Calcutta High Court (Appellete Side)
For The vs K.B.N. Visweswar Rao Reported In (1996) ... on 15 March, 2012
Author: Aniruddha Bose
Bench: Aniruddha Bose
1
3 & 15.03.12 W.P. 4097 (W)_of 2012.
4 With
ab W.P. 4098 (W) of 2012
Mr. Dipak Kumar Shome
Mr. Lakshminath Bhattacharya
... For the Petitioners.
Mr. S. N. De
... For the Respondent Nos. 3 and 4.
Ms. Sipra Majumder Mr. Suman Sengupta ... For the State Respondents.
Supplementary affidavit filed in Court today be kept on record. Leave is given to the petitioner to implead the West Bengal State Co-operative Bank Limited as a party respondent in this matter. For this purpose, let the cause title be amended here and now. Mr. De, learned Counsel appearing for the Managing Director of the Bank accepts service on behalf of the bank. Hence no further service is directed to be effected on the bank.
The writ petitioners have described themselves in these proceedings as unemployed youth and are desirous of participating in a selection process for the posts of subordinate staff in the West Bengal State Co-operative Bank Limited, being the added respondents in both the petitions. The selection process for filling up these posts has already commenced and it is submitted by Mr. De, learned Counsel for the bank that the candidates who are being considered for the said posts are only those persons whose names have been recommended by the employment exchange on the basis of requisition sent by the bank. The main case of the petitioners is that 2 the recruitment proceeding is invalid as no public advertisement has been effected inviting applications from all aspiring eligible candidates meeting the essential qualification criteria. This is the mode which has been prescribed by the Supreme Court for filling up of posts in public employment in the case of Excise Superintendent, Malkapatnama Vs. K.B.N. Visweswar Rao reported in (1996) 6 SCC
216. Mr. Shome, learned Senior Counsel appearing for the petitioners has also brought to my notice Rule 105 of the West Bengal Co-operative Societies Rules which specifically provides for publication of advertisement at least in one national daily newspaper notifying the vacancies, apart for requisition from the employment exchange.
Preliminary objection has been raised by Mr. De on maintainability of this writ petitions on the ground that the respondent bank is not amenable to the Constitutional Writ Jurisdiction of this Court as this is not owned or controlled by the State or any of its agencies. This aspect of the matter however has already been examined by a Division Bench of this Court in the case of Arjed Ali Gazi Vs. State of West Bengal reported in (1990) 2 CHN 284 and it has been held in that judgment that in the event a society operates under statutory rule, then any individual aggrieved by the breach of such statutory rule can maintain a writ petition before this Court. In such a situation, the society would be treated as an authority within the meaning of Article 226 of the Constitution of India. The said ratio has subsequently been applied by a Division Bench judgment of this Court in the case of Bhabani Adhikari Vs 3 West Bengal State Co-operative Bank Limited & Ors. Reported in 2009(1) CHN 573 where this Court invoked its Constitutional Writ Jurisdiction in a disciplinary proceeding initiated against an employee of the same bank.
Mr. De however has relied on an unreported judgement of an Hon'ble Single Judge of this Court in W.P. No. 13080 (W) of 2011 in the case of Mousumi Bose (Bandyopadnyay) Vs. West Bengal State Co-operative Bank Limited delivered on 17th January, 2012. In that proceeding, complain of the writ petitioner was over a promotional process in the said bank. It was held that such dispute could be agitated before the Writ Court as there was no breach of any statutory rule alleged by the writ petitioner in that proceeding. Mr. De submitted that Rule 105 is not applicable in the case of Co-operative Credit Structure Entities which is guided by Chapter XIIIA of the West Bengal Co-operative Societies Act, 2006, and hence there is no statutory rule guiding recruitment in the said bank. Section 134A of the Act, which confers certain degree of autonomy to such banks stipulates :-
"134A. Overriding effect.- Notwithstanding anything contrary or inconsistent contained in this Act or the rules framed thereunder or by-laws of any registered society or orders issued thereunder, the provisions of this Chapter shall have overriding effect".
He has brought to my notice sub-section 2 of Section 134C of the Act which provides :-
"134C. Special provisions applicable to the Co- 4 operative Credit Structure Entities.- (1) ...
(2) A Co-operative Credit Structure Entity shall have autonomy in all financial and internal administrative matters including the following areas:-
(a) interest rates on deposits and loans;
(b) borrowing and investments;
(c) loan policies and individual loan
decisions;
(d) personnel policy, staffing, recruitment, posting and compensation to staff;
(e) internal control systems, appointment of auditors and compensation for the audit:
Provided that in the case of Co-operative Credit Structure Entities other than the State Co-operative Agricultural and Rural Development Bank and Co- operative agricultural and rural development bank, the interest rates on deposits and loans shall be in conformity with the guidelines issued by the Reserve Bank of India :
Provided further that in the case of the state Co- operative agriculture and rural development bank and Co-operative agriculture and rural development banks, the interest rates on deposits and loans shall be in 5 conformity with the guidelines issued by the National Bank".
Referring to sub-clause (d) of the said provision, he submitted that policy relating to recruitment of staff is within the exclusive domain of a Co-operative Credit Structure Entity, which character the bank here fulfils, and hence the said provision overrides the mandate of Rule 105 of the said rules. In my opinion however, the autonomy contemplated in Section 134C (2) of the said Act in relation to recruitment cannot be construed to insulate the bank from its obligations to adhere to a transparent recruitment process contemplated in the said Rule. The expression "autonomy" employed in the said provision ought to be given a narrow interpretation, and may imply specifying eligibility criteria relating to recruitment. The mandate of open advertisement as contained in Rule 105, which in turn incorporates the principle enunciated by the Supreme Court in the case of K.B.N. Visweswar Rao (Supra) cannot be overridden in exercise of such autonomy. Such construction would offend the provisions of Article 14 of the Constitution of India.
In this proceeding, the character of bank comes 6 within the ambit of the expression "authority" within the meaning of Article 226 of the Constitution of India. Once the bank fulfills this character, they cannot escape from the constitutional mandate of following an open selection process which gives opportunity to participate in such process to the wider selection of population. To that extent, Section 134C of the said Act cannot supersede the constitutional mandate or the provision of rule 105.
I accordingly reject the submissions made on behalf of the respondents that the bank is not amenable to the Writ Jurisdiction of this Court on the issue of recruitment. In the case of Mousumi Bose (Bandyopadhyay), (supra) the issue related to promotion and there was no rule guiding promotion of employees. Thus the said judgment is distinguishable in fact so far as the present proceeding is concerned.
Now the question arises as to what relief the petitioners would be entitled to. In the supplementary affidavit filed in Court today, it has been stated that the interview is going to start from 25th March, 2012. I do not want to disturb the process of interview for which the bank already must have had made arrangements. But in my opinion the recruitment process should not be 7 confined to only those candidates. Their performance evaluation may be kept in a sealed cover. For the same posts, the bank should make public advertisement in the manner contemplated in Rule 105, preferably within a period of three weeks from the date of communication of this order. On the basis of such advertisement, selection process shall be conducted again and performance of the candidates who respond to such advertisement as well as those called for interview and/or written test already shall be assessed in a composite manner and selection shall be made on that basis. The petitioners shall be entitled to respond to the advertisement to be published if they meet the eligibility criteria evolved by the bank. On that basis, their performance shall also be evaluated along with other aspiring candidates for the said posts.
The writ petition stands allowed in the above terms. I have not called for any affidavit in this matter as what has been argued by Mr. Shome, on behalf of the petitioners is purely questions of law and I felt there is no need to call for any affidavit for effective adjudication of these two writ petitions.
There shall, however be, no order as to costs. Urgent photostat certified copy of this order, if 8 applied for, shall be supplied to the learned Counsel for the parties, as expeditiously as possible.
(Aniruddha Bose, J.)