Madras High Court
Tamil Nadu Survey Officers Union ... vs The Government Of Tamil Nadu on 22 April, 2022
W.P.No.10465 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESEVED ON: 22.04.2022
DELIVERED ON: 28.04.2022
CORAM:
THE HON'BLE MR. JUSTICE D.KRISHNAKUMAR
W.P.No.10465 of 2020
and WMP.Nos.16548, 16414, 12723 of 2020
Tamil Nadu Survey Officers Union (Central)
Represented by its General Secretary,
No.266-A, Rice Mills Road, Nallavanpalayam Post,
Tiruvannamalai – 606 603. .. Petitioner
vs.
1.The Government of Tamil Nadu,
Represented by the
Additional Chief Secretary to Government,
Revenue & Disaster Management Department,
Fort St.George, Chennai-600 009.
2.The Director of Survey & Settlement,
“Survey House”, Chepauk, Chennai-600 005.
3.Tamil Nadu Grama Niruvaka Aluvalarkal Sangam,
Rep. By its State General Secretary,
K.Selvan, VAO, TNVAOA Illam,
No.26, Venkatachalam Street,
Triplicane, Chennai-5.
4.G.Suresh
5.K.Mohanarangan
6.R.Alagirisamy
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W.P.No.10465 of 2020
7.C.Kumar
8.R.Rajendran
9.P.Sivasamy .. Respondents
(R3 to R9 impleaded vide order dated 22.04.2022
in WMP.Nos.16416, 17857 and 18775 of 2020
in W.P.No.10465 of 2020)
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of a Writ of Certiorari to call for the records on the file of
the first respondent in G.O.(Ms.)No.173 dated 26.03.2020 and quash the
same as illegal, ultra vires and totally without jurisdiction insofar as it has
included the Village Administrative Officer in the amendment under Section
13(h) to the Chain Survey and Land Records, Manual, Part II, Chapter I.
For Petitioner
in W.P.No.10465/2020 : Mr.V.Raghavachari
in WMP.No.16416/2020 : Mr.G.Elanchezhiyan
in WMP.No.17857/2020 : Mr.AL.Gandhimathi
in WMP.No.18775/2020 : Mr.Niranjan Rajagopalan
For Respondents : Mr.R.Shunmugasundaram,
Advocate General,
assisted by
Mr.T.Chezhiyan,
Additional Govt. Pleader for R1 & R2
ORDER
The petitioner, challenging the impugned Government Order in
G.O.(Ms)No.173, Revenue and Disaster Management Department, Survey
and Settlement Wing, [SS-II(2)] Section dated 26.03.2020, insofar as it
includes the Village Administrative Officer in the amendment under Section
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W.P.No.10465 of 2020
13(h) to the Chain Survey and Land Records Manual, Part II, Chapter I, has
filed the present writ petition.
2. The petitioner, in the affidavit filed in support of this writ petition,
has averred as follows:
2.1. The petitioner Association is a registered body and is duly
recognised by the State of Tamil Nadu, vide G.O.Ms.No.896, P&AR (Per.K)
Department dated 26.08.1981. "Survey" works forms an integral part of
orderly administration. The Survey and Land Reforms Department is in
existence for over 217 years. The said department is technical and manned
by persons well equipped with modern instruments and infrastructures to
measure the area/extent of land, division of plots, villages, towns as well as
cities.
2.2. The post of Firka Surveyor is a promotional post from the post of
Field Surveyor and the minimum qualification for appointment as Firka
Surveyor is that an individual should have to passed Firka Surveyor Test
Paper I & II, conducted by Tamil Nadu Public Service Commission and has to
complete probation in the category of Field Surveyor.
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2.3. The present controversy pertains to empowerment of Village
Administrative Officer in matters concerning transfer of patta. Patta transfer
involves two categories i.e., (i) Full field transfer and (ii) Part field transfer.
From time immemorial, the procedure is that the Firka Surveyor shall prepare
subdivision records based on enjoyment, enquiry, and based on the chain of
documents for effective sub division.
2.4. The post of Firka Surveyor is deputed to Taluk Offices for
maintaining land revenue records. A Firka Surveyor is obligated to bring
post-survey changes in occupation and registry up to date as it is the very
basis of revenue administration. The subdivision work is the primary and sole
duty of Firka Surveyor in the maintenance wing. The duties and
responsibilities have been formulated in various rules, orders etc., and the
same had been affirmed by the Director of Survey & Settlement /2nd
respondent herein in Circular No.K3/41559/87 (Survey) dated 15.05.1989.
2.5. The first respondent, vide Lr.(Ms.)No.497 dated 26.12.2018, has
issued a clarification letter to the second respondent stating that the Village
Administrative Officer may also be allowed to participate in the request for
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W.P.No.10465 of 2020
measurement of field involving subdivision for transfer of names of the
Pattadar during field inspection of Firka Surveyor and the Village
Administrative Officer should be given the date of field inspection of the Firka
Surveyor. A consequential order has been issued by the first respondent dated
03.01.2019 to the second respondent stating that Tahsildar should consider
the objections of the Village Administrative Officers at the time of field
inspection and while passing orders, a copy of the Town Survey Land
Records should be marked to Village Administrative Officers and the second
respondent was directed to give necessary instructions to the concerned in this
regard.
2.6. The job of a Surveyor is technical and only qualified persons will
be able to handle it. A Firka Surveyor's post is promotional in nature and is
equivalent to the post of Assistant Revenue Inspector. The educational and
technical qualification required for a Firka Surveyor is that he/she should pass
the departmental exams, i.e., Field Surveyor Test I and II and should have
served as a Field Surveyor for a minimum period of two years and should
have completed the period of probation. On the contrary, the post of Village
Administrative Officer does not require any technical knowledge. The job
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merely requires them to collect general data, cultivation entries etc., and a
pass in SSLC or its equivalent is enough and he/she should have qualified in
the written examination and personal interview conducted by Group IV
TNPSC.
2.7. The petitioner Union has made various representations to the
respondents stressing upon the nature of work of Firka Surveyor and
requested the Government not to demean the status, equating with the Village
Administrative Officer. It requires expertise in draftmanship and operation of
modern scientific equipment, analysation of data downloaded from satellite,
theodelite survey etc. A person cannot learn in a month's training. As far as
the nature of work is involved, it commences from preliminary cadastral
survey, boundary demarcation, traverse survey, computation plotting, field
demarcation and measurement, plotting of village map and finishing village
map area and computation. The Tamil Nadu Survey and Boundaries Act,
1923 [in short "TNSB Act"] confers certain responsibility upon the survey
department. Their work is taken to be final or even conclusive survey,
includes all operations identical to the determination, measurement record of
boundaries.
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2.8. The term 'Survey Officer' is defined under Section 2(ix) of TNSB
Act as one appointed under Section 4 of the Act. The Survey Officer has the
power under Section 9 to determine and record undisputed boundary in
respect of which no dispute is brought to his notice. Under Section 9(2),
every decision of the survey officer under Section 9(1) shall be given in a
prescribed manner to the registered holders of land, whose boundaries may be
affected by the decision. Likewise, in disputed cases, the survey officer shall
determine the boundary and record it in accordance with the decision. Any
person affected by the decision under Section 9 or Section 10 may appeal to
the prescribed officer in the manner provided under Section 11.
2.9. Without appreciating the limited scope of powers of the Village
Administrative Officer, the Government of Tamil Nadu amended the Tamil
Nadu Survey and Boundaries Act under Section 13, including the Village
Administrative Officer as a part of G.O.Ms.No.173 dated 26.03.2020 under
Section 13(h) of the amendment to Chain Survey and Land Records Manual.
The exercise of power to modify including the Village Administrative Officer
is wholly without authority and the Act does not permit involving the Village
Administrative Officers. The subordinate legislation cannot override the object
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of the enactment. Challenging the same, the present writ petition has been
filed.
3. The second respondent has filed a detailed counter affidavit stating
as follows:
3.1. Involving Village Administrative Officers and Licensed Surveyors
in the disposal of OPD-ISD applications is intended only for expeditious
disposal of the pending applications. For involving VAOs in the Survey
works depending upon necessity in future, issuance of amendment to the
'Chain Survey and Land Records Manual – Part II' was required. Therefore,
G.O.Ms.No.173, Revenue and Disaster Management Department dated
26.03.220 came to be issued and accordingly, a training schedule covering all
the essential works related to disposing of OPT-ISD applications was issued
in the impugned Government Order.
3.2. VAOs are neither thought as replacement to Firka Surveyors nor
there is any proposal for engaging them in full time survey works. Further,
Sub-Division records prepared by VAOs will be scrutinized by Land Records
Draftsman and the field work done by VAOs will be super checked by the
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W.P.No.10465 of 2020
Deputy Inspectors of Survey and to some extent by Tahsildars also. Wherever
necessary, Firka Surveyors will also be used by the Tahsildars to super check
the field measurements done by VAOs in order to ensure accuracy of survey.
3.3. The steps taken by the Government were not with the intention to
demean or to ignore the importance of the illustrious services rendered by
Firka Surveyors. Land Survey has been integral part of the Revenue
Department from time immemorial. Hence the impugned Government Order
was issued with an intention to increase manpower so as to expedite the
disposal of pending 6.4 lakh OPT-ISD applications. The Madurai Bench of
Madras High Court in W.,P.No.7746 of 2020 dated 19.08.2020 has also
directed the Government for expeditious disposal of the pending OPT-ISD
applications and directed to file a report.
3.4. The current duties of Firka Surveyors and the standard operating
procedures for Patta transfers have not at all been changed through the
impugned order. The impugned Government Order was issued only to ensure
speedy disposal of the pending applications and also to stop the piling up of
patta transfer applications in future.
4. Mr.V.Raghavachari, learned counsel for the petitioner made the
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following contentions/submissions:
(i) The study of surveying involves higher educational
qualification and experience to enable the Village
Administrative Officer to discharge the duty of Firka Surveyor
is wholly arbitrary, reckless and irresponsible.
(ii) The amendment of the Rules giving one month training and
conferring power on the Village Administrative Officer is
legally incorrect. The Village Administrative Officer belongs to
Group IV Service post under Tamil Nadu Ministerial Service
Rules and he cannot aspire to be a Firka Surveyor which
involves higher qualification and governed by a different set of
Rules.
(iii)Rules cannot be amended to violate Section 4 of the Tamil
Nadu Survey and Boundaries Act.
(iv)Village Administrative Officer is not a part of the survey.
The subdivision of fields involves very intricate work is
technical in nature and Firka Surveyor with such technical
knowledge can perform the same and a Village Administrative
Officer is not qualified to perform the work of a Firka Surveyor.
(v) The Village Administrative Officer belongs to Revenue
Department i.e., different from that of Survey Department. The
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Village Administrative Officer is not an entry-level authority,
but is the custodian of revenue records.
(vi) Even a Licensed Surveyor with higher qualification of
Diploma in Civil Engineering are given 3 months training in
Survey indicating modern techniques such as verification of the
accuracy of survey data, including measurements and
calculations adopted at survey sites, preparation and
maintenance of sketches, maps, reports and legal descriptions
of surveys in order to describe, certify and assume liability for
work performed, determination of longitudes and latitudes of
important features and boundaries in survey areas, using
theodolites, transits, levels and satellite based global
positioning system (GPS) etc. Such intricate work, which is
technical in nature, cannot be performed by a Village
Administrative Officer who is given only a basic survey training
for 30 days.
(vii) The very issuance of the impugned Government Order is
against the Rules and object of the Statute.
The learned counsel for the petitioner, in support of his submissions, has
placed reliance on the decision in Umesh Chand Vinod Kumar and Others v.
Krishi Utpadan Mandi Samiti, Bharthana and another [1983 SCC Online
All 638].
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5. Mr.R.Shunmugasundaram, learned Advocate General assisted by
Mr.T.Chezhiyan, Additional Government Pleader for the respondents 1 and 2
has drawn the attention of this Court to the counter affidavit and the
additional counter affidavit of the second respondent and made the following
contentions/submissions:
(i) The writ petition itself is not maintainable, as it relates
to service matter and the petitioner has no locus standi to
challenge the impugned Government Order and further added
that the petitioner's service conditions or their right for seniority
/ promotion will not be affected by virtue of the impugned
Government Order.
(ii) It is not correct to say that VAOs are not technically
qualified to do survey of lands. The minimum general
educational qualifications for both VAO and Firka Surveyor is a
pass in SSLC and therefore, there is no question of technical
qualification during recruitment. Subsequent to appointment,
field Surveyors are provided with Survey Training for 60 days
and VAOs are provided with Survey Training for 30 days.
(iii) VAOs are the custodian of land records in village.
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The measurements and drawing work done by VAOs will be
scrutinized by Land Records Draftsman and field work done by
VAOs will be supervised by Deputy Inspectors of Survey and
Tahsildars and therefore, VAOs by themselves do not issue any
Patta transfer orders. Additionally, as per the impugned
Government Order, it is proposed to impart refresher survey
training to all VAOs for 7 days in addition to the initial training
of 30 days along with rich experience they have gained over the
years in assisting the Surveyors as and when called for. Hence,
they can process the OPD-ISD applications without any
difficulties.
(iv) Currently, around 1.5 lakh OPT-ISD applications per
month are received. With the current manpower, only around
1.25 lakh OPD-ISD applications could be disposed of per
month. The remaining 25,000 OPT-ISD applications are adding
up to the pendency every month. Since Surveyors are involved
in the following other works also, their out turn could not be
increased beyond a limit and hence, pendency of applications
keeps on increasing.
(v) Action has been taken to fill up 810 vacancies in the
post of Field Surveyor and it will take at least 3 to 6 months to
get candidates allotted through TNPSC and it will take 3 more
months to impart them survey training before they could be
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engaged in Online Patta Transfer or any other survey work.
(vi) This Court in W.P.No.7746 of 2020 filed before the
Madurai Bench of Madras High Court had issued orders to
clear the pendency of OPT applications before December, 2021
and to report compliance as final chance and due to shortage of
manpower, the order could not be complied with so far and
therefore, prays for vacating the interim order passed by this
Court in WMP.No.12723 of 2020 in W.P.No.10465 of 2020
dated 13.08.2020.
The learned Advocate General, in support of his submissions, has placed
reliance upon the following decisions:
(i) Bharathidasan University Backward Class and Most Backward
Class Employees Association v. The State of Tamil Nadu and Ors.
[Manu/TN/0647/20150 – Order dated 24.03.2015 passed in
W.P.(MD)No.3846 of 2012]
(ii) The Secretary to Government and others v. The Tamil Nadu Higher
Secondary Vocational Teachers Welfare Association [W.A.No.1792
of 2017 dated 28.03.2018]
6. Mr.G.Elanchezhiyan, learned counsel for the implead petitioner in
WMP.No.16414 of 2020 would submit that the writ petition was filed by the
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Surveyor Association and sought for relief as against VAOs and without
impleading the VAO Association, the Surveyor Association has filed the above
writ petition and obtained interim stay until further order against the
operation of G.O.(Ms.)No.173, Revenue and Disaster Management
Department, Survey and Settlement Wing dated 26.03.2020 and it is not only
illegal, but also against law and therefore, writ petition itself is liable to be
dismissed on the ground of non-joinder of necessary parties. The learned
counsel has relied upon the following decisions:
(i) Trained Nurses Association of India v. Union of India
& Ors. [2016 (1) Supreme 622] ;
(ii) Full Bench Order dated 06.03.1989 in W.A.No.595 of
1983 [Tamil Nadu Panchayat Development Officers
Association, Madras v. The Secretary to Government of
Tamil Nadu Rural Development and Others]
(iii) Tamil Nadu Computer SC B.Ed. G.T.Welfare Society
v. Higher Sec. School Computer Tech. Assn. & Others
[2009 (5) Supreme 421]
(iv) Vellakoil Vattara Vari Seluthuvor Nalvalvu Sangam v.
State of Tamil Nadu [2006 (2) CTC 705].
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7. This Court has considered the submissions made and also perused
the entire materials placed before it.
8. The primordial contention of the petitioner Association is that
without appreciating the limited scope of powers of the Village Administrative
Officer, the Government of Tamil Nadu amended the Tamil Nadu Survey and
Boundaries Act under Section 13 including the Village Administrative Officer
as a part of G.O.Ms.No.173, Revenue and Disaster Management Department
dated 26.03.2020 under Section 13(h) of the amendment to Chain Survey and
Land Records Manual and such exercise of power to modify including the
Village Administrative Officer is wholly without authority and the Act does
not permit involving of the Village Administrative Officers in the process of
surveying. According to the respondents, the writ petition itself is not
maintainable, as it relates to service matter and the petitioner Association has
no locus standi to challenge the impugned Government Order and further
added that the petitioner's service conditions or their right for seniority /
promotion will not be affected vide the
impugned Government Order and it is also not correct to say that VAOs are
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not technically qualified to do survey of lands. It is argued by the learned
Advocate General that the minimum general educational qualifications for
both VAO and Firka Surveyor is a pass in SSLC and therefore, there is no
question of technical qualification during recruitment and subsequent to
appointment, field Surveyors are provided with Survey Training for 60 days
and VAOs are provided with Survey Training for 30 days.
9. According to the respondents, currently around 1.5 lakhs OPD – ISD
applications are received and with the current manpower, only around 1.25
Lakh applications could be disposed of per month and the remaining 25000
OPT-ISD applications are adding up every year and since surveyors are
assigned with many works, their out turn could not be increased beyond a
limit and hence, in order to reduce the pendency and to comply with the order
passed by the Madurai Bench of this Court in W.P.No.7746 of 2020, the
present amendment has been brought to Tamil Nadu Survey and Boundaries
Act, 1923 and it cannot be found fault with.
10. According to Niranjan Rajagopalan, learned counsel for the
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impleading petitioner, as regards the maintainability of the writ petition, the
decision relied on by the learned counsel for the petitioner would not apply to
the facts of the present case. Even according to the implead petitioner / VAO,
the writ petitioner has no locus standi to challenge the impugned Government
Order and the post of VAO is less than Firka Surveyor and therefore, it cannot
be equated with Firka Surveyor and the mode of recruitment and qualification
required for each post is entirely different and the impugned Government
Order will not deprive the rights of the petitioner in promotional opportunities
and the role of VAO is on subdivision of already existing land parcels and
therefore, no prejudice would be caused if the implead petitioners made to
undergo training to discharge their duties in respect of subdivision of existing
land parcels and therefore, seeks for dismissal of these writ petitions.
11. This Court finds considerable force in the submission made by the
learned Advocate General that the impugned Government Order proposing to
impart refresher survey training to all VAOs for 7 days in addition to initial
training of 30 days along with rich experience they have gained over the years
in assisting the Surveyors as and when called for and therefore, they can
process OPT-IS applications without any difficulties and it will help in
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expediting the work and facilitate the public at large in getting their land
records properly mutated. Therefore, no prejudice would be caused to the
petitioners by affecting their service or promotional opportunities.
12. In respect of maintainability of the writ petition, the learned
Advocate General has relied upon the decision in Bharathidasan University
Backward Class and Most Backward Class Employees Association v. The
State of Tamil Nadu and Ors. [Manu / TN / 0647/2015]. It is useful to
extract the following portions of the said order of the learned Single Judge of
this Court :
“15. For this proposition, the learned Senior Counsel
relied on the following Judgments:
(i) A.B.S.K. Sangh (Rly.) Vs. Union of India and
Others [AIR 1981 SC 298], wherein in paragraph 63, it has
been held as follows:
"63. A technical point is taken in the counter-affidavit
that the 1st Petitioner is an unrecognised association and
that, therefore, the petitioner to that extent, is not sustainable.
It has to be overruled. Whether the petitioners belong to a
recognised union or not, the fact remains that a large body of
persons with a common grievance exists and they have
approached this Court under Article 32. Our current
processual jurisprudence is not of individualistic Anglo-
Indian mould. It is broad-based and people-oriented, and
envisions access to justice through “class actions”, “public
interest litigation” and “representative proceedings”. Indeed,
little Indians in large numbers seeking remedies in courts
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through collective proceedings, instead of being driven to an
expensive plurality of litigations, is an affirmation of
participative justice in our democracy. We have no hesitation
in holding that the narrow concept of “cause of action” and
“person aggrieved” and individual litigation is becoming
obsolescent in some jurisdictions. It must fairly be stated that
the learned Attorney-General has taken no objection to a
non- recognised association maintaining the writ petitions."
(ii) State Bank of Bikaner and Jaipur Vs. State Bank
of Bikaner and Jaipur Employees [CDJ 1991 MHC 601 :
1993 (1) LLJ 57], wherein in paragraph 9, it has been held as
follows:
"9. ..... Mandamus cannot be denied on the ground that
the duty to be enforced is not imposed by the statute.
Commenting on the development of this law, Professor De
Smith states : "to be enforceable by mandamus a public duty
does not necessarily have to be on imposed by statute. It may
be sufficient for the duty to have been imposed by charter,
common law, custom or even contract. (Judicial Review of
Administrative Act 4th Ed. p.540). We share this view. The
judicial control over the fast expanding maze of bodies
affecting the rights of the people should not be put into
watertight compartment. It should remain flexible to meet the
requirements of variable circumstances. Mandamus is a very
wide remedy which must be easily available 'to reach injustice
wherever it is found'. Technicalities should not come in the
way of granting that relief under Art. 226. We, therefore,
reject the contention urged for the appellants on the
maintainability of the writ petition."
(iii) Andhra Pradesh Scheduled Tribes Vs. Aditya
Pratap Bhanj Dev and Others [2001 (6) ALD 582 : 2001 (6)
ALT 433], wherein in paragraph 25, it has been held as
follows:
"25.In WADHWA'S case (supra), fraud on the
Constitution was alleged against State of Bihar in
promulgating and re-promulgating Ordinances. The Supreme
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Court observed that every citizen has a right to be governed
by validly made laws and when fraud on the Constitution is
committed every citizen can complain to a Constitutional
Court. In view of this, it is futile to contend in a matter of this
nature that a ST. Welfare Association has no locus standi to
approach this Court. We should not lose sight of the
constitutional scheme whereunder the role of protecting the
citizens including SCs and STs from invasion of their rights is
assigned to the Courts. Accordingly, we hold that the case
involves public interest and the petitioner-association has
locus standi to file this writ petition. Point No.1 is answered
accordingly."
(iv) The Managing Director, Tamil Nadu Water Supply
and Drainage Board and another Vs. Tamil Nadu Kudineer
Vadikal Variya Oozhiyar Sangam [2010 (2) CWC 740 (DB)],
wherein in paragraphs 3 and 5, it has been held as follows:
"3. The learned Counsel appearing for the Appellant
has relied upon the decision in Tamilaga Asiriyar Koottani,
represented by the General Secretary, V.Annamalai Vs. The
Government of Tamil Nadu, represented by its Secretary,
2005 (3) MLJ 252. In the said decision, direction given to fill
up the posts of headmasters in the upgraded schools from
headmasters in Elementary Schools was challenged by the
Association for teachers wherein the Hon'ble First Bench of
this Court has held as follows:
"15. In our opinion, if any Educational Institution or
headmasters or teacher is aggrieved by the impugned
G.O.Ms.No.13, dated 9.2.2005, they can file a Writ Petition in
this Court challenging the same, but the Appellant-
Association had no locus standi in the matter. It cannot be
said that the Educational Institutions or headmasters are so
poor that they are unable to approach this Court. If any
particular Educational Institution or headmaster has a
grievance against the impugned G.O.Ms.No.13, dated
9.2.2005, it is for such person to file a Writ Petition or Writ
Appeal, and not for any Association. The Writ Appeal is
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dismissed on the ground of lack of locus standi. The Writ
Petition is dismissed for the same reason. W.A.M.P.No.1384 of
2005 is dismissed."
5. In such view of the matter, in our considered opinion,
the order of the learned Single Judge cannot be sustained on the
ground of maintainability of the Writ Petition by the association
of the employees. It is no doubt true that as and when the
individual employees are affected by any order passed, it is for
them to work out their remedies in the manner known to law."
(v) Dr.D.C.Wadhwa and others Vs. State of Bihar and
Others [AIR 1987 SC 579], wherein in paragraph 3, it has
been held as follows:
"3. .... The rule of law constitutes the core of our
Constitution and it is the essence of the rule of law that the
exercise of the power by the State whether it be the
Legislature or the Executive or any other authority should be
within the constitutional limitations and if any practice is
adopted by the Executive which is in flagrant and systematic
violation of its constitutional limitations, Petitioner No.1 as a
member of the public would have sufficient interest to
challenge such practice by filing a writ petition and it would
be the constitutional duty of this Court to entertain the writ
petition and adjudicate upon the validity of such practice. We
must therefore reject the preliminary contention raised on
behalf of the respondents challenging the locus of the
petitioners to maintain these writ petitions."
(vi) Tamil Nadu Co-operative Subordinate Officers'
Association Vs. Government of Tamil Nadu and Others
[2003 (3) CTC 193], wherein in paragraphs 11 and 12, it has
been held as follows:
"11.With regard to the first objection, viz., the
petitioner/association neither have locus standi nor any cause
of action, it is trite law that technical flaw will not be allowed
to defeat the cause the petitioner seeks to justify. Broader
conception of locus standi and liberal approach to
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procedural technicalities has obtained the seal of the Apex
Court long back, vide Mumbai Kamgar Sabha Vs. Abdulbhai
Faizullabhai, AIR 1976 SC 1455. This Court is concerned
only on the substance of the matter and not the formal
defects. Procedural prescriptions are handmaids, not
mistresses, of justice and failure of fair play is the spirit in
which Courts must view processual deviances. Representative
actions and the broadened forms of legal proceedings are in
keeping with the current accent on justice to the common man
and a necessary disincentive to those who wish to bypass the
real issues on the merits by suspect reliance on peripheral,
procedural shortcomings. Article 226 of the Constitution of
India, viewed in wider perspective, may be amenable to
ventilation of collective or common grievances, as
distinguished from assertion of individual rights, although
the traditional view, backed by precedents, has opted for the
narrower alternative. Public interest is promoted by a
spacious construction of locus standi in our socio-economic
circumstances and conceptual latitudinarianism permits
taking liberties with individualisation of the right to invoke
the higher Courts where the remedy is shared by a
considerable number, particularly, when they are weak. Less
litigation, consistent with fair process, is the aim of adjectival
law.”
12. The learned Advocate General, of course, pointed out
that the Government has not even furnished with the names of
the members of the petitioner associations. In my considered
opinion, in the matter of this nature, where the rights of
numerous Government servants is alleged to have been
prejudiced, it may not be proper for this Court to frustrate the
claim of the Government Servants, merely on the ground of
vagueness, assuming it exists, accepting the subversive
technicality."
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W.P.No.10465 of 2020
(vii) Umesh Chand Vinod Kumar and Others Vs.
Krishi Utpadan Mandi Samiti, Bharthana and another [AIR
1984 ALLAHABAD 46], wherein in paragraphs 20 and 45, it
has been held as follows:
"20. To summarise, the position appears to be that an
association of persons, registered or unregistered, can file a
petition under Article 226 for enforcement of the rights of its
members as distinguished from the enforcement at its own
rights--
(1) In case members of such an association are
themselves unable to approach the court by reason of poverty,
disability or socially or economically disadvantaged position
"little Indians".
(2) In case of a public injury leading to public interest
litigation provided the association has some concern deeper
than that of a way-farer or a busybody i.e. it has a special
interest in the subject-matter. (3) Where the rules or regulations
of the association specifically authorise it to take legal
proceedings on behalf of its members, so that any order passed
by the court in such proceedings will be binding on the
members.
45. Our answer to the referred questions is as follows:-
A.1- The position appears to be that an association of
persons, registered or unregistered, can file a petition under
Article 226 for enforcement of the rights of its members as
distinguished from the enforcement of its own rights-
(1) In case members of such an association are
themselves unable to approach the Court by reason of poverty,
disability or socially or economically disadvantaged position
("little Indians").
(2) In case of a public injury leading to public interest
litigation; provided the association has some concern deeper
than that of a way-farer or a busybody i.e., it has a special
interest in the subject matter. ......."
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(viii) West Bengal Head Masters' Association and another
Vs. Union of India and Others [AIR 1983 CALCUTTA 448],
wherein in paragraph 16, it has been held as follows:
"16.The second objection is directed against the locus
standi of the appellants -- West Bengal Head Masters'
Association and the West Bengal Guardians' Association. The
appellant No. 1 is an Association registered under the Societies
Registration Act. It is contended on behalf of the Board that
these two Associations are not affected by the impugned revised
syllabus, and that they cannot have any legal right. It is difficult
to accept such a contention. Both these Associations are
interested in the education of the boys and girls of the State
and, if according to them, the syllabus has not been properly
prepared they have, in our opinion, locus standi to file a writ
petition. In our view, any person interested in education may
come to the High Court complaining about any irregularity or
illegality committed by a statutory body entrusted with the
education of children and seeking relief against such
irregularity or illegality. There is, therefore, no substance in the
contention of the respondents and it is rejected."
16. Per contra, the learned Special Government Pleader
appearing for the second respondent argued that the petitioner
has no locus standi to maintain the writ petition. Even after
enlargement of scope of locus standi, the issue raised by the
petitioner does not enable the petitioner to file the writ petition.
An Association has no right to maintain a writ petition in
service matters.
17. In support of his submission, the learned Special
Government Pleader relied on the following Judgments:
(i) Mahinder Kumar Gupta and Others Vs. Union of
India [1995 (1) SCC 85], wherein in paragraph 6, it has been
held as follows: "6. Under these circumstances, we find no
arbitrariness or unjustness in prescription of the guidelines for
the eligibility criteria. The second writ petition stands liable to
be dismissed on the sole ground that the Association cannot file
a writ petition as it has no fundamental right under Article 32 of
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W.P.No.10465 of 2020
the Constitution. One of the petitioners/appellants has claimed
as having partnership, but the details thereof have not been
given. We, therefore, dismiss the appeal as well as the writ
petitions with costs quantified at Rs.20,000 each."
(ii) Tamilaga Asiriyar Koottani Vs. The Government of
Tamil Nadu and Others [2005 Writ L.R. 389], wherein in
paragraph 15, it has been held as follows:
"15. In our opinion, if any Educational Institution or
Headmaster or Teacher is aggrieved by the impugned
G.O.Ms.No.13, dated 9.2.2005, they can file a Writ Petition in
this Court challenging the same, but the Appellant- Association
had no locus standi in the matter. It cannot be said that the
Educational Institutions or Headmasters are so poor that they
are unable to approach this Court. If any particular Educational
Institution or Headmaster has a grievance against the impugned
G.O.Ms.No.13, dated 9.2.2005, it is for such person to file a
Writ Petition or Writ Appeal, and not for any Association. The
Writ Appeal is dismissed on the ground of lack of locus standi.
The Writ Petition is dismissed for the same reason.
W.A.M.P.No.1384 of 2005 is dismissed."
(iii) Madras University Most Backward Class (MBC)
Staff Welfare Association Vs. The Chancellor of Alagappa
University and Others [W.P.(MD) No.11593 of 2012, dated
28.08.2012], wherein in paragraphs 2 and 3, it has been held
as follows:
"2. In view of the law laid down by this Court in Tamil
Nadu Public Works Department and Highway Employees
Union Versus State of Tamil Nadu and Other [W.P.No.41633 of
2006, decided on 23.11.2011) the Writ Petition in service
matter on behalf of association is not competent.
3. This order shall not prevent the members of the
association to get their grievance addressed either by filing a
joint or separate Writ Petition if so advised. Dismissed. No
costs. Consequently, connected M.Ps. are closed."
18. A careful reading of all the above Judgments,
makes it clear that an Association either registered or
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W.P.No.10465 of 2020
unregistered, can file a writ petition under Article 226 of the
Constitution of India on behalf of its members taking the
cause of its members only if,
(a) the members themselves are unable to approach
the Court by reason of poverty, disability or socially or
economically in a disadvantaged position, who are termed as
"Little Indians"; and
(b) in case of public injury leading to public interest
litigation provided the Association has some concern deeper
than that of a way-farer or a busy body.
19. The petitioner has filed the present writ petition on
behalf of its members. The members of petitioner
Association are employees of the second respondent
University. Therefore, they cannot be termed as poor,
disabled or disadvantaged to approach this Court
individually. The contentions of the learned counsel for the
respondents that the members of the petitioner Association
are not aggrieved persons; the respondents 4 to 19 were
appointed in the quota meant for direct recruitment; the
communal roster was followed; the respondents 4 to 9 were
appointed following the Regulations and procedure laid
down by the Statutes, the petitioner cannot maintain the
present writ petition in service matter, have considerable
force. (emphasis supplied)
20. The three judgments relied on by the learned Special
Government Pleader appearing for the second respondent are
squarely applicable to the facts of the present case.”
A careful reading of all the above Judgments, makes it clear that an
Association either registered or unregistered, can file a writ petition under
Article 226 of the Constitution of India on behalf of its members taking the
cause of its members only if, (a) the members themselves are unable to
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approach the Court by reason of poverty, disability or socially or economically
in a disadvantaged position, who are termed as "Little Indians"; and (b) in
case of public injury leading to public interest litigation provided the
Association has some concern deeper than that of a way-farer or a busy body.
13. In the judgment dated 28.03.2018 in W.A.No.1792 of 2017 [The
Secretary to Government, Chennai-9 and Others v. The Tamil Nadu
Higher Secondary Vocational Teachers Association], the Hon'ble Division
Bench has observed that “There is no question of entertaining the writ
petition at the instance of the Association in a Service Matter and
directing the Government to grant the benefits to the members of the
Association. Nothing prevented the employees who worked as Vocational
Instructors to approach the Court for appropriate relief. Since it is a
service matter, the concerned employee has to approach the Court. There
is no locus standi for the Association to approach the Court for the
purpose of giving service benefits to its members...”
14. Admittedly, in the case on hand, the present writ petition has been
filed on behalf of its members and the members of the petitioner's Association
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W.P.No.10465 of 2020
are employees of the Survey & Settlement Department and they cannot be
presumed to be poor, disabled or disadvantaged to approach this Court
individually. In the light of the aforesaid decision of the learned Single Judge
of this Court in Bharathidasan University Backward Class and Most
Backward Class Employees Association (cited supra), and the Division
Bench judgment cited supra, the writ petition which pertains to service
matter, is not maintainable.
15. In the light of the above discussions and following the decision of
the Division Bench of this Court cited supra the contention of the petitioner
cannot be countenanced and this Court is of the view that the petitioner
Association has no locus standi to challenge the impugned Government
Order and therefore, the present writ petition is not maintainable and deserves
dismissal.
16. In the result, this Writ Petition stands dismissed. No costs.
Interim Order already granted stands vacated and consequently, connected
miscellaneous petitions are also dismissed.
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W.P.No.10465 of 2020
28.04.2022
Index : Yes / No
Internet : Yes / No
Jvm
To
1.The Government of Tamil Nadu,
Represented by the
Additional Chief Secretary to Government,
Revenue & Disaster Management Department,
Fort St.George, Chennai-600 009.
2.The Director of Survey & Settlement,
“Survey House”, Chepauk, Chennai-600 005.
D.KRISHNAKUMAR. J
Jvm
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W.P.No.10465 of 2020
Order in
W.P.No.10465 of 2020
28.04.2022
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