Calcutta High Court (Appellete Side)
Mousumi Bose (Bandyopadhyay) vs The West Bengal State Co-Operative Bank ... on 17 January, 2012
Author: Biswanath Somadder
Bench: Biswanath Somadder
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Biswanath Somadder
W.P.13080 (W) of 2011
Mousumi Bose (Bandyopadhyay)
Vs.
The West Bengal State Co-Operative Bank Ltd. & Ors.
For the Petitioners : Mr. Koushik Chanda,
Mr. Debajyoti Adhikari,
Mr. S. M. Obaidullah.
For Respondent
Nos. 1,2,4 & 5 : Mr. Tarun Kumar Roy, Sr. Advocate,
Mr. Sudhindra Nath,
Mr. Arnab Ray.
Heard on : 17.01.2012
Judgment on : 17th January, 2012
Biswanath Somadder, J. : On 5th December, 2011, when this matter was initially taken up for consideration, this Court had directed the respondent, West Bengal State Co-operative Bank Limited, to file a report in the form of an affidavit on the next date giving details of the selection process held by the said Bank relating to promotion of its staff officers to the post of Assistant General Manager, in terms of the notice dated 11th February, 2011, being annexure 'P-9' to the writ petition. The point of maintainability of the writ petition, as sought to be raised by the learned senior counsel representing the West Bengal State Co- operative Bank Limited was, however, kept open.
The report in the form of an affidavit has since been filed on behalf of the West Bengal State Co-operative Bank Limited.
Today, the matter is taken up for final consideration and has been heard at length.
The subject matter of challenge in the instant writ petition is with regard to a selection process initiated by the West Bengal State Co-operative Bank Limited for promotion from the rank of staff officer to the post of Assistant General Manager. The petitioner was one of the staff officers who participated in the selection process. By a notice dated 11th February, 2011, names of all the staff officers who had participated in the selection process were published in their respective order of merit. The petitioner was placed under serial number six. Since the total number of vacancies for the post of Assistant General Manager was five, the petitioner could not be accommodated on promotion to the said post. She, thereafter, filed the instant writ petition challenging the selection process.
Learned counsel appearing for the petitioner submits that in the facts of the instant case it would be clear that the selection process was conducted in breach of the statutory rules. He further submits that whenever there is a breach of any statutory rule, a writ is maintainable. He relies on a Division Bench judgment of this Court rendered in the case of Bhabani Adhikari Vs. West Bengal State Co-operative Bank Limited & Ors., reported in 2009(1) CHN 573 on the point of maintainability of the instant writ petition. However, in answer to this Court's query as to which specific statutory rule he was referring to, the learned counsel although referring generally to the West Bengal State Co- operative Rules, is unable to pinpoint out any rule in particular, breach whereof would make the instant matter amenable to writ jurisdiction.
On the other hand, learned senior counsel representing the West Bengal State Cooperative Bank Limited refers to the West Bengal Cooperative Societies Act, 2006, and the Rules framed thereunder, which came into effect from 18th January, 2011. In particular, he refers to section 3(ii) and also Chapter XIIIA of the said Act of 2006 and submits that it will be apparent therefrom that the scheme of the statute provides complete autonomy with regard to management and administration of cooperative societies which are essentially democratic organisations controlled by its members who actively participate in setting its policies and making decisions. He further submits that the special provisions introduced under Chapter XIIIA in respect of Cooperative Credit Structure Entities makes it abundantly clear that such entities have complete autonomy in all financial and internal administrative matters including personnel policy, staffing, recruitment, posting and compensation to staff, amongst others. To buttress his submission, he relies on a recent judgment of the Supreme Court rendered in the case of Andhra Pradesh Dairy Development Corporation Federation Vs. B. Narasimha Reddy and Others, reported in (2011) 9 SCC 286 and submits that it would appear therefrom that cooperative law is based on voluntary action of its members on their free will and consent rather than acting under compulsion/direction of the State. He, thereafter, refers to the report in the form of an affidavit and submits that the details of the selection process adopted by the Bank has been clearly stated therein. He submits that it has been stated therein that the Bank had formulated its revised promotion policy on the basis of recommendations of the Administrative Committee adopted in its meeting dated 15th October, 2007, followed by a decision of its Board of Directors under agenda no.28 in its meeting held on 3rd November, 2007, and the said promotion policy has been followed ever since. In paragraphs 4, 5, 6, 7 & 8 of the affidavit, the Bank has given details of the selection process which culminated in issuance of the impugned notice dated 11th February, 2011, wherein the writ petitioner was placed under serial number six. He also categorically refers to the statement made by the writ petitioner in paragraph 21 of the writ petition and the Bank's response as stated in paragraph 9 of its affidavit. He submits that the Bank has specifically stated that the writ petitioner has deliberately made a false statement in paragraph 21 of the writ petition. Learned senior counsel for the Bank also draws this Court's attention to Ground IV of the writ petition and submits that the same has been taken by the writ petitioner on the basis of the false statement made by her in paragraph 21 of the writ petition. He further submits that from the said ground it would appear that the writ petitioner has categorically contended that the Selection Committee was illegally formed and the entire selection process was, therefore, absolutely bad in law. He relies on a judgment of the Supreme Court, in the case of K. D. Sharma Vs. Steel Authority of India Limited & Ors., reported in (2008)12 S.C.C. 481 and submits that when a petitioner approaches the writ court, he/she must come with clean hands, put forward all the facts before the Court without concealing or suppressing anything and only thereafter seek an appropriate relief. In the facts of the instant case, the writ petition ought to be dismissed at the threshold without even considering the merits of the claim of the writ petitioner upon taking consideration the ratio of the law as laid down by the Supreme Court in K. D. Sharma(supra).
After considering the submissions made by the learned counsel appearing on behalf of the respective parties, it is beyond any doubt that the writ petitioner had participated in a selection process for the purpose of being promoted to the rank of an Assistant General Manager from a staff officer but failed to make it on her merit. The only issue that comes up for consideration now is whether the selection process, wherein the writ petitioner participated alongwith others, can be challenged in the instant writ petition. In this context, as observed hereinbefore, learned counsel representing the writ petitioner has not been able to show any specific statutory rule which would govern the selection process, although he generally referred to the West Bengal State Co-operative Rules. He has also not been able to demonstrate as to how any of the said Rules have been breached by the Bank while conducting the selection process. On the contrary, it has been categorically stated by the Bank in its affidavit that it had revised its promotion policy on the basis of the recommendations made by the Administrative Committee adopted in its meeting dated 15th October, 2007, followed by a decision of the Board of Directors under agenda no.28 in its meeting held on 3rd November, 2007, and the said promotion policy was being followed ever since. As rightly pointed out by the learned senior counsel representing the Bank, the scheme of the relevant statute, being the West Bengal Cooperative Societies Act, 2006, which came into effect from 18th January, 2011, provides complete autonomy with regard to management and administration of cooperative societies which are essentially democratic organisations controlled by its members who actively participate in setting its policies and making decisions. The special provisions introduced under Chapter XIIIA of the said Act of 2006 in respect of Cooperative Credit Structure Entities--the Bank being one such-- grants complete autonomy, clearly and unequivocally, to such entities in all financial and internal administrative matters including personnel policy, staffing, recruitment, posting and compensation to staff, amongst others. The selection process adopted by the Bank was based on its own promotion policy, which is being followed since November, 2007, and, therefore, does not at all breach any statutory rule. That apart and in any event, the writ petitioner being an unsuccessful participant in the selection process, cannot simply turn around and challenge the same before the writ court consequent upon obtaining a low position in the merit list.
This brings us to the other aspect with regard to the point of maintainability of the instant writ petition in the absence of infraction of any statutory rule. In Bhabani Adhikar's case, which has been relied on by the learned counsel for the petitioner, a Division Bench of this Court observed, inter alia, that a writ petition would be maintainable against a person if such person either were indisputably a "State" or "other authority" within the meaning of Article 12 or against an instrumentality if there was deep and pervasive State control over the instrumentality or such instrumentality enjoyed State conferred monopoly status or it discharged Governmental functions or functions of public importance resembling Governmental functions. It further observed that notwithstanding a person not answering the description of a "State" or "other authority" within the meaning of Article 12 of the Constitution by virtue of its composition or by dint of the nature of its duties and functions that it discharges, a writ may issue against it if a violation of a statutory rule relating to employment was made the basis of a petition under Article 226 of the Constitution of India.
At this stage, one may pause and take notice of the fact that in Bhabani Adhikari, the Division Bench was considering the authority of the writ Court in a case where breach of Rule 108 of the West Bengal Cooperative Societies Rules, 1987, was complained of. It went on to observe that the writ petition was founded on the breach of the principles of natural justice and there was nothing in Rule 108 which recognized that the principles of natural justice were required to be followed. However, recognizing the said fact that the writ petition was actually founded on the breach of the principles of natural justice and Rule 48(f) of the West Bengal Cooperative Societies Rules, 1987, recognized such principles--although the said Rule was neither indicated by the writ petitioner by name nor was it brought to the notice of the learned Single Judge--the Division Bench observed to the effect that since the substance of Rule 48(f) had been cited, the writ Court would assume its authority. Relevant observation of the Division Bench is set out hereinbelow:-
"A petition under Article 226 of the Constitution has to be based on the status or deemed status of the respondent complained against or, in the matter of employment (which is the only aspect relevant to this case) as the authorities suggest, on the substance of the breach complained of. If the writ petition is not founded on the status or deemed status (all-pervasive control nature of activity of the respondent complained against), the substance of the breach in a matter pertaining to employment has to be traced to a mandatory statutory provision. The writ petitioner here scrapes through only because he had cited the substance of Rule 48(f) in his writ petition and had generally said therein that the cooperative bank employer had violated the statutory rules."
The present case is, however, clearly distinguishable. No such breach of any statutory rule has been demonstrated by the writ petitioner. Clearly, this matter is outside the purview of this Court's jurisdiction under Article 226 of the Constitution of India.
That apart, it may not be out of context to observe that the Division Bench in Bhabani Adhikari was considering, inter alia, the provisions of Rule 48(f) and Rule 108 of the West Bengal Cooperative Societies Rules, 1987, which have since been repealed and replaced by the West Bengal Cooperative Societies Rules, 2011, with effect from 18th January, 2011. The 2011 Rules have come into effect by virtue of the State Government exercising its rule making power as provided in section 157 of the West Bengal Cooperative Societies Act, 2006, which also came into effect from 18th January, 2011. As observed hereinbefore, the scheme of the new Act of 2006, provides complete autonomy with regard to management and administration of cooperative societies which are essentially democratic organisations controlled by its members who actively participate in setting its policies and making decisions. Special provisions are applicable to the Cooperative Credit Structure Entities, which includes, amongst others, the West Bengal State Co-operative Bank Limited. Such provisions have been introduced under Chapter XIIIA, that has entered the statute book through an Amendment Act of 2010, which came into effect also from 18th January, 2011, and provides an overriding effect of the provisions of the said Chapter. Section 134A under Chapter XIIIA reads as follows:
"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 hereunder, the provisions of this Chapter shall have overriding effect."
Section 134C under Chapter XIIIA provides special provisions applicable to the Cooperative Credit Structure Entities and sub-section(2) of section 134C provides that a Cooperative 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."
A plain reading of the above provisions makes the scheme of the new law crystal clear. In no uncertain terms it may be observed that the West Bengal Co- operative Bank Limited has complete autonomy in all financial and internal administrative matters which include, inter alia, personnel policy, staffing, recruitment, posting and compensation to staff. The subject matter of challenge in the instant case, which relates to promotion of an employee, thus, stands excluded from interference by the writ court under the scheme of the new law and a writ petition, in such facts and circumstances, is not maintainable against the West Bengal Cooperative Bank Limited.
For reasons stated above, this writ petition is liable to be summarily dismissed and is accordingly dismissed without even going into the aspect of whether the statement made by the writ petition in paragraph 21 of the instant writ petition is false or not.
Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.
(Biswanath Somadder, J.)