Dismissed

Rita Priyadarsini Mohanty v. State of Odisha

Orissa HC21 Oct 2024WP(C)/6100/2023

Case brief

AI extract

What is this about?

A writ petition filed by an employee of the Urban Co-operative Bank Ltd. challenging her reversion from an officiating promotional post and the denial of confirmation despite long service. The Court examined the Bank's status as a 'State' under Article 12 and the validity of the reversion. Finding the Bank is not a statutory body under Article 12 due to lack of state control, the Court held the petition not maintainable. The Court also found the reversion was not downgradation and the adverse remarks were not improperly considered.

What did the court decide?

The writ petition stands dismissed with no order as to costs.

Rita Priyadarsini Mohanty Vs State of Odisha — Pension and Retirement Benefits | Orissa HC (2024)

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ORISSA HIGH COURT : CUTTACK

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W.P.(C)No.6100 of 2023

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In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950

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Rita Priyadarsini Mohanty Aged about 58 years Daughter of Late Kishore Chandra Mohanty At: Mundamal, P.O./P.S.: Choudwar District: Cuttack. … Petitioner.

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-VERSUS-

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1. State of Odisha Represented through Secretary to Government Department of Co-operation, Lok Seva Bhawan, Lok Seva Marg, Unit-2, Bhubaneswar.

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2. Registrar of Co-operative Societies, Odisha, Bhubaneswar, District: Khordha.

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3. The Chairman The Urban Cooperative Bank Ltd., Cuttack, At: Tinikonia Bagicha, P.O.: Buxibazar , District: Cuttack.

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4. The Chief Executive The Urban Co-operative Bank Ltd.,

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W.P.(C) No.6100 of 2023

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Cuttack, At: Tinikonia Bagicha, P.O.: Buxibazar , District: Cuttack. … Opposite parties.

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Counsel appeared for the parties:

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For the Petitioner : M/s. Srinivas Mohanty, Kabita Patra, Sujit Kumar Acharya and Sradhanjali Das, Advocates For the Opposite Party : M/s. Tarun Patnaik, Nos.1 and 2 Additional Standing Counsel For the Opposite Party : Mr. Jajati Kishore Mohanty, Nos.3 and 4 Advocate P R E S E N T:

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HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN

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Dates of Hearing : 01.08.2024 :: Date of Judgment : 21.10.2024

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JUDGMENT

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MURAHARI SRI RAMAN, J.—

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Challenge is laid to the Order Ref. No.1803/2010-11, dated 17.06.2010 issued by the Chief Executive (Secretary), the Urban Co-operative Bank Ltd., Cuttack, withdrawing officiating arrangement made in the promotional post in Branch Manager-II (Grade-IV) [re-designated as Assistant Manager (Grade-IV)] vide Order Ref.No.285/95-96, dated 27.12.1995, with effect from 01.12.1995.

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W.P.(C) No.6100 of 2023

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1.1. The petitioner questioning propriety of aforesaid Order dated 17.06.2010, whereby she was allowed to be released from officiating duty/charge in the Main Branch of the Urban Co-operative Bank Ltd., Tinikonia Bagicha, Cuttack–753001, filed the writ petition invoking extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India with the following prayer(s):

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“The petitioner, therefore, prays that your Lordships would graciously be pleased to admit this writ petition, call for the records and after hearing the parties be pleased to issue Rule Nisi calling upon the opposite party Nos.3 and 4 to show cause as to why the petitioner is issued the impugned order of reversion dtd17.06.2010under Annexure-7 in the face of all other contemporaneous promotees are regularized vide order dated 15.06.2010.

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And as to why she is being visited with the letter of adverse C.C.R. of the year 2007-08, 2008-09 and 200910 on 23.05.2014 without prior intimation with regard to natural justice contemplated under Staff Service Rules of the Bank.

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And failing to show cause or insufficient make the rule absolute.

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And further be pleased to issue writ/writs in the nature of certiorari and mandamus to quash the impugned order of reversion under Annexure-7 dated 17.06.2010 and give her all consequential promotion along with financial benefits thereof.

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And pass any other and/or further order as deemed fit and proper under the circumstances of the case.

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And for this act of kindness, the petitioner, as in duty bound, shall forever pray.”

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Facts as stated in the writ petition:

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2. It is revealed from pleadings that the petitioner, being appointed as Junior Clerk (Grade-IV), joined in service on 14.05.1986 and being promoted to the post of Senior Assistant in 1989, she was allowed to officiate as Assistant Accountant in the cadre of Grade-IV by virtue of Order Ref. No.205/95-96, dated 18.09.1995 issued by the Chief Executive of the Urban Cooperative Bank Ltd. (for short, ―the Bank‖)

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2.1. While working as Senior Assistant (Grade-V), a gradation list as on 31.05.2009 was prepared and published (Annexure-3) which depicts that the petitioner has been officiating in the promotional post of Branch Manager-II (Grade-IV), with effect from 01.12.1995, in pursuance of Order Ref. No.285/95-96, dated 27.12.1995 issued by the Chief Executive (inCharge) of the Bank (Annexure-6).

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2.2. Forty-six Senior Assistants (Grade-V) of the Bank are accorded promotion to the post of Assistant Manager (Grade-IV), but the petitioner was ignored. Challenging

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such discriminatory treatment, the petitioner preferred writ petition being W.P.(C) No.11447 of 2010 which was withdrawn on 27.08.2010 seeking liberty to place on record better particulars. Subsequent approach being made by filing writ petition, registered as W.P.(C) No.17030 of 2011, this Court [Division Bench] passed the following Order on 27.10.2011:

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“Heard learned counsel for the petitioner.

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The petitioner has filed this writ petition with a prayer to quash the orders dated 15.6.2010 and 17.6.2010 passed by the Chief Executive (Secretary) of the Urban Cooperative Bank Ltd. In course of hearing, learned counsel for the petitioner submits that the petitioner shall file a representation before the concerned authority highlighting her grievance as made in this writ petition.

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Considering the said submission, we direct that if such a representation is made by the petitioner within fifteen days from today, the bank authorities shall take a decision on the same within one month thereafter.

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Learned counsel for the petitioner alleges that the petitioner has been superseded by forty-six persons, who are junior to her .

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We further direct that the Bank authorities while disposing of the representation of the petitioner shall take into consider the aforesaid aspect.

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The writ petition is disposed of accordingly.”

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2.3. Despite aforesaid order, as no fruitful purpose did yield by submitting representation before the authority concerned, the petitioner had to approach this Court again by way of writ petition, being W.P.(C) No.9224 of 2012, which came to be disposed of by Order dated 25.03.2014 with the following observation:

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“Heard learned counsel for the parties.

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The petitioner, who is working as Senior Assistant in the Urban Co-operative Bank Ltd., Cuttack, has filed this writ petition with a prayer to direct the opposite party-management of the Urban Co-operative Bank Ltd., Cuttack to give promotion to the petitioner to the post of Assistant Manager with effect from the date her juniors were promoted along with all consequential service benefits.

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Challenging the promotion of her juniors to the post of Assistant Manager by the Management ignoring her case, the petitioner had earlier approached this Court by filing W.P.(C) No.17030 of 2011. The said writ petition was disposed of on 27.10.2011 permitting the petitioner to make a representation to the Bank authorities within a period fifteen days with further direction that the Bank authorities shall consider and dispose of the representation within a month thereafter.

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It is submitted by the learned counsel for the petitioner and also admitted by Mr. Nath, learned counsel for Bank authorities that in pursuance of the order of this Court, as aforesaid, the petitioner filed a representation before the Bank-Management, but

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the elected Management Committee of the Bank was superseded and, therefore, no decision could be taken.

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It is evident from the Letter of the Secretary of the Bank dated 09.01.2012 (Annexure-12) addressed to the petitioner that her representation is still in active consideration of the management and decision will be taken at the time of review of all provisional promotions made by the last committee of management. It is stated that after the supersession of the elected body of the Management, the Additional District Magistrate, Cuttack is now in-charge of the Management of the Cuttack Urban Co-operative Bank Ltd.

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The earlier order passed by this Court in W.P.(C) No. 17030 of 2011 has not been complied with due to supersession of the elected Committee, which was to take decision on the representation of the petitioner. On supersession of the elected body, as the Additional District Magistrate, Cuttack has been kept in-charge of the Management, interest of justice would be best served if the Additional District Magistrate is directed to take a decision on the representation of the petitioner.

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In the aforesaid view of the matter, this writ petition is disposed of with a direction to the Additional District Magistrate, Cuttack, who is in-charge of Management of Cuttack Urban Co-operative Bank Limited, to consider the representation of the petitioner giving an opportunity of hearing to her and dispose of the same with a reasoned order within a period of two months from the date of communication of this order.

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Requisites for communication of the order be filed by 28.03.2014.”

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2.4. A contempt petition, being CONTC No.1506 of 2015¹ , was filed bringing to the notice of this Court noncompliance of aforesaid Order dated 25.03.2014. In the said contempt it was placed by the contemnorChief Executive Officer of the Bank that,

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“Apropos of the aforesaid contempt application preferred before the Hon‟ble Court, it is humbly submitted that in pursuance of the Order dated 25.03.2014 of the Hon‟ble Court in W.P.(C) No.9224 of 2012, the Appointment Committee of the Bank where the petitioner is employed has, in its meeting held on 21.06.2019, disposed of the representation(s) laid by the petitioner claiming promotion to the post of Assistant Manager under Grade-IV service. An extract of the resolution dated 21.06.2019 of the Appointment Committee of The Urban Co-operative Bank Ltd., Cuttack is filed herewith for kind information of this Hon‟ble Court.

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***

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Extract of the proceedings of the Appointment Committee

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1 CONTC No.1506 of 2015 has come to be dropped by Order dated 12.07.2024 with the following observation:

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“2. After having heard learned counsel appearing on behalf of the petitioner and the contemnors, it appears that the Court‟s direction to consider the petitioner‟s representation has been complied with. An extract of the proceedings of the Appointment Committee Meeting has been brought on record by way of Memo to demonstrate that the petitioner‟s representation has been considered. 3. The contempt proceeding accordingly stands dropped.”

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meeting held on 21.06.2019 at 11.00 a.m. in the Head Office premises of the Urban Co-operative Bank Ltd., Cuttack:

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Members present:

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1. Sri Sarat Ch. Pradhan, President

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2. Smt. Ranjita Kahali, Vice President

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3. Sri Pradipta Kishore Khuntia, Member

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4. Chief Executive Officer I/C

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Agenda No.1: Promotion of staff members:

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(1) Assistant Manager (Grade-IV): (No of post available for promotion 9, i.e., existing 6 posts consequential vacancies arising out of superannuation during the year 2019: 3 posts)

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Resolution:

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a) Taking up the case of Miss Rita Priyadarshini Mohanty, the Committee observed that during the promotions given in the year 2010-11, the CCR(s) for preceding three years, 2007-08, 200809 and 2009-10 were taken into consideration and out of them the CCR(s) for 2008-09 & 200910 were found to be adverse. Going by the CCR(s) now under consideration, her CCR for 2017-18 is found to be unsatisfactory. It is also observed that from the time she got promoted to Grade-V Service to till date, her overall performance is not found to be satisfactory as her personal file continues to swell by explanations called for on the grounds

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of negligence in duty, habitual absenteeism, disobedience and misdemeanor . Therefore, the Committee found Miss Rita Priyadarshini Mohanty unsuitable for promotion to the post of Assistant Manager under Grade-IV and turned down her representation claiming promotion to the post.

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***

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Sd/(Sarat Chandra Pradhan) President”

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2.5. Feeling embarrassed by the order of reversion from the officiating promotional post of Branch Manager-II (Grade-IV) after around 15 years, the petitioner has moved this writ petition alleging harassment by the authorities of Bank.

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Rival contentions and submissions:

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3. Sri Srinivas Mohanty, learned Advocate for the petitioner would submit that the petitioner has been subjected to insurmountable harassment for she has been pursuing her right since 2010 and by alleging unsatisfactory performance as per Confidential Character Rolls for the periods 2007-08, 2008-09 and 2009-10. The reversion of the petitioner is not palatable inasmuch as she, though was Senior Assistant, has been officiating in the post of Branch Manager-II (Grade-IV) since 01.12.1995. As the

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competent authority has not considered the case of the petitioner with equal weight as that of forty-six other Senior Assistants, who were accorded promotion to the post of Assistant Manager (Grade-IV) vide Order Ref. No.1733/2010-11, dated 15.06.2010 of the Chief Executive (Secretary) of the Bank.

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4. Per contra, Sri Jajati Kishore Mohanty, learned Advocate for the Bank submitted that as the Confidential Character Roll of the petitioner was not satisfactory as umpteen number of allegations/complaints were being received by the authorities.

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4.1. He submitted that in the garb of challenging the decision to release the petitioner from the officiating post in the promotional position of Branch Manager-II (Grade-IV), she has essentially challenged adverse remarks contained in the Confidential Character Roll, against which she admits to have filed appeal.

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4.2. The learned counsel for the Bank referring to Letter Ref. No.801/2014-15, dated 23.05.2014 communicated to the petitioner by the Chief Executive Officer (Annexure-B/2 of the counter affidavit of opposite party Nos.3 and 4) submitted that the petitioner furnished explanation to the adverse

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remarks contained in the CCRs for the periods 200708, 2008-09 and 2009-10, which was taken up in the Proceeding dated 14.05.2018 (Annexure-B/3) and the following decision was taken therein:

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“Extract of the proceedings of the hearing dated 14.05.2018 in the matter of Miss. Rita Priyadarshini Mohanty, Senior Assistant.

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Miss. Rita Priyadarshini Mohanty, Senior Assistant is present.

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Sri R.C. Naik, Manager (General Administraion) is present with relevant records.

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On perusal of records it is observed that although the Hon‟ble High Court, in disposal of WP (C) No. 9224of 2012 had directed by order dated 25.03.2014 to the Additional District Magistrate, Cuttack-cumManagement In-charge of the Bank to consider the representation of the petitioner and dispose of the same with a reasoned order within a period of two months giving an opportunity of hearing to the petitioner, the said Management In- charge could not dispose of the representation within the stipulated time for reasons not known.

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However, following receipt of notice of contempt petition from the Hon‟ble High Court in CONTC No. 1506 of 2015, the case record being taken up the petitioner is allowed a fresh hearing of her grievance.

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The erstwhile Management In-charge had heard the petitioner on 23.05.2014 as on record; although copies of the CCRs relating to the promotion disputed by the

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petitioner were supplied to the petitioner in pursuance of the said hearing and a further date of hearing was fixed to 03.06.2014 no such hearing was held or order passed in disposal of the representation of the petitioner.

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This matter has been brought to the notice of the undersigned only after receipt of the notice of contempt from the Hon’ble High Court.

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Be as it may, the petitioner being present before the undersigned has expressed her serious displeasure on the CCRs recorded by the concerned authorities more particularly sulking on the CCR written by the General Manager for the year 2008-09 as according to her the said authority was in no way connected with review of performance of the Branch Heads of the time. Further she expressed her unhappiness on the promotions having been given to some tainted persons after disposal of their disciplinary proceedings whereby her seniority and suitability was utterly ignored. She added that in spite of a series of representations made before the authorities of the Bank and writ petitions pursued before the Hon‟ble High Court her grievance stands unattended as yet.

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It is observed that the petitioner has made a number of representations on different dates claiming promotion to the post of Assistant Manager under Grade IV in the past. Although the earlier Committee of Management taking up representations of some discontent employees under Grade V resolved to review the promotions given in pursuance of the resolution dated 05.06.2010 such review has not taken place as yet .

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The petitioner though senior to some Senior Assistants promoted to the post of Assistant Manager by resolution dated 05.06.2010, while taking up her case for consideration, the performance of the petitioner needs to be taken into account as well .

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The provisions under the extant staff service rules of the Bank do not confer any power on the President to take any single handed decision in the matter of appointment or promotion. It is the Appointment Committee/Committee of Management which is the competent authority to take up the claim of the petitioner for promotion to the post of Assistant Manager under Grade IV. In due obedience to the order of the Hon’ble High Court, the Chief Executive Officer In-charge of the Bank is hereby directed to place the claim of the petitioner for promotion to the post of Assistant Manager before the next Appointment Committee/ Committee of Management of the Bank for a decision thereon in terms of the provisions under the Staff Service Rules .

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The Chief Executive Officer In-charge is also directed to communicate a copy of the present proceedings to the petitioner for her information and guidance.

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4.3. The matter, thus, placed before the Appointment Committee on 21.06.2019, wherein considering her

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service record, her performance was judged based on complaints received and CCRs maintained by the Bank not only for the periods 2007-08, 2008-09 and 2009-10 but also 2017-18. Her overall performance was not found satisfactory and she was not found suitable for promotion to the post of Branch ManagerII (Grade-IV) as she has been negligent in duty, besides being seen to be habitual absentee with tinge of disobedience shown to the higher authorities and misdemeanour.

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4.4. It is, thus, submitted by the learned counsel for the Bank that the petitioner having not questioned the decision taken in the proceeding on 21.06.2019 by the Appointment Committee, the writ petition with the prayer to issue writ of certiorari to quash Order dated 17.06.2010 is misconceived.

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4.5. Justifying the decision vide Order dated 17.06.2010 in releasing the petitioner of the duty in officiating position of Branch Manager-II (Grade-IV), learned counsel for the opposite parties-Bank referred to Order dated 07.06.2010 (Annexure-B/1 to the counter affidavit), which is issued ―in pursuance of Staff Service Rules, 2003 approved by the Registrar of Cooperative Societies (Odisha), Bhubaneswar, communicated vide Agenda No.5 of the Meeting dated

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19.03.2010 the Grades and designations of the employees of the Bank prior to approved Staff Service Rules, 2003 have been re-designated without affecting the existing scale of pay in the said grades‖. Accordingly, the Grade and Designation ―Grade-IV— Branch Manager-II‖ as existed prior to approval of Staff Service Rules, 2003, got re-designated as ―GradeIV— Assistant Manager‖. In the said order it is clearly stipulated that all officiating arrangements and order issued for the purpose since inception till that date were withdrawn/terminated/cancelled. In consonance to aforesaid Order dated 07.06.2010, The Chief Executive (Secretary) issued further communication vide Letter Ref. No.1729/2010-11, dated 15.06.2010 wherein the following order is reflected:

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“The withdrawal/termination/cancellation of officiating arrangements as communicated vide Head Office Order No.1400/2010 dated 07.06.2010 which was kept in abeyance vide Order No.1426/2010-11 dated 08.06.2010, Memo No.1427 (36)/2010-11, dated 08.06.2010 is hereby restored. Therefore, there is no officiating/promotion/arrangement in respect of any officer of the Bank with immediate effect.”

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4.6. Therefore, Sri Jajati Kishore Mohanty, learned Advocate submitted that on or after said date all the officiating arrangements were withdrawn; as a consequence of which the Order Ref. No.1803/2010-

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11, dated 17.06.2010 has come to be passed by the Bank depicting that sixteen Senior Assistants in Grade-V including the petitioner functioning under officiating arrangements were released from the duties and, as such, they are restored to their original position to function as Senior Assistants. It is, therefore, submitted that the petitioner has no legal right to claim for the promotional post of Assistant Manager (Grade-IV).

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4.7. Having not been granted opportunity on earlier occasions calling upon the Bank to file counter affidavit, objection as to maintainability of the writ petition could not be raised. Sri Jajati Kishore Mohanty, learned Advocate for the opposite partiesBank would submit with reference to Section 68 of the Odisha Co-operative Societies Act, 1962, that any dispute touching the constitution, management or the business of a society is to be referred to the Registrar, Co-operative Societies. There being existence of availability of remedy under the statute, the writ petition claiming for consideration of promotion to the higher rank is not tenable in the eye of law.

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5. Sri Arnav Behera, learned Additional Standing Counsel submitted that the Urban Co-operative Bank, Cuttack cannot be construed to be falling within the

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ambit of Article 12 of the Constitution of India which envisages ―the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or Other Authorities within the territory of India or under the control of the Government of India‖.

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5.1. Referring to Rajasthan State Electricity Board Vrs. Mohan Lal, AIR 1967 SC 1857 = (1967) 3 SCR 377 learned Additional Standing Counsel submitted that The meaning of ―Other Authorities‖ under Article 12 includes within it every authority created by a statute on which powers are conferred to carry out Governmental or quasi -Governmental functions and functioning within the territory of India or under the control of the Government of India. As the subjectBank does not fall within scope of said provision so far as service matter is concerned, this Court may not be competent to issue writ.

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5.2. He submitted that as it appears from paragraph 15 of the writ petition that challenging the adverse remarks in the CCRs of 2007-08, 2008-09 and 2009-10, the petitioner has preferred appeal. Unless the adverse remarks for the said period are expunged by the competent authority, the case of the petitioner for promotion to the rank of the Assistant Manager

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(Grade-IV) pertaining to the year 2010 cannot be considered. Furthermore, it emanates from the Proceeding dated 21.06.2019 of the Appointment Committee (Annexure-B/5 of the counter affidavit of the opposite party Nos.3 and 4) that CCR of 2017-18 was also considered and the performance of the petitioner was found to be unsatisfactory. The Committee took cognizance of very many complaints received by the Bank against the petitioner, which led the authority to call for explanation on the grounds of ―negligence of duty, habitual absenteeism, disobedience and misdemeanour‖.

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5.3. With the above details of factual position, the learned Additional Standing Counsel fervently requested not to entertain the writ petition.

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Hearing:

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6. As the pleadings are completed and the issue involved in the present matter hinges on sole point whether the writ petition is maintainable against the Urban Cooperative Bank, Cuttack vis-a-vis claim of promotional post of Assistant Manager (Grade-IV), on consent of counsel for both the sides this matter is taken up for final hearing at the stage of admission.

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6.1. Heard Sri Srinivas Mohanty, learned Advocate for the petitioner, Sri Arnav Behera, learned Additional Standing Counsel for the opposite party Nos.1 and 2 and Sri Jajati Kishore Mohanty, learned Advocate for the opposite party Nos.3 and 4.

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Analysis, discussions and conclusion:

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7. It is emanating from the above discussions it is undisputed that,

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i. The petitioner, Senior Assistant, was entrusted to function as Branch Manager-II (Grade-IV) [now Assistant reManager (Grade-IV), being

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designated] with effect from 01.12.1995 on officiating capacity.

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ii. Consequent upon Order Ref. No.1400/2010-11, dated 07.06.2010 re-designating the post of Branch Manager-II (Grade-IV) as Assistant Manager (Grade-IV), officiating arrangement has been withdrawn/terminated/cancelled by Letter Ref. No.1729/ 2010-11, dated 15.06.2010. As a result thereof, the petitioner along with fifteen other Senior Assistants was allowed to be released from duty in the respective Branches by Letter Ref. No.1803/2010-11, dated 17.06.2010.

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iii. Though by Order Ref. No.1733/2010-11, dated 15.06.2010, forty-six Senior Assistants were provisionally promoted to the post of Assistant Manager (Grade-IV), as the performance of the petitioner was unsatisfactory during 2007-08, 2008-09 and 2009-10, and there were complaints regarding misdemeanour and habitual absenteeism coupled with negligence in duty and disobedience, the case for the petitioner was not considered for promotion to the said post. Rather communicating CCRs for the said periods, by Letter Ref. No.801/2014-15, dated 23.05.2014, Show Cause Notice(s) was issued calling upon her to furnish explanation, to which the petitioner responded.

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iv. As per decision taken in the Proceeding dated 14.05.2018, the matter was placed before the Appointment Committee. Considering such explanation vis-a-vis service record, the Appointment Committee found the performance of the petitioner unsatisfactory. The petitioner has stated to have preferred appeal questioning award of adverse remarks.

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v. A copy of Show-Cause Notice dated 07.07.2023 issued (Annexure-B/6 of the counter affidavit of

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the opposite party Nos.3 and 4) is also placed on record to demonstrate that the conduct and attitude of the petitioner has also not changed even in 2023.

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7.1. With the aforesaid backdrop, when the case of the petitioner is examined it is found that the petitioner along with fifteen other Senior Assistants functioning in different Branches of the Bank was reverted from officiating promotional post, i.e., Assistant Manager (Grade-IV) pursuant to policy decision as reflected in Letter dated 15.06.2010.

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7.2. Non-according promotion to the rank of Assistant Manager (Grade-IV) along with forty-six other Senior Assistants in the year 2010 was on account of adverse remarks in the CCRs pertaining to 2007-08, 2008-09 and 2009-10. Even the Appointment Committee in its Proceeding held on 21.06.2019 considered not only CCRs of said periods, but also for 2017-18, which shows the petitioner has not mended her attitude. It is worthwhile to notice that the outcome of Proceeding on 21.06.2019 has not been questioned by the petitioner.

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7.3. Mere challenging Order dated 17.06.2010 withdrawing officiating arrangement would not enure to the benefit of the petitioner as the same is policy decision of the

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Bank. Such Order dated 17.06.2010 does arise from Order dated 15.06.2010, whereby the Bank has taken policy decision the Bank to the effect that ―there is no officiating/promotion/arrangement in respect of any officer of the Bank with immediate effect‖.

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7.4. Independent cause of action appears to have arisen when the petitioner contends that Senior Assistants joined later to the petitioner in service were considered for promotion to the higher rank. The learned counsel for the opposite parties in his argument contended that in absence of challenge as to decision taken by the Appointment Committee, the writ petition to question the reversion in consequence of the policy decision of Bank cannot fall within the domain of this writ jurisdiction.

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7.5. Though the fact of appeal being preferred before the competent authority challenging the adverse remarks in the CCRs in pursuance of communication thereof vide Letter Ref. No.801/2014-15, dated 23.05.2014 (Annexure-10) has been conceded to, nothing is placed on record by the petitioner as to the status of such appeal.

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8. It is next contended by Sri Srinivas Mohanty, learned Advocate that as the petitioner has worked for more

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than fifteen years as Assistant Manager (Grade-IV) in officiating capacity, she should not have been denied promotion along with forty-six Senior Assistant. He submitted that appointment by promotion on the officiating basis as per Staff Service Rules provides (extracted from paragraph 11 of the writ petition):

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“(i) Where a post falls vacant as a result of deputation, posting outside cadre, leave, suspension or appointment on the acting-charge basis of the incumbent or is reserved under the rules to be filled by transfer, if none is available for transfer, the appointing authority may make appointment by promotion against such post on officiating basis.

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(ii) No person shall be promoted on officiating basis unless he possesses the qualifications and experience prescribed for the post and his promotion as such is approved by the Chairman of the appropriate selection authority.

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(iii) An officiating promotion shall not confer any right of promotion on regular basis but shall be liable to be terminated as soon as a person becomes available for promotion on regular basis .

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(iv) Officiating promotion shall be made on the same terms and conditions as to pay as are prescribed for regular appointment by promotion.”

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8.1. The above extract of the Staff Service Rules clearly envisages that an officiating promotion shall not confer any right of promotion on regular basis, but shall be liable to be terminated as soon as a person becomes available for promotion on regular basis.

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8.2. When the record reveals that the performance of the petitioner during the relevant periods was not satisfactory, and since mere officiating for a certain period would not entitle the petitioner to claim for promotion as a matter of right, it is argued by opposite parties that as long as adverse remarks subsists in the service record, the petitioner is not liable to be considered for a responsible promotional post.

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8.3. It has been reiterated in Union of India Vrs. Manpreet Singh Poonam, (2022) 2 SCR 764 that,

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“18. A mere existence of vacancy per se will not create a right in favour of an employee for retrospective promotion when the vacancies in the promotional post is specifically prescribed under the rules, which also mandate the clearance through a selection process. It is also to be borne in mind that when we deal with a case of promotion, there can never be a parity between two separate sets of rules. In other words, a right to promotion and subsequent benefits and seniority would arise only with respect to the rules governing the

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said promotion, and not a different set of rules which might apply to a promoted post facilitating further promotion which is governed by a different set of rules. In the present case, the authority acting within the rules has rightly granted promotion after clearance of DPC on 17.04.2012 with effect from 01.07.2011, when the actual vacancies arose, which in any case is a benefit granted to the Respondent in Civil Appeal No.518 of 2017. In our view, this exercise of power by the authority of granting retrospective promotion with effect from the date on which actual vacancies arose is based on objective considerations and a valid classification.

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19. This Court in the case of Union of India Vrs. KK Vadhera, 1989 Supp (2) SCC 625 has clearly laid down that the promotion to a post should only be granted from the date of promotion and not from the date on which vacancy has arisen , and has observed that:

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„5. *** We do not know of any law or any rule under which a promotion is to be effective from the date of creation of the promotional post After a post falls vacant for any reason whatsoever, a promotion to that post should be from the date the promotion is granted and not from the date on which such post falls vacant. In the same way when additional posts are created, promotions to those posts can be granted only after the Assessment Board has met and made its recommendations for promotions being

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granted. If on the contrary, promotions are directed to become effective from the date of the creation of additional posts, then it would have the effect of giving promotions even before the Assessment Board has met and assessed the suitability of the candidates for promotion. In the circumstances, it is difficult to sustain the judgment of the Tribunal.‟

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20. Similarly, this Court in the case of Ganga Vishan Gujrati and Ors. Vrs. State of Rajasthan, (2019) 16 SCC 28 has held that:

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„45. A consistent line of precedent of this Court follows the principle that retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre. Seniority amongst members of the same grade has to be counted from the date of initial entry into the grade. This principle emerges from the decision of the Constitution Bench of this Court in Direct Recruit Class II Engg. Officers‟ Assn. Vrs. State of Maharashtra, (1990) 2 SCC 715. The principle was reiterated by this Court in State of Bihar Vrs. Akhouri Sachindra Nath, 1991 Supp (1) SCC 775 and State of Uttaranchal Vrs. Dinesh Kumar Sharma, (2007) 1 SCC 683. In Pawan Pratap Singh Vrs. Reevan Singh, (2011) 3 SCC 267, this Court revisited the precedents on the subject and observed: (SCC pp. 281-82, para 45)

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„45. ***

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(i) The effective date of selection has to be understood in the context of the Service Rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be.

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(ii) Inter se seniority in a particular service has to be determined as per the Service Rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.

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(iii) Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules.

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(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant Service Rules. It is so because

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cannot be on seniority given retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.‟

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This view has been re-affirmed by a Bench of three Judges of this Court in P. Sudhakar Rao Vrs. U. Govinda Rao, (2013) 8 SCC 693.‟ ***”

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8.4. Thus considering the rights in respect of promotion by the Hon‘ble Supreme Court of India, it has been laid down in unequivocal terms that as there is no vested or accrued right over a promotional post, nonetheless consideration for promotion is a fundamental right vide, Ajit Singh Vrs. State of Punjab, (1999) 7 SCC 209 . Thus, the rights of the employee are restricted only if an administrative decision is taken by the Authorities competent to prepare a panel, while considering the eligible candidates for promotion. It may be noteworthy to have reference to Ajay Kumar Shukla Vrs. Arvind Rai, (2021) 12 SCR 1178, wherein it has been observed as follows:

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“37. This Court, time and again, has laid emphasis on right to be considered for promotion to be a as was held K.

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fundamental right, by Ramaswamy, J., in the case of Director, Lift Irrigation Corporation Ltd. Vrs. Pravat Kiran

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Mohanty, (1991) 2 SCC 295 in paragraph 4 of the report which is reproduced below:

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„4. *** There is no fundamental right to promotion, but an employee has only right to be considered for promotion, when it arises, in accordance with relevant rules. From this perspective in our view the conclusion of the High Court that the gradation list prepared by the Corporation is in violation of the right of respondent/writ petitioner to equality enshrined under Article 14 read with Article 16 of the Constitution, and the respondent/ writ petitioner was unjustly denied of the same is obviously unjustified.‟

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38. A Constitution Bench in case of Ajit Singh Vrs. State of Punjab, (1999) 7 SCC 209, laying emphasis on Article 14 and Article 16(1) of the Constitution of India held that if a person who satisfies the eligibility and the criteria for promotion but still is not considered for promotion, then there will be clear violation of his/her‟s fundamental right. Jagannadha Rao, J. speaking for himself and Anand, CJI., Venkataswami, Pattanaik, Kurdukar, JJ., observed the same as follows in paragraphs 21 and 22 and 27:

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„21: Articles 14 and 16(1): is right to be considered for promotion a fundamental right.

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22: Article 14 and Article 16(1) are closely connected. They deal with individual rights of the person. Article 14 demands that the

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„State shall not deny to any person equality before the law or the equal protection of the laws‟. Article 16(1) issues a positive command that “there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State‟.

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It has been held repeatedly by this Court that clause (1) of Article 16 is a facet of Article 14 and that it takes its roots from Article 14. The said clause particularises the generality in Article 14 and identifies, in a constitutional sense “equality of opportunity in matters of employment and appointment to any office under the State”. The word “employment” being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment. Article 16(1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be “considered” for promotion. Equal opportunity here means the right to be “considered” for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be “considered” for promotion, which is his personal right.

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„Promotion based on equal opportunity and seniority attached to such promotion are

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facets of fundamental right under Article 16(1). ***

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27. In our opinion, the above view expressed in Ashok Kumar Gupta and followed in Jagdish Lal and other cases, if it is intended to lay down that the right guarantee to employees for being “considered” for promotion according to relevant rules of recruitment by promotion (i.e. whether on the basis of seniority or merit) is only a statutory right and not a fundamental right, we cannot accept the proposition. We have already stated earlier that the right to equal opportunity in the matter of promotion in the sense of a right to be “considered” for promotion is indeed a fundamental right guaranteed under Article 16(1) and this has never been doubted in any other case before Ashok Kumar Gupta right from 1950.‟

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39. This Court in Major General H.M. Singh, VSM Vrs. UOI, (2014) 3 SCC 670, again reiterated the legal position, i.e. right to be considered for promotion as a fundamental right enshrined under Article 14 and Article 16 of the Constitution of India. The relevant extract from paragraph 28 is reproduced below:

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„28. The question that arises for consideration is, whether the non-consideration of the claim of the appellant would violate the fundamental rights vested in him under Articles 14 and 16 of the Constitution of India. The answer to the aforesaid query would be in the affirmative, subject to the condition that the respondents were desirous of filling the

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vacancy of Lieutenant-General, when it became available on 01.01.2007. The factual position depicted in the counter affidavit reveals that the respondents indeed were desirous of filling up the said vacancy. In the above view of the matter, if the appellant was the senior most serving Major-General eligible for consideration (which he undoubtedly was), he most definitely had the fundamental right of being considered against the above vacancy, and also the fundamental right of being promoted if he was adjudged suitable. Failing which, he would be deprived of his fundamental right of equality before the law, and equal protection of the laws, extended by Article 14 of the Constitution of India. We are of the view that it was in order to extend the benefit of the fundamental right enshrined under Article 14 of the Constitution of India, that he was allowed extension in service on two occasions, firstly by the Presidential Order dated 29-2-2008, and thereafter, by a further Presidential Order dated 30-5-2008. The above orders clearly depict that the aforesaid extension in service was granted to the appellant for a period of three months (and for a further period of one month), or till the approval of the ACC, whichever is earlier. By the aforesaid orders, the respondents desired to treat the appellant justly, so as to enable him to acquire the honour of promotion to the rank of Lieutenant-General (in case the recommendation made in his

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favour by the Selection Board was approved by the Appointments Committee of the Cabinet, stands affirmed). The action of the authorities in depriving the appellant due consideration for promotion to the rank of the Lieutenant General would have resulted in violation of his fundamental right under Article 14 of the Constitution of India. Such an action at the hands of the respondents would unquestionably have been arbitrary.‟ ***”

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8.5. Under such premises, the policy of promotion falls within the domain of the Legislature or the Executive, with limited scope for interference in exercise of power of judicial review. Courts can intervene only if the promotion policy violates the principle of equal opportunity under Article 16 of the Constitution of India. The Legislature or the Executive may decide the method for filling up vacancies to promotional posts based on the nature of employment and the functions that the candidate would be expected to discharge.

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8.6. Reference to Smt. Imlikokla Longchar Vrs. The State of Nagaland, (2022) 17 SCR 491 may be apposite in the present context, wherein the following is reflected:

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“7. Consistent stand of the Departmental Promotion Committee (“DPC”) from the year 2007 has been that the seniority position of the appellants ought to be computed taking into account the period they

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were officiating in the posts of senior lecturer, which were prior to the date of regularisation of K in the same post. In support of this argument, clause 4.2 of the Memorandum referred to in the earlier part of this judgment has been relied on by the appellants as also the State. This was also the view of the DPC and was confirmed in their meeting held on 2^nd November 2015. There are authorities which calls for limited interference by judicial review with regard to recommendations of the DPC. This has been held so by this Court in the cases of Union Public Service Commission Vrs. L.P. Tiwari and Others, (2006) 12 SCC 317 and Union of India & Another Vrs. S.K. Goel and Others, (2007) 14 SCC 641. But the principle of non-interference is not absolute. In exceptional cases, judicial intervention becomes inevitable, as held in the case of Badrinath Vrs. Government of Tamil Nadu and Others, (2000) 8 SCC 395.

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***

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12. *** The general principle of service jurisprudence is that the time spent in the immediate superior grade on stop-gap or ad hoc basis ought not to be computed for determining the length of service of an incumbent in that cadre. This is of course, subject to any contrary provision made in the applicable Rules itself. But no such contrary provision has been shown to us at the time of hearing of this appeal on behalf of the appellants or the State. Thus, computation of the

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appellants’ period of service in the feeder grade can take place only from the date of their regular appointment in that cadre. This view has been taken by the Constitution Bench of this Court in the case of Direct Recruit Class II Engineering Officers‟ Association Vrs. State of Maharashtra & Others, (1990) 2 SCC 715, Swapan Kumar Pal and Others Vrs. Samitabhar Chakraborty and Others, (2001) 5 SCC 581, State of Rajasthan and Others Vrs. Jagdish Narain Chaturvedi, (2009) 12 SCC 49, Amarjeet Singh and Others Vrs. Devi Ratan and Others, (2010) 1 SCC 417, and Malook Singh and Others Vrs. State of Punjab and Others, (2021) SCC OnLine SC 876.

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***

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14. The appellants had entered the service as lecturer on contractual basis in the year 1992-93 around the same time K had joined as senior lecturer, also on contract basis. For the purpose of determining the length of service in the feeder posts as contained in Schedule II of the 2003 Rules, the time spent on contractual basis cannot be factored in. If that yardstick is applied, then K‟s case for seniority in the grade of senior lecturer will have to be computed from the year 1993 only. Even if we proceed on the basis that the retrospective effect given to regularisation of the appellants in the post of lecturer is valid, then also, 15th January 2001 becomes the starting point for calculating five years of service length in the feeder cadre. They were given promotion on officiating basis as senior lecturers with effect from 14th November 2003 (for

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A1 and A2) and 20th January 2001 (for A3 and A4). Thus, the requisite five year period could not have been completed by any of them if the retroactivity of their regularisation order in the post of senior lecturer is to be accepted. The period spent in a promotional post on officiating basis cannot be permitted to be factored in for calculating length of service in a particular post. Unless the Rules otherwise provide, officiation in a particular post cannot encadre the incumbent in that post. We have already referred to different authorities laying down this proposition of law earlier in this judgment. Birth in the cadre takes place only upon regularisation in a grade and there is no provision in the 2003 Rules which prescribes encadering a person in the post of senior lecturer during the period such person officiates in the said post. So far as length of service in feeder post is concerned, that also has to exclude the contractual period during which the appellants served as lecturers, once we apply this principle.

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15. The appellants had no doubt completed three years of service in the feeder grade on operationalisation of 2003 Rules on 30th April 2007. But so far, the said Rules seek to give them regularisation in the cadre of senior lecturer with effect from 2003 and 2001 respectively, their service in the feeder grade do not meet the required stipulation of five year period. Judgment of a Coordinate Bench in the case of Girish Kumar Vrs. State of Maharashtra and Others, (2019) 6 SCC 647, construed the term „continuous service‟

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in relation to the specific rules this Court was dealing with in that case. So far as the present appeal is concerned, the ratio of this judgment would not be applicable because the appellants here did not fulfil the eligibility requirement for being promoted to the post of senior lecturer. If retroactivity of order is given effect to for calculating the officiating period, as we have already observed, time spent as officiating senior lecturer could not be deemed to be the dates of their birth in the cadre of senior lecturer. In Girish Kumar (supra), it has also been held that such interpretation shall not be applicable while considering eligibility criteria. In the present appeal, one of the eligibility criterion is five years continuous service in the feeder post. We cannot ignore this factor and proceed on the basis as if the term continuous service is being construed only for determining inter-se seniority in the promotional post. We are testing here if the appellants‟ entry in the promotional cadre was as per the eligibility criteria or not. In our opinion, it was not. To hold otherwise would require entire stretch of K‟s service in the post of senior lecturer since 1993 to be taken into account for determining the inter-se seniority among the appellants and K.”

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8.7. Amplifying further, Sri Srinivas Mohanty, learned Advocate advanced argument by referring to rules relating to ―Probation‖ under the Staff Service Rules ( vide paragraphs 11 and 12 of the writ petition) that

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―every person appointed to a post in the Bank after the commencement of these Rules, whether by promotion or by direct recruitment shall be on probation in such post for a period as prescribed in these Rules‖. If nothing is communicated to the employee concerned, he shall be deemed to have been confirmed after completion of probation period‖. Referring to rules relating to Probation, Sri Srinivas Mohanty, learned Advocate submitted that for directly recruited or promoted employees in Grade VI to IX the period of probation has been prescribed as two years and for rest of the cases it is one year. Since the petitioner in the present case had been continuing to function in the promotional post of Assistant Manager (Grade-IV) since 1995 on officiating basis and nothing adverse was communicated till 2014, she is entitled to the said rank along with forty-six other Senior Assistants.

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8.8. In this regard the legal perspective of probation may deserve discussion.

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8.9. In G.S. Ramaswamy Vrs. The Inspector General of Police, Mysore State, Bangalore, AIR 1966 SC 175 , the Court held that, a probationer cannot, after the expiry of probationary period, automatically acquire the status of a permanent servant, unless the Rules expressly so provide. Therefore, even if the probationer

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continues to act in the post for more than the initial period of probation, he cannot acquire permanency merely by efflux of time. It is laid down in the said case that:

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“8. It has further been urged on the basis of Rule 486 that as the petitioners had worked for more than two years on probation, they became automatically confirmed under the said Rules, and reliance is placed on the following sentence in Rule 486, namely, „promoted officers will be confirmed at the end of their probationary period if they have given satisfaction‟. The law on the question has been settled by this Court in Sukhbans Singh Vrs. State of Punjab, (1963) 1 SCR 426. It has been held in that case that a probationer cannot after the expiry of the probationary period automatically acquire the status of a permanent member of a service, unless of course the Rules under which he is appointed expressly provide for such a result. Therefore even though a probationer may have continued to act in the post to which he is appointed on probation for more than the initial period of probation, he cannot become a permanent servant merely because of efflux of time, unless the Rules of service which govern him specifically lay down that the probationer will be automatically confirmed after the initial period of probation is over. It is contended on behalf of the petitioners before us that the part of Rule 486 (which we have set out above) expressly provides for automatic confirmation after the period of probation is over. We are of opinion that there is no

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force in this contention. It is true that the words used in the sentence set out above are not that promoted officers will be eligible or qualified for promotion at the end of their probationary period which are the words to be often found in the Rules in such cases; even so, though this part of Rule 486 says that „promoted officers will be confirmed at the end of their probationary period‟, it is qualified by the words „if they have given satisfaction‟.

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Clearly therefore the Rule does not contemplate automatic confirmation after the probationary period of two years, for a promoted officer can only be confirmed under this Rule if he has given satisfaction. This condition of giving satisfaction must be fulfilled before a promoted officer can be confirmed under this Rule and this condition obviously means that the authority competent to confirm him must pass an order to the effect that the probationary officer has given satisfaction and is therefore confirmed. The petitioners therefore cannot claim that they must be treated as confirmed circle inspectors simply because they have worked for more than two years on probation; they can only become confirmed circle inspectors if an order to that effect has been passed even under this Rule by the competent authority. The first contention therefore that the petitioners before us have an indefeasible right to promotion once their names are put in the eligibility list and that they are entitled to continue as circle inspectors thereafter if they have once been promoted,

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on temporary or officiating basis, cannot be sustained .”

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8.10. In State of U.P. Vrs. Akbar Ali Khan, AIR 1966 SC 1842 the following view was expressed:

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“6. The scheme of the Rules is clear: confirmation in the post which a probationer is holding does not result merely from the expiry of the period of probation, and so long as the order of confirmation is not made, the holder of the post remains a probationer. It has been held by this Court that when a first appointment or promotion is made on probation for a specified period and the employee is allowed to continue in the post, after the expiry of the said period without any specific order of confirmation he continues as a probationer only and acquires no substantive right to hold the post. If the order of appointment itself states that at the end of the period of probation, the appointee will stand confirmed in the absence of any order to the contrary, the appointee will acquire a substantive right to the post even without an order of confirmation. In all other case, in the absence of such an order or in the absence of such a service Rule, an express order of confirmation is necessary to give him such a right. Where after the period of probation an appointee is allowed to continue in the post without an order of confirmation, the only possible view to take is that by implication the period of probation has been extended, and it is not a correct proposition to state that an appointee should be deemed to be confirmed from the

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mere fact that he is allowed to continue after the end of the period of probation. See Chief Conservator of Forests, U.P. National Vrs. D.A. Lyall, CA 259 of 1963 decided on February 24, 1965; Sukhbans Singh Vrs. State of Punjab, AIR 1962 SC 1711 and Accountant General, Madhya Pradesh, Gwalior Vrs. Beni Prasad Bhatnagar, CA 548 of 1962, decided on January 23, 1964.”

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8.11. In State of Punjab Vrs. Dharam Singh, AIR 1968 SC 1210 , it has been observed as follows:

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“8. The initial period of probation of the respondents ended on October 1, 1958. By allowing the respondents to continue in their posts thereafter without any express order of confirmation, the competent authority must be taken to have extended the period of probation up to October 1, 1960 by implication. But under the proviso to Rule 6(3), the probationary period could not extend beyond October 1, 1960. In view of the proviso to Rule 6(3), it is not possible to presume that the competent authority extended the probationary period after October 1, 1960, or that thereafter the respondents continued to hold their posts as probationers.

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9. Immediately upon completion of the extended period of probation on October 1, 1960, the appointing authority could dispense with the services of the respondents if their work or conduct during the period of probation was in the opinion of the authority unsatisfactory. Instead of dispensing with their

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services on completion of the extended period of probation, the authority continued them in their posts until sometime in 1963, and allowed them to draw annual increments of salary including the increment which fell due on October 1, 1962. The rules did not require them to pass any test or to fulfil any other condition before confirmation. There was no compelling reason for dispensing with their services and re-employing them as temporary employees on October 1, 1960, and the High Court rightly refused to draw the inference that they were so discharged from services and reemployed. In these circumstances, the High Court rightly held that the respondents must be deemed to have been confirmed in their posts. Though the appointing authority did not pass formal orders of confirmation in writing, it should be presumed to have passed orders of confirmation by so allowing them to continue in their posts after October 1, 1960. After such confirmation, the authority had no power to dispense with their services under Rule 6(3) on the ground that their work or conduct during the period of probation was unsatisfactory. It follows that on the dates of the impugned orders, the respondents had the right to hold their posts. The impugned orders deprived them of this right and amounted to removal from service by way of punishment. The removal from service could not be made without following the procedure laid down in the Punjab Civil Services (Punishment and Appeal) Rules, 1952 and without conforming to the constitutional requirements of Article 311 of the Constitution. As the procedure laid down in the Punjab Civil Services (Punishment and Appeal)

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Rules, 1952 was not followed and as the constitutional protection of Article 311 was violated, the impugned orders were rightly set aside by the High Court.”

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8.12. In Samsher Singh Vrs. State of Punjab, (1974) 2 SCC 831 , the Supreme Court while dealing with termination of services of probationers under Rule 9 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952 and Rule 7(3) of Punjab Civil Services (Judicial Branch) Rules, 1951, laid down that,

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“71. Any confirmation by implication is negatived in the present case because before the completion of three years the High Court found prima facie that the work as well as the conduct of the appellant was unsatisfactory and a notice was given to the appellant on October 4, 1968 to show cause as to why his services should not be terminated. Furthermore, Rule 9 shows that the employment of a probationer can be proposed to be terminated whether during or at the end of the period of probation. This indicates that where the notice is given at the end of the probation the period of probation gets extended till the inquiry proceedings commenced by the notice under Rule 9 come to an end. In this background the explanation to Rule 7(1) shows that the period of probation shall be deemed to have been extended impliedly if a Subordinate Judge is not confirmed on the expiry of this period of probation. This implied extension where a Subordinate Judge is not confirmed on the expiry of the period of

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probation is not found in Dharam Singh case. This explanation in the present case does not mean that the implied extension of the probationary period is only between two and three years. The explanation on the contrary means that the provision regarding the maximum period of probation for three years is directory and not mandatory unlike in Dharam Singh case and that a probationer is not in fact confirmed till an order of confirmation is made.

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72. In this context reference may be made to the proviso to Rule 7(3). The proviso to the rule states that the completion of the maximum period of three years' probation would not confer on him the right to be confirmed till there is a permanent vacancy in the cadre. Rule 7(3) states that an express order of confirmation is necessary. The proviso to Rule 7(3) is in the negative form that the completion of the maximum period of three years would not confer a right of confirmation till there is a permanent vacancy in the cadre. The period of probation is therefore extended by implication until the proceedings commenced against a probationer like the appellant are concluded to enable the Government to decide whether a probationer should be confirmed or his services should be terminated. No confirmation by implication can arise in the present case in the facts and circumstances as also by the meaning and operation of Rules 7(1) and 7(3) as aforesaid.”

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8.13. In Dayaram Dayal Vrs. State of M.P. and Anr. (1997) 7 SCC 443 , the Hon‘ble Supreme Court of India noted that there were two distinct line of cases which were emerging from different judicial pronouncements.

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One line of judgments held that mere continuation of service beyond the probation period does not amount to confirmation unless it was so specifically provided.

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The other line is that where in the Rules there is an initial probation with extension thereof, but a maximum period is also provided beyond which probation cannot be extended, the employee will be deemed to be confirmed on completion of maximum period of probation.

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8.14. In Wasim Beg Vrs. State of U.P., (1998) 3 SCC 321 , the Supreme Court of India identified three possible categories of cases and observed as under:

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“15. Whether an employee at the end of the probationary period automatically gets confirmation in the post or whether an order of confirmation or any specific act on the part of the employer confirming the employee is necessary, will depend upon the provisions in the relevant Service Rules relating to probation and confirmation. There are broadly two sets of authorities of this Court dealing with this question. In those cases where the Rules provide for a

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maximum period of probation beyond which probation cannot be extended, this Court has held that at the end of the maximum probationary period there will be a deemed confirmation of the employee unless Rules provide to the contrary. This is the line of cases starting with State of Punjab Vrs. Dharam Singh, AIR 1968 SC 1210 = (1968) 3 SCR 1, M.K. Agarwal Vrs. Gurgaon Gramin Bank, 1987 Supp SCC 643, Om Parkash Maurya Vrs. U.P. Co-operative Sugar Factories Federation, 1986 Supp SCC 95, State of Gujarat Vrs. Akhilesh C. Bhargav, (1987) 4 SCC 482.

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16. However, even when the Rules prescribe a maximum period of probation, if there is a further provision in the Rules for continuation of such probation beyond the maximum period, the courts have made an exception and said that there will be no deemed confirmation in such cases and the probation period will be deemed to be extended. In this category of cases we can place Samsher Singh Vrs. State of Punjab, (1974) 2 SCC 831 which was the decision of a Bench of seven Judges where the principle of probation not going beyond the maximum period fixed was reiterated but on the basis of the Rules which were before the Court, this Court said that the probation was deemed to have been extended. A similar view was taken in the case of Municipal Corpn. Vrs. Ashok Kumar Misra, (1991) 3 SCC 325. In Satya Narayan Athya Vrs. High Court of M.P., (1996) 1 SCC 560 although the Rules prescribed that the probationary period should not exceed two years,

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and an order of confirmation was also necessary, the termination order was issued within the extended period of probation. Hence the termination was upheld.

¶299

17. The other line of cases deals with Rules where there is no maximum period prescribed for probation and either there is a Rule providing for extension of probation or there is a Rule which requires a specific act on the part of the employer (either by issuing an order of confirmation or any similar act) which would result in confirmation of the employee. In these cases unless there is such an order of confirmation, the period of probation would continue and there would be no deemed confirmation at the end of the prescribed probationary period. In this line of cases one can put Sukhbans Singh Vrs. State of Punjab, AIR 1962 SC 1711 = (1963) 1 SCR 416, State of U.P. Vrs. Akbar Ali Khan, AIR 1966 SC 1842 = (1966) 3 SCR 821, Kedar Nath Bahl Vrs. State of Punjab, (1974) 3 SCC 21, Dhanjibhai Ramjibhai Vrs. State of Gujarat, (1985) 2 SCC 5 and Tarsem Lal Verma Vrs. Union of India, (1997) 9 SCC 243, Municipal Corpn. Vrs. Ashok Kumar Misra, (1991) 3 SCC 325 and State of Punjab Vrs. Baldev Singh Khosla, (1996) 9 SCC 190. In the recent case of Dayaram Dayal Vrs. State of M.P., (1997) 7 SCC 443 = AIR 1997 SC 3269 all these cases have been analysed and it has been held that where the Rules provide that the period of probation cannot be extended beyond the maximum period there will be a deemed confirmation at the end of the maximum

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probationary period unless there is anything to the contrary in the Rules.”

¶303

8.15. The Hon‘ble Supreme Court in High Court of M.P. Vrs. Satya Narayan Jhavar, (2001) 7 SCC 161 , declined to accept the principle of automatic or deemed confirmation and held as follows:

¶304

“11. The question of deemed confirmation in service jurisprudence, which is dependent upon the language of the relevant service rules, has been the subject-matter of consideration before this Court, times without number in various decisions and there are three lines of cases on this point. One line of cases is where in the service rules or in the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cases there is no bar against termination at any point of time after expiry of the period of probation. The other line of cases is that where while there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. The inference in such cases is that the officer concerned is deemed to have been confirmed upon expiry of the maximum period of probation in case before its expiry the order of termination has not been

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passed. The last line of cases is where, though under the rules maximum period of probation is prescribed, but the same requires a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. In such cases, even if the maximum period of probation has expired and neither any order of confirmation has been passed nor has the person concerned passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired .”

¶308

8.16. This view was followed in Registrar, High Court of Gujarat Vrs. C.G. Sharma, (2005) 1 SCC 132 and it is held,

¶309

“A large number of authorities were cited before us by both the parties. However, it is not necessary to go into the details of all those cases for the simple reason that sub-rule (4) of Rule 5 of the Rules is in pari materia with the Rule which was under consideration in the case of State of Maharashtra Vrs. Veerappa R. Saboji, (1979) 4 SCC 466 and we find that even if the period of two years expires and the probationer is allowed to continue after a period of two years, automatic confirmation cannot be claimed as a matter of right because in terms of the Rules, work has to be satisfactory which is a prerequisite or precondition for confirmation and, therefore, even if the probationer is allowed to continue beyond the period of two years as mentioned in the Rule, there is no question of deemed confirmation. The language of the Rule itself excludes any chance of

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giving deemed or automatic confirmation because the confirmation is to be ordered if there is a vacancy and if the work is found to be satisfactory. There is no question of confirmation and, therefore, deemed confirmation, in the light of the language of this Rule, is ruled out. We are, therefore, of the opinion that the argument advanced by learned counsel for the respondent on this aspect has no merits and no leg to stand. The learned Single Judge and the learned Judges of the Division Bench have rightly come to the conclusion that there is no automatic confirmation on the expiry of the period of two years and on the expiry of the said period of two years, the confirmation order can be passed only if there is vacancy and the work is found to be satisfactory. The Rule also does not say that the two years‟ period of probation, as mentioned in the Rule, is the maximum period of probation and the probation cannot be extended beyond the period of two years. We are, therefore, of the opinion that there is no question of automatic or deemed confirmation, as contended by the learned counsel for the respondent. We, therefore, answer this issue in the negative and against the respondent.”

¶313

8.17. In Kazia Mohammed Muzzammil Vrs. State of Karnataka, (2010) 8 SCC 155 , the Supreme Court held as follows:

¶314

“46. On a clear analysis of the above enunciated law, particularly, the seven-Judge Bench judgment of this Court in Samsher Singh, (1974) 2 SCC 831 and the three-Judge Bench judgments, which are certainly the larger Benches and are binding on us, the courts have taken the view with reference

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to the facts and relevant rules involved in those cases that the principle of „automatic‟ or „deemed confirmation‟ would not be attracted. The pith and substance of the stated principles of law is that it will be the facts and the rules, which will have to be examined by the courts as a condition precedent to the application of the dictum stated in any of the line of cases aforenoticed.

¶318

47. There can be cases where the rules require a definite act on the part of the employer before an officer on probation can be confirmed. In other words, there may a rule or regulation requiring the competent authority to examine the suitability of the probationer and then upon recording its satisfaction issue an order of confirmation. Where the rules are of this nature the question of automatic confirmation would not even arise. Of course, every authority is expected to act properly and expeditiously. It cannot and ought not to keep issuance of such order in abeyance without any reason or justification. While there could be some other cases where the rules do not contemplate issuance of such a specific order in writing but merely require that there will not be any automatic confirmation or some acts, other than issuance of specific orders, are required to be performed by the parties, even in those cases it is difficult to attract the application of this doctrine.

¶319

48. However, there will be cases where not only such specific rules, as noticed above, are absent but the rules specifically prohibit extension of the period of probation or even specifically provide that upon

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expiry of that period he shall attain the status of a temporary or a confirmed employee. In such cases, again, two situations would rise: one, that he would attain the status of an employee being eligible for confirmation and second, that actually he will attain the status of a confirmed employee. The courts have repeatedly held that it may not be possible to prescribe a straitjacket formula of universal implementation for all cases involving such questions. It will always depend upon the facts of a case and the relevant rules applicable to that service .

¶323

***

¶324

51. The language of Rule 5(2) is a clear indication of the intent of the framers that the concept of deeming confirmation could not be attracted in the present case. This Rule is preceded by the powers vested with the authorities under Rules 4 and 5(1) This Rule mandates that a

¶325

respectively. probationer shall not be deemed to have satisfactorily completed the probation unless a specific order to that effect is passed. The Rule does not stop at that but furthermore specifically states that any delay in issuance of order shall not entitle the probationer to be deemed to have satisfactorily completed his probation. Thus, use of unambiguous language clearly demonstrates that the fiction of deeming confirmation, if permitted to operate, it would entirely frustrate the very purpose of these Rules. On the ground of unsuitability,

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despite what is contained in Rule 5, the competent authority is empowered to discharge the probationer at any time on account of his unsuitability for the service or post. That discharge has to be simpliciter without causing a stigma upon the probationer concerned. In our view, it is difficult for the Court to bring the present case within the class of cases, where „deemed confirmation‟ or principle of „automatic confirmation‟ can be judiciously applied.”

¶329

8.18. Considering the concept of ―deemed confirmation‖ in V.K. Mittal Vrs. Registrar General, High Court of Delhi, (2016) SCC Online Del 407 , it has been summarized as follows:

¶330

“64. The legal position on „deemed confirmation‟ can be summarised as under:

¶331

(a) If in the rule or order of appointment, a period of probation is specified and a power to extend probation is also conferred and the officer is allowed to continue beyond the prescribed period of probation, he cannot be deemed to be confirmed. At the end of such probation he becomes or merely qualified eligible for

¶332

substantive permanent appointment.

¶333

(b) There is the other line of cases where even though there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. The presumption

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about continuation, beyond the period of probation, as a probationer stands negatived by the fixation of a maximum time-limit for the extension of probation. In such cases the officer concerned must be deemed to have been confirmed.

¶337

(c) A third line of cases is where though under the rules maximum period of probation is prescribed, it requires a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. In such cases, even if the maximum period of probation has expired, and neither any order of confirmation has been passed nor has the person concerned passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired.

¶338

(d) While there could be some other cases where the rules do not contemplate issuance of such a specific order in writing but merely require that there will not be any automatic confirmation or some acts, other than issuance of specific orders, are required to be performed by the parties. Even in those cases, there would be no „deemed confirmation‟.”

¶339

8.19. In Dr. Rai Shivendra Bahadur Vrs. Governing Body of the Nalanda College, Bihar Sharif, AIR 1962 SC 1210 , it is held as under:

¶340

“In order that mandamus may issue to compel the respondents to do something, it must, be shown that

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the statutes imposed a legal duty and the appellant has a legal right under the statutes to enforce its preformance. *** According to the statutes all appointments of teachers and staff have to be made by the governing body and no person can be appointed, removed or demoted except in accordance with rules but the appellant has not shown that he has any right entitling him to get an order for appointment or reinstatement.”

¶344

8.20. Taking cue from the above conspectus of legal position and factual discussions, it is quite clear that the petitioner, who was officiating promotional post of Assistant Manager (Grade-IV) contradistinguished with conceptual perspective of ―probationer‖, was not considered due to non-fulfilment of eligibility criteria. There existed complaints against the behaviour of the petitioner and her CCRs were found to be deficient in service. The performance of the petitioner was found to be not satisfactory. Thus, the factual merit of the case as to whether the adverse remarks are liable to be ignored or expunged, on the facts and in the circumstances of present case, is required to be considered in the appeal stated to have been filed by the petitioner.

¶345

9. A feeble attempt has been made by Sri Srinivas Mohanty, learned Advocate by contending that though the petitioner is senior to others, who have been

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promoted to the next higher rank, she has been brought down to her parent position by way of reversion from the promotional post, which she managed for more than fifteen years, could not have been discriminated.

¶349

9.1. Such a stand has no legal basis inasmuch as complaints of misdemeanour was considered by the authorities concerned and even in 2017-18 it was observed that she did not change her attitude. The aspects of suitability for the post of Assistant Manager (Grade-IV) with reference to Confidential Character Roll have been discussed in the foregoing paragraphs. Since consideration of an employee to the higher rank is a matter of objective analysis of service record by the authority, little scope is left for this Court to show indulgence.

¶350

9.2. In S.S. Bola Vrs. B.D. Sardana, (1997) 8 SCC 522 , it is succinctly stated that,

¶351

“A distinction between right to be considered for promotion and an interest to be considered for promotion has always been maintained. Seniority is a facet of interest. The rules prescribe the method of recruitment/selection. Seniority is governed by the rules existing as on the date of consideration for promotion. Seniority is required to be worked out according to the existing rules. No one has a vested right to

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promotion or seniority. But an officer has an interest to seniority acquired by working out the rules. The seniority should be taken away only by operation of valid law. Right to be considered for promotion is a rule prescribed by conditions of service. A rule which affects chances of promotion of a person relates to conditions of service. The rule/provision in an Act merely affecting the chances of promotion would not be regarded as varying the conditions of service. The chances of promotion are not conditions of service. A rule which merely affects the chances of promotion does not amount to change in the conditions of service. However, once a declaration of law, on the basis of existing rules, is made by a constitutional court and a mandamus is issued or direction given for its enforcement by preparing the seniority list, operation of the declaration of law and the mandamus and directions issued by the Court is the result of the declaration of law but not the operation of the rules per se.”

¶355

9.3. In State of Bombay Vrs. F.A. Abraham , AIR 1962 SC 794, it has been observed as under:

¶356

“A person officiating in a post has no right to hold it for all times. He may have been given the officiating post because the permanent incumbent was not available, having gone on leave or being away for some other reason. When the permanent incumbent comes back, the person officiating is naturally reverted to his original post. This is no reduction in rank for it was the very term on which he had been given the officiating post. Again, sometimes, a person is given an officiating post to test his suitability to be made permanent in it later.

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Here again, it is an implied term of the officiating appointment that if he is found unsuitable, be would have to go back. If, therefore, the appropriate authorities find him unsuitable for the higher rank and then revert him back to his original lower rank, the action taken is in accordance with the terms on which the officiating post had been given. It is in no way a punishment and is not, therefore, a reduction in rank. ***

¶360

The reversion has not in any way affected the respondent so far as his condition and prospect of service are concerned. He, of course, lost the benefit of the appointment to the higher rank but that by itself cannot indicate that the reversion was by way of punishment because he had no right to continue in the higher post or to the benefits arising from it. He had been reverted in exercise of a right which the Government had under the terms of the officiating employment.”

¶361

9.4. As is apparent from the pleadings and documents enclosed to the writ petition it is evinced that the petitioner, having not questioned the unsuitability for the post of Assistant Manager (Grade-IV) by the Appointment Committee by analysing the service record, a subsequent event to reversion from officiating said promotional post, the prayer made in the writ petition is preposterous.

¶362

9.5. This Court would wish to refer to certain principles decided in various cases qua reversion from officiating

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promotional post, as discussed in Ajeeb Singh Bakshi Vrs. State of Haryana, 1969 SCC OnLine P&H 64 .

¶366

i. In S. Avtar Singh Uppal Vrs. The Inspector-General of Police, Chandigarh, 1966 Current Law Journal (Pb.) 318, the following propositions are laid down:

¶367

“1. If an officiating Government servant has no right to hold a higher post and is reverted to his substantive rank otherwise than by way of punishment, he has no cause of action.

¶368

2. If the reversion is by way of punishment and the same is effected without affording the official concerned the requisite opportunity under Article 311(2) of the Constitution, the older of reversion will have to be struck down.

¶369

3. The order of reversion would be deemed to be by way of punishment if it visits the official concerned with evil consequences ensuing from the order of reversion, the evil consequences in the matter of forfeiture of pay or loss of seniority being considered only in the context of the official‟s substantive rank and not with reference to his officiating rank from which he is reverted.

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4. If the official concerned not only suffers loss of seniority on account of the order of reversion but also suffers on account of the order of reversion the postponement of his

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future chances of promotion to the senior scale or the higher post, the order is by way of penalty.

¶374

5. That in determining whether a particular order of reversion amounts to the reduction of the official in rank within the meaning of Article 311 of the Constitution or not, it is not only the form or the wording of the particular order which is to be treated as conclusive but it is the substance of the matter which has to be determined after consideration of the totality of the circumstances. The real character of the order has to be determined by reference to the material facts that existed immediately prior to or at the time of the impugned order.

¶375

6. If the real intention is found to be to penalise or punish the official, then notwithstanding the form of the order the reversion would be held to amount to reduction in rank.

¶376

7. That in considering the circumstances of each case the motive of the relevant authorities in reverting the official concerned is wholly irrelevant but the mind or the intention to inflict punishment or to revert in ordinary course would certainly be relevant.

¶377

8. The mere fact that it is found that it was the official‟s unsatisfactory work, which resulted in his reversion, will not vitiate the order as there is no sense in trying a person in a higher rank in officiating capacity if he

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cannot be reverted in spite of his work in the higher rank being unsatisfactory or in spite of his being found unsuitable to hold the higher post without taking disciplinary proceedings against him. To such a case Article 311(2) of the constitution will not apply.”

¶381

ii. The State of Punjab Vrs. Bharpur Singh Brar, R.S.A. 141 of 1965, decided by D.K. Mahiajan and P.C. Jain, JJ. on 13th September 1968, in which P.C. Jain, J. speaking for the Court observed as under:

¶382

“After considering the respective arguments of the learned counsel for the parties and also the authorities cited before us, the true legal position that emerges out is that the order of reversion per se does not amount to punishment and it can be challanged only if it is by way of punishment and has been effected without affording the officiating officer the opportunity required under Article 311(2) of the Constitution. *** In this view of the matter it cannot be held that every order of reversion would amount to an order of punishment. The authority which has a right to promote a person to an officiating post has also a right to revert him back to the substantive post unless of course that authority was reverting the officiating hand by way of punishment. Whether a particular order of reversion is by way of

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punishment or not will depend on the facts and circumstances of each case.”

¶386

iii. In State of Punjab Vrs. Appar Apar Singh, AIR 1967 Punjab 139, a Division Bench of Punjab and Haryana High Court held as under:

¶387

“ A person officiating in higher rank has no right to that post. He can be reverted from it without assigning any reason. But if he is reverted from it by way of punishment, the reversion will be bad because in that case the provisions of Article 311(2) would be attracted. But if the reversion is not by way of punishment but because the person reverted is not found suitable to hold the post, per se it will not amount to punishment though a stigma does attach by reason of the reversion that he was found unfit to hold a higher post. Each case has to be considered by looking into the totality of circumstances leading to reversion in order to determine whether the order of reversion has been passed by way of punishment or otherwise.”

¶388

It was also held as under:

¶389

“In the case of reversion of a person from a higher rank to a lower rank, the reasons for reversion are known to the department and are recorded in the official file. Therefore, the chances of promotion of a person reverted from a higher rank to a lower rank, excepting in two cases already noticed, namely, the permanent incumbent of that post having come back

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from leave or the post having been abolished, do stand in the way of promotion to the higher rank. ”

¶393

It was further said on the facts of that case that:

¶394

“I am unable to hold that the impugned order of reversion was punishment. I have no doubt that if the respondent shows better promise, the authorities will, whenever a chance arises, promote him to the higher rank. There is no order on the file that under no circumstances the respondent will be promoted to the higher rank.”

¶395

iv. In Mazhar Hasnain Vrs. State of U.P., AIR 1961 Allahabad 316, it was held as under:

¶396

“The sole question that arises is: Was the petitioner entitled to the rank? If he had been sent and another person was senior who had not been appointed, the petitioner was not entitled to the rank and in fact he was appointed by mistake, and if that mistake has been corrected, it cannot be said that any right of the petitioner has been taken away from him. He has been placed at the place where he should have been, if there had been a proper interpretation as has been made by the State Government.

¶397

***

¶398

If this contention of the learned counsel is accepted that once a person is transferred on promotion to another place, thereafter he cannot be reverted back on representation made by some

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other person, then, in that event, the right of representation will lose all its force. An appointment, where an appeal or revision is possible, is always subject to the result of such appeal or revision.”

¶402

These observations were approved and applied to the facts of another case in Prayag Dass Seth Vrs. Secretary to Government U.P., AIR 1968 Allahabad 279.

¶403

v. In K. Ananthan Pillai Vrs. The State of Kerala, AIR 1968 Kerala 234 (Full Bench), it was held as under:

¶404

“When a person is overnight, as it were, pushed down to a lower post from a higher post he has been holding for over three years and suffers as a consequence a loss of emoluments (in this case, amounting to as much as Rs. 375 per mensum) hardship is necessarily involved even if it be that he had been overnight, and underservedly, pushed upto the higher post. But there is here no question of a reduction in rank attracting Article 311 of the Constitution since the reduction was not by way of penalty and did not cast the least aspersion on the petitioner. The reduction was only a consequence of an order, whether right or wrong, fixing the petitioner‟s proper place in the service in accordance with the service rules. It might perhaps be desirable, as a matter of policy, that, even a purely administrative authority should give a person against whom an

¶405

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order entailing serious consequences, such as a termination of employment or reversion to a lower post, is being made, an opportunity to represent his case if the order depends on an assessment of facts that might be disputed or on rules and orders that might be lost sight of or misinterpreted. But, we do not think that this is required by law unless the order involves some stigma on the person concerned or an adjudication of disputed facts the determination of which, if wrongly made, would have the effect of violating his service rules and therefore of infringing his civil rights, it is only in such cases that an administrative authority and it is not disputed that in making the order. Exhibit p-12., Government acted purely as an administrative authority is under a duty to act judicially so as to attract the rule of natural justice embodied in the maxim audi alteram partem.”

¶408

9.6. Having taken note of above proposition as exposited in the cases referred to supra , this Court has taken an excursion to the evidences available on record. It is transpired from the impugned Order dated 17.06.2010 that reversion of persons holding the promotional post on officiating basis has been directed simpliciter . It is not only effected on the petitioner, but also the same was directed in respect of fifteen other Senior Assistants who were similarly officiating the post of Assistant Manager (Grade-IV). This reversion order appears to have been made as a result of Order dated 07.06.210 read with Order dated 15.06.2010

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(Annexure-B/1 series to the counter affidavit), whereby the post of Branch Manager-II (Grade-IV) has been re-designated as Assistant Manager (Grade-IV). Such being the fact, as argued by learned counsel for the opposite parties, it cannot be said that the impugned order has been passed as a punitive measure discriminating the petitioner.

¶412

9.7. However, Proceeding of the Appointment Committee was held on 21.06.2019 pursuant to decision taken by the President of the Urban Co-operative Bank Limited, in the Proceeding dated 14.05.2018 which was undertaken in order to comply with the direction of this Court contained in Order dated 25.03.2014 in W.P.(C) No.9224 of 2012. It is contended by the opposite parties that the petitioner has made an attempt to jumble up two different causes of action. While the impugned Order in Annexure-7 is on account of reversion to the post of Senior Assistant as has already been observed, the promotions were accorded to forty-six employees who were found suitable to the post of Assistant Manager (Grade-IV). The petitioner is not discriminated, but her performance being found unsatisfactory on account of adverse CCRs for the periods 2007-08, 2008-09 and 2009-10 as well as 2017-18. Even in the year 2023,

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she was not found to have corrected her attitude conducive to the banking employment.

¶416

9.8. Thus, the petitioner along with other fifteen others, who were officiating the post of Branch Manager-II (Grade-IV) [re-designated as Assistant Manager (Grade-IV)], being reverted to original position, i.e., Senior Assistants, this Court finds no ground to entertain the writ petition. Rather, upon communication of adverse CCRs for the periods 200708, 2008-09 and 2009-10 vide Letter Ref. No.801/2014-15, dated 23.05.2014, the petitioner has already preferred appeal before the appropriate authority. Under such premises, this Court desists from issuing writ of certiorarified mandamus to the opposite parties granting relief to the petitioner as prayed for in the writ petition.

¶417

Maintainability of writ petition against the Urban Cooperative Bank Ltd. qua service matters:

¶418

10. On the point of maintainability of writ petition to question the decision taken by the Bank as a policy to release the Senior Assistants from officiating duty in promotional post of Assistant Manager (Grade-IV) vide Order dated 17.06.2010 (Annexure-7), while the finding recorded in the Meeting held on 21.06.2019

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that the Appointment Committee ―found Ms. Rita Priyadarshini Mohanty unsuitable for promotion to the post of Assistant Manager under Grade-IV‖ ―on the grounds of negligence of duty, habitual absenteeism, disobedience and misdemeanour‖ remained unassailed, the learned counsel for the petitioner placed reliance on the decision of Hon‘ble Supreme Court of India in the case of The Kangra Central Cooperative Bank Pensioners Welfare Association Vrs. State of Himachal Pradesh, AIR 2022 SC 3926 = 2022 INSC 826.

¶422

10.1. Having the occasion to go through said judgment, it is felt worthy to take note of the factual position which was discussed in the said reported case:

¶423

“4. During the course of his judgment, the Single Judge dealt with all the relevant submissions including one concerning maintainability of the writ petition and observed as under:

¶424

„19. The learned counsel for the respondents admitted that the State had more than 50 per cent share in the capital of the bank. The Registrar of the Cooperative Societies is a member of Himachal Pradesh Administrative Services. The perusal of the Cooperative Societies Act reveals that the respondentSociety cannot budge even an inch without his approval, therefore, there is deep and pervasive control of the State Government not

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only on its employees by the second respondent as ventilated by the learned counsel for the respondents but also on the working of respondents-Bank, as is evident from the facts in hand that the respondentbank has more than 50% share of the Government, it is financially, functionally and administratively dominated by or is under the control of the State Government, as also the Government nominates members of the Managing Committee (BOD) under Section 35 of Cooperative Societies Act, also 1/3 of the members are appointed by the Registrar under Rule 39 framed under the Act. Even under Rule 49, he is empowered to inter-alia issue general or special orders to the Managing Committee to raise and invest funds. Therefore, the State has a deep and pervasive control on its working. Hence, the respondent-bank is an instrumentality of the State within the meaning of Article 12 of the Constitution. Therefore, in my opinion, the writ is maintainable against the respondentbank.‟

¶428

5. It appears that in a different context, the issue concerning maintainability of a Writ Petition against Kangra Central Co-operative Bank Ltd. („the Bank‟, for short) again came up before the Full bench of the High Court² , which by its judgment dated 14.05.2013 observed as under:

¶429

2 Vikram Chauhan Vrs. The Managing Director, 2013 SCC OnLine HP 1715 = (2013) 6 CTC 720 = AIR 2013 HP 83 (FB) = Latest HLJ 2013 (HP) 742 (FB).

¶430

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„15. For the view taken by us on both facets of the referred questions, we proceed to answer the Reference as under:

¶433

(1) The question as to whether Kangra Bank is a State within the meaning of Article 12 of the Constitution of India, is no more res integra. It has been authoritatively answered by the Apex Court in S.S. Rana‟s case (supra)³ .

¶434

(2) Even in the case of H.P. State Cooperative Bank Ltd., the question has been answered by the Division Bench of our High Court in Chandra Kumar Malhotra‟s case (supra)⁴ . There is no conflicting decision of coordinate Bench of this Court necessitating pronouncement on that question by the Full Bench.

¶435

(3) In the case of Jogindra Central Cooperative Bank, the decision in Mehar Chand‟s case (supra)⁵ is rendered by the learned Single Judge of this Court and no conflicting decision of the co-ordinate Bench much less of the Division Bench or Larger Bench of our High Court with regard to the stated Bank has been brought to our notice. In

¶436

3 S.S. Rana Vrs. Registrar Co-operative Societies, (2006) Supp.(1) SCR 311 = 2006 INSC 251 = (2006) 11 SCC 634.

¶437

4 Chandresh Kumar Malhotra Vrs. H.P.State Coop. Bank and others, 1993(2) Sim.L.C. 243.

¶438

5 Mehar Chand Vrs. Jogindra Central Cooperative Bank, CWP No. 641 of 2002 decided on 26th September, 2007.

¶439

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any case, the said question can be conveniently answered by the Division Bench in appropriate proceedings whether in the form of writ petition or Reference made by the learned Single Judge of this Court, as the case may be. As and when such occasion arises, the issue can be answered on the basis of settled legal principles and including keeping in mind the exposition of S.S. Rana‟s case (supra) of the Apex Court concerning another Cooperative Bank constituted under the Himachal Pradesh State Cooperative Act.

¶442

(4) As regards the second part of the question as to whether a writ would lie against the stated Cooperative Banks, we hold that it is not appropriate to give a definite answer to this question. For, it would depend on several attending factors. Further, even if the said Banks were held to be not a State within the meaning of Article 12, the High Court in exercise of powers under Article 226 of the Constitution of India, can certainly issue a writ or order in the nature of writ even against any person or Authority, if the fact situation of the case so warrants. In other words, writ can lie even against a Corporative Society. Whether the same should be issued by

¶443

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the High Court would depend on the facts of each case.

¶446

16. Accordingly, having answered the referred questions, we direct the Registry to place the concerned writ petitions and the LPA before the appropriate Bench for proceeding on merits in accordance with law.”

¶447

***

¶448

8. Relying on its earlier decision in Sanjeev Kumar Vrs. State of Himachal Pradesh, C.W.P. No. 6709 of 2013 [Judgment dated August 4, 2014] the Division Bench by its judgment and order which is presently under challenge, set aside the view taken by the Single Judge. The matter essentially turned on the issue of maintainability.

¶449

¶450

10. The issue was concerning maintainability

¶451

considered by the Full bench and the observations made by the Full Bench summed up the law on the point quite succinctly. On the facts as found by the Single Judge, which were recorded in paragraph 19 of the judgment, without entering into any other question, in our view, the petition as filed was perfectly maintainable. The Division Bench was in error in setting aside the view taken by the Single Judge in allowing the writ petition and in rejecting the review petition.”

¶452

10.2. What is perceived from the above judgment is that the case proceeded on the basis of material particulars

¶453

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with respect to pervasive control of Government were placed before the Court. The Hon‘ble Supreme Court of India took note of factors, like financial, functional and administrative dominance by or under control of the Government, which weighed in the minds of the High Court to hold that said Bank would come within the fold of ―instrumentality‖ of State as envisaged under Article 12 of the Constitution of India. The matter was pursued by the Kangra Central Co-operative Bank Welfare Association against policy to withdraw benevolent Scheme.

¶456

10.3. In the instant case, the petitioner has not put forth any material particulars with regard to share holding of the State Government, if any. There is also absence of material to ascertain dominance of the Government over the Urban Co-operative Bank Ltd. Pleadings are also silent to ascertain regarding financial, functional and administrative control of the State Government to come to conclusion that there was pervasive control of the Government of Odisha in the affairs of the Bank. Therefore, this Court is of the view that the decision rendered by the Hon‘ble Supreme Court in the case of The Kangra Central Co-operative Bank Pensioners Welfare Association Vrs. State of Himachal Pradesh, AIR 2022 SC 3926 = 2022 INSC 826 is distinguishable

¶457

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on facts. The distinguishing feature in the Kangra Central Co-operative Society Bank Limited, a society registered under the provisions of the Himachal Pradesh Co-operative Societies Act, 1968 has been discussed in Thalappalam Service Cooperative Bank Ltd. Vrs. State of Kerala, (2013) 14 SCR 475, which is taken note of little later .

¶460

10.4. This Court may wish to refer to provisions of Section 68 of the Odisha Co-operative Societies Act, 1962 (―OCS Act‖, for short), which is extracted hereunder:

¶461

“68. Disputes which may be referred to arbitration.—

¶462

(1) Notwithstanding anything contained in any other law for the time being in force, any dispute touching the constitution, management or the business of a Society, other than a dispute required to be referred to the Tribunal and a dispute required to be adjudicated under the Industrial Disputes Act, 1947 (14 of 1947), and a dispute relating to non-payment of contribution to the Co-operative Education Fund referred to in sub-section (3) of Section 56 shall be referred to the Registrar if the parties thereto are among the following, namely:

¶463

(a) the Society, its Committee, past Committee, any past or present Officer or office bearer, any past or present agent, any past or present servant, or the nominee, legal heir or representative of any deceased officer, office-

¶464

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bearer, deceased agent or deceased agent or deceased servant of the Society; or

¶467

(b) a member, past member, or a person claiming through a member, past member or deceased member of the Society, or of a Society which is a member of the Society; or

¶468

(c) a surety of a member, past member or a deceased member, whether such surety is or is not a member of the Society; or

¶469

(d) any other Society.

¶470

Explanation-I.—

¶471

A claim in respect of any sum payable to or by a Society by or to a person or Society mentioned in clauses (a) to (d), shall be a dispute touching the business of the Society within the meaning of this Section, even in case such claim is admitted and the only points at issue are the ability to pay and the manner of enforcement of payment.

¶472

Explanation-II.—

¶473

A claim by a Financing Bank against a member of a Society which is a member of the Financing Bank and indebted to it for the recovery of dues payable by such member to the Society shall be a dispute touching the business of the of the Financing Bank within the meaning of this Section.

¶474

Explanation-III.—

¶475

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¶476

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The question whether a person is or was a member of a Society or not shall be a dispute within the meaning of this Section.

¶478

Explanation-IV.—

¶479

A claim by a surety for any sum or payment due to him from the principal borrower in respect of a loan advanced by a Society shall be a dispute within the meaning of this Section.

¶480

Explanation-V.—

¶481

The question whether a person or any one of his family members is carrying on any business prejudicial to the business or interests of the Society, or whether such family member has common economic interest with such person shall be a dispute within the meaning of this Section.

¶482

(2) Any person, Society, or Financing Bank referring a dispute to the Registrar under sub-section (1) shall deposit in advance such fees as may be prescribed.

¶483

(3) No dispute referred to in this Section shall be entertained in any Civil Court and decision of the Registrar in this respect shall, subject to the provisions of Section 70, be final.

¶484

(4) If any question arises whether a dispute referred to the Registrar under this Section is a dispute touching the constitution, management or the business of a Society, the decision thereon of the Registrar shall be final and shall not be called in question in any Court.

¶485

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(5) Nothing in this Section shall, where the dispute relates to the recovery of the dues of any Society from any of its members be construed to debar any Financing Bank of such Society from referring such dispute to the Registrar.”

¶488

10.5. With the aforesaid unambiguous statutory provision, regard may be had to decision of a co-ordinate Bench of this Court rendered in Natha Kharsel Vrs. Registrar, Cooperative Societies and Others, W.P.(C) No.15129 of 2010, disposed of vide Judgment dated 12.08.2024, wherein Full Bench decision rendered in the case of Banabihari Tripathy Vrs. Registrar of Cooperative Societies, Odisha and Another, 1988 (II) OLR 375, has been followed to decide the issue whether co-operative society is amenable to writ jurisdiction under Article 226/227 of the Constitution of India. It is held that ―The Bhawanipatna Central Cooperative Bank Ltd.‖, by merely getting registered under the OCS Act, does not acquire the status of an ―authority‖ as contemplated in Article 12 of the Constitution of India. After threadbare analysis of constitution of the Cooperative Bank, this Court in Full Bench in the case of Banabihari Tripathy (supra) has set forth as follows: “*** When this writ application was placed before a Division Bench of this Court, it referred the matter to a larger Bench to consider the following two questions:

¶489

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¶491

1 Whether the cooperative societies registered under a Cooperative Societies Act as such will come within the fold of Article 12 of the Constitution of India and are amenable to the writ jurisdiction of the High Court? (In case the answer is in the negative),

¶492

2 Whether the cooperative society is born under any statute or is discharging any such functions which may make it an „instrumentality of the State‟? (Second question is recasted)

¶493

15. ***

¶494

Answer to question No.1.—

¶495

A cooperative society on merely getting registered under the Cooperative Societies Act does not acquire any status of becoming an authority to render it amenable to the writ jurisdiction of the High Court. The supervisory powers given to the Registrar is with the objects of better working of the societies and to give them guidance of welltrained or expert officers.

¶496

Answer to question No.1.—

¶497

If a Cooperative Bank is born under or created by statute, then it may acquire the status of an „authority‟ within the meaning of Article 12 of the Constitution. Otherwise, it has to satisfy the essential tests formulated by the various decisions of the Supreme Court for which, however, there cannot be a straitjacket formula. However, it may not be necessary that

¶498

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the society must satisfy all the tests for qualifying to be an „authority‟ and in a given case, only some of the prominent features may give it that status. But that must be so predominant that on tearing the veil, it may appear that the society is merely a projection of the State, the voice being that of a State and the hands also of the State .

¶501

16. As a result of the above discussion, I unhesitatingly come to the irresistible conclusion that this application is not maintainable and is accordingly dismissed. The petitioner, however, will be at liberty to seek his remedy, if any, available under the general law.”

¶502

10.6. Natha Kharsel (supra) was a case where challenge was against termination of service of Cadre Secretary of the Bhawanipatna Central Cooperative Bank Ltd. which got confirmed by an appellate order. Writ petition being filed against such decision, this Court, while dismissing said petition, observed in Natha Kharsel (supra) as follows:

¶503

“Moreover, Section 67B of the OCS Act provides for an alternative forum with regard to the dispute arising in connection with the disciplinary action taken by a Society or its Committee against any paid servant of the Society. Similarly Section 113 of the OCS Act also provides for an alternative forum in the State Government to exercise the power of revision, wherein the grievance of the petitioner could have been looked into, but the petitioner has neither approached the

¶504

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Tribunal nor the State to invoke/exercise original or revisional power to redress this grievance.”

¶507

10.7. This Court wishes to have regard to a decision rendered in the case of Radhakrishna Vrs. Aditya Birla Finance Ltd., 2020 SCC OnLine Ori 189, wherein it has been observed as follows:

¶508

“9. In this context, it would be profitable to refer to the decision of the Supreme Court as rendered in the case of Federal Bank Ltd. Vrs. Sagar Thomas, reported in AIR 2003 SC 4325. Though the said judgment is rendered in the context of a private company carrying on banking business, the ratio of the said decision can apply with equal force to non-banking financial company like opposite party No.1 which stands more or less on the same footing. There the Supreme Court has made it clear that a writ petition under Article 226 of the Constitution of India may be maintainable against

¶509

(i) the State (Govt.);

¶510

(ii) Authority;

¶511

(iii) a statutory body;

¶512

(iv) an instrumentality or agency of the State;

¶513

(v) a company which is financed and owned by the State;

¶514

(vi) a private body run substantially on State funding;

¶515

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(vii) a private body discharging public duty or positive obligation of public nature;

¶518

(viii) a person or a body under liability to discharge any function under any Statute, to compel it to perform such a statutory function.

¶519

In such background, on the private banking company, the Supreme Court observed that the banking is a kind of profession and a commercial activity and the primary motive behind it is to earn returns and profits. It works like any other private company in the banking business having no monopoly status. These companies have been voluntarily established for their own purpose and interest but their activities are kept under check so that their activities may not go way ward and harm the in the economy general. After discussing provisions of the Reserve Bank of India Act and Banking Regulation Act, the Supreme Court held that the guidelines provided therein are to maintain proper fiscal discipline and if need arises, the management of the company can be taken over. Therefore, the above noted Acts as discussed earlier mainly contain regulatory provisions to keep a check on their functioning and provide guidelines and do not reflect participatory dominance or control over the affairs of such company. In such back ground, these private companies would normally not be amenable to the writ jurisdiction. But in certain circumstances, a

¶520

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writ may issue against such private bodies where these violate statutory provisions. When there is no violation of any statutory provisions, a writ may not be issued at all. It also made clear that there is nothing on the basis of which it can be said that carrying on the profession of banking as akin to carrying on Governmental functions. Rather banking is an old profession in one form or the other carried on by individuals or by a group of them. Losses incurred in the business are theirs as well as the profits. Any business or commercial activity-may be banking or others no doubt have impact on the economy of the country in general, but such activities cannot be classified as one falling in the category of discharging of duties/functions of public nature. Merely because the Reserve Bank of India lays the banking policy in the interest of the banking system or in the interest of monetary stability, it does not mean that private companies carrying on the business of banking, discharge any public function or public duty. Thus, ultimately, the Supreme Court held that the writ petition against Federal Bank is not maintainable.

¶523

10. Hence as indicated earlier on an analysis of different provision of the Reserve Bank of India Act, 1934, it is clear that the non-banking financial companies only indulge in ordinary business or commercial activities which cannot be described as akin to Governmental function. Therefore, following the ratio of the above noted judgment, these activities cannot be classified as one falling under the category of discharging of public

¶524

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¶526

function or public duty. Thus the opposite party No.1 cannot be covered either under parameter (vii) or (viii) as delineated in Federal Bank case (supra). Admittedly other six parameters are not attracted to the present case. The above ratio has also been referred to in the decision of the Supreme Court in the case of Ramakrishna Mission Vrs. Kago Kunya, reported in (2019) 5 Scale 559 = (2019) 5 SCR 452.”

¶527

10.8. It may also be worthy to note the decision of the Hon‘ble Supreme Court of India in State of Assam Vrs. Barak Upatyaka D.U. Karmachari Sanstha, (2009) 4 SCR 467 , wherein following observations find place:

¶528

“2. CAMUL is a society registered under the Assam Co-operative Societies Act, 1949 („Act‟ for short). Respondent, a Trade Union representing the workers of CAMUL, filed the said writ petition (Civil Rule No.2996 of 1995) contending that the State Government formed and registered CAMUL as a co-operative society to run its cattle development project; that its Board of Directors the Director a

¶529

including Managing (always Government servant, on deputation) were appointed by the State Government; that the post of the Managing Director of CAMUL was declared to be a post equivalent to a Head of Department under the State Government; that initially the entire staff of CAMUL were drawn on deputation from the Veterinary, Agriculture & Co-operative Departments of the State Government; that in a phased manner, those employees were reverted

¶530

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¶531

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back to their Parent Departments and replaced by the staff appointed by CAMUL, through a Selection Board set up by the State Government with representatives from the Central Government and National Dairy Development Board; that State Government sanctioned the staffing pattern of CAMUL; that from the year 1982-83 onwards the Government was extending financial assistance by way of grants to CAMUL to meet the expenditure (including the expenditure relating to its employees); and that for the years 1994-95 though the State Government had sanctioned financial assistance in a sum of Rs. 7 lakhs as it was not disbursed and grant-in-aid, consequently CAMUL did not pay the monthly salaries to its employees from December 1994 onwards. It is contended that State Government had all pervasive control over the affairs and management of CAMUL and therefore it should be treated as a department of Government of Assam, though registered as a co-operative society by lifting the corporate veil. It was further contended that State Government was responsible and liable to pay the salaries and emoluments of the employees of CAMUL and it was not justified in withholding the grant amount. The respondent union therefore sought a direction to the State Government to release the arrears of pay and allowances of employees of CAMUL with effect from December 1994 and for a direction to continue to pay the salary and allowances to the employees of CAMUL, every month in future. In addition to the State Government (respondent No.1) and its officers (respondents 2 to 4), the

¶533

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¶535

Union of India (respondent No.5) and CAMUL and its Managing Director (respondents 6 and 7) were impleaded as parties to the writ petition.

¶536

***

¶537

5. The various averments of the respondent in the writ petition, about the all pervasive financial, administrative and functional control of CAMUL by the State Government, even if assumed to be true, may at best result in CAMUL being treated as „State‟ within the meaning of that expression under Article 12 of the Constitution of India. If it is a „State‟, in case of violation of any of the fundamental rights of its employees, by CAMUL as employer, the employees were entitled to claim relief against CAMUL, by taking recourse to a writ petition under Article 226 of the Constitution of India. But the fact that a corporate body or cooperative society answers the definition of „State‟ does not make it the „State Government‟, nor will the employees of such a body, become holders of civil posts or employees of the State Government. Therefore the fact that the CAMUL may answer the definition of „State‟ does not mean that the State Government is liable to bear and pay the salaries of its employees. CAMUL indisputably is a co-operative society registered under the provisions of the Assam Cooperative Societies Act, 1949. Section 85 of the said Act provides that every registered society shall be deemed to be a body corporate by the name under which it is registered, with perpetual succession and a common seal, and with power to hold property, to

¶538

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¶539

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¶540

enter into contracts, institute and defend suits and other legal proceedings and to do all things necessary for the purposes for which it was constituted. Therefore, CAMUL, even if it was „State‟ for purposes of Article 12, was an independent juristic entity and could not have been identified with or treated as the State Government. ***”

¶541

10.9. A writ, therefore, lies only against a person if it is a statutory body or performs a public function or discharges a public or a statutory duty, or a ‗State‘ within the meaning of Article 12 of the Constitution. (Vide, Anandi Mukta Sadguru Trust Vrs. V.R. Rudani, AIR 1989 SC 1607; VST Industries Ltd. Vrs. VST Industries Workers‟ Union & Anr., (2001) 1 SCC 298; and State of Assam Vrs. Barak Upatyaka U.D. Karamchari Sanstha AIR 2009 SC 2249) .

¶542

10.10. In Anandi Mukta Sadguru Trust Vrs. V.R. Rudani, AIR 1989 SC 1607 it has been succinctly stated that the phrase ―any person or authority‖ employed in Article 226 of the Constitution of India is not confined to statutory bodies and Government instrumentalities. Instead, it extends to any individual or entity engaged in performing a public function.

¶543

10.11. Decision in K.K. Saksena Vrs. International Commission on Irrigation and Drainage, (2014) 14 SCR

¶544

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¶546

892, laid down the principles to determine whether an institution can be said to be comprehended in the connotation of ―State‖ so as to fall within the ken of Article 12 of the Constitution of India:

¶547

“15. The Court also took into consideration and referred to the following passage from the judgment in Pradeep Kumar Biswas & Ors. Vrs. Indian Institute of Chemical Biology & Ors., (2002) 5 SCC 111:

¶548

„40. The picture that ultimately emerges is that the tests formulated in Ajay Hasia Vrs. Khalid Mujib Sehravardi, (1981) 1 SCC 722 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.‟

¶549

16. The aforesaid judgment was relied upon by another Constitution Bench in M/s. Zee Telefilms Ltd. & Anr. Vrs. Union of India & Ors., (2005) 4

¶550

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¶551

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¶552

SCC 649. In that case, the Court was concerned with the issue as to whether Board of Control for Cricket in India (BCCI) is a „State‟ within the meaning of Article 12 of the Constitution. After detailed discussion on the functioning of the BCCI, the Constitution Bench concluded that it was not a „State‟ under Article 12 and made the following observations in this behalf:

¶553

„30. However, it is true that the Union of India has been exercising certain control over the activities of the Board in regard to organising cricket matches and travel of the Indian team abroad as also granting of permission to allow the foreign teams to come to India. But this control over the activities of the Board cannot be construed as an administrative control. At best this is purely regulatory in nature and the same according to this Court in Pradeep Kumar Biswas case [(2002) 5 SCC 111] is not a factor indicating a pervasive State control of the Board.‟

¶554

17. Before arriving at the aforesaid conclusion, the Court had summarized the legal position, on the basis of earlier judgments, in para 22, which reads as under:

¶555

„22. Above is the ratio decidendi laid down by a seven-Judge Bench of this Court which is binding on this Bench. The facts of the case in hand will have to be tested on the touchstone of the parameters laid down in Pradeep Kumar Biswas case [(2002) 5 SCC 111]. Before doing so it would be worthwhile

¶556

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¶557

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¶558

once again to recapitulate what are the guidelines laid down in Pradeep Kumar Biswas case [(2002) 5 SCC 111] for a body to be a State under Article 12. They are:

¶559

„(1) Principles laid down in Ajay Hasia [(1981) 1 SCC 722] 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.

¶560

(2) The question in each case will have to be considered on the basis of facts available as to whether in the light of the cumulative facts as established, the body is financially, functionally, administratively dominated, by or under the control of the Government.

¶561

(3) Such control must be particular to the body in question and must be pervasive.

¶562

(4) Mere regulatory control whether under statute or otherwise would not serve to make a body a State.”

¶563

10.12. In the case of Thalappalam Service Cooperative Bank Ltd. Vrs. State of Kerala, (2013) 14 SCR 475, it has been observed by the Hon‘ble Supreme Court of India as follows:

¶564

“17. Societies are, of course, subject to the control of the statutory authorities like Registrar, Joint

¶565

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¶566

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¶567

Registrar, the Government, etc. but cannot be said that the State exercises any direct or indirect control over the affairs of the society which is deep and all pervasive. Supervisory or general regulation under the statute over the co-operative societies, which are body corporate does not render activities of the body so regulated as subject to such control of the State so as to bring it within the meaning of the „State‟ or instrumentality of the State. Above principle has been approved by this Court in S.S. Rana Registrar, Co-operative Societies and Another, (2006) 11 SCC 634. In that case this Court was dealing with the maintainability of the writ petition against the Kangra Central Co-operative Society Bank Limited, a society registered under the provisions of the Himachal Pradesh Co-operative Societies Act, 1968. After examining various provisions of the H.P. Cooperative Societies Act this Court held as follows:

¶568

„9. It is not in dispute that the Society has not been constituted under an Act. Its functions like any other cooperative society are mainly regulated in terms of the provisions of the Act, except as provided in the bye-laws of the Society. The State has no say in the functions of the Society. Membership, acquisition of shares and all other matters are governed by the bye-laws framed under the Act. The terms and conditions of an officer of the cooperative society, indisputably, are governed by the Rules. Rule 56, to which reference has been made

¶569

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¶570

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¶571

by Mr. Vijay Kumar, does not contain any provision in terms whereof any legal right as such is conferred upon an officer of the Society.

¶572

10. It has not been shown before us that the State exercises any direct or indirect control over the affairs of the Society for deep and pervasive control. The State furthermore is not the majority shareholder. The State has the power only to nominate one Director. It cannot, thus, be said that the State exercises any functional control over the affairs of the Society in the sense that the majority Directors are nominated by the State. For arriving at the conclusion that the State has a deep and pervasive control over the Society, several other relevant questions are required to be considered, namely,

¶573

(1) How was the Society created?

¶574

(2) Whether it enjoys any monopoly character?

¶575

(3) Do the functions of the Society partake to statutory functions or public functions? and

¶576

(4) Can it be characterised as public authority?

¶577

11. Respondent 2, the Society does not answer any of the aforementioned tests. In the case of a non-statutory society, the control thereover would mean that the same

¶578

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¶579

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satisfies the tests laid down by this Court in Ajay Hasia Vrs. Khalid Mujib Sehravardi, (1981) 1 SCC 722. [See Zoroastrian Coop. Housing Society Ltd. Vrs. Distt. Registrar, Coop. Societies (Urban).]

¶581

12. It is well settled that general regulations under an Act, like the Companies Act or the Cooperative Societies Act, would not render the activities of a company or a society as subject to control of the State. Such control in terms of the provisions of the Act are meant to ensure proper functioning of the society and the State or statutory authorities would have nothing to do with its day-to-day functions.‟

¶582

18. We have, on facts, found that the Co-operative Societies, with which we are concerned in these appeals, will not fall within the expression „State‟ or „instrumentalities of the State‟ within the meaning of Article 12 of the Constitution and hence not subject to all constitutional limitations as enshrined in Part III of the Constitution.”

¶583

10.13. This Court in the case of Ch. Ajeet Kumar Das Vrs. Registrar, Co-operative Societies, Odisha, W.P.(C) No.18641 of 2020, vide Judgment dated 31.07.2024 has taken the view that the Cuttack Central Cooperative Bank neither falls within the meaning of ―State‖ nor ―instrumentality of the State‖ as envisaged under Article 12 of the Constitution of India.

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10.14. In Kulwinder Singh Vrs. State of Haryana, 2019 (2) ILR-Punjab and Haryana 1036 it has been stated as follows:

¶587

“(6) It is a settled principle of law that the writ petition is only maintainable against the Government or instrumentality of the State as envisaged under Article 12 of the Constitution of India. The Hon‟ble Supreme Court of India has laid down guidelines as to when the Cooperative Society can be treated as an instrumentality of the State so that the writ petition is maintainable. In General Manager, Kisan Sahkari Chini Mills Ltd., Sultanpur, U.P. versus Satrughan Nishad and others, (2003) 8 SCC 639, the Hon‟ble Supreme Court of India has held that there should be a deep and persuasive control of the Government over the Cooperative Society not only administratively but financially as well, so as to treat the said Cooperative Society as an instrumentality of the State. In Satrughan Nishad‟s case (supra), where the Government had 50% of the share, was treated as non-amenable to the writ jurisdiction. The relevant paragraph of the said judgment is as under:

¶588

„7. In the case of Pradeep Kumar Biswas Vrs. Indian Institute of Chemical Biology and others (2002) 5 SCC 111, a Bench of seven Judges of this Court, in para 27 of its judgment has noted and quoted with approval in extenso the aforesaid tests propounded in International Airport Authority case (supra) [Ramana Dayaram Shetty Vrs. International Airport Authority of India,

¶589

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(1979) 3 SCC 489] and approved in the case of Ajay Hasia (supra) for determining as to when a corporation can be said to be an instrumentality or agency of the Government so as to come within the meaning of the expression „authority‟ in Article 12 of the Constitution. There the Bench referred to the case of Chander Mohan Khanna Vrs. NCERT (1991) 4 SCC 578 where, after considering the memorandum of association and the rules, this Court came to the conclusion that NCERT was largely an autonomous body and its activities were not wholly related to governmental functions and the government control was confined only to the proper utilisation of the grants and since its funding was not entirely from Government resources, the case did not satisfy the requirements of the State under Article 12 of the Constitution. Further, reference was also made in that case to the decision of this Court in Mysore Paper Mills Ltd. Vrs. Mysore Paper Mills Officers‟ Association and another, (2002) 2 SCC 167, where it was held that the company was an authority within the meaning of Article 12 of the Constitution as it was substantially financed and financially controlled by the Government, managed by a Board of Directors nominated and removable at the instance of the Government and carrying on important functions of public interest under the control of the Government.‟

¶592

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(7) Further, this Court while deciding CWP No.10234 of 2014 titled as Rajbir Singh versus The Sonepat Central Cooperative Bank Ltd., Sonepat and another, decided on 15.09.2018, has held that even the Sonepat Central Cooperative Bank has been held to be not amenable to the writ jurisdiction of this Court. This Court relied upon Satrughan Nishad‟s case (supra) to hold that the Cooperative Societies are not amenable to the writ jurisdiction of this Court. ***”

¶595

10.15. In absence of material as to consideration that the Urban Co-operative Bank Limited is under the pervasive control of the State Government, it may be beneficial to have regard to decision of this Court in the case of Pradeep Kumar Dhal Vrs. State of Odisha, 2023 (II) ILR-CUT 569 rendered in connection with issue of writ with respect to service matter. The following observations are quoted from the said decision:

¶596

“This Court finds that the very same question as posed above came up for consideration before the Apex Court recently in the case of St. Mary‟s Education Society and Another Vrs. Rajendra Prasad Bhargava and others, reported in 2022 SCC OnLine SC 1091 = (2023) 4 SCC 498. In the said case the following issues were framed for determination:

¶597

(a) Whether a writ petition under Article 226 of the Constitution of India is maintainable against a private unaided minority institution?

¶598

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(b) Whether a service dispute in the private realm involving a private educational Institution and its employee can be adjudicated in a writ petition filed under Article 226 of the Constitution? In other words, even if a body performing public duty is amenable to writ jurisdiction, are all its decisions subject to judicial review or only those decisions which have public element therein can be judicially reviewed under the writ jurisdiction?

¶601

(c) Analyzing the law on the subject, the Apex Court held that the School discharges a public duty by imparting education, which is a fundamental right of the citizen. However, judicial review of the action challenged by a party can be had by resort to the writ jurisdiction only if there is a public law element and not to enforce a contract of personal service. It was further clarified that a contract of personnel service includes all matters relating to the service of employee— confirmation, suspension, transfer and termination etc. It was therefore held that a writ of mandamus can be issued against a private body, which is not a „State‟ within the meaning of Article 12 of the Constitution of India, but there must be a public law element involved and it cannot be exercised to enforce purely private contracts entered into by the parties. It was also held that in case of retirement and in case of termination, no public law element is involved. It also referred to the decision of the Apex Court in the case of Trigun Chand Thakur.

¶602

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„45. In the case of Trigun Chand Thakur Vrs. State of Bihar, reported in (2019) 7 SCC 513, this Court upheld the view of a Division Bench of the Patna High Court which held that a teacher of privately managed school, even though financially aided by the State Government or the Board, cannot maintain a writ petition against an order of termination from service passed by the Management.‟ ***”

¶605

10.16. The Hon‘ble Supreme Court while deciding maintainability of the writ petition to exercise the power of judicial review in the context of service conditions vis-à-vis involvement of public element in the case of St. Mary‟s Education Society Vrs. Rajendra Prasad Bhargava, 2022 SCC OnLine SC 1091 = (2023) 4 SCC 498 = (2022) 8 SCR 301 observed as follows (paragraph 28 of SCR):

¶606

“We may at the outset state that the CBSE is only a society registered under the Societies Registration Act, 1860 and the school affiliated to it is not a creature of the statute and hence not a statutory body. The distinction between a body created by the statute and a body governed in accordance with a statute has been explained by this Court in the Executive Committee of Vaish Degree College Vrs. Lakshimi Narain, (1976) 2 SCC 58, as follows:

¶607

„It is, therefore, clear that there is a well marked distinction between a body which is created by the

¶608

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statute and a body which after having come into existence is governed in accordance with the provisions of the statute. In other words, the position seems to be that the institution concerned must owe its very existence to a statute which would be the fountain-head of its powers. The question in such cases to be asked is, if there is no statute would the institution have any legal existence. If the answer is in the negative, then undoubtedly it is a statutory body, but if the institution has a separate existence of its own without any reference to the statute concerned but is merely governed by the statutory provisions it cannot be said to be a statutory body.‟ ***”

¶611

10.17. With such conspectus, when the instant matter is examined this Court finds no material particulars on record being furnished nor did the learned Advocate for the petitioner argue to demonstrate that contrary view could be taken than that is taken by the Full Bench of this Court and in the light of other decisions as referred to above. Nothing tangible has been placed before this Court to show that the State exercises any direct or indirect control over the affairs of the Bank for deep and pervasive control. It cannot, thus, be said that the State exercises any functional control over the affairs of the Society-Bank. There exists no pleadings whatsoever to show that the Urban Co-operative Bank Ltd. falls within the meaning of Article 12 of the Constitution or is under an obligation

¶612

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to discharge any statutory function vis-a-vis the grievance raised by the petitioner.

¶615

10.18. Thus, for the reasons ascribed herein above, the writ petition is not maintainable.

¶616

Conclusion:

¶617

11. Diligently considered each aspect of challenge made by the petitioner and found no good ground being made to issue writ of certiorarified mandamus.

¶618

11.1. As against the point of challenge that the reversion of the petitioner to the original position, i.e., Senior Assistant, by virtue of Order dated 17.06.2010 (Annexure-7) being in consequence of re-designation of the post of Branch Manager-II (Grade-IV) vide Order dated 07.06.2010 read with Order dated 15.06.2010, the argument of the counsel that the petitioner was downgraded is untenable inasmuch as she was reverted along with fifteen others to original position of Senior Assistants from the officiating promotional post of Assistant Manager (Grade-IV).

¶619

11.2. As against questioning the propriety of consideration of adverse remarks for the periods 2007-08, 2008-09 and 2009-10 for the purpose of promotion in discrimination to other forty-six Senior Assistants, stated to be juniors, this Court being brought to the

¶620

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notice that the petitioner had already approached the appropriate authority in appeal in compliance of suggestion in Letter Ref. No.801/2014-15, dated 23.05.2014 of the Urban Co-operative Bank Limited (Annexure-10). Furthermore, the Appointment Committee in its Meeting held on 21.06.2019 has considered the adverse remarks in CCRs for the periods 2007-08, 2008-09 and 2009-10 as also 201718 and observed

¶623

“It is observed that from the time she got promoted to Grade-V Service to till date, her overall performance is not found to be satisfactory as her personal file continues to swell by explanations called for on the grounds of negligence in duty, habitual absenteeism, disobedience and misdemeanour. Therefore, the Committee found Miss Rita Priyadarshini Mohanty unsuitable for promotion to the post of Assistant Manager under Grade-IV and turned down her representation claiming promotion to the post.”

¶624

11.3. Such finding of fact has been recorded by the Appointment Committee comprising President, VicePresident, Member and Chief Executive Officer (InCharge) pursuant to direction of this Court contained in Order dated 25.03.2014 passed in W.P.(C) No.9224 of 2012. Said finding of fact, being not assailed in the writ petition, it is not prudent for this Court to consider such aspect in the writ petition.

¶625

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11.4. So far as maintainability of writ petition against the Urban Co-operative Bank Limited in connection with service matter, for the reasons already discussed supra this Court declines to entertain the present writ petition.

¶628

12. In the wake of above, this Court does not find any merit to show indulgence in the writ petition. Accordingly, the writ petition stands dismissed with no order as to costs.

¶629

(MURAHARI SRI RAMAN) JUDGE

¶630

High Court of Orissa, Cuttack The 21^st October, 2024//Aswini/Suchitra

¶631

Signature Not Verified

¶632

Digitally Signed Signed by: ASWINI KUMAR SETHY Designation: Personal Assistant (Secretary-in-charge) Reason: Authentication Location: ORISSA HIGH COURT, CUTTA CK Date: 23-Oct-2024 14:31:29

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W.P.(C) No.6100 of 2023

Rita Priyadarsini Mohanty v. State of Odisha

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Rita Priyadarsini Mohanty v. State of Odisha

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