1. With the consent of parties, the matter is heard finally. The instant writ petition filed under Article 226/227 of the Constitution of India challenges the order dated 28.06.2022 (Annexure- P/1) passed by the M.P. State Cooperative Tribunal, Bhopal, in F.A. No.141/2014, whereby the appeal preferred by the petitioner against the order dated 05.03.2008 passed by the Dy. Registrar, Cooperative Societies, Gwalior, directing the petitioner to grant compassionate appointment to the petitioner on account of death of his father, Shri K.K. Sharma, has been rejected.

2. The petition also challenges the order dated 05.03.2008 (Annexure-P/2) passed by the Dy. Registrar, Cooperative Societies, Gwalior, whereby the petitioner has been directed to issue order of compassionate appointment in favour of the respondent on the basis of his educational qualification.

3. Brief facts leading to filing of the present writ petition are as under:

          3.1Late Shri K.K. Sharma was working as a Junior Assistant in Gwalior Dugdh Sangh Sahakari Sanstha Maryadit, who died in harness on 30.05.1999. On account of untimely death of his father, the respondent submitted an application seeking compassionate appointment on 24.06.1999 to the petitioner herein. Since the said application was not considered for a considerable period of time, the respondent approached the Dy. Registrar, Cooperative Societies, Gwalior in a dispute under Section 64 of the M.P. Cooperative Societies Act, 1960, seeking grant of compassionate appointment.

          3.2The Dy. Registrar, Cooperative Societies, on the basis of evidence/material produced by the rival parties, passed an order dated 05.03.2008, thereby directing the petitioner to grant compassionate appointment to the respondent on the basis of his educational qualifications.

          3.3Aggrieved by the said order, the petitioner preferred an appeal under Section 78(1) of the M.P. Cooperative Societies Act, 1960 before the M.P. State Cooperative Tribunal, which has been dismissed vide order dated 28.06.2022. Consequently, both the orders dated 28.06.2022 and 05.03.2008 are under challenge in the present writ petition.

4. Learned counsel appearing for the petitioner submits that compassionate appointment was not granted to the respondent on account of non-availability of any vacant post in the petitioner-society. The financial condition of the petitioner-society was also not such so as to sustain the additional burden of employment of the respondent. He submits that in spite of the fact that availability of vacant post was declined, the Dy.Registrar, Cooperative Societies vide order dated 05.03.2008, directed for issuance of order of compassionate appointment in favor of the respondent.

5. Counsel for the petitioner further submits that the appeal preferred by the petitioner has also been cursorily rejected without properly appreciating the grounds raised therein. He submits that in terms of the policy for grant of compassionate appointment dated 01.05.2000 (Annexure-P/8), if compassionate appointment could not be granted to the dependent of the deceased within a period of three years from the date of death of the employee, then the eligibility for such appointment stands extinguished.

6. He submits that the claim of the respondent stood extinguished on expiry of three years from 30.05.1999, i.e., the date of death of his father, and therefore, the application filed under Section 64 of the M.P. Cooperative Societies Act, 1960 in the year 2006 itself was not liable to be considered. He submits that compassionate appointment cannot be claimed as a matter of right and is not an alternate mode of recruitment.

Since the respondent was able to sustain himself for several years after the death of the employee, he is not entitled to compassionate appointment.

7. In support of his contentions, learned counsel for the petitioner places reliance on the judgment of the Apex Court in the case of The State of West Bengal vs. Debabrata Tiwari and Ors., Civil Appeal No.8842-8855/2022 decided on 03.03.2023, particularly paragraph No.7.5 thereof. Reliance is also placed on Annexure-P/5, being the communication issued on 16.03.2004, indicating non-availability of vacant posts even at that time.

8. On the other hand, learned counsel appearing for the respondent submits that in spite of there being ample opportunity before the Dy. Registrar, the petitioner herein had not produced any material to substantiate the stand which is now sought to be raised in the instant writ petition. Even in the reply filed before the Joint Registrar, no plea regarding non-availability of vacant post was raised.

9. Counsel for respondent submits that though the petition has been filed under Article 226/227 of the Constitution of India, but since the order of M.P. State Cooperative Tribunal is under challenge, the petitioner essentially invokes the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. The petitioner cannot be permitted to agitate the issue on the basis of fresh material filed in the instant writ petition. The order passed by the authorities under challenge is required to be tested on the basis of material which was placed by the petitioner before them.

10.Learned counsel further submits that even if there is delay in grant of compassionate appointment, the same cannot be denied. In support whereof, he places reliance on the judgments of the Apex Court in the case of Managing Director, M.P. State Agriculture Marketing Board and Ors. vs. Harpal Singh and Ors., Civil Appeal No.15112/25, and also in the case of Malaya Nanda Sethy vs. State of Orissa & Ors., Civil Appeal No.4103 of 2022, to contend that just because the litigation has remained pending, the petitioner cannot be denied the benefit of compassionate appointment.

11. Counsel for respondent further places reliance on the judgment of the Apex Court in the case of Himalayan Cooperative Group Housing Society vs. Balwan Singh & Ors., reported in (2015) 7 SCC 373, to contend that the scope of interference under Article 227 of the Constitution of India is limited.

12. Counsel appearing for the respondent, by referring to I.A. No. 12155 of 2024, submits that similarly situated persons have been granted appointment, thereby falsifying the plea of non-availability of vacant posts taken by the petitioner.

13. In response, counsel appearing for the petitioner, by referring to the rejoinder filed, submits that none of the persons named in the interlocutory application have been granted appointment by the petitioner-society. They were appointed in other cooperative societies, which are distinct and separate entities. He further submits that the information obtained by the respondent under Right to Information Act pertains to grant of compassionate appointment made after the year 2018, wherein the policy has been altered. The said appointments may have no bearing on the claim of the respondent.

14. No other point has been pressed by the learned counsel for the parties.

15. Heard learned counsel appearing for the parties and perused the record.

16. Before proceeding to consider the merits of the issues involved in the instant writ petition, the preliminary issue which arises for consideration before this Court is as to whether, the dispute under Section 64 of the M.P. Cooperative Societies Act, 1960 filed by the respondent before the Dy. Registrar Cooperative Societies, Gwalior, seeking grant of compassionate appointment, was maintainable?

17. The perusal of the pleadings made in the dispute filed by the respondent before the Dy. Registrar (Annexure-P/6) indicates that initially, a dispute under Section 55(2) of the Act of 1960 was filed by the respondent, which appears to have been permitted to be withdrawn vide order dated 30.06.2006, granting liberty to the respondent to file a fresh dispute. Thereafter, the dispute in question was filed by the petitioner before the Dy. Registrar.

18. Section 55 of the M.P. Cooperative Societies Act, 1960, deals with the power of the Registrar to determine the conditions of employment in societies. Section 55(2) of the Act empowers the Registrar, or any other officer appointed by him not below the rank of Assistant Registrar, to decide the disputes relating to terms of employment, working conditions, and disciplinary actions taken by the society, arising between the society and its employee.

19. Proviso appended to Section 55(2) of the Act provides for a limitation of 30 days for entertaining such a dispute from the date of the order impugned. The second proviso further deals with the computation of the period of limitation.

20. Whereas, Section 64 of the Act of 1960, contained in Chapter VII, deals with "Disputes and Arbitration" touching the constitution, management, or business, or the liquidation of a cooperative society.

21. In the instant case, the dispute as regards non-grant of compassionate appointment to the respondent was essentially a "service dispute", for which the remedy of filing a dispute under Section 55(2) of the Act of 1960 was available. The father of the respondent died on 30.05.1999, whereas the dispute under Section 55(2) of the Act appears to have been filed by the respondent somewhere in the year 2006. Apprehending the issue regarding non-maintainability of the said dispute on the ground of limitation, the same was withdrawn by the respondent with liberty to file a fresh dispute, and thereafter, the respondent filed the dispute under Section 64 of the Act of 1960.

22. The issue as to whether a service dispute pertaining to an employee of a cooperative society is covered under Section 64 of the Act of 1960 came up for consideration before the Division Bench of this Court in the case of Sahakari Vipran (Marketing) Sanstha Maryadit, Bhurwaha vs. Labour Court Indore and Ors., (1987) MPLJ 31, wherein, in paragraph 6 of the said judgment, the Division Bench of this Court has held as under:

          "6. Before we proceed to deal with the contention advanced on behalf of the petitioner, it would be necessary to turn to the provisions of Sections 64 and 82(1) of the Act. The relevant provisions of Section 64(1)(a) of the Act are as follows:

          "64. Disputes- (1) Notwithstanding anything contained in any other law for the time being in force, any dispute touching the constitution, management or business of a society or the liquisation of a society shall be referred to the Registrar by any of the parties to the dispute if the parties thereto are among the following:

          (a) a society, its committee, any past committee, any past or present officer, any past or present agent, any past or present servant or a nominee, heirs or legal representatives of any deceased officer, deceased agent or deceased servant of the society or the liquidator of the society:

          ....... ....... ........ ........"

          Clause (c) of sub-section (1) of Section 82 of the Act provides that save as provided in the Act, no Civil or Revenue Court shall have jurisdiction in respect of any dispute required to be referred to the Registrar under the Act. The question then that arises for consideration is whether a dispute regarding termination of services of a Co-operative Society and the relief of reinstatement prayed in that behalf is required to be referred to the Registrar under the provisions of Section 64 of the Act. Now so far as the applicability of the provisions of Section 64 of the Act is concerned, the matter is concluded by the decision of the Supreme Court in The Gujarat State Co-operative Land Development Bank Limited vs. P.R. Mankad & another (AIR 1979 S.C. 1203) while construing similar provisions under the Gujarat Co-operative Societies Act, 1962, the Supreme Court held that the Compulsory arbitration by the Registrar on a reference under that Act was only a substitute for adjudication of disputes of a civil nature normally tried by Civil Courts and that the legislature never intended to oust the jurisdiction of the Labour Court or the Industrial Tribunal to determine claims and industrial disputes which could not be adjudicated by the ordinary Civil Courts. The Supreme Court observed that though a Labour Court was competent to grant the relief of reinstatement claimed by an employee, the Civil Court was not competent to grant that relief in view of the provisions of Section 21(b) of the Specific Relief Act. The Supreme Court further held that a dispute raised by an employee of a Co- operative Society seeking the relief of reinstatement on account of wrongful termination of services was not covered by the expression "any dispute" occurring in Section 96 of the Gujarat Co-operative Societies Act. Now the relevant provisions of Section 96 of the Gujarat Co-operative Societies Act are substantially similar to the provisions of Section 64 of the M.P. Co-operative Societies Act, 1961. It must, therefore, be held, following the aforesaid decision of the Supreme Court, that the dispute raised by respondent No. 3 in the instant case is not covered by the expression "any dispute" occurring in Section 64 of the Act and hence, the provisions of Section 64 of the Act are not attracted in the instant case."

23. The perusal of the judgment in the case of Sahakari Vipran (supra), as quoted hereinabove, indicates that a dispute pertaining to reinstatement of an employee, being essentially a service matter, has been held to be not covered under Section 64 of the Cooperative Societies Act, 1960.

24. In the instant case also, the dispute of non-grant of compassionate appointment was a service dispute and, therefore, could have been decided by the Registrar under Section 55(2) of the Act, 1960, provided it was filed within the period of limitation prescribed therein. Once the respondent after filing a dispute under Section 55(2) of the Act of 1960 withdrew it, it was not open for him to invoke Section 64 of the Act of 1960 in the matter of service dispute.

25. A specific objection as regards the maintainability of the dispute filed under Section 64 of the Cooperative Societies Act, 1960 was raised by the petitioner in its reply filed before the Deputy Registrar, and an issue in the said regard was also formulated. However, the said issue has been erroneously decided by the Dy. Registrar by holding that the dispute filed by the respondent under Section 64 of the Act of 1960 was maintainable.

26. In the considered opinion of this Court, a patent jurisdictional error has been committed by the Dy. Registrar in assuming jurisdiction under Section 64 of the Act of 1960 and thereby allowing the service dispute filed by the respondent.

27. That apart, without adverting to the specific objection raised by the petitioner as regards non-availability of any vacant post for grant of compassionate appointment to the respondent in the sanctioned administrative setup, no blanket direction to issue an order of compassionate appointment to the respondent on the basis of his educational qualifications could have been issued and at the best direction for consideration of case of respondent for grant of compassionate appointment in terms of prevalent policy could only have been issued. The order dated 05.03.2008 passed by the Dy. Registrar is thus palpably illegal on this ground as well.

28. Even otherwise, the father of the respondent expired on 30.05.1999, whereas the respondent approached the Dy. Registrar in the year 2006, i.e., after a delay of about five years. The said delay also frustrates the very object of grant of compassionate appointment.

29. Since the time of death of the father of the respondent, a period of nearly 25-26 years has elapsed. The very object for claiming/grant of compassionate appointment is now over, in view of the law laid down by the Apex Court in the case of The State of West Bengal vs. Debabrata Tiwari (supra), paragraph 7.5 thereof reads as under:

          "7.5. Considering the second question referred to above, in the first instance, regarding whether applications for compassionate appointment could be considered after a delay of several years, we are of the view that, in a case where, for reasons of prolonged delay, either on the part of the applicant in claiming compassionate appointment or the authorities in deciding such claim, the sense of immediacy is diluted and lost. Further, the financial circumstances of the family of the deceased, may have changed, for the better, since the time of the death of the government employee. In such circumstances, Courts or other relevant authorities are to be guided by the fact that for such prolonged period of delay, the family of the deceased was able to sustain themselves, most probably by availing gainful employment from some other source. Granting compassionate appointment in such a case, as noted by this Court in Hakim Singh would amount to treating a claim for compassionate appointment as though it were a matter of inheritance based on a line of succession which is contrary to the Constitution. Since compassionate appointment is not a vested right and the same is relative to the financial condition and hardship faced by the dependents of the deceased government employee as a consequence of his death, a claim for compassionate appointment may not be entertained after lapse of a considerable period of time since the death of the government employee."

30. The jurisdictional error committed by the Dy. Registrar in allowing the dispute filed by the respondent under Section 64 of the Act of 1960 vide order dated 05.03.2008 has not been adverted to or considered by the M.P. State Cooperative Tribunal while rejecting the first appeal preferred by the petitioner.

31. In view of the above consideration/discussion, the other issues raised by the rival parties may not be required to gone into. Accordingly, the order dated 28.06.2022 (Annexure-P/1) passed by the M.P. State Cooperative Tribunal, Bhopal, as well as the order dated 05.03.2008 (Annexure-P/2) passed by the Dy. Registrar, Cooperative Societies, Gwalior, cannot be sustained in the eyes of law and are hereby set aside.

32. Resultantly, the writ petition stands allowed and disposed of.

33. Pending application(s), if any, shall stand closed.