The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.36272 of 2022 Anam Charan Mahala …. Petitioner Mr. Kshirod Kumar Rout, Advocate -versus- State of Odisha and others …. Opposite Parties Mr. A.K. Mishra, A.G.A along with Mr. S.N. Das, A.S.C. Mr. Sougat Dash, Advocate appearing for Intervener JUSTICE A.K. MOHAPATRA CORAM: Order No. ORDER 18.07.2023 07. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical Mode). 2. Heard Mr. K.K. Rout, learned counsel appearing for the Petitioner; Mr. Amiya Kumar Mishra, learned Additional Government Advocate along with Mr. S.N. Das, learned Additional Standing Counsel appearing for the State-Opposite
Legal Reasoning
Parties; and Sri Sougat Dash, learned counsel appearing for the Intervener. Perused the pleadings of the parties as well as materials placed before this Court for consideration. 3. The present writ petition has been filed by the Petitioner describing himself to be a primary member of Kendrapara Printing and Publishing Cooperative Society Limited and he was elected uncontested as a member of the committee, seeking for // 2 // issuance of an appropriate writ for quashing the advertisement
Decision
under Annexure-1 to the writ petition. 4. The advertisement under Annexure-1 reveals that the Government of Odisha, Cooperation Department has published an advertisement for recruitment of Chief Executive Officer (Managing Director) of the Odisha State Cooperative Bank Ltd. Under the aforesaid advertisement, applications were invited from eligible and desirable candidates and the last date of submission of application was 22.12.2022. The said advertisement has been published under the signature of the Additional Secretary to Government of Odisha, Cooperation Department. Learned counsel for the Petitioner seeks to assail the advertisement under Annexure-1 on the principle ground that the advertisement issued under signature of the Additional Secretary to Government of Odisha of the Cooperation Department is illegal and the same is not supported by either by the Bye-Laws of the Bank or the Odisha Cooperative Societies Act. He further contended that in view of the provision contained in Section-28(3-b)(1) of the Odisha Cooperative Society Act, 1962, the Chief Executive Officer of the Bank is to be appointed on whole time basis by the Committee subject to the approval of the Registrar. 5. The Bye-Laws of the Odisha State Cooperative Bank Limited which has been annexed to the writ petition as Annexure-3 under the heading ‘Officers’ and on Clause- 41(iii)(a) also provides that the Managing Director of the Bank // 3 // shall be the Chief Executive Officer of the Bank who shall be subject to the overall control of the Committee. It is also provides the qualification of the Chief Executive Officer shall be such as may be stipulated by the National Bank in consultation with the Reserve Bank of India and is to be appointed by the Managing Committee subject to approval of the Registrar under the provision of the O.C.S. Act and Rules. 6. Mr. Rout, learned counsel appearing for the Petitioner referring to the provisions contained in O.C.S. Act, 1962 as well as the Bye-Laws of the Odisha State Cooperative Bank Limited in Claue-41(iii)(a), contended before this Court that State Government has no authority to issue the advertisement and, accordingly, they cannot be appointed the Managing Director/Chief Executive Officer of the Bank. Such an attempt by the State-Opposite Parties in issuing the advertisement, according to the learned counsel for the Petitioner, is contrary not only the provisions of the O.C.S. as well as the Bye-Laws of the Bank. Accordingly, the Petitioner has approached this Court by filing the present writ petition with a prayer to quash the advertisement under Annexure-1 to the writ petition. 7. M. A.K. Mishra, learned Additional Government Advocate along with Mr. S.N. Das, learned Additional Standing Counsel appearing for the State-Opposite Parties, referring to the counter affidavit filed by the State-Opposite Parties, submits that it is an undisputed position of law that Chief Executive Officer/Managing Director of the Bank is to be appointed by the // 4 // Committee of the Management of the Bank. In the said context, Mr. Mishra, learned counsel appearing for the State-Opposite Parties referred to the provisions of the law and the Bye-Laws of the Bank. It is also contended by Mr. Mishra that the tenure of the previous Managing Committee had expired on 27.7.2020. Thereafter, the Registrar of Cooperative Societies has appointed an Administrator for the Bank. The Administrator so appointed by the RCS is looking after the management of the Bank as of now. Therefore, it is contended that unless a full time Chief Executive Officer/Managing Director of the Bank is appointed, it is difficult on the part of the Administrator to manage the affairs of the Bank. 8. In course of his argument, Mr. Mishra drawing attention of the Court to Annexure-A/1 (Series) to the counter affidavit filed by the Opposite Party No.1, submits before this Court the Administrator of the Bank has passed a resolution on 23.08.2022. The said resolution dated 23.08.2022 reveals that the Cooperation Department, Government of Odisha, as a matter of practice, has been appointing the Managing Director of the Odisha State Cooperative Bank Ltd. Therefore, he has decided to request the Government of Odisha in Cooperation Department to conduct recruitment to Managing Director/CEO of the Bank observing all the norms as prescribed by the NABARD/RBI and the RCS, Odisha. Accordingly, a letter was issued to the Special Secretary to Government of Odisha, Cooperation Department by the then Managing Director of the Odisha State Cooperative // 5 // Bank Ltd. on 24.08.2022 requesting the Government to take steps for recruitment of a whole time CEO of the OSCB Ltd. (Bank) conforming to the requirement of law/rules/guidelines. It is only on the basis of such request made by the Managing Director on the basis of resolution dated 23.08.2022, the Cooperation Department, Government of Odisha has published the advertisement under Annexure-1. Therefore, Mr. Mishra, learned Senior Counsel appearing for the State-Opposite Parties submitted that the State-Opposite Parties have not committed any illegality in publishing the advertisement under Annexure-1 to the writ petition. 9. In reply to the aforesaid submission of the learned Additional Government Advocate appearing for the State- Opposite Parties, learned counsel for the Petitioner submitted that there is no dispute with regard to the proposition that the Managing Director/CEO of the Bank is to be appointed by the committee of the management subject to the approval of the RCS. Referring to the resolution dated 23.8.2022 passed by the Administrator, learned counsel for the Petitioner submitted that the Administrator has taken note of the fact that as a matter of practice, the Government of Odisha has been appointing the Managing Director of OSCB. He further submits that if that is correct, then the Opposite Parties are violating not only the Bye- Laws of the Bank, but also the provisions contained in Section- 28 of the OCS Act, 1962. It is also contended that the process of recruitment and the consequential appointment of the Managing // 6 // Director/CEO of the Bank comes within the sole domain of the committee of the Management and the Government has no such role in such recruitment of the CEO of the Bank. Accordingly, it is submitted that the practice adopted in the present case by issuing an advertisement by the Cooperation Department under Annexure-1 is in violation of the legal provision which governs the field, so far the recruitment of the CEO is concerned. Finally, it is contended by Mr. Rout, learned counsel appearing for the Petitioner that in the meantime the election to the committee management of the Bank has already taken place and a new committee has been constituted in the meantime. 10. Mr. Dash, learned counsel appearing for the Intervener, on the other hand, that the Petitioner has no locus standi to file the present writ petition. He further submitted that the only intention of the Petitioner is to delay the entire process of recruitment and appointment of the Managing Director of the Bank. While supporting the stand of the State-Opposite Parties, he further contended that the writ petition be dismissed and the State- Opposite Parties be directed to go ahead with the recruitment and appointment of the Managing Director/CEO of the Bank. 11. Having heard the learned counsels appearing for the respective parties and upon a careful consideration of the submissions made as well as on careful examination of the background facts and the pleadings as well as the materials that was placed on record, this Court is of the view that the sole question involved in the preset writ petition is as to who is the // 7 // competent authority to appoint the Managing Director/CEO of the Bank and as to whether the procedure adopted in the present case is inconsonance with the provisions of the Bye-Laws and the OCS Act? When answering the aforesaid question, this Court deems it proper to refer to the provisions contained in Section- 28(3-b)(1) of the Co-operative Societies Act, 1962, which read as thus:- “Notwithstanding anything contained in this Act, there shall be a Chief Executive for every society, by whatever designation called, who shall be appointed on whole time basis by the Committee subject to the approval of the Registrar. Such Chief Executive shall be deemed to be a member of the Committee in the case of an apex society and any other society or class of societies as the State Government may, by notification from time to time, satisfy.” 12. It is also relevant to refer the Clause-41(iii)(a) of the Bye- Laws of the Odisha State Cooperative Bank Ltd., which is quoted herein below:- “The Managing Director shall be the Chief Executive Officer of the Bank subject to the overall control of the Chief the Committee. The qualification of Executive Officer shall be such as may be stipulated by the National Bank in consultation with Reserve Bank of India and appointed by the Managing Committee subject to the approval of the Registrar under provisions of the OCS Act and the Rules thereunder and fit and proper criteria and guideline issued from time to time.” 13. On a careful reading of the aforesaid two provisions, this Court is of the considered view that there is no doubt that the Committee of the Management is the Appointing Authority of // 8 // the Managing Director. However, such appointment shall be subject to the approval of the Registrar of Cooperative Societies. Keeping in view the aforesaid principles in mind, this Court while examining the resolution dated 23.8.2022 annexed to the counter affidavit observed that the Administer in the resolution dated 23.8.2022 has mentioned that the Government of Odisha, as a matter of practice, has been appointing Managing Director of the OSCB. If that is the practice adopted by the Government, then this Court has no hesitation in coming to a conclusion that such a practice is an illegal and erroneous practice in view of the provision referred to hereinabove. 14. On further examination of the record, this Court also found that at relevant point of time there is no committee of management. Therefore, under the provisions of the OCS Act, 1962, the RCS, Odisha had appointed an Administrator, who is in-charge of the Management. Therefore, when the office of the Managing Director/CEO in absence, the Administrator passed the resolution and requests the Government to initiate a recruitment process. Accordingly, the advertisement under Annexure-1 came to existence. This Court believes that the procedure followed in the present case was under the exceptional circumstance when there is no committee of management. Further, it is observed that now the scenario has changed and after election there is a committee of management of the Bank. 15. In the aforesaid factual backdrop and analysis of the legal position, this Court is of the considered view that the dispute // 9 // involved in the present case can very well be resolved by remanding the entire issue back to the committee of management of the Odisha State Cooperative Bank Limited. 16. Accordingly, it is directed that the entire matter be placed before the committee of the management of the Odisha State Cooperative Bank Limited within two weeks from today. The committee of the management of the Odisha State Cooperative Bank Limited shall do well to take a decision in accordance with the Bye-Laws as well as the provisions of the OCS Act, 1962 without being influenced by any other factor. It is further directed to follow the provisions of the OCS Act, 1962 and the Bye-Laws scrupulously, so far the same provides for appointment of the Managing Director/CEO of the Bank. Let the entire exercise be completed within a period of two months from today. 17. With the aforesaid observation and direction, the writ petition stands disposed of. Debasis ( A.K. Mohapatra ) Judge Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Designation: PA Reason: Authentication Location: OHC CUTTACK Date: 21-Jul-2023 17:45:51