Delhi High Court
M.R. Bhardwaj & Anr. vs Delhi State Cooperative Bank Ltd. ... on 26 August, 2011
Author: S. Muralidhar
IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P. (C) 4163/1992
Reserved on: August 16, 2011
Decision on: August 26, 2011
M.R. BHARDWAJ & ANR. ..... Petitioners
Through Mr. Sunil Malhotra with
Mr. Rajesh Kaushik, Advocates.
versus
DELHI STATE COOPERATIVE BANK LTD. & ORS. ..... Respondents
Through Mr. Anand Yadav with
Ms. Anita Tomar, Advocates for R-1.
Ms. Sujata Kashyap with
Mr. A. K. Singh, Advocates for R-2.
W.P. (C) 396/1993
UMED SINGH DAHIYA ..... Petitioner
Through Mr. Sunil Malhotra with
Mr. Rajesh Kaushik, Advocates.
versus
DELHI STATE COOPERATIVE BANK LTD. & ORS. ..... Respondents
Through Mr. Anand Yadav with
Ms. Anita Tomar, Advocates for R-1.
Ms. Sujata Kashyap with
Mr. A. K. Singh, Advocates for R-2.
CORAM: JUSTICE S. MURALIDHAR
1. Whether Reporters of local papers may be
allowed to see the judgment? No
2. To be referred to the Reporter or not? No
3. Whether the judgment should be reported in Digest? No
JUDGMENT
26.08.2011
1. W.P. (C) No. 4163 of 1992 has been filed by Mr. M. R. Bhardwaj on 25th November
1992 seeking quashing of seniority list and office order dated 17th November 1992
issued by Respondent No. 1, Delhi State Cooperative Bank Limited ('the Bank'), in
relation to accounts officers of the Bank.
2. Rule was issued in the writ petition on 10th November 1993 and the interim order
dated 11th December 1992, to the effect that any promotion made shall be subject to
further orders, made absolute.
3. W.P. (C) 396 of 1993 was filed by Mr. Umed Singh Dahiya on 18th January 1993
seeking quashing of the same seniority list dated 17th November 1992. In this writ
petition rule was issued on 19th July 1993.
4. In the counter affidavit filed in both the writ petitions, a preliminary objection was
raised to the maintainability of the writ petitions against the Bank. Inter alia, it was
contended by Respondent No. 1 Bank that the decision to promote Respondents 4 to 11
as accounts officer from the grade of clerk/supervisor was taken by the Board of
Directors of the Bank in terms of the rules and bye-laws of the Bank. The bye-laws of
the Bank have no force of law and the same cannot be enforced by way of a writ
petition under Article 226 of the Constitution. Secondly, it is submitted that conditions
of service are a matter of contract, and contractual obligations cannot be enforced under
Article 226 of the Constitution. It is denied that there is any perversity in the control
and affairs of the Bank by the Government of National Capital Territory of Delhi
('GNCTD') or that rules applicable to the central government employees are applicable
to the Bank or its employees. Relying on the decisions in U.P. State Co-operative Land
Development Bank Limited v. Chander Bhan Dubey (1991) 1 SCC 741, Supriya Basu
v. West Bengal Housing Board (2005) 6 SCC 289 and S.S. Rana v. Registrar,
Cooperative Societies (2006) 11 SCC 634 it was submitted that writ petition against
Respondent No. 1 Bank, which is in fact a co-operative society, is not maintainable.
Reliance is also placed on the decisions of this Court in Mohinder Singh v. D.P. Khatri
51 (1993) DLT 592, Shamrao Vithal Co-operative Bank Ltd. v. Padubidri
Pattabhiram Baht AIR 1993 Bom 91, Banabihari Tripathy v. Registrar of Co-
operative Societies AIR 1989 Ori 31, and P. Bhaskaran v. Additional Secretary,
Agriculture (Co-operation) Department, Trivandrum AIR 1988 Ker 75.
5. Countering the above submissions Mr. Sunil Malhotra, learned counsel appearing for
the Petitioners refers to the cases involving the Respondent No. 1 Bank where this
Court has entertained the writ petitions. Reference was made to the decision in DESCO
Cooperative Industrial Society Limited v. Delhi State Cooperative Bank Limited 61
(1996) DLT 316, Kanak Rastogi v. Delhi State Cooperative Bank [W.P. (C) No. 112
of 1993 decision dated 27th August 1993] and N.R. Jyotshi v. The Lt. Governor of
Delhi [W.P. (C) 2122 of 1993 decision dated 6th April 1994]. It is submitted that even if
the alternative remedy is available, jurisdiction of the High Court under Article 226 is
not ousted. Reliance is place on the decisions in L. Hirday Narain v. IT Officer,
Bareilly AIR 1971 SC 33, Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya
Mahavidyalya Sitapur (UP) (1988) 1 SCR 357, M/s. Baburam Prakash Chandra
Maheshwari v. Antarim Zila Parishad now Parishad Muzaffarnagar AIR 1969 SC
556, Rohtas Industries Limited v. Rohtas Industries Staff Union AIR 1976 SC 425,
Ram Prakash & Co. v. New Delhi Municipal Committee 64 (1996) DLT 625 (DB) and
Anand Prakash v. The Delhi State Cooperative Bank Limited [W.P. (C) 105 of 2010
dated 20th April 2011]. It is stated that inasmuch as the Bank is performing a public
function and public duty, it is amenable to the writ jurisdiction under Article 226 of the
Constitution. Reliance is placed on the decisions in Shri Anadi Mukta Sadguru Shree
Muktajee, Vandas Swami Swaranjayanti Mahotsav Samark Trust v. V.R. Rudani
AIR 1989 SC 1607, Chander Bhan v. Delhi State Cooperative Bank Limited 94
(2001) DLT 726 and Sanjay Bhaskar v. Union of India [W.P. (C) 1993 of 1989 dated
20th April 2009].
6. Reliance is also placed upon the decisions in Kerala State Electricity Board v.
Kurien E. Kalathil (2000) 6 SCC 293 and Ganga Retreat and Towers Ltd. v. State of
Rajasthan (2003) 12 SCC 91 to urge that rule has been issued in the writ petition more
than eighteen years ago the High Court ought not to reject, at the stage of final hearing,
the writ petition only on the ground of maintainability.
7. This Court has heard the arguments of learned counsel for the parties essentially on
the maintainability of writ petition on 16th August 2011. There are a large number of
precedents cited in the order dated 20th April 2011 in W.P. (C) No. 105 of 2010 [Anand
Prakash v. The Delhi State Cooperative Bank Limited] where a learned Single Judge
concluded that writ petition against Respondent No. 1 Bank was not maintainable. The
decision appears to turn essentially on the decision in S.S. Rana v. Registrar,
Cooperative Societies concerning the Kangra Central Co-operative Bank Limited. The
said decision does not however take note of the pronouncement of the Division Bench
of this Court in Kanak Rastogi v. The Delhi State Cooperative Bank Limited where a
preliminary objection to the maintainability of the writ petition was rejected in view of
the earlier decision of this Court in Kuldip Mehta v. Union of India 1993 (2) Delhi
Lawyer 196. It also does not take into account the decision of this Court in Chander
Bhan v. Delhi State Cooperative Bank Limited wherein the writ petition was
entertained against Respondent No. 1 Bank.
8. Be that as it may, considering the fact that the two writ petitions were filed more than
eighteen years ago and rule was issued in both petitions in 1993 itself, it is not
considered expedient to reject these petitions only on the ground of maintainability.
After waiting for 18 years in this Court it would be unreasonable to require the
Petitioners to seek alternative remedies by way of a civil suit.
9. Consequently, the preliminary objection as to the maintainability of the writ petitions
is rejected in the peculiar facts and circumstances of these cases. It is however clarified
that it will be open to Respondent No. 1 Bank to urge the ground of maintainability in
any other appropriate writ petition against it without the present decision being a
precedent.
10. The writ petitions will now be set down for final hearing on 13th October 2011.
S. MURALIDHAR, J.
AUGUST 26, 2011
rk
