R.R.K.Trivedi - (1.) IN this petition, counter affidavit and rejoinder affidavit have been exchanged, between petitioner and contesting respondent no. 1. INspite of time granted, no counter affidavit has been filed on behalf of respondent nos. 2 & 3. The learned counsel for the parties have agreed that this petition may be disposed of finally at this stage.
(2.) THE facts giving rise to this writ petition are that the petitioner was appointed as Clerk-cum-Cashier in Zila Sahkari Bank Ltd., Azamgarh (hereinafter referred to as the Bank) on 18-7-83. THE petitioner's case is that he continued to work on the post upto 16-2-85 when the services were terminated by impugned order dated 1-2-85, Annexure-3 to the writ petition. THE order was in violation of section 6-N of U.P. Industrial Dispute Act, 1947 (hereinafter referred to as the Act) and Regulations 29 of U.P. Cooperative Societies of Employees Service Regulations 1975 (hereinafter referred to as the Regulations). No approval was obtained from the Registrar before passing the impugned order dated 1-2-85. This order was challenged by petitioner by filing a writ petition No. 5496 of 1985 in this Court which was decided on 19-2-92 by the learned Single Judge and petitioner was directed to make a representation before the Registrar of Cooperative Society within a period of 4 weeks and the Registrar was directed to decide the same in accordance with law within a period of 3 months from the date the representation was made. THE order of the High Court dated 19-2-92 has been filed as Annexure-4 to this writ petition. Petitioner filed the representation, annexure-5 to this writ petition in pursuance of the above said order before the Registrar, which has been rejected by Dy. Registrar of Cooperative .Society, U.P. Gorakhpur by his order dated 19-11-92 Aggrieved by the aforesaid order, petitioner has again approached this Court under article 226 of the Constitution of India. The learned counsel for the petitioner has questioned the legality of the order on the ground that the petitioner has served in the Bank for more than an year and he could not be terminated from the services without complying with the conditions mentioned under section 6-N of the Act and Regulations 29 Of the Regulations. Learned Counsel for the petitioner submitted that the impugned order dated 1-2-85 is illegal and arbitrary and in violation of the aforesaid provisions. The second submission of the earned counsel for the petitioner is that 8 persons mentioned in para 10 of the writ petition were employed by the Bank after appointment of the petitioner they were junior to petitioner and they have been retained in service, where as the petitioner has been illegally chosen for being ousted from his post in gross violation of the Regulation 29 and Articles 14 & 16 of the Constitution of India. The learned, counsel for petitioner has submitted that the respondent no. 3 has illegally assumed that the appointment was made under pressure under the recommendation of a Minister and it was illegal. The learned counsel for petitioner has submitted that in democratic set-up such recommendations for securing appointments are very common and usual. However, authorities arc expected to act in accordance with law. Nothing has been shown that the Minister after making his recommendation to accommodate petitioner on some job made any extra effort to pressurise the Bank authorities to implement his wishes. The petitioner was continued in the job from 18-7-83 to 16-2-85. The respondents cannot be permitted now to take shelter that the appointment of the petitioner made under the recommendation of the Minister was illegal. The learned counsel for the petitioner has also criticised the approach of the respondent no. 3 in rejecting the representation of the petitioner on the basis that industrial law ?will not apply and the Registrar cannot pass any order which should go against the interest of the Bank. The learned counsel for the respondent no. 1 on the other hand justified the impugned order dated 1-2 85 and termination of the petitioner and submitted that the petitioners appointment was under pressure and it can not be said to be an legal appointment and no formalities were required to be complied with as contemplated under Section 6 N and Regulations 29 mentioned above. The learned counsel for the respondents has further submitted, that no person junior to petitioner was working in the Bank at the time the impugned order was passed, there is no violation of Regulation 29, and petitioner was not discriminated in any manner.
(3.) I have considered the rival submissions made by learned counsel for the parties. In my opinion, the order passed by respondent no. 3 rejecting the representation of the petitioner is patently erroneous in law and cannot be sustained. Much discussion has been made about the recommendation of the State Cooperative Minister of U. P. for appointing petitioner in the Bank. In my opinion, submission of the learned counsel for the petitioner is correct. In democratic set-up such type of recommendation by the representatives of the people is a common feature. However, in case person is given appointment and continued for long time, the shelter cannot be taken to such recommendation for holding that the appointment was illegal. Recommendation does not mean that the authorities for making such appointment should act against the provisions of the law or they may commit any illegality. There is nothing on record (except bare recommendation) that the concerned Minister put in any extra effort to create any atmosphere under which the authorities were compelled to make appointment. In absence of any such material that the authorities were compelled not to act in accordance with law, it cannot be assumed on the basis of mere recommendation that the appointment was illegal or void on account of pressure. The approach of respondent no. 3 is not correct. The petitioner was appointed by the competent authority and he was allowed to continue on the post for more than an year except for the artificial break after every 3 months. The service was almost continuous and petitioner's service could not be terminated without complying with conditions mentioned under section 6-N of the Act read with Regulation 29 of Regulations. In para 10 of the writ petition, petitioned has made a specific averments that 8 persons named therein were employed after petitioner, and they were junior to him, and they are still working. It has been submitted that under Regulation 29 (II) the respondent no. 1 was bound to follow the policy to retrench, the junior most employee of that grade first. The petitioner has stated that all the 8 persons mentioned in para 10 are still working who were all appointed after the petitioner. Para 10 of the writ petition has been replied in paragraph 24 of the counter affidavit. It would be appropriate to reproduce paragraph 24 of the counter affidavit at this place : "That in reply to the contents of paragraph no. 10 of the writ petition. It is stated that since there were vacancies in the Bank and work was suffering hence in the interest of Bank Committee have appointed the eight employees whose names have been mentioned in this paragraph." From the perusal of the paragraph 24 of the counter affidavit, it is clear that the allegations of the petitioner made in paragraph 10 of the writ petition are incontroverted. I have perused the order of respondent no. 2. From the order also, it appears that except one employee all other employees mentioned in para 10 of the writ petition are working. However, respondent no. 3 has said that these employees were appointed by way of promotion and approval of the Uttar Pradesh Cooperative Institutional Service Board, while the petitioner was appointed directly. However, respondent no. 3 has failed to consider the provisions contained in' Regulation 29 of Regulations where an employee can be retrenched only in case the business of the Society either shrunk or the concerned post or the posts are to be reduced to effect economy. If the respondent was in a position to empoly other persons in the same grade, it could not be said that the conditions of Regulation 29 were applicable to retrench the petitioner from service. Further it also violates clause (2) that juniors have been retained while the senior has been terminated from the service. The Regulations 29 also requires that while passing order of termination, compensation contemplated under the Act must be paid, which has also not been done as clear from the impugned order dated 1-2-85.;