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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Vivek Singh Thakur, J.
Kehar Singh & Ors. - Appellant
Versus
State of Himachal Pradesh - Respondent
Civil Writ Petition No. 2001 of 2015, 972 of 2017, 977 of 2017, 2068 of 2017
Decided On : 15-10-2020
The High Court held that the Registrar's order rejecting the Cooperative Bank's proposal to amend its rules to allow one-time promotion for undergraduate Grade-IV officials was arbitrary, irrational, unreasonable, and violative of Article 14 of the Constitution of India. The Court directed the Registrar to approve the proposed amendment and to subscribe a just and fair procedure to regulate the sponsorship of employees for Diploma/Certificate courses in order of seniority. The Court also directed the Cooperative Bank to consider the petitioners and others for promotion within 15 days of the Registrar's approval and to finalize the same by November 30, 2020.
Fact of the Case:
The petitioners were undergraduate Grade-IV Officers/officials serving in the Himachal Pradesh State Cooperative Bank (HPSCB). The Registrar of Cooperative Societies, Himachal Pradesh (Registrar) had rejected the proposal of HPSCB to amend its rules to allow one-time promotion for undergraduate Grade-IV officials to the post of Assistant Manager (Grade-III). The petitioners challenged the Registrar's order by filing writ petitions in the High Court.
Finding of the Court:
The High Court held that the Registrar's order was arbitrary, irrational, unreasonable, and violative of Article 14 of the Constitution of India. The Court found that the Registrar had failed to consider the entire factual matrix and had misconstrued the proposal of the Cooperative Bank. The Court also found that the Registrar had failed to perform his statutory duty to specify just and fair procedure to regulate the sponsorship of employees for Diploma/Certificate courses in order of seniority.
Issues: 1. Whether the Registrar's order rejecting the Cooperative Bank's proposal to amend its rules was arbitrary, irrational, unreasonable, and violative of Article 14 of the Constitution of India? 2. Whether the Registrar had failed to perform his statutory duty to specify just and fair procedure to regulate the sponsorship of employees for Diploma/Certificate courses in order of seniority?
Ratio Decidendi: The High Court held that the Registrar's order was arbitrary, irrational, unreasonable, and violative of Article 14 of the Constitution of India because: * The Registrar had failed to consider the entire factual matrix and had misconstrued the proposal of the Cooperative Bank. * The Registrar had failed to perform his statutory duty to specify just and fair procedure to regulate the sponsorship of employees for Diploma/Certificate courses in order of seniority. The Court also held that the Registrar had failed to perform his statutory duty to specify just and fair procedure to regulate the sponsorship of employees for Diploma/Certificate courses in order of seniority because: * The Registrar had not provided any procedure to regulate the sponsorship of employees for Diploma/Certificate courses. * The Registrar had not considered the seniority of employees when sponsoring them for Diploma/Certificate courses.
Final Decision: The High Court allowed the writ petitions and directed the Registrar to: * Approve the proposed amendment to the Cooperative Bank's rules. * Subscribe a just and fair procedure to regulate the sponsorship of employees for Diploma/Certificate courses in order of seniority. * Consider the petitioners and others for promotion within 15 days of the Registrar's approval and to finalize the same by November 30, 2020.
JUDGMENT
Vivek Singh Thakur, J. - For appreciation of common questions of law and facts, all these four Writ Petitions are being decided by this common judgment.
2. These petitions have been preferred by employees of respondent - Himachal Pradesh State Cooperative Bank Ltd. (hereinafter referred to as Cooperative Bank) for omission and commission on the part of Registrar, Cooperative Societies, Himachal Pradesh (hereinafter referred to as Registrar), with respect to his statutory duty, assigned under Rule 56 of Himachal Pradesh Co-operative Societies Rules, 1971 (hereinafter referred to as Rules 1971), framed by the Government of Himachal Pradesh under the Himachal Pradesh Co-operative Societies Act, 1968 (hereinafter referred to as the Act), with respect to Conditions of Service of employees to be specified by the Registrar.
3. A common preliminary objection has been raised in all these petitions that in view of judgments passed by Division Benches of this court in C.K. Malhotra v. Himachal Pradesh State Coop. Bank and others, (1993) 2 ShimLC 243 and other connected matters, decided on 5.3.1993; and Sanjeev Kumar & others v. State of Himachal Pradesh & others,2014 LatestHLJ 1061 (HP) decided on 4.8.2014, these petitions are not maintainable being filed against Cooperative Bank.
4. In C.K. Malhotra's case, petitioners therein had assailed the order passed by the Societies, i.e. Cooperative Bank, Kangra Central Cooperative Bank Ltd. (hereinafter referred to as KCC Bank) and Himachal Pradesh State Cooperative Marketing and Development Federation (HIMFED), under their respective service regulations, against its employees, which were decided, approved or upheld by the Registrar, exercising the powers vested in him under those service regulations framed by concerned Societies.
5. Division Bench of this Court, in C.K. Malhotra's case, had adjudicated and decided the preliminary objection by holding that the three Societies, including the Cooperative Bank, registered under the Act, cannot be chacacterised as 'other authority' within the ambit of 'State' within the meaning of Article 12 of the Constitution of India and, thus, for nature of non-statutory function performed by the Registrar with respect to order passed by these societies in relation to service matters of its employees, which was not public function performed by the society(ies), these societies, in those cases, were not considered amenable to the jurisdiction of High Court under Article 226 of the Constitution of India. After considering numerous judgments passed by the Apex Court and various High Courts, it was concluded by the Division Bench as under:
"94. After having applied the tests and finding that none of the tests are satisfied the natural corollary which follows is that the three Societies cannot be characterised as the 'other authority', so as to bring them within the ambit of a 'State' within the meaning of Article 12 of the Constitution.
95. It was contended by the learned Counsel for the Petitioners that since in some of the cases orders, which have been passed, in accordance with the provisions of the Service Rules have been either upheld or varied by the Registrar, and such order also being under challenge in the writ petition, the writ petition would be maintainable and this Court will be competent to issue suitable directions interfering with the orders so passed by the statutory authority. This submission also has no force. The power which has been exercised by the Registrar is under various service regulations framed by the Societies under their respective Bye-laws by virtue of Rule 9(j) of the Rules and is not a statutory power exercised by the Registrar under the provisions of the Act and Rules. The power exercised is under service regulation framed by the Societies by virtue of powers contained in the Bye laws. Since the bye-law have no force of law as held in Cooperative Central Bank Ltd. and Ors. v. Additional Industrial Tribunal, Andhra Pradesh
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