Himachal Pradesh High Court
Yamini Sharma vs State Of Himachal Pradesh And Others on 7 January, 2017
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
CWP No.487 of 2016 with CWP No.345 of 2016.
Date of decision : 07.01.2017.
1. CWP No.487 of 2016.
Yamini Sharma .......Petitioner.
of
Versus
State of Himachal Pradesh and others ......Respondent s.
For the Petitioner
rt : Mr.Diwan Singh Negi, Advocate vice
Ms.Vandana Kuthiala, Advocate.
For the Respondents : Mr.M.A.Khan and Mr.Romesh Verma,
Additional Advocate Generals with
Mr.J.K.Verma, Deputy Advocate
General, for respondents No.1 and 3.
Mr.Dilip Sharma, Senior Advocate
with Mr.Manish Sharma, Advocate,
for respondents No.2 and 5.
Mr.Karan Singh Kanwar, Advocate
vice Mr.Lovneesh Kanwar, Advocate,
for respondent No.4.
2. CWP No.345 of 2016.
Bala Kumari .......Petitioner.
Versus
The State of Himachal Pradesh and others ......Respondents.
For the Petitioner : Mr.Vikrant Chandel, Advocate.
For the Respondents : Mr.M.A.Khan and Mr.Romesh Verma,
Additional Advocate Generals with
Mr.J.K.Verma, Deputy Advocate
General, for respondents No.1 and 4.
Mr.Dilip Sharma, Senior Advocate
with Mr.Manish Sharma, Advocate,
for respondent No.2.
Mr.Karan Singh Kanwar, Advocate
vice Mr.Lovneesh Kanwar, Advocate,
for respondent No. 3.
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2
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
.
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting? 1No Tarlok Singh Chauhan, Judge (Oral).
The petitioner(s) in both these petitions have questioned of the selection of Junior Clerks (Grade-IV) conducted by the H.P. State Co-operative Bank Limited (for short 'Bank').
2. rt However, the moot question in view of the specific defence raised by the respondents is as to whether the Bank which admittedly is a cooperative society is amenable to the writ jurisdiction of this Court.
3. The question is no longer res integra and reference in this regard can conveniently be made to a judgment in Sanjeev Kumar and others versus State of H.P. and others 2014 Labour Industrial Cases 3989 rendered by a Division Bench of this Court of which one of us (Justice Tarlok Singh Chauhan, Judge) was a member and this Court observed as under:-
"2. The moot question as raised by respondent No. 3 by way of preliminary objection is as to whether the petition is maintainable against the H.P. Cooperative Bank (hereinafter to be referred as Bank) against whom primarily the reliefs have been sought.
3. Notably the Bank in terms of judgement passed by a learned Division Bench of this Court in Chandresh Kumar Malhotra vs. H.P.State Coop. Bank and others, 1993 2 ShimLC 243has not been held to be a "State" within the meaning of Article 12 of the Constitution and has further not been held to fall within the meaning of other authority for the purpose of Article 226 of the Constitution. The judgement in Chandresh Kumar Malhotra's case has since been affirmed by the Hon'ble Full Bench of this Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 15/04/2017 21:52:43 :::HCHP 3 Court in Vikram Chauhan vs. The Managing Director and ors.,2013 HLJ(HP) 742 (FB).
.
4. Yet, the learned counsel for the petitioner would insist that the fact situation in this case was absolutely different as he was not challenging the action of the bank but was seeking to challenge the orders passed by the authorities created under the H.P. Cooperative Societies Act, 1968 (for short, the Act) and of H.P. Cooperative Societies Rules, 1971 (for short, Rules).
5. In this background certain essential facts may be noticed. Certain persons filed writ petitions bearing CWP No. 1762 of rt 2012 and CWP No. 3560 of 2012, which were disposed of by this court directing them to approach the bank. Some of the persons instead of approaching the Bank approached the Registrar, Cooperative Societies by terming the petition to be under section 72 of the Act and the same was disposed of by the Joint Registrar on 18.8.2012. This order was challenged by way of CWP No. 8996 of 2012 and the said petition was disposed of by this court by holding that parties had a statutory remedy under section 94 of the Act by filing a revision petition before the State government. It is thereafter that the State government passed a decision, which has been impugned herein.
6. In order to justify the maintainability of the petition, the following averments have been set out:-
"That respondents No. 1 & 2 are State and respondent No. 3 is State being "other authority" as per Article 12 of the Constitution of India. Be it stated here that respondents No. 1 & 2 have got deep and pervasive control upon respondent No.3, which is a society registered under the H.P. Cooperative Societies Act and Rules. Respondent No. 3 is functioning strictly in accordance with Act, Rules and Bye-Laws framed and approved by respondent No.2. It is submitted, subject to correction, that State has got more than 55% share capital in respondent No.3 bank. As per provisions of the Act and Rules, respondent No.3 cannot move an inch for any of its functions without approval of the Registrar Cooperative Societies, respondent No.2. It is submitted that as per section 35-B of the Act, Managing Director of respondent No.3 is always from Himachal Pradesh Administrative Services (HPAS) and as per section 35 of the Act, three nominations to the Board of Directors of respondent No. 3 are made by the Government. As per rule 56(3) of 1971 Rules, no employee or salaried officer or servant can be employed by the society, whose remuneration is exceeding Rs.1,000/- without the previous permission of the Registrar. Registrar Cooperative Societies ::: Downloaded on - 15/04/2017 21:52:43 :::HCHP 4 under section 35-A of the Act has got powers to constitute new Committee. Government has got powers as per section 37 to supersede the Managing Committee and as per section .
38, possession of the records can be secured. Society is bound to comply with all directions as may be issued by the State Government. The Board of Directors, which is incharge of general superintendence/ direction and control of the powers of the society and all its income and property, is also largely controlled by the nominees of the State. Thus, the State Government, by reason of the provision of approval stated supra, has got full deep and pervasive control of the working of the society, thus, respondent No. 3 is State within the meaning of Article 12 of the Constitution of India. It is of submitted that representations filed by petitioners on the basis of directions issued by this Hon'ble Court now having been decided as per statute by the Joint Registrar Cooperative Societies, H.P., Shimla, vide orders dated 18.8.2012, and the rt dispute between petitioners and respondent No. 3 having been decided vide statutory orders passed, stated supra, thus now gives jurisdiction to assail the same by invoking powers as vested in this Hon'ble Court under Articles 226 and 227 of the Constitution of India, respondents are amenable to the writ jurisdiction of this Hon'ble Court. Further, as per judgement of the Full Bench of this Hon'ble Court, statutory orders of the authorities are being assailed, thus, also this Hon'ble Court has the jurisdiction."
7. It is on the strength of such pleadings that writ jurisdiction of this court has been sought to be invoked.
8. We are afraid that we cannot agree with the submissions of the petitioners because all these contentions have already been dealt with and discussed in detail by the learned Division Bench in Chandresh Kumar Malhotra's case and it is after taking into consideration the entire facts and law that this court held as follows:-
"98. Consequently, we have no hesitation in holding that the three Societies, namely, The Himachal Pradesh State Co- operative Bank Ltd; The Kangra Central Co-operative Bank Ltd,, and the Himachal Pradesh State Co operative Marketing and Development Federation Ltd , are not 'other authorities' and, as such, cannot be characterised as 'State' when the meaning of Art. 12 of the Constitution and the same are also not authority within the meaning and for the purpose of Article 226 of the Constitution, Order passed by the Societies under their respective service regulations against its employees, as such, or in connection With employment cannot be corrected by way of writ petitions. The petitions also would not be maintainable in order to challenge the action of the Registrar since the same is not an exercise of statutory power conferred upon him under the provisions of the Act or the Rules but an exercise of powers by him under service regulations framed under Bye-laws having no force of law. The writ petition also will not be maintainable since none of the three Societies are discharging any public functions."
9. Faced with such situation, the petitioners would then contend that the orders passed by the Registrar and thereafter by the ::: Downloaded on - 15/04/2017 21:52:43 :::HCHP 5 State government were statutory and therefore, a writ against an order passed by the statutory authority was maintainable.
.
10. There would have been no dispute in case the orders impugned herein could be termed to have been passed by the statutory authority in exercise of powers conferred upon it by the Act and Rules, because in that event undisputedly the writ petition would be maintainable before this court. However, the of moot question again herein is as to whether the orders passed by the respondents i.e. Registrar and the State Government can be termed to be statutory orders.
rt
11. Admittedly, the dispute raised by the petitioners pertained to a service matter and therefore, even if this court had relegated the petitioners to the Registrar/ State government, could the orders be termed to be in exercise of the statutory powers? The obvious answer is no, for more than one reasons. Firstly, the dispute of an employee and employer relationship is not a dispute, which touches the constitution, management or business of the cooperative societies and therefore, is not amenable to the jurisdiction of the Registrar under section 72 of the Act [Re: Morinda Coop. Sugar Mills Ltd. Vs. Morinda Coop.Sugar Mills Workers Union, 2006 6 SCC 80]. Secondly even if this court had relegated the petitioners before the Registrar/ State government, the orders passed by them would not clothe the orders so passed with statutory colour, as the same are not in exercise of statutory powers conferred upon them under the provisions of the Act and Rules as held in Chandresh Kumar Malhotra .
12. The petitioners would then contend that Cooperative bank is subject to the control of the statutory authorities like the Registrar, Joint Registrar, the government and therefore, amenable to the writ jurisdiction of this court.
13. Even this submission of the petitioners cannot be accepted, firstly because of the decision of this court in Chandresh Kumar Malhotra's case , wherein this court had held:-
"..... The petitions also would not be maintainable in order to challenge the action of the Registrar since the same is not an exercise of statutory power conferred upon him under the ::: Downloaded on - 15/04/2017 21:52:43 :::HCHP 6 provisions of the Act or the Rules but an exercise of powers by him under service regulations framed under Byelaws having no force of law.... "
.
And, secondly, on account of all these submissions having already been considered by the Hon'ble Supreme Court in S.S.Rana vs. Registrar, Co-operative Societies and another, 2006 11 SCC 634, wherein the provisions of H.P. Cooperative Societies Act and Rules have been considered and it has been held that general regulations under an Act like the Companies Act or the Cooperative Societies Act would not render the activities of the Company or Societies as subject to control of the State. It has further been observed that such of control was only in terms of the provisions of the Act and was meant to ensure proper functioning of the society and the State or statutory authority would have nothing to do with its day-to-day functions.
rt
14. The petitioners would then urge that this court in Vikram Chauhan case has clearly held that a writ would lie against the cooperative bank if the facts and circumstances so warrant despite it not being a State within the meaning of Article 12 of the Constitution in exercise of the powers under Article 226 of the Constitution and relied upon the following observations:
"15. For the view taken by us on both facets of the referred questions, we proceed to answer the Reference as under:
(1) XXX XXX XXX.
(2) XXX XXX XXX.
(3) XXX XXX XXX.
(4) As regards the second part of the question as to whether a writ would lie against the stated Cooperative Banks, we hold that it is not appropriate to give a definite answer to this question. For, it would depend on several attending factors.
Further, even if the said Banks were held to be not a State within the meaning of Article 12, the High Court in exercise of powers under Article 226 of the Constitution of India, can certainly issue a writ or order in the nature of writ even against any person or Authority, if the fact situation of the case so warrants. In other words, writ can lie even against a Corporative Society. Whether the same should be issued by the High Court would depend on the facts of each case."
15. We are afraid that even this submission is without merit. This court in Chandresh Kumar Malhotra's case has clearly held the respondent- bank not to be a "State" within the meaning of Article 12 of the Constitution and also not an authority within the meaning and for the purpose of Article 226 of the Constitution. (Referred: para-98, quoted above), which judgement has been affirmed by the Hon'ble Full Bench.
16. Further, it would be seen that the learned Division Bench of this court while hearing CWP No. 3634 of 2012 vide its order ::: Downloaded on - 15/04/2017 21:52:43 :::HCHP 7 dated 20.7.2012 referred the following question for consideration by the Full Bench:-
.
"Whether the Kangra Central Co-operative Bank, the Himachal Pradesh State Co-operative Bank Ltd. And the Jogindra Central Co-operative Bank, are 'State' within the meaning of Article 12 of the Constitution of India and whether a writ would lie against them?"
17. The Hon'ble Full Bench while proceeding to answer the question observed that question as formulated raised two of independent issues. Firstly, whether the stated Cooperative Banks are "State" within the meaning of Article 12 of the Constitution and the second which was held to be independent rt of the first question was whether a writ would lie against those cooperative banks. It is in this background that this court while answering the second question held as follows:-
"12. That takes us to the second part of the question formulated by the Division Bench, as to whether a writ would lie against the stated Cooperative Banks? This question, essentially, touches upon the scope of power of the High Courts to issue certain writs as predicated in Article 226 of the Constitution of India. This is completely independent issue. In a given case, in spite of the opinion recorded by the Court that the respondent concerned in a writ petition, filed under Article 226 of the Constitution of India, is not a State within the meaning of Article 12 of the Constitution of India. Even then, the High Court can exercise jurisdiction over such respondent in view of the expansive width of Article 226 of the Constitution of India. It is well established position that the power of the High Courts under Article 226 is as wide as the amplitude of the language used therein, which can affect any person even a private individual and be available for any other purpose even one for which another remedy may exist Rohtas Industries Ltd. and another vs. Rohtas Industries Staff Union and others, 1976 2 SCC 82. In the case of Engineering Mazdoor Sabha and another vs. Hind Cycles Ltd., 1963 AIR(SC) 874, the Court opined that even if the Arbitrator appointed under Section 10-A is not a Tribunal for the purpose of Article 136 of the Constitution in a proper case, a writ may lie against his Award under Article 226 of the Constitution. In the case of Praga Tools Corporation vs. C.A. Imanual and others, 1969 1 SCC 585the Apex Court held that it as not necessary that the person or the Authority on whom the statutory duty is imposed need be a public official or an official body. That a mandamus can be issued even to an official or a Society to compel him to carry out the terms of the statute under or by which the Society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorizing their undertakings. Further, a mandamus would lie against a Company constituted by a statute for the purposes of fulfilling public responsibilities. In the same decision, the Apex Court examined the amplitude of the term "Authority" used in Article 226 of the Constitution. The Court opined that it must receive liberal meaning unlike the term in Article 12 of the Constitution. It went to observe that the words "any person or ::: Downloaded on - 15/04/2017 21:52:43 :::HCHP 8 authority" used in Article 226 cannot be confined only to statutory authorities and instrumentalities of the State. It may cover any other person or body performing public duty .
irrespective of the form of the body concerned. It is emphasized that what is relevant for exercising power is the nature of the duty imposed on the body which must be a positive obligation owned by the person or Authority. Depending on that finding, the Court may invoke its authority to issue writ of mandamus. In the case of Life Insurance Corporation of India vs. Escorts Ltd. and others, 1986 1 SCC 264the Constitution Bench opined that the question must be "decided in each case" with reference to particular action, the activity in which the State or the instrumentality of the State is of enacted when performing the action, the public law or private law, character of the Constitution and most of the other relevant circumstances. In a given case, it may be possible to issue writ of mandamus for enforcement of public duty which need not necessarily to be one imposed by statute. It may be rt sufficient for the duty to have been imposed by charter, common law, custom or even contract, as noted by Professor de Smith, which exposition has found favour with the Apex Court.
13. The Apex Court after referring to catena of decisions and authorities in the case of UP State Cooperative Land Development Bank Ltd . Vs. Chandra Bhan Dubey and others, 1999 1 SCC 741has succinctly delineated the scope of authority under Article 226 of the Constitution. In para 27 of this decision, the Court opined that Article 226 while empowering the High Court for issue of orders or direction to any Authority or person does not make any difference between public functions or private functions, but did not go to elaborate that question in the fact situation of that case. It is unnecessary to multiply the authorities on the point except to observe that a writ would lie against even a Cooperative Society or Company. But that does not mean that the Court is bound to issue such a writ. It is the prerogative of the High Court to issue writ to any person or authority, which is not a State or an instrumentality of the State. The Court would do so with circumspection and keeping in mind the well defined parameters. Whether in the fact situation of a given case, the Court ought to exercise its authority to issue writ or order in the nature of writ under Article 226 of the Constitution, will have to be answered on the basis of the settled principles, on case to case basis. Thus, it will be inapposite to put it in a straight jacket manner that every writ petition filed against the Cooperative Banks must be dismissed as not maintainable or otherwise.
14. Counsel appearing for the parties invited our attention to several other decisions. However, we do not intend to dilate on all those authorities any further, except to mention the same. Counsel appearing for the Kangra Bank had relied on two Judges Bench decision in the case of Zorastrian Cooperative Housing Society Ltd. and another vs. District Registrar, Cooperative Societies (Urban and others), 2005 5 SCC 632(para 32), which took the view that a Cooperative Society cannot be treated as State unless it fulfills the tests spelt out in Ajay Hasia's case by the Constitution Bench of the Apex Court, followed in the case Praga Tools . Reference was also made to the seven Judges Bench of the Apex Court in the case of Pradeep Kumar Biswas vs. Indian Institutes of Chemical Biology and others, 2002 5 SCC 111(paras 1 to 4 and 40) and another decision in the case of Bhadra Shahakari ::: Downloaded on - 15/04/2017 21:52:43 :::HCHP 9 S.K. Niyamita vs. Chitradurga Mazdoor Sangh and others, 2006 8 SCC 552(para 3), which deals with the question as to whether the appellant, Cooperative Society can be treated as .
State within the meaning of Article 12 of the Constitution. The learned Senior counsel for the H.P. Cooperative Society invited our attention to the decision of two Judges Bench of the Apex Court in General Manager, Kishan Sahkari Chini Mills Ltd. Sultanpur, UP vs. Satrughan Nishad and others, 2003 8 SCC 639(paras 6 to 8), to contend that even if it is a case of nominated Directors of Society that does not presuppose that the State has perennial control over the Society. Reliance is also placed on the another decision of the Apex Court in the case of Shri Anadi Mukta Sadguru of S.M.V.S.J.M.S. Trust vs. V.R. Rudani and others, 1989 AIR(SC) 1607(paras 14 to 16 and 19 to 21) and in case of Zee Telefilms Ltd. and another vs. Union of India and others, (2005) 4 SCC 649 (paras 8,9 and 35): (AIR 2005 SC 2677)"
rt
18. It was on the basis of the aforesaid reasoning that the principle in paragraph-15(4) was laid down by the Hon'ble Full Bench which have been completely read out of context by the petitioners. The fact situation in the present case does not attract the applicability of the principles laid down therein. This is not a case where the respondents have been imposed with the public duty, as already held by this court in Chandresh Kumar Malhotra's case . Moreover, it is settled law that it is neither desirable nor permissible to pick out a word or a sentence from the judgement, divorced from the context of the question under consideration and treat it to be the complete 'law' declared by the Court. The judgement must be read as a whole and the observations from the judgement have to be considered in the light of the questions which were before the Court. A decision of the Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, the courts must carefully try to ascertain the true principle laid down by the decision of the Court and not to pick out words or sentences from the judgement, divorced from the context of the questions under consideration by the Court, to support their reasoning. (See: Commissioner of Income Tax vs. Sun Engineering Works (P) Ltd., 1992 4 SCC 363. Likewise, it is also to be borne in mind that the observations in the judgement cannot be read like a text of a statute or out of context. [See: Hindustan Steel Works Construction Ltd. Vs. Tarapore & Co. and another, (1996) 5 SCC 34] : (AIR 1996 SC 2268).
::: Downloaded on - 15/04/2017 21:52:43 :::HCHP 1019. The preliminary objection raised by respondent No. 3 is required to be upheld for yet another reason, which is on .
account of the recent judgement rendered by the Hon'ble Supreme Court in Thalappalam Ser. Co-op. Bank Ltd. and others vs. State of Kerala and others, 2013 AIR(SCW) 5683. No doubt, the primary issue in this case pertained to the applicability of the provisions of Right to Information Act to the Cooperative society and also the Registrar. However, one of the of issues therein also related to the question as to whether the cooperative society was a "State" within the meaning of Article 12 of the Constitution. The Hon'ble Supreme Court after rt discussing the entire law on the subject has come to a categorical finding that the cooperative societies which were the subject matter of the lis do not fall within the expression "State" or an "instrumentality of the State" within the meaning of Article 12 of the Constitution and were therefore, not subject to all constitutional limitations as enshrined in Part-III of the Constitution. The relevant finding of the Hon'ble Supreme Court is as follows:-
"Co-operative Societies and Article 12 of the Constitution:
13. We may first examine, whether the Co-operative Societies, with which we are concerned, will fall within the expression "State" within the meaning of Article 12 of the Constitution of India and, hence subject to all constitutional limitations as enshrined in Part III of the Constitution. This Court in U.P. State Co-operative Land Development Bank Limited v. Chandra Bhan Dubey and others, 1999 1 SCC 741, while dealing with the question of the maintainability of the writ petition against the U.P. State Cooperative Development Bank Limited held the same as an instrumentality of the State and an authority mentioned in Article 12 of the Constitution. On facts, the Court noticed that the control of the State Government on the Bank is all pervasive and that the affairs of the Bank are controlled by the State Government though it is functioning as a co-operative society, it is an extended arm of the State and thus an instrumentality of the State or authority as mentioned under Article 12 of the Constitution. In All India Sainik Schools employees Association v. Defence Minister- cum- Chairman Board of Governors, Sainik Schools Society, New Delhi and others, 1989 Supp1 SCC 205, this Court held that the Sainik School society is "State" within the meaning of Article 12 of the Constitution after having found that the entire funding is by the State Government and by the Central Government and the overall control vests in the governmental authority and the main object of the society is to run schools and prepare students for the purpose feeding the National Defence Academy.
14. This Court in Executive Committee of Vaish Degree College, Shamli and Others v. Lakshmi Narain and Others, ::: Downloaded on - 15/04/2017 21:52:43 :::HCHP 11 1976 2 SCC 58, while dealing with the status of the Executive Committee of a Degree College registered under the Co- operative Societies Act, held as follows:
.
'10 ..It seems to us that before an institution can be a statutory body it must be created by or under the statute and owe its existence to a statute. This must be the primary thing which has got to be established.
Here a distinction must be made between an institution which is not created by or under a statute but is governed by certain statutory provisions for the proper maintenance and administration of the institution. There have been a number of institutions which though of not created by or under any statute have adopted certain statutory provisions, but that by itself is not, in our opinion, sufficient to clothe the institution with a statutory character ..
rt
15. We can, therefore, draw a clear distinction between a body which is created by a Statute and a body which, after having come into existence, is governed in accordance with the provisions of a Statute. Societies, with which we are concerned, fall under the later category that is governed by the Societies Act and are not statutory bodies, but only body corporate within the meaning of Section 9 of the Kerala Co- operative Societies Act having perpetual succession and common seal and hence have the power to hold property, enter into contract, institute and defend suites and other legal proceedings and to do all things necessary for the purpose, for which it was constituted. Section 27 of the Societies Act categorically states that the final authority of a society vests in the general body of its members and every society is managed by the managing committee constituted in terms of the bye-laws as provided under Section 28 of the Societies Act. Final authority so far as such types of Societies are concerned, as Statute says, is the general body and not the Registrar of Cooperative Societies or State Government.
16. This Court in Federal Bank Ltd. v. Sagar Thomas and Others, (2003) 10 SCC 733: (AIR 2003 SC 4325) held as follows:
"32. Merely because Reserve Bank of India lays the banking policy in the interest of the banking system or in the interest of monetary stability or sound economic growth having due regard to the interests of the depositors etc. as provided under Section 5(c)(a) of the Banking Regulation Act does not mean that the private companies carrying on the business or commercial activity of banking, discharge any public function or public duty. These are all regulatory measures applicable to those carrying on commercial activity in banking and these companies are to act according to these provisions failing which certain consequences follow as indicated in the Act itself. As to the provision regarding acquisition of a banking company by the Government, it may be pointed out that any private property can be acquired by the Government in public interest. It is now a judicially accepted norm that private interest has to give way to the public interest. If a private property is acquired in public interest it does not mean that the party whose property is acquired is performing or discharging any ::: Downloaded on - 15/04/2017 21:52:43 :::HCHP 12 function or duty of public character though it would be so for the acquiring authority."
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17. Societies are, of course, subject to the control of the statutory authorities like Registrar, Joint Registrar, the Government, etc. but cannot be said that the State exercises any direct or indirect control over the affairs of the society which is deep and all pervasive. Supervisory or general regulation under the statute over the co-operative societies, which are body corporate does not render activities of the body so regulated as subject to such control of the State so as to bring it within the meaning of the "State" or instrumentality of the State. Above principle has been approved by this Court of in S.S. Rana v. Registrar, Co-operative Societies and another, 2006 11 SCC 634. In that case this Court was dealing with the maintainability of the writ petition against the Kangra Central Co- operative Society Bank Limited, a society registered under the provisions of the Himachal Pradesh Co-operative rt Societies Act, 1968. After examining various provisions of the H.P. Co-operative Societies Act this Court held as follows Para 9 of AIR SCW):
"9. It is not in dispute that the Society has not been constituted under an Act. Its functions like any other cooperative society are mainly regulated in terms of the provisions of the Act, except as provided in the bye-laws of the Society. The State has no say in the functions of the Society. Membership, acquisition of shares and all other matters are governed by the bye- laws framed under the Act. The terms and conditions of an officer of the cooperative society, indisputably, are governed by the Rules. Rule 56, to which reference has been made by Mr. Vijay Kumar, does not contain any provision in terms whereof any legal right as such is conferred upon an officer of the Society.
10. It has not been shown before us that the State exercises any direct or indirect control over the affairs of the Society for deep and pervasive control. The State furthermore is not the majority shareholder. The State has the power only to nominate one Director. It cannot, thus, be said that the State exercises any functional control over the affairs of the Society in the sense that the majority Directors are nominated by the State. For arriving at the conclusion that the State has a deep and pervasive control over the Society, several other relevant questions are required to be considered, namely, (1) How was the Society created? (2) Whether it enjoys any monopoly character? (3) Do the functions of the Society partake to statutory functions or public functions? and (4) Can it be characterised as public authority?
11. Respondent 2, the Society does not answer any of the aforementioned tests. In the case of a non- statutory society, the control thereover would mean that the same satisfies the tests laid down by this Court in Ajay Hasia v. Khalid Mujib Sehravardi. [See Zoroastrian Coop. Housing Society Ltd. v. Distt. Registrar, Coop. Societies (Urban), 2005 AIR(SCW) 2317]
12. It is well settled that general regulations under an Act, like the Companies Act or the Cooperative ::: Downloaded on - 15/04/2017 21:52:43 :::HCHP 13 Societies Act, would not render the activities of a company or a society as subject to control of the State. Such control in terms of the provisions of the Act are .
meant to ensure proper functioning of the society and the State or statutory authorities would have nothing to do with its day-to-day functions."
18. We have, on facts, found that the Co-operative Societies, with which we are concerned in these appeals, will not fall within the expression "State" or "instrumentalities of the State"
within the meaning of Article 12 of the Constitution and hence not subject to all constitutional limitations as enshrined in Part III of the Constitution. We may, however, come across of situations where a body or organization though not a State or instrumentality of the State, may still satisfy the definition of public authority within the meaning of Section 2(h) of the Act, an aspect which we may discuss in the later part of this rt Judgment."
20. In view of the aforesaid clear exposition of law not only of this court but also the Hon'ble Supreme Court, we find merit in the preliminary objection raised by respondent No. 3 regarding the maintainability of the petition against the H.P. State Cooperative Bank and uphold the same and accordingly declare this petition to be not maintainable against the H.P. State Cooperative Bank. Since the relief in this petition is primarily claimed against the said bank, therefore, the petition itself is not maintainable and accordingly the same is dismissed leaving the parties to bear their own costs."
4. However, the learned counsel for the petitioner(s) would vehemently argue that since the question of jurisdiction is already pending adjudication before the Hon'ble Supreme Court in SLP filed against the judgment in Sanjeev Kumar's case (supra), these petitions be kept pending. They would further contend that the appeal filed in Sanjeev Kumar's case (supra), has been ordered to be tagged in a case titled 'Raj Kumar versus State of Himachal Pradesh and others, Special Leave to Appeal (C) No.2258 of 2016 wherein the judgment passed by this Court holding the Bank to be not amendable to the writ jurisdiction infact has been stayed.
5. We do not find any merit in this contention for the simple reason that though the Hon'ble Supreme Court vide order dated ::: Downloaded on - 15/04/2017 21:52:43 :::HCHP 14 01.02.2016 preferred against the judgment rendered in CWP No.4487 of 2015 had initially stayed the result of examination for filling of the .
posts in Kangra Central Cooperative Bank Limited held on 22.11.2015 by passing the following orders:-
"Exemption from filing certified copy of the impugned order and exemption from filing official translation is allowed.
of Issue notice.
The respondent No.2 shall not declare the result of the examination for filling up posts in the Kangra Central rt Cooperative Bank Ltd. held on 22.11.2015, in the meanwhile."
6. However, this order was subsequently vacated on 13.05.2016 by the Hon'ble Supreme Court by passing the following orders:-
"The dispute in the matter is regarding the filling up of posts by the respondents. The petitioner before this Court was also one of the applicants challenging the legality of the process adopted by the respondents in filling up the above-mentioned posts. Confronted with the question whether the petitioner who is an applicant for one of the posts can in law maintain the instant writ petition, learned counsel for the petitioner submitted that he withdraws his application for the employment and proposes to pursue the matter in public interest.
In the circumstances, recording the statement of the learned counsel for the petitioner, we grant leave in the matter. The respondents are at liberty to proceed with the selection process. Any appointment made to the selection process will be subject to the result of the appeal."
7. The mere fact that the SLP against the judgment(s) rendered by this Court is sub-judice before the Hon'ble Supreme Court is no ground to keep these writ petitions pending on the dockets of this Court, more particularly, in view of the decisions rendered by this Court from time to time, as has been taken note of in Sanjeev Kumar's case (supra) and in view of the subsequent decisions rendered by this Court ::: Downloaded on - 15/04/2017 21:52:43 :::HCHP 15 in Surjeet Singh versus State of H.P. and others 2015 (5) ILR (HP) 926, Pushpa Sharma versus State of H.P. and others 2015 (5) ILR .
1363, Raj Kumar versus The State of H.P. and others 2015 (6) ILR 1179, Mohar Singh Thakur versus State of H.P. & others 2015 LIC 4020, Bipin Chand Sood and others versus State of H.P. and others 2016 (4) ILR 1317 holding therein that the writ petitions against of the Bank are not maintainable.
8. Having said so, both these writ petitions are held to be not rt maintainable and accordingly dismissed. However, the petitioner(s) are at liberty to seek appropriate remedy, if any, available.
9. The petitions are disposed of in the aforesaid terms, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of. Registry is directed to place a copy of this judgment on the file of connected matter.
(Tarlok Singh Chauhan), Judge.
January 07, 2017. (Chander Bhusan Barowalia), (krt) Judge.
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