Association Of Supervisors vs Union Of India & Ors
2022 Latest Caselaw 7733 Cal

                    IN THE HIGH COURT AT CALCUTTA
                   CONSTITUTIONAL WRIT JURISDICTION
                             Appellate Side

Before:
The Hon'ble Justice Lapita Banerji

                             WPA No. 15361 of 2017

           Association of Supervisors, GRSE Ltd (WB) & Anr.
                                  Vs.
                         Union of India & Ors.

     For the Petitioner                    : Mr. Pratik Majumder, Adv.
                                             Mr. A. Mullick, Adv.

     For the Respondent                    : Mr. Ranjay De, Adv.

     Nos. 2 to 5                             Mr. Basabjit Banerjee, Adv.

     Hearing concluded on                  : 11.11.2022.

     Judgment on                           : 22.11.2022.

Lapita Banerji, J.:- The writ petitioners have challenged the recruitment

process vide Employment Notification No.OS:04/16 dated August 10, 2016

issued by the Garden Reach Ship Builders & Engineers Limited (for short,

"GRSE") for appointment to the grade/post of Junior Managers. The petitioner

No.1 is a registered Association of Supervisors working at GRSE, under the

West Bengal Societies Registration Act, 1951. The petitioner No.2 claims to be

a Joint Secretary of the petitioner No.1/ Association.

2. The petitioners claimed to be working in the posts of Junior Supervisors

(S3 & S4) and that the next promotional grade is that of Junior Managers. It

was also claimed in the writ petition that some of the members of the

Association/petitioner No.1 were entitled to be 'considered for promotion' and

their right to be fairly 'considered for promotion' was jeopardized/adversely

affected due to the issuance of Employment Notification No.OS:04/16

published on August 10, 2016.

3. The admitted facts in the writ petition are stated hereinunder Clause

(xix) of the Application Procedure in OS: 04/16 stipulated that the recruitment

to all the posts of Junior Managers would be through interview only and not by

way of written examination coupled with interview. The same was a deviation

from the previous Employment Notification No.OS1/16 dated February 11,

2016. As per the previous Notification, the candidates were required to appear

in written tests for being recruited to the post of Junior Managers.

4. By a Departmental Order dated September 14, 2015 vide No.

526/15/D(A) issued by the Ministry of Defence, Government of India, it was

notified that the Hon'ble Prime Minister announced that the Government would

discontinue holding interviews for recruitment to the junior level posts in

Government of India. It was stressed that the recruitment would be through

written examination only with effect from January 1, 2016. In case where

provisions for interview were prevalent for selection of the candidates, the said

procedure would be amended accordingly so that selection could be made only

on the basis of written test. The said procedure for recruitment would be

applicable to all the civilian posts as well as for recruitment of service

personnel. However, in the event there was a difficulty in implementation of

the aforesaid decision, a special dispensation was required to be made with

justification from DoP&T after approval of the Minister concerned for allowing

recruitment on the basis of interviews for Group 'C' or Group 'B' (Non-

Gazetted Posts).

5. Vide Office Memorandum dated December 14, 2015, issued by the

Director, Ministry of Heavy Industries and Public Enterprises, Government of

India, it was notified that the DoP&T has decided to dispense with the practice

of interview for Group 'C' and 'D' posts and Non-Gazetted Posts of Group 'B'

category. The recruitment process through interview was required to be

amended immediately. OS:04/16 was published in 2016 after the aforesaid

guidelines.

6. Mr. Majumder, Learned Counsel appearing on behalf of the petitioners,

argued that the fundamental right of the writ petitioners "to be considered for

promotion" was unfairly curtailed by introducing the recruitment of the Junior

Managers only by way of interview vide OS:04/16, whereas, the Supervisors,

who are already working in the 'S3' and 'S4' grades with GRSE, would only be

considered for 'promotion' to the post of Junior Managers through written

tests along with interview. Despite Clause 55-58 of the promotion rules

applicable to the Supervisors vide CMD Order No.06/15 dated September 10,

2015 of GRSE, 10% of the total strength of the Supervisors was not earmarked

for promotion to the Junior Manager grade. Therefore, the existing

Supervisors in S3 and S4 categories were deprived from consideration for

Promotion.

7. He further submitted that the Notification dated September 14, 2015

issued by the Ministry of Defence and the Notification dated December 14,

2015 issued by the Ministry of Heavy Industries and Public Enterprises clearly

stipulated that all recruitments were to be made by way of written test to all

civilian posts as well as for all posts of service personnel. Since the Non-

Gazetted Posts of Group 'B' and Group 'C' staff were also to be recruited by way

of written test upon amendment of the previous recruitment rules providing

for interview, the question of recruitment of managerial posts/Gazetted Posts

through "Interview only" was not conceivable. The very purpose of introducing

written test for Non-Gazetted Posts and Group 'C' staff also would be

frustrated if Junior Managers were recruited by way of interview only.

8. Representations were made on behalf of the petitioner No.1 by the Joint

Secretaries of the Association including the petitioner No.2 on March 24, 2017

and April 17, 2017 alleging total lack of transparency along with nepotism and

bias in the recruitment process based only on interview. Prayer was made for

staying and/or setting aside the recruitment process vide OS:4/16 since the

Government Notifications dated September 14, 2015 and December 14, 2015

were mis-interpreted by GRSE. The reply given by GRSE vide Memo Ref.

No.HR/P&RR/93/17 dated May 9, 2017 was completely in violation of the

aforesaid Notifications and suffered from complete non-application of mind.

9. Furthermore, he submitted that the clarification as sought to be given by

the Office Memo dated May 9, 2017 regarding reinstatement of interview for

recruitment/induction of Junior Managers was in the interest of Supervisors

as well as in order to fulfil the recruitment process of the company was an

interpretation that was completely untenable in view of the aforesaid

Government Circulars of September and December, 2015. At best, interview

could have been an additional consideration but under no stretch of

imagination could it have been the only selection process for recruitment of

Junior Managers.

10. Mr. De, Learned Counsel appearing on behalf of the respondent Nos.2 to

5 submits that the petitioners have no locus standi to maintain this writ

petition being Supervisors working at GRSE. The right of the petitioners to be

"considered for promotion" has not been curtailed in any manner and like in the

previous years the petitioners were entitled to be "considered for promotion"

vide OS:04/16 by way of a written test which was for 85 marks and interview

which was for 15 marks. At no point in time the petitioners were discriminated

against the other Supervisors while being "considered for promotion".

11. It is not disputed that by Employment Notification No.OS:1/16 the basis

of recruitment of Junior Managers was by written test, whereas, by OS:4/16

the basis of recruitment of Junior Managers was through interview. The

Employment Notification being OS:4/16 was issued in terms of the Circular

dated December 14, 2015 issued by the Ministry of Heavy Industries and

Public Enterprises, stated hereinabove. OS:01/16 was issued as per the

prevalent recruitment rules at the material point in time, whereas, OS:4/2016

was issued in terms of the aforesaid Circulars issued by the Government of

India. The respondents/GRSE being a public sector undertaking has to follow

the Notification/Circular issued by the Ministry concerned, of the Government

of India. The respondents/GRSE has not arbitrarily modified the selection

process.

12. He strongly denied that there was any malafide intention in altering the

recruitment process for the purpose of favoring a candidate. The

respondents/GRSE is a public sector undertaking and it was unimaginable

that for the purpose of favoring one candidate or a few candidates, the entire

selection process would be modified.

13. Mr. De also contended that no judicial review is permissible unless there

is an infringement of fundamental rights of the petitioners and a judicial review

of an administrative action/decision is extremely limited in scope.

14. Having considered the rival submissions of the parties and the materials

placed on record, this Court finds that the Employment Notification OS: 04/16

clearly stipulated in Clause (xix) of the eligibility criteria for recruitment of the

Junior Officers that the selection for all posts will be through interview.

15. Upon representations dated March 24, 2017 and April 17, 2017 being

made on behalf of the petitioners, the General Manager (HR & Admin.) of

respondent/GRSE sought to clarify the position with regard to the eligibility

criteria for selection of the Junior Managers in Clause 2 of the Office Order

dated May 9, 2017. Clause 2 of the Office Order reads as thus:

"After implementation of revised Promotion Policy of

supervisors vide CMD order dated 10 Sep 15, two distinct

channels have been made for entry in junior managers grade,

one is from internal supervisors through departmental

examination from S3 and S4 grade (promotion channel) and

other one is through direct recruitment channel wherein

internal supervisors are also eligible to apply with outsiders

if having the necessary qualification and experience with five

years age relaxation criteria. Hence all the eligibility

criteria for internal supervisors in promotion channel should

not necessarily be same with that of eligibility criteria in

direct recruitment channel."

16. Therefore, the Supervisors, who were at grade 'S3' and 'S4' could apply

for promotion being internal Supervisors of the company through

departmental examination. However, in the event they chose to appear

through direct recruitment channel, they were also eligible to apply along with

rank outsiders if they had the necessary qualifications and experience.

Furthermore, 5 years of age relaxation was also applicable for internal

Supervisors. The said relaxation was done in order to eliminate the

discrimination between the Candidates who are freshers and the candidates

already working as supervisors with GRSE and seeking to apply through

recruitment channel.

17. In this writ petition, the petitioners have failed to bring on record the

number of their members who applied through promotional channel "which

included a written test and an oral interview" vis-à-vis the members who

applied through direct recruitment channel and failed to qualify due to the

modification in the recruitment process. The petitioners have squarely failed to

show this Court how they were unfairly prejudiced/ aggrieved by the

recruitment process being OS:04/16.

18. Without appearing for written tests in the promotional channel or

appearing for the interview in the direct recruitment process, the petitioners in

a proceeding under Article 226 of the Constitution of India cannot theoretically

argue that they could have been unfairly prejudiced by the selection process.

The petitioners were not only eligible to apply through the promotional channel

but were also eligible to apply as rank outsiders through the direct recruitment

process with relaxation in the age criteria. The pleadings in paragraphs 9 and

11 of the writ petition along with the pleadings made in the affidavit-in-reply

are vague and fail to establish the legal right of the petitioners. The petitioners

have not even stated whether any of the members of the petitioner No.1 applied

under the aforesaid two channels and failed to qualify due to the modification

of the recruitment policy under Employment Notification OS: 04/16.

19. The hearing of this writ petition was concluded initially on September 5,

2022. The said case was reopened on September 13, 2022 at the behest of this

Court asking the petitioners to satisfy this Court on the question whether any

of its members were aggrieved by the Employment Notification being OS:4/16

since this court found no satisfactory pleadings in that respect. The petitioners

were allowed to bring further and better particulars on record by way of a

supplementary affidavit.

20. On the adjourned date of hearing i.e. November 11, 2022, Mr. Majumder,

appearing on behalf of the petitioners, submitted fairly that no further/better

particulars could be produced by the members of the petitioner no. 1

association who applied through the aforesaid channels and were unfairly

prejudiced by the alteration of the recruitment policy as stated in Employment

Notification OS:04/16

21. This is not a public interest litigation, whereby, a policy can be

challenged in the larger public interest (PIL) without the petitioners being

unfairly prejudiced/aggrieved by the same. As per the Supreme Court

guidelines, service matters are outside the scope of PIL. Only when a person is

aggrieved can the high prerogative writ jurisdiction be invoked.

22. It appears to this Court that the entire thrust in the writ petition was for

cancellation/setting aside of OS:04/16 for the purpose of nullifying/setting

aside the employment given to the private respondent No 6 by the

respondents/GRSE. Without first establishing their legal rights, the petitioners

have strenuously challenged the selection process only by way of interview

losing sight of the fact that they were also eligible to apply by way of the same

selection process along with the relaxation in age. The petitioner no. 1 has

failed to establish that its members appeared in the interview and not selected

due to nepotism/ bias or despite being selected were not eligible for the posts

for being over aged.

23. This Court is not satisfied on the issue of locus standi of the petitioners

to maintain this writ petition. Hence, WPA 15361 of 2017 is dismissed

without any order as to costs. Since this Court did not go into the merits of the

writ petition in assessing the fairness of the recruitment policy vis-à-vis the

Government Notifications dated September 14, 2015 and December 14, 2015,

it is not necessary to decide the issues raised regarding the scope of judicial

review in respect of an administrative decision in the present writ petition.

24. All parties to act on server copy of this Order as downloaded from the

official website of this Hon'ble Court.

25. Urgent certified photocopy of this judgment, if applied for, be supplied to

the parties upon compliance of all the requisite formalities.

(LapitaBanerji, J.)