JUDGMENT
Untwalia, J.
1. These two writ applications filed by the postal Co-operative House Construction Society Ltd., here in after called the Society, have been heard together, as the facts are similar and the points involved in them are identical. The Registrar, Co-operative Societies, Bihar, and the Joint Registrar, Co-operative Societies (Credit), Bihar, Patna, are respectively respondents 1 and 2. Shri Bhanu Prakash is respondent 3. In C. W. J. C. 500 of 1970 and Shri Baleshwer Prasad Sinha is respondent No. 3 in the other writ application, namely, C. W. J. C. 518 of 1970. Although the history of their entering into the service is slightly different, it is undisputed that both, at the relevant time, have been employees of the office of the Postmaster-General, Bihar Circle, at Patna. I shall, therefore, proceed to state the relevant facts from C. W. J. C. 500 of 1970 and discuss the points raised with reference to those facts. The facts and points, as stated above, are almost identical in the two cases.
2. The petitioner’s case in this writ application is that it is a society constituted and incorporated under the Bihar and Orissa Co-operative Societies Act, 1935 (Act VI of 1939) hereinafter called the Act. In accordance with the Bihar and Orissa Co-operative Societies Rules, 1959 framed under the Act, Bye-Laws were also framed and registered. A copy of the Bye-Laws is Annexure 1 to the writ application. The management of the affairs of the Society vests under the said Bye-Laws in the Board of Directors constituted of eleven members two of whom are to be nominated by the Registrar, Co-operative Societies, Bihar and nine are to be elected by the whole body of share-holders from amongst them. The Board of Directors are authorised to make subsidiary rules for the conduct of the business of the Society consistent with the Act, the Rules and the Bye-Laws. The Society made representation to the Government of Bihar for acquisition of the land for the purpose of the Society and the State Government were pleased to acquire lands on its behalf and gave possession thereof to the Society in the year 1958. A substantial loan for the purpose was also granted to the Society by the Government for the construction of houses under the Low Income group Housing Scheme.
3. The petitioner’s case further is that respondent 3 is not a Post Office’ employee. He filed an application which was not in a prescribed form before the Society with the object of securing for himself the allotment of a house constructed by the Society and deposited Rs. 3,000/- with the Society, which was kept in suspense account. This was in pursuance of a resolution of the Board of Directors passed in their meeting held on the 28th November, 1957, which was to the effect that for the purpose of allotment of certain plots for houses there would be three categories of persons to whom the benefit would be extended. Although a copy of this resolution is not an annexure to the writ application, it is annexure C-3 to the counter-affidavit of respondent 8. I would do better to refer to the relevant term of this resolution at this very stage. It reads as follows:
“The Board has decided upon the following categories for the purpose of inclusion of the applicants in the first plan:–
Category (A) Post office employees working in the district of Patna such applicants are requested to pay Rs. 25000/- in one instalment.
Category (B) Government Servants Central or State other than category A of such applicants are requested to pay Rupees 8000/- along with their request for inclusion in the first plan.
Category (C)– Retired Government Servants Central or State, friends and relations of members and other such applicants are requested to pay Rs. 4000/- initially and second instalment of Rs. 4000/- when the houses reach the plinth level and the balance if any before delivery of the houses.”
The petitioner Society states that the Board of Directors had no power to frame any rule inconsistent with the Bye-Laws. The said resolution dated 28-11-57 was in clear contravention of bye-law 4. The resolution of the Board was rescinded by the general body of the Society held on 19-11-67. A copy of this resolution is Annexure 2 to the writ application. By this resolution said, to have been passed in the general meeting of the members of the Society, the resolution of the Board dated 28-11-57 as also the actions taken upon it was struck down. Respondent 3, however, carried on, for long, his correspondence with the Board of Directors and demanded allotment of a house or a plot of land to him and ultimately he filed an application under Section 48 of the Act before the Registrar, Co-operative Societies. The petitioner filed his objection, a copy of which is Annexure 3 to the writ application. The stand of the petitioner was and is that respondent 3 was never a member of the Society, he does not hold any share nor had he paid any admission fee and was never admitted as a member of the Society.
4. The Joint Registrar, to whom the Reference was transferred for adjudication, gave his award dated 1-11-69 a copy of which is Annexure 7 to the writ application. He held that the Society had accepted a sum of Rs. 3,000/- from respondent 3 and had undertaken to allot a house or a plot of land to -him. He further held that respondent 3 is a postal employee; the expression cannot be limited to only one set of employees. The Society had laid down three categories of membership but Government objected to inclusion of outsiders as members of the Society. But then they did not envisage to exclude employees of the Postmaster-General’s office from being members of the Society. In that view of the matter, he made the award in favour of respondent 3 and against the petitioner. The petitioner went up in appeal before the Registrar. The Registrar has affirmed the award of the Joint Registrar by his order dated 6-12-69, a copy of which is Annexure 8 to the writ application. The Society has obtained a rule from this Court against the respondents to show cause why the orders of the Joint Registrar and the Registrar contained in Annexures 7 and 8 be not called up and quashed by grant of a writ of certiorari.
5. Respondent 3 has filed a counter-affidavit. According to his case, he is eligible to be a member of the Society, was admitted as such, and was asked to pay the sum of Rs. 3,000/- which he paid. A letter dated 19-2-58, a copy of which is Annexure ‘A’ 3 to the counter-affidavit, was issued by the then Honorary Secretary of the Society. It reads as follows-
“I am directed to inform you that your request for owning a house proposed to be constructed has been accepted by the Board of Management.
I am directed also to enclose herewith an application form which may please be returned early.
In accordance with our Bye-laws, I may add an agreement in prescribed form shall have to be entered into by you before transferring possession of the house.’
A nomination form, a copy of which is Annexure ‘B’ 3 to the counter-affidavit, was also furnished. Annexure ‘D’ 3 is a copy of the resolution dated 9-5-67 passed by the Board of Directors of the Society in their meeting held on that date, deciding to allot a plot of land to each of the two respondents of these two applications.
6. In the affidavit in reply filed on behalf of the Society on the 10th of April, 1972 two new matters were mentioned, (i) that respondent 3 is a member of the Postmaster-General’s Office Employees Cooperative House Construction Society Ltd. and (ii) that in paragraph 9 of his petition filed before the Registrar, Co-operative Societies, he had claimed to be a, member of the society as having been placed ha category B as per the resolution of the Board of Directors dated 28-11-57. Since this affidavit in reply was filed too late, we permitted rather called upon respondent 3 to file a further affidavit. He has filed one wherein he has denied that he is a member of the Postmaster-General’s Office Employees Co-operative House Construction Society Ltd. He has further stated that the statement in paragraph 9 of the petition filed before the Registrar was the statement of fact which respondent No, 3 had assumed to be like that.
7. At the outset, I would like to refer to my decision in C. W. J. C. 432 of 1969 decided on 15-1-1971, which decision is reported in Postal Co-operative House Construction Society Ltd. v. Registrar, 1971 BLJR 393, and with which Sarwar Ali, J., had agreed. We were informed that Shri Kuber Nath Lal, the person affected there, had approached the Supreme Court for grant of special leave to appeal to the Supreme Court under Article 136 of the Constitution, but that Court was pleased not to allow his prayer. The said decision is, therefore, final. In that case, this very Society was the petitioner and the facts were similar in many regards except in regard to one vital matter which will be alluded to hereinafter. Shri K. N. Lal, at the relevant time, was the Personal Assistant to the Chief Engineer, Kosi Project. In other words, he was in Government service of a Department which was quite foreign to the Postal Department. He had claimed to be a member of the Society under category B as per the resolution of the Board of Directors dated 28-11-57. There, the Registrar of the Co-operative Societies had also made an award in his favour almost on the lines on which it has been made in the present writ applications. That award was quashed by this Court. On a consideration of the relevant Bye-Laws, it was held that-
“On a plain reading of the bye-law it is clear that the membership of the Society Is open only to the Post Office Employees in the district of Patna and those who are other the founder members or who may be admitted to membership subsequently; in any event, they must be the Post Office Employees of the district of Patna. Under Bye-law 33 it was competent to the Board of Directors to frame subsidiary rules for the conduct of the business of the Society consistent with the Act, the Rules framed under the Act and the Bye-laws. Their resolution dated 28-11-57 extending the membership to persons like respondent No. 2 was beyond their power as it was clearly inconsistent with Bye-law 4. The Joint Registrar in Annexure 4 has rightly repelled reliance upon bye-law 33 for the power of the Board. Learned Counsel ior respondent No. 2 rightly did not place reliance on bye-law 33 to justify the resolution of the Board dated 28-11-57. Without the amendment of the bye-law in accordance with the Act and the Rules even a general meeting of the members of the Society could not admit a person like respondent No. 2 to the membership of the society. The procedure for amendment of the bye-law is provided in Rule 16 and has also been reiterated in bye-law 52. Nothing of the kind was done to amend bye-law. The resolution of the Board dated 28-11-57, therefore, was not only ultra vires the Board but it was also ultra vires the society itself. That being so, any action taken by the secretary of the society or the Board in pursuance of that resolution was void and could not be validated on the doctrine of estoppel as it was against the public policy behind bye-law 4 to admit a person who was not a postal employee to the membership of the Society. The Registrar was clearly wrong in his order dated 2-1-67 to apply in effect the doctrine of estoppel and to say that when the society violated bye-law 4, it could not take shelter under the same bye-law. In my opinion the well-known principle that there is no estoppel against Statute, on the facts and in the circumstances of the case, is clearly attracted. Even if respondent No. 2 would have been admitted to the membership of the Society by the resolution passed in a general meeting of the members of the Society, the doctrine could not be applied, much less it can be applied by way of estoppel to the society when the action was taken by its Secretary or Board on the basis of the resolution which was clearly ultra vires the Board.” Bye-law 4 reads as follows:
“The membership of the Society shall be open only to Post Office Employees in the District of Patna, who have put in at least three years continuous service and who have signed the application for registration or who may be admitted to membership subsequently by the Board of Directors or to the nominees or legal heirs of such members in accordance with Bye-law 9.”
In view of the enunciation of the law by the Supreme Court in Co-operative Central Bank Ltd. v. Addl. Industrial Tribunal, A. P., Hyderabad, AIR 1970 SC 245 at p. 252 (para 10) that the Bye-laws framed by a Society cannot have the force of a statute like the Rules framed by the Government in exercise of the Power under any particulate statute, it may be open to doubt whether the principle that there cannot be any estoppel against statute invoked in the earlier decision will hold good. But that apart, the position undoubtedly would be that the resolution dated 28-11-57 of the Roard of Directors was ultra vires the Roard and until and unless the Bye-laws were amended, it was ultra vires the general body of the Society also. That being so, if there would have been no difference between the facts of K. N. Lal’s case and the instant one, it would not have been possible to make a departure from the former decision. But I shall presently show that there is a vital difference.
8. It may be emphasised here that the stand taken by respondent 3 before the Registrar, Co-operative Societies, seems to have been on the basis of his claim under category B as per the resolution of the Board of Directors dated 28-11-57. He had also deposited a sum of Rs. 3,000/, as required of a member of that category. In view of the earlier decision which was given later than the impugned awards contained in Annexures 7 and 8, that stand has been given a go-by and the whole of the argument on behalf of respondent No. 3 is that ho is a Post Office Employee within the meaning of Bye-law 4 of the Bye-laws of the society. The stand is not wholly new. There is a clear indication of this stand to be found in the award of the Joint Registrar (Annexure 7). The Registrar, of course, did not proceed upon that basis. The question which falls for our decision, however, is whether respondent No. 3 is a Post Office Employee within the meaning of Bye-law 4. If it was so, or if necessarily the view expressed by the Joint Registrar in his impugned order (Annexure 7) is not wrong, is it open to us to say that in exercise of our power under Article 226 of the Constitution we must set aside that award? The matter, however, is not free from doubt. Various Posts and Telegraphs Manuals and the gradation lists of the employees of Posts and Telegraphs Department were placed before us on either side in support of their rival contentions whether ‘Post Office’ means the entire Postal Department or whether it is a Post Office in the literal and narrower sense excluding thereby the office of the Postmaster-General. The net result of the Manuals and the gradation lists which have changed from time to time seems to be that there is a Posts and Telegraphs Department of the Central Government. Rroadly speaking, there are two sections of it — one is Postal and the other is Telegraph which includes Telephone also. According to the case of the petitioner society in paragraph 20 of the writ application, the Posts and Telegraphs Department has five branches, namely, (a) Circle Office, i.e., Postmaster-General’s Office, (b) Post Office, (c) Telegraph, (d) Railway Mail Service and (e) Telephone. On the other hand, while refuting this contention on behalf of respondent 3, our attention was drawn to Posts and Telegraphs Manual, Volume II, wherein in paragraph 4, it is mentioned that for purposes of administrative convenience the postal and telegraph services are divided into four distinct branches, namely, Postal, Engineering, Wireless and Traffic. Paragraph 26 of Manual Vol. IV states that promotion to the grades mentioned below in that paragraph should be by selection from the best officers in the Department, seniority regarded only where other qualifications are practically equal, There are three heads mentioned under it–(1) Post Office, (2) Telegraphs and (3) General. It may be pointed out here that Manual Volume IV deals with establishment. According to Appendix 9 at p. 241 of the 1960 Edition, there are separate rules for recruitment to the clerical service in Post Offices in the Indian Posts and Telegraphs Department. Appendix 18 provides for rules for recruitment to the service of First Division Clerks in offices of Heads of Circles and the Director of Telegraph Stores, Workshops, etc. Appendix 19 contains rules for recruitment to the service of Lower Division Clerks in those offices. These rules would indicate that there are different rules for recruitment to the establishment in the Post Offices and in other administrative and technical offices. In Section 2 of the Indian Post Office Act, 1898 there are three different expressions defined in Clauses (e), (h) and (k). Clause (e) says-
"The expression 'officer of the Post Office' includes any person employed in any business of the Post Office or on behalf of the Post Office." Clause (h) provides- "the expression "post office' includes every house, building, room, carriage or place used for the purposes of the Post Office, and every letter-box provided by the Post Office for the reception of postal articles." Clause (k) reads- "the expression 'Post Office' means the department established for the purpose of carrying the provisions of this Act into effect and presided over by the Director General." Various sections in the Act would show the administrative control of the Postmaster-General in regard to the Department of Post Offices and the business of the post offices. Paragraph 1 of Manual Vol. VIII would show that the Postmaster-General is the Head of a Circle and is the Chief Officer in the Post and Telegraph Circle.
In Volume 30 of Halsbury’s laws of England, 3rd Edition, it would be found from Article 239 at page 148 that ‘Post Office’ in a comprehensive and wider sense is a branch of the public service and that is the nature of post office business. Articles 251 and 255 at pages 153 and 155 would show that in England also there are separate Acts as in India for governance of the Post Office Branch of the Department and Telephone and Wireless Department of Posts and Telegraphs Department, the Postmaster-General is the administrative head of both, the Post Office Act, 1953 governs the postal Department and the Telegraph Acts, 1863 to 1954 govern the other Department. It would also appear from “Chapter 2 of Posts and Telegraphs Manual, Volume VIII, that every circle is apportioned into divisions and there is a superintendent of the Postal Division as the administrative head of every Division. His office may be situated in the building of the Post Office or may be situated in some other building. Similarly, Chapters 3 and 4 would show that there are Inspectors of Post Offices and Town Inspectors of Post Offices for the purpose of administration. On behalf of the Society, our attention was drawn to some amended slips incorporated after paragraph 29 of Manual Volume IV sometime in the year 1962 to show that there are different employees of the different offices of the Posts and Telegraphs Department and the employees of the Post Offices are enumerated in a separate heading which cannot include the employees of the Postmaster-General’s Office. On behalf of the petitioner our attention was also drawn to the separate gradation list of P. M. G.’s Office, from the gradation list of Post Office staff, prepared in the years 1967 and 1968. To counteract this, on behalf of respondent 3, we were shown a joint list of postal officials in the Bihar Circle issued in 1958 which includes the staff both of the Post Offices as also of the Postmaster-General’s Office.
9. On a consideration of the entire matter referred to above, my conclusions are the following-
(i) That the Department as a whole is called Posts and Telegraphs Department.
(ii) That the Postmaster-General is the administrative head of the Department in a Circle.
(iii) That Post Offices and Telegraph Offices function in their different spheres, although they may be situated in the same building.
(iv) That the expression ‘Post Office’ in a wider and comprehensive sense means the Postal Department and in a narrower and common parlance sense it means only that branch of the Postal Department which actually does the work of Post Office.
(v) That there is a technical department such as Engineering, etc. in the Department of Posts and Telegraphs and that is a separate sub-department.
(vi) That in the Postal Department actual working of the Post Offices means handling letters, registered letters, parcels, etc., and there is an administrative department to supervise the working, and in that category are the Inspectors of Post Offices, the superintendent of post offices, and so does come the Postmaster-General as the administrative head of the circle of the Postal Department.
Similar seems to be the position in England, more or less. That being so, the question of difficulty, which arises in these cases, is whether the expression ‘post office employees’ in bye-law 4 was used in a restricted and a narrower sense or was it used in a wider and a comprehensive sense? The matter is not free from doubt. Although there was no such categorical statement in the writ application or in any of the affidavits at the time of the hearing of the writ application we were shown the membership register of the society wherefrom it appeared that almost all the members were employees of the post office in the restricted and narrower sense. But it is to be emphasised here that there is no definition of its own given by the Society in its Bye-laws defining the expressions ‘post office’ or ‘post office employees’. If it would have given its own definition, the matter would have been placed beyond doubt. That was possibly the reason that in answer to our queries sometimes it was stated on behalf of the petitioner that employees of the administrative offices like those of the office of the Superintendent of Post Offices or Inspectors of Post Offices would be Post Office Employees within the meaning of Bye-law 4 and sometimes the answers were in the negative. It appears to me that if the employees of those administrative offices could come within the expression ‘post office employees’, the employees of the Postmaster-General’s Office also could come within the said expression. But since the matter was not free from doubt, I could not persuade myself to hold definitely either way. In such a situation, on the facts and in the circumstances of this case, it appears to me a fit case where the power of this Court under Article 226 should not be exercised. The error of law is not apparent on the face of the impugned orders contained in Annexure 7 and 8. On the whole of the scheme of the Posts and Telegraphs Department, it is possible to take the view that the expression Post Office Employees’ was used in a comprehensive and a wider sense. That being so, there would be no justification for the quashing of the awards contained in Annexures 7 and 8.
10. If respondent 3 could be eligible to be a member of the Society in accordance with Bye-law 4, then it appears to me that he has rightly been not defeated by the Joint Registrar or the Registrar and he cannot be defeated by this Court either for want of an application for membership in form or in absence of a definite and specific order admitting the said respondent as a member of the society. The facts found by the Joint Registrar as also the Registrar would clearly show that respondent 3 was asked to deposit Rupees 3,000/-, he did deposit the money and thereupon the letter dated 19-2-58 (Annexure ‘A’ 3) was written to him, which had the effect of admitting him to membership. The other formalities were to follow as a matter of course. If respondent 3 could be so admitted to membership or was, in substance, admitted then the joint body had no power to cancel his membership by their resolution as they purported to do in their meeting held on the 19th of November, 1967 as per their resolution (Annexure 2). Any lacuna in the procedure of admitting respondent 3 in the membership on the facts of these cases must be held to be irregular only and not illegal so as to invalidate the membership of the said respondent.
11. Learned Advocate-General appearing for the petitioner referred to Bye-law 7 which says-
“No person who is a member of another Co-operative Building Society within the area of operation of this Society shall be admitted.’
He submitted on the statement made in the affidavit in reply that respondent 3 being a member of the Postmaster-General’s Office Employees Co-operative House Construction Society Ltd., Putna, could not be admitted to be a member of this Society. In the first place, this statement of fact was not made in the writ application, it was made at a very late stage, and it has been controverted by respondent 3. In the second place, still there is no statement that respondent 3 was member of another Building Society in the year 1958 when he was accepted as a member of the petitioner society. It will bear repetition to say that in substance and in effect respondent 3 was admitted as a member by the letter (Annexure ‘A’ 3).
12. For the reasons stated above, the decision in these two writ cases cannot automatically follow the decision in K. N. Lal's case. As stated above, Shri K. N. Lal was a Government servant in a Department which was quite foreign to the Postal Department while either of the two respondents in the two cases is not so. In the result, the applications fail and are dismissed but in the circumstances there will be no order as to cost. Akbar Hussain, J. 13. I agree.
