Kartar Singh Pathania vs Deputy Registrar and Another

M. Srinivasan, C.J.—This case is governed by the judgment of this Court in C.K. Malhotra v. H.P. State Co-op. Bank and Ors. 1993 (2) Shim. L.C. 243. The contention of the Petitioner is that the writ is directed against the order of Deputy Registrar passed on appeal filed by the Petitioner against the order of the Society terminating his services. It is not in dispute that the appeal is filed under Bye-law 26 of the Service Bye Laws of the Society and the Deputy Registrar was exercising his power under that bye-law. The question has been considered by this Court in C.K. Malhotra''s case and the following ruling has been given:

Consequently, we have no hesitation in holding that the three Societies, namely, the Himachal Pradesh State Co-operative Bank Ltd. The Kangra Central Co-operative Bank Ltd., and the Himachal Pradesh State Co-operative Marketing and Development Federation Ltd., are not ''other authorities'' and, as such, cannot be characterised as ''State'' when the meaning of Article 12 of the Constitution and the same are also not authority within the meaning and for the purpose of Article 226 of the Constitution. Order passed by the Societies under their respective service regulations against its employees, as such, or in connection with employment cannot be corrected by way of writ petitions. The petitions also would not be maintainable in order to challenge the action of the Registrar singe the same is not an exercise of statutory power conferred upon him under the provisions of the Act or the Rules but an exercise of powers by him under service regulations framed under Bye-laws having no force of law. The writ petition also will not be maintainable since none of the three societies are discharging any public functions.

Learned Counsel for the Petitioner contends that the ruling of the Full Bench of this Court in Ajmer Singh v. The Hamirpur Distt. Co-op. Marketing and Consumers Federation Ltd. and Ors. 1995(10 Shim. L.C. 395 . in which the decision of the Supreme Court in Tikaram Vs. Mundikota Shikshan Prasarak Mandal and Others, , has been followed and applied, will govern this case.

In Tika Ram''s case, the Appellant was a Head Master of private school, who was reverted to the post of Assistant Teacher by an order passed by the management. He filed an appeal before the Deputy Director of Education, who allowed it and remanded the case to the management for fresh decision in compliance with the principles of natural justice. A review petition filed by the management before the Deputy Director was rejected and further appeal was filed before the Director of Education, who also rejected the same, but later the Director allowed a review petition filed by the management and set aside the order of the Deputy Director. The Appellant filed a writ petition for quashing the order of the Director on the ground that he had no jurisdiction under the School Code to review his earlier order. The High Court dismissed it holding that the teachers working in the private school could not enforce their right under the school Code, which were not statutory rules. The Supreme Court allowed the appeal filed by the Appellant holding that an Officer of the Government is always amenable to the writ jurisdiction of the Court and that in that case the writ petition was directed against the order passed in quasi-judicial proceedings by the Director though in a case arising under the School Code and since the Director had assumed a jurisdiction to review his own orders not conferred on him, the Appellant was entitled to maintain a petition under Article 226 of the Constitution. Thus, the Supreme Court has given three reasons for holding that the writ petition was maintainable. That judgment of the Supreme Court was referred to by the Full Bench of this Court in Ajmer Singh''s case (1995(1) Shim. L.C. 395. The Full Bench observed as follows:

We may also refer to the decision of the apex Court in Tikaram Vs. Mundikota Shikshan Prasarak Mandal and Others, In that case the Appellant was the Headmaster of a private school and he was reverted to the post of Assistant Teacher by an order passed by the Management. An appeal was filed before the Deputy Director of Education, who allowed it. Subsequently,the Management filed a review petition before the Director of Education,which was allowed. On these facts, the apex Court held that an officer of the Government is always amenable to the writ jurisdiction of the Court and since the writ petition was directed against an order passed by the Director of Education, the Appellant of that case was entitled to maintain the writ petition under Article 226 of the Constitution. In the case in hand also the impugned order was passed by the Administrator appointed by the Registrar under the provisions of the H.P. Co-operative Societies Act and, therefore, the present writ petition is maintainable.

In view of the above legal position, we hold that the present writ petition is maintainable and this Court can issue appropriate writ. We, therefore, need not consider as to whether Respondent No. 1 Co-operative Society is an authority under Article 12 of the Constitution or whether the said authority is discharging public duties in the case in hand.

We may state here that in C.K Malhotra (supra), this aspect of the matter was not considered as there was no such occasion and, therefore, the law laid down by the Division Bench of this Court in the above case need not detain us for deciding the present dispute.

In the case before the Full Bench, the Co-operative Society had been superseded and the Registrar had appointed an Administrator. It cannot be disputed that such supersession of the Society and appointment of the Administrator will fall squarely u/s 37 of the Himachal Pradesh Co-operative Societies Act, 1968. A perusal of the Section shows that the Administrator was appointed by the Registrar. He is fully under the control of the Registrar. Even his remuneration is fixed by the Registrar. Thus the function of the Administrator appointed by the Registrar would be only under the control of the statutory authority, namely, the Registrar. In such cases, it can be said that whatever act was being done by him, it was in the exercise of the powers as such and he would be amenable to the jurisdiction of this Court under Article 226 of the Constitution of India. In fact, the Full Bench did not disapprove of the proposition laid down in C.K. Malhotra''s case. The Full Bench distinguished it by holding that the said question did not arise for consideration in that case and the decision of the Bench in C.K. Malhotra''s case need not detain them in deciding the dispute before them.

We have no hesitation to hold that in the present case the ruling C.K. Malhotra''s case will apply on all fours and consequently, this writ petition is not maintainable. Hence, it is dismissed. There will be no order as to costs.