and M.A. Degree, it cannot  be said that the educational qualification possessed  by the opponent No. 2 is not adequate which is  required for the post of Manager.  Having excess  educational Diploma and Degrees to particular  person or in our case to the disputant, cannot debar  the opponent No. 2 from the category of the select  list candidates and cannot debar the opponent No.  2 on the post of Manager.  As such the Notification  issued by the Commissioner under Section 74 of  the M.C.S. Act, 1960 has to be accepted.  In view  of the said notification, I hold that the opponent

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No. 2 is having requisite educational qualification  for the post of Manager.  So, submission made by  the disputant cannot be accepted that he is not  having educational qualification for the post of  Manager so, I hold that the learned Trial Judge has  erroneously held that the opponent No. 2 is not  eligible for promotion to the post of Manager as  per the service rules of the bank."

8.      A writ petition preferred thereagainst by the appellant has been  dismissed by reason of the impugned judgment.

9.      At the outset, we may notice that on or about 6.08.1996, the Registrar  Cooperative Societies issued a circular letter purported to be in exercise of  its power conferred upon it under Section 74(1) of the Act, inter alia stating:

"1.     For technical post & above-mentioned post  the prescribed qualification will not be applicable.   For the technical post the concerned Societies can  make changes in their service rules regarding the  qualifications of the appointment & promotion of  the Officers.

***             ***                     ***

7.      As there are changes in the basic Service  Rules, the concern Societies shall take action as  per provisions under the Bombay Industrial  Relation Act to give notice regarding the said  change."           Indisputably such a notice was issued only on 24.09.2001.

10.     Mr. I. Venkatnarayan, learned senior counsel appearing on behalf of  the appellant, submitted that the promotion of the respondent no. 2 to the  post of Manager was illegal as the post of Agricultural Development Officer  was not the feeder post therefor.  In any view of the matter, it was urged,  having regard to the provisions contained in Sub-section (1) of Section 42 of  the Bombay Industrial Relations Act, 1946, any change in the service  conditions was required to be preceded by a proper notice as was advised by  the Registrar of Cooperative Societies in his order dated 6.08.1996 and as  such a notice was issued only on 24.09.2001, the promotion of the  respondent no. 2 must be held to be illegal.

11.     The learned counsel appearing on behalf of the respondents, however,  would support the impugned judgment.

12.     Respondent No. 1 is a cooperative society.  It has its own rules and  bye-laws.  The service rules framed by the respondent no. 1 stand approved  by the Registrar.  We have noticed hereinbefore that in the seniority list  published in the year 1995, the position of the appellant was at Sl. No. 4.   Those candidates whose names appeared at Sl. Nos. 2 and 3 were not  impleaded as parties in the said proceeding.  In their absence, the dispute  could not have been effectively adjudicated upon.   

       This Court in Rashmi Mishra v. M.P. Public Service Commission and  others [(2006) 12 SCC 724], observed:

"16. In Prabodh Verma this Court held: (SCC pp.    273-74, para 28)  "The first defect was that of non-joinder of  necessary parties. The only respondents to the  Sangh’s petition were the State of Uttar Pradesh  and its officers concerned. Those who were vitally  concerned, namely, the reserve pool teachers, were

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not made parties \027 not even by joining some of  them in a representative capacity, considering that  their number was too large for all of them to be  joined individually as respondents. The matter,  therefore, came to be decided in their absence. A  High Court ought not to decide a writ petition  under Article 226 of the Constitution without the  persons who would be vitally affected by its  judgment being before it as respondents or at least  by some of them being before it as respondents in  a representative capacity if their number is too  large, and, therefore, the Allahabad High Court  ought not to have proceeded to hear and dispose of  the Sangh’s writ petition without insisting upon the  reserve pool teachers being made respondents to  that writ petition, or at least some of them being  made respondents in a representative capacity, and  had the petitioners refused to do so, ought to have  dismissed that petition for non-joinder of necessary  parties."  (See also All India SC & ST Employees’ Assn. v.  A. Arthur Jeen and Indu Shekhar Singh v. State of  U.P.)"  

       The dispute raised by the appellant before the Cooperative Appellate  Court, therefore, was not maintainable.  It was so held also by the High  Court.

13.     On that ground alone, this appeal must fail.   

14.     However, as the parties have addressed us at some length on the merit  of the matter, we may as well deal with the contentions raised at the bar.

15.     There is nothing on record to show that the provisions of the Bombay  Industrial Relations Act, 1946 would be attracted in the matter of laying  down qualification for the post of Manager of a Bank.  If the provisions of  the said Act are not applicable, the same ipso facto cannot apply only  because the Registrar of the Cooperative Societies thought so.

16.     It is one thing to say that the respondent no. 2 did not possess essential  qualification for holding the post but it is another thing to say that the  Registrar had exercised its jurisdiction under Section 74 of the Act.   

Section 74 (1) of the Act reads as under: "74. Qualification and appointment of Manager,  Secretary and other officers of societies and Chief  Officer and Financial Officer for certain societies.  

(1) The qualifications for appointment of the Chief  Executive Officer, Finance Officer, Manager,  Secretary, Accountant or any other officer of a  society or a class of societies and his emoluments  and perquisities shall be such as may be  determined by the Registrar, from time to time."   

17.     In terms of the said provision, indisputably, the Registrar could  exercise its jurisdiction for laying down the qualification inter alia for the  post of manager.  When such qualifications are laid down by the Registrar,  he exercises a statutory power.  While exercising such a statutory power,  requirement to comply with the provisions of another statute, viz., issuance  of notice of change in terms of the Bombay Industrial Relations Act, 1946  was not necessary.  They were meant to be done for the industrial workers

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and not for those who exercise supervisory jurisdiction in a cooperative  society.

18.     We have noticed hereinbefore that the Registrar of Cooperative  Societies in its order dated 6.08.1996 merely said that for technical posts, the  prescribed qualification would not be applicable and the concerned societies  can make changes in their service rules regarding qualification of  appointment and promotion.  Only when changes in the service rules were  required to be made, the respective societies were not given a free hand to do  so.  It is only from that angle notice of change was, if at all, required to be  issued.

19.     Respondent No. 2 fulfills the prescribed educational qualification.  It  was found by the appellate court.  It is not the case of the appellant that the  post of Manager could be filled up only by way of promotion.  Such a post  could be filled up also by direct recruitment.  For the said purpose, we may  assume that the post of Agricultural Development Officer is not the feeder  post for promotion to the post of Senior Manager, although no rule in that  behalf has been placed before us.   

20.     We, therefore, are of the opinion that no case has been made out for  interfering with the impugned judgments of the Cooperative Appellate Court  as also the High Court.   The appeal is dismissed accordingly.  No costs.