JUDGMENT Rakesh Tiwari, J.
1. Heard learned counsel for the parties and perused the record.
2. The petitioner claims that he was appointed as a Class IV employee on 29.4.1988 in the Northern Railway Primary Co-operative Bank Ltd., Lucknow which is a Co-operative Society registered under the U.P. Co-operative Societies Act, 1965 and conies within the purview of the U.P. Co-operative Institutional Service Board. The Board has framed rules under the Act known as the U.P. Co-operative Employees Service Regulations, 1975 (hereinafter referred to as the Regulations).
3. The petitioner was posted at Moradabad Branch of the respondent-Bank. It is claimed that he possesses the Sahitya Ratna degree and is fully eligible for promotion to Class III post.
4. From a perusal of the record it appears that Regulation 27 of the Regulations prescribes that 25% of posts in Category I, 50% of posts in Category II and 85% of posts in Category III are to be held by persons recruited directly and the remaining posts in the said categories are to be held by persons appointed by promotion from amongst incumbents of posts in the just below grade or category. Thus, 15% of the sanctioned strength of posts is to be considered for promotion to posts in lowest scale of pay in Category III from the employees working in Category IV.
5. The learned,counsel tor the petitioner has placed reliance upon Regulation 27 (III ) wherein it has been provided that promotion to the posts under a Co-operative Society, whether from one grade to another within the same category of posts or from one category of posts to another category, shall all be made on the principle of seniority subject to the rejection of the unfit and an employee shall not be eligible for promotion to the next higher grade or category unless he has put in continuous service for a minimum period of three years in the post held by him.
6. The proviso to Regulation 27 (III ) provides that the employees in Category IV shall be considered for promotion to posts in Category III under the proviso to Clause (i) only after they have passed the Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh or any other examination recognized by the State Government as equivalent thereto.
7. The learned counsel for the petitioner contends that he is eligible and entitled to promotion as juniors to him as shown in Annexure 4 to the writ petition which is a Seniority List have been granted promotion to Category III posts whereas his case of promotion has been ignored though he is senior-most Category IV employee. He has placed reliance upon the decision rendered by the Hon'ble Supreme Court in B.V. Sivaiah and Ors. v. K. Addanki Babu and Ors. . He submits that in the aforesaid decision the Hon'ble Supreme Court has held that seniority-cum-merit is the criterion and not merit-cum-seniority,
8. From a perusal of Regulation 27 it is evident that the criterion for promotion is seniority subject to rejection of unfit and not seniority-cum-merit or merit-cum-seniority, hence the case cited above by the learned counsel for the petitioner is not applicable to the instant case.
9. Dr. H. N. Tripathi, learned counsel for the respondents, submits that the relief sought by the petitioner in the writ petition cannot be granted. He submits that the petitioner has prayed for the following relief in the writ petition: -
1. a writ, order or direction in the nature of certiorari quashing the circular letter dated 19.12.2003 issued by the Secretary/General Manager, Northern Railway Primary Co-operative Bank, Lucknow and all proceedings in pursuance thereto for promotion to Class III posts.
2. a writ, order or direction of suitable nature commanding the respondents to promote the petitioner to Category III with effect from the date from which persons junior than the petitioner has been so promoted with all consequential benefits of such promotion.
10. With regard to prayer No. 1 it is urged by Dr. Tripathi that the petitioner has not appended the impugned order to the writ petition and as such the prayer of writ of certiorari cannot be granted to the petitioner. It is further submitted that the petitioner has participated in the selection process; hence he cannot turn around and challenge the selection of other candidates. In support of his contention he has placed reliance on a Division Bench decision of this Court rendered in State of U.P. v. Triloki Nath Pandey and Ors. 2005 (1) E.S.C. (All.) 400, and contends that in view of this Division Bench decision the writ petition challenging criterion for promotion are not maintainable. In the case it has been held that merely because the petitioners could not succeed in test they cannot be permitted to turn around and to challenge constitution of Selection Board.
11. In so far as the second prayer of the petitioner is concerned, it is urged by Dr. Tripathi that the petitioner did not qualify in the written test as he could not obtain minimum marks required to qualify in the written test. He further submits that the petitioner has nowhere mentioned in the writ petition that the Sahitya Ratna degree obtained by him is recognized by the State Government and is equivalent to Intermediate Examination of the Board of High School and Intermediate Education, U.P. In this regard reliance has been placed by Dr. Tripathi upon paragraph 8 of the writ petition wherein it has been averred that the educational qualifications possessed by the petitioner is a Sahitya Ratna degree and the petitioner is fully qualified and eligible for promotion against a Class 111 post. This averment in the writ petition has been replied in paragraph 4 of the counter affidavit wherein a specific denial has been made stating that: -
... it is submitted that the petitioner is not qualified for promotion on the post of category III post as required under Regulation 27 of U.P. Cooperative Employees Service Regulation-1975....
12. The averment is not specific denial that the Sahitya Ratna degree obtained by the petitioner is equivalent to Intermediate Examination of the Board of High School ill and Intermediate Education, U.P. and is recognized by the State Government as equivalent thereto.
13. In so far as the question of educational qualifications of the petitioner is concerned, the petitioner admittedly possesses Sahitya Ratna degree, though there is no averment in the writ petition as to from where the petitioner has passed the Sahitya Ratna Examination and whether the same is equivalent to Intermediate Examination of the Board of High School and Intermediate Education, U.P. or any other examination recognized by the State Government equivalent thereto as provided in the proviso to Regulation 27 (III ) of the Regulations.
14. The rule of promotion applicable in the case of the petitioner is seniority subject to unfit, hence the case of B.V. Sivaiah (Supra) cited by the petitioner is not applicable to this case.
15. This Court cannot direct for promotion of the petitioner on the Class III post. It is clear from the contentions of the learned counsel for the parties that the factual dispute is required to be adjudicated on the basis of oral and documentary evidence which is not feasible under Article 226 of the Constitution. Moreover, the petitioner has alternative remedy under the labour laws.
16. For the reasons stated above, this writ petition is dismissed on the ground of alternative remedy. No order as to costs.