TaxTMI 
TaxTMI 
2026 (8) TMI 1450
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....e Judge dated 31.07.2023 in WPS No. 1799 of 2011 setting aside his promotion order 30.12.2010 to the post of Additional Manager, and one Kishor Bagh, the original writ petitioner (respondent No. 5), being Signature Not Verified m jomoted on a notional basis vice him. 3. The appellant and the original writ petitioner, who is respondent no. 5 before us, are both employees of the District Central Cooperative Bank Ltd, Raipur [DCCBL] Service in the Bank is governed by the Chhattishgarh Ke Jila Sahkari Kendriya Bank Karmachari Seva (Niyojan, Nibandhan, Tatha Unki Karya Sthiti) Niyam, 1982/ Chhattisgarh District Cooperative Central Bank Employee Service (Employment, Terms and their Working Conditions) Rules, 1982 [Rules 1982] that have been brought in by virtue of Section 55 of the Chhattisgarh Cooperative Societies Act, 1960 [Act, 1960]. 4. The dispute concerns promotion lists prepared after the Registrar, Cooperative Societies, Chhattisgarh substituted rule 5 (3) (a, b and c) with effect from 4th July 2005. In the year 2005-06, a gradation list had been prepared of the Class-I officers of the Bank, but the appellant (S.P. Chandrakar) was left out. In the subsequent year, he was i....
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.... reproduced as under: "14. From perusal of the letter dated 13-08-2010 by which the Niyam, 1982 is said to have been amended, it appears that in the bottom of the said letter the word "पंजीयक द्वारा आदेशित" is mentioned and from bare perusal of the letter It further appears that It is not an order of amendment, but only a correspondence to all the cooperative societies of Chhattisgarh intimating that the rule 5(3)(a) has been amended, whereas, there is no order of amendment is placed on record so that it can safely be held that Niyam 5(3)(a) of the Niyam, 1982 was amended after following the due procedure by exercising the powers under Section 55(1) of the Act, 1960. Although Niyam 2(12) of the Niyam, 1982 provides the definition of Registrar including Additional Registrar and Joint Registrar of the cooperative societies, but in the instant case the Additional Registrar has not issued any order for amendment in Niyam 5(3)(a) of the Niyam, 1982, but it is only a communication to all the branches of District Cooperative Central Banks of the State. The note sheets submi....
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....es prescribed in the service rules have not been followed. ..." (emphasis supplied) 7. The Notification of the Registrar is as follows: "OFFICE OF REGISTRAR COOPERATIVE SOCIETIES, CHATTISGARH ORDER : It has come to the notice of this Office that works are being taken from the employees appointed for executing works of District Cooperative Central Banks by posting them to the posts of duties other than their original works, which is affecting their original objectives of appointment, resultantly, it is causing adverse effect on the interest of employees and work effectiveness of the Bank. Therefore, in exercise of powers conferred by Section 55 (1) of Chhatisgarh Cooperative Society Act, 1960, I Subrat Sahu, Registrar Cooperative Societies, C.G, do hereby delete Rule 5 (Three) (A), (B) and (C) of Service Rules framed for the Employees of the District Cooperative Central Bank. This amendment order shall come into force from the date of issuance. Sd/- illegible (Subrat Sahu) Registrar, Cooperative Societies, Chhatisgarh End. No./Credit-l/C.B/05/3260, Raipur Dt 4.7.05 Copy to: 1. Joint/Dy./Assistant Registrar,....
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....h Cooperative Societies Act, 1960, he had the requisite power, as is evidenced by the above extract of the notification. The appellant, on the other hand, contends that the Registrar had no such power. We accept the stand of the Registrar as it appears. He had the requisite power. Section 55 reproduced above clearly stipulates that he has the power to frame rules to regulate service conditions. To our mind, it is quite clear that a person authorised to frame rules also carries with him the requisite authorisation to amend, alter or delete. We are supported in this view by Section 21 of the General Clauses Act, 1897 which provides that when a statute grants the power to issue notifications, orders, rules or bye-laws, or in the instant case, frame, the same would include within itself the power to amend, vary or rescind. The Section reads as follows: "21. Power to issue, to include power to add to, amend, vary or rescind notifications, orders, rules or bye-laws .- Where, by any Central Act or Regulations a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and....
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....very case it shall have that effect, that is to say, that unless the words of the statute are punctiliously followed, the proceeding or the outcome of the proceeding, would be invalid. On the other hand, it is not always correct to say that where the word "may" has been used, the statute is only permissive or directory in the sense that non-compliance with those provisions will not render the proceeding invalid. In that connection, the following quotation from Crawford on Statutory Construction-Article 261 at p. 516, is pertinent: "The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other .... " 12.2 In State of U.P. v. Babu Ram Upadhya [1960 SCC OnLine SC 5], a Constitution Bench was concerned with the nature of para 486 of the Police Regulations in connection with chapter XIV CrPC. K. Subba Rao J. ....
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....d justice, and when that result would involve general inconvenience or injustice to innocent persons, or advantage to those guilty of the neglect, without promoting the real aim and object of the enactment, such an intention is not to be attributed to the legislature. The whole scope and purpose of the statute under consideration must be regarded." Lord Campbell in Liverpool Borough Bank v. Turner [(1861) 30 LJ Ch 379] observed: "No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed." 13. In order to determine whether 'shall' as used in Section 95(3) of the 1960 Act is obligatory or otherwise, the fact that there is no consequence of non- compliance of the laying procedure, acquires importance. This meets one half of the requirements to be considered in order to conclude that a provision is directory. The other half is whether there will be 'serious general inconvenience and pr....
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....h House of Parliament ..... The affirmative resolution procedure necessitates a debate in every case. This means that one object of delegation of legislation (viz. saving the time of Parliament) is to some extent defeated. The procedure therefore is sparingly used and is more or less reserved to cases where the order almost amounts to an Act, by effecting changes which approximate to true legislation (e.g. where the order is the meat of the matter, the enabling Act merely outlining the general purpose) or where the order replaces local Acts or provisional orders and, most important of all, where the spending, etc. of public money is affected .... " 13.2 A five-judge Bench in K.T. Plantation (P) Ltd. v. State of Karnataka, [(2011) 9 SCC 1] affirmed Atlas Cycle supra and observed that the three different kinds of laying clauses display the level of control that the Legislature desires to exercise in a given case. 14. The conclusion is that in the absence of consequence, the laying procedure given in Section 95(3) is clearly directory. Non-compliance thereof cannot defeat the exercise of power by the Registrar. We also notice that the State of Madhya Pradesh in its Madhya Prades....
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....p. 489] . See in this connection also the observations of this Court in L. Hazari Mal Kuthiala v. CIT [L. Hazari Mal Kuthiala v. CIT, (1961) 11 SCR 892 : AIR 1961 SC 200 : (1961) 41 ITR 12 at p. 16] .) This point has again been reiterated by this Court in Hukumchand Mills Ltd. v. State of M.P. [Hukumchand Mills Ltd. v. State of M.P., (1964) 6 SCR 857 : AIR 1964 SC 1329 : (1964) 52 ITR 583] wherein it was observed that it was well settled that a wrong reference to the power under which action was taken by the Government would not per se vitiate that action if it could be justified under some other power under which Government could lawfully do that act. (See also the observations of the Supreme Court in Nani Gopal Biswas v. Municipality of Howrah [Nani Gopal Biswas v. Municipality of Howrah, 1958 SCR 774 at p. 779 : AIR 1958 SC 141] .)" As such, given the statutory power of the Registrar, the notification being termed as 'circular' or something else, would not affect the sanctity thereof. 16. The reasoning of the Courts below, in view of the above discussion, is erroneous and the judgments are accordingly set aside. There was no basis for the promotion of the appellant....