R. Rathakrishnan Vs. the Deputy Registrar of Co-operative Societies - Court Judgment

Excerpt:
- labour & services part time employee: [tarun chatterjee & h.s. bedi, jj] employee employed on part-time basis but under control and supervision of employer is a workman. he would be entitled to benefit of continuous service under section 25 and protection of section 25-f of i.d. act, 1947. orders.j. mukhopadhaya, j.1. these writ petitions were preferred by employees of co-operative societies against their respective show cause notice issued by the deputy registrar of the co-operative society asking them to state as to why their services should not be terminated, their appointment being illegal. instead of submitting reply to the show cause notice, the respective employees have challenged the show cause notice on the ground that their appointments are not suffering from any illegality and the show cause notice is contrary to law.2. the show cause notices were issued pursuant to judgment passed by division bench of this court in l. justine v. the registrar of coop. societies, chennai reported in 2002 (4) ctc 385, wherein at paragraph 19 (v), the following order was passed:19......

Judgment:
ORDER

S.J. Mukhopadhaya, J.

1. These writ petitions were preferred by employees of Co-operative Societies against their respective show cause notice issued by the Deputy Registrar of the co-operative society asking them to state as to why their services should not be terminated, their appointment being illegal. Instead of submitting reply to the show cause notice, the respective employees have challenged the show cause notice on the ground that their appointments are not suffering from any illegality and the show cause notice is contrary to law.

2. The show cause notices were issued pursuant to judgment passed by Division Bench of this Court in L. Justine v. The Registrar of Coop. Societies, Chennai reported in 2002 (4) CTC 385, wherein at paragraph 19 (v), the following order was passed:

19. ...(v) direct that within two months of the approval of the special bye-laws under Sub-rule (1) of the Rule 149 of the Rules, the respective Deputy Registrars of Co-operative Societies having jurisdiction over the co-operative societies in their Divisions, shall enquire, by issuing notice to the entire staff recruited from 9.7.1980 to 11.3.2001, and decide as to whether the said recruitment is in conformity with the special bye-laws approve3d by the Registrar of the Co-operative Societies and terminate the services of such staff members, whose appointments are in contravention of the special bye-laws so approved by the Registrar of Co-operative Societies; it is made clear that while considering the validity or otherwise of the appointment of the staff of co-operative societies, the requirement of notifying the vacancies to the employment exchange shall not be taken cognisance of.

The aforesaid decision was subsequently challenged before the Supreme Court in A. Umarani v. Registrar of Co-operative Societies reported in : (2004)IIILLJ780SC , wherein the Supreme Court, by detailed judgment, while reversed some of the findings, dismissed the appeal.

3. All these batch of cases were listed before learned single Judge under the caption 'Cases covered by Larger Bench Decision'. When the cases were taken up by learned single Judge, some of the counsel, while submitted that the State Government has decided, as a policy decision, to absorb/regularise all of the appointees on one time basis vide letter No. 22322/CG/1/2005-7 dated 2nd Nov., 2006, relied upon two unreported orders passed by Division Bench, i.e.,

(1) Order dated 20th Nov., 2006, in W.P. No. 17570 of 2005, etc. Batch (Saravanan v. The Deputy Registrar of Co-operative Societies) ; and

(2) Order dated 4th Dec., 2006 in W.P. (MD) No. 2640/05, etc. Batch (P. Jeyanthi Devi v. The Deputy Registrar, Co-operative Societies, Madurai).

4. In the case of Saravanan v. The Deputy Registrar of Co-operative Societies W.P. No. 17570/05, etc., the Division Bench having noticed letter No. 22322/CG/1/2005-7 dated 2nd Nov., 2006, issued from Co-operative and Consumer Department of the Government of Tamil Nadu, and the submission made by the Addl. Advocate General, passed the following order:

4. Learned Additional Advocate General appearing for the Government also brought to our notice that based on the above mentioned proceedings, steps are being taken by the appropriate authority. In those circumstances, we are of the view that there is no need to go into the correctness of the impugned orders/proceedings at this juncture. The respondents/Government/Officers concerned are free to implement the decision of the Government referred above. It is made clear that any person who is not coming within the guideline/direction of the Government for regularisation/continuation in their service, they are free to approach the appropriate forum/Court to vindicate their grievance. It is also made clear that those persons continuing in office by virtue of interim orders of this Court are permitted to continue until final decision being taken by the authority concerned, viz., Regional Joint Registrar of Co-operative Societies.

The said order was followed in the case of P. Jeyanthi Devi (supra).

5. In view of aforesaid order passed by Division Bench of this Court, learned single Judge, while observed that if the policy of the State is to continue the service of the employees, the petitioners have to seek relief from the Government and cannot use the Court's interim order as a stop-gap arrangement to continue in service, further also raised serious doubt as to whether the Court could grant any interim order in respect of co-operative societies to continue the service of illegally appointed employees pending the so-called decision by the State Government. It was further observed that when the court does not want to adjudicate the validity of the orders impugned in the writ petitions, whether an interim order alone could be passed as a final order. However, in view of the aforesaid two unreported orders of the Division Bench of this Court, which are binding on single Judge, the matter was referred to a Division Bench of this Court.

The Division Bench, before which the matter was listed, being prima facie in agreement with the view expressed by learned single Judge, referred the matter to this Larger Bench for determination of the following issues:

8. Prima facie, we are in agreement with the view expressed by the learned single Judge. In our view, the issue whether the State could direct regularisation of all these employees in view of the clear dicta of the Supreme Court in A. Umarani's case and also the issue is whether the Court can grant interim relief so as to perpetuate the services of irregular appointees inspite of the judgment in Justine's case and A. Umarani's case are required to be considered by a Larger Bench. The matter is accordingly directed to be placed before the Chief Justice for appropriate orders for referring to a Larger Bench.

6. For determination of the issues, we have noticed the relevant facts, rules and guidelines issued by the State from time to time.

Learned Advocate General admitted that in different co-operative societies in the State of Tamil Nadu, more than 35,000 employees have been appointed without calling for names from the employment exchange and after Justine's case, services of about 26,000 employees have been regularised. In respect of rest of the employees, impugned show cause notices were issued.

7. The Co-operative Societies are guided by the Tamil Nadu Co-operative Societies Act, 1983 (hereinafter referred to as 'Act, 1983') and the rules framed thereunder, i.e., The Tamil Nadu Co-operative Societies Rules, 1988, (hereinafter referred to as 'Rules, 1988'). Rule 149 deals with conditions of service of paid officers and servants of societies and relevant rule is quoted hereunder:

149. Conditions of service of paid officers and servants of Societies. - (1) Every society shall, taking into account its nature of business, volume of transaction and financial position, adopt, [with the prior approval of the Government], a Special by-law covering the service conditions of its employees. The special by-law shall, inter alia, prescribe the following:

(i) Cadre strength and classification of various categories of posts and the qualifications required thereof for each such posts.

(ii) The method of recruitment for each such posts.

(iii) The scale of pay and allowances for each such posts.

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(2) No appointment by direct recruitment to any post shall be made except by calling for a list of eligible candidates from the Employment Exchange and also 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 newspapers in which one should be in regional language having wide circulation throughout the State:

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(3) In matters of reservation for appointments and age for appointment and retirement, the rule applicable to the Government servants shall be followed.

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8. The State Government issued one G.O. Ms. No. 86 dated 12th March, 2001, from its Co-operation Food and Consumer Protection Department and directed to regularise the service of all personnel appointed to the co-operative societies regardless of non-drawal from employment exchange, want of vacancy and want of educational and other qualifications. Others who were not covered preferred number of writ petitions, which were considered by a Division Bench of this Court, reported in 2002 (4) CTC 385 (L. Justine v. The Registrar of Co-operative Societies) and raised the following contentions:

(i) Even assuming that G.O. Ms. No. 86 dated 12th March, 2001, restricts only the regularisation of appointed staff only condoning the recruitment other then by employment exchange, by virtue of Section 3 of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, (hereinafter referred to as 'Act, 1981'), all such appointed personnel of the co-operative societies, who had completed 480 days in service in a continuous period of two years, regardless of their qualification or vacancy position, or otherwise, are entitled for regularisation and conferment of permanent status.

(ii) For the personnel not covered by Act, 1981, there is a protection accorded by the Industrial Disputes Act.

The Division Bench traced out the history of employees of co-operative societies, particularly the manner in which they were appointed and found that the State Government, all the time, condoned the lapses in not drawing the candidates from the employment exchange upto 8th July, 1980. The following facts were noticed and observations were made:

4. ...That is how the Government has condoned the lapse in not drawing the candidates from the employment exchange upto 8.7.1980. The Government was sympathetic and went on condoning the lapse from time to time fixing various cut off dates and extending the same by several Government Orders. Firstly, it was G.O. Ms. No. 790, dated 5.7.1971, fixing the cut off date for 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. 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 is extended upto 8.7.1980. Ultimately, by G.O. Ms. No. 86, Co-operation, Food and Consumer Protection Department, dated 12.3.2001, the cut-off date was extended to 11.3.2001. The common feature in all the above Governmental Orders is to the effect of ratifying the appointments made to the co-operative societies and authorising regularisation of their services condoning the lapse of only non-drawal of the candidates from the employment exchanges subject to a condition that such recruits should possess all the qualifications prescribed for the post. Even though it was mentioned in the above Governmental Orders that stringent action would be taken against the persons responsible for illegal recruitment, it remained only on paper without any effective steps being taken in that regard. That is the reason for the perpetuation of illegal appointments. It is made clear that there is no dispute regarding the regularisation of the personnel recruited upto 8.7.1980. The problem is only relating to post 8.7.1980 appointees. The figures are startling!. For the period from 9.7.1980 to 24.4.1990, there were 5,790 illegal recruits. The said figure rose to 15,107 by the year 1995 and further rose to 23,728 by 11.3.2001. It is not out of place to mention that the illegal recruitments had not stopped on 11.3.2001 but had been continuing and there is no surprise to say that even while we took up the matters for judgment, the spree of illegal recruitments might be going on. Such is the magnitude of the problem and unless there is a clear-cut-judgment, there will be multiplicity of litigations even throwing the judicial system out of gear, going by the volume of co-operative societies-recruitment litigation instituted in this High Court for several years. It should be taken note of that out of the staff of 60,211 in the co-operative societies, the illegal recruits conform to more than 39% and out of them 20,526 are the candidates who have completed 480 days and seeking shelter under the provisions of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981. Others are taking shelter under the Industrial Disputes Act on the ground of retrenchment or the attempt to retrench as violative of Section 25(f) of the Industrial Disputes Act or banking on the settlements entered between the Management and the staff purporting to be either under Section 12 or Section 18 thereof.

9. In L. Justine's case, when the question arose regarding the source of aforesaid Government Orders, the then learned Advocate General submitted that all the Government Orders, including G.O. Ms. No. 86 dated 12th March, 2001, emanate from the executive power of the State conferred by Article 162 of the Constitution of India, apart from power vested in the Government Under Section 170 of the Act; all the Government Orders, including G.O. Ms. No. 86 dated 12th March, 2001, are traceable to the above provision of Section 170 of the Act. It was submitted that though the qualification and other requirements for recruitment of the staff are specified by the rules, in exercise of the rule making power, the Government is competent to exempt any or all such requirements. The Government, in exercise of its power, had exempted the societies only the requirement of drawal of candidates through employment exchange. It was further submitted that such Government Orders absolve the societies with regard to all the requirements while recruiting staff and in any event, G.O. Ms. No. 86 has to be applied only prospectively from 12th March, 2001, and all appointments made by Co-operative societies upto 11th March, 2001, stands regularised regardless of the satisfaction of the requirements like cadre strength, educational qualification, co-operative training and experience.

The Division Bench, in Justine's case, while rejected the aforesaid submissions, made the following observations:

15. ...But we are at a loss to find any such blanket exemption. It had been the consistent approach of the Government to exempt only the condition relating to employment exchange intervention and not other conditions. Even if the above requirement of co-operative training and experience, qualifications are condonable because of the long years of service put in by the staff on equitable grounds and tempering justice with mercy, the conditions relating to educational qualifications and technical qualifications and more particularly, the cadre strength, cannot be condoned in the exercise of the discretionary jurisdiction of this Court under Article 226 of the Constitution of India. The provisions of either the Permanency Act of 1981 or of the Industrial Disputes Act, 1947 cannot also be pressed into service when the appointments are ipso facto illegal and unauthorised. We cannot accede to the contention that even if the appointment is illegal and unauthorised, merely on the passage of time and completion of the stipulated period of 480 days under the Permanency Act of 1981 or 240 days under the Industrial Disputes Act, 1947, an indefeasible right accrues to an employee. Such an argument is clearly untenable. If we accept the said argument, then there is no need for any law and finally, the concept of rule of law loses its significance. The conduct of personnel manning the co-operative societies while recruiting the staff is reprehensible.

Further, giving reference to the co-operative movement and lapses, which resulted in bankruptcy of 85% of the co-operative societies, the Division Bench observed as follows:.Enough is enough. We hope and trust that this G.O. Ms. No. 86, dated 12.3.2001 shall be the last one without any further exemptions.

10. In the said Justine's case, the Division Bench finally concluded at paragraph-19 and held as follows:

19. In view of the authoritative pronouncement of the Supreme Court, which is the law of the land under Article 141 of the Indian Constitution, and as the facts of this batch of cases clearly attract the legal principles enunciated by the Supreme Court, we hold that the appointments of the staff made to the co-operative societies by the elected bodies or the officers in charge, in violation of the cadre strength or the prescriptions of the educational qualifications, cannot stand and are held to be null and void. As already stated above, the Permanency Act of 1981 or Industrial Disputes Act, 1947, cannot be pressed into service. Non-obstante clause in the above enactments have to be read down to be in consonance with the legal principles enunciated by the Supreme Court in Ashwin Kumar's case (supra). Hence, the settlements entered under Sections 12 or 18 of the Industrial Disputes Act, have got no statutory force and are unforceable. Promotions effected also fall to ground.

In view of what is stated supra, we hold:

(i) that G.O. Ms. No. 86, Co-operation, Food and Consumer Protection Department, dated 12.3.2001, has got the effect of only authorising the regularisation of the employees recruited by the co-operative societies for the period from 9.7.1980 to 11.3.2001 exempting the intervention of employment exchange.

(ii) that G.O. ms. No. 86, Co-operation, Food and Consumer Protection Department, dated 12.3.2001, shall not operate for regularisation of any employee recruited by the co-operative societies in violation of Sub-rule (1) of Rule 149 of the Tamil Nadu Co-operative Societies Rules, as amended by G.O. ms. No. 212, Co-operation, 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 by-law in conformity with Sub-rule (1) of Rule 149 of the Tamil Nadu Co-operative Societies Rules, as amended by G.O. Ns. No. 212, Co-operation, Food and Consumer Protection Department, dated 4.7.1995.

(iv) direct the Registrar of Co-operative Societies to issue a circular within a week from today calling upon all the co-operative societies in the State of Tamil Nadu to comply with the directions in Clause (iii) supra.

(v) direct that within two months of the approval of the special bye-laws under Sub-rule (1) of the Rule 149 of the Rules, the respective Deputy Registrars of Co-operative Societies having jurisdiction over the co-operative societies in their Divisions, shall enquire, by issuing notice to the entire staff recruited from 9.7.1980 to 11.3.2001, and decide as to whether the said recruitment is in conformity with the special bye-laws approve3d by the Registrar of the Co-operative Societies and terminate the services of such staff members, whose appointments are in contravention of the special bye-laws so approved by the Registrar of Co-operative Societies; it is made clear that while considering the validity or otherwise of the appointment of the staff of co-operative societies, the requirement of notifying the vacancies to the employment exchange shall not be taken cognisance of.

(vi) that no co-operative staff member appointed subsequent to G.O. Ms. No. 86, Co-operation, Food and Consumer Protection Department, dated 12.3.2001 otherwise than through employment exchange shall be continued in service and their services shall be terminated forthwith.

(vii) that either the provisions of Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, or the Industrial Disputes Act, 1947, or the settlements entered under Sections 12 or 18 thereof, shall have no application to the staff of the co-operative societies appointed without adequate qualifications or beyond the cadre strength for the period from 9.7.1980 to 11.3.2001. This is equally applicable to the staff appointed to the co-operative societies, otherwise than through employment exchange, for the period from 12.3.2001 onwards.

11. Justine's case, when challenged, fell for consideration before the Supreme Court in the case of A. Umarani v. Registrar, Co-operative Societies reported in : (2004)IIILLJ780SC . The question of legality and propriety of G.O. Ms. No. 86 dated 12th March, 2001, issued from Co-operation, Food and Consumer Protection Department of the State Government also fell for consideration. In the said case, the Supreme Court noticed that a large number of employees, i.e., about 39% of the total strength of the employees of the co-operative societies of the State of Tamil Nadu were appointed without notifying the vacancies to the employment exchanges and without following the mandatory provisions of the Act and the Rules framed thereunder relating to recruitment (para-6); with a view to condone the serious lapses on the part of the co-operative societies in making such appointments in illegal and arbitrary manner, the Government 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 (para-8). The question as to whether the State had the requisite authority to direct regularisation of the service of the employees of the co-operative societies by reason of the impugned G.O. Ms. No. 86 dated 12th March, 2001, was discussed and taking into consideration source of power Under Section 182 and 170 of the said Act as also Article 162 of the Constitution of India, the Supreme Court held as follows:

21. In any view of the matter, such an order could not have been passed with retrospective effect condoning the actions on the part of the co-operative societies which were in flagrant violation of the provisions of the Act and the Rules made thereunder.

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23. A bare perusal of the aforementioned provision would clearly go to show that the impugned government order could not have been issued by the State 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 to 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 GO Ms. No. 86 dated 12.3.2001, the same must be held to be a nullity.

12. The applicability of Tamil Nadu Shops and Establishments Act, 1947, to the employees of the Co-operative Societies was discussed (para 25 - 28) and the following observation was made by the Supreme Court:

28. Whether a co-operative society would be a commercial establishment or not would essentially be a question of fact. It cannot be said keeping in view the legislative intent that all co-operative societies would be 'commercial establishments' within the meaning of the Tamil Nadu Shops and Establishments Act, 1947. It, therefore, appears that the impugned government order has been issued by the State without proper application of mind. It has furthermore not been stated in the impugned government order that all the co-operative societies are commercial establishments within the meaning of Section 2(6) of the Tamil Nadu Shops and Establishments Act, 1947.

The co-operative societies being governed by the statute under which they have been created, they are obligated to follow the principles as laid down under the Act and the Rules. In the aforesaid case, having noticed the provisions contained in Sub-rule (3), (4) and (25) of Rule 149, the Supreme Court held as follows:

35. No appointment, therefore, can be made in deviation of or departure from the procedures laid down in the said statutory rules.

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37. The 1983 Act was furthermore amended in the year 1995 providing for cadre strength which is directly relatable to the income of the co-operative societies.

38. Provisions of the Act and the Rules framed thereunder reflect the legislative recruitment policy. The said provisions are, thus, mandatory in nature.

39. Regularisation, in our considered opinion, is not and cannot be the mode of recruitment by any 'State' within the meaning of Article 12 of the Constitution of India or any body or authority governed by a statutory Act or the Rules framed thereunder. It is also now well settled that an appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularisation. (See State of H.P. v. Suresh Kumar Verma).

40. It is equally well settled that those who come by back door should go through that door. (See State of U.P. v. U.P. State Law Officers Assn.). (Emphasis added).

41. Regularisation furthermore cannot give permanence to an employee whose services are ad hoc in nature.

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45. No regularisation is, thus, permissible in exercise of the statutory power conferred under Article 162 of the Constitution if the appointments have been made in contravention of the statutory rules.

In the aforesaid case of A. Umarani, while no opinion was expressed as to whether the co-operative society is a State within the meaning of Article 12, the Supreme Court observed as follows:

60. Although we do not intend to express any opinion as to whether the co-operative 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 co-operative society is violative of mandatory statutory provisions. In this case except the nodal centre functions and supervision of the co-operative society, the State has no administrative control over its day-to-day affairs. The State has not created any post nor could it do so on its own. The State has not borne any part of the financial burden. It was, therefore, impermissible for the State to direct regularisation of the services of the employees of the co-operative societies. Such an order cannot be upheld also on the ground that the employees allegedly served the co-operative societies for a long time.

Taking into consideration the nature of appointment, which is de hors the statutory rule, the question whether principles of natural justice is to be followed or not was discussed at paragraph-65, as quoted hereunder:

65. We are also of 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.

The following observation was also made in the said case on the question whether any order required to be passed under Article 142 of the Constitution of India:

68. In a case of this nature this Court should not even exercise its jurisdiction under Article 142 of the Constitution of India on misplaced sympathy.

13. From the aforesaid findings of the Supreme Court in the case of A. Umarani, the following facts emerge:

(i) G.O. Ms. No. 86 dated 12th March, 2001, was declared as a nullity, the State Government having no power to issue such order.

(ii) Rule 149 framed under Act, 1983, reflect the legislative recruitment policy and such provisions are mandatory in nature.

(iii) Regularisation cannot be the mode of recruitment by any State within the meaning of Article 12 of the Constitution of India or any body or authority governed by the statutory Act or Rules framed thereunder.

(iv) Appointments made in violation of mandatory provision of the statute ignoring the minimum educational qualification, etc., is wholly illegal, which cannot be cured by taking recourse to regularisation. Those who have come by the backdoor should go through that and for that no show cause notice is required to be issued.

In view of such finding of Supreme Court in A. Umarani's case (supra), the observations, findings and directions given by Division Bench of this Court in Justine's case at paragraph 19(i), last portion of paragraph 19 (v) and the finding with regard to regularisation of service of employees recruited prior to 12th March, 2001, stand overruled.

14. So far as letter No. 22322/CG/1/2005-7 dated 2nd Nov., 2006, is concerned, it is based on G.O. Ms. No. 86 dated 12th March, 2001, and judgment passed by Division Bench of this Court in L. Justine's case. The said G.O. Ms. No. 86 dated 12th March, 2001, having been declared nullity by Supreme Court and the judgment in L. Justine's case relating to regularisation of service of employees of co-operative societies appointed prior to 12th March, 2001, having been reversed by Supreme Court in A. Umarani's case, and in view of finding that the State Government has no jurisdiction to issue order under Article 162 of the Constitution of India or Rule 182 and 170 for regularisation of service, letter No. 22322/CG/1/2005-7 dated 2nd Nov., 2006, cannot be upheld, being without jurisdiction and nullity. In fact the said letter has not been issued by the State Government, but by the Secretary, Co-operation, Food and Consumer Protection Department, who has no jurisdiction to amend any statutory rule. Learned Advocate General has also accepted that it is without jurisdiction and that the State Government will withdraw the said letter.

15. In view of the judgment of the Supreme Court rendered in the case of A. Umarani, it is not open for Court to permit the employees to continue in service by interim arrangement until final decision is taken on the basic question. Such orders having been passed by Division Bench on 20th Nov., 2006 in W.P. No. 17570 of 2005 (Saravanan v. The Deputy Registrar of Co-operative Societies) and followed in W.P. (MD) No. 2640/05, etc., (P. Jeyanthi Devi v. The Deputy Registrar, Co-operative Societies, Madurai), dated 4th Dec., 2006, and both orders being contrary to the principle laid down by the Supreme Court in A. Umarani's case, cannot stand the test of legal scrutiny.

16. In a recent judgment in Punjab Water Supply & Sewerage Board v. Ranjodh Singh reported in : (2007)2LLJ1052SC , the Supreme Court, while distinguished irregular and illegal appointments, noticed the Constitution Bench decision of the Supreme Court in Secretary, State of Karnataka v. Uma Devi reported in : (2006)IILLJ722SC and held that departmental instruction cannot prevail over statutory rule and constitutional provisions. 'Any appointment, thus, made without following the procedure will be ultra vires.' (Emphasis added).

17. The question of regularisation of illegal appointees fell for consideration before Constitution Bench of Supreme Court in Secretary, State of Karnataka v. Uma Devi reported in : (2006)IILLJ722SC . In the said case, the Supreme Court held that persons appointed in violation of Article 14 and 16 are class by themselves, such appointees, though appointed de hors the statutory rule, their services cannot be regularised. In the said case of Uma Devi (supra), the Supreme Court further cautioned the High Courts and made the following observations:

4. ...Whether the wide powers under Article 226 of the Constitution are intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognised by our Constitution, has to be seriously pondered over. It is time, that the courts desist from issuing orders preventing regular selection of recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. The passing of orders for continuance tends to defeat the very constitutional scheme of public employment. It has to be emphasised that this is not the role envisaged for the High Courts in the scheme of things and their wide powers under Article 226 of the Constitution are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the guardian of equal rights protection should not be forgotten.

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12. In spite of this scheme, there may be occasions when the sovereign State or its instrumentalities will have to employ persons, in posts which are temporary, on daily wages, as additional hands or taking them in without following the required procedure, to discharge the duties in respect of the posts that are sanctioned and that are required to be filled in terms of the relevant procedure established by the Constitution or for work in temporary posts or projects that are not needed permanently.... Once this right of the Government is recognised and the mandate of the constitutional requirement for public employment is respected, there cannot be much difficulty in coming to the conclusion that it is ordinarily not proper for the Courts whether acting under Article 226 of the Constitution or under Article 32 of the Constitution, to direct absorption in permanent employment of those who have been engaged without following a due process of selection as envisaged by the constitutional scheme.

From the aforesaid decisions, it will be evident that the State Government cannot direct regularisation of employees of co-operative societies of the State of Tamil Nadu, those who have been appointed without following the procedure and against constitutional mandate and in view of the clear dicta of the Supreme Court in A. Umarani's case (supra).

18. So far as the second issue, whether the Court could grant interim relief so as to perpetuate the service of irregular appointees, is concerned, our reply is in the negative.

It is settled law that what cannot be done directly cannot be ordered indirectly. If regularisation of service of illegal appointees is not permissible, against constitutional mandate, no interim relief could be granted so as to perpetuate the services of such illegal appointees.

It is settled law that no interim order could be passed, which may amount to final decision in the subject.

In this regard, one may refer to Supreme Court decision in State of U.P. v. Ram Sukhi Devi reported in AIR 2004 SCW 6955, wherein the following observation was made:

8. To say the least, approach of the learned single Judge and the Division Bench is judicially unsustainable and indefensible. The final relief sought for in the writ petition has been granted as an interim measure. There was no reason indicated by learned single Judge as to why the Government Order dated 26.10.1998 was to be ignored. Whether the writ petitioner was entitled to any relief in the writ petition has to be adjudicated at the time of final disposal of the writ petition. This Court has on numerous occasions observed that the final relief sought for should not be granted at an interim stage. The position is worsened if the interim direction has been passed with stipulation that the applicable Government Order has to be ignored. Time and again this Court has deprecated the practice of granting interim orders which practically give the principal relief sought in the petition for no better reason than that of a prima facie case has been made out, without being concerned about the balance of convenience, the public interest and a host of other considerations. [See Assistant Collector of Central Excise, West Bengal v. Dunlop India Ltd. : 1985ECR4(SC) , State of Rajasthan v. Swaika Properties : [1985]3SCR598 , State of U.P. and Ors. v. Visheshwar , Bharatbhushan Sonaji Kshirsagar (Dr.) v. Abdul Khalik Mohd. Musa and Ors. , Shiv Shankar and Ors. v. Board of Directors, U.P.S.R.T.C. and Anr. and Commissioner/Secretary to Govt. Health and Medical Education Department Civil Sectt., Jammu v. Dr. Ashok Kumar Kohli .] No basis has been indicated as to why learned single Judge thought the course as directed was necessary to be adopted. Even it was not indicated that a prima facie case was made out though as noted above that itself is not sufficient. We, therefore, set aside the order passed by learned single Judge as affirmed by the Division Bench without expressing any opinion on the merits of the case we have interfered primarily on the ground that the final relief has been granted at an interim stage without justifiable reasons....

The question of grant of interim relief also fell for consideration in the case of Uma Devi (3) (supra). In the said case, the Constitution Bench of the Supreme Court, while observed that the High Court acting under Article 226 of Constitution should not ordinarily issue direction for absorption, regularisation or permanent continuance, in regard to interim relief, the following observation was made:

43. ...The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.

In the case of State of Orissa v. Madan Gopal Rungta reported in : [1952]1SCR28 , the question fell for consideration whether direction in the nature of interim relief only could be granted under Article 226 by the Court without decision of right - final order. Having noticed the provisions of Article 226 of the Constitution of India, the Constitution Bench of the Supreme Court made the following observation:

5. ...The language of the Article shows that the issuing of writs or directions by the court is founded only on its decision that a right of the aggrieved party under Part III of the Constitution (Fundamental Rights) has been infringed. It can also issue writs or give similar directions for any other purpose. The concluding words of Article 226 have to be read in the context of what precedes the same. Therefore the existence of the right is the foundation of the exercise of jurisdiction of the Court under the Article.

In the said case, the Constitution Bench of the Supreme Court further held as follows:

6. ...In our opinion, Article 226, cannot be used for the purpose of giving interim relief as the only and final relief on the application as the High Court has purported to do. The directions have been given here only to circumvent the provisions of Section 80, Civil P. C., and in our opinion that is not within the scope of Article 226. An interim relief can be granted only in aid of and as ancillary to the main relief which may be available to the party on final determination of his rights in a suit or proceeding. If the Court was of opinion that there was no other convenient or adequate remedy open to the petitioners, it might have proceeded to investigate the case on its merits and come to a decision as to whether the petitioners succeeded in establishing that there was an infringement of any of their legal rights which entitled them to a writ of mandamus or any other directions of a like nature; and pending such determination it might have made a suitable interim order for maintaining the status quo ante. But when the Court declined to decide on the rights of the parties and expressly held that they should be investigated more properly in a civil suit, it could not, for the purpose of facilitating the institution such suit, issue directions in the nature of temporary injunctions, under Article 226 of the Constitution. In our opinion, the language of Article 226 does not permit such an action.

19. In view of the authoritative pronouncement of the Supreme Court, we hold as follows:

i) The State Government cannot exercise its jurisdiction under Article 162 of the Constitution of India or under any Act to direct regularisation of service of any employee, including employees of a co-operative society, if the appointments have been made in contravention of the statutory rule or constitutional mandate.

ii) Article 226 of the Constitution of India cannot be used for the purpose of giving interim relief as the only and final relief, without determination of the main issue.

20. In the present case, though it has been brought to our notice that about 26,000 employees of co-operative societies have been regularised in the service after the judgment rendered in L. Justine's case, the question of their legality and propriety of their regularisation, being not challenged in these cases, nor such question having been referred and in absence of those employees, we are not expressing any opinion with regard to such regularisation, which may be determined by the competent authority or a court of competent jurisdiction, if such question is raised.

21. Normally, when cases are referred before a larger Bench for determination of issues, after deliberation, the matters are sent back to the appropriate Bench for determination of the cases on merits. But in these cases, as counsel appearing on behalf of petitioners submitted that the petitioners do not want to pursue their respective writ petitions and wanted to withdraw their respective writ petitions to enable the petitioners to file a show cause reply, we allow them to do so.

The writ petitions are accordingly disposed of with the aforesaid observations as made above. But there shall be no order as to costs.