Bridge & Roof Company (India) Limited Executives’ Association v. UNION OF INDIA
2009-03-20
S.P.TALUKDAR
body2009
DigiLaw.ai
JUDGMENT S.P. Talukdar, J. The Notification dated 14th November, 2007 issued by the Public Enterprises Selection Board, Department of Personnel & Training, being Annexure-'P-5', is under challenge in the present application under Article 226 of the Constitution. 2. The said notification relates to "Selection for the post of Director (Finance) in Bridge &. Roof Co. (I) Ltd. in Schedule 'C' scole of pay". 3. Grievance of the petitioners, as ventilated by learned Counsel, may briefly be encapsulated as follows : The petitioner No. 1 is the Trade Union registered under the Trade Unions Act and petitioner No. 2 is an employee of the respondent No. 2. The petitioner No. 1 under its constitution is to espouse the cause and interest of its members, who are employees of the respondent company. It is concerned with the smooth functioning and development of the respondent No. 2 company. Petitioner No. 1 as per its constitution has the object to strive to ameliorate the stature of Bridge and Roof Company (India) Limited in order to improve the condition of its members by negotiation with the Employer/ Management/Union of India and undertake legal proceedings for protection of the said purpose. There was a Notification dated 25th January, 2007 whereby the Deputy Secretary of the Public Enterprises Selection, Board (hereinafter referred to as "PESB") apprised the respondent No. 2 that it was on the look out for a suitable candidate for the post of Director (Finance) for the respondent company No. 2. There was request to forward the names of willing eligible candidates seniority-wise, who were found suitable for the said post as per the requirements indicated in the job description along with their up-to-dale bio-data (in the prescribed form) within 30 days from the issue of that letter. By a notification dated 21st March, 2007, the under Secretary of the respondent No. 1 apprised the respondent No. 2 that the PESB would consider selection for the post of Director (Finance), Bridge and Roof Co. (I) Ltd. on 9th April, 2007 in the PESB Board room. A list of 19 candidates short-listed for the said post was enclosed. But it was found that by a subsequent notification dated 14th November, 2007 issued by the Deputy Secretary of the respondent No. 1, the PESB was looking out for a suitable candidate for the post of Director (Finance) in the respondent No. 2 company.
A list of 19 candidates short-listed for the said post was enclosed. But it was found that by a subsequent notification dated 14th November, 2007 issued by the Deputy Secretary of the respondent No. 1, the PESB was looking out for a suitable candidate for the post of Director (Finance) in the respondent No. 2 company. By letter dated 30th November, 2007, the Secretary of the Bridge and Roof Employees' Union invited attention of the respondent No. 4 to the advertisement in the website on 14th November, 2007. It was pointed out that selection for the post was already made by the PESB by way of empanelling two internal candidates of the company during April, 2007, Issuance of further advertisement and initiation of fresh interview for the same post was, thus, challenged and cancellation of the said Notification dated 14th November, 2007 was sought for. The petitioner No. 2 by letter dated 1st December, 2007, sought for the status of the result of the earlier selection process and the reasons for announcement of another notification in connection with filling up of the same post after elapse of about eight months. Despite repeated approaches, the respondent authority did not choose to respond. Initiation of fresh selection process by issuing notification without disclosing the result of the earlier selection process, thus, allegedly had a demoralizing effect on the concerned employees. It further reflected ulterior motive on the part of the respondent authority. Some members of the petitioner union participated in the selection process initiated on the basis of the earlier notification dated 21st March, 2007. The subsequent Notification dated 14th November, 2007 keeping such participants in dark with regard to the fate of the earlier selection process has, thus, been challenged on the ground that it is unfair, arbitrary, unreasonable and unjust. Thus, the petitioners approached this Court for redressal of their grievances by way of quashing the purported Notification dated 14th November, 2007. 4. Respondent Nos. 1 and 4 contested the case by filing affidavit-in opposition wherein all the material allegations made by the writ petitioners had been denied, 5. They claimed that the petitioners have no locus standi to file the instant application. It is claimed that in response to the notification dated 25th January, 2007 applications of various candidates including that of two officials of the Bridge and Roof Company (I) Ltd. were duly forwarded by respondent No. 2.
They claimed that the petitioners have no locus standi to file the instant application. It is claimed that in response to the notification dated 25th January, 2007 applications of various candidates including that of two officials of the Bridge and Roof Company (I) Ltd. were duly forwarded by respondent No. 2. Based on the information received in these applications, the names of the candidates were sent to the Deputy Secretary, PESB for further necessary action. PESB by letter dated 21st March, 2007 called for interview for the post on 9th April, 2007. It recommended a panel of officials for the post of Director (Finance). 6. In the meantime, a complaint was received alleging that the candidates, who had applied from the respondent No. 2, were not eligible for the post of Director (Finance). The matter was examined. It was found that two internal candidates had suppressed the fact that they were designated to the post of General Manager only from the 7th November, 2006 to avoid the condition of at least one year serving as designated General Manager' as required for consideration for the post of Director (Finance), The promotion of the said two officers to the post two General Managers were made on 7.11.2006 with retrospective effect i.e. 01.04.2006, which is against the rules. There were only two available vacancies whereas five officers, including the two officers concerning the petition, were promoted. Thus, three officers were promoted without even having any vacancy. The two officers so promoted were not eligible for appointment of Director (Finance) since they were not having the minimum qualifying experience of one year as on date of vacancy i.e. 1.5.2007 since the interview for the post of General Manager was held on 7th November, 2006. 7. In such view of the matter, with the approval of the competent authority the panel recommended by the PESB was scrapped. PESB was requested to initiate fresh selection process for the post of Director (Finance). As the age of superannuation was put 58 years instead of 60 years, another notification had been issued by the PESB for this purpose on 21/22.11.2007. The earlier panel was thus, scrapped in order to maintain transparency and justice in the selection process.
PESB was requested to initiate fresh selection process for the post of Director (Finance). As the age of superannuation was put 58 years instead of 60 years, another notification had been issued by the PESB for this purpose on 21/22.11.2007. The earlier panel was thus, scrapped in order to maintain transparency and justice in the selection process. It was further claimed that the petitioners do not have any cause of action this being the case of Presidential Board Level Appointment not involving promotion under the purview of respondent No. 2. The application is, thus, not maintainable and is liable to be dismissed. 8. In the supplementary affidavit, the respondent Nos. 1 and 4 had brought the circular dated 1.12.2006 and the letter dated 27.2.2007 with enclosures on record and sought for treating the same as a part of the affidavit-in opposition. 9. In response to that, the writ petitioners categorically denied that there had been any suppression of fact by the two internal candidates of the respondent No. 2. It had been claimed that such candidates were given E-7 Grade in the pay scale of Rs. 18,500-23,900 (post 1.1.1997 scale) w.e.f. 1st April, 2006 and thus, the said candidates fulfilled the requirement of experience as contained in para-II and para-III of the job descriptions as contained in the notification dated 25th January, 2007. This prompted the respondent No. 2 to forward their applications to Bharat Yantra Nigam Ltd. which in turn forwarded the same. It was further claimed that even on the basis of the revised notification dated 14th November, 2007, being Annexure 'P-5' to the petition, the said two candidates applied for the post in the prescribed profonna but were not called for interview. It was further claimed that the said two candidates had been performing the duties of General Manager w.e.r. 1" April, 2006 as there was no General Manager for the said post on that date. The stand of the respondent authority was challenged on the ground of lack of transparency. It was further claimed that the alleged complaint made by one Shakti Pada Gol, addressed to the Hon'ble Minister, ought to have been disclosed. It was made by a person for oblique purpose to sub serve his own interest for being considered for appointment to the post of Director (Finance) in respect of which he was ineligible in terms of the Notification dated 25th January, 2007.
It was made by a person for oblique purpose to sub serve his own interest for being considered for appointment to the post of Director (Finance) in respect of which he was ineligible in terms of the Notification dated 25th January, 2007. Unless there was a possibility of roll forward of the age of retirement from 58 to 60 years, the said complaint would not have been made at all. The said complainant participated in the selection process initiated on the basis of the fresh Notification dated 14 November, 2007. The authority concerned was not justified to scrap the entire panel without affording any opportunity of hearing to the internal candidates. The principle of audi alteram partem was, thus, violated. 10. Mr. Mitra, as learned Senior Counsel for the petitioners, first invited attention of the Court to the Annexure-P-4 at page 31. This is a communication dated 21st March, 2007 made by the under Secretary to the Government of India, PESB (Deptt. of Personnel & Trng). It relates to selection for the post of Director (Finance), Bridge & Roof Co. (I) Ltd. It reflects that a list of 9 candidates short-listed for the said post was forwarded. Managing Director of the Bridge & Roof Co. (India) Ltd. was requested to attend the meeting and assist the Board in making its recommendation. The communication dated 14th November, 2007, being Annexure-'P-5' at page 33 also relates to the selection for the post of Director (Finance) in the said company. Referring to the same, it was submitted by Mr. Mitra, that it does not reflect any reason as to why the earlier communication dated 25.1.2007, being Anneuxre-'P3' at page 28 was superseded. 11. Mr. Partha Sarathi Sengupta as learned Counsel for the respondent, first raised dispute regarding maintainability of the present application. He submitted that such an application filed by the present petitioners cannot be entertained on the mere plea that the petitioner No. 1 under its constitution is to espouse the cause and interest of its members. Such application does not even satisfactorily reflect that the candidates are members of such association. 12.
He submitted that such an application filed by the present petitioners cannot be entertained on the mere plea that the petitioner No. 1 under its constitution is to espouse the cause and interest of its members. Such application does not even satisfactorily reflect that the candidates are members of such association. 12. Referring to the Single Bench decision of this Court in the case of All Bengal Legal Husking Mill Owners’ Association vs. State of West Bengal, as reported in 1997 (2) CLJ 204, it was submitted that since the association itself is not affected, even assuming that some members of the association are aggrieved, the writ petition at the instance of such association is not maintainable for the purpose of enforcement of the rights of its members. In the said case, this Court held that "an unincorporated association has no legal personality and so could not apply for judicial review in its own name even if each members of such association had standing to apply personally. Even assuming that it is not an unincorporated but a registered body, in that event it has to be established that such a body is competent by virtue of its Constitution to file a writ application to espouse the cause of the members." 13. In fact, the learned Court in the said case relied upon its earlier decision in the case of Sand Carrier's Owners' Union vs. Board of Trustees for the Port of Calcutta & Ors., as reported in 1989 (2) CLJ 201 . Mr. Sengupta, thus, seriously challenged the locus standi of the petitioners. 14. In the case of Jasbhai Motibhai Desai vs. Roshan Kumar, Haji Bashir Ahmed & Ors., as reported in AIR 1976 SC 578 , the Apex Court observed ;- "In order to have the locus standi to invoke certiorari jurisdiction, the petitioner should be an 'aggrieved person'. The expression 'aggrieved person denotes an elastic, and, to an extent, an elusive concept. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner's interest, and the nature and extent of the prejudice or injury suffered by him." 15.
Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner's interest, and the nature and extent of the prejudice or injury suffered by him." 15. The words 'person aggrieved' do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made. A 'person aggrieved' must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something. [Ref: Re Sidebothem, (1880) 145 Ch D. 458 at p. 465]. 16. Reference was also made to the decision in the Director General, Ordnance Factories Employees' Association vs. Union of India & Director Gen. Ordnance Factories, as reported in 1974 CWN 1. The learned Court in connection with the said case observed that recognition gives an employees' association only a status in its relationship and dealings with the employer. It has nothing to do with the representation of its members in a litigation before a Court of Law. 17. In the factual backdrop of the said case, the learned Court observed that "where an association is permitted by law to bring a legal proceeding, it can bring an application under Article 226 of the Constitution only when its rights as a collective body as distinguished from the aggregate rights of its members are affected by the act challenged in the proceedings e.g. where it is already a party to the impugned order." 18. Attention of the Court was invited to the decision of the learned Division Bench of the Madras High Court in the case of Tamil Nadu Uthaviperum Thodakka Nadunilai Palli Nirvagigal vs. State of Tamil Nadu & Ors., as reported in 2006(1) SLR 751, while submitting that it is well settled by a series of decisions of the Supreme Court that no such representative writ can be filed in service matter and instead the aggrieved individual alone can file the writ petition. 19. It was, thus, emphatically submitted by Mr. Sengupta that in service matters, writ applications cannot be filed in representative capacity. 20. In response to this, Mr.
19. It was, thus, emphatically submitted by Mr. Sengupta that in service matters, writ applications cannot be filed in representative capacity. 20. In response to this, Mr. Mitra contended that the concept of locus standi has undergone significant change with the passage of time Referring to the case of All Bengal Legal Husking Mill Owners' Association (Supra), Mr. Mitra submitted that the said case relates to unincorporated association whereas the present petitioner No. 1 is a registered body. It was further submitted that the respondents had not alleged that the association cannot have any manner of interest or involvement in the matter under dispute in the present writ proceeding. On behalf of the petitioners, it was claimed that when there is a violation of the principles of natural justice, Writ Court cannot keep its doors shut on the plea that the petitioner does not have locus standi. 21. After due regard to the submission made by learned Counsel for the parties regarding 'locus standi', the position of law may be summed up as follows : (i) Individual person aggrieved by any action or inaction on the part of a State or authority under Article 12 of the Constitution can move the writ application. This also applies to partnership firm, company; corporation, labour union etc. if their rights are directly affected. (ii) The associations or persons who may not have a direct personal interest can also approach this Court with a writ application when statute has conferred standing or locus standi. (iii) In case of public interest litigation, the persons concerned who move such writ application not for enforcing his personal right but filed by public spirited and individual espousing the cause of large number of people who are suffering under some legal wrong or injury and such person or determinated class of person is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for relief and in such case any member of the public can maintain writ application. (iv) Representative action or class action may be initiated by any members of the class affected by any order or action or inaction on the part of the Government and/or authorities. (v) As held in the case of Sand Carrier's Owners' Union & Ors.
(iv) Representative action or class action may be initiated by any members of the class affected by any order or action or inaction on the part of the Government and/or authorities. (v) As held in the case of Sand Carrier's Owners' Union & Ors. (supra), the writ petition at the instance of an association is not maintainable where the association itself is not affected by any order. 22. So far the present case is concerned, the petitioner No. 1 has been described as a Trade Union registered under the Trade Unions Act. It reportedly represents executive category of employees of Bridge & Roof Co. (I) Ltd. Petitioner No. 2 is an employee of the said company. What is under challenge in the present application is a decision of the concerned authority in the matter of selection for the post of Director (Finance) in the said company. Even assuming that the petitioner No. 1 by virtue of its constitution is required to espouse the cause and interest of its members, I do not think that it can be so extended so as to be permitted to raise grievance even in the matter of selection in the post of Director (Finance). It was submitted on behalf of the respondents that such a selection for the post of Director (Finance) is made following a course, which cannot in any manner affect the interest of petitioner No. 1 or its members. In fact, Director (Finance) is a member of the Board of Directors and reports to Chairman and Managing Director. He is overall in charge of finance and accounts functions of the organization and is responsible for evolving and formulating finance policies. The selection is not confined to the internal candidates but it is otherwise open even to outsiders. The qualifications and experience as referred to is that the incumbent should be a Cost Accountant/Chartered Accountant/MBA with specialization in Finance with good academic record from a recognized university/institution. Such candidate is required to have managerial experience at a senior level incorporate financial management and accounts including Cost and Budgetary Control, Institutional finance, Working Capital Management in an organization of repute. Relaxation regarding minimum qualification was made in the case of internal candidates having sound and adequate background and experience. 23. No doubt, the concept of locus standi has really undergone radical change in recent times.
Relaxation regarding minimum qualification was made in the case of internal candidates having sound and adequate background and experience. 23. No doubt, the concept of locus standi has really undergone radical change in recent times. But I think it difficult to give it so much of elasticity so as to accommodate the present case as well and that too, in the manner it had been filed. Mere fact that the impugned action on the part of the respondent authority is likely to have a demoralizing effect on the employees of the Bridge & Roof Co. (I) Ltd. and members of the petitioner No. 1, cannot by itself be a sufficient justification for entertaining the grievances. By no stretch of imagination, it can be said that the present petitioners have anything; directly to do with the selection process for recruitment in the post of Director (Finance). The argument advanced by Mr. Sengupta in this regard, thus, cannot just be brushed aside. 24. Views of Lord Denning in this context may be summed up as follows : "In administrative law the question locus standi is the most vexed question of all. I must confess that whenever an ordinary citizen comes to the Court of Appeal and complains that this or that Government department - or this or that local authority - or this or that trade union is abusing or misusing its power - I always like to hear what he has to say. For I remember what Mr. T.P. Curran of the Middle Temple said in the year 1970 : 'It is ever the fate of the indolent to find their rights become a prey to the active. The condition upon which God hath given liberty to man is eternal vigilance'. The ordinary citizen who comes to the Court in this way is usually the vigilant one. Sometimes he is a mere busybody interfering with things which do not concern him. Then let him be turned down. But when he has a point which affects the rights and liberties of all the citizens, then I would hope that he would be heard for there is no other person or body to whom he can appeal. But, I am afraid that not everyone agrees with me." 25.
Then let him be turned down. But when he has a point which affects the rights and liberties of all the citizens, then I would hope that he would be heard for there is no other person or body to whom he can appeal. But, I am afraid that not everyone agrees with me." 25. On behalf of the writ petitioners, it was claimed that there could be no justification whatsoever for the respondent authority to suddenly supersede the earlier notification dated 21st March 2007 and issue further notification dated 14th November, 2007 long after eight months. 26. In this regard, the respondents in the affidavit-in-opposition clearly spelt out the reasons behind the same. It cannot be said that the subsequent Notification dated 14th November, 2007 is a product of non-application of mind and non-consideration of relevant materials. 27. Even assuming that some members of the petitioners union participated in the selection process on the basis of the earlier notification dated 21st March, 2007, it cannot be said that any right accrued in their favour. It is well settled principle of law that even empanelled candidates cannot be said to have any right to employment unless the scrapping of the panel otherwise suffers from arbitrariness. It was quite rightly submitted on behalf of the, respondent authorities that the petitioners did not allege any malice in fact since none has been made a party by name in the present writ application. 28. Mere participation in the selection process could not by any means give rise to any legitimate expectation. The authority concerned can be under no legal obligation to act upon the result of such selection process and it also cannot be said that cancellation of the same and then again, issuance of a fresh notification for selection in the said post, thus, could be said to be illegal or irrational. There could be no reason whatsoever to assail the same on the ground of any procedural impropriety. 29. Referring to the materials on record, it was submitted on behalf of the respondent authority that the promotion of the two internal candidates to the post of General Manager with retrospective effect cannot pass the test of judicial scrutiny. In fact, that was the crux of the controversy which, according to the respondent authority, compelled them to initiate fresh selection process.
In fact, that was the crux of the controversy which, according to the respondent authority, compelled them to initiate fresh selection process. The writ petitioners claimed that the subsequent Notification and the initiation of a fresh selection process suffers from lack of transparency. It was urged that cancellation of the earlier selection process on the basis of the notification dated 21st March, 2007 was not justified particularly when no ground was disclosed in that regard. 30. In this context, it may be necessary to refer to the fact that the promotion with retrospective effect does not really add to 'experience'. 31. Considering all such facts and circumstances, I find it difficult, if not impossible, to appreciate the grievances, as raised in the present writ application. The present case accordingly fails and be dismissed. Interim order, if any, stands vacated. 32. There is no order as to costs. 33. Xerox certified copy of the judgment be supplied to the parties, if applied for, as possible. Later: 34. Immediately after passing of the said judgment and order, learned Counsel for the writ petitioner has sought for stay of operation of the same. This is opposed by the learned for the respondent authority. After due consideration of the relevant aspects, such prayer for stay is refused. 35. Urgent xerox certified copy of this judgment and order, if applied for, be supplied to the parties subject to compliance with all requisite formalities. Appeal dismissed.