In respect of any other irregularity such as qualification or want of post or communal rotation etc., it would be open for the respondents to issue a show-cause notice to the concerned employee by giving an opportunity of hearing and proceed with the matter in accordance with law; (vi) There shall be no order as to costs. (viii) Consequently, connected miscellaneous petitions are closed. (S.S.S.R.,J.) (D.B.C.,J) 13.10.2023 NCC : Yes / No Index:Yes/No Index:Yes/No sji/klt/grs To 1.The Commissioner of Milk Production and Dairy Development Department, Mathavaram Mill Colony, Chennai-600 051. 2.The General Manager, Trichy District Co-operativeMilk Producers Union Limited, Pudukkottai Road, Trichy-620 023. 3.The Deputy Registrar (Dairy), Trichy District Co-operative Milk Producers Union Limited, Old Collectorate Office Campus, Trichy-620 001. S.S.SUNDAR, J. AND D.BHARATHA CHAKRAVARTHY,J. sji Pre-Delivery Judgement made in W.A.(MD)Nos.554 to 597 of 2023, 777, 778, 833, 834, 901, 902, 905, 1389, 1561, 1587 and 1610 of 2023 and C.M.P.(MD)Nos.5528 to 5586, 5599, 5600, 6465, 6468, 6734, 6735, 7127, 7144, 7158, 10866, 10868, 12117, 12320, 12529 and12531 of 2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Date of Reservation 27.09.2023
Date of Judgment 13.10.2023

CORAM

THE HONOURABLE MR.JUSTICE S.S.SUNDAR
AND
THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY

W.A.(MD)Nos.554 to 597 of 2023, 777, 778, 833, 834, 901, 902, 905, 1389, 1561, 1587 and 1610 of 2023
and
C.M.P.(MD)Nos.5528 to 5586, 5599, 5600, 6465, 6468, 6734, 6735, 7127, 7144, 7158, 10866, 10868, 12117, 12320, 12529 and12531 of 2023

W.A(MD)No.554 of 2023:

M.Kavitha … Appellant/Petitioner
Vs.

1.The Commissioner of Milk Production
and Dairy Development Department,
Mathavaram Mill Colony,
Chennai-600 051.

2.The General Manager,
Trichy District Co-operative
Milk Producers Union Limited,
Pudukkottai Road, Trichy-620 023.

3.The Deputy Registrar (Dairy),
Trichy District Co-operative
Milk Producers Union Limited,
Old Collectorate Office Campus,
Trichy-620 001. : Respondents/Respondents

Prayer: Writ Appeal has been filed under Clause 15 of Letters Patent to set aside the order, dated 29.03.2023 made in W.P.(MD)No.512 of 2023 on the file of this Court.

For Appellants : Mr.M.Ajmalkhan
for M/s.Ajmal Associates
For R1 : Mr.Mr.M.Lingadurai
Special Government Pleader for R1
For R2 & R3 : Mr.Veerakathiravan
Additional Advocate General
Assisted by Mr.J.Devasenan
for Trichy District
: Mr.V.R.Shanmuganathan
for Bharathidhasan University
: Mr.A.Balaji
for Mahendra Engineering College.

COMMON JUDGMENT

D.BHARATHA CHAKRAVARTHY, J.
A. The Appeals:

All these writ appeals arise out of the common order of the learned Single Judge dated 29.03.2023 in W.P.(MD)Nos.501 of 2022 and batch of cases. In the said batch of writ petitions, orders of the official respondents cancelling the appointments of the petitioners in various posts in Madurai, Virudunagar and Tiruchirappalli District Co-operative Milk Producers Unions were challenged and a consequential direction was prayed to reinstate them into service with continuity of service, seniority and other monetary benefits. All the writ petitions were dismissed by the learned Single Judge by a common order.

B. The Common Facts:
2. There are certain facts which are common to all these writ petitions and there are some facts which are specific to the concerned Co-operative Societies. The general facts in common are these matters relate to recruitment for various posts in the District Co-operative Milk Producers Unions.

2.1 As far as the State of Tamil Nadu is concerned, the law relating to the provisions for organization, management and supervision of Co-operative Societies is governed by Tamil Nadu Act 30 of 1983, namely, the Tamil Nadu Co-operative Societies Act, 1983. Among the Co-operative Societies, Dairy Sector generally known under the name ‘Aavin’ is one of the prominent and State-wide sectors. It is a three tier system with primary Milk Co-operative Societies at village level, Unions at District level and the Federation as an apex organization at the State level.

2.2 The provisions regarding the conditions of service in respect of these societies are stipulated under Rule 149 of the Co-operative Societies Rules, 1988. Rule 149(2) also makes it mandatory that in respect of any direct recruitment, appointments should be made by calling for list from the employment exchanges as well as by advertising. Further, it is mandated that every society taking into account its nature of business, volume of transaction and financial position, with the prior approval of the Registrar of Co-operative Societies shall adopt Special Bye-laws governing the service conditions of its employees. The Special Bye-laws shall provide for the cadre strength, classification of various categories of posts and qualifications. Co-operative training is also sought to be prescribed as a necessary qualification for specific categories of non-technical post.

2.3 These unions have adopted identical sets of approved Special Bye-laws with effect from 01.04.2013. As a matter of fact, generally, in co-operative societies there are two types of posts, the basic post at the society level and the other posts are known as ‘common cadre’ posts. The Special Bye-laws contain the particulars as to the name of the post, scale of pay, method of recruitment, essential qualification etc.

2.4 With regard to the method of conducting direct recruitment originally a circular was issued by the Commissioner for Milk Production and Dairy Development on 24.02.2015 as per which, in respect of vacancies above the cadre of Manager a written test was ordered to be conducted for 50 marks and 40 marks for academic qualification and 10 marks for interview. For the posts below the Manager cadre 90 marks were directed to be given for the academic qualification and 10 marks for the interview. The said position was thereafter amended by the Director of Milk Production and Dairy Development by circular dated 17.07.2017 whereby it was decided that in respect of direct recruitment for all the posts, a written examination should be conducted for 85% of marks and 15% of marks shall be by oral test. By yet another circular dated 12.12.2017, it was made clear that written examination and interview should be conducted through Government Colleges and Universities of adjacent districts. The Director had further clarified by his letter dated 02.07.2019 that if appropriate Government Colleges and Universities are not forthcoming, deemed universities which are existent for 10 years can also be engaged for conducting written examination.

2.5 With the above rule position, the three District Co-operative Milk Producers Unions with which these batch of matters are concerned, issued an advertisements on various dates in the year 2019/2020 and also called for list of eligible candidates from the concerned employment exchanges.

2.6 The facts from the issue of advertisements, the posts, number of vacancies, the written examination and the oral examination are not common to all the three Unions and hence will be dilated in the latter part of this order.

2.7 Pursuant to the notification, it is claimed that the petitioners applied and written tests were conducted but the recruitment processes were pending at that stage. In the month of January/February 2021, just before the notification of elections to the Tamilnadu State Assembly was about to be issued and days before the model code of conduct coming to force, suddenly interviews where held in a hurry and these appointments were made and approved. Majority of the interviews and appointments were on the same day of interview.

2.8 After the elections were over and new political dispensation came to power, the matter was thereafter taken up and the Commissioner of Milk Production and Dairy Development by his proceedings dated 01.02.2022 ordered an enquiry under Section 81 of the Tamil Nadu Co-operative Societies Act, since he has received a large number of complaints regarding the malpractices in the recruitments to the various District Milk Unions. Pursuant thereto, separate enquiry officers were appointed in respect of Virudhunagar, Madurai and Trichy and after detailed enquiry, reports were submitted. After receipts of the reports, upon being satisfied that the recruitments are marred by serious infirmities and irregularities by a proceedings dated 28.12.2022, the Commissioner of Milk Production and Dairy Development ordered that all these appointments be cancelled. Pursuant thereto by seperate orders dated 03-04.01.2023 etc., appointments of the writ petitioners were cancelled. In all the orders cancelling appointments, the enquiry reports under Section 81 of the Tamil Nadu Co-operative Societies Act, 1983 were relied upon and the allegations specific to the particular union were also mentioned. Challenging the above orders, all these writ petitions were filed.

C. The Case of the Parties & Order in the Writ Petitions:
3. It is the primary contention of the writ petitioners that (i) they have applied pursuant to the advertisement made for recruitment from open market or upon being sponsored by employment exchange;(ii) participated in the selection process; (iii) were been duly selected and appointed; (iv) and were working for a period of about one year and ten months or thereabouts. Suddenly without affording any opportunity whatsoever and without even furnishing the copy of the S.81- Enquiry report, the appointments cannot be terminated. All these writ petitions were resisted by filing counter affidavits by stating various reasons and facts relating to the irregularities in the process of selection and also in some cases, the lack of qualification of the candidates etc.

3.1 The learned Single Judge heard all the writ petitions together. The learned Single Judge firstly found that all these appointments were vitiated for non-compliance of the time limit prescribed under Rule 5 of the Employment Exchanges (Compulsory Notification of Vacancies) Rules, 1960 as the recruitments were done 1 ½ years after than the furnishing of the list by the employment exchange and the learned Single Judge held that the list furnished by the employment exchange has to be utilized within the period of six months and the list since not utilized lapses and therefore, when the Rule 149 of the Tamil Nadu Co-operative Societies Rules makes the notification of the post to the concerned employment exchange as mandatory, all these appointments which are made without calling for the fresh lists are not legally tenable. This apart, the learned Single Judge specifically found that even the OMR sheets in respect of the selection were not available and were not taken into account by the selection committee. The Private College which conducted the examination had taken a stand that they have shredded the OMR sheets and the OMR sheets were not available with them. In that view of the matter, when the entire process was suspicious and when the Commissioner had ordered enquiry under Section 81 and at the same time, he has approved the appointments, when by the change of regime, the serious lapses are found out and action has been taken, the petitioners, whose appointments are illegal and not in accordance with the procedures are not entitled for any hearing and no individual enquiry was necessary. Holding so, the learned Single Judge dismissed the writ petitions even while directing the restoration of employment seniority in respect of the writ petitioners and directing initiation of disciplinary action against the Commissioner and General Managers of the respective Co-operative Societies. Aggrieved by the same, the present appeals are filed before this Court.

D. The Submissions:
4. Mr.Isaac Mohanlal, the learned Senior Counsel appearing on behalf of the appellants in W.A(MD)Nos.579 to 595 of 2023 and 1389 of 2023 would submit that the petitioners were not privy to any of the allegations which are made against them. As a matter of fact, no allegations of fraud or serious irregularity was mentioned in the impugned order terminating their services. Even in the counter affidavit, many of the facts which are now stated by the Government in the Appellate stage were not mentioned. Taking this Court through the 81 enquiry, the learned Senior Counsel would submit that it is the specific finding of the enquiry officer under Section 81 that there is no evidence for any malpractice of giving money and securing employment. That being the situation, when the concerned Colleges/Universities which conducted the examination have duly evaluated the written examination and have submitted the OMR sheets with the concerned unions, merely, because the said unions are not producing the OMR sheets now, it cannot be put against the employees. In any event, when the appointments have been duly made and they were working for almost a period of two years and drawing their salaries and discharging their functions, at the stroke of a pen by a general decision, their services cannot be dispensed with. They are entitled to protection and if at all there is any irregularity, appropriate action can be initiated only by affording opportunity to the concerned employees and after giving them an opportunity of hearing and conducting a detailed enquiry in the manner known to law.

4.1 Mr. Issac Mohanlal, the learned Senior Counsel would submit that merely because there is change of regime after the election, the subsequent Government has no right to discard the appointments made during the previous Government. The life of the writ petitioners itself is in question. The learned Senior Counsel would submit that when the employment exchange list has been utilized within a period of six months and they being included in the recruitment process, the finding of the learned Single Judge that the Employment Exchange (Compulsory Notification of Vacancies) Act and the Rules made thereunder are violated is not correct. He would further submit that the learned Single Judge did not even advert to the various facts of the case and went by the over all impression created by the respondents which are contrary to the facts. He would submit that the various process which are conducted by the respective Colleges and Universities are before this Court and even the manner in which, the question papers were set up, answers were evaluated are all very much before the Court. He would further submit that none of the candidates who are not selected and whose applications are said to have been rejected have even approached the Court. In this scenario, only because of the change of regime, the impugned exercise is made and as such, he would request that this Court should interfere.

4.2 Mr.M.Ajmal Khan, the learned Senior Counsel appearing for the appellants in W.A(MD)Nos.554 to 570, 777, 778, 1587 and 1561 of 2023 would contend that basically for any recruitment a process which can withstand the constitutional scheme of tests of Articles 14 and 16 is to be followed. In respect of direct recruitment, there must be a fair selection process. Once there is a process by which list from the employment exchange is called for and advertisement is made in popular news papers which are widely circulated throughout Tamil Nadu and when number of candidates have applied and the examination has been duly conducted as per the procedures and the candidates being evaluated and committees were appointed by the Commissioner which consists of five persons to verified the certificate and credentials and similar committee to conduct the interview, and when the appointment has been made as against sanctioned vacancies, the respondents cannot by a general order direct cancellation of appointments. In any event, such orders cannot be passed without even affording an opportunity.

4.3 Mr.Ajmal Khan, the learned Senior Counsel relied upon the Judgement of the Hon’ble Supreme Court of India in D.K.Yadav Vs. J.M.A.Industries Limited1, more specifically relying upon paragraphs 8 to 12 which reads as follows:

“8.The cardinal point that has to be borne in mind, in every case, is whether the person concerned should have a reasonable opportunity of presenting his case and the authority should act fairly, justly, reasonably and impartially. It is not so much to act judicially but is to act fairly, namely’ the procedure adopted must be just, fair and reasonable in the particular circumstances of the case. In other words application of the principles of natural justice that no man should be condemned unheard intends to prevent the authority to act arbitrarily effecting the rights of the concerned person.
9.It is a fundamental rule of law that no decision must be taken which will affect the right of any person without first being informed of the case and be given him/ her an opportunity of putting forward his/her case. An order involving civil consequences must be made consistently with the rules of natural justice. In Mohinder Singh Gill & Anr. v. The Chief Election Commissioner & Ors. [1978] 2 SCR 272 at 308F the Constitution Bench held that ‘civil consequence’ covers infraction of not merely property or personal right but of civil liberties, material deprivations and non- pecuniary damages. In its comprehensive connotion every thing that affects a citizen in his civil life inflicts a civil consequence. Black’s Law Dictionary, 4th Edition, page 1487 defined civil rights are such as belong to every citizen of the state or country they include rights capable of being enforced or redressed in a civil action. In State of Orissa v. Dr. (Miss) Binapani dei & Ors., this court held that even an administrative order which involves civil consequences must be made consistently with the rules of natural justice. The person concerned must be informed of the case, the evidence in support thereof supplied and must be given a fair opportunity to meet the case before an adverse decision is taken. Since no such opportunity was given it was held that superannuation was in violation of principles of natural justice.
10.In State of West Bengal v. Anwar Ali Sarkar [1952] SCR 289, per majority, a seven Judge bench held that the rule of procedure laid down by law comes as much within the purview of Art. 14 of the Constitution as any rule of substantive law. In Maneka Gandhi v. Union of India,. [1978] 2 SCR 62 1, another bench of seven judges held that the substantive and procedural laws and action taken under them will have to pass the test under Art, 14. The test of reason and justice cannot be abstract. They cannot be divorced from the needs of the nation. The tests have to be pragmatic otherwise they would cease to he reasonable. The procedure prescribed must be just, fair and reasonable even though there is no specific provision in a statute or rules made thereunder for showing cause against action proposed to be taken against an individual, which affects the right of that individual. The duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action. Even executive authorities which take administrative action involving any deprivation of or restriction on inherent fundamental rights of citizens, must take care to see that justice is not only done but manifestly appears to be done. They have a duty to proceed in a way which is free from even the appearance of arbitrariness, unreasonableness or unfairness. They have to act in a manner which is patently impartial and meets the requirements of natural justice.
11.The law must therefore be now taken to be well-settled that procedure prescribed for depriving a person of livelihood must meet the challenge of Article 14. and such law would be liable to be tested on the anvil of Article 14 and the procedure prescribed by a statute or statutory rule or rules or orders effecting the civil rights or result in civil consequences would have to answer the requirement of Article 14. So it must be right,just and fair and not arbitrary, fanciful or oppressive. There can be no distinction between a quasi-judicial function and an administrative function for the purpose of principles of natural justice. The aim of both administrative. inquiry as well as the quasi-.judicial enquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice or to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable only to quasi-judicial enquiry and not to administrative enquiry. It must logically apply to both.
12.Therefore, fair play in action requires that the procedure adopted must be just, fair and reasonable. The manner of exercise of the power and its impact on the rights of the person affected would be in conformity with the principles of natural justice. Article 21 clubs life with liberty, dignity of person with means of livelihood without which the glorious content of dignity of person would be reduced to animal existence. When it is interpreted that the colour and content of procedure established by law must be in conformity with the minimum fairness and processual justice, it would relieve legislative callousness despising opportunity of being heard and fair opportunities of defence. Article 14 has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory dictates. Equality is the antithesis of arbitrariness. It is, thereby, conclusively held by this Court that the principles of natural justice are part of Article 14 and the procedure prescribed by law must be just, fair and reasonable.”

4.4 Mr. Ajmal Khan, the learned Senior Counsel also placed reliance upon the Judgment in C.Kamaraj Vs. The Registrar of Co-operative Societies2, more specifically on paragraph 40 for the proposition that when the respondents have gone ahead to take action pursuant to the enquiry report under Section 81 of the Co-operative Societies Act, such action taken without furnishing of the copy of the enquiry report is illegal.
3
4.5 Mr.T.Lajapathi Roy, the learned Senior Counsel appearing on behalf of the appellants in W.A(MD)Nos.571 to 578, 596 and 597 of 2023 would submit that in these cases, fraud was not even pleaded. The enquiry which was initiated by the order of the Commissioner, under Section 81 of the Tamil Nadu Co-operative Societies Act, did not even go into specific allegations and when these employees were summoned during the enquiry not even any allegations were put to them. They were simply summoned for enquiry and these employees stated the facts as to how they were appointed. Therefore, they did not have any opportunity whatsoever during the course of the enquiry. After completion of the 81 enquiry report, the same was also not furnished to the writ petitioners. Upon receipt of the enquiry report and the Commissioner ordered the termination of these employees. Even the said order was not even served and before taking the said decision, no opportunity whatsoever was given. This is a case, where, the employees were working for more than 1 ½ of years and all the candidates are eligible. Even as per the Special Bye-law No.21, atleast two months notice is necessary for cessation of employment which also is not complied with in the instant case. Therefore, this is a case of wholesale violation of principles of natural justice and as such the writ appeals are to be allowed.
3
4.6 The other Learned Counsel for petitioners also made submissions on similar lines contending non-compliance of natural justice and in individual cases justified the writ petitioner’s qualifications wherever it is held to be otherwise.

4.7 Mr.Veera Kathiravan, the learned Additional Advocate General opposing the above submissions, by taking this Court through the different 81 enquiry reports, would submit that it is not because of the political vendetta or mere change of regime actions were initiated. Pursuant to several complaints, the Commissioner ordered enquiry under Section 81 of the Tamil Nadu Co-operative Societies Act. All the three 81 enquiry reports in respect of Virudhunagar, Madurai and Trichy reveal shocking and grave irregularities. Similar irregularities were revealed in respect of the other Districts also making the selections made in Aavin throughout the state, just before elections completely tainted. Arbitrariness and nepotism are writ large on the face of the selections. Many of the applicants did not even apply and their applications were belatedly inserted by showing the demand drafts which are enclosed by different applicants. Some of the applicants did not even possess the basic qualifications. Huge number of applications were rejected without any basis in all the Unions. Absolutely no procedure was followed while short listing the candidates for interview and invariably appointments are issued on the same date of interview in a hurried manner. In many of these selections, it is not even humanly possible to conduct interviews within a period of time as specified in the proceedings. The authorities themselves did not act properly and therefore, the learned Single Judge has directed the initiation of disciplinary proceedings including against the Commissioner, who gave approval.
3
4.8 Mr. Veera Kathiravan, the learned Additional Advocate General, relying upon a status report which is filed, pointed out that the disciplinary proceedings are initiated against some of the officials concerned and request for initiation of disciplinary proceedings are pending in respect of other officials involved. He would submit that the entire process is vitiated in such a manner so that individual enquiry into the whole affair is impracticable and is unnecessary. As a matter of fact, the vigilance enquiry is also under process and is pending for initiation of appropriate criminal action so as to unearth if there is any corruption involved even though there was no evidence in the 81 enquiry regarding the same. He would submit that the writ petitioners would only depose as if they were sucessful in written examination and were selected. If only due investigation is made, the truth relating to corruption will come out. When there is ample proof before the authorities that there was rampant nepotism in making appointments throughout the State, a decision was taken at the State level and accordingly all these orders are passed. It is not necessary to mention each and every one of the reasons which came out in the 81 enquiry report and which are there on record in the impugned orders of cancelling the appointments. That there are materials relating to the allegations of fraud during the 81 enquiry and definite conclusions can be reached on the basis of the 81 enquiry report is indicated in the impugned orders. All the facts are pleaded in the counter affidavits and the materials are also placed before the learned Single Judge as well as before this Court.

3
4.9 Mr.Veera Kathiravan, the learned Additional Advocate General would therefore contend that in view thereof, when the entire exercise is tainted with fraud, it is not necessary to afford any opportunity to the individual petitioners. In support of his submissions, the learned Additional Advocate General would rely upon the Judgment of the Hon’ble Supreme Court of India in Meghmala Vs. G.Narasimha Reddy3, more specifically relying upon paragraphs 28 and 36 stating that if an office is obtained by playing fraud upon the competent authority than the same cannot be sustained in the eye of law.

4.10 The learned Additional Advocate General would rely upon the Judgment of the Hon’ble Supreme Court of India in Union of India (UOI) and Ors. Vs. M.Bhaskaran and Ors.4, to contend that if any employment is obtained by fraudulent practice, the same cannot be countenanced before any Court of law. To further contend that what describes fraud and that the fraud vitiates every solemn proceedings, the Judgement of the Hon’ble Supreme Court of India in Commissioner of Customs (Preventive) Vs. Aafloat Textiles (I) Pvt. Ltd. and Others5, is relied upon, more specifically relying upon paragraphs 9 to 10 which read as follows:

“9. “fraud” means an intention to deceive; whether it is from any expectation of advantage to the party himself or from the ill will towards the other is immaterial. The expression “fraud” involves two elements, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable or of money and it will include and any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non- economic or non-pecuniary loss. A benefit or advantage to the deceiver, will almost always call loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied. (See Dr. Vimla v. Delhi Administration (1963 Supp. 2 SCR 585) and Indian Bank v. Satyam Febres (India) Pvt. Ltd. (1996 (5) SCC 550).
10. A “fraud” is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another’s loss. It is a cheating intended to get an advantage. (See S.P. Changalvaraya Naidu v. Jagannath (1994 (1) SCC 1).”
4.11 In respect of the very same proposition, the Judgment in Vice Chairman, K.V.S. and Others Vs. Girdharilal Yadav6, is also relied upon particularly paragraph 12 which is extracted hereunder:
“12.Furthermore, the respondent herein has been found guilty of an act of fraud. In our opinion, no further opportunity of hearing is necessary to be afforded to him. It is not necessary to dwell into the matter any further as recently in the case of Ram Chandra Singh v. Savitri Devi [(2003) 8 SCC 319] this Court has noticed: (SCC p. 327, paras 15-19)
“15. Commission of fraud on court and suppression of material facts are the core issues involved in these matters. Fraud as is well known vitiates every solemn act. Fraud and justice never dwell together.
16. Fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by word or letter.
17. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud.
18. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by wilfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad.
19. In Derry v. Peek [(1889) 14 AC 337 : (1886-90) All ER Rep 1 : 58 LJ Ch 864 : 61 LT 265 (HL)] it was held:
In an action of deceit the plaintiff must prove actual fraud. Fraud is proved when it is shown that a false representation has been made knowingly, or without belief in its truth, or recklessly, without caring whether it be true or false.
A false statement, made through carelessness and without reasonable ground for believing it to be true, may be evidence of fraud but does not necessarily amount to fraud. Such a statement, if made in the honest belief that it is true, is not fraudulent and does not render the person making it liable to an action of deceit.”

4.12 Again, for the same proposition, the Judgment of the Hon’ble Division Bench of this Court in R.Vetri and another Vs. The District Collector and another7, is pressed into service, relying upon paragraphs 13 and 13.1 which reads as follows:
“13. It goes without saying that fraud vitiates every solemn proceeding and no right can be claimed by the fraudsters on the ground of technicality. When the Judgment obtained by playing fraud on the Court is non-est in the eye of law, the petitioners cannot take umbrage under the technical arguments that separate proceedings ought to have been initiated against the suit proceedings by filing an appeal or for exercising the power under Article 227 of the Constitution of India. When the land which is meant for public use is grabbed with utmost contempt to the law of land, by creating false records, it cannot be perpetuated or saved by application of any equitable doctrine or technical arguments. The said position has been clearly laid down by the Hon’ble Supreme Court of India, in Satluj Jal Vidyut Nigam Vs. Raj Kumar Rajinder Singh (Dead) through LR’s., and Ors., case cited Supra, more particularly Paragraph No.71 of the Judgment, which is extracted hereunder:-
“ 71. In Ram Chandra Singh v. Savitri Devi [Ram Chandra Singh v. Savitri Devi, (2003) 8 SCC 319] , it was observed that fraud vitiates every solemn act. Fraud and justice never dwell together and it cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. This Court observed as under : (SCC pp. 327-29, paras 15-18, 23 & 25)
“15. Commission of fraud on court and suppression of material facts are the core issues involved in these matters. Fraud, as is well known, vitiates every solemn act. Fraud and justice never dwell together.
16. Fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by word or letter.
17. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud.
18. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by wilfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad.
………….
23. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous.”
13.1 This apart, the Hon’ble Supreme Court of India, in S.P.Chenalvaraya Naidu Vs. Jagannath 8 , in paragraph No.5 has held as follows:
“5……. The principle of “finality of litigation” cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, taxevaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who’s case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.”

4.13 The learned Additional Advocate General would contend that any recruitment process should satisfy the test of Articles 14 and 16 of the Constitution of India and the persons employed in violation of these provisions is not entitled to any relief including salary and for the proposition relied upon paragraph 19 of the Judgment of the Hon’ble Supreme Court of India in State of Orissa and Another Vs. Mamata Mohanty8.

4.14 The learned Additional Advocate General would submit that wholesale cancellation of the selection process can be resorted to if the examination is vitiated by adoption of unfair means on a mass scale and in that regard placed reliance on paragraph 13 of the Judgment of the Hon’ble Supreme Court of India in The Bihar School Examination Board Vs. Subhas Chandra Sinha and Others9, which reads as under:
“13. This is not a case of any particular individual who is being charged with adoption of unfair means but of the conduct of all the examinees or at least a vast majority of them at a particular centre. If it is not a question of charging any one individually with unfair means but to condemn the examination as ineffective for the purpose it was held. Must the Board give an opportunity to all the candidates to represent their cases? We think not. It was not necessary for the Board to give an opportunity to the candidates if the examinations as a whole were being cancelled. The Board had not charged any one with unfair means so that he could claim to defend himself. The examination was vitiated by adoption of unfair means on a mass scale. In these circumstances it would be wrong to insist that the Board must hold a detailed inquiry into the matter and examine each individual case to satisfy itself which of the candidates had not adopted unfair means. The examination as a whole had to go.”

4.15 Strong reliance was placed on the Judgment of the Hon’ble Supreme Court of India in Union of India and Others Vs. O.Chakradhar10, which was also a case where the Railway Board cancelled the appointments after a period of three years upon finding that the mandatory test of typewriting itself was not conducted in respect of the candidates. By relying upon paragraphs 7 and 8 of the said judgment, the learned Additional Advocate General would submit that if the mischief played is so widespread and all-pervasive, affecting the result, so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection, the only way out would be to cancel the whole selection.

4.16 The learned Additional Advocate General would also place reliance upon the Judgment of the Hon’ble Supreme Court of India in Karnataka State Road Transport Corporation and another Vs. S.G.Kotturappa and another11, to contend that principles of natural justice is not straitjacket formula and in appropriate cases, where it would amount to empty formality or when there is gross irregularity it need not be complied with. Paragraph 24 of the above said judgment is specifically relied upon.

4.17 The learned Additional Advocate General would rely upon the judgment of the Constitution Bench of the Hon’ble Supreme Court of India in Umadevi’s case12, in respect of the fairness of procedure of appointment more specifically relying upon paragraph 11 of the said judgment, which reads as follows:
“11. In addition to the equality clause represented by Article 14 of the Constitution, Article 16 has specifically provided for equality of opportunity in matters of public employment. Buttressing these fundamental rights, Article 309 provides that subject to the provisions of the Constitution, Acts of the legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of a State. In view of the interpretation placed on Article 12 of the Constitution by this Court, obviously, these principles also govern the instrumentalities that come within the purview of Article 12 of the Constitution. With a view to make the procedure for selection fair, the Constitution by Article 315 has also created a Public Service Commission for the Union and the Public Service Commissions for the States. Article 320 deals with the functions of the Public Service Commissions and mandates consultation with the Commission on all matters relating to methods of recruitment to civil services and for civil posts and other related matters. As a part of the affirmative action recognised by Article 16 of the Constitution, Article 335 provides for special consideration in the matter of claims of the members of the Scheduled Castes and Scheduled Tribes for employment. The States have made Acts, rules or regulations for implementing the above constitutional guarantees and any recruitment to the service in the State or in the Union is governed by such Acts, rules and regulations. The Constitution does not envisage any employment outside this constitutional scheme and without following the requirements set down therein.”

4.18 Finally, the learned Additional Advocate General relied upon the Hon’ble Supreme Court of India in Umarani Vs. Registrar of Co-operative Societies and others13, morefully relying upon paragraphs 35, 40 and 49 to contend that no appointment can be made in departure of the procedures laid down in the statutory rules and that those who come back by back door should go through back door and that the appointments cannot be made on political considerations and in violation of the statutory rules, cadre strength etc., Therefore, he would submit that no exception whatsoever can be taken in respect of the action of the State and the State is further proceeding with the vigilance enquiry on disciplinary action on the erring officials.

E. The Legal Questions & Answers Thereof:
5. We have considered the rival submissions made on either side and considered the various legal submissions and the Judgments relied upon by either side. In this case, it is essential to first advert to the legal position and thereafter to apply the same to the facts and circumstances of this case. Our findings are as follows :
1 Question No. (i):
2 Whether the writ petitions are maintainable and are entertainable without recourse to alternative remedy of the revision provided under the Tamilnadu Co-operative Societies Act, 1983 ?

5.1 Even though the writ petitioners are employees of co-operative societies, the exercise of cancellation of appointment/termination of service was done by the respective Co-operative Milk Unions on the orders of the Commissioner of Milk Production and Dairy Development dated 28/12/2022 and hence, at that instance of the State. As such the writ petitions are undoubtedly maintainable. These are cases of termination of service without any enquiry or notice and the entire claim in the writ petition is about non compliance of principles of natural justice, the petitions are entertainable without relegating the petitioners to the alternative remedy of filing of revision petition under Section 153 of the Tamilnadu Co-operative Societies Act, 1983.

Question No. (ii):
Whether it is necessary to follow the principles of natural justice in the matters of termination of employment in these co-operative unions?

5.2 The action in the instant case is at the behest of the state. The recruitment is also approved by the state. The posts which are in question are common cadre posts. The cadre strength, the scale of pay, qualifications are all fixed by a uniform Special Bye-laws duly approved by the State and the Registrar of Co-operative Societies. As such any recruitment or cancellation thereof shall stand the scrutiny of the principles/tenets as contained under Articles 14 and 16 of the Constitution of India;

5.3 The principles of natural justice are facets of Articles 14, 16 and 21 of the Constitution of India and since the action is taken at the instant of the State that too in the matter of employment which is governed by statutory rules in force, the same have to be followed;

5.4 Any order of non-employment or termination of service visits the employees with civil consequences and as such the same cannot be ordinarily made without compliance of the principles of natural justice and in the absence of same, such actions would stand vitiated;

5.5 The principles of natural justice is not a straitjacket formula and in appropriate cases, where, the entire selection is tainted with fraud or serious irregularities, where the irregularity is on a mass scale so that it cannot be differentiated as to which of candidate’s selection was vitiated or which candidate secured employment by fair means, wholesale cancellation of appointments is an option and in that case there is no question of compliance of principles of natural justice with reference to every person who is affected. In such cases, even if the action is unduly harsh and may even affect one or two innocent persons, the same cannot be a ground to interfere in the action.

5.6 Nepotism corruption and egregious fraud during the process of selection would readily be a ground for scraping the entire selection and cancellation of appointment even if the appointments have already been made and the candidates are working. In such cases, the action if otherwise on merits is warranted, the beneficiaries’ cases cannot be countenanced on technical reasons and even the compliance of principles of natural justice in these cases of serious fraud would be treated as a mere technicality and as such the actions will have to be upheld.

5.7 In cases of nepotism, corruption and fraud, decisions have to be made on objective criteria and clear materials and cannot be on the basis of suspicion.
1
5.8 When clear cut materials are placed before the Court, again the plea such as that every reason is not mentioned in the impugned order or counter affidavit being made on piece meal basis etc., would again become hyper technical and will not be countenanced.
Question No. (iii)
Whether these employees are liable to be terminated on the basis that the recruitment is completed after six months from the drawl of the list from the employment exchanges ?

5.9 The other question based on which, the learned Single Judge dismissed the writ petitions is that when the list from the employment exchange was obtained in the year 2019-20, six months period has expired as on date of appointments. In this regard, first, it has to be seen that Rule 149 of the Tamilnadu Co-operative Societies Rules, mandate that the vacancies shall be notified through employment exchange. Even though the list from the employment exchange is obtained and the ultimate appointment orders were only issued after six months and it cannot be said that the list was not utilized or not acted upon within a period of six months. When the list of candidates have been obtained from the employment exchange and it is acted upon and utilized well within the period of six months by calling for applications from the sponsored candidates as well as from open market and all of them having been included in the recruitment process, merely because the recruitment process spills over beyond the period of six months, we are afraid that as a matter of legal principle, we could approve the conclusion of the learned Single Judge that at the stroke of expiry of six months the process will become illegal and once again to be started afresh by calling for names once again.

5.10 The candidates who participate in the selection are expected to posses the educational, age and other qualifications as on a particular date, normally, the date of advertisement. The rule of lapse of list aims at all the candidates who are eligible as on the crucial date of calling for applications and on the rolls of the employment exchange to be put on notice and included in the selection. If only after receipt of the list the same remains unutilized by not calling for applications and if the selection is conducted with reference to any advertisement/eligibility date which is beyond a period of six months, selection cannot proceed on the basis of the earlier list.

5.11 Further, G.O.Ms.No.177, dated 31.07.1985 is an executive order prescribing procedure for recruitment through employment exchange and at best, can only be considered as a guideline. Clause 2(7) of the said G.O reads as follows:-
“2….
(7) The list of candidates sponsored by the Employment Exchange valid for six months only. Any selection of candidates from the list of Employment Exchange should not be made after the expiry of six months from the date of issue of list.”
Thus, it can be seen that it would be applicable if only the selection is straightaway made from the list of guidelines sponsored by employment exchange. Even in respect thereof, G.O.Ms.No.6, dated 23.01.1996 lays down that the guidelines will be applicable only in a case where list is not at all acted upon and where acted upon, the period is sought to be extended. It is essential to extract paragraph No.3 and paragraph No.7 of the said Government Order as hereunder:-
“3. According to the guidelines now followed by the Director of Employment and Training, the following reasons attributed by the Employers are considered as valid for granting extension of the period of validity of lists:-
1. Selection Committee, if there is one could not meet.
2. Matter is pending with Government for a decision / clarification.
3. Matter is pending with Court of Law.”
…
7. The Government also direct that where the employer has finalised the interview or written test or otherwise acted on the list within the validity period of 6 months, in such cases also the validity period of the list may be extended for a further period of 6 months so as to enable the employer to complete the formalities of appointment within the extended period of validity.”
Thus, it can be seen that once the list is acted upon, the period of six months can be extended by a further period of six months. As a matter of fact, by G.O. (Standing) No.30, dated 16.02.2021, the period prescribed as six months is also amended as one year. By the very nature of the Government Orders, it can be seen that it is not a mandatory period of limitation which would invalidate the appointments itself. In any event, it can be seen that the said guidelines are applicable only in respect of the Government departments and are not made applicable to the Co-operative Societies. Thus we answer the question that the selection will not be vitiated merely because it is completed beyond a period of six months from the sponsoring of the list by the employment exchange as the list which is sponsored as been acted upon and utilised.
Question No. (iv) :
On the answers of the above questions (i) to (iii) above, whether the action of the respondents in terminating the services of the appellants justified ?

5.12 With the answers to the questions (i) to (iii) being the legal position in mind, it is necessary to consider the selection of the appellants. At this juncture, we notice that the entire notification, process of selection, publication of results etc., are done separately and differently in respect of each Union and even the allegations that are made differ from one another and as such we are unable to accept the approach of the learned Single Judge in considering all the appointments at the same breadth and therefore, we now proceed to examine the facts in respect of every selection so as to come to the conclusion whether or not the action of the State is justified.

A. Madurai Union :
6. As far as Madurai is concerned, by three notifications dated 19.06.2019 and another notification dated 05.06.2020 applications were invited for various posts and pursuant to the notifications, a total number of 47 persons were appointed to various posts. In this case, a vast majority of the selected candidates are undoubtely a privy to the fraud played for which materials are on record before us which is as follows:

6.1 Out of 43 selected candidates, in respect of a whopping number of 33 candidates their applications were not sent by a registered post or speed post. The condition is clearly and categorically specified in all the advertisements that the applications should only be sent by registered post or speed post. Astonishingly all these candidates would state that they have sent their application in person through their family member or relative. Therefore, this itself demonstrates that while the process was done inviting applications and conducting the examinations, in a corrupt manner, persons were shown as if they are applied by inserting these applications;

6.2 By a strange coincidence, a majority of these selected candidates did not fill up the date in the last page of the application. They also did not fill up the demand draft numbers in their applications. In most of the applications, it is written by a different ink by a different person in the relevant column regarding Demand Draft particulars, stating that “DD enclosed” or by stating that ‘Yes’. It is essential to incorporate one or two images of these applications which would itself adumbrate the patent fraud and corruption.

6.3 This apart the following other fraudulent acts were noted during the 81 enquiry:
Sl. Name Act of Fraud
1 A. Suresh Application not sent by post
Did not fill up the Details of Demand Draft
2 V. Kathik Application not sent by post
Did not fill up the Details of Demand Draft
3 J. Vishnu Application not sent by post
Did not fill up the Details of Demand Draft
4 S. Sathikanth Jadeja Application not sent by post
Did not fill up the Details of Demand Draft
5 P. Subbulakshmi Application not sent by post
Did not fill up the Details of Demand Draft
6 B. Mohan Application not sent by post
Did not fill up the Details of Demand Draft
7 K. Vishwabharathi Application not sent by post
Did not fill up the Details of Demand Draft
8. K. Veerakumar Application not sent by post
Did not fill up the Details of Demand Draft
9 U.S. Irfanyashik Application not sent by post
Did not fill up the Details of Demand Draft
10 M. Sundaragopi Application not sent by post
Did not fill up the Details of Demand Draft
11 A. Diyabharathi Application not sent by post
12 T. Balamurugan Did not possess the Post Graduate Qualification as on 19/06/2019 and he completed PG only in April, 2020
13 Vijisalini Did not possess the 2 Years Diploma in Lab Technician issued by Govt approved institution and was possession only MLT Diplomo of one year duration
14 M. Naveen Application not sent by post
15 M. Paulthambi Application not sent by post
16 S.R. Asmitha Application not sent by post
Did not fill up the Details of Demand Draft
Proper certificates of proof of reservation category not annexed with the application
17 A. Sathiskumar Application not sent by post
18 N. Srilakhsmipraba Application not sent by post
Priority given as Land Acquisition Affected Person inspite of objection by the Certificate Verification committee
19 C. Jeyarani The essential Qualification is Degree with IDD/NDD or PG in Dairy Science/Dairying or B.Tech in Food Technology/Dairy Technology – whereas she possess B.Sc. Home Science and Diploma in Applied Nutrition and Dietics
20 C. Rajapandian Application not sent by post
21 G. Krishnaveni Application not sent by post
Did not fill up the Details of Demand Draft
22 S. Kavitha Application not sent by post
Did not fill up the Details of Demand Draft
23 M.P.Srilakshmi Application not sent by post
Did not fill up the Details of Demand Draft
24 R. Solairaj Application not sent by post
Did not fill up the Details of Demand Draft
25 K. Geethasundari Application not sent by post
Did not fill up the Details of Demand Draft
26 T. Kanchana Application not sent by post
27 T. Ponnuthai Application not sent by post
28 M. Janani Priya Application not sent by post
Did not fill up the Details of Demand Draft

6.4 It is clear from the perusal of the records that after calling for applications, Bharathidasan University, a state owned University, was engaged and it had conducted written examination and had handed over the results, OMR sheets including JPG images of OMR Sheets. The same officer, namely, Janani Soundarya, the then General Manager, AAVIN, who is in charge and who conducted the selection and appointed these persons had personally received it. It is essential to extract the image of the said communication dated 01.12.2020 and 06.02.2021:
None of the OMR sheets or results or particulars are available in the files. Thus, it is clear that after conducting a written examination, simply all the results have been thrown to dust bin, applications were procured from persons whom they want to appoint and have been inserted even without demand drafts or a properly filled up application and they were simply shown as selected and appointed. The entire selection is a result of corruption and nepotism.

6.5 This apart, from the 81 inquiry report and the records, the following other irregularities also come to light:
(a) As per the procedure, to avoid nepotism, applications should be received only by post and they have to be entered in a physical register to show that such application is received, which is not maintained;
(b) The total number of applications is mentioned as 4686 in File No. 018/Admn/I/2019 at page 31 and mentioned as 4959 at page 35;
(c) Eventhough passport size photograph and self addressed envelopes were obtained along with the application, a strange procedure of calling the candidates to the office of the Union and distributing Hall Ticket was resorted to in which hall tickets was issued only to 2599 candidates only eventhough 4686 eligible applications are said to have been received;
(d) Mandatory procedures of proper communal rotation as well as getting prior approval for certain posts were not followed;
(e) The Ink and the handwriting which is used in some of the applications to write “enclosed” “Yes” ‘Fixed’ etc., is exfacie different from the handwriting and ink used to fill up the rest of the applications and suggests that many of these entries are made by a common person;
(f) Some of the applications said to have been made by the selected persons did not fill up the date , for which prominent column is given in the last page of the application;
(g)It could be seen that in respect of the post of SFA, strangely, of 28 persons selected, 9 persons belong to Neeravi and Ramasamipatti in Ramnad district and 8 persons belong to Arupukottai area;
(h) When the then General Manager Janani Soundarya, was called to appear in the 81 inquiry, she did not even bother to appear.

6.6 Thus, as far as the selection for Madurai Union is concerned, it is clear that is not a selection process but criminal conspiracy, cheating, falsification of records and is a result of total, undoubted and egregious fraud. The results of the written examination were willfully burked and thrown away from the files by the officials (‘accused’ would be the proper term), and false records are created as if the selected candidates indeed applied and were successful in the written examination. The facts reveal commission of offenses under Sections 120-B, 420, 465, 466, 471 of Indian Penal Code, read with Section 13(2) of the Prevention of Corruption Act,1988. The only fact which remains to be investigated further is as to what was the nature of extraneous consideration and if it is cash, to whom, when and how it was paid. Everything else is borne out by the records. What shocks the conscience of the court is that inspite of direction by the Learned Single Judge to initiate disciplinary action, nothing is done and the status report filed in this regard says the concerned official was on deputation from ‘foreign service’ and a letter is address to that department for taken action. Just to whitewash the matters, memorandums and charge memorandum have been issued to lower grade officials. While, the Government acted swiftly for one part in en-masse cancelling the appointments, its action in respect of the higher officials whose connivance is writ large in making these illegal appointments and approving the same, are allowed to scot free and they are still on prowl in other posts and departments, perhaps continuing their hunt.

6.7 Thus, in this case, we find that the appeals filed are without any merits and we agree with the ultimate conclusion arrived at by the learned Single Judge. While we also agree with the learned Single Judge that disciplinary action has to be initiated against all concerned, including the highest officials who made the appointments and approved the appointments, we also find that criminal offences are committed in the process as stated supra and therefore, the present General Manager of the District Co-operative Milk Producers Union, Madurai shall forward a complaint to the District Crime Branch, Madurai. All the records which are produced before us including the applications and the original letter of Bharathidhasan University etc., should be properly preserved and safely handed over to the Investigating Agency. As on date, it is represented before us that every other record except the OMR sheets(the hard and soft copies which are handed over by the Bharathidhasan University) are available including the entire set of applications and the original correspondences with the Bharathidhasan University. We strictly hold the present officials responsible for proper maintenance of the records and promptly handing it over to the Investigating Agency.

6.8 In the result, the writ appeals in W.A.(MD)Nos.901 and 905 of 2023 are disposed of on the following terms:
(i) The order impugned in the writ petitions, dated 04.01.2023 in W.P.(MD)Nos.3009 and 988 of 2023, terminating the services of these employees are upheld;
(ii) The order of the learned Single Judge to the extent dismissing the writ petitions in W.P.(MD)Nos.3009 and 988 of 2023 is upheld;
(iii) The directions of the learned Single Judge to take disciplinary actions on all concerned officials is affirmed. A copy of the Order shall be placed before the Chief Secretary to Government of Tamilnadu to co-ordinate with other departments in initiating disciplinary action and framing of proper charges and the proceedings have to be initiated promptly and completed without any delay;
(iv) The General Manager, Madurai District Co-operative Milk Producers Union Limited, Madurai is directed to forward a complaint within 48 hours from the date of receipt of a copy of this order, regarding the malpractices and offences committed in respect of the above recruitment to the District Crime Branch, Madurai based upon which immediately a case shall be registered against all officials involved and investigated in accordance with law. The Investigating Officer shall swiftly investigate the matter and file final report in accordance with law as expeditiously as possible;
(vi) No costs. Consequently, connected miscellaneous petitions are closed.

B. Virudhunagar Union:
7. As far as VRT 1000 Virudhunagar District Co-operative Milk Producers Union, Srivilliputhur is concerned, by four notifications dated 19.06.2019, 13.10.2020, 17.11.2020 and 23.12.2020, applications were invited for 66 vacancies in various posts. Upon allegations of serious irregularities, an enquiry under Section 81 was ordered by the Commissioner of Milk Production and Dairy Development on 01.02.2022, pursuant to which, a detailed enquiry report was submitted on 29.07.2022 based on which, by individual orders dated 04.01.2023, the orders of appointment granted to the various candidates for various posts were cancelled. These candidates were working from their respective dates of joining of the post from the year 2020. Admittedly, no opportunity whatsoever was granted. The allegations which are made to substantiate the case of wholesale egregious fraud and serious irregularities so as to dispense with the principles of natural justice are:
(i) The alleged written examination was conducted by an individual Professor, namely Mr.S.Manivel, Profeesor of Gandhigram University and not by any institution;
(ii) The OMR sheets are not available and were not placed before the selection committee;
(iii) A vast majority of the applications received were rejected and only minimum number of candidates were permitted to write the examination and interview conducted.
(iv) There are procedural irregularities in obtaining sanctions for filling up various posts and the communal rotation as per which, the posts are filled up are not properly followed and there are errors.
(v) In respect of one post, interview was conducted first and written examination was conducted later.
vi In respect of one selected candidate, the application was not received by post.
vii The application registers were not maintained.
viii The certificate verification and short listing was not made by properly constituted committees;

7.1 Since in the counter affidavit as well as in the records, the allegations regarding the conduct of examination etc., were not categorical, by consent of parties, we also impleded Gandigram University as well as Prof.S. Manivel as party respondents. Detailed affidavits are filed by the Professor and all the relevant materials were brought on record.

7.2 Firstly, the allegations that the examination is conducted by one Professor, Manivel in his individual capacity turned out to factually incorrect. As a matter of fact, the communications filed along with the affidavit filed by the said Professor in the Gandhigram University clearly shows that the communication was addressed only to the Gandhigram University to conduct the examination and Professor Manivel was chosen as the person in-charge and therefore it is only the University which conducted the examination. The only error which happened is that when the total bill was claimed, it was paid in the individual name of the Professor without paying it in the name of the University.

7.3 Therefore, we see that the conduct of the examination is not a matter of suspicion. The question papers which are prepared and the particulars of the committee of professors which prepared the question papers were also placed before us.

7.4 The second allegation is regarding that the non-availability of the OMR sheets. In this regard, it is essential to extract paragraph 14 of the counter affidavit filed by the General Manager of the Virudhunagar District Co-operative Milk Producers Union in W.A(MD)No.571 of 2023, which reads as follows:
“14. I humbly submit that though the petitioners claim that written examination was conducted, however, the OMR sheets, which were used in the examination is not made available to authenticate that, indeed, exams were conducted. I further submit that the OMR sheets were never produced before the Selection Committee when interview was conducted for the purpose of comparing the same with the answer sheets, which is a procedure to authenticate the genuineness of the exams and in the absence of the same, the authenticity of the conduct of exams it selfish questionable, which clearly shows that there has been a collusion between the union and the candidates.”

7.5 As a matter of fact, the learned Single Judge also dismissed the writ petitions on a general note that the OMR sheets are not available. However, it so transpired during one of the days of hearing, that is on 25.09.2023, after hearing of the present case was over and adjourned for further hearing and in the midst of hearing of some other case, one of the learned counsel Mr.T.Aswin Rajasimman intervened and mentioned that he and his clients saw the officials of the second respondent Union in the Court corridor carrying the records in a bag and they saw the OMR sheets inside the bag and requested that the same can be checked. Upon such mentioning, through the Court staff, the concerned individuals were called to Court and we found that the answer sheets and the OMR sheets in respect of the Virudhunagar Union was very much available and therefore, we retained the records and what transpired before Court on the date was recorded by us on that date by a specific Order. Therefore, upon verification, we saw that as far as Gandhigram University is concerned, there were question papers and there were answer sheets in which, boxes were provided as against the numbers of each question in which, the candidates were required to manually write the correct answer choice “A, B, C and D”. OMR sheet itself was not used by the said University. Only in respect of two posts, the Gandhigram University expressed its inability to conduct the written examination for want of expertise in the subject. In respect of the said two posts, thereafter, Bharathidhasan University was contacted and they conducted the examination and in the examination conducted by them, they used OMR sheets and the said OMR sheets are also very much available in the records.

7.6 This apart, the officials also during our interaction represented with these OMR sheets/answer sheets were very much produced before the Officer, who conducted enquiry under Section 81 of the Co-operative Societies Act. Therefore, the second allegation that the answer sheets/OMR sheets were not available and were not placed before the selection committee is partially erroneous. All the applications of all the candidates are available, their answer sheets duly signed by the invigilator of a state owned university is available. The marks obtained by the candidate is available. Either in the 81 inquiry or before this Court, the respondents were not able to point out any nepotism or irregularity in the same.

7.7 Unlike Madurai, here it is mentioned that in the enquiry report only one selected candidate’s, application was not sent by post. As far as the allegation regarding an improper committee rejecting the majority of the applications are concerned, firstly, even though in the present case unduly a large number of applications seems to have been rejected, during the course of the hearing, we repeatedly adjourned the matter and requested the learned Additional Advocate General to point out whether atleast one or two applications which are otherwise in order have been rejected. In spite of repeated opportunity the same could not be pointed out before us. Even in the 81 enquiry report, it is not the case of the 81 enquiry officer that any application of of any eligible candidate was wrongfully rejected. The learned Senior counsels appearing on behalf of the appellants also pointed out that in these cases not a single candidate whose application was rejected ever filed any writ petition or even sent a representation complaining about the application being wrongfully rejected. It may be seen that it is partially because these posts require specialised qualifications such as dairy development etc., and by and large candidate who are unqualified have also applied.

7.8 But as on date, whether the applications have been wrongfully rejected or not remains unverified. The matter remains unverified inspite of the assertion that all the applications including the rejected ones are very much available with the respondents. Thus, the said allegation, remains as a suspicion alone. Suspicion how so ever strong cannot take the place of proof. It is seen from the status report filed by the Additional Chief Secretary to Government, Animal Husbandry, Dairying Fisheries and Fisherman Welfare Department that a preliminary enquiry has been registered by the Vigilance and Anti-corruption, Virudhunagar in PE.77/2021/PUB/HQ and the Vigilance wing is blissfully sleeping over the matter and nothing has come out of it.

7.9 The allegations regarding communal rotation is concerned, it is not a case as if no communal rotation at all is followed so as to en-masse reject the selection. However, what is pointed out is an error in applying the rotation of vacancies as per roster in respect of one or two vacancies. Similarly, the other allegations regarding non-obtaining of approval, prior approval etc., point out only the procedural irregularities and does not point towards a case of wholesale malpractice or egregious fraud. Unless any investigation is made and any material is unearthed to the effect that the selectees obtained the appointment through illegal means by nepotism or corruption and when their mark sheets are available, on the materials on hand as on date including the 81 enquiry report, we are only able to see certain procedural irregularities, but however, there is no material so as to make out any objective criteria by which, this Court can satisfy itself that there is wholesale or en-masse fraud in the selection so as to throw out the candidates who were selected for a sanctioned post on a regular basis by following a procedure of open market advertisement, written examination and interview, without any individual inquiry and compliance of principles of natural justice.

7.10 As far as the Virudunagar Union is concerned, there is a selection on record to satisfy the process of recruitment standing the test of Articles 14 and 16 of the Constitution of India and the result of the 81 enquiry and the material so far unearthed by the respondents is not enough to point out any gross illegality or fraud or corruption or nepotism so as to accept the case of the respondents that the services of the employees can be terminated without even a show cause notice. Accordingly, we are constrained to interfere with the orders impugned in the writ petitions as well as the order of the learned Single Judge in respect of the Virudhunagar Union is concerned.

7.11 Accordingly, the Writ Appeals in W.A(MD)Nos.571 to 578, 597, 596, 902 and 1389 of 2023 are disposed of on the following terms:

(i) The individual orders impugned in the writ petitions, in W.P.(MD)Nos.1383 to 1390, 606, 607, 1255 and 709 of 2023, dated 04.01.2023 shall stand quashed and the order of the learned Single Judge dismissing the writ petitions inasmuch as the above writ appeals are concerned are also set aside;
(ii) The appellants/writ petitioners are reinstated into service with all continuity of service and all other benefits except back wages;
(iv) It would be open for the second respondent to issue show cause notices in respect of individual employees, clearly and categorically pointing out, the allegations if any warranting the cancellation of appointment that may be permissible in law and take further action after giving an opportunity to the appellants/writ petitioners to offer their explanation and considering the same in accordance with law;
(v) It would also be open for the second respondent to further conduct such inquiry in the matter in verifying the applications or marks and to gather further information and if any serious irregularities are unearthed, to lodge a criminal complaint for investigation in respect of any suspicion of corruption or malpractice and it would be once again open to the second respondent thereafter to initiate fresh proceedings against the appellants/writ petitioners or any other person who obtained employment through illegal/fraudulent means in accordance with law;
(vi) The directions of the Learned Single to initiate disciplinary proceedings in respect of the irregularities committed by all or any of the officials shall stand affirmed and the same shall be proceeded with;
(vii) This order will not also preclude the respondents in verifying the credentials/educational qualifications and other certificates including the character and antecedents verification and take appropriate action in accordance with law. This Order shall not also preclude the Vigilance and Anti-Corruption Unit, Virudhunagar from proceeding with its enquiry in the manner known to law;
(viii) No costs. Consequently, connected miscellaneous petitions are closed.

C. Tiruchirapalli Union:
8. As far as the Tiruchirapalli District Co-operative Milk Producers Union is concerned, on 22.11.2019, an advertisement was issued inviting applications for various posts and totally, 43 candidates were selected for appointment to various categories. After issuing advertisement, the General Manager of the Union approached the Director of Milk Production and Diary Development by his communication dated 28.06.2015 stating that after calling for applications, since written examination has to be conducted, the Government Universities or Colleges are not forthcoming. To the said communication, a reply was issued by the Director on 02.07.2019 that they can go ahead by conducting examination through Deemed Universities. Though the said letter clearly and categorically states Deemed Universities with ten years of experience in Tamil, it is mentioned as Deemed Universities / Autonomous Universities in English and the same is extracted hereunder:-
“vdnt ghh;it (1)y; fz;Ls;s ,t;tYtyf fojj;jpy; tH’;fpa[s;s tHpKiwfspy; fz;Ls;s epge;jidfspd; go njh;t[ elj;jpl nghJkhd 10 Mz;LfSf;F nkyhd jd;dhl;rp gy;fiyf;fHf’;fs; (Deemed Universities/Autonomous Universities) K:yk; vGj;Jj; njh;tpid elj;JkhW mwpt[Wj;jg;gLfpwJ.”

8.1 However, the General Manager approaches an Autonomous College in the name and style of Mahendra Engineering College which did not even have the required number of ten years of existence. It is stated that the said Mahendra College conducted written examination for the post of Senior Factory Assistant on 10.01.2021 and in respect of the other posts on 20.12.2020. It is further claimed that the certificate verification was conducted for the post of Senior Factory Assistant on 19.02.2021 and in respect of the other posts on 10.02.2021. On the same date, offers of appointment were issued and the candidates joined and are working. Thereafter upon receipt of complaints, the Commissioner of Milk Production and Diary Development ordered an enquiry under Section 81 of the Act on 01.02.2022. On 09.06.2022, the report of the Enquiry Officer was submitted. Thereafter, by his proceedings, dated 28.12.2022, the Commissioner ordered termination of service of the selected candidates and accordingly, consequential orders of termination were issued on 03.01.2023.

8.2 Again, in respect of Tiruchirapalli, we have again scrutinized the materials on record in detail. The said Mahendra College was also impleaded as a party and they filed an affidavit. After considering the pleadings of the parties and the submissions of the learned Counsel for the appellants as well as the learned Additional Advocate General, we find the following irregularities in the selection:

(i) When the circular of the Director of Milk Production and Diary Development to conduct the examinations for direct recruitment only through Government Colleges or Deemed Universities having ten years experience, in blatant violation of the circular, the second respondent namely, the General Manager, Tiruchirapalli Union, had approached a private Autonomous College which does not even have ten years of experience;
(ii) When a total number of 6204 applications have been received in respect of the posts and when the Union has found 3356 candidates were eligible, call letters were sent to 2909 candidates only;
(iii) When 2045 candidates appeared for the written examination, when the advertisement did not stipulate any minimum cut-off mark to become eligible to attend interview, it seems that the minimum cut-off mark has been prescribed and only 903 candidates were treated as eligible to participate in the oral test. Thereafter, further by short listing, 225 candidates were called for the oral test, and 194 candidates appeared for the interview. The Interview Committee is said to have interviewed 137 candidates on the same day by the then General Manager namely, N.Rasikala and the others forming part of the Committee and selection was finalised and appointment orders have been issued on the same day. Absolutely, no facts are borne out in enquiry under Section 81 of the Act, in the statement given by the respective General Managers namely, M.Vadivel and N.Rasikala who succeeded as to when this exercise of shortlisting, fixing of criteria etc., were made. When the learned Single Judge ordered disciplinary action, the respondents themselves have given a clean chit to the aforesaid N.Rasikala and permitted her to retire from service even when they say that the matter is pending with the Vigilance;
(iv) The shocking factor is that the then General Manager and the other officials of the Union state that they received only the result from the said Mahendra College and the OMR sheets were not received by them. The OMR sheets are missing and no conclusive opinion is arrived at till date in this regard.

8.3 In this regard, the stand of Mahendra Engineering College before us by filing an affidavit is that they handed over OMR sheets to the officials along with the result. When we enquired that since it is an OMR sheet whether the soft copies are available as the OMR sheets are scanned for generating results or even if the image is not stored, the soft copies files of the process of generating the result from the OMR sheets, inspite of repeated opportunities, there is no answer at all from the said Mahendra College either in the original affidavit filed by them or in the additional affidavit or in the typed set of papers filed by them and they kept silent. In this regard, a perusal of the statement made by one N.Viswanathan before the Enquiry Officer in the Section 81 enquiry is extracted in toto hereunder:-

“ehd; fle;j 02/06/2000 Kjy; knfe;jpuh ,d;$pdpahp’; fy;Yhupapy; gzpg[hpe;J tUfpwd;/ jpUr;rp khtl;l Tl;Lwt[ ghy; cw;gj;jpahsu;fs; xd;wpak; fle;j 2020 ? 2021 K:yk; 43 mYtyu;fs; & gzpahsu;fs; njh;t[fs; elj;jp mjw;fhd tpdhj;jhs; kw;Wk; gjpy; jhs;fs; jahu; bra;J. nkYk; xt;bthU gzpaplj;jpw;Fk; 3 tpdhj; jhs; kw;Wk; gjpy; jahu; bra;ag;gl;lJ/ tpdhj;jhs; kw;Wk; gjpy; jhs; jahu;bra;J njh;t[ele;j fy;Yhup kw;Wk; gs;spf;F tH’;fpndhk;/ Mtpd; mYtyu;fs; Kd;dpiyapy; nju;t[ elj;Jk; fy;Yhup kw;Wk; gs;sp eph;thfk; v’;fsplk; nfs;tpj;jhs;fs; bgwg;gl;lJ/ tpdhj;jhs; 3 Type jahhpf;fg;gl;lij md;iwa jpdk; njh;t[f;F ve;j tpdhj;jhs; ahu; brhy;yp gad;gLj;jpdhh;fs; vd;gJ gw;wp v’;fSf;F bjhpaJ njh;t[ jpdj;jd;W Mtpd; epu;thfpfs; Kd;dpiyapy; njh;t[ vGjpa tpdhj;jhs;fs; fy;Yhhp kw;Wk; gs;sp eph;thfk; md;iwa jpdk; kjpak; Rkhu; 2/30 kzp mstpy; njh;t[ vGjpa OMR Sheet bgw;nwhk;/
nkYk; tpilj;jhs; ,y;yhky; OMR Sheet-I tpilj;jhs; Mf gad;gLj;Jk; njh;t[fspy; upry;l; vd;gJ njh;t[ mYtyh;fs; ifbaGj;jpl;l midj;J khzth;fspd; kjpg;bgz;jhs; kw;Wk; OMR vd;gJ v’;fs; gy;fiyf;fHf njh;t[fspd; tHf;fk;. mt;tHf;fg;go eh’;fs; kjpg;bgz;jhs; kw;Wk; OMR Sheet Mtpd; jpUr;rp eph;thfj;jpw;F tH’;Fk; nghJ njh;t[fhg;gp (Result Copy) vd;W Fwpg;gpl;oUe;njhk;/ eh’;fs; btWk; kjpg;bgz;jhs; vd;W Fwpg;gplnt ,y;iy/ eh’;fs; vjhh;j;jkhf v’;fs; tHf;fg; go kjpg;bgz; efy; vd;W gad;gLj;jpaij tprhuid mYtyu; OMR Sheet-I tH’;fpdPh;fsh vd;W nfl;gJ v’;fSf;F kdk; tUj;jk; mspf;fpwJ/
Mtpd; jpUr;rp eph;thfk; OMR Sheet-I ifahSk; tpjk; gw;wp ve;j xU bewpKiwa[k; v’;fSf;F tH’;ftpy;iy/ mth;fs; mjd; efy;fis vLj;J gj;jpug;gLj;jp itf;f ntz;Lk; vd;W brhy;yp ,Ue;jhy; eh’;fs; OMR Sheet efy; vLj;J gj;jpukhf itj;J ,Ug;nghk;/ OMR Sheet efy; vLj;Jitg;gJ rl;lg;go Fw;wk; vd;W eh’;fs; epidj;njhk; mjdhy; mij vLj;jitf;ftpy;iy/ Mdhy; kjpg;bgz;gl;oay; efy; cs;sjhy; mjd; efypid ,d;W 30-03-2022 tprhuid mYtyhplk; xg;gilf;fpd;nwhk;/
nkw;Twg;gl;l thf;FK:yk; vd;dhy; brhy;yg;gl;L tprhuid mYtyu; mth;fshy; thf;FK:yk; gjpag;gl;lJ/
goj;J ghh;j;njd;/ rhp/
(xg;gk;)
nkw;Twg;gl;l thf;FK:yk; vd;dhy; gjpag;gl;lJ/
(xg;gk;)
tprhuiz mYtyu;-Jizg; gjpthsu; (ghy;tsk;)
(xg;gk;)”

8.4 A perusal of the above, it can be seen that it is absolutely evasive and height of vagueness. They did not want to say in clear and express terms as to whether handed over the OMR sheets to the officials of the Union and if so to whom and when. As a matter of fact, before the learned Single Judge, it was represented that in view of the efflux of time, the OMR sheets were shredded. The said fact is recorded by the learned Single Judge is extracted hereunder:-
” 50…. The plea taken by the respondents is that though they had sought for the OMR sheets form the college, however, the college had come out with a reply that due to passage of more than two years between the date of conduct of test and the date on which the OMR sheet is solicited, the OMR sheets have been shredded and are not available.”

8.5 Thus, till date, the fate of OMR sheets remains as a mystery as the Mahendra Engineering College does not have any acknowledgment as in the case of Bharathidasan University for handing over the OMR sheets and different stands are being taken at different point of time. Only in this context, the Enquiry Officer, who conducted enquiry under Section 81 of the Act clearly states that in more than one place in his enquiry that in view of the OMR report not being available for verification, he is unable to give a categorical finding as to whether the selection of these candidates is proper or not. Only before us, now the said college has filed an affidavit as if they had handed over the OMR Sheets.

8.6 Enquiry Report also mentions the other irregularities such as improper following of communal rotation in some posts and non-obtaining of approval etc., which are the internal procedural violations. While the OMR sheets are not there, the selection of these 43 candidates could have been on the basis of their marks which they actually obtained in the written examination or it could have been fraudulently done by giving marks to candidates by way of corruption or nepotism. The material on record as on today point out to grave suspicion, but there is no material to conclude or establish that there has been fraud or grave irregularity in appointing these candidates, in the absence of any investigation with regard to the OMR sheets. Inspite of the sheets missing and inspite of the several observations in the Enquiry Report regarding the manner of conduct of interview, the respondents have omitted to lodge any Police complaint and order criminal investigation in the matter. On the other hand, hurriedly, clean chit is given to the person who is in the helm of the affairs of selecting all these persons. Under these circumstances, on the basis of our earlier findings regarding the legal position, we have to hold that only a very grave suspicion lies in the matter of selection in respect of the Tiruchirapalli Union, but, the materials fall short to hold that there has been grave irregularities or fraud or corruption or nepotism so as to send home the employees who have been selected by a process of selection and are working and discharging their duties for more than a year, that too without any notice or opportunity whatsoever. But however it is not impossible to arrive at the truth as to whether these selected candidates came out successful in the written examination or whether the results were cooked up in their favour out of corruption and nepotism.

8.7 In the result, the Writ Appeal Nos.554 to 570, 579 to 595, 777, 778, 833, 834, 1561, 1587 and 1610 of 2023 are partly allowed and are disposed of in the following terms:-

(i) The order of the learned Single Judge, dated 29.03.2023 in W.P.(MD).Nos.512, 515, 505, 516, 506, 528, 529, 531, 511, 541, 538, 534, 525, 507, 540, 509, 504, 501, 503, 526, 510, 523, 539, 542, 519, 432, 517, 532, 527, 514, 520, 524, 513, 530, 533, 502, 518, 537, 521, 536 and 535 of 2023 are set aside inasmuch as it relates to the Trichy District Co-operative Milk Producers Union Limited;
(ii) The corresponding Writ Petitions filed by the appellants / selected candidates of Tiruchirapalli District Co-operative Milk Producers Union Limited stand partly allowed by quashing the orders, dated 28.12.2022 of the first respondent and 03.01.2023 of the second respondent and consequently, the appellants / writ petitioners are directed to be reinstated into service with continuity of service. However, considering the overall facts and circumstances of the case, they will not be entitled to any backwages;
(iv) Since in this case, deliberately, the truth regarding selection and OMR sheets are tried to be distorted by all concerned, we direct the present General Manager of the second respondent Union to forward a complaint to the District Crime Branch, Tiruchirapalli. Upon receipt of the complaint, a case shall be registered and investigation be carried on in respect of OMR sheets as well as all aspects of selection. After the investigation and filing of Final Report, it will be open for the respondents to take a call once again regarding the fate of selection and if the investigation reveals that there is a wholesale fraud or absolute illegality in the selection and appointment of the candidates, they will be at liberty to redo the exercise afresh;
(v) In respect of any other irregularity such as qualification or want of post or communal rotation etc., it would be open for the respondents to issue a show-cause notice to the concerned employee by giving an opportunity of hearing and proceed with the matter in accordance with law;
(vi) There shall be no order as to costs.
(viii) Consequently, connected miscellaneous petitions are closed.

(S.S.S.R.,J.) (D.B.C.,J)
13.10.2023
NCC : Yes / No
Index:Yes/No
Index:Yes/No
sji/klt/grs

To

1.The Commissioner of Milk Production and
Dairy Development Department,
Mathavaram Mill Colony, Chennai-600 051.

2.The General Manager,
Trichy District Co-operativeMilk Producers Union Limited,
Pudukkottai Road, Trichy-620 023.

3.The Deputy Registrar (Dairy),
Trichy District Co-operative Milk Producers Union Limited,
Old Collectorate Office Campus, Trichy-620 001.
S.S.SUNDAR, J.
AND
D.BHARATHA CHAKRAVARTHY,J.

sji

Pre-Delivery Judgement made in
W.A.(MD)Nos.554 to 597 of 2023, 777, 778,
833, 834, 901, 902, 905, 1389,
1561, 1587 and 1610 of 2023
and
C.M.P.(MD)Nos.5528 to 5586, 5599, 5600,
6465, 6468, 6734, 6735, 7127, 7144,
7158, 10866, 10868, 12117,
12320, 12529 and12531 of 2023