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2018 Supreme(Chh) 106

IN THE HIGH COURT OF CHHATTISGARH, BILASPUR
MANINDRA MOHAN SHRIVASTAVA, J.
Gopi Chandrakar S/o Neelkanth Chandrakar and Others – Petitioners
Versus
State Of Chhattisgarh Through The Secretary, Department Of Food, Civil Supplies And Consumer Affairs and Others – Respondents
WPS No.6975 of 2016
Decided On : 02-02-2018

Advocates Appeared:
For the Petitioner:Shri Anup Majumdar, Advocate
For the Respondent:Shri Chandresh Shrivastava, Panel Lawyer, Shri Prafull Bharat with Shri Mayank Chandrakar, Advocates

Headnote:

Co-operative Societies Act, 1960 - Section 48(C)(e)(ii) - Board of Directors amended Rule 11(e) - Constitution of India,1950 - Article 226 - Post of Field Assistant and Accountant - Order of Registrar - Petitioners claim was that they are working in Federation for last 15 years on temporary basis and presently, they are also member of Provident Fund Scheme - Case of petitioners is that in past taking into consideration that number of temporary/daily wage employees have been working in Federation for several years service rules were framed providing weight age for work experience - Referring to relevant rules mentioned in Rule 11(e) of Service Rules it is submitted that these rules provided weight age of 20 marks of work experience in service as temporary/daily wage basis so that they would compete with the candidates from open market in the matter of direct recruitment - Held, Claim of age relaxation has also been made by petitioner relying upon the decision in the case of State of Himachal and another - That was a case where dailywage employees were terminated due to coming to end of project in which they were employed - It was held that Court cannot give any direction to re-engage them without any work or appoint them against existing vacancies, otherwise judicial process would become other mode of recruitment dehors rules - On facts it was stated before Court that such employees had become overage it was observed that if they apply for regular appointment by which time if they become barred by age State was directed to consider necessary relaxation of their age to the extent of their period of service on daily wages and then to consider their cases according to rules if they are otherwise eligible - Petition is dismissed

ORDER :

This petition under Article 226 of the Constitution of India is directed against an advertisement dated 06-12-2016, by which, the respondent No.3 has initiated the recruitment proceedings for appointment to the post of Field Assistant and Accountant (Class III). The petitioners, two in number, are working as Clerk-cum-Cashier in the services of the Federation and are presently posted at Mahasamund. The petitioners claim was that they are working in the Federation for the last 15 years on temporary basis and presently, they are also member of the Provident Fund Scheme. Case of the petitioners is that in the past, taking into consideration that number of temporary/dailywage employees have been working in the Federation for several years, the service rules were framed providing weightage for work experience. Referring to relevant rules mentioned in Rule 11(e) of the Service Rules, it is submitted that these rules provided weightage of 20 marks of work experience in service as temporary/dailywage basis, so that, they would compete with the candidates from the open market in the matter of direct recruitment. According to petitioners, these service rules were proposed under the resolution passed by the Federation and duly approved by the Registrar, Co-operative Societies. Under the new set up, approved in the year 2007, the post of Field Officer, Accountant (Class III) was to be filled up by way of direct recruitment. Vide resolution dated 16-02-2013, the Board of Directors amended Rule 11(e) and the provision for grant of weightage marks for experience, was added. Those amendments have already been subjected to challenge. The Board of Directors passed a resolution on 01-08-2015, proposing amendment in Rule 11(a), (b), (c) & (d), which related to maximum age, reservation and applicability of other conditions in the matter of recruitment. Further averment is that while proposing amendment in aforesaid clauses of Rule 11, as referred to above, the Board of Directors did not propose any amendment in the existing Rule 11(e) of the relevant service rule, which provided for grant of weightage marks for the work experience. However, when the resolution was sent to the Registrar for approval of the service rules, the Registrar, while granting his approval, amended Rule 11, on his own consideration, which was communicated vide order dated 05-08-2015 (Annexure P/15). The petitioners grievance arose at this stage when the Registrar substituted new Rule 11 in place of pre-existing provisions in Rule 11, which is completely different from the scheme of award of weightage marks for experience gained while working as temporary/dailywage employee. This was followed by impugned advertisement, inviting applications for appointment to the post of Field Assistant & Accountant. As the rule no longer provides for grant of weightage marks for work experience, the advertisement also does not provide for any such weightage. It is the aforesaid amendment in Rule 11, vide order dated 05-08-2015 and the impugned advertisement dated 06-12-2016, which is under challenge.

2. Contention of learned counsel for the petitioners is that the order of the Registrar dated 05-08-2015, incorporating the newly amended Rule 11 is in excess of power, arbitrary, illegal and is abuse of the its authority to determine the terms and conditions of employees of the Co-operative Society. The petitioners have worked in the Federation since long. If the weightage of experience is not given, the petitioners may not be able to compete with the candidates from open market. According to learned counsel for the petitioners, the proposal for amendment in the existing service rules having been sent to the Registrar, the Registrar could either approve or disapprove the same, but could not have amended the rule of its own. The submission is that the Board of Directors proposed amendment only in Clause(a) to (d) of Rule 11 of the Service Rules. Therefore, the Registrar could either approv
























































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