Kamal Khata, J.
1) By this Petition, the Petitioner seeks to challenge the validity and legality of (i) the Government Resolution dated 1st April, 2004, (ii) the consequential Order passed by the Divisional Deputy Registrar, Co-operative (Milk Societies) dated 7th April, 2006 and (iii) the Order dated 1st March, 2016 passed by the Joint Registrar Co-operative Societies (Milk).
2) The short question that arises for determination in the present Petition is whether the Petition falls within the ambit of an “establishment” under the Maharashtra State Public Services [Reservation for Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward Category and Other Backward Classes], Act, 2001 (State Public Services Act).
3) Mr. Jagtap, learned Advocate for the Petitioner draws our attention to Section 2(c) of the Maharashtra State Public Services Act, which is reproduced hereinbelow for ready reference:
“Section 2(c).- “establishment” means any office of the Government or of a local authority or statutory authority constituted under any Act of the State Legislature for the time being in force, or a University or a Company, a Corporation or a Co-operative Society in which share capital is held by the Government or any Government aided Institutions.”
3.1) For ready reference, the explanation to the said provision is reproduced hereinbelow:
“Explanation.- For the purposes of this clause the expression “Government aided institution” shall also include prior to coming into force of this Act of thereafter, aid in other monetary concessions by Government, or is recognised, licenced, supervised or controlled by Government.”
4) A plain reading of the definition of the term ‘establishment’ indicates that it includes:
(i) any office of the Government or of a local authority or statutory authority constituted under any Act of the state legislature for the time being enforced,
(ii) a University,
(iii) a Company,
(iv) a Corporation,
(v) a Co-operative society in which share capital is held by the Government, and
(vi) any Government-aided Institution.
5) Mr. Jagtap submits that, in the Petitioner co-operative society the Government does not hold any share capital. Consequently, according to him, the definition of ‘establishment’ is not attracted to the Petitioner.
He submits that the Explanation, which expands the scope of the term ‘establishment’ to include Government-aided Institutions or Institutions which have received aid or other monetary concessions from the Government or is recognized, licensed, supervised or controlled by the Government, prior to or after the Act came into force, has no applicability to the Petitioner.
5.1) He further submits that, the Government Resolution (GR) dated 11th February, 2014 is contrary to the provisions of the Act and the Rules and Regulations framed thereunder. According to him, the Respondents have erroneously interpreted the provisions of the Act and have incorrectly classified the Petitioner as an entity to which the provisions of the State Public Services Act applies.
5.2) It is further contended that, the land in question was not gifted but was purchased by the Petitioner from the State Government at market value. He submits that the mere receipt of certain form of aid from the Government would not by itself, bring the Petitioner within the ambit of an “establishment’ under the State Public Services Act. He therefore submits that the Writ Petition deserves to be allowed.
5.3) In support of his submissions, he relies upon the following decisions:-
(i) the Order dated 31st July, 2018 passed by this Court in the present matter;
(ii) Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Others vs. V.R.Rudani and Others reported in (1989) 2 SCC 691;
(iii) Madhya Pradesh Rajya Sahakari Bank Maryadit vs. State of Madhya Pradesh and Others reported in (2007) 12 SCC 529;
(iv) Bank Karmachari Sangh, Pune vs. State of Maharashtra and another reported in 2017(3) Mh.L.J. 957;
(v) The Solapur Janata Sahakari Bank Ltd. vs. The State of Maharashtra & Ors. in Writ Petition No.925 of 2007 dated 25th January, 2018;
(vi) Chaitanya s/o Pandit Nanaware vs. The Jalgaon District Central Cooperative Bank and others in Public Interest Litigation No.108 of 2019 dated 16th September, 2019; and
(vii) Jalgaon Zilha Sahakari Dudh Utpadak Sangh Maryadit vs. State of Maharashtra and others reported in 2023 SCC OnLine Bom 2485.
6) Per contra, Smt. Salunkhe, learned AGP for the State, opposed the Writ Petition by placing reliance on three Affidavits filed on behalf of the Respondents, namely: (i) Affidavit dated 17th November, 2017 (ii) Affidavit dated 8th December, 2017 and (iii) Affidavit dated 12th January, 2018. She submitted that Respondent No.4 had rightly applied the GR dated 11th February, 2004, to the Petitioner and consequently the provisions of the GR were binding and required to be complied with.
6.1) She submitted that, the Petitioner had received financial aid from the Government under the Sangh Rehabilitation Scheme for the period of 2001 to 2004. On that basis, it was contended that the Petitioner would fall within the ambit of an “establishment” under the said Act. She further submitted that the record indicates that the reserved categories are not adequately represented in the Petitioner’s establishment and that there is a shortfall vis-à-vis the prescribed 52% reservation.
6.2) Inviting our attention to the Affidavit dated 17th November, 2017, she submitted that, the Petitioner had also received assistance from the Central Government in the form of subsidy linked to an NCDC loan amounting to approximately Rs.7.6 crores. In view thereof, the Petitioner was bound to adhere to the reservation policies of the State Government. She submitted that the Petitioner’s contention that it was required to undertake urgent recruitment was misleading and contrary to the record, and in any event, could not constitute a ground to exempt it from compliance with the GR dated 11th February, 2004. She further submitted that, the State Government Resolution dated 11th February, 2004, the communication dated 1st March, 2016 issued by Respondent No.3 and the communication dated 7th April, 2016 issued by the Respondent No.2,being founded on the reservation policy of the State, were legal and valid. It was further contended that the Managing Committee of a co-operative society cannot determine the percentage of reservation at its discretion, but is bound to follow the policy of the State Government.
6.3) Referring to the second Affidavit dated 8th December, 2017, she submitted that, the Petitioner by virtue of its status as a registered cooperative society, had availed benefits under various government schemes, including those for improvement of milk quality and had procured modernized equipment thereunder. She further submitted that, the Scheme introduced by the State Government vide Government Resolution dated 30th December, 2004 was subsequently approved by the Central Government by its Resolution dated 14th February, 2007, pursuant to which funds were released and availed by the Petitioner.
6.4) Referring to the third Affidavit dated 12th January, 2018, she submitted that, the Petitioner had before this Court admitted that, the Collector, Pune had allotted 15 acres of Government land to it at a concessional rate of 50% by Order dated 30th April, 2013 issued under Rule 32 of the Maharashtra Land Revenue Rules 1971. On this basis, it was contended that the Petitioner squarely falls within the definition of “establishment” under the State Public Services Act.
6.5) She also invited our attention to the Utilization Certificate dated 15th April, 2010 to submit that, the Petitioner had received a subsidy of Rs.5.3 crores under the GR dated 30th March, 2002. She further submitted that the Petitioner had moved two proposals seeking 50% subsidy from the Central Government under the Rashtriya Krushi Vikas Yojana one for Rs.15.54 crores towards modernization, expansion and automation of main dairy plant and another for Rs.18.51 crores towards maintenance of cold chain – addressed to the Commissioner of Dairy Development, Maharashtra State, on 9th May, 2016. According to her, the aggregate financial assistance received and sought to be received by the Petitioner is to the tune of Rs.34.06 crores and on that basis, the Petitioner is bound to comply with the reservation policy of the State Government.
6.6) In so far as the decision of this Court in Jalgaon Zilha Sahakari Dudh Utpdak Sangh Maryadit (supra) is concerned, she submitted that the GR in question was not under consideration in the said judgment and the same is therefore distinguishable on that ground.
7) We have heard learned Advocates for the parties and perused the entire record produced before us.
8) An analysis of the definition of “establishment” under the State Public Services Act makes it abundantly clear that, the legislative intent is to include only such co-operative societies in which the Government holds a share capital. Consequently, the explanation to Section 2 (c) cannot be invoked to bring within its fold a co-operative society merely on the ground that it has received financial assistance or land at concessional rates from the Government.
9) A reference to Section 2(i) which defines “Public Services and Posts”, further reinforces this position. The provision, inter alia, includes services and posts in a co-operative society only where the Government is a shareholder. The section is reproduced hereinbelow for ready reference:
“2(i).- “public services and posts” means the services and posts in connection with the affairs of the State and includes services and posts in,—
(i) a local authority;
(ii) a co-operative society established under the Maharashtra Co-operative Societies Act, 1960, in which Government is a shareholder.
(iii) a Board or a Corporation or a statutory body established by or under a Central or a State Act which is owned and controlled by the Government or a Government Companies as defined in section 617 of the Companies Act, 1956;
(iv) an educational institution owned and controlled by the Government which receives grant-in-aid from the Government including a university established by or under a Maharashtra Act;
(v) any establishment; and
(vi) respect of which reservation was applicable by Government orders on the date of commencement of this Act and which are not covered under sub-clauses (i) to (v);”
10) It is thus evident that, the Statute contemplates inclusion only of such co-operative societies in which the Government has a shareholding and not all societies which may have received financial aid or other concessions from the State.
11) In that view of the matter, we hold that the State Government is not justified in insisting upon compliance with the reservation policy in the case of the Petitioner-Society, in the absence of any Government shareholding therein.
12) A similar issue fell for consideration before the Supreme Court in Madhya Pradesh Rajya Sahakari Bank Maryadit (supra), where, while construing the corresponding definition of “establishment” it was held that a co-operative society in which the State does not hold the requisite share capital would not fall within the ambit of the statute, and consequently, the regulatory authorities would lack jurisdiction to enforce reservation therein.
13) The same principle has been consistently reiterated by coordinate Benches of this Court in Bank Karmchari Sangh, Pune (supra) has also considered the definition of the term establishment under the Reservation Act and held that, the Reservation Act shall be applicable to the establishment as defined and not otherwise. Notably, it referred to a communication/letter dated 9th March, 2007 issued by the state, which clarified the position that, the Reservation Act and related promotional policies are not applicable to the private co-operative bank like Respondent No. 2 therein as it does not fall within the ambit of the word “establishment” which is the requirement for extending the benefits of the reservation policy.
14) Similarly in Solapur Janta Sahakari Bank Ltd. (supra) dated 25th January 2018, relied upon the Affidavit of the Deputy Secretary Cooperation, Marketing and Textile Department, Mantralaya, Mumbai which stated that, the provisions of Section 2(i) of the Reservations Act were applicable only if the Government is holding share capital in the cooperative society.
15) Recently, in Chaitanya s/o Pandit Nanaware (supra) having considered the provisions of the Reservation Act the Division Bench of this Court has held that, it is apparent that for the purposes of the provisions of the Act No.8 of 2004 to become applicable to a co-operative society established under the provisions of the Maharashtra Co-operative Societies Act, 1960, the necessary requirement is for the Government or a Government aided institution to be a shareholder in such a society. This flows not only from the language of section 2(c) but also from language of section 2(i) sub-clause (2) of the Act No. 8 of 2004. Pertinently, the judgment referred to a communication addressed by the State dated 28th December, 2016 which reflects the position of the State to the effect that in those District Central Co-operative Banks in which the Government does not have share, the law relating to reservations would not be applicable to such societies /institutions.
16) In Jalgaon Zilha Sahakari Dudh Utpadak Sangh Maryadit (supra), this Court, upon a conjoint reading of Sections 2(c) and 2 (i) of the Act, read with Section 4(2) of the Reservation Act, held that a co-operative Society in which the Government does not hold any share capital would not fall within the purview of the Reservation Act.
17) We are unable to accept the submissions of the Respondents that the aforesaid judgments are distinguishable on the ground that the Government Resolution was not under consideration therein. A Government Resolution, being an executive instrument, cannot expand or curtail the scope of a statutory provision, nor can it override the legislative intent in enacting a statute.
18) As held by the Supreme Court in Madhya Pradesh vs. GS Dal and Flour Mills reported in 1990 SCC OnLine SC 19; (1992) Supplement 1 SCC page 150 an executive instruction may supplement a statute where the field is unoccupied, but it cannot supplant or run contrary to the statutory mandate of the parent Act. To the extent of any such inconsistency, the executive instruction must yield and be held ultra vires.
19) In view of the above discussion, the Petition is allowed in terms of prayer clauses (b) and (c).
19.1) Rule is accordingly made absolute.
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