Vs. Yeotmal Dist. Central Co-Op. Bank Ltd. & ANR  INSC 365 (4 March 2008)
S.B. Sinha & V.S. Sirpurkar CIVIL APPEAL NO. 1728 OF 2008 [Arising out of SLP (Civil) No. 5752 of 2007]
S.B. SINHA, J :
1. Leave granted.
2. Application of a purported circular letter dated 6.08.1996 issued by the
Registrar of the Cooperative Societies, State of Maharashtra is in question in
3. Respondent No. 1 is a cooperative society registered under the
Maharashtra Co-operative Societies Act, 1960 (for short "the Act").
The Society framed rules prescribing terms and conditions of service of its
employees. Service Rules framed by the respondent no. 1 Cooperative Society
were approved by the Registrar.
4. We are concerned with the post of Higher Grade: Manager; the
qualification wherefor is laid down as under:
"The candidate should be a postgraduate and should be graduate in
Economics or Law also he should have experience in the field of Banking and
Co-operative Sector. Preference will be given if he has passed G.D.C. & A
exam or has obtained Diploma in Banking."
5. The controversy between the parties hereto arose in the following fact
Appellant was appointed in the post of a clerk on 14.12.1974. He was
confirmed in his service on or about 21.04.1994. Respondent No. 2, however, was
appointed as Agricultural Development Officer on 26.02.1979 as a direct
recruit. He was brought on the Select List for the purpose of promotion to the
post of Manager in 1994. The name of the appellant did not figure therein. A
seniority list was published on 1.04.1995 wherein the name of the appellant
figured at Sl. No. 4; whereas the name of the respondent no. 2 figured at Sl.
6. Respondent No. 2 was promoted to the post of Senior Manager on or about
Questioning the said seniority list as also the promotion of the respondent
no. 2, the appellant raised a dispute before the Cooperative Court, Amravati.
Issues were framed having regard to the rival contentions of the parties.
The following findings were recorded by the Cooperative Court in respect of
Issue Nos. (5), (5A) and (6):
"(5) Whether the disputant is entitled to declaration that the name of
opponent No. 2 is to be removed from the seniority list of the Select Grade
Officers, in compliance with the Service Rules.
No (5A) Whether the disputant is entitled to declaration that promotion
order issued on dt. 3.10.1998 of opponent No. 2 is liable to be quashed? Yes
(6) Whether the disputant is entitled to promotion on the post of Manager from
deemed date? Yes"
As regards, Issue No. 6, the learned Cooperative Court opined:
"48. As far as concern about the seniority list published by the
opponent No. 1 Bank Exh.37 in which the name of the disputant is at serial No.
4, and it is already held that the opponent No. 2 who stood at serial No. 1 is
not eligible or qualified for the post of Manager. As far as about the persons
who stood at Serial No. 2 and 3 is concern, at serial No. 2 one M.R. Kadam is
there who is having the qualification of B.Com, H.D.C. and as per the service
Rules for the post of Manager the employee should be post graduate and having
the graduation degree in Economics or in Law.
Therefore, those persons are also not having the qualification for the post
of Manager, and the next person is the disputant who is having the
qualification as per the service Rules who is M.A.
Economics, B.Com. LL.B. and G.D.C. & A., D.C.B. Therefore, the disputant
is entitled for the promotion on the post of Manager from the deemed date.
Hence, I answer issue No. 6 in the affirmative."
The Cooperative Court allowed the said application of the appellant by a
judgment and order dated 16.08.2005 opining that the respondent No. 2 did not
possess the requisite qualification.
7. Respondent No. 1 preferred an appeal thereagainst before the Cooperative
Appellate Court, which by reason of an order dated 21.06.2006 was allowed,
"15. Moreover, it is pertinent to note that the right of the opponent
No. 2 to be in the select grade candidates has been maintained by the learned Trial
Judge by recording negative finding on Issue No. 5 in his judgment. When the
Issue No. 5 is recorded in the negative by the Trial Judge indirectly he has
accepted the right of the opponent No. 2 to be in the select grade, who has
already placed on Sr. No. 1 in the list published in the year 1997 and which
remain undisturbed in the proceeding before the Industrial Court filed by the
Union long back earlier to the present dispute.
*** *** ***
18. As per the Government Circular dated 29th February 1988 for the post of
Manager, the requisite qualification is laid down Degree of recognized
University in Economics/ Commerce/ Chartered Accountant and Diploma in
Cooperation and Accountancy/ Diploma, in Cooperative Business Management. If,
the above mentioned qualification as laid down in the Government Circular for
the post of Manager is considered, I find it is rightly submitted by the
Advocate Shri Parakhi that opponent No. 2 is having Master's degree with
subject of Economics i.e. M.Sc (Agril) having Economics subject and he was also
having Diploma in cooperative Banking. As per the said Circular dated 29th
February, 1988, the educational qualification as are laid down with several
Degrees, if one of those is possessed, the person can be posted to the post of
Manager. Here, the opponent No. 2 is having Degree/ Master's Degree i.e. M.Sc.
(Agri.) having Economics subject therein and in addition to it he is also
having independent educational qualification as Diploma in Cooperative Banking.
His appointment itself is in select grade. So, it cannot be said that he does
not possess a qualification to bring him within the select list candidate and
also to be appointed to the post of Manager. The another letter dated 6.8.1996
issued by the Commissioner for Cooperation, Pune also is referred by Advocate
Parakhi from record (Record Page No. 395). As per the said Circular, a person
in the post of officer is required to possess any one of the qualification as
laid down in Paragraph 2 thereto amongst which D.C.B. is one of the
educational qualification and it is possessed by the opponent No. 2. So though
the disputant is having Law Degree and other several Diploma's in addition to
his Commerce Degree and M.A. Degree, it cannot be said that the educational
qualification possessed by the opponent No. 2 is not adequate which is required
for the post of Manager. Having excess educational Diploma and Degrees to
particular person or in our case to the disputant, cannot debar the opponent
No. 2 from the category of the select list candidates and cannot debar the
2 on the post of Manager. As such the Notification issued by the
Commissioner under Section 74 of the M.C.S. Act, 1960 has to be accepted. In
view of the said notification, I hold that the opponent No. 2 is having
requisite educational qualification for the post of Manager. So, submission
made by the disputant cannot be accepted that he is not having educational
qualification for the post of Manager so, I hold that the learned Trial Judge
has erroneously held that the opponent No. 2 is not eligible for promotion to
the post of Manager as per the service rules of the bank."
8. A writ petition preferred thereagainst by the appellant has been
dismissed by reason of the impugned judgment.
9. At the outset, we may notice that on or about 6.08.1996, the Registrar
Cooperative Societies issued a circular letter purported to be in exercise of
its power conferred upon it under Section 74(1) of the Act, inter alia stating:
"1. For technical post & above-mentioned post the prescribed
qualification will not be applicable.
For the technical post the concerned Societies can make changes in their
service rules regarding the qualifications of the appointment & promotion
of the Officers.
*** *** ***
7. As there are changes in the basic Service Rules, the concern Societies
shall take action as per provisions under the Bombay Industrial Relation Act to
give notice regarding the said change."
Indisputably such a notice was issued only on 24.09.2001.
10. Mr. I. Venkatnarayan, learned senior counsel appearing on behalf of the
appellant, submitted that the promotion of the respondent no. 2 to the post of
Manager was illegal as the post of Agricultural Development Officer was not the
feeder post therefor. In any view of the matter, it was urged, having regard to
the provisions contained in Sub-section (1) of Section 42 of the Bombay
Industrial Relations Act, 1946, any change in the service conditions was
required to be preceded by a proper notice as was advised by the Registrar of
Cooperative Societies in his order dated 6.08.1996 and as such a notice was
issued only on 24.09.2001, the promotion of the respondent no. 2 must be held
to be illegal.
11. The learned counsel appearing on behalf of the respondents, however,
would support the impugned judgment.
12. Respondent No. 1 is a cooperative society. It has its own rules and
bye-laws. The service rules framed by the respondent no. 1 stand approved by
the Registrar. We have noticed hereinbefore that in the seniority list
published in the year 1995, the position of the appellant was at Sl. No. 4.
Those candidates whose names appeared at Sl. Nos. 2 and 3 were not impleaded
as parties in the said proceeding. In their absence, the dispute could not have
been effectively adjudicated upon.
This Court in Rashmi Mishra v. M.P. Public Service Commission and others
[(2006) 12 SCC 724], observed:
"16. In Prabodh Verma this Court held: (SCC pp.
273-74, para 28) "The first defect was that of non-joinder of necessary
parties. The only respondents to the Sangh's petition were the State of Uttar
Pradesh and its officers concerned. Those who were vitally concerned, namely,
the reserve pool teachers, were not made parties not even by joining some of
them in a representative capacity, considering that their number was too large
for all of them to be joined individually as respondents. The matter,
therefore, came to be decided in their absence. A High Court ought not to
decide a writ petition under Article 226 of the Constitution without the
persons who would be vitally affected by its judgment being before it as
respondents or at least by some of them being before it as respondents in a
representative capacity if their number is too large, and, therefore, the
Allahabad High Court ought not to have proceeded to hear and dispose of the
Sangh's writ petition without insisting upon the reserve pool teachers being
made respondents to that writ petition, or at least some of them being made
respondents in a representative capacity, and had the petitioners refused to do
so, ought to have dismissed that petition for non-joinder of necessary
(See also All India SC & ST Employees' Assn. v.
A. Arthur Jeen and Indu Shekhar Singh v. State of U.P.)"
The dispute raised by the appellant before the Cooperative Appellate Court,
therefore, was not maintainable. It was so held also by the High Court.
13. On that ground alone, this appeal must fail.
14. However, as the parties have addressed us at some length on the merit of
the matter, we may as well deal with the contentions raised at the bar.
15. There is nothing on record to show that the provisions of the Bombay
Industrial Relations Act, 1946 would be attracted in the matter of laying down
qualification for the post of Manager of a Bank. If the provisions of the said
Act are not applicable, the same ipso facto cannot apply only because the
Registrar of the Cooperative Societies thought so.
16. It is one thing to say that the respondent no. 2 did not possess
essential qualification for holding the post but it is another thing to say
that the Registrar had exercised its jurisdiction under Section 74 of the Act.
Section 74 (1) of the Act reads as under:
"74. Qualification and appointment of Manager, Secretary and other
officers of societies and Chief Officer and Financial Officer for certain
(1) The qualifications for appointment of the Chief Executive Officer,
Finance Officer, Manager, Secretary, Accountant or any other officer of a
society or a class of societies and his emoluments and perquisities shall be
such as may be determined by the Registrar, from time to time."
17. In terms of the said provision, indisputably, the Registrar could
exercise its jurisdiction for laying down the qualification inter alia for the
post of manager. When such qualifications are laid down by the Registrar, he
exercises a statutory power. While exercising such a statutory power,
requirement to comply with the provisions of another statute, viz., issuance of
notice of change in terms of the Bombay Industrial Relations Act, 1946 was not
necessary. They were meant to be done for the industrial workers and not for
those who exercise supervisory jurisdiction in a cooperative society.
18. We have noticed hereinbefore that the Registrar of Cooperative Societies
in its order dated 6.08.1996 merely said that for technical posts, the
prescribed qualification would not be applicable and the concerned societies
can make changes in their service rules regarding qualification of appointment
and promotion. Only when changes in the service rules were required to be made,
the respective societies were not given a free hand to do so. It is only from
that angle notice of change was, if at all, required to be issued.
19. Respondent No. 2 fulfills the prescribed educational qualification. It
was found by the appellate court. It is not the case of the appellant that the
post of Manager could be filled up only by way of promotion. Such a post could
be filled up also by direct recruitment. For the said purpose, we may assume
that the post of Agricultural Development Officer is not the feeder post for
promotion to the post of Senior Manager, although no rule in that behalf has
been placed before us.
20. We, therefore, are of the opinion that no case has been made out for
interfering with the impugned judgments of the Cooperative Appellate Court as
also the High Court. The appeal is dismissed accordingly. No costs.