JAINATH PANDEY Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard learned counsel for the petitioner and the State. Petitioner was earlier elected as Chairman of Madhuban Bedivan PACS, Chakia, Motihari. His election was set aside by the Joint Registrar, Co-operative Societies, Tirhut Division, Muzaffarpur under orders dated 17.2.2011 passed in PACS Membership Case No. 14/2009, Annexure-3 to the writ petition, which was challenged before the Registrar, Co-operative Societies, Bihar, Patna in Revision Case No. 35 of 2011. The order sheet of the said revision case is contained in Annexure-4 to the writ petition perusal whereof indicates that revision was converted into an appeal under orders dated 22.11.2011, Annexure-4.

(2.) This writ petition was initially filed questioning the validity of the aforesaid order dated 17.2.2011, Annexure-3 but this Court having noticed the fact that appeal is pending, observed that the writ petition may be disposed of directing the Registrar, Co-operative Societies, Bihar, Patna to consider the validity of the said order in the pending appeal within a reasonable time, the counsel for the petitioner then submitted that Respondent No. 2, IAS of 2001 batch earlier served as Additional Secretary, Agriculture Department with Additional charge of Director, Animal Husbandry was transferred and posted as Director, Animal Husbandry under notification No. 6061 dated 31.5.2011, Annexure-7 to the supplementary affidavit and while being so transferred, posted as Director, Animal Husbandry, he was given additional charge of Registrar, Co-operative Societies, Bihar, Patna, which notification though sent to the Government Press, Gulzarbagh, Patna for publication in the gazette, but the gazette having not been published till date, he has no authority to discharge the duties of Registrar, Co-operative Societies, Bihar, Patna, as from perusal of the notification itself, it will appear that he has been given additional charge of Registrar, Co-operative Societies, Bihar, Patna until further orders, which has also not been notified, in the circumstances, Respondent No. 2 not being appointed as Registrar, Co-operative Societies, Bihar, Patna under Section 6 of the Bihar Co-operative Societies Act, 1935 (hereinafter referred to as the Act), has no jurisdiction to dispose of Appeal No. 35 of 2011 filed against the order dated 17.2.2011, Annexure-3 passed by the Joint Registrar, Co-operative Societies, Tirhut Division, Muzaffarpur. Learned counsel for the petitioner in this connection also placed reliance on sub-section (2) of Section 6 of the Act and submitted that until the notification appointing Registrar, Co-operative Societies, Bihar, Patna is published in the gazette, there is no appointment of Registrar, Co-operative Societies, Bihar, Patna in the eye of law and that being the position, Respondent No. 2 cannot function as Registrar, Co-operative Societies, Bihar, Patna. Learned counsel for the petitioner further relied on Section 28 of Bihar & Orissa General Clauses Act, 1917, which provides for publication of the order, notification in the Official Gazette if it is so provided in the Act, Rules whereunder the order, notification has been issued, the order, notification so published shall be deemed to have been duly made. To support the aforesaid submission, learned counsel relied on the judgment of the Supreme Court in the case of Harla vs. The State of Rajasthan, 1951 AIR(SC) 467 and submitted that unless the order, notification of the State Government is published in the Official Gazette, the general public for whose information the same has been directed to be published will have no information about the same and submitted that unless the notification is published in gazette, the same shall not come into effect.

(3.) Counsel for the State has opposed the submission and submitted that Section 6 of the Act provides for appointment of a person by the State Government to be Registrar of Co-operative Societies for the State. In exercise of the power under Section 6 of the Act, the State Government appointed Respondent No. 2 as Registrar, Co-operative Societies, Bihar, Patna, may be in additional charge until further orders but nonetheless such is an appointment under Section 6 of the Act. He next submitted that gazette notification is required to be published if the person appointed under Section 6 of the Act to assist the Registrar, Co-operative Societies, Bihar, Patna is conferred with power of the Registrar under sub-section (2) of Section 6 of the Act.