Prayer in W.P.No.30578 of 2008:-
Petition filed under
Article 226 of the Constitution of India, for issuance of a Writ of Cetiorarified Mandamus, calling for the records relating to the order passed by the 4th respondent in Na.Ka.No.2134/2007 Ne.1 dated 15.10.2008 and quash the same and direct the respondents 1 to 4 to consider and appoint the petitioner in the post of Assistant in the 4th respondent Bank by adopting the maximum age limit as 40 years (35 + 5) as on 24.02.2007, the date on which the 4th respondent Bank called for the names from the 5th respondent as as been done in respect of recruitment to various posts in Tamil Nadu Government Service.
For Petitioners in Writ Petition Nos.30578 to 30591 of 2008 :
Ms.R.Gowri For Petitioners in Writ Petition Nos.6549 & 6550 of 2009 :
Mr.K.Selvaraj For respondents 1 to 3 and 5 in W.P.No.30578 to 30591 of 2008 :
Mr.P.Wilson, AAG-IV for 1, 2, 3 & 5 Assisted by Mr.S.Sivashanmugam, G.A.
For Respondents 1 to 3 in W.P.No.6549 and 6550 of 2009 :
Mr.P.Wilson, AAG-IV for 1, 2, 3 & 5 Assisted by Mr.Sreenivasagan For 4th Respondents in all the writ petitions :
Mr.M.R.Raghavan for R4 Amicus Curiae :
Mr.V.Prakash, Sr. Counsel COMMON ORDER Whether a Central Co-operative Bank (a Scheduled Society) registered under the Tamil Nadu Co-operative Societies Act, 1983 is amenable to the writ jurisdiction of the High Court? Answering affirmatively, the petitioners have come forward to enforce the by-law of the Society by a writ.
2. The Salem District Central Co-operative Bank Limited/4th respondent is a Co-operative Society governed by the Tamil Nadu Co-operative Societies Act, 1983 (in short "the Act"). During the year 2007, the 4th respondent Bank notified certain number of vacancies for the post of Assistants and requested the 5th respondent District Employment Exchange Officer to sponsor the names of the suitable candidates. According to the petitioners, as per Rule 149(3) of the Tamil Nadu Co-operative Societies Rules, 1984 ( in short "the Rules") and the bye-laws of the 4th respondent Central Co-operative Bank, the upper age limit for the candidates belonging to Backward Community and Most Backward Community for appointment to the said post then was 35 years. The Government of Tamil Nadu had imposed a ban on recruitment as per G.O.Ms.212, Personnel and Administrative Reforms Department, dated 29.11.2001. The said ban was lifted by G.O.Ms.No.14, dated 07.02.2006. Since several candidates were affected due to the said ban, the Government of Tamil Nadu issued yet another order in G.O.Ms.98, dated 17.07.2006 granting 5 years of relaxation of upper age limit for all Government appointments. Indisputably, the said Government Order is applicable to the 4th respondent Co-operative Bank also as the Bank has adopted the said Government Order. Therefore, they claim that the 4th respondent Co-operative Bank ought to have called for sponsorship of names from the District Employment Exchange by fixing the upper age limit at 40 years for BC and MBC candidates. The petitioners, in all the writ petitions belong either to BC or MBC and during the relevant point of time, admittedly, they had crossed 37 years of age, but, not crossed the age of 40 years. Since the names of the petitioners were not sponsored on the ground that they had already crossed the upper age limit of 37 years, the petitioners filed W.P.No.33000 of 2007 before this Court for a direction to the respondents to consider them for employment. Accordingly, this Court by order dated 10.09.2007 disposed of the writ petition with a direction to the Employment Exchange to sponsor the names of the petitioners. In pursuance of the same, their names were sponsored and they were called for interview. During the final selection process, the 4th respondent Co-operative Bank had again rejected the petitioners on the ground that they had crossed the upper age limit of 37 years (i.e.,) 32 years as per the bye-law and 5 years as per the relaxation given by the Government of Tamil Nadu. The petitioners claim that they are well within the age limit of 40 years. They contend that the 4th respondent Co-operative Bank has erroneously prescribed 40 years as upper age limit, instead of 37 years. With the above contentions, the petitioners have come forward with these writ petitions.
3. It is the contention of the 4th respondent that it is, of course, true that until Rule 149(3)of the Tamil Nadu Co-operative Societies Rules was amended, in matters of reservation for appointments and age for appointment and retirement, the rule applicable to the Government Servants was followed. As per the Government rules, the upper age limit for the candidates belonging to BC/MBC was then indisputably 35 years. But,it is contended that Rule 149(3) was amended subsequently as per G.O.Ms.133 Co-operation,Food and Consumer Protection (CJI) Department, dated 14.07.2005 by which the words "age for appointment and retirement" as found in Rule 149(3)were deleted and the same were substituted by the words "age for retirement. In effect, the upper age limit prescribed for appointment to the Government service has been made inapplicable to the Co-operative Societies. It is further contended that subsequently, the bye-law of the 4th respondent Co-operative Bank was duly amended on 30.06.2008 with retrospective effect from 24.08.2007. As per the amended bye-law, the upper age limit for BC/MBC candidates shall be 32 years. If 5 years relaxation given as per G.O.Ms.98 Personnel and Administrative Reforms (S) Department, dated 17.07.2006 cited supra is added, the upper age limit shall be 37 years for BC/MBC candidates. Since, in the case on hand, all the petitioners, who belong to either BC or MBC have crossed 37 years of age, the 4th respondent Co-operative Bank has rejected them. Thus, according to the 4th respondent, there is no illegality or irregularity warranting interference at the hands of this Court.
4. It is further contended that the 4th respondent being a co-operative society, is not amenable to writ jurisdiction as per the law laid down by the Hon'ble Supreme Court in various pronouncements in respect of co-operative societies and more particularly the law laid down by a Larger Bench of this Court in K.Marappan v. The Deputy Registrar of Co-operative Societies, Namakkal2006(4)CTC 689.
5. To counter the said argument,the learned counsel appearing for the petitioner would submit that the bye-law was amended only with effect from 24.08.2007 whereas the crucial date of notification was 21.12.2006. Therefore, as per the bye-law as it stood on 21.12.2006, the upper age limit for BC/MBC candidates was only 35 years. Adding 5 years of relaxation given as per G.O.Ms.98 cited supra and adopted by the 4th respondent co-operative Bank, the upper age limit should have been 40 years. Since all these petitioners had not crossed 40 years, according to the learned counsel for the petitioner, they are entitled for being considered for appointment.
6. In respect of maintainability of the writ petition, the learned counsel would submit that the law laid down in K.Marappan's case cited supra has got no application as the said case relates to Primary Agricultural Co-operative Societies; whereas the 4th respondent is a Central Co-operative Bank. According to her, the tests propounded in Ajay Hasia v.Khalid, 1981 (1) SCC 722, if applied to the present case,it would emerge crystal clear that the 4threspondent is amenable to writ jurisdiction.
7. Since an important question of law regarding maintainability of the writ petitions is involved in this matter, this Court requested Mr.V.Prakash, learned senior counsel, to assist this Court as Amicus Curiae. He took me through various judgements of the Hon'ble Supreme Court and this Court and finally submitted that for the relief sought for in these writ petitions , the 4th respondent cannot be made amenable to the writ jurisdiction of this Court.
8. I have considered the rival submissions in greater details and perused the records carefully.
9. Indisputably,as per Rule 149(3) (as it stood unamended), the upper age limit for appointment was on par with the appointment to the Government services. The unamended rule is as follows:-
"In matters of reservation for appointments and age for appointment and retirement, the rule applicable to the Government servants shall be followed."
10. This rule was amended by the Government in exercise of the power conferred by sub-section(1)& (2) of Section 180 of the Tamil Nadu Co-Operative Societies Act,1988. By means of the said amendment, the words "age for appointment and retirement" were deleted and instead the words "age for retirement"were substituted. This amendment came into force with effect from 14.07.2005. This amendment was laid before the table of the Legislative Assembly and the Assembly did not suggest any further amendment to the same. Thus, the amended rule has taken effect from 14.07.2005 onwards. From this, it is undoubtedly clear that on or after 14.07.2005 the upper age limit as prescribed by the bye-law of the 4th respondent alone shall be binding.
11. Bye-law No.10, as it stood prior to 24.08.2007 is as follows:-
"10. Age at entry and age for retirement: In matters of age for appointment and retirement,the provisions contained in sub rule(3)ofrule149 shall be followed"
12. This bye-law was amended on 30.06.2008 with retrospective effect from 24.08.2007 and as per the amended bye-law, the upper age limit for BC/MBC and Denotified Communities is 32 years. The crucial date of employment notification in this case was 21.12.2006. Therefore,the amended bye-law is not applicable to the present appointment and bye-law 10 as it stood prior to the amendment alone is applicable. As per the said bye-law, the upper age limit as applicable to the Government services should be followed. Therefore, as rightly pointed out by the learned counsel for the petitioners, since, as per the unamended bye-law the upper age limit was 35 years for the candidates belonging to BC/MBC, adding 5 years as per the relaxation given as per G.O.Ms.98 cited supra, the upper age limit should have been 40 years and so the petitioners are entitled for being considered for appointment. Thus the rejection of these petitioners on the ground that they have crossed 37 years is not at all in accordance with law.
13. Now, arises the next important question, whether under writ jurisdiction, this Court can enforce the bye-law so as to direct the 4th respondent to consider the petitioners for being appointed as they are well within the age limit as per the bye-law.
14. To find an answer to the said question, it is essential to find as to whether the 4th respondent Bank can be characterised as an authority within the meaning of
Article 12 of the Constitution of India so as to bring the same under the prerogative writ jurisdiction of this court under
Article 226 of the Constitution of India. In this regard , I am of the view that a survey of judgements of the Hon'ble Supreme Court as well as this Court commencing from Ajay Hasia and others v. Khalid Mujib Sehravardi and others (1981) 1 SCC 722 would be suffice. The tests propounded in Sukhdev v. Bhagatram, AIR 1975 SCC 1331 and Ramana v. I.A. Authority of India, AIR 1979 SC 1628 were reformulated by the Constitution Bench of the Hon'ble Supreme Court in Ajay Hasia's case. The tests are as follows:-
"(1) One thing is clear that if the entire share capital of the corporation is held by Government it would go a long way towards indicating that the corporation is an instrumentality or agency of Government.
15. The tests formulated in Ajay Hasia's case came to be considered by a co-equal Bench of the Hon'ble Supreme Court in Pradeep Kumar Biswas and others v. Indian Institute of Chemical Biology & others 2002(3) Supreme 293, wherein, after having elaborately considered a number of judgements relating to
Article 12 of the Constitution of India vis-a-vis the power of the High Courts under
Article 226 of the Constitution of India, in para 41 of the judgement, the Hon'ble Supreme Court has held thus:-
"The picture that ultimately emerges is that the tests formulated in Ajay Hasia are not a rigid set of principles so that if a body falls within any one of them it must, ex hypothesis, 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. In a latter case in S.S.Rana v. Registrar of Co-op. Societies and another (2006) 11 SCC 634, the Honble Supreme Court following the tests formulated in Ajay Hasias case and Pradeep Kumar Biswass case has held as follows:-
It has not been shown 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 share holder. The State has the power only to nominate one Director. It cannot, thus, be said that the State exercises any functional control over the affairs of the Society in the sense that the majority Directors are nominated by the State. For arriving at the conclusion that the State has a deep and pervasive control over the Society,several other relevant questions are required to be considered, namely: (1) How was the Society created? (2) Whether it enjoys any monopoly character? (3) Do the functions of the Society partake statutory functions or public functions? and (4) Can it be characterised as public authority? Respondent 2, the Society does not answer any of the aforementioned tests. As respondent 2 does not satisfy any of the tests laid down in Pradeep Kumar Biswas, (2002) 5 SCC 111, the High Court cannot be said to have committed any error in arriving at a finding that the respondent Bank is not a part of the State within the meaning of
Article 12 of the Constitution.
17. Reliance was also placed on State of U.P. And another vs. Radhey Shyam Rai, (2009) 3 MLJ 1350 (SC) wherein, by applying the tests in Ajay Hasias case, on the factual finding that the documents produced before the High Court reveal that 80% to 90% of the expenditure of Sansthan was met out of the funds made available to it by the Government; the majority of the office bearers of the Governing Council were holders of various offices of the Government; this itself clearly shows that the composition and constitution of Sansthan and its Governing Council was nothing but a show of the Government and it is required to obey all the directions issued by the State Government from time to time, the Honble Supreme Court held that the Society known as Uttar Pradesh Ganna Kishan Sansthan a society registered under the Societies Registration Act is a State within the meaning of
Article 12 of the Constitution.
18. So far as this Court is concerned, a Five Judges Bench in M.Thanikkachalam v. Madhuranthakam Agricultural Co-operative Society, 2000(4) CTC 556 had held that no writ petition would lie against a co-operative society governed by the Tamil Nadu Co-operative Societies Act, since it is not an Instrumentality of the State within the meaning of
Article 12 of the Constitution. Based on the same, a writ petition filed against a co-operative society was dismissed by a learned single Judge. When the matter was appealed against, much reliance was placed before the Division Bench on Pradeep Kumar Biswas's case so as to say that the co-operative societies governed by the Tamil Nadu Co-operative Societies Act are state instrumentalities amenable to the writ jurisdiction of the High Court. The said question was referred to a Bench of co-equal strength of this Court in K.Marappan's case. Applying all the 6 tests formulated in Ajay Hasia's case, the Larger Bench held that a society governed by the Act is not a State Instrumentality and therefore, a writ petition would not lie.
19. A close analysis of all the judgements referred to above would make it manifestly clear that to find whether a body is a State or State Instrumentality within the meaning of
Article 12 of the Constitution, the tests formulated in Ajay Hasias case should be applied and on such application, it if could be deduced that the said body satisfies one or more of the tests, then the said body would fall within the purview of
Article 12 of the Constitution.
20. The learned Additional Advocate General as well as the learned counsel appearing for the 4th respondent would place reliance on K.Marappan's case to substantiate their contention that the 4th respondent is not a state instrumentality and therefore, it is not amenable to writ jurisdiction. They would further submit that the question whether the 4th respondent is a state instrumentality is no more res-integra for this court to decide since the same has already been decided in K.Marappan's case. But, I find greater force in the arguments advanced by the learned counsel appearing for the petitioner that K.Marappan's case was primarily concerned with Primary Agricultural Co-operative Bank wherein by applying all the 6 tests, the Larger Bench found that such a Co-operative Society is not a State Instrumentality. It could be seen that the Larger Bench had no occasion to deal with a Central Co-operative Bank which is a scheduled Co-operative Society so as to give a finding as to whether the same is a state instrumentality or not. No judgement has been cited before me from this Court answering the said question relating to a Central Co-operative Bank governed by the Act. Therefore, the argument that it is not open for this Court to decide as to whether the 4th respondent is a State or State instrumentality is only to be rejected. As we have already noticed, all the 6 tests formulated in Ajay Hasia's case are to be applied to find a solution to the issues involved in the cases on hand.
Test No.1:-
21. This test relates to the share capital to be held by the Government. If the entire share capital of the Bank is held by the Government then,the said Bank is certainly a state instrumentality. In the cases on hand, the learned counsel for the petitioner would rely on the 99th Annual Report of the 4th respondent for the year 2006-2007 wherein, the Auditor's Report is incorporated, according to which the Government has made some investment by way of shares. Relying on the same, the learned counsel for the petitioner would submit that by holding major shares,the Government has pervasive control over the affairs of the Bank and thus as per the 1st test of Ajay Hasia's case, the 4th respondent Bank is a state instrumentality. But, I am not persuaded by the said argument. It appears that the Government has got some share holdings in the 4th respondent Bank. But, under
Section 26 of the Act,it has got only one vote in the General Body which means in the policy making body, the say of the Government is very minimal. In K.Marappan's case, in respect of Primary Agricultural Co-operative Banks, the Larger Bench of this Court has considered the voting power of the Government under
Section 26 of the Act, and has held that because the Government has got share holdings, it will not ipso-facto indicate that the Government has got pervasive control so as to bring the Bank within the meaning of State instrumentality under
Article 12 of the Constitution of India. Thus,the 4th respondent Bank does not satisfy the 1st test.
Test No.2:-
22. This test relates to financial assistance of the State to meet almost the entire expenditure of the Bank. It is stated in Ajay Hasia's case that if the Government meets the entire expenditure of the Bank by extending financial assistance, it would afford an indication that it takes the Governmental character. Admittedly, for the 4th respondent , no such financial assistance to meet the entire expenditure is made by the Government and so the 2nd test is also not satisfied.
Test No.3:-
23. This test relates to monopoly being enjoyed by the body. Though it is stated that the 4th respondent enjoys monopoly in Co-operative Banking in Salem District, the learned counsel for the petitioner is not able to satisfactorily explain as to how such banking activity amounts to monopoly. It is not as though banking activities in Salem are fully undertaken only by the 4th respondent. Therefore, it cannot be stated that the 4th respondent is enjoying monopoly status in banking business. Thus, the 3rd test is also not satisfied.
Test No.4:-
24. This test relates to the deep and pervasive state control in the affairs of the society. Insofar as the constitution and management of the society and the powers of the Registrar and the Government, in K.Marappan's case, after having elaborately dealt with
Section 12,14,33, 34, 68, 73, 75, 76, 88 and 181 of the Act, the Larger Bench has held that the power of the Registrar and the Government under the Act would not mean that the Government has got deep and pervasive control over the Primary Agricultural Co-operative Banks. Though, in the matter of Constitution of the Board, there is some difference between a Primary Agricultural Co-operative Bank and a Scheduled Society like, the 4th respondent, the ultimate authority of both lies only in the respective General Body (vide Sec.32). So far as the powers of the Registrar and the Government are concerned, there is virtually no difference between a scheduled Society and any other society. I do not find any additional power either for the Government or for the Registrar so as to differently hold that the Government has deep and pervasive control over the scheduled societies. Thus, the conclusion arrived at by the Larger Bench in respect of Primary Co-op. Banks squarely applies to the 4th respondent Central Co-Operative Bank also. Thus, the 4th test is also not satisfied.
Test No.5:-
25. As held in K.Marappan's case, the 4th respondent Bank takes care of only its members as it advances loans only to its members. Thus, there is no public duty cast upon the 4th respondent Bank. The functions of the 4th respondent Bank are also not closely related to the Governmental functions. Thus, the 5th test is also not satisfied.
Test No.6:-
26. This test is applicable in a case where the department of the Government has been transferred to a Corporation. The 4th respondent is not one such erstwhile Government Department. Therefore, the 6th test is also not satisfied.
27. Thus applying all the above tests, it could be safely concluded that the 4th respondent does not fall within the purview of
Article 12 of the Constitution of India and thus the same is not amenable to the writ jurisdiction of this Court.
28. One of the propositions laid down in K.Marappan's case, by the Larger Bench is as follows:
"Proposition No.(vi):The bye-laws made by a co-operative society registered under the Tamil Nadu Co-operative Societies Act, 1983 do not have the force of law. Hence, where a society cannot be characterised as a 'State' , the service conditions of its employees governed by its bye-laws cannot be enforced through a Writ Petition."
29. In the cases on hand, it is crystal clear that the petitioners have been rejected from being considered for appointment in violation of the bye-law. As I have already concluded, as per the unamended bye-law which was in force on the crucial date, they were very well within the upper age limit of 40 years for being considered for the posts. At the same time, in view of the law laid down in K.Marappan's case (vide proposition No.vi), this Court cannot enforce the said bye-law by invoking its writ jurisdiction so as to direct the 4threspondent to consider the petitioners for appointment. The petitioners have got alternative remedy under the Act to approach the Registrar of Co-operative Societies or the Government for redressal of their grievances.
30. A feeble attempt was made by the learned counsel for the petitioner that though the 4th respondent is not a State Instrumentality ,still, writ jurisdiction can be invoked as there is violation of fundamental right. For this proposition, the learned counsel relied on a judgement of this Court in T.K.Ananda Sayanan v. The Joint Registrar, Co-operative Societies, Vellore, 2007 (5) CTC 1. But, it was a case where the Full Bench had to consider whether suspension of an employee would be violative of right to life guaranteed under Art.21 of the Constitution of India. While holding that every order affecting the services of a workman would not automatically amount to an infringement of his right under
Article 21 of the Constitution, this Court held that under certain exceptional circumstances, such as, exclusion of an employee affected by HIV AIDS or an employee who has been rendered immobile by an accident or cases where the rights of huge number of employees are involved or where their very existence is jeopardised, the employee may justifiably invoke
Article 21 of the Constitution and seek protection by filing a writ petition.
31. Relying on the above , the learned counsel for the petitioner would submit that denial of employment in violation of bye-law would infringe Articles 14 & 21 of the Constitution of India and so the same should be interfered with by invoking the writ jurisdiction. In my considered opinion,the said argument is only to be rejected. None of the exceptions carved out in T.K.Ananda Sayanan' case is available to the petitioners to workout their remedies by invoking the writ jurisdiction of this Court. As I have already stated though the grievance of the petitioners is well founded,the remedy for them lies elsewhere before the authority concerned under the Act and this Court is helpless to issue any direction as prayed for by the petitioners.
32. In the result, the writ petitions fail and they are accordingly dismissed. However,the petitioners are at liberty to work out their remedies as indicated above in accordance with law. If any representation in this regard is made by the petitioners either to the Government or to the Registrar of Co-operative Societies, the same shall be considered in the light of the findings and observations made above and appropriate order shall be passed within four weeks from the date of representation. Consequently,connected MPs are closed. No costs.
33. Before leaving, this Court would like to record its appreciation for the excellent assistance rendered by Mr.V.Prakash, the learned Senior Counsel.
Index : yes 30..09.2009 Internet : yes kmk To 1.The Secretary to Government, Co-operation , Food and Consumer Protection Department, Fort St.George,Chennai-9. 2.The Registrar of Co-operative Societies,No.170, Periyar EVR Road,Kilpauk, Chennai 600010. 3.The Jt. Registrar of Co-operative Societies, Salem Region,Salem. 4.The Special Officer / Joint Registrar of Co-operative Societies, Salem District Central Co-operative Societies, Head Office,Salem 636 001. 5.The District Employment Officer, Salem District, Salem 636 007. S.NAGAMUTHU. J., kmk Writ Petition Nos.30578 to 30591 & 6549 and 6550 of 2009 30..09..2009