Delhi High Court
Ashok Kumar Bansal vs Union Of India & Ors on 17 July, 2014
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 17.07.2014
+ W.P.(C) 701/2014 and CM No. 1398/2014
ASHOK KUMAR BANSAL ... Petitioner
versus
UNION OF INDIA & ORS ... Respondents
Advocates who appeared in this case:
For the Petitioner : Ms Indu Malhotra, Senior Advocate with Mr Uttam Datt,
Mr Shubham Aggarwal, Ms Nishtha and Mr Varun
For the Respondents : Mr Maninder Singh, ASG with Mr Sachin Datta, Ms Ritika
Jhurani and Ms Niti Arora for UOI
Mr Parag P. Tripathi, Senior Advocate with Mr Atul Shanker
Mathur, Ms Shruti Verma, Mr Abhisaar Bairagi, Mr Aseem
Chaturvedi and Ms Kanika Tandon for respondent No. 2
Ms Zubeda Begum for GNCTD
Ms Anjana Gosain for respondent No. 3
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SIDDHARTH MRIDUL
JUDGMENT
BADAR DURREZ AHMED, J (ORAL)
1. The petitioner seeks the issuance of a writ of Certiorari calling upon
the respondent No. 1 to produce the record pertaining to its decision dated
31.12.2013, whereby the respondent No. 3 has been granted post
superannuation extension of tenure as the Chairman-cum-Managing
Director of respondent No. 2 (BHEL). It is, further, prayed that, inter
alia, a writ of Certiorari be issued quashing the said decision dated
31.12.2013 as being arbitrary and illegal. A mandamus is also sought
directing the respondent No. 1 to follow the guidelines issued under the
Government of India (Transaction of Business) Rules, 1961 by the DOPT
in filling up the vacancy to the post of Chairman-cum-Managing Director
of respondent No. 2 (BHEL).
2. At the threshold, Mr Maninder Singh, the learned ASG, appearing
on behalf of the respondent No. 1 took the preliminary objection with
regard to the maintainability of this writ petition on the ground that the
issues urged before this court are essentially those of a service related
dispute and that no public interest litigation is maintainable under Article
226 in relation to a service matter. He placed reliance on several
decisions of the Supreme Court which have been noted in the case of
Girjesh Shrivastava And Others v. State of Madhya Pradesh And
Others: (2010) 10 SCC 707. He submitted that the only exception
pointed out by the Supreme Court where a writ petition could be
maintained in a service matter would be that of a writ of Quo Warranto
where there has been a clear violation of statutory provisions or rules. He
submitted that neither is the present writ styled as a writ of Quo Warranto
nor is there any allegation that there has been a violation of any statutory
provision. He, further, submitted that since the present matter does not
come within the exception carved out by the Supreme Court, a writ of
Certiorari styled as public interest litigation in a service matter cannot be
entertained by this court and, therefore, the writ petition ought to be
dismissed at the threshold.
3. Mr Parag P. Tripathi, the learned senior counsel, appearing on
behalf of respondent No. 2 (BHEL) submitted that there is a maxim „ubi
jus ibi remedium' which translates to "where there is a right there is a
remedy". He submitted that the right in the present case is that of the
person who is directly affected of any other third party and, therefore, it is
only the person aggrieved who can maintain a petition challenging the
extension granted to respondent No. 3 by respondent No. 1. He,
therefore, supported the contention raised by Mr Maninder Singh that the
writ petition ought to be dismissed at the threshold.
4. Ms Indu Malhotra, the learned senior counsel for the petitioner,
however, submitted that the present case is not a service matter
simplicitor inasmuch as the petitioner is not personally interested in the
matter but has taken up the issue as a matter of principle. She submitted
that no public sector undertaking has ever granted an extension in the
manner granted in the present case and this would become a bad
precedent which would be subsequently followed by other public sector
undertakings despite the DOPT guidelines to the contrary. Consequently,
she submitted that the argument of maintainability raised by the
respondents ought to be dispelled.
5. We have considered the arguments. The first thing that has to be
decided is whether the present matter is a service matter or not. It is
admittedly a petition which challenges the extension of tenure granted to
respondent No. 3 post-superannuation. Furthermore, a mandamus is also
sought directing the respondent No. 1 to follow the DOPT guidelines to
fill up the vacancy to the post of CMD of respondent No. 2 (BHEL). To
our minds, these elements have all the trappings of a service matter and,
therefore, we are of the view that this is clearly a service dispute.
6. In Dr Duryodhan Sahu And Others v. Jitender Kumar Mishra
And Others: (1998) 7 SCC 273, the Supreme Court observed as under:-
"If public interest litigations at the instance of strangers are allowed
to be entertained by the (Administrative) Tribunal, the very object of
speedy disposal of the service matters would get defeated."
This was followed by the Supreme Court in Girjesh Shrivastava
(supra) where the Supreme Court reiterated that public interest litigation
could not be entertained in service matters. The Supreme Court, further,
placed reliance on several other decisions of the Supreme Court as
under:-
"16. In B. Srinivasa Reddy v. Karnataka Urban Water
Supply & Drainage Board Employees' Assn: (2006) 11 SCC
731 (2), this court held that in service matters only the non-
appointees can assail the legality of the appointment
procedure.
17. This view was very strongly expressed by this
Court in Dattaraj Nathuji Thaware v. State of Maharashtra:
(2005) 1 SCC 590, by pointing out that despite the decision in
Duryodhan Sahu, PILs in service matters "continue unabated".
This court opined that the High Courts should "throw out"
such petitions in view of the decision in Duryodhan Sahu.
18. Same Principles have been reiterated in Ashok
Kumar Pandey v. State of W.B: (2004) 3 SCC 349.
19. In a recent decision of this Court delivered on 30-
8-2010, in Hari Bansh Lal v. Sahodar Prasad Mahto: (2010)
9 SCC 655, it has been held that except in a case for a writ of
"quo warranto", PIL in a service matter is not maintainable."
7. From the above, it is evident that except in the case of a writ of
Quo Warranto, public interest litigation in a service matter is not
maintainable. Since we have already observed that the present matter has
the trappings of a service matter, and since this writ petition is not filed
by a person immediately and directly aggrieved by the order of extension,
the present writ petition, in our view, is not maintainable. Consequently,
without going into the arguments on merits sought to be raised by the
learned counsel for the petitioner, we are not inclined to entertain this
writ petition at the threshold on the ground that a writ petition filed as
public interest litigation in a service matter cannot be entertained by us.
The writ petition is dismissed. There shall be no order as to costs.
BADAR DURREZ AHMED, J
JULY 17, 2014 SIDDHARTH MRIDUL, J
SU
