A civil suit is maintainable for a declaration of inter se seniority between two employees of a cooperative society, as the dispute is of a civil nature and the provisions of the Co-operative Societies Act or Industrial Disputes Act do not apply.

1. This second appeal is by the second defendant in O.S.No.348 of 1988, on the file of the District Munsif s Court, Namakkal. First defendant is the Special Officer, Pandamangalam Primary Co-operative Bank Limited (Second respondent herein) and plaintiff is the first respondent herein.

2. For the sake of convenience, the parties are referred to in this judgment according to the array of parties in the suit.

3. Plaintiff filed the above suit for a declaration that the second defendant is junior to him and also for a declaration that the resolution passed by the first defendant on 9. 1987 appointing the second defendant as Senior Clerk is illegal, incompetent and without jurisdiction.

4. Material averments in the plaint are the plaintiff joined as Clerk on 5. 1976. Initially the appointment was temporary. But his appointment was regularised from 9. 1976. The second defendant was appointed on 11. 1976 in a regular vacancy. Before 11. 1976, the second defendant was working as a clerk in another co-operative society unconnected with the first defendant. By proceedings of the first defendant, he declared the second defendant as senior to plaintiff, and he has been designated as senior clerk, taking into consideration only the alleged seniority. The same was challenged before the Authorities, but it was of no avail. It is alleged by the plaintiff that the order superseding his claim of seniority is illegal and improper. He said that the civil suit is maintainable for getting such a declaration.

5. The second defendant contended that the action of the Registrar, declaring him as senior to plaintiff is correct. He also said that even before 11. 1976 he was working as clerk in another society and that service was also taken into consideration by the Registrar for reckoning his seniority. According to him, usually the same is proper. It is further said that the suit is not maintainable, before civil court, and, therefore, liable to be dismissed with costs.

6. Trial Court, after taking into consideration the evidence, both oral and documentary, came to the conclusion that the order of the first defendant declaring the second defendant as senior is against the well-settled principles of service jurisprudence. According to the trial court, second defendant joined the first defendant only long after the plaintiff was appointed and regularised, For the purpose of seniority, the same alone has to be considered and, therefore, the suit was decreed as prayed for.

7. When the matter was taken in appeal, lower appellate court also concurred with the same finding. The appeal was dismissed. It is against the concurrent decisions of both the Courts, below, second defendant has preferred this second appeal.

.8. At the time of admission of the second appeal the following substantial question of law was framed for consideration: -

."Whether the judgment of the courts below in holding that the suit is maintainable in a civil court is not against Section 156 of the Co-operative Societies Act?"

9. At the time of argument, learned counsel for the appellant did not seriously challenge the factual findings entered by the courts, below, i.e.., the inter se seniority between the plaintiff and the second defendant. According to me, the conclusion arrived at by the courts below is correct, seniority is always reckoned by length of service only. In this case, plaintiff was appointed long before the second defendant was appointed in the Society. Service in a different society cannot be taken into consideration for considering the inter se seniority between them. Therefore, I am of the view, that the findings of the courts below are right.

10. Learned counsel for the appellant contended that the suit is not maintainable. According to him, plaintiff ought to have moved either under the provisions of the Cooperative Societies Act or under the Industrial Disputes Act. A civil suit, according to him, is barred under Section 9 of the Code of Ci