Calcutta High Court
Food Corporation Of India Officers' ... vs Union Of India (Uoi) And Ors. on 20 August, 2003
Equivalent citations: (2004)1CALLT378(HC)
JUDGMENT Arun Kumar Mitra, J.
1. This writ petition was filed by Food Corporation of India Officers' Association as petitioner No. 1 and the President of the said Association as petitioner No. 2. In this writ petition Union of India has been made respondent No. 1, the Managing Director, Food Corporation of India, respondent No. 2 and the Chairman, Food Corporation of India as respondent No. 3. This writ petition was filed in Computer Section, it came up in the list on 26.6.2003 and was taken for hearing as 'Listed Motion' on 4.7.2003 and after hearing the learned counsel for the petitioners as well as the learned counsel for the respondent Nos. 2 & 3 this Court passed the following order:--
2. This writ petition is moved upon notice to the respondents. The following direction is given for filing of affidavit:
3. Affidavit-in-opposition by four weeks from date. Affidavit-in-reply by two weeks thereafter and the matter to appear in the list as 'Adjourned Motion' eight weeks hence. The post in question will not be filled up by the Deputationists until further orders of the Court. The liberty is given to the parties to mention for early hearing immediately after completion of the affidavits.
4. All parties to act on a sign xerox copy of the Minutes of this order on usual undertaking.
5. On behalf of the petitioner affidavit of service was filed which was affirmed on 24.6.2003.
6. On 31.7.2003 Mr. Kapoor, the learned senior counsel appearing on behalf of the respondent No. 1, Union of India, mentioned the matter pleading urgency because of grant and/or subsistence of the interim order of injunction passed in the matter. Mentioning was made with notice to the learned Advocate-on-Record for the petitioners.
7. On 1.8.2003 the matter appeared in the Daily Cause List. On that day Mr. Kapoor submitted that the writ petition which not maintainable within the territorial jurisdiction of this High Court and naturally the interim order should be vacated immediately and the petition should be dismissed. Mr. Kapoor on that day made two submissions which are (1) the writ petition was moved ex parte in so far as the Union of India is concerned and (2) the writ petition is not maintainable.
8. The matter was taken up for hearing on this score on maintainable. Mr. Kapoor submitted that the entire cause of action arose out side that territorial limit of the High Court Inasmuch as admittedly the office of the Food Corporation of India is at New Delhi. The address of all the respondents are at New Delhi and even the correspondence which was made by the authority concerned was from New Delhi.
9. Concludingly Mr. Kapoor submitted that the matter was moved without notice to the Union of India and order obtained ex parte and secondly, this High Court has no jurisdiction to hear out the matter.
10. Mr. Saktinath Mukherjee, the learned counsel for the petitioners, submitted that initially in the notice was served on all the respondents and the writ petition was filed and it was pending in Daily Cause List since 26.6.2003. Mr. Mukherjee that on 17.6.2003 copy of the writ petition along with notice were served on all the respondents and on 19.6.2003 those were received by the respondents including the respondent No. 1. Affidavit of service was affirmed accordingly annexing all the notices showing services. Again on 4.7.2003 because of the urgency another notice was served on the learned Advocate on-Record of the Food Corporation of India, Mr. Kamal Kr. Chakraborty and the learned senior Central Government advocate stating inter alia that the matter would be taken up at 2.00 p.m. on 4.7.2003. Mr. Mukherjee submitted in Court the receipts showing such service of notice in which it was stated that the matter will be taken up on 4.7.2003 at 2.00 p.m. and accordingly the matter was taken up at 2.00 p.m. on 4.7.2003 in presence of Mr. Chakraborty, the learned counsel for the Food Corporation of India and after hearing both the parties the Court pass the interim order. Mr. Mukherjee submitted that on the face of the record and documents it therefore clearly appears that neither the petition was moved ex parte nor the order was obtained ex parte. Mr. Mukherjee on the point of jurisdiction submitted that this Court has Jurisdiction to hear out the matter. Mr. Mukherjee submitted that prior to 1963 the position was different. At that point of time Article 226(2) was not there and only Article 226(1) was there in the Constitution of India. Mr. Mukherjee submitted that prior to such amendment the Courts had to express helplessness in this regard.
11. Mr. Mukherjee in this context on a decision (Election Commission of India v. Venkata Rao). From this decision it would appear that though the Apex Court felt the difficulty of the litigant people but had to plead helplessness for want of jurisdiction. Thereafter the amendment of Article 226 came in and then not only the seat of the Government but also cause of action became a factor and now the litigant persons can file writ petition in the High Court under the territory of which the cause of action or part of cause of action arises.
12. Mr. Mukherjee cites an example of the Central Administrative Tribunal which came into existence in the year 1985. The purpose was to ease out the problems of the litigant people from going to the particular place where the Head Office of the Company was situated where the person concerned works.
13. Mr. Mukherjee further submitted that in this case the petitioner No. 2 is expecting promotion in the next higher post of Executive Director/ Zonal Manager. According to Mr. Mukherjee that has been pleaded in para 8 and 9 of the writ petition and in para 14 also it has been pleaded that the Departmental Officers including the petitioner No. 2 are eligible for being promoted to the remaining two posts of Executive Director as per their Merit-cum-seniority. Mr. Mukherjee submitted that the respondent authority are going to fill up the post from the Deputationists and as such the petitioner No. 2 who is posted at Calcutta and is expecting promotion in the next higher post has come up to this Court. He cannot be pushed forward to Delhi to file a writ petition there. Mr. Mukherjee submitted that the writ petitioner No. 2 is posted at Calcutta under the Food Corporation of India and he is expecting promotion and naturally the cause of action has arisen at Calcutta and this High Court has ample jurisdiction to hear out the matter.
14. Though the learned advocate for the Food Corporation of India files in Court the affidavit-in-opposition to the main writ petition today but since all the learned counsel advanced arguments on the point of maintainability and on the ground of having or not having territorial jurisdiction, this Court without going into the factual details or factual controversy is to decide on the point of jurisdiction.
15. This is an application under Article 226. The admitted position is that prior to 1963 amendment Article 226(1) was there but 1963 amendment brought him Article 226(1A), subsequently renumbered as Article 226(2). For the sake of convenience of discussions Article 226(1) and (2) are quoted hereinbelow:
226. Powers of High Courts to issue certain writs.
1. Notwithstanding anything in Article 32 every High Court shall have got power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government within those territories directions, orders or writs, including (writs in the nature of habeas corpus, mandamus, prohibition, quowarranto and certiorari, or any of them for enforcement of any of the rights conferred by part III and for any other purpose).
2. The power conferred by Clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such persons is not within those territories.
16. Now in the Constitution of India there is no definition of cause of action and as such we are to rely upon Section 20 of the Code of Civil Procedure which runs as follows. Other suits to be instituted where defendants decide or cause of action arises.
20. Subject to the limitation aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction--
(a) The defendant, or each of the defendants where there are more than one, and the time of commencement of the suit, actually and voluntarily decides, or carries on business, or personally works for him, or
(b) Any of the defendants, where there are more than one, at the time of the commencement of the suit actually and voluntarily decides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or
(c) The cause of action wholly or in part arises.
Explanation: A Corporation shall be deemed to carry on business at its sole or principle office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.
17. It is also settled position of law that where there is no specific procedural provision in respect of the procedural rule in proceeding with the writ petition, the provisions of Code of Civil Procedure will follow.
18. Mr. Mukherjee, the learned counsel for the petitioners, in this regard relies on a decision reported in 1999(1) CLT page 42 (N.K. Chakraborty v. The Council for Indian School Certificate Examinations and Ors.). Mr. Mukherjee relies on paras 3 & 4 of this judgment delivered by the Hon'ble Division Bench of this High Court which are quoted hereinbelow:
3. In so far as the question relating to the lack of jurisdiction is concerned, we have no hesitation whatsoever in saying that the learned single Judge erred in law by this missing the writ application on the ground because this Court surely and certainly has the territorial jurisdiction in this case. We say so because the school which is at the centre of controversy with regard to the grant of affiliation is located at Jhargram in the State of West Bengal. Clause 2 of Article 226 of the Constitution provides that the power vesting in a High Court to issue writs or directions to an authority or person may be exercised by the High Court in relation to such territory within which the cause of action, wholly or in part, arises for exercise of such power, notwithstanding that the seat of such Government, person or authority is not within those territories. Clause 2 of Article 226 of the Constitution reads thus:
2. The power conferred by Clause (1) to issue directions, orders or writs to any Government authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercises of such power, notwithstanding that the seat of such Government or authority or the residence of such persons is not within those territories.....
4. Now let us see what is the cause of action in the present case. The entire cause of action, as far as the appellants are concerned relates to the grant of affiliation by the Council in favour of the School. Every dispute therefore with regard to all such questions relating to the affiliation revolves around the School itself. The location of the School therefore undoubtedly is the principal factor determining the accrual of the cause of action. The school is the nucleus because the students studying in the school are the one who would directly be affected by either the refusal or recognition or even the withholding of it. Any dispute therefore relating to the school and/or the students in the school would amount to the accrual of the whole cause of action, notwithstanding the fact that the documents relating to such dispute may be lying at a place outside the territorial jurisdiction of this Court. We have no hesitation even to the extent of saying that if all the proceedings, starting from the issuance of the first communication or a notice, culminating in the passing of the final order, arise or take place at a location outside the territorial jurisdiction of this Court, this Court will still have the jurisdiction to entertain the writ petition only because of the fact that the school, which is the subject matter of such proceedings or action is located in the territory subject to the jurisdiction of this Court. Accrual of the whole cause of action in the present case therefore is the very location of the school in the State of West Bengal about which the dispute was raised by the appellants in the writ application regarding the grant of affiliation to this school by the Council. Whether the office of the Council is situated within the territories to which this Court has jurisdiction or not is wholly immaterial in view of Article 226(2) of the Constitution because the jurisdiction vested in this Court to issue writs or directions against the Council in this case is relatable to the accrual and arising of the cause of action. As we have observed the location of the school in the State of West Bengal by itself is enough to say that the whole cause of action has accrued to the appellants in the State of West Bengal.
19. Mr. Mukherjee also relies on a decision reported in 1981(1) CHN page 354. Mr. Mukherjee then relies on another decision of a Division Bench of this High Court reported in 1982(1) CHN page 100 (Uma Shankar Chatterjee v. Union of India and Ors.) Mr. Mukherjee submitted that in this decision the Hon'ble Division Bench observed in connection with an order of suspension that it becomes effective when it goes out of hand of the concerned authority for being communicated to the Government servant, no matter when he actually receives it. In the case of order of removal or dismissal it would be effective only when the Government servant has knowledge of it. The Government servant will have such knowledge when he is told about the order or in the absence of prior notice when he actually receives the order. Mr. Mukherjee submitted that where the petitioner No. 2 has knowledge or information that he is going to be deprived of his promotion is at Calcutta.
20. Mr. Mukherjee also relies on other observations of the Hon'ble Division Bench where it has been held or observed that 'it is now well settled that so long as the right of the person is not infringed or sought to be infringed there is no right of action'. In Md. Kahil v. Mehboob AIR 1942 ALL 1221 it has been held that in its restriction cause of action means the circumstances forming the infringement of the right of action, infringement of the right or immediate action for the action.
21. In Walley v. Whalley, (1816)1 MR 436 it has been observed that the cause of action arises when the aggrieved party has right to apply to the proper Tribunal. In the instant case the service of the order of removal as the immediate occasion giving rise to a cause of action to the appellant to move against the same before a Court or a Tribunal.
22. Mr. Mukherjee further relied on the observation of the Hon'ble Division Bench in this case which runs as follows:
"We may, at this stage, refer to a decision on Anil Kr. Sen, J. in Sirajuddin & Co. v. State of Orissa and Ors., . In that case a preliminary objection was taken on behalf of the respondent that as the offices of the all respondents have been located beyond the territorial limit of the Court this Court has no jurisdiction to entertain the writ petition. In repelling the objection, which was held by the learned Judge that all the effective orders including the impugned order terminating the mining lease of the petitioner had been served on the petitioner at his Calcutta address, a part of the cause of action arose within the territorial limit of this Court and this Court has jurisdiction to entertain the writ petition."
23. Mr. Mukherjee placing reliance on the above decision submitted that after the amendment of Article 226 of the Constitution and after the introduction of Article 226(2) if a part of cause of action arises within the limit of any Court, that Court has jurisdiction to hear out the case. Mr. Mukherjee further relied on another decision (Union of India and Ors. v. Hindusthan Aluminium Corporation Ltd. and Anr. Referring to this decision Mr. Mukherjee also placed the observations made by the Hon'ble Division Bench of this High Court. In this decision para 24 and 25 are relevant which are quoted hereinbelow:-
24. Under Article 226(2) of the Constitution, the High Court may exercise its power conferred by Clause (1) of Article 226 to issue, directions, orders or writs if the cause of action, wholly or in part, arises within the territory over which it exercises jurisdiction. It is now well settled that 'cause of action' means every fact which the plaintiff should prove, if traversed, in order to succeed to the suit, Hindalco has come with a case that in view of the impugned orders, it has been suffering loss in its business in the sale of aluminium and its products produced and manufactured by it in Calcutta where its principal office is situated. If there had been no allegation of incurring of any loss as a result of the impugned orders, we are afraid, there would not have given rise to any cause of action either wholly or in part in Calcutta. Normally no person, institute any suit or proceeding unless his right is jeopardised or prejudiced in consequence of any action of a private, individual or of the Government. In the writ petition, there has been a categorical averment of the suffering of loss by Hindalco by the sale of aluminium products in Calcutta. We are now not concerned with the truth or otherwise of the allegation as the question of jurisdiction is to be determined on the basis of the allegations made in the writ petition. If there was no such allegation of any loss suffered by Hindalco in Calcutta, the High Court would not entertain the writ petition, however, illegal the impugned orders may be. A writ petition is not entertained unless the petitioner comes with a case that he has been prejudiced by any action of the Government or a Statutory Body or Authority. So, in our opinion, the writ petition, prima facie, disclose that a part of the cause of action arose in Calcutta within the jurisdiction of this Court.
25. Mr. Chakraborty, has, however, placed much reliance upon a decision of a learned single Judge of this Court (Sisir Kumar Mukherjee, J.) in Darshanlal Anand Prakash v. Collector of Customs & Central Excise, Shillong, 1974 Cal LJ 27. In that case, the petitioners challenged the notifications under item 3(1) of the First Schedule, to the Central Excise and Salt Act, 1944. By the said notifications, the Central Government classified the tea gardens into five zones for the purpose of levying excise duty at varying rates on tea produced at the gardens according to the zones to which they belonged. The challenge of the petitioners, therefore, related to the levy of duties of excise on the manufacture and production of tea. The manufacture and production of tea by the petitioners took place in the State of Assam. The levy and collection of duties of excise also took place in the State of Assam. It was, however, contended on behalf of the petitioners that by reason of the said levy the financial position of the petitioners was adversely affected and such adverse effect was felt by them in Calcutta. The question was whether a part of the cause of action had arisen in Calcutta. In support of the contention that a part of the cause of action arose in Calcutta. It was contended on behalf of the petitioners that as they had to deposit money in the Reserve Bank of India at its Calcutta Office for payment of excise duty. It should be held that apart of the cause of action had arisen in Calcutta and accordingly, this Court had jurisdiction to entertain the writ petition. It was held that such deposit was not payment of excise duty so long as it was not appropriated by the Collector of Customs and such appropriation took place at Assam by the Collector of Customs by debiting the current account maintained by the assessee in Assam. Accordingly, the said contention of the petitioners was not accepted by the learned Judge. The learned Judge also overruled the contention of the petitioners that the effect of the impugned notifications was felt by the petitioners in their places of business including Calcutta. There was, however, no averment and also no finding in that case that the petitioner had suffered loss in their business in Calcutta as a result of the impugned notifications. In our opinion, it has been rightly observed by the learned Judge that the effect felt at a place of business of the petitioners by reason of imposition of duty levied on the petitioners' tea, is far to remote and incidental to constitute a part of the cause of action. Further, there is a clear distinction between the effect, being felt at a place of business and suffering of loss in the business by reason of an impugned order of the Government. We do no, therefore, think that Darshanlal's case is of any help to the appellants. Nor do we that the decision of the Supreme Court in the Advocate General, State of Bihar v. Madhya Pradesh Khair Industries, AIR 1990 SC 946 supports the contention of the appellants inasmuch as the facts of that case are completely different from those of the instant case before us. In the circumstances, we agree with the learned trial Judge that a part of the cause of action arose in Calcutta and this Court had jurisdiction to entertain the writ petition.
24. Then again Mr. Mukherjee relied on a decision reported in 1987(1) page 354. Then the learned counsel Mr. Mukherjee placed reliance on a decision reported in 1992(1) CHN page 200 (Inmark Finance and Investment Co. Pvt. Ltd. and Anr. v. The learned Metropolitan Magistrate, 28th Court at Bombay and Ors.) which is a decision of one learned single Judge of this High Court where it has been observed that if whole of the cause of action or part of it arises within the territorial limit of any Court that Court has jurisdiction to try the matter.
25. Lastly, Mr. Mukherjee relied on a decision of the Hon'ble Apex Court reported in 2000(7) SCC page 64 (Navin Chandra N. Majithia v. State of Maharashtra and Ors.). Mr. Mukherjee not only relied on this decision but also strongly emphasised the observation made in paragraph 17 of this decision which is quoted hereinbelow:
"From the provision in Clause (2) of Article 226 it is clear that the maintainability or otherwise of the writ petition in the High Court depends on whether the cause of action or filing the same arose, wholly or in part within the territorial jurisdiction of that Court."
26. Mr. Mukherjee submitted that prior to amendment position was different and there the question was of the seat of the Government but after amendment Article 226(2) widened the scope and since then not only the seat of the Government but also the cause of action became an important factor in assumption of jurisdiction. In this case the petitioner No. 1 is an Association of the Officers (State Unit) and the petitioner No. 2 is not only the President but also a candidate expecting promotion in the higher post claiming eligibility for promotion having in the zone of consideration and the posting of the petitioner is at Calcutta and as such Calcutta High Court has got ample jurisdiction to hear out this writ petition and this writ petition should be finally heard out on merit by this Court. Mr. Mukherjee additionally submits that now in this manner injunction cannot be vacated and he relies on Order 39 Rule 4 of the Code of Civil Procedure which is quoted below:--
"4. Any order or an injunction may be discharged, or valid, or set aside by the Court, on application made thereto by any party dissatisfied with such order.
Provided that if an application for temporary injunction or in any affidavit supporting such application, a party has knowingly made a false or misleading statement in relation to material particulars and the injunction was granted without giving notice to the opposite party, the Courts have vacated the injunction, unless for reasons to be recorded, if considered that it is not necessary so to do in the interest of justice.
Provided further whether an order of injunction has been passed after giving to a party an opportunity of being heard, the orders shall not be discharged, valid or set aside on an application of that party except where such discharging, variation or setting aside has been necessitated by change in the circumstances, or unless the Court is satisfied that the order has caused undue hardship that party."
27. Mr. Mukherjee submitted that in this case inspite of direction no affidavit-in-opposition has been filed by the respondent No. 1. Though the respondent No. 2 and 3 have filed their affidavit-in-opposition today in Court only. The respondent No. 1 claiming dismissal of the writ petition or vacating the interim order has not filed any application for vacating or modification also.
28. Mr. Mukherjee submitted as would appear from the receipts as well as from the affidavit of service filed in Court as well as from the Daily Cause List as it appears that the notices were served on all the respondents, matter was pending from 26.6.2003 and the matter was taken up as "Court Application" on 4.7.2003 and on 4th July in the morning another notice has been served on the learned Advocate-on-Record for the parties that the matter will be taken up at 2.00 p.m. and as such there is no scope for vacating the interim order at this stage.
29. Mr. Kapoor who mentioned the matter and claimed that the injunction should be vacated and the writ petition should be dismissed inasmuch as this Court has not got territorial jurisdiction to hear out this matter, placed reliance on a decision (Oil & Natural Gas Commission v. Utpal Kumar Basu and Anr.) and Mr. Kapoor submitted that the facts relied upon for the purpose of establishing cause of action must form integral part of the cause of action and not that mere fact that the petitioner company, having its office at Calcutta and read in the newspaper does not confer right to move a writ petition as has been observed by the Hon'ble Apex Court in this decision.
30. Mr. Kapoor further submitted that in this case the petitioners with mala fide intention misled the Court and obtained the order or injunction which caused difficulty or hardship in running the administration.
31. Mr. Kapoor also relied on another decision reported in 1985(3) SCC page 26 and then placed reliance on a recent decision (Union of India and Ors. v. Adani Exports Pvt. Ltd.).
32. Mr. Kapoor submitted that in this case also the Hon'ble Apex Court dismissed the writ petition for want of jurisdiction.
33. Concludingly Mr. Kapoor submitted that this writ petition should not be entertained and should be dismissed in limine with costs.
34. The learned counsel for the Food Corporation of India supported the stand taken by Mr. Kapoor. Now the only point which is to be decided in this case is whether the claim of the petitioners comes within the jurisdiction or territorial limit of this High Court.
35. Let us proceed phasewise. The term Territorial" has been defined in Oxford Dictionary as of, belonging or relating to, territory or land, or to the territory of any State, and 'Jurisdiction' as has been defined in the Oxford Dictionary 'the reigns of judicial or administrative power; the territory over which such power extends'.
"Jurisdiction has been defined in Webster (sic)cyclopaedic Dictionary is the extent of reign of judicial, law enforcement or other authority and/or the territory over which authorities exercised".
The term 'Jurisdiction' as has been defined in Osborn's Law Dictionary is 'the district of limit within which the judgments and orders of a Court can be enforced orexecuted'.
Gilmer's Law Dictionary defines "Jurisdiction" as 'the geographical district over which a power of a Court extends'.
36. Now let me come to the term 'cause of action'. Mulla's Civil Procedure Code contains "a cause of action means every fact, which is traversed, it would be necessary for the plaintiff to prove in order to support of his right to a judgment of the Court. In other words it is a bundle of facts which taken with the law applicable to then gives the plaintiff a right to relief against the defendant".
37. Gilmer's Law Dictionary defines cause of action as the concurrence of a right belonging to a plaintiff and a wrong committed by the defendant which breaches the right and results indulged.
38. Osborn's Law Dictionary defines cause of action as the fact of combination of facts which give rise to a right of action.
39. According to Sarkar on Civil Procedure Code the phrase 'cause of action' should be given its ordinary meaning and understood to mean as definition in English and accepted in India. In its wider sense it means the necessary condition for maintenance of the suit.
40. In Stroud's Judicial Dictionary a cause of action is stated to be the entire set of fact that gives right to an enforceable claim, the phase comprises or every fact which, if traversed the plaintiff must prove in order to obtain judgment.
41. In Black's Law Dictionary defines 'cause of action' as a situation or set of fact that entitles a party to maintain an action in a Court or Tribunal; a group of operative facts giving rise to one or more on the bases for suing, a factual situation that entitles one person to obtain a remedy in Court from another person,
42. Now in this case it is to be decided as to what is the cause and what is the action. The petitioners are two in number. One is the Association (State Unit), other is the President of the Association. The claim is for promotion in a posts of Executive Director. From paragraph 5 of the writ petition it appears that the petitioner No. 2, claimant is in serial No. 10. In paragraph 8 of the writ petition it appears that the petitioner No. 2, claimant is in serial No. 10. In paragraph 8 of the writ petition, it has been stated that four vacancies in the post of Executive Director would occur during this year 2003 and out of the four vacancies, two vacancies have already occurred and two further posts of Executive Director will fall vacant on 1.10.2003 and 1.12.2003.
43. Assumingly or taking it for granted that four vacancies will occur in 2003 and the petitioner No. 2 is the claimant, then also according to the seniority list, admittedly the petitioner is in 10th position. The head office that is policy making body here is at Delhi. The service of the officers and employees of Food Corporation of India is transferable all over India and the service concerned are all India Service. The claimant, petitioner No. 2, therefore does not come admittedly within the zone of consideration. It is settled principle of law that promotion is a prerogative of the Management and right to promotion is not an established right. The right to be considered for promotion however, is established right if the claimant is eligible or within the zone of consideration. It is also settled that a change of promotion does not also confer any legal right on the claimant. In this case the petitioner No. 2 is not prejudicially affected nor the integral part of the cause of action as observed in (supra) does arise here because admittedly four vacancies have occurred in 2003 and position of the petitioner No. 2 is at 10 and if in the meantime the petitioner is transferred elsewhere then also his claim goes inasmuch as presently he is not within the zone of consideration. It has not been described in the writ petition as to who are the members of the petitioner No. 1 and what is their position in the seniority list inasmuch as it appears from annexures that office of the Association (National) at Delhi and the petitioner No. 1 Association, is West Bengal Unit.
44. Without details of the members of the petitioner No. 1 or without any averment to the effect seniority or merit position of the members of the petitioner No. 1 (State Unit), it cannot be said that they are within the zone of consideration. It has also not been stated in the writ petition as to who has superseded the petitioners or whether those junior officers who allegedly superseded the petitioners are better in merit or whether the petitioners are in higher merit or so to say that there is no specific case described in the writ petition regarding supersession or discrimination. The writ petition as it has been filed is merely on apprehension and it has not been described in the writ petition specifically as to who are the deputationists who filled up the posts and no annexure is there to support it how the petitioners are prejudically affected and in fact, what is the cause for which the petitioners want to take action in this forum of Article 226 before this High Court. Cause of action, there must be cause for which action is to be taken and so observed earlier mere chance of promotion cannot create a cause of action.
45. In that view of the matter, in my opinion, no such cause of action either wholly or in part is there or arose here as it appears from the writ petition itself. In absence of any such cause of action the petitioners cannot claim to be prejudically affected here within the territorial limit of Calcutta High Court. The writ petition is therefore not maintainable and is dismissed.
46. As the writ petition is not maintainable, I do not propose to deal with the submission on Order 39 Rule 4 of the Code of Civil Procedure, since with the dismissal of writ petition, all interim orders stand vacated.
There will be, however, no order as to costs.
Learned counsel for the petitioner prays for stay of operation of the judgment and order but since I hold the petition being not maintainable, prayer for stay is refused.
Urgent xerox certified copy of the order, if applied for, would be given expeditiously.