S.P. Chandrakar vs State Of Chhattisgarh
- Court
- Supreme Court
REPORTABLE
2026 INSC 769
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. __________________ OF 2026
(Arising out of SLP (C.) No. 8726 of 2024)
S. P. CHANDRAKAR ….. APPELLANT(S)
VERSUS
STATE OF CHHATTISGARH & ORS. ... RESPONDENT(S)
J U D G M E N T
SANJAY KAROL, J.
Leave Granted.
2. The appellant is aggrieved by the judgment and final order dated
02.02.2024 passed by the learned Division Bench of the High Court of
Chhattisgarh, Bilaspur in Writ Appeal No. 338 of 2023, which affirmed the
judgment of the learned Single 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
promoted on a notional basis vice him.
Signature Not Verified
Digitally signed by
RAJNI MUKHI
Date: 2026.07.30
16:27:53 IST
Reason:
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,
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1
Raipur . 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
2
(Employment, Terms and their Working Conditions) Rules, 1982 that have been
brought in by virtue of Section 55 of the Chhattisgarh Cooperative Societies Act,
3
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 included after making an application for correction,
but respondent no. 5 (Kishor Bagh) was aggrieved by the placement of the
appellant in the gradation list. In the seniority list published on 06.11.2008 for the
year 2007-08, the appellant was mentioned at Serial No. 1 and respondent no. 5
was mentioned at Serial No. 2. Aggrieved, respondent no. 5 challenged the
placement of the appellant in the gradation list. Then, when it came to the post of
Additional Manager, the appellant was placed on that list so was respondent no.
5. The objection of respondent no. 5 qua the appellant is that the appellant’s
original appointment was on a technical post (Assistant Engineer) and the post of
Additional Manager is a non-technical/administrative post and as such, in view
of Niyam 5(3)(a) of the Rules 1982, the appellant could not have been promoted.
When the list of eligible candidates was published on 01.12.2010, the appellant
was at serial no. 1 and respondent no. 5 was at serial no. 2. A further representation
was made on 6th May 2010 by respondent no. 5 making the case as above.
Another representation was made by technical employees, including the
appellant, seeking to delete the bar in Rule 5(3)(a), and on 13.08.2010, the
1
DCCBL
2
Rules 1982
3
Act, 1960
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Additional Registrar issued a circular stating the rule was deleted. Despite
respondent no. 5's objections, the Registrar Cooperative Societies issued
directions to the Chief Executive Officer of DCCBL to proceed as per the
amendment. The appellant was promoted to the position of Additional Manager,
pursuant to the Departmental Promotion Committee recommendation dated 20th
December 2010 vide promotion order dated 30th December 2010.
Challenging the promotion of the appellant, respondent no.5 filed the writ
petition. The learned Single Judge quashed the promotion of the appellant,
thirteen years after he was placed on the said post. The Division Bench, in terms
of the impugned judgment found no fault with the findings of the learned Single
Judge and as such confirmed the same. The reasoning thereof is given in Para 14
and two judgments of this Court ( Punjab Water Supply & Sewerage Board v.
4 5
Ranjodh Singh , Union of India v. Ashok Kumar Aggarwal , have been referred
to in Para 15 & 16, to the effect that executive instructions cannot prevail over
statutory rules and constitutional provisions. Para 14 is 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
पंजीयक द्वारा आदेशित
letter the word " ” 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 submitted along with the writ petition as well
as in the writ appeal only talks about the necessity and requirement of
amendment in Niyam 5(3)(a), but there is no any proceeding drawn in
pursuant to the said note sheet to amend Niyam 5(3)(a) of the Niyam, 1982.
There is no such document placed on record to show that the competent
authority has exercised its power conferred under Section 55(1) of the
4
(2007) 2 SCC 491
5
(2013) 16 SCC 147)
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Act,1960. Since the Niyam, 1982 is having statutory force and is
legislative in character, it cannot be amended by an executive order. ”
5. We are thus called upon by the appellant, to examine the correctness of
these concurrent findings.
6. We have heard learned counsel for the appellant and the Additional
Advocate General for the State, as also the counsel appearing for other parties.
In effect, what we have been asked to decide is whether the amendment as
apparently communicated by the Registrar, has been so made in accordance with
law or not. The unamended position in Rules 1982 is as follows:
“5. Terms and Conditions of Employment and Procedure-
(One) No person shall be eligible for appointment to any post in the Bank
unless he possesses the qualifications prescribed under Rule 49 A of the
Chhattisgarh Co-operative Society Rules, 1962 or under any other rules
for the time being in force –
Qualifications
(Two) If the minimum qualifications are not prescribed in the Chhattisgarh
Cooperative Society Rules for the time being in force, then no person shall
be eligible for appointment to the following posts, unless he possesses the
qualifications shown against the posts –
(Three)
(a) – Such employees who have been appointed in the service of the Bank
for any special technical work or service shall not be appointed or absorbed
in posts with work different from the work of the original post.
(b) If the technical work/service, for which purpose the employee has been
appointed, is discontinued or the post created for such special work in the
Bank is no longer required, then the employee working on such post may
be separated from service.
(c) – Notwithstanding anything contained in this service rule or the by-
laws of the Bank, such an employee shall not be regularized in the service
of the Bank, whose appointment has not been made in accordance with the
service rules of the Bank or the procedures 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
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No./Credit-1/C.B/05/3260, Raipur Dt. 4.7.05 ::
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, Cooperative Societies (All),
Chhatisgarh.
2. Managing Director, C.G State Cooperative Banks Maryadit,
Raipur.
3. Chief Executive Officer, District Cooperative Central Bank
Maryadit (All) C.G
4. In-charge Auditor, District Cooperative Central Bank, Maryadit
(All), C.G) Raipur.
Sd/-illegible
(Subrat Sahu)
Registrar, Cooperative Societies,
Chhatisgarh”
”
8. The position after the Notification of the Additional Registrar is
as follows:
“ OFFICE OF REGISTRAR, COOPERATIVE
SOCIETIES, CHHATISGARH
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th
No./Credit/10/3672/ Raipur Dt. 13 August, 2010
To,
The Chief Executive Officer
District Cooperative Central Bank, Maiyadit
All (Chhatisgarh)
Sub; Regarding amendment in Service Rules for
Technical Employees.
000
The technical staffs working in District Co-operative Central Banks
despite being qualified personnel are not receiving the benefit of
promotion even after many years of services. In this regard attention of
this Office was drawn and upon serious consideration, Clause No. 5 (3) (a)
of the prevailing service rules for the employees of the Co-operative
Central Bank is hereby deleted.
In this way, the technical employees working in the Bank shall also
be eligible for promotion to the post and pay scale higher than their post
and pay scale as per rules.
Therefore, appropriate proceedings be carried out as per the rules.
(Ordered by Registrar)
Sd/-illegible
Addl. Registrar
Co-operative Societies,
Chhattisgarh
”
(emphasis supplied)
9. At this stage, Section 55(1) and 95(3) of the Act, 1960 become
important, and the same are as under:
“ 55. Registrar’s power to determine conditions of employment in
societies . (1) The Registrar may, from time to time, frame rules governing
the terms and conditions of employment in a society or class of societies
and the society or class of societies to which such terms and conditions of
employment are applicable shall comply with the order that may be issued
by the Registrar in this behalf.
95. Power to make rules -
…
(3) All rules made under this Act shall be laid on the table of Legislative
Assembly.”
(emphasis supplied)
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10. The stand of the Registrar, as can be understood, is that, by virtue of Section
55 (1) of the Chhattisgarh 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 conditions (if any), to add
to, amend, vary or rescind any notifications, orders, rules or bye-laws
so issued.”
Another argument that is raised is that the Act provides for the Registrar to
exercise the power under Section 55, but in the present case the deletion of the
rule has been done by the Additional Registrar. The Act also provides for the
appointment of Additional Registrars, Joint Registrars, etc for the assistance of
the Registrar. There is no bar on the delegation of functions which are provided
under the Act. In that view of the matter, the communication by the Additional
Registrar that is purported to be done in furtherance of the order of the Registrar
cannot be said to be an incorrect exercise of power since it explicitly states,
‘ordered by Registrar’. Still further, it is a matter of record that the State has not
disputed the position that the purported amendment to the rules was done under
the orders of the Registrar. The Courts below have not accepted this for the reason
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that although documents had been placed on record before the learned Single
Judge demonstrating the necessity of the amendment, no formal order by the
competent authority showing such exercise of power, was appended to the record,
but in view of the position being uncontroverted by the State that the order had
been passed under the powers of the Registrar, we have no hesitation in accepting
the same.
11. It is clear from Section 95(3) that all rules made under this Act have to be
tabled before the legislative assembly. The word used is ‘ shall ’. However, the
Section does not provide any consequence of non-tabling of such rules. This latter
part cannot be disputed.
12. In the ordinary sense, ‘ shall ’ is obligatory and ‘ may ’ is directory, but that is
not a universal rule. In certain contexts, ‘ shall ’ can also be directory. In such a
situation, the interpretation of the word ‘ shall ’ is what will determine the validity
of these Rules.
6
12.1 A Constitution Bench in State of U.P. v. Manbodhan Lal Srivastava
while interpreting the word ‘ shall ’ as used in Article 320 of the Constitution
of India speaking through B.P. Sinha J. as he then was, held thus:
“12…. Hence, the use of the word “shall” in a statute, though
generally taken in a mandatory sense, does not necessarily mean
that in every 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
6
(1957) 2 SCC 759
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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.…””
7
12.2 In State of U.P. v. Babu Ram Upadhya , 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. in para 28 referred to
various authorities and concluded in para 29 as follows:
“ 29. The relevant rules of interpretation may be briefly stated thus:
When a statute uses the word “shall”, prima facie, it is mandatory,
but the Court may ascertain the real intention of the legislature by
carefully attending to the whole scope of the statute. For
ascertaining the real intention of the Legislature the Court may
consider, inter alia, the nature and the design of the statute, and the
consequences which would follow from construing it the one way
or the other, the impact of other provisions whereby the necessity
of complying with the provisions in question is avoided, the
circumstance, namely, that the statute provides for a contingency
of the non-compliance with the provisions, the fact that the non-
compliance with the provisions is or is not visited by some penalty,
the serious or trivial consequences that flow therefrom, and, above
all, whether the object of the legislation will be defeated or
furthered. ”
8
12.3 A Constitution Bench in Bhikraj Jaipuria v. Union of India while
referring to Maxwell on Interpretation of Statutes, observed as follows:
“16. … Where a statute requires that a thing shall be done in the
prescribed manner or form but does not set out the consequences
of non-compliance, the question whether the provision was
mandatory or directory has to be adjudged in the light of the
intention of the legislature as disclosed by the object, purpose and
scope of the statute. If the statute is mandatory, the thing done not
in the manner or form prescribed can have no effect or validity : if
it is directory, penalty may be incurred for non-compliance, but the
act or thing done is regarded as good. As observed in Maxwell on
Interpretation of Statutes , 10th Edn., p. 376:
“It has been said that no rule can be laid down for
determining whether the command is to be considered as
a mere direction or instruction involving no invalidating
consequence in its disregard, or as imperative, with an
7
1960 SCC OnLine SC 5
8
1961 SCC OnLine SC 34
C.A.No… of 2026 @ SLP©No.8726 of 2024 Page 9 of 14
implied nullification for disobedience, beyond the
fundamental one that it depends on the scope and object
of the enactment. It may perhaps be found generally
correct to say that nullification is the natural and usual
consequence of disobedience, but the question is in the
main governed by considerations of convenience and
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
prejudice ’ to the public or to the Government.
9
13.1 In Atlas Cycle Industries Ltd. v. State of Haryana , a three-judge
Bench while considering the issue of the non-laying of a control order
before the Houses of Parliament observed as under:
“ 21. Now, the policy and object underlying the provisions relating
to laying the delegated legislation made by the subordinate law
making authorities or orders passed by subordinate executive
instrumentalities before both Houses of Parliament being to keep
supervision and control over the aforesaid authorities and
instrumentalities, the “laying clauses” assume different forms
depending on the degree of control which the Legislature may like
to exercise. As evident from the observations made at pp. 305 to
9
(1979) 2 SCC 196
C.A.No… of 2026 @ SLP©No.8726 of 2024 Page 10 of 14
307 of the 7th Edn. of Craies on Statute Law and noticed with
approval in Hukam Chand v. Union of India [(1972) 2 SCC 601 :
AIR 1972 SC 2427 : (1973) 1 SCR 896] there are three kinds of
laying which are generally used by the Legislature. These three
kinds of laying are described and dealt with in Craies on Statute
Law as under:
“( i ) Laying without further procedure,
( ii ) Laying subject to negative resolution,
( iii ) Laying subject to affirmative resolution.
( i ) Simple laying .—The most obvious example is in Section 10(2)
of the 1946 Act. In earlier days, before the idea of laying in draft
had been introduced, there was a provision for laying rules etc.
for a period during which time they were not in operation and
could be thrown out without ever having come into operation
(compare Merchant Shipping Act, 1894, Section 417; Inebriates
Act, 1898, Section 21) but this is not used now.
( ii ) Negative resolution .—Instruments so laid have immediate
operative effect but are subject to annulment within forty days
without prejudice to a new instrument being made. The
phraseology generally used is “subject to annulment in pursuance
of a resolution of either House of Parliament”. This is by far the
commonest form of laying. It acts mostly as a deterrent and
sometimes forces a Minister (in Sir Cecil Carr's phrase) to “buy
off opposition” by promising some modification.
( iii ) Affirmative resolution .—The phraseology here is normally
no order shall be made unless a draft has been laid before
Parliament and has been approved by a resolution of each 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
10
Karnataka , 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.
10
(2011) 9 SCC 1
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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 Pradesh Co-operative Societies Act, 1960, from which the
Chhattisgarh Act was adopted, has an identically worded provision which has
been interpreted by this Court as clearly being directory and only for the purposes
of information in view of Atlas Cycle supra and State of M.P. v. Hukum Chand
11
Mills Karamchari
15. Here, briefly we may address another argument. It is trite in law that
executive instructions cannot override statutory requirements. The original writ
petitioner (Respondent No. 5, Kishor Bagh) alleges that the order of the Registrar
sidesteps the statute. We don’t accept this argument because the Act itself provides
the Registrar with the power to regulate service conditions. Once the power exists
and it is clear that this particular power has been exercised, the style under which
it was exercised would not denude or weaken the authority enabling it to exercise
such power. Reference can be made to Kiran Devi v. Bihar State Sunni Wakf
12
Board wherein the Court, relied on the earlier decision in Municipal Corpn. of
13
Ahmedabad v. Ben Hiraben Manilal including a judgment of the Constitution
14
Bench in Hukumchand Mills Ltd. v. State of M.P. to hold as under:
“23. We find merit in the argument raised by Mr Sanyal that the
nomenclature of the title of the petition filed before the High Court is
immaterial. In Municipal Corpn. of Ahmedabad v. Ben Hiraben
Manilal [ Municipal Corpn. of Ahmedabad v. Ben Hiraben Manilal ,
(1983) 2 SCC 422] , this Court held that wrong reference to the power
under which an action was taken by the Government would not per se
vitiate the action, if the same could be justified under some other power
whereby the Government could lawfully do that act. The Court held as
under : (SCC p. 427, para 5)
11
(1996) 7 SCC 81.
12
(2021) 15 SCC 15
13
(1983) 2 SCC 422
14
1964 SCC OnLine SC 89
C.A.No… of 2026 @ SLP©No.8726 of 2024 Page 12 of 14
“ 5 . … It is well settled that the exercise of a power, if there
is indeed a power, will be referable to a jurisdiction, when
the validity of the exercise of that power is in issue, which
confers validity upon it and not to a jurisdiction under
which it would be nugatory, though the section was not
referred, and a different or a wrong section of different
provisions was mentioned. (See in this connection the
observations in Pitamber Vajirshet v. Dhondu
Navlapa [ Pitamber Vajirshet v. Dhondu Navlapa , 1887
SCC OnLine Bom 2 : ILR (1888) 12 Bom 486 at 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 to be set aside, given that it was granted based on a
valid exercise of power. It is a position of law that a person should be entitled to
sit back, considering that his promotion, effected a long time ago, would not be
disturbed after passage of considerable time. In this case, although the challenge
had been filed by Kishor Bagh right after the promotion was granted, on account
of judicial pendency, it was thirteen years before the learned Single Judge finally
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decided the question. It appears from the record that for this time, he had
continued to function on said post. The necessary consequence of the conclusion
recorded by us is that the appellant shall (a) be placed on the said position and
status from which he was removed; (b) his seniority shall be protected; (c) entitled
to all benefits of promotion that may have fallen due as per law; and (d) he shall
also be entitled to 50% back wages payable within two months from the date of
this judgment, failing which an interest @6% per annum shall be paid.
1 7. The appeal is allowed in the aforesaid terms. Pending application(s), if any,
shall stand disposed of. No costs.
…………………………………….J
(SANJAY KAROL)
………………………………….….J
(AUGUSTINE GEORGE MASIH)
New Delhi;
July 30, 2026
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