WP(C)/2176/2020
2021 Latest Caselaw 1019 Gua

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GAHC010072572020




                            THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : WP(C)/2176/2020

                   Association of Engineers
                   Assam State Electricity Board
                   A Society Registered under the Societies Registration Act
                   1860 Rep. by its President Sri Bikramaditya Das.

                                                                                  ........Petitioner
                          Versus

                   1. The Assam Electricity Grid Corporation Ltd. rep. by its Chairman Having its
                   Registered Office At Bijulee Bhawan
                   Paltan Bazar
                   Guwahati-781001.

                   2. The Managing Director,
                   Assam Electricity Grid Corporation Ltd. Bijulee Bhawan
                   Paltan Bazar
                   Guwahati-781001.

                   3. The General Manager,
                   Assam Electricity Grid Corporation Ltd. Bijulee Bhawan
                   Paltan Bazar
                   Guwahati-781001.

                   4. Dipankar Dehingia,
                   General Manager
                   Assam Electricity Grid Corporation Ltd. Bijulee Bhawan
                   Paltan Bazar
                   Guwahati-781001.

                   5.The Chairman,
                   APDCL/AEGCL/APGCL
                   Bijulee Bhawan
                   Paltan Bazar
                   Guwahati-781001.
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                    6. Assam Power Distribution Company Ltd.,
                    Having its Registered Office at Bijulee Bhawan
                    Paltanbazar, Guwahati- 781001
                    Represented by its Managing Director.

                    7. The Chief General Manager,
                    Assam Power Distribution Corporation Ltd.
                    Bijulee Bhawan, Paltanbazar
                    Guwahati - 781001.

                    8. The Joint Consultative Committee,
                    Represented by the Chairman
                    APDCL/AEGCL/APGCL Bijulee Bhawan
                    Paltanbazar,
                    Guwahati - 781001.
                                                                         ........Respondents

BEFORE HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA

Advocate for the petitioner : Mr. J. Patowary.

      Advocate for the respondents       :      Mr. T. J. Mahanta,
                                                Ms. S. Jahan,
                                                Mr. B. D. Das,
                                                Ms. R. Deka.

      Date of hearing                    :      02.03.2021
      Date of judgment                   :      17.03.2021



                               JUDGMENT & ORDER (CAV)

Heard Mr. J. Patowary, learned counsel for the petitioner. Also heard Mr. T. J. Mahanta, learned Senior counsel appearing for the respondent Nos. 1, 2 and 3, assisted by Ms. P. Bhattacharjee. Ms. S. Jahan appears for the respondent No. 4, whereas Mr. B. D. Das, learned Senior counsel appears for respondent No. 8, assisted by Ms. R. Deka.

2. The grievance of the petitioner Association is with the office order dated 12.06.2019 issued by the respondent No. 3, by which the respondent No. 4 has been Page No.# 3/9

provisionally appointed as General Manager (HR) in Assam Electricity Grid Corporation Limited (in short, 'AEGCL'). The further prayer of the petitioner is to set aside the agenda papers dated 30.12.2019, by which the conditions of the appointment of the respondent No. 4 set out in the impugned order dated 12.06.2019 are sought to be modified. The sum and substance of the petitioner Association's case is that the State respondents are illegally trying to recruit the respondent No. 4 as General Manager (HR) in the AEGCL, by way of absorption, instead of directly recruiting him in terms of the employment notice dated 14.12.2018. The members of the petitioner Association is made up of graduate Engineers of the erstwhile Assam State Electricity Board, which after trifurcation are now known as (1) Assam Power Distribution Company Ltd. (APDCL), (2) Assam Power Generation Company Limited (APGCL) and (3) Assam Electricity Grid Corporation Ltd. (AEGCL).

3. The brief facts of the case is that the in-charge General Manager (HR) of AEGCL published an Employment notice dated 14.12.2018, calling for eligible candidates for filling up the vacant posts of General Manager (HR) in the AEGCL. The eligibility criteria for general candidates was different from the eligibility criteria for departmental candidates as per the Employment notice dated 14.12.2019. In pursuance to the employment notice dated 14.12.2018, 9 applications were received by the AEGCL. On scrutiny of the documents, only the applications of the respondent No. 4 and one Mr. Pradip Goswami, who were departmental candidates, were found eligible to be considered for the post of General Manager (HR), as per the eligibility criteria prescribed in the employment notice.

4. The AEGCL selected the respondent No. 4 and accordingly the impugned office order dated 12.06.2019 was issued by the respondent No. 2, appointing the respondent No. 4 as General Manager (HR) in the AEGCL. The impugned office order dated 12.06.2019 is re- produced below:-

"OFFICE ORDER

In the interest of work and on the recommendation of the Selection Committee, subject to the satisfactory police verification report on character & antecedents, and medical fitness report, Sri Dipankar Dehingia is hereby provisionally appointed as General Manager (HR) in AEGCL in the O/o the MD, AEGCL, Bijulee Page No.# 4/9

Bhawan, Paltanbazar, Guwahati-01.

The appointee will be placed in the Pay Band of Rs. 42,000/- -1,16,000/- & Grade Pay of Rs. 19,500/- with other admissible allowances as per ROP-2017, w.e.f. the date of joining in AEGCL.

The appointee should report his joining to the O/o the MD, AEGCL within 24.06.2019.

The appointee would be in probation for a period of 2 (two) years, with effect from the date of his joining.

His service is liable to be terminated within the period of probation or its expiry, without notice or without assigning any reason thereof.

In the event of his resignation, during the period of his probation or its expiry, he shall be released as per the rules of AEGCL.

He shall be under the existing Pension Scheme."

5. Learned counsel for the petitioner submits that the impugned office order dated 12.06.2019 should be set aside, inasmuch as, the respondent No. 4 does not have the eligibility criteria required for appointment to the post of General Manager (HR). He also submits that while the employment notice dated 14.12.2018 is for filling up the post of General Manager (HR) in the AEGCL by way of direct recruitment, the meeting minutes dated 18.06.2019 of the Joint Consultative Committee (in short 'JCC'), and the office order dated 20.06.2019 issued by the Chief General Manager (HRA), APDCL, shows that the petitioner has been allowed to go to the AEGCL as General Manager (HR) on deputation for two years.

Learned counsel for the petitioner also submits that the State respondents are trying to absorb the service of the respondent No. 4 as General Manager (HR) by way of the impugned agenda papers prepared on 30.12.2019.

6. Learned counsels for the respondents, on the other hand, submit that the writ petition should be dismissed as the petitioner is an Association made up of Engineers, of which the respondent No. 4 is also a Member. They also submit that the petitioner has no locus-standi to file the writ petition as no legal or fundamental right of the petitioner Page No.# 5/9

Association has been violated. Further, no individual aggrieved person has put to challenge the appointment of the respondent No. 4 as General Manager (HR) in the AEGCL. They also submit that while the respondent No. 4 was appointed on 12.06.2019, the petitioner Association has filed the present case belatedly, i.e. on 12.05.2020.

7. The counsel for the respondent No. 4 submits that while the employment notice dated 14.12.2018 provided for appointment to the post of General Manager (HR) through direct recruitment, the respondent No. 4, on perusal of his appointment order, came to realize that there was no protection given to the respondent No.4's past service in the APDCL. The respondent No. 4, who had initially joined the APDCL in the year 1988, would thus be left at the mercy of the AEGCL without any service protection of past services and in fact, the new appointment would have wiped out the past benefits that had accrued to the respondent No. 4 from the year 1988. The respondent No. 4 thus submitted a representation to the AEGCL to be sent back to the APDCL. The respondent No. 4 was thereafter sent on deputation by the APDCL to the AEGCL. The counsel for the respondent No. 4 also submits that the respondent No. 4 has the eligibility criteria to be appointed as General Manager (HR), as provided in the Employment notice dated 14.12.2018 for departmental candidates.

8. The counsels for the State respondents submit that on scrutiny of the application of the candidates, it was found that the respondent No. 4 along with one Mr. Pradip Goswami had the eligibility criteria required for appointment to the post of General Manager (HR), as required for departmental candidates.

9. The counsel for the respondents have relied upon various judgments of this Court and the Supreme Court in support of their submission that the petitioner Association does not have any locus-standi to file a writ petition with regard to service matters. They are judgments of the Single Bench of this Court in the case of Debajit Das and others -Vs- State of Assam and others reported in 2015 (2) GLT 899, the Division Bench judgment of this Court in Debajit Das and others -Vs- State of Assam and others reported in 2015 (4) GLT 222 and in the case of Ajit Kumar Bhuyan -Vs- Debajit Das and others reported in (2019) 12 SCC 275. They have also relied upon the judgment of the Apex Court in B. Srinivasa Reddy Vs. Page No.# 6/9

Karnataka Urban Water Supply & Drainage Board Employees' Association & Ors., reported in (2006) 11 SCC 731 and Goa Judicial Officers' Association Vs. State of Goa & Ors., reported in (1997) 4 BomCR 372.

10. I have heard the learned counsels for the parties.

11. The educational qualification required of General candidates and for Departmental candidates, as stipulated in the Employment Notice dated 14.12.2018 is as follows:-

"1. Educational Qualification for all positions:

a. For General Candidate: Two years full time degree in MBA/PGDM, specialization in Human Resource management/Personal Management & Industrial Relation/Labour Relations etc. from an AICTE approved Institute/University with 1st class or minimum 60% marks. Degree in law from a recognized university approved by UGC, will be considered as added qualification.

b. For Departmental Candidate: Full time/part time degree in MBA/PGDM, having core subjects of Human Resource management/Personal Management & Industrial Relation/Performance Management etc. from an AICTE approved Institute/University with minimum 55% marks."

12. The stand of the petitioner Association that the respondent No. 4 does not have the eligibility criteria for appointment to the post of General Manager (HR), as he does not have "specialization" in Human Resource Management/Personal Management, which is stipulated as the minimum educational qualification for departmental candidates is incorrect, in view of the fact that "specialization" in Human Resource Management/Personal Management is relatable only to general candidates and not for departmental candidates. Departmental candidates are to have "core" subjects of Human Resource Management/Personal Management and not "specialization". In this regard, the learned counsel for the respondent No. 4 has submitted mark sheets issued by the Gauhati University and the Management Development Institute, Gurgaon, which shows that the respondent No. 4 has the eligibility criteria required of a Departmental candidate to be considered and appointed to the post of General Manager (HR) in the AEGCL. The stand taken by the Page No.# 7/9

petitioner Association that the respondent No. 4 does not have the eligibility criteria is blatantly wrong and misleading. In this respect, the counsel for the petitioner has also admitted that the petitioner Association has made a mistake in its pleading in paragraph 6 of the writ petition.

13. It is also seen that no individual person has made any challenge to the Office Order dated 12.06.2019, appointing the respondent No. 4 as General Manager (HR), in AEGCL. No person has also made any challenge to the APDCL sending the respondent No. 4 to the AEGCL as General Manager (HR) on deputation or to attempt to absorb the respondent No. 4 as General Manager (HR) in the AEGCL, as alleged by the petitioner. It is also seen that during the pendency of the writ petition, the respondent No. 4 has been given proforma promotion to the post of General Manager in the APDCL vide Office Order dated 04.01.2021, which has not been challenged by any person.

14. In the case of Debajit Das & Ors. Vs. State of Assam & Ors. , reported in 2015 (2) GLT 899, the counsel for the petitioner therein had taken the stand that an Association has no locus standi to challenge a promotion order, as an Association is not an aggrieved person and as it could not raise service related grievances of individual officers. An appeal was preferred and the Division Bench in the case of Debajit Das Vs. State of Assam & Ors., reported in 2015 (4) GLT 222 answered in the negative the following proposition with regard to the issue involved before the Single Bench i.e., whether an Association had the locus standi to challenge the promotion order of Officers. Paragraph No. 18(iv) of the Judgment passed by the Division Bench in Debajit Das Vs. State of Assam & Ors., reported in 2015 (4) GLT 222 is reproduced below:-

"Whether the Association has any locus standi in the matter. The question is answered in the negative."

The matter went up to the Supreme Court in Ajit Kumar Bhuyan & Ors. Vs. Debajit Das & Ors., reported in (2019) 12 SCC 275, wherein the said proposition and answer given by the Division Bench was not disturbed by the Apex Court.

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15. In the case of B. Srinivasa Reddy Vs. Karnataka Urban Water Supply & Drainage Board Employees' Association & Ors. , reported in (2006) 11 SCC 731, the Apex Court has held that a Court cannot sit in judgment over the wisdom of the Government in the choice of the person to be appointed so long as the person chosen possesses prescribed qualification and is otherwise eligible for appointment. In the case of R.K. Jain Vs. Union of India, reported in 1993 4 SCC, the Apex Court held that in service jurisprudence, it is settled law that it is for the aggrieved person, that is the non-appointee, to assail the legality or correctness of the action and that a third party has no locus standi to canvas the legality or the correctness of the action.

16. In the case of Ayaaub Khan Noor Khan Pathan Vs. State of Maharashtra & Ors., reported in (2013) 4 SCC 465, the Apex Court has held at Paragraph Nos. 9 & 10 as follows:-

"9. It is a settled legal proposition that a stranger cannot be permitted to meddle in any proceeding, unless he satisfies the authority/court, that he falls within the category of aggrieved persons. Only a person who has suffered, or suffers from legal injury can challenge the act/action/order, etc. in a court of law. A writ petition under Article 226 of the Constitution is maintainable either for the purpose of enforcing a statutory or legal right, or when there is a complaint by the appellant that there has been a breach of statutory duty on the part of the authorities. Therefore, there must be a judicially enforceable right available for enforcement, on the basis of which writ jurisdiction is resorted to. The Court can, of course, enforce the performance of a statutory duty by a public body, using its writ jurisdiction at the behest of a person, provided that such person satisfies the Court that he has a legal right to insist on such performance. The existence of such right is a condition precedent for invoking the writ jurisdiction of the courts. It is implicit in the exercise of such extraordinary jurisdiction that the relief prayed for must be one to enforce a legal right. In fact, the existence of such right, is the foundation of the exercise of the said jurisdiction by the Court. The legal right that can be enforced must ordinarily be the right of the appellant himself, who complains of infraction of such right and approaches the Court for relief as regards the same.

10. A "legal right", means an entitlement arising out of legal rules. Thus, it may be defined as an advantage, or a benefit conferred upon a person by the rule of law. The expression, "person aggrieved" does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must, therefore, necessarily be one whose right or interest has been adversely affected or jeopardised."

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17. In the case of Goa Judicial Officers' Association Vs. State of Goa & Ors. , reported in (1997) 4 BomCR 372, the Division Bench of the Bombay High Court found force with the submission made by counsel for the High Court, which was to the effect that a writ petition on behalf of the petitioner Association was not maintainable under Article 226 of the Constitution, because the petitioner was not an aggrieved person and as the petitioner Association cannot identify itself with a grievances of its members. The Bombay High Court then held that the grievance highlighted by the petitioner Association is of the members that the promotional avenues available to the members of the petitioner Association under the existing Rules had been taken away by the impugned Rules. The High Court then held that the petitioner as an Association of Judicial Officers cannot identify itself with the grievances of its members as no right of the petitioner Association itself was infringed. The High Court further held that unless a statute provides for an Association to identify itself with the grievance of its members, the writ petition was not maintainable.

18. In the present case, no individual person has made a challenge to the recruitment of the respondent No. 4 as General Manager (HR) in the AEGCL in pursuant to the Employment Notice dated 14.12.2018. Further, no individual person has made a challenge to the APDCL sending the respondent No. 4 on deputation to AEGCL as General Manager (HR). The respondent No. 4 has the eligibility criteria to be appointed to the said post. Whether the respondent No. 4 is appointed directly or absorbed to the said post, the fact remains that he was selected for the said post after going through a selection process which is not under challenge. It cannot be said that any legal right of the petitioner Association has been violated if the respondent No. 4 is appointed directly or absorbed into the post of General Manager (HR). Accordingly, this Court is of the view that the petitioner Association cannot be said to be an aggrieved person.

19. In view of the reasons stated above, this writ petition stands dismissed.

JUDGE

Comparing Assistant