The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.13557 of 2024 All Odisha Additional Computer Programmers Association (AOACPA), represented by its President Manas Ranjan Dash, aged about 38 years, S/O- Rama Chandra Dash, Karmachari Bhawan, Behind A.D.M. Office, Block No.10, Unit-5, Bhubaneswar-750001, Dist- Khordha. -Versus- …Petitioner 1. State of Odisha, represented by the Principal Secretary to the Government, General Administration Department, Loka Seva Bhawan, Sachibalaya Marg, Bhubaneswar, Dist- Khordha. 2. The Principal Secretary to Government, Panchayati Raj & Drinking Water Department, Loka Seva Bhawan, Sachibalaya Marg, Bhubaneswar, Dist- Khordha. …Opposite Parties Advocates appeared in the case: For the Petitioner
Legal Reasoning
: Mr. Manoj Kumar Mohanty, Advocate For Opposite Parties : Mr. M.K. Khuntia, Additional Government Advocate W.P.(C) No.13557 of 2024 Page 1 of 11 CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MISS JUSTICE SAVITRI RATHO JUDGMENT 05.11.2024 Chakradhari Sharan Singh, CJ. The petitioner, in the present writ petition filed under Article 226 of the Constitution of India, claims to be an association of Computer Programmers, who have been appointed on contractual basis in 314 Blocks of the State of Odisha. It claims that the cause of action being the same for all the Additional Computer Programmers working in the State of Odisha, they have filed the present writ petition through their Association. It has also been asserted that the petitioner- association is affiliated to Odisha State Non-gazetted Officers Coordination Committee which functions within the territorial jurisdiction of this Court. 2. The petitioner is admittedly an un-registered body which has approached this Court invoking writ jurisdiction questioning the constitutionality of Rule 4 of the Odisha Accountant-cum-Date Entry Operator (Method of Recruitment and Conditions of Service) Rules, 2024 (in short, ‘the Rules’) prescribing provision for recruitment and W.P.(C) No.13557 of 2024 Page 2 of 11 governing service conditions of Accountant-cum-Date Entry Operator. Rule 4 of the Rules reads thus: 4. Methods of recruitment:- (1) Not less than 70% of the Cadre strength shall be filled up by way of direct recruitment through the Commission and (2) Not more than 30% of the Cadre strength shall be filled up by means of selection of the eligible GRS engaged under MGNREGA Scheme.” 3. Asserting the factual background in the writ petition, in which the Additional Computer Programmers were engaged under NREGA in various panchayats in the State of Odisha, the petitioner-association has sought for the following relief: “The petitioner most respectfully prays that the Hon’ble Court may be graciously pleased to allow the writ petition, issue a writ of direction in the nature of certiorari or any other appropriate writ or direction quashing the Rule-4(1) of the Odisha Accountant-cum- Data Entry Operator (Method of Recruitment and Conditions of Service) Rules, 2024 under Annexure-4 and further issue a writ or direction in the nature of mandamus or any other appropriate writ or direction to the Opp. Parties to keep 30% Reservation for the eligible Additional Computer Programmers in the cadre strength in the post of Accountant-cum-Data (Method of Recruitment and Entry Operator Conditions of Service) Rules, 2024 their for appointment or their service as to regularize Additional Computer Programmers and pass such other or further order or orders as are deemed just and proper.” W.P.(C) No.13557 of 2024 Page 3 of 11 4. It can be easily called out from above that the petitioner which is an un-registered association is seeking the following reliefs:- (i) Rule 4(1) of the Odisha Accountant-cum-Date Entry Operator (Method of Recruitment and Conditions of Service) Rules, 2024 be declared arbitrary and therefore, unconstitutional; (ii) The opposite parties be directed to reserve 30% of the posts of Accountant-cum-Data Entry Operator for eligible Additional Computer Programmers; or (iii) Regularize the services of the members of the association as Additional Computer Programmers. 5. Though arguments have been advanced on merits assailing the legality of the impugned statutory provision, the foremost question in the present case is; whether an unregistered association of persons can
Decision
maintain the writ petition under Article 226 of the Constitution of India for enforcement of rights of its members seeking the reliefs of the nature noted above. Apparently, the association is not claiming its own rights. W.P.(C) No.13557 of 2024 Page 4 of 11 6. Existence of right of a juristic person is the foundation of exercise of the jurisdiction under Article 226 of the Constitution of India. In case of Charanjit Lal Chowdhury v. The Union of India: AIR 1951 SC 41, the Supreme Court has laid down that a legal right that can be enforced under Article 32 of the Constitution must ordinarily be the right of the petitioner itself who complains of infraction of such right. In case of Calcutta Gas Company (Proprietary) Ltd. v. State of West Bengal: AIR 1962 SC 1044, the Supreme Court has clarified that the said principle in case of Charanjit Lal Chowdhury (supra) equally applies to a petition under Article 226 of the Constitution. The said principle has been reiterated by the Supreme Court in the case of Gadde Venkateswara Rao v. Govt. of A.P.: AIR 1966 SC 828. 7. A full Bench of the Allahabad High Court in case of Umesh Chand Vinod Kumar v. Krishi Utpadan Mandi Samiti, Bharthana: AIR 1984 All 46 has, dealt with this question including the question whether an association of persons, registered or unregistered can maintain a writ petition under Article 226 of the Constitution of India for enforcement of the rights of its members, as distinguished from the enforcement of its own rights. Noticing the Supreme Court’s decisions W.P.(C) No.13557 of 2024 Page 5 of 11 in case of The State of Orissa v. Madan Gopal Rungta: AIR 1952 SC 12, Charanjit Lal Chowdhury (supra), Calcutta Gas Company (supra) and Gadde Venkateswara Rao (supra), the Allahabad High Court in case of Umesh Chand Vinod Kumar (supra), has summarized the position of law in paragraph 20 as under: “20. To summarise, the position appears to be that an association of persons, registered or unregistered, can file a petition under Article 226 for enforcement of the rights of its members as distinguished from the enforcement of its own rights- (1) In case members of such an association are themselves unable to approach the court by reason of poverty, disability or socially or economically disadvantaged position "little Indians". (2) In case of a public injury leading to public interest litigation provided the association has some concern deeper than that of a way-farer or a busybody i.e. it the subject matter. has a special interest in (3) Where the rules or regulations of the association specifically authorise it to take legal proceedings on behalf of its members, so that any order passed by the court in such proceedings will be binding on the members.” 8. After having held as above, the Allahabad High Court in case of Umesh Chand Vinod Kumar (supra) concluded that in other cases, an association whether registered or unregistered, cannot maintain a writ petition under Article 226 of the Constitution of India for the W.P.(C) No.13557 of 2024 Page 6 of 11 enforcement or protection of rights of its own members, as distinguished from the enforcement of its own rights. 9. The Allahabad High Court, in case of Umesh Chand Vinod Kumar (supra), before reaching the conclusion as noted above, has taken into account the law laid down by the Supreme Court in case of Fertilizer Corporation Kamagar Union (Regd.) Sindri v. Union of India: AIR 1981 SC 344 on the question of traditional rule of locus standi. 10. It is true that the concept of a “person aggrieved” has been diluted in the matters of Public Interest Litigation (PIL), which has been recognized as a tool to espouse cause of the marginalized and oppressed. We are of the considered view that the rights under Article 226 of the Constitution can be enforced only by an aggrieved person except in the exceptional circumstances. 11. The Supreme Court, in case of B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees’ Association: (2006) 11 SCC 31(2) has quoted with approval a decision rendered by the Rajasthan High Court in case of Parents Teachers Association v. Chairman, Kendriya Vidyalaya Sangathan: AIR 2001 W.P.(C) No.13557 of 2024 Page 7 of 11 Raj 35. Paragraph 36 of the decision in case of B. Srinivasa Reddy (supra) reads thus: “36. In Parents Teachers Assn. v. Chairman, Kendriya Vidyalaya Sangathan [AIR 2001 Raj 35 : (2000) 6 SLR 68] speaking for the Bench, Dr. Ar. Lakshmanan, C.J., in paras 12 and 13 observed as under: (AIR pp. 38-39) the decision of “12. The appellant-petitioners have not placed before this Court any document to show that the Parents- Teachers Association is a registered and recognised association. The writ petition has been allegedly filed in public interest and the alleged large interest of the students. It is evident that the so-called Parents- is an unregistered and Teachers Association unrecognised association and, therefore, in our view, has no fundamental right to approach this Court under Article 226 of the Constitution. This point has been concluded by the Apex Court in Mahinder Kumar Gupta [(1995) 1 SCC 85 : JT (1995) 1 SC 11] and by the decision of Full Bench of this Court in RSEB Accountants' Assn. [RSEB Accountants' Assn. v. Rajasthan SEB, (1996) 1 SLR 467 (FB)] A reply to the preliminary objection raised by the respondents was also made by the appellants. It is stated that the Parents-Teachers Association has been recognised by the KVS and that the Principal is the Vice-Chairman of the said Association and hence, the Association is competent to file the writ petition on behalf of the students. In our view, the above reason cannot be considered as a valid reason for maintaining the writ petition. It is not in dispute that the Association is not a registered body and recognised association. Thus, after examining this point of law in detail and placing reliance on various judgments delivered by the Apex Court from time to time, the Full Bench of this Court in RSEB Accountants' Assn. [RSEB Accountants' Assn. v. Rajasthan SEB, (1996) 1 SLR 467 (FB)] held as under: W.P.(C) No.13557 of 2024 Page 8 of 11 that an unregistered ‘It may also be observed association has no fundamental right to approach this Court under Article 226 of the Constitution and this point is concluded by the decision in Mahinder Kumar Gupta v. Union of India [(1995) 1 SCC 85 : JT (1995) 1 SC 11] . A decision in Akhil Bharatiya Soshit Karamchari Sangh (Rly.) v. Union of India [(1981) 1 SCC 246 : 1981 SCC (L&S) 50 : AIR 1981 SC 298] was relied upon where the non-registered association was held to apply under Article 32 of the Constitution. We may observe that there had been a number of instances of public interest litigation where large body of persons is having grievance against inaction of the State. Even letters have been considered to be a writ petition but all these are the matters where large section of public is affected and the personal interest of any person or a smaller section as in the present case, is not involved. Even in People's Union for Democratic Rights v. Union of India [(1982) 3 SCC 235 : 1982 SCC (L&S) 275 : AIR 1982 SC 1473] when the question of locus standi was considered, the Hon'ble Supreme Court had taken into consideration the poverty, illiteracy and the ignorance obstructing and impeding accessibility of the judicial process and on that ground it was considered that the writ petition can be filed. In D.S. Nakara v. Union of India [(1983) 1 SCC 305 : 1983 SCC (L&S) 145 : AIR 1983 SC 130] the old pensioners to undertake journey through labyrinths of costly and protracted legal judicial process for allowing to espouse In S.P. Gupta v. Union of India [1981 Supp SCC 87 : AIR 1982 SC 149] poverty, helplessness and disability or social or economic disadvantaged position was considered a sufficient ground for maintaining the writ petition. There had been other decisions of the Apex Court as well and principles which emerge from all of them are as under: individually were unable their cause. W.P.(C) No.13557 of 2024 Page 9 of 11 (a) That the members of the said association should have sufficient strength so as to come in the category of a large section of public. (b) That the members should be identifiable. (c) That the members must be of the category of poor/illiterate/helpless or disabled. (d) That the individual members must not be capable of filing a writ petition. (e) That the entire body of the members must authorise the association to protect their legal rights. (f) That such an association must have its own constitution, and (g) That there must be authority to file a writ petition on behalf of all the members.’ 13. In the instant case, none of the grounds mentioned above in (a) to (g) have been satisfied by the present appellants to maintain the writ petition. Since the above conditions are not fulfilled such an unregistered association cannot file writ petition in respect of the legal rights of the said association for the alleged breach of fundamental right as the association itself has no fundamental right of its own.” 12. In such view of the matter, we hold that this writ petition is not maintainable since the petitioner which is an un-registered association is neither a juristic person nor has the locus standi to maintain this writ petition. W.P.(C) No.13557 of 2024 Page 10 of 11 13. Accordingly, this writ petition stands dismissed. 14. We have not gone into the merits of the case. 15. Any person aggrieved shall be at liberty to seek appropriate remedy under the law. (Chakradhari Sharan Singh) Chief Justice Savitri Ratho, J. I agree. (Savitri Ratho) Judge S. Behera Signature Not Verified Digitally Signed Signed by: SUMANTA BEHERA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 06-Nov-2024 10:39:21 W.P.(C) No.13557 of 2024 Page 11 of 11