Decided on November 21,1994

STATE OF ASSAM Respondents

Referred Judgements :-



Mrs M.Sarma, J. - (1.)This writ petition has been preferred by the petitioner against the order dated 27.2.90 of the Commissioner and Secretary, Co-operation Department by which the earlier order of the Government passed on 2.9.88 was reviewed and set aside the order dated 5.9.86 of the Registrar of Co-operative Societies.
(2.)Petitioner is working as a Deputy Manager in the respondent bank. He joined the service of the bank in 1957 as an Office Assistant. During the time of his appointment, the: terms and conditions of appointment and service of the member of the establishment of the bank was governed by the Assam Co-operative Apex Bank Ltd (Staff) Rules, 1957 (for short the Old Staff Rules). Contention of the petitioner was that under the said Old Staff Rule, there was no provision for departmental examination for further promotion from the rank of Internal Auditor/Assistant Branch Manager/Superintendent Promotion was made on the basis of merits, seniority and satisfactory record of service. Further contention of the petitioner was that without making an amendment to the said Old Staff Rule, the bank by a policy decision,made departmental examination compulsory to be promoted to the grade of Internal Auditor/Asstt Branch Manager/Superintendent and on the basis of this a departmental examination was held on 12.2.72 and 20 eligible officers including the petitioner submitted a joint appeal to the bank authority protesting the holding of departmental examination as no such provision was there in the Old Staff Rules. Thereafter the petitioner was transferred and posted as Asstt Branch Manager, in charge of Tinsukia Branch and he joined on 1.11.72 and continued till 7.3.78. Another departmental examination was held in 1973 wherein all the eligible officers except the petitioner alongwith two others, namely, Sri Kalpanath Bordoloi and Bhabesh Goswami did not appear reiterating their earlier stand as their appeal made earlier, protesting the holding of departmental examination violating the provisions of the Old Staff Rule was not considered by the bank authority. The other offcers who appeared in the examination were promoted to the rank of Branch Manager in due course. Meanwhile, due to pressures from all concerned, the authority by resolution dated 18.5.77 abolished the departmental examination and promoted the petitioner alongwith the two others to the post of Branch Manager by order dated 7.3.78. As the seniority of the petitioner was not maintained from 1.11.72 the date of which he was posted as Asstt Branch Manager, the petitioner made prayer to the concerned authority for his restoration of seniority from that date. The grievance of the petitioner was that in the provisional select list petitioner's name was shown at Sl. No.21 which was not on the basis of the date of entry of the petitioner in the bank and his subsequent promotions upto the post of Internal Auditor/Asstt Branch Manager/Superintendent the rank of which there was no departmental examination for promotion. As the appeal for restoration of seniority was not considered by the bank authority, i.e., Managing Director, the petitioner further appealed to the Boara of Directors of the bank and thereafter to the Administrative Council of the bank as per provisions of the Old Staff Rules and the same was rejected. Admittedly, the petitioner failing to get relief as aforesaid under the provisions of Old Staff Rules, preferred appeal on 10.5.85, in the capacity of a shareholder member of the bank, involving the provisions of Section 63 of the Assam Co-operative Societies Act, 1949 (for short The Act) as the respondent bank was registered under the said Act,. The Registrar of Co-operative Society entertained the appeal u/s 63 of the Act and held that all matters which falls under the perview of the Old Staff Rules are concerned by the "business of the Bank," which includes, according to him, all the matters relating to appointment/promotion and other related matters as incorporated in the said Old Staff Rules of the bank. Further view of the Registrar was that as the departmental examination has been abolished without, specifying effective date, the prayer of the present petitioner for restoration of his seniority stands on a strong footing for acceptance and accordingly the appeal was disposed of with a direction to the bank to take action to restore seniority of the appellant/petitioner. It is alleged, inspite of repeated requests of the petitioner to comply with the order/ direction of the Registrar, the same was not complied with informing the petitioner that the bank filed appeal before the Government against the order of the Registrar. Petitioner on enquiry, came to know that an appeal u/s 80 of the Act was filed before the Government by the Managing Director of the bank and the same was rejected as time barred as two months from the date of the order dated 2.9.86 was elapsed, with a direction to comply with the direction of the Registar. Again the Managing Director of the bank informed the petitioner that his case had been placed before the Board of Directors and it had decided to file writ petition before the Hon'ble High Court and immediately petitioner filed caveat, but no writ petition had been filed, instead the petitioner was informed that again a review petition was filed before the Commissioner and Secretary, Co-operation Department and the same had been admitted staying the impugned order. Petitioner challenged the maintainability of the 2nd review petition on the ground of limitation and lack of jurisdiction and power of the Government to entertain a review petition as the Act has not conferred review jurisdiction to the Government. Further objection was that the review petition was filed after one year without praying for condonation of delay and no satisfactory requirement for review could be established by the review applicant
(3.)From perusal of the impugned order of the Commissioner and Secretary, Co-operation Department dated 27.2.90 it appears that, the delay in filing the review petition was condoned considering the involvement of important point of law and in that view of the matter the objection of the petitioner on the point of limitation is not sustainable.

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