JUDGMENT Khandeparkar R.M.S., J.
1. Heard Advocates for the parties. The petitioner-Trade Union seeks declaration that the waiting list prepared in anticipation of 100 vacancies is inoperative consequent to filling up of 100 vacancies and that, therefore, the recruitment of the respondents No. 3 to 69 in the vacancies arising after filling up of the said 100 posts, is null and void.
2. The facts relevant for the decision in the matter are that an advertisement came to be issued on 11-3-2000 by the respondent No. 1 inviting applications from eligible candidates for the posts of Gang Workers. In terms of the notice inviting the applications, there were 100 vacancies for Gang Workers, one being reserved for SC, 5 for ST and the remaining 89 being unreserved. About 107 members of the petitioner applied for the said posts, 60 applicants therefrom were selected and recruited. About 31 more were called for interview, but could not be selected on account of failure to procure their birth certificates and caste certificates. Remaining 16 applicants were found to be ineligible. In the course of selection process of candidates for recruitment to the said 100 vacancies, a list of 464 candidates was finalised by the selection Committee in the order of merit. From the said select list, the respondents No. 3 to 12 and No. 35 were appointed against eleven out of 100 advertised vacancies and remaining were recruited in various vacancies which arose in addition to the said 100 vacancies. Making grievance about the recruitment without advertisement in the vacancies which had arisen in addition to the 100 vacancies, Misc. Civil Application No. 274/01 came to be filed in Writ Petition No. 261/1991 which was already pending in the Court. However, the said application was subsequently withdrawn on 4-7-2001 and thereafter, on 6-7-2001, the present petition came to be filed.
3. The earlier Writ Petition being No. 261/1999 was filed by the petitioner to claim regularisation and permanency to its members as the Mini Pool Workers of the respondent No. 1 on the ground that they were employed by respondent No. 1 through Mormugao Handling Agents Association. The said petition has already been disposed of by judgment and Order dated 20-9-2004 while leaving it open to seek adjudication of their claim for declaration that Mini Pool Workers were the workers of respondent No. 1 and in that regard the Central Government was directed to forward the copy of the petition to the concerned Labour Commissioner (Central Government) to treat the same as representation for the demands of the petitioner Union and consider the same for adjudication under the provisions of the Industrial Disputes Act, 1947.
4. It is the case of the respondents that though the advertisement was issued in relation to only 100 vacancies, about 171 Gang Workers were expected to be promoted to higher posts of Winch cum Crane Operators and it was anticipated that there would be about 269 vacancies, out of which 100 vacancies were required to be filled up by way of compassionate appointments. Further, number of other vacancies were to arise on account of the fact that the age of superannuation was rolled back to 58 years from 60 years with effect from 31-5-2001. Considering all those aspects, a list of 464 candidates was finalised by the selection Committee and out of the said list, 100 selected candidates were sent for medical test, out of which 72 were found medically fit for appointment. Thereafter, 50 more candidates from the said list were also called for medical examination. It was, in those circumstances that the waiting list was prepared and therefrom the candidates were appointed to the vacancies which had caused and anticipated and, hence there was no illegality in the process of filling up of the vacancies.
5. At the hearing of the matter, the learned Senior Counsel appearing for the respondent No. 1 sought to raise a preliminary objection as regards maintainability of the petition on the ground that the pleadings in the petition at the most could disclose individual grievance of certain persons who had earlier applied for the posts advertised or those who could not apply. The grievance made being of individual nature of those persons, and even though they happen to be the members of the petitioner-Union, the petition cannot be filed by the Union for such grievance. Besides the fact that the claim of the members of the petitioner Union to be the employees of the respondent No. 1 is still pending for adjudication before the Competent Authority pursuant to the order passed by this Court in Writ Petition No. 261/1999 dated 20-9-04. Considering the same, according to the learned Senior Counsel, the petition partakes the colour of a public interest litigation and that too in a service matter. The petition does not disclose any cause in favour of the petitioner to raise the issue which is sought to be raised in the petition. According to the learned Senior Counsel, therefore, no such petition is maintainable nor the petitioner would be entitled for relief sought for.
6. The learned Counsel appearing for the petitioner has submitted that though the respondents have Tiled affidavit in reply, they have not raised any point relating to non-maintainability of the petition on the said ground and, therefore, the respondents are not entitled to raise any such objection at the eleventh hour. The pleadings in the petition disclose the grievance of the members of the union whose applications for filling up the vacancies were rejected, as also of those members who could not apply in answer to the notice published by the respondent No. 1 as they had no knowledge of the said notice and thereby they were denied an opportunity to avail the employment in the respondent No. 1 and, therefore, the petitioner has locus standi to file the present petition and further that the grievance made in the petition relates to failure on the part of a public body to perform its public duty. In these facts and circumstances of the case, this is not a public interest litigation, but it is very much in relation to the grievance of the member of the petitioner-union.
7. It is the contention of the petitioner that the waiting list prepared in respect of advertised vacancies for 100 Gangworkers, cannot be used as a perennial source of recruitment for filling up vacancies which were not advertised. It is their further case that the respondents No. 3 to 69 have been appointed out of such waiting list to fill up the vacancies which arose subsequent to filling up of 100 advertised vacancies. Such a procedure is illegal and, therefore, the members of the petitioner-Union are aggrieved, inasmuch as that nearly 101 members thereof were not able to apply for those 100 vacancies as at the relevant time many of them had gone to their native places and had no knowledge about the advertisement and others could not apply as they did not possess required certificates in respect of proof of their age and caste at the relevant time. If the vacancies which arose subsequent to the filling up of 100 vacancies were also advertised, those members could have applied for the same. In short, the main grievance of the petitioner-Union is not against filling up of vacancies in addition to 100 advertised vacancies by utilizing the waitlist as the source of recruitment for such vacancies, but it essentially because of the fact that on account of adoption of such a procedure, nearly 100 members of the petitioner-Union could not avail an opportunity to apply for those vacancies in the circumstances mentioned above.
8. It is the case of the petitioner that its members were firstly deprived of their legitimate claim of being employees of the respondent No. 1 for which the Writ Petition No. 261 / 99 had been filed and it was pending before this Court when the present petition was filed. Secondly, they are also sought to be deprived from being considered as Gangworkers in the event they could otherwise satisfy eligibility criteria laid down by the respondent No. 1. The gravamen of the petitioner's complaint is revealed from the specific plea raised in para 22 of the petition which read thus:
22. The petitioner states that they are sought to be deprived of their legitimate claim in the Writ Petition No. 261/99 that is presently pending before this Honourable Court and is likely to come up for disposal. The petitioner are also sought to be deprived from being considered as gang workers in the event they otherwise satisfy eligibility criteria that may be laid down by the respondents.
9. Obviously, though the grievance is sought to be made to appear against the filling up of the vacancies by the respondent No. 1 by following a procedure in contravention of the law laid down in relation to preparation and utilizing the waiting list for filling up the vacancies of the candidates, the grievance, in reality, is sought to be made in the facts and circumstances wherein it is the case of the petitioner that 31 members- applicants were disqualified as a result of failure on their part to produce certified copies of the birth and caste certificates and 101 members did not get opportunity to apply to the said posts either on account of their absence in the State of Goa at the time when the advertisement was issued or because they did not possess relevant certificates before the expiry of the time to apply in terms of the advertisement. It is not in dispute that the members were disqualified on account of failure on their part to furnish required certificates and other could not apply to the posts either on account of their absence in Goa when the advertisement was issue or on account of inability on their part to establish their eligibility . Undisputedly, whatever claim which the petitioner might have in favour of those members is in the nature of individual claim of each of those members of the petitioner and in no other capacity. In other words, the issue which is sought to be raised in the petition relates to the alleged individual right of those members either who had applied for and were found non-eligible or who could not apply on account of their own inability either because they were not in Goa at the relevant time or being non-eligible and not on account of any failure on the part of the respondent No. 1 in performance of its public duty.
10. It is also pertinent to note that the issue as to whether there is any employer-employee relationship between the members of the petitioner and the respondent No. 1 is yet to be adjudicated upon by the Competent Authority and this is apparent from the decision of this Court in Writ Petition No. 261/1999 delivered on 20-9-04.
11. It cannot be disputed that the issue of non-maintainability of the petition should be specifically raised in the reply to be filed by the respondent and the petitioner cannot be put to surprise by raising such point at the eleventh hour. But at the same time, it is equally the duty of the Court, while exercising powers under Article 226 of the Constitution of India, not to ignore the provisions of law, may be statutory or well established principles of law propounded by judicial pronouncements. If the objection sought to be raised goes to the root of the matter, certainly it cannot be ignored merely because it was not specifically raised in the affidavit in reply. If the petition itself does not disclose that the petitioner approaching the Court to have been aggrieved, but who can be said to have been aggrieved are its members individually, merely because rule has been issued or that the respondent had failed to raise the necessary objection in that regard in their affidavit in reply, that cannot be a justification to be extra generous to the petitioner nor it can entitle the petitioner to insist for adjudication of the matter on merits of the case ignoring the issue of maintainability of the petition itself.
12. The petition nowhere disclose infringement of any of the rights of the petitioner-Union or its members as a class, but it merely makes a grievance about some irregularities alleged to have been committed by the respondents in relation to the utilization of wait list which was prepared pursuant to the advertisement issued for filling up of the 100 vacancies, but actually having filled up the vacancies in excess of 100 advertised vacancies by utilizing the names of the candidates from the said wait list. In that regard, reliance was also sought to be placed in the decision of the Apex Court in the matters of (Prem Singh and Ors. v. Haryana State Electricity Board and Ors.) reported in 1996(2) L.L.N. 27, and (Surinder Singh and Ors. v. State of Punjab and Anr.) 1997(77) F.L.R. 453. Undoubtedly, the law on the point of utilization of the wait-list is well settled by the said decisions wherein it has been clearly held that the selection process by way of requisition and by advertisement can be started for clear vacancies and also for anticipated vacancies, but not for future vacancies and if the requisition and advertisement are for certain number of posts only, the State cannot make more appointments than the number of posts advertised even though it might have prepared a select list of more candidates. But, at the same time it was also ruled that the State can deviate from the advertisement and make appointments on the posts falling vacant thereafter in exceptional circumstances or in an emergent situation by taking a policy decision in that behalf. Being so, though in normal circumstances selection process by way or requisition and advertisement can be started for clear vacancies as well as for anticipated vacancies, but not for future vacancies and the State cannot make appointments other than the number of posts advertised even though it might have prepared select list for more candidates, at the same time in an emergent situation based on the policy decision the State/ Corporate bodies can make such appointments. It would, therefore, depend on fact of each case. However, to consider the factual matrix in that regard, a person approaching the Court must be an aggrieved person. As rightly submitted by the learned Senior Counsel for the respondent, in service matters, question of petition either in the form of public interest or by the Association without disclosing how the right of the Association as such are affected or how the Association is aggrieved, is not maintainable. Once it is held that in the facts and circumstances of the case in hand, the petitioner has not been able to disclose as to how the petitioner can be said to be aggrieved or even how the members of the petitioner as a class are aggrieved by any of the acts of the respondent No. 1 in relation to filling up of the vacancies, the question of going into the merits of the case in the matter in hand does not arise.
13. In (Government Press Employees' Association Banglore v. Government of Mysore) , the Government employees' association had sought to challenge promotion granted to certain Government employees while seeking direction to consider the claim of its members to those promotional posts. While dealing with the issue whether such a petition is maintainable or not, it was held by the Division Bench of Mysore High Court that it was not a matter wherein Court was dealing with any industrial dispute properly raised or properly referred for adjudication to a competent tribunal in accordance with the relevant provisions of law, in or to which the Government Press Employees Association could be said to be a party and that:
... the grievances which are the subject-matter of the proposed writ petition are clearly those of certain individual and not of the association as a corporate body, even though the aggrieved persons might be its members in whom the association might be vitally interested.
While rejecting the alternative contention that the association was duly authorised by the resolution of its Executive Committee and, therefore, the petition could be considered as having filed on behalf of several aggrieved members thereof, it was held that:
Even if the petition is to be regarded as one made by the several aggrieved individuals and the cause title is amended by substituting or adding their names as petitioners, the petition cannot be entertained because the grievances are, for the reasons already stated, separate grievances of several individuals and cannot be regarded as in the nature of a class injury so as to permit the joinder as petitioners of several member of that class.
14. The above decision was reiterated by Karnataka High Court in The (Workmen, Mysore State Electricity Board, Bangalore v. The State of Mysore and Ors.) reported in 1971 Lab.I.C. 1582 while holding that an application for issue of a writ must be by an aggrieved person and an association, although registered, had no locus standi to make an application under Article 226 of the Constitution for the personal and individual grievance of some of the members and not of the Association itself.
15. Again, in (Haiti Goldmines Officers' Association v. Hatti Gold mines Company Ltd.) reported in 2001 Lab.I.C. 3787, the learned Single Judge of Karnataka High Court while dealing with the similar issue held that a petitioner Trade Union cannot maintain petition on behalf of its members on the premise that their fundamental rights or other legal rights have been infringed by an action on the part of their employer-company, though such grievance can be sought to be redressed by means of negotiations or as an industrial dispute as provided under relevant statutory provisions but not by way of representative writ petition by the trade union. It was ruled that it is always open to the affected individual employees to maintain a writ petition by themselves if they complain of violation of any of their fundamental or any other legal rights which can be examined in the exercise of writ jurisdiction by the High Court.
16. In (T.N Civil Supplies Corporation Workers Union v. T.N. Civil Supplies Corporation Ltd.) , the T.N. Civil Supplies Corporation Ltd., had terminated the services of number of workmen. The Union filed a writ petition seeking relief of injunction against termination of services of the workers. The learned Single Judge of High Court dismissed the same holding that the Union was not entitled to seek the relief asked for and the employees whose services were terminated could take such action as was available to them in accordance with law. The Union carried the matter in appeal before the Division Bench of the High Court, which dismissed the same and agreed with the conclusions arrived at by the learned Single Judge that since the services of the employees had been terminated, it was for the employees to seek their remedy in the manner known to law. While upholding the said decision, the Apex Court ruled that "We find no infirmity with the reasoning of the Division Bench and see no reason to interfere."
17. The decision of the Apex Court apparently discloses that when an individual or individuals even though he/they is/are a member/members of the Union, is/are aggrieved by any decision in relation to his/ their clam for any right or in relation to claim to any post advertised by any corporate body or for having filled up the posts by the corporate body without advertisement thereof, then such a grievance is to be made by the said individual/individuals in his/her individual capacity. Any grievance in relation to his/ their individual right/s and particularly of the nature which is being sought to be raised in the matter in hand cannot be agitated by the trade union, since such a grievance does not form grievance of the Union or of the class of members as such, but it is essentially an individual grievance of its members.
18. We want to make it clear that it should not be understood that we have by this order approved the recruitment process of filling up of he vacancies without advertisement or by utilizing the waitlist in the manner it was utilizing by the respondent No. 1. In fact, we have not dealt with the said issue in this petition and have not expressed any opinion on that regard. The petition has been dealt with solely on the point of its maintainability at the instance of the petitioner Union in relation to grievance sought to be made in the petition in the facts and circumstances of the case as revealed from the petition.
19. In the result, therefore, the petition fails for the reasons stated above and is, hereby, dismissed. Rule is discharged with no order as to costs.