Santosh Kumar Dwivedi v. State of U.P. Thru. Prin. Secy. Cooperative Deptt. Lko. and 6 Others

Allahabad HC9 Apr 2024WRIA/2864/2024

Case brief

AI extract

What is this about?

Petitioner, holding officiating charge as Officiating Secretary of a cooperative society under Rule 127 of the U.P. Co-operative Rules, 1968, challenged three orders transferring the charge contrary to Rule 127(2). Court issued notice for counter affidavit within three weeks and stayed effect and operation of the impugned orders till next listing.

What did the court decide?

Effect and operation of the impugned orders dated 27.12.2023, 5.2.2024 and 20.2.2024 stayed till the next date of listing.

Santosh Kumar Dwivedi vs State of U.P. Thru. Prin… — Cooperative Societies | Allahabad HC (2024)

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Court No. - 20

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Case :- WRIT - A No. - 2864 of 2024

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Petitioner :- Santosh Kumar Dwivedi Respondent :- State Of U.P. Thru. Prin. Secy. Cooperative Deptt. Lko. And 6 Others Counsel for Petitioner :- Nirankar Singh Counsel for Respondent :- C.S.C.,Rakesh Kumar Chaudhary

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Hon'ble Shree Prakash Singh,J.

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Heard Sri Nirankar Singh, learned counsel for the petitioner, Sri Rakesh Kumar Chaudhary, learned counsel for the opposite party nos. 4 and 5 and Sri Piyush Kumar, learned Standing Counsel for the opposite party nos. 2 and 3.

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Under challenge are the orders dated 27.12.2023, 5.2.2024 and 20.2.2024.

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The contention of learned counsel for the petitioner is that the petitioner is appointed on Officiating Charge as Officiating Secretary, as per Rules 125, 126 and 127 of U.P. Co-operative Rules, 1968.

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Referring the aforesaid, he submits that under the aforesaid Rules the Registrar is not empowered to give officiating charge of Secretary of the Cooperative Society to any employee working elsewhere without resolution of the Committee of Management of the Society. He next added that since the provisions of Rule 127 is very clear on the issue that pending appointment of a Secretary under the Rule 125 or 126, the Committee of Management of the Society may subject to the provisions of Section 120 and the regulations framed under Section 121 and 122 may appoint any suitable person as Officiating Secretary and further the Officiating Secretary appointed under sub-rule (1) shall hold office for a period not exceeding six months or until the appointment of Secretary under Rule 125 or 126.

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Submission of the learned counsel for the petitioner is that while violating the provisions of Rules 127 (2) of the Rules 1968, the order dated 27.12.2023 and consequential orders dated 5.2.2024 and 20.2.2024, are also passed, which are against the provisions of law and thus does not sustain in the eyes of law. In support of his submission, he has also referred the order dated 14.7.2023 passed in Writ -A No. 11054 of 2023, which is quoted herein below:-

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"Order on memo of Writ Petition

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Mr. Uma Nath Pandey, learned counsel for the petitioner is permitted to implead Vijay Bhan Pandey with his necessary particulars as a party respondent to the writ petition during course of the day.

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It is pointed out by the impugned order dated 28.06.2023 that Vijay Bhan Pandey, Secretary (non-cadre), Multi-purpose Primary Rural Co-operative Societies (BPACS) Bahudeshiya Lamps, Kaptanganj has been given charge of Secretary, Multi Purpose Society (BPACS) Bahudeshiya Lamps Ltd. Maharajgaj by the Assistant Commissioner & Assistant Registrar Cooperative Societies, Basti.

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The submission of Mr. Uma Nath Pandey, Advocate is that the power to permit an employee to carry on duties of a Secretary is conferred on the Committee of Management under Rule 127 of the U.P. Co-operative Rules, 1968. The Registrar cannot act unilaterally to give charge of the Secretary of a Co-operative Society to any employee working elsewhere, without a resolution of the Committee of Management of that Society.

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A prima facie case is made out.

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Notice on behalf of respondent no.1 is accepted by Ms. Monika Arya, learned Additional Chief Standing Counsel.

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Issue notice to respondent nos.2, 3 and 4 returnable on 07.08.2023.

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Steps to serve respondent nos.2, 3 and 4 shall be taken by R.P.A.D. within a week.

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All the respondents are granted three weeks' time to file a counter affidavit.

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List on 07.08.2023 along with the report regarding service and the postal track attached. The status of pleadings shall also be reported by the office.

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Order on Civil Misc. Stay Application No. 01 of 2023

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Issue notice.

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Until further orders, operation of the impugned order dated 28.06.2023 passed by the Assistant Commissioner & Assistant Registrar, Co-operative Societies, Basti, shall remain stayed."

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Referring aforesaid, he added that in the identical matter, the Co-ordinate Bench of this Court has passed an interim order while protecting the right of the petitioner above said, therefore, submission is that the petitioner is also entitled for the same relief.

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On the other hand, Sri Rakesh Kumar Chaudhary, learned counsel for the opposite party nos. 4 and 5 and Sri Piyush Kumar, learned Standing Counsel for the opposite party nos. 2 and 3 vehemently opposed the contentions aforesaid and

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submitted that right vests with Administrative Committee, which is appointing authority and therefore, there is no illegality and infirmity in the order dated 27.12.2023. He also added that the petitioner has attained the age of superannuation and thus, his claim with respect to his continuance on the post in question is not tenable and the District Administrative Committee has also handed over the charge to the Cadre Secretary of the Society concerned.

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In rejoinder reply, counsel for the petitioner submits that the question with respect to the retirement of the petitioner is of no avail, as in fact, the provisions of Rules 127 (2) itself enough to show that such officiating charge can be given after retirement itself.

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The matter requires consideration.

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Let a counter affidavit be filed by the opposite parties within three weeks.

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A week's thereafter is granted to file rejoinder affidavit.

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List thereafter.

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Till the next date of listing, effect and operation of the impugned order dated 27.12.2023, 5.2.2024 and 20.2.2024 shall remain stayed.

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Consequences shall follow.

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Needless to say that since the provisions itself prescribed the time period of such appointment, for not exceeding more than six months, then in the aforesaid exigencies, it is open to the opposite parties to take fresh decision after passing of the period, prescribed in the Rules.

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Order Date :- 24.4.2024 A nuj S ingh

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Digitally signed by :- ANUJ PRATAP SINGH High Court of Judicature at Allahabad, Lucknow Bench

Santosh Kumar Dwivedi v. State of U.P. Thru. Prin. Secy. Cooperative Deptt. Lko. and 6 Others

Case brief

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Santosh Kumar Dwivedi v. State of U.P. Thru. Prin. Secy. Cooperative Deptt. Lko. and 6 Others

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