IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.586 of 2010 Parmanand Rai @ Prama Nand Rai S/O Late Dayali Rai R/O Mohalla- Sandalpur, Home No. B/89, Biscomaun Colony, P.S.- Alamganj, Distt.- Patna, Retired Stenographer, The Bihar State Co-Operative Marketing Union Ltd., West Gandhi Maidan, Patna. ...Petitioner/Appellant. Versus 1. The State Of Bihar, Represented Through Chief Secretary Govt. of Bihar, Old Secretariat, Patna 2. The Registrar Deptt. of Co-Operative Society, Govt. of Bihar, New Secretariat Building, Patna 3. The Bihar State Co-Operative Marketing Union Ltd. (Biscoman) West Gandhi Maidan, Patna, Represented Through Its Managing Director 4. The Managing Director Cum Administrator Bihar State Co-Operative Marketing Union Ltd., West Gandhi Maidan, Patna 5. Sri Rana Shankar Kumar, Retd. Secretary to Managing Director, Biscoman, Patna, R/O Biscoman Colony, House No. B/52, P.O.- Gulzarbag, P.S.- Alamganj, Distt.- Patna. ....Respondents/Respondents. ----------- 4. 04.07.2011 This Letters Patent Appeal has been field against the Judgment of the learned Single Judge dismissing the C.W.J.C. No. 1477 of 2010, dated 2 18.02.2010 on the ground that the petition is not maintainable as BISCOMAUN is not a State within the meaning of Article 12 of the Constitution of India, relying on a decision of a Full Bench of this High Court reported in 2000(4)PLJR 273. No doubt earlier view was that the Co-operative Societies are not State within the meaning of Article 12 of the Constitution of India. But after 2004 much water has flown and the Apex Court has itself held that Co-operative Societies are within the meaning of State as it is totally governed by the Co-operative Societies Act. A learned Single Judge of this Court has elaborately dealt with on the issue in M.J.C. No. 3055 of 2005, (Braj Kishore Prasad versus State of Bihar and Ors.) along with the other writ petitions decided on 31st Day of May 2007. The relevant paras 8 and 9 of the Judgment reads as follows. “8. Counsel for the petitioner further pointed out with reference to amended by- laws of the BISCOMAUN that BISCOMAUN is discharging public functions/ duties as its prime object is promotion of the common interest of its members in conformity with the Co- operative principles for fulfilment of the directives contained in Part-4 of the Constitution of India. In this connection, it 3 was further pointed out that the BISCOMAUN having amended the bye- laws and thereby undertaking upon its shoulders the responsibility to fulfil the directives contained in Part-4 of the constitution of India its duties are akin to public body. Reference in this connection was made to the case of Greater Bombay Co-operative Bank Ltd. Vs. M/s. United Yarn Tex. Pvt. Ltd. & Ors. reported in 2007 AIR SCW 2325 page-58. It was further pointed out that the authorized share capital of the BISCOMAUN is Rs. Five hundred crores, 99.5 per cent thereof is held by the State Government itself and for better management of the affairs of the BISCOMAUN State Government is always appointed Managing Director in terms of the provisions contained in Sub- Section (3) of Section 14 of the Bihar Co- operative Societies Act, 1935. In the circumstances, there should be no difficulty in concluding that the State Government has deep and pervasive control over the affairs of BISCOMAUN which is state within the meaning of Article 12 of the Constitution of India as state Government is not only holding 99.5 per cent share capital but is also controlling its affairs by appointing its Managing Director. Reference in this connection was made to a decision of Hon'ble Supreme Court in the case of Ajay Hasia and Others Vs. Khalid Majib Sehravardi, reported in (1981) 1SCC 722, the case of Pradeep Kuamr Biswas Vs. Indian Institute of Chemical Biology and others reported in (2002)5 SCC 111 and in the case of ZEE Telefilms Ltd. and another Vs. Union of India and Others, reported in(2005) 4 Supreme Court Cases 649 paragraphs 32 and 33. 4 9. It was further submitted that though right to employment cannot be claimed as a matter of right but after the employment to a post or office is made, be it under the State, its agency, instrumentality, juristic person or private entrepreneur, it is required to be dealt as a public element and workmens' right to be paid his salary/pension cannot be denied on the ground of paucity of fund as salary/pension is the source of livelihood and dignity of person and failure to pay salary/pension to an employee tantamount to violating his right to life enshrined under Article 21 of the Constitution of India. In this connection, reference was made to the Judgment of the Hon'ble Supreme Court in the case of AIR India Statutory Corporation etc. Vs. United Labour Union and others, reported in AIR 1997 Supreme Court 645, paragraph- 50 as also to the Judgment in the case of Devendra Kumar Singh Vs. Administrator, Bihar Coop. Mkt. Un. Ltd. & Anr. reported in 2006 (3) PLJR 70 (SC).” In view of the aforesaid facts noticed by the learned Single Judge, we hold that BISCOMAUN is State within the meaning of Article 12 of the Constitution of India and writ petition is maintainable. The grievance of the petitioner is that the petitioner was to have been promoted in place of Sri Rana Shankar Kumar. The petitioner filed the writ petition after his retirement, in the mean time, he 5 continued to make the representation. The learned counsel for the respondent- State of Bihar, submitted that, even if, the writ petition is maintainable, it suffers from delay and laches and thus the writ petition is liable to be dismissed. Without expressing any opinion in absence of the counter affidavit on the question of delay and laches, we dispose of this application with the direction that the appellant-petitioner shall make a detailed representation to the Registrar, Co-operative Societies who shall decide the question raised by the petitioner and if it is found that the petitioner ought to have been promoted then the petitioner shall be given notional promotion without payment of any salary so that the petitioner's service may be counted only for pension purpose. Accordingly this L.P.A. is disposed off. Bhardwaj ( Prakash Chandra Verma, J. ) (Ahsanuddin Amanullah, J.)