# Darash Rai and others v. State of U.P

- **Citation:** (2002) 2 ILRA 320
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-01-18
- **Case number:** Civil Misc. Writ Petition No. 8375 of 2002
- **Bench:** G.P. Mathur, Vineet Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/darash-rai-and-others-v-state-of-u-p-39827
- **Pages:** 6

## Headnote

Constitution
of
India-
Article
226-
Section 2 of U.P. Ordinance No. 27 of
2001- the amending Ordinance came
into force on 24.12.2001, which is prior
to the expiry of the term of the
petitioners which would have come to an
end on 28.12.2001 and, consequently,
they would be entitled to get the benefit
of the Ordinance and have got a right to
function for a period of five years.
(Held in para 11)
The alleged acquiescence on the part of
the petitioner nos. 2 cannot effect or
alter the legal position namely, that the
earlier Committee of Management whose
term was to expire on 28.12.2001 would
continue to function till 28.12.2003. The
writ petition, therefore, deserves to be
allowed.

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2002
320
waiting list. In the present case it appears
that the department concerned did not ask
the commission to send names within 1
year and hence the list has lapsed. This
Court has had occasion to consider about
the life of the waiting list which was
prevalent prior to the government order
dated 15.11.99. It has been held that the
life of the waiting list is for a period of
one year and no reshuffling can be made
after expiry of that period from the
candidates of that waiting list, and the
remaining vacancies will have to be filled
up by a fresh selection. Reference can be
made to the decisions given in writ
petition No. 26913 of 2001 decided on
18.1.2002 Dharmendra Singh Vs. State of
U.P. and others. The decisions as has been
referred by the learned counsel for the
petitioner in (1995) 2 UPLBEC 985 (Ram
Darash Rai and others V. State of U.P.
and others), AIR 1990 SC 405 (P
Mahendran and others V. Matteesh Y
Annigeri and others) and (1999) 3 SCC
696 (Virendra S Hooda and others V.
State of Haryana and another), have no
application to the facts of the present case,
as we are of the opinion that now there is
no provision of preparation of waiting list
and in view of the decision as has been
given by this court the life of the waiting
list also lapses after one year and
therefore on either count it appears that
the petitioners are not entitled to get any
relief.

7. In view of the aforesaid
discussion, this writ petition fails and it is
accordingly dismissed without any order
as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD: 16.3.2002

BEFORE
THE HON'BLE G.P. MATHUR, J.
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No. 8375 of 2002

Committee
of
Management,
Nagar
Sahkari Bank Ltd. and another

 ...Petitioners
Versus
Registrar,
Cooperative
Societies,
Gorakhpur and others ...Respondents

Counsel for the Petitioners:
Sri Shashi Nandan

Counsel for the Respondents:
Sri A.K. Singh
S.C.

Constitution
of
India-
Article
226-
Section 2 of U.P. Ordinance No. 27 of
2001- the amending Ordinance came
into force on 24.12.2001, which is prior
to the expiry of the term of the
petitioners which would have come to an
end on 28.12.2001 and, consequently,
they would be entitled to get the benefit
of the Ordinance and have got a right to
function for a period of five years.
(Held in para 11)
The alleged acquiescence on the part of
the petitioner nos. 2 cannot effect or
alter the legal position namely, that the
earlier Committee of Management whose
term was to expire on 28.12.2001 would
continue to function till 28.12.2003. The
writ petition, therefore, deserves to be
allowed.

(Delivered by Hon'ble G.P. Mathur, J.)

1. The question which requires
consideration
here
is
whether
the
Committee
of
Management
of
a
2 All] C/M, Nagar Sahkari Bank Ltd. & anr. Vs. Registrar, Cooperative Societies & ors.
321
Cooperative Society get an extended lease
of life in view of U.P. Ordinance No. 27
of 2001 if its original term
 of
three
years had not expired before 24.12.2001.

2. Parties have exchanged affidavits
and on their request, the writ petition is
being disposed of finally at the admission
stage.

3. Nagar Sahkari Bank Ltd.,
Gorakhpur, is an Urban Cooperative
Bank. The election to elect the Committee
of
Management
of
the
aforesaid
Cooperative
Society
was
held
on
28.12.1998 and a Board of Directors was
elected. The Board of Directors in its
meeting held on 29.12.1998 elected the
Chairman and Vice -Chairman. Ram
Singh, who was elected as the Chairman
of Committee of Management of Nagar
Sahkari Bank Ltd. is petitioner no. 2 in
the writ petition. Sub Section (2) of
section 29 of U.P. Cooperative Societies
Act (hereinafter referred to as the Act), at
the relevant time, laid down that the term
of every committee of Management shall
be three years and the term of the elected
members
of
the
Committee
of
Management shall be co-terminus with
the term of such Committee. Sub-Section
(3) of section 29 provides that election to
reconstitute
the
Committee
of
Management of a Cooperative Society
shall be completed as latest fifteen days
before the expiry of the term of the
existing Committee of Management. In
accordance with the said provision steps
were taken for holding fresh election and
the Secretary of the Cooperative Society
wrote a letter to the Assistant Registrar,
Cooperative Societies on 28.8.2001 in
accordance with Rule 407 of U.P.
Cooperative Societies Rules (hereinafter
referred to as Rules) to take appropriate
steps for holding of the election. The
Registrar, Cooperative Societies, U.P.
fixed 21.12.2001 as the date for holding
the election of Committee of Management
and 22.12.2001 as the date for sending the
delegates to other societies. In accordance
with the said programme, the election to
constitute
the
new
Committee
of
Management was held on 21.12.2001 and
the Chairman and Vice Chairman thereof
were elected on 22.12.2001. Two days
thereafter
i.e.
on
24.12.2001,
the
Governor of U.P. promulgated the U.P.
Cooperative
Societies
(Amendment)
Ordinance, 2001 (U.P. Ordinance No. 27
of 2001) by which sub- section (2) of
section 29 was amended and the term of
Committee of Management was extended
to five years. The petitioners claim that in
view of the aforesaid ordinance, they are
entitled to continue and function as
Committee of Management and Chairman
respectively up to 28.12.2003 and the
Committee of Management, which was
elected on 21.12.2001 is not entitled to
function or exercise any power.

4. In order to appreciate the
contentions raised at the Bar, it will be
convenient to take note of the relevant
statutory provisions.

5. Sub- sections (2) and (3) of
section 29 of the Act (after its amendment
by U.P. Act No. 19 of 1998), reads as
follows:

(2) (a)
The term of every Committee of
Management shall be three years and the
term of the elected members of the
Committee of Management shall be coterminus
with
the
term
of
such
Committee.
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
322
(b) The provisions of clause (a) shall
apply
also
to
a
Committee
of
Management in existence on the date of
commencement of the Uttar Pradesh Cooperative Societies (Second Amendment)
Act, 1998 and to the elected members of
such Committee.

(c) The term of a Committee of
Management, which has completed, on or
before the date of the commencement of
the Act referred to in Clause (b), the
period of three years from the date of its
constitution, and the term of its elected
members,
shall
expire
on
such
commencement.

(3) Election
of
reconstitute
the
Committee of Management of a cooperative society shall be completed in
the
prescribed
manner
under
the
superintendence, control and direction of
the Registrar at least fifteen days before
the expiry of the term of the Committee of
Management and the members so elected
shall
replace
the
Committee
of
Management whose term expires under
sub-section (2):

Provided
that,
where
for
any
extraordinary circumstances, the election
of the members of the Committee of
Management has not been completed, or
could not be completed, the Registrar
may, for reasons to be recorded, extend
the term of the outgoing committee of
Management so however, that any single
extension does not exceed three months
and the total extension does not exceed
three months and the total extension does
not exceed six months and it shall be the
duty of the Registrar to get the Committee
of Management reconstituted before the
expiry of the term so extended and such
committee of Management shall replace
the outgoing Committee of Management
even though its extended term may not
have expired."

6. Section 2 of U.P. Ordinance No.
27 of 2001, which was promulgated on
24.12.2001, reads as follows:

2. In Section 29 of the Uttar Pradesh
Co-operative societies Act, 1965 for sub-
section (2) the following sub-section shall
be substituted namely,

2. (a)
the term of every Committee of
Management shall be five years and the
term
of
elected
members
of
the
Committee of Management shall be coterminus
with
the
term
of
such
Committee.
(b) the provision of clause (a) shall apply
also to a Committee of Management in
existence
on
the
date
of
the
commencement of the Uttar Pradesh Cooperative
Societies
(Amendment)
Ordinance, 2001 and to the elected
members of such Committee.

7. Sri Shashi Nandan, learned
counsel for the petitioners has submitted
that
the
election
for
electing
the
Committee of Management of the Cooperative Society was held on 28.12.1998
and the Chairman and Vice-Chairman
thereof were elected on 29.12.1998 and as
the term of the Committee was three years
its terms would have come to an end on
28.12.1998. Since the said Committee
was in existence on 24.12.2001, the date
when the Ordinance was promulgated, it
is entitled to continue for a period of five
years under sub-section (2) of section 29
as substituted by the Ordinance refers to a
factual situation by using the word
"Committee of Management in existence
on the date of the commencement". Since
2 All] C/M, Nagar Sahkari Bank Ltd. & anr. Vs. Registrar, Cooperative Societies & ors.
323
fresh election had been held to constitute
the new Committee of Management on
21.12.2001 and the Chairman and ViceChairman thereof had been elected on
22.12.2001, it is the said Committee
which would get the benefit of the
amending Ordinance and would be
entitled to function. He has also submitted
that sub-section (2) of section 29 of the
Act had been earlier amended by U.P. Act
No. 17 of 1994 by which the term had
been extended from three years and then
the Legislature had used the expression "
whose term has not expired on the date of
such commencement" and this shows that
the Governor wanted to give benefit to the
existing Committees of Management
irrespective of the fact whether they had
completed their original term of three
years or not.

8. There is no factual dispute that
the election of petitioner no.1 namely,
Committee of Management of Nagar
Sakhari Bank Ltd., Gorakhpur, was held
on 28.12.1998 and petitioner no. 2 Ram
Singh was elected as Chairman in the
election held on 29.12.1998. This fact is
admitted in para 5 and annexure S.C.A.-1
of the counter affidavit. The question
which is to be examined is whether the
petitioners would get the benefit of the
amending Ordinance. Sub Section (2) (a)
of section 29 of the Act, as it stood prior
to the amending Ordinance, provided in
unequivocal terms that the term of every
Committee of Management shall be three
years. Sub section (3) of section 29 lays
down that election to reconstitute the
committee of Management shall be
completed at least fifteen days before the
expiry of the term of the Committee of
Management and the members so elected
shall
replace
the
Committee
of
Management whose term expires under
sub section (2). The combined effect of
original sub-section (2) (a) and sub
section (3) of section 29 of the Act was
that
the
term
of
Committee
of
Management was three years and the
newly elected Committee of Management
could replace the earlier Committee of
Management
could
not replace the
already
existing
Committee
of
Management by merely holding the
election before the expiry of the term. The
election to elect the new Committee of
Management has no doubt to be held at
least fifteen days before the expiry of the
term of the existing Committee of
Management in view of the mandate of
sub section (3) of section 29 of the Act
but that cannot have any effect on the
term of the existing Committee of
Management which must get a period of
three years. The use of the expression '"in
existence
on
the
date
of
the
commencement' in clause (b) of sub-
section (2) of section 29 of the amending
Ordinance therefore refers to a Committee
of Management validly in existence or
which is in existence in law. It can not be
a Committee of Management which has
merely been elected on account of holding
of an election which in view of sub-
section (3) of section 29 has to be held
before the expiry of the term of the
existing Committee of Management. If
the contention of Sri Khare is accepted, it
would lead to an anomalous situation
whereunder there would simultaneously
be two Committees of Management of a
Cooperative Society in existence namely,
the existing Committee whose term has
not come to an end and the Committee
which
has
been
elected.
Such
an
interpretation can never be accepted.

9. It appears that the words 'in
existence ' in clause (b) of sub section (2)
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
324
of section 29 of the amending Ordinance
have been used to also take within its fold
the situation contemplated by the proviso
to sub-section (3) of section 29 of the Act
where on account of any extraordinary
circumstance the election of the members
of the Committee of Management has not
been completed before the expiry of the
term of the outgoing Committee. The
Legislature has given power to the
Registrar, for reasons to be recorded, to
extend the term of such outgoing
Committee of Management so however,
that any single extension does not exceed
three months and the total extension does
not exceed six months. It is to give the
benefit of extension of five years to such
type of Committee of Management also
that the word 'in existence ' has been used
in clause (b) of sub section (2) of
amended section 29.

10. There is no dispute between the
parties that the amending Ordinance came
into force on 24.12.2001, which is prior to
the expiry of the term of the petitioners
which would have come to an end on
28.12.2001 and, consequently, they would
be entitled to get the benefit of the
Ordinance and have got a right to function
for a period of five years.

11. Sri Khare has next submitted
that the petitioner no. 2 Ram Singh never
made any protest and participated in the
election held on 22.12.2001 in which the
Chairman and Vice Chairman of the new
Committee
were
elected.
He
also
participated in subsequent meetings held
in January and February 2002. According
to learned counsel, the petitioner no. 2
acquiesced in the functioning of the new
Committee
of
Management
and,
therefore, he is not entitled to claim that
the petitioners have a right to function up
to 28.12.2002. In our opinion, the
submission made has no substance.
Annexure-6 is a copy of the letter which
was sent by petitioner no. 2 to the
Secretary of the Cooperative Society on
24.12.2001 wherein it was written that in
view of the amended provision, the earlier
Committee
should
be
permitted
to
function up to 28.12.2003. Annexure
6,7,8 and 9 are copies of the letters sent
by petitioner no. 2 to the Secretary of the
Society
on
24.12.2001,
Assistant
Registrar,
Cooperative
Societies
on
17.1.2002, Deputy Registrar, Cooperative
Societies on 15.1.2002 and to the
Registrar,
Cooperative
Societies
on
10.1.2002, wherein, it was specifically
mentioned that in view of the amending
Ordinance which has come into force on
24.12.2001, the petitioners are entitled to
continue till 28.12.2003. It is, therefore,
not correct to say that the petitioner no. 2
acquiesced in the functioning of the new
Committee of Management. That apart,
the alleged acquiescence on the part of the
petitioner no. 2 cannot effect or alter the
legal position namely, that the earlier
Committee of Management whose term
was to expire on 28.12.2001 would
continue to function till 28.12.2003. The
writ petition, therefore, deserves to be
allowed.

12. The writ petition is accordingly
allowed. A writ of mandamus is issued
commanding the respondents not to
interfere
in
any
manner
with
the
functioning of petitioner no. 1 as
Committee of Management and petitioner
no. 2 as Chairman of Nagar Sahkari Bank
Ltd., Gorakhpur.
---------
2 All] Dr. (Mrs.) Vimala Vs. State of U.P. and others
325
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.3.3002

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 33620 of 2001

Dr. (Mrs.) Vimala

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Dr. (Ms.) Vimala Y. (In person)
Sri A.K. Pandey

Counsel for the Respondents:
S.C.
Sri Neeraj Tripathi

Constitution
of
India,
Article
226
Reservation- Single post of professior in
the
Department
of
Botany-
advertisement for a OBC- candidate
under reserve quota- illegal.

Held- Para 3

In the advertisement in question this
post has been stated to be reserved for
OBC. In paragraph 4 of the writ petition
it is mentioned that there is only one
post of Professor in the Department of
Botony in the Meerut University and this
fact is not disputed. Hence in view of the
decision of the constitution bench of the
Supreme
Court
in
Post
Graduate
Institute
of
Medical
Education
and
Research,
Chandigarh
v.
Faculty
Association 1998 (4) SCC 1 we hold that
the post in question cannot be reserved
as it is single post and has to be treated
as a post for general category.

(Delivered by Hon'ble M. Katju, J.)

1. Heard learned counsel for the
parties.
2. The petitioner has prayed for
quashing of the Selection proceedings for
the post of Professor in the Department of
Botany in Meerut University in pursuance
of the advertisement dated 29.7.2000
(Annexure- 2 to the petition).

3. In the advertisement in question
this post has been stated to be reserved for
OBC. In paragraph 4 of the writ petition it
is mentioned that there is only one post of
Professor in the Department of Botany in
the Meerut University and this fact is not
disputed. Hence in view of the decision of
the constitution bench of the Supreme
Court in Post Graduate Institute of
Medical
Education
and
Research,
Chandigarh v. Faculty Association
1998 (4) SCC1 we hold that the post in
question cannot be reserved as it is single
post and has to be treated as a post for
general category.

4. The impugned advertisement
dated 29.7.2000 is quashed so far as the
post of Professor in the Department of
Botany is concerned and the Meerut
University is directed to re-advertise the
post forthwith and fill it up in accordance
with the direction given above.

The petition is finally disposed off.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.3.2002

BEFORE
THE HON'BLE BINOD KUMAR ROY; J.
THE HON'BLE R.C. DEEPAK, J.

Criminal Misc. Writ Petition No.1369 of
2002

Markandey Singh & others ...Petitioners
Versus
The State of U.P. & others...Respondents