P.Durairajan v. The State Of Tamil Nadu Rep By Its

IN THE HIGH COURT OF JUDICATURE AT MADRAS

ORDER RESERVED ON : 12.02.2025 ORDER PRONOUNCED ON : 21.03.2025

CORAM

THE HON'BLE MRS. JUSTICE N.MALA W.P.No.

and WMP.No's. 347 and 349 of 2022 1.P.Durairajan 2.K.Gopinath 3.R.Balachander 4.J.Loganathan 5.J.Anthony Raj 6.B.Bhuvaneswari 7.M.Sriram Saravana ... Petitioners Vs.

1.The State of Tamil Nadu rep. by its Additional Chief Secretary, Cooperation, Food and Consumer Protection Department, Fort St. George, Chennai- 600 009.

2.The Additional Registrar/Managing Director, Tamil Nadu Cooperative Union, 170, E.V.R. Periyar salai, N.V.N. Maaligai, Kilpauk, Chennai- 600 010.

3.Thiru. Sivaprakasam, Cooperative Development Officer (CDO), Thyagi Sankaralinganar Institute of Cooperative Management, S.R.Naidu Nagar, Sattur,Virudhunagar District. ... Respondents 1/16

Writ Petition is filed under Article 226 of Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for records relating to the order of the 1 st respondent made in G.O.(2D).No.35, Cooperation, Food and Consumer Protection (CK) Department dated 25.10.2021 and that of 2 nd respondent's proceedings made in Na.Ka.No.573/2011/A1 dated 18.11.2021, to quash the same and to consequently direct the 1 st and 2 nd respondents to appoint any eligible person to the post of Cooperative Development Officer (CDO) as per Service Rules and Bye Law.

For Petitioners : Mr. L.Chandrakumar For Respondents : Mr. P.Ganesan Government Advocate for RR1 & 2 Mr.K.M.Ramesh Senior Counsel for Mr.P.Kannan Kumar for R3

ORDER

The petitioners aggrieved by the appointment of the 3 rd respondent as Cooperative Development Officer vide impugned Government Order dated 25.10.2021 and 18.11.2021 have filed the above writ petition. 2/16

2. The petitioners are all working in various posts under the 2 nd respondent.

The 1 st and 2 nd petitioners though already working in the post of Cooperative Development Officer joined hands with the other petitioners, as the induction of the 3 rd respondent as Cooperative Development Officer was in gross violation of the rules and in the deprivation of the other petitioners opportunity for being considered for promotion as Cooperative Development Officer. According to the petitioners, the 3 rd respondent was completely ineligible and fully disqualified for being considered for appointment to the post of Cooperative Development Officer, in view of the specific prohibition and embargo imposed by the Government in G.O.(D).No.31, Cooperation, Food and Consumer Protection Department, dated 14.03.2018.

The petitioners further contended that, the 3 rd respondent was ineligible even as per the statutory rules and therefore the impugned order was unsustainable. The petitioners stated that the 3 rd respondent was initially appointed as Junior Assistant and while working as such, sought for transfer from Madurai region to Chennai region, on the ground that his father was suffering from cancer and that he was required to be in Chennai for specialized treatment of his father.

The 3 rd respondent therefore made a request for transfer of appointment and permanent absorption basis to Chennai region. The said request of the 3 rd respondent was sympathetically considered in accordance with the rules and G.O.(D).No.31, Cooperation, Food and Consumer Protection Department, dated 14.03.2018 was issued, transferring the 3 rd respondent to Chennai region on certain conditions namely, he would be a new entrant, junior most Junior Assistant, he will be placed in the minimum time scale of pay and he shall forgo already rendered services and shall not claim any seniority with respect to the said services. In flagrant violation of the aforesaid G.O, the 3 rd respondent was promoted as Assistant and as Secretary and in gross violation of statutory requirements in the feeder category, now promoted as Cooperative Development Officer by the impugned order.

2(i) The petitioners contend that they all belong to a feeder category and therefore fully eligible to be considered for promoted to the post of Cooperative Development Officer but the illegal promotion of the 3 rd respondent deprived the petitioners their legitimate opportunity to be considered for 4/16

promotion/appointment. The petitioners relying on Rule 29 of the Special by law, submitted that the appointment of the 3 rd respondent was in gross violation of the rule and hence deserved to be set aside. The petitioners therefore stated that they were left with no other alternative, efficacious remedy, but to approach this court by filing the present writ petition for the aforesaid relief.

3. The respondents 1 and 2 filed detailed counter. After tracing the factual background of the litigation they contended that on the request of the 3 rd respondent, the Registrar of Co-operative Societies requested the 1 st respondent vide letter dated 03.09.2021, to pass necessary orders under section 170 of the Tamil Nadu Co-operative Societies Act, 1983 for exempting the 2 nd respondent from the purview of rules 149 (1) & (3), 150(4) &(5) and 151 of the Tamil Nadu Co-operative Society Rules, 1988. Based on the request of the Registrar, Co-operative Societies, the 3 rd respondent was promoted to the post of Co-operative Development Officer on conditions, as stipulated in the impugned orders. According to the respondents, the 3 rd respondent was promoted by 5/16

following the prescribed rules under the Tamil Nadu Co-operative Societies Rules based on a policy decision taken on humanitarian grounds. According to the respondents, the 3 rd respondent had the requisite educational qualification of B.Sc.LLB and D.Coop and he worked for 7 years as Secretary in the Thirumangalam Co-operative Thrift Society and hence, he was fully eligible for promotion to the post of Co-operative Development Officer. The respondents submitted that the impugned orders promoting the third respondent as Co-operative Development Officer were passed purely on humanitarian grounds in pursuance of a policy decision taken as per Section 170 of the Tamil Nadu Co-operative Societies Act, 1983, exempting the 2 nd respondent from the purview of rules 149 (1) & (3), 154(4) & (5) and 151 of the Tamil Nadu Co-operative Societies Rules, 1988. The respondents therefore contended that the impugned orders were valid and justified. The respondents hence prayed that the writ petition be dismissed as merit-less.

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4. The learned counsel for the petitioner submitted that the 3 rd respondent was not eligible and not entitled for promotion, because he was fully and totally disqualified for the post of Co-operative Development Officer, as he did not satisfy the statutory requirements for promotion either from feeder category or by direct requirement, moreso, when the rule prescribed only two methods of promotion, one from feeder category and other by direct recruitment. The learned counsel submitted that the 3 rd respondent was transferred to Chennai region by G.O.(D).No.31, Cooperation, Food and Consumer Protection Department, dated 14.03.2018, under which, strict conditions were imposed for the transfer.

The 3 rd respondent accepted the transfer order without any protest and thereafter he could not claim seniority on the basis of the service rendered by him before joining the Chennai region. The learned counsel further submitted that when the transfer was on fresh appointment basis, the service should be reckoned only from the date of the Government Order i.e. 14.03.2018, and if so reckoned, the 3 rd respondent not having completed 5 years in the feeder category was ineligible.

total non-application of mind, arbitrary exercise of power in a colorable manner and for malice in law. The learned counsel therefore submitted that the impugned orders deserved to be set aside and the writ petition allowed.

5. The learned Government Pleader appearing for the respondents 1 and 2, reiterated the stand taken in the counter affidavit and submitted that by virtue of the power vested in the Government, under Section 170 of the Tamil Nadu Cooperative Act, 1983, necessary exemption from operation of rules 149 (1) & (3), 150 (4) & (5) and 151 of the Tamil Nadu Co-operative Society Rules, 1988, were obtained and only thereafter, the impugned order was passed on the humanitarian grounds. According to the respondents 1 and 2, the promotion of the 3 rd respondent to the post of Co-operative Development Officer was legally valid, and was in accordance with the Rules and hence, the same did not call for any interference by this court.

6. I have heard both the learned counsels and perused the materials on record.

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7. The facts are undisputed and as the same are narrated above they are not traversed to avoid replication. The core issue to be decided in the writ petition is whether the appointment of the 3 rd respondent to the post of Co-operative Development Officer by the impugned orders is valid. In this regard, Rule 29 of the Special By-law is extracted for the better appreciation of the issues arising in the case.

"Rule - 29: 11 post of CDO has to be filled up with TNCU Staff by promotion from feeder category i.e., Senior Assistants and Private Secretary and the remaining 18 posts have to be filled by deputation from the staff of the Cooperative Institutions in District and their qualification has to be prescribed as Graduates and 5 years experience in the post of Secretary/Manager or in the cadre of Chief Executives of Primary Societies/District Level Societies and communication skill is essential."

A bare reading of the above Special By-law, shows that two modes of recruitment for the post of Co-operative Development Officer are provided, one by promotion from feeder category of Senior Assistants and Private Secretary, the 9/16

other by deputation from the staff of Co-operative Institutions in Districts based on their qualification as Graduates with 5 years of experience in the post of Secretary/Manager or in the category of Chief Executives of Primary Societies/District Level Societies and with communication skills. The 3 rd respondent is not eligible for the post of Co-operative Development Officer either by promotion or by deputation. The reason being that on the 3 rd respondent's request for transfer he was transferred from Madurai region to Chennai region vide G.O.(D).No.31, dated 14.03.2018, on the following four conditions. That he shall be (i) a new entrant, (ii) junior most Junior Assistant being placed as a junior below the Approved Probationer in the said cadre, (iii) he will be in the minimum of the time scale of pay and (iv) he shall forego the already rendered services and shall not claim any seniority with reference to the said services.

8. It is seen from the impugned order that the appointment of the 3 rd respondent as Co-operative Development Officer was a direct recruitment and not by way of promotion or deputation. In my view, both the petitioners as well as 10/16

respondents misread and misconceived the appointment order. The petitioners as well as respondents have proceeded, as if, the appointment of the 3 rd respondent to the post of Co-operative Development Officer was by way of promotion/deputation. In the impugned order dated 18.11.2021, it was clearly stated as follows:

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Hence, it is lucid from the impugned order that the 3 rd respondent was directly appointed and for such direct appointment, the Government invoking the power conferred under section 170 of the Tamil Nadu Co-operative Societies Act, exempted the 2 nd respondent/Society from the purview of Rules 149(1), 149(3), 150(4), 150(5) and 151 of the Tamil Nadu Co-operative Society Rules, 1988. The said rules relate to exemption from the method of recruitment, exemption from the rule of reservation for appointment applicable to Government servants, exemption from recruiting through recruitment board, exemption from recruitment through recruitment bureau for Revenue District and exemption from the procedure to be followed by recruitment bureau. On the basis of the said exemptions, the 3 rd respondent was directly appointed as Co-operative Development Officer.

9. When the Government is vested with powers to exempt any registered Society from any of the provisions of the act, except those excepted in the said provisions, the exercise of such power unless it is clearly and cogently established by materials on record to be arbitrary or malafide cannot be interfered. The fact 13/16

that the 3 rd respondent had earlier requested for transfer on the ground of his fathers ailment and the same having been permitted on certain conditions imposed therein, cannot disentitle him from being directly appointed by invoking the powers vested in the Government under Section 170 of the Tamil Nadu Co-operative Societies Act, 1983. In my view, there is no violation of the recruitment rule, because the 3 rd respondent was neither promoted nor appointed by deputation. As the 3 rd respondent's appointment was only by way of direct recruitment after according the requisite exemptions, there is absolutely no infirmity in his appointment. Further it is nobody's case that the third respondent was ineligible for direct recruitment.

Merely because the Government accorded certain exemptions invoking Section 170 the Co-operative Societies Act, to the second respondent it cannot be inferred that the impugned order was tainted with malafide. The petitioner's on a misconception that the 3 rd respondent was promoted as Co-operative Development Officer in violation of Rule 29 of special by-law challenged the appointment order.

appointment was by direct recruitment. Therefore, I find no infirmity or illegality in the impugned orders dated 25.10.2021 and 18.11.2021. In view of the above discussions, I find no merits in the writ petition and therefore, the same is dismissed. However, there shall be no order as to costs. Consequently, connected Writ Miscellaneous Petitions are closed. 21.03.2025 Index:Yes/No Speaking Order: Yes/No dsn/ah To 1.The Additional Chief Secretary, Cooperation, Food and Consumer Protection Department, Fort St. George, Chennai- 600 009.

2.The Additional Registrar/Managing Director, Tamil Nadu Cooperative Union, 170, E.V.R. Periyar salai, N.V.N. Maaligai, Kilpauk, Chennai- 600 010.

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N.MALA,J.

dsn Pre-Delivery Order in W.P.No.314 of 2022 Order Pronounced on 21.03.2025 16/16