All Odisha Additional Computer ... vs State Of Odisha
2024 Latest Caselaw 16225 Ori

Orissa High Court

All Odisha Additional Computer ... vs State Of Odisha on 5 November, 2024

         IN THE HIGH COURT OF ORISSA AT CUTTACK

                           W.P.(C) No.13557 of 2024


All Odisha Additional Computer Programmers Association
(AOACPA), represented by its President Manas Ranjan Dash, aged
about 38 years, S/O- Rama Chandra Dash, Karmachari Bhawan,
Behind A.D.M. Office, Block No.10, Unit-5, Bhubaneswar-750001,
Dist- Khordha.

                                                            ...Petitioner
                                 -Versus-

1.    State of Odisha, represented by the Principal Secretary to the
Government, General Administration Department, Loka Seva Bhawan,
Sachibalaya Marg, Bhubaneswar, Dist- Khordha.

2.    The Principal Secretary to Government, Panchayati Raj &
Drinking Water Department, Loka Seva Bhawan, Sachibalaya Marg,
Bhubaneswar, Dist- Khordha.

                                                      ...Opposite Parties



Advocates appeared in the case:

For the Petitioner              : Mr. Manoj Kumar Mohanty, Advocate


For Opposite Parties            : Mr. M.K. Khuntia,
                                  Additional Government Advocate


W.P.(C) No.13557 of 2024                                   Page 1 of 11
 CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MISS JUSTICE SAVITRI RATHO

JUDGMENT

05.11.2024

Chakradhari Sharan Singh, CJ.

The petitioner, in the present writ petition filed under Article

226 of the Constitution of India, claims to be an association of

Computer Programmers, who have been appointed on contractual basis

in 314 Blocks of the State of Odisha. It claims that the cause of action

being the same for all the Additional Computer Programmers working

in the State of Odisha, they have filed the present writ petition through

their Association. It has also been asserted that the petitioner-

association is affiliated to Odisha State Non-gazetted Officers

Coordination Committee which functions within the territorial

jurisdiction of this Court.

2. The petitioner is admittedly an un-registered body which has

approached this Court invoking writ jurisdiction questioning the

constitutionality of Rule 4 of the Odisha Accountant-cum-Date Entry

Operator (Method of Recruitment and Conditions of Service) Rules,

2024 (in short, 'the Rules') prescribing provision for recruitment and

governing service conditions of Accountant-cum-Date Entry Operator.

Rule 4 of the Rules reads thus:

4. Methods of recruitment:-

(1) Not less than 70% of the Cadre strength shall be filled up by way of direct recruitment through the Commission and

(2) Not more than 30% of the Cadre strength shall be filled up by means of selection of the eligible GRS engaged under MGNREGA Scheme."

3. Asserting the factual background in the writ petition, in which

the Additional Computer Programmers were engaged under NREGA in

various panchayats in the State of Odisha, the petitioner-association

has sought for the following relief:

"The petitioner most respectfully prays that the Hon'ble Court may be graciously pleased to allow the writ petition, issue a writ of direction in the nature of certiorari or any other appropriate writ or direction quashing the Rule-4(1) of the Odisha Accountant-cum- Data Entry Operator (Method of Recruitment and Conditions of Service) Rules, 2024 under Annexure-4 and further issue a writ or direction in the nature of mandamus or any other appropriate writ or direction to the Opp. Parties to keep 30% Reservation for the eligible Additional Computer Programmers in the cadre strength in the post of Accountant-cum-Data Entry Operator (Method of Recruitment and Conditions of Service) Rules, 2024 for their appointment or to regularize their service as Additional Computer Programmers and pass such other or further order or orders as are deemed just and proper."

4. It can be easily called out from above that the petitioner which

is an un-registered association is seeking the following reliefs:-

(i) Rule 4(1) of the Odisha Accountant-cum-Date Entry Operator

(Method of Recruitment and Conditions of Service) Rules, 2024 be

declared arbitrary and therefore, unconstitutional;

(ii) The opposite parties be directed to reserve 30% of the posts of

Accountant-cum-Data Entry Operator for eligible Additional Computer

Programmers; or

(iii) Regularize the services of the members of the association as

Additional Computer Programmers.

5. Though arguments have been advanced on merits assailing the

legality of the impugned statutory provision, the foremost question in

the present case is; whether an unregistered association of persons can

maintain the writ petition under Article 226 of the Constitution of India

for enforcement of rights of its members seeking the reliefs of the

nature noted above. Apparently, the association is not claiming its own

rights.

6. Existence of right of a juristic person is the foundation of

exercise of the jurisdiction under Article 226 of the Constitution of

India. In case of Charanjit Lal Chowdhury v. The Union of India:

AIR 1951 SC 41, the Supreme Court has laid down that a legal right

that can be enforced under Article 32 of the Constitution must

ordinarily be the right of the petitioner itself who complains of

infraction of such right. In case of Calcutta Gas Company

(Proprietary) Ltd. v. State of West Bengal: AIR 1962 SC 1044, the

Supreme Court has clarified that the said principle in case of Charanjit

Lal Chowdhury (supra) equally applies to a petition under Article 226

of the Constitution. The said principle has been reiterated by the

Supreme Court in the case of Gadde Venkateswara Rao v. Govt. of

A.P.: AIR 1966 SC 828.

7. A full Bench of the Allahabad High Court in case of Umesh

Chand Vinod Kumar v. Krishi Utpadan Mandi Samiti, Bharthana:

AIR 1984 All 46 has, dealt with this question including the question

whether an association of persons, registered or unregistered can

maintain a writ petition under Article 226 of the Constitution of India

for enforcement of the rights of its members, as distinguished from the

enforcement of its own rights. Noticing the Supreme Court's decisions

in case of The State of Orissa v. Madan Gopal Rungta: AIR 1952 SC

12, Charanjit Lal Chowdhury (supra), Calcutta Gas Company (supra)

and Gadde Venkateswara Rao (supra), the Allahabad High Court in

case of Umesh Chand Vinod Kumar (supra), has summarized the

position of law in paragraph 20 as under:

"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 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.

(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."

8. After having held as above, the Allahabad High Court in case

of Umesh Chand Vinod Kumar (supra) concluded that in other cases,

an association whether registered or unregistered, cannot maintain a

writ petition under Article 226 of the Constitution of India for the

enforcement or protection of rights of its own members, as

distinguished from the enforcement of its own rights.

9. The Allahabad High Court, in case of Umesh Chand Vinod

Kumar (supra), before reaching the conclusion as noted above, has

taken into account the law laid down by the Supreme Court in case of

Fertilizer Corporation Kamagar Union (Regd.) Sindri v. Union of

India: AIR 1981 SC 344 on the question of traditional rule of locus

standi.

10. It is true that the concept of a "person aggrieved" has been

diluted in the matters of Public Interest Litigation (PIL), which has

been recognized as a tool to espouse cause of the marginalized and

oppressed. We are of the considered view that the rights under Article

226 of the Constitution can be enforced only by an aggrieved person

except in the exceptional circumstances.

11. The Supreme Court, in case of B. Srinivasa Reddy v.

Karnataka Urban Water Supply & Drainage Board Employees'

Association: (2006) 11 SCC 31(2) has quoted with approval a decision

rendered by the Rajasthan High Court in case of Parents Teachers

Association v. Chairman, Kendriya Vidyalaya Sangathan: AIR 2001

Raj 35. Paragraph 36 of the decision in case of B. Srinivasa Reddy

(supra) reads thus:

"36. In Parents Teachers Assn. v. Chairman, Kendriya Vidyalaya Sangathan [AIR 2001 Raj 35 : (2000) 6 SLR 68] speaking for the Bench, Dr. Ar. Lakshmanan, C.J., in paras 12 and 13 observed as under: (AIR pp. 38-39)

"12. The appellant-petitioners have not placed before this Court any document to show that the Parents- Teachers Association is a registered and recognised association. The writ petition has been allegedly filed in public interest and the alleged large interest of the students. It is evident that the so-called Parents- Teachers Association is an unregistered and unrecognised association and, therefore, in our view, has no fundamental right to approach this Court under Article 226 of the Constitution. This point has been concluded by the decision of the Apex Court in Mahinder Kumar Gupta [(1995) 1 SCC 85 : JT (1995) 1 SC 11] and by the decision of Full Bench of this Court in RSEB Accountants' Assn. [RSEB Accountants' Assn. v. Rajasthan SEB, (1996) 1 SLR 467 (FB)] A reply to the preliminary objection raised by the respondents was also made by the appellants. It is stated that the Parents-Teachers Association has been recognised by the KVS and that the Principal is the Vice-Chairman of the said Association and hence, the Association is competent to file the writ petition on behalf of the students. In our view, the above reason cannot be considered as a valid reason for maintaining the writ petition. It is not in dispute that the Association is not a registered body and recognised association. Thus, after examining this point of law in detail and placing reliance on various judgments delivered by the Apex Court from time to time, the Full Bench of this Court in RSEB Accountants' Assn. [RSEB Accountants' Assn. v. Rajasthan SEB, (1996) 1 SLR 467 (FB)] held as under:

'It may also be observed that an unregistered association has no fundamental right to approach this Court under Article 226 of the Constitution and this point is concluded by the decision in Mahinder Kumar Gupta v. Union of India [(1995) 1 SCC 85 : JT (1995) 1 SC 11] . A decision in Akhil Bharatiya Soshit Karamchari Sangh (Rly.) v. Union of India [(1981) 1 SCC 246 : 1981 SCC (L&S) 50 : AIR 1981 SC 298] was relied upon where the non-registered association was held to apply under Article 32 of the Constitution.

We may observe that there had been a number of instances of public interest litigation where large body of persons is having grievance against inaction of the State. Even letters have been considered to be a writ petition but all these are the matters where large section of public is affected and the personal interest of any person or a smaller section as in the present case, is not involved. Even in People's Union for Democratic Rights v. Union of India [(1982) 3 SCC 235 : 1982 SCC (L&S) 275 : AIR 1982 SC 1473] when the question of locus standi was considered, the Hon'ble Supreme Court had taken into consideration the poverty, illiteracy and the ignorance obstructing and impeding accessibility of the judicial process and on that ground it was considered that the writ petition can be filed. In D.S. Nakara v. Union of India [(1983) 1 SCC 305 : 1983 SCC (L&S) 145 : AIR 1983 SC 130] the old pensioners individually were unable to undertake journey through labyrinths of costly and protracted legal judicial process for allowing to espouse their cause. In S.P. Gupta v. Union of India [1981 Supp SCC 87 : AIR 1982 SC 149] poverty, helplessness and disability or social or economic disadvantaged position was considered a sufficient ground for maintaining the writ petition. There had been other decisions of the Apex Court as well and principles which emerge from all of them are as under:

(a) That the members of the said association should have sufficient strength so as to come in the category of a large section of public.

(b) That the members should be identifiable.

(c) That the members must be of the category of poor/illiterate/helpless or disabled.

(d) That the individual members must not be capable of filing a writ petition.

(e) That the entire body of the members must authorise the association to protect their legal rights.

(f) That such an association must have its own constitution, and

(g) That there must be authority to file a writ petition on behalf of all the members.'

13. In the instant case, none of the grounds mentioned above in (a) to (g) have been satisfied by the present appellants to maintain the writ petition. Since the above conditions are not fulfilled such an unregistered association cannot file writ petition in respect of the legal rights of the said association for the alleged breach of fundamental right as the association itself has no fundamental right of its own."

12. In such view of the matter, we hold that this writ petition is

not maintainable since the petitioner which is an un-registered

association is neither a juristic person nor has the locus standi to

maintain this writ petition.

13. Accordingly, this writ petition stands dismissed.

14. We have not gone into the merits of the case.

15. Any person aggrieved shall be at liberty to seek appropriate

remedy under the law.

                                                                         (Chakradhari Sharan Singh)
                                                                                Chief Justice

                             Savitri Ratho, J.      I agree.

                                                                                (Savitri Ratho)
                                                                                   Judge



           S. Behera




Designation: Senior Stenographer

Location: High Court of Orissa, Cuttack
Date: 06-Nov-2024 10:39:21