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Prayag Dutt Yadav v. Dy. Registrar Cooperative Societies & Others - WRIT - A No. 38913 of 2002 [2007] RD-AH 1626 (1 February 2007)


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Court No. 11

Civil Misc. Writ Petition No. 38913 of 2002

Prayag Dutt Yadav


Dy. Registrar Cooperative Societies U.P.,

Gorakhpur & Others.

Hon. Pankaj Mithal, J.

This Court on 6.12.2006 has granted three weeks' and no more time to the Standing Counsel to file counter affidavit, however till date no counter affidavit has been filed.  List has been revised and on account of the earlier stop order it is not desirable to grant any further time to the Standing Counsel to file counter affidavit. No application has been moved seeking further time, therefore, the petition has been heard on merits.

Heard learned counsel for the petitioner and the Standing Counsel for the respondents.

The petitioner was appointed as accountant/salesman some time in the year 1991 in Sadhan Sahkari Samiti Ltd., Nauwa Auwal Block Khrabar, District Gorakhpur, a registered cooperative society under the Cooperative Societies Act, 1965. The Secretary of the aforesaid society was transferred and no new appointment was made. Therefore, the petitioner was allowed as a stop gap arrangement to look after the work of the secretary of the society until further orders are passed or arrangements are made in that regard.

It appears on the basis of circulars dated 17.11.1993 and 10.12.1993 the petitioner was directed not to function as Secretary. Accordingly, the petitioner filed a writ petition in the High Court challenging the above circulars wherein an interim order dated 2.2.1994 was passed permitting the petitioner to work and for payment of his salary. On the strength of the above interim  order the petitioner continued to function as Secretary on purely temporary basis.

The Secretary, District Administrative Committee,  vide order dated 12.10.2000 on the basis of the resolution dated 28.7.2000 ordered to transfer one Deep Narain Singh, Cadre Secretary to take over the charge as Secretary of the above society on transfer basis. Accordingly petitioner was directed to hand over charge of the post of  Secretary to him.  In view of the above resolution of the District Administrative Committee, Gorakhpur Assistant Development Officer issued an order dated 7.12.2000 directing the petitioner to handover the charge of the Secretary to the aforesaid Deep Narain Singh, Cadre Secretary, who was transferred as Secretary to the society. The petitioner challenged the above orders by filing a Writ Petition No. 35776 of 2001 which was disposed of on 7.11.2001 with the direction to consider and decide the representation of the petitioner in that regard preferably within a period of six weeks. Pursuant thereto the petitioner's representation was rejected vide order dated 7.1.2002 holding that the post  of  Secretary of the society is within the purview of Uttar Pradesh Prarambhik Krishi Sahkari Rin Samiti Kendriya Sewa Niyamavali, 1999 (VII Amendment) and, therefore, petitioner is not entitled to be appointed or to work as Secretary in-charge of the society.

In the above background, the petitioner has filed the present writ petition challenging the order dated 12.10.2000 passed by District Administrative Committee, Gorakhpur posting Deep Narain Singh as Secretary of the society and directing the petitioner to handover the charge to him. The petitioner has further prayed that he may be paid arrears of salary from 12.10.200 to 2.8.2002.

On the face of the record this is the second writ petition by the petitioner challenging the order dated 12.10.2000. The same very order was challenged by him in the earlier Writ Petition No. 35776 of 2001 which was disposed of by this Court vide judgment and order dated 7.11.2001 with the direction to decide the representation of the petitioner. The representation has been decided on 7.1.2002. The order deciding the representation has not been challenged. Therefore, the petitioner cannot maintain successive writ petition or the second writ petition challenging the same very order which was unsuccessfully challenged by him in the earlier writ petition. In State of U.P. & Others Vs. Lab Chandra, AIR 1994 SC 754 the Apex Court has ruled that as a solitary rule of judicial practice and procedure  second writ petition for the same cause of action is not entertainable in exercise of discretionary power under Article 226 of the Constitution of India. Even if the earlier writ petition was dismissed by the Court in limine, be it on the ground of laches or on the ground of non exhaustation of the alternative remedy. Accordingly, this second writ petition filed by the petitioner is not maintainable. More particularly when the order rejecting the representation has not been assailed and challenged.

The contention of the petitioner that he had been discharging the functions of the Secretary of the society since 1992 and, therefore, he cannot be stopped from functioning as officiating Secretary on the said post till a regular Secretary is appointed in the society, is totally misplaced and misconceived. It is not disputed that the petitioner was never appointed as the Secretary of the society by following the procedure prescribed for appointment but was allowed to function only as a stop gap arrangement. The petitioner as such had not acquired any right or lien on the post of Secretary. The said stop gap  arrangement  was till the making of the further arrangement. Now the District Administrative Committee has posted a regular Secretary vide resolution dated 28.7.2000, therefore, no illegality has been committed by the respondents in directing the petitioner to handover the charge of the Secretary to Sri Deep Narain Singh, who has been transferred to the society as the Secretary. No right of the petitioner has been infringed.

Generally, the post of the Secretary of a society is an honorary post. The petitioner has not shown anything to establish  that he was drawing extra salary or emoluments while functioning as the officiating Secretary. Therefore, by necessary implication the petitioner was only holding the charge on the post of Secretary in an honorary capacity and was only drawing salary of the post of accountant/salesman. Therefore, the removal of the petitioner as officiating Secretary causes no prejudice to him. It does not affect the petitioner's salary or emoluments. Thus, he has no grievance or cause of action to maintain the petition.

The High Court of Allahabad in an unreported judgment dated 17.9.1993 passed in writ petition No. 11607 of 1993 Janhagir Raj William Singh Vs. Asha Pusp Vihar Sahkari Avas Samiti Ltd. has held that a person appointed in honorary capacity has no right to file a writ petition as he is not a person having any grievance if his honorary services are terminated. The above view has been followed by the three Division Benches of the Court vide judgment and order dated 19.2.2004 passed in writ petition 6648 of 2004 Gurvinder Singh Vs. State of U.P. & others, judgment and order dated 16.8.2004 passed in writ petition 32811 of 2004 Dinesh Chandra Vs. State of U.P. & others and judgment and order dated 18.8.2004 passed in the writ petition 17156 of 2004 O.P. Verma Vs. State of U.P. &  others.

In view of the above, I am of the opinion that the petitioner has failed  to establish his legal right over the post of Secretary of the Society, and any illegality in the impugned order. Moreover, no prejudice has also been caused to the petitioner. Therefore, the writ petition is misconceived and lacks merit and is accordingly, dismissed.

Dt. 1.2.2007



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