Subhash Chander Jain vs Haryana State Federation of Consumers Co-Operative Wholesale Stores and Others

Pritpal Singh, J.—One post of Accounts Officer was advertised by the first Respondent--the Haryana State Federation of Consumers Co-operative Wholesale Stores, Ltd., Chandigarh, on June 10, 1979, to be filled by direct recruitment. A number of candidates applied for the same. After interviewing the candidates the Board of Directors initially selected one Shri S.K. Narwania but he refused to join. Thereafter, one Shri V.K. Bountra was selected but he too decided not to take up this post Eventually the second Respondent--Avtar Singh was appointed from the waiting list. He did not fulfill the requisite qualifications but the Registrar, Co-operative Societies, granted relaxation in respect thereof. The appointment of Avtar Singh has been challenged in this writ petition by Subash Chander Jain who was one of the candidates for this post but was not selected. The grounds of challenge are two hold. Firstly, that the Respondent Avtar Singh was not qualified for appointment and secondly, that the post of Accounts Officer belonged to the quota of promotees and so it could not be filled by direct recruitment.

At the very outset it is objected by the learned Respondents'' counsel that the writ petition is not maintainable because that Respondent-Society is not a statutory body or a public authority envisaged under Article 12 of the Constitution of India. In support of this contention a Full Bench judgment of this Court in Ajmer Singh Vs. The Registrar, Co-operative Societies, Punjab, Chandigarh and Others, it was held that a Co-operative Society being a nonstatutory body a writ petition against it is not maintainable.

Placing implicit reliance on this judgment the learned Counsel contended that the Respondent-Society being merely registered under the Co-operative Societies Act is not amenable to the writ jurisdiction of this Court.

The learned Petitioner''s counsel on the other hand placed reliance on an earlier Division Bench judgment of this Court in Kulwant Singh v. State of Punjab and Ors. 1972 P.L.J. 399, wherein it was held that writ is maintainable against a Co-operative Society if there is a failure to carry, out the duties placed on it by a statute. This judgment is based on a decision of the Supreme Court in The Praga Tools Corporation Vs. Shri C.A. Imanual and Others, wherein it was held:

It is well understood that a mandamus lies to secure the performance of a public or statutory duty in the performance of which the one who allies for it has a sufficient legal interest.

The pertinent observations of the Supreme Count in this judgment are as follows:

Therefore, the condition precedent for the issue of mandamus is that there is in one claiming it a legal sight to the performance of a legal duty by one against whom it is sought An order of mandamus is, in form, a command directed to. a person, corporation or an inferior tribunal requiring him or them to do a particular thing therein specified which appertains to his or their office and is in the nature of a public duty. It is, however, not necessary that the person or the authority on whom the statute duty is imposed need be a public official or an official body. A mandamus can issue, for instance, to. an official of a society to compel him to carry out the terms of the statute. under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorizing their undertakings.

The Full Bench in the case of Ajmer Singh (supra) noticed he judgment in Kulwant Singh''s case (supra) and did not disagree with the same. The Full Bench observed that a close analysis of the Division Bench judgment would indicate that the view taken by the learned Judges was hot inconsistent with the view taken by the Pull Bench. Reading the two judgments conjunctively, the legal proposition which emerges is that normally Co-operative Societies are not amenable to the writ jurisdiction of the High Court but whenever the Society fails to perform a statutory requirement to the prejudice of someone, the latter is entitled toy approach the High Court for seeking the writ of mandamus to direct the Society not to commit breach of the statutory requirement. In other words, so long no case is made out of any breach of statutory provisions, which a Society is obliged to comply with, no writ can be issued against it. But whenever it is pointed out that any statutory provision requiring the Society to act in a particular manner creates a right or interest in favour of a person, it will be permissible for such person to seek remedy of writ against the Society. It may well be understood that the Co-operative Society will be amenable to writ jurisdiction only in cases relating to performance of legal obligation and duties imposed by a statute creating a corresponding legal right in the writ-Petitioner. Putting it succinctly a Co-operative Society will be amenable to writ jurisdiction of the High Court only where according to the provisions of the statute or rules framed under the Act, by which the Society is governed, there is a statutory or public duty imposed on it and the enforcement of which is being sought.

In the present case, it, is not controverted that employees of. the Respondent-Society are governed by the statutory rules known as the Staff Service Rules of the Haryana State Federation of Consumers Co-operative Wholesale Stores Ltd. (hereinafter called ''the Rules''). The Petitioner''s contention is that he and the Respondent Avtar Singh had applied for the post of Accounts Officer by direct recruitment and whereas his candidature was spurned, the Respondent Avtar Singh was appointed in violation of the Rules. The matter for consideration, therefore, is whether there is any truth in this allegation.

Rule 6(1) read with Annexure (I) makes it clear that a candidate aspiring for the post of an Accounts Officer by direct recruitment must have two qualifications. Firstly, he should be a 1st Division B. Com. and secondly, he should have five years'' experience in accounts in a supervisory capacity. At the same time the Registrar, Co-operative Societies is empowered under Rule 28 of the Punjab Co-operative Societies Rules, 1963, to give relaxation in the qualifications. This Rule reads as under:

28(1) No Co-operative Society shall appoint any person as its employee unless he possesses such qualifications and furnishes such security as may be specified by the Registrar from time to time.

(2) The Registrar may, in any case for special reasons relax the provisions of this rule to such extent as he may consider proper.

Admittedly the Respondent Avtar Singh did not strictly fulfill the requisite qualifications, as he is a Second Division B. Com. and did not have five years'' experience in accounts in a supervisory capacity at the time of appointment. But the fact that the Registrar granted relaxation in respect of qualifications in his case is not denied. Moreover, the validity of the order of relaxation passed by the Registrar has not been challenged by the Petitioner in this writ petition. The Registrar was fully competent to give relaxation in the matter of qualifications and he exercised this right in favour of the Respondent Avtar Singh. In such circumstances it cannot be said that the appointment of Avtar Singh was in violation of the statutory rules in the matter of qualifications.

The second objection that the post of Accounts Officer belonged to the quota of promotees and therefore, could not be filled by direct recruitment, is equally misconceived. It is no doubt provided in Rule 9.4 of the Rules that 66 2/3 per cent of the posts of the Accounts Officers will be manned by promotees and the remaining 33� per cent by direct recruitment. But no procedure has been laid down in the Rules to indicate the manner in which the appointments from these two sources are to be made. Meaning thereby that the Respondent-Society has been authorised to tap both the sources while making appointments while ensuring that the inter se quota is not disturbed. In the present case it is not even alleged that the quota of the direct recruits had already been filled up when the disputed post was advertised. There is absolutely no material to indicate that this post had necessarily to be filled by promotion. In such circumstances it is hot possible to hold that by the appointment of the Respondent Avtar Singh the statutory requirement of Rule 9.4 had been violated.

For aforesaid reasons, we find no merit in this petition and dismiss the same. No order as to costs.