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JAGDISH PRASAD PANDEY versus REGIONAL ADMINISTRATIVE COMMITTEE & OTHERS

High Court of Judicature at Allahabad

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Jagdish Prasad Pandey v. Regional Administrative Committee & Others - WRIT - A No. 19064 of 2000 [2005] RD-AH 1755 (26 July 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO.29

Civil Misc. Writ Petition No.19064 of 2000

Jagdish Prasad Pandey -------       Petitioner

Versus

Regional Administrative Committee

Basti and others -------  Respondents

AND

Civil Misc. Writ Petition No.4471 of 2001

Dharam Pal Singh -------       Petitioner

Versus

Member Secretary, District

Administrative Committee,

Hamirpur -------  Respondent

AND

Civil Misc. Writ Petition No.15075 of 2000

Ram Saran Dubey -------       Petitioner

Versus

State of U.P. & Others -------  Respondents

AND

Civil Misc. Writ Petition No.38320  of  1999

Devendra Prasad Maurya -------       Petitioner

Versus

Regional Administrative Committee

Azamgarh and Others -------  Respondents

AND

Civil Misc. Writ Petition No.28644  of 2000

Daya Ram Yadav -------       Petitioner

Versus

District Assistant Registrar,

Cooperative Societies, U.P.

Agra and Others -------  Respondents

AND

Civil Misc. Writ Petition No.10605  of 2000

Daya Ram Yadav -------       Petitioner

Versus

The C.O.D. Cooperative Society

Limited., Agra and Others -------  Respondents

AND

Civil Misc. Writ Petition No.40804  of 2001

Ram Bahadur Singh and Others -------       Petitioners

Versus

Member Secretary, District

Administrative Committee,

Ballia and Others -------    Respondents

AND

Civil Misc. Writ Petition No.35661  of 2001

Ram Kawal Tripathi -------       Petitioner

Versus

Member Secretary, Gorakhpur,

and Others -------  Respondents

AND

Civil Misc. Writ Petition No.40933  of 2001

Rajeshwari Prasad Mishra -------       Petitioner

Versus

Assistant Registrar, U.P.Co-operative

Society, Basti and Others -------  Respondents

AND

Civil Misc. Writ Petition No.35528  of 2001

Anil Kumar Srivastava -------       Petitioner

Versus

Member Secretary, District

Administrative Committee,Mahoba  -------    Respondent

AND

Civil Misc. Writ Petition No.50083  of 2000

Udal Singh -------       Petitioner

Versus

Member Secretary, District

Administrative Committee,

Etawh and Others -------  Respondents

AND

Civil Misc. Writ Petition No.12684  of 2001

Prem Swaroop Srivastava -------       Petitioner

Versus

Member Secretary, District

Administrative Committee,

Gorakhpur and Others -------   Respondents

AND

Civil Misc. Writ Petition No.12786  of 2001

Chheda Lal -------       Petitioner

Versus

Member Secretary, District

Administrative Committee,

Bareilly and Others -------  Respondents

Hon. V.M. Sahai, J.

Hon. Sabhajeet Yadav, J.

We have heard Shri Triloki Nath, Shri S.K. Yadav, Shri H.R. Mishra, Shri Pankaj Kumar Srivastava for the petitioners, Shri Shiv Nath Singh, learned Additional Chief Standing Counsel, Shri K.N. Mishra, Shri O.P. Singh, Shri Hemant Kumar and learned counsel for the respondents.

Learned counsel for the parties have stated that the petitioner, who is working as a Secretary of primary level Co-operative Society is class-III employee and service matter of class-III employees are cognizable by single judge bench and not by the division bench.

We have called Shri Harish Srivastava, Section Officer, Stamp Reporting Section, who has placed the order passed by Hon'ble R.B.Mehrotra, J on 20.5.1993 on the basis of which an order has been passed by Hon'ble Acting Chief Justice on 4.8.1993 on the administrative side.  The order of the court dated 20.5.1993 alongwith the order dated 4.8.1993 is extracted below :-

: Dated :  May 20, 1993

Registrar

In exercise of powers under proviso (a) to Rule-2 of Chapter-V of the Rules of the Court, Volume-1, the Hon'ble Chief Justice, vide his order dated 20.10.1992 in modification of his earlier order, directed that the writ petitions relating to the services of-

(i) teachers upto Intermediate College,

(ii) employees of class-III and IV including those of education institutions.

Shall also be heard and disposed of by the Hon'ble Judge sitting singly and all other writ petitions relating to services shall be heard and disposed of by the Bench of two Hon'ble Judges.

It has been brought to my notice in several matters that writ petitions filed by the Secretary of the Cooperative Societies are being classified to be cognizable  by Single Judge.  Under Section-2 ''o' of the U.P. Cooperative Societies Act, the Secretary of a Cooperative Society  is an officer of the Cooperative Society and officers of the Cooperative Societies cannot be designated as class-III employee.  The nature of duty has to determine the classification of the officer.  The Secretary of the Cooperative Society exercises executive powers under Cooperative Societies Act and various Rules and Bye-laws framed under the Act.  Class-III employees are doing work of clerical nature and do not exercise executive powers.

In view of the aforesaid definition of the Secretary of a Cooperative Society under Section-2 ''o' of the Cooperative Societies Act, the Secretary cannot be classified as class-III employee and the writ petitions filed on behalf of the Secretary of the Cooperative Societies should be classified to be cognizable  by Division Bench.

Stamp Reporter should be directed to take note of it, for future guidance.  Hon'ble Acting Chief Justice may be apprised of this letter.

S.D./Justice R.B.Mehrotra

Hon'ble A.C.J.

Submitted for kind perusal & order.

S.D./-Registrar.

21.05.93

I agree with the opinion of the Hon. R.B.Mehrotra, J.  Let directions be issued to the Stamp Reporter that petitions of said nature are to be reported as cognizable  by the D.B.

s.d./-Hon. A.C.J.

04.08.93"

The section officer informs that thereafter all the matters of Secretary relating to Co-operative Society are reported to be a division bench matter.  

We have considered the various provisions of the Act.

Section 2(a-4) defines Central Society as follows :-

"2(a-4) "apex society", "apex level society" or "State level co-operative society" means -

(1) U.P. State Co-operative Land Development Bank Ltd., Lucknow;

(2) U.P. Co-operative Bank Ltd., Lucknow;

(3) U.P. Co-operative Federation Ltd., Lucknow;

(4) Pradeshik Co-operative Dairy Federation Ltd., Lucknow;

(5) U.P. Co-operative Union Ltd., Lucknow;

(6) U.P. Upbhokta Sahkari Sangh Ltd., Lucknow;

(7) U.P. Co-operative Sugar Factories Federation Ltd.,

(8) U.P. Cane Unions Federation Ltd., Lucknow;

(9) U.P. Industrial Co-operative Association Ltd., Kanpur; or

(10) any other central co-operative society fulfilling the following conditions:-"

Section 2(q-1) defines Primary Society as follows :-

"2(q-1) "primary society", means a co-operative society ordinary membership whereof is not open to any other co-operative society :

provided that-

(i) a co-operative marketing society, the area of operation whereof is only a part of a district or part of more than one district shall be deemed to be a primary society whether or not any other co-operative society is its ordinary member;

(ii) a primary co-operative society any share whereof has been purchased under Chapter VI, by a central or apex society shall continue to be a primary society notwithstanding the purchase of such shares;

(iii) a co-operative society, the area of operative whereof is only a part of a district and the primary object whereof is to arrange for the storage and distribution of seeds, fertilizers, pesticides, agricultural appliances or consumers goods to its ordinary members and the membership whereof includes any other co-operative society as its ordinary member, shall be deemed to be primary society notwithstanding the membership of other co-operative society in it;

Section 31(A) of the Act provides as under :-

"31-A. Appointment of Managing Director instead of Secretary for Apex Societies- (1) For every apex society there shall be, instead of a Secretary, a Managing Director who shall be a government servant not below the rank of a Class I Officer, nominated by the State Government, and his services shall be deemed to be on deputation with the society and his salary and allowances, as determined by the State Government, shall be paid from the funds of the society..

(2)   The Managing Director shall be ex officio member of the Committee of Management.

(3) All references in the Act to Secretary shall in relation to an apex society be construed, wherever practicable, as references to the Managing Director.

(4) The Managing Director shall be the Chief Executive Officer of the apex society and subject to such control of the Committee of Management and the Chairman, as may be provided in the rules and the bye-laws of the society, he shall have the following duties and responsibilities, namely :-

(i) to have general control over the administration of the society ;

(ii) to convene meetings of the Committee of Management and the general body;

(iii) to receive all moneys and securities on behalf of the society and to make arrangements for the proper maintenance and custody of cash balances and other properties of the society;

(iv) to endorse and transfer promissory notes, Government and other securities and to endorse, sign and negotiate cheques and other negotiable instruments on behalf of the society;

(v) to be responsible for the general conduct, supervision and management of the day-to-day business and affairs of the society;

(vi) to sign all deposit receipts and operate the accounts of the society with banks;

(vii) to sign all bonds and agreements in favour of the society;

(viii) to create, subject to provisions contained in the budget of the society, Class III and Class IV  posts for a period of 3 months and to make, as appointing authority, recruitment thereto through the Board as provided in the regulations framed by the State Government in exercise of the powers under sub-section (2) of section 122;

(ix) to determine the powers, duties and responsibilities of the employees of the society;

(x) to institute, conduct, defend, compound or abandon any suit or other legal proceeding   by or against the society or otherwise concerning the affairs of the society and also to compound and allow time for payment or satisfaction of any claims or demand by or against the society;

(xi) subject to the regulations, if any, which may be framed by the Committee of Management to enter into negotiations and sanction contracts up to the value of Rs. 5 lakhs each during the construction phase and upto Rs.2 ½ lakhs each thereafter and to do all such acts, deeds and thins in the name of and on behalf of the society in relation to any of the matters aforesaid for the purposes of the society;

(xii) to delegate all or any of the powers, authorities and discretions vested in him to an employee or employees of any society, subject to the ultimate control and authority being retained by him."

In Primary Society all members are individual members of the society whereas in Central Society there are no individual members and its members represented through their delegates elected by primary society. The area of operation of primary society is confined the area of operation as defined in the object of society. The area of operation of central society is entire district and the area of operation of the apex society is entire State of U.P.  

From section 31-A of the Act it is clear that the Secretaries are called Managing Director of apex level societies are class-I officers and their matters remain cognizable by division bench.

The central co-operative society includes various district cooperative banks, therefore, the Secretaries of the central co-operative societies are class-II employees and their matters are cognizable by division bench and their service conditions are governed by different set of rules.  

So far as the primary societies are concerned their services are governed by service rules and regulations. The reasons assigned by learned single judge in its order dated 20.5.1993 is that under section 2 (o) of the U.P. Co-operative Society Act the secretary of cooperative society has been defined to be an officer of cooperative society and they exercise executive powers.  Therefore, the learned single judge was of the opinion that since the nature of the duties are to determine the classification of the officer they cannot be treated to be clerical in nature, therefore, the writ petition filed on behalf of the secretary of co-operative society should be classified and be cognizable by division bench.  It is necessary to extract section 2 (o) of the Act as under :-

"(o)    "Officer of  a co-operative society" means the president, vice-president, chairman, vice-chairman, secretary, member of committee of management, treasurer liquidator, administrator or any other persons employed by co-operative society whether with or without remuneration to carry on the business of the society or to supervise its affairs;"

A bare reading of the aforesaid definition makes it clear that apart from secretary even the members of the committee of management or any other persons employed by cooperative society whether with or without remuneration to carry on the business of the society or to supervise its affairs is an officers of the cooperative society.  Therefore, the designation or calling the secretary or an officer would not be a relevant factor to determine whether he is a class-II or class-III employee or the status of the employee.  

Learned counsel for the parties have placed before the court the service rules that provides also the salary of a secretary of a primary level society.  The service of secretary of primary level cooperative society are governed by U.P. Primary Agricultural Cooperative Credit Societies Centralized Service Rules, 1976, as amended by 11th Amendment Rules, 2003 which came into force on 4.6.2003.

There are two pay scales provided by the rules for the secretaries of primary level society.  One general category secretary in the pay scale of Rs.975-25-1150-E.B.30-1660 and second selection grate pay scale of Rs.1200-30-1560-E.B.-40-2040.  

Since the secretaries of primary level cooperative societies are drawing the pay scale, which is lower than the pay scale of class-III employees of the State of Uttar Pradesh or local bodies, therefore, the secretaries of primary level society could not be treated as class-II employee merely on the ground that they have been defined as officer of society in the definition clause or they exercise executive powers.

To take an example : Gram Sevak has been re-designated as Gram Vikas Adhikari. Panchayat Secretary has been redesignated as Gram Panchayat Adhikari though they have been designated as officer but in fact they are village level workers.  Even under Police Act a constable is referred as an officer but he is a class-III employee.

We have been informed by learned counsel for the petitioners that in Lucknow Bench of this court all matters of Secretaries with regard to primary level cooperative societies are cognizable by single judge.

We directed Shri K.P. Singh, Joint Registrar (listing) to obtain the information from Lucknow Bench by fax. He has placed the information before us before the order was signed that all matters of Secretaries of primary level cooperative societies have been held to be cognizable by single judge in writ petition no.526/SB/2000 by order dated 24.4.2000 passed by Hon. Ashish N. Trivedi, J and Hon. P.C. Verma, J.  The order dated 24.4.2000 is extracted below :-

"Petitioner is a Cadre Secretary and Member of U.P. Primary Agricultural Cooperative Credit Societies.  Neither the post of Secretary is of class-II rank nor he is getting pay-scale of class II post.

Accordingly, put up this case tomorrow as fresh before the Hon'ble Single Judge dealing with service matters.

The Registry is directed to register case, of Secretary, U.P. Primary Agricultural Cooperative Societies as Single Judge matters.

S.D./Justice Ashish N. Trivedi

Justice P.C. Verma"

For the aforesaid reasons we are of the opinion that the interpretation of learned single judge of section 2(o) of the Act, with profound respect, is not correct.  Therefore, we hold that the secretary of primary level cooperative society is a class-III employee and their matter is cognizable by a single judge and not by a division bench. All matter of cadre of secretary of primary level society would be cognizable by a single judge.  This order will apply even to the pending matters.

Matters of secretaries of central level society and apex level society would remain cognizable by division bench.

The stamp reporter shall also put a notice that the counsels should mention clearly in the writ petition to be filed before the High Court as to whether the writ petition is being filed on behalf of the secretary of primary level society; central society or apex society.  

Office is directed to place this order before Hon'ble the Chief Justice for appropriate orders.

Dated: 26.07.2005

8/vs


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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