JUDGMENT 1. The short facts of the case appears to be that the first petitioner is the Chairman of one Hadiyol Group Vividh Karyakari Seva Sahakari Mandli Ltd. (hereinafter referred to as “the Society”) which is the member of the Sabarkantha District Cooperative Purchase and Sales Union Ltd. (hereinafter referred to as “the District Union/Federal Society”) and the and the petitioner No.2 is the delegate member of the said District Union. It appears that earlier, recruitment process was undertaken by the District Union in the year 2006 and during the said period, the auditor had examined the matter and in the audit, it was found that there were large number of illegalities and irregularities committed in the recruitment process inasmuch as the posts filled up were materially different than the posts so advertised and about 7 persons were given appointment at the later point of time and secondly, 41 persons were appointed as against the posts advertised of 37 in number. It was also found that the recruitment process was undertaken in collusion with the members of the managing committee of each other and for their vested interest, the recruitment process was undertaken. Such details of each post and the illegalities committed at the recruitment process is available in the copy of the audit report and the relevant pages are 39 to 41 of the compilation. It was recommended by the auditor that as the members of the managing committee have committed breach of confidence put by the members of the Union and have acted in contravention to the interest of the members, the proceedings under section 76B of the Gujarat Cooperative Societies Act (hereinafter referred to as “the Act”) for removal be initiated. The case of the petitioners is that thereafter, no further concrete action was taken by the Registrar against the office bearers of the Society for initiation action under Section 76B of the Act. As per the petitioners, once again the similar recruitment process has been undertaken by the Sangh by giving advertisement in the newspaper on 21.11.2009 for various posts of Clerk, Auditor, etc. At that stage, the petitioner complained to the District Registrar and the District Registrar also called for the details. The District Registrar communicated to the District Union to stay the process of recruitment until the details are submitted. Inspite of the same, the District Union continued with the recruitment process. At that stage, the petitioner complained to the District Registrar and the District Registrar also called for the details. The District Registrar communicated to the District Union to stay the process of recruitment until the details are submitted. Inspite of the same, the District Union continued with the recruitment process. It is under these circumstances, the petitioners have approached to this Court by the present petition. 2. The prayers inter alia in the petition are to direct the respondent Nos. 1 and 2 authorities to take action against the Chairman of the District Union under Section 76B of the Act and further direct the respondent No.3, the Chairman of the District Union not to make any further appointment pursuant to the advertisement dated 21.11.2009. 3. The learned counsel for both the sides are heard for final disposal. 4. The learned counsel for the petitioners contended that if the interference is not made by this Court to the process of recruitment already undertaken by the office bearers of the District Union and more particularly its Chairman, not only the illegalities would be perpetuated this time also as was done in the year 2001 as per the report of the auditor, but it would create irreversible situation inasmuch as the very persons who are recommended to be removed will make appointment with their vested interest and once the persons are appointed on the posts, even if the officers are removed as members or Chairman of the District Union, there is no provision under the Act for termination of their services nor the Registrar can terminate their service on account of such illegal action of recruitment undertaken by the office bearers of the Society. He submitted that the District Union is a specified Society having huge public importance. The matter of appointment of its staff would fall in the domain of the public law, therefore, if the petition is not entertained, no remedy will be available to the aggrieved party for undoing the illegal action taken in past and it may be taken this time with express consideration. He therefore submitted that this Court may pass appropriate orders. 5. He therefore submitted that this Court may pass appropriate orders. 5. Whereas, on behalf of the State Authorities, it was submitted that as per the mechanism provided under the Act, there are powers to frame the Rules and Regulations and the draft rules were prepared, but are not enforced since the Government was advised that it may effect the autonomy of the Society. However, the learned Government Pleader Mr. Jani did submit that the functioning of all the specified Societies in the State involves huge public interest and the powers of recruitment are required to be undertaken by the office bearers in such Societies in a fair manner by maintaining transparency and by giving opportunity to all eligible candidates. He contended that the Act provides for mechanism of removal of such persons who are office bearers but appointees cannot be removed unless the resolution for approving the appointment is set aside in a dispute raised under Section 96 of the Act. 6. Whereas, the learned counsel appearing for the respondent District Union contended that the petition cannot be maintained under Article 226 of the Constitution and in a case where the legislature has not provided any regulation for such recruitment, the petitioners cannot assert the specified criteria of recruitment and it is the domain of the District Union or its office bearers to decide the mode and manner of recruitment. He submitted that when the State Government has also not brought into force the draft rules, this Court would not exercise the powers under Article 226 for writing the laws which is not made by the legislature. He submitted that as per him, the District Union has undertaken a fair procedure for recruitment and the allegations made by the petitioners are baseless, therefore, the petition deserves to be dismissed. On the aspects of exercise of power under Section 76B of the Act, as uptil now, the action is not initiated, no further submissions are made except that the report of the auditor is not true and correct pertaining to the earlier recruitment process undertaken in the year 2006. Therefore, he submitted that the petition may be dismissed. 7. In order to examine the controversy, the first aspect deserves to be dealt with is about the preliminary contentions raised by the learned counsel for the respondent District Union on the point of maintainability. Therefore, he submitted that the petition may be dismissed. 7. In order to examine the controversy, the first aspect deserves to be dealt with is about the preliminary contentions raised by the learned counsel for the respondent District Union on the point of maintainability. It is an admitted position that the District Union is a specified Society under the Act. In the case of Ahmedabad District Co-op. Purchase and Sale Union Ltd. Vs. Gujarat State Co-op. Bank Ltd. & Ors. reported at 2006(3) GLH 539 , this Court had an occasion to consider more or less similar preliminary objection about the maintainability of the petition against a specified society under Article 226 of the Constitution. It was inter alia observed by this Court in the said decision as under: “14. Second preliminary objection which needs to be disposed of at this stage is with respect to the maintainability of the petition. It is not in doubt that the petitioner has not laid any foundation to urge that respondents Nos.1 to 4 are “State” within the meaning of Article 12 of the Constitution. There is no material nor are there any averments to this effect. In that view of the matter, it is necessary for this Court to find out whether a writ would be maintainable in respect of the prayers made in the present petition. 14.1 By virtue of the areas and the importance of activities that certain cooperative societies have undertaken over a period of time, they have achieved considerable importance. To regulate some of the aspects of management of such societies, certain special provisions have been made in the said Act. Such societies which are referred to as specified cooperative societies under the provisions of the said Act are governed by special provisions made in the said Act. In particular section 74C of the Act and Chapter XI-A of the said Act provide that election to the members of the managing committee of such society shall be governed by the said provisions. In Chapter XI-A of the said Act, elaborate provisions have been made for conduct of elections to the members of managing committee of such societies. These provisions are substantially pari-materia with the provisions contained in the legislation governing election of State Legislatures. In Chapter XI-A of the said Act, elaborate provisions have been made for conduct of elections to the members of managing committee of such societies. These provisions are substantially pari-materia with the provisions contained in the legislation governing election of State Legislatures. Detailed and elaborate provisions have been made for preparation of electoral rolls, for filing of nominations, for holding of elections, for counting of the ballots and for declaration of the results of the elections. The provisions are also made for the purpose of resolving election disputes. Special machinery is created to hear any complaint about the election mal-practices and other election disputes. The provisions contained in Chapter XI-A also provide for offences and penalties. It can thus be seen that in a limited sphere of constitution of managing committees of the specified cooperative societies, in view of the considerable importance that such societies enjoy, it is no longer a matter of mere contract between the parties. The Legislature has intercepted and made detailed provisions to ensure that election of the committees of such societies are held in a free and fair manner. In the case of Daman Singh v. State of Punjab, (1985) 2 SCC 670 also, the Hon'ble Supreme Court recognized the concept of statutory interference with the composition of cooperative societies. In para 9 of the said decision, it is observed that “in the cases before us we are concerned with cooperative societies which from the inception are governed by statute. They are created by statute, they are controlled by statute and so, there can be no objection to statutory interference with their composition on the ground of contravention of the individual right of freedom of association”. It can thus be seen that such societies hold considerable importance in so far its constitution and management is concerned. It is in this regard, that the provisions contained in section 74-C (3) provide that notwithstanding anything contained in the bye-laws of any such society, the committee of management shall be elected by the general body of members of the society and all other committees authorized by or under the bye-laws may be constituted by electing or appointing persons from among the persons who are members of the committee of management. In the present petition, the petitioner has sought implementation of the said statutory provision. In the case of A.M. Bhutaiya v. Amreli Dist. Central Coop. In the present petition, the petitioner has sought implementation of the said statutory provision. In the case of A.M. Bhutaiya v. Amreli Dist. Central Coop. Bank Ltd., 1998 (2) GLR 1740 , learned single Judge of this Court observed that whether a cooperative society is an instrumentality of the State or not would depend on the nature of functions and duties of the society, Government financing and extent of Government control and in that case, the Court found that the Amreli District Cooperative Bank is not “State” within the meaning of Article 12 of the Constitution of India. It was, however, held that writ jurisdiction of the High Court can be invoked as a public law remedy for fulfillment of public duty or obligation. 15. In view of the above discussion, I find that the petition cannot be rejected only on the ground of not being maintainable. There is yet another aspect of this issue. Respondents Nos.5 & 6 are the official respondents, i.e. the Registrar of Cooperative Societies and the Department of the State Government who are entrusted with the duty of ensuring that the provisions contained in the said Act are implemented and corresponding powers are also available with the authorities particularly in section 82 and section 160 of the said Act. Such powers have been recognized by this Court in the case of A.M.Bhutaiya v. Amreli District Central Coop. Bank Ltd (supra) as well in the case case of Jain Merchants Cooperative Housing Society Ltd v. HUF of Manubhai Shah, (1995) 1 GLR 19 wherein the Bench was pleased to note the observations made in para 55 of the decision in the case of Amreli District Cooperative Sale and Purchase Union (supra) to the following effect: “In any case, an aggrieved person has always a right to move the Courts by seeking appropriate remedies by regular civil action in Civil Court or before Registrar by invoking his special jurisdiction where the membership is refused on flimsy and trivial grounds.” 15.1 Under section 82 of the said Act, the Registrar has power to enforce performance of obligation of a society. It provides, inter alia, that where any society is required to take any action under the Act, the rules or the bye-laws and such action is not taken within the time provided in the Act or rules or the bye-laws or where no such time is provided, within such time as the Registrar may specify by notice in writing, the Registrar may himself or through a person authorized by him, take such action at the expense of the society. Under the provisions of section 160 of the said Act, the Registrar enjoys certain powers to give directions to the co-operative societies. The prayers made by the petitioner also include prayers for direction to respondents Nos. 5 & 6 to ensure that the provisions contained in section 74C particularly sub-section (3) thereof are properly implemented. Surely, such directions are not out of the purview of writ jurisdiction of this Court under Article 226 of the Constitution of India. Merely on the ground of maintainability, I do not find that this petition can be rejected.” 8. It may also be recorded that in the matter of action of the District Cooperative Bank brought under challenge in a petition under Article 226 of the Constitution, this Court in the case of Arvindbhai Mulubhai Bhutaiya & Ors. Vs. Amreli District Central Co-op Bank Ltd. & Anr reported at 1998(2) GLR 1740 found that even if it is not a State within the meaning of the Article 12 of the Constitution, the writ jurisdiction can be invoked as a public law remedy for fulfillment of the public duty and obligation. In the said decision, after recording the conclusion that the District Bank would not be said to be a State within the meaning of Article 12 of the Constitution, it was further observed by the Court at para 22 as under: “22. However, the matter does not end here. The question still remains as to whether in the facts and circumstances of the case, any writ,order or direction can be issued against the respondent - Bank under Article 226 of the Constitution of India. Mr. Jayant Patel appearing on behalf of the petitioners has resolutely argued that the scope of Article 226 is wider than that of Article 32 of the Constitution of India. Mr. Jayant Patel appearing on behalf of the petitioners has resolutely argued that the scope of Article 226 is wider than that of Article 32 of the Constitution of India. The jurisdiction of the Supreme Court under Article 32 can be invoked only in cases where there is a breach of the fundamental right and fundamental rights can be enforced only against those bodies which are covered by Article 12 of the Constitution of India. But so far as Article 226 is concerned, the writ can be issued even for the purpose of rights, which are not fundamental, and as has been provided in Article 226 it is to any person and for any other purpose. Therefore, Article 226 is couched in a large and wider terminology and it has been so considered, construed and explained in various decisions and even after holding that a particular body is not covered by the term 'State' or 'other authority' or an 'agency' or 'instrumentality' within the scope of Article 12,the writs have been issued when the Court has found that such body has failed to discharge the duty cast upon it under any statute and such writs, orders or directions in the nature of writ have been issued by this Court itself. Mr. Patel has placed strong reliance on the five decisions; three of which have been rendered by the Supreme Court, one by Andhra Pradesh High Court and one by our own High Court. Reference has already been made to the aforesaid decisions in the earlier part of this order. I have considered the aforesaid submissions made by Mr. Patel on the question of the scope of Article 226 and find that this submission made by Mr. Patel is not without force. In Shri Anadi Mukta's case (Supra), the case went to the Supreme Court from our own High Court. It has been clearly ruled by the Supreme Court that the issue of the writ of mandamus under Article 226 is not confined to statutory authorities and instrumentalities of the State only and further that it can be issued to any other person or authority performing public duty and that such duty need not be imposed by the State Government. It has been clearly ruled by the Supreme Court that the issue of the writ of mandamus under Article 226 is not confined to statutory authorities and instrumentalities of the State only and further that it can be issued to any other person or authority performing public duty and that such duty need not be imposed by the State Government. Para 19 of Shri Anadi Mukta's case (Supra) is reproduced as under:- "The term "authority" used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Art.32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words "Any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied." Hence as a principle the issue of any order or direction in the nature of mandamus cannot be denied on the ground that the body against which the writ is sought to be issued is not an 'authority' or 'agency' or 'instrumentality' of the State under Article 12 nor it can be denied on the ground that the duty to be enforced is not imposed by the statute. The following quotation on the development of this law by Professor De Smith has been referred by the Supreme Court in Para 21 of the judgment as under:- "To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter. common law, custom or even contract." (Judicial Review of Administrative Action 4th Ex.p.540). It may be sufficient for the duty to have been imposed by charter. common law, custom or even contract." (Judicial Review of Administrative Action 4th Ex.p.540). The Supreme Court has shared this view and has opined that the judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available 'to reach injustice wherever it is found' and technicalities should not come in the way of granting that relief under Article 226 and the objection about the maintainability of the writ petition was rejected by the Supreme Court in this case. In AIR 1993 SC 2178 (Supra) the dictum laid down in Shri Anadi Mukta's case has been followed; scope of Article 226 has been further explained vis a vis the issue of prerogative writ in England and while referring to the Supreme Court decision rendered in Dwarkanath v. I.T.O. i.e. AIR 1966 SC 81 it has been held that Article 226 is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found and that Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights and the words 'any person or authority' used in Article 226 are not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. What is relevant is the nature of the duty imposed on the body and the duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied. What is relevant is the nature of the duty imposed on the body and the duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied. In K. Krishnamacharyulu's case (Supra) the significant observation made by the Supreme Court in Para 4 is that, "When an element of public interest is created and the institution is catering to that element, the teacher, being the arm of the institution, is also entitled to avail of the remedy provided under Article 226." When the State launches a co-operative movement and the Government and its agencies introduced several Schemes for the benefit of public at large and such Schemes are sought to be implemented through the co-operative society like the respondent - Bank, it can safely be said that the element of public interest is created and such bodies do cater to that element of public interest and the employees of such Society are certainly the arms of such Co-operative Societies, through which the co-operative movement is taken care of and in such cases it cannot be said that there is no creation of the element of public interest. Reference has also been made to Vazir Sultan Tobacco Company Ltd.'s case (Supra), a Division Bench decision rendered by the Andhra Pradesh High Court, in which the reasoning given in the aforesaid Supreme Court decisions has been summarised as has already been quoted in the earlier part of this order. And the last but not the least case cited by Mr. Patel in this regard is a Division Bench decision of our own High Court reported in 1992(2) GLR 1065 (Supra), which has also been discussed in the earlier part of this order and in view of the authoritative pronouncements by the Division bench of this Court in this Misc.Mazdoor Sabha's case, this Court has no hesitation in holding that in a given case a writ order or direction can be issued against a co-operative society like the respondent - Bank even if it is not an 'authority' or an 'agency' or 'instrumentality' of the State under Article 12 of the Constitution of India, in the writ jurisdiction of this court in the nature of public law remedy. The only rider is that it can not be invoked for enforcement of any private right against such body. The only question, therefore, now remains is as to whether there was any statutory obligation on the respondent Bank as an employer in the nature of public duty or obligation and not private duty and obligation and this aspect of the matter has to be dealt with now so as to adjudicate as to whether the petitioners are entitled to the issue of such an order or direction in the nature of writ in their favour vis-a-vis the respondent - Bank and which is that statutory obligation on the respondent - Bank as an employer in the nature of public duty or obligation, which it has failed to discharge. This aspect is to be dealt with in later part of this order while considering the merits.” This Court in the said decision inter alia at para 30, further observed thus- "I also find that such writ also could be issued on failure of discharge of the public duty under charter, common law, custom or even contract as per the quotation of Professor De Smith, to which reference has been made hereinabove and this view of Prof. De Smith, had been shared by the Supreme Court, as mentioned in para 21 of Shri Anadi Mukta's case (Supra). By no stretch of imagination the Standing orders framed under the Bombay ndustrial Relations Act can be treated at a pedestal lower than a charter or common law or custom or even contract. It may be further mentioned that under the common law and custom also the respondent - Bank was under an obligation to follow the principles of natural justice before passing the orders and appraise the concerned petitioners as to on what ground their services were sought to be terminated. It may be further mentioned that under the common law and custom also the respondent - Bank was under an obligation to follow the principles of natural justice before passing the orders and appraise the concerned petitioners as to on what ground their services were sought to be terminated. In Praga Tools Corporation v. Shri C.A. Imanual reported in AIR 1969 SC 1306 the Supreme Court has observed that the writ could be issued against a person or body to carry out the duties placed on them by the Statutes even though they are not public officials or statutory body and according to the observations of Subba Rao, J in Dwarkanath v. Income Tax Officer, reported in AIR 1966 SC 81 , Article 226 confers a wide power on the High Courts to reach injustice wherever it is found.” Ultimately, the decision for termination of the 45 employees of the Bank was set aside by the Court. 9. In view of the aforesaid, it is not possible to accept the contention of the learned counsel for the respondent that the petition would not be maintainable under Article 226 of the Constitution or that writ jurisdiction cannot be invoked by the petitioners just because the respondent Union may not be a State within the meaning of Article 12 of the Constitution. Be it noted that the aforesaid observations and conclusions would strongly apply in a matter of deciding the legality and validity of action in the domain of fulfillment of public duty or obligation by a specified Cooperative Society which has a separate status under the Act and Rules and the functioning of such specified Society involves huge public importance. 10. The next aspect which may be required to be considered is as to whether there is any inbuilt mechanism provided under the Act or the Rules for providing the remedy to such challenge against the appointment and recruitment process undertaken by the District Union. This Court in the case of Parmar Dipubhai B. and Ors. Vs. Registrar of Cooperative Societies & Ors. This Court in the case of Parmar Dipubhai B. and Ors. Vs. Registrar of Cooperative Societies & Ors. reported at 2006(2) GLR 1615 had an occasion to consider as to whether the Registrar in exercise of power under Section 160 of the Act could issue directions to a particular Society to terminate the services of the employees of a Society on the ground that such employees were not properly appointed and had also an occasion to consider the question as to whether the service conditions, mode of recruitment, or the validity of the appointment of the employees could be a subject matter of dispute under Section 96 of the Act or not. In the said decision, qua exercise of the power under Section 160 of the Act, the Court observed at para 33 as under: “33. In light of this back ground of section 160 of the Act, whether the Registrar, Cooperative Societies has power to issue any direction against the society to terminate services of such employee or not is the question to be decided. If whole section is kept in mind in light of the observations made by the Division Bench of this Court, then, it becomes clear that Registrar has power under section 160 only in respect of proper implementation of cooperative production, development progress linking and coordinating of cooperative societies and marketing and crediting, proper management of business and affairs of the society being conducted in a manner detrimental to the interest of members or depositors and creditors. Nowhere it includes power to decide validity of appointments made by the society. In the facts of this case, undisputably, respondent No.2 has not framed any service bye laws or service regulations. Even State Government has also not framed service rules or regulations under section 76 of the Act. Nowhere it includes power to decide validity of appointments made by the society. In the facts of this case, undisputably, respondent No.2 has not framed any service bye laws or service regulations. Even State Government has also not framed service rules or regulations under section 76 of the Act. Not only that, respondent No.2 has also not prescribed qualifications for the posts in which recruitment has been made.In such circumstances, when no bye laws or any statutory rule which is required to be followed as a mandate to the society, then, if society, according to their procedure, prescribes qualification at the time of appointing candidates and follows procedure of interview and selection by appointing sub committee by Managing Committee and on their selection, appoints such candidates, whether it can be said that society has acted arbitrarily or in a discriminatory manner in violation of Article 14 of the Constitution of India. Respondent NO.2 is not a State or other authority of the State within the meaning of Article 12 of the Constitution of India as held by this Court in Bipinchandra J. Soni versus Gujarat State Cooperative Cotton Federation and others reported in 1985 (2) GLR 698 (Coram : S.L. Talati,J.). In such circumstances, a private management of the society decides their own affairs, how to manage activities and business of the society, how to employ employees is within their jurisdiction, power and authority. Issuance of direction by the Registrar to society to terminate service of such employees who are not recruited as per rules or procedure is not satisfying the requirement of section 160 of the Societies Act. Admittedly, in this case, no members of the society has challenged or raised any grievance against appointment of petitioners. Not a single member of Managing Committee has also raised any contention or grievance that such appointment is bad as procedure is not followed . Further, at the relevant time, Registrar was ex-officio member of the Managing Committee of the Society. Admittedly, in this case, no members of the society has challenged or raised any grievance against appointment of petitioners. Not a single member of Managing Committee has also raised any contention or grievance that such appointment is bad as procedure is not followed . Further, at the relevant time, Registrar was ex-officio member of the Managing Committee of the Society. He must, naturally, be knowing such type of appointments being made by the society, For appointment of petitioners, selection was made by sub committee constituted by the Managing Committee and ultimately each appointments were approved by Managing Committee wherein Registrar was ex officio member of such a committee, therefore, Registrar, while exercising powers under section 160 of the Societies Act, cannot enlarge the scope of it beyond the language employed in section 160 of the Act. Language of section 160 of the Act is very much clear, limited to certain activities of the society but it does not include decision of society in respect of appointment of its employees by proper procedure of interview and selection by sub committee. Apparently, this action of society in appointing candidates as an employee is out side the scope of section 160 of the Act, otherwise, while exercising powers under section 160 of Act, Registrar can issue direction to the society to terminate any employee working with the society though society is satisfied with the performance of such employee. The Registrar can direct the society to suspend any employee or to revert or punish any employee. The Registrar is not having any disciplinary control over the employees of society and also not having any power to interfere with mode of recruitment of such employee in absence of statutory Rules or Bye laws. If such kind of interference of Registrar once recognized, then, it become direct conflict between society and Registrar. So, Registrar is having very limited power touching business, management and constitution of society which does not include the mode of recruitment of employees. If such kind of interference of Registrar once recognized, then, it become direct conflict between society and Registrar. So, Registrar is having very limited power touching business, management and constitution of society which does not include the mode of recruitment of employees. Therefore, Division Bench of this Court in Amreli District Cooperative Sale and Purchase Union observed that the entire power of Registrar under section 160 of the Act are unreasonable.” Thereafter, the Court further proceeded to examine the question as to whether appointment of an employee is touching to the constitution, management or business of the society or not and whether the Registrar has the jurisdiction under Section 96 of the Act in relation to termination of an employee by the Society or not. It was further observed at para 35 as under: “35 Question is, whether the appointment of an employee is touching the constitution, management or business of the society or not. Second question is whether the Registrar has jurisdiction under section 96 of the Act in relation to termination of an employee by society or alteration in service conditions by the society or any other matter or dispute between the society and its employees. This question has been examined by apex court as well as various other High Courts in number of cases. Apex court has come to the conclusion that the matters relating to termination of employees of society or any alteration in service conditions by the society or any dispute about service condition with the society by its employees are not covered within the jurisdiction of Registrar under section 96 of the Act. Registrar is having power to decide disputes arising under the Cooperative Societies Act and is having limited jurisdiction to decide dispute touching constitution, management and business of the society. In these circumstances, quasi judicial power of the Registrar is limited. Therefore, question arise, whether the Registrar is having power and jurisdiction under section 160 of the Act to decide legality, validity and propriety of the appointments of petitioners made by society which is relating to service condition of such employees. If Registrar is not having quasi judicial power, then, how he is having administrative power upon society in relation to service condition of employees or recruitment procedure or appointments of such petitioners. If Registrar is not having quasi judicial power, then, how he is having administrative power upon society in relation to service condition of employees or recruitment procedure or appointments of such petitioners. Scheme of the Act is very much clear that the registrar is having control only in respect of the matters relating to constitution, management and business of the society and beyond that, Registrar is not having any control over the society. These parameters, disputes between employees and society relating to service condition is clearly out side the scope of section 96 of the Act, therefore, section 160 is required to be kept in mind while considering the question of jurisdiction, power and authority of Registrar to decide legality and validity of appointment orders of petitioners. Provisions of section 96 of the Act are relating to quasi judicial power of Registrar to decide disputes touching constitution, management and business of the society. Therefore, when service condition of employee, mode of recruitment procedure, appointment order and validity of such appointment are not a dispute within the purview of section 96, then, under the guise of sec. 160 which is general in nature, cannot be interpreted to the extent which include decision or action of society relating to condition of service or mode of recruitment procedure or employment of petitioners. Power to terminate service of an employee is with the society who has appointed such employee. There is no need under the bye laws which would require prior approval of Registrar for appointment of any employees in the society. Bye laws are not having statutory force. In this case, respondent No.2 is not having service bye laws. Bye laws which are in existence do not provide for mode of recruitment procedure, qualification. Under section 76, State Government has not framed any rules. So, there is no statutory rules for mode of recruitment procedure and there is no service bye laws for recruitment in respondent no.2, therefore, in absence of such service bye laws or regulation or statutory rules, procedure which has been adopted by society, respondent No.2 also not required to have any prior permission or subsequent approval from the Registrar. Such appointments are not touching constitution, management and business of the Society. Such appointments are not touching constitution, management and business of the Society. If that be so, then, under section 160, by suo motu or otherwise, how Registrar can direct respondent No.2 society to terminate service of its employees ?Therefore, it is beyond the scope of section 160 of the Societies Act. Except that, there is no other provision which would give power or jurisdiction to Registrar to cancel such appointment.” 11. If the aforesaid observations made by this Court are taken into consideration, it cannot be said that there is any remedy available under Section 160 of the Act before the Registrar or under Section 96 of the Act before the Registrar s Board of Nominee for recruitment in any Cooperative Society. 12. Therefore, as per the above referred decision, if no remedy is available for setting at naught any illegal or irregular or arbitrary process undertaken by the Society for recruitment, it would not be a case to deny the remedy to the petitioners in a petition under Article 226 of the Constitution when a challenge is brought before the Court on the alleged ground of wholesale illegalities in the mode and manner of recruitment process for the staff of a specified Cooperative Society having huge public interest in its functioning. 13. It may be recorded that this Court had an occasion to consider the question of status of an elected representative of a specified Cooperative Society, i.e. Khedut Sahakari Khand Udhyog Mandali, and the faith reposed upon such elected representatives and nature of power whether could be said with public duty or not and the accountability thereof, while considering the question of fastening the financial liabilities under section 93 of the Gujarat Cooperative Societies Act, in the decision in the case of Ishwarbhai Narottambhai Patel Vs. K.H.Trivedi, reported at 2003(1) GLR 537 . In the said decision, it was inter alia observed at para 15, the relevant of which is as under: “15. Further the earning of profits out of the utilisation of the machinery is always the purpose of investment of the money by the society. The society had placed the order with a view to see that the machinery can be used and profit can be earned therefrom. Further the earning of profits out of the utilisation of the machinery is always the purpose of investment of the money by the society. The society had placed the order with a view to see that the machinery can be used and profit can be earned therefrom. If the supplier had supplied a genuine and good quality machine and if the society had earned profit by utilising the said machinery, the supplier would be entitled to the legitimate price of the machinery as per the terms and conditions of the purchase agreement. At this stage it would be worthwhile to refer to some of the observations made by this Court in the case of "Varvabhai Nathabhai Rabari Vs State of Gujarat" as per the judgement dated 28-1-2002 in LPA No.8/2002 of the Division Bench. In a matter of supersession of the Market Committee, while dealing with the contentions of the elected body that when two views are possible, it cannot be said that default is committed in performance of duties. While testing the said submission it was observed by the Division Bench at para 9 as under: " The status of the elected members of the market committee is more or less like the status of other elected members holding the office under the local authorities or statutory authorities. It is true that the market committee has been given power to purchase and sell its property, but its power to purchase and sell the properties are coupled with the duty to ensure that such powers are used for enforcement of the objects of the At, rules and bye-laws. These powers are coupled with the public duty and such powers are not like powers of individual persons managing their own affairs but there is something more about the accountability. These powers are coupled with the public duty and such powers are not like powers of individual persons managing their own affairs but there is something more about the accountability. It is needless to point out that when any representative is elected by the voters, some faith is reposed on such elected representative by the voters that the so elected representative would exercise his powers under statutes for the larger interested of the institution or the local body by acting as a wise person keeping in view the pros and consequences of the action to be taken and keeping in view the interest of institution or the body." I am of the view that the observations made by the Division Bench were pertaining to the elected body of a market committee in a matter of supersession of a market committee which is a statutory body. I find that the status of the elected members of the society is more or less at par with the elected representative of such market committee or any other elected representative. Perusal of the scheme of the Gujarat Cooperative Societies Act also shows that the principles of accountability is maintained even in the affairs of the administration of cooperative societies. In that view of the matter, I find that there is no reason why such principles should not be applied to the elected representative o the cooperative society also. In the present case, there was absolutely no justification for condoning the amount because the test would be whether any prudent person would allow an amount of Rs.1,45,000/to let go merely because the supplier had supplied a machinery of good quality or merely because he has earned good profit out of it. In the present case, there was absolutely no justification for condoning the amount because the test would be whether any prudent person would allow an amount of Rs.1,45,000/to let go merely because the supplier had supplied a machinery of good quality or merely because he has earned good profit out of it. The normal conduct of any office bearers of the society or even a normal prudent person would insist that the excess payment which is made must be refunded because the price of the machinery which was fixed was for supplying genuine and good quality machinery and investment was with a view to make profit and, therefore, there can be hardly any justification for condoning such amount.” (Emphasis supplied) Therefore, it appears to the Court that when it is a matter pertaining to recruitment of number of posts in a specified society in whom the power vests, such power is required to be exercised with public duty to observe minimum basic principles of fairness, which is one of the foundation of common law. 14. Even if this Court is to proceed on the basis that the autonomy of the District Union as a specified Society is to be maintained by accepting the power with the District Union itself to make appointment of its own staff for regulating its business, then also, it can hardly be said that such powers can be exercised by the office bearers of the District Union or the person concerned in charge of the District Union as per their own sweet will or as per their whims and caprice nor can it be said that merely because such powers are available to appoint, such powers can be exercised in an unfair manner on any ground whatsoever. It is true that the Act does provide for enabling power with the State Government under Section 76 read with Section 168 of the Act to provide for the qualification for appointment of the manager, secretary, accountant, or any other officer or employee of the Society, but merely because the State Government in exercise of its power to frame Rules under Section 168 of the Act has not framed Rules for the power under Section 76 of the Act, it cannot be said that the same would make room for the Society concerned to exercise power in an unfair manner or that without observing the basic principles of fairness and transparency in the process of recruitment to be undertaken by the Society. The same would more be required if such Society is a specified Society whose functioning involves huge public interest. Therefore, even if such powers are read and retained by the office bearers of the Society to undertake recruitment and to make appointment of its staffs for the functioning of the District Union, basic principles of fairness would be required to be followed. 15. It may be recorded that it is a fact that the office bearers of such society are to act in the interest of the society as against or in isolation to their individual interest. The post held is at par with the position of any person holding post in fiduciary capacity. The person holding fiduciary capacity should always be conscious of the fact that he or she has to act for betterment of the interest of the beneficiary. No consideration of his/her private interest should prevail as against betterment of interest of the beneficiary. None can discharge the duty in fiduciary capacity properly unless he keeps his individual or personal interest away from the interest of the beneficiary for whom he has to work. Therefore, the basic principles of fairness will have the role to play while functioning in fiduciary capacity by the office bearers of the society and more particularly the specified society whose functioning involves huge public importance. 16. Such basic principles of fairness can broadly be classified into 5 categories: (1) The set-up of the staff. Such would be dependent upon its financial condition and to meet with the quantum of work. 16. Such basic principles of fairness can broadly be classified into 5 categories: (1) The set-up of the staff. Such would be dependent upon its financial condition and to meet with the quantum of work. It is difficult to accept that irrespective of its financial condition or quantum of work, the District Union can have the set up of its staffs as per the whims and desire of the office bearers of such District union or a specified Society. (2) The minimum qualification required keeping in view the nature of the work to be discharged by the person concerned. It is not possible to accept that the minimum qualification for the post concerned would have no relevance at all if the principles of basic fairness is to be observed. Such principles of basic fairness would require that the related qualification may be atleast to the minimum extent, must be in existence for the post for which the recruitment process is undertaken. (3) The third would be the public advertisement not only for giving opportunity to the eligible persons to apply for the post, but also to enable the specified Society to chose more meritorious and appropriate persons for the post in question. It is not possible to accept that if the public advertisement is not given, it will leave room for offering appointment by the office bearers of such Society by private negotiations which would not only be against the basic principles of fairness, but would also leave room for large number of malpractices. In any case bonafide attempt to find out meritorious and appropriate person would require the consideration of eligible persons which will not be over unless properly advertised or made known to the eligible persons or public at large generally. (4) The fourth is the mode of selection through the proper selection committee with a view to see that the meritorious candidates are inducted without any bias or favour. If less meritorious person is appointed, it would be against the interest of the Society itself and the basic principles of fairness would be frustrated if a person having bias is to participate at the selection process or the person participating in the selection holds no capability at all to judge the merit of any candidate. If less meritorious person is appointed, it would be against the interest of the Society itself and the basic principles of fairness would be frustrated if a person having bias is to participate at the selection process or the person participating in the selection holds no capability at all to judge the merit of any candidate. (5) The fifth and the last would be reasonable transparency to be maintained in all the above referred four steps before finalization of the recruitment process. 17. It appears to the Court that if the above referred principles of basic fairness are not observed in the matter of recruitment to be undertaken by a specified Society, it would not only result into large number of chaotic situation, but would also leave room for large number of manipulations and malpractices resulting into ultimate damage to the interest of the Society and its members and consequently, damage to the public interest in the field of employment as well as in the field of operation of such Society involving huge public interest and such would be in contravention of public duty to be discharged by the office bearers of the society by non observance of the basis or foundation of common law. 18. If the facts of the present case are examined in light of the aforesaid, it does appear from the finding of the auditor that in the year 2006, when the recruitment process as undertaken, the basic principles of fairness were not observed and as per the report of the auditor, the appointments were made of the candidates by the office bearers in collusion and with a view to satisfy their vested interest and against the interest of the Society and its members. Therefore, it is required that it will have to be examined and considered as to whether the aforesaid basic principles of fairness are followed by the District Union or not for recruitment in the present case. 19. The learned counsel for the respondent District Union emphatically contended that all such basic principles of fairness have been followed by the District Union this time and therefore, it was submitted that the recruitment process which is already being undertaken be further permitted to be finalized. 20. Whereas, the learned counsel for the petitioner contended that such principles are not observed inasmuch the set up is arbitrarily created. 20. Whereas, the learned counsel for the petitioner contended that such principles are not observed inasmuch the set up is arbitrarily created. The minimum qualification is also not provided nor sufficient opportunity is given and the selection committee has adopted the criteria which are against the interest of the District Union and its members. 21. Whereas, the learned Government Pleader submitted that the State or its offices would abide by any suitable directions which may be issued by this Court. 22. It appears to the Court that this Court would not be in a position to conveniently examine all the relevant records of the Society and to find out as to whether the aforesaid basic principles of fairness are followed by the Society in the recruitment process or not and such task can rather be undertaken by any proper authority who can look into the matter after considering all the relevant record. Thereafter, if any of the basic principles of fairness are not followed, suitable directions may be issued by such authority and upon the compliance of the same, the District Union may further proceed for the recruitment process. Whereas upon failure to comply with such directions or in alternative, rectify, the recruitment process, the society shall be required to undertake the recruitment process afresh. However, until the aforesaid aspects are finalized in either way, it appears to the Court that the recruitment process already undertaken cannot be permitted to be finalized, otherwise such would result into irreversible situation of leaving no remedy at all after recruitment process already undertaken. 23. It may also be observed that the aforesaid principles of basic fairness are read by this Court. If the specified Society has to function within the provisions of the Act, Rules and byelaws, the power to enforce the provisions of the Act, Rules or byelaws are with the Registrar as per the provisions of Section 82 of the Act. 23. It may also be observed that the aforesaid principles of basic fairness are read by this Court. If the specified Society has to function within the provisions of the Act, Rules and byelaws, the power to enforce the provisions of the Act, Rules or byelaws are with the Registrar as per the provisions of Section 82 of the Act. Therefore, the task of verification on the aspects of observance of the basic principles of fairness in the matter of recruitment by the District Union can be assigned to the Registrar under the Act and it appears to the Court that the same would be just and proper since the Registrar, Cooperative Societies even otherwise also can be said as well conversant with the subject as one of the expert body who can look into the matter keeping in view all the relevant aspects germane to the exercise of power by the specified society concerned. 24. In view of the aforesaid, the Registrar, Cooperative Societies, Gujarat State or the officer who may be nominated by him not below the rank of Joint Registrar of the State Government shall examine the relevant record of the recruitment process undertaken by the District Union and shall decide as to whether the principles of basic fairness as referred to hereinabove by this Court are followed or not. At the conclusion of such inquiry, such office shall be at the liberty to issue appropriate consequential directions to the District Union if required and till such inquiry is completed and the decision is rendered, the interim stay granted against the finalization of the recruitment process shall continue to remain in operation. It is also observed and directed that the District Union shall be at the liberty to comply with the directions which may be issued by the State Registrar at the conclusion of the inquiry and if the District Union is aggrieved by such direction, it shall be at the liberty to challenge such direction in accordance with law. It is also observed that the aforesaid order shall not operate as a bar to the Registrar in initiating action under Section 76B of the Act against the person concerned on the basis of the earlier audit report pertaining to the recruitment of the year 2006. 25. The petition is allowed to the aforesaid extent. Rule made absolute accordingly. No order as to costs.