2007 Supreme(SC) 234

2007(3) Supreme 231
SUPREME COURT OF INDIA
(From Madhya Pradesh High Court)
A.K. Mathur and H.S. Bedi, JJ.
Madhya Pradesh Rajya Sahakari Bank Maryadit—Appellant
versus
State of M.P. & Ors.—Respondents
Civil Appeal No. 2661 of 2004
Decided on 22-2-2007
Counsel for the Parties :
For the Appellant : S.K. Gambhir, Sr. Advocate, Sr. Advocate, M.P. Jha, S.C. Dwivedi, R.E. Roy, Harshvardhan Jha, B.K. Sharma and Anil K. Chopra, Advocates.
For the Respondents : Rajeev K. Virmani, Rajeev M. Roy and Ms. Vibha Datta Makhija, Advocates.

IMPORTANT POINT
The Registrar of Co-operative Societies under Section 55 of the Madhya Pradesh Co-operative Societies Act has power to lay down the reservation in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes as general condition of service only in Co-operative Societies in which the State has more than 51 per cent paid up share capital and not for any other Co-operative Societies.

Headnote:Madhya Pradesh Cooperative Societies Act, 1960—Section 55—M.P. Rajya Sahakari Bank Employees (Terms of Employment and Working Conditions) Rules, 1976—Rule 5—Madhya Pradesh Lok Seva (Anusuchit Jatiyon, Anusuchit Jan Jatiyon Aur Anya Pichhade Vargon Ke Liye Arakshan) Adhiniyam, 1994—Reservation in favour of Scheduled Castes, Scheduled Tribes and other Backward classes—Powers of Registrar of Co-operative Societies u/s 55 to frame rules—Impact of Act of 1994—By Act of 1994, Legislature having laid down ceiling that reservation in favour of SCs, STs and Other Backward Classes should be made in the establishment where Government has more than 51% share holding—Registrar of Co-operative Societies can lay down reservation as general condition of service only in Co-operative Societies in which the State has more than 51 percent paid up share capital and not for any other co-operative societies—Order passed by the Registrar by notification dated 6-3-1997, general in nature, not making any distinction with Co-operative Societies, cannot be upheld—Constitution of India—Article 16(4-A).

       Held : Reading of objective of the Act of 1994 along with the definition of establishment it transpires that the Registrar under Section 55 of the Act of 1960 can lay down service condition for Co-operative Society in which the State has 51 percent of share capital. In case any Co-operative Society in which the State does not have 51 percent of share capital, then that Co-operative Society will not come within the definition of establishment under Section 2(b) of the Act of 1994 and the Registrar of Co-operative Societies shall have no power to frame rule for reservation. It is true that under Section 55 of the Act of 1960 the Registrar can give direction for reservation for the Scheduled Castes and Scheduled Tribes and other Backward classes while exercising the mandate under Article 16(4-A) of the Constitution but at the same time he cannot ignore the State legislation i.e. the Act of 1994. In fact, the Act of 1994 was also promulgated for achieving the object under Article 16(4-A) of the Constitution. Once the State Legislature has framed an Act which is subsequent legislation in point of time i.e. the Madhya Pradesh Co-operative Societies Act, 1960 (Act 17 of 1961) came in 1960 whereas the present Act has come in 1994. It is presumed that Legislature was aware of the power of the Registrar of the Co-operative Societies under Section 55 of the Act of 1960 to frame condition of service of employees of Co-operative Societies despite that the Legislature has promulgated the Act of 1994 and laid down ceiling that the reservation in favour of Scheduled Castes, Scheduled Tribes and other Backward classes should be made in the establishment where Government has more than 51% share holding. Thus, on reading of both these two enactments it is more than clear that the Registrar of Co-operative Societies under Section 55 of the Act of 1960 has power to frame rules but at the same time he cannot ignore the impact of the Act of 1994. The Registrar of Co-operative Societies can lay down the reservation in favour of Scheduled Castes, Scheduled Tribes and other Backward classes as general condition of service only in Co-operative societies in which the State has more than 51 percent paid up share capital and not for any other co-operative societies. But the notification dated 6.3.1997 is of general in nature and does not make any distinction with Co-operative societies which do not have 51 per cent paid up share capital of State. Therefore, to this extent the rule framed by the Registrar of Co-operative Societies, Madhya Pradesh by notification dated 6.3.1997 cannot be upheld and the same is struck down. But by this it does not mean that the Registrar of Co-operative Societies, Madhya Pradesh is not denuded of his power to frame rules but he will have to keep in view the impact of the Act of 1994.(Para 7)

       (ii) Constitution of India—Articles 226 and 32—Writ petition against a Co-operative Society—Maintainable if it is established that a mandatory statutory provision of a statute has been violated —Supriyo Basu v. W.B. Housing Board, (2005) 6 SCC 289 : Relied on.(Para 8)