Manipur High Court
Shri Irom Iboyaima vs The State Of Manipur Represented ... on 5 July, 2021
[1]
[1]
IN THE HIGH COURT OF M ANIPUR
AT IMPHAL
WP(C) No. 334 of 2021
Shri Irom Iboyaima, aged about 59 years, S/o (Late) I. Iboton
Singh, a resident of Ningthoukhong Ward No.7, PO & PS Bishnupur,
Bishnupur District, Manipur.
... Petitioner
-Versus-
1. The State of Manipur represented by the Principal Secretary/
Commissioner/ Secretary (Co-operation), Government of
Manipur, Office at Old Secretariat, Babupara, P.O. & P.S. Imphal,
Imphal West District, Manipur-795001.
2. The Registrar of Co-operative Societies, Manipur, Office at
Lamphelpat, P.O. & P.S. Lamphel, Imphal West District, Manipur-
795004.
... Official Respondents
3. Shri O. Jiten Singh, DRCS (Admn.), C/o Registrar of Co-operative
Societies, Manipur, Office at Lamphelpat, P.O. & P.S. Lamphel,
Imphal West District, Manipur-795004.
... Private Respondent
With
WP(C) No. 420 of 2021
1. Sangnaidar Tontang, aged about 50 years, W/o. T. Khamran of
Khangshim Village, Pallel, P.O. & P.S. Kakching, P.S. and District
Chandel, Manipur, elected Managing Body Member of MSCU,
Lamphel, Manipur.
2. Nongmaithem Indubala, aged about 54 years, W/o. Nongmaithem
Kumarjit Singh of Kakching Paji Leikai, P.O. & P.S. Kakching,
District Kakching, Manipur, elected Managing Body Member of
MSCU, Lamphel, Manipur.
3. Leimapokpa m Barni Devi, aged about 52 years, W/o. L. Manglem
Singh of Athokpa m Mayai Leikai, P.O. & P.S and District Thoubal,
Manipur, elected Managing Body Me mber of MSCU, Lamphel,
WP (C) No. 334 of 2021 & WP(C) NO.420 of 2021 Contd.../-
[2]
Manipur.
4. Loitongbam Jibanlata Devi, aged bout 53 years, W/o L. Amuba
Singh of Hiyangthang Mayai Leikai, P.O. & P.S. Wangoi, Imphal
West District, Manipur, elected Managing Body Member of MSCU,
Lamphel, Manipur.
5. Hepuni Leo, aged about 43 years, S/o R. Hepuni of Thingba
Khullen, P.O. & P.S and District Senapati, Manipur, elected
Managing Body Member of MSCU, Lamphel, Manipur.
6. Alungphy, aged about 4o years, W/o Moses Malung, Bungpa
Khullen Village, Bungpa Khullen, P.O. & P.S Chassad, Ukhrul
District, Manipur, elected Managing Body Member of MSCU,
Lamphel, Manipur.
7. Md. Iqbal Ahamed, aged about 43 years, S/o Hazi Jiauddin of Lilong
Haoreibi Chandrakhong, P.O. & P.S Lilong, Imphal West District,
Manipur, elected Managing Body Member of MSCU, Lamphel,
Manpur.
8. Majakhun Riamei, aged about 57 years, S/o Liruga Riamei of
Luanglon Khunou Namkaolong Part-I, Nungba Sub-Division, P.O. &
P.S. Nungba, Tamenglong District, Manipur, elected Managing
Body Member of MSCU, Lamphel, Manipur.
... Petitioners
-Versus-
1. The State of Manipur represented by the Principal Secretary/
Commissioner/Secretary (Cooperation), Government of Manipur,
Office at Old Secretariat, Babupara, P.O. & P.S. Imphal, Imphal
West District, Manipur-795001.
2. The Registrar, Co-operative Societies, Manipur, Office at
Lamphelpat, P.O. & P.S Lamphel, Imphal West District, Manipur-
795004.
3. The Chief Executive Officer (CEO), Manipur State Co-operative
Union, Office at Lamphel, P.O. & P.S Lamphel, Imphal West
District, Manipur-795004.
... Official Respondents
4. Shri Longjam Tompishak Singh, aged about 57 years, S/o (L) L.
Tomchou Singh of Top Upokpi Makha Leikai, P.O. & P.S.
Wangoi, Imphal West District, Manipur-795009, President,
WP (C) No. 334 of 2021 & WP(C) NO.420 of 2021 Contd.../-
[3]
MSCU, Lamphel, Manipur.
5. Shri O. Jiten Singh, DRCS (Admn.), C/o. Registrar of Co-
operative Societies, Manipur, Office at Lamphelpat, P.O. & P.S
Lamphel, Imphal West District, Manipur-795004.
6. W. Amutombi Singh, elected Managing Body Member of MSCU,
Lamphel, Manipur, C/o. Registrar, Co-operative Societies,
Manipur, Office at Lamphelpat, P.O. & P.S. Lamphe l, Imphal
West District, Manipur- 795004.
7. M. Merna Devi, elected Managing Body Member of MSCU,
Lamphel, Manipur, C/o. Registrar, Co-operative Societies,
Manipur, Office at Lamphelpat, P.O. & P.S. Lamphel, Imphal
West District, Manipur- 795004.
8. Jangkhongarn Haokip, elected Managing Body Member of
MSCU, Lamphel, Manipur, C/o. Registrar, Co-operative
Societies, Manipur, Office at Lamphelpat, P.O. & P.S. Lamphel,
Imphal West District, Manipur- 795004.
9. Y. Sanatombi Devi, elected Managing Body Member of MSCU,
Lamphel, Manipur, C/o. Registrar, Co-operative Societies,
Manipur, Office at Lamphelpat, P.O. & P.S. Lamphel, Imphal
West District, Manipur- 795004.
10.O. Sarojini Devi, elected Managing Body Member of MSCU,
Lamphel, Manipur, C/o. Registrar, Co-operative Societies,
Manipur, Office at Lamphelpat, P.O. & P.S. Lamphel, Imphal
West District, Manipur- 795004.
11.K. Haosaat Kipgen, elected Managing Body Member of MSCU,
Lamphel, Manipur, C/o. Registrar, Co-operative Societies,
Manipur, Office at Lamphelpat, P.O. & P.S. Lamphel, Imphal
West District, Manipur- 795004.
12.P. Tababi Devi, elected Managing Body Member of MSCU,
Lamphel, Manipur, C/o. Registrar, Co-operative Societies,
Manipur, Office at Lamphelpat, P.O. & P.S. Lamphel, Imphal
West District, Manipur- 795004.
13.S. Jilla Singh, Employee/ Secretary, MSCU, Lamphel, Manipur,
C/o. Registrar, Co-operative Societies, Manipur, Office at
Lamphelpat, P.O. & P.S. Lamphel, Imphal West District,
WP (C) No. 334 of 2021 & WP(C) NO.420 of 2021 Contd.../-
[4]
Manipur-795004.
14.Sh. Hemanta Singh, Co-opted Managing Body Member of
MSCU, Lamphel, Manipur, C/o. Registrar, Co-operative
Societies, Manipur, Office at Lamphelpat, P.O. & P.S. Lamphel,
Imphal West District, Manipur-795004.
... Private Respondents
B E F O R E
HON'BLE MR. JUSTICE KH. NOBIN SINGH
For the petitioner ∷ Shri M. Hemchandra, Sr Advocate
For the respondents ∷ Shri N. Ibotombi, Sr Advocate &
Shri Lenin Hijam, Addl. A.G.
Date of Hearing ∷ 09-06-2021 & 18-06-2021
Date of Judgment & Order ∷ 05-07-2021 [23-06-2021 to 04-07-
2021 being the summer vacation]
Shri Lenin Hijam, Addl. Advocate
JUDGMENTGeneral
& ORDER
[1] Heard Shri M. Hemchandra, Senior Advocate appearing for the
petitioners in both the writ petitions; Shri N. Ibotombi, Senior Advocate
appearing for the private respondent in WP(C) No.334 of 2021 and for all
the private respondents in WP(C) No.420 of 2021 and Shri Lenin Hijam,
Addl. Advocate General appearing for the State respondents in both the
writ petitions.
[2] The above writ petitions have arisen out of a similar set of facts
and therefore, the same are being disposed by this common judgment and
order.
WP (C) NO.334 of 2021
[3] The validity and correctness of the letter dated 23-03-2021 of the
WP (C) No. 334 of 2021 & WP(C) NO.420 of 2021 Contd.../-
[5]
Under Secretary (Co-operation), Government of Manipur; the letter dated
24-03-2021 of the Registrar of Co-operative Societies, Manipur and the
letter dated 24-03-2021 of the private respondent, Shri. O. Jiten Singh,
DRCS (Admn), are under challenge in this writ petition.
[4.1] Facts
and circumstances as narrated in the writ petition, are that
the petitioner was initially appointed as a Co-operative Education
Instructor, Manipur State Co-operative Union, Lamphelpat, Imphal
(hereinafter referred to as "the Co-operative Union)" on officiating basis
vide order dated 02-12-1988 issued by the Chief Executive Officer, Co-
operative Union with the approval of the Administrator thereof and his
service was regularised vide order dated 10-11-1998 of the Chief
Executive Officer. After having served for about 12 years, the petitioner
was promoted to the post of the Assistant Co-operative Education Officer/
District Co-operative Education Officer/ Vice Principal (CCM) vide order
dated 14-09-2010 and was posted as the District Co-operative Education
Officer at Senapati, followed by the order dated 02-03-2011 making it
regular.
[4.2] Thereafter, the Chief Executive Officer vide its order dated 07-03-
2016 appointed the petitioner as the Principal (CCM) on in-charge basis
with the approval of the then Registrar, the Centre for Co-operative
Management, Lamphelpat on promotion and posted him there itself. Few
months later, the Managing Body, in its meeting held on 22-08-2016
resolved that the petitioner be appointed as the Chief Executive Officer, as
WP (C) No. 334 of 2021 & WP(C) NO.420 of 2021 Contd.../-
[6]
the incumbent Chief Executive Officer, Shri W. Komol Singh was unable to
discharge his duties due to ill health. It was approved by the Registrar, Co-
operative Society vide its letter dated 12-09-2016. Accordingly, the
petitioner was appointed as the Chief Executive Officer of the Co-operative
Union with immediate effect, in supersession of previous orders in this
regard, until further orders vide order dated 22-09-2016 issued by the
Deputy Secretary (Co-op), Government of Manipur. As per the bye-laws,
the State Government is not the competent authority to appoint the Chief
Executive Officer and it is the Managing Body of the Co-operative Union
which is competent to do so. Being aggrieved by the said order dated 22-
09-2016, the petitioner approached this Court by way of writ petition being
WP(C) No.318 of 2019 praying for its modification, which was disposed of
with the direction to dispose of his representation dated 01-04-2019 within
two weeks from the date of receipt of the order along with a representation
to be submitted by him. The petitioner submitted a detailed representation
dated 08-02-2021 to the State respondent which was received by it on the
same day i.e. 08-02-2021.
[4.3] As per the proceeding of the Managing Body adopted in its
meeting held on 27-04-2019, the President/ Chairman of the Managing
Body, Shri L. Tompishak Singh and other Managing Body members took a
decision that the present Chief Executive Officer be allowed to continue till
his retirement or superannuation and that the Chief Executive Officer be
appointed in accordance with the recruitment rules. The Managing Body of
the Co-operative Union adopted another resolution by way of circulation on
WP (C) No. 334 of 2021 & WP(C) NO.420 of 2021 Contd.../-
[7]
07-06-2019 for taking appropriate disciplinary action against the petitioner
and the approval thereof was sought for vide its letter dated 22-06-2019, in
respect which the Registrar, Co-operative Society wrote a letter dated 24-
06-2019 informing that the petitioner would no longer work as the Chief
Executive Officer and that he would be reverted to his substantive post.
Some members of the Co-operative Union raised objection to the
resolution of the Managing Body adopted in its meeting held on 07-06-
2019 and took a decision by way of circulation on 10-07-2019 which was
submitted to the State respondents on 12-07-2019.
[4.4] Being aggrieved by the resolution of the Managing Body adopted
by way of circulation on 07-06-2019 in its resolution No.1 & 2, the letter
dated 22-06-2019 of the President of the Co-operative Union and the letter
dated 24-06-2019 of the Registrar, Cooperative Societies, the petitioner
filed a writ petition being WP(C) No.565 of 2019 praying for quashing
them. This Court passed an interim order dated 29-07-2019 directing that
they should remain suspended till the returnable date which was extended
until further order. The petitioner being the senior most and eligible officer
for appointment as the Chief Executive Officer, filed a writ petition being
WP(C) No.153 of 2021 praying for passing appropriate order directing the
respondents to implement the letter dated 12-09-2016 issued by the
Registrar, Co-operative Societies and the proceeding of the Managing
Body adopted in its meeting held on 27-04-2019. However, the Managing
Body took a decision by way of circulation on 08-02-2021 to the effect that
the proceeding dated 27-04-2019 be reaffirmed and that the petitioner be
WP (C) No. 334 of 2021 & WP(C) NO.420 of 2021 Contd.../-
[8]
allowed to work as the Chief Executive Officer till his superannuation in
public interest. Although notice was issued on 17-02-2021 by this Court, no
counter has so far been filed by the respondents. While WP(C) No.153 of
2021 was pending, the Under Secretary (Co-operation), Government of
Manipur issued the order dated 18-02-2021 in a purported compliance with
the order dated 02-02-2021 passed by this Court in WP(C) No.318 of 2019
cancelling the order dated 22-09-2016, in supersession of all the previous
orders in this regard.
[4.5] As the order dated 02-02-2021 passed by this Court in WP (C)
No.318 of 2019 was to consider the representation dated 01-04-2019
along with a representation to be submitted by the petitioner in accordance
with law, the petitioner submitted a copy of the representation dated 01-04-
2019 along with a copy of the order dated 02-02-2021 passed in WP (C)
No.318 of 2019 and accordingly, the Under Secretary (Co-operation),
Government of Manipur issued the order dated 18-02-2021. Being
aggrieved by the order dated 18-02-2021, the petitioner submitted a
reminder dated 24-02-2021 praying for appointment of the Chief Executive
Officer as per rules and regulations, bye laws of the Co-operative Union
without any undue delay as the present petitioner is going to retire on 31-
12-2021 on superannuation.
[4.6] To the utter shock and dismay of the petitioner and instead of
conveying the approval of the aforesaid proceedings of the Managing Body
adopted in its meeting held on 08-02-2021 by way of circulation, the letter
dated 23-03-2021 was issued by the Under Secretary (Co-operation),
WP (C) No. 334 of 2021 & WP(C) NO.420 of 2021 Contd.../-
[9]
Government of Manipur conveying the approval of the Government for
appointment of the private respondent, Shri. O. Jiten Singh, DRCS (Admn)
on deputation as the Chief Executive Officer, Co-operative Union in
addition to his normal duties without any extra remuneration. The letter
dated 24-03-2021 was issued by the Registrar of the Co-operative
Societies, Manipur, followed by the letter dated 24-03-2021 of the private
respondent submitting his joining report and taking self charge of the Chief
Executive Officer. These letters have been challenged by the petitioner on
the inter-alia grounds that the said letters dated 23.03.2021 & 24-03-2021
are arbitrary, mala fide and illegal being violative of the provisions of
Articles 14 & 16 of the Constitution of India; that it is the Managing Body,
Co-operative Union which is competent to appoint the private respondent
as the Chief Executive Officer as per clause 23(4)(d) of the bye-laws of the
Co-operative Union and that in the affidavit-in-opposition filed in WP(C)
No.318 of 2019 and Misc. Case (WP(C) No.215 of 2020 (Ref: WP (C) No.
318 of 2019) filed by the State Respondents, it has been stated that the
State respondents could not be considered to review/ rectify/ modify the
order dated 22-09-2016 issued by the Deputy Secretary (Co-op),
Government of Manipur as the order itself was not sustainable in the eye
of law as it had been issued by the authority who has no jurisdiction to
issue such order.
[5.1] In the counter affidavit filed by the respondent No.3, a preliminary
objection as regards the maintainability of the writ petition has been raised
on the ground that as per the recruitment rules, the petitioner is not eligible
WP (C) No. 334 of 2021 & WP(C) NO.420 of 2021 Contd.../-
[10]
for appointment as the Chief Executive Officer and that the Managing Body
of the Co-operative Union which is the competent authority for appointment
of the Chief Executive Officer, is not impleaded as a party respondent
herein and therefore, the present writ petition is liable to be dismissed. In
addition thereto and on merits of the case, it has been stated therein that
as the petitioner is holding the substantive post of the District Co-operative
Officer on regular basis or its equivalent posts, he is not eligible for
promotion to the post of Chief Executive Officer. As per the recruitment
rules, the post is to be filled up by promotion from amongst the Principal
(CCM) or its equivalent posts. If the post cannot be filled up by promotion,
the post is to be filled-up by direct recruitment. If the post cannot not be
filled up either by promotion or by direct recruitment, it is to be filled up on
deputation from the Office of the Registrar, Co-operative Societies,
Manipur till when the post can be filled up either by promotion or by direct
recruitment.
[5.2] The decision taken by the Managing Body of the Co-operative
Union in its meeting held on 22-08-2016 insofar as it relates to the
petitioner and was later on approved by the respondent No.2, had been
withdrawn in the meeting of the Managing Body held on 07-06-2019 and it
was also decided to remove the petitioner from the post of the Chief
Executive Officer. The said decision of the Managing Body taken on 07-06-
2019 was also approved by the respondent No.2 vide letter dated 24-06-
2019. As the order dated 22-09-2016 was issued by the State Government
on a mistaken decision and without any authority, the Hon'ble Court vide
WP (C) No. 334 of 2021 & WP(C) NO.420 of 2021 Contd.../-
[11]
order dated 02-02-2021 directed the petitioner to submit a representation
to the State Government to redress his grievances and to take appropriate
steps in terms of the relevant rules. As the order dated 14-09-2020 was
issued by the Chief Executive Officer without the approval of the
Respondent No.2, he did issue another order dated 02-03-2021 after
obtaining the approval of the Respondent No.2.
[5.3] The order dated 18-02-2021 was issued by the Under Secretary
(Co-operation) in compliance of the order dated 02-02-2021 passed by the
Hon'ble Court in Writ Petition (C) No.318 of 2019.
[5.4] The alleged proceeding dated 08-02-2021 of the Managing Body
presided by the Vice-President of the Co-operative Union and the
forwarding letter dated 10-02-2021 could not be acted upon inasmuch as
all the meetings of the Managing Body are to be presided by the President
under the clause 26(i) of the bye-laws and clause 27(i)(a) only gives power
to the Vice-President to preside over any meeting in the absence of the
President. The President of the Co-operative Union by exercising the
powers conferred upon him under the clause 26(iii), circulated a decision
to appoint the private respondent as the Chief Executive Officer on
deputation to all the members of the Managing Body to provide their
considered opinion on or before 12-03-2021. After obtaining the opinion
from ten members of the Managing Body, the said decision was submitted
to the Registrar, Co-operative Societies for onward submission to the
Administrative Department vide letter dated 15-03-2021. The said letter
WP (C) No. 334 of 2021 & WP(C) NO.420 of 2021 Contd.../-
[12]
dated 23-03-2021 conveying the approval was issued by the Secretariat:
Co-operation Department. The Registrar, Co-operative Societies vide letter
dated 24-03-2021 conveyed the approval to the appointment of the private
respondent as the Chief Executive Officer on deputation in addition to his
normal duties. By the said letter, it was also directed that the decision to
appoint the private respondent as the Chief Executive Officer should be
placed before the next meeting of the Managing Body. The private
respondent submitted his joining report on 24-03-2021 on the basis of the
decision taken by the Managing Body to appoint him as the Chief
Executive Officer and also on the basis of the two conveyed letters. The
said joining report was submitted as per the bye-laws of the Co-operative
Union. The State Government as well as the Registrar Co-operative
Societies did not issue any order appointing the private respondent as the
Chief Executive Officer. As the private respondent is a State Government
employee, the State Government as well as the Registrar Co-operative
Societies had only conveyed the approval for deputation to the Co-
operative Union as the Chief Executive Officer.
[5.5] As there were allegations of financial irregularities against the
Petitioner, a case under the Manipur Public Servant Personal Liabilities
Act, 2006 was initiated and vide order dated 09-10-2019, the Petitioner
was directed to pay a sum of Rs.2,88,845/- under the Manipur Public
Servant Personal Liabilities Act, 2006 to the DDO of the Registrar, Co-
operative Societies. Another order dated 18-10-2019 was issued by the
Registrar, Co-operative Societies in partial modification of the order dated
WP (C) No. 334 of 2021 & WP(C) NO.420 of 2021 Contd.../-
[13]
09-10-2019. There is no merit in this case and no case has been made out
by the petitioner for invoking the extra ordinary jurisdiction of this Court
under Article 226 of the Constitution of India and as such, this Court may
be pleased to dismiss the writ petition as the ends of justice may call for.
[6.1] An affidavit has been filed on behalf of the respondent No.1 & 2
stating that the petitioner was never appointed on promotion as the
Principal (CCM), the Co-operative Union on regular basis. As is evident
from the order dated 07-03-2016, the petitioner was allowed to hold the
post of the Principal (CCM) on In-charge basis. The impugned letters
dated 23-03-2021 and 24-03-2021 being challenged in the writ petition,
were issued by the State authority on the basis of the decision taken by the
Managing Body and therefore, the Co-operative Union is a necessary
party. As per clause 23.1 (k) of the bye-laws of the Co-operative Union,
Shri S. Jilla Singh and Shri Sh. Hemanta Singh were co-opted as members
of the Managing Body. They have legitimate rights to participate in any
meeting of the Managing Body and also to give their considered view,
when the Managing Body has the power and authority to accept them. The
co- opted members, though they have a right to participate in the meeting
and to give their opinion, have no right to vote in any meeting of the
Managing Body. There is no law prohibiting a defaulter to be co-opted as a
member of the Managing Body. Shri Sh. Hemanta Singh was co-opted as
a member of the Managing Body in the year 2017 before the letter dated
11-12-2018 being written by the Deputy General Manager, IUCB. Though
WP (C) No. 334 of 2021 & WP(C) NO.420 of 2021 Contd.../-
[14]
the letter dated 20-12-2018 was issued by the Chief Executive Officer to
Shri Sh. Hemanta Singh, no action has been taken up against him till date.
[6.2] No decision was taken by the Managing Body to promote the
petitioner to the post of Principal (CCM) in its meeting held on 10-06-
2016. The contention of the petitioner that he was appointed on
promotion to the post of Principal on regular basis vide order dated 31-
08-2016 issued by the Chief Executive Officer on the recommendation of
the Registrar Co-operative Society, Manipur has been denied as false.
The Register Co-operative Society, Manipur is not the recommending
authority for appointment of the Principal on promotion. The order dated
22-09-2016 issued by the Secretariat: Co-operation Department
appointing the petitioner as the Chief Executive Officer was cancelled by
the Secretariat: Co-operative Department vide order dated 18-02-2021.
[7.1] In his reply, it has been stated by the petitioner that the Managing
Body vide its proceeding dated 10-06-2016 resolved that he be allowed to
be appointed on promotion as the Principal (CCM), for which the Registrar,
Cooperative Societies was requested to approve it. Vide order dated 31-
08-2016 issued by the Chief Executive Officer, he was appointed on
promotion as the Principal, CCM on regular basis with the approval of the
then Registrar, Cooperative Societies, Manipur vide its letter dated 25-06-
2016. Thereafter, being eligible as per the relevant recruitment rules for
promotion to the post of the Chief Executive Officer, the petitioner was
appointed on promotion as the Chief Executive Officer vide order dated 22-
WP (C) No. 334 of 2021 & WP(C) NO.420 of 2021 Contd.../-
[15]
09-2016 issued by the Secretariat: Cooperative Department. The filling up
of the post of Chief Executive Officer by deputation, despite having eligible
officer for promotion like the petitioner who has been holding the same
post since 2016, is arbitrary, mala fide and is thus bad in law. Therefore,
the petitioner is an aggrieved person and has locus standi to file the
present writ petition and the question of non-maintainability of the writ
petition does not arise.
[7.2] As regards the issue relating to the Managing Body not being
impleaded as a party, it has been stated that the Managing Body was not
a necessary party, as it did not have any concern with the impugned letters
dated 23-03-2021 and dated 24-03-2021. Over and above, in the list of
eighteen elected members as shown in the letter dated 26-08-2017 issued
by the Registrar, Cooperative Societies, Manipur, the names of Shri S. Jilla
Singh and Shri Sh. Hemanta Singh did not find place thereby showing that
they are the non-elected members.
[7.3] The appointment of the private respondent as the Chief Executive
Officer was made purportedly on the basis of an alleged decision taken by
the Managing Body of the Co-operative Union which is null and void ab-
initio in view of the fact that Shri S. Jilla Singh, who is the Secretary of the
Co-operative Union and Shri Sh. Hemanta Singh, who is the co-opted
member of the Co-operative Union, did not have any voting right nor could
they give any opinion in such crucial decision taken by way of circulation.
Over and above, anyone cannot be elected/ co-opted as member of
WP (C) No. 334 of 2021 & WP(C) NO.420 of 2021 Contd.../-
[16]
Managing Body as per the existing Act and bye-laws in view of the letter
dated 20-12-2018 issued by the respondent No.3 himself, while he was
holding the post of the Chief Executive Officer, pursuant to the letter dated
11-12-2018 from the Deputy General Manager, 1UCB. Shri Sh. Hemanta
Singh, member of the Co-operative Union is one of the defaulters of the
IUCB and therefore, such a decision of the Managing Body supported by
few members including non-elected members viz. Shri S. Jilla Singh and
Shri Sh. Hemanta Singh, was bad in law.
[7.4] Eight elected members of the Co-operative Union submitted a
requisition dated 12-02-2021 to convene a special meeting for
consideration of "No Confidence Motion" against Shri L. Tompishak
Singh, President, Co-operative Union and his removal from the post of
President thereof immediately in view of clause 25(4) of the bye-laws.
However, the Registrar, Co-operative Societies/ respondent No.2 herein
has not taken any appropriate step which compelled them to file a writ
petition being W.P(C) No.317 of 2021 before this Court praying for
convening a special meeting for consideration of "No Confidence Motion"
against Shri L. Tompishak Singh, President, in the interest of the Union, in
view of the facts and circumstances of the present petition.
[7.5] The President never circulated the alleged decision to appoint the
private respondent as the Chief Executive Officer on deputation to the said
eight elected members who submitted the requisition dated 12-02-2021.
On a conjoint reading of the requisition letter dated 12-02-2021 with the
WP (C) No. 334 of 2021 & WP(C) NO.420 of 2021 Contd.../-
[17]
alleged decision, it can be seen that the opinion was obtained only from
ten members of the Managing Body including two non-elected members
who have no voting rights/ cannot give opinion or otherwise, by circulation
of paper as per existing Act, clause bye-law.
WP(C) NO.420 of 2021
[8.1] While the writ petition being WP(C) No.334 of 2021 was pending,
the instant writ petition was filed by the petitioners questioning the alleged
decision of the Managing Body taken by way of circulation of papers
forwarded vide letter dated 15-03-2021 and in addition, the validity and
correctness of the letter dated 23-03-2021 issued by the Under Secretary
(Cooperation), Government of Manipur; the letter dated 24-03-2021 issued
by the Registrar of Cooperative Societies, Manipur and the letter dated 24-
03-2021 submitted by Shri O. Jiten Singh taking self charge, came to be
challenged by them.
[8.2] The petitioners are all elected members of the Co-operative Union
as shown in the letter dated 26-08-2017. As per clause 23.5 of the bye-
laws of the Union (as amended), the term of the Managing Body is five
years from the date of election and the term of the office bearers shall be
co-terminus with the term of the Board. However, under the President-ship
of Shri L. Tompishak Singh, the respondent No.4 herein, the Co-operative
Union has not been functioning properly in accordance with its bye-laws
since the election of Managing Body in the year, 2017 with the result that it
has failed to achieve its objectives provided under the bye-laws. In the
WP (C) No. 334 of 2021 & WP(C) NO.420 of 2021 Contd.../-
[18]
interest of the Co-operative Union, the petitioners approached the
competent authority i.e., the Respondent No.2 herein by way of a
requisition dated 12-02-2021 with a prayer for convening a special meeting
for consideration of "No Confidence Motion" against him for his removal
from the post of President thereof immediately in terms of clause No. 25(4)
of the bye-laws of the Co-operative Union on various grounds as
mentioned therein. The requisition dated 12-02-2021 was not considered
and acted upon by the official respondents in collusion with Shri L.
Tompishak Singh, President without any justifiable and conceivable
reasons, thereby affecting the petitioners considerably and substantially for
the best reasons known to them. He is being allowed to hold the post of
the President extraneously without any valid legal implications, despite
pendency of the requisition letter dated 12-02-2021. The act and conduct
of the authority in allowing Shri L. Tompishak Singh to hold the post of the
President by ignoring/ overlooking the pending requisition dated 12-02-
2021, is against the relevant Acts/ rules & bye laws of the Co-operative
Union and is thus, bad in law.
[8.3] Being aggrieved by the inaction on the part of the authority, the
petitioners approached this Court by way of a writ petition being WP(C)
No.317 of 2021 praying for a direction to the State respondents for
convening a special meeting for consideration of "No Confidence Motion"
against Shri L. Tompishak Singh, President for his removal from it. This
Court vide its order dated 26-03-2021 disposed of WP(C) No. 317 of 2021
directing the Registrar, Co-operative Societies, Manipur to consider the
WP (C) No. 334 of 2021 & WP(C) NO.420 of 2021 Contd.../-
[19]
said requisition and take appropriate action as quickly as possible in
accordance with law. However, the said order dated 26-03-2021 was not
complied with and therefore, the petitioners again approached this Court
by way of a Contempt Case for wilful and deliberate disobedience of this
Court's order dated 26-03-2021 passed in WP(C) No.317 of 2021. The
said Contempt Case is still pending before this Court for disposal.
[8.4] To the utter shock and surprise of the petitioners, it came to their
knowledge that the alleged decision taken by way of circulation of paper,
was forwarded vide letter dated 15-03-2021 of the office of the Co-
operative Union as regards the appointment of Shri O. Jiten Singh as the
Chief Executive Officer on deputation without following the procedure
established by law and against the relevant Act/ rules & bye laws of the
Co-operative Union, which is arbitrary, mala-fide and illegal. The alleged
decision is being challenged by the petitioners on the inter-alia grounds
that the President never circulated it to them who had submitted the
requisition letter dated 12-02-2021; that the considered opinions are to be
given by the members pursuant to the circular on or before 12.03.2021;
that the decision was supported only by eight elected members of the
Managing Body; that the Co-operative Union being a registered body, is
bound to function as a democratic institution and conduct its affairs based
on democratic principles; that the decision was taken arbitrarily, despite
the existence of the proceedings of the Managing Body adopted in its
meeting held on 08-02-2021 by circulation and it was forwarded vide letter
dated 10-02-2021 of the office of the Chief Executive Officer by which the
WP (C) No. 334 of 2021 & WP(C) NO.420 of 2021 Contd.../-
[20]
appointment of the petitioner as the Chief Executive Officer was reaffirmed
by invoking clause 27(i)(a) of the bye-laws; that the letter dated 23-03-
2021 was issued by the Under Secretary (Co-operation), Government of
Manipur conveying the approval of the Government for deputation of Shri
O. Jitten Singh as the Chief Executive Officer, followed the letter dated 24-
03-2021 issued by the Registrar of Cooperative Societies, Manipur and
that the letter dated 24-03-2021 submitted by Shri O. Jiten Singh on the
basis of the letter dated 24-03-2021 of the Registrar of Co-operative
Societies, Manipur, has no sanctity of law and cannot stand in the eyes of
law.
[9.1] In the affidavit filed on behalf of the respondent Nos. 4 to 12, an
objection has been raised as regards the maintainability of the writ petition
on the ground that the Co-operative Union which is a necessary party, has
not been impleaded as a party respondent therein. As the necessary party
has not been impleaded as party respondent, the instant writ petition is
liable to be dismissed. In addition thereto, it has been stated that the
alleged decision taken probably on 15-03-2021 by way of circulation, was
circulated by the President and after obtaining the opinion from ten
members, it was submitted to the Registrar of Co-operative Societies for
onward submission to the Administrative Department. As the quorum was
eight members only, the State Government conveyed its approval and
pursuant thereto, the Registrar of Societies conveyed its approval to the
appointment of the private respondent, Shri O. Jiten Singh as the Chief
Executive Officer. In spite of the papers being circulated to all the
WP (C) No. 334 of 2021 & WP(C) NO.420 of 2021 Contd.../-
[21]
members of the Managing Body, only ten members gave their opinion,
while some of the remaining members failed to do so. Some members
could not be informed about the decision, as they were not found at their
houses. It has further been stated that the alleged resolution of the
Managing Body adopted on 08-02-2021 and the forwarding letter dated 10-
02-2021 could not be acted upon, as the meeting was not presided by the
President. As per the bye-laws, Shri Jila Singh and Shri Sh. Hemanta
Singh are the co-opted members who have legitimate right to participate in
the meeting of the Managing Body and give their considered view which is
accepted by the authority. Although Shri Sh. Hemanta Singh having been
declared defaulter by the IUCB, no action has been taken against him. So
far as the State respondents are concerned, no counter has been filed and
during the course of the proceedings before this Court, it has been
submitted by the learned Addl. Advocate General that the counter filed by
the State respondents in the connected writ petition will be adopted by
them.
[9.2] The petitioners have filed a reply thereto stating that since the
petitioners have no grievance against the Co-operative Union, it is neither
a necessary party nor a proper party and on the contrary, the petitioners
have made all the signatories of the alleged minority decision of the
Managing Body, as party respondents. The decision is a minority decision
because nine members have refused to give their consent. Two co-opted
members have no right to vote in the meeting, even though they have
given their opinion. The Co-operative Union being a registered body, is
WP (C) No. 334 of 2021 & WP(C) NO.420 of 2021 Contd.../-
[22]
bound to function as a democratic institution and conduct its affairs based
on democratic principles. Pursuant to the order dated 02-02-2021 passed
by this Court, the Managing Body held a meeting on 08-02-2021 with Shri
L. Tolpishak Singh in the chair and resolved that the petitioner be allowed
to be the Chief Executive Officer till his retirement or superannuation. The
petitioner is retiring from service by December, 2021 on attaining the age
of superannuation.
[10] The subject matter in issue relates to the appointment of the
private respondent, Shri O.Jiten Singh as the Chief Executive Officer of the
Co-operative Union and the main issue can be divided into parts-one, the
issue relating to the validity and correctness of the alleged decision of the
Managing Body probably taken on 15-03-2021 by way of circulation and
two, the issue relating to the validity and correctness of the letters dated
23-03-2021 of the Deputy Secretary (Co-operation); the letter dated 24-03-
2021 of the Registrar of Co-operative Societies, Manipur and the letter
dated 24-03-2021 of the private respondent, Shri O. Jiten Singh taking self
charge of post of the Chief Executive Officer. Admittedly, the Co-operative
Union is body registered under the provisions of the Manipur Co-operative
Societies Act, 1976 and is governed by its own bye-laws. As per clause 13
of the bye-laws, the supreme authority shall vest in general body which
shall consist of duly authorised representatives from each of the affiliated
co-operative societies. Clause 14 provides that its annual general meeting
shall be held within two months of closing the co-operative year. Clause 15
provides for holding of a special general meeting in case of necessity. The
WP (C) No. 334 of 2021 & WP(C) NO.420 of 2021 Contd.../-
[23]
quorum of a general meeting as provided in clause 18 shall be one third of
the total number of existing members as such on the date of the notice of
the meeting or fifty whichever is less. As provided in clause 21 of the bye-
laws, the business of the Co-operative Union shall be carried on and
managed by the Managing Body. Clause 23 provides for the manner in
which the Managing Body shall be constituted. The power and duties to be
exercised by the Managing Body are enumerated in clause 24 of the bye-
laws, of which sub-clause (d) confers power upon it to appoint salaries or
non-salaries officers and staff for proper conduct of business on such
terms as to pay and remuneration, security etc. and enter into contracts on
behalf of the Union as they may deem fit and to define their duties. Clause
25 provides for the quorum of the Managing Body meeting, while clause 26
provides for the powers and duties of the office bearers and in particular,
the President thereof. Clause 25 and 26 of the bye-laws read as under:
"25. QUORUM OF MANAGING BODY MEETING:
1) The Managing Body shall meet as often as necessary and at
least once in every three months.
2) Eight members shall form the quorum.
3) Every resolution of the meeting shall be decided by majority of
votes and in case of tie, th chairman shall have a second or
casting vote.
4) Any five of the members of the Managing Body may be
requisition a special meeting of the Managing Body.
WP (C) No. 334 of 2021 & WP(C) NO.420 of 2021 Contd.../-
[24]
5) Any member who fails to attend four consecutive meeting of the
Managing Body shall be liable to be removed by the Managing
Body but may be re-instated for the unexpired portion of the term
of the Managing Body if it considers the reasons given by the
member concerned are satisfactory.
26. POWERS AND DUTIES OF THE OFFICE BEARERS:
The President shall have the following powers and functions:
i) The President shall be the spokesperson of the policy of
the State Union and shall have overall control and
supervision of the administration overall programme of
the State Union. He shall preside over the meeting of the
Managing Body, Managing Body, Executive Committee of
any other Committee constituted under his Chairmanship.
ii) He will approve and sanction expenditure on any item as
approved in the budget upto Rs.5000 at a time except
staff pay and such other expenditure as approved and
sanctioned by the Managing Body and the Executive
Committee as the case may be.
iii) Notwithstanding anything contained in the bye-laws it
shall be competent for the President to empower the
Secretary/ Chief Executive Officer/ Executive Committee
to ascertain the opinion of the Managing Body or
Executive Committee on any matter he might consider it
urgent or expedient by circulation of papers to the
members on receipt of such information, the President
may decide the question as per opinion of the majority of
the members. The decision taken shall be placed before
the next meeting of the Managing Body for information.
WP (C) No. 334 of 2021 & WP(C) NO.420 of 2021 Contd.../-
[25]
iv) The President shall sign the proceedings or all the
meeting presided by him.
v) In the event of equality of votes on a resolution of the
President shall have the additional casting vote in the
meeting.
vi) To advise the Chief Executive Officer to convene the
meeting of the Managing Body and the Executive
Committee and other Sub-Committee of which he is the
President. In case of failure, the President himself may
call the meeting.
vii) The President may delegate any of this powers and
functions to one of the Vice-President or to the Chief
Executive Officer.
viii) To grant leave to the Chief Executive Officer and sanction
TA/ DAof the Chief Executive Officer and members of the
Managing Body/ Executive Committee/ Sub-Committee.
He will also countersign his Ta/ DA.
ix) The President shall be competent to take decision as are
urgent and emergent, nature affecting the policy of the
Union on behalf of the Managing Body/ Executive
Committee and other Committees. The matter will be
placed before the next meeting convened for
rectification."
Clause 25(2) provides that eight members shall form the
quorum. The word "quorum" is a pre-requisite condition to be fulfilled for
holding a meeting and it has nothing to do with the decision of a resolution.
It is plain and simple and it requires no interpretation at all. Clause 25 (3)
provides that every resolution of the meeting shall be decided by majority
WP (C) No. 334 of 2021 & WP(C) NO.420 of 2021 Contd.../-
[26]
of votes and in case of tie, the Chairman shall have a second or casting
vote. It may be noted that the total number of the members of the
Managing Body is eighteen and therefore, the expression "majority of
votes" mentioned therein, would mean at least ten members. But in the
present case and at the relevant time, the total number of members of the
Managing Body was seventeen only, as one of them had been disqualified.
The expression "majority of votes" in respect of the total of number
seventeen members, would mean at least nine members. The expression
"majority of votes" and the word "quorum" are two different things and are
used in clause 25 of the bye-laws for two different purposes. The general
rule as provided in the bye-laws, is that every resolution of the meeting
shall be decided by majority of votes. But clause 26(iii) appears to have
carved out an exception to it as is evident from the word
"notwithstanding" used therein. Clause 26(iii) provides that it shall be
competent for the President to ascertain the opinion of the Managing Body
or the Executive Committee through the Secretary or the Chief Executive
Officer on any matter he might consider it urgent or expedient by
circulation of papers to the members. On receipt of such information, the
President may decide the question as per opinion of the majority of the
members. The use of the expression "as per opinion of the majority of
the members" is significant indicating that the President may take a
decision, only when the opinion has been given by a majority of the
members of the Managing Body. Moreover, the decision of the President
shall be taken only after the papers being circulated to all the members of
WP (C) No. 334 of 2021 & WP(C) NO.420 of 2021 Contd.../-
[27]
the Managing Committee and their opinion being obtained in the sheet of
the decision. The word "circulation" does not mean the information to be
given over the phone. What it means, is that the papers shall be circulated
to all the members so that they can express their opinion thereon.
[11.1] Before going into the merits of the case, this Court proposes to
deal with the preliminary objection raised by the counsels appearing for the
respondents. According to them, the instant writ petitions are not
maintainable for the reasons that the petitioner in WP(C) No.334 of 2021 is
not eligible for appointment to the post of the Chief Executive Officer of the
Co-operative Union and therefore, he has no locus standi to file it; that the
Managing Body of the Co-operative Union which is the appointing authority
of the Chief Executive Officer, is not made a party in the writ petition and
that the Co-operative Union is not impleaded as a party respondent
therein. Combating these submissions, it has been submitted by the
counsel appearing for the petitioner in WP(C) No.334 of 2021 that the
petitioner is the senior most officer working in the Co-operative Union.
Although he was initially appointed as the Co-operative Education
Instructor in the year, 1988 on in-charge basis, he was regularised in the
year, 1998. He was promoted to the post of the District Co-operative
Education Officer in the year, 2010. Thereafter, he was appointed as the
Principal on in-charge basis and even though his appointment as the
Principal was approved, no formal order was issued for his appointment on
regular basis. On 22-09-2016, he was appointed as the Chief Executive
Officer and had been working in that capacity for some years and
WP (C) No. 334 of 2021 & WP(C) NO.420 of 2021 Contd.../-
[28]
therefore, it cannot be said that the petitioner was/ is not eligible for
appointment as the Chief Executive Officer.
[11.2] The Co-operative Union made the Recruitment Rules called the
Manipur State Co-operative Union, Manipur (Chief Executive Officer)
Recruitment Rules, 2010 (hereinafter referred to as "the Recruitment
Rules, 2010" ) which provides for the methods of recruitment for the post
of the Chief Executive Officer. The method of recruitment is by promotion.
If the post is not filled up by promotion, it shall be filled up by direct
recruitment. However, if both the methods are not workable for
recruitment, the post can be filled up on deputation from the office of the
Registrar of Co-operative Societies, Government of Manipur until the post
is filled by direct or promotion recruitment. In case of recruitment by
promotion, it shall be done so from amongst the Co-operative Education
Officer or the Publicity Officer or the Principal (CCM) with a minimum
experience of five years in their respective post. In other words, only an
officer holding the post of the Co-operative Education Officer or the
Publicity Officer or the Principal, is eligible for consideration for
appointment on promotion as the Chief Executive Officer. In the present
case, the petitioner was admittedly, at the relevant time, holding the post of
the Principal on in-charge basis but not on regular basis. It means that he
had not yet been appointed as the Principal (CCM) on regular basis and in
other words, he had not yet been borne in the cadre of the Principal and
that it cannot be said that he was eligible for appointment as the Chief
Executive Officer as per the recruitment rules, 2010. Therefore, he can be
WP (C) No. 334 of 2021 & WP(C) NO.420 of 2021 Contd.../-
[29]
held to have no locus standi to file the writ petition being WP(C) No.334 of
2021 which could have been disposed of accordingly but since it is being
clubbed and heard together with WP(C) No.420 of 2021 wherein the
validity and correctness of the said letters is also being questioned and
challenged, there is no point of dismissing it as not maintainable and it will
have no meaning at all. As regards the maintainability of the writ petition
on the ground that the Managing Body has not been impleaded as party
respondent, the contention of the learned counsel appearing for the
petitioner appears to be correct to the extent that since none of the letters
impugned therein has been issued by the Managing Body, it need not be
made a party respondent while questioning the validity and correctness of
the said letters.
[11.3] So far as the maintainability of the W P(C) No.420 of 2021 is
concerned, it has been submitted by the counsel appearing for the
respondents that since the Co-operative Union has not been impleaded as
party respondent, it is not maintainable and is liable to be dismissed. On
the other hand, it has been submitted by the counsel appearing for the
petitioners that as the alleged decision was not supported by a majority of
the members of the Managing Body, it could not be said to be the decision
of the Managing Body. Since it was a decision of the President and few
members only, they had been impleaded as party respondents which itself
is sufficient. It has further been submitted by him that it was not necessary
for the Co-operative Union to be impleaded as party respondent. In order
to appreciate the rival contentions, it becomes necessary for this Court to
WP (C) No. 334 of 2021 & WP(C) NO.420 of 2021 Contd.../-
[30]
look into the alleged decision carefully. From the perusal of the alleged
decision, it is seen that the resolution/ decision was drafted and prepared
for circulation in the name of the Co-operative Union and it was signed by
the President. In other words, the name of the Co-operative Union is
written on top of it. It is a different issue, if it has not been done in
accordance with the bye-laws. It has also been stated therein that the
resolution was circulated under the provisions of clause 26(iii) of the bye-
laws which confer power upon the President to obtain the opinion of the
members of the Managing Body. So far as the validity and correctness of
the alleged decision is concerned, it has been dealt with separately in one
of the paragraphs below. As regards the maintainability of the writ petition
on the ground that the Co-operative Union was not impleaded as a party
respondent, the contention of the respondents appear to have some merit
and the Co-operative Union being a necessary party, ought to have been
made a party respondent but it had not been done so in the writ petition.
However, the only allegation made against the Co-operative Union was the
general one to the effect that it being a registered body, is bound to
function as a democratic institution and conduct its affairs based on
democratic principles. The main allegation is against the President by
stating that he did not circulate the papers to all the members of the
Managing Body and in particular, the petitioners which is contrary to the
provisions of the clause 26(iii) of the bye-laws.
[12.1] As regards the first main issue, it has been submitted by Shri M.
Hemchandra, the learned Senior Advocate appearing for the petitioners in
WP (C) No. 334 of 2021 & WP(C) NO.420 of 2021 Contd.../-
[31]
WP(C) No.420 of 2021 that the resolution alleged to have been decided on
15-03-2021 by way of circulation, was not a valid one and that it ought not
to have been acted upon by the State Government. It has further been
submitted by him that as per clause 25(3) of the bye-laws, every resolution
of the meeting of the Managing Body shall be decided by the majority of
votes and in case of tie, the Chairman shall have a second or casting vote.
At the relevant time, the total number of the members of the Managing
Body was seventeen elected members only and therefore, the resolution
alleged to have been decided on 15-03-2021, cannot be said to have been
decided by a majority of the elected members of the Managing Body
because only eight elected member had expressed their opinion in favour
of the resolution. According to him, the other two members who
participated in deciding the resolution, are co-opted members and as per
the amended clause 23(1) (k) of the bye-laws, they have no right to vote
and shall be excluded for the purpose of counting the total number of
members of the Managing Body. One of the members who participated in
deciding the resolution, Shri Sh. Hemanta Singh is not only a co-opted
member but also a defaulter because of which his participation itself was
illegal. Since a majority of the members of the Managing Body did not
express their opinion in favour of the resolution, it cannot be said to have
been the resolution of the Managing body, leave alone the decision. On
the other hand, it has been submitted by Shri Lenin Hijam, learned Addl.
Advocate General that as provided in clause 25(2) of the bye-laws, the
quorum of the meeting was eight members only. Since the resolution was
WP (C) No. 334 of 2021 & WP(C) NO.420 of 2021 Contd.../-
[32]
supported and decided by ten members, there was nothing wrong with it.
Alternatively, it has been submitted by him that even if one member
happens to be a co-opted member, the resolution was supported by nine
members who are in majority. There is no provision in the bye-laws which
prohibits or prevents a co-opted member from participating in deciding the
resolution merely because he has been declared a defaulter by the IUCB.
The submissions of Shri N. Ibotombi, learned Senior Advocate, appearing
for the private respondents are similar to that of Shri Lenin Hijam, Addl.
Advocate General and therefore, the same are not repeated here for the
sake of brevity.
[12.2] On perusal of the resolution dated nil alleged to have been
decided by the President by way of circulation as is evident from the letter
dated 15-03-2021 of the President of the Co-operative Union, it is alleged
to have been decided by the President by following the provisions of
clause 26(iii) of the bye-laws after obtaining opinion of the members of the
Managing Body. Ten members of the Managing Body appear to have
given their opinion in favour of the decision. Clause 25(3) makes it very
clear that a resolution of the meeting of the Managing Body shall be
decided by a majority of the votes. As has been observed hereinabove,
notwithstanding the clause 25(3), clause 26(iii) provides an exception
which empowers the President to ascertain through the Secretary or the
Chief Executive Officer or the Executive Committee, the opinion of the
Managing Body or Executive Member on any matter by circulation of
papers. On receipt of such information, the President may decide the
WP (C) No. 334 of 2021 & WP(C) NO.420 of 2021 Contd.../-
[33]
question as per majority of the members. In the present case, three
corollary issues have arisen for consideration by this Court-one, whether
the papers have been duly circulated to all the members of the Managing
Body; two, whether the majority of elected members of the Managing Body
have expressed their opinion in favour of the decision and three, whether
the President has decided it on the basis of the opinion of the majority of
the members. The contention of the petitioners in WP(C) No.420 of 2021 is
that the papers have not been duly circulated to them at all. In this regard,
relying upon the report dated nil allegedly submitted on 12-03-2021 by the
staff of the Co-operative Union filed in WP(C) No.420 of 2021 along with
the counter affidavit, it has been submitted by Shri N. Ibotombi, learned
Senior Advocate that the staff of the Co-operative Union visited the
residence of the members as mentioned therein for circulation of papers.
On perusal of the said report, it appears that in respect of some of the
members and in particular, the petitioners therein, the report states that the
staff went to their houses but as they were not available at their homes,
they were informed over the phone and they did not give any opinion. It is
thus clearly seen that some of the members were not given proper
opportunity to give their opinion either in favour of or against the decision.
The relevant papers were not circulated to them nor did t hey see the
papers at all for their perusal and consideration except they being informed
over the phone about it. If that be so, they had no opportunity to sign in the
decision sheet as has been done in respect of the eight members who did
sign in the decision sheet. In the affidavit filed on behalf of the private
WP (C) No. 334 of 2021 & WP(C) NO.420 of 2021 Contd.../-
[34]
respondents in WP(C) No.420 of 2021, it has been stated that some of the
members could not even be informed about the decision, as they were not
found at their home. The manner in which the papers are alleged to have
been circulated to all the members of the Managing Body, cannot be said
to a proper circulation of papers in terms of the clause 26(iii) of the bye-
laws for obtaining the opinion of the members. As regards the second
corollary issue, the contention of the petitioners is that the resolution
cannot be said to have been decided by a majority of the members. Out of
the ten members who gave their opinion in favour of the decision, only
eight are elected member and the remaining two are co-opted members
who have no right to vote. The learned counsel appearing for the
respondents made an attempt to contend that the decision was supported
by nine members. But in fact, the decision was supported by eight elected
members only. From the perusal of the letter dated 26-08-2017 addressed
to the Principal Secretary (Co-op) Government of Manipur by the Registrar
of Co-operative Societies, Manipur showing the list of eighteen elected
members, it is seen that the names of Shri S. Jilla Singh and Shri Sh.
Hemanta Singh who had given their opinion in favour of the decision, are
not found therein, which clearly demonstrates that both of them are not the
elected members. The contention of the counsel appearing for the
petitioners appears to be correct to that extent. If that be so, it can be
safely held that the alleged resolution probably adopted on 15-03-2021
was not decided by a majority of the members of the Managing Body or it
was not supported by a majority of members with the result that the
WP (C) No. 334 of 2021 & WP(C) NO.420 of 2021 Contd.../-
[35]
alleged resolution was bad as being decided contrary to the bye-laws. In
other words, the majority of the members did not express their opinion in
favour of the decision. The third corollary issue is as to whether the
President had decided the resolution as per the opinion of the majority of
the members. The answer appears to be in the negative for the reason that
the President took its decision without application of mind, as if it had been
supported by the majority of the members. In fact, the President appears to
have proceeded on the footing that the resolution was supported and
decided by a majority which is totally incorrect. It is nowhere stated in the
alleged decision that the President had taken the decision after obtaining
the opinion of the majority of the members of the Managing Body. As per
clause 26(iii), it is the President who may take a decision as per the
opinion of the majority of the members. The decision can be taken by the
President only after the opinion of the majority of the member being
obtained and not otherwise. In the present case, the President knew very
well that the opinion was expressed by eight members only in favour of the
resolution/ decision. Since the decision was not supported by the majority
of the elected members of the Managing Body, the President ought not to
have decided and sent it to the Registrar of Co-operative Societies for
forwarding the same to the State Government for grant of approval. The
correct procedure as prescribed in clause 26(iii) has not been properly
followed by the President while taking the alleged decision. In other words,
the alleged decision taken by the President is totally contrary to the
WP (C) No. 334 of 2021 & WP(C) NO.420 of 2021 Contd.../-
[36]
provisions of clause 26(iii) of the bye-laws and therefore, it cannot be acted
upon.
[13.1] The second main issue relates to the validity and correctness of
the letter dated 23-03-2021 of the Under Secretary (Co-operation),
Government of Manipur; the letter dated 24-03-2021 of the Registrar of
Co-operative Societies, Manipur and the letter dated 24-03-2021 of the
private respondent, Shri O. Jiten Singh. In fact, since the first issue having
been decided holding that the resolution probably decided on 15-03-202, is
bad in law, there is no need of going into the validity and correctness of the
said letters. The stand taken by the State respondents as well as that of
the private respondents, is that the said letters have been issued on the
basis of the resolution probably decided on 15-03-2021 by the President.
On perusal of the said letters, it is seen that the letter dated 23-03-2021 is
written by the Deputy Secretary (Co-operation), Government of Manipur
conveying the approval of the State Government for deputation of the
private respondent, Shri O.Jiten Singh as the Chief Executive Officer. This
letter appears to have been issued with reference to the letter dated 18-03-
2021 requesting for grant of approval to the alleged decision of the
Managing Body. As has been observed hereinabove, the alleged
resolution probably adopted on 15-03-2021 by the President, cannot be
said to have been decided in accordance with the bye-laws, as it was not
signed by a majority of the members of the Managing Body as mandated
by clause 25(3) of the bye-laws. The State Government appears to have
not looked into it properly and applied its mind in this regard while issuing
WP (C) No. 334 of 2021 & WP(C) NO.420 of 2021 Contd.../-
[37]
the letter dated 23-03-2021. Had the State Government applied its mind, it
could have found the said resolution to be not in proper order and could
have returned it to the President or the Managing Body for reconsideration
and fresh decision in accordance with the bye-laws. The State
Government has, in fact, failed to do that. The second letter dated 24-03-
2021 written by the Registrar of Co-operative Societies, Manipur talks
about conveying approval to the appointment of the private respondent,
Shri O. Jiten Singh as the Chief Executive Officer on deputation. While
issuing the said letter dated 24-03-2021, the Registrar of the Co-operative
Societies appears to have proceeded on the footing that the private
respondent, Shri O. Jiten Singh has been appointed as the Chief Executive
Officer on deputation. It is a misconception on the part of the Registrar of
the Co-operative Societies. No formal appointment order had ever been
issued by the Managing Body appointing the private respondent, Shri O.
Jiten Singh as the Chief Executive Officer. Only the alleged decision of the
Managing Body was sent to the State Government for approval and after
the approval being granted by the State Government, a formal order
appointing the private respondent, Shri O. Jiten Singh as the Chief
Executive Officer ought to have been issued by the Managing Body. The
issuance of the letter dated 24-03-2021 by the Registrar of the Co-
operative Societies granting approval to the appointment of the private
respondent, Shri O. Jiten Singh as the Chief Executive Officer without any
formal appointment order being issued by the Managing Body, is
absolutely improper; unreasonable and illegal. Similar is the case with the
WP (C) No. 334 of 2021 & WP(C) NO.420 of 2021 Contd.../-
[38]
letter dated 24-03-2021 issued by the private respondent, Shri O. Jiten
Singh submitting a joining report and taking self charge as the Chief
Executive Officer which is also illegal for the reason that he has not been
appointed by the Managing Body as the Chief Executive Officer. It was
only an alleged decision taken by the President and few members for his
appointment as the Chief Executive Officer on deputation which was
approved by the State Government. But no formal order was issued by the
Managing Body appointing him as the Chief Executive Officer and in the
absence of such an appointment order, the question of his joining as the
Chief Executive Officer did not arise at all.
[13.2] As per the recruitment rules, 2010, the method of recruitment for
the post of the Chief Executive Officer is by promotion. If the post cannot
be filled up by promotion, it shall be filled up by way of direct recruitment.
However, if both the methods are not workable for recruitment, it may be
done on deputation from the office of the Registrar of Co-operative
Societies, Government of Manipur until the post is filled up by promotion or
by direct recruitment. In the alleged decision probably taken on 15-03-2021
by the President, it has been stated that as the officers of the Co-operative
Union were not eligible for promotion to the post of the Chief Executive
Officer, the resolution had been decided to appoint the private respondent,
Shri O. Jiten Singh on deputation as the Chief Executive Officer. It is not
clear as to whether the Managing Body had done any exercise towards the
appointment of the Chief Executive Officer by way of direct recruitment.
The alleged decision probably taken on 15-03-2021 by the President, is
WP (C) No. 334 of 2021 & WP(C) NO.420 of 2021 Contd.../-
[39]
silent on this aspect and no material has been placed on record to show
that such an exercise has been done by the Managing Body. Without
making an attempt towards the appointment of the Chief Executive Officer
by way of direct recruitment, the Managing Body cannot proceed directly to
the method of recruitment on deputation. Therefore, the process of
appointment of the private respondent, Shri O. Jiten Singh as the Chief
Executive Officer on deputation is contrary to the recruitment rules, 2010 as
well as the bye-laws and hence, it is bad in law. Having considered the
submissions of the learned counsels appearing for the parties and perused
the materials on record, this Court is of the view that the said letters,
impugned herein, are liable to be quashed and set aside.
[14] In support of their contentions, the learned counsels appearing for
the parties have cited and relied upon some of the decisions rendered by
the Hon'ble Supreme Court. After having perused the same, this Court is of
the view that there can be no dispute as to the law laid down by the Hon'ble
Supreme Court in the said cases but since the same are not applicable to
the facts and circumstances of the present cases, they are not being
referred to herein.
[15] One aspect which needs to be considered by this Court at this
juncture, is the submission of the counsel appearing for the petitioners that
although the petitioner in WP(C) No.334 of 2021 had been working as the
Chief Executive Officer for some years, he was not paid his salaries.
Admittedly, he was appointed as the Chief Executive Officer vide order
dated 22-09-2016 issued by the State Government which is not competent
WP (C) No. 334 of 2021 & WP(C) NO.420 of 2021 Contd.../-
[40]
to do so. It appears that the said order dated 22-09-2016 was not
challenged by anyone but it was cancelled vide order dated 18-02-2021
issued by the Under Secretary (Co-operation), Government of Manipur in a
purported compliance with this Court's order dated 02-02-2021. It has been
contended by the counsel appearing for the petitioners that it is nowhere
directed in this Court's order dated 02-02-2021 that the order dated 22-09-
2016 be considered for cancellation, if required. Since the order dated 18-
02-2021 has not been challenged by the petitioner in WP(C) No.334 of
2021 before the appropriate forum, this Court deems it appropriate not to
make any observation thereon. But he is entitled to his salary for the
service rendered by him, if the issuance of the alleged illegal or improper
order of his appointment cannot be attributed to him. The State
Government shall take into account this aspect while considering the
computation of his salary for the service rendered by him either as the
Principal or the Chief Executive Officer as well as the fact that he is retiring
in December, 2021.
[16] For the reasons stated hereinabove, the writ petition being WP(C)
No.334 of 2021 is allowed, while the writ petition being WP(C) No.420 of
2021 is allowed in part to the extent mentioned hereinabove and
consequently, the letter dated 23-03-2021 of the Under Secretary (Co-
operation), Government of Manipur; the letter dated 24-03-2021 of the
Registrar of Co-operative Societies, Manipur and the letter dated 24-03-
2021 of the private respondent, Shri O. Jiten Singh are quashed and set
aside. However, it is open to the Managing Body of the Co-operative Union
WP (C) No. 334 of 2021 & WP(C) NO.420 of 2021 Contd.../-
[41]
to initiate a process afresh for the recruitment of the Chief Executive Officer
in accordance with the provisions of the bye-laws and the relevant
recruitment rules. There shall be no order as to costs.
JUDGE
Devananda
SHOUGRA Digitally
by
signed
KPAM SHOUGRAKPAM
DEVANANDA
DEVANAN SINGH
DA SINGH Date: 2021.07.05
06:51:41 +01'00'
WP (C) No. 334 of 2021 & WP(C) NO.420 of 2021 Contd.../-
