ORDER.
Mishra, J.
1. This application, by twelve employees of the Salem Central Co-operative Bank Ltd., is directed against the orders of the Special Officer of the said Bank, the Deputy Registrar of the Co-operative Societies, Salem and the Special Tribunal for Cooperative Societies, Salem and the Special Tribunal for Co-operative Cases, Madras, impleading besides them as respondents, the Registrar of Co-operative Societies. The Salem District Co-operative Sector Bank Employees Union represented by its Joint Secretary has applied for being impleaded as a party respondent and has been heard as per the order of Court dated 28-1-1985 in W.p No. 906 of 1985.
2. It is not in dispute that the petitioners were appointed as Branch Managers in the Salem Central Cooperative Bank Ltd.. by direct recruitment in the years 1969 and 1972 by the competent authority and that the Special By-laws of the Salem Central Co-operative Bank Ltd., contained, inter alia, that persons recruited to the posts of Branch Managers should be at least a graduate in Articles or Commerce with a first or second class or possess any other equivalent or higher qualifications recognised by the State Government and shouldjundergo a course in Co-operative Banking successfully at any of the Cooperative Training Colleges, administered by the Committee for Co-operative Training. New Delhi or at the Vaikuntalala Institute of Co-operative Management, Poona or by the Reserve Bank of India within the period of probation, and that the Upper Division Clerks with three years experience can also be considered for the post of Branch Managers. The State Government, however, constituted a Committee, which made certain recommendations and pursuant to the recommendations of the Committee, the Government issued G.O.Ms No. 645, Co-operative Department, dated 1.12.1977
3. Following the directions in the said G.O, it rs said, the first respondent, that is to say, the Registrar of Cooperative Societies issued certain Special instructions of the Bank in his proceeding No. 4735/76-El dated 18.8.1981 recorded:
“Pursuant to implement certain recommendations of the Committee constituted by the Government in G.O.Ms No. 845, Co op., Dept., dated 1-12-1977, the respondent has proceeded to categorise the several pests in Salem Central Co-operative Bank as follows in his proceedings Re No 4735/76-El dated 18-8-1981”:
S.
Category of Post
To be rited in to the categories
No.
existing
Office
Field
I.
Secretary Executive Officer
Secretary
Executive Officer
II.
Asst Secretary
Asst. Secretary
Asst. Executive Officer
III.
Administrative Officer
Manager
Field Officer
V.
Special Post
Asst. Manager
Asst. Field Manager
IV.
Upper Division Clerk, Branch Manager and Senior Typist
Senior Assistant
Senior Supervisor
VI.
Lower Division Clerks, junior Bank Inspector, Shroff, Caretaker, Junior typist and Stenotypist
Junior Assistant
Junior Supervisor
VII.
Peon, Drivers, Sweepers and Scavengers
Sub-staff
Sub-staff
4. On account of the new scheme sought to be introduced, the third respondent promoted certain Upper Division Clerks/Senior Assistants as Assistant Managers ignoring the claims of the petitioners, who were appointed as Branch Managers and which, according to the Special by-laws of the Bank, were a grade above the Upper Division clerks. The petitioners and other Branch Managers of the bank raised a dispute before the Deputy Registrar (1st respondent),, who advised to raise a dispute under S73 of the Tamil Nadu Co-operative Societies Act, 1961 (hereinafter referred to as ‘the Act’).
5. The petitioners then filed a petition before the Deputy Registrar of Co-operative Societies, Salem, who on 30.4.1983 dismissed their petitions, but observed:
“If aggrieved appeal lies under S. 96 of the Tamil Nadu Co-operative Societies Act, 1961 to the Co-operative Tribunal within 2 months from the date of this order.”
6. The petitioners then moved the Tribunal, filing separate appeals. The Tribunal dismissed the appeals confirming the orders passed by the Deputy Registrar (called Arbitrator— vide: order dated 26.11.1984
7. In a short order, the Deputy Registrar exercising power under S. 7J (1)(c) of the Act recorded as follows:
“The petitioners admit that they were appointed by direct recruitment in pursuance of the circular of the Registrar Rc. No 871 1/70.A1 dated 24-6-79 and that the Central Banks were directed to amend their special by-laws relating to service conditions of the employees. Pending amendment of the Special Bylaws, they were recruited by the Salem Central Cooperative Bank as per the instructions of the Registrar.
Though they were appointed as Branch Managers, their pay was fixed equal to the scale of pay of Upper Division Cleiks only. As there were only 23 branches at the time of their recruitment and 37 persons were recruited some of them were posted to work as Clerks, Inspectors and Internal Auditors. So all these years, the petitioners are acquies.-ing themselves for working and getting their salaries as Upper Division Clerks.
The Government constituted a Committee to rationalise the posts in Central Banks as per GO. Ms. No. 645, Co.-op., Dept., dated 1-12-1977. The petitioners have stated that the recommendations of the committee have no force of law until and unless they are accepted by Government. Government have accepted the recommendations of the Committee as per G.O.Ms No. 62, Co.-op. Dept., dated 8-2-79. In his letter No 7467/79.A1 dated 10-9-79, the Registrar has asked all the Central Banks to categorise various posts as recommended by the committee by passing a resolution of the committee, pending amendment of Spepial By-laws Further, in his letter No 168658/81.A1 dated 3-8-1981, the Registrar has permitted the Salem Central Co.-op. Bank to fit in the Branch Managers into the Cadre of Upper Division Clerks. The respondents have acted according to the instructions of the Registrar.
In the Agreement referred to by the Petitioners, there is no indication to place them in any higher category.
Hence, the proceedings of the respondent Re. 4735/76.E1 dated 18-8-81 is in order and not in violation of By-laws or instructions of the Registrar.”
8. The Tribunal, however, went into some details to record:
(1) By-laws have no statutory force;
(2) Appointment of 16 Assistant Managers by promoting Upper Division Clerks and not from directly recruited Managers was not wrong, so the Upper Division Clerks had already put in long period of service than the direct recruits and as such, they had better claim for promotion on the basis of seniority;
(3) The Registrar had taken notice of the Government Order in G.O.Ms No. 645 dated 1-12-1977 in his circulars and accordingly advised the Cooperative Societies to re-organise and reclassify the categories of the office of the personnel and
(4) Finally the Deputy Registrar/Arbitrator had no jurisdiction to entertain the dispute.
9. Since we do not have much contro versy on facts, there is no need to refer to the only counter affidavit filed in the case on behalf of the fifth respondent. The case made out therein, however on behalf of the 5th respondent, is that since there were only 23 branches at the time of recruitment of the petitioners and a total of 37 were appointed at a time, the petitioners were in excess of the requirement of the respondent-bank and their recruitment was in violation of the ratio of 50: 50 for appointment by direct recruit ment and appointment by promotion. In any case, there is rationale in the principle adopted to classify in one group the Upper Division Clerks, Branch Managers and Senior Typist and in any case, no substantial prejudice of any kind has been done to the service conditions of the petitioners.
10. Before we, however, come to the contentions raised before us, we propose to first deal with that aspect of the matter in which, it is said that the Deputy Registrar/Arbitrator had no jurisdiction to entertain the dispute raised by the petitioners.
11. S. 73(1) of the Act states:
“In any dispute touching the constitution of the committee or the management or the business of a registered society (other than a dispute regarding disciplinary action taken by the society or its committee against a paid servant of the society) arises—
(a) among members, past members and persons claiming through members, past members and deceased members, or
(b) between a member, past member or person-claiming through a member, past member of deceased member and the society, its committee or any officer, agent or servant of the society, or
(c) between the society or its committee and any past committee, any officer, agent or servant, or any past officer, past agent or past servant, or the nomi°ee, heirs or legal representatives of any deceased officer, deceased agent, or deceased servant of the society, or
(d) between the society and any other registered society, such dispute shall be referred to the Regisrar for decision.”
12. The only way to bring in the dispute between the petitioners on the one hand and the third tespondent representing the Cooperative Society, on the other hand is to lead their dispute falling under sub-S.(1) of S. 73. The words therein are:
“dispute touching the constitution of the com mittee or the management or the business of a registered society.”
Obviously, the dispute, which the petitioners have raised is not one touching the constitution of the committee or the management of the society. Is it a dispute touching the business of the society?
13. We would have made our own endeavours to understand the implications and effect of the qualifying words,
“other than a dispute regarding disciplinary action taken by the society or its committee against a paid servant of the society.”
and tried to understand the scope and ambit of the word ‘business’, had we not been aware of a judgment of the Supreme Court in Cooperative Central Bank Ltd. v. Industrial Tribunal, Hyderabad A.I.R 1970 S.C 245. dealing with similar phraseology in S. 61 of the Andra Pradesh Co-operative Societies Ac:, 1964. The Supreme Court made a thorough examination of the law on the subject to hold that a dispute between the employees of the society, on the one hand and the administration of the society, on the other hand, will not be covered by the xpression “touching the business of the society”. In the said judgment, the Supreme Court has said:
“It is true that S. 61 by itself does not contain any clear indication that the Registrar cannot entertain a dispute relating to alteration of conditions of service of the employees of a registered society; but the meaning given to the expression ‘touching the business of the society’, in our opinion, makes it very doubtful whether a dispute in respect of alteration of conditions of service can be held to be covered by this expression. Since the word ‘business’ is equated with the actual trading or commercial or other similar business activity of the society and since it has been held that it would be difficult to subscribe to the proposition that whatever the society does or is necessarily required to be for the purpose of carrying out its object, such as laying down the conditions of service of its employees, can be said to be part ot its business, it would appear that a dispute relating to conditions of service of the workmen employed by the society cannot be held to be a dispute touching the businese of the society.”
14. Once this is understood that the dispute raised by the petitioners does not fall under S. 73 (1) of the Act, for we are bound to foilow the law, as stated by the Supreme Court, it is obvious that the petitioners made a mistake of law in going to the Registrar or the Deputy Registrar with a petition for adjudication of the dispute under S. 73 (1) of the Act. Since the Deputy Registrar had no jurisdiction to entertain the dispute, it is obvious, there was no proceeding or order from which any appeal could be preferred before the Tribunal under S. 96 of the Act.
15. The Tamil Nadu Co-operative Societies Act, however, have in S. 100 of the Act.
“No order or award passed, decision or action taken or direction issued under this Act by an arbitrator, a liquidator, the Registrar or an officer authorised or empowered by him, the Tribunal or the Government or any officer subordinate to them, shall be liable to be called in question in any court.'
16. If the Special Officer-the third respondent comes under the category of an officer subordinate to the State Government and the Registrar of the Co operative Society, then a civil suit questioning his orders was/is not maintainable. In any case, no action of the Registrar of the Deputy Registrar acting as the Registrar, could/can be questioned in a suit as order/award, decisions, action, direction by them are kept immune from any court/action. A bar of jurisdiction, however of this kind does not apply to actions, which are without or beyond jurisdiction of the Government, the Registrar, arbitrator, liquidator or any officer subordinate to them. This, however, will be a questioned, a relevant one, whether the petitioners or any other persons could raise a dispute before the civil court and question the action of the Special Officer, which action, according to all concerned, was a follow-up of the direction of the Registrar of the Cooperative Society, which direction of the Registrar was issued pursuant to a Government decision to implement the recommendation of a Committee appointed by them.
17. The Tamil Nadu Co operative Societies (Appointment of Special Officers) Act, 1976 (Act 25 of 1976) has made a specific provision for appointment of a Special Officer to administer the scheduled co-operative societies meaning the co-operative societies specified in Part A or Part B or Part C of the Schedule and any other co-operative society included in that Schedule under S. 8 of that Act.
18. Under its scheme, notwithstanding anything contained in the Co-operative Societies Act, or in the Tamil Nadu Co-operative Land Development Banks Act, 1934 (Tamil Nadu Act 1 of 1934), or in any other law for the time being in force, the term of office of the members of the committee or the board, as the case may be, of every scheduled co-operative society, including its president and vice-president, or chairman and vice-chairman, as the case may be, holding office as such immediately before the appointed day, would expire on the appointed day and the members would vacate their office on and from such day. On their vacating their office on and from such day, the State Government would appoint a person as a Special Officer for each scheduled co-operative society for such period or periods not exceeding three years in the aggregate, as may be specified by the Government from time to time.
19. S. 4 of the said Act which talks of the appointment of Special Officers for sche duled co operative societies states as follows:
“4(1) Notwithstanding anything contained in the Cooperative Societies Act, 1934 (Tamil Nadu Act X of 1934), or in any other law for the time being in force, on and from the appointed day, the Government shall appoint a person as Special Officer for such scheduled co-operative society for such period or periods not exceeding three years in the aggregate as may be specified by the Government from time to time.
(2) The Special Officer appointed under subset) shall, subject to the control of the Registrar and to such directions as he may, from time to time, give have power to exercise all or any of the functions of the committee or the board, as the case may be, or of any officer of the scheduled co-operative society and to take such action as may be required in the interest of such scheduled co-operative society.
(3) The Government may fix the remuneration payable to the Special Officer appointed under sub-S.(1) and the amount of remuneration so fixed, and such other expenditure incidental to the management of the scheduled co operative society as may be approved by the Registrar, shall be payable from the t'jnds of such scheduled co-operative society.
(4) The Special Officer appointed under sub-S (1) shall arrange for the constitution of a new committee or board, as the case may be, in accordance with the provisions of the Co-operative Land Development Banks Act, 1934 (Tamil Nadu Act X of 1914), as the case may be, and the rules made there under and the by-laws of the Scheduled cooperative society so that the new committee or board, as the case may be, may be constituted and the members thereof come into office at the expiry of the period of appointment of the Special Officer.”
20. This section does leave no doubt that:
“(1) The Appointing Authority of a Special Officer is the State Government; and
(2) The Special Officer, if appointed, is subject to the control of the Registrar and to such directions, as the Registrar may, from time to time, give.”
His remuneration is also fixed by the State Government, although paid out of the funds of the scheduled cooperative society. He comes to act only when the regular Committee or the Board is superseded and then he functions exercising the powers of the Board or the Committee, as the case may be, subject to the provisions of the Cooperative Societies Act and the rules made thereunder, except as otherwise provided in S, 4 of the Special Act or S. 5 of the Special Act.
21. What follows from this is that the democratic process of the constitution of the society is brought to a naught at a point and a Special Officer is assigned the' responsibilities and powers of the elected Committee or Board. This power to supersede the elected committee or board is retained in the State Government by the provisions of the Act and the power to appoint the Special Officer is also given to them. This being the character of the Special Officer and the situation in which a Special Officer is appointed by the State Government, the only inference possible is that the State Government in the event of supersession of a regular committee or the board assure all the powers to decide how to administer the society and the Special Officer, who comes to administer the society, comes as none else than an agent or instrumentality of the State Government.
22. We are, however, confronted with a Full Bench judgment of this Court in (P. Kannanj), Thamilarasan etc. v. The Director of Handlooms and Textiles, Madras and others 1989-I-L.L.J 588=1991-2-L.W. 409 F.B; in which while generally speaking as to whether this Court's writ jurisdiction would extend to a Cooperative society or not, there are observations that appointment of a Special Officer in place of the governing body of a Cooperative Society does not alter the character of the Cooperative Society, and that a writ petition will not be maintainable. We have no quarrel with the approach of the Full Bench in holding that a Cooperative Society is not a body created by or under a statute and that it is a body created, in accordance with a statute and in that sense, it may nol be a State or auihority for the purpose of Art. 12 of the Constitution of India. To hold however on this line, that a Cooperative Society shall be beyond the prerogative of this Court, for the reason that it is not a State or authority under Art. 12 of the Constitution or that it will make no difference if in place of a Governing body/committee or board constituted in accordance with a statute when a Special Officer is appointed, it will not partake the character of agency or instrumentality of the State, will mean conceding all the powers in the Government to undo everything done under the Cooperative Societies Act with out their being a judicial review.
23. In (Kannanl) R. Thamilarasan's case the Full Bench has expressed:
“Whether the fact that whenever the Governing body is superseded and in its place a Special Officer or other Government official is appointed to administer the affairs of the society makes any difference has to be considered now. We are of the view that having regard to the decision of the Supreme Court in (supra), the position is that it does not make any difference. Any officer appointed in the place of the governing body stepping into the shoes of the governing body and discharging the functions as such is definitely not a Government servant. In the case referred to above, the Supreme Court has clearly held that when the services of an Indian Administrative Officer are placed at the disposal of a co-operative society, he was not discharging the functions as a public servant.”
24. The passage from the judgment of the Supreme Court in S.S Dhanoa v. Municipal Corporation of Delhi',3 quoted by the Full Bench is as follows:
“Whatever has been said with regard to the Council of Scientific and Industrial Research, which was a society registered under the Societies Registration Act equally applies to the Co-operative Store Limited which is a society registered under the Bombay Co-operative Societies Act, 1925. It is not a statutory body because it is not created by a statute. It is a body created by an act of a group of individuals in accordance with the provisions of a statute.”
25. S.S Dhanoa's case 1981-II-L. 1 J. 231=AIR 1981 S.C 1395., was one of an I.A.S Officer, whose service had been placed at the disposal of a Co-operative Society the Supreme Court, considering the question whether an I.A.S Officer, whose services were placed at the disposal of a Co-operaive Society, which was neither a local authority nor a corporation established by or under the Act of the Central Government or a Government of a State could be treated as ‘public servant’ within the meaning of S. 21 of the Indian penal Code for the purpose of S. 197 of the Crl. PC. That was never a case of a society, which had been superseded by the State Government and a Special Officer or an Administrator had been appointed to manage its affairs.
26. It appears that before the Full Bench of this Court, that aspect of the law was not placed or canvassed, under which a Court of Law can genuinely take the view that the management, which originally stood in the hands of a committee or a board created in accordance with a statute, but not created by or under a statute, when superseded ceased to have its original character and the admini stration stood transferred in the hands of a person, who was a creature of a statute, and, who, under the statute itself, was an agent of the Government of the State. A somewhat similar provision in S. 41(6) of the Bihar and Orissa Co-operative Societies Act, 1935 came up for consideration before a Division Bench of tha Patna High Court in Brij Bihari Singh v. State of Bihar 1989 37-2-B.L.J.R 219. In the decision delivered by the Court by the Judges, including one of us, on the subject reads thus:
“We are not required to detain ourselves to go into the question whether a writ shall issue in the instant case or not for the reason that whatever little argument was possible on behalf of the respondents to resist exercise of this Court's power to issue writ under Art. 226 of the Constitution of India on the ground that notwithstanding the supersession of the Societies and the appointment of an Administrator under S. 41 (6) of the Act, Administrator after all exercised powers and functions of the Board of Directors of a Society, which is not a state is lost on account of the aforementioned amendment Ordinance which has clearlv spelt out that the minagsment would vest in the State Government and that the State Government would appoint an Administrator for the management of the affairs of such registered Society till elections were held in accordance with the provisions of the Act. Even with respect to the actions of the Administrator appointed under S. 41(6) of the Act as it stood before the amendment Ordinance came into force, this Court has in a Division Bench in the case of Nand Kishore Rai and others v. The State of Bihar and others reported in 1988 B.L.J.R 1065., stated that this Court can interfere with the orders passed by such Administrator and that a writ application will be maintainable.”
27. Speaking further, the Court said:
“S. 14(5) of the Act as amended by the amenJ-ment Ordinance, however, has made a specific mention of the vesting of the management in the State Government and the appointment of the Administrator by the State Government. This has made the Adminstrator a servant of the State Government. Impugned action, of the Adminisrators, therefore, are acts of the Officers of a State under Art. 12 of the Constitution of India. The writ applications for the said reason are maintainable.”
28. If we look to the provisions of the Tamil Nadu Cooperative Societies (Appoint ment of Special Officers) Act, 1976. it is clear that the State Government appointed ‘the day’, on which the managing body/board of the society constituted in accordance with the provisions of the Tamil Nadu Cooperative Societies Act, 1961 and the Rules framid thereunder stood superseded, followed by the appointment of the Special Officer by the State Government. On his appointment, the Special Officer was placed under the control of the Registrar of the Cooperative Societies and to such directions of the Registrar, which he issued from time to time. The Special Officer's appointment, no doubt, gave him powers and functions of the super seded committee or the board as well as the powers of the other officers of the society and while functioning as a Special Officer, he received his salary from the funds of the so ciety, he was/is servant of the Government and if not a servant, an agent of the Governmeat of the State. The Patna judgment in the case of Brij Bibari Singh7 has been affirmed by the Supreme Court in the sense that after notice in the Special Leave Petition, the petition for leave was dismissed.
29. We have good reasons, on the basis of what we have noticed above, to hold that the Full Bench judgment, in so far as it states that it will make no difference, if any regular governing body/committee/board is superseded and in its place a Special Officer or other Government official is appointed by to administer the affairs of the society the judgment of the Court in this respect is per incuriam, because, the statement of law as found in the case of Brij Bihari Singh was/has not been taken notice of and is also an obiter dicta as the only question before the Full Bench was whether a writ would lie against a co-operative society under Art. 226 of the Constitution of India and not whether a writ will the against a Special Officer or other Government official appointed to administer the affairs of the superseded society. The judgment of the Full Bench is per incuriam also for the reason that relevant provisions of the Tamil Nadu Co-operative Societies (Appointment of Special Officers) Act, 1976, which we have taken notice of, were not noticed by it.
30. It has, indeed, not been the law ever that no writ will ever issue against a private corporation or body. Even in Eng land, where there had been no written Constitution, providing for writs to be issued by Courts, as found in Art. 226 of the Constitution of India, Court did issue writs upon private corporations and bodies. A passage from Ferrison Extraordinary Legal Remedies, page 329, is worth quoting:
“Mandamus is generally recognised as the only speedy and adequate remedy to compel surrender of the insignia, records funds and other property of a private corporation by the incumbent officer who refuses to deliver them to his successors in office, when it appears that he does not hold them under any colour of right to the office. The right is incidental to the right to compel surrender of the corporate office to the lawful successor. The same principles that govern the right in the case of police officers are applicable to officers of private corporations. While mandamus is not the proper remedy to try title, to office, an incumbent holding under no colour of right cannot defeat his successor's right to mandamus by raising the question of the validity of the latter's title and thus deprive him of the right to possession of the corporate property belonging to the office, on the theory that mandamus is not the proper remedy to try title. As in the case of public officers, respondent being without any colour of right, has no title to try. A prima facie right, a right de facto, and not de jure, is all that is necessary to such cases, or ell that is involved. This a couit may determine without deciding actual title. Actual title is only incidentally involved, if at all. The right to possession of the corporate property is incidental to the right to the office, not actual title, and when petitioner shows a prima facie right thereto, the court merely rests on such prima facie title for the time being, without adjudicating the actual title, which is left to a proceeding in quo warranto Nor is it any defence to say that the property is not in the possession of the officer when it has been voluntarily turned over to some stranger, as it is the duty of the officer to have it in his custody, and if not, to regain it.”
31. In the case of Sohak Lal v. Union of India A.I.R 1957 S.C 529. a displaced person was found prima facie entitled to an allotment of a house and the Accommodation Officer moved his family into the house, but no letter of allotment was issued to him. Later, when certain facts became known, which in the opinion of the Union of India disentitled him to the allotment, he was informed that the house could not be allotted to him He was evicted from the house without being given any notice as required by the provisions of the Public Premises Eviction Act. The house was then allotted to another person, who was given possession The original allottee moved the High Court under Art. 226 of the Constitution of India. The High Court ordered the Union of India and also the second allottee to restore possession of the house of the original allottee. The Supreme Court observed in the said case as follows:
“…Normally, a writ of mandamus does not issue to or an order in the nature of mandamus is not made against a private individual. Such an order is made against a person directing him to do some particular thing, specified in the order, which appertains to his office and is in the nature of a public duty (Halsbury's Laws of England, Vol. II, Lord Simonds Edition p. 84). If it had been proved that the Union of India and the appellant had colluded, and the transaction between them was merely colourable entered into with a view to deprive Jag an Nath of his rights, jurisdiction to issue a writ to or make an order in the nature of mandamus against the appellant might be said to exist in • Court.”
32. Situations vary from case to case. How and when a private corporation or a body affecting some one's rights invite, a writ, direction or order of the Court will depend upon the facts of each case.
33. In the case of Direndra Nath Sarkar v. State of Bihar A.I.R 1962 Patna 101 a Full Bench of the Patna High Court considered whether writ would issue to remove a managing committee of a school belonging to a religious minority. The Court rejected the objection that no writ of mandamus could issue quoting from the Commentaries on the Laws of England, Volume III at page 264 By Sir Blackstone;
“The writ of mandamus is also made by the same statute 9 and C. 20, a most full and effectual remedy, in the first place, for refusal of admission where a person is entitled to an office or place in any such corporation, and secondly, for wrongful removal when a person is legally possessed. These are injuries, for which though redress for the party interested may be had by assize or other means, yet as the franchises concern the public and may affect the administration of justice this prerogative writ also issues from the court of King's bench commanding upon good cause shown to the Court, the party complaining to be admitted or restored to his office.”
34. In a recent decision of the Supreme Court in Shri Anadi Mukhta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahoisav Smarak Trust v. V.R Rudani', this aspect of the law was candidly stated in these words:
“The term ‘authority’ used in Art 226, in the context, must receive a liberal meaning unlike the term in Art 12. Art. 12 is relevant only for the purpose of enforcement of fundamental rights under Art 32 Art. 226 confers power on the High Courts to issue writs for enforcement of the fundamenfa rights as well as non-fundamental rights. The words ‘Any person or authority’ used Tn Art. 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 means the duty is imposed. If a positive obligation exists mandamus cannot be denied.”
35. After stating as above, the Supreme Court has further said:
“Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, professor De Smith states.
To be enforceable by mandamus a public duty does not necessarily ‘ have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract.
(Judicial Review of Administrative Law, 4th Ed. p. 540).
We share this view. The Judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into water-tight compartment. It should remain flexible to meet the requirements of variable 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 Art. 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition.”
36. The law that has been stated by the Supreme Court in the case of Shri Anadi Mukhta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust',10 is not a new exposition, but a reiteration of what had been held in the past by the Supreme Court. In Dwaikanmathi v. Income Tax Officer A.I.R 1986 S.C 81., the Supreme Court-examined the scope of Art. 226 and stated as follows:
‘This article is couched in comprehensive phraseology and it ex facie confers a w'de power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England, but the use of the expression ‘nature’, for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables •he High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country Any attempt to equate the scope of the power of the High Court under Art. 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government into a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself.”
37. We thus find unhesitatingly that: (1) The Special Officer appointed under the Tamil Nadu Co-operative Societies (Appointment of Special Officers) Act, 1976 by the State Government is a servant or at least an agent of the State Government and thus, his actions are actions of the State, as defined under Art. 12 of the Constitution of India;
(2) Even otherwise, the Special Officer is an authority created under a statute, that is to say, the Tamil Nadu Co-operative Societies (Appointment of Special Officers) Act, 1976 and thus in that capacity, he comes under the expression ‘other authorities’ within the territory of India' under Art. 12 of the Constitution of India;
(3) Even otherwise, the Special Officer, as an authority, if found failing in his public duty, will be subject to the writ jurisdiction of this Court under Art. 226 of the Constitution of India, as in any case, he is an ‘authority* for the purpose of Art. 226, if not for the purpose of Art. 12 of the Constitution of India.
38. The two orders that of the Deputy Registrar (Arbitrator) and the Tribunal have to be ignored because they are passed in a proceeding purportedly started under S. 73 of the Tamil Nadu Co-operative Societies Act, 1961, in a so-called dispute raised by the petitioners concerning their service conditions. We have already found that such a dispute will not lie within the jurisdiction of the Deputy Registrar (Arbitrator) of the Cooperative Societies. We are constrained, for the said reason, to examine the validity of the impugned action/order of the Special Officer.
39. Since the Special Officer, in our view, is a servant and if not a servant, an agent of the Government of the State, he is amenable to our writ jurisdiction. It is well-settled that Art. 226 of the Constitution makes no distinction between various kinds of writs to hold that in one case, a writ of mandamus will issue, but a writ of certiorari will not issue, or in another, a writ of certiorari will issue, but a writ of mandamus will not issue. All the writs, directions, orders that can be issued by this Court, in exercise of its power under Art. 226 of the Constitution are interchangeable. A Division Bench of this Court, to which one of us was a party, had an occasion to consider this aspect of the law and relying upon the judgments of the Supreme Court, held in Dr. S. Balasundaram and The Tamil Nadu Agricultural University v. Mahadevan Since reported in 1991 Writ L.R 361. (See judgment in Writ Appeal Nos. 865 and 949 of 1986 dated 26-7-1990) that this Court's power to issue a prerogative writ does not confine to the types of writ mentioned in the Article; but other types of orders and directions depending upon the facts and circumstances of the case which arc interchangeable.
The impugned action, we shall presently examine. The Special Officer received a communication from the Registrar of Cooperative Societies, in reference to certain norms of the Special Officer; vide letter No. 168658/81-T1 dated 3-8-1981, which contained inter alia that the Branch Managers should be fitted into the cadre of Upper Division Clerks. The Special Officer on 13-8-1981 considered the same and decided to implement with eflect from 1-8-1981 and accordingly issued his proceedings in Re. No. 4735/76-E1 dated 18-8-1981 stating inter alia that he had decided to implement the recommendations of the committee constituted by the Government in G.O.Ms No. 645, Cooperation Department, dated 1-12-1977 and that:
“The existing posts in our bank are categorised into the following seren categories under the heads of ‘Office Personnel’ and ‘Field Personnel’ with effect from 18-81.
S.
Category of Post
To be rited in to the categories
No.
existing
Office
Field
I.
Secretary Executive Officer
Secretary
Executive Officer
II.
Asst Secretary
Asst. Secretary
Asst. Executive Officer
III.
Administrative Officer
Manager
Field Officer
V.
Special Post
Asst. Manager
Asst. Field Manager
IV.
Upper Division Clerk, Branch Manager and Senior Typist
Senior Assistant
Senior Supervisor
VI.
Lower Division Clerks, junior Bank Inspector, Shroff, Caretaker, Junior typist and Stenotypist
Junior Assistant
Junior Supervisor
VII.
Peon, Drivers, Sweepers and Scavengers
Sub-staff
Sub-staff
The new designation of the officers and the staff as shown above is given effect to from 1-8-81.”
41. We have already taken notice of the law which says that the Special Officer exerci sed all or any of the functions of the com mittee or the board, as the case may be or of an officer of the scheduled co-operative society. S. 5 of the Tamil Nadu Co-operative Societies (Appointment of Special Officers) Act, 1976 however says:
“Except as otherwise provided in S. 4, the provisions of the Co-operative Societies Act and the rules made thereunder shall apply in relation to a Special Officers appointed under sub-S.(I) of that section as they apply in relation to a Special Officer appointed under sub-S.(1) of S. 72 of the Co-operative Societies Act.”
42. S. 119-A, as amended by Act 39 of 1971 in the 1951 Tamil Nadu Co-operative Societies Act, 196), gives us an idea of the power of the Registrar to give directions in the public interest etc. It states,
“119 A (I) Subject to the rules made in this behalf, where the Registrar is satisfied that in the public interest or for the purposes of securing proper implemention of co-operative production and other development programmes approved or undertaken by the Government or to secure the proper management of the business of any class of registered societies generally, or for preventing the affairs of any registered society being conducted in a manner detrimental to the interests of the members, or of the depositors or the creditors thereof, it is necessary to issue directions to any class of registered society or registered societies in particular, he may, by order, issue directions to them from time to time, and all registered societies or the registered society concerned, as the case may be, shall be bound to comply with such directions.
(2) The Registrar may, by order, modify or cancel any directions issued under sub-S.(1), and in modifying or cancelling such directions may impose such conditions as be may deem fit.”
43. The power of Registrar to give directions,
(1) in the public interest, or
(2) for the purpose of securing proper implementation of co-operative production and other development programmes approved or under taken by the Government, or
(3) to secure the proper management of the business of any class of registered societies generally, or
(4) for preventing the affairs of any registered society being conducted in a manner detrimental to the interests of the members of the depositors or the creditors thereof, in thus remove by IX Act itself subject to the rules made in this behalf.
44. The Tamil Nadu Co-operative Societies Rules 1963 framed under S. 119 of the 1961 Act in Chapter II specifies the subject matter of by-laws and contains therein the items as follows:
“(v) the authority competent to fix, service, or regulate the scales of pay and allowances of the employees of the society and the conditions of service of employees of the society providing for—
(i) the age at entry in service and for retirement on superannuation;
(ii) the minimum educational and other qualifications for the several categories of employees;
(iii) the method of recruitment of candidates;
(iv) the service conditions including leave to which employees are eligible, the authority competent to sanation leave, the penalties to be imposed for laises by way of disciplinary action and the authority ompeteat to impose such penalties and ths appelate authority in respect of disciplinary action taken by such authority.”
This rule delegates to by laws, service conditions, minimum educational and other qualifications for the several categories or employees, method of recruitment of candidates, the age at entry in service and for retirement on superannuation etc.
45. Any Co-operative Society seeking registration is required to make an application to the Registrar of Co-operative Societies in accordance with the provisions in S 8 of the 1961 Act, which requires, as stated in sub clause (3) thereof, the application to be accompanied by a copy of the proposed by laws of the society, On such application accompanied by a copy of the by-laws, the Registrar, on satisfaction, is given the power to register the society and its by-laws as provided in S. 9 thereof.
46. The Act has also envisaged amendment of the bylaws as provided in Ss. 11 and 12 of the 1961 Act. These two sections together provide that no amendment of the by-laws of a registered society shall be valid, until the same has been registered that application for the registration of an amendment of the by-laws of a registered society shall be made to the Registrar in the prescribed manner and shall be accompanied by a copy of the amendment of the by laws and if the Registrar is satisfied that an amendment of the by-laws is not contrary to the Actor the rules, he may register the amendment; provided that no order refusing to register the amendment of the by-laws shall be passed except after giving the registered society an opportunity of making its representation. An amendment of the by-laws of a registered society shall take effect from the date, if any, specified in the amendment. Where no such date is specified, the amendment shall take effect from the date on which it is registered. Besides this procedure, where the Registrar is satisfied that for the purpose of altering the area of operations of a registered society or for the purpose of improving the services rendered by it or for any other purpose specified in the rules, an amendment of the bylaws is necessary, he may, after consulting in the manner prescribed the financing bank, if any, to which the society is affiliated, by notice in writing, call upon the socity to show cause, within such time as may be specified in the notice why the amendment should not be made. If within the time specified in the notice, the registered society fails to make the amendment, the Registrar may, after giving the society an opportunity of making its representations, register the amendment and issue to the society a copy of such amendment.
47. It is indisputable that the Registrar can give directions. It is also possible to suggest that a recategorisation and amalgamation of certain orders of the services of the society may be found necessary in the public Iterest. There is good reason to accept that the Registrar found it in the public interest to suggest a new categorisation and amalgamation of the cadres of Branch Managers and Upper Division Clerks as the State Government had appointed a Committee to study various aspects of the management of certain class/classes of societies and the committee had recommended for a fresh look to the various categories of the services of the societies. But then the rules delegated service conditions to the bylaws and unless by-laws were amended, it was not possible to make any alteration in the service conditions. The by-laws could not be ameuded under Ss. 11 and 12 of the 1961 Act. Unless by-laws were amended in accordance with law, as noticed by us above, no interference could be made with the service conditions, including the classification/categorisation of the cadres of the various services of the cooperative societies 48. It has however been brought on record that after the dispute was raised, some sort of amendments in the by-laws have been carried out to conform to the directions of the Registrar of Cooperative Societies and to regularise the categorisation merging the category of Branch Managers with that of Upper Division Clerks. It is however conceded before us that such amendment has been carried out without taking notice of the requirements of Ss. 11 and 12 of the 1961 Act, inasmuch as the Special Officer, who exercised the powers of the Committee/Board of the society never made any application for any amendment to the by-laws and/or the Registrar never issued any notice for the amendment of the by-laws 49. The Special Officer purportedly implemented the directions of the Registrar by saying that it would be implemented with effect from 1-8-1981. This has brought the Branch Managers in the same category as Upper Division Clerks. Their recruitment as Branch Manager thus lost all significance, because under two modes of recruitment that were in vogue, until, the impugned action of the Registrar, is either there could be a direct recruitment of the Branch Managers as was in the case of the petitioners or there could be promotion of the Upper Division Clerks as Branch Managers It will, indeed always, be within the power of the Appointing Authority, if laws permit, to amalgamate more than one cadre/service in one and if Upper Division Clerks and Branch Managers are merged on one padre in accordance with law, no genuine grievance could be made. But in effecting any such merger, it shall always be necessary to take care of the status and positions of various c itegories of employees and to decide as a consequance of merger, how to place them in order of seniority. There shall always be a chance or risk of the fundamental right under Art. 16(1) of the Constitution of India being violated In the case of employees protected by the said Article or otherwise of the contract of service of the employees concerned being violated, if as a consequance of amalgamation of more than one cadre/service, a person holding a superior rank/position is brought down in the gradation list after amalgamation of the cadre/service. Some complaints in this regard have been made before us. We, however, do not propose to examine them, for we find, as we have noticed above, that once the service conditions are delegated to the by-laws, so long as by-laws are not amended in accordance with law, service conditions cannot be altered.
48. We are aware that by-laws of the society do not have the force of law. See the judgment of the Supreme Court in Co-operative Central Bank Ltd. v. Additional Industrial Tribunal 1969-IIL.L.J 698 S.C But they are in the nature of contract of service, because they do contain certain prescriptions to bind a society on the one band and the employees on the other, in so far as they provide for the service conditions of the employees. It is not difficult to see and hold in conformity with the principles of law, that all functions either of the Registrar of Co-operative Societies or the Special Officer appointed under the Tamil Nadu Co-operative Societies Appointment of Special Officers Act, 1976 must conform to the provisions of the 1961 Act and in so far the commands of the 1961 Act are concerned, they impose upon the Registrar and the Special Officer ‘a public duty. A public duty’ as spelt out from the provisions of the Tamil Nadu Co-operative Societies Act and the Rules framed there-under must be deemed to be in the field occupied by the by-laws do not have any force of law, they have to be registered and approved before registration by the Registrar of Co-operative Societies.
49. We have already noticed the law laid down by the Supreme Court that a writ, order or direction will not be denied to a party, merely because the impugned actions of a person in authority are violative of a contract or in delegation of the contractual obligations. Both the Registrar and the Speoial Officer have a duty to implement the by-laws. By disregarding the by-laws they failed to perform a public duty. As held by the Supreme Court in the case of Shri Anadi Mukhia Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanthi Mahotsav Smarak Trust (supra)',14 they have made themselves liable to this Court's writs.
50. To conclude, we hold that the impugned actions of merging the Branch Managers and Upper Division Clerks in one cate* gory and fixing their inter se seniority reckoning with effect from their respective dates of joining as Branch Manager or Upper Division Clerks, as the case may be, of the Special Officer of the Salem Central Cooperative Bank Ltd., are stricken by the vice of arbitrariness and since the Special Officer represented the Government of the State, either as their servant, or as their agent, he violated Art. 14 of the Constitution of India, in arbitrarily implementing the directions of the Registrar of Cooperative Societies.
51. In the result, the application is allowed. The respondents are directed to forbear from implementing the merger of the Branch Managers and the Upper Division Clerks in one category until the bye-laws are amended in accordance with law and accordingly service conditions are altered, and restrained from interfering with their service conditions by placing them in the common cadre of the Branch Managers and Upper Division Clerks and/or superseding them by giving promotion to the Upper Division Clerks over their heads. There shall be no order as to costs.
RR/VCS.