Syed Jahanara Begum vs Registrar, Co-operative Societies and Others

D. Biswas, J.—This writ petition invoking powers of this Court under Article 226 of the Constitution has been initiated at the instance of the Petitioner for setting reside appointment of Respondent No. 5 as the Secretary of Guiya Panchayat multifaced Women''s Co-operative Society Ltd. Rangia.

The Petitioner''s case is that in response to an advertisement dated 7.7.1992 issued from the office of the Assistant Registrar, Co-operative Societies, Rangia, she had appeared for interview/selection test on 27.8.1992. He was declared to have secured first position in the merit list published ride Annexure-2, whereas the Respondent No. 5 secured second position, Next to her. But, strangely the Respondent Nos. 1 and 3 appointed Respondent No. 5 to the post of Secretary to the Society ignoring her position in the merit list. It has been further contended that her right under Article 16 has been infringed by the above Act of the Respondents.

Although, the learned Government Advocate received notice on behalf of the Respondents No. 1, 2 and 3 and notices were duly served on Respondent Nos. 4 and 5 by registered post, none of the Respondents preferred to file any affidavit-in-opposition to counter the contents of the writ petition. Since the contents of the writ remains uncontroverted, it has to be presumed that averments made in the petition have been admitted.

Annexure 1 and 2 show that the Petitioner secured the first position in the merit list and she has a right to be considered for appointment to the aforesaid post. Learned Counsel for the Petitioner pleaded that the appointment of Respondent No. 5 has to be set aside in the given context.

Shri Biswajit Goswami, learned Government Advocate submitted that the Guiya Village Panchayat Multifaced Women''s Co-operative Society Ltd. cannot be considered as a State within the meaning of Article 12 of the Constitution and, as such, it is not amenable to the Writ jurisdiction of this Court under Article 226. According to him, until and unless it is shown that a Society is discharging the sovereign functions of the State, this Court may not exercise its powers under Article 226 to grant the relief sought for by the Petitioner in the instant case.

Except Annexure-1 which is a call letter and Annexure-2 the result sheet, the Petitioner has not produced anything on record to show that the, concerned society could be considered as an instrumentality or agency of the State. That apart, there is also no averment whatsoever to show that the post of Secretary in which the Petitioner stakes a claim is a creation of a statute and that the holder of the post discharges the duties of a public nature. The Petitioner has obviously made no effort either to show in any manner that the concerned Co-operative Society is in receipt of financial assistance from the Slate Government or its affairs are regulated by the State Government. There is also no pleading that the post of Secretary for which the writ is to be issued involve delegation of some sovereign functions of the Government either executive, legislative or judicial.

With the above background, I may refer two decisions of this High, Court rendered in Surendra Nath Kalita, Petitioner v. Assam-Cooperative Apex Bank Ltd. and Ors. Respondents reported in 1989 (1) G.L.J. 54 and in Nihar Sengupta, Petitioner v. The Union Territory of Arunachal Pradesh and Ors. Respondents reported in 1989 (1) G.L.J. 111.

In the case of Surendranath (supra) a Division Bench of this High Court held as follows:

In the landmark decision of the Apex Court rendered in Ajay Hasia and Others Vs. Khalid Mujib Sehravardi and Others, the Apex Court expanded the horizon of Article 12 of the Constitution and in doing so it was held that it is immaterial for determining whether a Corporation is an authority within the meaning of Article 12 as to whether the Corporation or such body is created by a statute or under a statute. The enquiry for this purpose has to be confined as to why the said Corporation had been brought into existence. For deciding this question the Court may lift the veil. The Division Bench of this Court in the aforesaid Civil Rule No. 338 of 1979 following the decisions of the Apex Court in Ajay Hasia (supra). Ramana Dayaram Shetty Vs. International Airport Authority of India and Others, and Shom Prakash v. Union of India AIR 1981 S.C. 212 summarised the test to be applied in determining the question as to whether a Corporation or body is an instrumentality of the State or not and the said tests are as follows:

(i) financial resources of the State being the chief funding source;

(ii) functional character being Government in essence;

(iii) plenary control residing in Government;

(iv) Prior history of the same activity having been carried on by the Government and madeover the new boday ;

(v) some element of authority or command.

In Nihar Sengupt (supra), a Division Bench of this High Court mainly lying on the decision of Division Bench in Civil Rule No. 338 of 1979 held follows:

We have scrutinised the provisions of the instant Act 3 of 1979 of Arunachal Pradesh, the entire format of the Act contains the division of chapters on the model of 1949 Act. It would be merely adding to the bulk of the judgment to analyses the same provisions of the Act over again which has been done by this Court with reference to the 1949 Act. We respectfully agree with the reasoning in the judgment of this Court in Civil Rule No. 338 of 1979 disposed of on March 8, 1982 and the decision in Civil Rule 1161/86 on November 14, 1988 and applying the above test have no hesitation to hold in the instant case that the society incorporated is a State within the meaning of Article 12 of the Constitution of India. In that view we are unable to follow the Kerala Full Bench, case. We have followed the tests laid in the case of Tekraj and applied the tests in that case to the Act 3 of 1979 and held a society incorporated under that Act is a State within the meaning of Article 12 of the Constitution.

Since in both the cases i.e. Surendra Nath and Nihar Sengupta, the ratio of Civil Rule No. 338 of 1979 was referred to. It, therefore, necessitates a reference to the ratio laid down in Civil Rule No. 338 of 1979. The Division Bench in that case held as follows:

The date (13.11.80) Ajay Hasia was decided, it had been held by a Division Bench in Som Prukash v. Union of India AIR 1981 SC 212 that Bharat Petroleum Corporation Ltd., a juristic person under the Companies Act. is a ''State'' within the enlarged meaning of Article 12. It was observed that to use the corporate methodology is no to liberate the State from its basic obligations to obey Part III. If the functions of the body are of public importance and closely related to government functions it would be a relevant factor in classifying the corporation as an instrumentality of the State. This aspect was put thus also:

...the public nature of the function, impregnated with governmental character or ''tied or entwined with government'' or fortified by some other additional factor, may render the corporation an instrumentality or agency of the Government....

Emphasis was thus placed on functionality plus State control rather than on the statutory character of the body. It is however known that it is Ramana Dayaram Shetty Vs. International Airport Authority of India and Others, which had cut new rice and had given a new direction to this branch of law. On the basis of this and some other decisions it was held in Som Prakash that the preponderant considerations for pronouncing an entity as State agency or instrumentality are (1) financial resources of the State being v. the chief funding source, (2) functional character being governmental in essence, (3) plenary control residing in Government, (4) prior history'' of the same activity having been carried on by Government and made over to the new body and (5) some element of authority of command.

It would appear that certain tests were contemplated in all the cases discussed above for the purpose of adjudging whether a co-operative society is a ''State'' or not. The Apex Court in Tekraj Vasandi alias K.L. Basandhi Vs. Union of India (UOI) and Others, discussed the matter in details and proceeded to consider as to whether the I.C.P.S. is a ''State'' within the meaning of Article 12 of the Constitution on the basis of the tests made available in Ajay Hasia and Others Vs. Khalid Mujib Sehravardi and Others, and Ramana Dayaram Shetty Vs. International Airport Authority of India and Others, The tests laid down in the International Airport Authority''s case (supra) were approved in Ajay Hasia and Others Vs. Khalid Mujib Sehravardi and Others, it was held as follows:

9,"The tests for determining as to when a corporation can be said to be an instrumentality or agency of Government may now be cull out from the judgment in the International Airport Authority''s case. These tests are not conclusive or clinching, but they are merely indicative indicia which have to be used with care and caution, because while stressing the necessity of a wide meaning to be placed on the expression ''other authorities'', it must be realised that it should not be stretched so far as to bring in every autonomous body which has some nexus with the Government with the sweep of the expression. A wide enlargement of the meaning must be tempered by a wise limitation. We may summarise the relevant tests gathered from the decision in the International Airport Authority''s case as follows:

(1) "one thing is clear that if the entire share capital of the corporation is held by Government it would go a long way towards indicating that the corporation is an instrumentality or agency of Government".

(2) "Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental ''character".

(3) "It may also be a relevant factor...whether the corporation enjoys monopoly status which the state conferred or State protected".

(4) "Existence or deep and pervasive State Control may afford an indication that the corporation is a State agency or instrumentality".

(5) "If the functions of the corporation are of public importance and closely related governmental functions it would be a relevant factor (sic) classifying the corporation as an instrumentality or agency of Government".

(6) "Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference of (sic) corporation being an instrumentality or agency of Government".

The Apex Court in Tekrqj''s case (supra), further held that there cannot (sic) jacket formula to determine the status of an institution and that all (sic) could be satisfied for reaching the conclusion either for or against Constitution to be a ''State''.

Paking the ratio as laid down in Tekraj (supra), it cannot be concluded (sic) of the provisions incorporated in the Assam Act of 1949, giving extensive powers of control and supervision to the Registrar of Co-operation Societies, each and every registered society shall he a ''State'' within the meaning of Article 12 of the Constitution. Such an approach will lead to a situation where a group of persons forming a society for petty purposes like running a fishery and getting it registered under the provisions of the Act of 1949. will also stake a claim that it is an instrumentality or agency of the State. Obviously, this has not been animated by the Legislature. The case of each and every Society will have to be considered after applying the tests as has been laid down in Tekraj (supra),

After a careful consideration of the averments made in this writ petition, I have no hesitation to place on record that no endeavour has been made in the writ petition to take care of this requirement of law, from paragraph 2 of the writ petition, I find that the concerned Society is intended for the well-being of the womenfolk of the locality in particular, and the society in general. Apart from this, there is nothing on record to show other sphere of activities. The area of functioning of the society formed for the well-being of the Womenfolk of a particular village, although registers under the Act of 1949, cannot be accepted as discharging the sovereign functions of the State. That being so, the society, against which the writ is sought to be issued, is not amenable to the jurisdiction of this Court under Article 226. This petition, therefore, has to be dismissed.

In the result, the writ petition is dismissed No order as to costs.