Shailendra Yadav vs Union Of India And Ors
2014 Latest Caselaw 6655 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+        W.P.(C) 8290/2014 and CM APPL. 19235/2014

                                                Decided on : 10.12.2014
IN THE MATTER OF:
SHAILENDRA YADAV                                         ..... Petitioner
                        Through: Mr. Ayush Negi, Advocate with
                        Mr. Kuldeep Yadav, Advocate

                        versus


UNION OF INDIA AND ORS                              ..... Respondents

Through: Mr. Jasmeet Singh, CGSC for R-1/UOI.

Mr. V.N. Koura, Advocate with Mr. Sumit Singh Benipal, Advocate for R-2 and R-3/ONGC.

CORAM HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J.(Oral)

1. The present petition has been filed by the petitioner praying inter

alia for issuance of a writ of certiorari to quash the advertisement

No.03/2014 issued by the respondent No.2/ONGC's Western Sector,

Gujarat, whereby applications have been invited for filling up various

posts in the workman cadre, including 11 posts of Junior Assistant

(P&A), on the ground that the same is violative of Articles 14 and 16 of

the Constitution of India.

2. In short, the facts of the case are that the petitioner, who is a

resident of Moradabad, UP, has raised a grievance with regard to the

restrictions placed by the respondents in the aforementioned

advertisement and submitted that though he is eligible to apply for the

subject post mentioned the advertisement, he is being deprived of his

right to participate in the selection process solely on account of the fact

that the advertisement has prescribed that only the candidates, whose

names are registered in any of the Employment Exchanges within the

State of Gujarat, can apply.

3. As the petition is fulcrumed on the aforementioned advertisement,

it is deemed appropriate to refer to some of the terms and conditions

stipulated therein. From the title of the advertisement, it is clear that

the same has been issued by the ONGC, Western Sector, Gujarat. In

para 3 thereof, applications have been invited to the posts of workmen

with the requisite essential qualifications and a valid registration in any

Employment Exchange located within the State of Gujarat, with a further

condition that the Employment Exchange Registration Card should be

valid during the online registration process, written test and the

interview. Clause 5.3 of the advertisement names three centres for

conducting the written test, which are Ahmedabad, Baroda and Surat.

All the three cities are situated within the State of Gujarat. Clause 6,

which refers to the manner in which the candidates are required to

apply, reiterates that only those candidates, who meet the eligibility

criteria, possess the requisite essential qualifications and have a valid

registration in any of the Employment Exchanges located within the

State of Gujarat may apply online.

4. Under the General Instructions, Clause 8 (12) prescribes that the

court of jurisdiction for any dispute will be Vadodara. Clause 8(14)

prescribes that the Employment Exchanges of Ahmedabad, Mehsana,

Bharuch, Anand, Chhota Udaipur, Gandhinagar and Vadodara have been

requested to inform the sponsored candidates to apply online for the

purposes of recruitment. As per the time schedule for the online

registration and the written test mentioned in clause 9 of the

advertisement, the starting date of the online registration was

25.09.2014 and the closing date was 15.10.2014. The last date for

remittance of application registration charges in the bank was

18.10.2014 and the tentative date of the written test was 23.11.2014.

5. On the last date of hearing, when the matter was listed for

admission on 28.11.2014, learned counsel for the petitioner was

requested to address the Court on the issue of maintainability of the

present petition as it was observed that the entire cause of action

appeared to have arisen outside the territorial jurisdiction of this Court.

As learned counsel for the petitioner had sought time to examine the

aforesaid issue, the matter was renotified for today.

6. Today, on the first call, proxy counsel had appeared on behalf of

the counsel for the petitioner and had sought a pass over on the ground

that the arguing counsel was held up in a matter before the Supreme

Court and he was duly accommodated. On the second call, in the post

lunch session, yet again, learned proxy counsel seeks an adjournment

on the same ground, which is turned down and he has been requested to

address the Court on the aspect of maintainability of the present petition

in this Court.

7. The main contention of the learned counsel for the petitioner is

that the condition specified in the advertisement to the effect that the

candidates must have a valid registration with any of the Employment

Exchanges located within the State of Gujarat amounts to depriving the

prospective candidates like the petitioner herein of equal opportunity in

matters of public employment despite the fact that they possess the

requisite qualifications but are residing in other parts of the country.

8. Before going into the merits of the case, it is considered necessary

to examine whether this Court would be vested with the territorial

jurisdiction to entertain the present petition.

9. Learned counsel for the petitioner submits that the petitioner is

well entitled to file the present petition in this Court as the corporate

office of the respondents No.2 and 3/ONGC is situated in Delhi.

10. Learned counsel for the respondents No.2 and 3/ONGC counters

the said submission and states that merely because the corporate office

of the respondents No.2 and 3/ONGC is situated in Delhi would not be

sufficient reason to clothe this Court with territorial jurisdiction and the

averments in the writ petition also reveal that no part of the cause of

action has arisen in Delhi.

11. For deciding the issue of territorial jurisdiction, the Court is

required to examine the relevant facts stated in the petition, which when

taken collectively, can be treated as an essential part of the cause of

action. No doubt, even a small part of the cause of action, if it has

arisen within the jurisdiction of a Court, would be sufficient for that Court

to entertain a petition, but to determine the said issue, it is the

substance and not the form that is important.

12. The territorial jurisdiction of the High Courts has been defined in

Article 226 of the Constitution of India. By the Constitution (Fifteenth

Amendment) Act, 1963, enacted by the Parliament, after clause (1), a

new clause (1-A), [renumbered as Clause (2) by the Constitution (Forty

second Amendment) Act, 1976] was added; which reads as under:-

"(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, Authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or Authority or the residence of such person is not within those territories."

13. The underlying object of the amendment was expressed in the

following words :-

"Under the existing Article 226 of the Constitution, the only High Court which has jurisdiction with respect to the Central Government is the Punjab High Court. This involves considerable hardship to litigants from distant places. It is, therefore, proposed to amend Article 226. So that when any relief is sought against any Government, Authority or person for any action taken, the High Court within whose jurisdiction the cause of action arises may also have jurisdiction to issue appropriate directions, orders or writs."

14. The effect of the amendment is that it made the accrual of cause

of action an additional ground to confer jurisdiction on a High Court

under Article 226. As the Joint Committee had observed:-

"This clause would enable the High Court within whose jurisdiction the cause of action arises to issue directions, orders or writs to any Government, Authority or person, notwithstanding that the seat of such Government or Authority or the residence of such person is outside the territorial jurisdiction of the High Court. The Committee feel`s that the High Court within whose jurisdiction the cause of action arises in part only should also be vested with such jurisdiction."

15. Thus, after the insertion of Clause (1-A), the legal position is that a

writ can be issued by a High Court against a person, Government or

Authority residing within the jurisdiction of that High Court, or within

whose jurisdiction the cause of action in whole or in part arises. In other

words, the concept of "cause of action" came into play.

16. After the insertion of Clause (1-A) (renumbered as Clause (2), the

jurisdiction of a High Court can be invoked if the cause of action arises,

wholly or in part, within the territorial jurisdiction of that court.

However, the expression "cause of action" has not been defined in the

Constitution or in the Code of Civil Procedure. As observed by the

Supreme Court in the case of Eastern Coalfields Ltd. (supra), 'cause of

action', for the purpose of Article 226 (2) of the Constitution of India, for

all intent and purport, must be assigned the same meaning as envisaged

under Section 20(C) of the Code of Civil Procedure. It means a bundle

of essential facts that are required to be proved. However, the entire

bundle of facts pleaded, need not constitute a cause of action and what

is necessary to be proved is such material facts based whereon a writ

petition can be allowed.

17. In this context, the following observation made by the Supreme

Court in the case of Kusum Ingots and Alloys Ltd. vs. Union of India &

Anr., reported as AIR 2004 SC 232, are germane:-

"18. ...........The facts pleaded in the writ petition must have a nexus on the basis whereon a prayer can be granted. Those facts which have nothing to do to the prayer made therein cannot be said to give rise to a cause of action which would confer jurisdiction on the court."

18. In the case of Oil and Natural Gas Commission vs. Utpal Kumar

Basu and Ors reported as (1994) 4 SCC 711, the Supreme Court had

clarified that in determining the objection of lack of territorial

jurisdiction, the court must take into consideration all the facts pleaded

in support of the cause of action, albeit without embarking upon an

enquiry as to the correctness or otherwise of the said facts. Stated

differently, whether a High Court has the territorial jurisdiction to

entertain a writ petition, must be answered on the basis of the

averments made in the writ petition, the truth or otherwise whereof

being immaterial.

19. In the case of Alchemist Limited and Anr. Vs. State Bank of Sikkim

and Ors reported as AIR 2007 SC 1812, the Supreme Court held that

"the test is whether a particular fact(s) is (are) of substance and can be

said to be material, integral or an essential part of the lis between the

parties. If it is, it forms a part of the cause of action. If it is not, it

does not form a part of the cause of action. It is also well settled that in

determining the question, the substance of the matter and not the form

thereof has to be considered."

20. Guided by the ratio laid down in a catena of decisions of the

Supreme Court and the High Courts on the issue of territorial

jurisdiction, it is evident that for the purpose of deciding as to whether

the facts averred by a petitioner would or would not constitute a part of

the cause of action, the court is required to examine as to whether such

facts constitute a material, essential or integral part of the cause of

action. Even if a small fraction of the cause of action arises within the

jurisdiction of the court, the said court would be vested with the

territorial jurisdiction to entertain the petition. However the condition is

that it must be "a part of the cause of action" and nothing short of that.

21. Given the facts of the present case, the only argument advanced

by learned counsel for the petitioner to explain as to why the petitioner

has approached this Court for relief is that the corporate office of the

respondents No.2 and 3/ONGC is situated in Delhi. However, it is

significant to note that the corporate office does not have any role to

play in the matter of recruitment for the subject posts. The

advertisement in question has been issued by the Western Sector of the

ONGC. If the petitioner is aggrieved by one of the conditions imposed in

the impugned advertisement, which is to the effect that only those

persons, who are registered with the Employment Exchanges within the

State of Gujarat can offer their candidatures for the subject posts, then

it is for him to approach the competent Court within the State of Gujarat

for seeking appropriate relief.

22. For purposes of deciding the jurisdictional aspect, the other

relevant term and condition of the advertisement is contained in clause

12 of the General Instructions, which clearly stipulates that the court of

jurisdiction for any dispute would be Vadodara. This is in line with the

decision of the respondents to designate centres in three cities within the

State of Gujarat for conducting the written test and request the

Employment Exchanges in various cities within the State of Gujarat to

call upon their registrants to apply for the subject posts.

23. All the aforesaid facts and circumstances when taken together, are

a clear pointer towards the fact that this Court is not vested with the

territorial jurisdiction to entertain this petition as no part of the cause of

action has arisen within the NCT of Delhi. Moreover, the advertisement

itself specifies that any dispute would be amenable to the jurisdiction of

courts situated in Vadodara.

24. At this stage, it may also be relevant to discuss the issue of forum

conveniens in the context of the argument advanced by learned counsel

for the petitioner that the situs of the corporate office of the respondent

No.2 and 3/ONGC is in Delhi. Learned counsel for the petitioner states

that the location of the corporate office of the ONGC is itself sufficient

ground for the petitioner to file the petition in Delhi: The said submission

has to be examined in the light of the decision in the case of Kusum

Ingots and Alloys Ltd. (supra). In the said case, it was highlighted that

the situs of the office of Parliament, Legislature of a State or authorities

empowered to make subordinate legislation would not by itself constitute

any cause of action for cases arising. Consequently, framing of a statute,

statutory rule or issuance of an executive order or instruction would not

confer jurisdiction upon a court only because of the situs of the office of

the maker thereof.

25. Recently, a Full Bench of five Judges of this Court in the case of

Sterling Agro Industries Ltd. Vs. Union of India and Ors reported as AIR

2011 Delhi 174 had the occasion to examine the doctrine of 'forum

conveniens' and the concept of cause of action in view of the conflicting

judgments on the issue referred to them. After examining a number of

decisions of the Supreme Court on this issue including the cases of Sri

Nasiruddin vs. State Transport Appellate Tribunal, (1975) 2 SCC 671,

Kishore Rungta and Ors. vs. Punjab National Bank & Ors., 2003 (151)

ELT 502 (Bom), Alchemist Limited (supra), National Textile Corporation

Ltd. vs. Haribox Swalram, (2004) 9 SCC 786, the Full Bench observed

as below :

"31. The concept of forum conveniens fundamentally means that it is obligatory on the part of the court to see the convenience of all the parties before it. The convenience in its ambit and sweep would include the existence of more appropriate forum, expenses involved, the law relating to the lis, verification of certain facts hich are necessitous for just adjudication of the controversy and such other ancillary aspects. The balance of convenience is also to be taken note of. Be it noted, the Apex Court has clearly stated in the cases of Kusum Ingots (supra), Mosaraf Hossain Khan (supra) and Ambica Industries (supra) about the applicability of the doctrine of forum conveniens while opining that arising of a part of cause of action would entitle the High Court to entertain the writ petition as maintainable.

32. The principle of forum conveniens in its ambit and sweep encapsulates the concept that a cause of action arising within the jurisdiction of the Court would not itself constitute to be the determining factor compelling the Court to entertain the matter. While exercising jurisdiction under Articles 226 and 227 of the Constitution of India, the Court cannot be totally oblivious of the concept of forum conveniens. The Full Bench in New India Assurance Co. Ltd. (supra) has not kept in view the concept of forum conveniens and has expressed the view that if the appellate authority who has passed the order is situated in Delhi, then the Delhi High Court should be treated as the forum conveniens. We are unable to subscribe to the said view."

26. The Full Bench of this Court went on to summarize their discussion

in the following manner:-

"33. In view of the aforesaid analysis, we are inclined to modify the findings and conclusions of the Full Bench in New India Assurance Company Limited (supra) and proceed to state our conclusions in seriatim as follows:

(a) The finding recorded by the Full Bench that the sole cause of action emerges at the place or location where the tribunal/appellate authority/revisional authority is situate and the said High Court (i.e., Delhi High Court) cannot decline to entertain the writ petition as that would amount to failure of the duty of the Court cannot be accepted inasmuch as such a finding is totally based on the situs of the tribunal/appellate authority/revisional authority totally ignoring the concept of forum conveniens.

(b) Even if a miniscule part of cause of action arises within the jurisdiction of this Court, a writ petition would be maintainable before this Court, however, the cause of action has to be understood as per the ratio laid down in the case of Alchemist Ltd. (supra).

(c) An order of the appellate authority constitutes a part of cause of action to make the writ petition maintainable in the High Court within whose jurisdiction the appellate authority is situated. Yet, the same may not be the singular factor to compel the High Court to decide the matter on merits. The High Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens.

(d) The conclusion that where the appellate or revisional authority is located constitutes the place of forum conveniens as stated in absolute terms by the Full Bench is not correct as it will vary from case to case and depend upon the lis in question.

(e) The finding that the court may refuse to exercise jurisdiction under Article 226 if only the jurisdiction is invoked in a malafide manner is too restricted / constricted as the exercise of power under Article 226 being discretionary cannot be limited or restricted to the ground of malafide alone.

(f) While entertaining a writ petition, the doctrine of forum conveniens and the nature of cause of action are required to be scrutinized by the High Court depending upon the factual matrix of each case in view of what has been stated in Ambica Industries (supra) and Adani Exports Ltd. (supra).

(g) The conclusion of the earlier decision of the Full Bench in New India Assurance Company Limited (supra) "that since the original order merges into the appellate order, the place where the appellate authority is located is also forum conveniens" is not correct.

(h) Any decision of this Court contrary to the conclusions enumerated hereinabove stands overruled."

27. The position of law that clearly emerges from the above is that the

expression, "cause of action" means and includes the circumstance

resulting in breach of a right or an immediate occasion for the party to

react. The said expression takes in its fold the whole bundle of material

facts which a party must prove in order to succeed. It also embraces the

circumstances and situations that entitle a party to maintain an action in

court. For determining as to whether a particular fact constitutes a

cause of action, would have to depend on the facts and circumstances of

each case and while considering the facts averred, the court has to

consider the substance of the matter and not the form. Simply because

a miniscule part of the cause of action arises within the territorial

jurisdiction of a particular High Court may not be sufficient to compel the

said court to decide the matter on merits. In appropriate cases,

discretion still rests with the court to decline to exercise the jurisdiction

vested in it by invoking the doctrine of forum conveniens or the doctrine

of non- conveniens. The said doctrine of forum non-conveniens can be

invoked when the court deciding to refrain from exercising its

jurisdiction, is vested with the jurisdiction to decide the case.

28. In view of the given facts and circumstances of the case and

having regard to the clear terms and conditions stipulated in the

advertisement, this Court declines to entertain the present petition on

the ground of lack of territorial jurisdiction.

29. The present petition is accordingly disposed of in limine with liberty

granted to the petitioner to seek his remedies against the respondents

before the competent court vested with the territorial jurisdiction in that

regard.

                                                     (HIMA KOHLI)
DECEMBER 10, 2014                                       JUDGE
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