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MAHADEV PRASAD versus REGISTRAR CO

High Court of Judicature at Allahabad

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Mahadev Prasad v. Registrar Co-Opretive Societies - WRIT - A No. 2346 of 1990 [2007] RD-AH 8666 (8 May 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Hon'ble Rakesh Tiwari, J

Heard counsels for the parties and perused the record.

Briefly stated, the facts of the case are that the petitioner is an employee of Primary Agricultural Co-operative Credit Societies registered under the U.P. Co-operative Societies Act, 1965. His services are govered by U.P. Primary Agricultural Co-operative Credit Societies Centralized Service Rules, 1976 (hereinafter referred to as 'the Rules of 1976').

The petitioner was initially appointed as Assistant Secretary on 15.10.1975 in Sadhan Sahkari Samiti Ltd., Khora Bar, Gorakhpur. State of U.P. issued Government order no. C-55/Service Cell/Order dated 16.10.1985 to the effect that the Primary Agricultural Co-operative Credit Societies engaged in the business of lending money to the extent of three lacs will appoint Officiating Secretary and such Societies were restrained from appointing Secretaries from Centralized service.  

Vide Government order dated 6.4.1988  appended as Annexure II to the writ petition, the State Government directed for regularization of the services of such ad hoc Secretaries appointed prior to 1.5.1983.

Vide Government Order dated 29.4.1988, appended as Annexure III to the writ petition, it was directed not to make fresh appointment to the post of Secretary and retain ad hoc Secretaries appointed earlier.  

The grievance of the petitioner is that impugned order dated 1.12..1989 has been passed by the respondent no. 2 reverting the petitioner to the original post in clear violation of the Government order dated 29.4.1988.  The petitioner claims that till filing of the writ petition, he did not hand over charge to newly appointed Secretary.

At the time of admission,  the following ad interim order was passed:-

"Hon. K.P.Singh, J

Hon. D.P.S. Chauhan, J

Issue notice.

Until further orders of this Court, the operation of the imugned order dated 1.12..1989 contained in Annexure IV to the writ petition shall remain stayed.

Ten days time is granted to the opposite party to file counter affidavit. Thereafter ten days to the petitionr to file rejoinder affidavit, if any. Let the stay matter be listed before the appropriate Bench after the expiry of the said period.

Dated 5.3.90                                 Sd/- K.P.Singh,J

                                                     Sd/- D.P.S. Chauhan,J

Counsel for the petitioner could not explain as to how  Primary Agricultural Co-operative Credit Society is 'State' within the meaning of Article 12 of the Constitution of India. In view of judgment rendered by Hon'ble the Apex Court in  General Manager, Kisan Sahkari Chini Mills Ltd., Sultanpur, U.P. Vs Shatrughan Nishad & Others, (2003) 8 S.C.C. 639.                            the writ petition appears to be not maintainable, .  Even if it is assumed that the  Primary Agricultural Co-operative Credit Society is 'State' within the meaning of Article 12 of the Constitution, the petitioner has alternative remedy to approach U.P.State Public Service Commission as the dispute requires findings of facts on the basis of documentary and oral evidence which may be adduced by the parties.  It is not feasible to take oral and documentary evidence under Article 226 of the Constituion in every case particularly when an alternate and efficacious remedy is available to the petitioner for the purpose.

In U.P. State Bridge Corporation Ltd. Vs. U.P. Rajya Setu Nigam S. Karmchari Sangh -(2004)4 SCC-268=2005 AIR SCW-3129, Hon'ble the Apex Court has held that :-

".............Doubtless the issue of alternative remedy should be raised and decided at the earliest oportunity so that a litigant is not prejudiced by the action of the Court since the objection is one in the nature of a demurer.  Nevertheless, even when there has been such a delay where the issue raised requires the resolution of factual controversies, the High Court should not, even when there is a delay, short-circuit the process for effectively determining the facts.  Indeed, the factual controversies which have arisen in the case remain unresolved.  They must be resolved in a manner which is just and fair to both the parties. The High Court was not the appropriate forum for the enforcement of the right and the learned Single Judge in Anand Prakash case had correct refused to entertain the writ petition for such relief."

  It is the consistent view of Hon'ble the Supreme Court in Hindustan Steel Works Construction Ltd., and another Vs. Hindustan Steel Works Construction Ltd., Employees Union-(2005)6 SCC-725 and U.P. State Spinning Co. Ltd. Vs. R.S. Pandey and another (2005)107 FLR-729 that in case alternate and efficacious remedy is available it should not be bye-passed and writ petition should not be normally entertained by the High        Court under Article 226 of the Constitution of India and the petitioner has to approach this Court after availing alternate remedy.

The petitioner has an alternate and efficacious remedy before the Labour Court/U.P. State Public Service Tribunal, as held in Chandrama Singh V. Managing Director U.P.Co-operative Union Lucknow and others- (1991)1UPLBEC(2)-898.  

For the reasons stated above, I am not inclined to interfere in the matter in exercise of powers under Article 226 of the Constitution as it requires findings of facts to be recorded on the basis of of oral and documentary evidence.

The writ petition is dismissed on the ground of alternate remedy.   No order as to costs.

Dated 8.5.07

kkb


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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