Jharkhand High Court
Keska Rajabhitha Primary Agricultural ... vs State Of Jharkhand on 2 August, 2023
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Subhash Chand
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.68 of 2014
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1. Keska Rajabhitha Primary Agricultural Cooperative
Society [PACS], through its Chairman Md. Abdul Ansari,
son of Md. Abbash Ansari, Resident of Village : Kadaya,
Post Office: Keska, Police Station; Tundi, District :
Dhanbad.
2. Tundi Primary Agricultural Cooperative Society [PACS],
through its Chairman Nand Kishore Savarnkar, S/o Late
Sadanand Sonar, At-Village : Tundi, Post Office : tundi,
Police Station : Tundi, District : Dhanbad.
... ... Appellants/Petitioners
Versus
1. State of Jharkhand, represented through Secretary,
Department of Cooperative, State of Jharkhand, 4th Floor of
Project Building, Dhurwa, Post Office : Dhurwa, Police
Station : Jagarnathpur, Ranchi, Jharkhand.
2. Registrar, Jharkhand Cooperatives Societies, 2nd Floor of
Engineers Hostel No.2, Near Golchakra, Dhurwa, Post
Office : Dhurwa, Police Station : Jagarnathpur, Ranchi,
Jharkhand.
3. Administrator-cum-Deputy Commissioner, the Dhanbad
Central Cooperative Bank Limited, Post Office : Dhanbad,
Police Station : Dhanbad, District : Dhanbad.
4. National Bank for Agriculture and Rural Development,
[NABARD] through its Assistant General Manager,
Karamtoli Road, Opposite : Adivasi College Hostel, Post
Office : Ranchi, Police Station : Ranchi, District : Ranchi,
Jharkhand.
5. The Dhanbad Central Cooperative Bank Ltd., Dhanbad
(Jharkhand) represented by its Managing Director, Post
Office & Police Station : Dhanbad, District : Dhanbad.
6. Fazal Karim, Manager
7. Kamlesh Kuamr, Manager
8. Kamal Kishore Nag, Assistant Manager
9. Pramod Kumar, Assistant Manager
10. Manohar Lal, Assistant Manager
11. Mirtunjaya Sah, Assistant Manager
12. Sujit Kumar, Assistant Manager
13. Tribhuvan Prasad Singh, Assistant Manager
14. Rajiv Kumar Singh, Assistant Manager
15. Ram Kumar Singh, Assistant Manager
2
16. Nilesh Kumar Verma, Assistant Manager
17. Kamlesh Kumar Pandey, Assistant Manager
18. Pushkar Bhagat, Assistant Manager
19. Smriti Kumari, Assistant Manager
20. Akhchaya Raghubanshi, Bank Assistant
21. Ashit Anupam Anand, Bank Assistant
22. Ramesh Das, Bank Assistant
23. Chandan Kumar Paswan, Bank Assistant
24. Deleted
25. Pravin Kumar, Bank Assistant
26. Deleted
Respondent Nos. 6 to 26 all sons of not known to
the appellants, all resident of C/o Managing
Director, Dhanbad Central Cooperative Bank
Limited, Post Office : Dhanbad [GPO], Police Station
: Dhanbad, District : Dhanbad.
27. Prakash Ranjan Pathak
28. Jitendra Kumar Viswakarma
Both sons of not known to the appellants, all
resident of C/o Managing Director, Dhanbad
Central Cooperative Bank Limited, Post Office :
Dhanbad [GPO], Police Station : Dhanbad, District :
Dhanbad.
... ... Respondents/Respondents
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CORAM :HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
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For the Appellants : Mr. V.P.Singh, Senior Advocate
Mr. Arpit Kumar, Advocate
Mr. Kumar Nishant, Advocate
For the respondents : Mrs. Vandana Singh, Advocate
For the Resp. No.5 : Mr. Krishna Murari, Advocate
For the Resp. Nos. : Mrs. Aparajita Bhardwaj, Advocate
6 to 9, 11,12,13, 20, Mr. Kushal Kumar, Advocate
23, 27 & 28
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C.A.V. on 11.07.2023 Pronounced on 02.08.2023
Per Sujit Narayan Prasad, J.
The instant appeal preferred under Clause 10 of the Letters Patent is directed against the order/judgment dated 3 26.11.2013 passed by learned Single Judge of this Court in W.P.(S) No.6214 of 2012 and batch cases by which the writ petitions have been dismissed by holding therein that the Registrar acting on behalf of the State Government has the power to issue the impugned advertisement.
2. The brief facts of the case, as per the pleadings made in the writ proceeding, which are required to be enumerated, reads hereunder as :-
2.1 The appellants are Short Term Cooperative Credit Societies registered under Cooperative Societies Act, 1935 and is being governed by the Jharkhand Cooperative Societies Act, 1935 as also by the Jharkhand Cooperative Societies Rules, 1959. It is also governed, inter alia by its own registered Bye-Laws duly registered under the Office of Registrar, Cooperative Societies, Department of Cooperation, Ranchi, Jharkhand.
2.2 The appellants have their own respective General Bodies which consists of all its share-holder having share in the Society / PACS and the said General Bodies happen to be the highest body in so far as taking, inter alia, policy decisions pertaining to the respective Society / PACS.
2.3 In order to manage the affairs of the aforesaid societies the respective General Bodies of the appellants elect and constitute Managing Committees by a process of 4 election held in accordance with the provisions of the Act, Rules and its Bye-laws.
2.4 The Short Term Cooperative Credit Structure Societies in the State of Bihar are classified under three tier system, inter alia, in terms of their area of operation and are inter connected with each other in the following manner:-
(i) In the 1st tier the Primary Cooperative Societies which function at the grass root village level having an area of operation covering about 2/3 'Gram Panchayats' or part thereof.
(ii) In the 2nd tier the Cooperative Credit Societies which are referred to as the Central / Intermediate level Societies, exist one in each District and function at the district level having its area of operation covering the entire District and have the status of Cooperative Banks known as the District Central Cooperative Banks. The Central Societies, i.e. the District Central Cooperative Banks are in turn affiliated to the Apex Societies of the State which happens to be the State Cooperative Bank falling in the 3rd tier.
(iii) In the 3rd tier the Cooperative Credit Society in the form of the State Cooperative Bank which happens to be the Apex Societies of the State having an area of operation covering the entire State. It has a General Body of its own which is its Policy Making Body and which consists of all 5 Central Societies within the State which are its Share Holder / Members and are affiliated to it.
2.5 The Dhanbad Central Cooperative Bank Limited, Dhanbad is a Short Term Cooperative Credit Society and it also functions as a Cooperative Bank, under the Banking Licence issued to it by the Reserve Bank of India. The appellant Nos.1 and 2 are the Shareholders of the Dhanbad Central Cooperative Bank Ltd. Dhanbad, and by virtue of the same, are members of its General Body.
2.6 The representatives of the appellant No.1 & 2 and the representative of other similar Primary Cooperative Societies within the District of Dhanbad, happen to be the Share Holder of the DCC Bank, Dhanbad and together by a process of election, legally constitute the Managing Committee of the DCC Bank, Dhanbad which in turn is responsible for managing the affairs of the said Bank. 2.7 The State Government machinery which is responsible for holding election for constitution of a new Managing Committee after the term of the outgoing Managing Committee ends, willfully defaulted in holding such election and consequently the democratic management of DCC Bank superseded after 31st December 2006 and it still continues to be under supersession. In similar situations, the District Central Cooperative Banks in other District of the State have been put under 6 supersession and the machinery of the State Government willfully is not discharging its duty to organize election in order to constitute and restore democratically elected Managing Committees rather, on the contrary, are governing the Institutions by proxy through Administrators, who are Government Officers, having little time to spare for the growth of the Cooperative Society.
2.8 The last Managing Committee of the DCC Bank, Dhanbad completed its 3 years term in office on 31.03.2006 and since no elections were held thereafter for constitution of a new Managing Committee, hence an Administrator was appointed to manage the day to day affairs of the Bank by the then Registrar vide his Memo No.9 dated 04.01.2007.
2.9 The Registrar, Cooperative Societies issued Letters as contained in Memo No.579 dated 26.03.2011 and Memo No.2709 / Ranchi dated 13.12.2011, whereby he has specified that in view of the recommendations of the "Vaidianathan Committee" it is the Managing Committee of the Cooperative Society which is competent to prepare and implement Human Resources Policy for itself and is also competent under Section 44 AV (2) (iv) of the Amended Act to take decisions with regard to Personnel Policy, Staffing, recruitment, posting and compensation to staff. 7 2.10 It is the case of the appellants that the Cooperative Societies have fully been empowered as the only authority competent to take appropriate decisions in the matters pertaining to determining Human Resources Policy and in matters pertaining to recruitments, etc. in their respective Cooperative Societies but despite the same and in utter violation to the said legal provisions, the Registrar, Cooperative Societies acting on behalf of the Government of Jharkhand, Department of Cooperative has got published an advertisement in Hindi Daily Newspaper "Dainik Jagaran" in the edition published on 23.09.2012 inviting online applications for direct recruitment on various posts in all the eight Districts Central Cooperative Banks within the State of Jharkhand, including the Dhanbad Central Cooperative Bank Limited, Dhanbad as also in the newly formed the Jharkhand State Cooperative Bank which has started functioning from the 1st of September 2012. 2.11 Being aggrieved with publication of advertisement, writ petition was filed which has been dismissed against which the present appeal has been preferred.
3. It appears from the pleading made hereinabove that the petitioners are Short Term Cooperative Credit Society registered under the Cooperative Societies Act and are governed by the Jharkhand Cooperative Societies Act, 1935 and the Rules framed thereunder. The petitioners have 8 their own Byelaws and they have their own respective General Bodies which take policy decisions. 3.1 The Short Term Cooperative Credit Societies operate in three tiers. The 1st tier being Primary Cooperative Societies function at the grass root village level. The 2nd tier refers to the Central/Intermediate Level Societies which exist in each District and have the status of Cooperative Banks known as the District Central Cooperative Banks. The District Central Cooperative Banks are affiliated to the State Cooperative Bank which is the Apex Society in the State and which is the 3rd tier, in the Short Term Cooperative Credit Structure Societies. 3.2 The Dhanbad Central Cooperative Bank Limited, Dhanbad is a Short Term Cooperative Credit Society and it also functions as a Cooperative Bank under a banking licence issued by the Reserve Bank of India. The Dhanbad Central Cooperative Bank is a District Level Intermediate/Central Society. The appellants of this case, namely, Keska Rajabhitha Primary Agricultural Cooperative Society [PACS] and the Tundi Primary Agricultural Cooperative Society [PACS], the appellant nos. 1 and 2 in W. P. (S) No. 6214 of 2012 are the shareholders of the Dhanbad Central Cooperative Bank Limited and they are the members of its General Body. The Managing Committee 9 of the Dhanbad Central Cooperative Bank, Dhanbad completed its three years' term on 31.03.2006. 3.3 Since no election was held thereafter, it was superseded on 31.12.2006 and an Administrator was appointed by order dated 04.01.2007. An advertisement was issued by the Registrar, Cooperative Societies on 23.09.2012 inviting online applications for appointment on various posts. The said advertisement was challenged by filing writ petition being W.P.(S) No.6214 of 2012 along with other writ petitions questioning the authority of the Registrar in issuance of the advertisement for fulfilling the posts.
3.4 Counter affidavit has been filed by the Respondent Nos. 1 and 2 inter alia stating therein that the State is empowered to set the recruitment process in motion. The stand has been taken that in the last 25 - 30 years, the Management of the Bank never took any step for regular appointment and all the appointments made were back door appointments. The stand has also been taken that the Registrar was having the authority to function on behalf of the State and having the jurisdiction to fill up the post and in that view of the matter, if the advertisement was issued, it cannot be said that the Registrar was having no jurisdiction.
103.5 The learned Single Judge, on consideration of the facts, has dismissed the writ petition by holding therein that the action taken by the Registrar will be construed to be taken on behalf of the State and, as such, the advertisement will be said to have been issued by the State Government, which is the subject matter of the instant appeal.
4. Mr. V.P.Singh, learned senior counsel, assisted by Mr. Arpit Kumar, has submitted that the learned Single Judge has not appreciated the provision as contained under Section 44 AV (2)(iv) of the Jharkhand Cooperative Societies (Amendment) Act, 2011 and Article 243 ZL of the Constitution of India read with Rule 7 of the Service Rules for the Staff of the Central Cooperative Banks wherein it has been provided that the Registrar acting on behalf of the State Government has no power to initiate the process of recruitment for appointment on various posts in the Cooperative Bank.
4.1 It has further been submitted that the learned Single Judge has also not appreciated the letter dated 23/26.11.2005 issued under the signature of the Secretary, Department of Cooperative to contend that the power of the Administrator is confined to routine works in the Bank. 11 4.2 The learned senior counsel, on the aforesaid premise, has challenged the order passed by the learned Single Judge.
5. Per contra, Mrs. Vandana Singh, learned counsel appearing for the respondent State, has defended the impugned order by taking the plea that the Managing Committee of the Bank was superseded after 31.12.2006 and therefore, the Government had power and jurisdiction to make appointment on various posts in the Bank. 5.1 Learned counsel, in the aforesaid premise, has contended that the order passed by the learned Single Judge requires no interference.
6. Learned counsel for the newly impleaded respondents, appointees in terms of the advertisement, has defended the order passed by the learned Single Judge and in addition to the aforesaid argument, the further argument has been advanced that the newly impleaded respondents since have been appointed in terms of the advertisement after following the procedure laid down under Article 14 and 16 of the Constitution of India and even if the Registrar was having no power on the day when the advertisement was issued which can only be said to be an irregularity and not illegal appointment since the respondents have been appointed on the sanctioned posts having eligibility and 12 after following the procedure as laid down under Article 14 and 16 of the Constitution of India.
6.1 It has further been contended that the respondents have already rendered about more than 8 years of service and, as such, at this juncture, their services may not be dispensed with otherwise for no fault of their own they will be made to suffer.
7. The matter was heard on various occasions and it has been pointed out by making reference of the provision of Sub-Section (6) of Section 14 of the Jharkhand Cooperative Societies Act, 1935 wherein the statutory mandate is that the election is to be conducted within the period of six months from the date of appointment of Administrator. The State was granted time to seek instruction on the legal position as also the implication of the 97th Amendment of the Constitution of India. 7.1 The affidavits have been filed by the State of Jharkhand wherein the fact about the statutory mandate of conducting election as per the provision of Section 14(6) of the Act, 1935 has not been disputed. However, learned counsel for the State has submitted that even accepting that the Registrar was having no jurisdiction on the day when the advertisement was issued, the appointment so made in terms of the advertisement cannot be said to be improper since the newly impleaded respondents, 13 appointees in terms of the advertisement, have been appointed after following due procedure as laid down under Article 14 and 16 of the Constitution of India and they are working since last more than 8 years.
8. We have heard learned counsel for the parties, perused the documents available on record as also the finding recorded by the learned Single Judge in the impugned order.
9. The issues required to be considered by this Court are :-
(i) As to whether the functioning of the Administrator beyond the period of six months without any order of extension can be said to be justified?
(ii) Whether the Registrar of the Cooperative Societies acting on behalf of the State Government has power to issue advertisement for filling up the posts?
(iii) Whether the appointment of the newly impleaded respondents can be said to be improper?
10. This Court is now proceeding to answer the aforesaid issues one by one.
11. The admitted fact herein is that the Cooperative Societies, due to non-conducting the election of the Cooperative Societies, the Body was dissolved by the State Government with effect from 31.12.2006 and vide order dated 04.01.2007 the Administrator was appointed. 14 11.1 The Registrar has taken decision of issuance of advertisement dated 23.09.2012 by which online applications were invited for fulfilling the post through direct recruitment.
11.2 The learned Single Judge, however, has passed an interim order staying the further proceeding in respect of the aforesaid advertisement, as would appear from order dated 01.11.2012. In pursuance to the aforesaid order, the respondents have restrained themselves to proceed further in process of selection. However, when the writ petition was dismissed, then the process of selection was proceeded. 11.3 The intra-court appeal has been filed on 18.02.2014 against the order passed by the learned Single Judge dated 26.11.2013 along with interlocutory application being I.A. No.1353 of 2014 for stay of that advertisement. However, no order was passed on the aforesaid interlocutory application, rather, the same has been rendered to be infructuous, since, in the meanwhile the process of selection has already been concluded and offer of appointment had been issued in favour of the newly impleaded respondents.
11.4 The appellants, thereafter, has filed a fresh interlocutory application being I.A. No.3437 of 2014 and I.A. No.4967 of 2014 seeking therein amendment to be made in the writ petition by addition of the prayer 15 regarding the appointments made in favour of the appointees as also for their impleadment as party respondents.
11.5 The aforesaid interlocutory application was allowed vide order dated 04.02.2020 by which the private respondents have been impleaded and the appointment letters have been made part of the prayer of the Letters Patent Appeal.
11.6 Notices have been issued upon the newly impleaded respondents and in terms thereof, they have appeared through their counsel.
ISSUE NO. (i) As to whether the functioning of the Administrator beyond the period of six months without any order of extension can be said to be justified?
12. Although this is not the issue, as would be evident from the pleading made in the writ petition, however, the issue has been framed but not answered by the learned Single Judge as would appear from the impugned order and, as such, this Court deems it fit and proper to answer the said issue and accordingly a separate issue has been framed as Issue No.(i).
12.1 Section 14 of the Cooperative Societies Act provides for a Managing Committee and Section 14(3) lays down powers and functions of an officer deputed in the registered society. Sub-Section (6) of Section 14 provides that the Administrator so appointed under Sub-Section (5) shall 16 hold the election within six months from the date of his appointment, provided that the State Government, in special circumstances, after recording the reasons in writing, may extend the period from time to time but not exceeding six months at a time, over and above the prescribed period, for ready reference Section 14(6)(a) is being quoted herein which reads hereunder as:-
"14. (6)(a) The Administrator so appointed under sub-section (5) shall hold the elections within six months of his appointment: Provided that the State Government, in special circumstances, after recording the reasons in writing, may extend the period from time to time, but not exceeding six months at a time over and above the prescribed period."
12.2 It is, thus, evident that Section 14(6)(a) stipulates that the Administrator so appointed in view of provision of sub-section (5) shall hold the elections within six months of his appointment and in special circumstances, after recording the reasons in writing, the State Government may extend the period from time to time, but not exceeding six months at a time over and above the prescribed period. 12.3 Admittedly herein, the Administrator was appointed on supersession of the Managing Committee on 04.01.2007 and, as such, in view of the provision as contained under Section 14(6)(a) the maximum period of an Administrator to act as an Administrator will be for a period of six months 17 from the date of his appointment, however, the same could have been extended in view of the proviso thereto from time to time but not exceeding six month at a time over and above the prescribed period.
12.4 Although the issue of Section 14(6) was not raised before the learned Single Judge, rather, it has been raised for the first time in the intra-court appeal stage. 12.5 However, the same being the pure legal question, therefore, this Court has entertained and the opportunity was also provided to the learned State counsel to address the Court on the issue regarding the jurisdiction of the Administrator during whose administrative control the advertisement has been issued under the seal and signature of the Registrar for making appointment, even though the term of the Administrator has not been extended after completion of the period of 12 months, which is maximum as per the provision of Section 14(6) of the Act, 1935.
12.6 The law is well settled that the legal position if not raised at the original stage, the same can well be considered at the appellate stage or at any stage being the pure legal question as has been held by Hon'ble Apex Court in the case of Tarini Kamal Pandit v. Prafulla Kumar Chatterjee, reported in (1979) 3 SCC 280 at paragraph 14 which reads hereunder as :-
18
14. Before we conclude we will shortly refer to the question of law raised by Mr L.N. Sinha on behalf of the defendant. He submitted that as the title in the property vested in the defendant by confirmation of the court sale and later by a registered conveyance, the plaintiffs cannot seek relief on the unregistered agreement Ext. 4 as conveying any title to them. This point was not taken in any of the courts below but learned counsel submitted that because it is a pure question of law not involving any investigation of facts and as it goes to the root of the matter the court may permit the point to be taken. In support of his contention that a pure question of law in the circumstances can be taken for the first time in this Court he relied on the decisions of this Court in Yeswant Deorao Deshmukh v. Walchand Ramchand Kothari [1950 SCC 766], Raja Sri Sailendra Narayan Bhanja Deo v. State of Orissa [AIR 1956 SC 346] , Seth Badri Prasad v. Seth Nagarmal [AIR 1959 SC 559], State of Uttar Pradesh v. Anand Swarup [(1974) 1 SCC 42] and T.G. Appanda Mudaliar v. State of Madras [(1976) 4 SCC 821] . As the point raised is a pure question of law not involving any investigation of the facts, we permitted the learned counsel to raise the question.
12.7 Further, in the case of M.J. Exporters (P) Ltd. v.
Union of India & Ors., reported in (2021) 13 SCC 543 the Hon'ble Apex Court has observed that a question of law could be allowed to be raised even if it was not raised in the court, for ready reference, paragraph 12 of the aforesaid judgment is being referred herein which reads hereunder as:-
"12. No doubt, if the question of law raised in the final court is a pure question of law and there is no 19 controversy on facts, which are already on record, and on the basis of those facts, the question of law can be determined in the interest of justice, such a question of law could be allowed to be raised even if it was not raised in the court."
12.8 Herein, the admitted position is that as per the provision of Section 14(6)(a) of the Act, 1935, the Administrator cannot be said to have jurisdiction to exercise the power of Administrator beyond the period of six months unless the State Government would have passed order for extending the period from time to time. But no such document has been brought on record by the State extending the period of Administrator to function as an Administrator of the Cooperative Society. 12.9 The statute since provides the provision of stopgap arrangement in case of any exigency by appointing Administrator to be appointed by the State Government and when the period has been fixed therein the intent is very much clear that the Cooperative Society may not be allowed to run by way of stopgap arrangement, rather, there must be permanent arrangement so that the Cooperative Society may run smoothly.
13. It is relevant to refer herein section 41 which stipulates provision for dissolution of Managing Committee. As per Sub-Section (3) thereof, in a case when a Managing Committee is dissolved under Sub-Section (1), the Registrar shall appoint Administrator with such remuneration, for 20 ready reference Section 41(1) and Section 41(3) are being quoted hereunder as :-
41. Dissolution of Managing Committee. - (1) If, in the opinion of the Registrar, the Managing Committee of any registered society is mismanaging the affairs of the registered society or has failed to sufficiently improve the affairs of the registered society or is persistently making default or is negligent in the performance of the duties imposed on it by this Act, the Rules or the bye-laws, he may, by order in writing after giving the Managing Committee an opportunity to state its objections, if any, dissolve the Managing Committee for any period not exceeding six months and order that all or any of its members shall be disqualified from being elected to the Managing Committee of the registered society for a period to be specified in the order not exceeding three years: Provided that the Registrar, in special circumstances, by recording the reasons in writing and with the prior approval of the State Government, shall extend the period of dissolution for such further period as may be considered necessary by the State Government. Every order of the Registrar under this sub-section shall state the reasons for which it is made and shall be communicated by registered post to the registered society concerned.
(2) ... ... ...
(3) When a Managing Committee is dissolved under sub-section (1), the Registrar shall appoint an Administrator on such remuneration, if any, as he may fix, to carry on the business of the society, and the Administrator, shall subject to any direction issued by the Registrar from time to time, exercise all the powers and perform all the duties which may under this Act, the rules and the bye-laws, be exercised or performed by the Managing Committee or any officer of the registered society: Provided that 21 the Registrar shall have the power to change the Administrator during the period of dissolution. 13.1 It also requires to refer herein the letter of the Secretary, dated 23/26.11.2005 wherein the Administrator, if appointed after dissolution of the Society, he is authorized only to do routine works. The relevant extract of the aforesaid letter is quoted herein which reads hereunder as :-
"
(क) क क क क क
क कक एक ए
क क
क क क क
क क ए क क गठ क क
(ख) कक क कक ग
, एक क , /
क , ए क क ग
क क क
क क कए कक
क "
13.2 The law is well settled that if a decision is to be
taken as per the statutory command, there cannot be any deviation as has been held by Hon'ble Apex Court in the case of State of Uttar Pradesh v. Singhara Singh and Ors., AIR (1964) SC 358, wherein it has been held at paragraph 8 as under:-
25. "....its result is that if a statute has conferred a power to do an act and has laid down the method in which that power 22 has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted...."
13.3 In the case of Babu Verghese and Ors. v. Bar Council of Kerala and Ors., (1999) 3 SCC 422, wherein it has been held at paragraphs 31 & 32 as under:
"31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor which was followed by Lord Roche in Nazir Ahmad v. King Emperor who stated as under:
"Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all."
32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of V.P. and again in Deep Chand v. State of Rajasthan. These cases were considered by a three-judge bench of this Court in State of U.P. v. Singhara Singh and the rule laid down in Nazir Ahmad case was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognized as a statutory principle of administrative law." 13.4 In the case of Commissioner of Income Tax, Mumbai v. Anjum M.H. Ghaswala & Ors., reported in (2002) 1 SCC 633, wherein it has been held at paragraph 27 as under:
"..... it is a normal rule of consideration that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself...."
13.5 In the given facts of the case, there is no denial of the fact that under the provision of Section 41(3) read with 23 Section 41 (1) that on dissolution of the Managing Committee, the Registrar can appoint an Administrator for looking after the business of the Cooperative Society. Herein, in view of the provision as contained under Sub- Section (3) of Section 41, the Administrator had been appointed on dissolution of the Managing Committee due to the completion of three years term of the Managing Committee on 31.03.2006.
13.6 The provision of Section 14(6) mandates that the Administrator so appointed under the provision of Sub- Section (3) of the Section 41 will be for a maximum period of six months subject to extension by the State Government from time to time but not exceeding six months at a time over and above the prescribed period, meaning thereby, the maximum period of Administrator after extension if given by the State Government will be for a period one year. 13.7 However, Section 14(6) of the Act, 1935 has been deleted by the successor State of Bihar vide the Amendment Act of 2002.
13.8 This Court has asked the learned State counsel to seek instruction as to whether the Act, 1935 has been adopted with deletion of the said provision, the submission has been made that the said Act has been adopted without any deletion, since, thereafter the Jharkhand Co-operative 24 Societies (Amendment) Act, 2011 has come and, as such, it requires to refer herein the para materia provision as that of Section 14(6) of the Act, 1935 as contained under Section 13(a) of the amended Act, 2011 wherein it has been provided that - "the election to the managing committee of a Short Term Co-operative Credit Structure Society shall be conducted before the expiry of term of the existing managing committee and in case of supersession of managing committee of such society, the election shall be conducted within two months from the date of supersession. Provided that in circumstances beyond control, the State Government may allow holding of such elections within a period not exceeding six months from the date of supersession."
13.9 Herein, the Administrator has been allowed to function even beyond the period of six months without any extension in this regard by the State Government, rather, he has been allowed to function even beyond the period of one year. The functioning of the Administrator beyond the mandate of Section 14(6), according to our considered view, cannot be said to be proper.
13.10 Since Section 14(6) of the Act, 1935 or Section 13(a) of the amended Act, 2011 had not been brought to the notice of the learned Single Judge, therefore, the 25 implication of the aforesaid provision could not be made. But the same, since is the legal position, therefore, this Court has considered based upon the principle laid down by Hon'ble Apex Court and in view thereof, this Court is of the view that the continuation of the Administrator beyond the period of six months is in the teeth of the provision of Section 14(6) of the Act, 1935.
14. Accordingly, the Issue No.(i) is hereby answered. ISSUE No.(ii) - Whether the Registrar of the Cooperative Societies acting on behalf of the State Government has power to issue advertisement for filling up the posts?
15. The issue with respect to the power of Registrar of the Cooperative Societies in issuance of advertisement has been answered in affirmative by the learned Single Judge in the impugned order, as would appear from the ultimate paragraph thereof.
15.1 However, the learned senior counsel has all along argued that the power of Administrator is not there to issue advertisement but that is not the case of the appellant as would appear from the pleading in the writ petition since the advertisement which was under challenge before the writ court was issued only by the Registrar, Cooperative Society and not by the Administrator.
16. The answer of this issue will have impact upon the Issue No.(iii). If the Issue No.(ii) will be answered in favour of 26 the appellant, then certainly the propriety of the appointment which has been made in pursuance to the advertisement issued by the Registrar, Cooperative Societies, requires consideration as to whether it is proper or improper due to want of jurisdiction. Therefore, the Issue No.(ii) is being discussed first hereinbelow.
17. The contention which has been raised by the learned senior counsel that there cannot be any interference in the internal affairs of the cooperative society by the State and, as such, during the period when the management of the society was dissolved, the only requirement was to hold election for an elected body but the Registrar has issued advertisement for making appointment in order to fill up the sanctioned posts. But the learned senior counsel has failed to draw attention of any law in this regard to the effect that there cannot be any interference by the State during the period when the management of the society is dissolved. 17.1 This Court further is of the view that merely because election was not conducted within the statutory period, the issuance of advertisement by the Registrar, functionary of the State Government, will be said to be without jurisdiction. No claim has been made by the society, the appellant, in the writ petition for seeking a direction for conducting election. The society was in operation during the 27 public duty and in order to fill up the sanctioned post advertisement was issued by the Registrar taking into consideration the requirement of engagement. 17.2 This Court has posed a pinpointed query upon the learned counsel appearing for the appellant as to whether any statutory mandate is there which prohibits the functionary of the State Government to make any appointment during the period with the managing committee of the society has been dissolved. 17.3 Learned senior counsel was fair enough to submit that there is no statutory provision, however, he has made reference of 97th amendment of the Constitution of India. 17.4 This Court, in view of the fact that as per the submission that there is no statutory provision save and except the Bar has been created by virtue of 97th amendment, therefore, deems it fit and proper to deal with the 97th amendment of the Constitution of India wherein the principle for amending the Constitution to put a restriction upon the State in interfering with the affairs of the society. 17.5 But the 97th amendment was questioned before the Hon'ble Apex Court in the case of Union Of India v. Rajendra N Shah and Another reported in 2021 SCC OnLine 474 wherein the Hon'ble Apex Court, by virtue of 28 the majority of 2 : 1 has been pleased to hold that so far as the issue of interference is concerned, the same has not been said to be improper but the consideration has been given regarding the issue of cooperative societies which are under the control of the State Government. The Hon'ble Apex Court has considered the nature of the cooperative society and by holding therein that Part IX B of the Constitution of India is operative only insofar as it concerns the Multi-State Cooperative Societies both within the various States and in Union Territory of India. But, so far as the cooperative societies run under the State Government, has not been approved due to want of ratification by the State Legislature as required under Article 368(2) of the Constitution of India, the relevant paragraph of the said judgment is being referred hereunder as :-
"67. The aforesaid analysis of Part IXB of the Constitution leads to the result that though Article 246(3) and Entry 32, List II of the 7th Schedule have not been „changed‟ in letter, yet the impact upon the aforesaid articles cannot be said to be insignificant. On the contrary, it is clear that by curtailing the width of Entry 32, List II of the 7th Schedule, Part IXB seeks to effect a significant change in Article 246(3) read with Entry 32 List II of the 7th Schedule inasmuch as the State's exclusive power to make laws with regard to the subject of co-operative societies is significantly curtailed thereby directly impacting the quasi-federal principle contained therein. Quite clearly, therefore, Part IXB, insofar as it applies to co-operative societies which operate within a State, would therefore require 29 ratification under both sub-clauses (b) and (c) of the proviso to Article 368(2) of the Constitution of India.
72. Shri Venugopal then argued that 17 out of 28 States had enacted legislations incorporating provisions of Part IXB, and that, therefore, they had impliedly accepted the restrictions laid down in the said Part. This argument need not detain us inasmuch as the procedure laid down in Article 368(2) proviso requires ratification of legislatures of one half of the States by resolutions to that effect. This has admittedly not been done in the present case. Also, the argument that no State has come forward to challenge the 97th Constitution Amendment does not take the matter any further. When a citizen of India challenges a constitutional amendment as being procedurally infirm, it is the duty of the court to examine such challenge on merits as the Constitution of India is a national charter of governance affecting persons, citizens and institutions alike.
74. We now come to an important argument made by Shri Venugopal that even if it be held that Part IXB is constitutionally infirm qua cooperative societies operating within a State, it would yet operate qua multi- State co-operative societies and in Union territories which are not States.
78. It is clear, therefore, that the Scheme qua multi- State cooperative societies is separate from the Scheme dealing with "other cooperative societies", Parliament being empowered, so far as multi-State cooperative societies are concerned, and the State legislatures having to make appropriate laws laying down certain matters so far as "other cooperative societies" are concerned. The effect of Article 246ZR is as if multi- State co-operative societies are separately dealt with in a separate sub-chapter contained within Part IXB, as is correctly contended by the learned Attorney General. Also, there is no doubt that after severance what 30 survives can and does stand independently and is workable. It was faintly suggested by learned counsel for the Respondents that the consequence of this Court holding that the Constitution 97th Amendment Act is void for want of ratification would render the entire amendment still-born, as a result of which no part of the amendment can survive. We reject this argument for two reasons. If the doctrine of severability were not to apply for the afore-stated reason, then the majority judgment in Kihoto Hollohan (supra) would be incorrect. This very reasoning would then render the entire Constitution 52nd Amendment, which inserted the Tenth Schedule to the Constitution of India, constitutionally infirm as then the entirety of the amendment would have to be declared void for want of ratification, which would be in the teeth of the majority judgment in Kihoto Hollohan (supra). Further, on this reasoning, the amendments made in Article 19 and the addition of Article 43B would also have to be struck down, which was not pleaded or argued before either the High Court or before us. This being the case, we declare that Part IXB of the Constitution of India is operative insofar as multi-State co-operative societies are concerned."
17.6 It is, thus, evident from the aforesaid judgment of the Hon'ble Apex Court, the issue of interference, as the contention has been raised on behalf of the appellant, that the State functionary has got no jurisdiction to interfere in pursuance to the 97th amendment, is the only basis to make such submission.
17.7 There is no law in this regard and that is the reason the amendment so warranted in the Constitution of India. Since part of the issue of interference of the State in the 31 affairs of the cooperative society under the Cooperative Society Department is concerned, the issue of autonomy of the cooperative society as per the mandate of the 97 th amendment has been held to be invalid due to want of required ratification and, hence, the argument that there cannot be any interference of the State in the internal affairs of the cooperative society in absence of statutory mandate or the constitutional mandate is having no substance. 17.8 Further no rule has also been formulated by the State and hence the argument of questioning the jurisdiction of Registrar, Cooperative Society in issuance of advertisement, according to our considered view, is also having no substance.
18. Accordingly, the Issue No.(ii) is answered against the appellant and accordingly the finding so recorded by the learned Single Judge in the impugned order is hereby held to be good law.
ISSUE No.(iii) Whether the appointment of the newly impleaded respondents can be said to be improper?
19. Since the issue No.(ii) has been answered upholding the view of the learned Single Judge regarding the jurisdiction of the Registrar who has issued the advertisement to be within the jurisdiction and, as such, the appointment as has been made in pursuance to the 32 advertisement issued by the Registrar, Cooperative Society cannot be said to suffer from any illegality due to want of jurisdiction.
20. Accordingly, the issue No.(iii) is also answered.
21. In the result, the appeal stands dismissed.
22. Interlocutory application, if any, also stands disposed of.
I agree (Sujit Narayan Prasad, J.)
(Subhash Chand, J.) (Subhash Chand, J.)
Birendra/ A.F.R.