Punjab-Haryana High Court
Davinderpritpal Singh vs State Of Punjab And Ors on 15 March, 2024
Neutral Citation No:=2024:PHHC:033852
CWP No.4262 of 2017 (O&M)
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2024:PHHC:033852
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.4262 of 2017 (O&M)
Reserved on: 07.03.2024
Pronounced on: 15.03.2024
Davinderpritpal Singh
....Petitioner
Versus
State of Punjab and others
....Respondents
CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR
Present: Mr. Gurnam Singh, Advocate
for the petitioner.
Mr. Teevar Sharma, AAG, Punjab.
Mr. Nitin Kaushal, Advocate
for respondent No.3.
Mr. Naginder Singh Vashist, Advocate
for respondent No.4.
None for respondent No.5.
NAMIT KUMAR J. (Oral)
1. The petitioner has filed the present petition under Articles
226/227 of the Constitution of India, seeking a writ of certiorari for
quashing the order dated 02.11.2016 (Annexure P-6), passed by
respondent No.1 and order dated 01.02.2016 (Annexure P-5A) (wrongly
mentioned as 20.01.2016 in the petition), passed by respondent No.2
and order dated 08.10.2015 (Annexure P-5), passed by Board of
Directors of respondent No.4 - Bank, whereby the claim of the
petitioner for grant of 01 year extension in service, has been rejected.
Further a writ of mandamus has been sought for directing the
respondents to permit the petitioner to continue in service for 01 year till
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31.01.2015.
2. Brief facts, as have been pleaded in the petition, are that the
petitioner was employed as Clerk in year 1986 with respondent No.4 -
The Patiala Central Cooperative Bank Limited, Patiala, and he was
lastly working as an Assistant Manager. He was to retire on 31.01.2014,
on attaining the age of superannuation of 58 years as his date of birth
was 23.01.1956. He submitted an application along with his option for
extension of 01 year in service on 27.01.2014 and the said application
was rejected by respondent No.4, vide order dated 29.01.2014
(Annexure P-2) on the ground that the same was to be submitted within
03 months prior to the date of completion of 58/60 years.
Aggrieved against the said order, the petitioner filed CWP
No.3313 of 2014, titled as "Davinder Pritpal Singh vs State of Punjab
and others", on the ground that the order of rejection was passed by the
District Manager of the Bank i.e. respondent No.4, whereas the
appointing and punishing authority of the petitioner was the Board of
Directors of the Bank. The said writ petition was dismissed vide order
dated 04.08.2015, being not maintainable, however, the petitioner was
given liberty to avail alternative remedy under the Punjab Cooperative
Societies Act, 1961 and Rules of 1963 and if any such petition before a
competent authority is filed within a period of 03 months, the competent
authority would not raise the question of limitation. Consequently, the
petitioner filed a petition before the Registrar, Cooperative Societies,
Punjab, on 24.08.2015 and the same was dismissed vide order dated
08.09.2015 (Annexure P-4), on the ground that no provision of law has
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been mentioned in the petition and the petitioner has filed an incomplete
petition, however, he was advised to approach the Board of Directors
for redressal of his grievances.
Thereafter, the petitioner filed an application before the
Board of Directors of the Bank on 10.09.2015 and the same was
dismissed by it in the meeting held on 08.10.2015 (Annexure P-5).
Thereafter, the petitioner filed a revision petition under
Section 69 of the Punjab Cooperative Societies Act, 1961 read with
Rule 45 of the Punjab Cooperative Societies Rules, 1963, before the
Additional Registrar (General), Cooperative Societies, Punjab,
Chandigarh, and the same was dismissed vide order dated 01.02.2016
(Annexure P-5A) (wrongly mentioned as 20.01.2016 in the petition).
Thereafter, the petitioner filed a revision petition before
respondent No.1 - Special Secretary, Department of Cooperation,
Punjab, Chandigarh, which was also dismissed vide order dated
02.11.2016 (Annexure P-6), by recording the following finding:-
"XXXX XXXX XXXX XXXX
A perusal of the above clearly shows that the option
is to be exercised before attaining the age of 58 years. The
petitioner had completed 58 years on 22.01.2014, whereas
the application was given by him on 27.01.2014 i.e. after
attaining the age of 58 years. Moreover, as of now the
period of two years has already passed on 31.01.2016. The
petitioner had filed the present revision on 26.02.2016 i.e.
after the expiry of the period of extension. On this ground
alone the present revision petition becomes infructuous.
Therefore, I do not find any merit in the revision petition,
hence the same is dismissed.
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Case was reserved for orders on 06.10.2016, which
is announced and signed today. Parties be informed.
Announced Sd/-
02.11.2016 (Gurneet Tej)
Special Secretary Cooperation
Punjab, Chandigarh."
Aggrieved against the order dated 02.11.2016 (Annexure
P-6), order dated 08.10.2015 (Annexure P-5) and order dated
01.02.2016 (Annexure P-5A) (wrongly mentioned as 20.01.2016 in the
petition), the petitioner has filed the present writ petition.
3. Learned counsel for the petitioner submits that since the
petitioner had submitted the application for extension in service for 01
year before his date of retirement i.e. 31.01.2014, therefore, he was
entitled to continue in service upto 31.01.2015 and his claim has
wrongly been rejected by the respondents.
4. Per contra, learned counsel for the respondents submits that
the present writ petition is not maintainable against respondent No.4 as
the Bank is neither an instrumentality of the State nor any other
authority as defined under Article 12 of the Constitution of India.
Learned counsel for the respondents further submits that since the
petitioner was required to submit his application 03 months before his
date of retirement and the petitioner submitted the said application 04
days before his retirement and that too, not on the prescribed proforma,
the same has rightly been rejected. He further submits that on
26.12.2013, the petitioner had applied for release of his Provident Fund
wherein his date of retirement was also mentioned as 31.01.2014 and
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the same was also verified by the concerned officer, therefore, the
petitioner cannot claim extension of 01 year in service.
5. I have heard learned counsel for the parties and perused the
record with their able assistance.
6. Admittedly in terms of the Notification dated 08.10.2012,
which was regarding extension of 01 year in service of the employees of
Punjab Government, a clear-cut condition was incorporated that the
extension shall be given only to those employees who give their option
as per specified proforma attached with the said letter, which can be
given to the Head of the Office within 03 months prior to completing
the date of age of 58/60 years. The relevant portion from the said
Notification dated 08.10.2012, reads as under:-
"Subject: Regarding extension of one year in
services of the employees of the Punjab Government.
Respected Sir,
I have been directed to bring the above mentioned
subject into your kind notice that in view of Clause (a) and
Clause (b) of Rule 3.26 of Volume 1, Part-1 of the Punjab
Civil Services Rules, the Hon'ble Governor of Punjab has
pleased to accord his approval to give one year extension
in service period of employees of Group "A", Group "B",
Group "C", Group "D" of the Punjab Government. The
extension in service shall be as per the below mentioned
terms and conditions:-
(a) This extension shall be given only to
those employees who give their option as per the
specified performa attached with this letter. In view
of Clause (a) of Rule 3.26 of Volume 1, Part-1 of the
Punjab Civil Services Rules, the desired option can
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be given to the Head of his Office within 3 months
prior to completion of the date of age of 58/60 years,
provided that those employees in whose retirement
there is less than three months are remaining they
can give their option at any time from the date of
issuance of this letter. The option once given shall be
deemed to be final and no permission shall be
granted to amend the same.
X X X X X X
2. These instructions of one year extension in service
shall be applicable to those employees whose date of
retirement falls on 31st October, 2012 or thereafter.
Sd/-
(Mohinder Singh Prashar)
Under Secretary, Finance."
Whereas, petitioner has given option four days before his
date of retirement i.e. 31.01.2014.
7. Maintainability of the Writ Petition
The issue of maintainability of writ petition against
respondent No.4 - Bank has already been considered by this Court in
CWP No.3313 of 2014 (Annexure P-3), filed by the petitioner wherein
it has been held as under:-
"XXXX XXXX XXXX XXXX
Respondent No.3- The Central Cooperative Bank
Ltd. (fort short 'the Bank') is a Cooperative Society
registered under Punjab Cooperative Societies Act 1961
(for brevity 'the Act'). The bank has not been established or
constituted by or under the Constitution of India; by any
other law made by the Parliament; by any other law made
by the State Legislature. The Bank being a cooperative
society is not owned, controlled or managed by the
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appropriate government.
The cooperative society is not an authority within
the meaning of Article 12 of the Constitution of India. This
Court in the case of Ranjit Singh Vs. The Registrar
Cooperative Societies, Punjab, Chandigarh and another-
2010(4) Services Cases Today 750 (Punjab and Haryana)
held that no writ is maintainable against the Punjab State
Cooperative Bank Ltd., Chandigarh. Relevant paras of this
judgment read as under:-
(8) I am of the considered view that the present writ
petition would not be maintainable against
respondent No.2/the Punjab State Cooperative Bank
Ltd. as the case of the respondent/Cooperative Bank
would be covered by the judgments of Hon'ble the
Supreme Court in the cases of General Manager
Kisan Sahkari Chini Mills, Sultanpur, UP (Supra)
and S. S. Rana (supra). In the present case, the share
money of the State Government in the
respondent/Cooperative Bank at the relevant time
was merely 0.78%, whereas at present it is only
0.36%. There is nothing on the record to suggest that
the control over the Society is of the State
Government. The tests as laid down in S.S. Rana's
case (supra), Hon'ble Supreme Court has in para-10
held as follows:-
"(10) It has not been shown before us that the
State exercises any direct or indirect control
over the affairs of the Society for deep and
pervasive control. The State furthermore is not
the majority shareholder. The State has the
power only to nominate one director. It
cannot, thus, be said that the State exercises
any functional control over the affairs of the
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society in the sense that the majority directors
are nominated by the State. For arriving at
the conclusion that the State has a deep and
pervasive control over the Society, several
other relevant questions are required to be
considered, namely (1) How the society was
created?: (2) Whether it enjoys any monopoly
character?: (3) Do the functions of the Society
partake to statutory functions or public
functions?: (4) Can it be characterized as
public authority?:"
(9) None of these tests are fulfilled by the
Cooperative Bank."
The Hon'ble Supreme Court of India in a case
reported as JT 2003(8) SC 235 - General Manager, Kisan
Sahkari Chini Mills Ltd. Sultanpur, UP Vs. Satrughan
Nishad and Ors. (Page No.1 to 5 of compilation of
judgments) has held that even if share money of the
Government is 50% and government nominates three
directors on the Board and appointments a person to be the
Managing Director, even then the writ is not maintainable
against the cooperative society. In an another judgment of
the Hon'ble Supreme court of India reported in JT 2006(5)
SC 186 titled as S. S. Rana Vs. Registrar, Cooperative
Societies and another, it has been held by the Hon'ble
Supreme Court of India that no writ is maintainable
against the Kangra Central Cooperative Bank Ltd.
Kangra, wherein it has been held as under:-
"(10) It has not been shown before us that the State
exercises any direct or indirect control over the
affairs of the Society for deep and pervasive control.
The State furthermore is not the majority
shareholder. The State has the power only to
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nominate one director. It cannot, thus, be said that
the State exercises any functional control over the
affairs of the society in the sense that the majority
directors are nominated by the State. For arriving at
the conclusion that the State has a deep and
pervasive control over the Society, several other
relevant questions are required to be considered,
namely (1) How the society was created ?; (2)
Whether it enjoys any monopoly character ?; (3) Do
the functions of the Society partake to statutory
functions or public functions ?; (4) Can it be
characterized as public authority ? (para 10)"
Again pertaining to the Hoshiarpur Central
Cooperative Bank Limited a Division Bench of this Court
while deciding Som Nath and others Vs. The Deputy
Registrar Cooperative Societies-2012(4) PLR 262 has
held that "the Cooperative Bank, Hoshiarpur" is not an
authority or an instrumentality of the State within the
meaning of Article 12 of the Constitution of India.
Vide judgment passed in CWP No.10054 of 2013-
Baldev Krishan Gupta Vs. State of Punjab, this Court has
also held that no such writ petition is maintainable against
a Cooperative Society.
Keeping in view the above discussion, it is held that
no writ is maintainable against the respondent No.3-The
Patiala Central Cooperative Bank Ltd., Patiala.
Hence, the present writ petition is dismissed as not
maintainable."
However, liberty was granted by this Court to avail the
alternative remedy in the following terms:-
"It has been brought to the notice of the Court by
the learned counsel for the respondents that the petitioner
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has an alternate remedy to approach to the
appropriate/competent authority for redreassal of his
grievance under the Punjab Cooperative Societies Act,
1961 and the Rules, 1963. All pleas and grounds, which
have been pleaded in the present writ petition, could be
pleaded and asserted before the said Authority under the
relevant provisions.
In view of the above, the petitioner would be at
liberty to file such a petition before the competent authority
within a period of three months from the date of receipt of
certified copy of this order.
In case any such a petition is filed, within the above
stipulated period, the Competent Authority would not raise
the question of limitation.
Any observations made herein shall have no bearing
on the merits of the case."
8. On Merits
Admittedly, the petitioner was working as Assistant
Manager with respondent No.4 - Bank. His date of birth is 23.01.1956
and he was to retire on 31.01.2014, on attaining the age of
superannuation of 58 years. On 26.12.2013 (Annexure R-4/2), the
petitioner submitted an application to the Commissioner, Employees
Provident Fund for taking out his Provident Fund. A perusal of the same
shows that on the opening page and on the subsequent pages, the
petitioner has himself written that he is going to retire on 31.01.2014.
Meaning thereby till 26.12.2013, the petitioner was very much aware
that he is going to retire on 31.01.2014 but thereafter, the petitioner gave
an option only four days prior to his date of retirement i.e. 27.01.2014,
whereas the same was required to be given to the Head of the Office,
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within 03 months prior to completing the age of 58/60 years.
9. Another plea has been raised by learned counsel for the
petitioner that one Smt. Daljit Kaur (respondent No.5) was granted
extension in service. The said plea has been replied by respondent No.4
in the following manner:-
"In reply to para no.11 & 12 it is submitted here that
no discrimination has been done with the petitioner though
extension of one year in service has been granted to Smt.
Daljit Kaur (respondent No.4) in the year 2013 but it is
submitted here that the same was not given by the then
District Manager. It is further submitted here that the
Instructions dated 08.10.2012 was not applicable to the
Cooperative Department and thereafter another
notification dated 27.02.2013 which was in continuation of
Notification dated 08.10.2012, then the notification dated
08.10.2012 was adopted by the Board of Directors in view
of the letter dated 04.04.2013 issued by Registrar,
Cooperative Societies, Punjab. Thereafter a decision was
taken by Board of Directors of the Bank on 11.06.2013 and
due approval was given by the Joint Registrar, Cooperative
Societies, Patiala on 11.07.2013. It is further submitted
here that the extension was given to her in view of
instructions dated 27.02.2013 whereas the date of
superannuation was 28.02.2013. Thereafter a decision was
taken by Board of Directors of the Bank and due approval
was given by the Joint Registrar, Cooperative Societies,
Patiala on 11.06.2013."
10. Although the case of the petitioner is not similar to that of
Daljit Kaur - respondent No.5, however, even if she was granted
extension not in conformity with the Notification dated 27.02.2013, yet
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a wrong benefit granted to one employee cannot be claimed by another
employee like the present petitioner as discrimination cannot be claimed
in a negative form.
11. Accordingly, in this view of the matter, the present petition
is hereby dismissed, with no order as to costs.
(NAMIT KUMAR)
JUDGE
15.03.2024
yakub
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
Neutral Citation No:=2024:PHHC:033852
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