H KEMPARAJU Vs. KARNATAKA APPELLATE TRIBUNAL BANGALORE

JUDGEMENT

(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.

(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.