Bombay High Court
Devidas Kashinath Patil vs The State Of Mah And Ors on 8 November, 2023
Bench: Mangesh S. Patil, Shailesh P. Brahme
2023:BHC-AUG:24768
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 11138 OF 2010
WITH CA/907/2020 IN CA/14334/2019
WITH CA/461/2020 WITH CA9962/2012
WITH CA/14204/2011 WITH CA/4671/2021
WITH CA/7079/2021 WITH CA/5454/2023
Jalgaon Zilha Sahakari Dudh Utpadak
Sangh Maryadit, Jalgaon,
Through its Managing Director,
Ravindra S/o. Sadashiv Lahane,
Age : 49 years, Occu. : Service,
R/o. Jalgaon,
Tq. and Dist. Jalgaon. ....Petitioner
Versus
1) The State of Maharashtra,
through its Secretary,
Agriculture, Animal Husbandry,
Dairy Development and Fisheries
Department, Mantralaya, Mumbai.
2) The Divisional Commissioner,
Nashik Division, Nashik.
3) The Divisional Deputy Registrar,
Co-operative Societies (Dairy),
Nashik Division, Nashik.
4) The Assistant Commissioner,
Backward Class Cell,
Nashik Division, Nashik.
5) Jalgaon Zilla Mazdoor Congress
Sanghatma, through its President,
Yashpal Devidas Patil,
Age : 40 years, Occu. : Service,
R/o. Plot No. 33, Survey No. 28,
S.M.I.T. College, Road,
Muktainagar Colony, Jalgaon,
Tq. & Dist. Jalgaon. ....Respondents
Advocate for the Petitioner : Mr. D.K. Thoke
Addl. GP for Respondent Nos. 1 to 4 : Mr. S.B. Yawalkar
Advocate for Respondent No. 5 : Mr. P.B. Rakhunde h/f. Mr. S.B. Bhapkar
Applicant in Person in CA/461/2020 : Mr. Nagraj Janardan Patil
Advocate for Applicant in CA/4671/2021, CA/7079/2021, CA/9962/2012,
CA/14204/2011 : Mr. P.B. Rakhunde
Advocate for Applicant in CA/5454/2023 : Mr. D.B. Thoke
Advocate for Applicant in CA/907/2020 : Mr. Vikram A. Pawar and Mr.
Pradeep B. Salunke
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WITH
WRIT PETITION NO. 11431 OF 2018
WITH CA/14146/2018 WITH CA/3419/2022 WITH CA/7074/2021
The Jalgaon Jilha Sahakari Dudh Utpadak
Sangh Ltd. Jalgaon,
Through its Managing Director,
Manoj Gopal Limaye
Age : 55 years, Occu. : Service,
R/o. Shivaji Nagar, Jalgaon. ....Petitioner
Versus
1) The State of Maharashtra,
through its Secretary,
Agriculture, Animal Husbandry,
Dairy Development and Fisheries
Department, Mantralaya, Mumbai.
2) The Divisional Commissioner,
Nashik Division, Nashik.
3) The Divisional Deputy Registrar,
Co-operative Societies (Dairies),
Nashik Division, Nashik.
4) The Assistant Commissioner,
Backward Class Cell Nasik
Division Nashik.
5) Jalgaon Jilha Mazdoor Congress
Sanghatma, through its President,
Yashpal Devidas Patil,
Age : 40 years, Occu. : Service,
R/o. Plot No. 33, Survey No. 28,
S.M.I.T. College, Road,
Muktainagar Colony, Jalgaon. ....Respondents
Advocate for the Petitioner in WP/11431/2018 & in CA/3419/2022 : Mr.
Vikram A. Pawar and Mr. Pradeep B. Salunke
Addl. GP for Respondent Nos. 1 to 4 : Mr. S.B. Yawalkar
Advocate for Respondent No. 5 : Mr. P.B. Rakhunde
Applicant in Person in CA/14146/2018 : Mr. Nagraj Janardan Patil
WITH
WRIT PETITION NO. 8204 OF 2021
WITH CA/8355/2022
Jalgaon Jilha Majdoor Congress Sanghatana
Through its President
VERSUS
The Jalgaon Jilha Sahakari Dudh Utpadak
Sangh Ltd. Jalgaon
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Advocate for the Petitioner : Mr. P.B. Rakhunde
Advocate for Respondent No. 1 : Mr. Vikram A. Pawar
and Mr. Pradeep B. Salunke
Addl. GP for Respondent Nos. 2 to 5 : Mr. S.B. Yawalkar
...
CORAM : MANGESH S. PATIL &
SHAILESH P. BRAHME, JJ.
Judgment reserved on : 09 OCTOBER 2023
Judgment pronounced on : 08 NOVEMBER 2023
JUDGMENT (PER : SHAILESH P. BRAHME, J.) :
1. Rule. Rule is made returnable forthwith. Heard learned
counsel for both the sides for final disposal of the matters.
2. These two matters were clubbed with PIL No. 72 of
2021 and Writ Petition No. 8204 of 2021. Other matters are
segregated from these petitions. The petitioner is common and core
issue which falls for adjudication is also common. Shorn of
unnecessary details, we propose to decide core issue - "Whether
the provisions of the Maharashtra State Public Services
(Reservation for Scheduled Castes, Scheduled Tribes, Denotified
Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward Category
and Other Backward Classes) Act of 2001 (here in after referred to
as 'Reservation Act' for the sake of convenience and brevity) are
applicable to the petitioner - Co-operative Society ?"
3. In Writ Petition No. 11198 of 2010, the petitioner is
challenging judgment and order dated 08.11.2010 passed by
respondent no. 1 - Minister, holding that Reservation Act applies to
the petitioner and directing the Sub-ordinate Officers to take steps
to fill up the backlog of reservations. In Writ Petition No. 11431 of
2018 letter dated 12.06.2018 addressed by respondent no. 3 -
Divisional Deputy Registrar to the petitioner instructing to fill up the
backlog in view of application of Reservation Act to the petitioner, is
under challenge. The declaration that Reservation Act is not
applicable to the petitioner Co-operative Society and ancillary
reliefs are also sought.
4. The petitioner is a Co-operative Society registered
under the provisions of Maharashtra Co-operative Societies Act of
1960. The petitioner suffered losses due to mismanagement. From
15.09.1995 National Dairy Development Board was appointed as an
administrator over the petitioner for a period of ten years. The
period was further extended up to 2015. In 2015, the administrator
was removed and newly elected committee for the period 2015-
2020 was restored the administration.
5. The respondent no. 5 is an Association of Employees of
the petitioner which was persuading for application of the
reservation policy to the petitioner at various levels. During tenure
of administrator, the representations were made to follow the
reservation policy in the matter of recruitment. Writ Petition No.
5428 of 2006 was filed by the respondent no. 5 for the directions
against administrator to implement a reservation policy. It was
disposed of with directions to consider the representations. The
respondent no. 5 also made representation to the respondent no. 2
- Divisional Commissioner which was not responded to favourably.
Ultimately, the respondent no. 5 made a representation to the
respondent no. 1 and the impugned order was passed on
08.11.2010.
6. After the order was passed by the respondent no. 1 on
08.11.2010, the respondent no. 3 - Divisional Deputy Registrar
instructed the petitioner by letter dated 12.06.2018, for taking
steps to fill up backlog by adverting to the policy of reservation. It is
a common contention of the petitioner in both the petitions that the
petitioner is not covered by definition of Section 2 (c) provided
under Reservation Act. It is further submitted that there is no share
holding by the State Government in the petitioner - Society. The
petitioner is not controlled by the Government, therefore, the
Reservation Act cannot be made applicable to the establishment of
the petitioner.
7. The respondents have filed affidavits-in-reply to contest
the contentions and the prayers of the petitions. The respondent
no. 5 has filed a separate affidavit-in-reply opposing the claim of
the petitioner.
8. It is contended that the petitioner was extended
financial assistance of Rs. 6.25 Crores by Government Resolution
dated 21.06.1996. The condition no. 9 was incorporated in the
resolution mandating implementation of reservation policy in the
recruitment to be undertaken by the petitioner. Thereafter, a
reference is made to the correspondence amongst the respondents
for implementing the reservation policy and for following the roster.
It is contended that due to the persuasion of the respondent no. 5
the impugned order dated 08.11.2010 was passed by the
respondent no. 1 bringing the petitioner within the purview of the
Reservation Act.
9. The petitioner has filed rejoinder stating that Rs. 6.25
Crore was disbursed as a loan and it was repaid by the petitioner. It
is further contended that the petitioner is not a public authority as
contemplated by the Reservation Act. There is no attribute of share
holding by the Government. The averments in the reply are denied.
An additional affidavit is also filed stating that there is no share
holding by the government, which is tried to be demonstrated by
referring to an annual report. The breakup of the posts occupied
and vacant is provided in the additional affidavit.
10. The respondent no. 5 has filed additional affidavit-in-
reply bringing on record certain documents which have a material
bearing over the merits of the matter. It is stated in paragraph no.
(8) at page no. 224 that by memorandum dated 16.09.1975, 9
Hector and 65 Are of land was allotted to the petitioner by the
Government. Thereafter, again land measuring 7 Hector and 29 Are
was allotted on 24.07.1975 to the petitioner. The land allotted to
the petitioner was mutated in the right of record and the
possession was also handed over. The petitioner is in possession of
the lands. It is contended that the explanation attached to Section
2 (c) of the Reservation Act is applicable and brings the petitioner
society within its purview.
11. It is further stated in the additional affidavit that the
financial assistance was given from time to time to the petitioner
by the State Government. By Government Resolution dated
16.09.2016, an amount of Rs. 24.70 Crore was sanctioned under
Rashtriya Krishi Vikas Yojana and disbursed to petitioner. The
shareholding of the Government is reflected in the annual report
which is shown to be Rs. 20 Crores at the relevant time. Besides the
direct financial assistance, the petitioner also received subsidy of
Rs. 5/- per litre which was modified to Rs. 3/-. To demonstrate the
extension of subsidy, the Government Resolutions dated
08.03.2019, 31.07.2018 and 17.09.2018 are placed on record.
Thus, it is a case of the respondents that the petitioner is bound to
follow the policy of the reservation and the respondent no. 1 has
rightly held that Reservation Act is applicable.
12. Learned counsel for the petitioner has relied upon the
following judgments :
i) The order dated 09.02.2021 passed in Civil Application No.
14334 of 2019 in Writ Petition No. 11138 of 2010 ;
ii) Madhya Pradesh Rajya Sahakari Bank Maryadit Versus State
of M.P. and others, 2007 AIR (SC) (Supp) 540 ;
iii) The judgment and order dated 31.07.2018 in Pune Zilla
Sahakari Doodh Utpadak Sangh Versus The State of Maharashtra
and others ;
iv) Chaitanya Pandit Nanaware Versus Jalgaon District Central
Cooperative Bank, PIL No. 108 of 2019 ;
v) Daman Singh and others Versus State of Punjab and others,
(1985) 2 SCC 670.
13. The learned counsels for the respective sides made
submissions in accordance with the pleadings and the documents
placed on record. Having considered the rival submissions and the
documents placed on record a short question falls for the
consideration is "Whether Reservation Act is applicable to the
petitioner - Co-operative Society ?"
14. The petitioner is a Co-operative Society registered
under Maharashtra Co-operative Societies Act, 1960. The petitioner
was allotted lands on two occasions namely vide order dated
24.07.1975 and order dated 23.10.1975. The petitioner was given
financial assistance of Rs. 6.25 Crores by Government Resolution
dated 26.06.1996. From time to time, the financial assistance was
given to the petitioner under National Agricultural Development
Scheme. Besides that subsidy was also given to the petitioner. The
amount of Rs. 6.25 Crores was repaid by the petitioner to the
Competent Authority. These are the relevant and decisive facts to
answer the question involved in the matter.
15. Before adverting to the merits of the matter, it is
appropriate to refer to the following relevant provision of
Reservation Act :
Section 2 (c) : "establishment" means any office
of the Government or of a local authority or
statutory authority constituted under any Act of
the State Legislature for the time being in
force, or a University or a Company, a
Corporation or a Co-operative Society in which
share capital is held by the Government or any
Government aided Institutions.
Explanation. - For the purposes of this clause
the expression 'Government aided institutions"
shall also include institutions or industries
which have been given either prior to coming
into force of this Act or thereafter, aid in the
form of Government land at concessional rates or
any other monetary concessions by Government, or
is recognised, licenced, supervised or
controlled by Government
2 (i) : "public services and posts" means the
services and posts in connection with the
affairs of the State and includes services and
posts in, -
(i) a local authority ;
(ii) a co-operative society established under
the Maharashtra Co-operative Societies Act,
1960, in which Government is a shareholder ;
(iii)a Board or a Corporation or statutory body
established by or under a Central or a State Act
which is owned and controlled by the Government
or a Government Company as defined in Section
617 of the Companies Act, 1956 ;
(iv) an educational institution owned and
controlled by the Government, which receives
grant-in-aid from the Government including a
university established by or under a Maharashtra
Act ;
(v) any establishment ; and
(vi) respect of which reservation was applicable
by Government order on the date of commencement
of this Act and which are not covered under sub-
clauses (i) to (v) ;"
16. It is the submission of the petitioner that to bring the
petitioner within the purview of the Act, it has to be established
that the petitioner - Society, has a share capital of the Government.
The petitioner is Co-operative Society. Our attention is invited to
the affidavit-in-reply filed by the respondent in Writ Petition No.
11431 of 2018. In paragraph no. 6 of the reply, it is specifically
stated that the State Government did not invest any share capital
in the petitioner - Society. It is not shown by the respondents that
for the formation of the petitioner any financial assistance was
extended. It is also not shown that the petitioner since its inception
is getting regular aid from the respondents. The petitioner is a
private entity it cannot be termed as an Government Aided
Institution.
17. The only relevant factor to bring a Co-operative Society
within the purview of the Reservation Act, is sharing of the capital
by the Government. The respondents have placed on record that
the financial aid of Rs. 6.25 Crores was extended to the petitioner,
by Government Resolution dated 21.06.1996. The Government
Resolution is placed on record at Exhibit R-2 in the additional
affidavit of respondent no. 5. An amount of Rs. 6.25 Crore was
given as a loan with the interest at the rate of Rs. 4% per annum
refundable within 11 years. Certain conditions were incorporated in
the Resolution. Later on, it is contended by the petitioner that the
amount was refunded with interest to the respondent. What is
relevant is that amount of Rs. 6.25 Crore cannot be treated to be a
financial assistance on regular basis extended to the petitioner.
Therefore, the said instance cannot be said to be sharing of a
capital by the Government.
18. The respondents have brought on record the financial
aids extended to the petitioner from time to time. It is stated in the
additional affidavit of the respondent no. 5 that an amount of Rs.
24.70 Crore was given to the petitioner for the purpose of dairy
expansion and modernization. It was under National Agricultural
Development Scheme. The assistance provided to the petitioner
vide Government Resolution dated 16.09.2016 cannot be said to be
the permanent aid extended by the respondent authorities. Under
the scheme and for certain developmental and modernization
activity, the funds were given to the petitioner. This cannot change
the character of the petitioner as government aided institution.
19. The respondents have further contended that subsidy
was given to the petitioner from time to time by various
government resolution dated 17.11.2018 31.07.2018 and
08.03.2019. Giving subsidy also cannot be said to be extending
permanent aid to the petitioner. The subsidies were extended in the
year 2018 and 2019. The petitioner was incorporated much earlier
to that. It means that when impugned orders were passed that time
there was no extension of concession or subsidy to the petitioner.
20. The respondents have vehemently submitted that from
time to time financial assistance was given to the petitioner in the
form of loan, funds for the development, subsidy, etc. which
changes the character of the petitioner and is covered by Section
2(c) of the Reservation Act. Whatever the financial assistance
provided to the petitioner cannot partake share capital held by the
Government. Therefore, we are of the considered view that the
petitioner is not covered by Section 2(c) of the Act.
21. It is further canvassed by the respondents, that the
explanation to Section 2(c) covers the aid in the form of
government land given at concessional rate and monetary
concessions given to the petitioner. The explanation relates to the
Government Aided Institutions. The Institutions or the Industries
which are given aid in the form of land at a concessional rate or any
other monetary concession by the Government are covered by the
expression 'Government Aided Institutions'. Therefore, the words
monetary concessions appearing in the explanation are in the
context of Institutions or the Industries. The petitioner is neither
Institution or Industry much less any Government Aided Institution.
Under these circumstances, we are not prepared to accept the
submissions of the respondents.
22. The learned counsel for the respondents have drawn
our attention to the Government orders dated 24.07.1975 and
23.10.1975, which are placed on record. By order dated
24.07.1975, a land measuring 7 Hector and 29 Are was allotted to
the petitioner from Survey Nos. 304, 305, 306, 307 and 308. By
another order, the petitioner was allotted 9 Hector and 65 Are of
land from Survey Nos. 322, 323 and 324. After the allotment, the
formalities were completed and possession was also handed over to
the petitioner. It is submitted that the allotment of the Government
land at a concessional rate brings the petitioner within the purview
of Reservation Act as per explanation to Section 2(c).
23. The words Government land at a concessional rate
appearing in the explanation are used in altogether different
context. If any Institution or the Industry which is given any aid in
the form of Government land at a concessional rate or any other
monetary concessions by the Government falls within the sweep of
Government Aided Institutions and such a Government Aided
Institution is an establishment as per Section 2(c) of the Act. It is
not the purport of the explanation that if a land is allotted at a
concessional rate to any Cooperative Society then such a Co-
operative Society is to be brought within the purview of Section 2(c)
of the Reservation Act. The allotment of a land at a concessional
rate has to be to the Institutions or the Industries, then and then
only it can be said to be a Government Aided Institutions.
Admittedly, it is nobody's case that petitioner is an Institution or
Industry. Therefore, the submissions relying upon the Government
orders allotting land to the petitioner is of no assistance to the
respondents.
24. Learned counsels for the respondents have also invited
our attention to the annual report for 2019 - 2020 in which an
amount of Rs. 20 Crore was shown as the Maharashtra Government
Bhandvali Capital. The stray entry in the report of the 2019-2020
may not be helpful to the respondents to show that there was a
shareholding by the State Government. There is nothing on record
to demonstrate share capital of government in the petitioner -
Society.
25. It was tried to be argued by the respondents that there
is a supervision and control of the respondents - Authorities on the
petitioner. Any Co-operative Society which is incorporated under
the provisions of the Maharashtra Co-operative Societies Act, has a
supervision and control by the Authorities under the provisions of
the Maharashtra Co-operative Societies Act, 1960. Therefore, the
supervision and the control by the Authority is not a decisive
criteria to bring a particular Society within the purview of
Reservation Act. The ingredients of Section 2(c) has to be satisfied.
26. As per Section 4 (2) of the Reservation Act, reservation
is provided to the persons belonging to the various categories for
direct recruitment in the Public Services and the Post specified
under Section 2 (i). The definition clause of Section 2 (i) provides
the meaning of Public Services and Posts. Sub-Clause (ii) of Section
2 (i) reiterates that a Co-operative Society in which the Government
is a shareholder is covered for the reservation. The public services
and the post in the Co-operative Society in which the government is
a shareholder shall be covered by the policy of reservation for
direct recruitment. Thus the decisive factor is shareholding of the
Government which is lacking in the present matter.
27. The learned counsel for the petitioner has relied upon
various judgments and orders to support its submissions. However,
the orders passed in Civil Application No. 14334 of 2019, was an
application for review and the order therein passed by learned
Single Judge may not be useful to decide the question posed in the
present matters. Another order which is relied upon was passed in
Pune Zilha Sahakari Dudh Utpadak Versus State of Maharashtra.
The Writ Petition was admitted and interim relief was granted by
the Division Bench. The order is interlocutory one and cannot be
taken as a decision on the point so as to constitute a precedent.
28. The judgment and order passed in Chaitanya Pandit
Nanaware Versus Jalgaon District Central Co-operative Bank
(supra), clutches the issue involved in the present matters. In that
matter it was held that the provisions of Reservation Act cannot be
made applicable to the Jalgaon District Central Co-operative Bank.
The definition of Section 2(c), Section 4(2) and Section 2(I) were
considered. The paragraph nos. 11, 12 and 17 read as follows :
"11. A bare perusal of the above definition of
'establishment' as contained in Section 2(c) of
the Act No. VIII of 2004 would demonstrate that
the provisions of Act No. VIII of 2004 would be
applicable only to a co-operative society in which
share capital is held by the Government or any
Government Aided Institution. The explanation
further defines the expression "Government aided
institutions" to include institutions which have
been given aid:
(i) in the form of Government Land at
concessional rate or
(ii) any other monetary concessions by the
Government, or
(iii) is (a) recognized, (b) licenced, (c)
supervised or
(d) controlled by the Government.
In order to make the Act No. VIII of 2004
applicable to the respondent No.1, it will have to
be demonstrated that the Government or a
Government aided institution (as clarified in the
Explanation to Sec.2(c) of the Act of 2004) is a
shareholder in the respondent No.1.
12. The above position is fortified from reading
of Section 4(2) of the Act No. VIII of 2004, which
provides for reservation of posts in "Public
Services and posts", specified under clause (j) of
Section 2. The mention of clause (j) of Section 2
in Section 4(2) is obviously a typographical
error, as it is clause 2(i), which defines "Public
Services and Posts" as against clause (j), which
defines "Recruitment Year". Clause (i) of Section
2 reads as under:
"2(i) "Public Services and Posts" means the
services and posts in connection with the affairs
of the State and include services and posts in -
(i)----------
(ii) A co-operative society established under the
Maharashtra Co- perative Societies Act, 1960, in
which Government is a share holder.
It is, thus, apparent that for the purposes
of the provisions of the Act No. VIII of 2004 to
become applicable to a co-operative society
established under the provisions of the
Maharashtra Co-operative Societies Act, 1960, the
necessary requirement is for the Government or a
Government aided institution, to be a share holder
in such a society. This flows not only from the
language of Section 2(c), but also from the
language of Section 2(i),(ii) of Act No. VIII of
2004.
17. This being the position, it is apparent that
the provisions of The Maharashtra State Public
Services (Reservation for Scheduled Castes,
Scheduled Tribes, Denotified Tribes (Vimukta
Jatis), Nomadic Tribes, Special Backward Category
and Other Backward Classes) Act, 2001 i.e. Act No.
VIII of 2004 are clearly not applicable to the
respondent No.1-society, as it does not fall
within the definition of the word 'establishment'
as defined in Section 2(c) of the Act No. VIII of
2004 and, so also, the posts as advertised by it,
are not covered under the definition of 'Public
Services and Posts', as defined in Section 2(i) of
the Act No. VIII of 2004, in the light of the fact
that the Government or a Government aided
institution as per the position on record, is not
a share holder in the respondent No.1-society, as
required by the provisions of Section 2(i)(ii) of
the Act No. VIII of 2004."
29. We respectfully agree with the view. We are further
guided by law laid down by the Supreme court in the matter of
Madhya Pradesh Rajya Sahakari Bank Maryadit Versus State of M.P.
and others (supra). In that matter, the Registrar of the Co-operative
Society had exercised powers under Section 55 and issued orders
for applying the policy of reservation for the recruitment of the
appellant - Bank which was Co-operative Society under Madhya
Pradesh Co-operative Societies Act. That order was challenged
before High Court and was quashed and set aside. Being aggrieved
the appellant - Society had preferred Appeal before the Supreme
Court. The Appeal was dismissed.
30. Like Section 2(c) of the Reservation Act involved in the
present matters, in the matter before Supreme Court the definition
clause of Section 2(b) of Madhya Pradesh Lok Seva (Anusuchit
Jatiyo, Anusuchit Janjatiyo aur Anya Bichde Vargo K Liye Aarakshan)
Abhiniyam, 1994 was under consideration. Section 2 (b) of the Act
of 1994 also contemplated the condition of share holding by the
State Government for falling within the purview of the Act. In that
context, the relevant discussion is in paragraph no. 10, which is as
under :
10. Now, the question before us in the present
case is whether the power exercised by the
Registrar of Co-operative Societies under
Section 55 of the Act of 1960 can be sustained
or not in the light of Act of 1994. Act of 1994
was promulgated by the State Government for the
benefit of providing reservation in the
vacancies in public services and posts in favour
of persons belonging to Scheduled Castes,
Scheduled Tribes and other Backward Classes.
Therefore, this Act only contemplates
reservation in public services. In order to
claim reservation in public offices, the
definition of establishment as mentioned in
Section 2(b) of the Act of 1994 will have to
fulfilled. Section 2(b) of the Act of 1994 reads
as under :
"(b) "Establishment" means any office of the
State Government or of a local authority or
statutory authority constituted under any Act of
the State for the time being in force, or a
University or a Company, Corporation or a
Cooperative Society in which not less than fifty
one percent of the paid up share capital is held
by the State Government and includes a work
charge or contingency paid establishments."
Therefore, Section 2(b) clearly says that the
establishment would include any office of the
State Government or local authority or statutory
authority constituted under the Act of the State
or a University, or a company, Corporation or a
Co-operative Society in which not less than 51
percent paid up share capital is held by the
State Government and including work charge and
contingency paid establishments shall be
'establishment' and in that case reservation can
be made for the members of Scheduled Castes,
Scheduled Tribes and other Backward classes. The
very object of the Act is to provide reservation
in public service and posts. Therefore, it
confined only for reservation in public services
and not any other private institutions. For the
purpose of public service, an establishment
should answer the requirement as given in Section
2(b) of the Act of 1994. Therefore, reading the
object and reason along with the definition of
establishment it clearly transpires in the
context of the Co-operative Society in which the
State Government has paid up share capital of 51
percent or more, then the reservation can be made
in such Co-operative Society. The object & reason
of the Act reads as under:
"An Act to provide for the reservation of
vacancies in public services and posts in favour
of the persons belonging to the Scheduled Castes,
Scheduled Tribes and other Backward Classes of
citizens and for matters connected therewith or
incidental thereto."
Therefore, reading of objective of the Act of
1994 along with the definition of establishment
it transpires that the Registrar under Section 55
of the Act of 1960 can lay down service condition
for Co- operative Society in which the State has
51 percent of share capital. In case any Co-
operative Society in which the State does not
have 51 percent of share capital, then that Co-
operative Society will not come within the
definition of establishment under Section 2(b) of
the Act of 1994 and the Registrar of Co-operative
Societies shall have no power to frame rule for
reservation. It is true that under Section 55 of
the Act of 1960 the Registrar can give direction
for reservation for the Scheduled Castes and
Scheduled Tribes and other Backward classes while
exercising the mandate under Article 16(4-A) of
the Constitution but at the same time he cannot
ignore the State legislation i.e. the Act of
1994. In fact, the Act of 1994 was also
promulgated for achieving the object under
Article 16(4-A) of the Constitution. Once the
State Legislature has framed an Act which is
subsequent legislation in point of time i.e. the
Madhya Pradesh Co- operative Societies Act, 1960
(Act 17 of 1961) came in 1960 whereas the present
Act has come in 1994. It is presumed that
Legislature was aware of the power of the
Registrar of the Co- operative Societies under
Section 55 of the Act of 1960 to frame condition
of service of employees of Co-operative Societies
despite that the Legislature has promulgated the
Act of 1994 and laid down ceiling that the
reservation in favour of Scheduled Castes,
Scheduled Tribes and other Backward classes
should be made in the establishment where
Government has more than 51% share holding. Thus,
on reading of both these two enactments it is
more than clear that the Registrar of Co-
operative Societies under Section 55 of the Act
of 1960 has power to frame rules but at the same
time he cannot ignore the impact of the Act of
1994. The Registrar of Co-operative Societies can
lay down the reservation in favour of Scheduled
Castes, Scheduled Tribes and other Backward
classes as general condition of service only in
Co-operative societies in which the State has
more than 51 percent paid up share capital and
not for any other co-operative societies. But the
notification dated 6.3.1997 is of general in
nature and does not make any distinction with Co-
operative societies which do not have 51 per cent
paid up share capital of State. Therefore, to
this extent the rule framed by the Registrar of
Co-operative Societies, Madhya Pradesh by
notification dated 6.3.1997 cannot be upheld and
the same is struck down. But by this it does not
mean that the Registrar of Co-operative
Societies, Madhya Pradesh is not denuded of his
power to frame rules but he will have to keep in
view the impact of the Act of 1994."
31. In the present matter also, we find that Reservation Act
is a state legislation which is subsequent to the Maharashtra Co-
operative Societies Act, 1960. The Reservation Act has laid down
condition that the reservation in favour of Scheduled Caste,
Scheduled Tribe and other Backward Classes should be made
applicable to the establishment when Government is holding share
capital in the establishment. We are fortified in holding that the
considering provisions of Section 2(c), 2(I), Section 4 (2) of the
Reservation Act, the petitioner - Society does not fall within its
purview. Accordingly, we answer that the Reservation Act cannot be
made applicable to the petitioner Co-operative Society.
32. Considering our analysis, we pass following order :
ORDER
i. The order dated 08.11.2010 passed by the
respondent no. 1 from Writ Petition No. 11138 of
2010 and the communication dated 12.06.2018,
issued by Divisional Deputy Registrar, Nashik, from
Writ Petition No. 11431 of 2018, are quashed and
set aside.
ii. It is held and declared that the Maharashtra
State Public Services (Reservation for Scheduled
Castes, Scheduled Tribes, Denotified Tribes
(Vimukta Jatis), Nomadic Tribes, Special Backward
Category and Other Backward Classes) Act of
2001, does not apply to the petitioner - Society.
iii. It is clarified that this judgment shall not
affect the appointments which are already made
by the petitioner during pendency of these
petitions.
iv. The Rule is made absolute in above terms.
v. There shall be no order as to costs.
vi. Pending Civil Applications are disposed of.
[ SHAILESH P. BRAHME, J. ] [ MANGESH S. PATIL, J. ]
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