INTRODUCTION
Yatindra Singh, J.
1. Is a Cooperative Society a State within the meaning of Article 12 of the Constitution of India? Does it perform public functions? is a writ petition maintainable against it for violation of non-statutory provision? What is meaning of the phrase, whose area of operation extends to more than one district occurring in the notification dated 4th March. 1972 (the 1972 Notification) under Section 122 of the U.P. Co-operative Societies Act. 1965 (the Co-operative Societies Act)? These are the questions involved in these writ petitions. But before adverting to the facts of the cases, I would tike to explain meaning of few words as used by me in this judgment and details of the Appendix appended to this Judgment.
WORDS AND DETAILS OF THE APPENDICES
2. In this Judgment, following words have meaning assigned to them below :
(i) The Co-operative Societies Act means the U.P. Co-operative Societies Act. 1965.
(ii) The Banking Regulation Act means the Banking Regulation Act. 1949.
(iii) The rules means the U.P. Cooperative Societies Rules, 1968 framed under the Co-operative Societies Act.
(iv) The 1975 Regulations, means U.P. Co-operative SocietiesEmployees Service Regulations, 1975.
(v) The 1972 notification means Notification No. 366-C/XII-C-3-36-71, dated 4th March. 1972 under Section 122 of the Cooperative Society Act constituting the Board.
(vi) The Bank means Nagareeya Shakarl Bank Ltd., Lahuraveer (Ram Katora], Varansi.
(vii) The Board means U.P. Cooperative Industrial Services Board constituted under the 1972 notification.
(viii) 'The DR' means the Deputy Registrar Co-operative Societies of the Varanasi Division, Varanasl.
(ix) 'Private body' means a body that is not a State,
(x) 'RBR means the Reserve Bank of India.
(xi) 'State' means a body, which is State within the meaning of Article 12 of the Constitution.
3. The details of Appendixes at the end of this Judgment are as follows :
1. Appendix I.--Contains dates of appointments of the petitioners in different petitions.
2. Appendix II.--Contains one appointment letter and one termination order. The other letters of appointment and termination orders are similar.
3. Appendix III.--Contains relevant extract of the order of the DR discharging show cause notice for suspension of the committee of management.
4. Appendix IV.--Contains Section 128 of the Co-operative Societies Act.
5. Appendix V.--Contains relevant regulations of the 1975 Regulations.
6. Appendix VI.--Contains relevant sections of the Banking Regulation Act.
7. Appendix VII.--Contains few words regarding comments of Lord Simonds, 'naked usurpation of the legislative function under the thin disguise of Interpretation in Magor and St. Meltons Rural District Council v. Newport Corporation, 1951 (2) All ER 839 (at page 841) referred to paragraph 38 of this judgment.
THE FACTS
4. Nagareeya Sahkari Bank Ltd., Lahuraveer (Ram Katora}, Varanasi (the Bank) is a co-operative society registered under the Cooperative Societies Act. The Bank was registered under the Co-operative Societies Act. The Bank took licence from the RB1 for doing Banking business and was registered, under the Co-operative Societies Act. Its area of operation was mentioned as municipal limits of Varanasi Nagar Mahapalika. It was within one district, namely, Varanasi District. Subsequently, it took permission for opening new branches from the RB1 and was granted permission to start business at 8 other centres. These 8 places, at the time when permission was granted, were within District Varanasi. Thereafter proceedings were taken for amendment of the bylaws for including these 8 places in its area of operation. This was considered by the Deputy Registrar of Co-operative Societies, Varanasi Division (the DR) on 3.2.1993. At that time, one place, namely. Bhadohl separate district. The DR granted permission to start business only at 7 pleaces : Bhadohi was excepted by its order dated 3.2.1993. The DR and the Bank confined Its area within Varanasi district. Mughalsarai was one of the seven newly added places in the area of operation of the Bank. It was part of Varanasi district at that time.
5. The State of U. P. carved out a new district Chandauli by notification dated 25th May. 1997, Mughalasari, which was earlier in Varanasi District, now has become part of district Chandauli. The result is that all centres of the Bank were earlier in Varanasi district, now one at Mughalsarai is in Chandauli district. At present, it has centres in two districts.
6. Petitioners were appointed on different dated after new district of Chandauli was carved out. This was in the year 1997 and 1998. A chart showing details of writ petitions, names of the petitioners and dates of their appointments is appended as Appendix I to this judgment. Appointment letters of all petitioners are similar. One such letter is appended as Appendix II to this judgment. Other letters of appointment are similar. They were appointed on temporary basis. It was also mentioned there that they might be considered for being made permanent after one year in event of their work being satisfactory.
7. An elected committee of management managed the Bank at the time of petitioners' appointment. The committee of management of the Bank was suspended on 9th October. 1998 and a show cause notice was given. There were many charges against the committee of management. One such charge was that the committee of management had made appointments of the petitioners without taking approval from the Board that was necessary under the 1975 Regulations. The committee of management submitted its reply and after considering the same, the Deputy Registrar. Varanasi Division (the DR) discharged the notice by his order dated 27th May, 1999. The relevant part of his order is appended as Appendix III to this judgment. Subsequently, the term of the committee of management came to an end and an Administrator was appointed. He is still functioning.
8. The administrator issued notices to the petitioners to show causes as to why their appointments may not be cancelled. The petitioner submitted their reply and thereafter by the different orders dated 17th June, 2000, their appointments have been cancelled. It is on the ground that the 1975 Regulations were applicable and the approval of the Board was not taken before their appointments. The order also states that separate proceedings for recovering the amount paid to them. as salary will be undertaken. Onesuch order is appended as Appendix 11 to this Judgment. The other termination orders are similar.
POINTS FOR DETERMINATION
9. I have heard counsel for the parties. Following points arise for determination in this case.
(i) Whether every co-operative society, registered under the Co-operative Societies Act. Is a State?
(ii) If the answer to the above question is 'no' and there are co-operative societies that are not State or are private bodies then whether a writ petition is maintainable against a cooperative society (that is not a State) for violation of non-statutory provisions? Whether all activities of a co-operative society are public in nature?
(iii) Whether the Bank is covered by the 1975 Regulations?
(a) What are the consequences if the Bank is not covered by the 1975 Regulations?
(b) If the Bank is covered by the 1975 Regulations, then what are its consequences?
(iv) Whether the petitioners are entitled to any relief?
THE FIRST TWO POINTS-CONFLICTING DECISIONS
10. The first two points are related with each other. They may be taken together. Courts have explained the meaning of the word 'State' in Article 12 of the Constitution. The law has expanded in this regard. Many co-operative societies are undoubtedly State within the meaning of Article 12 of the Constitution. The reason could be many :
* There may be majority shareholding of the Government ;
* Members themselves could be ex officio State officials ;
* A co-operative society may be performing functions over other Co-operative Societies that it cannot do unless sovereign powers are conferred upon them. But are all co-operative societies, 'State' within the meaning of Article 12 of the Constitution? The respondents submit that if this be so, then all companies. societies lawyers, doctors are also State ; all of them are registered under one Act or the other.
11. There may be different situations when a person could take recourse to a writ petition under Article 226 of the Constitution of India. These situations may broadly be categorised as follows :
(i) State acting in violation of statutory provision (Constitutional or any other statutory provision of law.)
(ii) State acting in violation of its own policy matters, administrative instructions that are not statutory in nature.
(iii) State performing public duty under common law (not imposed by statutory provisions).
(iv) Private body acting in violation of statutory provision.
(v) Private body acting in public sphere or performing functions of public nature, without there being any statutory provision.
(vi) Private body acting in violation of policy matters or bylaws or instructions that are not statutory in nature.
(vii) Private body (that never performs in public sphere) performing functions of private nature or acting in private sphere.
In which of the aforesaid situations, is a writ petition maintainable?
12. A writ petition is maintainable so far as categories (i) to (v) of preceding paragraph are concerned. Whereas it is not maintainable so far as category (vii) is concerned. Appropriate remedy in this case is to take legal proceedings if provided under any law, or to file a suit. But what about category (v) and (vi). Is a writ petition maintainable?
Full Bench-Rerdha Charan Case
13. Radha Charan case, is a Full Bench decision of our court. The question of maintainability of writ petition was involved in this case. The Full Bench held that the cooperative society is not a State. It was also held that it was not performing public duty and writ petition was not maintainable.
Cases Cited by the Petitioners
14. The petitioners Jn support of maintainability of the writ petitions have cited two Division Bench decisions of our court. and three other single Judge decisions. The leading case is the Division Bench decision in Jagveer Singh case. in this case it was held that :
(i) The Full Bench decision of Radha Charan case is no longer a binding precedent in view of decision of the Apex Court in Chandrabhan Dube case.
(ii) A co-operative society, registered under the Co-operative Societies Act, is a State within the meaning of Article 12 of the Constitution.
(iii) Co-operative societies perform functions of public nature. Writ petition is maintainable against it even if it is not governed by statutory provisions and is not a State.
15. The petitioners have also cited following two decisions of the Apex Court to show that a cooperative society is a State and writ petitions are maintainable.
(i) Chandrabhan Dube case.
(ii) Andi Mukta case.
Respondents' Submissions and the Cases Cited by them
16. The respondents submit that :
* The members of this Bank are private members. The State has neither majority holding in it. nor any control over the same except the ones imposed by the Co-operative Societies Act or the Banking Regulation Act.
* There is nothing on record to show that the State has contributed to the Bank's capital.
* The Bank ts not a State within the meaning of Article 12 and is a private body. Alteast there is nothing on the record to show that it is a Stale within the meaning of Article 12 of the Constitulion.
* The Bank has registered itself to do banking business. And banking business is not a public duty. It is purely an economic activity. The Bank is not performing any public functions or public duty.
17. The respondents, apart from Full Bench decision of Radha Charon case, have cited following decisions on the first two points :
(i) The Apex Court decision in Virendra Pal Singh case, holding that a co-operative society is not a Government institution.
(ii) Apex Court decision in the Cooperative Bank case, holding that bylaws of a co-operative society are not statutory.
(iii) Three different DivisionBenches of our court, holdingthat co-operative society,registered under the Co-operalive Societies Act. Is not aStale and a writ petition againstthe co-operative society (that is not a State) is notmaintainable. They opined thatcorrect procedure is to file arepresentation under Section128 of the Co-operative SocietyAct [Appendix-VII).
(iv) A Full Bench of Andhra Pradesh High Court, to show that writ petition against a co-operative society is not maintainable.
(v) A Full Bench of our Court in Aley Ahmed case, holding that writ petition against a private body is maintainable only for violation of statutory provision.
They did not dispute that a writ petition would be maintainable after decision under Section 128 of the Cooperative Societies Act (Appendix-IV).
18. The respondents submilled that Chandra Bhan Dubey case and Andi Mukta' case were rendered by the Apex Court under different facts. Any observation made therein should be confined to the facts of those cases and cannot be applied here.
Chandra Bhan Dube case
19. The respondents, to confine the observations of Chandrabhan Dube case, submit :
* The Apex Court never held that every co-operative society, registered under the Cooperative Societies Act, is a Stale.
* The Bank involved there, namely, the U. P. State Cooperative Land Development Bank Ltd. was a State (paragraph 20 of the report).
* The Bank there was governed by statutory provisions (paragraph 28 of the report).
* The observations made therein cannot be applied here as neither the Bank is a State within the meaning of Article 12, nor there is any violation of any statutory provision.
Andi Mukta case
20. The respondents explain the facts of Andi Mukta case. They were as follows :
* Teachers were asking for implementation of higher pay scale. This dispute between the parties was referred to the Chancellor of the University. The Chancellor had given award in favour of the teacher. This award of the Chancellor was accepted by the State Government and by the University and the University issued a letter to all colleges to pay salaries to the teachers in terms thereof. The trust running the college in that case chose to terminate the services of the teachers. This was refused by . the Vice Chancellor. Thereafter the trust closed down the college.
* Teachers filed writ petitions. These writ petitions were not for the enforcement of specific performance of contract but for the recovery of the amount for the period that they had taught in the college.
* The teachers were entitled to the higher pay by the award of the Chancellor that was accepted by the State Government and the University. That is to say teachers were entitled to certain payment by the order of an authority that was State for the services already rendered.
21. The respondents submit that observations in Andi Mukta case should be seen in the light of theaforesaid facts. They cannot be applied to mean that every private body performs public functions or a writ petition is maintainable for specific performance of personal service without there being violation of any statutory provision.
Gajendra Kumar case
22. The respondents have also brought to my notice a single judge decision of our court in Gajendra Kumar case. and submit that :
* The single Judge in Gajendra Kumar case has rightly pointed out the flaws in the reasoning of the decisions cited by the petitioners (Paragraphs 1 to 42 of the report).
* The single Judge, after rightlypointing out the mistakes,wrongly assumed that he wasbound by Jagveer Singh case.
23. The respondents submit that :
* The single Judge in Gajendra Kumar case ought to have held Jagveer Singh case to be per incurtum in view of Apex Courts' decisions, as has been done by another single Judge in Committee of Management v. DIOS Meerut.
* If the single Judge in Gajendra Kumar case did not hold Jagveer Singh case to be per incurtum, then I should do the same.
24. The principle that a Bench of lesser strength may not hold a decision of higher strength to be no longer hiding is also applicable to me. If I hold Jagveer Singh case to be per incurium, then I would be committing the same mistake. Another Judge may hold my decision to be per incu-rium on the same reasoning. Apart form It. there are conflicting decisions of this Court (See the cases cited by the parties). In view of this, following questions may be decided by a larger Bench in a suitable case :
(i) Whether every co-operative society, registered under the Co-operative Societies Act, is a State within the meaning of Article 12 of the Constitution of India?
(ii) Whether a co-operative society, registered under the Cooperative Societies Act, performs duties of public nature or acts in public sphere?
(iii) Whether a writ petition is maintainable against a cooperative society (that is not a State) for violation of non-statutory provision or while acting in private sphere.
Assuming --The Bank is a Private Body
25. I have mentioned that these questions may be decided by a larger Bench in a suitable case. Why have I said so? Am 1 not referring these questions to a larger Bench? in fact, I am deciding these cases on the assumption that the Bank is a private body. Why am I doing so? I owe an explanation for this. This is due topeculiar circumstances of these cases. Let's see these circumstances along with other points raised by the parties. I would explain the reason, in greater details, at the end of my judgment (heading REASONS FOR NOT REFERRING THE CASE paragraphs 55 to 57).
POINT No. 3 (A) : 1975 REGULATION ARE NOT APPLICABLE
The Bank is Also Governed by the Banking Regulation Act
26. The Bank is a co-operative society, which is doing banking business. This business is governed by Banking Regulation Act. Section 3 of the Banking Regulation Act clarifies its application to the cooperative societies. Sub-section (aj and (b) of Section 3 (Appendix-VI) of the Banking Regulation Act states that the Banking Regulation Act does not apply to primary agricultural society or a co-operative land mortgage bank. But sub-section (c) of Section 3 of the Banking Regulation Act states that it applies to other cooperative Societies as Indicated in Part V of the Banking Regulation Act. The Bank here is not covered by subsections (a) and (b) of Section 3 of the Banking Regulation Act and is covered by sub-clause (c) of Section 3. The Banking Regulation Act applies to it with modification mentioned in part V. The Bank is a primary cooperative bank as defined by Section 5(CCV) that was substituted by Section 56 of the Banking Regulation Act. The Bank can function subject to the conditions and restrictions placed not only by the Co-operative Societies Act but also by the Banking Regulation .Act.
27. The Banking Regulation Act places restriction on starting banking business. It can be started only after grant of licence by the Reserve Bank of India (RBI) under Section 22 of the Banking Regulation Act (Appendix-VI). Section 23 of the Banking Regulation Act (Appendix-VI) places further restriction on opening of new and transfer of existing place of business. It can be done after permission of the RBI. These two sections are also applicable to the Bank here.
The 1972 Notification and the 1975 Regulation
28. The State Government has constituted the Board under Section 122 (1) of the Co-operative Societies Act read with Rule 389-A of the Rules by the Notification No. 366-C/XII-C-3-36-71 published in U. P. Gazette Ext. dated 4th March. 1972. It is amended by Notification dated February 7. 1973 (the 1972 Notification). The Board has been constituted for recruitment, training and appointments for more than six months could not be made without prior approval of the Board.
The appointments here were for more than six months and approvalof the Board was not taken. Theappointments were illegal and havebeen rightly terminated.
Phrase-Area of Operation Extends toMore Than One District
29. The 1975 Regulations have statutory force. The question to be determined here is whether they apply to the Bank or not. The answer to this question depends upon whether the Bank is covered by the 1972 Notification. This notification shows that it covers Apex level societies. Federation, etc. I.e., large co-operative societies. It does not include all central and primary cooperative societies. But only those 'whose areas of operation extends to more than one District or State'. What is the meaning of this clause? This is the key to the applicability of the 1975 Regulations.
30. The Bank is a primary society. But does its area of operation extend to more than one District within the meaning of the 1972 Notification.
31. The Bank started with its operation in one district. Despite permission by the RBI. It either opened a centre at Bhadohi nor was it permitted to do so by the DR. The reason was that Bhadohi at the time of amending the bylaws fell in different district. The Bank never started Its area of operation in two districts. It never Intended to do business in more than one district of its own accord. It is not because of the Bank that one of its centres became part of the new district Chandauli. It became part of another district because of the State of U. P, for the reasons other than that the Bank extended its area of operation to two districts.
32. The Bank wants to do business in district Varanasi only. It has passed resolution on 28th March, 1998 that its centre at Mughalsarai may be shifted to centre at place Parav within Varanasi district. The DR has also given no objection certificate to It. But actual shifting can be done only when the RBI grants the permission. The Bank has applied for the same and it is pending approval with the RBI. The Bank hasto continue its centre at Mughalsaraitill approval is granted.
33. Every one understood andconducted themselves in a way thatthe Bank was not covered by the 1975Regulations :
(a) The Bank continued on the footing that the 1975 Regulations are not applicable. It made appointments of the petitioners on this premise.
(b) The Bank filed a counter-affidavit in Writ Petition Nos. 28391 of 2000 and 49717 of 2000 that the 1975 Regulations are not applicable.
(c) An elected committee of management managed the Bank. The Co-operative Societies Act also provides some restrictions and control for good management of a cooperative society. Section 35 of the Co-operative Societies Act is one such section. The committee of management of the Bank was suspended under Section 35 of the Co-operative Societies Act on 9th August 1998 on various charges. A notice was given to show cause why it may not be superseded. One of the charges was that the 1975 Regulations were applicable and why approval before the appointment of the petitioner was not taken. The committee of management filed its reply stating that the 1975 Regulations do not apply.
(d) it is correct that the Bank had taken action in sub-paragraphs (a), (b) and (c) at the time when elected committee of management was there. But the fact remains that it was on behalf of the Bank.
(e) The Board also understood that the 1975 Regulations were not applicable and wrote a letter on 18.11.1998 stating therein that they are not applicable though the Board changed its view by its letter dated 25.3.2000 when the committee of management was suspended.
(f) The DR considered the charges discharged the notice by hisorder dated 9th May. 1999. According to him the committee of management did not commit any illegality. The relevant part of his order is reproduced in Appendix-111 to this judgment.
34. Can it still be said that the Bank area of operation to more than one district within the meaning of 1972 Notification? How should these words be interpreted?
Interpretation--General Observations
35. Judge learned Hand in an address to Massachusetts Bar Association said, 'words are such temperamental being that the surest way to lose their essence is to take them at their face value'. He was not the only one, Justice Holmes on different occasions said. 'A word is not crystal transparent and unchanged. It is skin of living though and may vary greatly in colour and content according to the circumstances and the time in which it is used.' At other time he said. The meaning of the sentence is to be felt rather than prove.' So should be the case with the phrase 'extends to more than one district' in the 1972 Notification.
36. There is no surer way to misread a document than to read it literally', said Justice Frankfurter. Alternatively it is said that while interpreting a provision, intention or purpose behind it may be seen. Sometimes it is permissible to depart from literal interpretation or adopt strained meaning to achieve legislative purpose.
Purposive Interpretation-English Decisions
37. Lord Denning stated it in a new form in middle of 20th Century :
'When a defect appears (in a statute) a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament.....(T)hen he must supplement the written word so as to give 'force and life' to the intention of the Legislature... A Judge should ask himself thequestions how. If the makers of the Act and themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases.'
38. The House of Lords did not approve it. Lord Slmonds in a later decision, said.
'This proposition in a new form cannot be supported. It appears to me to be a naked usurpation of the legislative function under the thin disguise of interpretation. and it is the less justifiable when it is guesswork with what material the Legislature would, if it had discovered the gap, have filled it in. If a gap is disclosed, the remedy lies in an amending Act (Italics mine).
39. The English courts have since then adopted a middle road.
(a) Lord Diplock in Kammins Ballrooms v. Zenith Investments. says :
'It is the impossible to arrive at the terms of the relevant exception by the literal approach. This can be done only by the purposive approach, viz.. Imputing to Parliament an intention not to impose a prohibition inconsistent with the objects which the statute was designed to achieve, though the draftsman has omitted to incorporate in express words any reference to that Intention,
(b) The House of Lords in Anderton v. Ryan. says :
'Statutes should be given what has become known as a purposive construction.'
Purposive Interpretation or Construction in India
40. We have also adopted purposive interpretation or construction. It has found its root in our jurisprudence. The Apex Court adopted purposive interpretation to hold storage tanks of petroleum products as building to prevent evasion of property tax in Municipal Corporation of Greater Bombay and others v. Indian Oil Corporation Ltd. 5 The Apex Court has advocated purposive Interpretation in various cases while interpreting the law. Here are excerpts from few cases.
* Judge must be a Jurist endowed with the legislator's wisdom, historian's search for truth. Prophet's vision, capacity to respond to the needs of the present, resilience to cope with the demands of the future.....The Judges shouldadopt purposive interpretation of the dynamic concepts of the Constitution and the Act with its interpretative armoury to articulate the felt necessities of the time.' (State of Karnataka v. Appa Balu Ingale, 1995 Supp (4) SCC 469 (Paragraph 34).
* It is well-settled that the purpose of law provides a good guide to the interpretation of the meaning of the Act.' S. P. Jain v. Krishna Mohan Gupta, (1987) 1 SCC 191 (Para 18 at page 201.
The words wood oil used in the Act will require purposiveInterpretation drawing upon the context in which the words are used and Its meaning will have to be discovered having regard to the intention and object which Legislature seeks to subserve. The restricted meaning sought to put up by the accused would frustrate the object and the literal interpretation would defeat the meaning.....The purposiveinterpretation would aid conservation of sandalwood ; a valuable forest wealth, prevent illicit felling and transportation of them and make the manufacturers of sandalwood oli accountable for the possession of sandalwood trees or chips or roots etc.' Forest Range Officer v. P. Mohammed Ali, 1993 Supp (3) SCC 627 (Para 8).
41. The situation that has arisen in this case was not in the contemplation of the makers of the 1972 Notification. I cannot alter tts wordings but. applying these principles may iron out its creases.
Purpose And Meaning Of The 1972 Notification
42. It is clear from the 1972 notification (footnote 1 at p. 8 (supra) that the Board was constituted for recruitment, training and disciplinary control of employees of certain cooperative societies. The description of the co-operative societies mentioned in the 1972 Notification shows it was meant to apply to large co-operative societies. It talks about Apex level societies, Federations. It is for this reason that every central or primary society is not within the purview of Board. But only those central or primary societies are included that have large areas of operation, extending to more than one district. There may be different categories of such co-operative societies ;
(i) Area of operation of a cooperative society to begin with may be in more than one district.
(ii) Area of operation of a cooperative society may be in one district and the co-operative society applies to have its area extended to another district in order to become larger cooperative society and permission is so granted.
(iii) The area of operation of a cooperative society may be in one district and the area of operation may come to more than one district not because of its own volition but by an act of third party as in the present case.
The co-operative societies in the first two categories are within the 1972 Notification, but what about the third category?
43. The third category may be divided into sub-categories :
(i) A co-operative society, after increase in its area of operation, may choose to continue its operation in two districts. It may pass resolution or take other steps.
(ii) it may choose to reduce its area back to one district and take proceeding for the same (as in this case).
Are these two sub-categories same? Do they fall in the same class? Should they be treated similarly?
44. To my mind, the above mentioned two sub-categories neither fall in the same class nor should they be treated similarly. A purposive Interpretation may be given to the 1972 Notification whose purpose is to bring under its supervision only large co-operative societies. It may apply to co-operative societies whose area of operation to begin with extends to more than one district or who want to have their area of operation in more than one district. But it may not apply to a co-operative society that does not want to operate in two districts. Applying these principles the 1972 Notification will appiy in the following cases :
(ii) Where area of operation to begin with was in more than one district.
(ii) Where a co-operative society (whose area of operation is one district) applies to extend its area of operation to another district and the authorities grant approval.
(iii) A co-operative society whose area of operation was in one district and is extended to two districts because of the State Government bifurcating that district, then it will be deemed to have its area of operation in one district only within the meaning of the 1972 Notification :
* until the co-operative society passes a resolution extending its business to two districts, or
* its resolution to reduce the area of operation is rejected.
If it passes resolution to extend or reduce its area of operation, then the 1972 Notification may apply from the date of the resolution extending its area or date of rejection of its resolution to reduce its area.
45. The case here is not covered by any category mentioned in the preceding paragraph. It might be covered by the third category if the Bank had decided to continue in both districts and had passed resolution to that effect. The Bank has not passed any such resolution till today for continuing its area of operation in Mughalsarai, district Chandaull. on the contrary, it has passed a resolution on 28.3.1998 and the DR has also granted no objection on 14th November, 1999 that Mughalsarai centre may be shifted to Parav in Varanasi. The RBI has taken no decision on it at least it has not been rejected. The Bank is not within the purview of the 1972 Notification and the 1975 Regulations have no application.
Termination Orders Are Illegal
46. The term of the committee of management of the Bank came to an end and an administrator was appointed in August 1999. He issued notices to the petitioners to show cause why their services be not terminated and after considering their reply terminated their services by separate orders dated 17.6.2000. Their services were not terminated, on the ground :
* they were temporary employees, or
* their services were not required, or
* they were unsuitable, or
* they were surplus, or
* given in the by-laws of thesociety.
But their services were terminated on the ground that approval of the Board was not taken under the 1975 Regulations. These Regulations do not apply. If they do not apply then the orders-passed on its basis are illegal.
POINT NO. 3 (b) : TERMINATIONORDERS ILLEGAL if THE 1975REGULATIONS APPLY
47. I have already held that the 1975 Regulations do not apply to the Bank. But my judgment is not final. An appeal can be taken against the same. It is possible that appellate court may take a different view. In view of the this. 1 deem it appropriate to express my opinion as to the result of these cases in case the 1975 Regulations are applicable. However, this does not make any difference to the result of the writ petitions. Even if the 1975 Regulations apply, the termination orders are Illegal. Here are my reasons for the same.
48. I have already stated [Paragraphs 31 to 33 of this judgment) as to how the Bank, the Board and the State Officers conducted themselves. It is clear that everyone assumed that the 1975 Regulations were not applicable. It is on this footing that they conducted themselves. It is in this light that the answer to the question of legality of the termination orders. In case the 1975 Regulations are applicable, is to be seen.
49. The petitioners were appointed by the Bank. There is nothing on record that they had manipulated their appointments or these appointments were obtained on extraneous consideration. There is nothing to show that there was any irregularity in their appointment apart from the reason that approval of the Board was not taken or they were not in accordance to the by-laws of the society. Atleast nothing has been pointed out to me. There was no fault of the petitioners,
50. There was also no fault of the Bank as well. At that time. It was understood that the 1975 Regulations arc not applicable. But in case the 1975 Regulations are applicable, thenit was the duty of the Bank to obtain approval of the Board. This duty was statutory in the nature. The Bank ought to have done it but it has not done. The Bank cannot take advantage of its own fault. There was statutory duty cast upon the Bank to obtain approval [if the 1975 Regulations were applicable). The Bank cannot terminate the services of the petitioners merely on the ground that the Bank was at fault. The Bank could only take a decision after the papers for the approval of the petitioners' appointment were sent to the Board and it had taken a decision.
51. The respondents have cited a decision in Arya Kanya Pathshala and others v. Smt. Manorama Devi Agnihotri, to support the proposition that if appointments were without approval of any authority that was mandatory, then the appoint-ments are illegal.
52. The aforesaid Division Bench has been distinguished by another Division Bench in Surendra Pal Singh v. DIOS, where a Bench of the Court ordered the papers to be sent to the educational authorities for grant of approval,
53. Similar principles are applicable here and the Bank was not entitled to take advantage of its own fault. It ought to have sent papers to the Board for approval and should have only terminated the services of the petitioners, if necessary, in accordance with law after the Board decided the question of approval. The order of termination is illegal even if 1975 Regulations were applicable.
54. In the present case the Bank need not send papers to the Board for approval as I have already held that the 1975 Regulations are not applicable. I have merely decided this point for the benefit of the appellate court in case any appeal is filed from my judgment. It is obiter in nature.
REASONS FOR NOT REFERRING THE CASE TO FULL BENCH
55. In these writ petitions, respondents have taken a plea that the 1975 Regulations were applicable and the Board was necessary for their appointment. The 1975 Regulations are statutory. If the case of the respondents is correct, then the writ petitions are maintainable and could not be thrown at the threshold. The validity of their action is to be seen. I have seen it while deciding point numbers (b) and, have held that it is Invalid.
56. In case the 1975 Regulations are not applicable as claimed by the petitioners, then maintainability of the writ petitions depends upon the answer of the larger Bench. And irrespective of answers of the Full Bench, representation under Section 128 of the Co-operative Societies Act will He. I have decided about the applicability of the 1975 Regulations and have agreed with the petitioners that they are not applicable. I could have at this stage dismissed the writ petitions with observations to file representations before the Registrar under Section 128 of the Co-operative Societies Act. This would have been useless as on my finding, he had no option but to allow the representations : I have held that the 1975 Regulations are not applicable and the termination orders are on the footing that they are applicable. If I had dismissed the writ petitions, 1 would have prolonged the litigation. With our Courts over-burdened and not to mention about shortage of Judges we have to find new tools, new methods to minimise the arrears. Our effort should be to end the litigation rather than prolonging It.
57. The other option was to refer these cases to the larger Bench after these findings. Almost in all cases (except a few) there is no interim order. Petitioners are not working. It was not proper to reinstate them by an interim order. It is often said what could be done by final order may not be done by interim order and disparity would have persisted. By this procedure.respondents can also file appeal against any Judgment, if they are so advised that they could not do, had I dimissed these writ petitions. These are my reasons for not referring the cases to a larger Bench and deciding them on merits.
4TH POINT : RELIEFS GRANTED
58. I have already held different termination orders dated 17.6.2000 to be illegal. These orders are quashed. The result is that petitioners are deemed to be in service at their Initial position that they had prior to termination on 17.6.2000 on the same terms and conditions.
59. The petitioners were temporary employees. In these Circumstances, they will not be entitled to the back wages for the period that they have not worked. In some cases, there were interim orders though in most of the cases, there were none. In some cases interim orders were not extended. I have already indicated that petitioners are reinstated without back wages. In view of this, in those cases where there were interim orders, the petitioner would be entitled for the wages for the period that they have actually worked.
60. The petitioners were appointed temporarily but in view of the appointment letter they were entitled to be considered for permanent employment after completion of one year of satisfactory service. In view of it :
* if there are vacancies in the Bank, and
* the initial appointment was in accordance with the by-laws of the Society, and
* the work and conduct of the petitioner was good.
Then the Bank may consider making them permanent if there is no other legal prohibition.
CONCLUSION, DIRECTIONS AND THE RELIEFS
61. My conclusions are asfollows :
(a) There is conflict of decisions regarding following questions :
(i) Whether every co-operative society, registered under the Co-operative Societies Act, is a State within the meaning of Article 12 of the Constitution of India?
(ii) Whether a co-operative society, registered under the Co-operative Societies Act, performs duties of public nature or acts in public sphere?
(iii) Whether a writ petition is maintainable against a cooperative society (that is not a State) for violation of non-statutory provision or while acting in private sphere.
These questions may be referred to a larger Bench in an appropriate case. I have not done so in this case for the reasons explained in my Judgment (heading 'REASONS FOR NOT REFERRING THE CASE' paragraph numbers 55 to 57).
(b) The 1975 Regulations apply to Central or primary society in the following circumstances :
(i) Where area of operation to begin with was in more than one district.
(ii) Where a co-operative society (whose area of operation is one district) applies to extend its area of operation to another district and the authorities grant approval.
(iii) A co-operative society whose area of operation was in one district and is extended to two districts because of the State Government bifurcating that district, then it will be deemed to have Its area of operation in one district only within the meaning of the 1972 Notification.
* until the co-operative society passes a resolution extending its business to two districts, or
* its resolution to reduce the area of operation is rejected. If it passesresolution to extend or reduce its area of operation then the 1972 Notification may apply from the date of the resolution extending its area or date of rejection of its resolution to reduce its area.
(c) The 1975 Regulations are not applicable to the Bank. There was no necessity of obtaining any approval of the Board before appointing the petitioners.
62. On the basis of my conclusion, following reliefs are granted to the petitioners.
(a) The orders cancelling petitioners' appointments are illegal. The Bank wrongly proceeded on the basis that the 1975 Regulations were applicable and approval of the Board was necessary before their appointment.
(b) The petitioners are deemed to be in service on original terms and condition but without any back wages. In those cases where there were any interim orders, the petitioners would beentitled for salary for the period that they have actually worked.
(c) Petitioners, under the terms of their appointment, were entitled for being made permanent. The Bank may consider the same if following conditions are fulfilled and there is no other legal prohibition.
(i) There are vacancies in theBank, and
(ii) The Initial appointment was in accordance with by-laws of the Bank.
(iii) The work and conduct of the petitioners is good.
However, if the aforesaid conditions are not satisfied then it vould be open to the Bank to terminate the service of the petitioners in accordance with law.
With these observations and ilrectlons, the aforesaid writ petitions are disposed of.
Appendix-1
The details of the petitioners and the date of appointments are as follows :
Sl. No.
Number and title of writ
Name of Petitioner
Date of appoint-ment
1.
29391 of 2000. Nilesh Singh v. U. P.Co-op. Instt. Service Board and others (UPCISB)
Nilesh Singh
25.9.1998
2.
28394 of 2000, Manish, Kr. Srivastava v. UPCISB
Manish Kr. Srivastava
14.9.1998
3,
30962of 2000, Vijai Kr. Singh v.UPCISB.
Vijay Kumar Singh
4.5.1998
4.
32672 of 2000, Brijesh kumar Rai V. UPCISB
Brijesh Kr. Rai
1.5.1998
Sanjai Kr. Singh
1.5.1998
Anand Vikram Singh
1.10.1997
Rajive Kr. Singh
14.9.1998
Arun Kumar Mishra
1.5.1998
Arvind Kr. Dubey
1.5.1998
5.
32753of 2000, Mateshwari PrasadSingh v. Administration NSB
Mateshwari Prasad Singh
14.9-1998
6.
35855 of 2000, Amulya Singh and others v. Nagriya Sahkari Bank Ltd. and others
Amulya Singh
8.10-1997
Dinesh Singh
1.10.1997
Upendra Vikram Singh
14.9.1998
Dhirendra Vikram Singh
10.5.1998
Ashish Kr. Ghosh
4/1.5.1998
Vikram Singh
4.9.1998
Manoj Kr. Singh
4/1.5.1998
Km. Chanda Devi
4.9.1998
Sunil Kumar Singh
4.9.1998
Pravind Singh
4.9.1998
Rajendra Kr. Giri
4.9.1998
Anik Kr. Mishra
4.9.1998
Rajiv Ranjan
4.9.1998
Karam Pal Singh
4.9.1998
Apoorva Singh
.11.1997
Smt. Prateema Sharma
4,9.1998
Manik Chandra
14,9.1998
Smt. Vidawati Singh
4/1.11.1997
Nltesh Kr. Srivastava
14.9.1998
Manik Chandra
14.9.1998
Rajendra Singh Negi
14.9.1998
Indra Prakash Singh
14.9.1998
7.
36468 of 2000, Smt. Mamta Srivastava v. U. P.Co-operative Instt. Services Board and others.
Smt. Mamta Srivastava
19.2.1998
8
41833 of 200O : KrishnaKr. Srivastavav. UPCISB
Krishna Kr. Srivastava
4/1.5.1998
9.
42281 oj 20OO ; Raj Narain Singhv. Admin. Nagariya Sahkari BankLtd. and others
Raj Naratn Singh
14.9.1998
10.
42717 of 2000 ; Sanjai Kr. Singh and others v. Nagariya Sahkari Bank Ltd. and others
Sanjai Kumar Singh
4/1.5.1998
Dinesh Singh
1.9.1997
Umesh Pratap Singh
1.8.1997
Ram Narain Singh '
1.12.1997
Subhash Chandra
4/1.5.1998
Singh
Mrigendra Singh
14.9.1998
Vijay Kr. Sharma
14.9.1999
Rajesh Kr. Singh
25.9.1998
11.
43/06of 2000 ; Bechu Pathak and others v. Nagariya Sahakari Bank Lid. and others.
Bechu Pathak
4.5.1998
Jeet Bahadir Singh
14.9.1998
Rajcev Kr. Singh
4.5.1998'
12.
46342 of 2000 : Anand Singh v, UPCISB
Anand Singh
1.11.1997
13.
46928 of 2000 : Manoj Kumar Rat u. Secretary. UPCISB
Manoj Kumar Rai
4.5.1998
14.
49717 of 2OOO : Alok Mishra and others v. UPCISB
Alok Mishra
14.9.1998
Amar Singh
4/1.5.1998
Sumit Kr. Srivastava
4/1.5.1998
Pravnav Kr. Singh
14.9.1998
Sanjai Kr. Srivastava
4/1.5.1998
Gyan Dev Cupta
4/1.5.1998
15.
54201 of 2000 : Arun Prakash Singhv. UPCISB.
Arun Prakash Singh
14.9.1998
16.
W.P. No.768 of 2001 : Amar Kant Pandey v.N. S. BankLtd.
Amar Kant Pandey
14.9.1998
17.
1426of 2001; Swantra Kumar u. U. P. Cooperative Instituional Service Board.
Swantra Kumar Singh
4.5.1998
18.
1422 of 2001 : Shailendra Singh Gautam v. U. P. Cooperative Institutional ServiceBoard.
Shailcndra SinghGautam
14.9.1988
Appendix II
Similar letters of appointment and termination orders were given to all petitioners. One such appointment letter of Amulya Singh is as follows:
uxjh; lgdkjh cSad fy-jkedVksjk] okjk.klh
vkns'k
Jh vewY; flag iq= Jh yky cgknqjflag 15@181&4&d;&3f'koiqj] okjk.klh dk uxjh; lgdkjh cSad fy- 'kk[kk f'koiqj okjk.klh esa lgk;dizcU/kd ds in ij 1-10-1997 ls rnFkZ fu;qf dh tkrh gS A vkidks cSad dsfu;ekuqlkj 1200&40 n- jks- 050&1800 nk- jks- 70&2290 n- jks-100&2790 dk osrueku ,oa vU; lqfo/kk;s izkIr gksxh ,d o'kZ rd dk;ZlUrks'ktud jgus ij vkidks bl ij LFkk;h fd;k tk ldrk gS A
g- viBuh;
fot;k ik.Ms;
lfpo@phQbDthD;wfVo
u-la- cSad fy- okjk.klh A
One such termination order is as follows :
uxjh; lgdkjh cSad fyfeVsM
ygqjkohj jke dVksjk okjk.klh221001
Ref. No. 305/N.S.B.Ltd.Vs/ 17-6-2000
Date17-6-2000
Jh vewY; flag
iq= Jh ykycgknqj flag
15@181&4&d;&3 f'koiqj okjk.klh A
i;k voxr gks fd iz'kkldh; cksMZdks ;g lek/kku gks x;k gS fd vkidh fu;qf m- iz- dks&vkijsfVo; lkslkbVhtbEIykbZt lfoZl jsxwys'ku] 1975 esa fufgr izkfo/kkukas ds foijhr rkRdkfyd izca/klfefr }kjk dh x;h Fkh rFkk ftldk vuqeksnu Hkh mkj izns'k lgdkjh laLFkkxr lsoke.My }kjk ugha izkIr fd;k x;k Fkk A vki }kjk izsf'kr Li'Vhdj.k ij lE;dfopkjksijkUr ;g lek/kku gks x;k gS fd vkius vius Li'Vhdj.k esa ,slk dksbZdkj.k iznf'kZr ughaa fd;k gS ftlls vkidh lsokvksa dh fujUrjrk dks cuk;s j[kktk;s A
vkidh fu;qf izkjEHk ls gh 'kwU;gS rFkk vki }kjk izLrqr dh x;h osru jkf'k vkils olwy fd;s tkus ;ksX; gS ftl ijvyx ls dk;Zokgh py jgh gS rFkk ftldh lwpuk vkidks vyx ls nh tk;sxh A
vr% vkidh fu;qf fu;e fo:) gksusds dkj.k rRdky izHkko ls fujLr dh tkrh gS A
g- viBuh;
iz'kkld@flVh eftLVsV
dk;Zokgd lfpo uxjh; lgdkjh cSad
uxjh; lgdkjh cSad fy-] okjk.klh
The relevant part of the findings recorded by the DR is as follows:
vkjksila[;k 5] 7 ,oa 13 ds lEcU/k esa lHkkifr us vius mkj fnukad 3-5-1999 ds }kjkvoxr djk;k gS fd m- iz- lgdkjh laLFkkxr lsok e.My y[ku ds ek/;e ls deZpkfj;ksadh fu;qf ugha dh x;h gS cfYd deZpkfj;ksa ,oa vf/kdkfj;ksa dh fu;qffu;ekuqlkj dh x;h gS vkSj ;fn Hkfo'; eas dksbZ vifk lgdkjh laLFkkxr lsoke.My }kjk mBk;h tk;sxh rks mldh fof/kd dk;Zokgh cSad ds }kjk dh tk;sxhdeZpkfj;ksa dh fu;qf ds lEcU/k esa v/kksgLrk{kjh ds i=kad 61&62 vf/k- ua-la- cSad fnukad 5-4-1999 ds }kjk ekxZ n'kZu izkIr gksus dk mYys[k Hkh muds }kjkblh izLrj esa fd;k x;k gS A blds vfrfj bl izLrj esa mUgksaus ;g Hkh mYys[kfd;k gS fd vf/kfu;e dh /kkjk 118 esa fy[ks x;s izkfo/kkuksa ds vuqlkj lHkh vf/kdkfj;ksa,oa deZpkfj;ksa dh fu;qf mfpr gS ftl ij tks vf/kdkjh vFkok deZpkjh fu;qffd;k x;k gS mlesa ml in dh 'kSf{kd ;ksX;krk gS A vLrq bu vkjksiksa ls izca/kdesVh dks eq djus dh izkFkZuk lHkkifr us fn;k gS A
mijksof.kZr rF;ksa ds ck/kkj ij v/kksgLrk{kjh dh ;g jk; gS fd cSad ,oa mlds lnL;ksads fgr esa ;g vko';d gS fd izca/k desVh uxjh; lgdkjh cSad fy-] okjk.klhdks mkj izns'k lgdkjh lfefr vf/kfu;e] 1965 dh /kkjk 35 dh mi/kkjk 2 ds v/khufuyfEcr djus fo'k;d vkns'k i=kad 4951@76@fof/k lkekU; fnukad 9-10-1998 rRdky izHkko ls cSad ,oa mlds lnL;ksa ds fgr esa fujLrdj fn;k tk;s A
vr% eSach- Mh- feJ mifucU/kd lgdkjh lfefr;ksa m- iz- okjk.klh e.My okjk.klh fucU/kd dsvf/kdkjkas dk iz;ksx djrs gq, tks eq>s 'kklu dh vf/klwpuk la[;k 3328 lh@12&lh-; ,- 25 1@67] fnukad 24-6-69 }kjk iznr gS m- iz-lgdkjh lfefr vf/kfu;e] 1965 dh /kkjk 35 dh mi/kkjk 1 ds v/khu py jgh voe.kdh dk;Zokgh dh vof/k esa m /kkjk dh mi/kkjk 2 ds vuqikyu esa uxjh; lgdkjhcaSad fy-] okjk.klh dh izcU/k desVh dks fuyfEcr djus fo'k;d vkns'k i=kad 4951&76@fof/k lfefr fnukad 9-10-1998 dks bl vkns'k ds }kjk rRdky izHkko ls fUkjLr djrk gw A
vktfnukad 21-5-99 dks v/kksgLrk{kjh ds gLrk{kj ,oa dk;kZy; dh eqgj ls mijksvkns'k tkjh fd;k x;k A
g- viBuh;
Jh ch- Mh- feJk
mifucU/kd
lgdkjh lfefr;ksa m- izz-
okjk.klh e.My] okjl.klh A
27-5-1999
Appendix-IV
Section 128 of U. P. Co-operative Societies Act, 1965 is as follows :
Section 128. Registrar's power to annul resolution of a co-operative society or cancel order passed by an officer of a co-operative society in certain cases. The Registrar may :
(i) annul any resolution passed by the committee of manage-ment, or the general body of any cooperative society ; or
(ii) cancel any order passed by an officer of a co-operative society ;
If he is of the opinion that the resolution or the order, as the case may be, is not covered by the objects of the society, or is in contravention of the provisions of this Act, the rules or the by-laws of the society, whereupon every such resolution or order shall become void and inoperative and be deleted from the records of the society :
Provided that, the Registrar shall, before making any order, require the Committee of Management, general body or officer of the co-operative society to reconsider the resolution, or as the case may be, the order, within such period as he may fix but which shall not be less than fifteen days, and if he deems fit may stay the operation of that resolution or the order during such period.
Appendix-V
Relevant extract of the 1975 Regulations are as follows :
2. Definitions.--In these regulations, unless there is anything repugnant in the subject or context.
(ix) 'Co-operative society' means a co-operative society placed under the purview of the Board by Government Notification No. 366-C/XII-C/3-36-71, dated March 4. 1972, issued under Section 122 of the Act read with Rule 389 (a) of the Rules :
5. Recruitment--(i) Recruitment for all appointments in a cooperative society shall be madethrough the Board whether the recruitment is,
(a) direct ; or
(b) by promotion from employees already in the service of the society : or
(c) by taking on deputation or otherwise, person already in the service of another society registered or deemed to have been registered under the Act. or a person in employment under a corporation an undertaking owned or controlled by the Central or the State Government body corporate administering a local fund.
(ii) Notwithstanding anything in clause (1) no reference to the Board shall be necessary in the following cases ;
(a) When it is proposed to fill with the concurrence of the Registrar any post by means of deputation of a Government servant, or
(b) When the Managing Committee or any other authority competent to make the appointment proposed to fill up as a stop gap measure for a period not exceeding six months a post by promotion from amongst the employees in the Just below cadre on the principle of seniority subject to the rejection of the unfit :
Provided that any appointment thus made without consultation with the Board shall in every case, cease to have effect from the date on which the period of six months expires and the employees promoted to the higher post shall unless he has already been reverted to his original post within the said period of six months be deemed to have reverted from that date, to the post held by him immediately before such promotion :
Provided further that the employed appoint to the higher post under this sub-clause shall, in no circumstances, be promotedunder this sub-clause to any still higher post within the said period of six months, nor shall be appointed under this sub-clause to the same post again after his reversion under the first proviso.
(iii) To facilitate the performance of the duties enjoined upon the Board under clause (1), every co-operative society shall communicate to the Board by 31st December every year the approximate number of vacancies likely to arise during the course of the next calendar year by reasons of creation of new posts, retirement, deputation otherwise.
(iv) Notwithstanding anything contained in clause (1) recruitment to posts in Category IV shall be made by a selection committee, which :
(1) in case of District Central Cooperative Banks. District Cooperative Federations. Uttar Pradesh Postal Employee's Co-operative Bank Limited. Lucknow and Oudh and Rohil-khand Railway Employees : Co-operative Bank Limited, Lucknow shall consist of :
(a) Chairman/Administrator of the Society, who shall be the Chairman;
(b) The Secretary of theSociety, who shall be the convener ; and
(c) Assistant Registrar of the District : and
(2) in case of apex co-operative societies all consist of :
(a) Chairman/Administrator of the Society or his nominee, who shall be the Chairman ;
(b) Secretary/Managing Director of the Society, who shall be the convener ; and
(c) An Officer not below the rank of an Additional Registrar nominated by the Registrar.
(v) Selection made by the Selection Committee referred to in clause
(v) shall be subject to the approval of the Board and appointments shall be made after the approval of the Board.
(vi) Notwithstanding anything contained in clause (iv), a cooperative society in which the appointments are to be made, shall send to the Board a requisition in the Form specified in Appendix 'A' at least three months before the vacancy is sought to be filled up. No change shall ordinarily be made by the Society in the requisition after the advertisement has been sent for publication.
(vii) In making recruitment to any post, the Board may require the appointing society or the society to which the appointing society is affiliated to send one of its officers to the Board and when the recruitment is to be made for a technical post or a post requiring specialised knowledge or skill, the Board may also request any appropriate institution or authority to depute a technical advisor to assist the Board.
15. (i) No appointment shall be made except in the manner provided for in the Regulations hereinbefore. Where recruit-ment through or with the approval of the Board is provided for in Regulation No. 5. no appointment shall be made except of the candidate and in the order mentioned in the list communicated by the Board.
(ii) Subject to the provisions of clause (1) appointment shall be made by the Committee of Management of the society by such authority as may be specified in the bye-laws :
Provided that the letter of appointment shall in the case of Secretary, be issued by the Chairman, and in all other cases. It shall be issued by the Secretary of the society. The letter of appointment shall contain thename of the post, place of posting, nature of appointment, such as regular or temporary. probationary period and security, if any, salary with scale and conditions referred to in Regulation No. 14 and the date on which he has to join.
Appendix -VI
The relevant extract of Banking Regulation Act are as follows :
3. Act to apply to co-operative societies in certain cases.--Nothing in this Act shall apply to :
(a) a primary agricultural credit society ;
(b) a co-operative land mortgage bank ;
(c) any other co-operative society, except in the manner and to the extent specified tn Part V.
22. Licensing of banking company.--(1) Save as hereinafter provided, no company shall- carry on banking business in India unless it holds a licence issued in that behalf by the Reserve Bank and any such licence may be issued subject to such conditions as the Reserve Bank may think fit to impose.
(2) Every banking company in existence on the commencement of this Act. before the expiry of six months from such commencement, and every other company before commencing banking business (in India), shall apply in writing to the Reserve Bank for a licence under this section :
Provided that in the case of a banking company in existence on the commencement of this Act, nothing in sub-section (1) shall be deemed to prohibit the company from carrying on banking business until it is granted a licence in pursuance of (this section) or is by notice in writing informed by the Reserve Bank that a licence cannot be granted to it :
Provided further that the Reserve Bank shall not give a notice as aforesaid to a banking companyin existence on the commencement of this Act before the expiry of the three years referred to in subsection (11) or of such further period as the Reserve Bank may under that sub-section think fft to allow.
(3) Before granting any licence under this section the Reserve Bank may require to be satisfied by an inspection of the boohs of the company or otherwise that (XXXX) the following conditions are fulfilled, namely :
(a) that the company is or will be in a position to pay its project or future depositors in full as their claims accrue ;
(b) that the affairs of the company are not being, or are not likely to be conducted in a manner detrimental to the interests of its present or future depositors ;
(c) that the general character of the proposed management of the company will not be prejudicial to the public interest or the Interest of its depositors :
(d) that the company has adequate capital structure and earning prospects ;
(e) that the public interest will be served by the grant of a licence to the company to carry on banking business in India :
(f) that having regard to the banking facilities available in the proposed principal area of operation of the company, the potential scope for extension of banks already in existence in the area and other relevant facts the grant of the licence would not be prejudicial to the operation and consolidation of the banking system consistent with monetary stability and economic growth ;
(g) any other condition, the fulfilment of which would in the opinion of the Reserve Bank be necessary to ensure that the carrying on of banking business in India by the company willnot be prejudicial to the public interest or the interests of the depositors.
(3A) Before granting any licence under this section to a company incorporated outside India, the Reserve Bank may require to be satisfied by an inspection of the Books of the company or otherwise that the conditions specified in sub-section (3) are fulfilled and that the carrying on of banking business by such company in India will be in the public interest and that the Government or law of the country in which it is incorporated does not discriminate in any way against banking companies registered in India and that the company complies with all the provisions of this Act applicable to banking companies incorporated outside India.
(4) The Reserve Bank may cancel a licence granted to a banking company under this section :
(i) If the company ceases to carry on banking business in India; or
(ii) If the company at any time fails to comply with any of the conditions imposed upon it under sub-section (1) ; or
(iii) if at any time, any of the conditions referred to in sub-section (3) and subsection (3A) is not fulfilled :
Provided that before cancelling a licence under clause (ii) or clause (iii) of this subsection on the ground that the banking company has failed to comply with or has failed to fulfil any of the conditions referred to therein, the Reserve Bank, unless it is of opinion that the delay will be prejudicial to the interests of the company's depositors or the public, shall grant to the company on such terms as it may specify, an opportunity of taking the necessary steps for complying with or fulfilling such condition.
(5) Any banking company aggrieved by the decision of the Reserve Bank cancelling a licence under this section may, within 30 days from the date on which such decision is communicated to it, appeal to the Central Government.
(6) The decision of the Central Government where an appeal has been preferred to it under subsection (5) or of the Reserve Bank where no such appeal has been preferred shall be final.
23. Restriction on opening of new, and transfer of existing, places of business.--(1) Without obtaining the prior permission of the Reserve Bank :
(a) no banking company shall open a new place of business in India or change otherwise than within the same city, town or village, the location of an existing place of business situated in India ; and
(b) no banking company incorporated in India shall open a new place of business outside India or change, otherwise than within the same city, town or village in any country or area outside India, the location of an existing place of business situated in that country or area ;
Provided that nothing in this sub-section shall apply to the opening for a period not exceeding one month of temporary place of business within a city, town or village or the environs thereof within which the banking company already has a place of business, for the purpose of affording banking facilities to the public on the occasion of an exhibition, a conference or a mela or any other like occasion.
(2) Before granting any permission under this section the Reserve Bank may require to be satisfied by an inspection under Section 35 or otherwise to the financial condition and history of the company, the general character of its management the adequacy ofits capital structure and earning prospects and that public interest will be served by the opening or, as the case may be, change oflocation, of the place of business.
(3) The Reserve Bank may grant permission under sub-section (1) subject to such conditions as it may think fit to Impose either generally or with reference to any particular case.
(4) Where, in the opinion of the Reserve Bank a banking company has, at any time failed to comply with any of the conditions imposed on it under this section, the Reserve Bank may, by order in writing and after affording reasonable opportunity to the banking company for showing cause against the action proposed to be taken against it, revoke any permission granted under this section.
(4A) Any regional rural bank requiring the permission of the Reserve Bank under this section shall forward its application to the Reserve Bank through the National Bank which shall give its comments on the merits of the application and send it to the Reserve Bank :
Provided that the regional rural bank shall also send and advance copy of the application directly to the Reserve Bank.
(5) For the purposes of this section 'place of business' Includes any sub office, pay office, sub-pay office and any place of business at which deposits are received, cheques cashed or moneys lent.
Appendix-VII
Few words regarding comments of Lord Simonds. 'naked usurpation of the Legislative function under the thin disguise of interpretation, referred to in paragraph 38 of this judgment.
The Courts have always maintained that they interpret the law. and not make the law. This has been subject-matter of debates amongst jurists. House of Lords in Shaw v. D.P.P.. 1961 (2) All ER 446, convicted a publisher of the Ladies
Directory a 'Who's Who' of London prostitutes, for corrupting the public morals, Dennis Lloyd in The idea of Law 63' says in doing so.
House of Lords did not shrink from the fact that this was in effect to confer on Judge and juries a discretion to create new offences in accordance with the exigencies of public morals as these might vary from time to time.
David Pannlck in his book'Judges' says.
With increasing regularity as he advances up the legal hierarchy, the Judge will need to decide hard cases in which alternative solutions to the dispute may be (and often are in majority and dissenting Judgments) respectably justified by reference to existing law in such cases, the Judge makes law. For centuries, English Judges deceived each other into thinking that they merely applied the law made by Parliament, that their Job was only 'to Interpret law and not to make law or give law (Francis Bacon of Judicature in Essays (1625) (Everyman Ed. 1973). P. 162. This has changed. In considering how Judges decide hard cases, we do not believe in fairy tales any more' (Lord Reid. The Judge as Law Maker' 12 Journal of the Society of Public Teachers of Law 22 (1972).
Lord Diplock while advocating for adoption of purposive construction laid down three conditions in Jones v. Wrotham Park Settled Estates, 1979(1) All ER 286 (at page 289) :
First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy : secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved : and thirdly, it was possible to state with certainty what were the additional words that would have beeninserted by the draftsman and approved by Parliament had their attention been drawn to the omission before this Bill passed into law.
The third condition is relevant to ponder.
Our Supreme Court too in Vishaka v. State of Rajasthan, (1997) 7 SCC 241, laid down guidelines and norms and said :
We lay down the guidelines and norms specified hereinafter for due observance at all work places or other institutions, until a legislation is enacted for the purpose. This is done in exercise of the power available under Article 32 of the Constitution for enforcement of the fundamental rights and it is further emphasised that this would be (reated as the taw declared by this Court under Article 141 of the Constitution.
This is not a point involved in this writ petition and I leave it here to u0ae debated among the jurists.