Handicapped Faculties Welfare ... vs Union Of India & Ors
2022 Latest Caselaw 1580 Cal

    19
29.03.2022
   adeb



                                   WPA 21969 of 2017


                        National Institute for the Orthopaedically
                     Handicapped Faculties Welfare Association (NFWA)
                                       Vs.
                               Union of India & Ors.

                Mr. Shuvro Prakash Lahiri
                Ms. Fauzia Ahmed

                                                                ..for the petitioner

               Mr. M.M. Verma
                                                      ...for the Union of India


                         In this writ petition National Institute for the

             Orthopaedically Handicapped Faculties Welfare Association

             (for     short     "NFWA")       has    approached     this      Court   for

             implementation of academic grade pay as per 6th Central Pay

             Commission recommendation in favour of members of

             teaching         faculty    of   said   National     Institute     for   the

             Orthopaedically            Handicapped    at   present     renamed       as

             National Institute for Locomotor Disabilities (hereinafter

             referred to as the "said Institute").

                    Mr. S.P. Lahiri, learned advocate appears on behalf of the

             petitioner association and has argued the case upon drawing

             attention of this Court to the relevant facts, inter alia,

             praying for a direction to implement academic grade pay in

             terms of 6th Central Pay Commission recommendation which

             would consolidate pay of the members of teaching faculty.

                    Respondent authorities are represented by the learned

advocate and they have filed their affidavit-in-opposition to

this writ petition.

This Court while considering the submissions of the

respective parties has raised a question having seen the

relevant part of writ petition that how the Association of

teaching faculty of the said Institute by itself can maintain

the writ petition wherein prayer has been made for

implementation of the recommendation of 6th Central Pay

Commission for releasing academic grade pay in favour of

the individual members of such Association.

In order to answer such query of this Court, Mr. Lahiri

has made submission and the first part of submission is that

the petitioner Association is a registered Association under

the Society Registration Act and has been constituted for the

welfare of members of the Association in all respects

including the matters relating to sanction of service benefits

in favour of such members of the Association. In addition

thereto, it has also been submitted that the Vice President

who is representing the Association in the writ petition, is

duly authorized by such Association to approach this Court

with the present writ petition. Therefore, there is no

impediment, according to the petitioner, in filing the present

writ petition by such Association being the sole writ

petitioner through its Vice President.

In support of such submission made on behalf of the

petitioner, reliance has been placed on the following

Judgments:-

i) AIR 1983 Cal 448 ( West Bengal Head Masters'

Association and Ors. Vs. Union of India ( UOI)

and Ors.)

ii) (1993) ILR 2 Cal 429 (Health Service

Association Vs. State of West Bengal)

iii) 2012 (1) CHN 493 ( The High Court Employees'

Welfare Association & Ors. Vs. The State of

West Bengal & Ors.)

iv) (1995) 1 CLJ 351 ( The Association of Teachers

in Anglo Indian School Vs. The Association of

Aids of Anglo Indian School in India and Ors. )

v) (2009) 16 SCC 1 (Steel Authority of India Ltd.

Vs. SUTNI Sangam and Ors.)

vi) 2017 (2) CLJ (Cal) 492 ( CSTS Retires' and

Pensioners' Association and Anr. Vs. The State

of West Bengal and Ors.)

This Court on being relied upon such judgments on

behalf of the petitioner has considered the ratio decided

therein and has found in Association of Teachers in Anglo

Indian School (supra) reported in (1995) 1 CLJ page 351

paragraph 41, wherein it has been succinctly decided by

the Division Bench of this Court that it is not a case where

the general principle that the writ petitioner must be a

person would apply, inasmuch as, as is well known, such a

principle has been relaxed in recent cases in terms whereof,

inter alia, where public interest is affected by State action,

an organisation which is interested or a member thereof is

allowed to apply. Paragraph 41 of such judgment is

reproduced below:-

"41. The submission of Mr. Roy that the writ petitioner association being not citizen of India, is not entitled to maintain this writ application cannot be accepted. A writ application, as is well known, is maintainable at the instance of an association. It is not a case where the general principle that the writ petitioner must be a person, would apply, inasmuch as, as is well known, such a principle has been relaxed in recent cases in terms whereof, inter alia, where public interest is affected by State action, an organisation which is interested or a member thereof is allowed to apply. Reference in this connection may be made to the decisions reported in AIR 1981 SC 344, AIR 1981 SC 298, (25) AIR 1983 SC 130."

In the Judgment of the Apex Court reported in 2009

(16) SCC page 1, i.e., Steel Authority of India Limited

(supra), it has been specifically enunciated in paragraph 50

while deciding the issue whether the Association can

espouse the cause of the members while approaching the

Court, paragraph 50 of the said judgment is also

reproduced below:

"50. We will, however, proceed on the assumption that most of the awardees were poor and illiterate and they were not aware of their rights. It is one thing to say that an association, like the first respondent, takes up its cause but it would be another thing to say that only due to the said reason the mandatory provisions of the statues would not be necessary to be complied with."

On reading of paragraph 50 of Steel Authority of

India (supra) and considering the facts of the case involved

therein, it appears that it has been decided by the Apex

Court where the interest of poor and illiterate is involved

definitely the Association has got the locus to approach the

Court espousing the cause of its members and ultimately

decided that in such a situation the writ petition at the

instance of the Association is maintainable.

Subsequently, a Co-ordinate Bench of this Court

delivered judgment in CSTS Retires' and Pensioners'

Association ( supra ) reported in 2017 (2) CLJ (Cal) page

492 wherein in paragraph 21 it has been observed by the

Co-ordinate Bench upon placing reliance on Steel Authority

of India Limited (supra) that an association formed by a

group of persons in promoting and protecting a common

interest or legal right can maintain a writ application on

behalf of its members. In fact, the whole object of forming

an association in the vast majority of cases is for individual

members of the association with the common cause to get

united and operate as a group to promote such cause since

they may find it difficult to do so in their individual capacity

because of financial constraints or other reasons. On

perusal of the facts of this case which has been narrated in

paragraph 1 onwards of the said judgment it appears that

the petitioner association in that case was formed by ex-

employees of Calcutta State Transport Corporation who

retired between 1999 to 2008. At the material point of time

these retired employees got the benefit under the

Contributory Provident Fund Scheme, but much thereafter,

they prayed for sanction of benefits under the pension

scheme by switching over without depositing the employers

share of provident fund or gratuity after the ceiling unit but

by adjustment against the arrear pension. The Co-ordinate

Bench decided the issue ultimately against the petitioner

association and dismissed the writ petition, but, during the

process of adjudication decided that since the pensioners of

Calcutta State Transport Corporation who retired long back

by forming an association approached this Court; it was

found by the Co-ordinate Bench to be appropriate to permit

such association to maintain the writ petition and not to

thwart the claim of the petitioner association on technical

ground of maintainability of the writ petition at the

instance of such association since individual members

being the retired persons could not approach this Court

due to financial constraints or other reasons. Therefore, the

Co-ordinate Bench thought it fit upon placing reliance on

the judgment of the Apex Court in Steel Authority of India

Limited (supra) to permit such association to espouse the

cause of the individual retired members of such

association.

It is a well-settled principle that judgment is an

authority on what Court decides and not what can be

deducted therefrom. In the present case, there are seven (7)

faculty members of the petitioner association who are the

teaching staff of the said Institute and they were appointed

as teaching members in the said institute on different dates

and on different posts. Being the teaching staff of a reputed

Higher Educational Medical Institute they neither can be

termed as poor and illiterate persons nor pensioners who

retired long back. They are aware of their rights, which

have accrued in the form of academic grade pay in terms of

6th Central Pay Commission recommendation. The members

of this Association being the members of the teaching

faculty of the said institute are also going to retire on

different dates. Therefore, they have their individual set of

facts relating to their service rights which can be decided by

this Court if the writ petition would have been filed by them

individually or jointly and not through association. It is the

case where by no stretch of imagination, it can be perceived

that an element of public interest is involved.

Therefore, in view of the decision of the Hon'ble

Division Bench in the case of Association of Teachers' in

Anglo Indian School (supra) and the observation made

therein in paragraph 41, this Court comes to the

conclusion that in the present case, the petitioner

association cannot maintain the writ petition espousing the

cause of its members who are praying for academic grade

pay in terms of 6th Central Pay Commission

recommendation.

Accordingly, the writ petition stands dismissed.

However, there shall be no order as to costs.

However, this order shall not preclude the members

of petitioner Association to approach this Court with the

selfsame cause of action.

Urgent photostat certified copy of the order, if applied for,

be given to the parties on compliance of requisite formalities.

(Saugata Bhattacharyya, J.)