M. P. CHINNAPPA, J. ( 1 ) HEARD the learned Counsel for the petitioner Sri Jayakumar S. Patil, the learned Government Advocate Sri B. V. Muralidhar for the respondents 1 and respondents 2. Though notices were served on the 3rd and 4th respondents, they remained absent and also heard Sri S. J. Chouta, the learned Counsel for the 5th respondent. ( 2 ) THE facts which are not seriously in dispute are that the 3rd respondent is a co-operative society. It has Secretary, Assistant Secretary, accountant, Cashier and Clerks, etc. , in its establishment. The post of a Secretary became vacant in the year 1997 and the Board of Management decided to call for willingness of 17 eligible employees of the bank. Out of 17 eligible employees only the petitioner and the 5th respondent gave their willineness. It was also decided by the Board of Management to conduct a written and viva voce test for selecting the candidate to the post of Secretary. In the meantime, the petitioner who is junior to the 5th respondent was appointed as the Secretary which was objected to by the 5th respondent. After conducting the written test and viva voce, the petitioner was appointed as a permanent Secretary on probation, etc. This was questioned by the 5th respondent by raising a dispute under section 70 in J. R. S. C. DIS. D2 2527/97-98 on the file of the Joint Registrar of Co-operative Societies, Mysore. The petitioner herein filed objections and after enquiring into the matter, the Joint Registrar of co-operative Societies by its order dated 20-4-2000 allowed the dispute in favour of 5th respondent holding that the selection of the petitioner is illegal and invalid and directed the bank to promote the 5th respondent with effect from 22-1-1998 and also held that she is entitled for all the financial benefits, etc. As against that order, the petitioner filed an appeal before the Kamataka Appellate Tribunal, Bangalore, in Appeal No. 309 of 2000. The Appellate Tribunal rejected the appeal by its order dated 30-11-2000. Being aggrieved by these concurrent findings, the petitioner filed this petition under Article 226 of the Constitution. As against that order, the petitioner filed an appeal before the Kamataka Appellate Tribunal, Bangalore, in Appeal No. 309 of 2000. The Appellate Tribunal rejected the appeal by its order dated 30-11-2000. Being aggrieved by these concurrent findings, the petitioner filed this petition under Article 226 of the Constitution. ( 3 ) THE learned Counsel for the petitioner has vehemently argued that both the authorities have proceeded to consider the case on the assumption that the post of Secretary is a promotional post and therefore, the examination conducted are improper without giving the promotions to the senior most candidate, the 5th respondent. He further submitted that in the absence of any bye-law of the society and subsidiary rules the board has decided to conduct the test and the respondent 5 also appeared for both written and viva voce. After evaluating the answer papers, and also the performance made in the viva, the Board of management decided to appoint the petitioner as the Secretary. Neither the Arbitrator nor the Appellate Tribunal had jurisdiction to go into the procedure adopted by the Board of Management in selecting the petitioner as the Secretary. He also further submitted that the Arbitrator has drawn an adverse inference without any basis for non-production of the evaluated answer papers, the marks list, etc. The 5th respondent having appeared for the test as called for has acquiesced her right to contest the case before the authorities and he also submitted that even if the authority had held that there was no bye-law or subsidiary rules, it should have directed the bank to frame necessary rules in regard to the selection of the secretary without setting aside the appointment made by the bank. Therefore, he submitted that the order passed by both the authorities are invalid, irregular and calls for interference. ( 4 ) THE learned Government Advocate has fully supported the impugned orders. The learned Counsel for the 5th respondent while repelling the argument of the learned Counsel submitted that it is a promotional post till the selection of the petitioner 5 was considered. The 5th respondent being a senior most official of the bank was discharging her duties without any blemish. The learned Counsel for the 5th respondent while repelling the argument of the learned Counsel submitted that it is a promotional post till the selection of the petitioner 5 was considered. The 5th respondent being a senior most official of the bank was discharging her duties without any blemish. On the other hand, the petitioner was suspended for certain irregularities and the same was recalled notwithstanding that there is a stigma in his service records, there was no need for conducting any test as it is only in-service selection for the post of secretary which is a promotional post. The method adopted by the board of Management is only to accommodate the petitioner. Though notice as provided under Order 18, Rule 12 of the CPC was given, the bank has not produced the answer papers, marks list or minutes to find out the manner in which the selection was done. When the bye-law or the subsidiary rules do not indicate that the post of the Secretary shall be selected and appointed, it shall be construed as promotion. Therefore, the method adopted by the bank for appointing the petitioner was rightly held to be illegal by both the authorities which does not call for interference by this Court. ( 5 ) IT is not in dispute that neither the bye-laws nor subsidiary rules of the respondent-bank provide in what manner the post of Secretary has to be filled up. But from the appointment made by the bank in respect of Nagaraj Rao who was working in the bank as an internal auditor, was selected by the committee for the post of Secretary and in that letter dated 16-12-1972 addressed to the Deputy Registrar of Co-operative societies, it is clearly mentioned that N. Nagaraj Rao was selected for the post of Secretary in the channel of promotion as he is highly qualified and senior in service. Subsequently, also in regard to A. Swamy , the official was posted as Secretary and there also it was referred that he will be promoted as an accountant from 1-5-1972. From this it is clear that till then, the post of Secretary was filled up by promotion from the officials working in the bank. Subsequently, also in regard to A. Swamy , the official was posted as Secretary and there also it was referred that he will be promoted as an accountant from 1-5-1972. From this it is clear that till then, the post of Secretary was filled up by promotion from the officials working in the bank. Even otherwise also, it is held by their Lordships of the Supreme Court in Vimal Kumari v state of Haryana and Others, that in the absence of any other criterion, seniority was rightly followed as the criterion for promotion. In that case also, the promotion was made on the basis of seniority because there were no promotional provision to specifically regulate the promotion criterion. ( 6 ) IN R. B. Desai and Another v S. K. Khanolker and Others, it is held that in service law, seniority has its own weightage and unless and until the rules specifically exclude this weightage of seniority, it is not open to the authorities to ignore the same. ( 7 ) IN T. R. S. Aradhya v Superintendent of Police, Mysore District, this court has held that a test not being prescribed under the rules, the superintendent of Police, the first respondent had no competence to evolve a mode of selection of his own for the purpose of recommending the names of Head Constables for promotion as Assistant Reserve Sub-Inspectors. In the case oh hand, the Board of Management adopted their own method by way of resolution and the same was not even placed in the general body for approval. ( 8 ) THEIR Lordships of the Supreme Court in Union of India and others v Chetan S. Naik, held that in 'promotion' criterion, promotion was to be given on the basis of seniority subject to candidate's fitness. Further, it is not in dispute that the selection was made only from the candidates who had been the employees of the bank. Applications were not called for from outsiders for the selection of the post. Therefore, it is the selection from the candidate's working in the bank. The bye-laws, rules or regulations did not provide any provisions and previously this post was treated as a promotional post. Hence, the resolution passed by the Board to select a candidate for the post of Secretary is without any basis. Therefore, it is the selection from the candidate's working in the bank. The bye-laws, rules or regulations did not provide any provisions and previously this post was treated as a promotional post. Hence, the resolution passed by the Board to select a candidate for the post of Secretary is without any basis. Having treated previously as a promotional post, the seniority should have been given due weightage. There is nothing to indicate that the respondent 5 had any stigma in her service. On the other hand, the petitioner was kept under suspension and the same was revoked. Therefore, the learned Counsel for the respondent is right in his submission that the so-called written test and also viva voce is nothing but an eyewash to select the petitioner as he happens to be their candidate. Therefore, the argument of the learned Counsel for the petitioner that the authorities have not committed error in holding that it is a promotional post is without force. ( 9 ) THE further argument of the learned Counsel for the petitioner that the authorities have committed error in drawing adverse inference without there being an order to produce the documents also is without force. Notice was served on the respondent to produce the answer papers, the marks secured in the written test as well as the viva voce and also the minutes but however, for the reasons best known to the respondents, they failed to produce the same. That being the case, the Arbitrator was right in drawing an adverse inference and more so in the manner in which the promotion was given to the petitioner. Needless to say that even before conducting the so-called interview, without assigning any reason, the petitioner was posted as a Secretary on ad hoc basis overlooking the seniority of the petitioner which was also objected to. ( 10 ) THE further argument of the learned Counsel for the petitioner that the 5th respondent having chosen to appear for the written test and also interview cannot now turn round and say that the selection made was wrong and that the test was not prescribed, etc. ( 10 ) THE further argument of the learned Counsel for the petitioner that the 5th respondent having chosen to appear for the written test and also interview cannot now turn round and say that the selection made was wrong and that the test was not prescribed, etc. This argument though appealable, the manner in which the same was conducted and also in the absence of any provisions of the appeal or the rules and regulations and the respondents having chosen to promote the officials of the bank previously treating it as a promotional post, it is not now open to the bank to contend that, the respondent 5 cannot raise this contention in the dispute. When once the selection process itself is illegal, one cannot find fault with the 5th respondent in complying with the demands of her employer. She was put in a situation where the respondent-bank had ignored her seniority and posted the petitioner as Secretary which was objected to by her and in the event had she not appeared for the interview, the bank would have made it a ground to put down her claim. Therefore, in a situation where the 5th respondent was placed, she had acted in a diligent manner and questioned the order of selection properly in accordance with the provisions of law and the act of the respondent 5 in the circumstances, cannot be held to be erroneous. ( 11 ) THE learned Counsel for the petitioner further argued that even if the authorities had come to the conclusion that there is no bye-law or subsidiary rules in regard to selection of the Secretary, ought to have directed the bank to frame the rules and to promote or select the right candidate to the post instead of cancelling the appointment of the petitioner and directing the 5th respondent to be placed in that place. This argument is unsustainable in view of the fact that the very procedure adopted by the bank was not only irregular but illegal. Therefore, the authorities could not sustain that order and that order was rightly set aside. However, in future it is open to the bank to frame the bye-laws or rules with the approval of the Competent Authority insofar as the selection of the Secretary or any other post where the rules, bye-laws, subsidiary rules are absent. Therefore, the authorities could not sustain that order and that order was rightly set aside. However, in future it is open to the bank to frame the bye-laws or rules with the approval of the Competent Authority insofar as the selection of the Secretary or any other post where the rules, bye-laws, subsidiary rules are absent. However, as far as the orders in question are concerned, they do not call for interference. ( 12 ) HENCE, the petition is dismissed holding that the 5th respondent is entitled for all consequential benefits and also costs throughout. --- *** --- .