Calcutta High Court (Appellete Side)

Digbijoy Singha Jana vs The State Of West Bengal & Ors on 1 August, 2022

   D/L
Item No. 4
01.08.2022
 KOLE
                              MAT 186 of 2021
                                  With
                            IA No. CAN 1 of 2021
                           Digbijoy Singha Jana
                                    -Vs.-
                       The State of West Bengal & Ors.


             Mr. K. K. Pathak,
             Mr. M. M. Roy
                                                        ... for the appellant.

             Mr. Pradip Kumar Roy,
             Mr. J. Roy,
                                                               ... for the State.

             Mr. Soumen Kr. Dutta,
             Mr. S. Chatterjee,
             Mr. S. Dutta,
             Mr. A. Kundu,
                                                          ... for the Society.



                     By consent of the parties the appeal and the

              application are taken up for hearing together.

                     This appeal is directed against a judgment and order

              dated February 8, 2021, whereby WPA No. 209 of 2021 was

              disposed of. The operative portion of the order under appeal

              reads as follows:-

                           "This court, therefore, directs the Society to
                           complete the process of publication and
                           intimation to the employment exchange of the
                           recruitment to the post of Manager within 15
                           days from date. Rule 105 shall be strictly
                           complied with in letter and spirit by the
                           Society.

                           The petitioner shall be entitled to participate
                           in the new recruitment process.

                           The entire process of recruitment after strictly
                           following the Rules in question shall be
                           completed by the Society within two months
                           from date."
                                 2




       The respondent no. 5, Khagda Samabay Krishi

Unnayan Samity Ltd. (in short the ''Samity'') is a Cooperative

Credit Structure Entity. It conducted a selection process for

appointment to the post of Manager. The appellant

participated in such process. Since the result of the

selection process was not being published, the appellant

approached the Assistant Registrar of Cooperative Societies.

Upon being called upon to explain as to why the result of the

selection process was being withheld, the Samity apprised

the Assistant Registrar that the recruitment process stood

cancelled pursuant to a decision taken in March, 2020.

Fresh selection process could not be initiated by reason of

the intervening pandemic. The reasons cited for cancellation

of the selection process were that Rule 105 (1) of the West

Bengal Cooperative Societies Rules, 2011 requiring

publication of advertisement at least in one national daily

newspaper and communication to the Local Employment

Exchange, had not been complied with.

It appears that the appellant scored the highest mark

in the selection process. Contending that the aforesaid

reasons are not good grounds for cancellation of the

selection process, the appellant approached the learned

Single Judge. The learned Judge disposed of the writ

petition by giving directions which have been noted above.

Being aggrieved, the writ petitioner is before us by way of

this appeal.

Rule 105 (1) of 2011 Rules reads as follows:-

"105 (1). Subject to the provisions of rule 104A, all co-operative societies shall notify their

vacancies, other than those required to be reported to the Co-operative Service Commission, through publication of advertisement at least in one national daily newspaper, and to the Local Employment Exchange or to the Director, National Employment Exchange, as the case may be, and ask for names of suitable candidates in terms of the qualifications required of such candidates."

Leaned Advocate for the appellant says that the

District Employment Exchange, Egra, East Medinipur, was

made aware of the vacancy in the post of Manager but it was

not in a position to sponsor candidates since no suitable

candidate had applied for the concerned post till November

21, 2019. This would appear from a letter written by the said

Employment Exchange to the Secretary of the Samity, copy

whereof is annexure "P-3" to the stay application. Hence,

the contention that the Local Employment Exchange was not

informed is factually incorrect.

Learned Advocate further submits that in any event,

by reason of Sections 134A and 134C of the West Bengal

Cooperative Societies Act, 2006 (in short the "2006 Act")

read with Rule 104A of the 2011 Rules, Rule 105 shall not

apply to the Samity. Sections 134A and 134C (2) of the 2006

Act read as follows:-

"134A. Overriding effect.-Notwithstanding anything contrary or inconsistent contained in this Act or the rules framed thereunder or by- laws of any registered society or orders issued thereunder, the provisions of this Chapter shall have overriding effect.

134C(2). A Co-operative Credit Structure Entity shall have autonomy in all financial and internal administrative matters including the following areas :-

(a) interest rates on deposits and loans;

(b) borrowing and investments;

(c) loan policies and individual loan decisions;

(d) personnel policy, staffing, recruitment, posting and compensation to staff;

(e) internal control systems, appointment of auditors and compensation for the audit;

Provided that in the case of co-operative Credit Structure Entities other than the State Co-operative Agriculture and Rural Development Bank and Co-operative agriculture and rural development bank, the interest rates on deposits and loans shall be in conformity with the guidelines issued by the Reserve Bank of India:

Provided further that in the case of the state Co-operative agriculture and rural development bank and Co-operative agriculture and rural development banks, the interest rates on deposits and loans shall be in conformity with the guidelines issued by the National Bank."

Rule 104A of the 2011 Rules reads as follows:-

"104A. Creation of posts.-(1) The board of a cooperative society may from time to time create posts of different categories of employees and officers subject to the provisions of section 43, to assist the cooperative in the performance of its duties and discharge of its function and such creation of posts shall only be made with the approval of the General Body.

(2) The board of a cooperative society shall appoint subject to sub-section (5) of section 94, such officers and other employees in the post created under sub-rule (1).

(3) Nothing contained in this rule shall apply to co-operative Credit Structure Entity which shall have freedom to make its own policy on recruitment, posting and compensation to staff."

Learned Advocate submits that the provisions of

Chapter XIIIA of the 2006 Act which include Sections 134A

and 134C have overriding effect. Section 134C(2)(d) of the

2006 Act gives autonomy to a Cooperative Credit Structure

Entity like the Samity in all financial and internal

administrative matters including personnel policy, staffing,

recruitment, posting and compensation to staff. Similarly,

according to learned Advocate, Rule 104A (3) of the 2011

Rules gives complete freedom to the Samity to make its own

policy on recruitment, posting and compensation to staff.

In this connection, learned Advocate submits that

Chapter XIIIA was introduced in the 2006 Act by way of

amendment by Section 2 of the West Bengal Cooperative

Societies (Amendment) Act, 2010 with effect from January

18, 2011. The statement of objects and reasons of the said

Act reads as follows:-

"It has been considered necessary and expedient to amend the West Bengal Co- operative Societies Act, 2006 with a view to reviving the Short Term Rural Co-operative Credit Structure and making it a well managed and vibrant medium to serve the credit needs of rural populace especially the small and marginal farmers, and to bring the system to an acceptable level of health by way of introducing legal and institutional reforms necessary for their democratic, self-reliant and efficient functioning and also taking measures to improve the quality of management."

Learned Advocate for the appellant submits that

keeping in mind the object of the 2010 amendment Act, the

provisions of Chapter XIIIA of the 2006 Act and Rule 104A

of the 2011 Rules should be given an interpretation which

will uphold complete autonomy of a Cooperative Credit

Structure Entity like the Samity in matters of recruitment.

Hence, it is not necessary for an entity like the Samity to

advertise the vacancy in a post in a national daily newspaper.

Further, the consolidated pay for the post being Rs. 9,000/-

only, no person from outside the State of West Bengal would

apply for the post or participate in the selection process.

Learned Advocate submits that the grounds for cancellation

of the selection process being not sustainable in law, such

cancellation ought to be set aside and the selection process

should be carried to its logical conclusion by granting

appointment to the candidate who performed the best, i.e,

the appellant.

We have not called upon the respondents to make

submissions as we are of the considered view that Rule 105

of the 2011 Rules very much applies to entities like the

Samity. No doubt, Section 134A of the 2006 Act gives

overriding effect to the provisions of Chapter XIIIA of the

said Act. However, a non-obstante clause comes into play

only when there is a conflict between two provisions of a

statute or similar provisions in two similar statutes. In case

of such a conflict, the provision which has been given

overriding effect by incorporating therein a non-obstante

clause, prevails over the other provision which is in conflict.

In the present case, Section 134C(2)(d) of the 2006

Act gives autonomy to an entity like the Samity in the matter

of recruitment. Hence, the requirement in Rule 105 of the

2011 Rules that a vacancy has to be reported to the Local

Employment Exchange for sponsoring candidates, may not

apply to an entity like the Samity to the extent there is a

conflict between the two provisions. In any event, a Rule

framed under a statute must yield to a substantive section of

the statute. However, this issue is academic in the present

case as it appears from the records that the District

Employment Exchange was informed about the vacancy in

the post of Manager. The Employment Officer-in-Charge of

the said Employment Exchange wrote to the Secretary of the

Samity on November 22, 2019 intimating that the

Employment Exchange was not in a position to sponsor any

candidate for the vacancy.

In so far as the requirement of publication in a

national daily newspaper is concerned, we are of the view

that the same ought to be followed by an entity like the

Samily. There is no conflict between this requirement in

Rule 105 of the 2011 Rules and the provisions of Rule 104A

or Section 134C(2)(d) of the 2006 Act. None of the said

provisions spell out as to how recruitment is to be made by

an entity like the Samity. It is one thing to frame a policy

and another to frame Rules for implementation of such

policy. While Section 134(C)(2)(d) of the 2006 Act and Rule

104A of the 2011 Rules grants autonomy to an entity like the

Samity to frame its own policy of recruitment, those

provisions are silent as regards the process of recruitment.

Recruitment to a public post must be done following a

completely transparent procedure and ensuring that the

factum of vacancy in the post concerned is circulated

amongst the maximum number of people. This would

ensure that all aspiring candidates get an opportunity of

participating in the selection process, be he/she a resident of

the State of West Bengal or a resident of any other part of the

country. Such wide circulation would also enhance the

possibility of the most meritorious and deserving of the

aspiring candidates being selected for the post in question.

Article 16 of the Constitution of India, in so far as the

same is relevant for the present purpose reads as follows:

"16. Equality of opportunity in matters of public employment._ (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State."

The equality of opportunity enshrined in Article 16, in

our opinion, extends to employment or appointment to any

office under a statutory or public authority.

In view of the aforesaid, we are unable to accept the

appellant's contentions. Further, even accepting the

appellant's submission that he ranked first amongst the

successful candidates, that per se would not give him a

vested right to be appointed irrespective of there being

infraction of statutory rules pertaining to conduct of the

selection process. The learned Judge directed completion

of the selection process within two months from the date of

the order impugned after complying with all statutory rules.

At the time of admission of this appeal, a Coordinate Bench

passed an order on February 25, 2021, the material portion

whereof reads as follows:-

"Accordingly, while the parties are permitted to file their respective affidavits-in-opposition and Reply respectively within a period of two weeks from this date and a further period of one week thereafter, the fresh recruitment exercise on the terms as directed to be

conducted by the Hon'ble Single Bench shall continue with the caveat that the said Cooperative Society/the respondent nos. 5, 6, 7 and 8 to this appeal shall take leave of this Court before giving appointment to any successful candidate."

We are told that the fresh selection process has been

completed but no appointment has been given to the best

candidate in view of the aforesaid interim order. It is

pertinent to note that the appellant chose not to participate

in the selection process. He says that he did not do so since

that would have made his present appeal infructuous. This

is a misconceived stand. He could have participated in the

selection process without prejudice to his rights and

contentions in the present appeal.

In view of the aforesaid, we find no infirmity in the

order under appeal. The appeal and the connected

application are, accordingly, dismissed. Naturally, the