Haradhan Rana & Ors. vs State of West Bengal & Ors.

The writ petitioners are employees of Hooghly District Central Cooperative Bank Ltd. They are aggrieved by the fact that the 50-point roster as mentioned in the West Bengal Schedule Caste and Schedule Tribe (Reservation of Vacancies in Services and Post) Act, 1976 has not been followed in the case of a promotion process in the Bank.

The Bank is represented and contends that reservation is required to be followed only in the case of direct recruitment as per Rule 105 of the West Bengal Cooperative Societies Rules, 2011.

It is also submitted that the by-laws of the Bank do not prescribe any reservation in the case of promotion. He further submits that promotion policy of the Bank has been adopted under a bipartite settlement within the meaning of the Industrial Disputes Act, 1947 by and between the Management of the Bank and its employees in which no provision for reservation has been agreed to by the parties in the case of promotion.

Mr. Bhattacharya, learned Senior Counsel appearing on behalf of the petitioner placed reliance to the definition of 'establishment' in the Government public sector and private under Section 2(b) and (c) and (d) of the West Bengal Schedule Caste and Schedule Tribe (Reservation of Vacancies in Services and Post) Act, 1976. By reason of such definition under Section 5 of the said Act, Mr. Bhattacharya submits that the reservation is conceived of even in the case of filling up of vacancies by promotion in the State.

The definition of 'establishment' in public sector under Section 2(c) of the said Act of 1976 is required to be examined and hence, set out hereinbelow:

"2(c). "establishment in public sector" means any industry, trade, business or occupation owned, controlled or managed by -

(i) the State Government or any department of the State Government,

(ii) a Government Company as defined in section 617 of the Companies Act, 1956 or a corporation established by or under a Central or State Act, in which not less than fifty-one per cent of the paid up share capital is held by the State Government,

(iii) a local or statutory authority, constituted under any State Act for the lime being in force."

It is clear from the above that the expression 'establishment' used in the 1976 Act does not and cannot cover a Co- operative Society bank.

Mr. Bhattacharya would next rely upon the third edition of reprint of 2009 of the Advanced Law Lexicon edited by Justice Y. V. Chandrachud.

The definition of 'establishment' contained in the aforesaid Lexicon is set out hereinbelow:

"Establishment in public sector" means an establishment owned, controlled or managed by -

(1) the Government or a department of the Government;

(2) a Government Company as defined in Section 617 of the Companies Act, 1956;

(3) a corporation (including a co-operative society) established by or under a Central, Provincial or State Act, which is owned, controlled or managed by the Government;

(4) a local authority. [Apprentices Act (52 of 1961), S. 2(i)]

"ESTABLISHMENT IN PUBLIC SECTOR" means an establishment owned, controlled or managed by -

(a) Government company as defined in Section 617 of the Companies Act, 1956;

(b) A corporation in which not less than forty percent of its capital is held (whether singly or taken together) by-

(i) The Government, or

(ii) The Reserve Bank of India; or

(iii) A corporation owned by the Government or the Reserve Bank of India. [Payment of Bonus Act (21 of 1965) S. 2(15)]".

The definition of 'establishment' in public sector as referred to in the said Lexicon does not include a Co-operative Society under the W.B.C.S. Act, 2006 or its previous versions.

I have carefully considered the arguments advanced by the parties.

It is now a well settled that a statute cannot be interpreted outside the four corners of its plain and simple meaning. This principle is called the Golden Rule of Interpretation. The relevant statute is the W.B.C.S. Act, 2006 and the W.B.C.S. Rules of 2011 framed thereunder, particularly, Rule 105.

Rule 105 of the 2011 Rules is set out hereinbelow:

"105. Procedure for direct recruitment of staff by co-operative societies-

(1) Subject to the provisions of rule 104A, all co-operative societies shall notify their vacancies, other than those required to be reported to the Co-operative Service Commission, through publication of advertisement at least in one national daily newspaper, and to the Local Employment Exchange or to the Director, National Employment Exchange, as the case may be, and ask for names of suitable candidates in terms of the qualifications required of such candidates.

(2) For selecting the candidates, the selection committee for selection for selection of staff other than Group Defendant staff may hold such test and interview or viva voce tests as it may consider expedient.

..................

(3) All co-operative societies shall maintain the same percentage of vacancies reserved for candidates of scheduled castes, scheduled tribes and other backward classes as may be specified by the State Government by general or special order from time to time.

.................."

It is clear that the W.B.C.S. Act of 2006 prescribes the implementation of the Reservation Policy only in the case of direct recruitment. Reservation is not conceived of or applied in the case of

promotion in a Co-operative Society.

Further, Section 134 of the 2006 Act grants autonomy to Cooperative Credit Society to frame rules inter alia for the purpose of personnel policy and administration. It is under this particular Section that the aforesaid bipartite settlement was entered into by the Bank with its employees. Since the settlement itself confers authority and power and autonomy to a Cooperative Credit Society to frame its own rules, rules of the State Government may not have any application and cannot be enforced upon such Society.

Mr. Bhattacharya next refers to a Memorandum dated 20.08.1990 issued by the Scheduled Caste and Scheduled Tribes Welfare Department of the Govt. of W.B., particularly, sub-para (ii) which is stated as follows:

"(ii) In cases of promotion, the date of occurrence of the vacancy in the promotion-post should be the guiding factor. In other words, vacancies occurring before 27.3.90 should be filled in accordance with the erstwhile 20-point roster and vacancies occurring on or after 27.3.90 should be filled up on the basis of the 50-point roster."

The definition of 'establishment' in public sector as set out hereinabove both under the 1976 Act and as also Lexicon, referred to by Mr. Bhattacharya, do not, in my view, include autonomous Co-operative Societies as conceived of under the Act of 2006.

The petitioners, therefore, cannot seek any benefit or derive any benefit from the 1976 Act which is applicable to employees of the State Government and other Corporations as defined within the meaning of expression 'establishment' under Section 2(c)(d) etc. of the said Act. Allowing such benefit would not only be contrary to the scope and grant of 1976 Act but also 2006 Act. It is not for a court of law to legislate or interpret anything outside the scope of the Act. Even by applying the principle of purposive construction, the benefit sought for by the writ petitioners cannot be allowed to them.

Purposive and other methods of interpretation are applied only when the plain meaning of the statute militates with the objects and purpose of the statute. These are in event secondary modes of interpretation and resorted to in exceptional cases.

Mr. Bhattacharya next relies upon the case of Indra Sawhney & Ors. vs. Union of India & Ors. reported in 1992 Supplementary SCC 217, particularly, paragraphs 819 to 841, wherein it is held by the Hon'ble Supreme Court that State policy must be aimed at achieving and implementing the Directive Principles as contained in Part IV of the Constitution of India.

It is now well settled that the Directive Principles of State policy are in the form of a guidance to the State as well as the Central Government to frame legislation for the purpose of achievement of this socio economic goals in Society.

It is, therefore, a matter within the exclusive realm of the Executive and Legislature of the State Government to adopt a policy decision for permitting reservation in the case of promotion in Co- operative Societies and thereafter amend the relevant statutes in this regard.

The learned senior counsel appearing on behalf of the petitioner in his usual fairness submitted and brought to the notice of the court that the case of Suresh Chand Gautam vs. State of U.P. & Ors. reported in 2016 (11) SCC 113 wherein in paragraphs 45 and 46, the Hon'ble Supreme Court has observed as follows:

"45. To appreciate the relief in its quintessence, it is imperative to clearly understand the ratio laid down in M. Nagaraj. The Constitution Bench while opining that Articles 16(4-A) and 16(4-B) are enabling provisions had observed thus: (SCC p. 227, para 119);

"119. .................. It has been clearly laid down that the State is not bound to make reservation for SCs/STs in matters of promotion. However, if the State wishes to exercise the discretion and make such provision, it has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of with Article 335. The expression of the opinion clearly demonstrates that regard being had to the enabling provisions of Articles 16(4-A) and 16(4-B), the State is not bound to make reservation. It has a discretion to do so and the State's discretion can only be exercised on certain conditions being satisfied.

In Rajesh Kumar Case, after culling out the principles stated in M. Nagaraj the Court has graphically stated that a fresh exercise in accord with the law laid down in M. Nagaraj is a categorical imperative. It has been held that the State can make provisions for reservation in promotion with consequential seniority on certain basis or foundation and conditions precedent have to be satisfied. The Court has declared Section 3(9) of the 1994 Act and Rule 8-A of the 2002 Rules as unconstitutional as no fresh exercise had been undertaken."

This court is of the view that the power of legislation exclusively vests with the second wing of a democratic structure of India namely the legislature. A judiciary in addition to interpreting the law, can at the most guide and indicate areas of necessity with sufficient reasons for the legislature to consider. Any step taken by judiciary beyond this would lead, in my view, judicial overreach.

In view of the above observations, the reliefs prayed for by the petitioners cannot be granted by this court and the writ petition must fail and is hereby dismissed.

This court, however, records appreciation for Mr. Partha Sarathi Bhattacharya, learned Senior Advocate for the assistance rendered by him not only as counsel for the petitioner but also as an Officer of this Court.

There will be no order as to costs.

Urgent certified photostat copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.