1. This Rule involves a dispute between two sections of the subordinate employees in the office of the Director-General of Ordnance Factories, represented by two Unions. The Petitioner is the Employees' Association which represents employees other than stenographers. The “Stenographers' Association” has been added as Respondent No. 3 at their intervention. Respondenl No. 1 is the Union of India and Respondent No. 2 is the Director-General of Ordnance Factories.
2. According to the Petitioner Association the Stenographers are outside the clerical cadre that then if no Rule authorising the promotion of Stenographers to the grade of Assistant.’ and that the Stenographers had no higher prospects in their career Administratively, however. Respondents reserved a post of Assistant-in-Charge to be filled up from the cadre of Stenographers of Grade II and on the protest of the Petitioner. Respondent No. 2 stated that it was only a “non-recurring measure” (Annexure A) which had been adopted “to remove from the minds of the Stenographers the sense of frustration which they were suffering from for not having any scope of advancement”.
3. Since 1962, the Respondents have been proposing to combine the two services by making a combined seniority list of Clerks and Stenographers and Petitioner has been making representations against the proposal. On 16-5-64, Respondent No. 1 intimated that the matter was under consideration. In spite of this, the Respondent No. 2, on 22-12-64, appointed 4 Stenographers to the posts of Assistants in the Clerical cadre against existing vacancies in the posts of Superintendents, — to the prejudice of the clerical staff (vide Annexure F), and this policy has been repeated by another series of such appointments per order at (Annexure G), dated 31-12-64. The Petitioner points out that the proposal for a merger of the two cadres of Stenographers and Assistants was rejected by the Pay Commission on the ground that the qualifications for and the nature of the work etc., of the two cadres were entirely different. The Petitioner chal lenges the aforesaid decision of the Respondents to merge the two cadres and the validity of the order of appointment at Annexure F.
4. The Petition is opposed by affidavits on behalf of Respondent 2 as well as the added Respondent No. 3.
5. Before entering into the merits of the Petition, it is necessary to dispose of the preliminary objection taken on behalf of the Respondent 3, namely, that the Petitioner, being an unincorporated association, cannot maintain an application under Article 226 and that the grievance if any of its members should be agitated in appropriate proceedings brought by them in their individual capacity.
6. The Petitioner Association is, of course, not an incorporated body but it relies on the fact that it has been ‘recognised’ by the Government according to the Central Services (Recognition of Service Associations) Rules, 1959 made in exercise of powers conferred by Article 309 of the Constitution Recognition, however, gives an employees' association only a status in its relationship and dealings with the employer i.e the Government. It has nothing to do with the representation of its members in a litigation before a Court of law. The question has therefore, to be answered on genera] principles as explained by judicial decisions.
7. In cases where the right of a collective body to bring proceedings under Article, 226 is challenged, two questions have to be answered:—
(a) Is the Petitioner a legal entity or otherwise permitted by statute to initiate legal proceedings in its own name?
(b) Has it been affected by the impugned order as a collective body?
(a) So far as the first question is concerned, it is patent that a legal proceeding may be maintained only by an individual or other body which is recognised as a legal person
8. In the case of a body incorporated by law, the corporate body acquires a illegal personality of itself and is as such entitled to maintain legal proceedings. But an unincorporated association has no legal personality and it is nothing but an aggregation of its members who can only bring legal proceedings in their individual capacity. Even when all of them are affected by an official act, they can challenge that only if all the members join in the proceedings by name; the association, in such a case, cannot maintain an application under Article 226 or other legal proceeding, in its own name, as has been established by a number of decisions (Indian Sugar Mills Assocn v. Secy, to Govt. U.P Labour Dept., AIR 1951 All 1 (FB); General Secy. Eastern Zone Insurance Employees' Assocn v. Zonal Manager, Eastern Zone Life Insurance Corporation. AIR 1962 Cal 45) and even registration under the Societies Registration Act cannot confer this right (Bangalore District Hotel Owners' Association v. District Magistrate, Bangalore. AIR 1951 Mys 14).
9. To the foregoing general rule, certain exceptions have been introduced by the provisions of certain special statutes, e.g,—
(i) A registered union is made a body corporate by Section 13 of the Trade Unions Act, 1926, and is empowered to sue and be sued in its own name.
(ii) Under the Industrial Disputes Act, 1947, an association of workmen has a right to raise industrial disputes and to represent the workmen throughout the proceedings (Ramprasad v. Chairman, Industrial Tribunal, Patna, AIR 1961 SC 857) and can thus move against an award under the Act (W.B.P.W Union v. A.U.P Works, Private Ltd., AIR 1962 Cal 649).
(iii) Under Section 47 of the Motor Vehicles Act, even an unincorporated association can make a representation in the matter of grant of a permit and can pursue that right in a proceeding under Article 226 (Sabitri Motor Service Ltd.… v. Asansol Bus Association…Opposite Party.*, AIR 1951 Cal 255 (SB)).
10. Learned Advocate for the Petitioner points out that in B.C Das Gupta v. Bejoy Ranjan, (1952) 56 Cal WN 861 : (AIR 1953 Cal 212), a petition under Article 226 was allowed to be brought against an unincorporated association, namely, the State Medical Faculty. It is to be noted, however, that decision solely rested on the interpretation of the word “person” in the expression “issue to any person” in the text of Article 226 itself; by applying the interpretation of the word ‘person’ in Section 3(39) of the General Clauses Act the Court held that under Article 226, the High Court could issue a writ even against an unincorporated association. The scope of this decision is thus confined to the question of the Respondent in a writ petition and does not answer the question as to who may be a Petitioner as to which there in no express term in Article 226 itself and the general principles have, therefore, to be applied.
11. On behalf of the Petitioners strong reliance has been placed on the fact that the cause title of the Supreme Court decision in All India Station Masters' Association v. General Manager, Central Rly., AIR 1960 SC 384 indicates that the Association was allowed to bring a petition under Article 32 and establishes that an association has got a right under Article 32 or 226 to ventilate the grievances of its members. It is to be noted, however, that the cause title of the cited case adds ‘and others’ as Petitioners and, in all probability, besides the Association, the Station Masters themselves who were affected were added as Petitioners, as would appear from the opening words of the judgment (p. 385, ibid.)—
“The petitioners who describe themselves as Road-side Station Masters challenge………….”
12. The Court did not say that the Petition had been brought by an association of Station Masters and no question as to the maintainability of the Petition by an association was raised in that case. It does not accordingly, establish that an unincorporated association can sue in its own name, in the absence of an express statutory provision in this behalf.
13. The instant Rule, therefore, deserves to be discharged on this ground alone.
14. Even where an association is permitted by law to bring a legal proceeding, it can bring an application under Article 226 only when its rights as a collective body as distinguished from the aggregate rights of its members are affected by the act challenged in the proceedings (Chiranjit Lal v. Union of India. AIR 1951 SC 41; Govt. Press Employees' Assocn. v. Govt. of Mysore, AIR 1962 Mys 25; Barrackpore Bus Syndicate… v. Sheikh Serajuddin….. AIR 1957 Cal 444, e.g, where it is already a party to the impugned order, as in AIR 1951 Cal 255).
15. On this point also, the Petition must fail because if any Stenographer is given a higher post in the Clerical line, it is only a particular Assistant who is thereby deprived of his promotion that will be individually affected and shall be competent to bring a petition under Article 226. The collective existence or interests of the association as such will not thereby be affected.
16. On the merits also, the Petitioner has little to stand upon excepting certain statements in a Government of India Manual, which has no statutory force. The test in the instant case is not the administrative practice which may be in existence for any length of time but the legal right, if any, of the Clerks to oust the Stenographers from their cadre. The Petitioner has, however, failed to prove the existence of separate cadres for Clerks and Stenographers, in rebuttal of the statement in paragraph 4 of the counter-affidavit that both clerks and stenographers belong to Class III ministerial service. The Pay Commission's observations as to the difference in the nature of their work have no legal force but only matters for consideration of the administrative authorities. The Petitioner may carry on its activities at that level so long as they are not convinced, but this Court cannot interfere under Article 226 unless some legal right is infringed. So long as such legal right is not established there is no question of a violation of Article 14 or 16 either.
17. The Rule is accordingly discharged, but without any order as to costs. As prayed for by Mr. Chatterjee, let the operation of this order be stayed for a period of four weeks from this date.
BDB/D.V.C
18. Rule discharged.
Comments