Facts in Brief:
1. Syllogistically speaking, the major premise is this: A and B have been appointed to similar posts in two similar organisations; the minor premise: When disputed, A's appointment was upheld based on B's appointment; the conclusion: when conversely B's appointment is questioned, it should be upheld based on A's appointment.
2. That is logic, not law. Logical fallacy may not be fraught with dangerous consequences; a flaw in law or its interpretation is. For Justice Oliver Wendell Holmes Jr., the life of the law has not been logic: it has been experience.
3. To elaborate, I may observe that initially, A's appointment was questioned. He sustained his appointment showing that B was similarly appointed; thus, A's appointment has attained finality. At a later point in time, however, B's appointment was questioned. Then B wanted to sustain his appointment because A's appointment was approved under identical circumstances based on the very B's appointment. Now, B's contentions have fallen for consideration before this Court. A perfect loop of litigation providing no way out.
4. Petitioners 1 and 2 are the members of the fifth respondent Society, whereas petitioners 3 and 4 are the successful candidates, who, along with petitioners 1 and 2, have laid challenge against the appointment of respondents 6 to 8 in the fifth respondent Society. Instead of arraying the Society as a party, the petitioners have arrayed the Managing Committee of the Society as the fifth respondent. I, however, for convenience, refer to the fifth respondent as the Society, whose action of appointing the contesting respondents has fallen for consideration in W.P.(C)No. 23239/2010.
5. Pending W.P.(C)No.23239/2010, the Society promoted respondents 6 to 8 because they, in the meanwhile, gained sufficient seniority in the organisation and became eligible for promotion. The promotion, however, is pending the judicial review concerning the very appointment.
6. In W.P.(C)No.4611/2014, the same petitioners as in W.P.(C)No.23239/2010 questioned the promotion of those employees.
Rival Submissions:
Petitioners':
7. In the above factual background, the learned counsel for the petitioners has submitted that the appointment of respondents 6 to 8 grossly violates Exhibit P3 circular. He has further contended that despite the specific direction of this Court in Exhibit P11 order, the third respondent rendered Exhibit P14 order. He has, according to the learned counsel, ignored the ratio of Exhibit P4 judgment.
8. In elaboration of his submissions, the learned counsel has contended that while Exhibit P3 circular mandates that the recruitment should be entrusted to an outside agency, the fifth respondent has assigned the task to an individual. That apart, he has specifically contended that the Managing Committee, instead of overseeing the operations by itself, has entrusted the task to the President of the Committee though he has no role to play in the scheme of things.
9. In the alternative, the learned counsel has also contended that initially this Court in Exhibit P11 order, rendered in another writ petition, directed the third respondent to rule on the validity of appointment. In its pleadings before the said authority, the respondent Society specifically averred that the recruitment was assigned to an outside agency, an examiner, whose identity, however, has never been revealed. Further, admittedly the Secretary was assigned the task, contends the learned counsel, of collecting the answer sheets and processing them; it is illegal.
10. To support his contentions, the learned counsel has placed reliance on Mohanan v. State of Kerala 2010 (3) ILR (Ker) 776 and also on an unreported common judgment by a learned Division Bench in Kishore v. Binu N. W.A.Nos.313/2010 and 364/2010, dt.12.02.2013
11. Eventually, the learned counsel has urged this Court to set aside the appointment of respondents 6 to 8 and direct the fifth respondent to go for a fresh recruitment.
Respondents':
12. The learned counsel for respondents 6 to 8 has submitted that petitioners 1 and 2 are strangers and have their civil rights unaffected because of the recruitment undertaken by the fifth respondent. He has, on the other hand, contended that petitioners 3 and 4 are estopped from challenging the appointment of respondents 6 to 8 for they had participated in the selection process and, only after failing to succeed, they turned around and questioned. To support his submissions as regards the locus of petitioners 1 and 2 and also unsustainability of the challenge by petitioners 3 and 4 on the principle of estoppel, the learned counsel has placed reliance on Ayaaubkhan Noorkhan Pathan v. State of Maharashtra (2013) 4 SCC 465 and Madan Lan v. State of J and K (1995) 3 SCC 486 .
13. As regards entrusting the recruitment to an independent outside agency, the learned counsel would contend that the Government issued Circular No.79/2011 clarifying that the independent outside agency included an individual as well. According to him, since the said circular is clarificatory, it has retrospective effect. In other words, since inception an independent outside agency meant, as per clarification, an individual as well.
14. The learned counsel has further contended that the petitioners have an efficacious alternative remedy under Section 83(1)(j) of the Kerala Co-operative Societies Act. According to him, they ought to have laid challenge against Exhibit P14 order before the Government. He has submitted that if petitioners 1 and 2 were deemed to have any locus, their conduct suffered from the vice of laches.
15. In elaboration, the learned counsel has contended that they, being the members of the Society, were expected to know that the recruitment process initiated by the fifth respondent was not at all in accordance with law, especially Exhibit P3 circular. They ought not to have waited until the actual appointment of respondents 6 to 8. According to the learned counsel, they are only name lenders helping the cause of petitioners 3 and 4.
16. Strenuously trying to distinguish the judgment dated 12.02.2013 of the learned Division Bench in W.A. No. 313/2013, the learned counsel has contended, first, that the judgment turns upon the facts of the said case; second, that the pleas of retrospectivity of Circular No.79/2011 and also the alternative remedy have not fallen for consideration. According to him, they have gone sub silentio.
17. Summing up his submissions, the learned counsel has urged this Court to dismiss the writ petitions, especially, keeping in view that respondents 6 to 8 have worked for about six years and that they have already been promoted, too.
18. The learned counsel for the fifth respondent, apart from adopting the submissions made by the learned counsel for respondents 6 to 8, has further contended that the third respondent has rendered Exhibit P14 order, especially in the light of court's rendering Exhibit P15 judgment. According to him, all the issues raised by the learned counsel for the petitioners had been raised therein, too. He has further contended that, after appreciating those issues, this Court, per a learned Single Judge, directed the third respondent to consider the issue; the authority, while deciding, had to keep in view Exhibit P14 order passed by him earlier concerning the appointment of the employees in a neighbouring Society under identical circumstances (referred to as Candidate A initially).
19. In sum and substance, it is the learned counsel's specific contention that in the face of Exhibit P15 judgment, the petitioners are estopped from re-agitating the whole issue as regards the validity of Exhibit P14 order. The learned counsel has also submitted that the writ petitions are to be dismissed on the sole ground that the very employer Bank has not been made a party.
Reply:
20. In reply, the learned counsel for the petitioners has submitted that the same petitioners, at the earliest point in time, filed W.P.(C)No.13379/2010 assailing the appointment of respondents 6 to 8. In the said writ petition this Court, at the admission stage, passed Exhibit P11 interim order entrusting the task of resolving the issue to the third respondent, who passed the impugned Exhibit P14 order. Though respondents 6 to 8 were parties to the said writ petition, they raised none of the pleas as regards either the alternative remedy or the locus, as well as the laches by the petitioners. According to him, the pleas now raised by the fifth respondent and respondents 6 to 8 are barred by constructive res judicata.
Issues:
I. Do petitioners 1 and 2 have the locus to question the appointment of respondents 6 to 8?
II. Should the writ petition fail because the employer Bank has not been made a party; instead, the Managing Committee has been made a party?
III. Are the petitioners non-suited owing to efflux of time, i.e. over five years from the initial appointment and also the subsequent promotion of respondents 6 to 8 in the interim?
1V. Does the participation of petitioners 1 and 2 in the proceedings convert the writ petition into a PIL, bringing into focus the principle of law that there should be no probono publico litigation in service matters?
V. Should the appointment of the contesting respondents be upheld because earlier the appointment of certain employees in another society has been upheld?
VI. Are petitioners 3 and 4 estopped from questioning the appointment of respondents 6 to 8 because they have already participated in the selection process, but questioned the whole procedure only after their failing to secure employment?
Issue No.I:
21. Petitioners 1 and 2, indisputably, are the members of the respondent Society. Along with a couple of unsuccessful candidates, they have assailed the recruitment process undertaken by the respondent Society. The respondents did lay much emphasis on the issue of locus. The gravamen of their submissions is that as the dispute raised concerns the service of employees, it cannot be said that petitioners 1 and 2, being mere members of the Society, have their civil, or constitutional, much less fundamental, rights affected.
22. In Ayaaubkhan (supra), the Hon'ble Supreme Court has undertaken an exhaustive survey of the precedential position on the relative concept of locus standi and aggrieved person. After examining a profusion of precedents, including State of Orissa v. Madan Gopal Rungta AIR 1952 SC 12 , Sagir Ahmad v. State of U.P. AIR 1954 SC 728 , Calcutta Gas Co.(Proprietary) Ltd. v. State of W.B7 AIR 1962 SC 1044 , Rajendra Singh v. State of M.P. (1996) 5 SCC 460: AIR 1996 SC 2736, and Tamilnad Mercantile Bank Shareholders Welfare Assn. (2) v. S.C. Sekar2009) 2 SCC 784, their Lordships have held that only a person who has suffered, or suffers from, a legal injury can seek legal redress in a court of law.
23. A writ petition under Article 226 of the Constitution is maintainable either to enforce a statutory or legal right, or when there is a complaint by the appellant that there has been a breach of statutory duty by the authorities. It is implicit, according to their Lordships, in exercising 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 for 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 (vide Ayaaubkhan).
24. Further referring to Shanti Kumar R. Canji v. Home Insurance Co. of New York AIR 1974 SC 1719 and State of Rajasthan v. Union of India AIR 1977 SC 1361, the Court in Ayaaubkhan holds that the expression aggrieved person includes no 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.
25. In A. Subash Babu v. State of A.P. (2011) 7 SCC 616 , the Apex Court has held that the expression aggrieved person denotes an elastic and an elusive concept. It cannot be confined within the bounds of a rigid, exact, and comprehensive definition. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which the contravention is alleged, the specific circumstances, the nature and extent of the complainant's interest, and of the prejudice or injury suffered by the complainant.
26. Eventually, Ayaaubkhan (supra) concludes that a person who raised a grievance must show how he has suffered legal injury. Generally, a stranger having no right to any post or property cannot be permitted to intervene in the affairs of others.
27. As seen, the Apex Court, while addressing the legal concepts of locus standi and aggrieved person, has been consistent in its approach: a person to invoke the remedy of judicial review under Article 226 of the Constitution ought to have either his civil or constitutional rights affected. Evidently, it is not only a question of right but also of interest.
28. Semantically examined, a right may be put in rigid confines, it being identifiable and enumerable. On the other hand, an interest is elastic and amorphous. The interest of a person spreads across a broad spectrum assuming different forms at different times. Succinctly stated, an interest of a person on an issue is relative to his position in an organisation, establishment, or even society (macro-cosmically), in which an issue is said to have arisen affecting his interest.
29. Viewed from the above perspective, there is a semblance of justification in the respondent's contention that the rights of petitioners 1 and 2 have not been affected. It cannot, however, be said so as regards their interest. In elaboration, I may hold that petitioners 1 and 2, being the members of the respondent Society the employer, have sufficient interest in its affairs. For the Society, notwithstanding its distinct legal character, represents the interests of all its members collectively. Extending the same logic a little further, I reckon it is easy to hold that petitioners 1 and 2 as members are, in a sense, coemployers.
30. Summing up, I am of the view that petitioners 1 and 2 have their interest affected, if not their rights, because of the method and manner adopted by the Society in effecting the appointments to the posts in the Society. The Society adhering to a strict procedure, and recruiting the best of the personnel is in its interest, that is, in the interest of its constituents, the members, who include petitioners 1 and 2, too.
31. That said, I may have to reiterate what is otherwise a commonplace: The judicial review being a facet of equity jurisprudence, the suitor must be diligent and vigilant in his approach. Even the best of the rights get effaced, defeated, or nullified owing to the suitor's indolent attitude. Equity demands alacrity.
32. In the present instance, all along, petitioners 1 and 2 have been part and parcel of the decision-making body: the Managing Committee. Had they noticed any procedural infraction in the Society's issuing Exhibit P1 notification, they ought to have raised the issue in the Board Meeting, and further ought to have registered their protest.
33. Even the alleged entrustment of recruitment to the President by the Managing Committee was presumably within their knowledge; so must have been the issue of the President's appointing an outside agency. Throughout, petitioners 1 and 2 are insouciant. In the alternative, I may still observe that petitioners 1 and 2 have waited till the entire selection process was over and later made a common cause with petitioners 3 and 4, who definitely do not stand on the same footing on the aspects of prior information and also the opportunity at the earliest to assail the Society's action.
34. No material has been placed before the Court to show that petitioners 1 and 2, before their approaching the Court, have taken any intra-organisational steps to remedy the situation. Under these circumstances, I hold that petitioners 1 and 2 do have the locus to assail the recruitment; they have also had their interest, if not right, affected in a measure. However, their conduct suffers from the vice of laches; it non-suits them. In conclusion, I hold that the pleas of petitioners 1 and 2 concerning the recruitment process adopted by the Society cannot be entertained.
Issue No.II:
35. The petitioners, indeed, have not made the employer Bank a party; instead, they have arrayed the Managing Committee as a party, though it may not be a legal entity capable of suing and being sued. There is no gainsaying that a Society is a juristic person with a perpetual succession. In all legal proceedings, it can sue or be sued in its own name. Since the Society must be represented by a human agency, Rule 182D of the Rules mandates that all suits and legal proceedings filed against the Board shall be in the name of the Secretary. It is, therefore, evident that though the Board may be at the helm of the affairs, in all legal proceedings, it is represented by the Secretary. And the proceedings ought to be in the name of the very Society.
36. The principle of necessary party has been based on the bed-rock of natural justice. Little cogitation is required in determining the issue of necessary party involving individuals. Coming to institutions, organisations, and other legal entities, the issue is not without complication. An organisation may be a compendious reference to various persons having, at times, competing or conflicting interests, even.
37. Not every person can be said to have the same level of interest. The intensity may vary. What is good for a person may not be necessarily good for another. Therefore, there will be a lot of difference or variation in institutional approach to litigation based on the person who represents it. Statutes under these circumstances invariably ensure the interest of the institutions by prescribing the person or persons who alone should represent the institution in judicial proceedings.
38. Remembering the above salutary principle, we may approach the issue on hand. An institution must have been sufficiently represented so that no prejudice is caused to its interest in the legal proceedings. Ideally speaking, the Society, represented by its Secretary, ought to have been a party to the proceedings; however, in the present instance, the Managing Committee is shown as the respondent. First, admittedly there is no conflict of interest between the Society per se and the members of the Managing Committee.
39. The entire allegations in the writ petition are levelled against the members of the Managing Committee, who, in fact, are the decision makers. They have undoubtedly represented the interests of the Society, too, without remiss. Under these circumstances, the technical rigmarole of not arraying the Society as a proper party shall not detain this Court from adjudicating the issue further and rendering substantial justice.
Issue No.III:
40. Under equity dispensation, time is the essence. A suitor with the best cause may have his right defeated if he has not chosen to approach the court at the earliest: soon after the cause of action has arisen without undue delay, so to say.
41. In the present instance, petitioners 3 and 4 did approach the court with little or no delay. From 2010 to this day, that is, from the year of filing till the disposal of the writ petition, the delay occurred cannot be attributed to the petitioners. It is the systemic delay which shall not prejudice the petitioners' cause. I am, therefore, of the opinion that pendency of the proceedings before a court of law for a long time cannot be to the suitor's prejudice if he or she cannot be accused of any dilatory tactics.
Issue No.IV:
42. Given my answer to Issue No.I, this issue has rendered itself academic. Hence not answered.
Issue No.V:
43. Revisiting the syllogism referred to initially, I may observe that earlier an appointment may have been sustained taking the appointments presently under consideration as the basis. Later, this Court may have observed that the Joint Registrar should consider the legality of the appointments keeping in view his earlier order concerning the appointments in the neighbouring society. Still, illegality is illegality; it does not get cured or, much less, become right because it is repeated.
Issue No.VI:
44. Indisputably, petitioners 3 and 4 participated in the selection process to the hilt, but eventually failed to get appointed. In this context, the respondents have strenuously contended that they are estopped from questioning the selection process having participated in it.
45. In Union of India v. S.Vinodh Kumar (2007) 8 SCC 100 , quoting with approval Munindra Kumar v. Rajiv Govil AIR 1991 SC 1607 and Rashmi Mishra v. M.P.Public Service Commission (2006) 12 SCC 724 , the Apex Court has observed that those candidates who have taken part in the selection process knowing fully well the procedure laid down therein, as is well settled, are not entitled to question the very procedure.
46. In Chandra Prakash Tiwari v. Shakuntala Shukla (2002) 6 SCC 127 , the Apex Court has held that only because the result of the interview is not palatable to him, a candidate cannot turn around and subsequently contend that the process of interview was unfair, or there was a lacuna in the process.
47. In Pradeep Kumar Rai v. Dinesh Kumar Pandey 2015) 11 SCC 493, the Hon'ble Supreme Court has held that a candidate cannot approbate and reprobate at the same time. The candidate should not have, in the first place, participated in the interview before challenging the procedure, or he should have challenged the procedure immediately after the interviews were conducted.
48. In Madan Lal (supra), the Hon'ble Supreme Court, quoting with approval a Three-Judge Bench decision in Om Prakash Shukla v. Akhilesh Kumar Shukla 1986 Supp SCC 285 : 1986 SCC (L and S) 644 : AIR 1986 SC 1043 , has held that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn around and subsequently contend that the process of interview was unfair, or the Selection Committee was not properly constituted.
49. In Saurabh Jain v. State of Kerala 2011 (1) KLT 888 , a learned Full Bench of this Court has emphatically held, after examining some of the precedents referred to above, that estoppel is not a defence available to the State when its action is challenged on the ground of violation of any fundamental right or the provisions of the Constitution.
50. Saurabh Jain (supra) has distinguished a host of precedents from the Hon'ble Supreme Court by specifically referring to the facts of each case. It has categorically observed that none has the infraction of fundamental rights falling for consideration. That issue, in fact, has remained sub silentio.
51. Regarding the judicial dictum enunciated in Saurabh Jain, I may further examine whether petitioners 3 and 4 can successfully negate the defence of estoppel set up by the respondents.
52. From a perusal of the pleadings in the writ petitions, it is conspicuous that there is no averment regarding the alleged violation of the petitioners' fundamental rights. It is axiomatic to observe that even the issue of violation of fundamental rights is not a pure question of law; it is a mixed question of fact and law. Liberal as the approach of the Constitutional Courts concerning the pleadings may be, the absence of pleadings altogether cannot be countenanced.
53. Nowhere has the petitioners alluded to not to speak of expatiating on the violation of their fundamental rights. I am, therefore, of the opinion that absent any pleadings and also evidence concerning the violation of the petitioners' fundamental rights, I am afraid, they cannot take advantage of the judicial dictum of Saurabh Jain (supra).
54. As has been consistently held by the Apex Court, petitioners 3 and 4 have participated in the selection process, but have later chosen to question it, evidently, after their becoming unsuccessful in their attempt.
In conclusion, this Court holds that both the writ petitions cannot be sustained. Accordingly, they are dismissed.