- (1.) 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 & 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.
(2.) 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 merit cum-seniority basis as well as on report of the ACR which was not found satisfactory in his case. In view of A & 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.
(3.) 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 & 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 & 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 & 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, 2002 5 SCC 111 and (b) Supriyo Basu and others Versus- W.B. Housing Board and others, 2005 6 SCC 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.;