Neetu vs Department Of Financial Services ...
2016 Latest Caselaw 3917 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      W.P.(C) 4416/2016
       NEETU                                          ..... Petitioner
                          Through: Mr. G.V. Rao, Advocate with
                          Mr. A.K. Upadhyay, Advocates.

                          versus

       DEPARTMENT OF FINANCIAL SERVICES AND ORS.
                                            ..... Respondents
                          Through: Mr. Vijay Joshi, Advocate for R-1.
                          Mr. Bhupender Singh Chauhan,
                          Advocate for R-2 & 3

       CORAM:
       HON'BLE MS. JUSTICE HIMA KOHLI

                          ORDER

% 24.05.2016

1. The present petition has been filed by the petitioner praying inter alia for quashing the letters dated 21.8.2015, 03.11.2015 and 18.2.2016 issued by the respondent No.3, cancelling her appointment to the post of a Probationary Officer with the respondent/Bank. Further, the petitioner seeks directions to the respondents to appoint her on the post of a Probationary Officer in terms of the communication dated 01.4.2015.

2. Learned counsel for the respondents No.2 and 3, who appears on advance notice, opposes the maintainability of the present petition in this Court as he states that the petitioner who is a resident of Ghaziabad, had participated in the online test at Ghaziabad and further, the impugned order

dated 18.2.2016 has been issued from the Corporate Office of the said respondents No.3 & 4 which is at Mumbai. He adds that the respondent No.2 is only a participating organisation in respect of the common recruitment process for selection of Probationary Officer/Management Trainee conducted by the Institute of Banking Personnel Selection (IBPS), which is also based in Mumbai. It is submitted that the petitioner has challenged the impugned order dated 18.2.2016 on the ground that the selection process adopted by the respondents is erroneous, but in the present case, the said process was undertaken by the IBPS and not by the respondents No.2 and 3, but the petitioner has deliberately failed to implead IBPS as a co-respondent in the present case solely with the intention of trying to vest territorial jurisdiction on this Court. Instead, she has impleaded the Ministry of Finance, GOI, as a respondent, knowing very well that it is only a Nodal Ministry and no relief has been directed against the said respondent in the present petition and nor is it a necessary or a proper party.

3. This Court is inclined to agree with the submissions made by learned counsel for the respondents No.2 and 3. In the first instance, the petitioner ought to have impleaded IBPS as a respondent as it is a necessary and proper party in the present proceedings, having undertaken the entire process for selection of Probationary Officers to be appointed in different Banks, including the respondents No.2 & 3 herein. Secondly, the respondents No.2 and 3 are admittedly based in Mumbai and even the impugned order dated 18.2.2016, issued by the respondents emanates from its Corporate office at Mumbai. Quite evidently, no relief has been prayed for by the petitioner against the Ministry of Finance, though it has been arrayed as respondent No.1/UOI. An actionable cause of action has admittedly arisen in favour of

the petitioner and against the respondents No.2 and 3 based on the impugned letter dated 18.2.2016, in respect whereof the respondent No.1 has no role to play. Merely, because the Nodal Ministry of all public sector Banks is situated in New Delhi, would therefore not vest territorial jurisdiction on this Court, unless and until respondent No.1 has a specific role to play in the matter.

4. It is settled law that merely because a fraction of the cause of action has arisen before a particular Court, should not be the only guiding factor to entertain a petition and the Court, by invoking the doctrine of forum conveniens can decline to entertain a petition on the ground that a large part of the actionable cause has arisen elsewhere. 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 that were referred to them. After examining a number of decisions of the Supreme Court on this issue including those in 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 had 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."

5. The Full Bench of this Court had finally summarized their discussion in the following words:-

"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."

6. In the case in hand, not even a fraction of the cause of action can be stated to have arisen in Delhi for filing the petition in this court. Even if that was the case, then too this court is still vested with the discretion not to entertain a petition on the ground that a large part of the cause of action has not arisen within its territorial jurisdiction, but elsewhere.

7. Given the facts of the case, this Court is of the opinion that the present petition is not maintainable in Delhi for want of territorial jurisdiction. Accordingly, the petition is disposed of, while granting liberty to the petitioner to approach the competent court vested with territorial jurisdiction in that regard.

HIMA KOHLI, J MAY 24, 2016 sk/mk