Sonali Shivram Dupare; Smita Amrut Patil; Tushar Madhukar Shelar v. The Thane District Central Co-operative Bank; The District Deputy Registrar, Thane District Co-operative Societies; The Commissioner of Co-operation Maharashtra State; State of Maharashtr

(i) the preliminary objection raised by Mr. Hatle on maintainability;

(ii) whether there were any irregularities in recruitment process ? and

(iii) if there were irregularities, what should be the outcome.

A. MAINTAINABILITY:-

8 On the issue on maintainability. Mr. Hatle relied upon an unreported judgment of this court in the matter of Vikram Dhondiram Raskar & Ors. Vs. State of Maharashtra & Ors.[1] to submit that respondent no.1 is not a State. We reject this preliminary objection and will hold that this petition is maintainable because: (a) in the present petition directions have also been sought against respondent no.2 which is admittedly a State to conduct fresh recruitment process for the post that respondent no.1 had advertised, (b) in Vikram Raskar (supra) the Division Bench relied upon various judgments and in the facts and circumstances of that case held that respondent no.4 in that case, which was a Co-operative Bank registered under the said Act, was not a State within the definition of Article 12 of the Constitution of India. We have to observe that all the judgments referred to in Vikram Raskar (Supra) clearly hold that the tests for determining as to when a corporation can be said to be an instrumentality or agency of Government, cannot be conclusive or clinching. It must be based on facts and circumstances of the case, i.e., whether in the light of the cumulative facts whether the body could be considered as instrumentality of State.

9 In this case, (a) there are reliefs sought against the State; (b) as mentioned earlier and the State Government has power to give directions to respondent no.1 in public interest. Section 79A of the said Act provides, if the State Government is satisfied that in the public interest or for the purposes of securing proper management of the business of the society generally or for preventing the affairs of the society being conducted in a manner detrimental to the interests of the members or of the depositors or

1. In Writ Petition No.923 of 2021 pronounced on 22nd July 2022 the creditors thereof, it is necessary to issue directions to any class of societies generally or to any society or societies in particular, the State Government may issue directions to them from time to time, and all societies or the societies concerned, as the case may be, shall be bound to comply with such directions. Exhibit-C to the affidavit in reply of respondent no.1, is one such directions issued by the State Government. It specifically refers to alleged malpractices in recruitment process in various District Cooperative Banks and respondent no.1 is one such bank. Therefore, this is one such indicative fact for us to observe that respondent no.1 should be considered as an instrumentality of the State. Moreover, respondent no.1 has also accepted in the affidavit in reply that it is guided by and it has followed the guide lines issued by the State Level Task Force. If the stand of respondent no.1 is that they are not answerable under Section 226 of the Constitution of India has to be accepted, there was no need for respondent no.1 to even follow the guide lines of the State Level Task Force. Even if we do not express any opinion as to whether respondent no.1 was State within the meaning of Article 12 of the Constitution of India, it is beyond any cavil of doubt that writ petition will be maintainable when the action of respondent no.1, which is a co-operative bank registered under the said Act, to which Section 79A would apply, is violative of statutory provisions [A Umarani Vs. Registrar of Co-operative Societies & Ors.[2] ] Therefore, in view of this, petition is certainly maintainable against respondent no.1 as well.

2. 2004(7) SCC 112

B. WHETHER THERE WERE IRREGULARITIES:-

10 Coming to the second issue to be answered, whether there were irregularities in the recruitment process, we find on record an affidavit filed by one Jyoti Lathkar, affirmed on 12th September 2018. Ms Lathkar is a Government Servant working as Divisional Joint Registrar, Co-operative Societies, Konkan Division, Navi Mumbai and filed the affidavit on behalf of respondent no.3. In this affidavit, it is expressly provided that on inquiry being conducted, irregularities have been found in the recruitment process. For ease of reference, paragraphs 7 to 15 of the said affidavit are scanned and reproduced herein below:

11 Therefore, it is clear from this affidavit of Ms Lathkar on behalf of respondent no.3 that the examination for recruitment process was not conducted by OMR method and the guide lines for scanning of answer sheets or OMR sheets to be made by agency immediately after exam into a CD or soft copy of the same, sealed in presence of 2/3 candidates has not been followed.

12 Mr. Hatle submitted that the expression used in guideline 7.[8] of State Level Task Force is “may” be scanned and not “shall” and, therefore, there is a discretion conferred upon respondent no.1. We are not inclined to accept this submission because respondent no.1 in its affidavit in reply has made a categorical statement that they have strictly followed the guideline 7.[8] of State Level Task Force. It is also not the case of respondent no.1 that in view of the discretion conferred by the use of the word “may” in guideline 7.8, respondent no.1 chose not to follow the guideline 7.8. Moreover, in view of provisions of Section 79A of the said Act, State Government can pass directions to respondent no.1 in public interest. Therefore, to some extent, we would say respondent no.1 is a public authority. There is no doubt that the word "'may" generally does not mean "must" or "shall". But it is well settled that the word "may" is capable of meaning "must" or "'shall" in the light of the context. It is also clear that where a discretion is conferred upon a public authority coupled with an obligation, the word "may" which denotes discretion should be construed to mean a command. We find support for this view in Mohan Singh & Ors v, State Of Uttar Pradesh v. Jogendra Singh 4 and Dinesh Chandra Pandey v. High Court of Madhya Pradesh[5]. If we read the guideline 7.[8] as suggested by Mr. Hatle, it would defeat the very purpose of issuing those guidelines. Moreover, as noted in paragraph 8 of the affidavit of Ms Lathkar quoted above, even the agreement between respondent no.1 and respondent no.2 provides that the recruitment shall be undertaken by the bank as per the guidelines given by the State Level Task Force.

13 It will also be apposite to note that there is no affidavit in reply filed by any respondent denying the allegations, observations and findings given in this affidavit of Ms Lathkar. We have to also note that petitioners had filed further affidavits, one affirmed on 11th February 2021 and other affirmed on 4th March 2021, to bring on record the irregularities committed. To the affidavit of 11th February 2021, petitioners have annexed copies of answer sheets and from that, it appears that though multiple choice questions were there, it was not in OMR method. Moreover, essay type questions have also been given. We would agree with Mr. Anturkar’s submission that answers to essay type questions could be used to increase or reduce the marks given to the candidates. No affidavit in reply denying these affidavits have also been filed by any respondent. In view of the above, it is quiet clear that the statement in the affidavit in reply of respondent nos.[1] and 5 that they strictly followed and have complied with the regulations of State Level Task Force is incorrect statement and on that ground alone their defence should be struck down. Therefore, the only conclusion that we can arrive at is, there has been gross irregularities in the recruitment process.

14 Responding to the affidavit of Ms Lathkar on behalf of respondent no.3, Mr. Hatle submitted that respondent no.2 has filed an affidavit dated 19th July 2018 giving clean cheat to the recruitment process. We are not inclined to accept that affidavit because (a) affidavit on behalf of respondent no.3 is by an officer superior to respondent no.2; (b) affidavit on behalf of respondent no.3 is a later affidavit to which, there is no response,

(c) having examined the additional affidavits on record by petitioner dated

11th February 2021 and 4th March 2021, we are satisfied that the view expressed on behalf of respondent no.3 is a correct view that there has been irregularities in conducting the recruitment process.

C. CONSEQUENCES OF IRREGULARITIES:-

15 Coming to the last issue, in view of our findings that the recruitment process itself was irregular, should the entire examination or selection process conducted be cancelled or only of all those candidates, in whose case malpractice could have been committed have to be cancelled. Answer to that we find in the judgment of the Apex Court in Gohil Vishvaraj Hanubhai & Ors. Vs. State of Gujarat & Ors.[6] In that case, Scrutiny of the answer sheets (OMR) revealed that there were glaring aberrations which

6. (2017) 13 Supreme Court Cases 621 provided prima facie proof of the occurrence of large scale tampering of the examination process. One of the issue that came up for consideration was whether the entire examination process should be cancelled or only of those class who had resorted to malpractice. The Apex Court came to the conclusion that the entire examination process should be cancelled and that would not be violative of Article 14 of the Constitution of India, since all candidates would get opportunity to participate in fresh examination process. Paragraphs 21 to 30 of the said judgment read as under:

24. We are left with the 3rd question – whether the magnitude of the impugned action is so disproportionate to the mischief sought to be addressed by the respondents that the cancellation of the entire examination process affecting lakhs of candidates cannot be justified on the basis of doctrine of proportionality.

25. The doctrine of proportionality, its origin and its application both in the context of legislative and administrative action was considered in some detail by this Court in Om Kumar & Others v. Union of India, (2001) 2 SCC 386. This Court drew a distinction between administrative action which affects fundamental freedoms under Articles 19(1) and 21 and administrative action which is violative of Article 14 of the Constitution of India. This Court held that in the context of the violation of fundamental freedoms (Om Kumar Case, SCC P.408, para 54)

67. But where an administrative action is challenged as “arbitrary” under Article 14 on the basis of E.P. Royappa v. State of T.N., (1974) 4 SCC 3, (as in cases where punishments in disciplinary cases are challenged), the question will be whether the administrative order is “rational” or “reasonable” and the test then is the Wednesbury test. The courts would then be confined only to a secondary role and will only have to see whether the administrator has done well in his primary role, whether he has acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors into consideration or whether his view is one which no reasonable person could have taken. If his action does not satisfy these rules, it is to be treated as arbitrary. In G.B. Mahajan v. Jalgaon Municipal Council, (1991) 3 SCC 91, Venkatachaliah, J. (as he then was) pointed out that “reasonableness” of the administrator under Article 14 in the context of administrative law has to be judged from the stand point of Wednesbury rules. In Tata Cellular v. Union of India, (1994) 6 SCC 651, Indian Express Newspapers Bombay (P) Ltd. v. Union of India, (1985) 1 SCC 641, Supreme Court Employees’ Welfare Assn. v. Union of India, (1989) 4 SCC 187, and U.P. Financial Corpn. V. Gem Cap (India) (P) Ltd., (1993) 2 SCC 299, while judging whether the administrative action is “arbitrary” under Article 14 (i.e. otherwise then being discriminatory), this Court has confined itself to a Wednesbury review always.

68. Thus, when administrative action is attacked as discriminatory under Article 14, the principle of primary review is for the courts by applying proportionality. However, where administrative action is questioned as “arbitrary” under Article 14, the principle of secondary review based on Wednesbury principles applies.”

28. The submission by the appellants is that the mere fact that some of the candidates resorted to some malpractice cannot lead to the conclusion that the entire examination process is required to be cancelled as it would cause undue hardship to huge number of innocent candidates. In other words, the appellants urge this Court to apply the primary review test.

29. We have already held that there were large scale malpractices at the examination process and the State was entitled to take appropriate remedial action. In the context of the occurrence of such malpractice obviously there can be two classes of candidates: those who had resorted to malpractice and others who did not. By the impugned action, no doubt, all of them were treated alike. Whether such herding together would amount to the denial of the equal protection guaranteed under Article 14 is the question.

30 Identifying all the candidates who are guilty of malpractice either by criminal prosecution or even by an administrative enquiry is certainly a time consuming process. If it were to be the requirement of law that such identification of the wrong doers is a must and only the identified wrongdoers be eliminated from the selection process, and until such identification is completed the process cannot be carried on, it would not only result in a great inconvenience to the administration, but also result in a loss of time even to the innocent candidates. On the other hand, by virtue of the impugned action, the innocent candidates (for that matter all the candidates including the wrong doers) still get an opportunity of participating in the fresh examination process to be conducted by the State. The only legal disadvantage if at all is that some of them might have crossed the upper age limit for appearing in the fresh recruitment process. That aspect of the matter is taken care of by the State. Therefore, it cannot be said that the impugned action is vitiated by lack of nexus with the object sought to be achieved by the State, by herding all the candidates at the examination together.” (Emphasis supplied) Mr. Hatle tried to distinguish this judgment by saying that the recruitment process was conducted by a State and not a Co-operative Bank. We reject this submission in view of our finding to issue no.(i) above. If a Co-operative bank, to which State Government can give directions in public interest as provided under Section 79A of the said Act, has not followed those directions in letter and spirit, certainly the judgment in Gohil Vishwaraj Hanubhai (supra) will cover respondent no.1 as well.

16 In the circumstances, Rule is made absolute in terms of prayer clauses (a) and (b), which read as under: “(a) That this Honourable Court be pleased to issue a writ mandamus or writ in the nature of mandamus or any other appropriate writ direction and order under Article 226 of the Constitution of India, 1950 quashing and setting aside the recruitment process conducted by the Respondent No.1 in pursuance of the advertisement dt. 16th October 2017. (b) That this Honourable Court be pleased to issue a writ mandamus or writ in the nature of mandamus or any other appropriate writ direction and order under Article 226 of the Constitution of India, 1950, thereby be pleased to direct the respondent no.2 to conduct the fresh recruitment process by appointing the reputed recruitment agency like Institute of Banking Personal Selection or any other agency which is recommended by the RBI.”

17 We clarify that we have set aside the recruitment process only with regard to Senior Bank Assistant and Junior Bank Assistant. We also clarify that all those who had applied for the recruitment process shall be permitted to reapply and any age restriction to that candidate shall be relaxed. We also clarify that any more candidates who wish to apply may apply in response to fresh advertisement that respondent no.1 shall issue but for them age restriction as per the recruitment rule, will certainly apply.

18 At the request of Mr. Hatle, this judgment is stayed for four weeks from the date this judgment is uploaded. (RAJESH S PATIL, J.) (K.R. SHRIRAM, J.)