PIL- challenge - constitutional validity of sec.3 ,77 (3)(b) and Section 77 (6) of M.P. State
Co-operative Societies Act, 1960 - appointment of quasi judicial authorities who have no knowledge in legal filed - High court dismissed the writ - Apex court too dismissed the writ but held that we direct that the State Government shall, keeping in mind the objective of
the Act, the functions which the Registrar, Joint Registrar etc. are required to perform and commensurate with those, appointment of suitable persons shall be made. Likewise, having regard to the fact that the Chairman of the Tribunal is to be a judicial person, namely, Former Judge of the High Court or the District Judge, we are of the opinion that for appointment of the Chairman and the Members of the Tribunal, the respondent- State is duty bound to keep in mind and follow the mandate of the Constitution Bench judgment of this Court in R.Gandhi (supra). Thus, for appointment of the Chairman and Members of the Tribunal, the selection to these posts should preferably be made by the Public Service Commission in consultation with the High Court.=
validity of Section 3 of the M.P. State
Co-operative Societies Act, 1960 (hereinafter referred to as the Act) to
the extent this provision permits the State Government to appoint the
Registrar of the Co-operative Society, as well as Additional Registrar,
Joint Registrar, Deputy Registrar, Assistant Registrar etc. The petitioner
also challenged proviso added to Section 77 (3)(b) and Section 77 (6) of
the Act as unconstitutional. To put it succinctly, the grievance of the
petitioner was that these provisions provide for appointment of persons not
having any education in law, though discharging the judicial function,
which was impermissible and ex-facie violative of Art. 14 and 21 of the
Constitution. The petitioner had even given suggestion to the effect that
the appointments of these presiding officers be made in manner presiding
officers of the labour courts are appointed.=
the High Court
repelled the challenge of the petitioner to the vires of the aforesaid
provisions of the Act and dismissed the Writ Petition filed by the
petitioner.=
APEX COURT HELD
We would like to point out that such quasi judicial powers are given
even to the Election Commission under the Representation of People Act,
1951 in a matter where it decides as to whether to register a political
party or not. This was so made clear in the case of Indian National
Congress (I) vs. Institute of Social Welfare & Ors. 2002 (5) SCC 685.
Notwithstanding that Election Commission under Section 29-A of the said Act
is required to act judicially and the act of Commission, in that capacity,
is quasi judicial, nobody has ventured to say that such functions be
discharged only by a person with judicial/legal background.
19. Having determined the question raised, we would like to emphasize the
need for appointment of suitable persons not only as Registrar, Joint
Registrar etc. but as Chairman and members of the tribunal as well. While
discharging quasi-judicial functions Registrar, Joint Registrars etc. have
to keep in mind that they have to be independent in their functioning.
They are also expected to acquire necessary expertise to effectively deal
with the disputes coming before them. They are supposed to be conscious of
competing rights in order to decide the case justly and fairly and to pass
the orders which are legally sustainable. In this behalf, we would like to
refer to judgment dated 3.9.2013 passed in the Review Petition (C)
No.2309/2012 (Namit Sharma case). In that case, one unfortunate feature
that was noted was that experience over the years has shown that the orders
passed by Information Commissions have, at times, gone beyond the
provisions of the Right to Information Act and that Information Commissions
have not been able to harmonise the conflicting interests indicated in the
preamble and other provisions of the Act. The reasons for this experience
about the functioning of the Information Commissions could be either that
the persons who do not answer the criteria mentioned in Sections 12(5) and
15(5) have been appointed as Chief Information Commissioner or that the
persons appointed even when they answer the aforesaid criteria, they do not
have the required mind to balance the interests indicated in the Act. It
was therefore insisted that experienced suitable persons should be
appointed who are able to perform their functions efficiently and
effectively. In this behalf certain directions were given and one of the
directions was that while making recommendation for appointment of CIC and
Information Commissioners the Selection Committee must mention against name
of each candidate recommended the facts to indicate his eminence in public
life ( which is the requirement of the provision of that Act), his
knowledge and experience in the particular field and these facts must be
accessible to the citizens as part of their right to information under that
Act, after the appointment is made.
20. Taking clue from the aforesaid directions, and having gone through
the similar dismal state of affairs expressed by the petitioner in the
instant petition about the functioning of the cooperative societies, we
direct that the State Government shall, keeping in mind the objective of
the Act, the functions which the Registrar, Joint Registrar etc. are
required to perform and commensurate with those, appointment of suitable
persons shall be made. Likewise, having regard to the fact that the
Chairman of the Tribunal is to be a judicial person, namely, Former Judge
of the High Court or the District Judge, we are of the opinion that for
appointment of the Chairman and the Members of the Tribunal, the respondent-
State is duty bound to keep in mind and follow the mandate of the
Constitution Bench judgment of this Court in R.Gandhi (supra). Thus, for
appointment of the Chairman and Members of the Tribunal, the selection to
these posts should preferably be made by the Public Service Commission in
consultation with the High Court.
21. As a result, subject to the aforesaid directions, this Special Leave
Petition is dismissed.
2014 ( May.Part) http://judis.nic.in/supremecourt/filename=41509
ANIL R. DAVE, A.K. SIKRI
[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION( C) No. 33644/2011
Satya Pal Anand ….Petitioner
Vs.
State of M.P. & Anr. …Respondents
J U D G M E N T
A.K.SIKRI,J.
1. The petitioner herein had filed Writ Petition under Article 226 of
the Constitution in the High Court of Madhya Pradesh, Principal Seat at
Jabalpur, in the nature of Public Interest Litigation. In that petition,
the petitioner has challenged the validity of Section 3 of the M.P. State
Co-operative Societies Act, 1960 (hereinafter referred to as the Act) to
the extent this provision permits the State Government to appoint the
Registrar of the Co-operative Society, as well as Additional Registrar,
Joint Registrar, Deputy Registrar, Assistant Registrar etc. The petitioner
also challenged proviso added to Section 77 (3)(b) and Section 77 (6) of
the Act as unconstitutional. To put it succinctly, the grievance of the
petitioner was that these provisions provide for appointment of persons not
having any education in law, though discharging the judicial function,
which was impermissible and ex-facie violative of Art. 14 and 21 of the
Constitution. The petitioner had even given suggestion to the effect that
the appointments of these presiding officers be made in manner presiding
officers of the labour courts are appointed.
2. The Writ Petition was contested by the respondents on various
grounds. In the first place, the very maintainability of the Writ Petition
was assailed on the ground that the petitioner had not approached the High
Court with clean hands and had suppressed the fact that he was a chronic
litigant whose various cases were pending before the Cooperative Court.
Therefore, he had personal interest in the matter. As such, he was not
competent to file the Writ Petition in the nature of PIL. On merits, it was
submitted that such Registrar, Addl. Registrar etc. function under the
supervision of M.P. State Cooperative Tribunal (in short ‘the Tribunal’).
The Chairman of the Tribunal is a judicial officer. Again, both these
authorities function under the over all superintendence of the High Court
under Art.227 of the Constitution. In several other enactments the
administrative officers perform such quasi judicial functions.
3. After considering the submissions of both the parties, the High Court
repelled the challenge of the petitioner to the vires of the aforesaid
provisions of the Act and dismissed the Writ Petition filed by the
petitioner.
4. Against the aforesaid judgment, present Special Leave Petition is
preferred under Art. 136 of the Constitution. The petitioner has appeared
in person and filed written submissions. At the time of arguments, he
referred to and read out certain portion of those written submissions and
submitted that he did not have to say anything more than what is contained
therein. The learned counsel for the respondents on the other hand relied
upon the reasoning given by the High Court in the impugned judgment to
justify the said order. We have perused the judgment minutely and have also
gone through the written submissions of the petitioner.
5. Before adverting to these submissions, we would like to reproduce the
provisions of the Act which are subject matter of the present challenge:
“3. Registrar and other officers.-
(1) The State Government shall appoint a person to be the
Registrar of Co-operative Societies for the State and may appoint
one or more officers of the following categories to assist him,
namely:
(a) Additional Registrar of Co-operative Societies;
(b) Joint Registrar of Co-operative Societies;
(c) Deputy Registrar of Co-operative Societies;
(d) Assistant Registrar of Co-operative Societies;
(e) Such other categories of officers as may be
prescribed.
xxxxxx xxxxxx xxxxxx”
77. Madhya Pradesh State Co-operative Tribunal.
(3) (b) Of the other two members, one shall be an officer
of Co-operative Department not below the rank of Joint Registrar
and the other shall be non-official closely associated with co-
operative movement or an Advocate or a Pleader having practical
experience for a period of not less than fifteen years:
Provided that if the State Government thinks fit, the
Tribunal may consist of a single person.
xxxx xxxxx xxxxx
(6) Notwithstanding anything contained in sub-section (4)
the State Government may terminate at any time, the appointment of
the Chairman or a member if, in its opinion, such Chairman or
member is unable or unfit to constitute to perform the duties of
his office:
Provided that no appointment shall be terminated under
this sub-section unless the person whose appointment is proposed to
be terminated is given reasonable opportunity of showing cause
against such termination.”
6. With this, now let us first deal with the argument pertaining to the
validity of Section 3 of the Act. As is clear from the above, Section 3
deals with appointment of the Registrar of Co-operative Societies as well
as Additional Registrar, Joint Registrar, Deputy Registrar, Assistant
Registrar etc. As mentioned above, the plea of the petitioner is that
since Registrar and other officers are performing judicial function under
the Act, any person to be appointed as Registrar, Joint Registrar etc. has
to be necessarily a law person, namely, a person who has education in law
and is well equipped to discharge such adjudicatory functions.
7. In order to appreciate this contention, we will have to look into the
functioning of the Office of Registrar under the Act. It is elaborately
explained in the impugned judgment of the High Court and no quarrel was
made by the petitioner in respect of that portion of the judgment
explaining the scheme of the Act. Therefore, we can briefly restate the
same. Registrar under the provisions of the Act is the executive head
of the cooperative movement which is intended to provide strength to the
weaker sections of the community and is based on contribution through an
open door policy. The Registrar is supposed to be “the friend philosopher
and guide” and is required to see that the cooperative movement remains
within prescribed limit. Sections 8 and 9 of the Act empower the Registrar
to deal with the question of registration of a society. Under Section 10 of
the Act, the Registrar has the power to classify the societies whereas
Sections 11 and 12 of the Act deal with the power of Registrar with regard
to amendment of bye-laws of the society. Section 18 empowers the Registrar
to direct cancellation of registration of the society whereas under Section
18-A of the Act the Registrar can order de-registration of societies. Under
Section 19-A of the Act, the Registrar may declare a person ineligible for
membership of the society. Section 49-D of the Act deals with the power
of the Registrar to give direction to the society to make regulations.
Section 53 of the Act empowers the Registrar to order suppression of the
committee of the society in the contingencies mentioned in sub-section (1)
of Section 53. Under the aforesaid provisions, thus, the Registrar is
discharging pure administrative functions. Section 57 of the Act deals with
the power of Registrar to seize records of the society in the circumstances
which have been specified in sub-section (1) of Section 57. Section 58
deals with the power of Registrar to audit or cause to be audited by a
person authorized by Section 59 of the Act empowers the Registrar to
conduct an enquiry into the affairs of the society in the circumstances
enumerated in Section 59(1).
8. However, limited powers are given to the Registrar to entertain
certain kinds of disputes and take decision thereupon as well. One such
provision is Section 55 of the Act which, inter-alia, provides that
regarding terms of employment, working conditions and disciplinary action
taken by a Society, if a dispute arises between a Society and its
employees, the Registrar or any officer appointed by him (not below the
rank of Assistant Registrar) shall decide the dispute. Likewise, Section
64 of the Act provides that the Registrar shall decide the dispute touching
upon the Constitution, management or business, terms and conditions of
employment of a Society or the liquidation of the Society.
9. The question that falls for consideration is whether it becomes
imperative to appoint a Registrar with legal and/or judicial backdrop
keeping in view the aforesaid Scheme of the Act? In an endeavour to justify
the appointment of a legal person to man this office, the petitioner
submitted that the very nature and significance of the functions discharged
by the Registrar or his nominee, would manifest that knowledge of law and
practice is dispensable to effectively carry out those functions inasmuch
as such presiding officer is supposed to be conversant with the provisions
of Civil Procedure Code, Law of Evidence, Indian Penal Code, Code of
Criminal Procedure, etc. It was further submitted that the functions are
such that authority discharging such function is to be classified as
“court” and it is so held by this Court in the case of Thakur Jugal Kishore
v. Sitamarhi Central Co-operative Bank Ltd. AIR 1967 SC 1494. This decision
is followed subsequently in Mukri Gopalan v. Cheppilat Puthampurayil
Aboobacker AIR 1995 SC 2272 and P.Sarathy v. State Bank of India AIR 2000
SC 2023.
10. The petitioner also submitted that the Bombay High Court in the case
of Maharashtra Co-operative Courts Bar Association, Bombay & Ors. v. State
of Maharashtra & Ors. 1990 Mah.L.J. 1064 has held that presiding officer of
the cooperative court form cadre of subordinate courts as understood by
Art.234 of the Constitution of India and State Government will have to take
action to make appointment of these presiding officer in accordance with
the direction contained in the said Article. In other words, it would mean
that they can be selected by the Maharashtra Public Service Commission in
consultation with the High Court. On that basis, the petitioner pleads that
State Government should not be given right to appoint any person as the
Registrar etc. The petitioner also went to the extent of describing these
functionaries as the “Cooperative Courts” while discharging these duties
through no such nomenclature is provided in the Act. He also submitted that
in the State of M.P. functioning of these authorities was dismal,
creating unfortunate and painful situation which was because the reason
that persons appointed were blissful ignorant about the legal aspects.
They were not functioning “independently” as well, though independence of
judiciary was the hallmark of the basic structure of the Constitution. He
argued that with such appointments impartiality, independence, fairness and
reasonableness is threatened and compromised. In support of this argument,
the petitioner has referred to the following judgments.
(2010) 11 SCC 11 : UOI v. R.Gandhi President Madras Bar Assn.
(2012) 10 SCC 353: State of Gujarat v. Gujarat Revenue Tribunal Bar
Assn.
(2013) 1 SCC 745: Namit Sharma v. UOI.
11. We have already taken note of the Scheme of the Act and the role and
functioning of the office of the Registrar under the said Scheme. Most of
the powers of the Registrar are administrative in nature. While exercising
those powers the Registrar is not deciding any lis. He is one of the main
administrative functionaries for the purposes of carrying out the
objectives of the said Act. At the same time, the Registrar is also give
some quasi-judicial powers. He, also for that matter
Additional/Joint/Deputy/Assistant Registrar are, therefore, wearing two
hats, with predominant role of the administrators. It is not the case of
the petitioner that the judicial function should be taken away from the
Registrar and assigned to some other authority. The petitioner has pleaded
for appointment of a person with legal background as Registrar etc. to
enable him to decide the dispute between the parties more effectively, as
according to him, any person with no legal/judicial background is incapable
of deciding those cases. However, same arguments can be pressed by other
side in a reverse situation. If a person with legal background is
appointed to any of these posts, then his appointment can be challenged on
the ground that such a person though would be fit to discharge the quasi
judicial duties, but totally unfit to discharge other administrative duties
which are the primary and day to day duties attached to the said office.
12. We would have still given some weightage to the argument of the
petitioner, had it been a case where order of the Registrar, deciding the
dispute, was made final. That is not so. In fact, under Chapter X of the
Act, M.P. State Cooperative Tribunal is constituted. This Tribunal consists
of the Chairman and two other Members. In so far as Chairman is concerned,
Section 77 (3) (a) unambiguously provides that no person shall be qualified
to be the Chairman of the Tribunal unless he had been a Judge of a High
Court or has held the office of a District Judge for not less than 5 years.
Likewise, in respect of two Members of the Tribunal, Section 77 (3) (b)
contains a clear stipulation that one of them shall be an officer of
Cooperative Department not below the rank of Joint Registrar, and the other
shall be non-official closely associated with the cooperative movement or
an Advocate or a pleader having practical experience for a period of not
less than 15 years. With such a composition of the Tribunal, which is given
power to hear appeals from the orders of the Registrar or his nominee, the
apprehension of the petitioner is adequately taken care of . We find that
in addition to hearing the appeals from the orders of the Registrar, the
Tribunal is also given power of revision and review. Similar schemes are
provided in various other statutes wherein at the first ladder of the lis,
powers are given to the administrative authorities to decide the same with
provision for appeal against those orders. One example is Public Premises
(Eviction of Unauthorized Occupants) Act 1971. In such cases the orders are
passed by the Estate Officer and the order of the Estate Officer is made
amenable to challenge before the District Judge under Section 9 of that
Act. Similar position can be found under the Land Reforms Act and various
other Acts.
13. We emphasize, at the cost of repetition, that most of the functions
are in the sphere of administration and governance with few additional
duties having quasi judicial character. In such a situation and more
particularly when a Tribunal is constituted with all the trappings of a
court, we do not find any fault with the provision of Section 3 of the Act
empowering the Government to appoint persons as Registrars, Joint
Registrars, Deputy Registrars and Assistant Registrars etc. necessarily
with legal/judicial background. Challenge to the vires of Section 3 of the
Act is, therefore, rejected, upholding the judgment of the High Court on
this issue for our own reasons given hereinabove.
14. In so far as the provisions of Section 77 (3) (b) and Section 77 (6)
of the Act are concerned, we hardly see any reason to hold these provisions
as unconstitutional. Section 77 deals with the Cooperative Tribunal. As
already pointed out above, this tribunal consists of a Chairman and two
other Members. Chairman is to be a person with judicial background. No
person is qualified to be the Chairman of the Tribunal unless he had been
a Judge of a High Court or who held the office of the District Judge for
not less than 5 years. Two Members of the tribunal are to be appointed as
per the impugned provisions namely Section 77 (3) (b) of the Act. Scheme
shows that out of the two, one would be ‘administrative member’ and other
may be a ‘judicial member’ though such nomenclature is not specifically
assigned. However, it becomes clear from the provision which provides that
one of the members would be the person not below the rank of Joint
Registrar. It clearly shows that he would be a person who would have worked
as Joint Registrar and in that capacity gained experience on administrative
side about the functioning of the cooperative societies. In that capacity,
he would have also gained some experience of deciding the disputes between
the parties which could be assigned to him. Other member is to be non-
official and he/ she could be the person who is closely associated with the
cooperative movement or an Advocate or a pleader with practical experience
for a period of not less than 15 years. Therefore, other members can be a
person with legal background. In nutshell, the tribunal consists of a
former Judge as Chairman, one member who has held high office of Joint
Registrar in the department and the other member either with the legal
background or a person closely associated with cooperative movement. We,
thus, do not find any fault with this provision as well.
15. In so far as Section 77 (6) of the Act is concerned, it gives power
to the State Government to terminate the appointment of the Chairman or a
member if, in its opinion, such Chairman or Member is unable or unfit to
perform the duty of his office. Thus, this power is given only when the
State Government forms such an opinion about the inability or unfitness of
such Chairman or Member to perform the duties of his office. This opinion
may be subjective but has to be based on objective consideration/material
on record. Since the State Government is the appointing authority, power to
remove has to necessarily vest in the appointing authority. It is not an
omnibus or unguided/uncanalyzed power conferred upon the Government.
Further, the decision is always subject to judicial review. In a given
case if the power is exercised arbitrarily or without any material on the
basis of which such an opinion is formed, it can be remedied by the court
of law. It is further significant to mention that proviso to this sub-
section (6) of Section 77 provides an additional safeguards which mandates
following procedure in consonance with principle of natural justice by
giving reasonable opportunity of show cause against such termination.
Thus, when such an action is contemplated, the Government is under an
obligation to issue show cause notice which would necessarily contain the
reasons/material on the basis of which, a belief is nurtured that such
Chairman or Member would be unable or unfit to continue to perform the
duties of his office. It would be open to the noticee to refute the same by
giving suitable reply. Final opinion would be formed only after eliciting
and considering the defence. Therefore, we see no reason to hold such a
provision as unconstitutional. In fact, in the written submissions filed by
the petitioner, there is no plea or ground taken by the petitioner on the
basis of which the petitioner seeks to condemn these provisions. We,
therefore, reject the prayer of the petitioner qua on Section 77 (3) (b)
and Section 77 (6) of the Act as well.
16. Having regard to our aforesaid discussion, various arguments raised
by the petitioner based on the judgments cited by him are of no benefit as
those judgments have no applicability. No doubt the Registrar exercising
powers under Section 48 of the Bihar and Orissa Cooperative Societies Act
is held to be a Court. It was so stated in the following manner :
“It will be noted from the above that the jurisdiction of
the ordinary civil and revenue Courts of the land is ousted under
S.57 of the Act in case of disputes which fell under S.48. A
Registrar exercising powers under S.48 must, therefore, be held
to discharge the duties which would otherwise have fallen on the
ordinary civil and revenue Courts of the land. The Registrar has
not merely the trappings of a Court but in many respects he is
given the same powers as are given to ordinary civil Courts of
the land by the Code of Civil Procedure including the power to
summon and examine witnesses on oath, the power to order
inspection of documents, to hear the parties after framing
issues, to review his own order and even exercise the inherent
jurisdiction of Courts mentioned in S.151 of the Code of Civil
Procedure. In such a case there is no difficulty in holding that
in adjudicating upon a dispute referred under S.48 of the Act,
the Registrar is to all intents and purposes, a Court discharging
the same functions and duties in the same manner as a Court of
law is expected to do.”
However, it does not necessarily follow from that the Registrar exercising
such powers has to be necessarily a person with judicial/legal background.
That was not even an issue in the aforesaid case.
17. In so far as judgment in the case of Mukrigopalan is concerned, the
Court therein discussed the power of the appellate authority constituted
under Section 18 under Kerala Building Lease Rent Control Act. In the
instant case, the appellate authority is the tribunal which is headed by a
judicial person. The judgment in R.Gandhi (supra) again pertains to the
National Company Law Tribunal and the law stated therein, emphasizing the
need for person with judicial background, is in the context of a tribunal.
Same is the position in the matter of Gujarat Revenue Tribunal Bar
Association case (supra). In so far as Namit Sharma (supra) is concerned,
much of what is stated therein is watered down in the decision dated
September 3, 2013 rendered in the Review Petition (C) No. 2309 of 2012
titled Union of India v. R.Gandhi. The Court has gone to the extent of
holding that CIC is not discharging judicial duties.
18. We would like to point out that such quasi judicial powers are given
even to the Election Commission under the Representation of People Act,
1951 in a matter where it decides as to whether to register a political
party or not. This was so made clear in the case of Indian National
Congress (I) vs. Institute of Social Welfare & Ors. 2002 (5) SCC 685.
Notwithstanding that Election Commission under Section 29-A of the said Act
is required to act judicially and the act of Commission, in that capacity,
is quasi judicial, nobody has ventured to say that such functions be
discharged only by a person with judicial/legal background.
19. Having determined the question raised, we would like to emphasize the
need for appointment of suitable persons not only as Registrar, Joint
Registrar etc. but as Chairman and members of the tribunal as well. While
discharging quasi-judicial functions Registrar, Joint Registrars etc. have
to keep in mind that they have to be independent in their functioning.
They are also expected to acquire necessary expertise to effectively deal
with the disputes coming before them. They are supposed to be conscious of
competing rights in order to decide the case justly and fairly and to pass
the orders which are legally sustainable. In this behalf, we would like to
refer to judgment dated 3.9.2013 passed in the Review Petition (C)
No.2309/2012 (Namit Sharma case). In that case, one unfortunate feature
that was noted was that experience over the years has shown that the orders
passed by Information Commissions have, at times, gone beyond the
provisions of the Right to Information Act and that Information Commissions
have not been able to harmonise the conflicting interests indicated in the
preamble and other provisions of the Act. The reasons for this experience
about the functioning of the Information Commissions could be either that
the persons who do not answer the criteria mentioned in Sections 12(5) and
15(5) have been appointed as Chief Information Commissioner or that the
persons appointed even when they answer the aforesaid criteria, they do not
have the required mind to balance the interests indicated in the Act. It
was therefore insisted that experienced suitable persons should be
appointed who are able to perform their functions efficiently and
effectively. In this behalf certain directions were given and one of the
directions was that while making recommendation for appointment of CIC and
Information Commissioners the Selection Committee must mention against name
of each candidate recommended the facts to indicate his eminence in public
life ( which is the requirement of the provision of that Act), his
knowledge and experience in the particular field and these facts must be
accessible to the citizens as part of their right to information under that
Act, after the appointment is made.
20. Taking clue from the aforesaid directions, and having gone through
the similar dismal state of affairs expressed by the petitioner in the
instant petition about the functioning of the cooperative societies, we
direct that the State Government shall, keeping in mind the objective of
the Act, the functions which the Registrar, Joint Registrar etc. are
required to perform and commensurate with those, appointment of suitable
persons shall be made. Likewise, having regard to the fact that the
Chairman of the Tribunal is to be a judicial person, namely, Former Judge
of the High Court or the District Judge, we are of the opinion that for
appointment of the Chairman and the Members of the Tribunal, the respondent-
State is duty bound to keep in mind and follow the mandate of the
Constitution Bench judgment of this Court in R.Gandhi (supra). Thus, for
appointment of the Chairman and Members of the Tribunal, the selection to
these posts should preferably be made by the Public Service Commission in
consultation with the High Court.
21. As a result, subject to the aforesaid directions, this Special Leave
Petition is dismissed.
………………………………………J.
(Anil R. Dave)
…………………………………….J.
(A.K.Sikri)
New Delhi,
Dated: May 6, 2014
Co-operative Societies Act, 1960 - appointment of quasi judicial authorities who have no knowledge in legal filed - High court dismissed the writ - Apex court too dismissed the writ but held that we direct that the State Government shall, keeping in mind the objective of
the Act, the functions which the Registrar, Joint Registrar etc. are required to perform and commensurate with those, appointment of suitable persons shall be made. Likewise, having regard to the fact that the Chairman of the Tribunal is to be a judicial person, namely, Former Judge of the High Court or the District Judge, we are of the opinion that for appointment of the Chairman and the Members of the Tribunal, the respondent- State is duty bound to keep in mind and follow the mandate of the Constitution Bench judgment of this Court in R.Gandhi (supra). Thus, for appointment of the Chairman and Members of the Tribunal, the selection to these posts should preferably be made by the Public Service Commission in consultation with the High Court.=
validity of Section 3 of the M.P. State
Co-operative Societies Act, 1960 (hereinafter referred to as the Act) to
the extent this provision permits the State Government to appoint the
Registrar of the Co-operative Society, as well as Additional Registrar,
Joint Registrar, Deputy Registrar, Assistant Registrar etc. The petitioner
also challenged proviso added to Section 77 (3)(b) and Section 77 (6) of
the Act as unconstitutional. To put it succinctly, the grievance of the
petitioner was that these provisions provide for appointment of persons not
having any education in law, though discharging the judicial function,
which was impermissible and ex-facie violative of Art. 14 and 21 of the
Constitution. The petitioner had even given suggestion to the effect that
the appointments of these presiding officers be made in manner presiding
officers of the labour courts are appointed.=
the High Court
repelled the challenge of the petitioner to the vires of the aforesaid
provisions of the Act and dismissed the Writ Petition filed by the
petitioner.=
APEX COURT HELD
We would like to point out that such quasi judicial powers are given
even to the Election Commission under the Representation of People Act,
1951 in a matter where it decides as to whether to register a political
party or not. This was so made clear in the case of Indian National
Congress (I) vs. Institute of Social Welfare & Ors. 2002 (5) SCC 685.
Notwithstanding that Election Commission under Section 29-A of the said Act
is required to act judicially and the act of Commission, in that capacity,
is quasi judicial, nobody has ventured to say that such functions be
discharged only by a person with judicial/legal background.
19. Having determined the question raised, we would like to emphasize the
need for appointment of suitable persons not only as Registrar, Joint
Registrar etc. but as Chairman and members of the tribunal as well. While
discharging quasi-judicial functions Registrar, Joint Registrars etc. have
to keep in mind that they have to be independent in their functioning.
They are also expected to acquire necessary expertise to effectively deal
with the disputes coming before them. They are supposed to be conscious of
competing rights in order to decide the case justly and fairly and to pass
the orders which are legally sustainable. In this behalf, we would like to
refer to judgment dated 3.9.2013 passed in the Review Petition (C)
No.2309/2012 (Namit Sharma case). In that case, one unfortunate feature
that was noted was that experience over the years has shown that the orders
passed by Information Commissions have, at times, gone beyond the
provisions of the Right to Information Act and that Information Commissions
have not been able to harmonise the conflicting interests indicated in the
preamble and other provisions of the Act. The reasons for this experience
about the functioning of the Information Commissions could be either that
the persons who do not answer the criteria mentioned in Sections 12(5) and
15(5) have been appointed as Chief Information Commissioner or that the
persons appointed even when they answer the aforesaid criteria, they do not
have the required mind to balance the interests indicated in the Act. It
was therefore insisted that experienced suitable persons should be
appointed who are able to perform their functions efficiently and
effectively. In this behalf certain directions were given and one of the
directions was that while making recommendation for appointment of CIC and
Information Commissioners the Selection Committee must mention against name
of each candidate recommended the facts to indicate his eminence in public
life ( which is the requirement of the provision of that Act), his
knowledge and experience in the particular field and these facts must be
accessible to the citizens as part of their right to information under that
Act, after the appointment is made.
20. Taking clue from the aforesaid directions, and having gone through
the similar dismal state of affairs expressed by the petitioner in the
instant petition about the functioning of the cooperative societies, we
direct that the State Government shall, keeping in mind the objective of
the Act, the functions which the Registrar, Joint Registrar etc. are
required to perform and commensurate with those, appointment of suitable
persons shall be made. Likewise, having regard to the fact that the
Chairman of the Tribunal is to be a judicial person, namely, Former Judge
of the High Court or the District Judge, we are of the opinion that for
appointment of the Chairman and the Members of the Tribunal, the respondent-
State is duty bound to keep in mind and follow the mandate of the
Constitution Bench judgment of this Court in R.Gandhi (supra). Thus, for
appointment of the Chairman and Members of the Tribunal, the selection to
these posts should preferably be made by the Public Service Commission in
consultation with the High Court.
21. As a result, subject to the aforesaid directions, this Special Leave
Petition is dismissed.
2014 ( May.Part) http://judis.nic.in/supremecourt/filename=41509
ANIL R. DAVE, A.K. SIKRI
[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION( C) No. 33644/2011
Satya Pal Anand ….Petitioner
Vs.
State of M.P. & Anr. …Respondents
J U D G M E N T
A.K.SIKRI,J.
1. The petitioner herein had filed Writ Petition under Article 226 of
the Constitution in the High Court of Madhya Pradesh, Principal Seat at
Jabalpur, in the nature of Public Interest Litigation. In that petition,
the petitioner has challenged the validity of Section 3 of the M.P. State
Co-operative Societies Act, 1960 (hereinafter referred to as the Act) to
the extent this provision permits the State Government to appoint the
Registrar of the Co-operative Society, as well as Additional Registrar,
Joint Registrar, Deputy Registrar, Assistant Registrar etc. The petitioner
also challenged proviso added to Section 77 (3)(b) and Section 77 (6) of
the Act as unconstitutional. To put it succinctly, the grievance of the
petitioner was that these provisions provide for appointment of persons not
having any education in law, though discharging the judicial function,
which was impermissible and ex-facie violative of Art. 14 and 21 of the
Constitution. The petitioner had even given suggestion to the effect that
the appointments of these presiding officers be made in manner presiding
officers of the labour courts are appointed.
2. The Writ Petition was contested by the respondents on various
grounds. In the first place, the very maintainability of the Writ Petition
was assailed on the ground that the petitioner had not approached the High
Court with clean hands and had suppressed the fact that he was a chronic
litigant whose various cases were pending before the Cooperative Court.
Therefore, he had personal interest in the matter. As such, he was not
competent to file the Writ Petition in the nature of PIL. On merits, it was
submitted that such Registrar, Addl. Registrar etc. function under the
supervision of M.P. State Cooperative Tribunal (in short ‘the Tribunal’).
The Chairman of the Tribunal is a judicial officer. Again, both these
authorities function under the over all superintendence of the High Court
under Art.227 of the Constitution. In several other enactments the
administrative officers perform such quasi judicial functions.
3. After considering the submissions of both the parties, the High Court
repelled the challenge of the petitioner to the vires of the aforesaid
provisions of the Act and dismissed the Writ Petition filed by the
petitioner.
4. Against the aforesaid judgment, present Special Leave Petition is
preferred under Art. 136 of the Constitution. The petitioner has appeared
in person and filed written submissions. At the time of arguments, he
referred to and read out certain portion of those written submissions and
submitted that he did not have to say anything more than what is contained
therein. The learned counsel for the respondents on the other hand relied
upon the reasoning given by the High Court in the impugned judgment to
justify the said order. We have perused the judgment minutely and have also
gone through the written submissions of the petitioner.
5. Before adverting to these submissions, we would like to reproduce the
provisions of the Act which are subject matter of the present challenge:
“3. Registrar and other officers.-
(1) The State Government shall appoint a person to be the
Registrar of Co-operative Societies for the State and may appoint
one or more officers of the following categories to assist him,
namely:
(a) Additional Registrar of Co-operative Societies;
(b) Joint Registrar of Co-operative Societies;
(c) Deputy Registrar of Co-operative Societies;
(d) Assistant Registrar of Co-operative Societies;
(e) Such other categories of officers as may be
prescribed.
xxxxxx xxxxxx xxxxxx”
77. Madhya Pradesh State Co-operative Tribunal.
(3) (b) Of the other two members, one shall be an officer
of Co-operative Department not below the rank of Joint Registrar
and the other shall be non-official closely associated with co-
operative movement or an Advocate or a Pleader having practical
experience for a period of not less than fifteen years:
Provided that if the State Government thinks fit, the
Tribunal may consist of a single person.
xxxx xxxxx xxxxx
(6) Notwithstanding anything contained in sub-section (4)
the State Government may terminate at any time, the appointment of
the Chairman or a member if, in its opinion, such Chairman or
member is unable or unfit to constitute to perform the duties of
his office:
Provided that no appointment shall be terminated under
this sub-section unless the person whose appointment is proposed to
be terminated is given reasonable opportunity of showing cause
against such termination.”
6. With this, now let us first deal with the argument pertaining to the
validity of Section 3 of the Act. As is clear from the above, Section 3
deals with appointment of the Registrar of Co-operative Societies as well
as Additional Registrar, Joint Registrar, Deputy Registrar, Assistant
Registrar etc. As mentioned above, the plea of the petitioner is that
since Registrar and other officers are performing judicial function under
the Act, any person to be appointed as Registrar, Joint Registrar etc. has
to be necessarily a law person, namely, a person who has education in law
and is well equipped to discharge such adjudicatory functions.
7. In order to appreciate this contention, we will have to look into the
functioning of the Office of Registrar under the Act. It is elaborately
explained in the impugned judgment of the High Court and no quarrel was
made by the petitioner in respect of that portion of the judgment
explaining the scheme of the Act. Therefore, we can briefly restate the
same. Registrar under the provisions of the Act is the executive head
of the cooperative movement which is intended to provide strength to the
weaker sections of the community and is based on contribution through an
open door policy. The Registrar is supposed to be “the friend philosopher
and guide” and is required to see that the cooperative movement remains
within prescribed limit. Sections 8 and 9 of the Act empower the Registrar
to deal with the question of registration of a society. Under Section 10 of
the Act, the Registrar has the power to classify the societies whereas
Sections 11 and 12 of the Act deal with the power of Registrar with regard
to amendment of bye-laws of the society. Section 18 empowers the Registrar
to direct cancellation of registration of the society whereas under Section
18-A of the Act the Registrar can order de-registration of societies. Under
Section 19-A of the Act, the Registrar may declare a person ineligible for
membership of the society. Section 49-D of the Act deals with the power
of the Registrar to give direction to the society to make regulations.
Section 53 of the Act empowers the Registrar to order suppression of the
committee of the society in the contingencies mentioned in sub-section (1)
of Section 53. Under the aforesaid provisions, thus, the Registrar is
discharging pure administrative functions. Section 57 of the Act deals with
the power of Registrar to seize records of the society in the circumstances
which have been specified in sub-section (1) of Section 57. Section 58
deals with the power of Registrar to audit or cause to be audited by a
person authorized by Section 59 of the Act empowers the Registrar to
conduct an enquiry into the affairs of the society in the circumstances
enumerated in Section 59(1).
8. However, limited powers are given to the Registrar to entertain
certain kinds of disputes and take decision thereupon as well. One such
provision is Section 55 of the Act which, inter-alia, provides that
regarding terms of employment, working conditions and disciplinary action
taken by a Society, if a dispute arises between a Society and its
employees, the Registrar or any officer appointed by him (not below the
rank of Assistant Registrar) shall decide the dispute. Likewise, Section
64 of the Act provides that the Registrar shall decide the dispute touching
upon the Constitution, management or business, terms and conditions of
employment of a Society or the liquidation of the Society.
9. The question that falls for consideration is whether it becomes
imperative to appoint a Registrar with legal and/or judicial backdrop
keeping in view the aforesaid Scheme of the Act? In an endeavour to justify
the appointment of a legal person to man this office, the petitioner
submitted that the very nature and significance of the functions discharged
by the Registrar or his nominee, would manifest that knowledge of law and
practice is dispensable to effectively carry out those functions inasmuch
as such presiding officer is supposed to be conversant with the provisions
of Civil Procedure Code, Law of Evidence, Indian Penal Code, Code of
Criminal Procedure, etc. It was further submitted that the functions are
such that authority discharging such function is to be classified as
“court” and it is so held by this Court in the case of Thakur Jugal Kishore
v. Sitamarhi Central Co-operative Bank Ltd. AIR 1967 SC 1494. This decision
is followed subsequently in Mukri Gopalan v. Cheppilat Puthampurayil
Aboobacker AIR 1995 SC 2272 and P.Sarathy v. State Bank of India AIR 2000
SC 2023.
10. The petitioner also submitted that the Bombay High Court in the case
of Maharashtra Co-operative Courts Bar Association, Bombay & Ors. v. State
of Maharashtra & Ors. 1990 Mah.L.J. 1064 has held that presiding officer of
the cooperative court form cadre of subordinate courts as understood by
Art.234 of the Constitution of India and State Government will have to take
action to make appointment of these presiding officer in accordance with
the direction contained in the said Article. In other words, it would mean
that they can be selected by the Maharashtra Public Service Commission in
consultation with the High Court. On that basis, the petitioner pleads that
State Government should not be given right to appoint any person as the
Registrar etc. The petitioner also went to the extent of describing these
functionaries as the “Cooperative Courts” while discharging these duties
through no such nomenclature is provided in the Act. He also submitted that
in the State of M.P. functioning of these authorities was dismal,
creating unfortunate and painful situation which was because the reason
that persons appointed were blissful ignorant about the legal aspects.
They were not functioning “independently” as well, though independence of
judiciary was the hallmark of the basic structure of the Constitution. He
argued that with such appointments impartiality, independence, fairness and
reasonableness is threatened and compromised. In support of this argument,
the petitioner has referred to the following judgments.
(2010) 11 SCC 11 : UOI v. R.Gandhi President Madras Bar Assn.
(2012) 10 SCC 353: State of Gujarat v. Gujarat Revenue Tribunal Bar
Assn.
(2013) 1 SCC 745: Namit Sharma v. UOI.
11. We have already taken note of the Scheme of the Act and the role and
functioning of the office of the Registrar under the said Scheme. Most of
the powers of the Registrar are administrative in nature. While exercising
those powers the Registrar is not deciding any lis. He is one of the main
administrative functionaries for the purposes of carrying out the
objectives of the said Act. At the same time, the Registrar is also give
some quasi-judicial powers. He, also for that matter
Additional/Joint/Deputy/Assistant Registrar are, therefore, wearing two
hats, with predominant role of the administrators. It is not the case of
the petitioner that the judicial function should be taken away from the
Registrar and assigned to some other authority. The petitioner has pleaded
for appointment of a person with legal background as Registrar etc. to
enable him to decide the dispute between the parties more effectively, as
according to him, any person with no legal/judicial background is incapable
of deciding those cases. However, same arguments can be pressed by other
side in a reverse situation. If a person with legal background is
appointed to any of these posts, then his appointment can be challenged on
the ground that such a person though would be fit to discharge the quasi
judicial duties, but totally unfit to discharge other administrative duties
which are the primary and day to day duties attached to the said office.
12. We would have still given some weightage to the argument of the
petitioner, had it been a case where order of the Registrar, deciding the
dispute, was made final. That is not so. In fact, under Chapter X of the
Act, M.P. State Cooperative Tribunal is constituted. This Tribunal consists
of the Chairman and two other Members. In so far as Chairman is concerned,
Section 77 (3) (a) unambiguously provides that no person shall be qualified
to be the Chairman of the Tribunal unless he had been a Judge of a High
Court or has held the office of a District Judge for not less than 5 years.
Likewise, in respect of two Members of the Tribunal, Section 77 (3) (b)
contains a clear stipulation that one of them shall be an officer of
Cooperative Department not below the rank of Joint Registrar, and the other
shall be non-official closely associated with the cooperative movement or
an Advocate or a pleader having practical experience for a period of not
less than 15 years. With such a composition of the Tribunal, which is given
power to hear appeals from the orders of the Registrar or his nominee, the
apprehension of the petitioner is adequately taken care of . We find that
in addition to hearing the appeals from the orders of the Registrar, the
Tribunal is also given power of revision and review. Similar schemes are
provided in various other statutes wherein at the first ladder of the lis,
powers are given to the administrative authorities to decide the same with
provision for appeal against those orders. One example is Public Premises
(Eviction of Unauthorized Occupants) Act 1971. In such cases the orders are
passed by the Estate Officer and the order of the Estate Officer is made
amenable to challenge before the District Judge under Section 9 of that
Act. Similar position can be found under the Land Reforms Act and various
other Acts.
13. We emphasize, at the cost of repetition, that most of the functions
are in the sphere of administration and governance with few additional
duties having quasi judicial character. In such a situation and more
particularly when a Tribunal is constituted with all the trappings of a
court, we do not find any fault with the provision of Section 3 of the Act
empowering the Government to appoint persons as Registrars, Joint
Registrars, Deputy Registrars and Assistant Registrars etc. necessarily
with legal/judicial background. Challenge to the vires of Section 3 of the
Act is, therefore, rejected, upholding the judgment of the High Court on
this issue for our own reasons given hereinabove.
14. In so far as the provisions of Section 77 (3) (b) and Section 77 (6)
of the Act are concerned, we hardly see any reason to hold these provisions
as unconstitutional. Section 77 deals with the Cooperative Tribunal. As
already pointed out above, this tribunal consists of a Chairman and two
other Members. Chairman is to be a person with judicial background. No
person is qualified to be the Chairman of the Tribunal unless he had been
a Judge of a High Court or who held the office of the District Judge for
not less than 5 years. Two Members of the tribunal are to be appointed as
per the impugned provisions namely Section 77 (3) (b) of the Act. Scheme
shows that out of the two, one would be ‘administrative member’ and other
may be a ‘judicial member’ though such nomenclature is not specifically
assigned. However, it becomes clear from the provision which provides that
one of the members would be the person not below the rank of Joint
Registrar. It clearly shows that he would be a person who would have worked
as Joint Registrar and in that capacity gained experience on administrative
side about the functioning of the cooperative societies. In that capacity,
he would have also gained some experience of deciding the disputes between
the parties which could be assigned to him. Other member is to be non-
official and he/ she could be the person who is closely associated with the
cooperative movement or an Advocate or a pleader with practical experience
for a period of not less than 15 years. Therefore, other members can be a
person with legal background. In nutshell, the tribunal consists of a
former Judge as Chairman, one member who has held high office of Joint
Registrar in the department and the other member either with the legal
background or a person closely associated with cooperative movement. We,
thus, do not find any fault with this provision as well.
15. In so far as Section 77 (6) of the Act is concerned, it gives power
to the State Government to terminate the appointment of the Chairman or a
member if, in its opinion, such Chairman or Member is unable or unfit to
perform the duty of his office. Thus, this power is given only when the
State Government forms such an opinion about the inability or unfitness of
such Chairman or Member to perform the duties of his office. This opinion
may be subjective but has to be based on objective consideration/material
on record. Since the State Government is the appointing authority, power to
remove has to necessarily vest in the appointing authority. It is not an
omnibus or unguided/uncanalyzed power conferred upon the Government.
Further, the decision is always subject to judicial review. In a given
case if the power is exercised arbitrarily or without any material on the
basis of which such an opinion is formed, it can be remedied by the court
of law. It is further significant to mention that proviso to this sub-
section (6) of Section 77 provides an additional safeguards which mandates
following procedure in consonance with principle of natural justice by
giving reasonable opportunity of show cause against such termination.
Thus, when such an action is contemplated, the Government is under an
obligation to issue show cause notice which would necessarily contain the
reasons/material on the basis of which, a belief is nurtured that such
Chairman or Member would be unable or unfit to continue to perform the
duties of his office. It would be open to the noticee to refute the same by
giving suitable reply. Final opinion would be formed only after eliciting
and considering the defence. Therefore, we see no reason to hold such a
provision as unconstitutional. In fact, in the written submissions filed by
the petitioner, there is no plea or ground taken by the petitioner on the
basis of which the petitioner seeks to condemn these provisions. We,
therefore, reject the prayer of the petitioner qua on Section 77 (3) (b)
and Section 77 (6) of the Act as well.
16. Having regard to our aforesaid discussion, various arguments raised
by the petitioner based on the judgments cited by him are of no benefit as
those judgments have no applicability. No doubt the Registrar exercising
powers under Section 48 of the Bihar and Orissa Cooperative Societies Act
is held to be a Court. It was so stated in the following manner :
“It will be noted from the above that the jurisdiction of
the ordinary civil and revenue Courts of the land is ousted under
S.57 of the Act in case of disputes which fell under S.48. A
Registrar exercising powers under S.48 must, therefore, be held
to discharge the duties which would otherwise have fallen on the
ordinary civil and revenue Courts of the land. The Registrar has
not merely the trappings of a Court but in many respects he is
given the same powers as are given to ordinary civil Courts of
the land by the Code of Civil Procedure including the power to
summon and examine witnesses on oath, the power to order
inspection of documents, to hear the parties after framing
issues, to review his own order and even exercise the inherent
jurisdiction of Courts mentioned in S.151 of the Code of Civil
Procedure. In such a case there is no difficulty in holding that
in adjudicating upon a dispute referred under S.48 of the Act,
the Registrar is to all intents and purposes, a Court discharging
the same functions and duties in the same manner as a Court of
law is expected to do.”
However, it does not necessarily follow from that the Registrar exercising
such powers has to be necessarily a person with judicial/legal background.
That was not even an issue in the aforesaid case.
17. In so far as judgment in the case of Mukrigopalan is concerned, the
Court therein discussed the power of the appellate authority constituted
under Section 18 under Kerala Building Lease Rent Control Act. In the
instant case, the appellate authority is the tribunal which is headed by a
judicial person. The judgment in R.Gandhi (supra) again pertains to the
National Company Law Tribunal and the law stated therein, emphasizing the
need for person with judicial background, is in the context of a tribunal.
Same is the position in the matter of Gujarat Revenue Tribunal Bar
Association case (supra). In so far as Namit Sharma (supra) is concerned,
much of what is stated therein is watered down in the decision dated
September 3, 2013 rendered in the Review Petition (C) No. 2309 of 2012
titled Union of India v. R.Gandhi. The Court has gone to the extent of
holding that CIC is not discharging judicial duties.
18. We would like to point out that such quasi judicial powers are given
even to the Election Commission under the Representation of People Act,
1951 in a matter where it decides as to whether to register a political
party or not. This was so made clear in the case of Indian National
Congress (I) vs. Institute of Social Welfare & Ors. 2002 (5) SCC 685.
Notwithstanding that Election Commission under Section 29-A of the said Act
is required to act judicially and the act of Commission, in that capacity,
is quasi judicial, nobody has ventured to say that such functions be
discharged only by a person with judicial/legal background.
19. Having determined the question raised, we would like to emphasize the
need for appointment of suitable persons not only as Registrar, Joint
Registrar etc. but as Chairman and members of the tribunal as well. While
discharging quasi-judicial functions Registrar, Joint Registrars etc. have
to keep in mind that they have to be independent in their functioning.
They are also expected to acquire necessary expertise to effectively deal
with the disputes coming before them. They are supposed to be conscious of
competing rights in order to decide the case justly and fairly and to pass
the orders which are legally sustainable. In this behalf, we would like to
refer to judgment dated 3.9.2013 passed in the Review Petition (C)
No.2309/2012 (Namit Sharma case). In that case, one unfortunate feature
that was noted was that experience over the years has shown that the orders
passed by Information Commissions have, at times, gone beyond the
provisions of the Right to Information Act and that Information Commissions
have not been able to harmonise the conflicting interests indicated in the
preamble and other provisions of the Act. The reasons for this experience
about the functioning of the Information Commissions could be either that
the persons who do not answer the criteria mentioned in Sections 12(5) and
15(5) have been appointed as Chief Information Commissioner or that the
persons appointed even when they answer the aforesaid criteria, they do not
have the required mind to balance the interests indicated in the Act. It
was therefore insisted that experienced suitable persons should be
appointed who are able to perform their functions efficiently and
effectively. In this behalf certain directions were given and one of the
directions was that while making recommendation for appointment of CIC and
Information Commissioners the Selection Committee must mention against name
of each candidate recommended the facts to indicate his eminence in public
life ( which is the requirement of the provision of that Act), his
knowledge and experience in the particular field and these facts must be
accessible to the citizens as part of their right to information under that
Act, after the appointment is made.
20. Taking clue from the aforesaid directions, and having gone through
the similar dismal state of affairs expressed by the petitioner in the
instant petition about the functioning of the cooperative societies, we
direct that the State Government shall, keeping in mind the objective of
the Act, the functions which the Registrar, Joint Registrar etc. are
required to perform and commensurate with those, appointment of suitable
persons shall be made. Likewise, having regard to the fact that the
Chairman of the Tribunal is to be a judicial person, namely, Former Judge
of the High Court or the District Judge, we are of the opinion that for
appointment of the Chairman and the Members of the Tribunal, the respondent-
State is duty bound to keep in mind and follow the mandate of the
Constitution Bench judgment of this Court in R.Gandhi (supra). Thus, for
appointment of the Chairman and Members of the Tribunal, the selection to
these posts should preferably be made by the Public Service Commission in
consultation with the High Court.
21. As a result, subject to the aforesaid directions, this Special Leave
Petition is dismissed.
………………………………………J.
(Anil R. Dave)
…………………………………….J.
(A.K.Sikri)
New Delhi,
Dated: May 6, 2014
