1995 Supreme(Bom) 273

IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
Ashok Agarwal and T.K. Chandrashekhara Das, JJ.
The Goa Judicial Officers’ Association ..... Petitioner.
Versus
The State of Goa others ...... Respondents.
Writ Petition No. 334 of 1993, decided on 20-6-1995.
Advocates appeared :
F. Rebello, for the petitioner.
V.B. Nadkarni, A.G. with C.A. Ferreira, Addl. Govt. Adv., for the respondent No. 1.
S.K. Kakodkar, S.A. with G.U. Bhobe, Govt. Adv., for respondent No. 2.
M.S. Usgaoncar, S.A. with S. Usgaoncar, for respondent No. 3.

Headnote:Section 9 and Order 1, Rule 1- Goa, Daman and Diu Civil Services (Judicial) Rules, 1992, Rules 17 (b) and 18 (b)- Locus standi- Right of Judicial Officers Association to agitate for individual rights=-Association challenging Rules, 1992, a they adversely affect promotional chances of members- Contention that proceedings by Association stand at par; with Public Interest Litigation and hence maintainable- Held, not tenable as grievances of members and Association are distinct and can not be agitated by Association.- In this write petition the petitioner association of Judicial officers of Goa, has not highlighted any grievance of its own. It has put up a grievance of its members. Therefore as lightly pointed out by the Senior Counsel the petition is not maintainable at the instance of the petitioner. Existence of a right of the petitioner is the foundation of the exercise of jurisdiction under Article 226 by this Court. The petitioner, even if it is a registered Association cannot identify itself with the grievance of its members and maintain a writ petition unless a statute provides for such a right as has been done by Trade Union Act, Motor Vehicles Act. Industrial Disputes Act, etc. Therefore this Court has no hesitation to uphold the contention of counsel that this petition is not maintainable at the instance of the petitioner.

       Another argument advanced by Counsel for the petitioner, is that the question of locus standi need not prevent this Court to grant relief to the petitioner, particularly, in the present context where the public interest litigation is widely accepted by the Courts in India. He submits that after Maneka Gandhi’s case the concept of locus standi has undergone an explosive expansion, Where even a person who is not directly affected can bring to the notice of the Court the instance of infraction o any fundamental rights. Therefore, according to counsel the principle o public interest litigation can be invoked here and the petition can be held to be maintainable on that score. This Court is afraid whether this contention is available to the petitioner. The Court sees now a days public interest litigation has become a fashion and many a time basic principles and procedure to be observed in a lis before a Court of law is thrown to wind. It is true that public interest litigation is a recent development of a branch o law where public grievance could be brought to the notice of the Court even without observing procedural formalities. The Court very well remember’s the resounding remarks made by Mr. Krishna lyer, J, When he deliver the judgment in Supreme Court in A.B.S.K. Sangh. V. Union of India, AIR 1981 SC 298.

       Still this Court has no doubt that public interest litigation is a weapon which h has to be used with great care and circumspection and the judiciary has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon basic primary principles that at least the petitioner is required to satisfy the Court. Namely a refraction of any right. Moreover, there is no public interest involved in the case pleaded by the petitioner Public interest litigation must be one in which the down trodden class of society by virtue of their position who cannot air their grievances, meeting the huge expenses o litigation, and find redress of their individual or collective grievances. A communication received th4ough a letter can be converted into a writ petition and the Court on look into the grievances focused through that letter. Here also the out will be always very cautions in dealing with the public interest litigation.

       Articles 234, 309 and 320 See Goa, Daman and Diu Civil Services (Judicial) Rules, 1992, Rules 17 (b) and 18 (b).

       Rules 17(b) and 18(b)-Constitution of India, Articles 234, 309 and 320-Promotion-Judicial Service Rule Validity-Challenged on ground that same made without consultation with Public Service Commission-And that by making provision for direct recruitment In between enhances of promotion of Incumbents restricted-Held, promotion being condition of service and not Initial recruitment, Rules made for conditions of service do not come within Article 234-Whlle framing such rules under Article 309 consultation with Public Service Commission can be exempted under Article 320(3)-Moreover promotion Is not a vested right and violation of that does not give cause of action.- There is one more hurdle in the challenge sought to be raised by the petitioner. We have already found that Article 234 relates to the recruitment to the lowest rung of the Subordinate Judiciary and. therefore provision for consultation with the High Court and the Public Service Commission is made compulsory. But the Rules of 1992 which are under challenge in this case relate to other subjects also namely the promotion of the Judicial officers to their respective higher judicial posts. The petitioner grievance is that under the 1992 Rules all the posts of Grade II. Civil Judges. Senior Division have not been earmarked for promotion from the posts of Grade II, Civil Judges. Junior Division. The grievance of the petitioner is that the chances or opportunities of promotion to the presently working Grade II. Junior Division Officer have been reduced to 67% and the remaining 33% has been intended for direct recruitment from the Bar. Article 234 will apply only in respect of that part of the rules which deal with recruitment to Grade II. Civil Judge Junior Division i.e. to 33% of the posts to be filed in. Requirement to consultation will apply only in to this part of the rule. The other 67% is earmarked to the members of the petitioners association. Promotion is not initial recruitment but is a condition of service and hence in the absence of law or rule made by the Legislature the Governor will be entitled to frame rules under the proviso to Article 309 and in respect of any rule framed under Article 309. the provisions of Article 320 will be attracted. Hence, a Notification issued under the proviso to Article 320(3) exempting consultation with the Public Service Commission is fully justified and can be treated as valid in so far as it relates to the Rule relating to the promotions of the petitioners Association. In fact. the Rule under challenge in a composite rule relating to direct recruitment and to promotions. Therefore the entire rule cannot become bad on the ground of the non-consultation with the Public Service Commission. Portion of the rules dealing with promotion of the members of petitioners Association cannot be said to be invalid for non-consultation with Public Service Commission as that portion of the rules is governed by Article 309 and consequently Article 320 will be a traced. Viewing the impugned rules in this perspective. we do not find that the petitioners challenge to the rules on the ground of non-consultation or inadequate consultation with the Public Service Commission will afforded a cause of action to the petitioner or its members. In addition to the above. the Court finds that there is yet one more obstacle in the way of the petitioner for grant of the reliefs claimed in the petition. What after all is the grievance of the petitioner? In substance the grievance is, whereas under the old rules entire promotions to the higher posts were drawn from the lower posts whereas under the impugned rules promotions have been restricted to 67% and 50% of the promotional posts and 37% and 50% have been earmarked for direct appointments in this context. The learned Advocate General has submitted that the petitioner of its members cannot maintain this petition under Article 226 of the Constitution unless they show to the Court any sort of infraction of any of their right as Judicial Officers. The Learned Advocate General sJr0ngly contended that what in substance, is the grievance of the petitioner is that the promotional avenue of the members of the petitioners Association is likely to be reduced or has been taken away, which was there in the existing rule. As pointed out earlier, the reservation of 33% vacancies of the Civil Judges Senior Division and 50% of the vacancies of the District Judges is required to be filled up by direct recruitment. What is lost actually to the members of the petitioners Association is a chance of promotion. According to the learned Advocate General chance of promotion bf a civil servant is not a vested right and the violation of the same will not afford him or them a cause of action to challenge the impugned rules. There is no fundamental right to a chance of promotion to a civil servant.