Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.P.(C) No.15931 of 2017 In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950 Petitioner *** Sujit Kamar Nayak Aged about 26 years Son of Subash Chandra Nayak At: Badakutuni, P.O.: Kajalaipalli P.S.: Sarankul District: Nayagarh. … -VERSUS- 1. State of Odisha Represented though Commissioner-cum-Secretary Department of Co-operation Bhubaneswar, District: Khordha. 2. Registrar, Co-operative Societies, Odisha, Bhubaneswar, District: Khordha. 3. District registrar, Co-operative Societies Nayagarh, At/P.O./P.S./District: Nayagarh. 4. Assistant Registrar Co-operative Societies, Nayagarh‟ Circle Nayagarh, At/P.O./P.S./District: Nayagarh. W.P.(C) No.15931 of 2017 Page 1 of 89 5. 6. The President of Kajalaipalli Service Co-operative Society Ltd. At/P.O.: Kajalaipalli, P.S.: Sarankul District: Nayagarh. The Secretary of Kajalaipalli Service Co-operative Society Ltd. At/P.O.: Kajalaipalli, P.S.: Sarankul District: Nayagarh. 7. Ranjan Kumar Sahoo Aged about 29 years Son of Giridhari Sahoo At: Badakutuni P.O.: Kajalaipalli P.S.: Sarankul District: Nayagarh. … Opposite parties Counsel appeared for the parties: For the Petitioner : M/s. Amit Prasad Bose, R.K. Mahanta and S.K. Dwibedy, Advocates For the Opposite party Nos.1 to 4 : Mr. Jayant Kumar Bal, Additional Government Advocate For the Opposite party Nos.4 and 5 : M/s. Shashi Bhusan Jena and Satyajit Behera, Advocates For the Opposite party No.7 : M/s. Abhijit Mishra, C.K. Sahoo and C. Das, Advocates P R E S E N T: HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN W.P.(C) No.15931 of 2017 Page 2 of 89 Date of Hearing : 10.03.2025 :: Date of Judgment : 20.03.2025 J UDGMENT Questioning decision taken vide Resolution dated 12.05.2017 of the Kajalaipalli Service Co-operative Society Ltd. in the district of Nayagarh, whereby the Appointment Committee/Managing Committee declared the result positioning Ranjan Kumar Sahoo (opposite party No.7) and Sujit Kumar Nayak (petitioner) at 1st and 2nd respectively, instant writ petition has been filed to invoke extraordinary jurisdiction under the provisions of Articles 226 and 227 of the Constitution of India, with the following prayer(s): “It is, therefore, most humbly prayed that this Hon‟ble Court may graciously be pleased to admit this writ petition, call for the records and after hearing of the opposite parties be pleased to issue writ/writs in the nature of certiorari/mandamus and thereby quash the Resolution of the Appointment Committee and result sheet dated 12.05.2017 under Annexure-6 series and thereby direction may kindly be issued to give appointment to the petitioner for the post of Secretary of Kajalaipalli Service Cooperative Society Ltd. for the greater interest of justice; And for which act of kindness, the petitioner as in duty bound shall ever pray.” Facts: 2. The opposite party No.6-Office of Kajalaipalli Service Cooperative Society Ltd. on 13.05.2016 published an W.P.(C) No.15931 of 2017 Page 3 of 89 advertisement in Odia daily newspaper “Pragativadi” inviting applications for filling up the post of Contractual Secretary by way of direct recruitment on mark basis. 2.1. In response thereto, there were four applicants (namely, Sanghamitra Rout, Debasish Mohapatra, Sujit Kumar Nayak and Ranjan Kumar Sahoo) for the said post of “Contractual Secretary”. The applications were subject to verification in the Meeting of the Appointment Committee held on 28.06.2016. While rejecting the two of the four candidates (Sanghamitra Rout and Debasish Mohapatra), the candidature of the petitioner and the opposite party No.7 were taken into consideration. The Appointment Committee awarded 24.286 marks in favour of the opposite party No.7; whereas the petitioner was awarded 20.084 marks. Accordingly the opposite party No.7 was selected as Contractual Secretary of Kajalaipalli Service Cooperative Society Ltd. and a Resolution was passed on 28.06.2016 to that effect. 2.2. The comparative marks awarded to the petitioner and the opposite party No.7 would depict the following result (relevant columns of the result sheet are reflected hereunder): Total % of marks secured Knowledge in computer applica- tion MA/MSc/ MCom/ MCA/ MBA/ LLM Total Marks Secured Aggregate of marks secured Position W.P.(C) No.15931 of 2017 Page 4 of 89 Petitioner 15.084 5.00 — 5.00 20.084 2nd 14.286 5.00 5.00 10.00 24.286 1st Opposite party No.7 2.3. Since contrary to requirement under the advertisement, the opposite party No.7 was awarded 5.00 marks under the Heading “Other Qualification” with respect to MA/MSc/MCom/MCA/MBA/LLM, the petitioner raised objection by way of representation dated 05.07.2016 addressed to the Assistant Registrar of Cooperative Societies, Nayagarh. In pursuance thereof, a notice bearing No.1248, dated 20.07.2016 was issued contemplating enquiry into the allegations contained in such representation of the petitioner as also other unsuccessful candidates. Accordingly, fresh Meeting was convened on 12.05.2017, wherein the positions of all the four applicants were re-verified/evaluated. The following is the result qua the petitioner and the opposite party No.7, as the other two candidates could not qualify: Total % of marks secured Knowledge in computer applica- tion MA/MSc/ MCom/ MCA/ MBA/ LLM Total Marks Secured Aggregate of marks secured Position Petitioner 15.064 — 14.286 5.00 Opposite party No.7 — — — — 15.064 2nd 19.286 1st 2.4. The case of the petitioner is that, on his objection that the opposite party No.7 should not have been awarded 5 Page 5 of 89 W.P.(C) No.15931 of 2017 marks having in possession of qualification under the Heading “MA/MSc/MCom/MCA/MBA/LLM”, as the same is not eligibility criteria for consideration of merit of the matter in terms of advertisement, the Appointment Committee in its fresh Resolution dated 12.05.2017, conceded to have wrongly awarded, and, accordingly, deleted such 5 marks; nonetheless, said Committee deleted 5 marks awarded in favour of the petitioner under the heading “Knowledge in Computer Application”. Being dissatisfied with such decision of the Appointment Committee vide Resolution dated 12.05.2017 (Annexure-6 series), the petitioner is before
Legal Reasoning
this Court in the present writ petition. Replies of respective parties: 3. This Court while issuing notice in the matter on 04.08.2017, appreciated the argument advanced by the counsel for the petitioner and passed the following order: “Heard Mr. A.P. Bose, learned counsel for the petitioner. The petitioner has filed this writ petition to quash the Resolution of the Appointment Committee and result sheet dated 12.05.2017 under Annexure-6 series. He further seeks for a direction to give him appointment for the post of Secretary of Kajalaipalli S.C.S. Ltd. Mr. A.P. Bose, learned counsel for the petitioner referring to verification of applications done by the Appointment Committee of Kajalaipali PACS Ltd. under Odagaon Block held on 12.05.2017 states that so far as other qualification is W.P.(C) No.15931 of 2017 Page 6 of 89 concerned, both the petitioner and opposite party No.7 have been awarded 5 marks each in Knowledge in Computer Application. In addition to that opposite party No.7 has got more 5 marks in respect of additional qualification MA./M.Sc/M.Com/MCA/MBA/LL.M. Therefore, the petitioner raised objection stating that opposite party No.7 has no additional qualification of MA/MSc/MCom/MCA/MBA/LLM for which 5 marks given to him is to be deducted. If 5 marks will deduct from the marks awarded to opposite party No.7, then the petitioner will be in the first position in the interview. Considering his objection though additional 5 marks given to opposite party No.7 in respect of additional qualification of MA/MSc/MCom/MCA/MBA/LLM have been deducted, similarly, 5 marks have also been deducted in respect of Knowledge in Computer Application acquired by the petitioner. This attempt has been made just to retain opposite party No.7 and to declare him in the first in the interview. That itself is arbitrary and unreasonable exercise of power of the authority. As such, deduction of marks from the awarded marks of the petitioner is absolutely non-application of mind. In view of the above, the matter requires consideration. Issue notice.” 4. In obedience thereof, Counter affidavit has been filed by the opposite party No.4 affirming inter alia the following: “4. That in reply to the averments made in para-1 it is submitted that as per the clause No. 5 (i) of the Rules for governing the appointment and other conditions of service of the employees of the PACS prescribed by the Registrar of Cooperative Societies, Odisha, Bhubaneswar under Section 33-A of the Orissa W.P.(C) No.15931 of 2017 Page 7 of 89 financing Bank as Cooperative Societies Act, 1962, the Managing Committee of the PACS is the appointing authority of all its employees and as per clause 5 (ii), there shall be an Appointment Committee consisting of the President of the PACS being the Chairman, Vice- President and one elected member duly authorized by the Committee of Management, representative of the its members and representative of the Circle Assistant Registrar of Cooperative Societies as the member (convener). Moreover, the Registrar of Cooperative Societies, Odisha, Bhubaneswar has prescribed the model application form, the model advertisement for the post of Secretary of PACS to be filled up by way of direct recruitment vide letter No. 3141 dated 12.02.2014, wherein it is specified that the duly filled in application along with required documents and requisite fees shall be sent to the concerned Secretary of PACS making the recruitment. … The Government of Odisha, Cooperation Department vide letter No. 1074/Coop dated 05.02.2014 has also approved the amendment of the guidelines framed by the Registrar of Cooperative Societies, Odisha regarding the appointment and other conditions of service of the employees of the PACS issued vide memorandum No. 2858 dated 07.02.2011, wherein is method of selection specified. … for direct recruitment The Secretary of Kajalaipalli SCS Ltd., Opposite Party No. 6 by order of the Management has released an advertisement to fill up the post of a contractual Secretary in Kajalaipalli SCS Ltd. by way of direct recruitment which was published in the local daily “Pragativadi‟ on 13.05.2016. Within W.P.(C) No.15931 of 2017 Page 8 of 89 the stipulated period as shown in the advertisement, the Secretary of Kajalaipalli SCS Ltd. had received 4 (four) numbers of application from the intending candidates. As per the clause No. 5 (iii) of the guidelines of the Registrar of Cooperative Societies, Odisha, Bhubaneswar, the Appointment Committee shall recommend the name of the candidate selected for the said post and thereafter, the Managing Committee shall make the appointment. Further, the rule under clause No. 3 (ii) of the guidelines of the Registrar of Cooperative Societies, Odisha says that the Circle Assistant Registrar of Cooperative Societies is only delegated with the power to render approval in support of the selection of the candidate after acceptance of the recommendation of the Appointment Committee by the Committee of Management of the PACS making recruitment and the consent of the financing Bank of the PACS. In the instant case, the Appointment Committee formed by the Kajalaipalli SCS Ltd. has selected the Opposite Party No. 7 for the post of Secretary of Kajalaipalli SCS Ltd. and recommended his name to the Managing Committee for appointment in the said post. So the allegation raised by the petitioner against the Assistant Registrar of Cooperative Societies, Nayagarh Circle, Nayagarh , Opposite Party No. 4 in this point as regard to illegal and arbitrary action in selecting the Opposite Party No. 7 for the post of Secretary of Kajalaipalli SCS Ltd. is not true and thus denied.” 5. In reply to the counter affidavit of the opposite party No.4, rejoinder affidavit has been filed by the petitioner contending that, the appointment of the opposite party W.P.(C) No.15931 of 2017 Page 9 of 89 No.7 for the post of Contractual Secretary of Kajalaipalli Service Ltd. is illegal because the opposite party No.7 do not have all the qualifications as required for the said post. Though the opposite party No.7 does not possess proper Computer Certificate, he got extra 5 marks which should not have been given to him and another 5 marks was granted to the opposite party No.7 for having qualified in Master of Financial Control. Strong objection was raised by the petitioner that the opposite party No.7 was given appointment illegally without following the Guidelines as stated in the advertisement. 6. Justifying the decision taken by the Appointment Committee in its Meeting dated 12.05.2017, the counter affidavit of the opposite party No.7 has made the following assertion: “5. … the petitioner has passed B.A. with Computer application and the Committee has provided him mark for B.A. and inadvertently granted 5 marks extra for computer application, for which selection committee has rightly selected opposite party No.7 for securing more marks than the petitioner. It is submitted that as will be revealed from the B.A. Marksheet of the petitioner which has been enclosed under Annexure-2 series that the petitioner has passed B.A. with Computer Application and when he got mark for his B.A. qualification he should not get any mark for computer application as computer application is one of the subject. W.P.(C) No.15931 of 2017 Page 10 of 89 6. 7. That as regards the averments made in para 7 of the counter it is submitted that as alleged by the petitioner no extra marks has been awarded rather taking into consideration knowledge/certificate in PGDCA the opposite party No.7 has been awarded 5 marks. That as regards the averments made in para 8 of the counter it is submitted that the opposite party No.7 has no idea with regards to information, sought for by the petitioner, however Selection Committee has rightly selected opposite party No.7 and by virtue of selection process the opposite party No.7 was appointed as Secretary of Kajalaipalli, SCS Limited since last 4 years.” 7. The opposite party No.7 filed counter affidavit eliciting that an inquiry report has been submitted to the Appointment Committee/Selection Committee on the basis of allegation of the petitioner and other unsuccessful candidates, consequent upon which a Resolution dated 12.05.2017 was passed after notice being issued to the petitioner and other affected parties. 7.1. It is stated that on detection of mistake that some extra marks were given to the candidates inadvertently, the same was taken into consideration. The Selection Committee decided not to count extra marks given for the purpose of selection. As inadvertently 5 marks were given to the petitioner for Computer Application, such extra marks have been deducted as the Computer Application is one of the subjects reflected in the Page 11 of 89 W.P.(C) No.15931 of 2017 Certificate of Bachelor in Arts. Similarly 5 marks extra given to the opposite party No.7 for acquiring Master of Financial Control has been deleted as the same has no bearing with the selection of Contractual Secretary of the Co-operative Society. 7.2. The Selection Committee has taken into consideration the case of the petitioner vis-(cid:224)-vis opposite party No.7. The opposite party No.7 was given 24.286 marks, i.e., 14.286 as per his career marks and 5 marks for Computer Application and 5 marks for acquiring Master of Financial Control. Extra 5 marks given to the opposite party No.7 for acquiring qualification of Master of Financial Control has been rectified in the later decision of the Selection Committee. The opposite party No.7 after deducting 5 marks secured 19.286 marks. Similarly the petitioner secured 15.064 as career marks and extra 5 marks given to him for acquiring knowledge in computer application. It was found that the petitioner has passed B.A. with Computer Application as one of the subjects. Therefore, it could be found that he was not entitled to extra 5 marks towards “Knowledge in Computer Application”. As per Resolution, dated 12.05.2017, marks would not be given for acquiring same qualification twice— one as elective subject in B.A. and the other by a Private Institute. Therefore, the extra 5 marks given to the petitioner on account of knowledge W.P.(C) No.15931 of 2017 Page 12 of 89 in Computer Application has been deleted. Thus, the petitioner has secured 15.064. Since the opposite party No.7 has secured more marks he has been issued with the order of appointment, for which no illegality have been committed. 7.3. Pursuant to direction of this Court vide Order dated 19.07.2024 to the President of Kajalaipalli Service Cooperative Society Ltd.-opposite party No.5, Memo and written note of submission have come to be filed on 24.01.2025 enclosing therewith documents relating to the petitioner as well as the opposite party No.7. Subsequently, in order to assert the factual position, on 13.02.2025 the said documents were furnished enclosed to an Affidavit dated 11.02.2025 being sworn to by Sri Prafulla Kumar Patasahani, President of Kajalaipalli Service Cooperative Society Ltd., copy of which is shown to have been served on the counsel for the petitioner on 13.02.2025. 7.4. It is affirmed in the said Affidavit dated 11.02.2025 as follows: “2. That, the documents submitted by the petitioner and the opposite party No.7 at the time of selection for the post of Contractual Secretary of Kajalaipalli Service Cooperative Society Limited are Enclosed herewith as Annexures-1 and 2 respectively. The documents submitted by the petitioner at the time of W.P.(C) No.15931 of 2017 Page 13 of 89 selection is enclosed under Annexure-1 and the documents submitted by the opposite party No.7 at the time of selection is enclosed under Annexure-2 of the present affidavit. 3. That, as will be revealed from Annexure-1 and 2 enclosed in the present affidavit the petitioner has never submitted his PGDCA Certificate whereas the opposite party No.7 has submitted his PGDCA Certificate. 4. That, it is also pertinent to mention here that the PGDCA certificate annexed in the page-19 of the writ petition was never provided at the time of selection. Further, the petitioner passed his 10th in the month of February, 2005 and the HSC Certificate was issued in the month of July, 2006 which will be revealed from page-13 of the writ petition but has passed his PGDCA in the month of December, 2006. The petitioner has passed +2 in the year 2007. It is relevant to mention here that PGDCA Course can only be done after 10+2 and not after 10th, for which the PGDCA certificate under Page-19 of the writ petition cannot stand.” Hearing: 8. Pleadings, being completed and exchanged among the learned counsel for respective parties, on their consent, this matter is taken up for final hearing at the stage of admission. W.P.(C) No.15931 of 2017 Page 14 of 89 8.1. Accordingly, heard Sri Amit Prasad Bose, learned Advocate appearing for the petitioner and Sri Satyajit Behera, learned Advocate for the opposite party Nos.5 and 6 and Sri Jayant Kumar Bal, learned Additional Government Advocate appearing for opposite party Nos.1 to 4. None appeared for the opposite party No.7 at time of hearing. 8.2. On conclusion of hearing, the matter stood reserved for preparation and pronouncement of judgment. Analysis, discussions and consideration of contentions: rival 9. Reiterating the facts as narrated in the writ petition, Sri Amit Prasad Bose, learned Advocate appearing for the petitioner submitted that on the basis of complaint, an enquiry was conducted and in pursuance thereof the marks awarded to the opposite party No.7 in respect of Master of Financial Control under the Heading “M.A./ M.Sc./M.Com/M.C.A./M.B.A./LL.M.” was deleted. Thus, while the marks of the petitioner should have been retained at 15.084 (Total % of marks secured) + 5.00 (Knowledge in Computer Application) = 20.084 (Aggregate of Mark Secured), that of the opposite party No.7 should have been assessed at 14.286 (Total % of marks secured) + 5.00 (Knowledge in Computer Application) = 19.286 (Aggregate of Mark Secured). As a result of such re-computation the petitioner should have W.P.(C) No.15931 of 2017 Page 15 of 89 been placed at the 1st position whereas the opposite party No.7 in the 2nd position inasmuch as Sanghamitra Rout was disqualified as “underaged” and Debasish Mohapatra had no residential certificate. 9.1. The relevant portion of the advertisement so far as necessary for the present purpose is extracted hereunder: “Eligibility and Educational Qualification: 1. 2. The candidate must be a permanent resident of the area of operation of Kajalaipalli Service Cooperative Society Ltd.1 The candidate outside the area of operation of the Society but within the area of the Block/District concerned may apply for their candidature can only be considered if no eligible the post, but 1 The following terms are defined in the Odisha Cooperative Societies Act, 1962: “(g-1) (h-2) (k) (l) „Office Bearer‟ means a person elected or nominated to the Committee or appointed under this Act, Rules or Bye-laws of a Society to give directions in regard to the policy concerning the affairs or business of the Society, and includes the President and Members of the Preliminary Committee of a Society. „Primary Society‟ means a Society, membership of which consists of individuals and may include the State or Central Government or both such Governments, as the case may be, or a person admitted as joint or a nominal member.) „Society‟ means a Co-operative Society registered or deemed to be registered under this Act; „Society with limited liability‟ means a Society, in which the liability of its members, for the debts of the Society in the event of its being wound up is limited by its Bye-Laws: (i) to the amount, if any, unpaid on the shares respectively held by them; or to such amount as they may, in accordance with such Be Laws, respectively, undertake to contribute to the assets of the Society; (ii) (m) „Society with unlimited liability‟ means a Society, the members of which are, in the event of its being wound up, jointly and severally liable for and in respect of all its obligations and to contribute any deficit in the assets of the Society;” W.P.(C) No.15931 of 2017 Page 16 of 89 3. 4. candidate is found from the area of operation of the Society. The candidate must be a graduate in any discipline from any recognised university with computer proficiency. Preference/additional points shall be given to the candidate having Higher Diploma in Cooperative Management/M.A./M.Sc./M.Com/M.C.A./M.B.A./ LL.M./B.B.A./Diploma in Cooperative Management recognized and Computer Application University/Institution.” from a 9.2. The Corrigendum dated 14.05.2016 reads thus: “In connection to this Office advertisement for recruitment to one post of Contractual Secretary of Kajalaipalli Service Cooperative Society Ltd. the upper age limit shall be read as 37 years in respect of persons belonging to SC/ST/ OBC including SEBC/Physically handicapped persons and Ex-Servicemen instead of 35 years as published in daily Pragativadi on date 13.05.2016.” 9.3. One of the criteria enumerating eligibility for the post of Secretary of the Kajalaipalli Service Cooperative Society Ltd. is that “the candidate must be a graduate in any discipline from any recognized university with computer proficiency”. Close scrutiny of documents enclosed to writ petition reveals that the petitioner-Sujit Kumar Nayak was awarded Provisional Certificate by the Utkal University having passed Bachelor of Arts “Three Year Degree Course Exam., 2014 from Sukra Behera Degree W.P.(C) No.15931 of 2017 Page 17 of 89 College, Kendudhipi, D.N. Pur, Nayagarh” with the following subjects: “Compulsory Subject(s): M.I.L. Odia, English, Computer Application, Environmental Studies Indian Society and Culture, Elective Subject(s): A: Sanskrit, B: Indian Polity Pass Subject(s): Education” 9.4. The opposite party No.7-Ranjan Kumar Sahoo was awarded Provisional Certificate by the Utkal University having passed Bachelor of Arts “Three Year Degree Course Exam., 2008 from Nayagarh College, Nayagarh” with the following subjects: “Compulsory Subject(s): Eng, MILO, ISC, ES, PS Elective Subject(s): Elective-A : IP, Elective-B : Sans Pass Subject(s): Hons. Subject: Eco” W.P.(C) No.15931 of 2017 Page 18 of 89 9.5. Computer Training Certificate issued by Ramakrushna Educational and Charitable Trust in collaboration with IPE, Bhubaneswar (Sponsored by Ministry of HRD, Government of India) in favour of the opposite party No.7 depicts that he has qualified PGDCA. 9.6. Explaining the factual aspect, Sri Satyajit Behera, learned Advocate for the opposite party Nos.5 and 6 submitted that since the petitioner was awarded 5 marks with respect to “Knowledge in Computer Application” while evaluating the percentage of marks on the basis of certificates furnished inasmuch as he had one of the subjects as “Computer Applications” at the Degree Level, whereas the opposite party No.7 had certificate showing completion of PGDCA course. Therefore, the mark-sheet which was published by the Appointment Committee on 28.06.2016 has been modified/corrected on (re)verification held on 12.05.2017 pursuant to enquiry conducted on the basis of complaint of the petitioner as well as other two unsuccessful candidates. It has been asserted by the opposite party No.5 at paragraph 3 of the Additional Affidavit dated 11.02.2025 that “the petitioner has never submitted his PGDCA Certificate whereas the opposite party No.7 has submitted his PGDCA Certificate”. W.P.(C) No.15931 of 2017 Page 19 of 89 9.7. The counsel for the opposite party Nos.5 and 6 has candidly admitted in his written note of submission as follows: “The representation of the petitioner was considered with regard to grant of 5 marks where: i. ii. It was found that the opposite party No.7 was inadvertently given more 5 marks in Master of Financial Control (MFC) for acquiring certificate of Master of Financial Control as the MFC is no way connected with the selection of cooperative society, subsequently the marks granted to the opposite party No.7 was deducted.
Decision
It was found that the petitioner was also given 5 extra marks as Computer Application inadvertently but subsequently the said 5 marks as extra mark was deducted as the petitioner has passed B.A with Computer Application which is one of the subjects and the same will be revealed from 1st Para Last Line of Page-29 of the writ petition.” 9.8. Above discussion would lead to show that factual dispute does arise in the matter whether the Certificate showing PGDCA qualification was furnished by the petitioner to the Appointment Committee and the re- assessment/re-evaluation was correctly made. 9.9. It may deserve to have reference to Manas Ranjan Rout Vrs. State of Odisha, W.P.(C) No.21779 of 2019, vide Judgment dated 31.05.2021, where a Division Bench of this Court has observed that: W.P.(C) No.15931 of 2017 Page 20 of 89 “12. The Supreme Court in Galaxy Transport Agencies, Contractors, Traders, Transports and Suppliers Vrs. New J.K.Roadways, Fleet Owners and Transport Contractors 2020 SCC OnLine SC 1035, has held as follows: „14. In a series of judgments, this Court has held that the authority that authors the tender document is the best person to understand and appreciate its interpretation should not be second-guessed by a court in judicial review proceedings. In Afcons Infrastructure Ltd. Vrs. Nagpur Metro Rail Corporation Ltd., (2016) 16 SCC 818, this Court held: its requirements, and thus, and appreciate „15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to its understand requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is the mala understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given.‟ (page 825) perversity fide or in W.P.(C) No.15931 of 2017 Page 21 of 89 15. In the judgment in Bharat Coking Coal Ltd. Vrs. AMR Dev Prabha 2020 SCC OnLine SC 335, under the heading “Deference to authority‟s interpretation”, this Court stated: It „51. Lastly, we deem it necessary to deal with another is fundamental problem. obvious that Respondent No. 1 seeks to only enforce terms of the NIT. Inherent in such of contractual terms. However, it must be interpretation of noted contracts in the sphere of commerce stands on a distinct footing than while interpreting statutes. interpretation exercise judicial that is 52. it be to submitting performance In the present facts, it is clear that BCCL and India have laid recourse to Clauses of the NIT, whether justify condonation of delay of Respondent No. 6 in bank guarantees or their decision to resume auction on grounds of technical failure. these BCCL to documents, appreciate their requirements and interpret them. (Afcons Infrastructure Ltd Vrs. Nagpur Metro Rail Corporation Ltd, (2016) 16 SCC 818) authored is better placed having 53. The High Court ought to have deferred to this understanding, unless it was patently perverse or mala fide. Given how BCCL‟s interpretation of these clauses was plausible and not absurd, solely in opinion of contractual differences W.P.(C) No.15931 of 2017 Page 22 of 89 interpretation ought not to have been grounds for the High Court to come to a the appellant committed finding illegality.‟ that 16. Further, in the recent in Silppi Constructions Contractors Vrs. Union of India, 2019 SCC OnLine SC 1133, this Court held as follows: judgment justify „20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest judicial intervention in to matters of contract involving the state instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the court‟s interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to to be how interpreted. interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, or irrationality, the documents have bias, mala If two fides W.P.(C) No.15931 of 2017 Page 23 of 89 perversity. With this approach in mind we shall deal with the present case.‟ ***” 9.10. In Om Gurusai Construction Company Vrs. V.N. Reddy, 2023 INSC 760 it has been succinctly reiterated as follows: “It is well settled by a long line of judgments that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. It has also been held that the constitutional courts must defer to this understanding and appreciation of the tender documents by the employer unless there is mala fide or perversity in the understanding or appreciation. [See Afcons Infrastructure Limited Vrs. Nagpur Metro Rail Corporation Limited and Another, (2016) 16 SCC 818 and Uflex Limited Vrs. Government of Tamil Nadu and Others, (2022) 1 SCC 165].” 9.11. As conspectus of various pronouncements points at that it is the author of the advertisement who is the best judge to interpret the documents and if two interpretations are possible then the interpretation of the author must be accepted, Sri Satyajit Behera, learned Advocate for the opposite party Nos.5 and 6 has set up a stance that the writ petition is not maintainable for the petitioner has approached this Court directly without exhausting remedy available under the Odisha Cooperative Societies Act, 1962. W.P.(C) No.15931 of 2017 Page 24 of 89 9.12. Reliance has been placed by the learned counsel for the opposite party Nos.5 and 6 on Section 67B of the Odisha Cooperative Societies Act, 1962, which reads thus: “67B. Powers of the Tribunal.— (1) (i) Notwithstanding anything contained in any law for the time being in force, any dispute arising in connection with the election of any office-bearer of a Society, or the disciplinary action taken by a Society or its Committee against any paid servant of the Society who is not a workman within the meaning of Clause(s) of Section (2) of the Industrial Disputes Act, 1947, shall be referred to the Tribunal in the manner and within the period prescribed in that behalf. (ii) If any question arises as to whether a dispute referred to the Tribunal under Clause (1) is a dispute within the meaning of that clause, the decision of the Tribunal thereon shall be final and shall not be called in question in any Court. (iii) All disputes arising in connection with the election of any office-bearer of a Society or the disciplinary action taken by Society or its committee against any paid servant of the Society, with whatever authority under this Act, Rules or any Regulations framed under this Act pending as on the date of commencement of the Odisha Co-operative Societies (Amendment) Act, 1991 shall stand W.P.(C) No.15931 of 2017 Page 25 of 89 transferred to the Tribunal which shall dispose of the same in accordance with law. (2) The Tribunal may, pending the decision of the dispute, make such interlocutory orders as it may deem necessary in the interest of justice. (3) The Tribunal may call for and examine records of proceeding in which appeal lies to it, but appeal has not been filed, for the purpose of satisfying itself as to the legality or propriety of any order passed or decision made therein and if any such case it appears to the Tribunal that any order or decision should be revised, modified or annulled, it may make such order as it thinks fit, after affording to the person likely to be affected adversely by such order an opportunity of being heard. (4) While deciding appeals, the Tribunal may exercise all the powers conferred upon the Appellate Court by Order XLI of the first Schedule of the Code of Civil Procedure, 5 of 1908.” 9.13. Elaborating his argument, Sri Satyajit Behera, learned Advocate for the opposite party Nos.5 and 6 objecting to exercise of power under Article 226/227 of the Constitution of India vis-(cid:224)-vis such factual dispute which needs to be adjudicated upon taking recourse to provisions of Section 67B of the Odisha Cooperative Societies Act, would rely on Pramod Kumar Pradhan Vrs. Management of Angul United Central Cooperative Bank Ltd., Angul, W.P.(C) No.15312 of 2011, vide Order dated 16.08.2024, wherein it has been clarified that: W.P.(C) No.15931 of 2017 Page 26 of 89 “5. On perusal of the records and judgment passed in the case of Ch. Ajeet Kumar Das and Ors. Vrs. Registrar, Co-operative Societies, Odisha and Ors., (W.P.(C) No.18641 of 2020 (vide Judgment dated 31.07.2024) issue has it appears that similar already been decided by this Court in the said judgment, which was disposed of on 31.07.2024.. the ordering portion of the said judgment is as follows: „The short question for adjudication in the instant petition is that whether the Opp. Party No.2/bank is amenable to the writ jurisdiction of Court in the involves a service instant writ petition which dispute. Article 12 of the Constitution of India has defined the term „State‟ as follows: „12. Definition.— In this Part, unless the context otherwise requires, „the State‟ includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.‟ The constitutional history reveals that the term „other authorities‟ as referenced in Article 12 has been the judicial examination. This subject of extensive examination has led to the establishment of a comprehensive body of jurisprudence dedicated to its legal framework highlights the significance of “other authorities” in defining the scope of constitutional Page 27 of 89 interpretation. The evolution of this W.P.(C) No.15931 of 2017 rights and governmental powers. In the case of Ajay Hasia and others Vrs. Khalid Mujib, (1981) 1 SCC 722 a Constitution Bench of the Supreme Court, while approving the tests laid down in the case of Ramana Dayaram Shetty Vrs. International Airport Authority of India & Ors., (1979) 3 SCC 489 as to to be an when a Corporation can be said instrumentality or agency of the Government, observed which runs thus: „The tests for determining as to when a corporation can be said to be an instrumentality or agency of Government may now be culled out from the judgment in the International Airport Authority case. These tests are not conclusive or clinching, but they are merely indicative indicia which have to be used with care and caution, because while stressing the necessity of a wide meaning to be placed on the expression „other authorities‟, it must be realised that it should not be stretched so far as to bring in every autonomous body which has some nexus with the Government within the sweep of the expression. A wide enlargement of the meaning must be tempered by a wise limitation. We may summarise the relevant tests gathered from the decision in the International Airport Authority case as follows: (1) One thing is clear that if the entire share capital of is held by Government, it would go a long way towards indicating is an the instrumentality or agency of Government ; the Corporation corporation that (2) Where the financial assistance of the State is so much as to meet almost entire expenditure it would afford some of the corporation, W.P.(C) No.15931 of 2017 Page 28 of 89 indication of the corporation being impregnated with governmental character; (3) It may also be a relevant factorwhether the Corporation enjoys monopoly status which is State conferred or State protected; (4) Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality; (5) (6) If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in an classifying instrumentality or agency of Government ; corporation the as „Specifically, if a department of Government is transferred to a Corporation, it would be a strong factor supportive of this inference‟ of the corporation being an instrumentality or agency of Government. If on a consideration of these relevant factors it is found that the corporation is an instrumentality or agency of Government, it would, as pointed out in the International Airport Authority case, be an „authority‟ and, therefore, „State‟ within the meaning of the expression in Article 12.‟