Bombay High Court
Dinesh Bhaidas Mahale And Others vs The State Of Maharashtra And ... on 6 June, 2016
Bench: S.S. Shinde
10829.15WP
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 10829 OF 2015
1. Dinesh S/o Bhaidas Mahale
Age : 47 years, Occ : Service,
R/o 204, Gurunanak Apartment,
Behind Surendra Diary,
Sakri Road, Dhule.
2. Anil S/o Santoshrao Bedse
Age : 48 years, occ : Service,
R/o 6, Pramod Nagar,
Sector-A, Nakane Road,
Devpur, Dhule, Dist. Dhule.
3. Popatrao S/o Baburao Suryawanshi
Age : 51 years, Occ : Service,
R/o Plot No. 3, Kele nagar,
Nakane Road, Devpur, Dhule
Dist. Dhule.
..PETITIONERS
-VERSUS-
1. The State of Maharashtra
Through the Secretary
Co-operation Department,
Mantralaya, Mumbai - 32.
2. The Commissioner for Co-operation,
Maharashtra State, Pune.
3. The Divisional Joint Registrar,
Co-operative Societies,
Nasik Division, Nasik.
4. The District Deputy Registrar
Co-operative Societies,
Dhule, Dist. Dhule.
::: Uploaded on - 07/06/2016 ::: Downloaded on - 08/06/2016 00:06:05 :::
10829.15WP
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5. The District Deputy Registrar
Co-operative Societies,
Nandurbar, Dist. Nandurbar.
6. Dhule-Nandurbar Zilla
Karmachari Sahakari Patpedhi
Through it Manager,
Shriram Asaram Patil
Age : 57 years, Occ : Service,
R/o Nagai Colony, Deopur,
Dhule, Dist. Dhule.
ig ..RESPONDENTS
...
Advocate for Petitioners : Mr. N.V. Gaware
AGP for Respondent/State :Mr. V.S. Badakh
Advocates for Respondent no. 6: Mr. P.R.
Patil a/w Mr. Sandesh R. Patil
....
CORAM : S.S. SHINDE &
SANGITRAO S. PATIL, JJ.
RESERVED ON : April 27, 2016
PRONOUNCED ON : June 6, 2016
...
JUDGMENT (PER S.S. SHINDE, J)
This Petition is filed with the
following prayer :-
"(B) Hold and declare that the inaction
on the part of respondent No.6
society, for injuncting the respondent
no.6 society from proceeding with the
further process of recruitment in
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pursuance of the advertisement
published in daily Sakal on 14th
September, 2015 is illegal, arbitrary,
violative of Article 14, 19(1)(c) and
21 of the Constitution of India hence
liable to be quashed and set aside."
2. The learned counsel appearing for
the petitioners submits that as per the
staffing pattern, one post of clerk is
admissible as against 300 members and one
post of peon is admissible as against 400
members. Already there are excess peons and
clerks working with Respondent No.6 -
Society, and therefore, there was no need of
recruitment. As on today, there are 14
clerks, 9 peons and one watchman working with
Respondent No.6 society. One post of clerk is
already in excess and there is no further
need of recruitment, which puts additional
financial burden on Respondent No.6 -
society. He further submits that there will
be financial implication, if such
appointments are made in excess. The
eligibility criteria for the posts of peon
and clerk has been laid down in clause (4)
and clause (3) respectively of the revised
guidelines and in respect of the post of
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watchman has been laid down in clause (5)
thereof. However, Respondent no.6 by adopting
secret method has undertaken the process of
recruitment for the post of clerk, peon and
watchmen though not required in the strict
sense.
3. It is submitted that the agenda of
the meeting dated 25th December, 2014 does not
reflect the subject of recruitment to be
undertaken by respondent no.6 - society. On
31st August, 2015, Respondent No.3 issued
communication, thereby permitting Respondent
No.6 to undertake the process of recruitment
subject to certain conditions. One of the
conditions stipulated was that the expenses
for the purpose of administration should not
exceed 2% of permissible expenditure.
However, if the appointments are made
pursuant to the advertisement, the said
expenses will exceed 2%. Respondent no.6 has
not followed the roster with regard to the
reservation. Respondent No.6 has not adhered
to the conditions laid down by Respondent
No.3, while granting permission to advertise
the posts. The learned counsel also invites
our attention to the financial implications,
in case the recruitment is allowed and
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appointments are made.
4. It is submitted that the
advertisement published for the posts was of
a very small dimension and was in one of the
corners of the news paper. No details/
eligibility criteria have been laid down in
the said advertisement for the reasons best
known to Respondent No.6. The eligible
persons were to log on to the Website,
however, the said Website was blocked and was
not accessible. The agency which has been
engaged for undertaking the process of
recruitment also had no experience of banking
personnel selection. It is submitted that the
members of Respondent No.6 society have
ensured that their kith and kins only could
apply for the said posts and out of them, the
candidates were to be selected. The learned
counsel also invites our attention to the
pleadings in the Petition, grounds taken
therein, as also the averments in the
rejoinder-affidavit, and submits that the
Petition may be allowed. He further submits
that the petitioner may be allowed to amend
the Petition.
5. The learned counsel appearing for
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the petitioner relying on the judgments in
the cases of the U.P. State Co-operative Land
Development Bank Limited V/s Chandra Bhan
Dubey1 and Association of Milma Officers',
Thiruvananthapuram and another V/s State of
Kerala and others2 submits that Writ Petition
is maintainable against Respondent no.6 -
society.
6.
In pursuance of the notices issued
to Respondents, Respondent nos. 3 and 4 filed
affidavit-in-reply. It is stated that after
the approval of the staffing pattern dated 4th
October, 2004, there has been change in the
situation and the branches of respondent no.6
- society have been increased from 3 to 7.
Therefore, in the said staffing pattern, by
way of clause 3, branch-wise posts were
provided which were to increase after opening
of the new branches. Moreover, respondent
no.6 has also given promotions to its
employees. Therefore, as per the branch-wise
strength of respondent no.6 - society, there
is requirement of total 55 employees and
thus, there is existing vacancy of 16 posts.
At present there are 39 employees working
with respondent no.6 society and the
1 1999 AIR (SC) 753
2 AIR 2015 Kerala 137
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financial condition of respondent no.6 -
society is quite good. It has continuously
secured "A" audit classification during last
three years. By order dated 31st August, 2015,
Respondent no.3 has imposed certain
conditions on Respondent no.6 society before
carrying out recruitment process. As per
condition no.1, it is prescribed that the
administrative expenditure of the society
should not exceed 2% of its working capital.
However, the Commissioner for Co-operation,
Maharashtra State, Pune has fixed the
criteria for audit classification of the
societies in the State of Maharashtra, by
circular dated 29th April, 2010. As per the
said criteria, the limit for administrative
expenditure with working capital of the
societies is fixed at 2.5%. It is also stated
that the allegation that Respondent no.6 -
society has not complied with the condition
of clearing of backlog is incorrect.
Respondent nos. 3 and 4 have taken cognizance
of the complaint filed by the petitioners and
directed Respondent no.6 to comply with the
conditions laid down for allowing Respondent
no.6 to go ahead with the recruitment
process. The applications/representations
filed by the petitioners have been decided by
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Respondent no.3. The copies of the decisions
are also placed on record.
7. Respondent no.6 has also filed the
affidavit-in-reply. In the said affidavit in
reply, it is stated that the advertisement
was issued in Marathi news paper `Sakal'. It
is further submitted that Respondent no.3
granted permission to go ahead with the
recruitment on certain conditions. One of the
conditions was that expenditure should not be
more than 2%. However, subsequently
Respondent no.3 has corrected the mistake and
communicated that instead of 2%, the
expenditure on account of salary and
allowances to the employees shall not exceed
2.5%. Since Respondent no.6 is not the State
within the meaning of Article 12 of the
Constitution of India, Writ petition is not
maintainable. It is submitted that the
Government does not grant any funds to
respondent no.6. The wide publicity was given
before recruitment process was undertaken.
The petitioner has an alternate remedy under
section 91 of the Maharashtra Co-operative
Societies Act, 1960 by way of filing Dispute.
8. It is submitted that petitioner no.1
10829.15WP
Dinesh Bhaidas Mahale was the Chairman of the
previous Managing Committee of respondent
no.6 for a period from 3rd August, 2007 to 3rd
August, 2008. During his tenure as a Chairman
he made several appointments illegally.
Respondent no.6 has quoted names and dates of
appointment of such employees in para 5 of
the reply. It is stated that the petition has
been filed only with a view to obstruct the
proceedings. It is stated that the
performance of the society is excellent and
during the last four years, there has been
substantial increase in the net profit of
Respondent no.6 - society. It is submitted
that the approved staffing pattern clearly
shows that there are 56 posts. There are
seven branches of the society. Therefore,
the duly approved staff is 56 posts. Out of
56 sanctioned strength of employees, only 39
are working. There is shortage of 17
employees. Out of this, nine posts are to be
filled up. Out of these 9 posts, 2 posts of
clerks are reserved for Scheduled Tribes, 2
posts of peons are reserved for Scheduled
Tribes, and one post of peon is reserved for
Scheduled Caste. Remaining 4 posts i.e. 2
clerks and 2 peons are meant for open
category. Moreover, 226 members of the
10829.15WP
society have given representation on 17th
October, 2015 to the society and supported
the cause of recruitment process carried out
by the Society. Dhule and Nandurbar are
predominantly tribal districts. Therefore,
the members also expect that the appointments
should be as per the reservation policy.
9. It is submitted that initially, on
28th January, 2015, the society applied to the
Backward Class Cell of Commissioner office,
Nashik for examining the backlog. However, it
was informed that initially the roster should
be verified at District Deputy Registrar's
level. On 25th February, 2015, the society
requested the District Deputy Registrar to
verify the roster. By letter dated 13 th March,
2015, the office of the District Deputy
Registrar replied that it would be
appropriate to get the roster verified from
Divisional Joint Registrar. On 7th April,
2015, the society submitted a letter to
Divisional Joint Registrar. By reply dated
23rd July, 2015, the Divisional Joint
Registrar informed that it is not within his
jurisdiction to verify the roster. The
backlog of the reserved category candidates
is calculated by the Society and it is
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reflected in the table submitted to the
above-referred authorities. Even otherwise
the Society is not receiving grants from the
State Government. Therefore, the reservation
policy may not be strictly applicable. On 23rd
November, 2014, the issue of recruitment was
discussed in the meeting and thereafter the
resolution was passed in the Managing
Committee meeting. Thereafter, on 15 th March,
2015, during meeting it was resolved to bring
transparency in the selection process, and
therefore, three companies were shortlisted.
Out of that, Gajanan Enterprises was found
to be appropriate for the purpose of
conducting selection/recruitment procedure,
since it was possessing expertise.
10. Resolution dated 15th March, 2015 was
duly approved by Respondent no.3. There were
7 conditions laid down by Respondent no.3 in
his letter dated 31st August, 2015. All these
conditions are followed by the Society. The
Respondent - Society has maintained the model
ratio of expenditure to the turn over as less
than 2.5%. In para 15 of the reply, during
last three financial years, the ratio
maintained by the society is mentioned. The
audit report of Credit Society also reveals
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that the expenditure is less than 2.5%, and
therefore, full five marks are allotted to
the society.
11. Respondent no.6 filed further
additional affidavit, wherein it is stated
that on 19th November, 2015, the Chairman of
Respondent no.6- society has specifically
brought to the notice of the Divisional Joint
Registrar that proper percentage of the
administrative expenses was 2.5% and not 2%,
and therefore, the said authority was
requested to correct the said condition of
expenditure and accordingly the reply was
received by Respondent no.3 stating that
since the matter is subjudice, the request
is kept in abeyance. On 27th October, 2015,
Respondent no.3 sent a letter to Respondent
no.6 - society and thereby ordered to conduct
the recruitment process as per the conditions
stipulated vide earlier letter of permission
dated 31st August, 2015. It is stated that on
20th September, 2010, the Commissioner for
Co-operation has issued norms for the audit
of the cooperative credit societies. In these
norms at Sr. no.4.7, norms regarding the
administrative expenses is shown as 2.5% and
maximum 10 marks are liable to be allotted,
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if the expenses are upto 2.5%. If they are
between 2.5 to 3%, then there would be 5
marks and above 3% there would be zero marks.
12. The learned counsel appearing for
Respondent No.6 cited the judgment of the
Hon'ble the Supreme Court in the case of
Pehlad Ram and others V/s Harayana Urban
Development Authority3, the judgment of the
Full Bench at Principal Seat in the case of
Shamrao Vitthal Cooperative Bank V/s
Padubidri Pattabhiram Bhat and another4 and
the judgment of the Division bench of this
Court in the case of "Dnyandeo Dattatraya
Kale and others V/s State of Maharashtra and
others5. Relying upon the judgment in the
case of Dnyandeo (supra), the learned counsel
appearing for Respondent no.6 submits that
the view is taken in the said judgment that
merely because large scale employment was
done, it could not be said that employment
was public employment and in the facts of
that case, it has been held that the bank was
performing the statutory duty, and therefore,
Writ Petition against the District Central
Co-operative Bank is not maintainable. The
3 (2014) 14 SCC 778
4 1993 Mh.L.J. 1
5 1995 (2) Mh.L.J. 930
10829.15WP
learned counsel appearing for Respondent
no.6, relying upon the judgment of the Full
Bench at Principal Seat in the case of
Shamrao (supra), submits that the Co-
operative Society registered under the
provisions of the Maharashtra Co-operative
Societies Act, 1960 and under the Multi-State
Co-operative Societies Act, 1984, carrying on
business of banking and governed by the
Banking Regulation Act, 1949 is not "State"
under Article 12 of the Constitution of
India. The learned counsel appearing for
Respondent No.6 also placed reliance on the
judgment in the case of Pelhad Ram (supra)
and submits that the view is taken that the
dishonest litigant suppressing certain facts
need not be protected by the Courts. The
learned counsel appearing for Respondent no.6
files the notes of arguments during the
course of hearing and submits that all the
conditions which are stipulated by Respondent
no.3 while allowing Respondent No.6 to go
ahead with the recruitment, have been
followed/complied with by Respondent no.6.
Therefore, he submits that the Petition may
be rejected.
13. We have given careful consideration
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to the submissions advanced by the learned
counsel appearing for the petitioner, the
learned A.G.P. appearing for the
Respondent/State and the learned counsel
appearing for Respondent no.6. We have
carefully perused the pleadings in the
petition, annexures thereto, replies filed by
respective respondents, rejoinder filed by
the petitioner and the judgments cited across
the Bar by the learned counsel appearing for
the parties.
14. It appears that on 31st August, 2015,
the Divisional Joint Registrar, Co-operative
Societies, Nashik Division, Nashik
communicated Respondent No.6, in reply to the
request of Respondent No.6 for allowing it to
make appointments, that Respondent No.6 can
go ahead with the recruitment process in view
of Resolution no.8/4 passed by the Managing
Committee of Respondent No.6 subject to seven
conditions stated in the said letter. The
first condition speaks that total expenditure
on account of administration shall not exceed
2% of the working capital. Secondly,
directions issued by the State Government
about the recruitment should be followed. The
appointments from the candidates from the
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Backward category should be made on priority
basis. The roster of reservation should be
followed. There should be strict adherence to
the provisions of Section 74(1) of the
Maharashtra Co-operative Societies Act, 1960.
While conducting the recruitment process, it
should be strictly in adherence to service
conditions. The recruitment should be through
Agency/Government approved company.
15. Upon careful perusal of the reply
filed by Respondent no.3, it is abundantly
clear that Respondent no.3 is constantly
monitoring the selection process and has
taken steps to see that there should be
strict adherence to the conditions laid down
in the communication dated 31st August, 2015.
He has clarified in his affidavit that the
permissible expenditure on account of
administrative can be upto 2.5%. It is also
stated that earlier there were three branches
and now there are seven branches of
Respondent No.6 - society. The Respondents
have demonstrated that since there is
extension of branches, the appointment of the
additional employees is needed. The
advertisement is also given in the news paper
`Sakal'. There is no denial to the assertion
10829.15WP
of Respondent no.3 and Respondent No.6 that
Respondent no.6 has been rated `A' Class
Audit Classification. Apart from it, prima
facie, it appears that Respondent no.6 has
earmarked two posts of clerks for Scheduled
Tribes, 2 posts of peon for Scheduled Tribes,
and one post of peon for Scheduled Castes. In
case Respondent No.6 is lacking in fulfilling
any of the conditions mentioned in the letter
dated 31st August, 2013 referred hereinabove,
Respondent no.3 can very well ask Respondent
no.6 to take corrective measures or
appropriate steps to fulfill the said
conditions.
16. There is no denial to the fact that
Petitioner no.1 Dinesh Bhaidas Mahale was
Chairman of the previous Managing Committee
of Respondent no.6- society for a period from
3rd August, 2007 to 3rd August, 2008.
Therefore, filing complaints by him or at his
instance out of political vendetta cannot be
ruled out.
17. Upon considering the entire material
placed on record, we are of the opinion that
Respondent No.3 is Competent Authority to
monitor the selection process and from his
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reply, it can safely be gathered that
Respondent no.3 has taken appropriate steps
and ensured that the selection process
initiated by Respondent no.6 is in adherence
to the conditions laid down in his letter
dated 31st August, 2013, addressed to
Respondent No.6, of course, with the
increased limit of expenditure to 2.5%. It is
also not in dispute that Respondent no.6 is
not receiving any financial aid from the
State Government.
18. In that view of the matter, we are
unable to persuade ourself to grant reliefs
as prayed for in the Petition. Hence the
Petition stands rejected. No costs.
(SANGITRAO S. PATIL, J.) (S.S. SHINDE, J.)
After pronouncement of the judgment,
the learned counsel appearing for the
petitioners prays for continuation of interim
order for further eight weeks, which was in
force till today. The prayer is vehemently
opposed by the learned counsel appearing for
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Respondent No.6.
2. Since the entire selection process
is held up due to interim order, we are not
inclined to continue the interim order any
further. Hence the prayer for continuation of
the interim order for eight weeks stands
rejected.
(SANGITRAO S. PATIL, J.) (S.S. SHINDE, J.)
SGA
