Full Judgment Text
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5251 OF 2022
(Arising out of SLP (Civil) No.1246 of 2015)
THE KANGRA CENTRAL COOPERATIVE BANK
PENSIONERS WELFARE ASSOCIATION (REGISTERED) ...Appellant
VERSUS
STATE OF HIMACHAL PRADESH & ORS. ...Respondents
WITH
SPECIAL LEAVE PETITION (CIVIL) No.4518 of 2016
O R D E R
CIVIL APPEAL NO.5251 OF 2022
(Arising out of SLP (Civil) No.1246 of 2015)
1. Leave granted.
2. This appeal challenges the judgment and order dated
03.09.2014 passed by the High Court of Himachal Pradesh at
Shimla in LPA No.316 of 2012.
3. While dealing with the claim preferred by the Kangra
Central Co-operative Bank Pensioners Welfare Association
(“the Association”, for short) challenging the Orders dated
21.04.2010 and 24.04.2010 stopping grant of pension to the
Signature Not Verified
Members of the Association, the Single Judge of the High
Digitally signed by Dr.
Mukesh Nasa
Date: 2022.08.18
17:52:59 IST
Reason:
Court by his judgment dated 15.05.2012 in CWP No.1679 of 2010
directed as under:
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”26. In the instant case, the withdrawing of
the scheme by the BOD when it was
approved by the General House, which is
a final authority, is contrary to the
provisions of the Policy and the second
respondent has acted beyond his powers
delegated under the Act.
27. The change of the policy and withdrawal
has to be made in the same process in
which it has been made, which lacks in
the present case.
28. Thus, for the aforesaid reasons, the
impugned orders Annexures R-3/7 and R-
3/8 discontinuing of policy are hereby
quashed and set-aside. Thus, there
shall be a direction to respondent No.2
to place the Scheme before the General
House for reconsideration and take a
final decision in the matter whether to
continue the Scheme with some
modifications, if required or to
completely disband it or suggest
alternative proposal. Such a decision
be taken after affording hearing to the
petitioners and also the respondent-
bank within four months from the
production of the copy of this
judgment.”
4. During the course of his judgment, the Single Judge
dealt with all the relevant submissions including one
concerning maintainability of the writ petition and observed
as under:
“19. The learned counsel for the
respondents admitted that the State had
more than 50 per cent share in the
capital of the bank. The Registrar of
the Cooperative Societies is a member
of Himachal Pradesh Administrative
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Services. The perusal of the
Cooperative Societies Act reveals that
the respondent-Society cannot budge
even an inch without his approval,
therefore, there is deep and pervasive
control of the State Government not
only on its employees by the second
respondent as ventilated by the learned
counsel for the respondents but also on
the working of respondents-Bank, as is
evident from the facts in hand that the
respondent-bank has more than 50% share
of the Government, it is financially,
functionally and administratively
dominated by or is under the control of
the State Government, as also the
Government nominates members of the
Managing Committee (BOD) under Section
35 of Cooperative Societies Act, also
1/3 of the members are appointed by the
Registrar under Rule 39 framed under
the Act. Even under Rule 49, he is
empowered to inter-alia issue general
or special orders to the Managing
Committee to raise and invest funds.
Therefore, the State has a deep and
pervasive control on its working.
Hence, the respondent-bank is an
instrumentality of the State within the
meaning of Article 12 of the
Constitution. Therefore, in my
opinion, the writ is maintainable
against the respondent-bank.”
5. It appears that in a different context, the issue
concerning maintainability of a Writ Petition against Kangra
Central Co-operative Bank Ltd. (‘the Bank’, for short) again
came up before the Full bench of the High Court, which by its
judgment dated 14.05.2013 observed as under:
“15. For the view taken by us on both facets of
the referred questions, we proceed to answer
the Reference as under:
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(1) The question as to whether Kangra
Bank is a State within the meaning of
Article 12 of the Constitution of India,
is no more res integra. It has been
authoritatively answered by the Apex Court
in S.S. Rana’s case (supra.)
(2) Even in the case of H.P. State
Cooperative Bank Ltd., the question has
been answered by the Division Bench of our
High Court in Chandra Kumar Malhotra’s
case (supra). There is no conflicting
decision of coordinate Bench of this Court
necessitating pronouncement on that
question by the Full Bench.
(3) In the case of Jogindra Central
Cooperative Bank, the decision in Mehar
Chand’s case (supra) is rendered by the
learned Single Judge of this Court and no
conflicting decision of the co-ordinate
Bench much less of the Division Bench or
Larger Bench of our High Court with regard
to the stated Bank has been brought to our
notice. In any case, the said question
can be conveniently answered by the
Division Bench in appropriate proceedings
whether in the form of writ petition or
Reference made by the learned Single Judge
of this Court, as the case may be. As and
when such occasion arises, the issue can
be answered on the basis of settled legal
principles and including keeping in mind
the exposition of S.S. Rana’s case (supra)
of the Apex Court concerning another
Cooperative Bank constituted under the
Himachal Pradesh State Cooperative Act.
(4) As regards the second part of the
question as to whether a writ would lie
against the stated Cooperative Banks, we
hold that it is not appropriate to give a
definite answer to this question. For, it
would depend on several attending factors.
Further, even if the said Banks were held
to be not a State within the meaning of
Article 12, the High Court in exercise of
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powers under Article 226 of the
Constitution of India, can certainly issue
a writ or order in the nature of writ even
against any person or Authority, if the
fact situation of the case so warrants.
In other words, writ can lie even against
a Corporative Society. Whether the same
should be issued by the High Court would
depend on the facts of each case.
16. Accordingly, having answered the referred
questions, we direct the Registry to place the
concerned writ petitions and the LPA before
the appropriate Bench for proceeding on merits
in accordance with law.”
6. In the Review Petition preferred against the decision of
the Single Judge, the decision rendered by the Full Bench was
relied upon and the Review Petition was rejected.
7. The matter however was carried in appeal before the
Division Bench at the instance of the Bank.
8. Relying on its earlier decision in Sanjeev Kumar &
Others v. State of Himachal Pradesh & Others, C.W.P. No.6709
of 2013 the Division Bench by its judgment and order which is
presently under challenge, set aside the view taken by the
Single Judge. The matter essentially turned on the issue of
maintainability.
9. We have heard Mr. Kavin Gulati, learned Senior Advocate
in support of the appeal, Mr. Abhinav Mukerji, learned
Additional Advocate General for the State and Mr. Ritesh
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Khatri, learned Advocate for the Bank.
10. The issue concerning maintainability was considered by
the Full bench and the observations made by the Full Bench
summed up the law on the point quite succinctly. On the
facts as found by the Single Judge, which were recorded in
paragraph 19 of the judgment, without entering into any other
question, in our view, the petition as filed was perfectly
maintainable. The Division Bench was in error in setting
aside the view taken by the Single Judge in allowing the writ
petition and in rejecting the review petition.
11. We, therefore, allow this appeal and set aside the view
taken by the Division Bench. However, since the Division
Bench had not dealt with the matter on merits, we restore LPA
No.316 of 2012 to the file of the Division Bench and request
the High Court to dispose of the same as early as possible
and preferably within three months from the receipt of this
order.
12. The Civil Appeal is allowed to the aforesaid extent,
without any order as to costs.
SPECIAL LEAVE PETITION (CIVIL) No.4518 OF 2016
1. This Special Leave Petition challenges the judgment and
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order dated 04.08.2014 passed by the High Court of Himachal
Pradesh at Shimla in Civil Writ Petition No.6709 of 2013.
2. Though the issue raised in this matter also pertains to
the maintainability of a writ petition filed in the High
Court; and the instant matter was tagged with the Special
Leave Petition from which the aforestated appeal arose, in
the facts and circumstances of the case, we refuse to
entertain this Special Leave Petition.
3. It has been brought to our notice that the Joint
Registrar (Credit) Cooperative Societies, H.P., while
disposing of the action initiated before him had observed as
under:
“24. In view of the findings recorded
hereinabove, the respondent bank shall
consider the applicants/petitioners along
with other similarly situated subordinate
category employees for promotion to vacant
post of junior clerks/ Gr.IV under specified
promotion quota earmarked under bank service
rules for them subject to their eligibility
and fitness for promotion as and when
vacancies under promotion quota or otherwise
are filled by the respondent bank in near
future. Further, the period of service
rendered by the applicants/petitioners as
sub-helpers on contract/ad hoc basis shall
be considered as qualifying service by the
bank for determining their length of service
in feeder/subordinate category for the
purpose of promotion to junior clerks/ Gr.IV
as per rules and settled principles of
service jurisprudence and in view of the
fact that bank had extended their contract
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period till 2011 as per terms of the scheme
of appointment and rules etc.
25. In the aforesaid terms, the
representations/ references u/s 72 of the
Act ibid preferred by the
applicants/petitioners stand disposed of in
compliance of the orders of Hon’ble High
Court, H.P. these findings made before the
parties present today on 18.8.2012 at Shimla
shall also be kept on record in concerned
files of the applicants/petitioners as those
are preferred on similar grounds before
Registrar Cooperative Societies, H.P. and
stood clubbed as discussed above and
accordingly disposed of along with
applications filed for stay etc. if any.
These case files be returned along with
findings to the Registrar Cooperative
Societies, H.P. for record and further
appropriate action after due completion.”
4. The further action initiated by the present petitioners
in the form of a Writ Petition did not meet with success on
the ground of maintainability. However, as indicated in the
Additional Affidavit filed by the respondents, out of six
petitioners presently before this Court, four of them were
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granted the benefit of regularization to the next higher
post. Ms. Pragati Neekhra, learned Advocate appearing for
the H.P. State Cooperative Bank Ltd. submits that since the
filing of the additional affidavit, other two petitioners
have also been afforded the similar benefit.
1 Shri Suresh Kumar Mehta, petitioner No.1 by office order dated 02.09.2019; Shri Rajinder Kumar, petitioner No.2
by order dated 20.06.2020; Shri Anil Prakash, petitioner no.4 by office order dated 28.01.2020; and, Shri Kuldeep
Singh, petitioner No.5 by order dated 28.01.2021.
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5. In the circumstances, we refuse to entertain this
Special Leave Petition which is thus disposed of.
............................J.
(UDAY UMESH LALIT)
............................J.
(ANIRUDDHA BOSE)
............................J.
(SUDHANSHU DHULIA)
New Delhi,
August 12, 2022.