IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:
04. 01.2013 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.35184 and 35185 of 2012 and M.P.Nos.1 ad 2 of 2012 S.Vijayalakshmi .. Petitioner in W.P.No.35184/2012 K.T.Vijayasankar .. Petitioner in W.P.No.35185/2012 Vs. 1.The Secretary to the Government, Co-operation, Food and Cooperation Department, Fort St.George, Chenna”
009. 2.State Recruitment Bureau (Co-operative Societies) Rep. By its President, 170, Periyar E.V.R High Road, Kilpauk, Chenna”
010. 3.The Registrar of Co-operative Societies, N.V.Natarajan Maligai, No.170, Periyar E.V.R.High Road, Kilpauk, Chenna”
010. .. Respondents in both WPs Writ petitions filed under Article 226 of the Constitution of India praying for a writ of Certiorari, calling for the records pertaining to the Advertisement Number 3/2012 SRB dated 02.11.2012 on the file of the State Recruitment Bureau (Co-operative Societies), 170, E.V.R.Periyar High Road, Kilpauk, Chenna”
010. the second respondent herein and quash the same. For Petitioners : Mr.A.V.Arun For Respondents : Mr.A.Navaneetha Krishnan, Advocate General Assisted by Mr.L.P.Shanmuga Sundaram, Spl.G.P. C O M M O N O R D E R These two writ petitions were filed by two individuals seeking to challenge the notification dated 02.11.2012 issued by the second respondent viz., the State Recruitment Bureau for Co-operative societies.
2. In the first writ petition in W.P.No.35184 of 2012, the petitioner is working as Gold Appraiser in the Kottupullampalayam Women Milk Producers Cooperative Society and claimed to be working for more than four years. She also claims that she has got a degree in Co-operation from Annamalai University in the year 2002. Similarly, in W.P.No.35185 of 2012, the petitioner is working as Gold Appraiser in Erode Central Co-operative Bank and claims to be working for more than three years. He also claims that he got Diploma in Co-operation from a private institute during the year 1999-2000.
3. The petitioners' challenge to the impugned notification dated 02.11.2012 is on a very narrow campus viz., that the notification calling for applications for the post of Assistant prescribes the educational qualification as a degree under the 10+2+3 pattern and in the Note appended to the educational qualifications, it is stated that even persons who have not been trained and got Diploma or Certificate in Co-operation are also eligible to apply. But they should complete the Diploma Course in Co-operation within a period of two years from the date of appointment in case they are selected and such diploma can be obtained even through distance mode of education.
4. The contention raised by the two petitioners are identical viz., that the Government has established Co-operative institutions imparting education in the Co-operative movement and if the present attempt by the Recruitment Bureau is encouraged, there will be no charm in establishing such institutions and imparting special education on a particular subject. The basic concept of a Co-operative movement cannot be dispensed with. The candidates who have completed Co-operative education courses and waiting for opportunity to serve Co-operative Societies have not been given any consideration. In effect, the challenge is that giving a two year time to persons who are not having cooperative training is illegal and that preference must be given to candidates who are having Diploma in Co-operation.
5. Heard Mr.A.V.Arun, learned counsel for the petitioner and Mr.A.Navaneetha Krishnan, learned Advocate General assisted by Mr.L.P.Shanmuga Sundaram, learned Special Government Pleader appearing for the respondents.
6. In essence, the contention of the petitioners was that for the post of Assistant for which applications were called for, the requirement should be, apart from degree, they should also have a Co-operative Diploma as the educational qualification and the respondents ought not to have given any further time to complete the course for persons who are not having such qualification. Reliance was placed upon Rule 149 of the Tamil Nadu Cooperative Societies Rules. Original Rule 149 before its amendment by G.O.Ms.No.212 Cooperation Food and Consumers Protection, dated 04.07.1995 not only prescribes various class of posts but also educational qualification and other qualifications, which are required by the employee who are admitted in the Co-operative societies. In respect of administrative posts, apart from the educational qualification, it was also prescribed that a cooperative training must be a qualification required for filling up the post. But these rules were superseded by G.O.Ms.No.212, Co-operation, Food and Consumers Protection, dated 04.07.1995.
7. Under Rule 149(2) no appointment by direct recruitment to any post should be made except by calling for a list of eligible candidate from the Employment Exchange and after giving due publicity by means of announcement in the notice Board of the Society and also of the affiliated societies, inviting application from the eligible Employees of such Societies. Where the employment exchange issues a non-availability certificate, the Society shall invite applications by giving advertisement in more than one daily newspaper in which one should be in regional language having wide circulation throughout the State. In so far as cooperative training is concerned, second proviso to Rule 149(1) reads as follows:- "Provided further that the Co-operative training at the appropriate level may be prescribed as a necessary qualification for specific categories of non-technical posts." 8. Merely by stating that in order to protect the co-Co-operative movement, a candidate must have qualification of Co-operative training does not give statutory flavour and hence cannot be equivalent to the rules framed by the State Government under the provisions of the Act or any other notification issued by the department. Therefore, it is not as if the State Government has given a go-by to the qualification of cooperative training being part of requirement for holding the post of Assistant. On the contrary, the notification clearly states that from the date of appointment, the person holding the post of Assistant must complete Co-operative training within a period of two years.
9. The Supreme Court very recently in the judgment in State of Gujarat and others v. Arvindkumar T.Tiwari and another reported in (2012) 9 SCC 54.has made a distinction between a qualification and eligibility condition. In paragraph 12, it was made clear that fixing eligibility for a particular post falls within the exclusive domain of the legislature/executive and cannot be the subject matter of judicial review, unless it is found to be arbitrary and unreasonable. Hence, it is necessary to refer to the following passages found in paragraphs 12 to 14:- "12. Fixing eligibility for a particular post or even for admission to a course falls within the exclusive domain of the legislature/executive and cannot be the subject-matter of judicial review, unless found to be arbitrary, unreasonable or has been fixed without keeping in mind the nature of service, for which appointments are to be made, or has no rational nexus with the object(s) sought to be achieved by the statute. Such eligibility can be changed even for the purpose of promotion, unilaterally and the person seeking such promotion cannot raise the grievance that he should be governed only by the rules existing, when he joined service. In the matter of appointments, the authority concerned has unfettered powers so far as the procedural aspects are concerned, but it must meet the requirement of eligibility, etc. The Court should therefore, refrain from interfering, unless the appointments so made, or the rejection of a candidature is found to have been done at the cost of "fair play", "good conscience" and "equity". (Vide State of J & K v. Shiv Ram Sharma and Praveen Singh v. State of Punjab).
13. In State of Orissa v. Mamata Mohanty, this Court has held that any appointment made in contravention of the statutory requirement i.e. eligibility, cannot be approved and once an appointment is bad at its inception, the same cannot be preserved, or protected, merely because a person has been employed for a long time.
14. A person who does not possess the requisite qualification cannot even apply for recruitment for the reason that his appointment would be contrary to the statutory rules, and would, therefore, be void in law. Lacking eligibility for the post cannot be cured at any stage and appointing such a person would amount to serious illegality and not mere irregularity. Such a person cannot approach the court for any relief for the reason that he does not have a right which can be enforced through court. (See Prit Singh v. S.K.Mangal and Pramod Kumar v. U.P.Secondary Education Services Commission)" (Emphasis added) 10. In the light of the stand taken by the respondents and in the light of the legal pronouncements, this Court is unable to appreciate the stand taken by the petitioners. Further, a similar contention raised by one candidate by name M.Ravi in W.P.No.31195 of 2012 contending that persons who hold the decree in Co-operation alone should be selected was rejected by this Court. In paragraph 7 of the order, it was clear that the State Government was entitled to prescribe the qualification required for the post and also to grant time to complete the diploma. As noted already, in the present case, the said qualification has not been dispensed with and the selected candidates have been given two years time to complete the course and it has been made mandatory.
11. Mr.A.V.Arun, learned counsel for the petitioners referred to the preamble to the Tamil Nadu Co-operative Societies Act, 1983, wherein it is stated that it was expected to provide for an orderly development of Co-operative movement in accordance with Cooperative principles and emphasised that having educational qualification in Cooperation is an essential requirement. As noted already, in the present case, the State Government has not given a go-by to the cooperation training for holding the post of Assistant and only extended the time for acquiring the qualification. It is one thing to state that it must be a pre-requisite for entering into service and other thing to state that such qualification is essential for continuing in service. As found in Arvindkumar T.Tiwari's case (cited supra), that it is not for the judiciary in the guise of judicial review to impose such condition and it is left to the legislature/executive to prescribe such qualification. Hence, this contention also cannot be considered.
12. In the light of the above, the writ petition stands dismissed. No costs. Consequently, connected miscellaneous petitions are closed. svki To 1.The Secretary to the Government, Co-operation, Food and Cooperation Department, Fort St.George, Chenna”
009. 2.The President, State Recruitment Bureau (Co-operative Societies) 170, Periyar E.V.R High Road, Kilpauk, Chenna”
010. 3.The Registrar of Co-operative Societies, N.V.Natarajan Maligai, No.170, Periyar E.V.R.High Road, Kilpauk, Chenna”
01.