Orissa High Court
Yameswar Mahapatra vs Registrar Of Co-Operative Societies on 7 September, 2021
Author: B. P. Routray
Bench: B. P. Routray
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A. No.44 of 2017
Yameswar Mahapatra .... Appellant
In person
-versus-
Registrar of Co-operative Societies, .... Respondents
Bhubaneswar and others
Mr. Budhadev Routray, Senior Advocate for Respondent No.3
and
Mr. K. P. Nanda, Advocate for Respondent No.2
CORAM:
THE CHIEF JUSTICE
JUSTICE B. P. ROUTRAY
ORDER
07.09.2021 Order No. Dr. S. Muralidhar, C.J.
05. 1. The present writ appeal is directed against the order dated 12th January, 2017 passed by the learned Single Judge, dismissing the Appellant's W.P.(C) No.22641 of 2011. By the said order, the learned Single Judge upheld the decision of the Nayagarh District Central Co-operative Bank Limited (Bank) (Respondent No.2) that the present Appellant did not satisfy "the fit and proper criteria" for being eligible to be appointed as Chief Executive Officer (CEO) of the Bank.
Page 1 of 72. The above writ petition was the second round of litigation in this Court at the instance of the present Appellant. Initially, he had filed W.P.(C) No.14499 of 2011 and that writ petition was disposed of by an order dated 5th July, 2011 with a direction to the Managing Director, Orissa State Co-operative Bank Limited (OSC Bank) to take a decision on the letter dated 12th November, 2009 of the Secretary of the Bank.
3. This Court has heard the submissions of the Appellant, who appears in person, Mr. Budhadev Routray, learned Senior Counsel appearing for the OSC Bank-Respondent No.3 and Mr. K. P. Nanda, learned counsel who appears for the Bank-Respondent No.2.
4. The background facts are that the Appellant started working with the Bank on 21st September, 1979. On 19th December 1995, he was promoted to the post of Grade IV (Administrative Inspector). On 14th May 2001, the Appellant was appointed as a Branch Manager (in-charge) at Itamati Branch of the Bank. He claims to have worked in different capacities at various branches of the Bank till 30th August, 2009.
5. It is stated that the President of the OSC Bank by a letter dated 28th October, 2009 informed the Presidents of Central Cooperative Banks regarding the guidelines issued by the National Bank for Agriculture and Rural Development (NABARD) in regard to the "fit and proper" criteria for CEOs of the District Central Cooperative Banks by letter dated 19th March, 2009 in light of the revised guidelines issued by the Reserve Bank of India (RBI) on 3rd March, 2009.
Page 2 of 76. On the basis of the directives of the RBI, the modified guidelines regarding fit and proper criteria for CEOs were as under:
"1. The person may preferably not be above 55 years of the age at the time of appointment.
2. The person to be appointed as CEO shall at least be a:
I. Graduate with CAIB/DBF/Diploma in Co-operative Business Management or equivalent qualification, or II. Chartered/Cost Accountant; or III. Post-Graduate in any discipline.
3. That person shall have at least eight years' work experience at the middle/senior level in the Banking Sector. Senior/middle level for the purpose shall be taken as the third level (scale/cadre) onwards (i.e. excluding the first two levels (scales/cadres) in the officer cadre, or as the highest two levels (scales/cadres) below the level of the CEO.
4. The Board of the bank, in question/Selection Committee should also undertake a process of due diligence in respect of the person, relying on information to be obtained from him/her as in Annex II, before appointment."
7. It is stated that at the meeting of the committee of the Bank held on 11th November 2009, it was unanimously resolved to recommend the names of Shri B. B. Tripathy, Smt. Prabasini Devi and the present Appellant to the OSC Bank / NABARD "for taking further course of action at their level for the post of CEOs." Consequent thereto, the Secretary of the Bank sent the bio-data of the Appellant and the other two persons recommended in the prescribed format to the OSC Bank.
8. The Appellant points out that while Mr. Tripathy retired on 30th September 2010, Smt. Prabasini Devi had already crossed the age limit under the guidelines, the Appellant was the fittest candidate to Page 3 of 7 discharge the responsibilities of a CEO. When no decision was taken on the above recommendation, the Appellant filed W.P.(C) No.14499 of 2011 in this Court which, as already noticed, was disposed of by the learned Single Judge by an order dated 5th July, 2011 directing the OSC Bank to take a decision on the aforementioned letter dated 12th November, 2009 of the Secretary of the Bank within one month.
9. By the letter dated 30th July 2011, the OSC Bank informed the Secretary of the Bank that the present Appellant did not fulfill the criteria of having the minimum period of work experience required as per the "fit and proper criteria". This led the Appellant to file W.P.(C) No.22641 of 2011, which came to be dismissed by the impugned order of the learned Single Judge.
10. It must be noted at this stage that the Appellant's date of birth is 26th January, 1958. He had thus crossed the age bar when the writ petition was taken up for final hearing. One of the other criteria is that the person to be appointed as CEO should have at least 8 years' work experience at the Middle/Senior level. For this purpose, the Senior / Middle level is taken as the 3rd level (scale/cadre) onwards (i.e. excluding the first two levels (scales/cadres) in the officer cadre, or as the highest two levels (scales/cadres) below the level of the CEO. Therefore, to be eligible to be a CEO, experience in Grade I and Grade II is required. It was found that the Appellant had worked in one of the qualifying cadres i.e. Manager from 31st August, 2009. Therefore, his experience in the senior/middle level officer cadre as on 30th July, 2011 was for a period of 1 year 10 months and 29 days Page 4 of 7 as against the minimum qualifying period of 8 years. It was therefore held that he was not eligible for the post of CEO.
11. On this specific aspect, the learned Single Judge noted that as on the date of considering the writ petition i.e. 12th January, 2017, the Appellant had already crossed the age criteria i.e. it crossed 55 years. He was in fact around 58 years. The learned Single Judge, therefore, concluded that the prayer had in fact been rendered infructuous.
12. On the question of experience criterions, learned Single Judge was not prepared to accept the case of the present Appellant that having been posted at different points of time from the middle of 2001 onwards to the end of the 3rd quarter of 2010 at senior managerial levels, he satisfied the experience criteria. The learned Single Judge observed that promotion is not a matter of right and that the conclusion reached by the OSC Bank in this regard was justified.
13. The Appellant relied on an additional affidavit filed by the Petitioner before the learned Single Judge that at the second meeting of the State Level Task Force held on 3rd March, 2009 the scope of fit and proper criteria was recommended to be widened. The learned Single Judge noted that there was no consequential decision of the RBI in regard thereto and, therefore, it was of no assistance to the Appellant.
14. Before us the Appellant, who appears in person, handed over an additional compilation running to 252 pages in the form of I.A. No.1446 of 2021 in which the prayer clause itself runs to almost 10 Page 5 of 7 pages i.e. from pages 33 to 42. Now, the prayer is made that the Appellant should be treated to have been appointed as a Deputy General Manager in the OSC Bank from December, 2009 with other financial benefits, promotional privileges at par with the staff of the OSC Bank. Clearly, such a prayer is far beyond the scope of the original writ petition itself and cannot be entertained.
15. It is claimed by the Appellant that under the Right to Information Act, it was stated that there was no need to get the approval of the RBI / NABARD for appointment of CEOs but it is only to be ensured that the CEOs fulfill the "fit and proper criteria" prescribed by the RBI. The contention is that when the Appellant filed the writ petition in 2011, he was within the age limit of 55 years and that that should not have been a ground to hold that the writ petition was rendered infructuous. The maxim 'actus curiae neminem gravabit' is sought to be invoked. According to the Appellant, he should be monetarily compensated for the failure by the Respondent 2 to consider him as qualified and that he should be appointed as CEO as per the "fit and proper criteria."
16. Although the Appellant claims that he had worked in the post of Branch Manager since 14th May 2001, the facts remains that he was only an in-charge Branch Manager. From the pro forma submitted by the Bank to the OSC Bank along with its letter dated 12th November 2009, it is seen that the Appellant was only shown as working as 'in-charge' BM up to 28-29th October, 2006. Therefore, he was not between 14th May, 2001 and 29th October, 2006 actually working as a Branch Manager. It would therefore not be correct for the Appellant to contend that he was working in the cadre of Page 6 of 7 Manager from 14th May, 2001 itself. The admitted position is that he was appointed as Branch Manager only on 31st August, 2009 and, therefore, as of 30th July, 2011 he indeed did not have the minimum experience of 8 years at the managerial level.
17. If this is the factual position then, whether or not the Appellant crossed the age of 55 due to judicial delay, it would make no difference. Even assuming if the writ petition had been taken up for decision as soon as it was filed i.e. in 2011 itself, the Appellant nevertheless would not have satisfied "fit and proper" criteria.
18. Consequently, this Court finds no reason to interfere with the impugned order of the learned Single Judge.
19. The writ appeal is accordingly dismissed, but in the circumstances, with no order as to costs.
(Dr. S. Muralidhar) Chief Justice (B.P. Routray) Judge M. Panda Page 7 of 7