SURESHversusYEOTMAL DIST. CENTRAL CO-OP. BANK LTD. & ANR.

                          (2008) 3 S.C.R. 1023


j                              SU RESH                               A
                                    v.
       YEOTMAL DIST. CENTRAL CO-OP. BANK LTD. & ANR.
                (Civil Appeal No. 1728 of 2008)
                            MARCH 4, 2008
                                                                     B
              .[S.B. SINHA AND V.S. SIRPURKAR, JJ.]

           Service Law:

           Seniority list - Name of appellant figured at Sl.No.4 in
      seniority list whereas name of respondent No. 2 figured at     c
      SI.No. 1 - Seniority list challenged by appellant before
      cooperative Court- Maintainability of- Held: Not maintainable
      - Candidates whose names appeared at Sl.Nos.2 and 3 were
      not impleaded as parties in the said proceedings - In their
•'    absence, disputf? could not be effectively adjudicated upon.  D
'
            Promotion - Post of High Grade Manager - Cooperative
      society - Circular ~ssued by Registrar in exercise of its power
      under s. 74of1960 Act, stating that change in service conditions
      to be preceded by a notice as envisaged in 1946 Act- Legality E
      of promotion made in 1998 challenged on the ground that
      notice was issued only in 2001 - Held: The Registrar
      exercises jurisdiction for laying down qualification for the post
      of Manager by virtue of s. 74 of 1960 Act - While exercising
•     such statutory power, requirement to comply with provisions F
.._   of another statute was not necessary- Therefore, issuance of
      notice of change in service conditions as advised by Registrar ·
      in terms of 1946 Act was not required - 1946 Act was meant
      for industrial workers and notfor those who exercise.supervisory
      jurisdiction in cooperative society - On facts, successful G
      candidate fulfilled the prescribed qualifications - Hence, no
      case made out for interfering with the appointment - Bombay
'I    Industrial Relations Act, 1946 -:- S.42 - Maharashtra
      Cooperative Societies Act, 1960 - S.74.
                                  1023                               H
    1024    SUPREME COURT REPORTS                [2008] 3 S.C.R.


A      The appellant was appointed as clerk in 1974 and
  confirmed in 1994. Respondent no.2 was appointed as
  Development Officer in 1979 as a direct recruit. He was
  brought up on the select list for the purpose of promotion
  to the post of Manager in 1994. The name of the appellant
B did not figure therein. A seniority list was published in 1995
  wherein the name of appellant figured at serial no.4
  whereas the name of the respondent no.2 figured at serial
  no.1. Respondent No.2 was promoted to the post of
  Senior Manager in 1998.
c      The appellant raised a dispute before the Cooperative
  Court questioning the said seniority list as also the
  promotion of the respondent no.2. The Cooperative Court
  allowed the application of appellant holding that the
  respondent no.2 did not possess the requisite
D qualification. The Cooperative Appellate Court allowed the       t
                                                                       •
  appeal filed by respondent no.2 holding that he had
  Master's degree with subject of Economics and a diploma
  in cooperative banking and his appointment itself was in
  select grade and so it could not be said that he does not
E possess a qualification for being appointed to the post of
  Manager. Appellant filed writ petition before the High Court
  which was dismissed.
       In appeal to this Court, the appellant contended that
F the promotion of the respondent no. 2 to the post of
  Manager was illegal as the post of Agricultural
  Development Officer was not the feeder post; and that
  having regard to the provisions contained in Sub-section
  (1) of s.42 of the Bombay Industrial Relations Act, 1946,
G any change in the service conditions was required to be
  preceded by a proper notice as was advised by the
  Registrar of Cooperative Societies in his order dated                ,
  6.08.1996 and as such a notice was issued only on                (


  24.09.2001, the promotion of the respondent no. 2 must
H be held to be illegal.
          SURESH v. YEOTMAL DIST. CENTRAL CO-OP. BANK             1025
                          LTD. & ANR.

  J           Dismissing the appeal, the Court                            A
               HELD: 1.1 Respondent No. 1 is a cooperative society.
         It has its own rules and bye-laws. The service rules framed
         by the respondent no. 1 stand approved by the Registrar.
         In the seniority list published in the year 1995, the position
         of the appellant was at SI. No. 4. Those candidates whose        8
'>i
         names appeared at SI. Nos. 2 and 3 were not impleaded
         as parties in the said proceeding. In their absence, the
         dispute could not have been effectively adjudicated
         upon. The dispute raised by the app~llant before the
        ·Cooperative Appellate Court, therefore, was not                  c
         maintainable. [Para 12] [1032:A, B; 1033-A]
              Rashmi Mishra v. M.P Public Service Commission and
         Ors. (2006) 12 sec 724 - relied on.
 '~            1,2. Even otherwise, there is nothing on record to         D
         show that the provisions of the Bombay Industrial
         Relations Act, 1946 would be attracted in the matter of
         laying down qualification for the post of Manager of a
         Bank. If the provisions of the said Act are not applicable,
         the same ipso facto cannot apply only because the                E
         Registrar of the Cooperative Societies thought so. It is
         one thing to say that the respondent no. 2 did not possess
         essential qualification for holding the post but it is another
•        thing to say that the Registrar had exercised its
         jurisdiction under s.74 of the Maharashtra Co-operative          F
 .;..
         Societies Act, 1960. In terms of the said provision,
         indisputably, the Registrar could exercise its jurisdiction
         for laying down the qualification for the post of manager.
         When such qualifications are laid down by the Registrar,
         he exercises a statutory power. While exercising such a          G
         statutory power, requirement to comply with the
..\      provisions of another statute, viz., issuance of notice of
         change in terms of the Bombay Industrial Relations Act,
         1946 was not necessary. They were meant to be done for
         the industrial workers and not for those who exercise            H
    1026      SUPREME COURT REPORTS               [2008] 3 S.C.R.


A supervisory jurisdiction in a cooperative society.                \
  [Paras 15-17] (1033-C, D, G; 1034-A, B]
       1.3. The Registrar of Cooperative Societies in its order
  dated 6.08.1996 merely said that for technical posts, the
  prescribed qualification.would not be applicable and the
8 concerned societies can make changes in their service
  rules regarding qualification of appointment and
  promotion. Only when changes in the service rules were
  required to be made, the respective societies were not
  given a free hand to do so. It is only from that angle
C notice of change was, if at all, required to be issued.
  (Para 18] (1034-B, C, D]
       2. Respondent No. 2 fulfills the prescribed
  educational qualification. It was found by the appellate
o court. It is not the case of the appellant that the post of
  Manager could be filled up only by way of promotion. Such
  a post could be filled up also by direct recruitment.
  Assumingly, for the said purpose, the post of Agricultural
  Development Officer is not the feeder post for promotion
E to the post of Senior Manager, although no rule in that
  behalf was placed on record. No case has been made out
  for interfering with the impugned judgments of the
  Cooperative Appellate Court as also the High Court.
  [Paras 19, 20] (1034-D, E, F]
F        CIVILAPPELLATE JURISDICTION: Civil Appeal No. 1728
    of 2008.
       From the Judgment and final Order dated 12/3/2007 of
  the High Court of Judicature at Bombay, Nagpur Bench, Nagpur
G in W.P. No. 3286/2006.
           I. Venkatnarayan, SatyajitA Desai, Amol N. Suryawanshi
    and An~gha S. Desai for the Appellant                               r
      R.S. Kurekar, Venkateswara RaoAnumolu, Sudhanshu S.
H Choudhari and Sunil Kumar Verma for the Respondents.
          .
    SURESH v. YEOTMAL DIST. CENTRAL CO-OP. BANK                1027
              LTD. & ANR. [S.B. SINHA, J.]
         The Judgment of the Court was delivered by                    A
{
         S.B. SINHA, J. 1. Leave granted.
         2. Application of a purported circular letter dated 6.08.1996
    issued by the Registrar of the Cooperative Societies, State of
    Maharashtra is in question in this appeal.                         B
              .
          3. Respondent No. 1 is a cooperative society registered
*   under the Maharashtra Co-operative Societies Act, 1960 (for
    short "the Act"). The Society framed rules prescribing terms and
    conditions of service of its employees. Service Rules framed
    by the respondent no. 1 Cooperative Society were approved          c
    by the Registrar.
        4. We are concerned with the post of Higher Grade:
    Manager; the qualification wherefor is laid down as under:

>
          "The candidate should be a postgraduate and should be D
•         graduate in Economics or Law also he should have
          experience in the field of Banking and Co-operative Sector.
          Preference will be given if he has passed G.D.C. & A
          exam or has obtained Diploma in Banking."
                                                                      E
          5. The controversy between the parties hereto arose in
    the following fact situation:
         Appellant was appointed in the post of a clerk on
    14.12.1974. He was confirmed in his service on or about
•   21.04.1994. Respondent No. 2, however, was appointed as F
;
    Agricultural Development Officer on 26.02.1979 as a direct
    recruit. He was brought on the Select List for the purpose of
    promotion to the post of Manager in 1994. The name of the
    appellant did not figure therein. A seniority list was published
    on 1.04.1995 wherein the name of the appellant figured at G
    SL No. 4; whereas the name of the respondent no. 2 figured at
    Sl.No.1.
\       6. Respondent No. 2 was promoted to the post of Senior
    Manager on or about 3.10.1998.
                                                                       H
    1028         SUPREME COURT REPORTS                  [2008] 3 S.C.R.


A         Questioning the said seniority list as also the promotion of
    the respondent no. 2, the appellant raised a dispute before the        \
    Cooperative Court, Amravati. Issues were framed having regard
    to the rival contentions of the parties.
       The following findings were recorded by the Cooperative
B Court in respect of Issue Nos. (5), (SA) and (6):
           "(5) Whether the disputant is entitled to
                declaration that the name of opponent No.
                2 is to be removed from the seniority list of
c               the Select Grade Officers, in compliance
                with the Service Rules.                       No
           (5A)Whether the disputant is entitled to
               declaration that promotion order issued on
               dt. 3.10.1998 of opponent No. 2 is liable to
D              be quashed?                                  Yes
           (6)   Whether the disputant is entitled to
                 promotion on the post of Manager from
                 deemed date?                          Yes"
E        As regards, Issue No. 6, the learned Cooperative Court
    opined:
           "48. As far as concern about the seniority list published by
           the opponent No. 1 Bank Exh.37 in which the name of the

F
           disputant is at serial No. 4, and it is already held that the       ..
           opponent No. 2 who stood at serial No. 1 is not eligible or
           qualified for the post of Manager. As far as about the              •
           persons who stood at Serial No. 2 and 3 is concern, at
           serial No. 2 one M.R. Kadam is there who is having the
           qualification of B.Com, H.D.C. and as per the service
G          Rules for the post of Manager the employee should be
           post graduate and having the graduation degree in
           Economics or in Law. Therefore, those persons are also
           not having the qualification for the post of Manager, and           r
           the next person is the disputant who is having the
H          qualification as per the service Rules who is M.A.
     SURESH v. YEOTMAL DIST. CENTRAL CO-OP. BANK              1029
               LTD. & ANR. [S.8. SINHA, J.]

          Economics, B.Com. LL.B. and G.D.C. & A., D.C.B. A
          Therefore, the disputant is entitled for the promotion on
          the post of Manager from the deemed date. Hence, I answer
          issue No. 6 in the affirmative."
            The Cooperative Court allowed the said application of
     the appellant by a judgment and order dated 16.08.2005 opining 8
     that the respondent No. 2 did not possess the requisite
     qualification.
          7. Respondent No. 1 preferred an appeal thereagainst
     before the Cooperative Appellate Court, which by reason of an   c
     order dated 21.06.2006 was allowed, stating:
          "15. Moreover, it is pertinent to note that the right of the
          opponent No. 2 to be in the select grade candidates has
          been maintained by the learned Trial Judge by recording
          negative finding on Issue No. 5 in his judgment. When the D
t'        Issue No. 5 is recorded in the negative by the Trial Judge
          indirectly he has accepted the right of the opponent No. 2
          to be in the select grade, who has already placed on Sr.
          No. 1 in the list published in the year 1997 and which
          remain undisturbed in the proceeding before the Industrial E
          Court filed by the Union long back earlier to the present
          dispute.
          ***                    ***                    ***

•         18. As per the Government Circular dated 29th February F
          1988 for the post of Manager, the requisite qualification is
          laid down Degree of recognized University in Economics/
          Commerce/ Chartered Accountant and Diploma in
          Cooperation and Accountancy/ Diploma, in Cooperative
          Business Management. If, the above mentioned G
          qualification as laid down in the Government Circular for
          the post of Manager is considered, I find it is rightly
          submitted by the Advocate Shri Parakhi that opponent
          No. 2 is having Master's degree with subject of Economics
          i.e. M.Sc (Agril) having Economics subject and he was H
    1030       SUPREME COURT REPORTS                    [2008] 3 S.C.R.


A          also having Diploma in cooperative Banking. As per the
           said Circular dated 29th February, 1988, the educational        \
           qualification as are laid down with several Degrees, if one
           of those is possessed, the person can be posted to the
           post of Manager. Here, the opponent No. 2 is having
B          Degree/ Master's Degree i.e. M.Sc. (Agri.) having
           Economics subject therein and in addition to it he is also
           having independent educational qualification as Diploma
           in Cooperative Banking. His appointment itself is in select
           grade. So, it cannot be said that he does not possess a
c          qualification to bring him within the select list candidate
           and also to be appointed to the post of Manager. The
           another letter dated 6.8.1996 issued by the Commissioner
           for Cooperation, Pune also is referred by Advocate Parakhi
           from record (Record Page No. 395). As per the said
           Circular, a person in the post of officer is required to
D                                                                              •
           possess any one of the qualification as laid down in                +
           Paragraph-2 thereto amongst which D.C.B. is one of the
           educational qualification and it is possessed by the
           opponent No. 2. So though the disputant is having Law
           Degree and other several Diploma's in addition to his
E          Commerce Degree and M.A. Degree, it cannot be said
           that the educational qualification possessed by the
           opponent No. 2 is not adequate which is required for the
           post of Manager. Having excess educational Diploma and
           Degrees to particular person or in our case to the disputant,
F          cannot debar the opponent No. 2 from the category of the
           select list candidates and cannot debar the opponent No.            +

           2 on the post of Manager. As such the Notification issued
           by the Commissioner under Section 74 of the M.C.S. Act,
           1960 has to be accepted. In view of the said notification,
G          I hold that the opponent No. 2 is having requisite
           educational qualification for the post of Manager. So,
           submission made by the disputant cannot be accepted
           that he is not having educational qualification for the post
           of Manager so, I hold that the learned Trial Judge has
H          erroneously held that the opponent No. 2 is not eligible for
    SURESH v. YEOTMAL DIST. CENTRAL CO-OP. BANK.               1031
               LTD. & ANR. [S.B. SINHA, J.]

         promotion to the post of Manager as per the service rules     A
         of the bank."
         8. A writ petition preferred thereagainst by the appellant
    has been dismissed by reason of the impugned judgment. ·

         9. At the outset, we may notice that on or about 6.08.1996,   B
    the Registrar Cooperative Societies issued a circular letter
    purported to be in exercise of its power conferred upon it under
    Section 74(1) of the Act, inter alia stating:

         "1. For technical post & above-mentioned post the
         prescribed qualification will not be applicable. For the      C
         technical post the concerned Societies can make changes
         in their service rules regarding the qualifications of the
         appointment & promotion of the Officers.
         ***                     ***                     ***
                                                                       D
         7. As there are changes in the basic Service Rules, the
         concern Societies shall take action as per provisions under
         the Bombay Industrial Relation Act to give notice regarding
         the said change."
         Indisputably such a notice was issued only on 24.09.2001.     E
          10. Mr. I. Venkatnarayan, learned senior counsel appearing
    on behalf of the appellant, submitted that the promotion of the
    respondent no. 2 to the post of Manager was illegal as the post
    of Agricultural Development Officer was not the feeder post F
+   therefor. In any view of the matter, it was urged, having regard to
    the provisions contained in Sub-section (1) of Section 42 of the
    Bombay Industrial Relations Act, 1946, any change in the
    service conditions was required to be preceded by a proper
    notice as was advised by the Registrar of Cooperative Societies G
    in his order dated 6.08.1996 and as such a notice was issued
    only on 24.09.2001, the promotion of the respondent no. 2 must
\   be held to be illegal.
         11. The learned counsel appearing on behalf of the
    respondents, however, would support the impugned judgment.         H
    1032       SUPREME COURT REPORTS                  [2008] 3 S.C.R.


A       12. Respondent No. 1 is a cooperative society. It has its        +..
  own rules and bye-laws. The service rules framed by the
  respondent no. 1 stand approved by the Regis.trar. We have
  noticed hereinbefore that in the seniority list published in the
  year 1995, the position of the appellant was at SI. No. 4. Those
B candidates whose names appeared at SI. Nos. 2 and 3 were
  not impleaded as parties in the said proceeding. In their
  absence, the dispute could not have been effectively adjudicated
  upon.
     This Court in Rashmi Mishra v. M.P Public Service
C Commission and others [(2006) 12 SCC 724], observed:
           "16. In Prabodh Verma this Court held: (SCC pp.       273-
           74, para 28)
         "The first defect was that of non-joinder of necessary
D        parties. The only respondents to the Sangh's petition were
         the Statei of Uttar Pradesh and its officers concerned. Those
         who were vitally concerned, namely, the reserve pool
         teachers, were not made parties - not even by joining
         some of them in a representative capacity, considering
E        that their number was too large for all of them to be joined
         individually as respondents. The matter, therefore, came
         to be decided in their absence. A High Court ought not to
         decide a writ petition under Article 226 of the Constitution
         without the persons who would be vitally affected by its
F      · judgment being before it as respondents or at least by
         some of them being before it as respondents in a
         representative capacity if their number is too large, and,
                                                                         •
         therefore, the Allahabad High Court ought not to have
         proceeded to hear and dispose of the Sang h's writ petition
         without insisting upon the reserve pool teachers being
G
         made respondents to that writ petition, or at least some of
         them being made respondents in a representative
         capacity, and had the petitioners refused to do so, ought       f
                                                                             .
         to have dismissed that petition for non-joinder of
         necessary parties."
H
         SURESH v. YEOTMAL DIST. CENTRAL C0-0P. BANK                     1033
                   LTD. &,ANR. [S.B. SINHA, J.]

 .r           (See also All India SC & ST Employees' Assn. v. A. Arthur A
              Jeen and lndu Shekhar Singh v. State of U.P.)"
              The dispute raised by the appellant before.the Cooperative
         Appellate Court, therefore, was not maintainable. It was so held
         also by the High Court.
                                                                                 B
               13. On that ground alone, this appeal must fail.
•i.:
              14. However, as the parties have addressed us at some
         length on the merit of the matter, we may as well deal with the
         contentions raised at the bar.
                                                                                 c
               15. There is nothing on record to show that the provisions
         of the Bombay Industrial Relations Act, 1946 would be attracted
         in the matter of laying down qualification for the post of Manager
         of a Bank. If the provisions of the said Act are not applicable,
         the same ipso facto cannot apply only because the Registrar of
 •
 1-      the Cooperative Societies thought so.
                                                                            D

               16. It is one thing to say that the respondent no. 2 did not
         possess essential qualification for holding the post but it is
         another thing to say that the Registrar had exercised its
         jurisdiction under Section 74 of the Act.                          E
              Section 74 (1) of the Act reads as u~der:
              "74. Qualification and appointment of Manager, Secretary
              and other officers of societies and Chief Officer and
"             Financial Officer for certain societies.                           F
              (1) The qualifications for appointment of the Chief
              Executive Officer, Finance Officer, Manager, Secretary,
              Accountant or any other officer of a society or a class of
              societies and his emoluments and perquisities shall be
              such as may be determined by the Registrar, from time to G
              time."
 '
     '         17. In terms of the said provision, indisputably, the Registrar
         could exercise its jurisdiction for laying down the qualification
         inter alia for the post of manager. When such qualifications are
                                                                                 H
    1034      SUPREME COURT REPORTS                    [2008] 3 S.C.R.


A laid down by the Registrar, he exercises a statutory power. While
  exercising such a statutory power, requirement to comply with
                                                                          i   .
  the provisions of another statute, viz., issuance of notice of
  change in terms of the Bombay Industrial Relations Act, 1946
  was not necessary. They were meant to be done for the industrial
B workers and not for those who exercise supervisory jurisdiction
  in a cooperative society.
        18. We have noticed hereinbefore that the Registrar of
  Cooperative Societies in its order dated 6.08.1996 merely said
  that for technical posts, the prescribed qualification would not
C be applicable and the concerned societies can make changes
  in their service rules regarding qualification of appointment and
  promotion. Only when changes in the service rules were required
  to be made, the respective societies were not given a free hand
  to do so. It is only from that angle notice of change was, if at all,
D required to be issued.
        19. Respondent No. 2 fulfills the prescribed educational
  qualification. It was found by the appellate court. It is not the
  case of the appellant that the post of Manager could be filled up
  only by way of promotion. Such a post could be filled up also by
E direct recruitment. For the said purpose, we may assume that
  the post of Agricultural Development Officer is not the feeder
  post for promotion to the post of Senior Manager, although no
  rule in that behalf has been placed before us.
F         20. We, therefore, are of the opinion that no case has been
    made out for interfering with the impugned judgments of the
    Cooperative Appellate Court as also the High Court. The appeal
    is dismissed accordingly. No costs.
    D.G.                                          Appeal dismissed.
G

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