West Bengal Court Employees Association v. State of West Bengal
2017-04-06
SAMBUDDHA CHAKRABARTI
body2017
DigiLaw.ai
JUDGMENT : Sambuddha Chakrabarti, J. 1. This writ petition is directed against the selection process of certain classes of employees belonging to various categories in the City Civil Court at Calcutta. The petitioners have specifically assailed a notice dated August 22, 2016 as well as an order dated January 20, 2017 both issued by the Chief Judge, City Civil Court at Calcutta. By the first notice the dates of written examination was notified and by the second order the successful candidates in the written examination were called to appear at the computer proficiency and personality tests on the date mentioned against their names. One of the principal prayers in the writ petition is for a direction upon the respondents to produce the records including the question-cum-answer sheets, attendance registers etc. in respect of the candidates before this court and a reassessment through a special officer to be appointed by this court. 2. Initially there were six petitioners. The first two were the West Bengal Court Employees' Association and its Working President. The other four petitioners were the candidates at the examination. In response to the query of the court if the two sets of writ petitioners could be clubbed together to maintain the writ petition, Mr. Bhattacharya, the learned Senior Counsel, appearing for the petitioners, readily agreed to the observation made by the court and submitted that the names of the petitioner nos. 3 to 6 might be expunged from the array of the petitioners. 3. If the petitioners had exercised their option of expunging the names of the petitioner nos. 1 and 2 there might not have been any issue about the maintainability of the writ petition at the instance of the other four petitioners who were the applicants for the selection process. After expunging the names of original petitioners nos. 3 to 6 the two petitioners who remained are West Bengal Court Employees' Association ('the Association' for short) and Sri Manab Majumder, its Working President. Immediately after the petitioners exercised their option of expunging the names of the actual candidates the question cropped up for consideration was whether the writ petition at the instance of the Association and its President is maintainable with the allegations as contained in the petition. 4. Undoubtedly, the writ petition questions the measures and steps taken by the respondents in the conduct of the staff recruitment examination.
4. Undoubtedly, the writ petition questions the measures and steps taken by the respondents in the conduct of the staff recruitment examination. While making out a case for the reliefs sought for the petitioners alleged various illegalities and irregularities adopted in the written examination for manipulating the answer sheets to benefit some persons. There have been recurrent and serious allegations against one Sri Saptarshi Gangopadhyay whose wife had allegedly secured 39 out of 40 marks. 5. I have heard Mr. Bhattacharya and Mr. Ghosh, the learned Advocates, for the petitioners on the question of maintainability. I have not called on the respondents to make any submission. Only Mr. De, to be fair to his clients, had informed the court that the allegations about the wife of Mr. Saptarshi Gangopadhyay being selected with fabulous marks is factually incorrect. The wife of Sri Gangopadhyay has not been selected in the first place and in the second place nobody got 39 out of 40 marks in the written examination. I take them on record and leave the matter at that. 6. The writ petition is silent about the locus of the Association to move the writ petition except that it is a registered association and the petitioner no. 2 is its working President. Therefore, they had to rely on the Memorandum of Association of the petitioner no. 1. Both Mr. Bhattacharya and Mr. Ghosh very heavily relied on the aims and objectives of the Association which have been mentioned to uplift the service conditions and protecting the interest of the employees of different courts subordinate to the High Court through discussion, strike and other ways and to unite them under the banner of the Association to foster among them fraternity, friendship, cooperation and fellow feeling etc. One of the aims and objects as mentioned in the Memorandum of Association and very strongly highlighted by the petitioners is to eradicate irregularity and corruption from court. Since, according to the petitioners, the Association has such a lofty objective they can step into every activity and lodge a protest whenever they find any corruption being practised by the court authority. 7. If the petitioners seek to derive their locus to move the writ petition from their own Memorandum of Association that may not provide complete answer to the issue. The Memorandum of Association may give enormous power to the Association.
7. If the petitioners seek to derive their locus to move the writ petition from their own Memorandum of Association that may not provide complete answer to the issue. The Memorandum of Association may give enormous power to the Association. The memorandum can be projected to the members of the Association if it is ever questioned that they are transgressing their limits. But such memorandum is not a complete, if at all any, answer to establish its locus to file a writ petition challenging the recruitment in the City Civil Court at Calcutta. 8. Mr. Ghosh has strongly relied on the judgement in the case of Fertilizer Corporation Kamagar Union (Regd.) Sindri & Ors. v. Union of India & Ors., reported in AIR 1981 SC 344 for a proposition expressed through the minority view in paragraph 48 of the judgement that if a citizen is no more than that a wayfarer or officious intervener without any interest or concern beyond what belongs to any one of the 660 million people of this country, the door of the court will not be ajar for him. But if he belongs to an association which has special interest in the subject-matter, if he has some concern deeper than that of a busybody he cannot be told off at the gates although whether the issue raised by him is justiciable may still remain to be considered. He also relied on paragraph 23 of the judgement where the majority of the Hon'ble Judges had disposed of the issue relating to locus of the concerned union to maintain the petition under Article 32 of the Constitution of India holding that if public property is dissipated it would require a strong argument to convince the court that representative segments of the public or at least a section of the public which is directly interested and affected would have no right to complain of the infarction of public duties and obligations. 9. In that case the Union challenged the legality of sale of certain plants and equipments of Sindri Fertilizer factory whereby highest tender submitted by the respondent no. 4 was accepted. The relief sought by the petitioners was that the respondents should be directed not to sell away the plant and equipment, they should be asked to withdraw their decision to sell the same and the said decision should be quashed.
4 was accepted. The relief sought by the petitioners was that the respondents should be directed not to sell away the plant and equipment, they should be asked to withdraw their decision to sell the same and the said decision should be quashed. The Union challenged the sale on various grounds one of them being that the sale had jeopardized the employment of eleven thousand workers who faced retrenchment as a result of the sale and that by itself definitely conferred a right on the workers' Union to agitate over the issue as, if the sale could be set aside, not only the other benefits might accrue at different levels the employment of eleven thousand employees could be saved and a union primarily exists to protect the interest of its members. It was in this context that the court had referred to the concerned Union as an organization having a special interest in the subject-matter and having a concern deeper than that of a busybody. Under such circumstances such a union cannot be very easily shown the gates. The point has also been very specifically clarified by the majority view in paragraph 23 that in appropriate cases it may become necessary to take a deeper view of the question of locus to initiate a proceeding both under Article 226 as well as under Article 32 of the Constitution of India. 10. This takes us to the question whether the case in hand satisfies the 'appropriate cases' as referred to by the Supreme Court. That in appropriate cases the issue of locus is relaxed and the strict law relating to it based on personal legal right and its violation give way to a broader view have been very well settled over the years. The concept of locus has been widened very significantly in the past four decades. The persons or organization which were hitherto not found competent to initiate a proceeding have been given sufficient right to challenge an action, particularly when the persons at the receiving end of the injustice cannot themselves ventilate the grievance. That is why public interest litigation has been initiated and encouraged in court proceedings. 11.
The persons or organization which were hitherto not found competent to initiate a proceeding have been given sufficient right to challenge an action, particularly when the persons at the receiving end of the injustice cannot themselves ventilate the grievance. That is why public interest litigation has been initiated and encouraged in court proceedings. 11. But the degree and extent of relaxation has not reached that stage where an Association which has no direct nexus with a recruitment process shall come and challenge the same on the ground of the alleged illegalities committed by the respondents. This is not an Association meant for the employees of the City Civil Court at Calcutta only. The Association may have an objective of protesting against corruptions. But in spite of it how this Association can challenge the recruitment and ask for the setting aside of the notices impugned in the writ petition are not very clear. What axe does the Association have to grind? What special interest can it have in the matter? 12. More pertinently, if not bluntly, it can be put: who are they to question the alleged illegalities in preference to those who had been directly involved in the process of recruitment as candidates? It may not be forgotten for a moment that on being given the option the petitioners wanted the names of the candidates of the selection process to be expunged. They certainly did have a locus. But when their names were expunged an Association which is not involved with the recruitment process and which is not a party to it cannot be heard in the name of the right given by the Association unto themselves to protest against all alleged corruptions. 13. More in the manner of a soliloquy Mr. Ghosh raised a question that if some illegality is brought to the notice of the court by him whether the court shall entertain it. Such a theoretical question cannot be answered in vacuum. It all depends upon the manner and circumstances. If he says, for example, that a statutory body had passed a wrong order in dismissing an employee the court may not be moved even if its notice is drawn to it, unless of course the person concerned comes and makes a grievance. On the other hand if Mr.
It all depends upon the manner and circumstances. If he says, for example, that a statutory body had passed a wrong order in dismissing an employee the court may not be moved even if its notice is drawn to it, unless of course the person concerned comes and makes a grievance. On the other hand if Mr. Ghosh today complains that one of my orders has been forged by somebody with an oblique purpose the court will certainly and instantaneously take that into consideration and pass necessary order. Therefore, no straight-jacket answer in vacuo can be given. Even when the very broadened and widened concept of locus is accepted, unless it is in the form of a public interest litigation, an association or an organization unconnected with the process of recruitment cannot be allowed to agitate the same in preference to the real candidates who have been expunged on the prayer of Mr. Bhattacharyya. 14. Here the petitioners have not thrown any light even on the slender connection between the Association and the examination process. No member of the Association has been affected. Mere complaint about the conduct of an examination may not confer any right on the Association to espouse the cause of its, non-members. In Sand Carrier's Owners' Union and Ors. v. Board of Trustees for Calcutta and Ors., reported in AIR 1990 Cal 176 , it has been held that in India the law relating to locus standi comes under four heads, viz., individual standing, statutory standing, public interest and citizen participation and representative action. If at all, the petitioners could come under the last head. Even a representative action may be initiated by any member of the class affected by any order or action on the part of the authority. In Sand Carrier's (supra) case it has been held that a writ petition at the instance of an association is not maintainable where the association itself is not affected by the order. 15. Mr. Bhattacharya submitted that in service matters public interest litigation does not lie. Normally so. But in a case matter most certainly a petition under Article 226 of the Constitution of India lies at the instance of a candidate who had appeared at the examination and who might have suffered for the alleged irregularities and improprieties committed by the respondents. 16.
Bhattacharya submitted that in service matters public interest litigation does not lie. Normally so. But in a case matter most certainly a petition under Article 226 of the Constitution of India lies at the instance of a candidate who had appeared at the examination and who might have suffered for the alleged irregularities and improprieties committed by the respondents. 16. In find no reason to admit the writ petition at the instance of the concerned Association and its working President. 17. The writ petition is dismissed for want of locus. 18. There shall, however, be no order as to costs.