Court No. - 43
Case :- WRIT - A No. - 6737 of 2019 Petitioner :- Kallu Singh Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Damodar Pandey Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
Petitioner is an employee of the Shyodara Kisan Sewa Sahkari Samiti Ltd., Bilari, District Moradabad. He claims to have been appointed on 26.12.1988. This petition has been filed for a direction to be issued to the society concerned to regularize the services of petitioner.
Learned counsel for the respondents, however, raises a preliminary objection with regard to maintainability of the writ petition on the ground that society is an independent autonomous body and is functioning in accordance with its own bye-laws. It is submitted that society is neither performing any public duty nor the State has any deep and pervasive financial and administrative control over its affairs. Submission is that society does not answer the description of State within the meaning the Article 12 of the Constitution of India, and therefore the writ petition would not be maintainable. Reliance is placed upon a judgment of this Court in Writ Petition No.34262 of 2015 (Vinod Kumar Singh Vs. State of U.P. and others), decided vide following orders passed on 14.10.2015:-
"The writ petition is directed against an order dated 9th of April, 2015 passed by the Additional Commissioner/Additional Registrar, Cooperative Societies, UP, Lucknow, whereby in superannuation of a previous order passed on 23rd of January, 2015 by the Assistant Registrar, it has been observed that another person, who was working as Accountant in the Society would be delivered the charge to officiate as Secretary of the Society.
It is not in dispute that the society herein i.e. Sadhan Sahkari Samiti Limited, Banki is a Cooperative Society registered under the Provisions of Section-9 of the U.P. Cooperative Societies Act and is a juristic person. The Society, in such capacity, is purely a private person. It is also not in dispute that there are no statutory service conditions governing the employment of petitioner or the Accountant, who has been authorized to officiate as Secretary. It is further not in dispute that the petitioner, who is holding the charge of Secretary, Sadhan Sahkari Samiti, Limited, Gulzarganj was permitted to have the charge of the Secretary of Sadhan Sahkari Samiti Limited, Banki for which the petitioner was not to receive any emoluments or other benefits. The order dated 23rd January, 2015 passed in this regard, clearly goes to show that it is purely as a temporary arrangement that the petitioner was permitted to officiate as Secretary. By a subsequent order, the Additional Registrar has accepted the resolution of the Society, whereby the Society has allowed respondent No. 4 to officiate as Secretary.
Learned counsel for the petitioner submits that the two resolutions on the basis of which officiating charge is sought to be given to Shri Anand Singh are forged.
Having heard learned counsel for the parties, I am of the opinion that the order passed in favour of the petitioner permitting him to officiate as Secretary was a purely stop gap arrangement and no right in favour of the petitioner got created on the strength of such order. The Society, in which the petitioner was holding the charge is a Cooperative Society and once the Society has passed a resolution permitting respondent No. 4 to officiate as Secretary, which has been accepted by the Additional Registrar, no exception can be taken to it. Petitioner admittedly is not a member of any centralized cadre. In respect of officiation as Secretary of the Society, petitioner therefore has no right. A full Bench of this Court in 2002 (5) AWC has been pleased to consider the circumstances whereunder a writ petition under Article 226 would be maintainable against a cooperative society. Page 35 of the judgment is reproduced:-
"35. In the light of foregoing discussions, we answer question as to whether a writ petition in the nature of certiorari will lie against a Co- operative Society or it comes within the meaning of the words 'other Authority' occurring in Article 226 of the Constitution, as follows :
The writ petition in the nature of certiorari will lie against a Co-operative Society only when such Society has ingredient of an 'Authority' within the meaning of Article 226 of the Constitution and not otherwise. The following guidelines are culled out from the various decisions of the Supreme Court, referred to above :-
1. The constitution of the Managing Body/Committee constitutes the functionaries of the Government.
2. There is an existence of deep and pervasive control of the management and policies of the Co-operative Society by the Government.
3. The function of the Co-operative Society is of public importance and closely related to the Governmental functions.
4. The financial control is by the Government or it provides financial aid controlling its affairs.
5. The violation of statutory rules applicable to the Society in regard to the service matters of its employees, and
6. Statutory violations or non-compliance of it by an authority under the Act."
The writ petition is essentially against a cooperative society, which is neither 'State' within the meaning of Article-12 nor "other authority" under Article 226 of the Constitution of India and as such is not maintainable. The writ petition is consequently dismissed."
Submission is that this petition is not maintainable.
Learned counsel for the petitioner has not been able to demonstrate or bring on record any material, which may show that society answers the description of State, as per the parameters laid down by Full Bench of this Court. It is also not the case that any statutory regulation governs the service condition of petitioners. In that view of the matter, this petition is not maintainable and is dismissed, accordingly.
Order Date :- 30.4.2019 Anil