Kanchan Chakraborty, J.
The mandamus petition under Article 226 of the Constitution of India has been taken out by one B. Joga Rao, an employee under the respondent no.1, the A and N State Cooperative Bank Ltd. (hereinafter referred to as the Society) praying for issuing direction on the respondents to confer his promotion to the post of Manager with retrospective effect from 29.8.2005 maintaining his seniority and, consequently, to the post of Senior Manager w.e.f. 19.01.2010.
The petitioner, B. Joga Rao was appointed as Peon in the Society and, in course of time, promoted to the post of Deputy Manager together with some others vide the Office Order No.168 dated 01.5.1998. In the promotion list his position was no.1. Subsequently, amongst 21 incumbents, 7 were conferred with the post of Deputy Managers but the other 14 are the junior to the writ petitioner who were also promoted and posted as Deputy Managers vide an office Order No.354 dated 21.8.1995. In that case also, the petitioner’s seniority in the list was maintained. In view of Order No.293 dated 03.9.2004 altogether 11 staff junior to the writ petitioner were given promotion to the post of Manager. While passing that order, the Executive Committee excluded the name of the writ petitioner therefrom on the ground that his CCR was unsatisfactory. That unsatisfactory CCR and remarks therein was never communicated to the petitioner enabling him to controvert such entries. Immediately after the order dated 03.9.2004, the petitioner made a representation on 06.9.2004 to the respondent no.3 informing him about the promotion being conferred to his juniors to the post of Manager by completely overlooking his seniority. In reply, the respondent no.3, for the first time, informed him on 15.9.2004 that the promotion to the post of Manager was purely on meritcum- seniority basis as well as on report of the ACR which was not found satisfactory in his case. In view of A and N Islands Cooperative Societies Service Rules, 1974, it was mandatory for the purpose of promotion to the higher post, the sole criterion was seniority-cum-merit and subject to acquiring professional qualification/training. In that view the answer given by the respondent no.3 dated 15.9.2004 was baseless and arbitrary because of not giving effect to the order no.293 dated 03.9.2004 in favour of the petitioner, his chance in the next promotional post i.e. Senior Manager was not only delayed but was ignored and his juniors were given promotion to the post of Senior Managers. On 12.11.2008 under reference No.SCV/Willingness/08/2970, the respondents sought willingness from the writ petitioner as well as others with regard to the new assignment as Manager Cadre to which he submitted his willingness in writing on 17.11.2008 indicating the injustice done to him in case of delayed promotion and promoting his juniors to the higher post. The juniors to the petitioner were also conferred the promotion to the post of Senior Manager vide the Order No.388 dated 19.01.2010. The writ petitioner being the seniormost employee was entitled to hold the post of Senior Manager along with the other junior incumbents who were conferred with such benefit on the strength of said order dated 19.01.2010. Had the writ petitioner been promoted to the post of Manager on 29.8.2005, he could have also been conferred with the promotion to the post of Senior Manager w.e.f. 19.1.2010. Not only he has suffered financial loss but also lost promotional avenues to the next higher post up to the post of Assistant General Manager. When the petitioner was given promotion to the post of Manager on 21.01.2010, he was transferred to the Branch Office at Bakultala. The petitioner accepted the promotion under protest and made a representation requesting the authority to review the order of promotion to the extent of his place of posting at Bakultala on the ground of his ill health. On 15.02.2010 the writ petitioner submitted his written representation to the respondent no.2 in which he again submitted his genuine claim of not having been considered to the post of Manager on promotion in the year 2005 and its effect in the service. His representation was not considered by the respondents in its true and proper perspective. Thereafter, even without appreciating and consideration of bad health of the writ petitioner, the respondent no.3 on 18.02.2010 issued Memo. informing him that his promotion to the post of Manager would be cancelled in the event he did not report at the place of posting at Bakultala Branch within 28.02.2009. On 23.02.2010 the petitioner submitted a reminder in which he had categorically stated the entire episode since 2005. His representation was not also considered by the respondents. On the contrary, in order to verify the veracity of the request of the petitioner about his health condition, the respondent no.3 referred the case to the Medical Board of G.B. Pant Hospital, Port Blair. Thereafter, the writ petitioner, as a last resort, on 12.03.2010, submitted representation to the respondent no.2 and tried to bring the attention of the respondents to the subject matter and prayed for considering his case to the post of Manager by giving retrospective effect from 29.8.2005. The respondents, however, had shown some kindness in the matter and by an office Order No.458 dated 31.03.2010 modifying the earlier order dated 21.01.2010 to the extent, he was posted at the Branch office at Tushnabad in place of Bakultala. The writ petitioner during this period underwent major operation of heart. He rendered service for the opposite parties to his best but on the contrary, the legitimate benefits were not provided to him with ulterior motive. The petitioner has never been treated at par with his juniors in the matter of promotion to the post of Manager during 2005 without any reason whatsoever and the decision of the authorities not to promote him as Manager together with his juniors was entirely arbitrary, against the natural justice and violative of principles of the service rule. Hence this application with the prayer:-
(a) Issuance of writ in the nature of mandamus directing the respondents to confer the promotion to the post of Manager with retrospective effect i.e. dated 29.8.2005 by maintaining his seniority;
(b) Directing the respondents to promote the writ petitioner to the post of Senior Manager w.e.f. 19.01.2010 by maintaining his seniority;
(c) Directing the respondents to confer the petitioner with all financial benefits and other consequential reliefs.
By filing an affidavit-in-opposition, the respondent nos.1 to 4 have challenged the maintainability of the writ petition itself mainly on the grounds that (a) the respondent no.1, being a Cooperative Society, is not coming within the meaning of “State” as defined in Article 12 of the Constitution of India and (b) that the respondent no.1 being a Cooperative Society registered under A and N Islands Cooperative Societies Regulations, 1973 and Rules, 1974, the dispute between the petitioner and the respondent no.1 cannot be challenged in a court of law in view of Section 83. Again the respondent no.1 being a Cooperative Society registered under the A and N ICS Regulation, 1993 all the disputes between the employee and the Society has to be referred to arbitration before the Registrar of Cooperative Societies in view of provisions laid down in Section 55(c) of the Regulation. That apart, it has further been stated that promotion to the post of Manager was not given to the petitioner as his ACR was found not satisfactory and that he was not willing to move to southern group of Islands or middle or north Andaman on the ground of his health problem. He also did not intimate his willingness to take up the new assignment as Manager with posting in North and Middle Andaman circle.
At the Bar, the following decisions have been referred to:-
(a) Pradeep Kumar Biswas –Versus- Indian Institute of Chemical Biology and others reported in (2002) 5 Supreme Court Cases 111 and
(b) Supriyo Basu and others –Versus- W.B. Housing Board and others reported in (2005) 6 Supreme Court Cases 289.
The first point comes in for consideration is whether the respondent no.1 i.e. the Cooperative Society, is a “State” within the meaning of Article 12 of the Constitution.
It is admitted position in this matter that respondent no.1 the A and N Islands State Cooperative Society Ltd. Is a Cooperative Society registered under A and N Islands Cooperative Societies Regulations, 1973. Therefore, it is supposed to function in accordance with the provisions of the Regulation albeit it is not created by the Regulation. The article 12 of the Constitution has given a wide scope to the expression “other authorities”. The main theory evolves is that of “instrumentality or agency” of the Government. It embraces public authorities exercising statutory powers, other authority created under the statute and even a non-statutory authority exercising public function. In Ajay Hasia v. Khalid Mujib Sehravardi reported in AIR 1981 SC 487, the Apex Court enunciated the following:-
“… … …
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 its basic obligation to respect the Fundamental Rights and not to override them. The mandate of a corporation may be adopted in order to free the Government from the inevitable constrains 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 guaranteed to them.”
The Hon’ble Justice Bhagwati enunciated the following test for determining whether an entity is an instrumentality or agency of the State:-
“(i). One thing is clear that if the entire share capital of the corporation is held by the Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government.
(ii) Whether the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with government character.
(iii) It may also be a relevant factor whether the corporation enjoys monopoly status which is the State conferred or State protected.
(iv) Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality.
(v) If the functions of the corporation of public importance and closely related to governmental functions, it would be a relevant factor in classified the corporation as a instrumentality or agency of Government.
(vi) Specifically, if a department of Government is transferred to a corporation it would be a strong factor supportive of this inference of the corporation being an instrumentality or agency of the Government.”
A Cooperative Society not being a creature of a statute but functions in accordance with the statute, ordinarily is a non-statutory body outside the mischief of definition “State” as defined under Article 12 unless it is found to be an instrumentality or agency of the State or exercises power to make rules, bye-laws or regulations having statutory force.
In Chander Mohan Khanna v. N.C.E.R.T. reported in AIR 1992 SC 72, it was observed :-
“There are only general principles but not exhaustive tests to determine whether a body is an instrumentality or agency of the Government. Even in general principles, there is no cut and dried formula which would provide correct division of bodies into those which are instrumentalities or agencies of the Government and those which are not. The powers, functions, finances and control of the Government are some of the indicating factors to answer the question whether a body is ‘State’ or not. Each case should be handled with care and caution. Where the financial assistance from the State is so much as to meet almost entire expenditure of the institution, or the share capital of the corporation is completely held by the Government, it would afford some indication of the body being impregnated with governmental character. It may be a relevant factor if the institution or the corporation enjoys monopoly status which is State conferred or State protected. Existence of deep and pervasive State control may afford an indication. If the functions of the institution are of public importance and related to governmental functions, it would also be a relevant factor. These are merely indicative indicia and are by no means conclusive or clinching in any case.”
Article 12 should not be stretched so as to bring in every autonomous body which has some nexus with the Government within the sweep of the expression ‘State’. A wide enlargement of the meaning must be tempered by a wise limitation. It must not be lost sight of that in the modern concept of Welfare State, independent institution, corporation and agency are generally subject to State control. The State control does not render such bodies as ‘State’ under Art.12. The State control, however vast and pervasive is not determinative. The financial contribution by the State is also not conclusive. The combination of State and coupled with an unusual degree of control over the management and policies of the body, and rendering of an important public service being the obligatory functions of the State may largely point out that the body is a ‘State’. If the Government operates behind a corporate veil, carrying out governmental activity and governmental functions of vital public importance, there may be little difficulty in identifying the body as “State” within the meaning of Art.12 of the Constitution.
In Supriyo Basu and others –Versus- W.B. Housing Board and others (Supra) the respondent Society was a housing cooperative society. The question whether or not such cooperative housing society is purely a private body with no public duty was not raised directly before the Court. The Hon’ble Apex Court reiterated its view in U.P.State Coop. Land Development Bank Ltd. V. Chandra Bhan Dubey (AIR 1999 SC 753) but did not discuss the issue further.
In Pradeep Kumar Biswas –Versus- Indian Institute of Chemical Biology and others(Supra) the majority view over the issue is set out below:-
“40. The picture that ultimately emerges is that the tests formulated in Ajay Hasia are not a rigid set of principles so that if a body falls within any one of them it must, ex hypothesi, be considered to be a State within the meaning of Article 12. The question in each case would be—whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State.”
Taking the ratio of the decisions discussed above into consideration, it is to be seen whether the respondent no.1 i.e. the A and N Islands State Cooperative Bank Ltd. is a “State” within the meaning of Article 12. This Society was registered under the A and N Islands Cooperative Societies Regulations, 1973. While registering it under the said Regulation, it had to submit its bye-laws. The bye-laws of the Society is containing its object, capital, liability, membership, shares, distribution of shares, management etc. The object of the Society as mentioned in its bye-laws is set out below:-
“The object of the State Cooperative Bank shall:-
(i) … …
(ii) … …
(iii) … …
(iv) … …
(v) … …
(vi) … …
(vii) … …
(viii) receive money from the Government for purchasing shares in affiliated societies.
(ix) undertake general banking business of any type not specifically described under the bye-laws.
(x) … …
(xi) … …
(xii) … …
(xiii) … …
(xiv) … …
(xv) act as a banking agent for the Government of Union Territory or Central Government or its offices and Government undertakings.
(xvi) … …
(xvii) … …
CAPITAL
(a) The Capital of the Bank shall for the present be Rs.5000 lakhs made up of the shares of the following types:
(i) 34.800 A-Class share of Rs.100 each to be allotted to the Cooperative Societies.
(ii) 15000 B-class shares of Rs.1000 each.
(iii) 200 C-class shares of Rs.100 each.”
It has been categorically mentioned that B-class shares shall be allotted only to the Government and the Bank shall have the power to retain such B-class shares at such time and in such manner as may be agreed upon between the Bank and the Government.
“MANAGEMENT
Subject to the provisions of the Regulation, the Rules, Bye-laws and such resolution of the general body as may from time to time pass the executive management of the Bank shall raise in a Board of Directors. The Board shall consist of not more than 15 members, both elected and nominated as detailed below:-
(i) 6 Directors representing the affiliated agricultural credit societies at the rate of two for South Andaman, 3 for Middle and North Andaman and one for Car Nicobar group;
(ii) 4 Directors representing non-agricultural credit societies i.e. 2 directors representing consumer cooperatives, 1 Director representing plantation cooperative and 1 Director for other type of cooperative societies;
(iii) 3 Directors nominated by the Chief Commissioner or any other officer authorised by him under Section 26(ii) when the Government has taken share in it;
(iv) A Director representing C-Class share holder and
(v) The Managing Director.”
It was further provided that in the event of anyone of the following officers of the A and N Administration viz., Chief Secretary, Development Commissioner-cum-Development Secretary or Secretary(Cooperative) being nominated to the Board by the Chief Commissioner under Section 26 of the A and N Islands Cooperative Societies Regulation, 1973 shall be the Ex-officio Chairman.
It was further mentioned in the Rule that all the members of the Board (except the Ex-officio Chairman, Managing Director and nominated members) shall vacate their office on the date of completion of the term of three years. Again all the members of the Board (except the Ex-officio Chairman, Managing Director and nominated members) shall be elected at one and the same time for the specified period of three years. Any interim vacancy or vacancy which has not been filled up at the time of original election may be filled up by the remaining members of the committee (including the Ex-officio Chairman, Managing Director and nominated members) shall be elected at one and some time for the specified period of three years. Any interim vacancy or any vacancy which has not been filled up at the time of original election may be filled up by the remaining members of the committee including the ex-officio chairman, Managing Director and nominated members.
It was further mentioned clearly in the bye-laws that it shall be competent to the general body to remove at any time any member of the Board except the Ex-officio Chairman, Managing Director and nominated members and elect another in his place and the members so elected ….
“CHAIRMAN
(a) The Chairman shall be the head of the Bank and exercise general control and supervision over the affairs and the work of officers. He shall proceed over the meeting of the general assembly, the board of directors and the executive committee.”
The objectives which have been incorporated in the bye-laws of the respondent Society manifestly demonstrate that it was set up for the further economic welfare of the Society by fostering plan financial development of the Islands. Such a function is fundamental to the governance of the Islands. In view of the decision in Rajasthan ACB v, M. Lall (AIR 1967 SC 1857):-
“The State, as defined in Article 12 is thus comprehended to include bodies created for the purpose of promoting the educational and economic interest of the public.”
A careful reading of the distribution of shares and management of the respondents cooperative society as incorporated by its bye-laws makes it abundantly clear that Government of India has a dominant role to play in the governing body of the respondent society. The Chief Secretary would be the Ex-officio Secretary of the Society who is to be appointed by the Government of India. In any case, the post of Ex-officio Chairman will remain stable in all the cases and has exclusive control and supervision over the affairs and the work of the officers of the Society and he would preside over meetings of the general assembly, Board of Directors as well as Executive Committee. As far as the shares of the Society is concerned, the Government is having all the 1500 B-Class shares of Rs.1000 each exclusively which is a substantial portion of the share capital of the Bank and that should be allotted only to the Government. In management the Government should have 3 representatives to be nominated by the Chief Commissioner. This shows also that the Government has a dominant role in the financial policy making and general function of the Society which is discharging not only its duty towards its members but also public duty and to act as a banking agent for the Government of Union Territory or Central Government or its officers under government undertakings. The cumulative fact as established from the bye-laws of the Society in question appears to be a body functionally and administratively as well as economically –by or under the control of the Government to great extent. Such control is particular to the Society and is pervasive. Therefore, it can be held without any hesitation that the A and N Islands State Cooperative Bank being a body corporate is a “State” within Article 12. The control of the Government over it is not mere regulatory. In view of such this Court finds no substance in the proposition made by Mr. Bahadur, learned counsel appearing for the respondent nos.1 to 4.
Mr. Bahadur contended that in view of Section 83 under Chapter XIII of the A and N Islands Cooperative Societies Regulation, 1973, no court shall have any jurisdiction in respect of any dispute required under Section 55 to be referred to the Registrar. Therefore, this dispute between the petitioner and the Society cannot be agitated in a writ application.
Article 226 not being one of those provisions of the Constitution which may be changed by ordinary legislation, the powers under Article 226 cannot be taken away or curtailed by any legislation, short of amendment of the Constitution.
It follows that any law which seeks to take away or restrict the jurisdiction of the High Court under Article 226 must so far be held to be void and that the High Court shall be entitled to exercise the power under Article 226 free from the factors imposed directly or indirectly. Even where a statutory provision appears the jurisdiction of the ‘courts’ generally, it will not bar the jurisdiction of the High Court under Article 226 as that of the Supreme Court under Article 32. Therefore, the contention of Mr. Bahadur cannot be accepted.
Mr. Jayapal, learned counsel appearing for the petitioner contended that the petitioner, B. Joga Rao, was No.1 in the list of promotion of staff from Serial No.IV to Officers’ Serial No.VII vide the Order No.354 dated 21.8.1982 (Annexure P-3). The date of promotion was shown as 01.5.1995. By virtue of that promotion he became Deputy Manager to the Head Office Recovery Cell. That promotion was under some terms and conditions. One of the terms was any adverse report during the period was likely to cause their reversion to the subordinate post. The name of the petitioner was not considered for the next promotion in the post of Manager and his juniors were given promotion vide the Order No.293 dated 03.9.2004. The petitioner was not given that promotional post of Manager and accordingly he filed a representation before the Managing Director of the Society on 06.9.2004 (Annexure P-5). In answer to that representation, the Managing Director had given a reply dated 15.9.2004 (Annexure P-6) whereby the petitioner was informed that the promotion to the post of Manager was considered purely on merit-cum-seniority basis and basing on the ACR. As his performance was not found satisfactory for consideration of promotion, his name was not found in the list. It was also informed by the Managing Director that his promotion would be considered on eligibility as and when vacancies arise. The petitioner by filing another representation (Annexure P-7) expressed his grievances but did not challenge that ACR and did not want to know what was the contents of the ACR. By an order dated 29.8.2005, the persons who were promoted to the post of Manager were given posting letters also excepting the petitioner. The petitioner filed another representation before the Managing Director when, for the first time, he expressed his grievance about the adverse entries in his ACR and mentioned that no intimation of adverse remarks were communicated to him. He referred the matter to the Chairman of the Bank also. He brought the matter before the Registrar of Cooperative Societies by name wherein he, however, did not mention about the bad remarks in the ACR. On 9.3.2006, he again questioned the promotion order of the Managers dated 03.9.2004 mentioning the Rule C(ii) of Section 26 of the A and N Islands Cooperative Societies Employees Service Rules. He brought the matter to the notice of the Registrar of Cooperative Societies also by a letter dated 05.4.2007. On 12.11.2008, vide the Annexure P-11 collectively, he was advised to furnish his willingness to take up new assignment of Manager cadre, if promoted, for the posting in North and Middle Andaman Circle. It was clearly mentioned in its office letter No.2970 dated 12.11.2008 that the promotion will be purely on ad hoc basis, the willingness should reach undersigned within three days from the date of receipt of the letter and in case the above employees do not furnish their willingness within the stipulated time, the next senior person shall be given the opportunity. The Annexure P-11 shows that the petitioner received that office Memo. 2970 dated 12.11.2008 on 15.11.2008. He expressed his willingness to be a Manager but only at the head quarters on the ground of health condition. It is pertinent to mention here that Memo. No.2970 dated 12.11.2008 was issued to get willingness from seven Deputy Managers including the petitioner for the post of Manager in North and Middle Andaman Circle only on ad hoc basis. The annexure P-11 i.e. willingness letter dated 17.9.2008 given by the petitioner was a conditional one as he did not like to go to North and Middle Andaman Circle but asked to be posted at head quarters on the ground of his ill health. On 19.11.2010 some Managers who were junior to the petitioner, according to the list of Deputy Managers, given the assignment of Senior Managers while the petitioner remained in the post of Deputy Manager. His posting as Manager was ordered on 21.01.2010. He was posted as Branch Manager, Bakultala Branch vide the order No.397 dated 21.01.2010. In that order, it was also mentioned clearly that the candidates so promoted will be on probation for a period of two years and any adverse report during the probation period is likely to cause their reversion to the substantive post immediately. It was made clear further in the order that the promotes performance will be assessed by the superiors from time to time. Having reference to the office promotion Order No.397 dated 21.01.2010, the petitioner made another representation to the Managing Director contending therein that he became eligible for the promotion to the post of Manager in the year 2005 and consequently to the post of Senior Manager by this time to which his juniors have been promoted. He also informed that due to his health condition his order of transfer was cancelled in the last year. He prayed for his posting at Port Blair instead of Bakultala. He again made a prayer before the Chairman of the Society on 15.2.2010 with a similar prayer. The Managing Director informed the petitioner that he did not join Bakultala Branch as Branch Manager although relieved from Haddo Branch. He was directed to report at Bakultala Branch within 15 February, 2010. He was given a last chance to report to duty at Bakultala Branch within 28th February, 2010 failing which his promotion will be affected from the date of reporting at Bakultala Branch will be cancelled. It was further stated that no other correspondence in that regard will be entertained. The petitioner however made another representation in form of reminder and ultimately submitted that he would join the post of Manager at Bakultala Branch on protest as his seniority was broken at the time his juniors were promoted to the post of Manager and thereafter in the post of Senior Managers. In the same representation he also mentioned about his ill health condition. Ultimately, the Society posted him at Tushnabad Branch as Branch Manager till further order considering his health condition. But, at the same time he was asked to appear before the Medical Board to substantiate his health condition.
All the above mentioned annexures make it clear that the petitioner was in the Serial No.1 in the list of Deputy Managers. His promotion to the post of Manager along with his juniors was not considered because his ACR was not satisfactory. His juniors were given promotion to the post of Manager and when the said order was challenged by way of representation, he was informed that according to the report of the ACR his performance was not found satisfactory. Mr. Jayapal, learned counsel appearing on behalf of the petitioner contended that in view of Service Rules, the promotion ought to be on the basis of seniority-cum-merit and there was no scope for appraisal of annual confidential report. The submission of Mr. Jayapal does not appear to be correct. Seniority-cum-merit might be a criterion for promotion in the post of Manager. It was specifically mentioned in the order dated 01.5.1995 that any adverse report during the period is likely to cause their reversion to the substantive post. That was one of the conditions to the promotion. Said condition was accepted by the petitioner while promoted and posted as Deputy Manager. While his juniors were promoted to the post of Manager vide office Order No.293 dated 03.9.2004, similar condition was imposed. It was stated clearly that the promotion will be on probation for a period of two years and the performance shall be assessed from time to time. Same condition was imposed when the petitioner was promoted to the post of Manager vide office Order No.397 dated 21.1.2010. He did not join the post within the stipulated period of time on the ground of ill health. His case was considered further and ultimately he was posted at Tushnabad instead of Bakultala Branch and thereafter he was directed to appear before the Medical Board.
Where, the rules provide for a scheme which is commonly referred to as seniority-cum-merit, although promotion is not automatic, the implications of such a rule are slightly different. Here the proper way to proceed is to prepare a list of all candidates in the feeder post in order of seniority and thereafter consider it on merits and reject the unfit. In other words, the seniormost in the feeder grade are selected subject to suitability. Thus where the petitioner seeks to be promoted to higher post from the year 1994 as Manager as if he was entitled to higher post on the basis of seniority alone, the Supreme Court having regard to the fact that the norms require not only seniority but suitability to be considered, rejected the claim. In this connection, the decision of the Hon’ble Court in G.S. Broca v. State of J and K reported in AIR 1982 SC 1149 can well be referred to.
In the instant case, the petitioner’s claim for promotion was refused because his suitability was not found up to the satisfaction of the authorities. Again, when he was asked to join Bakultala Branch, he refused to go there on the ground of ill health. The candidates who were also selected with him joined their respective places of posting. Accordingly, the department had to issue a letter of ultimatum. Thereafter he joined the post and his case was reconsidered by the authority and his place of posting was changed from Bakultala to Tushnabad.
Now the question comes in is whether the adverse entries which came as a barrier for the petitioner to get a posting of Manager in time along with his juniors can legitimately be a factor for the authorities to consider the candidature for promotion? The facts obviously depend on what the adverse the entry was. Promotion cannot be withheld merely because there are certain adverse remarks on record particularly when no enquiry was made and no findings were given. This apart any adverse entry which did not communicate to the employee or if he denied of the opportunity of making representation on it to the superior authority cannot be basis of withholding promotion. This is because adverse entry by itself is not a punishment but its purpose is to apprise the employee of shortcomings so that he might improve his performance and unless he is told what the shortcomings are such adverse entries are of no legal significance. In Dev Dutt v. Union of India and others, reported in (2008) 8 SCC 725 it was held by the Hon’ble Court that every entry in the ACR of a public servant must be communicated to him within a reasonable period, whether it is a poor, fair, average, good or very good entry. This is because non-communication of such an entry may adversely affect the employee in two ways (i) had the entry been communicated to him he would know about the assessment of his work and conduct by his superiors which would enable him to improve his work in future. (ii) He would have an opportunity of making a representation against the entry which he feels it is unjustified and pray for its upgradation. Hence non-communication of an entry is highly arbitrary. It is not only when there is a benchmark but in all cases that an entry (whether it is poor, fair, average, good or very good) must be communicated to a public servant, otherwise there is violation of principle of fairness which is the soul of natural justice. Even an outstanding entry should be communicated since that would boost the morale of an employee and make him work harder. It was further held that communication of entries and giving opportunity to represent against them as particularly on higher posts which are in a pyremedical structure where often principle of elimination is followed in selection for promotion and even a single entry can destroy carrier of an officer which are otherwise outstanding throughout. This often results in grave injustice and heart burning and may shutter the moral of many good officers who are superseded due to this arbitrariness, while officers of inferior merit may be promoted.
In the instant case, the respondents did not communicate the entries of the ACR to the petitioner before his promotion to the post of Manager was considered from the feeder post of Deputy Manager. The petitioner herein did not get any opportunity to controvert the bad entries or remarks in his CCR at proper time. When he came to know about his bad CCR which resulted in his denial to the post of Manager by the authorities, it was too late. His juniors were already given posting and they started officiating in their new assignment. This action on the part of the authorities is obviously arbitrary, unfair and violation of principle of natural justice. This matter was brought to the notice of the authorities by the petitioner time and again but the authorities did not move at all. When his promotion to the post of Manager was offered, he made a conditional acceptance and did not join the new assignment because of his ill health. He had to take the pain of writing many representations with documents to establish his ill health. The department afterwards considered his ill health and changed his place of posting from Bakultala to Tushnabad.
These factors altogether indicates that the petitioner was deprived of the post of Manager in the year 2004 because of his poor performance as mentioned in the ACR which was not communicated to him and he was not given any opportunity to controvert the same before the order of posting was passed. It appears from record that although the order of promotion was passed in the year 2004 it was given effect in the year 2005. By this time, the petitioner filed his representation and asked about the nature of adverse report in the ACR. That was completely ignored by the authorities. This action of the authorities is entirely arbitrary and against the principle of fairness and natural justice.
Therefore, it cannot be said that the petitioner’s grievance is not genuine one and on the other hand, the action of the respondents was legal, valid and free from arbitrariness.
There is, however, a hurdle to give any direction of like nature as prayed for because there is alternative efficacious remedy open for the petitioner in view of Section 55(c) of the A and N Islands Cooperative Societies Regulations, 1973. It says:-
“55. Disputes which may be referred to arbitration:-(1) Notwithstanding anything contained in any law for the time being in force, if any dispute touching the constitution, management or the business of a co-operative society arises—
(a) … … …
(b) … … …
(c) between the society or its committee and any past committee, any officer, agent or employee, or any past officer, past agent or past employee or the nominee, heirs or legal representatives of any deceased officer, deceased agent, or deceased employee of the society, or
(d) … … …”
A cursory perusal of the language used in Section 55 makes it abundantly clear that any dispute between the Society or its committee and an employee can be referred to arbitration and in view of Section 56 the Registrar may on receipt of the reference of dispute under Section 55, (a) decide the dispute himself or (b) transfer it for disposal to any person which has been invested by the Chief Commissioner with powers in that behalf or (c) subject to such rules as may be prescribed, refer it for disposal to an arbitrator or arbitrators appointed by the Registrar. The Sub-section(3) of Section 55 says that if any question arises where a dispute as referred to the Registrar under this Section is or is not a dispute touching the Constitution, management or business of a Cooperative Society, the decision thereon of the Registrar shall be final and shall not be called in question in any court.
The A and N Islands State Cooperative Bank Ltd. is registered under the A and N Islands Cooperative Societies Regulations, 1973. Accordingly, the Society and the members thereof are to function in accordance with the provisions laid down thereto. The Section 55 does not say that service matters of employee are not a dispute between the Society and the employee. It is not kept outside the meaning of dispute as categorically mentioned in Section 55.
According to Mr. Jayapal, sub-section (2) of Section 55 of the Regulation, in fact and in substance, explained what are the disputes touching the constitution, management or the business of a Cooperative Society. It does not include service matters of the employee of a Cooperative Society. Therefore the provisions of Section 55 cannot be said to be an alternative efficacious remedy.
Sub-section (2) of Section 55 is set out below:-
“(2) For the purposes of sub-section (1), the following shall be deemed to include disputes touching the constitution, management or the business of a co-operative society, namely:-
(a) a claim by the society for any debt or demand due to it from a member, past member, or the nominee, heir or legal representative of a deceased member, whether such debt or demand be admitted or not;
(b) a claim by a surety against the principal debtor where the society has recovered from the surety any amount in respect of any debt or demand due to it from the principal debtor as a result of the default of the principal debtor, whether such debt or demand is admitted or not;
(c) any dispute arising in connection with the election of any officer of the society.”
One should not be oblivious of the words “deemed to include” mentioned in the clause (a) of sub-section (2). By using this particular word it has been made explicit that the disputes mentioned in clause (a), (b) and (c) of sub-section (2) are also disputes in addition to the other disputes mentioned in clause (a), (b), (c) and (d) of sub-section (1) of Section 5. The disputes as referred to in sub-section (1) of Section 55 is not restricted to the disputes referred to in sub-section (2) for the purpose of giving effect to the settlement of disputes by way of arbitration through the Registrar of Cooperative Society. The remedy under Section 55, sub-section(1) clause (c) is, no doubt, an alternative efficacious remedy was available to the petitioner which was never availed of by the petitioner.
The powers conferred upon the High Court under Article 226 are discretionary in nature which can be invoked for the enforcement of any fundamental right or legal right but not for mere contractual right arising out of an agreement particularly in view of the existence of efficacious alternative remedy. The constitutional court should insist upon the party to avail the same inspite of invoking the extraordinary writ jurisdiction of the High Court. When the Registrar of Cooperative is having power to settle a dispute between the employee and the Society in respect of service matters, that could be a possible alternative efficacious remedy for both the parties and when there is a specific provision to that effect in the Act itself, it would be proper and wise for both the parties not to by pass that available remedy which would be efficacious for both of them and invoke the extraordinary writ jurisdiction of the High Court. This submission of Mr. Bahadur appears to be acceptable inasmuch as the petitioner has never referred the dispute to the Registrar in the manner it had been prescribed in the Rule. He could have availed the opportunity of alternative efficacious remedy and on his failure he could have invoked the writ jurisdiction.
Although the petitioner’s promotion was denied on a ground which can be criticized, this Writ Court does not like to pass any direction as prayed for on the ground that the petitioner has alternative efficacious remedy in the Act itself which he actually failed to avail.
In view of the facts above this Court declines to pass any direction as prayed for by the writ petitioner by exercising its writ jurisdiction. The petition is, accordingly, dismissed.
However, the petitioner is given liberty to refer the dispute to the Registrar of Cooperative Societies invoking the provision of Section 55, subsection (1)(c) of the A and N Islands Cooperative Societies Regulation, 1973 and in that case, the Registrar of Cooperative Societies shall take up the dispute himself and come to a findings keeping in view the observations made by this Court regarding the ACR and other aspects.
No order as to the costs is passed.
The writ petition stands disposed of.