1. In Writ Petition No. 5865 of 2026, the petitioner is an Association of Auditors, which has challenged the Clause 6(x) of the Circular dated 1st April 2026, issued by the Commissioner for Cooperation, Marketing and Textile Department, Government of Maharashtra as being unconstitutional and contrary to the provisions of Section 81 of the Maharashtra Cooperative Societies Act, 1960, and the Maharashtra Cooperative Societies Rule, 1961. Writ Petition No. 5744 of 2026 is by an individual auditor.

2. The petitioner relied upon the decision of the co-ordinate bench of this Court in Writ Petition No. 5120 of 2026, in the case of Chaitanya Suresh Kambli Vs. State of Maharashtra and others, dated 29th July, 2026, wherein the co-ordinate bench has held condition no. (x) of Clause 6 of the Circular dated 1st April 2026 as violative of Article 19(1)(g) of the Constitution of India and also in excess of power conferred under Rule 69(1)(g) of the Maharashtra Cooperative Societies Rules, 1961. The co-ordinate bench observed that, in absence of any provision in the Act or the Rules creating permanent embargo, such a condition is bad in law. The co-ordinate bench further held such a condition to be violative of the Article 19(1)(g), since it debars permanently an auditor from the list of empaneled auditors.

3. We have heard learned senior counsel for the petitioner and learned GP for the respondent State. We have also perused the decision of the co-ordinate bench of this Court in the case of Chaitanya Suresh Kambli (supra). However, with respect, we do not agree with the views expressed by the coordinate bench and therefore we propose to refer issue raised in the present petition to the Hon’ble the Chief Justice for referring it to larger bench since it involves important question of law affecting the Cooperative Societies at large and also it being recurring in nature.

4. In our view, the act of the authorities under the Cooperative Societies Act, while prescribing qualification / disqualification for an auditor to be empaneled on the list of auditors under the Maharashtra Cooperative Societies Act, is only an invitation to offer. The authorities under the Act are empowered to prescribe the qualification which the authorities deem fit. There is no vested right in the auditors to claim their empanelment.

5. In the instant case, a person to be appointed as an auditor is required to certify the truth and correctness of the books of accounts of the Cooperative Societies and if an FIR is filed against an auditor for not conducting the audit in accordance with Act and Rules or there are serious reasons for which he was removed, then the authorities under the Act are well within its power to prescribe disqualification of such an auditor from making application for being empaneled in future.

6. In our view, the authorities under the Act are empowered under Section 81 (b) read with Explanations (1) and (2), and further read with Section 81(5A) and Provisos thereto and Rule 69(1)(g) to prescribe such disqualification. Therefore, in our opinion, we do not agree with the views expressed by the co-ordinate bench that the authorities under the Act do not have the power to prescribe such a disqualification for the purpose of inviting empanelment on the list of the auditor.

7. Condition 6(x) of Circular dated 1st April 2026 only debars an auditor from making an application for being empaneled as an auditor under the Maharashtra Cooperative Societies Act. Such a` condition does not debar an auditor from conducting the audit work under other Acts or for writing accounts or any other work under the other Acts or even the Maharashtra Cooperative Societies Act.

8. In our view, there is no debarment for an auditor from conducting the audit or any other work under all other Acts and therefore, the right to practice any profession or to carry on any occupation, trade or business is not affected and thus there is no violation of Article 19(1)(g) of the Constitution of India. In any case, such restriction would fall within ‘reasonable restrictions’ under Article 19(2) of the Constitution of India and therefore, even on this count, we do not agree with the view expressed by the co-ordinate bench that the condition is violative of Article 19(1) of the Constitution of India.

9. It is also important to note that following decisions which holds that the appointing authority is authorized to prescribe eligibility criteria and same would not be violative of Article 19(1) (g), were not brought to the notice of the division bench of this Court in the case of Chaitanya Suresh Kambli (supra).

                   i. General Manager, South Railway Vs. Rangachari; 1961 SCC Online SC 122

                   ii. State of Mysore and Others Vs. P. Narasingh Rao; 1967 SCC OnLine SC 103

                   iii. The State of Mammu & Kashmir Vs. Shri Triloki Nath Khosa; (1974) 1 Supreme Court 19

                   iv. V. K. Sood Vs. Secretary, Civil Aviation & Ors.; 1993 Supp (3) SCC 9

                   v. Md. Firoz Mansuri & Ors. Vs. State of Bihar; (2026) 5 SCC 363

                   vi. State of Rajasthan Vs. Lata Arun; (2002) 6 SCC 252

                   vii. Zahoor Ahmad Rather Vs. Sheikh Imtiyaz Ahmad; (2019) 2 SCC 404

                   viii. Abhijit Madhavrao Patil Vs. State of Maharashtra; 2022 SCC Online Bom 3381

                   ix. Unnikrishnan CV & Ors. Vs. Union of India; (2023) 18 SCC 546

10. The condition 6(x) of the Circular provides that if on the earlier occasion the auditor has been removed, then he would not be eligible to make an application for future empanelment. In our view, this is a general condition, and on the facts of each particular case, the authorities, or the Court, will have to examine whether reasons given for removal of the auditor are grave enough to disentitle him for being empaneled in future. For example, if the auditor has been removed on serious allegation, and an FIR is filed, then it would be a case where the authorities would be justified in debarring such a person for being empaneled. However, in some other case where reasons are not so grave, then Court may consider that such a condition of debarring an auditor permanently for being empaneled is not justified. Therefore, in our view, it will depend on facts to facts, and as general proposition, it cannot be held that in all cases the condition is unconstitutional and bad in law.

11. In view of the above, we propose to refer following three (03) questions of law to Hon’ble the Chief Justice for constituting a larger bench to decide the constitutionality of conditions 6(x) of circular dated 1st April 2026 :-

I. Whether, on a true and proper construction of Section 81(1)(b) read with Explanations I and II, and Section 81(5B) read with the provisos thereto of the Maharashtra Co-operative Societies Act, 1960, and further read with Rule 69(1)(g) of the Maharashtra Co-operative Societies Rules, 1961, the Commissioner is empowered to prescribe qualifications and disqualifications for inviting applications for empanelment of auditors for auditing the accounts of Co-operative Societies under the Maharashtra Co-operative Societies Act, 1960?

II. If the answer to question no. (I) is in the affirmative, whether condition prescribed in Clause 6(x) of the Circular dated 1 April 2026, whereby an auditor whose name has been removed from the panel under Rule 69(1)(g) is permanently debarred from making an application for empanelment in future, is unfair, arbitrary and unreasonable, and consequently violative of Article 14 of the Constitution of India, more particularly looking at the the object and purpose for which an auditor is appointed and removed under the Maharashtra Co-operative Societies Act, 1960 read with Rules 1961?

III. If the answer to question no. (II) is in negative, then whether condition imposed by clause 6(x) of circular dated 1st April 2026 is violative of Article 19(1)(g) of the Constitution of India when the ground which debars an auditor from making an application for empanelment is only under the Maharashtra Co-operative Societies Act, 1960 and not any other law?