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2009 Supreme(Raj) 2367

RAJASTHAN HIGH COURT AT JAIPUR BENCH
Jagdish Bhalla, M.N.Bhandari, JJ.
Rajasthan State Co - Appellant
Versus
Shri K.S. Choudhary & Ors. - Respondent
D.B. Civil Special Appeal (Writ) Nos. 700/2001, 775/2001, 776/2001.
Decided On : 15-10-2009

Advocates:
For the Appellants: Mr. Kamlakar Sharma, Mr. S.P. Sharma, Mr. R.P. Singh, Addl. A.G.
For the Respondents:Mr. R.D. Rastogi, Advocate.

The Administrator of a Cooperative Society is not competent to make amendments in the Service Rules of the Society without the approval of the Board of Directors, and such amendments cannot be made just before the election of the Society.

Headnote:
ADMINISTRATIVE LAW - Amendment in Rules - Competence of Administrator - Rajasthan Cooperative Societies Act, 1965 (Repealed) - Section 36 - Rajasthan State Cooperative Union Employees' Service Rules, 1982 (Rules of 1982) - Rule 26 - Amendment in Rules by Administrator - Whether competent - Promotion to the post of Assistant Cooperative Education Officer (ACEO) - Criteria for promotion - Seniority-cum-merit to merit - Whether amendment in Rules valid - Eligibility of candidate - Rule 8 of Rules of 1982 - Crucial date for consideration of eligibility - Whether promotion of B.S. Soyal valid - Abolition of post of Publicity Officer - Whether legal - Reversion of non-appellant - Whether malafide.
Fact of the Case:

Administrator of the Rajasthan State Cooperative Union (Cooperative Union) proposed an amendment in the Rajasthan State Cooperative Union Employees' Service Rules, 1982 (Rules of 1982) to make the post of Principal eligible for promotion to the post of ACEO. The amendment was approved by the Registrar of Cooperative Societies. Subsequently, the Departmental Promotion Committee (DPC) met and recommended promotion based on the amended Rules. As a result, B.S. Soyal, who was holding the post of Principal, was promoted to the post of ACEO. The petitioners, who were holding the post of Lecturer, challenged the promotion of B.S. Soyal and the amendment in the Rules. The writ petition was allowed by the High Court.
Finding of the Court:

1. The Administrator was not competent to make the amendment in the Rules of 1982 as per Section 36 of the Rajasthan Cooperative Societies Act, 1965 (Repealed). 2. The amendment in the Rules changing the criteria for promotion from seniority-cum-merit to merit was not valid as it was made just before the election of the Cooperative Union. 3. B.S. Soyal was not eligible for promotion as on 1st January, 1994, the crucial date for consideration of eligibility as per Rule 8 of the Rules of 1982. 4. The promotion of B.S. Soyal was not justified even if the amendment in the Rules was held to be valid as he did not meet the criteria for merit as per the general instruction applicable in the State of Rajasthan. 5. The abolition of the post of Publicity Officer was illegal as it was created under the Rules and could not be abolished without an amendment in the Rules. 6. The reversion of the non-appellant, K.S. Chaudhary, was not malafide but was a consequence of the abolition of the post of Publicity Officer.
Issues: 1. Whether the Administrator was competent to make the amendment in the Rules of 1982? 2. Whether the amendment in the Rules changing the criteria for promotion from seniority-cum-merit to merit was valid? 3. Whether B.S. Soyal was eligible for promotion as on 1st January, 1994? 4. Whether the promotion of B.S. Soyal was justified even if the amendment in the Rules was held to be valid? 5. Whether the abolition of the post of Publicity Officer was legal? 6. Whether the reversion of the non-appellant, K.S. Chaudhary, was malafide?
Ratio Decidendi: 1. The Administrator is not competent to make amendments in the Rules of 1982 as per Section 36 of the Rajasthan Cooperative Societies Act, 1965 (Repealed). 2. An amendment in the Rules changing the criteria for promotion from seniority-cum-merit to merit just before the election of the Cooperative Union is not valid. 3. The crucial date for consideration of eligibility for promotion is 1st January of the year of promotion as per Rule 8 of the Rules of 1982. 4. Promotion of a candidate who was not eligible as on the crucial date is not justified even if the amendment in the Rules is held to be valid. 5. Abolition of a post created under the Rules is illegal without an amendment in the Rules. 6. Reversion of an employee as a consequence of the abolition of the post is not malafide.
Final Decision: The appeals filed by the appellants were dismissed. The amendment in the Rules of 1982 and the promotion of B.S. Soyal were set aside. The abolition of the post of Publicity Officer and the reversion of the non-appellant, K.S. Chaudhary, were held to be illegal. The order of the High Court was upheld.

JUDGMENT

1. - These three appeals are directed against the judgment dated 21.7.2001. Since all the appeals raise common grounds of challenge, thus appeals were heard together and decided by this common judgment.

2. The petitioners/non-appellants preferred a writ petition challenging the order of promotion of Shri B.S. Soyal promoting him to the post of Assistant Cooperative Education Officer (for short `the ACEO') and amendment dated 15.10.1994 amending Rajasthan State Cooperative Union Employees' Service Rules, 1982 (for short `the Rules of 1982'). A further challenge to the orders dated 11.11.1994 and 22.11.1994 was also made. By these two orders the post of Publicity Officer held by the petitioners/non-appellants was abolished and the petitioners were reverted to the post of Lecturer. The writ petition so preferred by the petitioners-non-appellants was allowed by the impugned order.

3. Matter in dispute mainly pertains to the promotion to the post of ACEO. Prior to 15.10.1994, the aforesaid post was to be filled from and amongst eligible Project Officer and Public Relation Officer. The criteria for promotion was seniority-cum-merit. An amendment in the Rules of 1982 was proposed by the Administrator of the Rajasthan State Cooperative Union (in short `the Cooperative Union'). The proposed amendment was approved by the Registrar of Cooperative Societies on 15.10.1994 and on the same date, DPC met and recommended promotion based on the amended Rules. As per the amended Rules, a candidate holding the post of Principal was made eligible for promotion and at the same time criteria for promotion was changed from seniority-cum-merit to merit alone. As result of the amendment in the Rules, Shri B.S. Soyal was also considered for promotion amongst other eligible candidates including few candidates holding the post of Principal and as B.S. Soyal was found to be meritorious candidate by the DPC, he was granted promotion. The writ petition was filed by the petitioners to challenge the various orders already indicated. Based on those challenges, learned Single Judge formulated certain questions for its decision and all those questions were thereafter answered in favour of the non-appellant-petitioners.

4. Learned counsels appearing for the appellants argued that amendment in the Rules of 1982 dated 15.10.1994 has wrongly been quashed by the learned Single Judge. As per the provisions of Rule 26 of the Rules of 1982, the Board of Directors of the Union is authorised to make amendment in the Rules with the prior approval of the Registrar. In the instant case, since the Board of Directors not existing and Administrator was looking after the affairs of the Cooperative Union, an amendment was proposed by the Administrator within his competence. Referring to Section 36 of the Rajasthan Cooperative Societies Act, 1965 (for short `the Act of 1965 (now repealed), it is stated that the Administrator is given all the powers of the Board of Directors, thus as per Act of 1965, the Administrator proposed an amendment in the Rules by which post of Principal to be made eligible for promotion to the post of ACEO and the said amendment was proposed in the month of December 1993. The precise reason for proposed amendment was that one Laxman Singh, who was working on the post of Principal was given promotion to post of ACEO in the year 1980 and he remained on the post of till the year 1993, thus for all those relevant years, a Principal itself was holding the post of ACEO. The Administrator taking not of the aforesaid fact treated it to be a case of bona fide error that the post of Principal was not printed in the Schedule/Rules for providing avenue of promotion to the post of ACEO. The aforesaid proposal remained under consideration with the Registrar because amendment in the Rules of 1982 can be made by the Board of Directors subject to prior approval of the Registrar. The Registrar approved those amendment on 15.10.1994 and accordingly on amendment of the R

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2009 Supreme(Raj) 2367

RAJASTHAN HIGH COURT AT JAIPUR BENCHJagdish Bhalla, M.N.Bhandari, JJ.Rajasthan State Co - AppellantVersusShri K.S. Choudhary & Ors. - RespondentD.B. Civil Special Appeal (Writ) Nos. 700/2001, 775/2001, 776/2001.Decided On : 15-10-2009

The Administrator of a Cooperative Society is not competent to make amendments in the Service Rules of the Society without the approval of the Board of Directors, and such amendments cannot be made just before the election of the Society.

Cases Referred (3)

RAJASTHAN HIGH COURT AT JAIPUR BENCH
Jagdish Bhalla, M.N.Bhandari, JJ.
Rajasthan State Co - Appellant
Versus
Shri K.S. Choudhary & Ors. - Respondent
D.B. Civil Special Appeal (Writ) Nos. 700/2001, 775/2001, 776/2001.
Decided On : 15-10-2009