Uttarakhand High Court
Dr. Ramesh Kumar vs State Of Uttarakhand & Ors on 31 July, 2025
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
2025:UHC:6761-DB
Judgment Reserved on: 14.07.2025
Judgment Pronounced on:31.07.2025
HIGH COURT OF UTTARAKHAND AT NAINITAL
JUSTICESHRI MANOJ KUMAR TIWARI
AND
JUSTICESHRI SUBHASH UPADHYAY
Writ Petition (S/B) No.176 of 2020
Dr. Ramesh Kumar ...Petitioner
Versus
State of Uttarakhand & Ors. ...Respondents
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Presence:-
Mr. Rajendra Dobhal, Senior Advocate assisted by Mr. Subhang Dobhal, Advocate for
the petitioner.
Mr. Puran Singh Bisht, Addl. C.S.C. for the State.
Mr. Shobhit Saharia and Mr. Yogesh Pandey, Advocates for respondent nos.2 and 3.
Mr. Siddhartha Sah, Advocate for respondent nos.5, 6 and 8.
Mr. R.C. Tamta, Advocate for respondent no.7.
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JUDGMENT:
(per Hon’ble Justice Sri Manoj Kumar Tiwari)
1. By means of this writ petition, petitioner has
sought the following reliefs:-
“(i) Issue a writ, order or direction in the nature of
certiorari quashing the order dated 21.01.2016
(Annexure No.8, 9, 10 and 11) and 10.06.2020
(Annexure No.13) passed by the respondents.
(ii) Issue a writ, order or direction in the nature of
mandamus commanding the respondents to proceed
afresh recruitment on the post of Management Cadre
i.e. Manager (Procurement and Inputs) and1
2025:UHC:6761-DB(Marketing and Sales) after due advertisement and
public notice at large.”
2. Petitioner who possesses Bachelors Degree in
Veterinary Science and Animal Husbandry (BVSc & AH),
from Narendra Deva University of Agriculture and
Technology, Faizabad (U.P.) was appointed on contract
as Veterinary Doctor in Nainital Milk Producers
Cooperative Union Limited, Lalkuan (Nainital), vide
order dated 15.10.2010 and he is still serving as
Veterinary Doctor on contract in the said Co-operative
Union.
3. As every other Co-operative Society
registered under Uttarakhand Co-operative Societies
Act, 2003 (hereinafter referred to as ‘the Act’), Milk Co-
operative Societies also have a three tier structure,
namely, (i) Uttarakhand Co-operative Diary Federation
(hereinafter referred to as ‘UCDF’), which is an Apex or
State Level Co-operative Society, as defined under
Section 2(C) of the Act; (ii) District Milk Producers Co-
operative Union, which is a Central Society as defined
under Section 2(B-2) of the Act and; (iii) the Milk
Producers Co-operative Society at the village level
which is a Primary Society, as defined under Section
2(B) of the Act. Petitioner is serving on contract in
Nainital Milk Producers Co-operative Union Limited,
which is a Central Society and he is still waiting for
opportunity of regular appointment even after 15 years
of service.
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4. An Apex Co-operative Society is a Co-
operative Society that operates at the highest level
within a specific co-operative structure at the State or
National level. Its primary role is to support and
facilitate the operations of other co-operative societies,
particularly those at the lower levels. Apex societies
serve as umbrella organization for other co-operative
societies within State, including primary societies and
central societies, and co-ordinate the activities of
primary and central societies.
5. It transpires that on 10.03.2015, Managing
Director, Uttarakhand Co-operative Dairy Federation
Limited sent a letter to Executive Director, National
Diary Development Board(hereinafter referred to as
‘NDDB’), Anand, Gujarat, stating that appointment has
to be made against 10 posts of Management Trainee in
UCDF by direct recruitment and NDDB was requested to
make recruitment against the vacant posts. It was
mentioned in the letter that persons appointed as
Management Trainee will be initially paid ₹ 30,000/- a
month as salary for initial one year and during second
year they will be paid ₹ 35,000/- as salary and upon
successful completion of training, they will be regularly
appointed as Manager in the pay scale of ₹ 15600-
39100 grade pay ₹ 5400/-.
6. NDDB, which was requested by UCDF to
make recruitment, recommended 10 candidates for
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appointment as Management Trainee in different
disciplines, vide letter dated 22.12.2015(Annexure-7 to
the writ petition). Perusal of said document reveals that
a team of officials of NDDB visited National Institute of
Agriculture Management (NIAM), Jaipur for recruitment
to the position of Management Trainee (Procurement &
Inputs) and Management Trainee (Marketing & Sales)
and recommended candidates for appointment based
on their performance in campus selection. The
candidates recommended by NDDB were appointed as
Management Trainee by Director, Dairy Development
Department and they were ultimately given regular
appointment as Manager in UCDF in the Pay Scale of
₹15600-39100 Grade Pay 5400.
7. Learned counsel for the petitioner submits
that though respondent nos.5 to 8 were appointed as
Management Trainee on the recommendation of NDDB
and they were subsequently given regular appointment
as Manager in UCDF as per stipulation made in
appointment letter dated 21.01.2016, however, these
appointment were made without advertising vacancies
in any newspaper or website. He further submits that
these vacancies were also not notified to Employment
Exchange as per provisions of The Employment
Exchanges (Compulsory Notification of Vacancies) Act,
1959. He thus submits that appointment given to
private respondents without selection is patently illegal
and such appointment through backdoor, by a public
authority, cannot be permitted to continue. He further
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submits that as per Article 16, equality of opportunity
in matters of public employment is a basic right,
therefore, without advertising the vacancies or without
giving opportunity to all eligible candidates no one can
be appointed in a government department or in an
instrumentality of State. Thus he submits that private
respondents were appointed as Manager in utter
disregard of principles enshrined in Article 14 and 16 of
the Constitution of India.
8. Learned counsel for the petitioner submits
that UCDF is an apex / State level co-operative society
and all district level milk producers co-operative union
are its member; Managing Director, UCDF is appointed
by State Government from amongst Class-I Officers of
State Government, who even after appointment as
Managing Director continues to get salary from State
Government and not from UCDF; State provides
financial aid not only to members of primary co-
operative milk societies for purchasing cattles and other
equipments for dairy development but also provides
funds to the central and apex societies for setting up
pasteurization / cooling plants and for infrastructure
development. He, therefore, submits that UCDF is State
under Article 12 of the Constitution of India, thus is
bound by provisions of Part-III of the Constitution. He
further submits that State Government is having all
pervasive administrative and financial control over
UCDF and district milk producer co-operative unions,
therefore, applying the tests laid down by Hon’ble Apex
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Court in various judgments, the only inference would
be that UCDF is State under Article 12.
9. Learned counsel for petitioner relies upon the
law declared by Hon’ble Supreme Court in the case of
Ajay Hasia Vs. Khalid Mujib Sehravardi & Ors
(1981) 1 SCC 722 and submits that the said
judgment is on all fours to facts of present case and the
tests laid down in that judgment, if applied, will leave
no room for doubt that UCDF is covered by definition of
State, therefore, it cannot act whimsically in violation of
principles enshrined in Part-III of the Constitution.
10. Learned Senior Counsel appearing for
petitioner further submits that State Government in
exercise of its power under Section 122 of the
Uttarakhand Co-operative Societies Act, 2003 has
framed Rules known as The Uttarakhand Co-operative
Dairy Federation and Milk Union Centralized Cadre
Service Controlling Rules, 2016 which provide for
constitution of cadre authority. He points out that
Registrar, Milk Co-operative Societies is Chairman of
the Cadre Authority and Chairman Uttarakhand Co-
operative Dairy Federation is the Vice-Chairman
thereof. He submits that officers and members of the
cadre authority inter alia are Government officers e.g.
Additional Secretary, nominated by Principal Secretary,
Dairy Development Department; Joint Director, Dairy
Development Department, nominated by Director etc.
He submits that Rule 6(i) enables the authority to make
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regulations relating to recruitment, training and
emoluments of employees, with prior approval of State
Government. He further submits that Rule 9 provides
that appointing authority for Managerial and Non-
Managerial posts of federation shall be its Managing
Director. Thus, he submits that since State Government
has framed statutory Rules under which a cadre
authority has to be constituted and the cadre authority
has been empowered to make regulations governing
mode of recruitment etc, with prior approval of the
State, which reveals that UCDF is an authority of the
State and Government has all pervasive control over its
affairs.
11. Learned Senior Counsel for petitioner submits
that having regard to the extent of administrative and
financial control exercised by State Government over
the affairs of UCDF and also in view of statutory Rules
framed by State Government dealing with employees of
UCDF and milk union, it can be safely inferred that
UCDF is an instrumentality of State. He further submits
that every statutory corporation, autonomous body or
public sector undertaking which is controlled or funded
by the State, is required to follow Constitutional
principles and such body/authority cannot act in
violation of provisions contained in Part-III of the
Constitution. He further submits that UCDF and District
Milk Producers Co-operative Union qualify to be State
as defined under Article 12 of the Constitution,
therefore, their action has to be tested on the anvil of
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Part-III of the Constitution.
12. He submits that employment under UCDF has
all the trappings of public employment, therefore, UCDF
is not free to make appointments on the post of
Manager without following law of the land. He submits
that equality of opportunity in public employment is a
basic right which every citizen enjoys and Hon’ble
Supreme Court has viewed infraction of this basic right
by State authorities very seriously. He submits that
appointment to post in a Government controlled body
without advertising vacancy is a constitutional sin as it
affects right of candidates who are lined up in queue,
waiting for employment opportunities and if that
opportunity is denied to them and appointments are
made through back, then not only such illegal
appointments are required to be set aside but the
officer who are responsible for such illegal
appointments also should be prosecuted.
13. He submits that campus selection made by
NDDB is a farce, as there cannot be any selection
without notifying the vacancies to all eligible
candidates. He submits that team of NDDB officials
allegedly visited one particular college at Jaipur
(Rajasthan) and hand-picked candidates for
appointment as Manager. He submits that a private or
multi-national corporation which is absolutely free from
Government control can have the liberty of holding
campus selection without advertising vacancies,
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however, UCDF, which is a wing of State Government
cannot have that kind of liberty to make appointments
in disregard of constitutional principles. He thus
submits that appointment of private respondents as
Manager is patently illegal, thus liable to be quashed.
14. Learned senior counsel for petitioner has
drawn our attention to a document, enclosed as
Annexure-3 to the counter affidavit, filed by respondent
nos.2 and 3, whereby State Government had granted
permission for regular appointment to the persons who
were appointed as Management Trainee in UCDF,
without advertising vacancies. He has also referred to
pleading made in para-22 of the writ petition, where it
is stated that UCDF is under control of the State
Government and its Managing Director is appointed by
the State Government. He has drawn attention to
Section 31-A of the Uttarakhand Co-operative Societies
Act which provides that for every Apex Society, there
shall be a Managing Director who shall be a
government servant, not below the rank of a Class-I
officer and further that he shall be deemed to be on
deputation to the society.
15. Mr. Puran Singh Bisht, learned Addl. Chief
Standing Counsel submits that in view of provision
contained in Section 31-A(3)(g) of the Act, the
Managing Director of UCDF is competent to make
appointments in co-operative societies in accordance
with rules and regulations. He further submits that the
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mode of appointment of employees of UCDF and Milk
Union was governed by Uttarakhand Co-operative Dairy
Federation and Milk Unions Centralised Service Rules,
2001, under which Managing Director was competent to
make appointment with the approval of Registrar. He
further submits that in 2016 new Rules were enforced
in which approval of State Government is needed
before making any appointment.
16. Mr. Shobhit Saharia, learned counsel for
UCDF-respondent nos.2 and 3 raised the issue of
maintainability of writ petition by contending that UCDF
is not State within the meaning of Article 12 of The
Constitution of India. He further contended that
appointment to the post of Manager in UCDF does not
amount to public employment.
17. Elaborating on his first argument, Mr. Shobhit
Saharia submits that as per the statutory scheme,
namely, Section 31-A(1) of the Act, a Class I Officer of
the State Government is sent on deputation as
Managing Director and as per sub-section (2) of Section
31-A of the Act, he becomes ex-officio member of
Committee of Management of UCDF and he has no
power to overrule or override the decision taken by the
elected Committee of Management; the salary of all
employees of UCDF except Managing Director is paid by
UCDF from its own resources and State Government
does not provide any funds for the purpose. He has
relied upon a judgment rendered by Hon’ble Apex Court
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in the case of Thalappalam Ser. Coop. Bank Ltd. &
Others vs. State of Kerala & others reported in
2013 AIR (SCW) 5683. Paragraphs 8, 9, 11, 12, 15,
16, 17, 18 and 19 of this judgment are relevant, which
are extracted below:-
“8. Writ Appeal No.1688 of 2009 later came up before another
Division Bench, the Bench expressed some reservations about
the views expressed by the earlier Division Bench in Writ Appeal
No.1417 of 2009 and vide its order dated 24.3.2011 referred the
matter to a Full Bench, to examine the question whether co-
operative societies registered under the Societies Act are
generally covered under the definition of Section 2(h) of the RTI
Act. The Full Bench answered the question in the affirmative
giving a liberal construction of the words “public authority”,
bearing in mind the “transformation of law” which, according to
the Full Bench, is to achieve transparency and accountability
with regard to affairs of a public body.
9. We notice, the issue raised in these appeals is of considerable
importance and may have impact on similar other Societies
registered under the various State enactments across the
country.
11. The State Government, it is seen, vide its letter dated
5.5.2006 has informed the Registrar of Co-operative Societies
that, as per Section 2(h) of the Act, all institutions formed by
laws made by State Legislature is a “public authority” and,
therefore, all co-operative institutions coming under the
administrative control of the Registrar of Co-operative Societies
are also public authorities.
12. We are in these appeals concerned only with the co-
operative societies registered or deemed to be registered under
the Co-operative Societies Act, which are not owned, controlled
or substantially financed by the State or Central Government or
formed, established or constituted by law made by Parliament or
State Legislature.
15. We can, therefore, draw a clear distinction between a body
which is created by a Statute and a body which, after having
come into existence, is governed in accordance with the
provisions of a Statute. Societies, with which we are concerned,11
2025:UHC:6761-DBfall under the later category that is governed by the Societies
Act and are not statutory bodies, but only body corporate within
the meaning of Section 9 of the Kerala Co-operative Societies
Act having perpetual succession and common seal and hence
have the power to hold property, enter into contract, institute
and defend suites and other legal proceedings and to do all
things necessary for the purpose, for which it was
constituted. Section 27 of the Societies Act categorically states
that the final authority of a society vests in the general body of
its members and every society is managed by the managing
committee constituted in terms of the bye-laws as provided
under Section 28 of the Societies Act. Final authority so far as
such types of Societies are concerned, as Statute says, is the
general body and not the Registrar of Cooperative Societies or
State Government.
16. This Court in Federal Bank Ltd. v. Sagar Thomas and
Others (2003) 10 SCC 733, held as follows:
“32. Merely because Reserve Bank of India lays the
banking policy in the interest of the banking system or
in the interest of monetary stability or sound
economic growth having due regard to the interests of
the depositors etc. as provided under Section
5(c)(a) of the Banking Regulation Act does not mean
that the private companies carrying on the business
or commercial activity of banking, discharge any
public function or public duty. These are all regulatory
measures applicable to those carrying on commercial
activity in banking and these companies are to act
according to these provisions failing which certain
consequences follow as indicated in the Act itself. As
to the provision regarding acquisition of a banking
company by the Government, it may be pointed out
that any private property can be acquired by the
Government in public interest. It is now a judicially
accepted norm that private interest has to give way to
the public interest. If a private property is acquired in
public interest it does not mean that the party whose
property is acquired is performing or discharging any
function or duty of public character though it would be
so for the acquiring authority”.
17. Societies are, of course, subject to the control of the
statutory authorities like Registrar, Joint Registrar, the
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Government, etc. but cannot be said that the State exercises
any direct or indirect control over the affairs of the society which
is deep and all pervasive. Supervisory or general regulation
under the statute over the co-operative societies, which are
body corporate does not render activities of the body so
regulated as subject to such control of the State so as to bring it
within the meaning of the “State” or instrumentality of the
State. Above principle has been approved by this Court in S.S.
Rana v. Registrar, Co-operative Societies and another (2006) 11
SCC 634. In that case this Court was dealing with the
maintainability of the writ petition against the Kangra Central
Co- operative Society Bank Limited, a society registered under
the provisions of the Himachal Pradesh Co-operative Societies
Act, 1968. After examining various provisions of the H.P. Co-
operative Societies Act this Court held as follows:
“9. It is not in dispute that the Society has not been
constituted under an Act. Its functions like any other
cooperative society are mainly regulated in terms of
the provisions of the Act, except as provided in the
bye-laws of the Society. The State has no say in the
functions of the Society. Membership, acquisition of
shares and all other matters are governed by the bye-
laws framed under the Act. The terms and conditions
of an officer of the cooperative society, indisputably,
are governed by the Rules. Rule 56, to which
reference has been made by Mr Vijay Kumar, does not
contain any provision in terms whereof any legal right
as such is conferred upon an officer of the Society.
10. It has not been shown before us that the State
exercises any direct or indirect control over the affairs
of the Society for deep and pervasive control. The
State furthermore is not the majority shareholder. The
State has the power only to nominate one Director. It
cannot, thus, be said that the State exercises any
functional control over the affairs of the Society in the
sense that the majority Directors are nominated by
the State. For arriving at the conclusion that the State
has a deep and pervasive control over the Society,
several other relevant questions are required to be
considered, namely, (1) How was the Society created?
(2) Whether it enjoys any monopoly character? (3) Do
the functions of the Society partake to statutory
functions or public functions? and (4) Can it be13
2025:UHC:6761-DBcharacterised as public authority?
11. Respondent 2, the Society does not answer any of
the aforementioned tests. In the case of a non-
statutory society, the control thereover would mean
that the same satisfies the tests laid down by this
Court in Ajay Hasia v. Khalid Mujib Sehravardi. [See
Zoroastrian Coop. Housing Society Ltd. v. Distt.
Registrar, Coop.Societies (Urban).]
12. It is well settled that general regulations under an
Act, like the Companies Act or the Cooperative
Societies Act, would not render the activities of a
company or a society as subject to control of the
State. Such control in terms of the provisions of the
Act are meant to ensure proper functioning of the
society and the State or statutory authorities would
have nothing to do with its day-to-day functions.”
18. We have, on facts, found that the Co-operative Societies,
with which we are concerned in these appeals, will not fall within
the expression “State” or “instrumentalities of the State” within
the meaning of Article 12 of the Constitution and hence not
subject to all constitutional limitations as enshrined in Part III of
the Constitution. We may, however, come across situations
where a body or organization though not a State or
instrumentality of the State, may still satisfy the definition of
public authority within the meaning of Section 2(h) of the Act,
an aspect which we may discuss in the later part of this
Judgment.
Constitutional provisions and Co-operative autonomy:
19. Rights of the citizens to form co-operative societies
voluntarily, is now raised to the level of a fundamental right and
State shall endeavour to promote their autonomous functioning.
The Parliament, with a view to enhance public faith in the co-
operative institutions and to insulate them to avoidable political
or bureaucratic interference brought in Constitutional (97th
Amendment) Act, 2011, which received the assent of the
President on 12.01.2012, notified in the Gazette of India on
13.01.2012 and came into force on 15.02.2012.”
18. Judgment rendered by Hon’ble Supreme
Court in the case of Thalappalam Ser. Coop. Bank
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Ltd.(supra) is distinguishable on facts as in that case
the issue was whether co-operative societies registered
under Co-operative Societies Act will automatically
come within the purview of expression ‘Public
Authority’, as defined Under Section 2(h) of Right to
Information Act 2005. The issue which we are dealing
here is entirely different, therefore, the said judgment
do not help the case of respondents at all.
19. Mr. Rajendra Dobhal, learned Senior Counsel
appearing for the petitioner submits that officer of the
State Government after appointment as Managing
Director, UCDF is paid salary directly from public
exchequer, therefore, the expression ‘deputation’ used
in Section 31-A(1) is a misnomer. He submits that in
case of deputation, salary is always paid by the
borrowing organization in which a deputationist serves
but here State Government is bearing the burden of
paying salary to Managing Director. Thus, he submits
that this is not a deputation, though by legal fiction, a
class I officer of the State, who is appointed as
Managing Director, is treated as on deputation, but he
remains a State employee and he also receives salary
from public exchequer, thus he is accountable to none
other except the State Government. This, according to
Mr. Dobhal confirms that State is calling the shots,
though behind thick veil and UCDF is an instrumentality
of State.
20. Mr. Rajendra Dobhal, learned Senior Counsel
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relies upon a judgment rendered by Hon’ble Supreme
Court in the case of U.P. State Co-Operative Land
Development Bank Ltd. Vs. Chandra Bhan Dubey
and Ors (1999) 1 SCC 741 for contending that UCDF
is instrumentality or authority of the State as
mentioned in Article 12 of the Constitution of India. In
the said judgment Hon’ble Supreme Court considered
Section 122 of U.P. Co-operative Societies Act, 1965
and other statutory provisions for holding that U.P.
State Co-operative Land Development Bank Limited
qualifies to be State under Article 12 of the
Constitution. Section 122 of the Uttarakhand Co-
operative Societies Act is pari materia to Section 122 of
the U.P. Co-operative Societies Act, 1965, therefore,
this Court finds force in the submission made on behalf
of petitioner that UCDF is amenable to writ jurisdiction
of this Court.
21. Learned counsel for petitioner also relied
upon the judgment rendered by Hon’ble Apex Court in
the case of M.P. State Co-Op. Dairy Fedn. Ltd. &
Anr Vs. Rajnesh Kumar Jamindar & Ors (2009) 15
SCC 221 in which it was held that M.P. State Dairy
Federation is covered by definition of State given under
Article 12 of the Constitution of India. Para 21, 22 and
23 of the said judgment are reproduced below:-
“18. Mr C.N. Sreekumar, learned counsel appearing on
behalf of the Federation, in support of the appeals, would
contend:
(i) The Special Bench of the High Court
committed a serious error in refusing to consider
the authoritative pronouncement of this Court
in Ajay Hasia [(1981) 1 SCC 722 : 1981 SCC (L&S)16
2025:UHC:6761-DB258] as also its earlier decision in Dinesh Kumar
Sharma [1993 MPLJ 786] to hold that the
Federation is ‘State’ within the meaning of Article
12 of the Constitution of India.
(ii) The Federation having been running into
huge losses, the conditions precedent for
retirement of the employees of the Federation as
contained in Regulation 13 of the Regulations
having been satisfied, the impugned judgment
cannot be sustained.
19 [Ed.: Para 19 corrected vide Official
Corrigendum No. F.3/Ed.B.J./53/2009 dated 22-5-
2009.] . Mr Vivek K. Tankha, learned Senior Counsel
appearing on behalf of the contesting respondents and Mr
Pragati Neekhra, learned counsel appearing on behalf of
the appellant in civil appeal arising out of SLP (C) No.
17705 of 2008, on the other hand, would urge:
(i) The share capital, functional control and the
administrative control being completely in the
hands of the Government of the State, the
Federation is “State” within the meaning of Article
12 of the Constitution of India.
(ii) As the decision of this Court in Pradeep
Kumar Biswas [(2002) 5 SCC 111 : 2002 SCC
(L&S) 633] governs the field and the criteria laid
down therein being satisfied, no exception can be
taken to the impugned judgment.
(iii) The Regulations governing the conditions of
service being statutory in character and the
Federation, having adopted the government
circulars and rules for the purpose of
implementation of its policy to retire compulsorily a
large number of employees, were bound to follow
the same.
(iv) The Scrutiny Committee and the Review
Committee having not only consisted of the officers
of the State but also the Registrar of the
Cooperative Societies, it was futile to move to the
Registrar of the Cooperative Societies for setting
aside the impugned circulars issued with regard to
compulsory retirement.
(v) Having regard to the Regulations governing
payment of back wages, as contained in Regulation
49(2) of the Regulations, the entire back wages
should be directed to be paid.
20. An additional contention has been raised in the civil
appeal arising out of SLP (C) No. 17705 of 2008 that the
appellant therein having been suffering from disability
within the meaning of the provisions of the Persons with
Disabilities (Equal Opportunities, Protection of Rights and
Full Participation) Act, 1995 (for short “the 1995 Act”),
Section 47 thereof would be attracted and, thus, the
appellant was entitled to entire back wages.
21. Article 12 of the Constitution of India reads as under:
“12. Definition.–In this Part, unless the context
otherwise requires, ‘the State’ includes the Government17
2025:UHC:6761-DBand Parliament of India and the Government and the
legislature of each of the States and all local or other
authorities within the territory of India or under the
control of the Government of India.”
The development of law in this regard in view of the
decisions rendered by this Court beginning
from Rajasthan SEB v. Mohan Lal [AIR 1967 SC 1857 :
(1967) 3 SCR 377] , Ajay Hasia [(1981) 1 SCC 722 :
1981 SCC (L&S) 258] and other decisions including a
seven-Judge Bench decision of this Court in Pradeep
Kumar Biswas [(2002) 5 SCC 111 : 2002 SCC (L&S) 633],
is to say the least, phenomenal.
22. We may also notice that P.K. Ramachandra
Iyer v. Union of India [(1984) 2 SCC 141 : 1984 SCC
(L&S) 214] wherein Indian Council for Agricultural
Research (ICAR) was held to be “State” within the
meaning of Article 12 of the Constitution of India, was
distinguished in Chander Mohan Khanna [(1991) 4 SCC
578 : 1992 SCC (L&S) 109 : (1992) 19 ATC 71 : AIR
1992 SC 76] . However, Chander Mohan Khanna [(1991)
4 SCC 578 : 1992 SCC (L&S) 109 : (1992) 19 ATC 71 :
AIR 1992 SC 76] was overruled in Pradeep Kumar
Biswas [(2002) 5 SCC 111 : 2002 SCC (L&S) 633] to the
extent it followed the decision in Sabhajit Tewary v. Union
of India [(1975) 1 SCC 485 : 1975 SCC (L&S) 99] .
23. In Mysore Paper Mills Ltd. v. Mysore Paper Mills
Officers’ Assn. [(2002) 2 SCC 167 : 2002 SCC (L&S) 223]
Mysore Paper Mills Ltd. was held to be “State” within the
meaning of Article 12 of the Constitution of India as it was
substantially financed and controlled by the Government,
managed by the Board of Directors nominated and
removable at the instance of the Government and
carrying on functions of public interest under its control.
30. In State of U.P. v. Neeraj Awasthi [(2006) 1 SCC
667 : 2006 SCC (L&S) 190] the U.P. State Agricultural
Produce Market Board has been held to be “State”,
holding: (SCC p. 681, para 33)
“33. The Board is ‘State’ within the meaning
of Article 12 of the Constitution. It was constituted
in terms of the provisions of the said Act. As the
powers and functions of the Board as also the State
in terms of the provisions of the statute having
been delineated, they must act strictly in terms
thereof. It is a statutory authority. Its powers,
duties and functions are governed by the statute. It
is responsible for constitution of the market
committees for the purpose of overseeing that
agriculturists while selling their agricultural produce
receive the just price therefor. It not only regulates
sale and purchase of the agricultural produce but
also controls the markets where such agricultural
produces are bought and sold. The Board is entitled
to levy market fee and recover the same from the
buyers and sellers through market committees.
Indisputably, the market committees and the Board
have power to appoint officers and servants.
Although the power of the Board in this respect is
18
2025:UHC:6761-DB
not circumscribed, that of the market committees
is. The market committees can appoint only such
number of secretaries and other officers as may be
necessary for efficient discharge of its functions.
Terms and conditions of such services are to be
provided by it. Section 19 of the Act, however,
imposes further restriction on the power of the
market committee by limiting the annual
expenditure made in this regard not exceeding 10%
of the total annual receipt of the committee.”
31. In S.S. Rana v. Registrar, Coop. Societies [(2006)
11 SCC 634] , Pradeep Kumar Biswas [(2002) 5 SCC 111
: 2002 SCC (L&S) 633] has been followed.
32. We have noticed the history of the Federation. It
was a part of the department of the Government. It not
only carries on commercial activities, it works for
achieving the better economic development of a section of
the people. It seeks to achieve the principles laid down in
Article 47 of the Constitution of India viz. nutritional value
and health. It undertakes training and research work.
Guidelines issued by it are binding on the societies. It
monitors the functioning of the societies under it. It is an
apex body. We, therefore, are of the opinion that the
appellant herein would come within the purview of the
definition of “State” as contained in Article 12 of the
Constitution of India.”
22. Learned Senior Counsel for petitioner submits
that Hon’ble Supreme Court has repeatedly held that
no one can be appointed in a State department or in an
instrumentality of State, without inviting applications or
without issuing advertisement. He relies upon a
judgment rendered by Hon’ble Supreme Court in the
case of State of Bihar and others vs.
Chandreshwar Pathak reported in (2014) 13 SCC
232. Relevant extract of said judgment is reproduced
below:-
“10. The order of appointment, in the present case, is as
follows:
“In the light of the order passed by the Inspector General
of Police, Criminal Investigation Department, Bihar,
Patna, vide his Letter No. 6/86 F3 Sh. Chandeshwar19
2025:UHC:6761-DBPathak, s/o Sh. Devnarayam Pathak of Village Haraji, P.O.
Haraji, PS- Dimbara, District- Chhapra was appointed as
Constable temporarily from 14.01.1988 afternoon on the
condition that his previous character found satisfactory
and as and when necessary, his service shall be
terminated without assigning any reason or show cause.
His pay scale shall be Rs.425-10565 EB-10-605 with the
basic pay of Rs.425/-. He has been allotted the CT No.
390.”
It is clear from the above order that the appointment has been
given only on the asking of the Inspector General of Police.
There is nothing to show that any advertisement was issued
giving opportunity to all eligible candidates to compete or any
selection process was undertaken before appointment of the
respondent.
11. In State of Orissa & Anr. vs. Mamata Mohanty (2011) 3
SCC 436, it was observed as under: (SCC PP. 451-52, paras 35-
36)
“Appointment / employment without advertisement.
35. At one time this Court had been of the view that
calling the names from employment exchange would curb
to certain extent the menace of nepotism and corruption
in public employment. But, later on, came to the
conclusion that some appropriate method consistent with
the requirements of Article 16 should be followed. In
other words there must be a notice published in the
appropriate manner calling for applications and all those
who apply in response thereto should be considered fairly.
Even if the names of candidates are requisitioned from
employment exchange, in addition thereto it is mandatory
on the part of the employer to invite applications from all
eligible candidates from the open market by advertising
the vacancies in newspapers having wide circulation or by
announcement in radio and television as merely calling
the names from the employment exchange does not meet
the requirement of the said article of the Constitution.
(Vide: Delhi Development Horticulture Employees’
Union v. Delhi Admn., State of Haryana v. Piara
Singh, Excise Supdt. v. K.B.N. Visweshwara Rao, Arun
Tewari. v. Zila Mansavi Shikshak Sangh, Binod Kumar
20
2025:UHC:6761-DB
Gupta v. Ram Ashray Mahoto, National Fertilizers Ltd. v.
Somvir Singh, Telecom District Manager v. Keshab
Deb, State of Bihar v. Upendra Narayan Singh and State
of M.P. v. Mohd. Ibrahim).
36. Therefore, it is a settled legal proposition that no
person can be appointed even on a temporary or ad hoc
basis without inviting applications from all eligible
candidates. If any appointment is made by merely inviting
names from the employment exchange or putting a note
on the notice board etc. that will not meet the
requirement of Articles 14 and 16 of the Constitution.
Such a course violates the mandates
of Articles 14 and 16 of the Constitution of India as it
deprives the candidates who are eligible for the post, from
being considered. A person employed in violation of these
provisions is not entitled to any relief including salary. For
a valid and legal appointment mandatory compliance with
the said constitutional requirement is to be fulfilled. The
equality clause enshrined in Article 16 requires that every
such appointment be made by an open advertisement as
to enable all eligible persons to compete on merit.”
12. No contrary view of this Court has been cited on behalf of
the respondent. Moreover, another Division Bench of the same
High Court has upheld termination in similar matter as noted
earlier against which S.L.P. has been dismissed by this Court as
mentioned earlier.
13. Accordingly, it has to be held that in the absence of any
advertisement or selection process, the appointment of the
respondent is not protected and could be validly terminated.
Learned single Judge was justified in dismissing the writ petition
while the Division Bench erred in interfering with the same.
14. Accordingly, we allow this appeal, set aside the order dated
05.01.2012 passed by the Division Bench of the High Court in
L.P.A. No. 945 of 2010 and restore the order dated 09.04.2010
passed by the learned single Judge of the High Court in C.W.J.C.
No.204 of 2004. There shall be no order as to costs.”
23. He submits that the 10 persons, who were
appointed as Management Trainee in UCDF were taken
21
2025:UHC:6761-DB
from one College in Jaipur in State of Rajasthan,
namely, National Institute of Agricultural Marketing
(NIAM), Jaipur. These appointments were made to the
following positions:-
(i) Management Trainee (Procurement &
Inputs) - 5
(ii) Management Trainee (Engineering) - 1
(iii) Management Trainee (Marketing) – 1
(iv) Management Trainee (Quality Control) – 2
(v) Management Trainee (Production) – 1
24. Learned counsel appearing for respondent
nos.2 and 3, however disputes this contention and
submits that only 6 out of 10 persons were appointed
from the aforesaid college in Jaipur. He concedes that 5
persons who were appointed as Management Trainee
(Procurement and Inputs) were taken from the
aforesaid college and another person who was
appointed as Management Trainee (Marketing) was also
taken from the same college in Jaipur.
25. Mr. Shobhit Saharia, learned counsel
appearing for respondent nos.2 and 3 points out that in
the year 2015, a meeting was held between
Government of Uttarakhand and representatives of
National Dairy Development Board (NDDB) in which it
was decided that NDDB will provide assistance for
recruitment of employees in UCDF and in view of the
decision taken in the said meeting, request was made
to NDDB for recruitment to the position of Manager in
UCDF. Mr. Shobhit Saharia, however, could not give any
22
2025:UHC:6761-DB
satisfactory reply to the question posed by us as to
whether State Government or NDDB or any other
agency concerned with the recruitment, advertised
vacancies in any newspaper, website or any other
platform. In fact, he stated, based on instruction, that
appointments were made without advertising the
vacancies.
26. Mr. Shobhit Saharia submits that since the
task of recruitment was assigned to NDDB, therefore,
Officers of NDDB visited four different Colleges situated
in Jaipur (Rajasthan), Anand (Gujarat), Vallabh Nagar
(Gujarat) and National Diary Research Institute, Karnal
(Haryana) for holding campus selection based on
written examination and interview. He, however,
conceded that it was only a campus selection and not a
regular selection which is usually done for appointment
in Government Corporations.
27. Mr. Siddhartha Sah, learned counsel
appearing for respondent nos.5, 6 and 8 and Mr. R.C.
Tamta, learned counsel for respondent no.7 contended
that as petitioner has not sought relief for himself and
he has simply sought quashing of order of appointment
issued in favour of private respondents, therefore, the
writ petition would not be maintainable.
28. Learned counsel appearing for respondent
nos.5 to 8 further submitted that since their clients
were appointed as Management Trainee in 2016 and
23
2025:UHC:6761-DB
they were thereafter given regular appointment,
therefore, disturbing their appointment after nearly 09
years, would be unjust.
29. In reply to the submissions made by learned
counsels for respondent nos.5 to 8, Mr. Rajendra
Dobhal, learned Senior Counsel has drawn our
attention to paras-11 and 18 of the writ petition, where
petitioner has stated that as per the qualification
mentioned in the letter dated 10.03.2015, petitioner
was fully qualified for appointment as Manager
(Procurement and Inputs) in UCDF. He further submits
that petitioner has not only sought quashing of the
appointment order illegally issued in favour of private
respondents but he has also sought a writ of Mandamus
commanding the respondents to hold selection for
appointment as Manager (Procurement and Inputs)
afresh, after advertising the vacancies.
30. Since petitioner is eligible for appointment as
Manager (Procurement and Inputs) and he has sought
writ of Mandamus to hold selection afresh as per law,
therefore, the objection raised by learned counsels
appearing for private respondents regarding
maintainability of the writ petition is found to be
without substance. Thus, it cannot be said that
petitioner does not have locus standi to maintain this
petition.
31. The challenge to locus standi of the petitioner
24
2025:UHC:6761-DB
by learned counsel appearing for private respondents is
without substance. Appointment of respondent nos.5 to
8 without advertisement has resulted in denial of
equality of opportunity to petitioner as despite being
eligible, he was prevented from applying for post.
Petitioner has sought quashing of appointment orders
and also prayed that selection be held de novo. Since
prejudice was caused to petitioner by making
appointments without advertising vacancies, therefore,
he is a person aggrieved, therefore, writ petition cannot
be thrown out as not maintainable, as contended by
respondents.
32. Even otherwise also in the case of Lakhi
Ram Vs. State of Haryana and Ors (1981) 2 SCC
674 Hon’ble Supreme Court held that an officer, whose
chance of promotion are brought to an end by
Government’s action expunging remarks from annual
confidential report of a co-officer, has a locus standi to
maintain a writ petition challenging the expungement,
even though made in favour of another person. Para
no.1 of the said judgment is reproduced below:-
“1. The only ground on which the writ petition filed by
the appellant has been dismissed by the High Court is
that the appellant has no locus standi to maintain the writ
petition. The appellant filed the writ petition challenging
the action of the government expunging the adverse
remarks made in the annual confidential report of
Respondent 6. The High Court took the view that the
appellant was not entitled to complain against the
expungement of adverse remarks made in the confidential
report of another officer. But this view is, in our opinion,
erroneous because the effect of expungement of adverse
remarks in the confidential report of Respondent 6 is to
prejudice the chances of promotion of the appellant and if
the appellant is able to show that the expungement of the
remarks was illegal and invalid, the adverse remarks25
2025:UHC:6761-DBwould continue to remain in the confidential report of
Respondent 6 and that would improve the chances of
promotion of the appellant vis-à-vis Respondent 6. The
appellant was, therefore, clearly entitled to show that the
government acted beyond the scope of its power in
expunging the adverse remarks in the confidential report
of Respondent 6 and that the expungement of the
adverse remarks should be cancelled. The appellant had,
in the circumstances, locus standi to maintain the writ
petition and the High Court was in error in rejecting it on
the ground that the appellant was not entitled to maintain
the writ petition.”
33. Similarly in the case of Banglore Bangalore
Medical Trust Vs. B.S. Muddappa and Ors reported
in (1991) 4 SCC 54 the Hon’ble Supreme Court held
that violation of rule of law raises a substantial question
of accountability of those entrusted with responsibility
of administration and it furnishes enough cause of
action either for an individual or community in general
to approach by way of writ petition and the authorities
cannot be permitted to seek shelter under technicalities
of locus standi.
34. As regards the maintainability of the writ
petition, we find merit in the submissions made by
learned Senior Counsel appearing on behalf of the
petitioner. The petitioner contends that, as per the
qualifications specified in the letter dated 10.03.2015,
he was fully eligible to be considered for the post of
Manager (Procurement and Inputs) in the Uttarakhand
Co-operative Dairy Federation Ltd., Haldwani, and that
he was deprived of equal opportunity to compete for
the said post due to absence of a public advertisement
and lack of transparency in the recruitment process
undertaken by respondent Nos. 2 and 3. We are of the
26
2025:UHC:6761-DB
considered view that the action of respondent Nos. 2
and 3 in conducting the recruitment process without
issuing a public advertisement or notice, has caused
legal injury to the petitioner. Thus, petitioner qualifies
to be a person aggrieved and the writ petition filed by
him is maintainable. Furthermore, the pleadings made
by the petitioner in para-11 and 18 of the writ petition
have not been controverted by any of the respondent in
their counter affidavit.
35. In the case of Jasbhai Motibhai Desai v.
Roshan Kumar, Haji Bashir Ahmed reported in
(1976) 1 SCC 671, a Four Judge Bench of Hon’ble
Supreme Court while dealing with the question of locus
standi held as under:-
“37. It will be seen that in the context of locus standi
to apply for a writ of certiorari, an applicant may
ordinarily fall in any of these categories: (i) ‘person
aggrieved’;(ii) ‘stranger’; (iii) busybody or
meddlesome interloper.Persons in the last category
are easily distinguishable from those coming under the
first two categories. Such persons interfere in things
which do not concern them. They masquerade as
crusaders for justice. They pretend to act in the name
of Pro Bono Publico, though they have no interest of
the public or even of their own to protect. They
indulge in the pastime of meddling with the judicial
process either by force of habit or from improper
motives. Often, they are actuated by a desire to win
notoriety or cheap popularity; while the ulterior intent
of some applicants in this category, may be no more27
2025:UHC:6761-DBthan spoking the wheels of administration. The High
Court should do well to reject the applications of such
busybodies at the threshold.
38. The distinction between the first and second
categories of applicants, though real, is not always
well-demarcated. The first category has, as it were,
two concentric zones; a solid central zone of certainty,
and a grey outer circle of lessening certainty in a
sliding centrifugal scale, with an outermost nebulous
fringe of uncertainty. Applicants falling within the
central zone are those whose legal rights have been
infringed. Such applicants undoubtedly stand in the
category of ‘persons aggrieved’. In the grey outer-
circle the. bounds which separate the first category
from the second, intermix, interfuse and overlap
increasingly in a centrifugal direction. All persons in
this outerzone may not be “persons aggrieved.
39. To distinguish such applicants from ‘strangers’,
among them, some broad tests may be deduced from
the conspectus made above. These tests are not
absolute and ultimate. Their efficacy varies according
to the circumstances of the case, including the
statutory context in which the matter falls to be
considered. These are: Whether the applicant is a
person whose legal right has been infringed ? Has he
suffered a legal wrong or injury, in the sense that his
interest, recognised by law. has been prejudicially and
directly affected by the act or omission of the
authority, complained of ? Is he a person who has
suffered a legal grievance, a person “against whom a
decision has been pronounced which has wrongfully
deprived him of something or wrongfully refused him28
2025:UHC:6761-DBsomething, or wrongfully affected his title to
something” ? Has he a special and substantial
grievance of his own beyond some grievance or
inconvenience suffered by him in common with the
rest of the public ? Was he entitled to object and be
heard by the authority before it took the impugned
action? If so, was he prejudicially affected in the
exercise of that right by the act of usurpation of
jurisdiction on the part of the authority ? Is the
statute, in the context of which the scope of-the words
“person aggrieved” is being considered a social
welfare measure designed to lay down ethical or
professional standards of conduct for the community ?
Or is it a statute dealing with private rights of
particular individuals ?
36. From the rival submissions made by learned
counsel for parties, it is now clear that respondent
nos.5 to 8 were appointed initially as Management
Trainee in 2016 and thereafter as Manager, however,
their appointment in both capacities was made without
advertising the vacancies. Thus other eligible
candidates had no opportunity to apply for appointment
or to participate in the recruitment process.
37. A Constitution Bench of Hon’ble Supreme
Court in the case of State of Karnataka vs. Uma
Devi reported in 2006 (4) SCC 1 came down heavily
on backdoor appointments or appointments made in
violation of constitutional mandate of equality of
opportunity in public employment.
29
2025:UHC:6761-DB
38. In the case of Suresh Kumar vs. State of
Haryana reported in (2003) 10 SCC 276, Hon’ble
Supreme Court upheld the judgment rendered by
Punjab and Haryana High Court, whereby 1600
appointments made in police department, without
issuing advertisement were quashed. The High Court
had held that entire selection is vitiated because there
was no advertisement and due publicity was not given
to the vacancies.
39. In the case of Union Public Service
Commission vs. Girish Jayanti Lal Vaghela and
Others reported in (2006) 2 SCC 482, Hon’ble
Supreme Court held as under:-
“10. Article 16 which finds place in Part III of the
Constitution relating to fundamental rights provides
that there shall be equality of opportunity for all
citizens in matters relating to employment or
appointment to any office under the State. The main
object of Article 16 is to create a constitutional right to
equality of opportunity and employment in public
offices. The words “employment” or “appointment”
cover not merely the initial appointment but also other
attributes of service like promotion and age of
superannuation etc. The appointment to any post
under the State can only be made after a proper
advertisement has been made inviting applications
from eligible candidates and holding of selection by a
body of experts or a specially constituted committee
30
2025:UHC:6761-DB
whose members are fair and impartial through a
written examination or interview or some other
rational criteria for judging the inter se merit of
candidates who have applied in response to the
advertisement made. A regular appointment to a post
under the State or Union cannot be made without
issuing advertisement in the prescribed manner which
may in some cases include inviting applications from
the employment exchange where eligible candidates
get their names registered. Any regular appointment
made on a post under the State or Union without
issuing advertisement inviting applications from
eligible candidates and without holding a proper
selection where all eligible candidates get a fair
chance to compete would violate the guarantee
enshrined under Article 16 of the Constitution.
(See B.S. Minhas vs. Indian Statistical Institute and
others AIR 1984 SC 363).”
40. The principles to be adopted in the matter of
public employment have been formulated by the
Hon’ble Supreme Court in the case of M.P. State
Coop. Bank Ltd. Bhopal vs. Nanuram Yadav and
Others, reported in (2007) 8 SCC 264 as under:-
“24. It is clear that in the matter of public
appointments, the following principles are to be
followed:
(1) The appointments made without following the
appropriate procedure under the Rules/Government
Circulars and without advertisement or inviting
applications from the open market would amount to31
2025:UHC:6761-DBbreach of Arts. 14 & 16 of the Constitution of India.
(2) Regularisation cannot be a mode of appointment.
(3) An appointment made in violation of the
mandatory provisions of the statute and in particular,
ignoring the minimum educational qualification and
other essential qualification would be wholly illegal.
Such illegality cannot be cured by taking recourse to
regularization.
(4) Those who come by back door should go through
that door.
(5) No regularization is permissible in exercise of the
statutory power conferred under Article 162 of the
Constitution of India if the appointments have been
made in contravention of the statutory Rules.
(6) The Court should not exercise its jurisdiction on
misplaced sympathy.
(7) If the mischief played so widespread and all
pervasive, affecting the result, so as to make it
difficult to pick out the persons who have been
unlawfully benefited or wrongfully deprived of their
selection, it will neither be possible nor necessary to
issue individual show-cause notice to each
selectee.The only way out would be to cancel the
whole selection.
(8) When the entire selection is stinking, conceived in
fraud and delivered in deceit, individual innocence has
no place and the entire selection has to be set aside.”
41. In the case of State of Orissa and another
vs. Mamata Mohanty reported in 2011 (3) SCC
436, Hon’ble Supreme Court reiterated that with a view
to curb the menace and corruption in public
32
2025:UHC:6761-DB
employment, there must a notice published in proper
manner, calling for applications, and all those who
apply in response thereto, should be considered fairly.
Para 36 of the said judgment is reproduced below:-
“36. Therefore, it is a settled legal proposition that no
person can be appointed even on a temporary or ad
hoc basis without inviting applications from all eligible
candidates. If any appointment is made by merely
inviting names from the Employment Exchange or
putting a note on the Notice Board etc. that will not
meet the requirement of Articles 14 and 16 of the
Constitution. Such a course violates the mandates
of Articles 14 and 16 of the Constitution of India as it
deprives the candidates who are eligible for the post,
from being considered. A person employed in violation
of these provisions is not entitled to any relief
including salary. For a valid and legal appointment
mandatory compliance of the said Constitutional
requirement is to be fulfilled. The equality clause
enshrined in Article 16 requires that every such
appointment be made by an open advertisement as to
enable all eligible persons to compete on merit.”
42. In the case of Renu and others vs. District
& Sessions Judge, Tis Hazari Courts, Delhi and
another, reported in (2014) 14 SCC 50, Hon’ble
Supreme Court has held as under:-
“16. Another important requirement of public
appointment is that of transparency. Therefore, the
advertisement must specify the number of posts
available for selection and recruitment. The33
2025:UHC:6761-DBqualifications and other eligibility criteria for such
posts should be explicitly provided and the schedule of
recruitment process should be published with certainty
and clarity. The advertisement should also specify the
rules under which the selection is to be made and in
absence of the rules, the procedure under which the
selection is likely to be undertaken. This is necessary
to prevent arbitrariness and to avoid change of criteria
of selection after the selection process is commenced,
thereby unjustly benefiting someone at the cost of
others.
17. Thus, the aforesaid decisions are an authority on
prescribing the limitations while making appointment
against public posts in terms of Articles 14 and 16 of
the Constitution. What has been deprecated by this
Court time and again is “backdoor appointments or
appointment de hors the rules”.
18. In State of U.P. & Ors. v. U.P. State Law Officers
Association & Ors., AIR 1994 SC 1654, this Court
while dealing with the back-door entries in public
appointment observed as under: (SCC pp. 217, para
19)
“19. …The method of appointment is indeed not
calculated to ensure that the meritorious alone
will always be appointed or that the
appointments made will not be on the
considerations other than merit. In the absence
of guidelines, the appointment may be made
purely on personal or political consideration and
be arbitrary. This being so those who come to be
appointed by such arbitrary procedure can hardly
complain if the termination of their appointment
34
2025:UHC:6761-DB
is equally arbitrary. Those who come by the
back-door have to go by the same door. ….From
the inception some engagements and contracts
may be the product of the operation of the spoils
system. There need be no legal anxiety to save
them.” (Emphasis added)
43. Rule of Law is one of the basic feature of our
Constitution. The concept of Rule of Law inter-alia
postulates that appointment to a post under
State/Central Government or an instrumentality of
State has to be made only after inviting applications
from all eligible candidates to ensure that equality of
opportunity is available to every eligible citizen. In the
present case, however, appointments were made by
adopting a process, which is not known to law. A
private employer may make appointment through
campus selection as he is not bound by the
Constitutional guarantees, particularly those enshrined
in Article 14 and 16. However, UCDF which is an Apex
Society, having deep and all pervasive State control
cannot be permitted to act in the manner as it did in
the present case. From the rival submissions made by
learned counsel for the parties, it is succinctly clear
that respondent nos.5 to 8 were appointed without
inviting applications or notifying vacancies, therefore,
their appointments cannot but be castigated as
backdoor appointments, thus illegal.
44. In the case of Ajay Hasia Vs. Khalid Mujib
Sehravardi & Ors (1981) 1 SCC 722 Hon’ble
35
2025:UHC:6761-DB
Supreme Court in paragraph no.7 held that as under:-
“7….. Now it is obvious that if a corporation is an
instrumentality or agency of the Government, it must be
subject to the same limitations in the field of
constitutional law as the Government itself, though in the
eye of the law it would be a distinct and independent legal
entity. If the Government acting through its officers is
subject to certain constitutional limitations, it must follow
a fortiorari that the Government acting through the
instrumentality or agency of a corporation should equally
be subject to the same limitations. If such a corporation
were to be free from the basic obligation to obey the
fundamental rights, it would lead to considerable erosion
of the efficiency of the fundamental rights, for in that
event the Government would be enabled to override the
fundamental rights by adopting the stratagem of carrying
out its functions through the instrumentality or agency of
a corporation, while retaining control over it. The
fundamental rights would then be reduced to little more
than an idle dream or a promise of unreality. It must be
remembered that the Fundamental rights are
constitutional guarantees given to the people of India and
are not merely paper hopes or fleeting promises and so
long as they find a place in the Constitution, they should
not be allowed to be emasculated in their application by a
narrow and constricted judicial interpretation. The courts
should be anxious to enlarge the scope and width of the
fundamental rights by bringing within their sweep every
authority which is an instrumentality or agency of the
Government or through the corporate personality of which
the Government is acting, so as to subject the
Government in all its myriad activities, whether through
natural persons or through corporate entities, to the basic
obligation of the fundamental rights. The constitutional
philosophy of a democratic socialist republic requires the
Government to undertake a multitude of socio-economic
operations and the Government, having regard to the
practical advantages of functioning through the legal
device of a corporation, embarks on myriad commercial
and economic activities by resorting to the instrumentality
or agency of a corporation, but this contrivance of
carrying on such activities through a corporation cannot
exonerate the Government from implicit obedience to the
Fundamental rights. To use the corporate methodology is
not to liberate the Government from its basic obligation to
respect the Fundamental rights and not to override them.
The mantle of a corporation may be adopted in order to
free the Government from the inevitable constraints of
red tapism and slow motion but by doing so, the
Government cannot be allowed to play truant with the
basic human rights. Otherwise it would be the easiest
thing for the Government to assign to a plurality of
corporations almost every State business such as post
and telegraph, TV and radio, rail road and telephones —
in short every economic activity — and thereby cheat the
people of India out of the fundamental rights guaranteed36
2025:UHC:6761-DBto them. That would be a mockery of the Constitution and
nothing short of treachery and breach of faith with the
people of India, because, though apparently the
corporation will be carrying out these functions, it will in
truth and reality be the Government which will be
controlling the corporation and carrying out these
functions through the instrumentality or agency of the
corporation. We cannot by a process of judicial
construction allow the Fundamental rights to be rendered
futile and meaningless and thereby wipe out Chapter III
from the Constitution. That would be contrary to the
constitutional faith of the post-Maneka Gandhi [Maneka
Gandhi v. Union of India, (1978) 1 SCC 248 : (1978) 2
SCR 621] era. It is the fundamental rights which along
with the directive principles constitute the life force of the
Constitution and they must be quickened into effective
action by meaningful and purposive interpretation. If a
corporation is found to be a mere agency or surrogate of
the Government, “in fact owned by the Government, in
truth controlled by the Government and in effect an
incarnation of the Government”, the court, must not allow
the enforcement of fundamental rights to be frustrated by
taking the view that it is not the Government and
therefore not subject to the constitutional limitations. We
are clearly of the view that where a corporation is an
instrumentality or agency of the Government, it must be
held to be an “authority” within the meaning of Article 12
and hence subject to the same basic obligation to obey
the Fundamental rights as the Government.”
45. Having regard to the statutory provisions,
particularly, Section 2(B-2), Section 31-A(1), Section
119, Section 120 and Section 122 of The Uttarakhand
Co-operative Societies Act and the Rules framed under
Section 122 of the Act whereunder cadre authority was
constituted for governing mode of appointment and
conditions of service of employees of UCDF and Milk
Co-operative Unions and also in view of other attending
facts and circumstances of the case as discussed
above, we are of the considered opinion that UCDF
comes within the definition of State under Article 12 of
the Constitution. This view of ours is fortified by
judgment rendered by Hon’ble Supreme Court in the
case of M.P. State Co-Op. Dairy Fedn. Ltd. & Anr
37
2025:UHC:6761-DB
Vs. Rajnesh Kumar Jamindar & Ors (2009) 15 SCC
221 and U.P. State Co-Operative Land
Development Bank Ltd. Vs. Chandra Bhan Dubey
and Ors (1999) 1 SCC 741.
46. It is not in dispute that while appointing
private respondents as Management Trainee, other
eligible candidates were not informed about availability
of vacancies. Law is well settled that State or
instrumentality of State has to make appointments in
conformity with all constitutional principles and one of
the basic principle is that no one should be appointed
on a post without advertising the vacancy. Appointment
without advertisement will be termed as backdoor
appointment which shall be void-ab-initio.
47. Since respondent nos.5 to 8 were appointed
as Management Trainee by Director Dairy Development
without advertising the vacancies and they were
thereafter given regular appointment on Class-II post
of Manager, while petitioner and other eligible
candidates were denied the right to be considered for
appointment, therefore, the grievance raised by
petitioner against appointment of private respondents
is well founded. The campus selection alleged to have
been made by NDDB is an eyewash and farce, which
cannot protect the appointment given to respondent
nos.5 to 8.
48. As discussed above, out of 10 appointments,
6 were made from one particular college and students
38
2025:UHC:6761-DB
studying elsewhere were not made aware that such
campus selection is being held. Other eligible persons,
who completed their studies long back were also
deprived of the opportunity to participate in the
selection for want of advertisement.
49. In view of legal position and facts of the case
as discussed above, the appointment of respondent
nos.5 to 8 cannot be sustained in the eyes of law. The
writ petition is accordingly allowed and appointment
given to respondent nos.5 to 8 as Management Trainee,
without inviting applications from other candidates, are
quashed and set aside. For the same reason, their
subsequent appointment as Manager are also quashed
and set aside. The Competent Authority shall be at
liberty to make fresh appointment to the post of
Management Trainee/ Manager, but only after issuing
advertisement in widely circulated newspapers and
after holding selection as per norms.
(Subhash Upadhyay, J.) (Manoj Kumar Tiwari, J.)
31.07.2025
Sukhbant
SUKHBANT
Digitally signed by SUKHBANT SINGH
DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH
COURT OF UTTARAKHAND,
2.5.4.20=71978f9c61bfde0ba69967c787b1764ea7bc7d
d129a8a6380d49b1885e628615, postalCode=263001,
SINGH
st=UTTARAKHAND,
serialNumber=2D8B71B8D8E345F6B7F95B1DD4FB4BE
BD2B7D72C42261361AED33172F152148D,
cn=SUKHBANT SINGH
Date: 2025.08.01 11:29:54 +05’30’
39