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Himachal Pradesh High Court · body

2015 DIGILAW 1959 (HP)

Raj Kumar v. State of H. P.

2015-12-23

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

body2015
JUDGMENT : Mansoor Ahmad Mir, J. By the medium of this writ petition, the writ petitioner has sought writ of mandamus commanding the respondents to conduct the recruitment tests through Institute of Banking Personnel Selection (for short "IBPS") and writ of prohibition restraining the respondents from directing respondent No. 3Himachal Board of School Education, Dharamshala (for short "the Board") for conducting the examinations on the grounds taken in the memo of the writ petition. 2. The respondents have resisted the writ petition by filing replies and have raised preliminary objection that the Kangra Central Cooperative Bank Limited, Dharamshala, District Kangra, Himachal Pradesh (for short "the Bank") is neither a State nor the instrumentality of the State as per the mandate of Article 12 of the Constitution of India. 3. The respondents have questioned the very basis of the writ petition because the writ petitioner has based the foundation of his writ petition on the premise that the respondent-Bank is an instrumentality of the State, thus, amenable to the writ jurisdiction of this Court. 4. Learned Senior Counsel for the writ petitioner argued that even if it is admitted that the respondent-Bank is not a State or instrumentality of the State, yet writ will lie against it on the ground that Bank is performing/discharging the public duty akin to the duties and functions of the Government, thus, writ is maintainable. 5. Before we deal with the argument addressed by the learned Senior Counsel, it has to be seen whether such a ground has been taken in the writ petition. 6. While going through the writ petition one comes to an inescapable conclusion that no such ground has been projected. Only, it has been stated that the Bank is a State/instrumentality of the State and is legally bound to ask IBPS to conduct the recruitment tests. 7. Perusal of the writ petition does disclose that precisely, the case of the writ petitioner is that the respondent-Bank has to conduct the examination through IBPS and entrustment of the said work to the respondent-Board is a wrong decision for the reason that the respondent-Board is not having the competence to conduct such tests and has not conducted such tests so far. 8. The respondents have refuted the said contentions. The respondent-Board has given details in para 6 to 8 of the reply that the Board is competent to conduct the examination. 9. 8. The respondents have refuted the said contentions. The respondent-Board has given details in para 6 to 8 of the reply that the Board is competent to conduct the examination. 9. The question whether Bank is a State or instrumentality of the State has been set at rest by the Apex Court in a case titled as S.S. Rana versus Registrar, Cooperative Societies & Anr., reported in 2006 AIR SCW 3723. It is apt to reproduce para 11 of the judgment herein:- "11. The respondent No.1Society does not answer any of the aforementioned tests. In the case of a non-statutory society, the control thereover would mean that the same satisfies the tests laid down by this Court in Ajay Hasia vs. Khalid Mujib Sehravardi [( 1981 (1) SCC 722 .]. [See Zoroastrian Coop. Housing Society Ltd. vs. District Registrar, Coop. Societies (Urban) & Ors. reported in 2005 (5) SCC 632 .]" 10. The same question has again arisen before this Court and after noticing the pleadings, the Division Bench referred the matter to the Full Bench and the Full Bench of this Court in Vikram Chauhan versus The Managing Director and others, reported in Latest HLJ 2013 (HP) 742 (FB), also following the ratio laid down by the Apex Court in S.S. Rana's case (supra), held that the Cooperative Banks are not a State or instrumentalities of the State, but in the same breath, held that whether writ would lie against such Banks is to be determined in view of the facts of each case read with the attending factors. Virtually, it has been held that writ can lie against a Cooperative Society/Bank of the Society, but, whether the same should be issued by the High Court, would depend on the facts of each case. 11. The Apex Court in S.S. Rana's case (supra) has specifically held that the Kangra Central Cooperative Bank Ltd., i.e. the respondent-Bank herein, cannot be characterized as a public authority and it is not performing public functions. It is worthwhile to reproduce para 10 of the judgment herein:- "10. It has not been shown before us 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 shareholder. The State has the power only to nominate one director. It is worthwhile to reproduce para 10 of the judgment herein:- "10. It has not been shown before us 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 shareholder. 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 the Society was created?; (2) Whether it enjoys any monopoly character?; (3) Do the functions of the Society partake to statutory functions or public functions?; and (4) Can it be characterized as public Authority?" 12. While replying para 10 (supra), the Apex Court has specifically held in para 11 (supra) that the Cooperative Bank Society does not answer any of the aforesaid tests, thus, writ will not lie. 13. The Apex Court in S.S. Rana's case (supra) has also held that the Bank does not satisfy any of the tests laid down in Pradeep Kumar Biswas versus Indian Institute of Chemical Biology & Ors., reported in (2002) 5 SCC 111 . However, a question was raised that still writ will lie if the Bank-Society is discharging duties/functions as a public authority. The Apex Court held that Bank is not having any such trappings and accordingly held that decision in the case titled as Gayatri De versus Mousmi Cooperative Housing Society Ltd. & Ors., reported in (2004) 5 SCC 90 , was of no assistance to the Bench while recording the judgment. It is apt to reproduce paras 14 and 15 of the judgment in S.S. Rana's case (supra) herein:- "14. As the respondent No.1 does not satisfy any of the tests laid down in Pradeep Kumar Biswas (supra), we are of the opinion that the High Court cannot be said to have committed any error in arriving at a finding that the respondent-Bank is not a State within the meaning of Article 12 of the Constitution of India. 15. We are, however, not oblivious of a three judge Bench decision in Gayatri De vs. Mousumi Cooperative Housing Society Ltd. & Ors. 15. We are, however, not oblivious of a three judge Bench decision in Gayatri De vs. Mousumi Cooperative Housing Society Ltd. & Ors. 2004 (5) SCC 90 , wherein this Court held a writ petition to be maintainable against the cooperative society only stating:- "We have, in paragraphs supra, considered the judgments for and against on the question of maintainability of writ petition. The judgments cited by the learned Senior Counsel appearing for the respondents are distinguishable on facts and on law. Those cases are not cases covered by the appointment of a Special Officer to manage the administration of the Society and its affairs. In the instant case, the Special Officer was appointed by the High Court to discharge the functions of the Society, therefore, he should be regarded as a public authority and hence, the writ petition is maintainable." The said decision, therefore, is of no assistance to us. 14. Another question has also arisen in S.S. Rana's case (supra) as to whether any mandatory act or rules framed have been violated. The answer recorded in para 19 is that the Bank/Society is not a creation of any statute or has not violated any provisions of the Act or any Rules governing the Bank. It is apt to reproduce paras 18 and 19 of the judgment herein:- "18. We may notice in some decisions, some High Courts have held wherein that a writ petition would be maintainable against a society if it is demonstrated that any mandatory provision of the Act or the rules framed thereunder, have been violated by it. [See Bholanath Roy & Ors. vs. State of West Bengal & Ors. reported in (1996) Vol.1 Calcutta Law Journal 502.] 19. The Society has not been created under any statute. It has not been shown before that in terminating the services of the appellant, the Respondent has violated any mandatory provisions of the Act or the rules framed thereunder. In fact, in the writ petition no such case was made out. 15. Applying the test to the instant case, what the writ petitioner is seeking that the tests be conducted through IBPS and not by the Board. He is just a candidate and has to sit in examination. It is the baby of the concerned employer as to where to conduct the tests and which agency is to be involved. 15. Applying the test to the instant case, what the writ petitioner is seeking that the tests be conducted through IBPS and not by the Board. He is just a candidate and has to sit in examination. It is the baby of the concerned employer as to where to conduct the tests and which agency is to be involved. It cannot lie in the mouth of the writ petitioner before sitting in the examination that the test should be conducted through some particular agency. Even otherwise, no breach of Act, Rules or Regulations has been alleged. 16. While going through the writ petition, we are not in a position to understand as to which right of the writ petitioner is infringed, not to speak of Fundamental Right, and what is his locus. 17. The words 'public duty', 'public functions' and 'functions akin to Government' have been discussed by the Apex Court in various judgments. 18. In the case titled as Madhya Pradesh Rajya Sahakari Bank Maryadit versus State of M.P. & Ors., reported in 2007 AIR SCW 1533, the Apex Court has held that when it is determined that Society is not a State, then there is no need to discuss other aspects. It is apt to reproduce para 10 of the judgment herein:- "10. Learned counsel for the respondents has also submitted that the Cooperative society is not a State within the meaning of Article 12 of the Constitution Of India, 1950, therefore, the writ petition is not maintainable. We need not go into this aspect as in view of the recent decision of this Act in Supriyo Basu & Ors. v. W.B. Housing Board & Ors., [ (2005) 6 SCC 289 ] their Lordships have laid down what are the parameters for challenging the orders passed by the Cooperative Societies. It has been held that writ would be maintainable against a Cooperative society if it is established that a mandatory statutory provision of a statute has been violated. Therefore, nothing turns on this aspect of the matter." (Emphasis added) 19. The Apex Court in the case titled as Jatya Pal Singh and Ors. It has been held that writ would be maintainable against a Cooperative society if it is established that a mandatory statutory provision of a statute has been violated. Therefore, nothing turns on this aspect of the matter." (Emphasis added) 19. The Apex Court in the case titled as Jatya Pal Singh and Ors. versus Union of India and Ors., reported in 2013 AIR SCW 2545, has laid down the tests how a Society can be said to be State or instrumentality of the State, which stand already discussed and held in S.S. Rana's case (supra), applicable to the case in hand. The Apex Court has also discussed whether a writ will lie against the company/society and held that it is not performing any public functions, no rule is violated and no writ will lie, though the prayer was to safeguard the Fundamental Rights of the members of the appellant therein. It is apt to reproduce paras 52, 54 and 57 of the judgment herein:- "52. These observations make it abundantly clear that in order for it to be held that the body is performing a public function, the appellant would have to prove that the body seeks to achieve some collective benefit for the public or a section of public and accepted by the public as having authority to do so. In the present case, as noticed earlier, all telecom operators are providing commercial service for commercial considerations. Such an activity in substance is no different from the activities of a bookshop selling books. It would be no different from any other amenity which facilitates the dissemination of information or DATA through any medium. We are unable to appreciate the submission of the learned counsel for the appellants that the activities of TCL are in aid of enforcing the fundamental rights under Article 21(1)(a) of the Constitution. The recipients of the service of the telecom service voluntarily enter into a commercial agreement for receipt and transmission of information. The function performed by VSNL/TCL cannot be put on the same pedestal as the function performed by private institution in imparting education to children. It has been repeatedly held by this Court that private education service is in the nature of sovereign function which is required to be performed by the Union of India. The function performed by VSNL/TCL cannot be put on the same pedestal as the function performed by private institution in imparting education to children. It has been repeatedly held by this Court that private education service is in the nature of sovereign function which is required to be performed by the Union of India. Right to education is a fundamental right for children upto the age of 14 as provided in Article 21A. Therefore, reliance placed by the learned counsel for the appellants on the judgment of this Court in Andi Mukta ( AIR 1989 SC 1607 ) (supra) would be of no avail. In any event, in the aforesaid case, this Court was concerned with the nonpayment of salary to the teachers by the Andi Mukta Trust. In those circumstances, it was held that the Trust is duty bound to make the payment and, therefore, a writ in the nature of mandamus was issued. Mr. C.U. Singh, senior counsel relied on Binny Ltd. in support of the submissions that VSNL/TCL is not performing a public function. In our opinion, the observations made by this Court in the aforesaid judgment are fully applicable in the facts and circumstances of this case. 53. .......... 54. A perusal of the aforesaid documents, however, would show that VSNL had merely promised not to retrench any employee who had come from OCS for a period of two years from 13th February, 2002. Such a condition, in our opinion, would not clothe the same with the characteristic of a public duty which the employer was bound to perform. The employees had individual contacts with the employer. In case the employer is actually in breach of the contract, the appellants are at liberty to approach the appropriate forum to enforce their rights. 55. .............. 56. .............. 57. The prayer in this writ petition is inter alia for the issuing a writ in the nature of mandamus directing the official respondents to safeguard the fundamental rights of the members of the appellant as per the undertaking given on 16th March, 2001, 9th October, 2001 and 30th April, 2002. For the reasons already stated in the earlier part of the judgment relating to the civil appeals, we are unable to entertain the present writ petition. In our opinion, it is not maintainable and accordingly dismissed." 20. For the reasons already stated in the earlier part of the judgment relating to the civil appeals, we are unable to entertain the present writ petition. In our opinion, it is not maintainable and accordingly dismissed." 20. The Apex Court in the latest judgment in the case titled as T.M. Sampath & Ors. versus Secretary, Ministry of Water Resources & Ors., reported in 2015 AIR SCW 998, has also discussed the same concept and held that writ will not lie. 21. In an another judgment in the case titled as Radhey Shyam and another versus Chhabi Nath and others with Jagdish Prasad versus Iqbal Kaur and others, reported in 2015 AIR SCW 1849, the Apex Court has discussed whether writ will lie against the persons not discharging any public duty and held that writ will not lie. It is apt to reproduce para 23 of the judgment herein:- "23. Thus, we are of the view that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226. We are also in agreement with the view of the referring Bench that a writ of mandamus does not lie against a private person not discharging any public duty. Scope of Article 227 is different from Article 226." 22. This Court in CWP No. 6709 of 2013A, titled as Sanjeev Kumar & ors. versus State of H.P. and ors., decided on 04.08.2014, while discussing all the judgments, has also held that H.P. State Cooperative Bank is not a State, thus, writ will not lie because the relief claimed was against the Bank. It is apt to reproduce para 20 of the judgment herein:- "20. In view of the aforesaid clear exposition of law not only of this court but also the Hon’ble Supreme Court, we find merit in the preliminary objection raised by respondent No. 3 regarding the maintainability of the petition against the H.P. State Cooperative Bank and uphold the same and accordingly declare this petition to be not maintainable against the H.P. State Cooperative Bank. Since the relief in this petition is primarily claimed against the said bank, therefore, the petition itself is not maintainable and accordingly the same is dismissed leaving the parties to bear their own costs." 23. This question again arose before this Court in a batch of LPAs, LPA No. 236 of 2011, titled as Laxmi Narain & ors. Since the relief in this petition is primarily claimed against the said bank, therefore, the petition itself is not maintainable and accordingly the same is dismissed leaving the parties to bear their own costs." 23. This question again arose before this Court in a batch of LPAs, LPA No. 236 of 2011, titled as Laxmi Narain & ors. versus Kuldeep Singh & ors., being the lead case, decided on 17.09.2014 and after discussing the Act, Rules, Byelaws, Regulations and other laws applicable, held that primary function of the Bank is to conduct business and the functions discharged by the Bank are not public duties/public functions and are not akin to the functions of the State. It would be profitable to reproduce relevant portion of para 16 and para 18 of the judgment herein:- "16. Now, we proceed to determine as to whether the respondent bank is discharging any public duties closely related to the government function. In our considered view, the duties and functions of the respondent bank can best be compared with the H.P. State Co operative Bank Ltd since as observed earlier, both are Co operative societies and at the same time are also conducting banking business. xxx xxx xxx 18. It would thus be seen that while considering the same objects, similar functions and similar Byelaws, learned Division Bench of this court had clearly opined that the nature of business being carried out by it could not be termed as functions impregnated with government character or tied or entwined with government and it did not satisfy the 5th test enunciated in Ajay Hasia's case (supra). 24. It is also apt to record herein that the Apex Court in the case titled as Federal Bank Ltd. versus Sagar Thomas and others, reported in (2003) 10 Supreme Court Cases 733, has specifically and without any ambiguity dealt with this question. It would be profitable to reproduce paras 27 and 29 of the judgment herein:- "27. Such private companies would normally not be amenable to the writ jurisdiction under Article 226 of the Constitution. But in certain circumstances a writ may issue to such private bodies or persons as there may be statutes which need to be complied with by all concerned including the private companies. Such private companies would normally not be amenable to the writ jurisdiction under Article 226 of the Constitution. But in certain circumstances a writ may issue to such private bodies or persons as there may be statutes which need to be complied with by all concerned including the private companies. For example, there are certain legislations like the Industrial Disputes Act, the Minimum Wages Act, the Factories Act or for maintaining proper environment say Air (Prevention and Control of Pollution) Act, 1981 or Water (Prevention and Control of Pollution) Act, 1974 etc. or statutes of the like nature which fasten certain duties and responsibilities statutorily upon such private bodies which they are bound to comply with. If they violate such a statutory provision a writ would certainly be issued for compliance of those provisions. For instance, if a private employer dispense with the service of its employee in violation of the provisions contained under the Industrial Disputes Act, in innumerable cases the High Court interfered and have issued the writ to the private bodies and the companies in that regard. But the difficulty in issuing a writ may arise where there may not be any noncompliance or violation of any statutory provision by the private body. In that event a writ may not be issued at all. Other remedies, as may be available, may have to be resorted to. 28. ............ 29. There are a number of such companies carrying on the profession of banking. There is nothing which can be said to be close to the governmental functions. It is an old profession in one form or the other carried on by individuals or by a group of them. Losses incurred in the business are theirs as well as the profits. Any business or commercial activity, may be banking, manufacturing units or related to any other kind of business generating resources, employment, production and resulting in circulation of money are no doubt, are such which do have impact on the economy of the country in general. But such activities cannot be classified one falling in the category of discharging duties, functions of public nature. Thus the case does not fall in the fifth category of cases enumerated in the case of Ajay Hasia (supra). But such activities cannot be classified one falling in the category of discharging duties, functions of public nature. Thus the case does not fall in the fifth category of cases enumerated in the case of Ajay Hasia (supra). Again we find that the activity which is carried on by the appellant is not one which may have been earlier carried on by the Government and transferred to the appellant company. For the sake of argument even if it may be assumed that one or the other test as provided in the case of Ajay Hasia (supra) may be attracted that by itself would not be sufficient to hold that it is an agency of the State or a company carrying on the functions of public nature. In this connection, observations made in the case of Pradeep Kumar Biswas (supra) quoted earlier would also be relevant." (Emphasis added) 25. Applying the tests to this case, the Bank is meant primarily for business and it cannot be said that it is performing the public duties or public functions or functions akin to which are performed by the Government. 26. Having said so, the writ petition is dismissed alongwith all pending applications.