Gauhati High Court
Lakhi Ram Bora And 22 Ors vs State Of Assam And Ors on 25 April, 2019
Equivalent citations: AIRONLINE 2019 GAU 120
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/32
GAHC010244842012
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 2556/2012
1:LAKHI RAM BORA and 22 ORS.
S/O SRI BHULA RAM BORA, R/O HEMARBARI, P.O. JAJARI, DIST- NAGAON,
ASSAM
2: SURJYA KR. DEKA
S/O LATE RATI KT. DEKA
R/O PANJABARI
GUWAHATI
ASSAM
3: NIRU BARUAH
D/O LT. NITYANANDA BARUAH
R/O JAJI MARANGAON
P.O. MARAN CHIGA
DIST- SIVASAGAR
ASSAM
4: ARUN CH. BAISHYA
S/O LATE SONARAM BAISHYA
R/O SOALKUCHI
DIST- KAMRUP
ASSAM
5: NALINI KANTA RAY CHOUDHARY
S/O LATE AKHA RAM ROY
R/O NIZSARIHA
P.O. BAMUNKUCHI
DIST- NAGAON
ASSAM
6: MINATI DAS
D/O LT. HARMOHAN DAS
R/O BHATIPARA
P.O. SUALKUCHI
Page No.# 2/32
DIST- KAMRUP
ASSAM
7: TRIBENI BORA
D/O LATE AMULLYA CH. BORO
R/O ULUBARI KACHARI BASTI
DIST- KAMRUP
ASSAM
8: MINU PRASAD SARMAH
S/O LATE RUKMAGAT SARMAH
R/O BHATUKUWA TILARA KAULARUKHA
P.O. RIDI BAZAR
DIST- NAGAON
GULMI
WEST NAPAL
9: JITEN RABHA
S/O LATE AKILA RABHA
R/O NIZARAPAR CHANDMARI
DIST- KAMRUP
GUWAHATI
ASSAM
10: BHABEN RAJBANGSHI
S/O JALITIRAM RAJBANGSHI
R/O BALABANGAON
P.O. BANGARAM
DIST- NALBARI
ASSAM
11: PHATICK CH. KALITA
S/O LT. RATIRAM KALITA
R/O KETIKIBARI
P.O. BARAMBOI
DIST- KAMRUP
ASSAM
12: GOBINDA DEKA
S/O LATE HALAB DEKA
R/O BAMA
P.O. KARARA
DIST- KAMRUP
ASSAM
13: KHANINDRA PHUKAN
S/O LATE RAMA KT. PHUKAN
R/O LAOKHAWA ROAD
Page No.# 3/32
PRAFULLA SAIKIA PATH
P.O. HAIBARGAON
DIST- NAGAON
ASSAM
14: TANKESWAR BARMAN
S/O LATE BIHURAM BARMAN
R/O BALIKARIA
P.O. BALIKARIA
DIST- NALBARI
ASSAM
15: GOLAK CH. DAS
S/O LT. RAMCHARAN DAS
R/O GARIGAON
P.O. GUWAHATI
DIST- KAMRUP
ASSAM
16: SHITAL CHAKRAVARTY
S/O LT. DHIREN CHAKRAVARTY
R/O JARAGURI
P.O. JARAGURI
DERGAON
DIST- GOLAGHAT
17: JYOTISH CH. TAMULI
S/O LATE RATHI KT. TAMULI
R/O TAMULISUBA
P.O. SARTHEBARI
DIST- BARPETA
ASSAM
18: KIRAN BALA DAS
D/O LATE PUSPA RAM DAS
R/O GANESH NAGAR
BASISTHA
GUWAHATI
ASSAM
19: KAMALA KT. SAIKIA
S/O LATE UTSAB CH. SAIKIA
R/O VILL and P.O. SUBDARDIA PACHIMHATI
DIST- BARPETA
ASSAM
20: H. K. DAS
S/O LATE GIRIDHARI DAS
Page No.# 4/32
R/O NOONMATI
H.N. 14
NEW S.B.I
GUWAHATI
ASSAM
21: RAJANI KT. TALUKDAR
S/O LT. BHAGI RAM TALUKDAR
R/O BARKULHATI
P.O. KALAG
DIST- NALBARI
ASSAM
22: KALINDRA KR. DEKA
S/O LATE RAJENDRA NATH DEKA
R/O PAIKARKUCHI
P.O. SONDHA
P.S. NALBARI
DIST- NALBARI
ASSAM
23: CHAKRADHAR DEKA
S/O LT. RAMESHWAR KOCH
R/O BHUKTABRI
P.O. SIPAJHAR
DIST- DARRAN
VERSUS
1:STATE OF ASSAM and ORS.
REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM
CO-OPERATIVE DEPARTMENT, DISPUR, GHY-6
2:THE REGISTRAR OF CO-OPERATIVE SOCIETIES
KHANAPARA
GUWAHATI
ASSAM
3:THE ASSAM STATE CO-OPERATIVE UNION
REPRESENTED BY THE CHAIRMAN
ASSAM STATE CO-OPERATIVE UNION
DR. B. BAROOAH ROAD
GHY-7
DIST- KAMRUP
ASSAM
4:THE CHIEF EXECUTIVE OFFICER
ASSAM STATE CO-OPERATIVE UNION
Page No.# 5/32
DR. B. BAROOAH ROAD
GHY-7
DIST- KAMRUP
ASSA
Advocate for the Petitioner : MS.L BORGOHAIN
Advocate for the Respondent : MR.D SARMAH
Linked Case : WP(C) 2622/2013
1:DILIP KUMAR DUTTA and 2 ORS
UDA CUM ACCOUNTANT
ASSAM CO-OPERATIVE TRAINING INSTITUTE
JOYSAGAR
SIVASAGAR
ASSAM.
1.1: SMT. ANJALI DUTTA
W/O- LATE DILIP KUMAR DUTTA
R/O. VILL- KUKURA CHOWA GAON
P.P- NAMTIBOLI
DIST- SIVSAGAR
ASSAM.
2: PURNANANDA PHUKAN
LDA CUM STORE KEEPER
ASSAM CO-OPERATIVE TRAINING INSTITUTE
JOYSAGAR
SIVASAGAR
ASSAM.
3: MUKUT DUTTA
HOSTEL BOY ACTING CHOWKIDAR
ASSAM CO-OP. TRAINING INSTITUTE
JOYSAGAR
SIVASAGAR
ASSAM.
VERSUS
1:THE STATE OF ASSAM AND 2 ORS
REP. BY THE ADDL. CHIEF SECY. TO THE GOVT. OF ASSAM
REVENUE AND DM
Page No.# 6/32
AGRICULTURE
IRRIGATION CO-OPERATION DEPTT.
DISPUR
GHY- 6.
2:THE REGISTRAR OF CO-OP. SOCIETIES
ASSAM
KHANAPARA
GHY- 22.
3:THE DY. REGISTRAR OF CO-OP. SOCIETIES
SIVASAGAR AND INCHARGE PRINCIPAL OF ASSAM CO-OP. TRAINING
INSTITUTE
JOYSAGAR
DIST.- SIVASAGAR
ASSAM.
Advocate for the Petitioner : MS.S GOGOI
Advocate for the Respondent : DR.B AHMED
Linked Case : WP(C) 2047/2017
1:RAJAT CH. KALITA and ANR.
S/O- SRI PARESH CH DEKA
R/O- VILL- BURHADOI
P.O- BURHADUMI
P.S- SIPHAJHAR
DIST- DARRANG
ASSAM- 784148
2: SRI PHUKAN DAS
S/O- LATE CHANDRA DHAR DAS
R/O- VILL- BARDANGERI KUCHI
P.S- BAIHATA CHARIALI
DIST- KAMRUPM
ASSAM
VERSUS
1:THE STATE OF ASSAM and 4 ORS.
REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVT OF ASSAM
CO-OPERATIVE DEPT. DISPUR
GHY-781006
2:THE REGISTRAR OF CO-OPERATIVE SOCIETIES
GOVT OF ASSAM
KHANAPARA
Page No.# 7/32
GUWAHATI- ASSAM
3:THE ASSAM STATE CO-OPERATIVE UNION
REPRESENTED BY THE PRESIDENT ASSAM STATE CO-OPERATIVE UNION
DR. B. BOROOAH ROAD
GHY-7
DIST- KAMRUP
ASSAM
4:THE CHIEF EXECUTIVE OFFICER
ASSAM STATE CO-OPERATIVE UNION
DR. B.BAROOAH ROAD
GHY-7
DIST- KAMRUP
ASSAM
5:THE PRINCIPAL SECRETARY
DEPT. OF FINANCE
DISPUR
GUWAHATI-6
ASSAM
Advocate for the Petitioner : MS.L BORGOHAIN
Advocate for the Respondent : MR.B PATHAKR(R-3&4)
Linked Case : WP(C) 812/2013
1:ARUN CHANDRA BAISHYA and 21 ORS
S/O LATE SONARAM BAISHYA
R/O SUALKUHI
P.O. and P.S. SUALKUCHI
DIST- KAMRUP
ASSAM
2: SURJYA KUMAR DEKA
S/O LATE RATI KANTA DEKA
R/O PANJABARI
P.S. DISPUR
GUWAHATI
DIST- KAMRUP
ASSAM
3: LAKHI RAM BORA
S/O BHULA RAM BORA
R/O HEMARBARI
P.O. JAJORI
Page No.# 8/32
DIST- NAGAON
ASSAM
4: NIRU BARUAH
D/O LATE NITYA NANDAN BARUAH
R/O VILL. JAJI MARANGAON
P.O. MARAN CHIGA
DIST- SIBSAGAR
ASSAM
5: NALINI KANTA ROY CHOUDHURY
S/O LATE A.K. ROY CHOUDHURY
R/O NIZ SARIHA
P.O. BAMUNKUCHI
DIST- KAMRUP
ASSAM
6: MINATI DAS
D/O LATE HARMOHAN DAS
VILL. BHATIPARA
P.O. SULAKUCHI
DIST- KAMRUP
ASSAM
7: TRIBENI BORO
D/O LATE AMULYA CHANDRA BORO
R/O ULUBARI
KACHARI BASTI
P.S. PALTAN BAZAR
GHY-7
DIST- KAMRUP
ASSAM
8: MIN PRASAD SARMAH
S/O R. SARMAH
R/O LAKHINAGAR
JAPORIGOG
GHY-5
DIST- KAMRUP
ASSAM
9: JITEN RABHA
S/O LATE AKILA RABHA
R/O NIZARAPAR
P.S. CHANDMARI
GUWAHATI
DIST- KAMRUP
ASSAM
Page No.# 9/32
10: BHABEN RAJBONGSHI
S/O LATE JALTIRAM RAJBONGSHI
R/O BALABANGAON
P.O. BANAGRAM
DIST- NAGAON
ASSAM
11: PHATIK CHANDRA KALITA
S/O LATE RATIRAM KALITA
R/O KETEKIBARI
P.O. BARAMBOI
DIST- KAMRUP
ASSAM
12: GOBINDA DEKA
S/O LATE HALAB DEKA
R/O BAMA
P.O. KARARA
DIST- KAMRUP
ASSAM
13: KHANINDRA DEKA
S/O LATE RAMA KANTA PHUKAN
R/O LAOKHOWA ROAD
PRAFULLA SAKIA PATH
P.O. HAIBORGAON
DIST- NAGAON
ASSAM
14: TANKESWAR BARMAN
S/O LATE BIHURAM BARMAN
R/O BALIKARIA
P.O. BALIKARIA
DIST- BALBARI
ASSAM
15: GOLAK CHANDRA DAS
S/O LATE RAMHARAN DAS
R/O GARIGAON
GHY
DIST- KAMRUP
ASSAM
16: SITAL CHAKBORTY
S/O LATE DHIREN CHAKRAVARTY
R/O JARAGURI DARGAON
P.O. JARAGURI DARGAON
Page No.# 10/32
DIST- GOLAGHAT
ASSAM
PIN-785614
17: KIRAN BALA DAS
D/O LATE PUSPA RAM DAS
R/O GANESH NAGAR
BASISTHA
P.O. BASISTHA
DIST- KAMRUP
ASSAM
18: KAMALA KANTA SAKIA
S/O LATE UTSHAB CHANDRA SAIKIA
R/O VILL. P.O. SUNDARDIA
PASCHIMHATI
DIST- BARPETA
ASSAM
19: HIMANGSHU KR. DAS
S/O LATE GIRIDHAR DAS
R/O NOONMATI
HOUSE NO.14
NEAR SBI
GUWAHATI
20: KALINDRA KR. DEKA
S/O LATE RAJENDRA NATH DEKA
R/O PAIKARKUCHI
P.O. SONDHA
DIST- NALBARI
ASSAM
21: CHAKRADHAR DEKA
S/O LATE RAMESHWAR KOCH
R/O BHUTTABARI
P.O. and P.S. SIPAJHAR
DIST- DARRANG
ASSAM
22: RAJANI KANTA TALUKDAR
S/O LATE BHAGIRAM TALUKDAR
R/O BARKULHATI
P.O. KALAG
DIST- NALBARI
ASSAM
VERSUS
Page No.# 11/32
1:THE STATE OF ASSAM AND 3 ORS
THROUGH THE COMMISSIONER AND SECRETARY
CO-OPERATION DEPARTMENT
GOVT. OF ASSAM
DISPUR
GHY-6
2:THE REGISTARAR OF CO-OPERATIVE SOCIETIES
ASSAM
KHANAPARA
GHY-22
3:THE ASSAM STATE CO-OPERATIVE UNION
TO BE REPRESENTED BY THE CHIEF EXECUTIVE OFFICER
DR. B.BARUAH ROAD
ULUBARI
GHY-7
4:THE COMMISSIONER SECRETARY
GOVT. OF ASSAM
FINANCE DEPARTMENT
DISPUR
GHY-6
Advocate for the Petitioner : MS.R NEWAR
Advocate for the Respondent : MR.B GOGOI
Linked Case : WP(C) 2971/2012
1:AMARJIT BARMAN and 6 ORS.
S/O SRI KANAK BARMAN
R/O NAKARBHAIRA
P.O. NAKARBHAIRA
DIST- NALBARI
ASSAM
2: A.H. MAZUMDAR
S/O MD. ANAYATUR RAHMAN
R/O DUDHTHPATIL
PART-5
SILCHAR
ASSAM
3: BABUL CHAMUAH
S/O LATE BENUDHAR CHAMUAH
R/O KUALPATHAR
Page No.# 12/32
P.O. ARADHAL
DIST- DHEMAJI
ASSAM
4: SATYA NATH BHUYAN
S/O LATE HARICHARAN BHUYAN
R/O SARTHEBARI
P.O. SARTHEBARI
ASSAM
DIST- BARPETA
ASSAM
5: JITEN GOGOI
S/O LATE RIPU NATH GOGOI
R/O LENGERI SANTIPUR
P.O. G.B.B.P.
DIST- DIBRUGARH
ASSAM
6: MADHURIMA CHETIA
D/O SRI INDRESWAR CHETIA
R/O BARKALA
P.O. SIMULIGURI
SIBASAGAR
ASSAM
WARD NO.6
7: NIYAMAT ALI
S/O RAHMOT ALI
R/O HURKAKUCHI
P.O. GOBINDAPUR
DIST- GOALPARA
ASSAM
VERSUS
1:STATE OF ASSAM and ORS.
REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM
CO-OPERATIVE DEPARTMENT
DISPUR
GHY-6
2:THE REGISTRAR OF CO-OPERATIVE SOCIETIES
KHANAPARA
GUWAHATI
ASSAM
3:THE ASSAM STATE CO-OPERATIVE UNION
REPRESENTED BY THE PRESIDENT
Page No.# 13/32
ASSAM STATE CO-OPERATIVE UNION
DR. B. BAROOAH ROAD
GHY-7
DIST- KAMRUP
ASSAM
4:THE CHIEF EXECUTIVE OFFICER
ASSAM STATE CO-OPERATIVE UNION
DR. B. BAROOAH ROAD
GHY-7
DIST- KAMRUP
ASSAM
Advocate for the Petitioner : MRS.N SAIKIA
Advocate for the Respondent : DR.B AHMED
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
JUDGMENT
Date : 25-04-2019 Whether the petitioners, being employees of Assam State Cooperative Union, which is a registered Cooperative Society, would be entitled to an order in the nature of mandamus against the State for paying the monthly salary and other emoluments as revised from time to time, is one of the basic issue that arises for decision in these set of writ petitions filed under Article 226 of the Constitution of India.
2) It is projected that the Assam State Cooperative Union ('ASCU' for short) was conceived, set up and established by the Government of Assam for the promotion of Cooperative education, training, publicity and propaganda work throughout the state of Assam. The said ASCU was entrusted with the Assam State Cooperative Training Institute at Joysagar vide notification No.CPL/47/61/2-3 dated 14.12.1961 by providing that a provision of Rs.5,00,000/- was earmarked under "Third 5 year plan" with an annual phasing of expenditure not exceeding Rs.1,00,000/- and the amount for the Institute was to be provided through the ASCU as grants-in-aid for the following expenditures viz., "(1) Pay, Dearness Page No.# 14/32 allowance, travelling allowance etc. of all the State of the Training Institute, (2) Stipend and travelling allowance of trainees, (3) Contingency etc., (4) The Union may retain the present staffs of the Institute to work under the Union on deputation from the Government service, if their service are required but the staff shall be then under the direct and full control of the Union."
3) From various documents annexed to these writ petitions, it is projected that the Cooperation Department of the State of Assam had dictated the terms and conditions of service and that vide order under Memo No. COOP.217/69/36 dated 17.01.1970, had directed the Registrar of Cooperative Societies to the effect that if in future it was intended to replace the deputationists by their own persons, then it will prescribe any scales for such posts in consultation with the Department and in conformity with the approved scales of the Government for such posts. Accordingly, from time to time whereas amounts for sanction for payment of Salary, Payment of arrear pay, DA and DR in revised scale to the staff of ASCU including the Departmental Officers on deputation, further providing that the expenditures were debitable to the heads of accounts as mentioned in various occasions.
4) It is further projected that from time to time the salary, allowances, dearness allowance and dearness relief were approved by the Cooperation Department and that the requisite funds were sanctioned by the Finance (EST-A) Department after budgetary allocation. Accordingly, it is also projected that till 2011-12, the Government of Assam was providing funds through proper budgetary allocation for the ASCU, inter-alia, for payment of salaries, and other emoluments, retirement benefits, etc., as per the prevailing scale at par with other State government employees. Thereafter, the State government had started to cut down the grants-in-aid to the ASCU, which resulted in non-payment of salary, accumulation and arrear salaries payable to the employees of the ASCU.
5) Per contra, the stand of the said respondents is that the management of Cooperative training and education was given to the ASCU w.e.f. 01.04.1962. Later on, the State Government had enacted the Assam Rajiv Gandhi University of Cooperative Management Act, 2010 and accordingly, the functioning of the Assam State Cooperative Page No.# 15/32 Institute at Joysagar was handed over to the Assam Rajiv Gandhi University of Cooperative Management. Thus, the other employees of ASCU not associated with the work of Cooperative Training, continued to remain as employees of the ASCU and, as such, it is projected that all the petitioners in these writ petitions, being the employees of the Society, cannot maintain their writ petition against the State. It is projected that the State was not liable to pay the salary, emoluments, etc. to the petitioners. It is also projected that merely because some grants- in- aid by way of budgetary allocation were given from time to time to the ASCU, such financial assistance by the State would not create any master - servant relationship between the petitioners and the State.
6) On the basis of the submissions made by the learned counsel for both sides, the question posed herein first before, i.e. whether the petitioners, being employees of Assam State Cooperative Union, which is a registered Cooperative Society, can seek an order in the nature of mandamus against the State for paying the monthly salary and other emoluments as revised from time to time, is bifurcated into 3(three) parts:
1. Whether the petitioners are government servants or they remained to be the employees of the ASCU?
2. Whether budgetary allocation of funds and/or grants- in- aid provided by the government of Assam to the ASCU for payment of salary, other emoluments, retirement benefits etc entitle the petitioners to maintain these writ petitions against the State?
3. Whether various orders passed by this Court in similar writ petitions, writ appeal, misc cases/ interim applications, contempt petitions, etc. have created any right in favour of the petitioners to continue to receive their salary, emoluments, etc from the State government?
7) Heard Mrs. N. Saikia, learned counsel for the petitioners in WP(C) 2556/12, WP(C) 2740/17, WP(C) 2971/12, Mr. B. Chakraborty, learned counsel for the petitioner in WP(C) 812/13 and Mr. J.P. Kachari, learned counsel appearing in WP(C) 2622/13. Also heard Mr. B. Pathak, learned counsel appearing for ASCU and its Chief Executive Officer, who has supported the stand taken by the petitioners. Also heard Dr. B. Ahmed, learned Standing Page No.# 16/32 counsel for the Cooperation Department of the State of Assam and for the Registrar of Cooperative Societies, and also heard Mr. P. Nayak, learned Standing counsel for the Finance Department of the State. Both the learned State counsel have opposed these writ petitions.
8) The learned counsel for the petitioners had reiterated the stand taken by the petitioners in their writ petition an additional affidavits and affidavit-in-reply. The learned counsel for the petitioner in WP(C) 2556/12, WP(C) 2740/17, WP(C) 2971/12, in addition to her oral submissions has also filed written notes of argument which is kept on record. It is submitted that the ASCU was set up in 1952 and was registered under No. ASCU-29/1955-56 dated 12.09.1955 under the Assam Cooperative Societies Act, 1949 and Rules framed thereunder. The ASCU was fully financed and controlled by the Government of Assam by appointing an ACS officer as its CEO till 2011-2012. Accordingly, it is submitted that all persuasive control of the ASCU and its employees was held by the government. It is submitted that by the directions issued by the Cooperation Department of the State, salaries and other emoluments was paid to the petitioners and all other employees of ASCU in the scale of pay enjoyed by the State government in accordance with various grade of employees. It is further submitted that from the communication under Memo No. CPL/47/61/2-3 dated 14.12.1961, by the Registrar of Cooperative Societies to the Chairman, ASCU, it would be evident that after a decision was taken in the conference of Cooperative Ministers and Registrars held in New Delhi on 29 th October, 1961 the Govt. had thrust upon the ASCU with the task of imparting Cooperative education, training publicity and propaganda work for the State. Accordingly, the ASCU was not doing any commercial activity and therefore, all its activities including salary and other expenditures were fully borne by the State government. By referring to various documents showing budgetary allocation of funds, it is submitted that against money received by the ASCU from the State, as per the procedures followed by any of the Departments of the State, for the purpose of securing budgetary grants of funds, the ASCU was required to submit its annual budget estimate and on incurring expenditures, the ASCU was also required to submit utilization certificate including expenditure statement from time to time. It is submitted that utilization certificates submitted by ASCU clearly reflected that money received from the State government was Page No.# 17/32 being utilized for payment to Education staff (Field), Education Staff (HQ), General Staff (HQ), Employers/ employees share of provident fund, leave salary to the retired employees, gratuity scheme, etc.
9) The learned counsel for the petitioners has referred to the decision of this Court in similar matters wherein directions were issued for payment of staff salary of employees of ASCU and it is submitted that in view of the previous orders, under the principles of parity, similar relief to the petitioners ought not to be refused. In this connection, reliance was placed on the judgment/ order dated 24.02.2006, passed by this Court in (i) W.P. (C) No. 7086/2005 (Jagat Sahariah & Ors. Vs. State of Assam & Ors.); (ii) Review Petition No. 70/2006 in W.P.(C) 7086/2005 (Jagat Sahariah & Ors. Vs. State of Assam & Ors.); and (iii) Order dated 10.12.2009, thereby dismissing W.A. No. 369/2007 in connection with W.P.(C) No. 7086/2005 - (State of Assam & Ors. Vs. Jagat Sahariah & Ors.); (iv) Order dated 23.03.2012 passed by this Court in Cont. Case (C) No. 184/2011, (v) Cont. Case (C) No. 114/2013 and Order dated 27.08.2013 passed by this Court in Cont. Case (C) No. 273/2013.
10) The learned counsel for the ASCU has elaborately referred to the affidavit- in- opposition filed by respondents No.3 and 4 in W.P.(C) No. 2556/ 2012. It is submitted that the ASCU is fully dependent on Govt. grants and finance to sustain its operations and to fulfill its aims and objectives, i.e. to impart cooperative training and education. It is submitted that till 1994-95, the Govt. of Assam was allocating adequate budgetary support to ASCU, from which the salary, other emoluments, retiral benefits, etc. were paid to all its employees at par with other government employees. It is submitted that as ASCU does not generate income to sustain its operation, unless government funds are received, the ASCU cannot clear the dues of the employees. It is stated that all throughout upto the year 2011-12, the ASCU was under
full control of the Government through its Cooperation Department, who used to appoint CEO and various other management staff. Therefore, only the Government can take steps to mitigate the various grievances of the employees of ASCU. The learned counsel for ASCU has referred to various documents evidencing budgetary allocation of funds for funding its activities and for payment of staff salary and other emoluments as per pay revision done from time to time as available to an equivalent government employee. The previous litigation Page No.# 18/32 history involving ASCU staff salary as submitted by the learned counsel for the petitioners was reiterated. In support of his submissions, the learned counsel for ASCU has relied on the case of (i) Airports Authority of India, and (ii) Ajay Hasia.
11) Per contra, the learned Standing Counsel for the Cooperation Department and for the Finance Department have made similar submissions. It is submitted that by virtue of powers vested to the State to depute government servant to manage the affairs of a registered society and on such conditions as may be determined for managing its affairs.
Moreover, the Registrar also has the powers to direct a particular society to appoint only those persons having such qualifications as has been prescribed from time to time. Moreover, the Registrar is also vested with the powers to suspend the Board of Directors/ Managing Committee of a registered society and to appoint any person to look after the affairs of the Society. It is further submitted that in cases where government officials are appointed as officials of the ASCU, their salaries were paid by the Cooperative department and not by the ASCU. By referring to the provisions of section 49 of the Assam Cooperative Societies Act, 2007 it is submitted that the employees of the ASCU would only be an employee of the Society and not of the government. Accordingly, the learned State counsel has placed reliance on the following cases:
1. Cooperative Central Bank Limited and Others Vs. Additional Industrial Tribunal, AIR 1970 SC 245.
2. Shivaji Vs. Shetkari Sahakari S.K. Ltd. & Ors. 2005 Legal Eagle 957: (2005) 13 SCC 414.
3. State of Assam Vs. Barak Upatyaka D.U. Karmachari Sanstha, (2009) 5 SCC
694.
4. Thalappalam Service Cooperative Bank Limited and others Vs. State of Kerela, (2013) 16 SCC 82,
5. Risheswar Neog Vs. The State of Assam and Others, (1993) 1 GLR 84.
6. Dhiraj Chandra Roy Vs. Assam Minorities Development Board and Others, 2011 (4) GLT 147.
7. Uttam Chandra Das Vs. The State of Assam and others [WP(C) No.4375/2011, disposed of on 18.09.2013].
Page No.# 19/32
8. Md. Jamal Uddin Laskar & 78 Ors. Vs. The State of Assam & Ors., [W.P.(C) 371/2009 decided on 01.12.2014].
9. Md. Kaysor Ahmed Vs. The State of Assam & Ors., [WP(C) 3184/2011, W.P. (C) 3050/2009 and W.P.(C) 5782/2009 decided on 17.03.2016].
10. Md. Liakat Ali Vs. The State of Assam & Ors., [W.P.(C) 4168/2017, decided on 28.07.2017].
11. Must. Zesminara Khatun Vs. The State of Assam & Ors., [W.P.(C) 7583/17 decided on 08.12.2017].
12. East Assam Milk Producers' Cooperative Union Limited Employees Union Vs. The State of Assam & Ors., [W.P.(C) 5232/2012, decided on 06.08.2018].
13. Thalappalam Service Cooperative Bank Limited and others Vs. Union of India and others, 2009 (4) KLT 50.
12) Having heard the submissions made by the learned counsel for all sides, the various pleadings on record viz. (1) In WP(C) 2556/12, (i) writ petition, (ii) additional affidavit filed by the writ petitioners on 07.09.2012, (iii) affidavit in opposition of respondents No.3 and 4 filed on 07.08.2013, (iv) affidavit-in-reply filed by the petitioner on 12.11.2013 against A/O filed by respondent No.2, (v) affidavit-in-reply filed by the petitioner on 01.08.2014 against A/O filed by respondent No.1, (vi) additional affidavit filed by the petitioners on 07.12.2016, (2) In WP(C) 2047/ 14, (i) writ petition, (ii) A/O filed on 23.11.2017 by respondent No.5, (iii) affidavit in reply filed by the petitioner on 16.03.2018 against A/O filed by respondent No.5 (Finance Department), (iv) A/O filed on 10.05.2018 by Registrar of Cooperative Societies, (3) In WP(C) 812/13, (i) writ petition, (4) In WP(C) 2622/13, (i) writ petition, (5) In WP(C) 2971/12, (i) writ petition, (ii) additional affidavit filed by the petitioners on 20.07.2012, (iii) combined affidavit-in-opposition filed on 05.06.2014 by Cooperation Department in WP (C) 2971/12, WP (C) 2556/12 and WP (C) 812/13, (iv) combined affidavit-in-opposition filed on 24.09.2013 by Registrar of Cooperative Societies in WP(C) 2971/12, WP(C) 2556/12 and WP(C) 812/13, have been perused.
Point of determination No. 1(1): Whether the ASCU is an authority within the meaning of Article 12 of the Constitution of India?
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13) In the present cases in hand, the petitioners claim that ASCU was a State. As against the claim that the ASCU was a instrumentality of the State and under full control of the Government of Assam under the Cooperative department, in the affidavit-in-opposition filed by the Registrar of Cooperative Societies it is denied that the ASCU was a State within the meaning of Article 12 of the Constitution of India. It is stated that the ASCU was registered under the Assam Cooperative Societies Act, 1949 (presently under Assam Cooperative Act, 2007). It has its own bye-laws, the organization is self-governed and controlled by an elected Board of Directors. It is claimed that the government or the Registrar of Cooperative Societies, Assam have no role to play in the matters of employment in ASCU.
14) From the contents of communication under Memo No.CPL/47/61/ 2-3 dated 14.12.1961, there is no doubt that the Assam Cooperative Training Institute at Joysagar was handed over to ASCU and accordingly, funds were earmarked under the "Third Five year plan"
for functioning of the Institute. Thereafter, grants-in-aid had continuously being pouring in to ASCU by the Government of Assam through budgetary allocations till 2011-12. As mentioned herein before, the State of Assam had enacted the Assam Rajiv Gandhi University of Cooperative Management Act, 2010 and the Assam Cooperative Training Institute at Joysagar was handed over to the Assam Rajiv Gandhi University of Cooperative Management.
15) On a perusal of the various documents showing sanction of grants-in-aid to ASCU, the contents of those documents indicate that sanction were recorded as grants-in-aid to ASCU to meet the payment of salaries, provident fund of employees' share, stipend etc. Contents of one such sanction order under No. COOP.317/2000/147 dated 15.11.2008, is as under:
Account Particulars Subsidy amount (Rs.)
2425 Cooperation 25,00,000/-
11 Other State Plan Scheme
003 Training
1315 Subsidy to ASCU Plan-General
09 Grants-in-aid, etc.
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46 Subsidy to Assam Cooperative Training
Institute, General Plan
Research and Evaluation 10,00,000/-
2426 Cooperation
11 Other State Plan Scheme
004 Research and Evaluation
226 Research-General Plan
Education 25,00,000/-
2425 Cooperation
11 Other State Plan Scheme
277 Education
149 Education-General Plan
16) The contents of sanction order under (1) Memo No. COOP.317/ 2000/171 dated
04.02.2010, (2) Memo No. COOP.317/ 2000/236 dated 03.03.2011, are as under:
Account Particulars Subsidy amount (Rs.)
Training 20,00,000/-
2425 Cooperation
11 Other State Plan Scheme
003 Training
1315 Subsidy to ASCU Plan-General
09 Grants-in-aid, etc.
46 Subsidy to Assam Cooperative Training
Institute, General Plan for 2009-10
Research and Evaluation 10,00,000/-
2425 Cooperation
11 Other State Plan Scheme
004 Research and Evaluation
226 Research-General Plan for 2009-10
Education 20,00,000/-
2425 Cooperation
11 Other State Plan Scheme
277 Education
149 Education
09 Grants-in-aid etc.
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44 Grants-in-aid, General Plan for 2009-10
17) From the above, it leaves no room for doubt that from time to time the
Government of Assam, Department of Cooperation had sanctioned financial assistance in form of grants- in- aid to the ASCU since year 1961 till the year 2012-13. As indicated above, the sanction included subsidy for ASCU and also included subsidy to Assam Cooperative Training Institute. Therefore, for the first time, vide communication dated 18.03.2014, the Government had intimated its refusal for allocation of fund to ASCU for the year 2013-14.
18) The test of whether a body is a State within the meaning of Article 12 of the Constitution of India was elaborated by the Supreme Court of India in the case of Ramana Dayaram Shetty Vs. International Airport Authority of India, (1979) 3 SCC 489 , which were reformulated by the Constitution Bench of the Supreme Court of India in Ajay Hasia Vs. Khalid Muja Sehravardi, (1981) 1 SCC 722.
19) The said question was again re-examined by a Special Bench (consisting of 7 Judges) of the Supreme Court of India in the case of Pradeep Kumar Biswas Vs. Indian Institute of Chemical Biology and others, (2002) 5 SCC 111 . In the light of the majority judgment in the said case, on the criteria of (i) Formation of CISR, (ii) Objects and Functions,
(iii) Financial Aid, (iv) Management and Control, it was held that CISR was an authority under Article 12 of the Constitution of India.
20) Out of the above referred four criteria, in the present case in hand, the petitioners have been able to satisfy this Court that the ASCU was receiving financial aid from the Govt. However, in the absence of any materials on record, this Court is unable to hold (i) how ASCU was formed and what was its share-holding pattern, (ii) what are the aims, objects and functions of ASCU, and (iii) there is nothing on record to suggest that at present the management and control of ASCU is with the Govt. functionaries. The notification No.CPL/47/61/2-3 dated 14.12.1961 discloses that the State Government had handed over the Assam Cooperative Training Institute, Joysagar to the ASCU. The salary and other emoluments, retiral benefits, etc., was paid out of the various grants received from the Govt.
Page No.# 23/32 of Assam, Cooperation Department. Till the time the Assam Cooperative Training Institute, Joysagar remained under the ASCU, the CEO of ASCU was being exclusively appointed by the Govt. of Assam. In terms of the directives issued from time to time, appropriate scale pay was being provided to the employees of the ASCU, including those engaged for Assam Cooperative Training Institute, Joysagar.
21) Yet, there is one overwhelming factor which tilts in favour of discarding the stand by the State that ASCU is not the instrumentality of State, which appears to be wholly unacceptable because by virtue of the provisions of Section 25 of Assam Cooperative Societies Act, 2007 money as envisaged therein statutorily come into the coffers of the ASCU. Thus, the existence of ASCU has its source in the Assam Cooperative Societies Act, 2007.
22) The factors which tilt in favour of the ASCU to be held to be an "authority" under Article 12 of the Constitution of India are, viz., (i) the financial assistance of the State meets almost the entire expenditure of ASCU, which indicates that ASCU is impregnated with governmental character; (ii) from the provisions of Section 25 of the Assam Cooperative Societies Act, 2007 it appears that the ASCU enjoys monopoly status which the State had statutorily conferred and protected; (iii) there is no denial from the State that since 1961 till 2011, then the Assam Cooperative Training Institute, Joysagar was entrusted to ASCU, the existence of State Control over ASCU was deep and pervasive, indicating that ASCU is a State agency or instrumentality; (iv) The functions of ASCU is non- profit, and it had imparted cooperation education and training, publicity and propaganda, which was to popularize the co-operative movement and thus, closely related to governmental functions, which would be a relevant factor in classifying ASCU as an instrumentality or agency of Government; (v) the Assam State Cooperative Training Institute, Joysagar was a governmental institute, which was transferred to ASCU as indicated herein before. This is a strong factor supportive of the inference by this Court that ASCU was an instrumentality or agency of Government. However, after establishment of Rajiv Gandhi University of Cooperative Management, the State has abandoned ASCU.
23) Therefore, merely because some elected persons have constituted the Board Page No.# 24/32 of Management of ASCU after establishment of Rajiv Gandhi University of Cooperative Management, and after the State had abandoned ASCU since 2011-12, such situation does not dilute the fact that ASCU satisfies the tests as propounded in the case of Ramana (supra), for holding the said ASCU to be an "authority" within the meaning of article 12 of the Constitution of India. In the considered opinion of this Court, in view of majority of the criteria leads to conclusion that the ASCU is an "authority" under Article 12 of the Constitution of India, one or two criteria having been decided in the negative, and against the ASCU, would not alter the said position.
24) Hence, this Court is of the considered opinion that the ASCU is an authority within the meaning of Article 12 of the Constitution of India. The point of determination No.1 (1) is answered accordingly.
Point of Determination No.2: Whether the petitioners are Government servants or State Government employees?
25) Similar issue was examined by the Constitution Bench of the Supreme Court of India in the case of Sukhdev Singh Vs. Bhagatram Sardar Singh Raghuvanshi, (1975) 1 SCC 421, wherein while deciding that Oil & Natural Gas Commission, Industrial Finance Corporation and Life Insurance Corporation of India were "authority" within the meaning of Article 12 of the Constitution of India, it was held that their employees did not become the servants of the Union or the State. Therefore, this Court is unable to accept that the petitioners are Government servants, but the petitioners would remain to be the employees of the ASCU.
26) There are no materials on record to show that ASCU had adopted all the Govt. Rules and Regulations and Terms and Conditions of appointment. Thus, the petitioners cannot be treated at par as the State Government employee. Thus, there being no contract between the employees and the State, the State cannot be directed to pay the salary and Page No.# 25/32 other emoluments to the petitioners. Thus, in other words, the petitioners would have to enforce the terms and conditions of employment in such forum as may be available to them.
27) In the case of State of Assam Vs. Barak Upatyaka D.U. Karmachari Sanstha, (2009) 5 SCC 694, the employees of the Cachar & Karimganj District Milk Producers Cooperative Union (CAMUL) had approached this Court by filing writ petition, which was registered as Civil Rule 2996/1995, seeking a direction to the State Government to provide funds to CAMUL so as to enable CAMUL to make payment of regular monthly salary to its employees. The said writ petition was allowed by order dated 23.12.1999 by the Division Bench of this Court. The State had filed SLP before Supreme Court of India. The Apex Court by its judgment had held that even if the all pervasive financial, administrative and functional control of CAMUL was by the State, it may at best result CAMUL to be treated as State within the meaning of Article 12 of the Constitution of India. It was also held that if CAMUL was a State, for violation of its fundamental rights its employees could seek redressal under Article 226 of the Constitution of India, but that by itself will not make it a part of the State Government nor will employees of such body can become employees of the State Government and therefore, it was held that it would not mean that the State Government is liable to bear and pay salary of its employees. It was further held that if salaries were not paid, the remedy of the employees of CAMUL was to proceed against CAMUL in accordance with law by approaching a forum under the appropriate labour legislation or the Cooperative Societies Act, but a writ petition requiring the State Government to bear and pay salaries of the employees of a cooperative society should not be maintainable nor was any right created to demand continuance of financial assistance to cooperative society on the ground that such assistance was extended in the past by the State Government. Accordingly, the decision rendered in the writ petition was reversed. However, it was observed that the same was without prejudice to the right of the employees of CAMUL to take action as was available in law for redressal of their grievances. It was further observed that the decision would not come in the way of the State Government formulating any scheme or extending any relief or benefit to the employees of CAMUL or other similarly situated persons. It is seen that following the said ratio, this Court had dismissed the case of (1) Jamal Uddin Laskar & 75 Page No.# 26/32 others (supra), and (2) East Assam Milk Producers Co-operative Union Limited Employees Union (supra).
28) It would also be appropriate to quote paragraph 12 and 13 of the case of Risheswar Neog (supra):-
"12. In view of the above discussions, the appointment of the petitioner as a secretary in the office of the Society and his removal from service shall be governed by rules 33(2) and 35 of the Rules read with bye-law 27. Under bye-law 27, appointment and removal of the employee of a society require prior approval of the Registrar and the Financial Bank. Although, the appointment of a secretary in the office of a society requires prior approval of the Registrar, it does not show that the secretary holds the post under the Registrar or the Government. Therefore, the relationship between the employee officer and the society is that of master and servant. As has been held by the Supreme Court, the condition requiring prior approval of the Registrar and the Financial Bank for removing an employee officer of the society under bye-law 27 is a part of contract of service. For the reasons the present writ petition is for enforcement of personal service or service contract of the petitioner. It is well settled that the contract of service or personal service cannot be specifically enforced because of the common law principle. The remedy in such a contractual relationship of master and servant is damages because personal service not capable of enforcement. If any authority is required, I may rely to Sukhdev Singh Vs. Bhagatram, AIR 1975 SC 1331.
13. For the foregoing reasons, the writ petition is not maintainable and is dismissed. No costs."
29) Relying on the case of Risheswar Neog (supra), this Court had dismissed the case of (1) Md. Liakat Ali (supra), (2) Md. Kaysor Ahmed (supra), and (3) Must. Zesminara Khatun (supra).
30) In the case of Dhiraj Chandra Roy (supra), this Court had refused to treat the employees of Assam Minorities Development Board as employees of the State. In para-12 of the said judgment, this Court had referred to the case of Supriyo Basu & Ors. Vs. W.B. Page No.# 27/32 Housing Board & Ors., (2005) 6 SCC 289 , where it was held that writ petition would be maintainable only if it is established that a mandatory statutory provision of a statute has been violated. Mere fact that the Society in question is governed by a statute, was held not to be enough.
31) Thus, though the case of (1) Ajay Hasia (supra), and (2) Pradeep Kumar Biswas (supra) are found to help the petitioners only to the extent that the ASCU may be treated as an authority under Article 12 of the Constitution of India, but the ratio laid down in the said case would not entitle the petitioners to be treated as employees of the State.
32) Thus, the point of determination No. (2) is answered by holding that the petitioners are not Government servants or State Government employees.
Point of Determination No.3: Whether the writ petition would be maintainable? And whether it would be appropriate to direct the State of Assam to pay the monthly salary and other emoluments to the petitioners?
33) It would be appropriate to quote herein the order dated 24.02.2006 passed by this Court in W.P.(C) No. 7086/2005 ( Jagat Chandra Sahariah & 2 others Vs. The State of Assam & 3 others):-
"Heard Mrs. N. Saikia, learned counsel for the petitioner and Mr. P. Roy, learned State counsel appearing for the respondents.
In this petition a prayer has been made by the petitioners for getting regular scale after being upgraded to the post of Organizing Secretary in the District Co- operative Education Development Officers.
According to the petitioners, they are similarly situated to other employee who are having the same qualification and are discharging the same work. However, only ground taken by the Chief Executive Officer that up-gradation in the post of DCEDO being accepted but till budgetary provision of salary in the name of the petitioners is not made by the Government, they shall not be entitled to claim regular salary. According to the learned counsel for the petitioners, Chief Executive Page No.# 28/32 Officer, Assam State Co-operative Union vide letter dated 17.02.2005 had already written to the Registrar, Co-operative Societies, Assam for financial assistance for the year 2005-06 which has already been sanctioned. However, this aspect of the matter is denied by the respondents specifically by the respondent No.3. According to the learned counsel generally budgetary allocation is made at belated stage, however, respondent No.1 and 2 is also not in a position to say anything for lack of written instruction as per the budgetary provision in terms of the prayer of 17.02.2005.
Learned counsel for the petitioners has placed reliance on a decision of the Supreme Court reported in 1988 (Supp) SCC 750 (Y.K. Mehta and others Vs. Union of India and another) whereby the employees holding similar post in two wings of the same Government department involving identical and same nature of duties and not be denied equal pay for equal work. It has also been submitted that in view of the decision of Supreme Court reported in (1996) 5 SCC 273 (State of Haryana and others Vs. Rajpal Sharma and others), the JBT teachers in privately managed aided schools, were held entitled to the same scale of pay and privileges as available to their counter parties in Government schools. After hearing the learned counsel for the parties, this writ petition is disposed of with a direction to the respondents to expedite the issue of payment of regular salary to the petitioners, and such regular salary shall have to be paid from the financial year 2005-2006 and for that purpose the Chief Executive Officer shall start paying regular salary to the writ petitioners after allocation of fund and the respondent No.2 and 3 shall allocate separate funds so that discrimination apparently may not occur in respect of the payment to the petitioners more particular in comparison to the regular salary for discharging identical work and duties like other similarly situated person. The State government shall release the fund expeditiously for the purpose and after allocation of fund immediately the payment of regular salary shall have to be started to be paid to the petitioners forthwith.
With the above observations, this writ petition stands disposed of."
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34) It is seen that as the above quoted order dated 24.02.2006 was not complied with, the petitioners No.2 and 3 in W.P.(C) No. 7086/2005 had filed a contempt petition, which was registered as Cont. Case (C) No. 184/2011 ( Rajat Chandra Kalita & Phukan Das Vs. V.K. Pipersenia & 2 others pg.35 in 2047/17), which was disposed of by order dated 23.03.2012. In the said order, this Court had recorded the statement made by the learned counsel representing respondents No.2 and 3 (namely, Mr. Sailendra Kr. Nath, Registrar of Cooperative Societies, Assam and Mr. H.K. Gayan, the CEO of ASCU) that the order in question has already been complied with by granting admissible benefits to the petitioners including revised salary, and further recording that steps have been taken to give the revised scale of pay. The said two contempt petitioners had to file another contempt petition, which was registered as Cont. Case (C) No. 273/2013, which was closed on withdrawal by order dated 27.08.2013. The State had filed writ appeal against the order dated 24.02.2006 passed by this Court in W.P.(C) No. 7086/2005, which was registered as W.A. No. 369/2007, which was dismissed by order dated 10.12.2009 It is further seen that in the order dated 31.03.2014, passed by in M.C. 716/2014 [arising in W.P.(C) 2556/12], this Court had recorded the submissions made by the learned counsel for the petitioners therein that the Planning & Development Department had sanctioned an amount of Rs.80.00 Lakh for disbursement to ASCU and accordingly, directions were issued that steps be taken for release of the said fund to the Union, further directing that the said funds will not be allowed to lapse. It is further seen from the contents of para-3 of the affidavit- in- opposition filed on 23.11.2017 in W.P.(C) No. 2047/2017 that in the Departmentally Related Standing Committee meeting held on 27.02.2017 in respect of Cooperation Department, the committee had recommended to provide an amount of Rs.50.00 Lakh to ASCU as financial assistance during 2017-18 and that the Finance Department has not made budget provision for ASCU during 2016-17 and 2017-
18.
35) As indicated herein before, there are several documents on record to show that the Cooperation Department had granting financial assistance from time to time to ASCU through the Registrar of Cooperative Societies, Assam, to enable the ASCU to pay the salary and other emoluments to the employees of ASCU. There are documents on record which establish that the State Government had granted money to ASCU through budgetary Page No.# 30/32 allocation from time to time apart from budgetary allocation specifically for the Assam Cooperative training Institute. These documents show that although grants- in- aid were granted under various heads of training, research and evaluation and education, the State Government was aware from the projections and statements by ASCU that the money allotted to them would also be used for payment of salary, emoluments and retirement benefits to the employees of ASCU. Therefore, the projection sought to be made by the learned State counsel that having given grant- in- aid under various heads, if salary was paid out of the said amount would amount to diversion of funds is ex facie unacceptable because as per record, till 2012-13, the Assam Civil Service Officers of the State were holding the office of CEO of ASCU, who were accountable for proper utilisation of public money. This Court is not persuaded to believe that when funds were granted from budgetary allocation from the State upon receipt of detailed proposal from ASCU, and provided to the ASCU by routing money through the Cooperation Department and through the Registrar of Cooperative Societies, Assam, the State machinery were not aware that salary and retirement benefits were granted to employees of ASCU. Thus, the said stand taken by the learned State counsel is rejected and this Court is of the considered opinion that the State machinery were paying salary and other emoluments as well as retirement benefits to the employees of ASCU all throughout at least from 1961 till 2012-13. Moreover, salary, etc. was also paid pursuant to orders passed in W.P.(C) No. 7086/2005 and contempt petitions filed thereafter. At the cost of repetition, it is mentioned again that from the contents of para-3 of the affidavit- in- opposition filed on 23.11.2017 in W.P.(C) No. 2047/2017 that in the Departmentally Related Standing Committee meeting held on 27.02.2017 in respect of Cooperation Department, the committee had recommended to provide an amount of Rs.50.00 Lakh to ASCU as financial assistance during 2017-18 and that the Finance Department has not made budget provision for ASCU during 2016-17 and 2017-18.
36) From the order dated 24.02.2006 passed by this Court in W.P.(C) 7086/2005, as quoted herein before, it is crystal clear that in the last paragraph thereof to the effect that "... After hearing that there are no materials on record to show that ASCU had adopted all the Govt. Rules and Regulations and Terms and Conditions of appointment. Thus, the petitioners cannot be treated at par as the State Government employee. Thus, there being no contract Page No.# 31/32 between the employees and the State, the State cannot be directed to pay the salary and other emoluments to the petitioners. Thus, in other words, the petitioners would have to enforce the terms and conditions of employment in such forum as may be available to them ... the payment of regular salary shall have to be started to be paid to the petitioners forthwith." In the humble opinion of this Court, the said direction must be treated to be per incurium for two reasons (i) the question of law as to whether the employees of cooperative societies can be treated as Government employees had never cropped up for consideration before this Court and moreover, the ratio of the decision of the Supreme Court of India in the case of Sukhdev Singh (supra) was not placed before this Court, and (ii) the judgment pronounced by the Supreme Court in the case of Barak Upatyaka D.U. Karmachari Sanstha (supra) would amount to prospective overruling of the decision in Jagat Chandra Sahariah (supra). Therefore, the principles of parity cannot be applied to all the petitioners herein.
37) Thus, in view of the discussions above, the point of determination No.3 is answered by holding that the present writ petition would not be maintainable against the State. Accordingly, in the considered opinion of this Court, it would not be appropriate to issue mandamus upon the State of Assam by directing them to continue to provide grants- in- aid to the ASCU i.e. Assam State Cooperative Union so as to enable the ASCU to pay the monthly salary and other emoluments to all the petitioners in compliance of the order dated 24.02.2006 passed by this Court in W.P.(C) 7086/2005. It is ordered accordingly.
38) Thus, in view of the discussions and points of determination as answered above, the main issue as formulated herein first above is answered by holding that the petitioners, though being employees of Assam State Cooperative Union, which is a registered Cooperative Society, would not be entitled to an order in the nature of mandamus against the State for paying the monthly salary and other emoluments as revised from time to time. It is ordered accordingly.
39) However, it is provided that this decision shall not come in the way of the Page No.# 32/32 State Government to extend any relief or benefit to the petitioners and other employees of the Assam State Cooperative Union. This order shall also not be a bar for the concerned State authorities to consider representations, if any, submitted by the petitioners and other employees of Assam State Cooperative Union and pass appropriate orders thereon in accordance with law. However, this observation is not intended to be construed as a direction by this Court.
40) Subject to the observations made above, these writ petitions stand dismissed, leaving the parties to bear their own cost.
JUDGE Comparing Assistant