Orissa High Court
Unknown vs Chief Executive Officer on 23 August, 2024
ORISSA HIGH COURT : CUTTACK
W.P.(C) No.18811 of 2021
In the matter of an Application under
Articles 226 and 227 of the Constitution of India, 1950
***
1. Susanta Kumar Panda Aged about 50 Years Son of Late Janardan Panda Junagarh Branch.
2. Iswari Prasad Patjoshi Aged about 58 Years Son of Dambarudhara Patjoshi Dharmagarh Branch.
3. Sanurjya Meher Aged about 50 Years Son of Late Krushna Chandra Meher Lanjigarh Branch.
4. Chakradhara Dash Aged about 56 Years Son of Late Udayanath Dash Sadar Branch.
5. Sudhakara Mishra Aged about 56 Years Son of Late Basudev Mishra Junagarh Branch.
6. Bibhisan Meher Aged about 55 Years Son of Joy Shankar Meher Junagarh Branch.
W.P.(C) No.18811 of 2021 Page 1 of 407. Ram Krushna Meher Aged about 51 Years Son of Kamal Lochan Meher Kalampur Branch.
8. Kambupani Kabir Aged about 57 Years Son of Shika Charan Kabir Dharmagarh Branch.
9. Indramani Ch. Majhi Aged about 54 Years Son of Kamadev Ch. Majhi Koksara Branch.
10. Dibas Kumar Pradhani Aged about 54 Years Son of Dhabaleswar Pradhani Koksara Branch.
11. Rajendra Kharsel Aged about 55 Years Son of Ganeshram Kharsel Golmunda Branch.
12. Budhiman Patra Aged about 54 Years Son of Mahendra Patra Junagarh Branch.
All the petitioners are now working as Banking Assistants under Bhawanipatna Central Co-Operative Bank, At/P.O.: Bhawanipatna District: Kalahandi. ... Petitioners.
-VERSUS-
1. Chief Executive Officer Bhawanipatna Central Co-Operative Bank, W.P.(C) No.18811 of 2021 Page 2 of 40 At/P.O.: Bhawanipatna District: Kalahandi.
2. Principal Agricultural Co-Operative Staff Training Institute Odisha State Co-Operative Bank At/P.O.: Bhubaneswar District: Khordha.
3. Bhabagrahi Bishi Aged about 59 Years presently working as Assistant Supervisor in Sadar Branch Kalahandi.
4. Suchitra Routray Aged about 57 Years presently working as Junior Assistant in Sadar Branch Kalahandi.
5. Hrusikesh Mishra Aged about 57 Years presently working as Junior Assistant in Evening Branch At/P.O./District: Kalahandi.
6. Prahallad Mund Aged about 57 Years presently working as Assistant Supervisor in Dharmagarh Branch At/P.O.: Dharmagarh, District: Kalahandi.
7. Anjan Kumar Meher Aged about 55 Years working as Junior Assistant in Dharmagarh Branch At/P.O.: Dharmagarh, District: Kalahandi.
8. Padma Lochan Meher Aged about 55 Years W.P.(C) No.18811 of 2021 Page 3 of 40 presently working as Junior Supervisor in Dharmagarh Branch At/P.O.: Dharmagarh, District: Kalahandi.
9. Biranchi Narayan Negi Aged about 57 Years presently working as Junior Supervisor in Dharmagarh Branch At/P.O.: Dharmagarh, District: Kalahandi.
10. Sahadev Panda Aged about 58 Years presently working as Junior Assistant in Junagarh Branch At/P.O.: Junagarh, District: Kalahandi.
11. Ajambila Bishi Aged about 55 Years presently working as Junior Supervisor in Junagarh Branch At/P.O.: Junagarh, District: Kalahandi.
12. Umesh Chandra Dash Aged about 58 Years presently working as Junior Supervisor in Junagarh Branch At/P.O.: Junagarh District: Kalahandi.
13. Sudhansu Sekhar Mishra Aged about 59 Years presently working as Junior Supervisor in Jaipatna Branch At/P.O.: Jaipatna, District: Kalahandi.
14. Narayan Thakur aged about 53 Years presently working as Junior Supervisor in Jaipatna Branch At/P.O.: Jaipatna, District: Kalahandi.
W.P.(C) No.18811 of 2021 Page 4 of 4015. Gariba Chandra Lahajal Aged about 56 Years presently working as Junior Supervisor in Jaipatna Branch At/P.O.: Jaipatna, District: Kalahandi.
16. Sribachha Mahananda Aged about 56 Years presently working as Junior Supervisor in Jaipatna Branch At/P.O.: Jaipatna, District: Kalahandi.
17. Fakir Mohan Thakur Aged about 58 Years presently working as Junior Assistant in Kamalpur Branch At/P.O.: Kamalpur, District: Kalahandi.
18. Suresh Chandra Satapathy Aged about 54 Years presently working as Junior Supervisor in Kamalpur Branch At/P.O.: Kamalpur, District: Kalahandi.
19. Lingaraj Rana Aged about 57 Years presently working as Junior Supervisor in Kamalpur Branch At/P.O.: Kamalpur, District: Kalahandi.
20. Tribhuban Pradhani Aged about 57 Years presently working as Junior Supervisor in Kamalpur Branch At/P.O.: Kamalpur, District: Kalahandi.
21. Raghunath Naik Prasad Aged about 51 Years presently working as Junior Assistant in Koksara Branch At/P.O.: Koksara, District: Kalahandi.
W.P.(C) No.18811 of 2021 Page 5 of 4022. Pradeep Kumar Panda Aged about 56 Years presently working as Junior Supervisor in Koksara Branch At/P.O.: Koksara, District: Kalahandi.
23. Ramesh Chandra Sethy Aged about 54 Years presently working as Junior Supervisor in Khariar Branch At/P.O.: Khariar, District: Nuapada.
24. Harendra Kumar Pradhan Aged about 57 Years presently working as Junior Assistant in Komna Branch At/P.O.: Komna, District: Nuapada.
25. Surendra Pradhan Aged about 57 Years presently working as Junior Supervisor in Komna Branch At/P.O.: Komna, District: Nuapada.
26. Prasanna Kumar Naik Aged about 54 Years presently working as Junior Supervisor in Sinapali Branch At/P.O.: Sinapali, District: Nuapada.
27. Pramod Kumar Khamari Aged about 56 Years presently working as Junior Assistant in Kesinga Branch At/P.O.: Kesinga, District: Kalahandi.
28. Himanshu Sekhar Dash Aged about 59 Years presently working as Junior Supervisor in Kesinga Branch At/P.O.: Kesinga, District: Kalahandi.
W.P.(C) No.18811 of 2021 Page 6 of 4029. Kishore Chandra Panda Aged about 55 Years presently working as Junior Assistant in Khariar Road Branch At/P.O.: Khariar Road, District: Nuapada.
30. Pradeep Kumar Chandrakar Aged about 56 Years presently working as Junior Supervisor in Khariar Road Branch, At/P.O.: Khariar Road, District: Nuapada.
31. Ashok Kumar Bhoi Aged about 55 Years presently working as Assistant Supervisor in Khariar Road Branch At/P.O.: Khariar Road, District: Nuapada.
32. Biswambar Bag Aged about 57 Years presently working as Junior Assistant in Khariar Road Branch At/P.O.: Khariar Road, District: Nuapada.
33. Subash Chandra Satapathy Aged about 57 Years presently working as Assistant Supervisor in Golamunda Branch At/P.O.: Golamunda, District: Kalahandi.
34. Sanjukta Satapathy Aged about 52 Years presently working as Junior Assistant in Rampur Branch At/P.O.: Rampur, District: Kalahandi.
35. Manoranjan Chand Aged about 57 Years presently working as Junior Assistant in Narla Branch At/P.O.: Narla, District: Kalahandi.
W.P.(C) No.18811 of 2021 Page 7 of 4036. Ajaya Kumar Dash Aged about 43 Years presently working as Junior Assistant in Narla Branch At/P.O.: Narla District: Kalahandi.
37. Mohanlal Ray Aged about 59 Years presently working as Junior Assistant in Bhawanipatna Branch At/P.O.: Bhawanipatna, District: Kalahandi.
38. Umashankar Barik Aged about 57 Years presently working as Junior Assistant in Bhawanipatna Branch At/P.O.: Bhawanipatna, District: Kalahandi
39. Saroj Kumar Patra Aged about 56 Years presently working as Junior Assistant in Bhawanipatna Branch At/P.O.: Bhawanipatna, District: Kalahandi.
40. Biswanath Goud Aged abut 52 Years presently working as Junior Assistant in Bhawanipatna Branch At/P.O.: Bhawanipatna District: Kalahandi. ... Opposite parties.
Counsel appeared for the parties:
For the Petitioners : M/s. Ranjit Samal, Satyajit Samal, S. Samal and P. Samal, Advocates For the Opposite party : M/s. Satya Ranjan Pati, No.1 S. Mohanty and K. Nayak, Advocates For the Opposite party : M/s. Dhananjay Mund, Nos.6, 7, 21, 29, 35, 39 Salauddin Khan, W.P.(C) No.18811 of 2021 Page 8 of 40 and 40 Pratap Kumar Behera, Ankann Panda and Sumant Sahu, Advocates P R E S E N T:
HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Dates of Hearing : 23.08.2024 :: Date of Judgment : 23.08.2024 J UDGMENT MURAHARI SRI RAMAN, J.--
Assailed in the writ petition is the List of Banking Assistants declared eligible for appearing in Written (Merit) Test scheduled to be held on 20.06.2021 for promotion of Banking Assistants-I to next higher grade, i.e., Assistant Manager-II issued by the Chief Executive Officer, Bhawanipatna Central Co-operative Bank, Bhawanipatna in the district of Kalahandi, as enclosed to Letter Reference No.1208-- OSCB (ACST) Trg./2019-
20, dated 11.06.2021 of the Principal, Agricultural Cooperative Staff Training Institute, for invocation of provisions under Article 226/227 of the Constitution of India with the following prayer(s):
"The petitioners therefore most respectfully pray that this Hon'ble Court may be graciously pleased to:
i) admit this case,
ii) issue notice to opposite parties for show cause;W.P.(C) No.18811 of 2021 Page 9 of 40
iii) quash the list of Banking Assistants eligible for appearing Written (Merit) Test issued by Chief Executive Officer, Bhawanipatna Central Co-
Operative Bank, Bhawanipatna in the district of Kalahandi which is was held on 20.06.2021 under Annexure-4 and no result shall be published without leave of the Hon'ble Court till the final adjudication of the writ application and direct the opposite party No.1 to allow the petitioners to participate in the aforesaid Test along with 38 candidates in another date fixed by this Hon'ble Court;
And pass such further order/orders, direction/directions as deemed fit and proper in the facts and circumstances of the case and allow the case with cost;
And for this act of kindness the petitioner as in duty bound shall ever pray."
Facts:
2. The facts as adumbrated in the writ petition reveal that the petitioners, appointees by the Chief Executive Officer, Bhawanipatna Central Co-Operative Bank, Bhawanipatna, District of Kalahandi, (the opposite party No.1) as Banking Assistants in the various Branches, have been placed in the Final Gradation List published in 2015 at Serial No.111, 126, 112, 129, 125, 102, 118, 135, 110, 100, 116 and 130 respectively.
2.1. The Chief Executive Officer, Bhawanipatna Central Cooperative Bank Ltd., the opposite party No.1, issued a Letter No.67/HR/GAD/2020-21, dated 12.04.2021 to the Principal, Agricultural Cooperative Staff Training W.P.(C) No.18811 of 2021 Page 10 of 40 Institute-opposite party No.2 for conducting Written Examination in consonance with Rule 17 of the Human Resource Policy for the Central Cooperative Banks of Odisha incorporating the Staff Service Rules, 2011 ("HR Policy" for brevity) for filling up of fourteen vacant posts of Assistant Manager-II by way of promotion.
2.2. While the said process was in progress, the Chief Executive Officer, Bhawanipatna Central Co-operative Bank, Bhawanipatna in the district of Kalahandi, the opposite party No.1, by Letter Reference No.1208--
OSCB (ACST) Trg./2019-20, dated 11.06.2021 addressed to the Principal, Agricultural Cooperative Staff Training Institute instructed to conduct Merit (Written) Test for promotion of Banking Assistants-I to next higher grade, i.e., (Assistant Manager-II) of Bhawanipatna Central Co-Operative Bank, Bhawanipatna in tune with the provisions under Rule 17 of HR Policy.
2.3. The case of the petitioners is that the promotion policy mentioned in sub-rule (d) of Rule 17 of the HR Policy laid down that, "Promotion may be based on Written Test, interview and Performance Appraisal for Group-C to Group-B, and Group-B to Group-A. For promotions within Group-A, it could be based on interview and Performance Appraisal. 3 times of the number of vacancies for promotion shall be called for the tests."
W.P.(C) No.18811 of 2021 Page 11 of 402.4. Though the required number of participants in the interview were forty-two, at the time of interview only thirty-eight participants (the opposite party Nos.3 to 40), as their names appeared in the Gradation List at SI. Nos.13, 42, 51, 20, 43, 81, 93, 28, 99, 79, 62, 96, 94, 90, 27, 75, 68, 85, 50, 91 80, 47, 77, 117, 39, 63, 44, 61, 40, 45, 37, 55, 46, 54, 36, 22, 48, 49 respectively, were allowed to face the test/interview, which is objected to by the petitioners as not only violative of the promotional guidelines of the HR Policy but also the principles of natural justice. As per the promotional guidelines of the HR Policy three times of the participants of the total vacancies should have been called to appear in the interview, but in the instant case though the number of vacancies were 14, list of 38 Banking Assistants were published allowing them to appear in Written (Merit) Test. The names of the petitioners being not placed in the said list, they have approached this Court to ventilate their common grievance by way of present writ application.
2.5. Realising that their turn would not come for promotion in near future, the petitioners fervently requested to allow them to participate in the Merit (Written) Test along with the aforesaid 38 Banking Assistants which was scheduled be held on 20.06.2021.
Counter affidavit of the opposite party No.1:
W.P.(C) No.18811 of 2021 Page 12 of 403. Apropos grievance of non-adherence of provisions of Rule 17 of the HR Policy, the opposite party No.1 asserted by way of counter affidavit that the subject- Bank has sponsored names of forty-two numbers of Banking Assistants to appear in the written test for promotion to the post of fourteen numbers of Assistant Manager-II, but out of forty-two numbers of Banking Assistants whose names were shortlisted and sponsored by the Bank to the Agricultural Cooperative Staff Training Institute of Odisha State Cooperative Bank Ltd. for conducting Written Test, two got retired in the meanwhile and two have expired and one did not attend the Written Test.
3.1. Expanding the explanation further, the opposite party No.1 has submitted that forty-six numbers of Assistant Manager posts called as "Junior Management (Group-A)"
have been sanctioned as per HR Policy. Out of these forty-six numbers of Assistant Managers ["Junior Management (Group-A)"], 60% is reserved for direct recruitment which comes to twenty-eight posts and 40% is reserved for promotion to be made from the Banking Assistant (Group B) as per the HR Policy, 2011 of the Odisha State Cooperative Bank Ltd.
3.2. Posts of the Assistant Manager and the Banking Assistant have been categorized as I and II by amending the said Staff Service Rules, 2011 by Office Order W.P.(C) No.18811 of 2021 Page 13 of 40 No.7937, dated 16.03.2020 of the Registrar of Cooperative Societies, Odisha Bhubaneswar. Accordingly, the posts of Assistant Manager-II (40%) of sanctioned posts are required to be filled up by way of promotion from the Banking Assistant-I Grade as per the amended provision of the Staff Service Rules.
3.3. The Registrar of Cooperative Societies, Odisha, Bhubaneswar has allowed the Bank for promotion of fourteen numbers of Assistant Manager vide Letter No.4065-- XIV-41/17(Pt), dated 07.02.2020. Accordingly, the Chief Executive Officer of the Bank requested the opposite party No.2 vide Letter No. 67-- HR/GAD/2020-21, dated 12.04.2021 to conduct the Merit (Written) Test of the sponsored Banking Assistant- I, i.e., three times of vacancies in each category as required under sub-rule (d) of Rule 17 of HR Policy 2011. Selection of personnel as per seniority was made on the basis of Gradation List of Banking Assistants (from Serial 1 to 41 and 51) and also taking into consideration of the Odisha Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Act, 1975 to fill up the posts of fourteen numbers of Assistant Manager-II, category-wise as approved by the District Welfare Officer, Kalahandi vide Letter No.362, dated 11.02.2021 in conformity with the provisions of Rule 17 of the HR Policy 2011.W.P.(C) No.18811 of 2021 Page 14 of 40
3.4. It is further made clear that out of fourteen numbers of Assistant Manager-II, nine posts were meant for candidates of General Category, three posts were reserved for ST Category (22.5%) while two posts were for SC Category candidates (16.25%).
3.5. In pursuance of the request Letter dated 12.04.2021 of the Chief Executive Officer of the Bank, the Principal of Agricultural Cooperative Staff Training Institute, Odisha State Cooperative Bank Ltd. has decided to conduct the Merit (Written) Test of forty-two sponsored Banking Assistant-I candidates at Head Quarter of the Bank at Bhawanipatna on 20.04.2021 for promotion of Assistant Manager Grade-II (Group A) from Banking Assistant-I (Group B) as per the amended provision of HR Policy for Central Cooperative Bank of Odisha with a request to provide infrastructure and logistic support for conducting the Merit (Written) Test.
3.6. It is asserted by said opposite party that the petitioners are juniors to the candidates who appeared in the Written Test as per the Gradation List. The Bank has sponsored forty-two numbers of Banking Assistants on 12.04.2021 for appearing in the Written Test to the opposite party No.2 from out of seventy-two numbers of Banking Assistants-I from the Gradation List including twelve writ petitioners whose names find place at Serial Nos.48, 56, 49, 57, 55, 43, 52, 62, 47, 42, 50 and 58 W.P.(C) No.18811 of 2021 Page 15 of 40 respectively. Therefore, it is contended that the names of the petitioners being placed in the Gradation List below Serial No.41, they were not found eligible to appear in the Written Test.
3.7. Having explained thus merit of the matter, the opposite party No.1 has raised objection as to maintainability of the instant writ petition under Article 226/227 of the Constitution of India.
Counter affidavit of the other opposite parties:
4. It is put forth by the rest of the opposite parties, who have entered appearance through M/s. Dhananjaya Mund, Advocate and Associates, other than the opposite party Nos.1 and 2 that the Chief Executive Officer having recommended names of forty-two candidates on 12.4.2021, thirty-seven candidates could appear in the Written Examination held on 20.06.2021 and the Merit List has already been prepared since 02.07.2021.
4.1. Raising question of maintainability, these opposite parties have stated that the challenge as laid in the writ petition is not amenable to writ jurisdiction under Article 226/227 of the Constitution of India as alternative remedy is available under provisions of Section 68 of the Odisha Cooperative Societies Act, 1962 ("OCS Act", for short).
W.P.(C) No.18811 of 2021 Page 16 of 404.2. The opposite party No.1 sponsored names of forty-two eligible candidates of Banking Assistant vide Letter dated 12.4.2021 to appear in the Written Test as per HR Policy for the Central Cooperative Bank, Odisha incorporating the Staff Service Rules, 2011, i.e., three time of the vacancies. The names of the petitioners are placed at much below in the Gradation List. Therefore, they were found ineligible to appear in the Written Test. As per Rule 17(d) of the HR Policy, promotion can be based on Written Test, Interview and Performance Appraisal from Group-C to Group-D and from Group-B to Group-A. The promotion within Group-A could be based on Interview and Performance Appraisal. Three times number of vacancies for promotion would be called for the Test. In the instant case, the names of forty-two numbers of Banking Assistants were sponsored to appear the test for promotion on 12.04.2021. Out of forty-two sponsored candidates, two have been retired and two have died and one has not attended the written test, for which it has been shown as absent in result sheet.
4.3. Opposing vehemently, these opposite parties have made statement by urging that the petitioners being juniors to the candidates whose names were sponsored to appear in the Written Test as per the Gradation List and their positions are at much below in the Seniority List the writ petition filed at their behest is not entertainable.
W.P.(C) No.18811 of 2021 Page 17 of 40Consideration of rival contentions and Conclusion:
5. Sri Ranjit Samal, learned Advocate advanced argument that as the petitioners are deprived of participating along with other sponsored candidates, their promotional prospects are at stake. The opposite party Nos.1 and 2 have failed to act in consonance with the HR Policy qua fourteen vacant posts by not sponsoring forty-two candidates, i.e., three times of vacancies. As is admitted by the opposite parties only thirty-eight candidates were called for the Test, there was no occasion to deny these petitioners to participate in the Test along with others.
5.1. Per contra, Sri Satya Ranjan Pati, learned counsel appearing for the opposite party Nos.1 and 2 would submit that in fact these opposite parties have followed scrupulously the terms of HR Policy and forty-two candidates were found selected for appearing in the Test. However, due to events subsequent to sponsoring the candidates, the Test could be conducted in respect of thirty-seven Banking Assistants (as two got retired, two expired and one did not choose to appear).
5.2. Sri Satya Ranjan Pati, learned Advocate for the opposite party Nos.1 and 2 and Sri Akansh Acharya, learned Advocate appearing on behalf of M/s. Dhananjaya Mund, Advocate and associates, vehemently opposed to entertain the writ petition inasmuch as Merit List has already been prepared since 02.07.2021 and the W.P.(C) No.18811 of 2021 Page 18 of 40 grievance of the petitioners could be agitated before the competent authority as laid in Section 68 of the OCS Act. For ready reference Section 68 of the OCS Act is extracted hereunder:
"68. Disputes which may be referred to arbitration.--
(1) Notwithstanding anything contained in any other law for the time being in force, any dispute touching the constitution, management or the business of a Society, other than a dispute required to be referred to the Tribunal and a dispute required to be adjudicated under the Industrial Disputes Act, 1947 (14 of 1947), and a dispute relating to non-payment of contribution to the Co-operative Education Fund referred to in sub-section (3) of Section 56 shall be referred to the Registrar if the parties thereto are among the following, namely:
(a) the Society, its Committee, past Committee, any past or present Officer or office bearer, any past or present agent, any past or present servant, or the nominee, legal heir or representative of any deceased officer, office-
bearer, deceased agent or deceased agent or deceased servant of the Society; or
(b) a member, past member, or a person claiming through a member, past member or deceased member of the Society, or of a Society which is a member of the Society; or
(c) a surety of a member, past member or a deceased member, whether such surety is or is not a member of the Society; or W.P.(C) No.18811 of 2021 Page 19 of 40
(d) any other Society.
Explanation-I.--
A claim in respect of any sum payable to or by a Society by or to a person or Society mentioned in clauses (a) to (d), shall be a dispute touching the business of the Society within the meaning of this Section, even in case such claim is admitted and the only points at issue are the ability to pay and the manner of enforcement of payment.
Explanation-II.--
A claim by a Financing Bank against a member of a Society which is a member of the Financing Bank and indebted to it for the recovery of dues payable by such member to the Society shall be a dispute touching the business of the of the Financing Bank within the meaning of this Section.
Explanation-III.--
The question whether a person is or was a member of a Society or not shall be a dispute within the meaning of this Section.
Explanation-IV.--
A claim by a surety for any sum or payment due to him from the principal borrower in respect of a loan advanced by a Society shall be a dispute within the meaning of this Section.
Explanation-V.--
The question whether a person or any one of his family members is carrying on any business prejudicial to the business or interests of the Society, W.P.(C) No.18811 of 2021 Page 20 of 40 or whether such family member has common economic interest with such person shall be a dispute within the meaning of this Section.
(2) Any person, Society, or Financing Bank referring a dispute to the Registrar under sub-section (1) shall deposit in advance such fees as may be prescribed.
(3) No dispute referred to in this Section shall be entertained in any Civil Court and decision of the Registrar in this respect shall, subject to the provisions of Section 70, be final.
(4) If any question arises whether a dispute referred to the Registrar under this Section is a dispute touching the constitution, management or the business of a Society, the decision thereon of the Registrar shall be final and shall not be called in question in any Court.
(5) Nothing in this Section shall, where the dispute relates to the recovery of the dues of any Society from any of its members be construed to debar any Financing Bank of such Society from referring such dispute to the Registrar."
5.3. With the aforesaid unambiguous statutory provision, Sri Satya Ranjan Pati, learned Advocate citing Natha Kharsel Vrs. Registrar, Cooperative Societies and Others, W.P.(C) No.15129 of 2010, disposed of vide Judgment dated 12.08.2024, wherein a coordinate Bench of this Court followed a Full Bench decision rendered in the case of Banabihari Tripathy Vrs. Registrar of Cooperative Societies, Odisha and Another, 1988 (II) OLR 375, submitted that the issue whether cooperative society is W.P.(C) No.18811 of 2021 Page 21 of 40 amenable to writ jurisdiction under Article 226/227 of the Constitution of India is no more res integra. The Bhawanipatna Central Cooperative Bank Ltd., by merely getting registered under the OCS Act, does not acquire the status of an "authority" as contemplated in Article 12 of the Constitution of India.
5.4. After threadbare analysis of constitution of the Cooperative Bank, this Court in Full Bench in the case of Banabihari Tripathy (supra) has set forth as follows:
"*** When this writ application was placed before a Division Bench of this Court, it referred the matter to a larger Bench to consider the following two questions:
1 Whether the cooperative societies registered under a Cooperative Societies Act as such will come within the fold of Article 12 of the Constitution of India and are amenable to the writ jurisdiction of the High Court? (In case the answer is in the negative), 2 Whether the cooperative society is born under any statute or is discharging any such functions which may make it an 'instrumentality of the State'? (Second question is recasted)
15. *** Answer to question No.1.--
A cooperative society on merely getting registered under the Cooperative Societies Act does not acquire W.P.(C) No.18811 of 2021 Page 22 of 40 any status of becoming an authority to render it amenable to the writ jurisdiction of the High Court. The supervisory powers given to the Registrar is with the objects of better working of the societies and to give them guidance of well-trained or expert officers.
Answer to question No.1.--
If a Cooperative Bank is born under or created by statute, then it may acquire the status of an 'authority' within the meaning of Article 12 of the Constitution. Otherwise, it has to satisfy the essential tests formulated by the various decisions of the Supreme Court for which, however, there cannot be a straitjacket formula. However, it may not be necessary that the society must satisfy all the tests for qualifying to be an 'authority' and in a given case, only some of the prominent features may give it that status. But that must be so predominant that on tearing the veil, it may appear that the society is merely a projection of the State, the voice being that of a State and the hands also of the State.
16. As a result of the above discussion, I unhesitatingly come to the irresistible conclusion that this application is not maintainable and is accordingly dismissed. The petitioner, however, will be at liberty to seek his remedy, if any, available under the general law."
5.5. Natha Kharsel (supra) was a case where challenge was against termination of service of Cadre Secretary of the Bhawanipatna Central Cooperative Bank Ltd. which got confirmed by an appellate order. Writ petition being filed W.P.(C) No.18811 of 2021 Page 23 of 40 against such decision, this Court, while dismissing said petition, observed in Natha Kharsel (supra) as follows:
"Moreover, Section 67B of the OCS Act provides for an alternative forum with regard to the dispute arising in connection with the disciplinary action taken by a Society or its Committee against any paid servant of the Society. Similarly Section 113 of the OCS Act also provides for an alternative forum in the State Government to exercise the power of revision, wherein the grievance of the petitioner could have been looked into, but the petitioner has neither approached the Tribunal nor the State to invoke/exercise original or revisional power to redress this grievance."
5.6. This Court wishes to have regard to a decision of this Court rendered in the case of Radhakrishna Vrs. Aditya Birla Finance Ltd., 2020 SCC OnLine Ori 189, wherein it has been observed as follows:
"9. In this context, it would be profitable to refer to the decision of the Supreme Court as rendered in the case of Federal Bank Ltd. Vrs. Sagar Thomas, reported in AIR 2003 SC 4325. Though the said judgment is rendered in the context of a private company carrying on banking business, the ratio of the said decision can apply with equal force to non- banking financial company like opposite party No.1 which stands more or less on the same footing. There the Supreme Court has made it clear that a writ petition under Article 226 of the Constitution of India may be maintainable against
(i) the State (Govt.);
(ii) Authority;W.P.(C) No.18811 of 2021 Page 24 of 40
(iii) a statutory body;
(iv) an instrumentality or agency of the State;
(v) a company which is financed and owned by the State;
(vi) a private body run substantially on State funding;
(vii) a private body discharging public duty or positive obligation of public nature;
(viii) a person or a body under liability to discharge any function under any Statute, to compel it to perform such a statutory function.
In such background, on the private banking company, the Supreme Court observed that the banking is a kind of profession and a commercial activity and the primary motive behind it is to earn returns and profits. It works like any other private company in the banking business having no monopoly status. These companies have been voluntarily established for their own purpose and interest but their activities are kept under check so that their activities may not go way ward and harm the economy in general. After discussing the provisions of the Reserve Bank of India Act and Banking Regulation Act, the Supreme Court held that the guidelines provided therein are to maintain proper fiscal discipline and if need arises, the management of the company can be taken over. Therefore, the above noted Acts as discussed earlier mainly contain regulatory provisions to keep a check on their functioning and provide guidelines and do not reflect participatory dominance or control over W.P.(C) No.18811 of 2021 Page 25 of 40 the affairs of such company. In such back ground, these private companies would normally not be amenable to the writ jurisdiction. But in certain circumstances, a writ may issue against such private bodies where these violate statutory provisions. When there is no violation of any statutory provisions, a writ may not be issued at all. It also made clear that there is nothing on the basis of which it can be said that carrying on the profession of banking as akin to carrying on Governmental functions. Rather banking is an old profession in one form or the other carried on by individuals or by a group of them. Losses incurred in the business are theirs as well as the profits. Any business or commercial activity-may be banking or others no doubt have impact on the economy of the country in general, but such activities cannot be classified as one falling in the category of discharging of duties/functions of public nature. Merely because the Reserve Bank of India lays the banking policy in the interest of the banking system or in the interest of monetary stability, it does not mean that private companies carrying on the business of banking, discharge any public function or public duty. Thus, ultimately, the Supreme Court held that the writ petition against Federal Bank is not maintainable.
10. Hence as indicated earlier on an analysis of different provision of the Reserve Bank of India Act, 1934, it is clear that the non-banking financial companies only indulge in ordinary business or commercial activities which cannot be described as akin to Governmental function. Therefore, following the ratio of the above noted judgment, these activities cannot be classified as one falling under W.P.(C) No.18811 of 2021 Page 26 of 40 the category of discharging of public function or public duty. Thus the opposite party No.1 cannot be covered either under parameter (vii) or (viii) as delineated in Federal Bank case (supra). Admittedly other six parameters are not attracted to the present case. The above ratio has also been referred to in the decision of the Supreme Court in the case of Ramakrishna Mission Vrs. Kago Kunya, reported in (2019) 5 Scale 559 = (2019) 5 SCR 452."
5.7. It may also be worthy of taken note of the decision of the Hon'ble Supreme Court of India in State of Assam Vrs. Barak Upatyaka D.U. Karmachari Sanstha, (2009) 4 SCR 467, wherein following observations find place:
"2. CAMUL is a society registered under the Assam Co-
operative Societies Act, 1949 ('Act' for short). Respondent, a Trade Union representing the workers of CAMUL, filed the said writ petition (Civil Rule No.2996 of 1995) contending that the State Government formed and registered CAMUL as a co- operative society to run its cattle development project; that its Board of Directors including the Managing Director (always a Government servant, on deputation) were appointed by the State Government; that the post of the Managing Director of CAMUL was declared to be a post equivalent to a Head of Department under the State Government; that initially the entire staff of CAMUL were drawn on deputation from the Veterinary, Agriculture & Co- operative Departments of the State Government; that in a phased manner, those employees were reverted back to their Parent Departments and replaced by the staff appointed by CAMUL, through a Selection Board set up by the State Government with W.P.(C) No.18811 of 2021 Page 27 of 40 representatives from the Central Government and National Dairy Development Board; that State Government sanctioned the staffing pattern of CAMUL; that from the year 1982-83 onwards the Government was extending financial assistance by way of grants to CAMUL to meet the expenditure (including the expenditure relating to its employees); and that for the years 1994-95 though the State Government had sanctioned financial assistance in a sum of Rs. 7 lakhs as grant-in-aid, it was not disbursed and consequently CAMUL did not pay the monthly salaries to its employees from December 1994 onwards. It is contended that State Government had all pervasive control over the affairs and management of CAMUL and therefore it should be treated as a department of Government of Assam, though registered as a co-operative society by lifting the corporate veil. It was further contended that State Government was responsible and liable to pay the salaries and emoluments of the employees of CAMUL and it was not justified in withholding the grant amount. The respondent union therefore sought a direction to the State Government to release the arrears of pay and allowances of employees of CAMUL with effect from December 1994 and for a direction to continue to pay the salary and allowances to the employees of CAMUL, every month in future. In addition to the State Government (respondent No.1) and its officers (respondents 2 to
4), the Union of India (respondent No.5) and CAMUL and its Managing Director (respondents 6 and 7) were impleaded as parties to the writ petition.
*** W.P.(C) No.18811 of 2021 Page 28 of 40
5. The various averments of the respondent in the writ petition, about the all pervasive financial, administrative and functional control of CAMUL by the State Government, even if assumed to be true, may at best result in CAMUL being treated as 'State' within the meaning of that expression under Article 12 of the Constitution of India. If it is a 'State', in case of violation of any of the fundamental rights of its employees, by CAMUL as employer, the employees were entitled to claim relief against CAMUL, by taking recourse to a writ petition under Article 226 of the Constitution of India. But the fact that a corporate body or co-operative society answers the definition of 'State' does not make it the 'State Government', nor will the employees of such a body, become holders of civil posts or employees of the State Government. Therefore the fact that the CAMUL may answer the definition of 'State' does not mean that the State Government is liable to bear and pay the salaries of its employees. CAMUL indisputably is a co-operative society registered under the provisions of the Assam Cooperative Societies Act, 1949. Section 85 of the said Act provides that every registered society shall be deemed to be a body corporate by the name under which it is registered, with perpetual succession and a common seal, and with power to hold property, to enter into contracts, institute and defend suits and other legal proceedings and to do all things necessary for the purposes for which it was constituted. Therefore, CAMUL, even if it was 'State' for purposes of Article 12, was an independent juristic entity and could not have been identified with or treated as the State Government. ***"
W.P.(C) No.18811 of 2021 Page 29 of 405.8. A writ, therefore, lies only against a person if it is a statutory body or performs a public function or discharges a public or a statutory duty, or a 'State' within the meaning of Article 12 of the Constitution. (Vide, Anandi Mukta Sadguru Trust Vrs. V.R. Rudani, AIR 1989 SC 1607; VST Industries Ltd. Vrs. VST Industries Workers' Union & Anr., (2001) 1 SCC 298; and State of Assam Vrs. Barak Upatyaka U.D. Karamchari Sanstha AIR 2009 SC 2249).
5.9. In Anandi Mukta Sadguru Trust Vrs. V.R. Rudani, AIR 1989 SC 1607 it has been succinctly stated that the phrase "any person or authority" employed in Article 226 of the Constitution of India is not confined to statutory bodies and Government instrumentalities. Instead, it extends to any individual or entity engaged in performing a public function.
5.10. K.K. Saksena Vrs. International Commission on Irrigation and Drainage, (2014) 14 SCR 892, laid down the principles to determine whether an institution can be said to be comprehended in the connotation of "State" so as to fall within the ken of Article 12 of the Constitution of India:
"15. The Court also took into consideration and referred to the following passage from the judgment in Pradeep Kumar Biswas & Ors. Vrs. Indian Institute of Chemical Biology & Ors., (2002) 5 SCC 111:W.P.(C) No.18811 of 2021 Page 30 of 40
'40. The picture that ultimately emerges is that the tests formulated in Ajay Hasia Vrs. Khalid Mujib Sehravardi, (1981) 1 SCC 722 are not a rigid set of principles so that if a body falls within any one of them it must, ex hypothesi, be considered to be a State within the meaning of Article 12. The question in each case would be-- whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State.'
16. The aforesaid judgment was relied upon by another Constitution Bench in M/s. Zee Telefilms Ltd. & Anr. Vrs. Union of India & Ors., (2005) 4 SCC 649. In that case, the Court was concerned with the issue as to whether Board of Control for Cricket in India (BCCI) is a 'State' within the meaning of Article 12 of the Constitution. After detailed discussion on the functioning of the BCCI, the Constitution Bench concluded that it was not a 'State' under Article 12 and made the following observations in this behalf:
'30. However, it is true that the Union of India has been exercising certain control over the activities of the Board in regard to organising cricket matches and travel of the Indian team abroad as also granting of permission to allow the foreign teams to come to India. But this control over the activities of the Board cannot W.P.(C) No.18811 of 2021 Page 31 of 40 be construed as an administrative control. At best this is purely regulatory in nature and the same according to this Court in Pradeep Kumar Biswas case [(2002) 5 SCC 111] is not a factor indicating a pervasive State control of the Board.'
17. Before arriving at the aforesaid conclusion, the Court had summarized the legal position, on the basis of earlier judgments, in para 22, which reads as under:
'22. Above is the ratio decidendi laid down by a seven-Judge Bench of this Court which is binding on this Bench. The facts of the case in hand will have to be tested on the touchstone of the parameters laid down in Pradeep Kumar Biswas case [(2002) 5 SCC 111]. Before doing so it would be worthwhile once again to recapitulate what are the guidelines laid down in Pradeep Kumar Biswas case [(2002) 5 SCC 111] for a body to be a State under Article 12. They are:
'(1) Principles laid down in Ajay Hasia [(1981) 1 SCC 722] are not a rigid set of principles so that if a body falls within any one of them it must ex hypothesi, be considered to be a State within the meaning of Article 12.
(2) The question in each case will have to be considered on the basis of facts available as to whether in the light of the cumulative facts as established, the body is financially, functionally, administratively dominated, by or under the control of the Government.W.P.(C) No.18811 of 2021 Page 32 of 40
(3) Such control must be particular to the body in question and must be pervasive.
(4) Mere regulatory control whether under statute or otherwise would not serve to make a body a State."
5.11. In the case of Thalappalam Service Cooperative Bank Ltd.
Vrs. State of Kerala, (2013) 14 SCR 475, it has been observed by the Hon'ble Supreme Court of India as follows:
"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 in S.S. Rana 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 Societies Act, 1968. After examining various provisions of the H.P. Cooperative Societies Act this Court held as follows:
'9. It is not in dispute that the Society has not been constituted under an Act. Its functions W.P.(C) No.18811 of 2021 Page 33 of 40 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?
W.P.(C) No.18811 of 2021 Page 34 of 40(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 Vrs. Khalid Mujib Sehravardi, (1981) 1 SCC 722. [See Zoroastrian Coop. Housing Society Ltd. Vrs. Distt. Registrar, Coop. Societies (Urban).]
12. It is well settled that general regulations under an Act, like the Companies Act or the Cooperative 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."
5.12. This Court in the case of Ch. Ajeet Kumar Das Vrs.
Registrar, Co-operative Societies, Odisha, W.P.(C) W.P.(C) No.18811 of 2021 Page 35 of 40 No.18641 of 2020, vide Judgment dated 31.07.2024 has taken the view that the Cuttack Central Cooperative Bank neither falls within the meaning of "State" nor "instrumentality of the State" as envisaged under Article 12 of the Constitution of India.
5.13. In Kulwinder Singh Vrs. State of Haryana, 2019 (2) ILR-
Punjab and Haryana 1036 it has been stated as follows:
"(6) It is a settled principle of law that the writ petition is only maintainable against the Government or instrumentality of the State as envisaged under Article 12 of the Constitution of India. The Hon'ble Supreme Court of India has laid down guidelines as to when the Cooperative Society can be treated as an instrumentality of the State so that the writ petition is maintainable. In General Manager, Kisan Sahkari Chini Mills Ltd., Sultanpur, U.P. versus Satrughan Nishad and others, (2003) 8 SCC 639, the Hon'ble Supreme Court of India has held that there should be a deep and persuasive control of the Government over the Cooperative Society not only administratively but financially as well, so as to treat the said Cooperative Society as an instrumentality of the State. In Satrughan Nishad's case (supra), where the Government had 50% of the share, was treated as non-amenable to the writ jurisdiction. The relevant paragraph of the said judgment is as under:
'7. In the case of Pradeep Kumar Biswas Vrs.
Indian Institute of Chemical Biology and others (2002) 5 SCC 111, a Bench of seven Judges of this Court, in para 27 of its judgment has noted W.P.(C) No.18811 of 2021 Page 36 of 40 and quoted with approval in extenso the aforesaid tests propounded in International Airport Authority case (supra) [Ramana Dayaram Shetty Vrs. International Airport Authority of India, (1979) 3 SCC 489] and approved in the case of Ajay Hasia (supra) for determining as to when a corporation can be said to be an instrumentality or agency of the Government so as to come within the meaning of the expression 'authority' in Article 12 of the Constitution. There the Bench referred to the case of Chander Mohan Khanna Vrs. NCERT (1991) 4 SCC 578 where, after considering the memorandum of association and the rules, this Court came to the conclusion that NCERT was largely an autonomous body and its activities were not wholly related to governmental functions and the government control was confined only to the proper utilisation of the grants and since its funding was not entirely from Government resources, the case did not satisfy the requirements of the State under Article 12 of the Constitution. Further, reference was also made in that case to the decision of this Court in Mysore Paper Mills Ltd. Vrs.
Mysore Paper Mills Officers' Association and another, (2002) 2 SCC 167, where it was held that the company was an authority within the meaning of Article 12 of the Constitution as it was substantially financed and financially controlled by the Government, managed by a Board of Directors nominated and removable at the instance of the Government and carrying on important functions of public interest under the control of the Government.' W.P.(C) No.18811 of 2021 Page 37 of 40 (7) Further, this Court while deciding CWP No.10234 of 2014 titled as Rajbir Singh versus The Sonepat Central Cooperative Bank Ltd., Sonepat and another, decided on 15.09.2018, has held that even the Sonepat Central Cooperative Bank has been held to be not amenable to the writ jurisdiction of this Court. This Court relied upon Satrughan Nishad's case (supra) to hold that the Cooperative Societies are not amenable to the writ jurisdiction of this Court. ***"
5.14. With such conspectus, when the instant matter is examined this Court finds no material particulars on record being furnished nor did the learned Advocate for the petitioners argue to demonstrate that contrary view could be taken than that is taken by the Full Bench of this Court and in the light of other decisions as referred to above. Nothing tangible has been placed before this Court to show that the State exercises any direct or indirect control over the affairs of the Society for deep and pervasive control. It cannot, thus, be said that the State exercises any functional control over the affairs of the Society. There exists no pleadings whatsoever to show that either the opposite party No.1 is a "State"
within the meaning of Article 12 of the Constitution or is under an obligation to discharge any statutory function vis-a-vis the grievance raised by the petitioners.
5.15. It has not been brought on record that the Society has been constituted under an Act. It functions like any W.P.(C) No.18811 of 2021 Page 38 of 40 other Co-operative Society and is regulated in terms of the provisions of the OCS Act and as provided in the bye-laws of the Society. The State has no control over 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 Co-operative Society, indubitably, are governed by the Rules/Regulations. General regulations under the OCS Act would not render the activities of the Bhawanipatna Central Cooperative Bank Ltd., a society, subject to control of the State. Such control in terms of the provisions of the OCS 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 affairs of the bank. Merely because the subject-Bank is subject to the control of statutory authorities such as the Registrar, Joint Registrar, and the Government does not imply that the State exercises direct or indirect control over the society's affairs in a manner that is deep and all-pervasive.
6. This Court is, therefore, of the opinion that the Bhawanipatna Central Cooperative Bank Ltd. is not amenable to writ jurisdiction of this Court under Article 226/227 as the Bhawanipatna Central Cooperative Bank Ltd. does not qualify as a "State" or "instrumentality of the State" within the meaning of Article 12 of the Constitution of India.
W.P.(C) No.18811 of 2021 Page 39 of 407. In the result, the writ petition fails and hereby dismissed. For the reasons discussed above and the legal position made clear by the Courts, the prayer of the petitioners to allow them to participate along with the opposite party Nos.3 to 40 cannot, thus, be acceded to.
7.1. As a sequel to dismissal of the writ petition, the interim orders passed in the matter stand vacated.
7.2. In the circumstances, there shall be no order as to costs.
(MURAHARI SRI RAMAN) JUDGE High Court of Orissa, Cuttack The 23rd August, 2024//MRS/LAXMIKANT Signature Not Verified Digitally Signed Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 27-Aug-2024 13:33:58 W.P.(C) No.18811 of 2021 Page 40 of 40