GARG, J. - (1.) THIS writ petition has been filed by the petitioner under Article 226 of the Constitution of India against the respondents with a prayer that by an appropriate writ, order or direction the impugned order dtd. 22. 12. 93 (Annex. 3) passed by the Chairman Nagaur Urban Cooperative Bank Limited (respondent No. 1) by which the respondent No. 2 (Durgesh Chandra Joshi) was promoted to the post of Branch Manager, though according to the petitioner, he was senior to Respondent No. 2 (Durgesh Chandra Joshi), be quashed and set aside and the respondent No. 1 be directed to promote the petitioner on the post of Branch Manager with effect from 22. 12. 93 with all consequential benefits.
(2.) THE facts of the case as put forward by the petitioner are as under: i) That the petitioner entered the services of Nagaur Urban Cooperative Bank Limited as Cashier cum Clerk on 17. 4. 74. He was confirmed on the aforesaid post w. e. f. 11. 10. 1974. ii) Further case of the petitioner is that respondent No. 2 (Durgesh Chandra Joshi) entered the services of respondent - Bank as Cashier cum Clerk on 29. 1. 1975 and was confirmed on the said post on 8. 11. 1975. iii) That a combined seniority list (Annex. 2) of all the officers/employees working in the respondent - bank upto 31. 7. 1993 was published by the General Manager of the respondent Bank in which the petitioner was shown senior to respondent No. 2. iv) Further case of the petitioner is that the services of the employees working in the respondent - bank are governed by the Urban Cooperative Bank Employees Service Rules, 1987 (hereinafter referred to as the Rules of 1987 ). v) That further case of the petitioner is that meeting of DPC was held on 22. 12. 93 for consideration of eligible candidates for promotion on the post of Branch Manager. In that meeting, the case of the petitioner as well as respondent No. 2 was considered and the promotion was to be made on the basis of seniority cum merit. vi) Further case of the petitioner is that though he was senior to respondent No. 2, but the Department Promotion Committee recommended the name of respondent No. 2 for promotion to the post of Branch Manager and consequently vide order dtd. 22. 12. 93 (Annex. 3) passed by respondent No. 1 (Chairman), the respondent No. 2 (Durgesh Chandra Joshi) was promoted as Branch Manager. This order dtd. 22. 12. 93 (Annex. 3) has been challenged by the petitioner in this writ petition. vii) Further case of the petitioner is that according to Rule 11 of the Rules of 1987, promotion on the post of Branch Manager should have been made on the basis of seniority cum merit (there is no dispute on this point ). Further more Sub-Rule 1 of Rule 8 of the Rules of 1987 prescribes that promotion of the eligible candidate is required to be made strictly on the basis of seniority cum merit. Thus, while denying promotion to the petitioner on the post of Branch Manager, the respondent - bank had acted in most perfunctory manner and contrary to the Rules of 1987 and this act on the part of the respondent No. 1 is illegal, arbitrary and discriminatory so as to be violative of Articles 14 and 16 of the Constitution of India. Hence, this writ petition with the abovementioned prayer. Reply to the writ petition was filed by the respondent No. 1 and in this reply, following preliminary objections have been raised: i) That the respondent - Bank is not state within the meaning of Article 12 of the Constitution of India and, therefore, writ petition is not maintainable against the respondent - Bank. It has further been submitted by the learned counsel for the respondent No. 1 that the respondent - Bank is a Society registered under the Rajasthan Cooperative Societies Act, 1965 (hereinafter referred to as the Act of 1965), but the State Government is not having deep and pervasive control in the day to day management of the respondent - Bank nor the State Government is having substantial finance in the total fair capital of the respondent - Bank. It has been submitted by the learned counsel for the respondent No. 1 that out of 6,47,300/-, the State Government has only the share capital of Rs. 1,00,000 and as such the State Government does not have substantial finance in the total share capital of the respondent - Bank and thus the present writ petition is not maintainable against the respondent No. 1. ii) That the writ petition filed by the petitioner is also not maintainable on the ground that the petitioner is having equally efficacious and alternative remedy in the matter under the provisions of Section 75 and 128 of the Rajasthan Cooperative Societies Act, 1965. Therefore, the present writ petition is not maintainable on the ground of alternative remedy. On merits, it has been submitted by the learned counsel for the respondent No. 1 that no doubt the petitioner was senior to respondent No. 2 (Durgesh Chandra Joshi) and there is also no dispute on the point that the promotion was to be made on the basis of seniority cum merit, but the respondent No. 2 (Durgesh Chandra Joshi) was found more suitable for promotion on the basis of seniority cum merit, therefore, his name was recommended. It has been further submitted by the learned counsel for the respondent No. 1 that the record of the petitioner could not be said to be unblemished as through letter dtd. 18. 12. 93 (Annex. R/2), he himself wrote a letter to the General Manager of the respondent bank stating that in future he will not commit any mistake. Further more, ACRs of the petitioner as well as respondent No. 2 were perused and respondent No. 2 (Shri Durgesh Chandra Joshi) stood first in the merit having 19 marks in the category of outstanding, whereas the petitioner is having only 16 marks under the said category and for that proforma prepared by the Management of respondent Bank has been produced on record as Annex. R/3. Hence, no case is made out and writ petition be dismissed. Similar reply has been submitted by the respondent No. 2 (Durgesh Chandra Joshi ). A rejoinder was also filed by the petitioner and it has been submitted that the State Government exercises deep and pervasive control over the affairs of the Cooperative Societies registered under the Rajasthan Cooperative Societies Act, 1965 and the respondent bank is a Society registered under the Rajasthan Cooperative Societies Act, 1965 and hence it is a state within the meaning of Article 12 of the Constitution of India. On second preliminary objection, it was submitted by the petitioner that since the respondent No. 2 was promoted against the Rules of 1987, therefore, he had right to approach this Court directly as a legal right of the petitioner was infringed and hence, this Court has jurisdiction to entertain the present writ petition.
(3.) HEARD the counsel for the parties. ON PRELIMINARY OBJECTION NO. 1: Before deciding this question, Rules of 1987 have to be kept in mind. In Definition Clause of Rules of 1987 in Rule 2a, it has been specifically mentioned that "act" means the Rajasthan Cooperative Societies Act, 1965 and as per Rule 2b of the rules of 1987 "rules" means the Rajasthan Cooperative Society Rules, 1966. As per Rule 2c of the Rules of 1987, "registrar" means a person appointed to perform the functions of the Registrar of Cooperative Societies for the State under the Act. Rule 8 of the Rules of 1987 provides for Procedure for recruitment by promotion. It also provides for constitution of Promotion Committee and this Promotion Committee includes nominee of the Registrar, Cooperative Societies. ;