S.K. MALHOTRA Vs. THE STATE OF PUNJAB

JUDGEMENT

(1.) S.K. Malhotra, General Manager, Milkfed, Punjab, seeks a writ in the nature of cetiorari so as to quash the process of filling up the post of Additional Managing Director, Milkfed, Punjab, set into motion by advertisement in the Tribune dated May, 1989 and consequent interview fixed for August 9, 1989.

(2.) Briefly, his case is that at present he is working on the post of General Manager (Headquarters) in the Punjab State Co-operative Milk Producers' Federation Limited, Chandigarh (hereinafter referred to as the Milkfed) and his conditions of service are governed by the Punjab State Co-operative Milk Producer's Federation Limited (Common Cadre) Rules (here-in-after referred to as the Rules). Before joining the respondent-Milkfed as General Manager, he was working as Secretary with the Punjab Diary Development Corporation Ltd., Chandigarh (here-in-after called the PDDC). The post of Secretary, as per the case of petitioner, was a higher post than the post of General Manager as all the General Managers in the PDDC were answerable to the Secretary and it was he, who used to write their annual Confidential Reports. On the post of Secretary, he enjoyed higher status, responsibility and higher financial powers. His status in the PDDC was only next to the Managing Director and all papers/correspondence was routed through him. He also enjoyed higher administrative powers there. The PDDC was, however, taken over by the Milked w.e.f. April 9, 1983 with all its assets and employees on notional deputation. Petitioner's services were also taken over by the Milkfed at the time of his absorption the Milkfed but only as a General Manager, which, as per the case of petitioner, was lower than the post of Secretary, held by him in the PDDC. Before, however, his absorption in the Milkfed, he had represented to both the PDDC and the Milkfed that the post of General Manager given to him in Milkfed was lower in status than the post of Secretary held by him in PDDC and, therefore, he should be given an equivalent post in the Milkfed. The said representation given by him, according to petitioner, is still pending. Petitioner was reverted from the post of Secretary to that of General Manager. He carried a representation against the order aforesaid which was accepted vide order dated July 13, 1984. The said order has been annexed as Annexure P-3 through civil misc. No. 16195 of 1989 vide which he had prayed to produce additional documents. While dealing with his representation, the Managing Director held that after total examination of his case, the board was pleased to resolve, "Since there existed a post of Secretary apart from the post of Company Secretary in the Corporation, therefore, the reversion of Shri S.K. Malhotra, from the post of Secretary to the post of General Manager was wrong. Shri S.K. Malhotra, accordingly, is considered to have continued to hold the post of Secretary in the Corporation till 8.4.1983 and he shall be paid special pay of Rs. 200/- per month for the period he worked as Secretary of the Corporation." The basic case of petitioner is that the order of reversion could be set aside as a whole and it could not be said vide Annexure P-9 that he shall be considered to have continued to hold the post of Secretary in Corporation till April 8, 1983. If this order is bad, it is further contended that he has to be adjusted in the Milkfed to a post which may be equivalent not that of Secretary and inasmuch as he has been accommodated on the post of General Manager, it has adversely affected his service career. His further prayer in the wake of setting aside the order (Annexure p-9) to the extent aforesaid, is that he may be promoted to the post of Additional Managing Director in preference to those, who have been appointed in pursuance to advertisement dated May 31, 1989.

(3.) The writ has been opposed and separate written statements have been filed by respondent Nos. 1, 3 and 4. The main contestant is Milkfed. Besides contesting the claim of petitioner on merits, Milkfed has raised a preliminary objection with regard to the maintainability of the writ against a Co- operative Society. The objection to be precised is that Milkfed is neither State nor instrumentality of the State with the meaning of Article 12 of the Constitution of India. Without much commenting upon the order of reversion and setting aside of the same, the defence is that in any case the petitioner was not entitled to the post higher than that of General Manager. Learned counsel for petitioner at this stage has made a statement in the Court that petitioner gives up all his claims for the time being and confines his case to the limited extent of challenging part of order setting aside his reversion vide which even though his reversion was set aside but the same was limited to a particular date i.e. April 8, 1983. This statement has been made by learned counsel in view of a preliminary objection raised by respondent - Milkfed that the writ qua other reliefs is not maintainable as qua the said reliefs, directions are sought to be issued against it (Milkfed) and it is neither a State nor instrumentality of State within the meaning of Article 12 of the Constitution of India. Learned counsel appearing for the petitioner is conscious of the fact that this matter, in another civil writ petition No. 4418 of 1992, is pending decision by a Division Bench of this Court and if the relief against the Milkfed is also insisted upon, then it would further delay the main relief to the petitioner, on the basis of which alone the other reliefs depend. He has, however, reserved his right to file a fresh petition on the same cause of action in case the Division Bench decides that Milkfed is a State or instrumentality of State within the meaning of Article 12 of the Constitution of India. In view of the peculiar facts as have been noticed above, this Court is convinced that further delay in the matter would cause irreparable loss to petitioner and, therefore, permission is granted to him to file a fresh petition on the same cause of action, that is for the reliefs which have not been pressed at this stage.