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2024 DIGILAW 541 (GUJ)

Harishsinh Arjunsinh Gurjar v. State Of Gujarat

2024-03-14

HEMANT M.PRACHCHHAK

body2024
JUDGMENT : 1. Present petition is filed by the petitioner under Articles 14 and 226 of the Constitution of India for quashing and setting aside the recruitment/selection procedure of respondents No.2 to 5 as clerk in the Bank since the same is null and void and is followed without due procedure of law. 2. Brief facts of the present petition are that one of the Director of the Bank wrote a letter to respondent No.8 requesting to direct the Bank to furnish details of recruitment for the post of clerk and the Director had submitted an application in the meeting of the Board of Directors for furnishing details of recruitment, which came to be denied by respondents No.6 and 7. It is the case of the petitioner that respondent No.7 has addressed a letter to the Board of Directors that they cannot furnish information in view of Sections 84 and 33 of the Gujarat Cooperative Societies Act. It is the case of the petitioner that he sent a legal notice to respondent No.7 and other Board of Directors for cancellation of selection procedure and for taking legal action against respondents No.2 to 5. That respondent No.8 wrote a letter to respondent No.7 stating to furnish documents in respect of recruitment and selection within three days and that the Registrar of the Societies addressed a letter to the Principal Secretary of the Agricultural and Cooperation Department along with the letter of the Director of the Bank in respect of selection of respondents No.2 to 5. The Jilla Registrar of the Gujarat Cooperative Societies addressed a letter to respondent No.7 stating that they have not furnished information for selection and the petitioner wrote a letter to respondent No.8 stating that the officers of the Bank have sent the application for amending the bye-laws to respondent No.8. That petitioner wrote a letter to respondents No.6 and 7 regarding removal of respondents No.2 to 5 from post of clerk and also wrote a letter to respondent No.6 requesting to furnish documents with regard to selection and despite of such request, respondent – authority took a decision for recruitment of respondents No.2 to 5 and neither notice or resolution was passed nor framed committee for appointment of respondents No.2 to 5. The respondent No.5 wrote a letter to the petitioner and informed him that as and when he intended to come and see necessary documents in the bank, he can come. It is the case of the petitioner that the entire selection process was done by the respondent authority without following due process and selection norms and huge corruption and illegality were made by respondent Bank in selection process of respondents No.2 to 5. 3. Being aggrieved and dissatisfied by the selection procedure on the part of the respondent – authorities, the present petition is filed by the petitioner. 4. Heard Mr. Vijay Nangesh, learned counsel appearing for the petitioner, Ms.Dharitri Pancholi, learned Assistant Government Pleader appearing for respondents No.1 and 8 and Mr.R. C. Jani, learned counsel for the respondents. Perused the material on record. 5. Mr.Vijay Nangesh, learned counsel appearing for the petitioner would submit that though the petitioner has asked the details from the respondent – Bank with regard to the educational qualifications and selection of the persons who appointed, such details was not furnished to the petitioner. He would submit that the petitioner is aggrieved by the appointment of the respondent nos. 2 to 5 and according to him, they have been appointed without following due procedure. It is submitted by learned counsel for the petitioner that the names ought to have been called for from the employment exchange however, without calling for the names from the employment exchange the appointments have been effected. He would submit that such irregularity was brought to the notice of the District Registrar who, in turn, has addressed a communication to the respondent no. 6, however, the respondent nos. 6 and 7 have not provided the instructions as desired. He would also submit that therefore, the appointments of respondent nos. 2 to 5 being dehors the rules, deserves to be interfered with. 6. Ms.Dharitri Pancholi, learned Assistant Government Pleader appearing for respondents No.1 and 8 would submit that the respondent – State Authorities have completed the process as per the bye-law. She has referred to and relied upon the affidavit-in-reply filed on behalf of the respondent No.8. By relying upon the decision of this Court in the case of Parmar Dipubhai B. & Ors. vs. Registrar of Cooperative Societies & Ors. reported in (2006) 2 GLR 1615 as well as in the case of Malvikaben Bhikabhai Patel & Ors. She has referred to and relied upon the affidavit-in-reply filed on behalf of the respondent No.8. By relying upon the decision of this Court in the case of Parmar Dipubhai B. & Ors. vs. Registrar of Cooperative Societies & Ors. reported in (2006) 2 GLR 1615 as well as in the case of Malvikaben Bhikabhai Patel & Ors. vs. State of Gujarat & Ors. reported in (1998) 2 GLR 1258 , she would submit that the application of the petitioner has been filed and pursuant to the notice dated 22.08.2015, action was initiated against the Chairman and Managing Director under the provisions of Section 76 which has also been filed. She has submitted that the petition being meritless deserves to be dismissed. 7. Mr.R.C Jani, learned counsel for the private respondents would submit that in response to the advertisement issued by the respondent – Bank, the names of the respondents along with other persons were called from the employment exchange and after completing formality of recruitment process they have been appointed by the respondent – Bank on the post of the clerk – cum - cashier since their educational qualifications are sufficient for the same and, therefore, they have been appointed by the respondent – Bank. He would submit that the grievance raised by the petitioner is invalid, the service rules, have been formulated by passing a resolution dated 30.12.1989 by the Board of Directors, whereby various provisions have been made and relevant would be Rule 9 which provides for classification of employees and the appointment. It is submitted that for the post of clerk-cum-cashier, the requirement age of the candidate should not be less than 18 years and not more than 35 years of age and so far as the educational qualifications are concerned the person, should be a graduate and respondent nos. 2 to 5 possess the requisite qualifications. He would also submit that as per the requirement of publication in the newspaper, the advertisement was published in the newspaper and the respondents were appointed for the vacant posts. He would submit that the respondents have followed the such recruitment procedure and thereafter appointed the respondents. He would submit that in absence of any irregularity committed in selection process, the present petition is devoid of merits and deserves to be dismissed. He would submit that the respondents have followed the such recruitment procedure and thereafter appointed the respondents. He would submit that in absence of any irregularity committed in selection process, the present petition is devoid of merits and deserves to be dismissed. He has submitted that in 1987, the petitioner himself has appointed his real sister to the post of clerk who is now working as officer, however, the objection raised by the petitioner is only with a view to venting out the vengeance and not genuine. He would further submit that the petitioner, at the relevant point of time, has appointed his real sister and she retired in the year 2018 and thereafter, the petitioner being the Director has issued a notice and appointed his grand daughter- in-law who, is working in the bank. Mr.Jani, learned counsel has referred to and relied upon the affidavit-in-reply filed on behalf of the private respondents and submitted that the present petition is not maintainable and the same is required to be dismissed. 8. In the case of Parmar Dipubhai B. (supra) relied upon the learned Assistant Government Pleader, this Court has held and observed in para-62 as under:- “62. The Registrar has not made any allegations of mal-practice, corruption and that incompetent persons were selected and appointed by Respondent No.2 Society. The Registrar has not given any finding about mal practice, corruption and incompetent persons were selected and appointed by respondent No.2 society. There is no finding given by Registrar that petitioners are not qualified to the post in which they were appointed. It is not in dispute that Managing Committee has appointed Sub-Committee and interviews of petitioners were taken and then selection was made which was approved by authorized and competent managing committee. It is not the case of Respondent No.3 that petitioners are not working satisfactorily. It is also not the case of Respondent No.3 that petitioners are working against the interest of society and members/farmers. It is also not the case of Respondent No.3 that due to said appointments of petitioners, Respondent No. 2 society has incurred loss in their business, meaning thereby, whatever loss incurred is not due to appointment of petitioners. Petitioners are not responsible for said loss incurred by respondent No.2 society. It is also not the case of Respondent No.3 association that there is no set up or vacancies available for petitioners. Petitioners are not responsible for said loss incurred by respondent No.2 society. It is also not the case of Respondent No.3 association that there is no set up or vacancies available for petitioners. The post in which petitioners are appointed found to be vacant and covered within sanctioned set up in the society. There is no contrary material on record produced by Respondent No.3 association and no contrary finding has been given by Registrar. There is no mandate given to society under statutory Rules or bye laws that recruitment of employee has to be made in a particular manner. There is no statutory compulsion upon society to fill up the post in a particular manner. The State Government has also no power over society respondent no.2 under Sec. 155 of the Act to appoint petitioners in a particular manner or manner in which petitioners are appointed is wrong or illegal or irregular. The State Government has no power to interfere in day-to-day function and affairs of management of society. Then, naturally, Registrar who is appointed by the State Government cannot have such power to interfere with the functions and affairs of management of society. There is no back door entry of petitioners in service. The petitioners are appointed after following procedure, to have qualification of post, interviews were taken and then selection was made by Sub Committee which was approved by Managing Committee. Thereafter, petitioners were appointed. It is not finding of Registrar that petitioners are surplus staff appointed by respondent No. 2 Society beyond sanctioned set up. The respondent No. 2 has made clear before the Registrar that in all 179 employees retired from service and against that, only 161 employees are appointed. So, petitioners are not surplus persons appointed by respondent No.2 society incurred unnecessary financial burden upon society. So, appointments of petitioners are in larger interest of society. These aspects have not been taken into consideration by Registrar while issuing impugned directions to respondent No.2.” 9. In the case of Malvikaben Bhikhabhai Patel (supra), this Court has held and observed in para 8 as under:- “8. The first ground, noncompliance with the directions in selecting persons having less than 50% marks in degree examination, cannot be sustained for the reasons stated hereinabove in the earlier paragraphs. Neither the byelaws nor the service regulations framed by 4th respondent provide for reservation for Scheduled Caste and Scheduled Tribe candidates. The first ground, noncompliance with the directions in selecting persons having less than 50% marks in degree examination, cannot be sustained for the reasons stated hereinabove in the earlier paragraphs. Neither the byelaws nor the service regulations framed by 4th respondent provide for reservation for Scheduled Caste and Scheduled Tribe candidates. No provision is enacted in the Co- operative Societies Act enjoining the co-operative societies to follow reservation principles while making appointment to its staff. Government of Gujarat has not framed any regulations invoking the provisions contained in Sec. 168 of the Co-operative Societies Act. In the absence of such statutory provisions the Registrar was not entitled to give any direction to the Society to comply with the "standard of reservation as prescribed by the Government". If the Government has prescribed any standard for reservation that can be traced to the provisions contained in Art. 335 of the Constitution; but it relates to only appointments to services and posts in connection with the affairs of the State. Appointment to the staff of the co-operative society is not in connection with the affairs of the State. Therefore, the said direction given by the Registrar cannot also be sustained.” 10. At this juncture, Ms.Pancholi, learned Assistant Government Pleader has also referred to and relied upon the decision of this Court in the case of Hema Ritesh Thakker Vs. State Of Gujarat reported in 2017 (3) GLR 2106 wherein this Court has held and observed in para – 29 and 30 as under:- “29. The bye-laws of a co-operative society framed by the society under the Gujarat Co-operative Societies Act including the model standing orders framed under the Bombay Industrial Relations Act, 1946, cannot be said to be the law or to have force of law. They are in the nature of contract, terms of contract between the society and its employees, or between the society and its members, as the case may be. 30. Hence, where a co-operative society cannot be characterized as a "state", the service conditions of its employees governed by the bye-laws or standing orders cannot be enforced through a writ petition under Article 226 of the Constitution of India. The writ of mandamus, certiorari and prohibition are the public law remedies. They are not available to enforce private law rights. Hence, where a co-operative society cannot be characterized as a "state", the service conditions of its employees governed by the bye-laws or standing orders cannot be enforced through a writ petition under Article 226 of the Constitution of India. The writ of mandamus, certiorari and prohibition are the public law remedies. They are not available to enforce private law rights. Every act of a society which may be a "State" within the meaning of Article 12 does not necessarily belong to public, law field. A contractual obligation, which is not statutory, cannot be enforced by way of a writ petition under Article 226 of the Constitution of India.” 11. The issue involved in the present petition is that whether the petition filed under Article 226 of the Constitution is maintainable or not and whether the prayer sought in the petition is granted or not. 12. This Court has considered the facts of the case and the submissions canvassed by the learned counsel appearing for the respective parties and the averments made in the petition. This Court has also gone through the contents of each affidavit-in- reply and the decisions cited at the Bar. So far as the prayer made in the petition is mainly against the respondent – Society for recruitment process and appointment of the private respondents is concerned, it appears that the said appointment is made by the respondents as per the due procedure and as per the norms. In view of such fact, this Court is of the opinion that the present petition is not maintainable as respondent – authority is not amenable under the writ jurisdiction as it is not State under Article 12 of the Constitution of India. It is also fact that the petitioner being Director of the Bank and his near relatives are working in the respondent – Bank and while taking undue advantage and with an ulterior motive, the present petition is filed to ventilate the vengeance. Therefore, the present petition is devoid of merits and deserves to be dismissed. 13. In the result, the present petition is dismissed. Rule is discharged. Interim relief, if any, stands vacated forthwith. There shall be no order as to costs.