- 1 - IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R Inder Singh vs. Jodhpur Central Coop. Bank Ltd. & Ors. S.B.CIVIL WRIT PETITION NO.5578/2006 DATE OF ORDER : 11/4/2008 P R E S E N T HON'BLE JUSTICE GOPAL KRISHAN VYAS Mr.Harish Purohit, for the petitioner. Ms.Suman Porwal, for the respondents. In this petition, petitioner is challenging the impugned order Annex.1 dated 12/9/2006 passed by the Managing Director, Jodhpur Central Cooperative Bank Limited, Jodhpur, whereby, it is informed by the respondent Bank that why the order of confirmation passed on 2/3/2005 confirming the petitioner on the post of LDC/Cashier should not be cancelled. According to the facts of the case, petitioner was initially appointed on the post of Class IV employee on 1/12/1971 in the grade of Rs.75-120. The service of petitioner was confirmed on the said post vide order dated 7/7/1972. Since the petitioner was possessing the qualification of Higher Secondary from the Board of Secondary Education, Rajasthan, Ajmer and Bachelor - 2 - Degree from Jodhpur University, therefore, he was entitled to be promoted on the post of LDC in accordance with the Rule 41 of the Rajasthan Cooperative Societies Rules, 1966 regulating the service conditions of employees of Cooperative Banks. As per petitioner, he was possessing requisite qualification to be promoted on the post of LDC but such opportunity was not granted to him, therefore, earlier also he preferred writ petition before this Court being S.B.Civil Writ Petition No.2021/82. The said writ petition came up for hearing on 11/12/1985 and on that day it was stated by the respondents before the Court that petitioner has already been promoted, therefore, writ petition was rendered infructuous. Case of petitioner is that in the year 1983 an order was issued for promotion of petitioner on adhoc basis and petitioner was granted promotion on the post of Clerk cum Casher and he continued on the said post till 2/3/2005. The contention of petitioner in the writ petition is that though he was promoted on adhoc basis and with stipulation in the order that he is required to pass written examination conducted by the Bank but after promotion of petitioner for about 22 years no written test was conducted by the respondent Bank and petitioner was allowed to work as such, therefore, petitioner made a prayer to the respondent that he may be confirmed on the post of LDC because in earlier writ petition filed by him it was - 3 - submitted on behalf of the bank that petitioner has already been promoted and on such assertion the writ petition was rendered infructuous. Upon representation filed by the petitioner on 22/11/2004, an order was issued by the Managing Director on 2/3/2005 (Annex.2) whereby, petitioner's services were confirmed w.e.f. 24/6/1984 after one year of his adhoc promotion. In the present case, petitioner is challenging the validity of Annex.1 show cause notice dated 12/9/2006, whereby, it is observed by the respondent Bank that why the confirmation order should not be revoked because as per order dated 24/6/1983 petitioner was required to pass written test. It is contended by learned counsel for the petitioner that no written test was conducted by the respondents nor petitioner was given an opportunity to appear in written examination, therefore, in absence of conducting written examination by the respondents themselves, it cannot be said that petitioner is not entitled to hold the post of clerk/cashier, so also at this stage after allowing the petitioner to work on the post of Clerk/cashier and confirming his services, respondents have no jurisdiction to dislodge him from the post of LDC, so also there is no jurisdiction left with the respondents to withdraw the order of confirmation dated 2/3/2005. - 4 - Learned counsel for the petitioner vehemently argued that petitioner is possessing requisite qualification so also experience as provided under the Rules for promotion and he was provided promotion on adhoc basis in the year 1983 and the respondent Bank has allowed him to work as such and lateron upon prayer made by him, his services were confirmed on the post of LDC and now by way of issuing notice respondents are going to dislodge him from the post of LDC which is totally illegal action of the respondents and it is not open for respondents to unsettle the settled position which is existing from last 25 years. Therefore, petitioner has prayed that show cause notice dated 12/9/2005 may be set aside. Learned counsel for the petitioner has invited the attention of this Court towards the recent judgment rendered by Hon'ble Supreme Court in Secretary, State of Karnataka and others vs. Uma Devi and others reported in (2006) 4 SCC page 1, in which the Hon'ble Apex Court has held that if an employee is working for more that 10-15 years then his services are required to be regularised. In the present case, after more than 21 years the services of petitioner were confirmed, meaning thereby, his work was found satisfactory during the tenure and petitioner was allowed - 5 - to work without any interruption on the ground that petitioner is possessing requisite qualification and experience, therefore, at this stage even if a condition was stipulated in the promotion order for passing written examination for regular promotion, such condition has become redundant because the order of confirmation was passed on 2/3/2005. Per contra, respondents by way of filing reply stated that as per notification dated 16/7/1981 an incumbent is required to fulfill the terms and conditions of Rules for promotion. Admittedly, in the order of promotion dated 24/6/1983 passed in favour of petitioner it was made clear that petitioner is required to pass written examination and interview otherwise he will be reverted to class IV post and petitioner has not passed the written examination nor he fulfilled the terms and conditions or promotion order, therefore, action proposed by the respondents for withdrawing the confirmation order is perfectly within the jurisdiction of respondents. Therefore, mere saying that petitioner was possessing requisite qualification and working for last 21 years he cannot claim regularisation and confirmation as a matter of course and he is required to fulfill the terms and conditions of promotion order which he has admittedly not fulfilled, therefore, this writ petition deserves to be dismissed. - 6 - After hearing both the learned counsel for the parties and the material on record, it is obvious that petitioner was initially appointed on the post of Class IV employee in 1971, thereafter, his services were confirmed on the said post and in the year 1983 he was promoted on the post of LDC/Cashier on adhoc basis as he was possessing requisite qualification and experience. Upon perusal of promotion order dated 24/6/1983 it is clear that petitioner was required to pass written examination so also he was required to appear in interview but it is also an admitted position that no written examination or interview was conducted since 1983. Petitioner in para 9 of the writ petition has specifically stated that no such written examination or interview was ever conducted by the respondents prior to his confirmation and in reply to para 9 contention of petitioner is not refuted nor it is pointed out that written examination was conducted and petitioner failed to appear in the examination. More so, it is stated that whenever written examination will be conducted by the respondent Bank the petitioner should appear in the same. In these circumstances, respondents themselves failed to conduct written examination for more than 21 years then obviously upon representation made by the petitioner they were under obligation to confirm his services. In my opinion, - 7 - order confirming the service of petitioner is perfectly legal order and respondents cannot be allowed to take advantage of their own lapse. On the one hand respondents themselves did not conduct the written examination or allowed the petitioner to appear in interview and on the other hand show cause notice has been issued after passing confirmation order in favour of petitioner to withdraw the order of confirmation on the ground that he failed to pass the written examination as stipulated in the promotion order, therefore, notice issued to the petitioner for withdrawing the confirmation order is totally illegal and unconstitutional so also it is against the principles of natural justice. The instrumentalities of State are required to act in fair manner so also they are required to perform their obligatory duties within reasonable time but in this case respondents have failed to act in fair manner. The petitioner was promoted on adhoc basis in the year 1983 with the stipulation that he was to appear in written examination and interview but respondents failed to conduct the written examination for more than two decades, thereafter, when prayer was made by petitioner to confirm his services, an order of confirmation dated 2/3/2005 was passed and now vide impugned notice Annex.1 dated 12/9/2006 respondents are trying to dislodge the petitioner from - 8 - the post of LDC after allowing him to work for more than 22 years on the ground that he has not fulfilled the terms and conditions of promotion order, therefore, in my opinion, action of respondents is totally contrary to basic principles of law. Accordingly, this writ petition is allowed. Notice Annex.1 dated 12/9/2006 is hereby set aside and confirmation order Annex.2 dated 12/3/2005 is hereby upheld and respondents are directed to grant all consequential benefits to the petitioner which are available to a confirmed LDC by treating him confirmed LDC for all purposes within a period of two months from today. (GOPAL KRISHAN VYAS), J. pankaj baweja