P.Kavitha vs The Registrar Of Co-Op. Societies
2021 Latest Caselaw 21 Mad

                                                                            W.P.(MD)No.14273 of 2010


                            BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
                                                  Dated: 04.01.2021
                                                      CORAM:
                               THE HONOURABLE MR.JUSTICE M.DHANDAPANI
                                            W.P.(MD)No.14273 of 2010
                                                     and
                                             M.P.(MD)No.1 of 2010

                   P.Kavitha                                                ... Petitioner

                                                          -vs-


                   1.The Registrar of Co-op. Societies,
                     College Road, Chennai.

                   2.The Joint Registrar of Co-op. Societies,
                     Virudhunagar District,
                     Virudhunagar – 626 002.

                   3.The Special Officer,
                     RK6, Mustakurichi Primary Agri. Co.op. Bank,
                     Mustakurichi, Kariapatti Taluk.                        ... Respondents

                   PRAYER: Writ Petition filed under Article 226 of the Constitution of India
                   praying for issuance of a Writ of Certiorarified Mandamus to call for the
                   records relating to the order passed by the second respondent by his
                   proceedings No.Na.Ka.6850/10 Sa.Ba. Dated 01.10.2010 by confirming the
                   order of the third respondent dated 31.05.2008 and quash the order dated
                   01.10.2010. Consequently direct the respondents to re-instate the petitioner
                   in service with all the attendant, service and monetary benefits.

                                 For Petitioner            : Mr.Kaviarasan
                                                             for M/s.M.O.Thevan Kumar

                                 For Respondents           : Mr.D.Muruganantham
                                  1 and 2                   Additional Government Pleader

                     1/10
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                                                                              W.P.(MD)No.14273 of 2010



                                  For Respondent 3        : Mr.D.Shanmugaraja Sethupathy
                                                        *****



                                                       ORDER

This Writ Petition has been filed challenging the order of the second

respondent by his proceedings No.Na.Ka.6850/10 Sa.Ba. dated 01.10.2010

by confirming the order of the third respondent dated 31.05.2008 and

consequently to direct the respondents to re-instate the petitioner in service

with all the attendant, service and monetary benefits.

2.The case of the petitioner is that the petitioner's husband, namely,

Palani, worked as a Salesman under the third respondent. On 26.11.2001

her husband died in harness while he was in service. At that time, the

petitioner's age was 20 years and her husband died leaving the petitioner and

two female children and the petitioner was not having any other source of

income except the income of her husband's salary. Thereafter, the petitioner

made an application for appointment of Saleswoman before the third

respondent on compassionate ground with relevant certificates and

supporting documents. Accordingly, the petitioner was appointed as

Saleswoman on 20.12.2001 on compassionate ground in the Mustakurichi

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Ration Shop. The petitioner has been continuously working as Saleswoman

for more than seven years. While so, the third respondent had issued a

show-cause notice on 05.01.2008 for the termination of her service on the

ground that the petitioner was not sponsored by the Employment Exchange,

based on the judgment rendered by a Hon'ble Division Bench of this Court

in W.A.Nos.2501 and 2502 of 2001, dated 12.03.2001. Immediately, the

petitioner had sent an explanation on 04.05.2008 stating that her

appointment is only on compassionate ground and hence, there is no need

for sponsoring from the Employment Exchange. However, without

considering the said reply, the third respondent had passed the order on

31.05.2008 terminating her from service. Assailing the said order, the

petitioner had filed a revision petition under Section 153 of the Cooperative

Societies Act before the second respondent. However, the second

respondent had rejected the appeal without assigning any reason. Again the

petitioner had challenged that order by way of a Writ Petition in W.P.No.900

of 2009 and this Court allowed the said Writ Petition on 14.07.2010 by

directing the second respondent to consider her representation.

Consequently, as per the direction of the second respondent, the petitioner

filed a detailed representation on 28.09.2010 before the second respondent.

However, the second respondent had again rejected the said representation

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by its order dated 01.10.2010 confirming the earlier orders. Hence, the Writ

Petition is filed.

3.The learned Counsel appearing for the petitioner would submit that

admittedly, the petitioner was appointed on compassionate ground. When a

person is appointed on compassionate ground, the decision referred to in the

impugned order does not applicable to the petitioner. The Justin's case in

W.A.Nos.2501 and 2501 of 2001 relates to irregular appointment made

without sponsoring from Employment Exchange and without following the

Rule 149 of the Tamil Nadu Cooperative Societies Rules, such appointment

can be invalidated. However, the petitioner's appointment is purely on

compassionate ground. Hence, the order of termination passed by the

original authority and confirmed by the revisional authority is non est in law.

Accordingly, the petitioner prayed for allowing the Writ Petition.

4.The learned Additional Government Pleader appearing for the

respondents 1 and 2 by referring to the counter submitted that the petitioner

was not appointed on compassionate ground. One Mr.Palani, the husband of

the petitioner, was appointed as Casual employee in the Fair Price Shop run

by the third respondent bank on 05.02.1998 on daily wages basis. His

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appointment was neither made in accordance with Rule 149 of the Tamil

Nadu Cooperative Societies Act nor by the District Recruitment Bureau and

as such, the appointment of the said Palani was not approved and also his

appointment was objected by the Statutory Audit under the Tamilnadu

Cooperative Societies Act. On 26.11.2001, the said Palani died in harness

while he was in temporary service under the third respondent. After the

death of the said Palani, the petitioner had sent a representation to the third

respondent society requesting to provide suitable employment on

compassionate ground. Considering the overall circumstances, the

petitioner was engaged as Saleswoman on daily wage basis as Casual

employee from 18.12.2001 to 31.05.2002 as per the need. Subsequently, her

engagement was extended periodically as and when required by adopting

resolution by the Board. However, her appointment was not at all on

compassionate ground. She was engaged as Saleswoman considering the

fact that her husband died during his employment as Casual employee.

Compassionate appointment would be entirely different from engaging a

person as Casual employee according to the requirement. The petitioner

was engaged for a specific period and for a specific work and hence, her

employment automatically comes to an end on the expiry of such period. It

is further submitted that as per the judgment made by this Court in W.A.Nos.

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2501 and 2502 of 2001, the service of persons who were appointed after

12.03.2001 without reference to the Employment Exchange and without

following the procedure contemplated under Rule 149 of the Tamil Nadu

Cooperative Societies Rules shall be terminated forthwith. Since the

petitioner was engaged as Saleswoman only on 20.12.2001, the respondent

society had issued a show cause notice dated 05.01.2008 requiring her to

submit the documents in respect of educational qualification. But, she had

not submitted any document to show her educational qualification. Since

the petitioner has not possessed required educational qualification, she was

not appointed as per existing recruitment rules and bye-laws. Therefore, she

was issued with another notice on 09.03.2008 to show-cause as to why

action should not be taken against her. In response to the said notice, the

petitioner had sent a letter dated 22.03.2008 requesting the respondents to

furnish a copy of the special bye-law and the Government Order prescribing

educational qualification for salesman and the respondent society had

furnished the same on 18.04.2008. Even thereafter, the petitioner had not

submitted her explanation to the show cause notice. Therefore, she was

issued with another reminder dated 19.05.2008 and as no explanation was

offered, the petitioner was terminated from service vide order dated

31.05.2008 by the third respondent. It is further stated that the second

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respondent had rejected the revision petition under Section 153 of the Tamil

Nadu Cooperative Societies Act without giving any reason, is false as the

second respondent had dismissed the revision petition on the ground that the

petitioner had not filed the revision under correct provisions of law.

Aggrieved by the said order, the petitioner had filed W.P.No.900/2009

before this Court and this Court had set aside the order of the revisional

authority and the case was remanded back to the revisional authority. As per

the direction of this Court, the revisional authority, after giving reasonable

opportunity to the parties concerned, passed an order on 01.10.2010 by

upholding the order of the third respondent. Challenging the said order, the

petitioner has come forward with the present Writ Petition which according

to the respondents is unsustainable.

5This Court heard the learned Counsel appearing for the petitioner,

Mr.D.Muruganantham, learned Additional Government Pleader appearing

for the respondents 1 and 2 and Mr.D.Shanmugaraja Sethupaty, learned

Counsel appearing for the third respondent and perused the materials

available on record.

6.Admittedly, the facts in the present case is not disputed. The

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petitioner claims that she was appointed on compassionate ground.

However, the appointment order does not reveal any reference to the

application and supporting document submitted by the petitioner and the

said appointment was made based on the resolution passed by the authority.

However, the petitioner has not established before this Court that there was

a scheme or bye-law for making compassionate appointment. In the absence

of any scheme or bye-law, the compassionate appointment cannot be made

and further, in the present case, the basic educational qualification for the

post of Salesman is S.S.L.C. and admittedly the petitioner did not possess

such qualification. Hence, without such qualification, no appointment can

be made.

7. For the reasons aforesaid, this Writ Petition fails and the same is

dismissed. There shall be no order as to costs. Consequently, the connected

miscellaneous petition is closed.

04.01.2021 Index : Yes / No Internet : Yes / No SRM

http://www.judis.nic.in W.P.(MD)No.14273 of 2010

To

1.The Registrar of Co-op. Societies, College Road, Chennai.

2.The Joint Registrar of Co-op. Societies, Virudhunagar District, Virudhunagar – 626 002.

3.The Special Officer, RK6, Mustakurichi Primary Agri. Co.op. Bank, Mustakurichi, Kariapatti Taluk.

http://www.judis.nic.in W.P.(MD)No.14273 of 2010

M.DHANDAPANI, J.,

SRM

W.P(MD)No.14273 of 2010

04.01.2021

http://www.judis.nic.in