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PETITIONER: KULCHHINDER SINGH & ORS.

       Vs.

RESPONDENT: HARDAYAL SINGH BRAR & ORS.

DATE OF JUDGMENT18/03/1976

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. CHANDRACHUD, Y.V.

CITATION:  1976 AIR 2216            1976 SCR  (3) 680  1976 SCC  (3) 828

ACT:      Constitution of  India-Article 226  and  227-Whether  a contractual obligation can be enforced by writ jurisdiction.

HEADNOTE:      The appellants  are permanent  servants of  the  Punjab State Co-operative  Land Mortgage  Bank and  were working as Assistants  since  the  year  1968.  The  grievance  of  the appellants is  that the contesting respondents were directly recruited to  the higher post of Inspecting officers, Junior Accountants and  Accountants in  violation of Service Rules. What the  appellants call  Service Rules  is nothing  but  a contract arrived at as a result of the collective bargaining with  the   management.  The  writ  petition  filed  by  the appellants was dismissed by the learned single Judge as well as the  Division Bench  of High  Court on the ground that no writ petition was maintainable against a Cooperative Society under Article  226 of the Constitution. On appeal by special leave the appellants contended:           (1)  The co-operative  Bank in  question is "other                authority" within  the meaning  of Article 12                of the  Constitution  and,  therefore,  falls                with in the definition of State.           (2)  The Co-operative Bank is a public authority.           (3)  Co-operative Societies  registered under  the                Co-operative Societies Act are subject to the                jurisdiction of High Courts under Article 226                of the  Constitution, since this provision is                widely worded  writs may  be issued  for  any                purpose against any person.      Respondents contended:           (1)  that  the  Co-operative  Bank  is  not  other                authority or  a public  authority and no writ                can lie against it.           (2)  The appellants  are  trying  to  enforce  the                contractual obligation  for which no writ can                lie....      Dismissing the appeal, ^      HELD: (1) The Court did not decide the question whether a  Co-operative   Society  is   other  authority  or  public authority because  it is  clear from  a close perusal of the

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writ petition  that essentially  the appellants  are seeking merely to  ensure an  agreement  entered  into  between  the employees and  the Co-operative  Bank. At its best, the writ petition seeks  enforcement of  a binding  contract but  the neat and  necessary repellant is that the remedy of Art. 226 is unavailable  to enforce  a contract  qua contract. We are aware of  the wide  amplitude of  Article 226 and its potent use to  correct manifest  injustice but  cannot  agree  that contractual obligations  in the ordinary course without even statutory complexion  can be  enforced  under  Article  226. [683F-H, 684-D]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 747 of 1975.      Appeal by  Special Leave  from the  Judgment and  order dated the  5-12-74 of  the Punjab  and Haryana High Court in Civil Writ Petition No. 6344/74.      M. K.  Ramamurthi, J.  Ramamurthi and  Ramesh C. Pathak for the appellants. 681      J. L.  Gupta, Janendra  Lal  and  B.  R.  Agarwala  for Respondents Nos. 5 to 22/75.      The Judgment of the Court was delivered by      KRISHNA IYER,  J.-This Civil  Appeal, by  special leave under Art.  136, raises  a common  question of great moment, the decision  of which  may have a wider litigative fall-out than  may   appear  on   the  surface.  The  first  question expressed, manu  brevi, is  as to  whether a writ may issue, under Art.  226, against  a  Society  registered  under  the Punjab Cooperative  Societies Act  (Act XXV of 1961) setting aside a  selection list  at the  instance of  the  aggrieved appellants who  were not  included therein.  The High  Court (both the  learned Single  Judge  and  the  Division  Bench) following an earlier judgment of that Court in Dharam Pal v. State of  Punjab held  the writ  petition to be incompetent, directed as it was against a Cooperative Society.      Shri M.K. Ramamurthy challenges the holding of the High Court on  the score  that the  Punjab State Cooperative Land Mortgage Bank  Ltd.,  (State  Bank,  for  short)  is  ’other authority’ within the meaning of Art. 12 of the Constitution and,  therefore,  falls  within  the  definition  of  State. Consequently, a  writ may  issue against  it.  Secondly,  he contends that  the State  Bank is  a public  authority  and, therefore, falls   within  the writ jurisdiction of the High Court. His  third plea  is much  wider in  its sweep, for he urges  that   Cooperative  Societies  registered  under  the Cooperative Societies Act are subject to the jurisdiction of High Courts  under Art.  226 of the Constitution, since this provision is  widely worded  and writs may be issued for any purpose against any person.      Foremost among  his three points is the first one which he expressed  with force,  backed by decisions of this Court spanning a period ending with the recent decision in Sukhdev Singh v.  Bhagatram. According  to his submission, the State Bank is  more than  a  cere  Cooperative  Society,  but  has statutory powers  and duties,  exercises sovereign functions and must  be assessed  in its  status with  reference to the Punjab Land Mortgage Bank Act, 1957 (for short, the Mortgage Bank Act).  Chronologically we  may mention that there was a Cooperative Societies  Act, 1954  in the  Punjab under which the  present  Society  was  registered,  but  that  Act  was repealed by  the Punjab  Cooperative Societies  Act of  1961

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(hereinafter referred  to as the Cooperative Societies Act). The present  Society, though  registered under  the 1954 Act continues as  a Society under the Cooperative Societies Act, 1961 and  is a  State Bank,  as defined  in s.  2(h) of  the Mortgage  Bank  Act.  A  study  of  the  two  statutes,  the trappings attaching  to the  Society, the  other features of and powers  vested in the Society, have all to be studied in their  totality   before  testing   the  contention  of  the appellant in the light of the ruling of the Court.      Although great  argument  has  been  addressed  in  the special circumstances  of the  case, there  is  no  need  to investigate these  questions apart from briefey adverting to them. Maybe, in a different case, 682 where these  issues directly  and  inescapably  arise,  this Court may  have to pronounce on them, but where as here, the lis lends  itself to disposal on a short point, to launch on a long debate about other arguments of importance may not be appropriate. Of  course, ’if  you were to make little fishes talks, they  would talk like whales’, as Dr. Johnson put it. The whales  of legal  dispute do not challenge us here since the appellant  is seeking  relief which,  on the face of it, cannot be  granted for  a different  ’little fish’ reason. A finger-nail sketch  of the  facts is enough to bring out the crucial issues  and the  broad point  on which we propose to dispose of this appeal.      The appellant  is a  permanent servant  of  the  Punjab State Cooperative Land Mortgage Bank hereinafter referred as the Cooperative  Bank) since 1964 and promoted in 1968 as an Assistant. According  to him,  the  Cooperative  Bank  is  a statutory body established in pursuance of the Land Mortgage Bank Act,  1957, with power to frame subordinate legislation and thereby  enjoying sovereign  power. Sections 11, 12, 15, 22 and 40 have been invoked to substantiate this thesis. The purpose of  this branch  of the appellant’s submission is to make out  that the  Cooperative Bank  is ’State’  within the meaning of  Art. 12  of  the  Constitution  and,  therefore, subject  to  Art.  16  of  the  Constitution  and  the  writ jurisdiction under  Art. 226.  A further  argument has  been built on  the edifice  of the statutory provisions contained in the  Punjab Cooperative Societies, Act, 1961. Section 84A of  this   Act  empowers   apex  societies   under   certain circumstances, to  frame rules  for their employees and such rules, it  is contended,  have been framed, having the force of law. The Cooperative Bank is therefore a public authority which, in  any view,  is vulnerable  to the writ of the High Court under  its  extra-ordinary  constitutional  power.  Of course, Shri  M. K. Ramamurthy has contended that even apart from all  these considerations,  any cooperative society, in view of  its constitution under statutory provisions, may be amenable to the writ jurisdiction of the High Court.      His specific  grievance in  the present  case  is  that promotions  to  three  categories  of  higher  posts,  viz., Assistant  Inspecting   Officers,  Junior   Accountants  and Accountants were made by direct recruitment contrary to what he contends  are service  rules but,  in substance,  are the result of  collective bargaining with the management, as the writ petition itself reveals. These triple categories of new posts have been filled, admittedly, without reference to the quota set apart for promotees, the defence of the respondent being that these new cadres are not covered by the agreement referred to in the writ petition.      The High  Court was approached when a real apprehension of direct  recruitment arose,  praying for  a writ, order or direction in the nature of mandamus requiring the respondent

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not to  proceed with  the processes  resulting in filling up the posts  of Accountants,  Junior Accountants and Assistant Inspecting Officers in violation of the quota of 75% claimed by the  appellant, under the agreement alleged to be binding on the  Cooperative Bank  and the  employees. Of Course, the recruitment went  on and the new appointees are also arrayed as respondents in the writ petition. However, the High Court dismissed 683 the writ  petition on  the preliminary  ground that the writ was,  in   fact,     directed  against  a  Cooperative  Bank registered under  the Cooperative  Societies Act and no writ would lie  against such  a body in the circumstances set out in the writ petition. Indeed, the distinction between a body with a personality created by and owing its existence solely to a  statute and  an entity  which is  recognised by and is registered under a statute is real, dramatic and makes for a world of  difference in  jural impact. Considerable argument was addressed  before us  based on  the rulings  reported as Mohanlal; Tewary,  Sukhdev; and  Praga Tools, apart from the ruling of this Court in Lakshmi Narain.      The question  as to  whether a Cooperative Society is a public authority  has fallen  for judicial  notice and  Amir Jamia contains  an elaborate  discussion of the controversal topic covering  decisions, English  and Indian.  It is  also true that  at least  Madhya Pradesh (Dukhooram-1961 v. M. P. 269)  and   Calcutta  (Madan   Mohan-  1966  Cal.  23)  have considered whether  a writ  will issue against a Cooperative Society, simpliciter,  Kumkum Khanna  deals with  a  private college governed by a University Ordinance.      Many other  rulings  have  also  been  brought  to  our notice, but  we do  not think  it necessary  elaborately  to investigate these  issues notwithstanding the fact that Shri Gupta, appearing  for the  contesting respondent, challenged each one  of the  grounds  stabilising  his  submissions  on rulings of  the Court,  of the  High Courts  and the English Courts.      The reason  why we  are not  inclined  to  add  to  the enormous erudition on the point already accumulated in case- law is  that a  close perusal  of  the  writ  petition  will disclose that essentially the appellant is seeking merely to enforce an  agreement entered into between the employees and the Cooperative Bank.      There is  no doubt  that some  of  the  legal  problems argued by  Sri Ramamurthy  deserve in  an  appropriate  case jurisprudential study  in depth,  although  much  of  it  is covered by  authority. But  assuming, for  argument’s  sake, that what he urges has validity, the present case meets with its instant  funeral from  one fatal  circumstance. The writ petition, stripped  of embroidery  and  legalistics,  stands naked as  a  simple  contract  between  the  staff  and  the Society, agreeing upon a certain percentage of promotions to various posts or an omnibus, all-embracing promise to give a quota to  the existing  employees. At  its  best,  the  writ petition seeks  enforcement of  a binding  contract but  the neat and  necessary repellant is that the remedy of Art. 226 is unavailable  to enforce  a contract qua contract. We fail to see  how a  supplier of  chalk to  a government school or cheese to a government hospital can ask for a constitutional remedy under  Art. 226  in  the  event  of  a  breach  of  a contract, bypassing the normal channels 684 of civil  litigation. We  are  not  convinced  that  a  mere contract agreeing  to a  quota of  promotions can be exalted into a  service rule  or statutory duty. What is immediately

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relevant is  not whether  the respondent  is State or public authority but  whether what  is enforced is a statutory duty or sovereign  obligation or  public  function  of  a  public authority. Private  law may  involve a  State,  a  statutory body, or  a public  body in contractual or tortious actions. But they cannot be siphoned off into the writ jurisdiction.      The controversy before us in substance will turn on the construction and  scope of the agreement when the claim to a quota as  founded cannot  be decided  in  writ  jurisdiction without going  back  on  well-settled  guidelines  and  even subverting  the  normal  processual  law-except  perhaps  in extreme cases  which shock  the conscience  of the  Court or other extra-ordinary  situation, an aspect we are not called upon to  explore here. We are aware of the wide amplitude of Art. 226  and its  potent use  to correct manifest injustice but  cannot   agree  that  contractual  obligations  in  the ordinary course,  without even  statutory complexion, can be enforced by this short, though, wrong cut.      On this  short ground  the  appeal  must  fail  and  be dismissed. We do so, but without costs. P.H.P.                                     Appeal dismissed. 685