Judgment In this case, the petitioner, who has been working as sub-accountant in Contai Co-operative Bank Ltd. Coatai has challenged the legality, propriety and the validity of the order of the respondent No. 1 in giving promotion to the private respondent No. 6 to 8 as Branch Manager ignoring the claim of the writ petitioner. 2. The petitioner was appointed as an Assistant in the respondent-bank on probation with effect from 1.11.1972 in the scale of pay or Rs.125-325/- Per Month plus House Rent Allowance and Medical Allowance as admissible from time to time by the bank. The petitioner was communicated vide Memo No. 14 dated 13th September, 1997 by the respondent-bank informing him that he was promoted in the post of Field Officer-III (Development) in the scale of pay of Rs.200-505/- with effect from 15th September, 1977. 3. It has been claimed by the petitioner that since the time of his appointment he has been discharging his duty sincerely, faithfully and with utmost satisfaction of the employer and there was no adverse remarks communicated to him by the respondent-bank. So, therefore, on 26th September, 1988 the Bank had informed the petitioner to officiate as Branch Manager looking to the service record, efficiency and also his other performance. The petitioner was getting salary at the rate of Rs.4064.50 p. Per Month at the time of filing or the case. The petitioner has, Inter alia, alleged that he learned that some other employees namely private respondent Nos. 6, 7 & 8 have been promoted to the post of Branch Manager who were junior to him. Therefore, be made over a representation to the respondent-bank indicating his grievance by pointing out irregularities in giving the promotion to the private respondents. But, it is claimed by the petitioner that the bank was callous and non-responsive to the representation submitted by the petitioner. His further grievance is that even though he possessed comparatively better academic carrier than the other private respondents, but the respondent-bank has overlooked such qualification and also the service record and illegally had given promotion to the private respondents. 4. The private respondent Nos. 6, 7 & 8 were not only junior in original appointment but also junior in the promotional post i.e., Field Officer/Sub-accountant. The respondents were appointed as Assistant of bank in the month of April 1975 and were promoted as Field Officer/Sub-accountant in July 1988. 4. The private respondent Nos. 6, 7 & 8 were not only junior in original appointment but also junior in the promotional post i.e., Field Officer/Sub-accountant. The respondents were appointed as Assistant of bank in the month of April 1975 and were promoted as Field Officer/Sub-accountant in July 1988. Since the promotion of the private respondents was highly discriminatory, whimsical and without following the procedure laid down under the Co-operative Societies Rule as well as resolutions of the Managing Committee and their promotion having no nexus with the principles and the norms, the petitioner, therefore challenged those appointments and claimed that he ought to have been given promotion when the matter of promotion was taken into consideration. The respondent-bank being a creature under the statute and the provisions of the West Bengal Co-operative Societies Act is applicable to the bank, it shall come within the expression 'State' within the Article 12 of the Constitution and as such amenable to the writ jurisdiction. 5. The respondent Nos. 1 and 2 have strongly refuted the allegations regarding invocation of the writ jurisdiction. According to them all the Co-operative Societies and Co-operative Banks as well cannot be brought within the expression of instrumentality of the State'. Since such institutions could not be brought within the Article 12 of the Constitution of India, no writ therefore, shall lie against those institutions. 6. The Co-operative Societies are usually formed by a group of Individuals in accordance with the provisions of the Co-operative Societies Act and the State Government has no control over the members of such Co-operative Societies as such no writ shall lie against a Co-operative Society. The conditions of service of the employers working in the respondent-bank are governed by a Memorandum of Settlement between the bank on the one hand and the employees on the other and such contractual conditions of service cannot be enforced by exercise of writ jurisdiction. It has been further stated by the bank that the writ petitioner even as the President of the Contai Co-operative Bank Employees Union had signed the Memorandum of Settlement in the year 1980 under Section 18(1) of the Industrial Disputes Act. Therefore, if any commission or omission by the employer i.e., Co-operative Bank such action or inaction, whatsoever it may shall be challenged before the Industrial Tribunal but not before the Court. 7. Therefore, if any commission or omission by the employer i.e., Co-operative Bank such action or inaction, whatsoever it may shall be challenged before the Industrial Tribunal but not before the Court. 7. So far as the manner of recruitment to the pest of Bank Manager was concerned, the respondent-bank has in its affidavit-in-opposition stated that due weightage was given to the petitioners possessing higher qualifications. Petitioner's service record was comparatively not good with the other private respondents. On 1st October, 1983 again a Memorandum of Agreement between the bank and the Employees Association was arrived at whereby both the parties agreed, thereunder to frame the guidelines for appointment and promotion in so far as the different grade of employees was concerned. On a comparative assessment and evaluation of academic qualification, career service record experience of the petitioner vis-a-vis the private respondent, the bank found the private respondent were more suitable for promotion which, accordingly, was given to them. 8. During the pendency of the writ petition the management further filled up the post of Branch Manager and the case of the petitioner was considered in 1992 and 1998 but the respondent-bank did not find him suitable when such promotion matter wall considered, therefore, others were given promotion. It has been claimed be the petitioner that Jayanta Kumar, Saktipada Bera, Mrinal Kanti Kar and Subimal Maity who were juniors to him have been given promotion as Branch Manager. Therefore, their promotion also should be declared as arbitrary, illegal and unlawful as those promotion on the basis of which were given does not conform either to the provisions to the acts and rules of the Co-operative Societies Act or by principle of natural Justice. Respondent-bank has denied allegations of the writ petitioner that bank has given promotion to the above named persons illegally and without following the norms or the procedure prescribed either by the bank under the Memorandum of Settlement or by the rules framed under the Co-operative Societies Act. 9. It has inter alia been alleged that the petitioner having already appeared and participated in the selection process and after he being found unsuccessful, latter on it is not open to him to challenge the process of selection. 9. It has inter alia been alleged that the petitioner having already appeared and participated in the selection process and after he being found unsuccessful, latter on it is not open to him to challenge the process of selection. It has been submitted that the service record of the petitioner was thoroughly unsatisfactory and the performance was awefully obnoxious to the respondent-bank, therefore, the bank after considering the case of the petitioner did not promote him to the rank of Branch Manager. Since the petitioner has not brought into record by impleading the persons selected to the post of Branch Manager, the validity of their appointment, I think, it would not be necessary for me to consider in this case. 10. The respondent-bank further alleged that the Memorandum of Settlement arrived at between the respondent-bank and the employees working therein was under Section 18(1) of the Industrial Disputes Act, 1947 and therefore, both the parties are bound by the terms of such settlement. Such Memorandum of Settlement can also be regarded as service rule. In terms of the Court's order dated 9.12.1988 passed by Mr. Justice D.K. Basu (as he then was), the Assistant Registrar of the Co-operative Societies, Midnapore (III) Office at Contai had made thorough, break-through and found that there was no such illegalities in the manner of selection of Branch Manger. Therefore, the claim of the petitioner being frivolous in nature should be rejected. The petitioner having participated in the two interviews and after being unsuccessful, be should not be allowed to turn round and say that the manner of Interview was illegal. 11. In the above it is already said that since the other candidates namely, Subimal Maity, Saktipada Bera, Jayanta Kumar and Mrinal Kanti Kar are not made parties, their selection cannot be called in question in their absence. Thus, I did not feel it expedient to delve such question. 12. It has been strongly emphasized by the petitioner that he was recruited in terms of the Rule 108 of the Co-operative Societies Act. For the purpose of appreciation of the contentions of both parties Rule 108 of the Co-operative Societies Act is quoted hereunder:- "108. Condition of service of the employees of Co-operative Societies. 12. It has been strongly emphasized by the petitioner that he was recruited in terms of the Rule 108 of the Co-operative Societies Act. For the purpose of appreciation of the contentions of both parties Rule 108 of the Co-operative Societies Act is quoted hereunder:- "108. Condition of service of the employees of Co-operative Societies. The conditions of service of the employees of Co-operative Societies shall, subject to the terms of specific contract enforceable by law and the provisions of any law for the time being in force, be as enunciated in the Appendix to this Chapter." 13. On perusal of the aforesaid Rule, it is found that in case of promotion, the principle of ‘seniority-cum-fitness’ is the only governing factor. The petitioner has claimed that be was the senior most Assistant who should have been considered for the purpose of promotion to the post of Branch Manger since the private respondents, who had joined much latter than the petitioner, the bank authorities by ignoring his seniority promoted to them it has been further claimed by the petitioner that respondent-bank can have no legal basis to only rely upon the Memorandum of Settlement. Since, such Memorandum of Settlement was not arrived at under Section 18(1) of the Industrial Disputes Act therefore respondent-bank should not over-emphasized on such a Memorandum of Settlement. The settlement was not forwarded to the State Government for approval. It has been further contended that the Board of Management has no power to frame the Service Rule fixing the guideline for promotion. 14. The respondent-bank has taken a formidable point that since bank is not an "Instrumentality of the State", therefore, any dispute arising between the bank and its employees cannot be adjudicated by exercising the writ jurisdiction. In other words Co-operative Society is not a 'State' within the meaning of Article 12 of the Constitution of India. In support of his contention he has relied upon a reported decision (1) AIR 1990 Andhra Pradesh page 171 (Full Bench) in the case of Sri Kanasema Co-operative Central Bank Ltd. v. N. Seetharama Raju. The bank was not constituted under any Act but it is an organisation of group of individuals and they registered the Society with the Assistant Registrar, Co-operative Society. The bank was not constituted under any Act but it is an organisation of group of individuals and they registered the Society with the Assistant Registrar, Co-operative Society. There was an agreement between the bank and its employees and all the parties are bound by the terms of such settlement including the writ petitioner inasmuch as be had once signed in the Memorandum of Settlement in the capacity of the agreement of understanding, the Court should not invoke its writ jurisdiction to decide any issue as it is a private dispute between them. 15. The respondent bank has relied upon a judgment reported in (2) AIR 1998 Supreme Court page 795 in the case of Union of India v. N. Chandrasekharan & Ors. In the aforesaid decision, the 'Hon'ble Supreme Court has taken into consideration of the aspect that since the candidates appeared in the written test after being fully aware of the procedure of promotion, latter on when they became unsuccessful they cannot be allowed to turn round and say that the selection process was illegal, arbitrary and whimsical. But the petitioner in this case did not challenge the procedure for promotion laid down by the respondent-bank but was skeptical about the manner in which the respondent had acted while selecting the private candidates to the post of Branch Manager. 16. An important question has been raised as to whether the Industrial Tribunal shall have power and jurisdiction to decide the nature of dispute raised by the petitioner. The petitioner has invited my attention that Section 42 of the Co-operative Societies Act, 1983 is crystal clear as in the aforesaid provisions, it is indicated how the Employees/Officers working in the co-operative institutions shall tie appointed, their method of recruitment and other conditions of service. Thus, to appreciate the contentions of the parties, I feel it appropriate to quote the provisions of Section 42 hereunder:- “Section 42. Appointment of persons in the service of a Co-operative Society.-(1) A Co-operative Society shall appoint, subject to the provisions of sub-section (5) of Section 38, such Officers and other employees as may be sanctioned by the Registrar to assist the Co-operative Society to the performance of its duties and discharge of its functions under this Act or the Rules. Appointment of persons in the service of a Co-operative Society.-(1) A Co-operative Society shall appoint, subject to the provisions of sub-section (5) of Section 38, such Officers and other employees as may be sanctioned by the Registrar to assist the Co-operative Society to the performance of its duties and discharge of its functions under this Act or the Rules. The Registrar shall accord such sanction, or in case of refusal, intimate to the Co-operative Society the reasons for such refusal within three months from the date on which any such proposal is submitted by the Co-operative Society, failing which the sanction shall be deemed to have been accorded by the Registrar. The qualifications and conditions of service of the Officers and other employees of the Co-operative Society shall be such as may be prescribed.” 17. It has been further indicated in the Rule 106 about the procedure for direct recruitment of staff by the Co-operative Societies. It further provided in Rule 107 as to the constitution of Selection Committee for the purpose of selection of candidates. The qualifications and conditions of service of the employee shall be subject to the terms of specific contract in enforceable by law and provisions of law for the time being in force as enunciated in the Appendix to Chapter 6 of she Rule. This Rule is statutorily prescribed under Section 42 of the Act. Under Section 143 of the Act, it has been further laid down that the provisions of this Act shall have overriding effect over the provisions of any other act which are contrary to this act or in any contract express or implied or any instrument having effect by virtue of enactment. Therefore, in view of there provisions any settlement even assuming were such settlement can hardly he treated to be valid. 18. The bank has taken a strong ground that the settlement having been arrived at between employees on one hand and Board or Management on the other and the employees were represented through the petitioner, therefore, the petitioner cannot be allowed to turn-round and say that such settlement did not confer any right. 18. The bank has taken a strong ground that the settlement having been arrived at between employees on one hand and Board or Management on the other and the employees were represented through the petitioner, therefore, the petitioner cannot be allowed to turn-round and say that such settlement did not confer any right. But, if view of the provisions of Section 143, even assuming some agreement/settlement had taken place between the workers and the Board of Management yet such settlement cannot have a binding effect if the terms of settlement ran contrary to Schedule 6 of Rule 107 of the Co-operative Societies Act. It has been cited at the bar the decision (3) 1990(2) CLJ page 456 in the case of Arjed Ali Gazi v. State of West Bengal and the contention has been raised on the question of exercise of writ jurisdiction. The Division Bench after reviewing the entire case law on this point held that ordinarily no writ lies against a Co-operative Society which is neither a statutory body nor is it an instrumentality of the State. It has been further decided that a writ does not lie against a private body but the position will be entirely different if such private body is vested with a statutory duties and powers which acted contrary to the statutory provision. From the aforesaid judgment, it further appears that an employee of a Co-operative Society is not controlled by terms of contract. Such conditions of service undoubtedly would be controlled by the Statutorily Rule 108 which is undisputedly a Statutory Rule. All societies, therefore shall be bound by the provisions of Rule 108 as well as any decision taken by the board of directors regulating the recruitment employment and other service conditions of the staff. 19. In this case, the respondent-bank has also admitted in their affidavit-in-opposition that the matter of promotion will be determined keeping in view with the provisions of West Bengal Co-operative Societies Rule, 1947 and also the Service Rule of the Bank. Therefore, in that view of the matter, it is no longer res integra that the appointment, promotion and other service conditions of the staff working in all co-operative sectors shall have to be determined under the provisions of West Bengal Co-operative Societies Act vis-à-vis Rule framed thereunder so also the decision taken in relation thereof by the Board of Management. 20. 20. The next question shall arise for consideration as to whether the writ petitioner can be regarded as 'workman' within the meaning of sub-section (2) of Section 2 of the industrial Disputes Act. On perusal of the provisions it seems that any person who is in a Managerial/Supervisory post carrying a scale or pay of Rs.1,040/-2,425/- does not come within the aforesaid definition of workman. Therefore, the petitioner in this case is not obliged to take shelter before the Industrial Tribunal. Besides, the petitioner has claimed in this case infringement of statutory rule relating to promotion therefore, I am afraid that the Industrial Tribunal may have any jurisdiction to determine such issue. 21. It has been mentioned by the bank that on 13th October, 1988, the Board of Management has adopted a resolution by indicating therein as to the manner of selection or different post and also certain guidelines for such selection. In the aforesaid resolution it has been laid down that in respect of promotion of Grade-II-B to Grade-II-A, fifty marks was apart for seniority, academic qualification, professional qualification, experience and Service Records Since, the board was authorized under the statute to lay down norms for the purpose of selection/promotion for different category of Officer/Staff, the petitioner can have no grievance to such decision taken by the Board of Management. Only question that has to be examined in this writ petition is whether there was any infraction of rules in respect of promotion to the post of Branch Manager and non-observance of the procedure laid down by the Board of Management. 22. The petitioner was not awarded any marks for his professional qualification Co-operative/RBI training. It is submitted by the learned Counsel appearing for the bank that since the petitioner had possessed no professional qualification, therefore such column was kept bank. It is neither know nor anything has been placed in the record that the petitioner was ever offered to undergo for professional training. If such opportunity was given and the petitioner had declined to avail such chance to the past then the Selection Committee could be within its provision to take an adverse view against the petitioner. Otherwise, the petitioner could not be faulted with because of lack of training. If such opportunity was given and the petitioner had declined to avail such chance to the past then the Selection Committee could be within its provision to take an adverse view against the petitioner. Otherwise, the petitioner could not be faulted with because of lack of training. It has been submitted by the petitioner that he has acquired professional training in the meanwhile thereby, he contends that there could be no impediment to consider the case of the petitioner for promotion. 23. The bank had set apart 10 marks for experience (knowledge of job in different section/cell). The petitioner awarded 6 out of 10 marks for experience. It is not known how the committee could award 6 marks for the experience although he was the second senior-most employee at the relevant time. 24. The petitioner was awarded 3 marks out of 10 marks towards the Service Record and fitness Nothing can be said against the petitioner in so far as the fitness was concerned. Since, be was continuing in service and as he was found fit, so, therefore, her case for promotion was considered. But in respect of his Service Record which has been highlighted by the respondent-bank that since several departmental proceedings were initiated against the petitioner, therefore, such low mark was awarded to him for Service Record. Bank was directed to produce his Service Record. On perusal of the Service Record of the petitioner it is found that the bank has haphazardly maintained the petitioner's Service Book. From 1972 there has been no entry in the Service Book except very few and those have been made at the end of the Service Book. 25. It is a settled principle of law that an adverse entry should be communicated to the employee as soon as it is entered into the Service Record if such entry is not communicated and the authorities did not act upon such entry, latter on, the employer should not deprive an employee from getting his service benefit since such entry was stele. Therefore, it is improper for a selection committee to take into account on communicating adverse entry of an employee while considering the question of promotion. 26. It is not understood as to why the bank did not properly maintain the Service Book although the statutory obligation has been case upon it for proper maintenance. Therefore, it is improper for a selection committee to take into account on communicating adverse entry of an employee while considering the question of promotion. 26. It is not understood as to why the bank did not properly maintain the Service Book although the statutory obligation has been case upon it for proper maintenance. Even though the petitioner was kept under suspension but it was subsequently, withdraw. It is not known as to on what ground the petitioner was placed under suspension. However, since he was promoted to the post of Field Officer on 13th September, 1977, whatever adverse entry there might be prior to that period, thus, adverse entry would lose their significance after promotion. Till 1988 no adverse materials had been placed in the record so as to draw any adverse inference against the petitioner about his service performance. Whatever his subsequent record regarding his service would not be material in this case. Moreover, there has been no communication of any adverse entry whatsoever therefore, it is irrelevant for the purpose of this case. The Assistant Registrar, who had been directed by the Court for making enquiry as regard the grievance of the petitioner, had submitted this observation in his report, he has stated which has been quoted hereunder:- "In this connection, I have gone through the personal file of Shri Kalipada Maity and found that the maintenance of personal file is haphazard and even some important letters are not dealt in personal file. It is equally applicable to the maintenance of the personal files of other staff. Even for a long time it had not maintained Service Book. I find both adverse in the personal file of Shri. Kalipada Maity and the Service Book of Shri Maity was not placed before me by the authority due to shortage of time." In that view of the matter the non-awarding of marks towards the training and also awarding less marks for the Service Record had resulted in heavy prejudice to the petitioner. Thus, the petitioner was wrongly excluded from being appointed as Branch Manager which he could have otherwise entitled to. In the aforesaid situation, I hereby allow the wilt petition by directing the respondent-bank for giving promotion to the petitioner as Branch Manager within three months from date. Thus, the petitioner was wrongly excluded from being appointed as Branch Manager which he could have otherwise entitled to. In the aforesaid situation, I hereby allow the wilt petition by directing the respondent-bank for giving promotion to the petitioner as Branch Manager within three months from date. It is further directed that if no post of Branch Manager is available, then the petitioner shall be accommodated against an immediate vacancy by reverting the person who was promoted/appointed last. Accordingly, the writ petition is allowed but without costs.