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2016 Supreme(Mad) 1151
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
S. MANIKUMAR and C.T. SELVAM, JJ.
The Registrar of Co-operative Societies & Ors. - Appellants
Vs.
M. Panneer Losini & Ors. - Respondents
Writ Appeal(MD)Nos.135 and 138 of 2015 and M.P(MD)Nos.1, 1 and 2 of 2015
Decided On : 08-03-2016
For the Appellants : Mr. B. Pugalenthi Special Government Pleader.
For the R1 (both appeals) : Mr. B. Saravanan.
For the R2 : Mr. D. Shanmugaraja Sethupathi.
Headnote:
Tamil Naidu Co-operative Societies Rules, 1988 - Rule 149 - Contending - Post of Assistant with salary - Challenge in theses appeal is to a common order made in W.P(MD by which a learned single Judge has directed appellants to regularize services of respondent in both appeals/writ petitioners within a time frame - Respondent in W.A has contended that she was appointed as Office Assistant in Primary Agricultural Co-operative Credit Society District - She had passed higher secondary examination and a holder of Diploma in Co-operative Management on date of her appointment - She has been working as Office Assistant till March - Based on the resolution she also continued in day-to-day affairs of Co-operative Society on daily wages at per day with effect - It is also her contention that as no order of regularization was passed she was constrained to file - Held, In spite of this scheme there may be occasions when sovereign State or its instrumentalities will have to employ persons in posts which are temporary on daily wages as additional hands or taking them in without following required procedure to discharge duties in respect of posts that are sanctioned and that are required to be filled in terms of relevant procedure established by Constitution or for work in temporary posts or projects that are not needed permanently - Once this right of Government is recognized and the mandate of constitutional requirement for public employment is respected there cannot be much difficulty in coming to the conclusion that it is ordinarily not proper for the Courts whether acting - Writ Appeals are allowed
S. MANIKUMAR, J.
By consent of both parties, the writ appeals are taken up for final disposal. As facts and submissions are similar, both the writ appeals are heard together and disposed of, by a common judgment.
2. Challenge in theses appeals, is to a common order, made in W.P(MD)Nos.605 and 607 of 2013, dated 18.12.2014, by which, a learned single Judge, has directed the appellants, to regularise the services of the 1st respondent in both the appeals/writ petitioners, within a time frame.
3. M.Panneer Losini 1st respondent in W.A(MD)No.135/15 (Petitioner in W.P(MD)No.605/13), has contended that she was appointed as Office Assistant in A.1187 Primary Agricultural Co-operative Credit Society, C.Pudupatti, Uthamapalayam Taluk, Theni District. She had passed higher secondary examination and a holder of Diploma in Co-operative Management, on the date of her appointment i.e., 03.10.2003. She has been working as Office Assistant till March 2010. Based on the resolution No.6 dated 31.03.2010, she also continued in the day-to-day affairs of Co-operative Society, on daily wages at Rs.100/-per day, with effect from 03.04.2010. It is also her contention that as no order of regularisation was passed, she was constrained to file W.P(MD)No.605 of 2013.
4. M. Karthiyayini, 1st respondent in W.A(MD)No. 138/15 (Petitioner in W.P(MD)No. 607/13), has contended that she was appointed as Assistant on 07.06.1999 in A.1187 Primary Agricultural Co-operative Credit Society, C.Pudupatti, Uthamapalayam Taluk, Theni District, on daily wages, at the rate of Rs.100/-per day. Contending inter alia that she has been continuously working since 1999, without any break in service, she made a representation dated 17.12.2012, to the appellants, by registered post and prayed for regularisation in the post of Assistant, with salary. She had also completed Diploma in Co-operation course, in the year 1995 and 1996 to 1997 respectively. Finding no response, she has filed W.P(MD)No.607 of 2013.
5. Opposing the prayer sought for in both the writ petitions, the 3rd appellant herein/Deputy Registrar of Co-operative Societies, Uthamapalayam, Theni District, in his counter affidavit, has submitted that M.Karthiyayini, 1st respondent in W.A(MD)No.138/15 (Petitioner in W.P(MD)No.607/13) was an outsourced employee, to meet out the exigencies, on daily wage basis. Her appointment was illegal. In so far as M.Panneer Losini, 1st respondent in W.A(MD)No.135/15 (Petitioner in W.P(MD)No.605/13, is concerned, the society had contended that to meet out the exigencies, for a short duration, vide resolution dated 31.03.2010, with effect from 03.04.2010, she was appointed on daily wage basis, at the rate of Rs.100/-per day. After 5 months, the said engagement came to end. Once again, by another resolution dated 10.10.2011, she was engaged on daily wage basis, at the rate of Rs.100/-per day.
6. The society has further contended that appointment of the writ petitioners is contrary to rule 149 of Tamilnadu Co-operative Societies Rules, 1988, and the rules made thereunder. Contentions have also been made that such appointments cannot be regularised.
7. Before the Writ Court, respondents have relied on a decision of the Hon'ble Supreme Court in State of Karnataka vs. M.L.Kesari, reported in (2010) 9 SCC 247, and contended that the embargo introduced in Umadevi's case , has been clarified, by saying that there could be an exception, if the employees fulfil two conditions, viz., (i) the employee who have put in more than ten years of continuous service, without the benefit or protection of any interim orders of any Court or Tribunal, and (ii) the appointment of such employee should not be illegal, even if irregular.
8. Adverting to the objections of the society, the Writ Court repelled the same as hereunder:-
''11. Accepting the reason given by the learned counsel for the fourth respondent, this Court is of the view that the relief sought for by the petitioners should be disallowed. But, this
