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TMI Blog2004 (7) TMI 693X X X X Extracts X X X X X X X X Extracts X X X X ..... Nodal Centre functions and supervision of the cooperative society, the State has no administrative control over its day to day affairs. The State has not created any post nor they could do so on their own. The State has not borne any part of the financial burden. It was, therefore, impermissible for the State to direct regularization of the services of the employees of the cooperative societies. Such an order cannot be upheld also on the ground that the employees allegedly served the cooperative societies for a long time. We are in the opinion that in a case of this nature, where the validity or otherwise of a government order is in question, the principles of natural justice will have no role to play and in any event recourse thereto would result in futility. It appears that the appellant was appointed as supervisor in 3rd respondent Bank by the President of the Bank on a consolidated pay of 2500/- by an order dated 5.03.2001. Her appointment is said to have been made on compassionate ground on the plea that her husband had deserted her. It has not been shown before us that there exists a scheme in terms whereof deserted woman can be appointed on compassionate grounds. Even such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble cadre strength. 8. With a view to condone the serious lapses on the part of the Cooperative Societies in making such appointments in illegal and arbitrary manner, the Government of the State of Tamil Nadu issued various orders from time to time in terms whereof such appointments were sought to be regularised fixing a cut off date therefor. Firstly, G.O.Ms No. 790 dated 5.7.1971 was issued ratifying the irregular appointments made otherwise than through employment exchange upto 5.7.1971. Further, by G.O.Ms No. 1352 dated 7.11.1978, the cut off date was extended upto 31.12.1977. Yet again, by G.O.Ms. No. 605 dated 3.6.1980, the cut off date was extended upto 31.12.1979. By G.O.Ms. No. 312 dated 30.11.1987 the cut off date was furthermore extended upto 8.7.1980. Ultimately, by G.O.Ms. No. 86 dated 12.3.2001 the cut off date was extended upto 11.3.2001 and thereby the Government of Tamil Nadu sought to regularise appointments made after 8.7.1980 in the Cooperative Societies without notifying the Employment Exchange in respect of those employees who had completed 480 days of service in two years purported to be in terms of Tamil Nadu Industrial Establishments (Conferment of Permane ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relating to the statutory obligation on the part of the Cooperative Societies to notify the Employment Exchange as regard the existing vacancies and not other statutory conditions. The Division Bench held: "(i) that GOMs No. 86, Cooperation, Food and Consumer Protection Department, dated 12.3.2001, has got the effect of only authorizing the regularization of the employees recruited by the cooperative societies for the period from 9.7.1980 to 11.3.2001 exempting the intervention of employment exchange; (ii) that GOMs No. 86, Cooperation, Food and Consumer Protection Department, dated 12.3.2001, shall not operate for regularization of any employee recruited by the cooperative societies in violation of Sub-Rule (1) of Rule 149 of the Tamil Nadu Cooperative Societies Rules, as amended by GOMs No. 212, Cooperation, Food and Consumer Protection Department, dated 4.7.1995; (iii) in societies, where the cadre strength has not been fixed, direct them to adopt the special bye- law in conformity with sub-Rule (1) of Rule 149 of the Tamil Nadu Cooperative Societies Rules, as amended by GOMs No. 212, Cooperation, Food and Consumer Protection Department, dated 4.7.1995; (iv) direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. 16. In any event, Mr. Balakrishnan would contend that each employee was individually entitled to be given an opportunity of being heard so as to enable the competent authority to come to the conclusion as to whether they had fulfilled the requirements contained in the aforementioned GOMs No. 86 dated 12.3.2001 or not. Reliance in this behalf has been placed on Olga Tellis and Others Vs. Bombay Municipal Corporation and Others [(1985) 3 SCC 545]. 17. The learned counsel appearing on behalf of the respondents, on the other hand, supported the judgment of the High Court. 18. The primal question which arises for consideration in these appeals is as to whether the State had the requisite authority to direct regularisation of services of the employees of the cooperative societies by reason of the impugned GOMs No. 86 dated 12.3.2001. 19. The 1983 Act was enacted inter alia to make better provision for, the organization, management and supervision of cooperative societies in the State of Tamil Nadu as also for providing for an orderly development of the cooperative movement in accordance with cooperative principles. Indisputably, in terms of the provisions of the 1983 Act, the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te in terms thereof as the same can be taken recourse to only for the purposes mentioned therein and not for any other. It is not a case where the Government directed the Registrar to make an enquiry against a person in the public interest. Article 162 of the Constitution of India provides for extension of executive power to the matters with respect of which the Legislature of the State has power to make laws. Article 162 of the Constitution by no stretch of imagination is attracted as the source of the power of the State to pass an appropriate order must be traced to the provisions of the Act itself. If the State had no power to issue the said GOMs No. 86 dated 12.3.2001 the same must be held to be a nullity. 24. Let us now consider the extent to which the provisions of the 1981 Act would apply to the fact of the present case. 25. The 1981 Act applies only to industrial establishments. Industrial Establishment has inter alia been defined to mean "an establishment as defined in clause (6) of Section 2 of the Tamil Nadu Shops and Establishments Act, 1947 (Tamil Nadu Act XXXVI of 1947)". 26. Establishment has been defined in Section 2(6) of the Tamil Nadu Shops and Estab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for recruitment by advertisement in dailies, by also calling for a list of eligible candidates from the Employment Exchange. (b) Where the Employment Exchange issues a non-availability certificate or the Government have accorded special sanction for recruitment by advertisement in dailies, the society shall invite applications from candidates including those working in other societies by advertisements in one English daily and two Tamil dailies having circulation within the area of operations of the society approved by the Government for the purposes of issue of Government advertisements. (c) Every appointment by direct recruitment shall be made by holding written examination and interview or by holding only interview as decided by the board and on the basis of the rank given with reference to the marks obtained in the written examination, if any, and the marks awarded in the interview: Provided that nothing contained in this sub-rule shall apply to any of the posts for the recruitment of which a Recruitment Bureau has been constituted under section 74 or in respect of which common cadre of service has been constituted under section 75; Provided further that nothing contai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of the said order we may mention that in the High Court both the parties appear to have proceeded on an assumption that regularisation meant permanence. Consequently it was never contended before the High Court that the effect of the application of the said order would mean only regularising the appointment and no more and that regularisation would not mean that the appointment would have to be considered to be permanent as an appointment to be permanent would still require confirmation. It seems that on account of this assumption on the part of both the parties the High Court equated regularisation with permanence." 43. This Court yet again in R.N. Nanjundappa Vs. T. Thimmaiah & Anr. [(1972) 2 SCR 799], it was held: " If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularisation cannot be said to be a mode of recruitment. To accede to su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hibition on the filling up of vacant posts or creating new posts including regularization of daily-waged employees. (See Municipal Corporation, Bilaspur and Another Vs. Veer Singh Rajput and Others [(1998) 9 SCC 258]) 50. Yet again, in Nazira Begum Lashkar and Others Vs. State of Assam and Others [(2001) 1 SCC 143], it was noticed: "14 The decisions cited by Mr. Parikh, in support of his contention, not only do not support his contention but on the other hand, appears to us to be against his contention. In Ashwani Kumar case ((1997) 2 SCC 1 : 1997 SCC (L&S) 267) this Court in no uncertain terms held that as the appointments had been made illegally and contrary to all recognised recruitment procedures and were highly arbitrary, the same were not binding on the State of Bihar. This Court further went on to hold in the aforesaid case that the initial appointments having been made contrary to the statutory rules, the continuance of such appointees must be held to be totally unauthorised and no right would accrue to the incumbent on that score. The Court had also held that it cannot be said that the principles of natural justice were violated or full opportunity was not given to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Rajasthan [(2003) 3 SCC 485] this Court categorically held that there was no scope of regularization unless the appointment was made on a regular basis. 55. In Delhi Development Horticulture Employees' Union Vs. Delhi Administration, Delhi and others [(1992) 4 SCC 99] the Court emphasized how judicial sympathy to the workmen could boomerang upon the purpose wherefor Schemes like Jawahar Rozgar Yojna have been framed, and thereby in the larger context, deny the limited benefit extended by the State to the unemployed which would not be available but for such schemes. (See also Executive Engineer (State of Karnataka) Vs. K. Somasetty and Others, (1997) 5 SCC 434) 56. In M.D., U.P. Land Development Corporation and Another Vs. Amar Singh and Others [(2003) 5 SCC 388], this Court noticed a large number of earlier decisions of this Court wherein it had been held that once employees are appointed for the purpose of Scheme, they do not acquire any vested right to continue after the project is over. 57. In State of Haryana and Another Vs. Tilak Raj and Others [(2003) 6 SCC 123] a Division Bench of this Court held that a person appointed as daily wager holds no post and thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and there is no need of the workmen beyond the completion of the works undertaken. The public interests are thus jeopardized on both counts." 60. Yet again in Haryana Tourism Corporation Ltd. Vs. Fakir Chand and Others [(2003) 8 SCC 248], noticing that the respondents were not recruited through the employment exchange or through any other accepted mode of selection and further noticing that it was also not known whether there was any advertisement calling for applications for these appointments, the prayer for reinstatement of service was rejected. 61. Although we do not intend to express any opinion as to whether the cooperative society is a "State" within the meaning of Article 12 of the Constitution of India but it is beyond any cavil of doubt that the writ petition will be maintainable when the action of the cooperative society is violative of mandatory statutory provisions. In this case except the Nodal Centre functions and supervision of the cooperative society, the State has no administrative control over its day to day affairs. The State has not created any post nor they could do so on their own. The State has not borne any part of the financial burden. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e opinion that in a case of this nature, where the validity or otherwise of a government order is in question, the principles of natural justice will have no role to play and in any event recourse thereto would result in futility. 67. In Civil Appeal No. 1413 of 2003 an additional ground has been raised to the effect that as the appellant was appointed on a compassionate ground, this Court on sympathetic consideration should issue appropriate directions directing the respondents to regularize her services. It appears that the appellant was appointed as supervisor in 3rd respondent Bank by the President of the Bank on a consolidated pay of ₹ 2500/- by an order dated 5.03.2001. Her appointment is said to have been made on compassionate ground on the plea that her husband had deserted her. It has not been shown before us that there exists a scheme in terms whereof deserted woman can be appointed on compassionate grounds. Even such appointment, in our opinion, would be illegal. 68. In State of Manipur Vs. Md. Rajaodin [(2003) 7 SCC 511], this Court observed that the purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the breadwin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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