IMPORTANT POINT
An appointment made in violation of the mandatory provisions of the Statute and in particular ignoring the minimum educational qualification and other essential qualification would be wholly illegal and such illegality cannot be cured by taking recourse to regularisation.

Headnote:SERVICE LAW-Tamil Nadu Cooperative Societies Act, 1983-Sections 170 and 182-Tamil Nadu Cooperative Societies Rules, 1988-Rule 149-Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981-Regularisation of service-Recruitments made beyond permissible cadre strength and without following other mandatory provisions-A large number of employees, i.e. about 39 of the total strength of employees of co-operative societies in State of Tamil Nadu were appointed without notifying the Vacancies to Employment Exchanges-A large number of appointees did not have requisite educational qualification-Reservation policy of the State was also not followed by co-operative societies-To condone such serious lapses on part of the Cooperative Societies in making such appointments, State Government issued various orders for regularising such appointments-GOMs No. 86 dated 12.3.2001 whereby the State Government sought to regularise appointments made after 8.7.1980 in respect of employees who had completed 480 days of service in two years-Writ petitions-Whether the State had the requisite authority to direct regularisation of services of employees of cooperative societies by reason of impugned GOMs. No. 86-(No)-No regularisation is permissible in exercise of statutory power if appointments have been made in contravention of statutory Rules.
       Held : Regularisation, in our considered opinion, is not and cannot be the mode of recruitment by any "State" within the meaning of Article 12 of the Constitution of India or any body or authority governed by a Statutory Act or the Rules framed thereunder. It is also now well-settled that an appointment made in violation of the mandatory provisions of the Statute and in particular ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularisation. (Para 38)
       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 they could do so on their own. The State has not borne any part of the financial burden. It was, therefore, impermissible for the State to direct regularization 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. (Para 59)
       In Civil Appeal No. 1413 of 2003 an additional ground has been raised to the effect that as the appellant was appointed on a compassionate ground, this Court on sympathetic consideration should issue appropriate directions directing the respondents to regularize her services. It appears that the appellant was appointed as supervisor in 3rd respondent Bank by the President of the Bank on a consolidated pay of Rs. 2500/- by an order dated 5.03.2001. Her appointment is said to have been made on compassionate ground on the plea that her husband had deserted her. It has not been shown before us that there exists a scheme in terms whereof deserted woman can be appointed on compassionate grounds. Even such appointment, in our opinion, would be illegal. (Para 65)

Judgement Key Points

Based on the provided legal document, here are the key points regarding the regularization of appointments in cooperative societies in Tamil Nadu:

1. Illegality of Appointments Violating Mandatory Statutes - An appointment made in violation of mandatory provisions of the Statute, particularly by ignoring minimum educational qualifications and other essential qualifications, is wholly illegal. - Such illegality cannot be cured by taking recourse to regularization. The court held that "those who come by backdoor should go through that door." (!) (!)

2. Regularization is Not a Mode of Recruitment - Regularization is not and cannot be a mode of recruitment by any "State" within the meaning of Article 12 of the Constitution of India, or by any body governed by a Statutory Act. - Regularization cannot give permanence to an employee whose services are ad-hoc in nature. (!) (!)

3. Invalidity of State Government Orders (G.O.Ms. No. 86) - The State Government lacked the requisite authority under Sections 170 and 182 of the Tamil Nadu Cooperative Societies Act, 1983, to issue orders directing the regularization of services of employees of cooperative societies. - Consequently, G.O.Ms. No. 86 dated 12.3.2001, which sought to regularize appointments made after 8.7.1980, is a nullity. (!) (!) (!)

4. Applicability of Industrial Establishments Act - Cooperative Societies are not necessarily "Commercial Establishments" under the Tamil Nadu Shops and Establishments Act, 1947. - The State failed to declare them as such in the impugned order, rendering the application of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, improper. (!) (!)

5. Violation of Recruitment Rules - A large number of employees were appointed without notifying vacancies to Employment Exchanges, without following mandatory provisions, without requisite educational qualifications, and without adhering to the reservation policy. - Recruitments were made beyond the permissible cadre strength. (!) (!) (!) (!)

6. State's Lack of Control and Financial Burden - The State has no administrative control over the day-to-day affairs of cooperative societies (except nodal center functions), did not create the posts, and did not bear the financial burden. - Therefore, it was impermissible for the State to direct regularization of these employees, regardless of the length of their service. (!)

7. Rejection of Compassionate Grounds - Even appointments made on compassionate grounds (e.g., due to desertion) were found to be illegal as there was no scheme in terms whereof deserted women could be appointed on compassionate grounds. - Sympathy cannot be a ground for passing orders contravening statutory provisions. (!) (!) (!)

8. Precedents on Backdoor Recruitment - The court cited numerous precedents (e.g., State of H.P. Vs. Suresh Kumar Verma, State of U.P. Vs. U.P. State Law Officers Association, Ashwani Kumar) establishing that backdoor direct recruitments cannot be permitted and cannot be regularized. (!) (!) (!) (!)

JUDGMENT

S.B. Sinha, J.-Leave granted in S.L.P. (C) No. 1096 of 2004.

2. These appeals are directed against a judgment and order dated 24.10.2002 passed by a Division Bench of the High Court of the Judicature at Madras whereby and whereunder several writ appeals filed by the Appellants herein and writ petitions filed by the Private Respondents were disposed of.

3. The basic fact of the matter is not in dispute.

Cooperative Societies and Land Development Banks constituted and registered in the State of Tamil Nadu used to be governed under Tamil Nadu Cooperative Societies Act, 1961 (for short "the 1961 Act") and the Tamil Nadu Land Development Banks, Act, 1934. The State framed rules under the 1961 Act known as Madras Cooperative Societies Rules, 1963.

4. The 1961 Act and 1934 Act were repealed and replaced by Tamil Nadu Cooperative Societies Act, 1983 (for short "the 1983 Act"). Pursuant to or in furtherance of the powers conferred thereunder, the State framed rules known as the Tamil Nadu Cooperative Societies Rules, 1988 (for short "the 1988 Rules"). The 1983 Act and the 1988 Rules came into force with effect from 13.4.1988.

5. It is not in dispute that a large number of employees, i.e., about 39 of the total strength of the employees of the cooperative societies in the State of Tamil Nadu, were appointed without notifying the vacancies to the Employment Exchanges and without following the other mandatory provisions of the Act and the Rules framed thereunder relating to recruitment.

6. It is not in dispute that a large number of appointees furthermore did not have the requisite educational qualification or other qualification like cooperative training etc. The reservation policy of the State was also not followed by the cooperative societies. The Recruitments were made beyond the permissible cadre strength.

7. With a view to condone the serious lapses on the part of the Cooperative Societies in making such appointments in illegal and arbitrary manner, the Government of the State of Tamil Nadu issued various orders from time to time in terms whereof such appointments were sought to be regularised fixing a cut off date therefor. Firstly, G.O.Ms. No. 790 dated 5.7.1971 was issued ratifying the irregular appointments made otherwise than through employment exchange upto 5.7.1971. Further, by G.O.Ms. No. 1352 dated 7.11.1978, the cut off date was extended upto 31.12.1977. Yet again, by G.O.Ms. No. 605 dated 3.6.1980, the cut off date was extended upto 31.12.1979. By G.O.Ms. No. 312 dated 30.11.1987 the cut off date was furthermore extended upto 8.7.1980. Ultimately, by G.O.Ms. No. 86 dated 12.3.2001 the cut off date was extended upto 11.3.2001 are thereby the Government of Tamil Nadu sought to regularise appointments made after 8.7.1980 in the Cooperative Societies without notifying the Employment Exchange in respect of those employees who had completed 480 days of service in two years purported to be in terms of Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 (for short the 1981 Act ).

8. Relying on or on the basis of the said G.O.Ms. No. 86 dated 12.3.2001, several writ petitions were filed in the High Court of Judicature at Madras praying for issuance of appropriate directions regularising the services of the employees working in the Cooperative Societies of the State of Tamil Nadu. Some writ petitions were dismissed whereagainst writ appeals were filed. A large number of writ petitions were also placed before the Division Bench for hearing.

9. The legality and/or validity of the aforementioned GOMs No. 86 dated 12.3.2001 fell for consideration before the Division Bench in the said writ appeals and writ petitions.

10. Having regard to rival contentions the Division Bench of the High Court framed the following issues for its consideration:

"(i) whether the writ petitions are maintainable?

(ii) whether the cooperative societies are covered by the provisions of Tam

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2004 Supreme(SC) 752

IMPORTANT POINTAn appointment made in violation of the mandatory provisions of the Statute and in particular ignoring the minimum educational qualification and other essential qualification would be wholly illegal and such illegality cannot be cured by taking recourse to regularisation.

Cases Referred (31)

IMPORTANT POINT
An appointment made in violation of the mandatory provisions of the Statute and in particular ignoring the minimum educational qualification and other essential qualification would be wholly illegal and such illegality cannot be cured by taking recourse to regularisation.