Jharkhand High Court
Jharkhand Ayurvedic & Unani Me vs State Of Jharkhand & Ors. on 7 August, 2012
Author: D.N.Patel
Bench: D. N. Patel
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 1825 of 2010
Jharkhand Ayurvedic & Unani Medical
Officer's Union ...... Petitioner
Versus
State of Jharkhand & ors. ...... Respondents
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CORAM: HON'BLE MR. JUSTICE D. N. PATEL
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For the petitioner: Mr. Dilip Kumar Prasad, Advocate
For the State: J.C. to Sr. S.C.-II
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Order No. 06: Dated 7th August, 2012
Per D.N.Patel, J.
1. Learned counsel for the petitioner submitted that for the following
relief, the instant writ petition has been preferred by the petitioner-
Union on behalf of its members:
(i) For a direction upon the respondent no.4 to dispose of
the representation dated 9.3.2009 as contained in Annexure
11 with a reasoned order; within a stipulated period to be fixed
by this Hon'ble Court wherein prayer has been made to
remove the pay anomaly and grant the pay scale of
Rs.9300-34800/- with pay Grade of Rs.5400/- in Grade- S-15
since 1.1.2006; but reduced thereafter illegally to the scale of
Rs.9300-34800/- with Pay Grade of Rs.4200/- in Grade- S-12;
(ii) For quashing the recommendation of the Finance
Department granting the pay scale of Rs.9300-34800/- with
Pay Grade of Rs.4200/- in Grade- S-12 for the non existing
post of Baidya in place of Ayurvedic Medical Officer as
contained in Annexure 6;
(iii) For issuance of a writ in the nature of mandamus
commanding upon the respondent authorities to grant the pay
scale of Rs.9300-34800/- with Grade Pay of Rs.5400/- in
Grade- S-15 since 1.1.2006 and accordingly the dues thereof.
2. Learned counsel for the State has raised preliminary objection
that the writ petition is not tenable at law, because the petitioner has no
locus standi and no fundamental right or any other right of the
petitioner-Union is violated by the respondents and has relied upon the
decisions, rendered by the Hon'ble Apex Court in the cases of B.
2
Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage
Board Employees' Assn. & ors., as reported in (2006)11 SCC
731(II), Mahinder Kumar Gupta & ors. v. Union of India, as reported
in (1995)1 SCC 85, the decision, rendered by Hon'ble High Court of
Rajasthan in the case of Parents Teachers Association and ors. v.
Chairman, Kendriya Vidyalaya Sangathan and ors., as reported in
AIR 2001 Rajasthan 35, Umesh Chand Vinod Kumar & ors. v.
Krishi Utpadan Mandai Samiti & anr., as reported in AIR 1984
Allahabad 46, The Goa Judicial Officers' Association v. The State
of Goa & ors., as reported in (1996)2 Mah. L.R. 9: (1997)4 Bom. C.R.
372, and has submitted that in the facts of the present case, the
petitioner's fundamental right has not been violated at all by the State.
3. Having heard learned counsel for both the sides on this
preliminary issue and looking to the facts and circumstances of the
case and also looking to the prayer, made in this writ petition, it
appears that the petitioner-Union is seeking removal of pay anomaly
and grant of pay scale of Rs.9300-34800/- with Grade Pay of
Rs.5400/- in Grade- S-15, since 1.1.2006.
4. Following are the questions of law, which has been raised in this
writ petition at paragraph no.2:
(a) Whether it is open for the Finance Department to reduce
the pay scale of petitioners Union, setting aside the
recommendation of Jharkhand State FITMENT COMMITTEE
which provided the 6th Pay revision in consonence with the 6th
Pay Revision of Central Government for all the Doctors i.e.
Allopathic, Ayurvedic Unani and Homeopathy vide Chapter-3
Index 3.1.3 ?
(b) Whether the fixation of pay scale @ Rs.6500-10500/- for
the non existing post of BAIDYA by the Finance Department is
arbitrary, illegal and gross misuse of power as the said scale
was itself upgraded in the 5th Pay Revision Commission i.e.
Rs.2200-4000/- revised to Rs.6500-10500/- vide Letter No.
660 F/2 dated 8th February 1999 and later on vide Letter No.
3589 dated 17.12.2007 said scale was itself upgraded in the
scale of Rs.8000-13500/- and after promotion of first A.C.P.,
the scale of Rs.10000-15200/- has been made ?
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(c) Whether the Petitioners Union Members who were
appointed by the BIHAR PUBLIC SERVICE COMMISSION
(B.P.S.C.) as Ayurvedic Medical Officer can be designated as
BAIDYA which stood obviated vide Letter No. 30/Indigenous
Medicine/Health, Patna dated 10.1.1981 ?
(d) Whether the action of Respondent No.4 who was
supposed to dispose off the representation of Petitioners
Union within 4 months in terms of Letter No. 669/F/dated
2.3.2009can keep the matter pending for one year causing serious loss to them ?
(e) Whether the Petitioner's Union is entitled to get the pay scale of Rs.9300-34800/- with pay grade of Rs.5400/- in Grade- S-15 since 1.1.2006 the date of recommendation of 6th Pay Revision Commission, Jharkhand and consequently the arrear as well thereupon ?
5. It appears that the petitioner-Union, who has filed the instant writ petition, has not annexed any resolution of its Members to file the instant writ petition and in absence of such authority, this type of writ petition cannot be preferred by the petitioner-Union, irrespective of the fact, whether it is registered or not, because if the authority is given to the petitioner-Union by its Members, then it will create estoppel on their part to file another writ petition for the very same relief, if this writ petition, preferred by the present petitioner-Union, is dismissed. No such authority has been given by the members of the petitioner-Union and there is no Annexure to this effect in the memo of writ petition.
6. Likewise, learned counsel for the petitioner-Union is unable to point out before this Court that there are Rules or Regulations of the Association/Union, specifically authorizing it to initiate the legal proceedings on behalf of its Members, so that any order passed by the Court in such proceedings, will be binding on its Members and, therefore also, the petitioner-Union has no locus standi to file this writ petition.
7. Looking to the nature of the writ petition, it appears that no Public Interest Litigation at large is involved in this writ petition. The petition is confined for the Member of the petitioner-Union only and that too, for getting particular pay scale. Thus, the public at large is not 4 interested in the outcome of this writ petition. On the contrary, it is a private interest litigation for some of the members of the petitioner- Union.
8. It further appears that the Members of the petitioner-Union are in the Government services with the respondent-State of Jharkhand and it is not a case of the petitioner-Union that its Members are unable to approach the Court by reasons of:
(a) Poverty;
(b) Disability; and
(c) Socially or Economically disadvantaged position.
9. On the contrary, looking to the facts of the present case, it appears that the Members of the petitioner-Union, who are government servants, are able to approach the Court to ventilate their grievances for getting a particular pay scale and such other prayers, as made in this writ petition.
10. It has been held by the Hon'ble Apex Court in the case of B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees' Assn. & ors., as reported in (2006)11 SCC 731(II), at paragraph no.51, as under:
"51. It is settled law by a catena of decisions that the court cannot sit in judgment over the wisdom of the Government in the choice of the person to be appointed so long as the person chosen possesses the prescribed qualification and is otherwise eligible for appointment. This Court in R.K. Jain v. Union of India was pleased to hold that the evaluation of the comparative merits of the candidates would not be gone into a public interest litigation and only in a proceeding initiated by an aggrieved person, may it be open to be considered. It was also held that in service jurisprudence it is settled law that it is for the aggrieved person, that is, the non-appointee to assail the legality or correctness of the action and that a third party has no locus standi to canvass the legality or correctness of the action. Further, it was declared that public law declaration would only be made at the behest of a public-spirited person coming before the court as a petitioner. Having regard to the fact that neither Respondents 1 and 2 were or could have been candidates for the post of Managing Director of the Board and the High Court could not have gone beyond the limits of quo warranto so very well delineated by a catena of decisions of this Court and applied the test which could not have been applied even in a certiorari proceedings brought before the Court by an aggrieved party who was a candidate for the post."
(Emphasis supplied) It has also been held by the Hon'ble Supreme Court in the 5 case of S.P.Gupta v. Union of India, as reported in 1981 Supp. SCC 87: A.I.R.1982 SC 149, that poverty, helplessness and disability or social or economic disadvantaged position was considered a sufficient ground for maintaining the writ petition by persons other than aggrieved. The following criteria are to be kept in mind for the locus standi in such type of cases:
(a) That the members of the said association should have sufficient strength so as to come in the category of a large section of public,
(b) That the members should be identifiable,
(c) That the members must be of the category of poor/illiterate/helpless of disabled,
(d) That the individual members must not be capable of filing a writ petition,
(e) That the entire body of the members must authorize the association to protect their legal rights;
(f) That such an association must have its own
constitution, and
(g) That there must be authority to file a writ petition on
behalf of all the members.
In the instant case, none of the grounds, mentioned above in clause (a) to (g), has been satisfied by the present petitioner to maintain the writ petition.
11. In view of the aforesaid facts that the petitioner-Union has no authority to file this writ petition on behalf of its Members and in absence of such resolution, the petitioner-Union has no locus standi to file this writ petition.
12. When this Court has asked the learned counsel for the petitioner-Union whether the petitioner is a registered Union/ Association or not, he is unable to point out whether the petitioner- Union is a registered Union. The fact about registration of the petitioner-Union has also not been stated in this writ petition and, therefore, this writ petition is not tenable in law.
13. It has been held by the Hon'ble Allahabad High Court in the case of Umesh Chand Vinod Kumar & ors. v. Krishi Utpadan Mandi Samiti & anr., as reported in A.I.R. 1984 Allahabad 46 (FB), at paragraph no.20, as under:
"20. To summarise, the position appears to be that an association of persons, registered or unregistered, can file a petition under Article 226 for enforcement of the rights of its members as distinguished from the 6 enforcement of its own rights-
(1) In case members of such an association are themselves unable to approach the court by reason of poverty, disability or socially or economically disadvantaged position "little Indians", (2) In case of a public injury leading to public interest litigation provided the association has some concern deeper than that of a way-farer or a busybody i.e. it has a special interest in the subject matter, (3) Where the rules or regulations of the association specifically authorize it to take legal proceedings on behalf of its members, so that any order passed by the court in such proceedings will be binding on the members.
(Emphasis supplied) It has been held by the Hon'ble High Court of Rajasthan in the case of The R.S.E.B. Accountants v. The Rajasthan State Electricity, decided on 30th June, 1995, as reported in 1995(3) WLC 1 (Full Bench), that if all the conditions of Clause (a) to (g), as referred to above in the earlier paragraphs, are fulfilled, then only the unregistered Association can file a writ petition, otherwise such Association cannot file a writ petition, alleging breach of fundamental rights, as the Association by itself has not fundamental right of its own.
(Emphasis supplied) Same view has been taken by the Hon'ble Rajasthan High Court in a decision, rendered in the case of Parents Teachers Association & ors. v. Chairman, Kendriya Vidyalaya Sangathan & ors., as reported in A.I.R. 2001 Rajasthan 35.
It has been held by the Hon'ble Supreme Court in the case of Mahinder Kumar Gupta & ors. v. Union of India, as reported in (1995)1 SCC 85, at paragraph no.6, as under:
"6. Under these circumstances, we find no arbitrariness or unjustness in prescription of the guidelines for the eligibility criteria. The second writ petition stands liable to be dismissed on the sole ground that the Association cannot file a writ petition as it has no fundamental right under Article 32 of the Constitution. One of the petitioners/appellants has claimed as having partnership, but the details thereof have not been given. We, therefore, dismiss the appeal as well as the writ petitions with costs quantified at Rs.20,000 each."
(Emphasis supplied) In the aforesaid case, the writ petition was field by the Association for getting dealership/distribution ship of petroleum products, awardable by the Government of India Undertakings and 7 reasonable restrictions, imposed by the Government of India, was under challenge. In fact, there were three writ petitions and the second writ petition was filed by the Association and in that context in paragraph no.6 the aforesaid observations have been made.
Further, the writ petition, filed by the Judicial Officers' Association, Goa, has been dismissed by Panaji Bench of Hon'ble Bombay High Court, as reported in (1996)2 Mah. L.R. 94:(1997)4 Bom. C.R. 372 (The Goa Judicial Officers Association v. State of Goa & ors.), on the ground that it was not tenable at law, because the Members of the Association were capable of approaching the Court and while dismissing the said writ petition, it has been held at paragraph nos. 27, 29 and 30 as under:
"27. The Senior Counsel Mr. Kakodkar, who is appearing for the High Court, has contended that a writ petition on behalf of petitioner Association is not maintainable under Article 226 of the Constitution of India because the petitioner is not the person aggrieved. In other words, he submits that the petitioner cannot identify itself with the grievances of its members. He has contended that even if the petitioner is a Corporate Body registered under the Societies Act, the petitioner cannot maintain a petition under Article 226 for and on behalf of its members. He has cited several decisions of different High Courts: (Madhav Janardan v. Shrinivas Narayan Naik and another)14, A.I.R. 1962 Mysore 26, (Director General Ordinance Factories Employees' Association v. Union of India and Director General Ordinance Factories)15, A.I.R. 1969 Cal. 149, (Satyavart Sidhantalankar and others v. Arya Samaj, Bombay)16, A.I.R. 1946 Bom. 516 and (Chanranjit Lal Chowdhury v. The Union of India and others)17, A.I.R. 1951 S.C.
41. We find considerable force in his arguments. A juristic person can maintain an action only when it is aggrieved or when its rights are infringed or violated by the action of an Authority. Here the grievance highlighted is that of the members and that grievance is that by the impugned Rules, the promotional avenues available to members of the petitioner's Association under the existing Rules have been taken away and, therefore, their chances of promotion have been in jeopardy. As we have already seen, that chance of promotion is not a right at all and, therefore, the members of the Association cannot have a legal right to maintain an application under Article 226 of the Constitution. Apart from that, the petitioner, as an Association of the Judicial Officers, cannot identify itself with the grievances of its members. The grievances of the members and the Association are distinct. This elementary principle has been stated by Salmond in 'Salmond on Jurisprudence', 12th Edition, at page 67, which reads thus:
"It is essential to recognise clearly that in neither of these forms of incorporation is the legal person identical with any single human being. A company is in law something different from its shareholders or members. The property of the company is not in law the property of the shareholders. The debts and liabilities of the company are not attributed in law to its members. The company may become insolvent, while its members remain rich.8
Contracts may be made between the company and a shareholder, as if between two persons entirely distinct from each other. The shareholders may become so reduced in number that there is only one of them left; but he and the company will be distinct persons for all that." In the case of (The Bangalore District Hotel Owners' Association v. The District Magistrate, Bangalore and another)18, A.I.R. 1951 Mys. 14, the Bangalore District Hotel Owners' Association filed an application before Mysore High Court against the District Magistrate, Bangalore and the Government of Mysore to cancel the order of the District Magistrate, Bangalore, notified in the Mysore Gazette on 10-11-1949, directing that all hotels, restaurants, milk bars and coffee clubs in the villages of the Bangalore District except those as are licensed by the Amildar of the Taluka under the Village Panchayat Act should be closed immediately. The hotel owners of Bangalore formed an Association and the said Association is said to have been registered under the Mysore Societies Registration Act, 1904. That Association challenged the validity of the Notification issued by the District Magistrate, Bangalore. A Division Bench of the Mysore High Court in the aforesaid decision in paragraph 5 of the Judgment, held as follows:
"Mr. Venkataranga Iyengar contends that the Association is a corporate body and that it can therefore make such application to the Court in its own name. Under section 7, Societies Registration Act, it is provided that a society which is registered under that Act may sue or be sued in its own name and for that purpose it may have a corporate existence of its own. And if there was any action or order by which the fundamental rights of the Association as such, say for example, under Article 19(b) or (c) or its rights of property or franchise were affected or jeopardised, it may be that such an application may be maintainable. But that is quite a different thing from saying that for some personal and individual grievance of some of its members the Association can agitate and apply for such extraordinary and discretionary writs which are clearly meant to prevent the taking away or abridging the fundamental rights conferred on individual citizens by Part III of the Constitution. Although no specific cases appear to have arisen on this aspect of the matter after the Constitution of India came into force we have some earlier rulings which are useful in deciding the matter."
This principle has been again highlighted in a recent decision of Calcutta High Court. Considering various decisions of the High Courts and Supreme Court on the subject, the Calcutta High Court in (Sand Carrier's Owners' Union and others v. Board of Trustees for the Port of Calcutta and others)19, A.I.R. 1990 Cal. 176, has held that the Company has no locus standi for the grievances of the petitioner. It held:
"Unincorporated associations are not legal persons and as such, writ petitions are not maintainable. An association could be formed to protect the interest of consumers, tenants or other groups with the common interest but such group cannot move writ application. No aspect of the representative law has been changing more rapidly than the law governing standing and the standing barrier has been substantially lowered in recent years, but on the basis of the law relating to standing as in England or in America 9 as also in India, it can be held without any difficulty that the writ petition at the instance of an association is not maintainable where the association itself is not affected by any order. The members of such association may be affected by common order and may have common grievance, but for the purpose of enforcing the rights of the members, writ petition at the instance of such association is not maintainable. The door of the writ Court could be made open at the instance of persons or authorities under the aforesaid four categories and to hold that every Tom, Dick and Harry can move the writ application would render the standing requirement meaningless and would introduce a procedure which is not judicially recognised. "
In this writ petition, the petitioner association of Judicial Officers of Goa, has not highlighted any grievance of its own, it has put up a grievance of its members. Therefore, as rightly pointed out by the learned Senior Counsel Shri Kakodkar, the petition is not maintainable at the instance of the petitioner. Existence of a right of the petitioner is the foundation of the exercise of jurisdiction under Article 226 by this Court. The petitioner, even if it is a registered Association cannot identify itself with the grievance of its members and maintain a writ petition unless a statute provides for such a right as has been done by Trade Union Act, Motor Vehicles Act, Industrial Disputes Act etc. Therefore, we have no hesitation to uphold the contention of Mr. Kakodkar that this petition is not maintainable at the instance of the petitioner.
29. Still we have no doubt that public interest litigation is a weapon which has to be used with great care and circumspection and the Judiciary has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon basic primary principles that at least the petitioner is required to satisfy the Court, namely, a refraction of any right. Moreover, there is no public interest involved in the case pleaded by the petitioner. Public interest litigation must be one in which the downtrodden class of society by virtue of their position who cannot air their grievances, meeting the huge expenses of litigation, and find redressal of their individual or collective grievances. A communication received through a letter can be converted into a writ petition and the Court can look into the grievances focussed through that letter. There also the Court will be always very cautious in dealing with the public interest litigation. The Supreme Court in (State of Himachal Pradesh v. A Parent of a Student of Medical College, Shimla and others)21, A.I.R. 1985 S.C. 910 held a word of caution in entertaining public interest litigation. In paragraph 5 of the same judgment, the Supreme Court has stated:
".... We may of course make it clear that it is not every letter which may be treated as a writ petition by the Supreme Court or the High Court. It is only where a letter is addressed by an aggrieved person or by a public spirited individual or a social action group for enforcement of the constitutional or legal rights of a person in custody or of a class or group of persons who by reason of poverty, disability or socially or economically disadvantaged position find it difficult to approach the Court for redress that the Supreme Court or the High Court would be justified, nay bound, to treat the letter as a writ petition."
30. In the present case, we see no reason to treat this as a public interest litigation as no public interest is involved in this 10 case. We also cannot hold that Judicial Officers of the State of Goa are a group of persons who are socially or economically down trodden. Therefore, the contention of the learned Counsel for the petitioner in this score cannot be countenanced. Another feature in the public interest litigation to be observed is that it does not partake the characteristic of adversary litigation. The Court is mainly focussed its attention not on the locus, but on the injury. Scope of the public interest litigation has been recently reviewed by the Supreme Court in (The Janata Dal v. H.S. Chowdhary and others)22, A.I.R. 1993 S.C. 892. In paras 61 and 62 of this decision, the Supreme Court observed, thus:
"61. ... In a private action, the litigation is bipolar; two opposed parties are locked in a confrontational controversy which pertains to the determination of the legal consequences of past events unlike in public action. The character of such litigation is essentially that of vindicating private rights, proceedings being brought by the persons in whom the right personally inhere or their legally constituted representatives who are thus obviously most competent to commence the litigation.
62. In contrast, the strict rule of locus standi applicable to private litigation is relaxed and a broad rule is evolved which gives the right of locus standi to any member of the public acting bona fide and having sufficient interest in instituting an action for redressal of public wrong or public injury, but who is not a mere busy body or a meddlesome interloper; since the dominant object of PIL is to ensure observance of the provisions of the Constitution or the law which can be best achieved to advance the cause of community or disadvantaged groups and individuals or public interest by permitting any person, having no personal gain or private motivation or any other oblique consideration but acting bona fide and having sufficient interest in maintaining an action for judicial redress for public injury to put the judicial machinery in motion like actio popularis of Roman Law whereby any citizen could bring such an action in respect of a public delict."
(Emphasis supplied)
14. Thus, in view of the aforesaid reasons and judicial pronouncements, the petitioner has no locus standi to file this writ petition and hence, this writ petition is hereby dismissed.
( D.N. Patel, J. ) A.K.Verma/