Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK W.P.(C) No.32402 of 2022 In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950 Petitioner *** Odisha Gramya Bank Business Correspondents Association (OGBBCA), Represented through The General Secretary, Sri Pravakar Barik Son of Prafulla Barik Of Bhaskarganj (A), Sailesh Lane P.O./P.S.: Balasore District: Balasore. … -VERSUS- 1. Union of India Represented through The Secretary Ministry of Finance Central Secretariat, New Delhi. 2. National Bank for Agriculture and Rural Development Represented through Chairman, 2nd Floor, D-Wing C/24, G-Block, Bandra, Kurla Mumbai, Mahatrastra. 3. Indian Overseas Bank Represented through Chairman. W.P.(C) No.32402 of 2022 Page 1 of 130 4. The Board of Directors Odisha Gramya Bank Kokila Residency, Ananta Vihar Pokhoriput, Bhubaneswar District: Khurda. 5. Odisha Gramya Bank Represented through Chairman Kokila Residency, Ananta Vihar, Pokhoriput, Bhubaneswar District: Khurda. 6. The Dy. Chief Labour Commissioner (C) Plot No.N.7/6-7, IRC Village Behind ISKCON Temple Nayapalli, Bhubaneswar. … Opposite parties. Counsel appeared for the parties: For the Petitioner : M/s. Debendra Mohanta and Sitaram Jena, Advocates For the Opposite party No.1 : Mr. Prasanna Kumar Parhi, Deputy Solicitor General of India For the Opposite party No.3 : Mr. Aurovinda Mohanty, Advocate For the Opposite party Nos.4 and 5 : Mr. Manoj Kumar Mishra, Senior Advocate Assisted by Tanmay Mishra and Roopam Mishra, Advocates P R E S E N T: HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN W.P.(C) No.32402 of 2022 Page 2 of 130 Date of Hearing : 30.09.2024 :: Date of Judgment : 20.01.2025 J UDGMENT Assailed in this writ petition is the “Request for Proposal for Selection of Corporate Business Correspondent with End-to-End Financial Inclusion with Technology” having Reference No.RFP/FID/02/ 22-23, dated 01.11.2022 of the Financial Inclusion Department, Head Office of the Odisha Gramya Bank (Annexure-9). 1.1. The petitioner, challenging the proposed decision of the Odisha Gramya Bank (opposite party No.5) to change the status of the Banking Correspondent Agents beseeches intervention of this Court invoking extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India with the following prayer(s): “Under the circumstances, it is prayed that this Hon‟ble Court may be graciously pleased to issue a writ or writs the nature of writ of certiorari quashing Annexure-9 declaring the same as illegal, arbitrary and against the settle position of law. Further this Hon‟ble Court may be graciously pleased to direct the opposite party No.5 to treat the BCAs named in Annexure-1 as the regular employees of the opposite party No.5 Bank and consequently advance ail service benefits applicable to the employees of the Bank. W.P.(C) No.32402 of 2022 Page 3 of 130 And pass any other order or orders as would deem fit and proper. Further, this Hon‟ble Court may be graciously pleased to quash the SOP under Annexure-11 and declare the same as illegal, arbitrary, unreasonable and against the Order of this Hon‟ble Court dated 02.12.2022. And for which act of kindness, the Petitioners shall as in duty bound ever pray.” Facts: 2. The Odisha Gramya Bank and the Utkal Gramya Bank, established under the aegis of the Indian Overseas Bank and the State Bank of India respectively, in view of the Regional Rural Banks Act, 1976, have distinct area of operation. 2.1. In pursuance of Guidelines vide RBI/2010- 11/2017/DBOD No.BL.BC. 43/22.01.009/2010-11, dated 28.09.2010 issued by the Reserve Bank of India, the Odisha Gramya Bank (for convenience opposite party Nos.4 and 5 are referred to as “OGB”) desirous of expanding its banking operation extensively entered into Agreement (sample copy of which is placed at Annexure-2) with Business Correspondent/Business Facilitator (BC/BF), Clause 11 whereof indicated that the validity period of such agreement would be for one year from the date of execution subject to renewal for further period(s) on mutual consent with rider to W.P.(C) No.32402 of 2022 Page 4 of 130 terminate available with the Bank as well as the BC/BF giving a month’s notice in writing to the other party. 2.2. Since this activity of the Bank is partially related to delivery of financial services, the said services have been brought under the Finance Ministry as Financial Inclusion Personnel (in short, “FIP”). Accordingly, the Odisha Gramya Bank in consonance with the prescribed Guidelines issued vide Circular dated 31.08.2013 indicating the Operational Procedure for Banking Correspondent Agents (“BCA” for short) and Ultra Small Branches. In the said Circular inter alia it provided for the remuneration to the BCAs. Periodically the Bank has been issuing additional works to be undertaken by the BCA as per the schemes introduced by the Government at different point of time for being undertaken by the Regional Rural Banks. 2.3. While such was the position, the OGB changed the fixed commission structure and also other service conditions. For which the BCAs through the petitioner gave a notice of strike specifying the demands with copies to all concerned including said Bank on 11.03:2022, to which reply in Letter dated 21.03.2022 was furnished stating that the petitioner has no locus W.P.(C) No.32402 of 2022 Page 5 of 130 standi to go for strike inasmuch as it is clarified in Letter No.HO/FI/887/2022, dated 25.03.2022 that there being no employer-employee relationship, BCs are paid only commission, but not wages or salary. 2.4. The Regional, Labour Commissioner (Central), Bhubaneswar vide Letter in File No.7(03)/2022-B-II, dated 14.06.2022 submitted report to the Government of India, Ministry of Labour and Employment, New Delhi under Section 12(4) of the Industrial Disputes Act, 1947 (“ID Act”, for brevity) indicating that conciliation proceeding got ended in failure and suggestion was made by the parties for reference of the matter under Section 10A ibid. for arbitration. The Appropriate Government, thereby, have referred the matter to the Central Government Industrial Tribunal and the same got registered as ID Case No.34 of 2022 for adjudication, which is stated to be pending. 2.5. The issue as to the employer and employee relationship is concerned it is claimed by the petitioner that the OGB having engaged the BCA is to function under the direct control and supervision of the Bank. 2.6. While such was the position, the petitioner stated to have could come to know that the OGB sought to put in place proposal for selection of Corporate Business Correspondent with End-to-End Financial Inclusion W.P.(C) No.32402 of 2022 Page 6 of 130 with Technology vide Request for Proposal bearing RFP Reference No.RFP/ FID/02/22-23, dated on 01.11.2022 (Annexure-9) (for convenience be referred to as “RFP”), whereby the successful bidder is required to deploy BCA on same terms and conditions at the locations as per the roadmap given by the Reserve Bank of India/DFS/SLBC/State Government. 2.7. Apprehending that by virtue of such RFP the OGB would change the condition of service of the BCA during the pendency of the adjudication of the dispute referred to the Central Government Industrial Tribunal, the petitioner seeks to question the policy of the OGB by way of the instant writ petition on the grounds inter alia that in absence of express permission of the authority before which the proceeding is pending as contemplated under Section 33 of the ID Act in writing, the OGB needs to be restrained from implementing RFP. Response of the opposite party Nos.4 and 5-OGB: 3. The scope and ambit of BC has been explained by the OGB in its counter affidavit as follows: “i) The Bank has floated RFP for selection of Corporate Business Correspondent with End-to- End Financial inclusion technology along with daily deposit technology vide RFP Reference No. W.P.(C) No.32402 of 2022 Page 7 of 130 RFP/FID/02/22-23 on 01.11.2022 as per the approval of Board of Directors of the Bank. Presently the Business Correspondent Agents are engaged and managed by Bank. However as the number of BCs are growing it is not possible on part of the Bank to manage the same due to shortage of manpower. Also the cost of technology is also increasing day by day. The above RFP shall entrust the engagement and management of the business correspondents to the selected bidder along with FI technology and Daily Deposit technology. vide their dated Letter 11.03.2022 ii) The business correspondents had on earlier occasion called for strike under the banner of “Odisha Gramya Bank Business Correspondents No. Association" OGBBCA/2022/36, for fulfilment of various demands. The matter was put up before Regional Labour Commissioner for Conciliation proceeding on 25.03.2022 and 11.04.2022. The Conciliation Proceeding ended in failure and the same was recorded vide Letter dated 14.06.2022. The matter is now pending before the Central Government Industrial Tribunal- cum-Labour Court, Bhubaneswar. iii) The Financial Inclusion through Business Correspondents has two parts: a) Financial Inclusion Technology; b) Business Correspondents management. a) Financial Inclusion Technology: W.P.(C) No.32402 of 2022 Page 8 of 130 The Bank started the use of Micro ATM devices for financial inclusion from 2015 onwards. The Micro-ATM devices were given to BCs by the Bank for doing financial transaction like withdrawal, deposit and fund transfer. The Micro ATM services are available for customers of Bank as well as customers of other Banks and financial institutions. The technology service for Micro ATM devises, Financial Inclusion servers and FI gateway are being provided by M/s Atyati Technology Pvt. Ltd. The AMC for the technology service by M/s Atyati Technology Pvt. Ltd. was valid up to 31.12.2022. The servers used for this puipose are old, it needs replacement. Bank in its present RFP vide RFP no. RFP/FID/02/22-23 on dated 01.11.2022 has sought bids from vendors who shall provide FI (Financial inclusion) servers and FI gateway as an End-to-End solution. If the Bank is not allowed to finalize the RFP then the Bank may not be in a position to provide Micro ATM services from the AMC has 31.12.2022 onwards as already expired. Moreover renewal of AMC for longer time shall not be fruitful as the FI servers are not having adequate space and too old to handle the huge micro ATM transactions. The replacement of the servers will put a huge cost burden on the Bank. b) Business Correspondents Management: At present the business correspondents are includes Bank. managed This by W.P.(C) No.32402 of 2022 Page 9 of 130 better management engagement of new BCs, checking of their daily work, allotment of targets, training, implementation of Govt. directives etc. The Corporate BC model has been implemented by all most all Banks which is approved by RBI and NABARD. The implementation of Corporate BC model not only helps the Bank in of Business correspondent agents but also assists the Bank for better implementation of Govt. schemes and technological initiatives. The present RFP implementation of Corporate Business Correspondent with end to end FI Technology i.e. the vendor selected will provide technology and BC management as a service. The Hon’ble High Court has directed that status quo as on date with regard to service of the petitioner shall be maintained till next date. At present the engagement of BCs are done by the Bank by an agreement for one year, which are renewable for further period depending on satisfactory performance. includes c) Bank signed the service Level agreement with M/s. Atyati Technology Pvt. Ltd on 24.06.2016. The scope of work includes the supply of financial inclusion project solution and supply of hardware like Servers, Micro ATM, PIN Pads, HSM etc. Including required licenses. The AMC for financial inclusion project solution has expired on 31-12-2020 and was further renewed from time to time and the last one was valid up to 31.12.2022. W.P.(C) No.32402 of 2022 Page 10 of 130 d) The AMC for Micro ATM device has expired on 31.12.2021. So the Bank has considered for floating of this RFP for Corporate BCA for overall BC management and FI technology. e) After getting guidance from our sponsor Bank i.e. Indian Overseas Bank, Odisha Gramya Bank floated the RFP for the same on 01.11.2022. f) The vendor M/s Atyati Technology Pvt. Ltd had informed the Bank on 29.07.2022 that there is critical space issue in the FI server at Banks DC and DR. g) Bank had prepared the RTF and get it duly vetted by IDRBT. For the said time (i.e. till implementation of Corporate BCA) Bank had arranged IT department to be used by FI technology implementation for providing uninterrupted service to the rural customers. the servers used by its h) However the above said arrangement will be available for FI gateway for temporary period only. As the AMC for Micro ATM device is already over and the FI servers are to be replaced, the selection of vendor through RPF is essentially required for continuation of FI project to rural customers in the unbanked area. the service to extend i) The number of transaction through micro lakh with ATM stood at around 27 transaction value of Rs.842 crore. If the FI project is stopped due to non selection of W.P.(C) No.32402 of 2022 Page 11 of 130 vendor through RFP, then rural customers of around 7500 villages in 13 district of Odisha will be deprived of financial services.” 3.1. Refuting the contention of the petitioner that there exists employer-employee relationship, it is asserted that since ID Case No.34 of 2022 is pending before the Central Government Industrial Tribunal, Bhubaneswar, consequent upon failure of the conciliation proceeding, the BCA is treated as “individual business entity” like proprietorship
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concern. It is, therefore, affirmed that the requirement of Section 33 of the ID Act is redundant and unwarrnted. Rejoinder affidavit in reply to the contention of the opposite parties: 4. It is impressed upon by the petitioner that the new policy would be frustrated for the following reasons: “I. Banking and financial services are essentially „pull‟ products that are „sought out‟ and like postal services have to be accessible at affordable cost. Banking and financial services should not be „pushed‟ towards or at the customer, unlike other goods sold by retail agents. Companies may, in the interest of revenue maximization, use their resources and wide distribution network to push banking and financial products, unmindful of whether they are suitable or appropriate for such W.P.(C) No.32402 of 2022 Page 12 of 130 persons. In other words, there are concerns of mis- selling of banking products especially amongst uninformed and illiterate consumers. II. A retail agent of a corporate may tend to provide banking services only to those customers who patronize the Corporate‟s products as that would enhance his earnings— this represents a conflict of interest. III. Corporate BCs could misuse customer related information for their own commercial interests. IV. Unfair coercive practices by corporate agents for marketing the financial products/recovery of loans etc. would lead to reputation risks for the banks that have appointed them, besides affecting the confidence of the public in the banking system. for banks
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the corporate shrinks In case its business requiring it to discontinue its retail, it may become immediate difficult to thereby replacement/substitution of affecting continuity In case of appointment of individuals directly as BCs, the impact of one agent discontinuing business may not be significant.” find the BC in services. V. Hearing: 5. Pleadings being complete and exchanged amongst counsel for the respective parties, on consent this matter is taken up for final hearing at the stage of admission. W.P.(C) No.32402 of 2022 Page 13 of 130 5.1. At the outset, the learned counsel for the petitioner Sri Debendra Mohanta, though was given option to pursue his remedy before the Central Government Industrial Tribunal, Bhubaneswar in ID Case No.34 of 2022 registered on submission of the report by the Regional Labour Commissioner (Central), Bhubaneswar on the failure of conciliation to the Ministry of Labour and Employment under Section 10A of the ID Act, he insisted for a decision of this Court in the present writ petition, being conscious of the fact that observations made herein would bind the parties. 5.2. Heard Sri Debendra Mohanta, learned Advocate for the petitioner and Sri Manoj Kumar Mishra, learned Senior Advocate assisted by Sri Tanmay Mishra, learned Advocate for the opposite party Nos.4 and 5. Rival contentions and submissions: 6. Sri Debendra Mohanta, learned Advocate vehemently opposing the introduction of system of Corporate Business Correspondent in place of BCA would submit that the RFP would be pitted against the Guidelines envisioned in Master Circular dated 01.07.2014 issued by the Reserve Bank of India which sought to engage Business Facilitator/Business Correspondent. He essentially submitted that introduction of new set of W.P.(C) No.32402 of 2022 Page 14 of 130 Corporate Business Correspondent would frustrate the very objective of the Guidelines/Policy by virtue of which BC was engaged. The BC model being integral part of banking activities ensuring greater financial inclusion, to do away with such a pious policy would be detrimental to the very existence of the banking business of OGB. 6.1. Contending that implementation of Corporate Business Correspondent model by RFP during the pendency of Industrial Dispute Case No.34 of 2022 before the Central Government Industrial Tribunal in absence of necessary permission to change the condition of service would tantamount to flagrant violation of mandatory requirement contemplated under sub-section (2) of Section 33 of the ID Act. Therefore, valiant attempt has been made to urge that the introduction of RFP is required to be nipped in the bud. 6.2. Placing reliance on Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd Vrs. Ram Gopal Sharma, AIR 2002 SC 643 = (2002) 1 SCR 284 it has been emphatically suggested that compliance of requirement under Section 33(2) is mandatory, failing which the contemplated action suggested to be taken by the OGB is irrational decision, tainted and illegal inasmuch as such a W.P.(C) No.32402 of 2022 Page 15 of 130 provision protects employee against possible victimisation, unfair labour practice or harassment because of pendency of industrial dispute. Such a safeguard enshrined under Section 33(2) of the ID Act may save the petitioner from hardship of unemployment. 6.3. It has further been sought to be argued by Sri Debendra Mohanta, learned Advocate that the services of the BC being stated to be placed under the control of the successful bidder, but not the OGB, the same would tantamount to change of condition of service. Such a change is not in conformity with requirement of Section 9A of the ID Act. 7. Sri Manoj Kumar Mishra, learned Senior Advocate along with Sri Tanmay Mishra, learned Advocate strenuously argued that since there existed no employer-employee relationship between the OGB and the BC, of course, which is subject-matter of adjudication before the Central Government Industrial Tribunal for the purpose of considering regularisation in service, there is no requirement of adherence to Section 33(2) of the ID Act. To amplify such a contention, Sri Manoj Kumar Mishra, learned Senior Counsel would submit that the engagement of BC is contractual. In the Master Circular on Banking W.P.(C) No.32402 of 2022 Page 16 of 130 Services bearing No.PMT-22/20-21, dated 03.09.2020 issued by the OGB vide Clause E thereof it is clearly stipulated that “while engaging BCs, it is mandatory to issue them an engagement letter, enter into an agreement with them and obtain an indemnity from him/her. It is also required to renew their service period at the starting of the financial year, i.e., in the month of April for a further period of one year subject to satisfactory past performance. The agreement and indemnity are required to be done as per the IBA model BC agreement which has been duly approved by our Board of Directors.” Clause J ibid. further clarifies that “the services of BCs shall be discontinued by either of the parties by giving one-month notice to the counterparty.” It is submitted that the Agreement between the OGB and the BC has not been renewed. Therefore, the petitioner-Association has no locus standi to espouse the cause of the individual BCs whose period of Agreement has been lapsed. 7.1. It is put forth by learned Senior Counsel that Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd Vrs. Ram Gopal Sharma, AIR 2002 SC 643 = (2002) 1 SCR 284 was rendered in the context where there was no dispute about the petitioner being workman-employee. The Hon’ble Supreme Court of India laid down the ruling that permission of the Industrial Tribunal was W.P.(C) No.32402 of 2022 Page 17 of 130 necessary concomitant for the purpose of changing the conditions of service during pendency of dispute case. In the present case, the factual scenario is completely distinct and different. Referring to paragraph 6 of Agreement dated 05.06.2020 (Annexure-2) entered into between OBG and Pravakar Barik, BC/FC, Sri Manoj Kumar Mishra, learned Senior Advocate urged that the petitioner has misdirected itself by relying on the ratio of said decision in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd Vrs. Ram Gopal Sharma, AIR 2002 SC 643 = (2002) 1 SCR 284. Strongly opposing the contention of Sri Debendra Mohanta, learned Advocate, the learned Senior Counsel appearing for the opposite party Nos.4 and 5 stated that the clauses of Agreement read as a whole unequivocally would lead to suggest that the BC is given option to engage employee/workmen and it is paid commission, but not salary or wage and therefore, BC can at no stretch of imagination is construed to be workmen/employee of the OGB. 7.2. While contesting the matter, objection is raised against
Decision
entertainment of the writ petition filed at the behest of the petitioner-Odisha Gramya Bank Business Correspondents Association. It is urged that in absence of any document being furnished to show individual BC has authorised the Association to W.P.(C) No.32402 of 2022 Page 18 of 130 espouse his/her cause before this Court, particularly so when change of service condition has been alleged, in view of ratio of decision in Swakshtagrahi Sanch, Janpad Panchayat Niwas Vrs. Union of India and others, Writ Appeal No.91 of 2002, vide Judgment dated 15.03.2022 of the High Court of Madhya Pradesh at Jabalpur, the writ petition is liable to be dismissed in limine. 7.3. It is forcefully submitted by Sri Tanmay Mishra, learned Advocate while assisting Sri Manoj Kumar Mishra, learned Senior Advocate that the contention of Sri Debendra Mohanta, learned Advocate for the petitioner is far to be accepted as the engagement of BC is based on agreement for a period of one year subject to extension. Due to RFP, the agreement has not been extended. In essence, the RFP is a policy decision to engage Corporate Business Correspondents in order to utilise tools of advanced technology to meet the exigencies of banking business. Taking cue from Clause 6 of the Agreement at Annexure-2 it is indicated that the employees of BC/FC or its agents will be under the total control, both administrative and supervisory, of the BC/BF. He would submit that whether BC can be recognized as workman/employee of the OGB is subject matter of industrial dispute stated to be pending adjudication W.P.(C) No.32402 of 2022 Page 19 of 130 before the Central Government Industrial Tribunal. Any observation in this regard at this stage would be preposterous. 7.4. Explaining further Sri Tanmay Mishra, learned Advocate submitted that bids are invited from vendors to provide Financial Inclusion Servers and Gateway so as to facilitate end-to-end solution. It is argued that the policy decision has been taken by the OGB for technology based service by introducing ATM devices, Financial Inclusion Servers and Financial Inclusion Gateway. It is submitted that though Sri Debendra Mohanta, learned Advocate for the petitioner has been attempting to impress upon that the alleged change in service condition is not policy, but in the rejoinder affidavit at paragraph 3 he has accepted such change has been effected as a consequence of policy decision of the OGB. 7.5. Sri Manoj Kumar Mishra, learned Senior Advocate along with Sri Tanmay Mishra, learned Advocate repelling the contention of learned counsel for the petitioner, Sri Debenera Mohanta, Advocate that having changed the conditions of service without adhering to the manner specified under Section 9A of the ID Act, and thereby the OGB has contravened provisions of Section 33(2)(b) thereof, drew attention of W.P.(C) No.32402 of 2022 Page 20 of 130 this Court to the provisions envisaged in Section 33A of the ID Act and contended that had the BCs been sanguine about their rights and prejudices, recourse to said provisions would have to be taken. Nevertheless, the approach of the petitioner to this Court by way of writ petition is not only premature but would frustrate the proceeding before the Central Government Industrial Tribunal. Consideration of rival contentions: 8. The first issue sought to be addressed to by this Court as emanated from the arguments would be whether this writ petition filed by the Odisha Gramya Bank Business Correspondents Association is maintainable. 8.1. It is alleged by the petitioner that the BC being placed under control of Corporate-successful bidder, but not the OGB, condition of service gets changed without following the mandate envisaged under Section 9A read with Section 33(2) of the ID Act. Sri Debendra Mohanta, learned Advocate championing the cause of the BCs claiming to be members of the Odisha Gramya Bank Business Correspondents Association submitted that the members having authorised, the Association could very well espouse the case of its members. W.P.(C) No.32402 of 2022 Page 21 of 130 8.2. Per contra, Sri Manoj Kumar Mishra, learned Senior Advocate raised serious objection and submitted that factual disputes with respect to individual service condition and status of Agreement would depend on the issue whether the writ petitioner at the behest of Association can be maintainable. 8.3. Perusal of the record reveals the following facts: i. In the cause title of the writ petition, the petitioner has described itself as: “Odisha Gramya Bank Business Correspondents Association (OGBBCA), represented through the General Secretary, Sri Pravakar Barik, Son of Prafulla Barik of Bhaskarganj (A), Sailesh Lane, P.O./P.S./ District: Balasore”. ii. The affidavit portion of the writ petition would depict as follows: “I, Pravakar Barik, aged about 37 years, Son of Prafulla Barik of Bhaskarganj (A) Sailesh Lane, PO/PS/District: Balasore, do hereby solemnly affirm and state as follows: 1. 2. I am That, Petitioner. the General Secretary of That, the fact stated above are true to the best of my knowledge and those borne out of records.” W.P.(C) No.32402 of 2022 Page 22 of 130 iii. No pleading is available to demonstrate that the members have authorised the General Secretary of the Odisha Gramya Bank Business Correspondents Association to file the case of present nature; nor is there any resolution furnished showing such fact. iv. Nothing is stated by the petitioner-Odisha Gramya Bank Business Correspondents Association to depict that there was any resolution of the Association to question the decision of the OGB, viz., RFP. v. Cursory glance at the copy of Agreement dated 05.06.2020 enclosed as Annexure-2 depicts Sri Pravakar Barik in his individual capacity entered into Agreement with OGB. vi. No list of members is available in the writ petition nor was it produced before this Court during the course of hearing. The writ petition is also not clear whether all the BCs, alleged to be members, have authorised Sri Pravakar Barik to pursue remedy before this Court by way of filing writ petition notwithstanding the subject-matter has been pending adjudication before the Central Government Industrial Tribunal. W.P.(C) No.32402 of 2022 Page 23 of 130 vii. In the Vakalatnama executed in favour of Sri Debendra Mohanta, learned Advocate the General Secretary of OGBBCA has put his signature and seal, but the record does not reveal whether the General Secretary was competent to execute the Vakalatnama and he was authorised by the Association with respect to filing of the present case. viii. There is no declaration nor does any document evince that in case an order is passed against the petitioner, all the members of the Odisha Gramya Bank Business Correspondents Association would be bound by such decision. 8.4. Therefore, this Court finds force in the argument of the learned Senior Advocate Sri Manoj Kumar Mishra, presenting the matter on behalf of the OGB that the Odisha Gramya Bank Business Correspondents Association cannot pursue the matter on behalf of the BCs engaged by the OGB by executing Agreement individually. 8.5. To buttress the objection raised by Sri Manoj Kumar Mishra, learned Senior Advocate, it may require to have reference to Tamil Nadu Survey Officers Union (Central) Vrs. The Government of Tamil Nadu, W.P. No.10465 of 2020 and W.M.P. Nos.16548 of 2020, W.P.(C) No.32402 of 2022 Page 24 of 130 16414 of 2020 and 12723 of 2020, disposed of by Order dated 28.04.2022, wherein the Madras High Court has been pleased to make the following observation: “8. The primordial contention of Department the petitioner Association is that without appreciating the limited scope of powers of the Village Administrative Officer, the Government of Tamil Nadu amended the Tamil Nadu Survey and Boundaries Act under Section 13 including the Village Administrative Officer as a part of G.O.Ms.No.173, Revenue and dated Disaster Management 26.03.2020 under Section 13(h) of the amendment to Chain Survey and Land Records Manual and such exercise of power to modify including the Village Administrative Officer is wholly without authority and the Act does not permit involving of the Village Administrative Officers in the process of surveying. According to the respondents, the writ petition itself is not maintainable, as it relates to service matter and the petitioner Association has no locus standi to challenge the impugned Government Order and further added that the petitioner’s service conditions or their right for seniority / promotion will not be affected vide the impugned Government Order and it is also not correct to say that VAOs are not technically qualified to do survey of lands. It is argued by the learned Advocate General that the minimum general educational qualifications for both VAO and Firka Surveyor is a pass in SSLC and therefore, there is no question of technical W.P.(C) No.32402 of 2022 Page 25 of 130 qualification during recruitment and subsequent to appointment, field Surveyors are provided with Survey Training for 60 days and VAOs are provided with Survey Training for 30 days. *** 12. A careful reading of all the above Judgments, it clear that an Association either makes registered or unregistered, can file a writ petition under Article 226 of the Constitution of India on behalf of its members taking the cause of its members only if, (a) themselves are unable to the members approach the Court by reason of poverty, disability or socially or economically in a disadvantaged position, who are termed as „Little Indians‟; and (b) in case of public injury leading to public interest litigation provided the Association has some concern deeper than that of a way- farer or a busy body. 13. In the judgment dated 28.03.2018 in W.A.No.1792 of 2017 [The Secretary to Government, Chennai-9 and Others Vrs. The Tamil Nadu Higher Secondary Vocational Teachers Association], the Hon‟ble Division Bench has observed that „There is no question of entertaining the writ petition at the instance of the Association in a Service Matter and directing the Government to grant the benefits to the the Association. Nothing members of W.P.(C) No.32402 of 2022 Page 26 of 130 prevented the employees who worked as Vocational Instructors to approach the Court for appropriate relief. Since it is a service matter, the concerned employee has to approach the Court. There is no locus standi for the Association to approach the Court for the purpose of giving service benefits to its members. ***‟ poor, be to approach 14. Admittedly, in the case on hand, the present writ petition has been filed on behalf of its members and the members of the petitioner’s Association are employees of the Survey & Settlement Department and they cannot be presumed or to disadvantaged this Court individually. In the light of the aforesaid decision of the learned Single Judge of this Court in Bharathidasan University Backward Class and Most Backward Class Employees Association Vrs. The State of Tamil Nadu, [MANU/TN/0647/2015], and the Division Bench judgment cited supra, the writ petition which pertains to service matter, is not maintainable.” disabled 8.6. In Swakshtagrahi Sangh, Janpad Panchayat Niwas Vrs. Union of India, 2022 SCC OnLine MP 5420 the Madhya Pradesh High Court at Jabalpur observed thus: “7. The Division Bench of this Court in the matter of Prabhat Vrs. Barkatulla University, ILR 2011 MP 1692 has held that a writ petition for enforcement of the rights of its members, as distinguished from W.P.(C) No.32402 of 2022 Page 27 of 130 the rights of the Association as a body, can be filed by the Association acting through its office bearers or members, whether the Association is registered or unregistered, incorporated or not, only when the Association can satisfy the Court that if an adverse decision is given in that petition, all the members of that Association or “Body of Individuals” will be bound by the decision. It has also been held that if the same principle is not followed, immediately after adverse decision, any other members of the said Association may come before the Court in an independent writ petition saying that he has not been heard and he had not authorized such Association or office bearer or member to represent him in the litigation. it is necessary 8. Therefore, to bind the members by the decision in a litigation brought before the Court on behalf of such members by any that such Association, Association must clearly resolve that who authorized the Association to file such litigation. The resolution should also mention that the members will abide any decision rendered in such litigation. In the present case, a perusal of the resolution clearly shows that the same does not fulfil the stipulated requirement. Hence, learned Single Judge has not committed any error while rejecting the writ petition.” the 8.7. Further reference can be had in this regard to Shahpura Janjagran & Vikas Samiti Vrs. State of Madhya Pradesh, Writ Petition No.15973 of 2008, vide W.P.(C) No.32402 of 2022 Page 28 of 130 Judgment dated 05.08.2024 of the Madhya Pradesh High Court at Jabalpur [NEUTRAL CITATION NO. 2024:MPHC-JBP:39035] referring to earlier decisions in Prabhat (supra) and Swakshtagrahi Sangh (supra), observed as follows: “16. There is nothing on record to suggest that the petitioner/society represents all the residents of Shahpura C-Sector Residency. There is also nothing on record to suggest that all the members of the society had authorized the petitioner to file the petition. There is no declaration that in case if an order is passed against the petitioner, then all the members of the society will be bound by it. 17. Since the authorization letter is not in conformity with the requirement of law, as laid down by Division Bench of this Court in the cases of Prabhat (supra) and Swakshtagrahi Sangh Janpad Panchayat Niwas (supra), accordingly, the petition is also bad on that ground.” 8.8. Significant it is to notice the observation to the question— “Whether an association of persons, registered or unregistered can maintain a petition under Article 226 of the Constitution of India for the enforcement of the rights of its members as distinguished from the enforcement of its own rights?”— that was referred to Full Bench in Umesh Chand Vinod Kumar Vrs. Krishi Utpadan Mandi Samiti, W.P.(C) No.32402 of 2022 Page 29 of 130 Bharthana, 1983 SCC OnLine All 638 = AIR 1984 All 46: “It appears to us that according to this decision a joint writ petition would be validly maintainable if there is legally subsisting jural relationship of association of persons between them or if they have the same cause of action. In substance, this decision applies the same principle of procedure as was enunciated by the Full Bench of our Court in Mall Singh‟s case (1968 All LJ 210), namely, generally joinder of more than one person can be permitted in a proceeding under Article 226 where the right to relief arises out of the same act or jointly transaction or where interested in the cause of action and a common question of law or fact arises. In other words, joinder of more than one person is permissible when the cause of action is the same. Such joinder may not be permissible if the cause of action is similar. the petitioners are *** 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 (“little Indians”). position W.P.(C) No.32402 of 2022 Page 30 of 130 (2) In case of a public injury leading to public interest litigation; provided the association has some concern deeper than that of a wayfarer or a busybody, i.e., it has a special interest in the subjectmatter. (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. In other cases an Association, whether registered or unregistered, cannot maintain the a petition under Article 226 enforcement or protection of the rights of its members, as distinguished the enforcement of its own rights.” from for 8.9. Sri Debendra Mohanta, learned Advocate for the petitioner has laid stress on the following observation contained in All India Loco Running Staff Association Northern Railway Vrs. Union of India, 1984 SCC OnLine Raj 172 to contend that the Association has the locus standi to espouse the case of individual members of the Association: