Karnataka High Court
Dr. Prakashappa. T. H vs State Of Karnataka on 20 April, 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.5466 OF 2023 (S-RES)
BETWEEN:
DR. PRAKASHAPPA T. H.
S/O LATE T.H.RANGAPPA
AGED ABOUT 58 YEARS
PROFESSOR AND HEAD OF DEPARTMENT
OR ORTHOPAEDICS
BYRASANDRA
BENGALURU-560 011.
...PETITIONER
(BY SRI P .S RAJAGOPAL, SENIOR COUNSEL FOR
SMT. ASHWINI RAJAGOPAL, ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY
ADDITIONAL CHIEF SECRETARY
DEPARTMENT OF MEDICAL EDUCATION
M.S. BUILDING
DR. AMBEDKAR VEEDHI
BENGALURU-560 001.
2. SANJAY GANDHI INSTITUTE OF
TRAUMA AND ORTHOPAEDICS
BYRASANDRA
BENGALURU-560 011.
REPRESENTED BY ITS DIRECTOR
2
3. GOVERNMENT COUNCIL
SANJAY GANDHI INSTITUTE OF
TRAUMA AND ORTHOPAEDICS
REPRESENTED BY ITS CHAIRMAN
SANJAY GANDHI INSTITUTE OF
TRAUMA AND ORTHOPAEDICS
BYRASANDRA
BENGALURU-560 011.
4. DISTRICT REGISTRAR OF SOCIETIES
ZONE-3
BENGALURU URBAN DISTRICT
DISTRICT NO.146,
"SAHAKAR SOUDHA"
8TH CROSS, third MAIN ROAD
MARGOSA ROAD
MALLESHWARAM
BENGALURU-560 003.
...RESPONDENTS
(BY SRI. R. SUBRAMANYA, AAG A/W
SRI M.S.NAGARAJA, AGA FOR R1 TO R4;
SRI M.S.BHAGWAT, SENIOR COUNSEL FOR
SRI SUYOG HERELE E., ADVOCATE FOR R2 AND R3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
RESOLUTION DATED 09.02.2023 OF THE RESPONDENT-3
(UNDER ANNEXURE-W) BY ISSUE OF A WRIT IN THE NATURE OF
CERTIORARI OR SUCH OTHER WRIT, ORDER, DIRECTION AS
THIS HON'BLE COURT DEEMS FIT TO GRANT AND GRANT ALL
CONSEQWUENTIAL RELIEFS.
3
IN THIS WRIT PETITION ARGUMENTS HAVING BEEN
HEARD AND RESERVED ON 18.04.2023, COMING ON FOR
"PRONOUNCEMENT OF ORDERS", THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
ORDER
1. In this writ petition, petitioner is challenging the Resolution dated 09.02.2023, (Annexure-W) of the third respondent- Governing Council, Memorandum of Association of second respondent-Institution (Annexure-Y) and Cadre and Recruitment Rules of the second respondent (Annexure-Z) and to declare that the approval made by the 4th respondent-authority on the Resolution dated 09.02.2023, as illegal inter alia, to quash the notification dated 24.02.2023 issued by the second respondent (Annexure-AA) in this writ petition.
2. Relevant facts for the adjudication of the case are that, the petitioner claims to be Professor and Head of the Department of Orthopedics in the second respondent-Institution. The second respondent is an autonomous Institution registered under the provisions of Karnataka Societies Registration Act, 1960 4 (hereinafter referred to as 'KSR Act') with its Memorandum of Association, Rules and Regulations, with the Registrar of Societies. The grievance of the petitioner that, the Governing council of the Institution (Respondent No.3) has passed Resolution dated 09.02.2023, resolved to amend the Memorandum of Association, Bye-laws and cadre and recruitment Rules of the Institution and same is contrary to the KSR Act.
3. It is contended in the writ petition that, "Bangalore Accidents Rehabilitation and Other Services" came to be registered under the KSR Act, as per the certificate of registration dated 30.03.1979 (Annexure-A1). Subsequently, the Governing council resolved to change the name of the respondent - Institution as "Sanjay Gandhi Institute of Trauma and Orthopedics" and copy of the certificate of registration dated 19.07.2007 is produced as Annexure-A3. Memorandum of Association of the respondent - Institution is produced at Annexure-B. It is stated that the State Government by Government Order dated 23.11.2021 (Annexure-F) ordered that 5 the respondent - Institution shall come within the purview of Medical Education Department. The respondent - Institution has framed, "Sanjay Gandhi Institute of Accident Rehabilitation and Physical Medicine (Cadre and Recruitment), conditions of service and Miscellaneous provisions) Rules, 1989 and relevant portion is produced at Annexure-G. The Governing council, in its meeting dated 19.01.2005, approved the amendments to the Schedule I and II of the C and R Rules, 1989 and relevant portion relating to the appointment of the Director is set out at Annexure-H.
4. It is the contention of the petitioner that, the petitioner was promoted to the post of Assistant Professor, Department of Orthopedics by order dated 24.01.2004 (Annexure-K). It is further stated in the writ petition that, the petitioner was promoted to the post of Associate Professor, which came to be re-designated as Professor as per Office Order dated 06.03.2009 (Annexure-M). It is the contention of the petitioner that, the petitioner was working as Senior most professor and placed as Head of the Department of Orthopedics. It is further pleaded 6 that, the petitioner has been working as Professor and Head of the Department of Orthopedics, discharging various administrative functions (Annexure-N) and seniority list of the respondent-Institution is produced at Annexure-P to the writ petition. It is further stated that, the respondent-Institution has declared that the petitioner has been working as a Professor, since 2009. It is further pleaded in the writ petition that, the Regular Director of the respondent - Institution - Dr. H.S. Chadrashekar, retired from the post of Director on 30.06.2022 and the respondent - Institution appointed one Dr. Niranjana Gowda as In-charge Director of the Institution as per notification dated 30.07.2022(Annexure-Q). The respondent- Institution published Notification dated 02.08.2022 inviting applications from the eligible candidates to fill up the post of the Director of the respondent-Institution. Feeling aggrieved by the same, the petitioner has challenged the said recruitment notification in W.P.No.18486 of 2022 and this Court granted an interim order dated 16.09.2022, (Annexure-S), permitting the petitioner to participate in the process of selection. Thereafter, the respondent-Institution by Notification dated 23.02.2023 7 cancelled the recruitment notification dated 02.08.2022 as per Annexure-T to the writ petition. In the meanwhile, the petitioner came to know that, the Private Secretary to the Minister of Health and Family Welfare and Medical Education issued a "Tippani" dated 02.02.2023 (Annexure-V) notifying meeting on 09.02.2023 to adopt "common Bye-law" in all Medical, Dental and Super Speciality Institutions, which are coming under the purview of the Medical Education Department in the State of Karnataka. It is further stated in the writ petition that, as per the proceedings dated 09.02.2023, Governing Council of the respondent-Institution resolved to amend the Memorandum of Association, Bye-laws and Cadre and Recruitment Rules of the respondent-Institution. It is further stated in the writ petition that, vide communication dated 23.02.2023, (Annexure-X), the respondent-Institution forwarded the amended particulars to the fourth respondent herein, for registration in terms of the provisions under KSR Act. It is the contention of the petitioner that the fourth respondent herein, without considering the provisions contemplated under the KSR Act, has approved the same on 27.02.2023. Immediately, the respondent-Institution 8 has issued the new recruitment Notification, as per Annexure- AA, inviting applications from eligible candidates for the post of Director of the respondent-Institution and feeling aggrieved by the same, the petitioner has presented this writ petition.
5. I have heard Sri. P.S. Rajagopal, learned Senior counsel appearing on behalf of Sri. Jayanth Devakumar for petitioner and Sri R. Subramanya, learned Additional Advocate General on behalf of M.S. Nagaraja, learned Additional Government Advocate appearing for respondent Nos.1 and 4, Sri. M.S. Bhagwat, learned Senior Counsel appearing on behalf of Sri. Suyog Herele E., learned counsel appearing for respondent Nos. 2 and 3.
6. It is the contention of Sri. P.S. Rajagopal, learned Senior Counsel appearing for the petitioner that the Resolution dated 09.02.2023 and the consequential Memorandum of Association, bye-laws and the Cadre and Recruitment Rules are contrary to Section 9 and 10 of the KSR Act. He further contended that, the Meeting Notice dated 02.02.2023 ought to have been issued by the Secretary of the respondent - Governing Council and not the 9 Private Secretary to the Minister for Medical Education. The said Resolution is passed without quorum and accordingly, the respondent No.4 ought not to have registered the same as the same is contrary to the provisions of the KSR Act. Learned Senior Counsel further contended that, the draft amendment to Bye-laws ought to have been circulated among members of the respondent - Institution and in the absence of the same, the entire action of the respondent-Institution and the Government is contrary to law and therefore liable to be set aside. He further contended that, the Governing Council of the respondent- Institution, being the highest authority, vested with power to alter the Memorandum of Association and same has not been done in terms of the KSR Act. He further submitted that, no prior notice has been issued to conduct Special General Meeting of the Governing Council, which is mandatory under law and therefore, as the notice of Meeting is issued on 02.02.2023, and Resolution was passed on 09.02.2023, and therefore, same does not comply with the 21 days' prior notice and therefore, learned Senior Counsel contended that, the amendment made to 10 Memorandum of Association and Cadre & Recruitment Regulations are required to be set aside as illegal.
7. Nextly, Sri. P.S. Rajagopal contended that there is no satisfaction by the fourth respondent in terms of Section 10(2) of the KSR Act and therefore, he contended that, the approval dated 27.02.2023 by the respondent No.4 is without jurisdiction and contrary to law and accordingly, sought for interference by this Court. It is the principal submission of Sri. P.S. Rajagopal that, there is no agenda of the notice as per Annexure-R2, proposal for amendment intimating the Members of the Governing Council has not been done and the Department of Medical Education being not a Member of the respondent No.2 - Society, has no jurisdiction to pass the impugned amendment to the Cadre & Recruitment Regulations and Bye-laws. He vehemently contended that, the zigzag course of action adopted by the respondent-Institution is to scuttle the avenue for the petitioner to be appointed as Director of the second respondent- Institution, despite the fact that the petitioner has been appointed and working as Professor in the respondent - 11 Institution since 2009. Learned Senior Counsel appearing for the petitioner while urging the aforementioned grounds, argued that the administrative orders always to be prospective in nature and it cannot relate back to earlier date and therefore, he contended that, the writ petition is required to be allowed by accepting the prayers made therein. To buttress his arguments, Sri. P.S. Rajagopal has relied upon the following Judgments:
(i) (2001) 3 KLJ 467
Dr. GIRIDHAR KAMALAPURKAR
Vs.
Dr. VENUGOPAL RAM RAO AND OTHERS
(ii) (2007) 11 SCC 447
KUSHESHWAR PRASAD SINGH
Vs.
STATE OF BIHAR AND OTHERS
(iii) (2010) 10 SCC 174
BHARTI CELLULAR LIMITED
Vs.
UNION OF INDIA AND OTHERS
(iv) (2012) 8 SCC 384
VIDUR IMPEX AND TRADERS PRIVATE
LIMITED AND OTHERS
Vs.
TOSH APARTMENTS PRIVATE
LIMITED AND OTHERS
12
(v) ILR 1997 KAR 833
Dr. H.P. PRABHUSWAMY & Ors.
Vs.
JAYADEVA INSTITUTE OF CARDIOLOGY & ORS.
(vi) (1981) 4 SCC 716
Dr. S.P. KAPOOR
Vs.
STATE OF HIMACHAL PRADESH AND OTHERS
(vii) AIR 1966 SC 1987
CHANDRA MOHAN
Vs.
STATE OF U.P. AND OTHERS
8. Per contra, Sri. R. Subramanya, learned Additional
Advocate General raised preliminary objection with regard to maintainability of the writ petition. He submitted that petitioner has no locus standi to challenge the impugned Notification in terms of the prayer made in the writ petition. He further contended that the petitioner is neither a Governing Council Member, nor a Member of the Society under which the respondent No.2 Institution is functioning and being an employee of the respondent - Institution, the petitioner must establish his legal right to challenge the impugned Notification 13 issued by the respondent - Institution. Emphasising on these aspects, learned Additional Advocate General contended that the right of petitioner has nothing to do with service condition of the employees of the respondent - Institution and therefore, no legal right is infringed despite the fact that the petitioner is neither a Professor nor Head of Department of a particular discipline and therefore, sought for dismissal of the petition. In this regard, he places reliance on the Judgment of the Hon'ble Apex Court in the case of AYAAUBKHAN NOORKHAN PATHAN Vs. STATE OF MAHARASHTRA AND OTHERS, reported in (2013) (4) SCC 465, and in the case of SHRIPAL BHATI AND ANOTHER Vs. STATE OF UTTAR PRADEH AND OTHERS reported in (2020) 12 SCC 87. Emphasising on these aspects, learned Addl. Advocate General contended that the matter is of academic in nature and cannot be gone into under Article 226 of the Constitution of India and as such, sought for dismissal of the petition. To buttress his arguments, he referred to the Judgment of the Hon'ble Apex Court in the case of RAMDAS ATHWALE Vs. UNION OF INDIA AND OTHERS reported in (2010) 4 SCC 1 and in the case of STATE OF MANIPUR AND OTHERS 14 Vs. CHANDAM MANIHAR SINGH reported in (1999) 7 SCC
504. He also referred to Judgment of the Hon'ble Apex Court in the case of VISHAL ASHOK THORAT AND OTHERS Vs. RAJESH SHRIRAMBAPU FATE AND OTHERS reported in (2020) 18 SCC 673 and argued that, as the writ petitioner has no eligibility to challenge the Notification invited for appointment of Director of the respondent - Institution, other submissions made thereunder with regard to amendment made to the Bye- laws, Cadre & Recruitment Regulations are untenable. He also argued that, the required amendment was made to the respondent - Institution to maintain uniformity in all the 28 Medical Institutions in the State of Karnataka and the amendment has been made in accordance with the provisions contained under Section 9 and 10 of the KSR Act. He further argued that amendment came into force from the date of Resolution and accordingly sought for dismissal of the petition.
9. Sri. M.S. Bhagwat, learned Senior Counsel appearing for respondent - Institution invited the attention of the Court to the Office Note dated 27.01.2009 of the respondent - Institution and 15 argued that the respondent - Institution has promoted the petitioner to the cadre of Associate Professor and the said promotion of the petitioner was approved on 25.02.2002. It is his vehement contention that the petitioner was not working in the cadre of Professor nor a HoD of the particular discipline and accordingly, he submitted that the relevant requisite qualification for the post of Director to the respondent - Institution is that the candidate must have completed five years of service in the same Institution as Professor and HoD and therefore, he contended that, since the petitioner is working as Associate Professor in the respondent - Institution and never worked as Professor in the respondent - Institution, and as such the petitioner is ineligible to be appointed to the said post of Director and accordingly, sought for dismissal of the writ petition.
10. In reply to the arguments advanced by the learned counsel appearing for the respondents, Sri P.S. Rajagopal, learned counsel appearing for the petitioner contended that, in the event, the respondent-Institution is not following the tenets of law and its motive is to prevent the petitioner to be appointed as 16 a Director of the Institution and further, as the amendment made to the Bye-laws/Memorandum of Association are contrary to KSR Act and same has not been questioned by anyone, much less the petitioner herein, being an employee of the respondent- Institution, it is the duty of the petitioner to protect the interest of the respondent - Institution and therefore, learned Senior Counsel for the petitioner contended that, the arguments advanced by the learned counsel appearing for the respondents on the question of locus-standi cannot be accepted. In this regard, he referred to the Judgment reported in 1936 Indian Appeals 40. Emphasizing on these aspects, Sri P.S.Rajagopal, learned Senior Counsel cited the judgment of this Court in the case of M.V. DIXIT AND OTHERS VS. STATE OF KARNATAKA AND OTHERS reported in ILR 2004 KAR 3802 and argued that, the respondents cannot take plea of locus-standi in the present situation as the decision taken by the respondent- Institution is illegal and same cannot be perpetuated and no one else could challenge the action of the respondents which is per se illegal and accordingly, sought for interference of this Court. 17
11. Sri P.S. Rajagopal further contended that, having allowed the petitioner to work as a Professor for a considerable period by the respondent-Institution and seniority list is published indicating the name of the petitioner as Professor and at the fag end of his service, the respondent-Institution cannot be allowed to say that, the petitioner is not a Professor and HoD of Department of Orthopedics. In this regard, he referred to the Judgment reported in 1972 SLR 915. He also invited the attention of the court to the judgment of this Court, in the case of H.M.MOHAN KUMAR AND OTHERS VS. KARNATAKA SLUM CLEARANCE BOARD, BANGALORE AND OTHERS reported in 2006(2) KAR.L.J.90 and contended that the petitioner is not a stranger to the proceedings initiated against the respondent - Institution and on being inviting the applications for appointment of Director, would definitely curtail the legal right of the petitioner being qualified to be appointed and as such, he referred to the above decision which also came to be confirmed by the Division Bench in W.A. No. 303 of 2006 dated 18.09.2006.
18
12. In the light of the submission made by the learned counsel appearing for the parties, the following points arise for consideration:
i) Whether the petitioner has locus-standi to challenge the resolution dated 09.02.2023 (Annexure-W) inter alia, made out a case for quashing the Notification dated 24.02.2023 issued by the respondent No.2 (Annexure-AA) ?
ii) Whether the petitioner be considered in the cadre of Professor in the second respondent-Institution?
iii) Whether the petitioner has made out a case for interference in the administration of the second respondent - Institution in the wake of Sections 9 and 10 of KSR Act ?
iii) What order ?
13. In order to answer the question raised by both the sides, I have called for original files from the respondents and perused the same. The undisputed fact that, the respondent - Institution is an autonomous institution registered under the provisions of the KSR Act. The administration of the respondent - Institution 19 is governed by the Memorandum of Association, Rules and Regulations including the Bye-laws, which are registered with the respondent - authorities. The petitioner was promoted to the post of Assistant Professor, Department of Orthopedics of the respondent - Institution on 24.01.2004 (Annexure-K). On 19.02.2009, the selection committee of the respondent - Institution recommended the petitioner for the post of Associate Professor. Thereafter, the respondent - Institution by its order dated 25.02.2009, approved the promotion of the petitioner to the post of Associate Professor (Annexure-L). On careful consideration of the documents produced by the petitioner, particularly with regard to Office Orders produced at Annexures
- M and N, so also the Seniority List produced at Annexure-P would indicate that the petitioner has been ostensibly working as a Professor to accomplish its administrative activities, however, the petitioner has not produced any documents before this Court to substantiate that the petitioner has been promoted to the post of Professor as against the sanctioned post. It is pertinent to mention here that none of the documents produced by the petitioner would demonstrates that the name of the petitioner 20 has been recommended by the respondent - Institution for promotion to the post of Professor nor the respondent - Institution took up a decision in its Governing Council Meeting to promote and approve the name of the petitioner to the post of Professor. It is not in dispute that, the conditions of service of the employees of the respondent - Institution is governed by the terms and conditions stipulated in the Bye-laws as well as Cadre & Recruitment Rules, 1989. In this regard, the Office Note dated 27.01.2009 produced by the respondent - Institution would indicate that the petitioner has been promoted to the post of Associate Professor from the post of Assistant Professor and same has been approved by the competent authority / Governing Council. Though the learned Senior Counsel appearing for the petitioner argued that the petitioner is working in the Cadre of Professor in the Department of Orthopedics, however, the sanctioned post of Professor in the Department of Orthopedics is only one post as per Cadre and Recruitment Rules of the respondent - Institution vide Official Memorandum dated 28.03.2005 (Annexure-H). It is pertinent to mention here that, one Dr. H.S. Chandrashekar was working in the post of Director 21 till 30.06.2020 and after his retirement, the said post was assigned to one Dr. Niranjan Gowda as In-charge Director, who is the Senior-most Professor in the Department of Orthopedics and therefore, the submission made by the learned Senior Counsel for the petitioner cannot be accepted as the petitioner was not working against a substantive post of Professor in the Department of Orthopedics in the respondent - Institution in terms of the Cadre and Recruitment Rules, 1989.
14. In the backdrop of this aspect of the matter, the relevant qualification for appointment to the post of Director in the respondent - Institution is that, an applicant must have completed five years of service in the same institute as Professor and Head of the Department. It is the categorical submission made by the learned counsel appearing for the respondents that the petitioner is not a Professor in the Department of Orthopedics of the respondent - Institution and therefore, as the petitioner fails to produce the relevant documents to establish that the petitioner was working in the Cadre of Professor in terms of Cadre & Recruitment Rules, 1989, I am of the opinion 22 that, the petitioner is ineligible to be appointed to the Post of Director in the respondent - Institution by looking into the criteria for appointment and the academic qualification required for the post of Director. It is to be note that, the petitioner has not produced any piece of document to demonstrate that he has been promoted to the post of Professor from the post of Associate Professor and further the said order of promotion is approved by the Governing Council of the respondent - Institution and the Government and therefore I am of the considered opinion that, the petitioner has no locus-standi to challenge the impugned Notification dated 24.02.2023 produced at Annexure-AA to the writ petition.
15. Nextly, petitioner has challenged the Resolution dated 09.02.2023 of the respondent No.3, wherein the petitioner is neither a Member of the Governing Council nor a Member of the respondent - Institution society and in that view of the matter, being an employee of the Institution, the petitioner is stranger in so far as administration of the respondent - Institution in terms of its Bye-laws and therefore, the petitioner has no locus- 23 standi to challenge the Resolution dated 09.02.2023 passed by the Governing Council with respect to administration / affairs of the respondent - Institution. The respondent - Institution shall act in accordance with the bye-laws referred to above and therefore, the petitioner not being an 'aggrieved party, has no legal right to challenge the Resolution dated 09.02.2023 and Memorandum of Association of the respondent No.3.
16. Though Sri. P.S. Rajagopal, learned Senior Counsel appearing for the petitioner seriously contended that the idea behind making amendment to the Bye-laws / Recruitment Rules would scuttle the avenue for the petitioner to be appointed to the post of Director, however, the said submission cannot be accepted as the respondent - Institution shall act in accordance with Bye-laws and Memorandum of Association. If at all any short comings in the administration of the respondent - Institution by the Governing Council Members, then, the provisions under the KSR Act shall step into motion and competent authorities are required to take decision in the matter, in accordance with law. In that view of the matter, the 24 petitioner, being an employee under the respondent - Institution, which is governed by its Bye-laws, has no authority under law to challenge the affairs of the respondent - Institution. I have carefully followed the reasons enunciated by the Hon'ble Supreme Court, this Court as well as the Judgments reported in Indian Appeals, where the factual aspects in those cases are dis-similar to the present case, as the petitioner himself has been declared ineligible to be appointed as Director and therefore, the point No. (i) and (ii) for consideration, are answered against the petitioner.
17. In this regard, in support of the reasons arrived at by this Court that the petitioner has no locus-standi to challenge the impugned Notification, it is relevant to extract the dictum of the Hon'ble Supreme Court in the case of AYAAUBKHAN NOORKHAN PATHAN (supra), at paragraph 9 to 23 which reads as under:
"Person aggrieved
9. It is a settled legal proposition that a stranger cannot be permitted to meddle in any proceeding, unless 25 he satisfies the authority/court, that he falls within the category of aggrieved persons. Only a person who has suffered, or suffers from legal injury can challenge the act/action/order, etc. in a court of law. A writ petition under Article 226 of the Constitution is maintainable either for the purpose of enforcing a statutory or legal right, or when there is a complaint by the appellant that there has been a breach of statutory duty on the part of the authorities. Therefore, there must be a judicially enforceable right available for enforcement, on the basis of which writ jurisdiction is resorted to. The Court can, of course, enforce the performance of a statutory duty by a public body, using its writ jurisdiction at the behest of a person, provided that such person satisfies the Court that he has a legal right to insist on such performance. The existence of such right is a condition precedent for invoking the writ jurisdiction of the courts. It is implicit in the exercise of such extraordinary jurisdiction that the relief prayed for must be one to enforce a legal right. In fact, the existence of such right, is the foundation of the exercise of the said jurisdiction by the Court. The legal right that can be enforced must ordinarily be the right of the appellant himself, who complains of infraction of such right and approaches the Court for relief as regards the same. [Vide State of Orissa v. Madan Gopal Rungta, , Saghir Ahmad v. State of U.P., Calcutta Gas Co. (Proprietary) Ltd. v. State of W.B., Rajendra Singh v. State of M.P. and Tamilnad Mercantile Bank Shareholders Welfare Assn. (2) v. S.C. Sekar.26
10. A "legal right", means an entitlement arising out of legal rules. Thus, it may be defined as an advantage, or a benefit conferred upon a person by the rule of law. The expression, "person aggrieved" does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must, therefore, necessarily be one whose right or interest has been adversely affected or jeopardised. (Vide Shanti Kumar R. Canji v. Home Insurance Co. of New York [(1974) 2 SCC 387 : AIR 1974 SC 1719] and State of Rajasthan v. Union of India.
11. In Anand Sharadchandra Oka v. University of Mumbai, a similar view was taken by this Court, observing that, if a person claiming relief is not eligible as per requirement, then he cannot be said to be a person aggrieved regarding the election or the selection of other persons.
12. In A. Subash Babu v. State of A.P. , this Court held : (SCC pp. 628-29, para 25) "25. ... The expression 'aggrieved person' denotes an elastic and an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which the contravention is alleged, the 27 specific circumstances of the case, the nature and extent of the complainant's interest and the nature and the extent of the prejudice or injury suffered by the complainant."
13. This Court, even as regards the filing of a habeas corpus petition, has explained that the expression "next friend" means a person who is not a total stranger. Such a petition cannot be filed by one who is a complete stranger to the person who is in alleged illegal custody. [Vide Charanjit Lal Chowdhury v. Union of India, Sunil Batra (2) v. Delhi Admn., Nilima Priyadarshini v. State of Bihar , Simranjit Singh Mann v. Union of India , Karamjeet Singh v. Union of India and Kishore Samrite v. State of U.P.
14. This Court has consistently cautioned the courts against entertaining public interest litigation filed by unscrupulous persons, as such meddlers do not hesitate to abuse the process of court. The right of effective access to justice, which has emerged with the new social rights regime, must be used to serve basic human rights, which purport to guarantee legal rights and, therefore, a workable remedy within the framework of the judicial system must be provided. Whenever any public interest is invoked, the court must examine the case to ensure that there is in fact, genuine public interest involved. The court must maintain strict vigilance to ensure that there is no abuse of the process of court 28 and that, "ordinarily meddlesome bystanders are not granted a visa". Many societal pollutants create new problems of non-redressed grievances, and the court should make an earnest endeavour to take up those cases, where the subjective purpose of the lis justifies the need for it. (Vide P.S.R. Sadhanantham v. Arunachalam, Dalip Singh v. State of U.P., State of Uttaranchal v. Balwant Singh Chaufal and Amar Singh v. Union of India
15. Even as regards the filing of a public interest litigation, this Court has consistently held that such a course of action is not permissible so far as service matters are concerned. (Vide Duryodhan Sahu v. Jitendra Kumar Mishra, Dattaraj Nathuji Thaware v. State of Maharashtra and Neetu v. State of Punjab.
16. In Ghulam Qadir v. Special Tribunal, this Court considered a similar issue and observed as under : (SCC p. 54, para 38) "38. There is no dispute regarding the legal proposition that the rights under Article 226 of the Constitution of India can be enforced only by an aggrieved person except in the case where the writ prayed for is for habeas corpus or quo warranto. Another exception in the general rule is the filing of a writ petition in public interest. The existence of the legal right of the petitioner which is alleged to have been violated is the 29 foundation for invoking the jurisdiction of the High Court under the aforesaid article. The orthodox rule of interpretation regarding the locus standi of a person to reach the court has undergone a sea change with the development of constitutional law in our country and the constitutional courts have been adopting a liberal approach in dealing with the cases or dislodging the claim of a litigant merely on hypertechnical grounds. ... In other words, if the person is found to be not merely a stranger having no right whatsoever to any post or property, he cannot be non-suited on the ground of his not having the locus standi."
(emphasis added)
17. In view of the above, the law on the said point can be summarised to the effect that a person who raises a grievance, must show how he has suffered legal injury. Generally, a stranger having no right whatsoever to any post or property, cannot be permitted to intervene in the affairs of others.
Locus standi of Respondent 5
18. As Respondent 5 does not belong to the Scheduled Tribes category, the garb adopted by him, of serving the cause of Scheduled Tribe candidates who might have been deprived of their legitimate right to be 30 considered for the post, must be considered by this Court in order to determine whether Respondent 5, is in fact, in a legitimate position to lay any claim before any forum, whatsoever.
19. This Court in Ravi Yashwant Bhoir v. District Collector, Raigad, held as under : (SCC pp. 434-35, paras 58-60) "58. Shri Chintaman Raghunath Gharat, ex-
President was the complainant, thus, at the most, he could lead evidence as a witness. He could not claim the status of an adversarial litigant. The complainant cannot be the party to the lis. A legal right is an averment of entitlement arising out of law. In fact, it is a benefit conferred upon a person by the rule of law. Thus, a person who suffers from legal injury can only challenge the act or omission. There may be some harm or loss that may not be wrongful in the eye of the law because it may not result in injury to a legal right or legally protected interest of the complainant but juridically harm of this description is called damnum sine injuria.
59. The complainant has to establish that he has been deprived of or denied of a legal right and he has sustained injury to any legally protected 31 interest. In case he has no legal peg for a justiciable claim to hang on, he cannot be heard as a party in a lis. A fanciful or sentimental grievance may not be sufficient to confer a locus standi to sue upon the individual. There must be injuria or a legal grievance which can be appreciated and not a stat pro ratione voluntas reasons i.e. a claim devoid of reasons.
60. Under the garb of being a necessary party, a person cannot be permitted to make a case as that of general public interest. A person having a remote interest cannot be permitted to become a party in the lis, as the person who wants to become a party in a case, has to establish that he has a proprietary right which has been or is threatened to be violated, for the reason that a legal injury creates a remedial right in the injured person. A person cannot be heard as a party unless he answers the description of aggrieved party."
20. A similar view has been reiterated by this Court in K. Manjusree v. State of A.P., wherein it was held that the applicant before the High Court could not challenge the appointment of a person as she was in no way aggrieved, for she herself could not have been selected by adopting either method. Moreover, the appointment cannot be challenged at a belated stage and, hence, the 32 petition should have been rejected by the High Court on the grounds of delay and non-maintainability alone.
21. In Balbir Kaur v. U.P. Secondary Education Services Selection Board , it has been held that a violation of the equality clauses enshrined in Articles 14 and 16 of the Constitution, or discrimination in any form, can be alleged, provided that, the writ petitioner demonstrates a certain appreciable disadvantage qua other similarly situated persons. While dealing with the similar issue, this Court in Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar held : (SCC p. 74, para 45).
"45. We must now deal with the question of locus standi. A special leave petition ordinarily would not have been entertained at the instance of the appellant. Validity of appointment or otherwise on the basis of a caste certificate granted by a committee is ordinarily a matter between the employer and the employee. This Court, however, when a question is raised, can take cognizance of a matter of such grave importance suo motu. It may not treat the special leave petition as a public interest litigation, but, as a public law litigation. It is, in a proceeding of that nature, permissible for the court to make a detailed enquiry with regard to the broader aspects of the matter although it was initiated at the instance of a person having a private interest. A deeper scrutiny can be made so 33 as to enable the court to find out as to whether a party to a lis is guilty of commission of fraud on the Constitution. If such an enquiry subserves the greater public interest and has a far-reaching effect on the society, in our opinion, this Court will not shirk its responsibilities from doing so."
(See also Manohar Joshi v. State of Maharashtra.)
22. In Vinoy Kumar v. State of U.P. , this Court held : (SCC p. 736, para 2) "2. ... Even in cases filed in public interest, the court can exercise the writ jurisdiction at the instance of a third party only when it is shown that the legal wrong or legal injury or illegal burden is threatened and such person or determined class of persons is, by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the court for relief."
23. Thus, from the above it is evident that under ordinary circumstances, a third person, having no concern with the case at hand, cannot claim to have any locus standi to raise any grievance whatsoever. However, in exceptional circumstances as referred to above, if the actual persons aggrieved, because of ignorance, illiteracy, inarticulation or poverty, are unable to approach the court, and a person, who has no 34 personal agenda, or object, in relation to which, he can grind his own axe, approaches the court, then the court may examine the issue and in exceptional circumstances, even if his bona fides are doubted, but the issue raised by him, in the opinion of the court, requires consideration, the court may proceed suo motu, in such respect."
18. In the case of SHRIPAL BHATI (supra), paragraphs 23 to 26 read as under:
"23. The question of maintainability of challenge to appointment and subsequent absorption at the behest of the appellants has also been raised by the learned counsel for Respondents 2 and 3. It is vehemently contended that the appellant lacks requisite necessary qualifications for being considered for promotion to the post of Project Engineer (Electrical) and being ineligible for promotion any challenge to the appointment on the said post at their behest is not maintainable. It is pointed out that the eligibility for promotion to the post of Project Engineer is degree in Engineering with minimum 8 years of experience as Assistant Project Engineer.
24. The specific case set up by Noida in its counter-affidavit is that Appellant 1 was appointed as Junior Engineer in 1987 and was promoted to the post of Assistant Project Engineer on 27-8-2013. Thus, he lacks necessary qualification of 8 years' experience and shall be 35 eligible for being considered for promotion in 2021. Insofar as Appellant 2 is concerned, he was appointed on the post of Assistant Project Engineer in February 2009. As prescribed by the Service Regulations, he became eligible for being considered for promotion on completing 8 years of service in February 2017. Thus, at the time of appointment of Respondent 4 in 2014, and his subsequent absorption in 2015, both the appellants were not eligible for promotion to the post of Project Engineer for want of requisite 8 years' experience as Assistant Project Engineer.
25. For the aforesaid facts and reasons, the challenge made by the appellants to the appointment and absorption of Respondent 4 is not tenable and they have no locus standi in the matter. It may be relevant to refer to the observations made by this Court in Jasbhai Motibhai Desai v. Roshan Kumar, relied upon by the High Court, holding that unless injury is suffered personally a person can not be said to be aggrieved and has no locus standi: (SCC p. 686, para 48) "48. In the light of the above discussion, it is demonstrably clear that the appellant has not been denied or deprived of a legal right. He has not sustained injury to any legally protected interest. In fact, the impugned order does not operate as a decision against him, much less does it wrongfully affect his title to something. He has not been 36 subjected to a legal wrong. He has suffered no legal grievance. He has no legal peg for a justiciable claim to hang on. Therefore, he is not a "person aggrieved" and has no locus standi to challenge the grant of the "no-objection certificate"."
26. There is yet another aspect of the matter liable to be taken into consideration, undisputedly after absorption of Respondent 4 in Noida, he was relieved from his parent department and his lien with the parent department ceased. Considering a somewhat similar controversy in Jamil Ahmed v. Industrial Development Commr.,, where a Senior Inspector in Railway Protection Force was initially deputed to Noida and subsequently absorbed, this Court after analysing the provisions of the 1981 Regulations while holding the appointment on deputation and subsequent absorption in Noida was permissible, observed that such an employee cannot be put in a position which results in his being an employee neither of the Authority nor of the parent department. It may be relevant to reproduce observations made in para 9 of the Report: (SCC p. 740) "9. On the facts and circumstances of this case, we need not go in depth into the question sought to be urged on behalf of the Authority, for, we are of the view that the appellant having resigned from the Railways and having been absorbed in the 37 Authority eight years back, cannot be put in a position, for no fault of his, which results in his being an employee neither of the Authority nor of the parent department. The appellant cannot be made to suffer for the discrepancy, if any, assuming there is any such discrepancy which is now pleaded as a reason by the Authority."
19. In the case of VISHAL ASHOK THORAT (supra), paragraphs 40 to 43 read as under:
"40. Although, the learned counsel for the parties have made elaborate submissions on the validity of Rule 3(iii) proviso, Rule 3(iv) proviso and Rule 4 but in the facts of the present case, where the writ petitioner i.e. Respondent 1 was held by the High Court not competent to challenge Advertisements Nos. 2 and 48 of 2017, the High Court committed error in proceeding to examine the validity of the 2016 Rules. The challenge to the 2016 Rules in the background of the present case ought not to have been allowed to be raised at the instance of the writ petitioner. Respondent 1, who did not participate in the selection and the High Court had specifically rejected the entitlement of Respondent 1 to challenge Advertisements Nos. 2 and 48 of 2017, as held in para 49 of the judgment, permitting him to challenge the validity of the Rules in reference to the same advertisements is nothing but indirectly challenging something which could not be 38 challenged directly by Respondent 1. The High Court in the facts of the present case, where Respondent 1 was not allowed to challenge the advertisements or the select list should not have been allowed to challenge the 2016 Rules insofar as the selection in question was concerned. The writ petition filed by Respondent 1 was not styled or framed as PIL. It is well settled that with regard to service jurisprudence, PIL are not entertained.
41. In Ayaaubkhan Noorkhan Pathan v. State of Maharashtra [Ayaaubkhan Noorkhan Pathan v. State of Maharashtra, (2013) 4 SCC 465 : (2013) 2 SCC (Civ) 658 : (2013) 2 SCC (L&S) 296] , this Court has reiterated that PIL should not be entertained in service matter. In para 15 the following has been laid down : (SCC p. 477) "15. Even as regards the filing of a public interest litigation, this Court has consistently held that such a course of action is not permissible so far as service matters are concerned. (Vide Duryodhan Sahu v. Jitendra Kumar Mishra, Dattaraj Nathuji Thaware v. State of Maharashtra, and Neetu v. State of Punjab"
42. A perusal of the impugned judgment indicates that the High Court was influenced by the submission of the appellant that loss being caused to the public revenue by appointment of Assistant Inspector of Motor Vehicles, who did not fulfil qualification as laid down in the 39 Notification dated 12-6-1989, the High Court has virtually entertained the writ petition as PIL.Following observations made by the High Court in para 29 clearly indicate that the High Court proceeded to treat the writ petition as PIL, although, it relates to condition of service of Assistant Inspector of Motor Vehicles. In para 29 the following has been observed by the High Court.
"29. ... We are here, satisfied that the loss being caused to public revenue cannot be ignored and challenge cannot be seen as a grievance pertaining to a service condition. Contention that it cannot, therefore, be seen as public interest litigation, is misconceived. Its larger impact on society due to hole in taxpayers' money and omission to make requisite service available to the citizens, all necessitate cognizance by any writ court."
43. We, thus, are of the view that the High Court ought not to have entertained the writ petition, in which challenge was to the 2016 Rules, which were clearly in reference to recruitment under Advertisements Nos. 2 and 48 of 2017. When Respondent 1 i.e. writ petitioner was held not entitled to challenge Advertisements Nos. 2 and 48 of 2017 at his instance, proceeding to entertain the challenge to the validity of the Rules and to strike down the Rules and modifying the select list dated 31-3- 2018 was clearly impermissible. The High Court, thus, fell 40 in error in issuing directions in para 52. We are also of the view that in the facts of the present case, it was not necessary for the High Court to enter into the validity of Rule 3(iii), Rule 3(iv) and Rule 4 of the 2016 Rules. We having taken the view that directions issued by the High Court in para 52 are not sustainable, for the purpose of this case, it is not necessary for us to dwell upon various submissions raised with regard to the 2016 Rules, which according to us was not required to be gone into by the High Court in the background of the present case."
20. It is also relevant to cite the judgment of the Hon'ble Supreme Court in the case of GOPAL JI KHANNA Vs. ALLAHABAD BANK AND OTHERS reported in (1996) 3 SCC
538. Paragraphs 7 to 11 therein read as under:
7. With respect to the second contention, it was submitted by the learned counsel that the power of review is conferred by Regulation 18. Only the Chairman and Managing Director are specified as reviewing authorities. This statutory power, therefore, can be exercised by the Chairman and Managing Director only as they are the named authorities under the statutory provision and cannot be validly delegated to any subordinate authority. Shri Wadhwa, therefore, could not have validly exercised that power. There is no substance in this submission. It is really misconceived. Though the 41 Regulations have been framed in exercise of the powers conferred by Section 19 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, by the Board of Directors, they cannot be equated with a statute. What the Board of Directors have done by making those Regulations is to regulate the power of taking disciplinary action against the employees of the Bank. Moreover, this is not a case where the power of Chairman or the Managing Director came to be exercised by a subordinate official as a result of delegation of that power. Shri Wadhwa while exercising the power of review was really discharging the functions of Chairman and Managing Director as he was then placed in charge of those offices and was therefore entitled to perform all the duties and functions of those offices. He did not exercise that power on the basis that it was delegated to him.
Therefore, the decisions in Barnard v. National Dock Labour Board [(1953) 1 All ER 1113 : (1953) 2 WLR 995] , Krishna Kumar v. Divisional Asstt. Electrical Engineer [(1979) 4 SCC 289 : 1980 SCC (L&S) 1] and Marathwada University v. Seshrao Balwant Rao Chavan [(1989) 3 SCC 132 : 1989 SCC (L&S) 436] , relied upon by the learned counsel in support of his contention that statutory power can be exercised by the named authority only and cannot be further delegated, require no further consideration. So also, Ramakant Shripad Sinai Advalpalkar v. Union of India [1991 Supp (2) SCC 733 : 1992 SCC (L&S) 115 :
(1992) 19 ATC 85] and State of Haryana v. S.M. Sharma [1993 Supp (3) SCC 252 : 1993 SCC (L&S) 1072 : (1993) 42 25 ATC 594] cited by the learned counsel have no relevance. The question which arose for consideration in those cases was whether an officer who substantively holds a lower post and is asked to discharge the duties of a higher post can be considered as promoted to that higher post. This Court held that entrustment of current duties charge of a higher post does not amount to promotion and in such cases the person continues to hold his substantive lower post and only discharges the duties of higher post essentially as a stopgap arrangement.
8. It was next submitted that when a person is entrusted with charge of current duties of a higher post, he can exercise only those powers and perform those functions which are available to the person holding the higher post under executive orders and not those which are conferred by statutory provisions. In support of this submission the learned counsel relied upon the decision of this Court in Ajaib Singh v. State of Punjab [(1965) 2 SCR 845 : AIR 1965 SC 1619 : (1965) 2 Cri LJ 553] . In that case what had happened was that the Additional District Magistrate, Amritsar was invested with powers of a District Magistrate under Section 10(2) of the Code of Criminal Procedure, 1898 and was also put in charge of the office of the District Magistrate Amritsar, who was transferred. No order appointing him as a District Magistrate under Section 10(1) was passed. While in charge of the office of the District Magistrate, he passed an order of detention under the Defence of India Act and Rules, 1962. That 43 order was challenged on the ground that as the Additional District Magistrate was not appointed as District Magistrate under Section 10(1) he did not have the power to pass a detention order and, therefore, the order passed by him was without any authority of law and liable to be set aside. This Court after considering the relevant provisions of the Defence of India Act and Rules, 1962 and the drastic nature of the power and the consequences following from it, observed that the power of detention could only be exercised by the State Government or an officer or authority to whom it was delegated and that the said power could be delegated to an officer or authority who was not lower in rank than the District Magistrate. It was then held that even though the Additional District Magistrate was exercising the powers of the District Magistrate on there being a vacancy in the office of the District Magistrate, he was still not the District Magistrate as he was not appointed as such under Section 10(1) of the Code and therefore, he had no power to pass the order of detention. Even though invested with the powers of a District Magistrate he did not become an officer of the rank of a District Magistrate. In this case we are not concerned with such a provision and therefore are not required to consider whether Executive Director of the Bank when entrusted with the charge of duties of the offices of Chairman and Managing Director became an officer of the rank of Chairman and Managing Director. Moreover the power of the employer to take disciplinary action against his employee including the power to review 44 an order of penalty, has to be distinguished from the statutory power to detain a person. Therefore, on the basis of this decision it cannot be held that the Executive Director who was merely entrusted with the charge of duties of the offices of Chairman and Managing Director could not have exercised the power of reviewing the order of penalty passed by the disciplinary authority.
9. In Hari Chand Aggarwal v. Batala Engineering Co. Ltd. [AIR 1969 SC 483 : (1969) 2 SCR 201 : 1969 Cri LJ 803] also a question had arisen whether the Additional District Magistrate who was entrusted with all the powers of the District Magistrate under Section 10(2) of the Code of Criminal Procedure could have exercised the power delegated by the Central Government to the District Magistrate to requisition the property under Section 29 of the Defence of India Act, 1962. This Court held as under:
"... the powers of requisitioning are of a very drastic nature and involve the fundamental rights in respect of property guaranteed under Article 19(1)(f) of the Constitution. The Central Government while making the delegation of its power under Section 29 of the Act must ordinarily be presumed to be fully conscious of this aspect of the matter and it is for that reason that an officer or authority of the high status of a District Magistrate in the district was empowered to exercise that power.45
The scheme of Section 10 of the Code leaves no room for doubt that the District Magistrate and the Additional District Magistrate are two and distinct authorities and even though the latter may be empowered under sub-section (2) to exercise all or any of the powers of a District Magistrate but by no stretch of reasoning can an Additional District Magistrate be called the District Magistrate which are the words employed in sub-section (1) of Section 10."
This decision, therefore, does not support the contention raised on behalf of the appellant.
10. In State of M.P. v. Laxmishankar Mishra [(1979) 2 SCC 270 : 1979 SCC (L&S) 153] , this Court was required to interpret Rule 3(b) framed under the Madhya Pradesh Local Authorities School Teachers' (Absorption in Government Service) Act, 1963 (25 of 1963) which read as follows: (SCC p. 271, para 6) "3. (b) For absorption on the post of Headmaster/Principal of a High/Higher Secondary School, the person concerned should posses the postgraduate degree and should have worked on the post for a minimum period of 7 years in the same institution and should have 10 years' teaching experience in any recognised institution of Madhya Pradesh."
46
11. It was contended by the respondent that working on the post for a minimum period of 7 years would for the purpose of computation of 7 years include service even as incharge Headmaster/Principal or officiating service in the post. On the other hand it was contended by the State that the teacher claiming to be absorbed as Headmaster/Principal should have worked as a confirmed Headmaster/Principal in a substantive post for the full period of 7 years. This Court held that the period during which the teacher had worked as incharge Headmaster/Principal ought to have been taken into account by the State Government for computing the period of 7 years. It is difficult to appreciate how this decision can lend any support to the contention raised on behalf of the appellant. On the contrary this Court has observed therein that the confirmed holder of a substantive post would be discharging the functions attached to the post and when someone is placed in that very post in an officiating capacity or directed to hold charge of the post, he would be required to perform the duties and discharge the functions of the post rendering identical service. In paragraph 10 of the judgment it is further observed as under: (SCC p. 273) "... it may be that the confirmed holder of the post may be away and not in a position to discharge the duties and someone may be appointed in an officiating capacity or may be directed to hold charge but nonetheless such holder of the post will 47 have to perform duties and discharge functions attached to the post."
21. Hon'ble Apex Court had an occasion to interpret the word the "person aggrieved" in the case of V.N.KRISHNAMURTHY Vs. RAVI KUMAR, reported in AIR 2020 SC 4038 and paragraph 18 and 19 reads as under:
18. In A. Subash Babu Vs. State of A.P. and Anr.4, this Court held as under:-
"The expression 'aggrieved person' denotes an elastic and an elusive concept. It cannot be confined that the bounds of a rigid, exact and comprehensive definition. 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 complainant's interest and the nature and extent of the prejudice or injuries suffered by him."
19. The expression 'person aggrieved' does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must, therefore, necessarily be one, whose right or interest has been adversely affected or jeopardized (vide Shanti Kumar R. Canji Vs. Home 48 Insurance Co. of New York 5 and State of Rajasthan & Ors. Vs. Union of India & Ors.6).
(Emphasis Supplied)
22. Following the declaration of law made in the aforementioned cases and applying the principle to the facts of the present case, that a "person aggrieved" must, therefore, necessarily be one, whose right or interest has been adversely affected or jeopardized (See. AIR 1974 SC 1719 and AIR 1977 SC 1361). In the present case, the petitioner, not being in a cadre of Professor, is ineligible to make an application for the post of Director in the respondent - Institution and therefore I find force in the submission made by the learned counsel appearing for the respondents that petitioner has no locus-standi to challenge the impugned Notification issued by the respondent
- Institution calling for applications from eligible candidates to fill up the post of Director in the respondent - Institution. In that view of the matter, having arrived at a conclusion that the petitioner has no locus-standi to challenge the notification dated 24.02.2023 (Annexure-AA) and further for the reasons stated above, the petitioner has no authority under the provisions of 49 KSR Act, to challenge the Resolution dated 09.02.2023 (Annexure-W) on the ground that the petitioner is neither a Member of the respondent Society nor a Member of the Governing council of the respondent- society and therefore, Point Nos. 1 and 2 are answered in favour of the respondents.
23. It is well settled principle in law that the chances of promotion are not a right vested with the employee nor are they conditions of service. In this regard, it is relevant to cite the law declared by the Hon'ble Apex Court in the case of UNION OF INDIA AND OTHERS VS. N.Y.APTE AND OTHERS reported in (1998) 6 SCC 741. Paragraph 6 of the said judgment reads as under:
"6. We have heard learned counsel on both sides and perused the records. We are unable to agree with the view expressed by the Tribunal that by the amended rules, unequals are treated as equals. Before setting out our reasons, it is necessary to point out that at the time when the respondents filed the writ petition before the High Court of Delhi they were not even in the zone of consideration for promotion to the post of MG-I in fact, the Tribunal has taken note of the same and observed that they 50 have not earned eligibility for promotion to the cadre of MG-I as they did not have to their credit five years of approved service in the grade as on that date. Thus when the respondents approached the Court they could not even claim that they had a chance of promotion at that time. The writ petition ought not to have been entertained at their instance. In view of the passage of time, we do not propose to rest our conclusion on that aspect of the matter."
24. In the light of the conclusion arrived at that the Point Nos.1 and 2 are answered in favour of the respondents and against the petitioner herein, the petitioner has not made out a case for interference in the writ petition and further discussion on the Point No.3 does not arise . In the result, the writ petition is dismissed.
25. In view of dismissal of the writ petition on the ground that the petitioner has no eligibility criteria to be appointed to the post of Director of the respondent-Institution, there is no impediment for the respondent-Institution to complete the process of appointment to the post of Director of the 51 respondent-Institution in terms of the Notification dated 24.02.2023 at the earliest since the said post has fell vacant from 30.06.2020.
SD/-
JUDGE sb/sac*