Sanjay Karol, J.@mdashIn this petition, filed under Article 226 of the Constitution of India, petitioner has prayed for the following relief(s):
"(i) That a writ in the nature of certiorari may be issued and Annexure P-14 dated 10.7.2013 may kindly be quashed and set aside with further directions to the respondents to implement Annexure P-9 order dated 24.2.2012 in its letter and spirit.
(ii) That a writ in the nature of mandamus may be issued directing the respondents to appoint the petitioner as Assistant Secretary in the respondent No. 4-Society.
(iii) That in the alternative, respondents No. 1 and 2 may be directed to initiate action against the managing committee of the Co operative Society by superseding the society and a further direction may be issued directing respondents No. 1 & 2 to recover the entire amount of salary paid to respondent No. 4 from the members of the managing committee of the society personally and the entire amount may very kindly be ordered to be paid as compensation to the petitioner for being unnecessarily harassed.
(iv) That a writ in the nature of mandamus may be issued directing the respondents 1 & 2 to recover the entire amount spent by the managing committee of the society again personally recovering the same from the members of the managing committee spent on the present litigation and this amount may kindly be ordered to be paid to the present petitioner as exemplary compensation in the interest of justice."
2. Annexure P-9 is the order dated 24.2.2012, passed by the Additional Registrar (Administration), Cooperative Societies, H.P., Shimla, whereby appointment of private respondent-Balbir Singh as Assistant Secretary of respondent No. 1 stands quashed and set aside. Also, there is a direction to appoint the petitioner, subject to his fulfillment of the prescribed criteria. This order stands reviewed vide impugned order dated 10.7.2013 (Annexure P-14). Now, there is a direction to respondent No. 3-Society to fill up the post of Secretary afresh, in accordance with the Rules. The net result is that the post of Secretary, and not Assistant Secretary, is to be filled up in accordance with the Rules. Neither the petitioner nor private respondent can be appointed on the said post, in terms of earlier selection process so undertaken by the Society.
3. The sole question, which arises for consideration in the present petition, is as to whether appointment, to a public post, in violation of statutory Rules, is illegal, hence non est or not?
4. That Jhandutta Gram Seva Sehkari Sabha Samiti, Jhandutta, Bilaspur (respondent No. 3) (hereinafter referred to as the ''Society'') is governed by the H.P. Primary Agricultural Co-operative Credit Societies Employees (terms of Employment & Working Conditions) Rules, 2001 (hereinafter referred to as the ''Rules'') is not in dispute.
5. Staffing pattern/structure and pay scales with respect to different classes of Societies is prescribed in Rule-4. Applicable Rules qua the Society read as under:
"4. PAY SCALES.
1) The pay scales for different class of societies shall be as under:
"2) These pay scales and staff structure will be subject to the following conditions and the management of the society shall be eligible to release the pay scales as under:
(i) The pay Scales of the employees shall be linked with the annual business turnover and profitability of the society and also efficiency of an employee.
(ii) ......................
(iii) ......................
(iv) In respect of societies falling in category "A" where the working capital is more than one crore, the Management with the concurrence of Assistant Registrar, Co-operative Societies and general house of the society may determine the staffing pattern over and above the laid down pay scales under these rules depending upon the turnover and profitability of the society."
That respondent No. 3, is an ''A'' Class Society, is not in dispute.
6. Under the Rules, Societies are classified on the basis of their working capital. Rule prescribes eligibility criteria for appointment to different categories of posts. Appointment under the Rules has to be on the basis of recommendation of the Selection Committee. Rule itself prescribes criteria for awarding marks.
7. Respondent No. 3-Society, without following the prescribed criteria, appointed respondent No. 4 as its Assistant Secretary w.e.f. 9.1.2010, which action, later on was sought to be rectified, for which purpose advertisement was issued and applications invited. Interviews were conducted and respondent No. 4, being the most meritorious, was appointed as Assistant Secretary vide Resolution dated 30th June, 2010 (Annexure P-4), passed by the Managing Committee of the Society.
8. Aggrieved thereof, petitioner preferred a statutory appeal before the Assistant Registrar, Co-operative Societies, Bilaspur, who got the matter inquired and thereafter passed order dated 13th December, 2010 (Annexure P-7). Though appointment of private respondent was not quashed, but a direction was issued to the Society to appoint the petitioner as its Secretary on the post which was likely to fall vacant in near future.
9. Despite the same, dis-satisfied, petitioner preferred a revision petition which was allowed vide order dated 24th February, 2012 (Annexure P-9). As noticed earlier, direction to appoint the petitioner to the post of Assistant Secretary, in terms of this order, now stands reviewed vide impugned order dated 10.7.2013.
10. In our considered view, the Authority rightly reviewed its order by correctly appreciating and considering the statutory provisions.
11. Significantly, for the category of ''A'' Class Society, there is no post of Assistant Secretary. As per staffing pattern, for ''A'' Class Society, there are posts only of Manager/Secretary; Salesman; Peon/Chowkidar. Other than the prescribed staffing pattern, power to re-determine does lie with the Management of the Society. But then there are certain statutory conditions, which mandatorily have to be complied with. The same being, the Society must be (i) an ''A'' category Society; (ii) having a working capital of more than one crore; (iii) there must be concurrence of the Assistant Registrar, Cooperative Societies; and (iv) the general house of the Society. Further, all this is dependent upon the turnover and profitability of the Society, which is sine qua non.
12. Now in the instant case none of the conditions so prescribed, in sub-rule (2)(iv) of Rule-4 stand complied with at all. There was no post of Assistant Secretary in existence which could have been filled by respondent No. 3 and that too pursuant to a Resolution passed by the Managing Committee and not the general house. Appointment of respondent No. 4, pursuant to Resolution dated 13th January, 2010 (Annexure P-2) and the selection process undertaken by the Committee, was thus rightly held to be void and illegal. The reviewing authority, thus, rightly held that petitioner could not have been appointed as Assistant Secretary of the Society. In fact, we are of the view that earlier order dated 30th December, 2010 (Annexure P-7), containing a direction that petitioner be appointed as Secretary, was also illegal. In the absence of any post of Assistant Secretary, neither any selection process could have been initiated nor appointment offered to any person and the post of Secretary had to be filled up only in accordance with the Rules, which prescribes a proper procedure.
13. We may also observe that order dated 24th February, 2012 was independently assailed before this Court, but, however, the writ petition was dismissed as withdrawn on 28th June, 2012 and such dismissal of the same would have no bearing on the merits of the instant case.
14. Also, before this Court, the Society has clarified no post of Assistant Secretary ever existed and the process for filling up the post of Secretary, which has since fallen vacant, stands initiated.
15. Contention of the learned counsel for the petitioner that at the time of passing of order (Annexure P-7), nominee of the Registrar was present, as such, it be presumed that there is concurrence in terms of Rule-4, only merits rejection. The Rules are mandatory and compliance thereof is absolutely necessary. Mere presence, if any, of the representative of the Registrar, ipso facto, in our considered view, would not be sufficient compliance, lending credence to the petitioner''s case. Each of the statutory conditions was required to be fulfilled.
16. In this regard, we may also observe that the Registrar, Cooperative Societies, Himachal Pradesh, has filed his affidavit clarifying that the post of Assistant Secretary in the Society was filled up inadvertently, and contrary to the Rules. As such, order dated 10th January, 2013 cannot be said to be illegal.
17. This Court, in a writ jurisdiction, cannot perpetuate any illegality, by issuing any direction, for giving appointment to the petitioner as Assistant Secretary of the Society.
18. It is brought to our notice that a sum of Rs. 2.61 lacs stands paid as salary/remuneration to private respondent for the period for which he discharged his duties as Assistant Registrar. We do not find favour with the submission made on behalf of the petitioner that the said amount be directed to be recovered from him. The fact of the matter is that private respondent did discharge his duties, pursuant to issuance of letter of appointment. For the reasons that illegality was committed by respondent No. 3, respondent No. 4 cannot be penalized. It is not that respondent No. 3, acted in collusion with respondent No. 4 or on his asking, issued him letter of appointment. As such, no direction, as prayed for, can be issued in that regard.
19. In view of the aforesaid factual matrix and keeping in view the principles laid down by the apex Court in
20. All appointments to a public post must be in consonance with the provisions of Articles 14 & 16 of the Constitution of India. There is a difference between an illegal and irregular appointment. Appointment, which was made, throwing all Constitutional obligations and statutory rules to the winds, is illegal, whereas irregularity presupposes substantial compliance with the rules. (See:
21. The apex Court in
22. In
"1) The appointments made without following the appropriate procedure under the Rules/Government Circulars and without advertisement or inviting applications from the open market would amount to breach of Arts. 14 & 16 of the Constitution of India.
2) Regularisation cannot be a mode of appointment.
3) An appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularization.
4) Those who come by back door should go through that door.
5) No regularization is permissible in exercise of the statutory power conferred under Art. 162 of the Constitution of India if the appointments have been made in contravention of the statutory Rules.
6) The Court should not exercise its jurisdiction on misplaced sympathy.
7) If the mischief played so widespread and all pervasive, affecting the result, so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection, it will neither be possible nor necessary to issue individual show-cause notice to each selectee. The only way out would be to cancel the whole selection.
8) When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place and the entire selection has to be set aside."
23. In K. Brahmanandam (supra), the apex Court further clarified that appointments made in violation of the statutory provisions of a statute would be illegal and thus void. Illegality cannot be ratified, regularized, unlike an irregular appointment.
24. Hence, in view of the settled position of law we answer the question against the petitioner and for all the aforesaid reasons, present petition which is devoid of any merit, stands dismissed.
Petition stands disposed of. Interim order dated 12th August, 2013 stands vacated. All miscellaneous application(s), if any, also stand disposed of.
