Civil Writ Petition No. 15198 of 1990 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 15198 of 1990 Date of decision: 15.9.2009 Harbhajan Singh ...Petitioner Versus State of Punjab and others ...Respondents CORAM: HON'BLE MR. JUSTICE S.D.ANAND. Present: Mr. Saurabh Garg, Advocate for the petitioner Mr. Ajaib Singh, Additional Advocate General,Punjab for respondent no.1. Mr. Rahul Sharma, Advocate for respondent no.2. ***** S.D.ANAND, J. The Punjab State Federation of Cooperative Sugar Mills Ltd., (hereinafter referred to as “the Sugarfed”) invited applications for appointment to four number of posts of Deputy Chief Engineer, vide public notice dated 3.9.1990 (Annexure P-1). The petitioner lost at the hustings in favour of respondents no.4 to 7, who were successful at the process of selection. The petitioner belongs to Adharmi community which is recognised as a Scheduled Caste under the Constitution (Scheduled Tribes) Order 1950/the Constitution (Scheduled Tribes) Order, 1950/the Constitution (Scheduled Castes) Part C State) Order 1951/the Constitution Scheduled Tribe/Part C State) Order, 1951/Government of Punjab notification vide certification Annexure P-2 dated 11.6.1976. Those selected all belong to general category. Civil Writ Petition No. 15198 of 1990 -2- **** The essential grievance of the petitioner, in the course of the petition is that he having applied for the post reserved for the Scheduled Caste candidate ought to have been appointed to the post of Deputy Chief Engineer, particularly when he was only scheduled caste candidate shorted listed in the process aforementioned. The respondents reiterated the validity of the appointments of respondents no. 4 to 7 and averred that the petitioner could not be preferred over them because there was no reserved post in that process of selection. The learned State Counsel, at the very outset, challenged the maintainability of this petition against the Sugarfed by arguing that it cannot be termed as a 'State' within the meaning of Article 12 of the Constitution of India. The plea deserves to be negatived in view of the law laid down by the Apex Court in Umarani Vs. Registrar, Cooperative Societies and others AIR 2004 Supreme Court 4504(1) and also Shri Anandi Mukta Sadguru Shree Mukatjee Vandasjiswami Suvarna, Jayanti Mahotsav Smarak Trust and others Vs. V.R. Rudani and others AIR 1989 Supreme Court 1607. In the former case, the Apex Court was dealing with the appointments made by a Cooperative Society in violation of mandatory statutory provisions. Without expressing any opinion about whether the Cooperative Society is a State within the meaning of Article 12 of the Constitution of India or not, it was held that a writ would be maintainable when the action of the Cooperative Society is violative of mandatory provisions of the Statute. The relevant observations made by the Apex Court are extracted hereunder:- “59. Although we do not intend to express any opinion as to Civil Writ Petition No. 15198 of 1990 -3- **** whether the Co-operative Society is a “State” within the meaning of Art. 12 of the Constitution of India but it is beyond any cavil of doubt that the writ petition will be maintainable when the action of the Co-operative Society is violative of mandatory statutory provisions. In this case except the Nodal Centre functions and supervision of the Co-operative Society, the State has no administrative control over its day-to-day affairs. The State has not created any post nor they could do so on their own. The State has not borne any part of the financial burden. It was, therefore, impermissible for the State to direct regularisation of the services of the employees of the Co-operative Societies. Such an order cannot e upheld also on the ground that the employees allegedly served the Co- operative Societies for a long time.” In Shri Anandi Mukta's case (supra) as well, the Apex Court held that the issue of mandamus is not only confined to statutory authorities and instrumentalities of the State, it can also be issued to any other person or authority performing a public duty. In that case, the Court was dealing with an order passed by the management of a private College. The relevant observations made by the Apex Court in that case are quoted hereunder:- “If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie. These are two exceptions to Mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied. The law relating to mandamus Civil Writ Petition No. 15198 of 1990 -4- **** has made the most spectacular advance, Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking department from the English Law. Under Article 226, writs can be issued to “any person or authority”. It can be issued “for the enforcement of any of the fundamental rights and for any other purpose.” The term “authority” used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevnt only for the purpose of enforcement of fundamental rights under Art. 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words “any person or authority” used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what mens the duty is imposed. If a positive obligation exists mandamus cannot be denied. It may be pointed out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable Civil Writ Petition No. 15198 of 1990 -5- **** circumstances. Mandamus is a very wide remedy which must be easily available to reach injustice wherever it is found'. Technicalities should not come in the way of granting that relief under Article 226.” No law to the contrary was cited before this Court. This Court has, thus, no hesitation in negativing the plea raised by the respondents to the maintainability of the petition. It would be apparent from a perusal of the petition that the only grievance of petitioner was that he being the only eligible candidate for appointment against a reserved post, there was no reason why the appointment could have been denied to him. The respondents had resisted that plea by raising a precise averment that there was no reservation of post in the aforesaid process of selection. The cue to the controversy is to be had by a perusal of the relevant advertisement (Annexure P-1). A perusal thereof would indicate that there was no reservation of post for any reserved category. This, by itself, would take the wind out of the sails of the petitioner who has, obviously, not been able to prove that there was any reservation for a member of Scheduled Caste for appointment to the post of the Deputy Chief Engineer. It is not even the plea on behalf of the petitioner that he had been found to be more meritorious than the respondents no.4 to 7. In that view of things too, this Court sees no reason why he ought to have been preferred for appointment over respondents no.4 to 7 who had been found to be more meritorious in character. The further averment by the petitioner (in the course of the petition) was that the constitution of Selection Committee had been made in violation of the statutory rules in order to help the respondents no.4 to 7. Civil Writ Petition No. 15198 of 1990 -6- **** Reliance in the context was placed upon Rule 2.1 of the Common Cadre Rules, 1981 (hereinafter referred to as “the Rules”). “2.1 a) Authority to make appointments to posts in the common cadre shall vest in the Administrative Committee.” The constitution of the Administrative Committee is given under Rule 1.4 of the Rules which reads as under:- “1.4 (a) These rules shall be administered by a committee constituted by the Board (referred to as “Administrative Committee” hereafter in these rules) consisting of the following: i) Managing Director of the Federation – Chairman ii) Registrar or his nominee – Member iii) Three Directors of the Federation to be nominated by the Board, provided that two of them shall be representatives / members of the Mills. (b) The Administrative Committee, once constituted, shall remain the office for a period of one year from the date of constitution. Any vacancy occuring during the tenure of the Committee shall be filled in the manner prescribed in clause (a) above and shall be for the un-expired period only. (c) One third of the total members of three whichever is more shall form quorum for every meeting of the Administrative Committee and at least seven days notice shall be given for such a meeting except that the meeting may be called at a shorter notice with the prior sanction of the Registrar. All decisions shall be taken by the majority of votes. In case of equality of votes, the Chairman shall exercise an additional Civil Writ Petition No. 15198 of 1990 -7- **** casting vote. (d) The Administrative Committee shall be competent to delegate any of its powers to any member or the Managing Director of the Federation.” The plea was countered by respondent no.1 by making the following averments in the context:- “It is, however, submitted that even though the appointing authority under the Common Cadre Rules, 1981 is the Administrative Committee of Sugarfed, but there being no Administrative Committee in view of the fact that there is neither the Board of Directors nor the Administrator in Sugarfed, as such the Managing Director being Head of Organisation and keeping in view the smooth functioning of the sugar mills, constituted a Selection Committee. Therefore, the committee constituted was legal and just. It is further pertinent to mention here that sugar industry being a seasonal one, filling up of the posts which are of technical nature could not be delayed.” The pure and simple plea raised by the petitioner was that the constitution of the Selection Committee not being in accord with the rules aforementioned, the impugned appointments cannot be upheld. As against it, the plea on behalf of the Sugarfed was that in the absence of the Administrative Committee, a Selection Committee had been validly constituted. The circumstances therefor are indicated in the course of the above quoted para. In the present case, the relevant Committee consisted of the Managing Director himself (as Chairman) and two Officers from technical Civil Writ Petition No. 15198 of 1990 -8- **** wing, one of out of whom was Technical Advisor (Engineering) and the other was the Cane Advisor. There is nothing in the course of the petition to indicate that they had any bias viz-viz the petitioner or that they had any favourable inclination towards respondent no.4 to 7. The presumption, by the very nature of things, is that all official acts are regularly done. Those constituting the appointment committee, were senior personnel whose capability to undertake the job assigned, as also their integrity in the process of selection aforementioned, cannot be questioned just on the basis of a vague averment. The plea shall stand negatived accordingly. The motion order dated 30.11.1990 was to the effect that “one post of Deputy Chief Engineer shall be kept vacant to accommodate the petitioner in case his petition succeeds and he is found suitable for the post”. Without at all sounding accusatory about whatever may have led led to the delayed disposal of this petition, it is ordered that it shall be brought to the pointed notice of the Competent Authority that with the dismissal of the petition, the stay order aforementioned shall be deemed to have been vacated and it would be in the fitness of things to fill up that post as early as possible, as per rules governing the appointment aforementioned. In the light of the foregoing discussion, the petition is held to be denuded of merit and is ordered to be dismissed. September 15, 2009 (S.D.Anand) Pka Judge