# Azizur Rahaman v. District Cooperative Bank Ltd. & Ors

- **Citation:** (2024) 9 ILRA 540
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-04
- **Case number:** Writ A No. 13596 of 2024
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/azizur-rahaman-v-district-cooperative-bank-ltd-ors-54677
- **Pages:** 4

## Headnote

Law
-
Constitution
of
India,1950
-
Article
226
-
Writ
-
Alternative remedy - UP Cooperative
Societies Act, 1965 - Section 128 -
Dismissal of employee - Residuary power
of Registrar against dismissal order -
Exercise thereof - Held, the Registrar has
been vested with all the residuary powers
to deal with the resolutions adopted by
the Committee of Management being of
whatever nature and has power to annul
such resolution - High Court upheld the
preliminary
objection
regarding
alternative remedy leaving it open to the
petitioner to avail it. (Para 5, 7 and 9)

Writ disposed of. (E-1)

List of Cases cited:

## Text

540 INDIAN LAW REPORTS ALLAHABAD SERIES

20. Reliance placed by respondent's
counsel upon the decision rendered by
coordinate Bench in case of Mayashankar
vs. State of U.P. and 4 others, Writ-A
No.5106 of 2023, decided on 13.08.2024
does not help his cause. The Court found
that once the Act of 1982 was repealed, the
Rules of 1998 framed thereunder also stood
repealed.

21. It seems that provisions of Section
31(2) was not brought to the notice of Court,
which is the saving clause. Only Section 31(1)
of Act of 2023 was placed before the Court,
which has been considered in para 23 of the
said judgment. Sub-section (2) of Section 31
clearly saves anything done or any action
taken under the Act referred to in sub-section
(1) shall be deemed to have been done or taken
under this Act i.e. Act of 2023. Sub-section (2)
starts with a non obstante clause. Meaning that
it will prevail over the repealed provision as
provided under sub-section (1) of Section 31.

22. Action taken or anything done under
the Act of 1982 and the rules framed
thereunder are thus saved by the instant saving
clause. In both the writ petitions, the
requisition was made as per sub-rule (4) of
Rule 11 of Rules of 1998 by concerned
Committee of Management online to the
Board for making appointment to the post of
Principal. Once such requisition was made, the
post could not have been filled by transfer.

23. Shelter taken to proviso to sub-rule
(5) of Rule 28 does not stand attracted as the
action taken by Committee of Management is
saved by Section 31(2) and the Additional
Director did not have the power to proceed
with the single transfer taking benefit of the
proviso to sub-rule (5) of Rule 28.

24. Selection and appointment to the
post of Principal could only be made by the
Board or the Commission under the relevant
provisions of the Act and it cannot be on the
basis of the transfer relying upon the proviso
to sub-rule (5) and Rule 28 of Rules of 2023.

25. The ratio laid down by the Full
Bench
in Prashant Kumar Katiyar
(supra) as well as Hari Pal Singh (supra)
still hold good as once the vacancy is
notified to the Board, the same cannot be
filled by transfer.

26. In view of the foregoing discussion, I
am of the opinion that sub-section (2) of
Section 31, which is the saving clause, protects
the action of Committee of Management
sending requisition to the Board for filling up
the post of Principal complying the provisions
of sub-rule (4) of Rule 11 of Rules of 1998,
thus no transfer can be allowed to fill up the
vacancy.

27. Thus, in view of the above, the
question raised in both the writ petitions stands
answered.

28. In the result, both the writ petitions
succeed and are hereby allowed. The transfer
orders dated 28.06.2024 (Annexure 1 to WritA No.12611 of 2024) and 28.06.2024
(Annexure 1 to Writ A No.11436 of 2024) are
not sustainable in the eyes of law and the same
are hereby set aside.
----------
(2024) 9 ILRA 540
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.09.2024
BEFORE
THE HON'BLE AJIT KUMAR, J.

Writ A No. 13596 of 2024

Azizur Rahaman ...Petitioner
Versus
District Cooperative Bank Ltd. & Ors.
 ...Respondents
9 All. Azizur Rahaman Vs. District Cooperative Bank Ltd. & Ors.
541
Counsel for the Petitioner
Jeetendra Singh, Sr. Advocate

Counsel for the Respondents:
Yashwant Singh

A.
Service
Law
-
Constitution
of
India,1950
-
Article
226
-
Writ
-
Alternative remedy - UP Cooperative
Societies Act, 1965 - Section 128 -
Dismissal of employee - Residuary power
of Registrar against dismissal order -
Exercise thereof - Held, the Registrar has
been vested with all the residuary powers
to deal with the resolutions adopted by
the Committee of Management being of
whatever nature and has power to annul
such resolution - High Court upheld the
preliminary
objection
regarding
alternative remedy leaving it open to the
petitioner to avail it. (Para 5, 7 and 9)

Writ disposed of. (E-1)

List of Cases cited:

1. Writ A No. 39967 of 2008; Ranvijay Singh
Bhadauria Vs St. of U.P. & ors. decided on
17.10.2014

2. Nand Kishor Vs St. of U.P. & ors.; 2008 (26)
LCD 428

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Jeetendra Singh, learned
counsel for the petitioner and Sri Yashwant
Singh, learned counsel for the respondent
nos.1 to 4.

2. By means of this petition filed
under Article 226 of Constitution of India,
petitioner has assailed the order passed by
the Secretary of the District Cooperative
Bank Limited, Kanpur dated 01.06.2024
whereby he has been dismissed from the
employment of the Bank through a
resolution adopted by the Committee, dated
18.09.2023.

3. A preliminary objection has been
raised by Sri Yashwant Singh, learned
counsel for the respondent to the effect that
the petitioner has efficacious remedy to
challenge the resolution of the Committee
of Management which has resulted in the
order
dated
01.06.2024
before
the
Registrar, Cooperative Societies under
Section 128 of the U.P. Cooperative
Societies Act, 1965. He has also placed
reliance upon a judgment of a Coordinate
Bench of this Court dated 17.10.2014 in the
matter of Ranvijay Singh Bhadauria v.
State of U.P. and others passed in Writ A
No.39967 of 2008 whereunder the Court
had declined to entertain the petition
against the order of dismissal from the
service on the ground that the Registrar,
Cooperative
Societies
has
requisite
residuary and supervisory powers to deal
with
the
resolution
adopted
by
the
Committee of Management and annul the
same.

4. Meeting the arguments, Sri
Jeetendra Singh, learned counsel for the
petitioner has placed before the Court
relevant provisions as contained under the
U.P. Cooperative Societies Employees
Service Regulations, 1975, according to
which against the order of dismissal no
forum of appeal has been provided. Sri
Singh, learned counsel has also placed
before
the
Court
the
provisions
as
contained under Section 84 which provide
for penalties and one of them is Clause (iv)
dismissal from service whereas other
penalties are of different nature and vide
Regulation 86 of the Regulations the
penalties imposed under Clause (a) to (d) of
Clause (i) of Regulation 84 only have been
made appealable before the authority as
mentioned in Appendix-D. The penalties as
contained under Clause (e) and (G) subclause (i) of Clause 84 only the prior
542 INDIAN LAW REPORTS ALLAHABAD SERIES
permission concurrence of the Institutional
Service Board is required. He further
argues that since there is no forum of
appeal therefore this Court may entertain
this petition.

5. Having heard learned counsel for
the parties and having perused the records
and particularly after going through the
relevant provisions as contained under
Section 128 of U.P. Cooperative Societies
Act, 1965, I find that the Registrar has been
vested with all the residuary powers to deal
with the resolutions adopted by the
Committee of Management being of
whatever nature and has power to annul
such resolution. The relevant provision
under Section 128 of the U.P. Cooperative
Societies
Act,
1965
are
reproduced
hereunder:

"128. Registrar's power to annul
resolution of a co-operative society or
cancel order passed by an officer of a cooperative society in certain cases.-The
Registrar may -

(i) annul any resolution passed by
the Committee of Management, or the
general body of any co-operative society;
or

(ii) cancel any order passed by an
officer of a co-operative society;

if he is of the opinion that the
resolution or the order, as the case may be,
is not covered by the objects of the society,
or is in contravention of the provisions of
this Act, the rules or the bye-laws of the
society, whereupon every such resolution
or order shall become void and inoperative
and be deleted from the records of the
society......."

6. I further notice that a concurrent
Bench of this Court in the matter of
Ranvijay Singh Bhadauria (Supra) has
already followed order and judgment of this
Court of the Division Bench of this Court in
the case of Nand Kishor v. State of U.P. and
others:2008(26) LCD 428 to hold that the
power vested with Registrar, Cooperative
Societies under Section 128 is wide enough
to include all such resolutions which have
even resulted in dismissal of employee of the
Co-operative Societies vide paragraph nos.4
and 5 of the judgment it has
been held thus:

"4.
For
appreciating
the
contentions
raised
on
behalf
of
the
respondents it is worthwhile to refer to
Section 122 of the Act 1965 which confers a
power upon the State Government to
constitute an Authority for regulating the
Service condition of the employees of the
Cooperative Societies. The Authority in turn
has been conferred powers to frame
regulations for the purpose. In exercise of
powers under Section 122 State Government
as constituted Cooperative Societies Service
Institutions Board at Lucknow. This Board
has framed the Regulation of 1975. Under the
Regulation 1986 an appeal to the Chairman
against an order of the Managing Director
has been provided for. It is in exercise of this
power that the Chairman has decided the
appeal filed by the petitioner against the
order of Managing Director imposing the
punishment of recovery of the loss caused. It
is thus apparent that the source of power of
the Chairman under the Regulations flows
from this provisions under Section 122 of the
Cooperative Societies Act. Section 128 of the
Cooperative Societies Act contemplates that
all orders passed by the officers of
Cooperative Societies can be cancelled in the
cases provided for under the said Section
itself.

5. The power conferred under
Section 128 is therefore available to an
employee who is aggrieved by order of the
9 All. Dr. Vinod Chandra Jain & Ors. Vs. State of U.P. & Anr.
543
Chairman passed in appeal preferred by
him under the Regulations. The power
conferred upon the Registrar under Section
128 of the Act, i.e., the parent legislation is
not diluted in any manner by the
regulations framed by the Institutional
Board which are in the nature of
subordinate legislation as reference may
also be had to the definition of ''Officer'' as
contained in Section 20 of the Cooperative
Societies Act which categorically refers to
the Chairman as an officer of the
Cooperative
Societies.
Therefore,
the
application filed by the petitioner under
Section 128 of the Act 1965 was legally
maintainable. The order of Additional
Registrar
dated
12.6.2007
holding
otherwise is legally not justified."

7. In such above view of the matter,
therefore, I do not see any justification to
take a different view from what has already
been taken by a coordinate Bench of this
Court in the aforesaid case. Hence the
preliminary
objection
raised
by
Sri
Yashwant Singh, learned counsel for the
respondent is upheld.

8. The law is well settled that no one
can be left remediless. The highest
authority under an enactment if is vested
with the supervisory and superintending
power or residuary power, which is not
traceable in any other provision of the Act
then such power should be permitted to be
exercised to look into and decide the matter
as a final authority on facts and I find it to
be necessary for arresting any miscarriage
of justice.

9. Hence, I decline to entertain the
petition at this stage. However, it is left
open for the petitioner to prefer an
appeal/representation before the Registrar,
Cooperative Societies taking aid to Section
128 of the U.P. Cooperative Societies Act,
1965
and
in
the
event
any
such
representation/appeal is filed within a
period of four weeks from today, the same
shall be dealt with and disposed of by
Registrar, Cooperative Societies within a
further period of two months.

10. With the aforesaid observations
and directions, this petition stands disposed
of.
----------
(2024) 9 ILRA 543
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.09.2024

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ A No. 13992 of 2019
with
Writ A No. 29588 of 2019
With
Writ A No. 24592 of 2020

Dr. Vinod Chandra Jain & Ors.
 ...Petitioners
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Hari Prasad Gupta

Counsel for the Respondents:
C.S.C.

A. Service Law - Notional promotion -
Entitlement - Earlier the Division Bench
directed the respondents to grant benefit
of
notional
promotion
to
the
writ
petitioners to the post of Additional
Director - Effect - Held, reasons given in
the impugned order for rejecting the case
of the petitioners for grant of notional
promotion are arbitrary in the face of
observations made by Division Benches -
Further held, the consequential benefits of