Gurinder Kumar and Others vs Registrar Co-op. Societies

Amarjeet Chaudhary, J.—Civil Writ Petition Nos. 386, 577, 610, 2203, 6345 and 6346 of 1988 are being disposed of by a common judgment involving common question of law and fact. For the purpose of judgment, reference is being made to C.W.P. No. 386 of 1988.

The petitioners have impugned the selection of respondents No. 10 to 66 as Junior Clerks made in the Sangrur Central Co-operative Bank, Ltd., Sangrur, vide order dated 20.11.1987, copy of which is Annexure P-1 to the writ petition.

The selection has been impugned on various grounds including the one that close relations of the Board of Directors have been given appointments in preference to the petitioners who are higher in merit. No candidate from amongst the reserve categories like Scheduled Caste/Backward Classes and Ex-servicemen has been selected. The appointments have been made against the statutory rules by the respondent-Bank, which is a cooperative Society registered under the provisions of Punjab Co-operative Societies Act, 1961.

Rule 28 of the Punjab Co-operative Societies Rules, 1963, (hereinafter referred to as the Rules) empowers the Registrar, Co-operative Societies to lay down conditions of service of employees of the co-operative Societies. The selections and appointments of respondents No. 10 to 66 have been impugned on the ground that Rule 6(v) of the Rules prohibits the appointment of any relation of a member of the Board of Directors and as per item 4 of Appendix ''B'', the minimum educational qualification for the post of Clerk is Matriculation or equivalent and candidates having experience of work in any field, are given preference.

The official respondents in violation of the Service Rules have given appointments to some other persons.

It was argued that the official nominees i.e. Joint Registrar, Co-operative Societies, Patiala as nominee of the Registrar, Co-operative, Societies, Sangrur and Shri Baldev Singh Malhi, Deputy General Manager, Punjab State Co-operative Bank, Ltd., Chandigarh, did not sign the proceedings of the Selection Committee on the ground that the selection was patently illegal. Proceedings regarding selection of 60 Junior Clerks including respondents No. 10 to 66 were, however, signed by the Managing Director as well as some other members in the new proceedings book. However, in the official proceeding-book, proceedings with regard to selection of 60 Junior Clerks including respondents No. 10 to 66 were also recorded.

It was also argued that election of the Board of Directors of the Sangrur Central Co-operative Bank, took place on 28.3.1994 and three years tenure fixed by virtue of Section 26 of the Punjab Co-operative Societies Act, came to end on 27.3.1987. According to petitioners'' counsel, the proceedings recorded by the Managing Director and other elected members on 26.10.1987 are illegal and without jurisdiction.

Learned counsel for the respondent-Bank has argued that writ petitions against the respondent Bank are not maintainable as disputed questions of facts cannot be gone into in writ jurisdiction. Counsel further argued that the respondent-Bank is not an instrumentality of the State. As such, no writ petition lies against it and the same is liable to be dismissed in view of the decisions of this Court rended in Satish Kumar Vs. Punjab State Co-operative Bank Ltd., Chandigarh and Others, and Pritam Singh Gill v. State of Punjab and Ors. (1982) 84 P.L.R. 530 (F.B.).

Learned Counsel for the petitioners contends that there is no restriction on the power of the Court to interfere if the action of the authority is against law, Rules and Regulations irrespective of the fact whether the statutory body falls within the ambit of the State or not.

Having considered the submissions of the learned counsel for the parties and perusing the case law cited above, I am of the view that these writ petitions deserve to be dismissed, being not maintainable.

In order to determine whether a body is an instrumentality or agency of the Government, the Court has to see whether the authority falls within the meaning of Article 12 of the Constitution of India which has to abide by the provisions of the Constitution. It will be immaterial whether the ''authority'' is created by a statute or has some obligation under the Statute.

In Satish Kumar''s case (supra) the point which came up for consideration before the learned Single Judge of the High Court was whether the Punjab State Cooperative Bank Ltd., Chandigarh was an instrumentality of the State or not. In that case, a District Central Co-operative Bank registered under the Punjab Co-operative Societies Act was not held to be an instrumentality or agency of the Government and therefore was not amenable to writ jurisdiction. The Court had enunciated the following reasons:-

(i) Neither entire nor major share capital was owned by the Government;

(ii) The Government did not spend any money on the working of the Bank;

(iii) The Co-operative Banks did not have monopoly in the sphere of banking business;

(iv) The Government had no control over the day to day working of the banks and did not exercise deep pervasive control over the bank.

(v) Some of the objects of the Bank might be of relative public importance but its primary function is banking which cannot be termed of public importance so as to make it an instrumentality or agency of the State.

(vi) No department of the Government or its working has been transferred to the Bank since its inception.

Consequently, the writ petition was dismissed by the learned Single Judge, being not maintainable.

In Pritam Singh Gill''s case (supra) the controversy cropped up for consideration before the Full Bench of this Court was whether the Punjab State cooperative Land Mortgage Bank registered under Punjab Co-operative Societies Act was amenable to writ jurisdiction if it was instrumentality of State. Satish Kumar''s case (supra) was also discussed in that case. It was clearly held in that case that the Punjab State Co-operative Bank was not an instrumentality or agency of the State Consequently, it could not be deemed to be an ''authority'' within the meaning of Article 12 and as such was not amenable to writ of certiorari.

In Ajmer Singh v. The Registrar Co-operative Societies, Punjab, Chandigarh and Ors. (1981) 83 P.L.R. 433, it was held by the Full Bench that only to the limited extent of the challenge to an order Annexure P-4 as being violative of the provisions of Section 26(1) of the Act, the writ would be maintainable. It was further held that in the writ petition the petitioner was asking for relief not really against the co-operative Society but in regard to the order which was passed by the Registrar who was acting as a statutory authority in the purported exercise of powers conferred on him by the Co-operative Societies Act. The Full Bench had taken a view that the writ petition was maintainable to that extent. However, after answering to the question posed to the Full Bench, the matter was directed to be placed before the Single Bench as the Full Bench was of the view that having settled the basic question of law which had necessitated this reference, the matter could aptly be disposed of by a Single Bench. Accordingly, this matter was placed before the Single Bench and the judgment rendered by it has been referred to in the earlier part of the judgment reported as Satish Kumar''s case (supra). Subsequently, this question was answered by the Full Bench of this Court in Pritam Singh''s Case (Supra).

I am convinced that in view of the preliminary objection raised by the contesting respondents and the law laid down on the subject, the writ petitions are liable to be dismissed being not maintainable.

The petitioners have not been able to pin point any case law contrary to the ones'' referred to by the counsel for the respondents.

The other important aspect of the matter that the petitioners counsel has not brought any material on record to show that the respondent-bank is an instrumentality of the State and it falls within the meaning of Article 12 of the Constitution of India. No other relevant circumstance has been put-forth by the learned counsel which can be helpful in concluding that the respondent-Bank is an instrumentality or agency of Government.

In view of the foregoing discussion, the writ petitions are dismissed being devoid of any merit. However, it will be open to the petitioners to file objections before the Registrar, Co-operative Societies, Punjab, Chandigarh, who shall dispose of the same within six months from the date of its receipt by passing a speaking order in accordance with service rules and law and the delay in filing the objections shall be condoned.

No order as to costs.