A. V. Raman vs The Union of India and 4 others

One A.V. Raman, Deputy Secretary, Manimegalai Social Welfare Association has filed this writ petition as a public interest litigation to issue a

writ of mandamus directing the first respondent to immediately implement the directions of the 2nd respondent in their letter dated 28.12.1995 by

promoting the 5th respondent as the Deputy Chairman of the Madras Dock Labour Board, Madras-1 in the place of the 4th respondent.

In support of the said writ petition, the said A.V. Raman, has sworn to an affidavit in which he has stated that a letter dated 28.12.1995 was

addressed by the second respondent, the Chairman, National Commission for SC/ST, New Delhi pointing out that one Mr. P. Sethuraman, 5th

respondent working as an Executive Engineer in the Madras Dock Labour Board should be preferred to the appointment of the 4th respondent as

Deputy Chairman of Madras Dock Labour Board and the said letter has not been deliberately carried out by the 1st respondent, the Union of

India, for the reasons best known to it. By not impleading the recommendation of the second respondent dated 16.12.1995, the first respondent

has shown a disrespect to the basic structure of the Constitution of India. A constitutional provision based upon social justice cannot be so lightly

treated by any Government. Unless the intention of the Government is to over-ride the constitutional provision to favour certain group of persons,

there cannot be any such favour.

He has further stated that in a letter dated 31.7.1990, the first respondent in reply to the letter dated 10.7.1990 of the then Chairman of the

Madras Dock Labour Board has expressed no objection to P. Sethuraman, an Executive Engineer, Madras Dock Labour Board also holding the

post of the Deputy Chairman of the Madras Dock Labour Board till regular appointment is made. The said P. Sethuraman is top of the list as No.l

and is a scheduled caste person and four other persons below his position in that list are juniors and they belong to other community. The junior

most candidate viz., the 4th respondent''s name is mentioned as a person fit for appointment and the said appointment order dated 24.2.1994 says

that it is with retrospective effect from 21.1.1992, as per the letter dated 24.2.1992 and 26.5.1994 from the 1st respondent''s department.

According to this petitioner, the first and foremost question that arises for consideration in this writ petition is:

Whether the continuance of the 4th respondent in the post of Deputy Chairman of the Madras Dock Labour Board is not a clear violation of

Constitutional Mandate and making the function of the 2nd respondent null and void?

According to him, Article 335 of the Constitution, wherein the phrase"" shall be taken into consideration consistently with the maintenance of

efficiency in administration"" is definitely mandatory and not recommendatory and if the first respondent does not give effect to the directions of the

second respondent, it will be clear constitutional violation.

The third respondent, Chairman of Madras Port Trust and also Madras Dock Labour Board has filed a counter-affidavit, wherein, he has stated

that he has been impleaded in the writ petition as Chairman, Madras Port Trust and Madras Port Trust is not a necessary and proper party to the

proceedings, and if at all the petitioner desires impleading party, he should have impleaded the Madras Dock Labour Board and not the Madras

Port Trust. He has further submitted that this writ petition has been filed challenging the appointment of Deputy Chairman, Madras Dock Labour

Board which is a separate Board constituted by Ministry of the Surface Transport Government of India. New Delhi and headed by the same

Chairman. The affairs and administration of Madras Dock Labour Board is totally independent from the Madras Port Trust. and, therefore, the

Madras Port Trust is not a necessary party to this proceedings. On these grounds, he has asked this Court to dismiss the writ petition against him.

The 4th respondent D. Arumugham has filed his counter- affidavit. In the said counter-affidavit, he has stated that the petitioner has filed the writ

petition as a public interest litigation. The petitioner has pleaded the cause of one P. Sethuraman in the matter of latter''s promotion as Deputy

Chairman. The said P. Sethuraman has protected his interest by filing W.P.No.2211 of 1996. The act of petitioner in safeguarding his interest by

approaching this Court cannot be termed as a public interest litigation and hence, the writ petition is liable to be dismissed as not maintainable in

law.

He has further stated that the petitioner has very cleverly and deliberately omitted to state that only one post of Deputy Chairman was vacant in

Madras Dock Labour Board and reservation policy is not applicable in such a case. The post of Deputy Chairman carrying the maximum scale of

pay of Rs. 5,700 is a selection post. Besides the fact that it is not covered by any reservation policy, and it would be one where the authority will

have to apply the provisions of Article 335 of the Constitution of India by applying the in built rider in the said Article which provides that the claim

of Scheduled Caste and Schedule Tribe will have to be taken into consideration consistently with the maintenance of efficiency of administration.

The post of Deputy Chairman being a selection post, the above rider will also have to be taken into consideration. The petitioner cannot rely on or

even refer to correspondence between the said Sethuraman and the Government as he is prosecuting his case. As a matter of fact, all these issues

were raised before this Court by the said Sethuraman in a writ petition filed by him and his pleas were ultimately rejected and the appointment of

this respondent was upheld. The aggrieved individual Sethuraman has preferred appeals upto the Supreme Court and his objections were

dismissed. Since no public cause is involved and the petitioner is mainly espousing the interest of the individual, it cannot be termed a public interest

litigation. On these grounds, he urged this Court for dismissal of the writ petition with exemplary costs.

Heard Mr.S.K. Sundaram, learned counsel on behalf of the petitioner, Mr.K. Kumar, learned Additional Central Government Standing Counsel

for the 1st respondent, Mr.G. Venkataraman, learned counsel for the 3rd respondent and Mr. Sankaranarayanan, for M/s. Aiyar & Dolia for the

4th respondent.

The writ petition filed by the fifth respondent, Sethuraman, the aggrieved person has been dismissed by the learned single Judge of this Court

and the said decision was confirmed in writ appeal and the SLP filed by the said Sethuraman was dismissed by the Supreme Court and hence, the

present writ petition filed by the petitioner claiming to be a public interest litigation is nothing but an abuse of process of law and it is vexatious,

frivolous and has been filed to harass the fourth respondent. It is a proxy writ petition launched for and on behalf of the 5th respondent. From the

writ appeal filed before the Division Bench of this Court, it could be gathered that the fourth respondent in the present writ petition joined the

service of Madras Dock Labour Board on 1.7.1967 directly as a class II Officer. The 5th respondent P. Sethuraman at whose instance and

behest the instant writ petition has been filed joined on 26.10.1971 as Class III employee. The 4th respondent Arumugham was holding the post of

Secretary, Madras Dock Labour Board in the year 1991. At that juncture, a vacancy arose for the post of Deputy Chairman in Madras Dock

Labour Board in the year 1991. Since the fourth respondent possessed the requisite qualification, his name was forwarded for being considered.

Similarly, the name of the fifth respondent Sethuraman was also forwarded and considered. The 4th respondent has been selected and was

appointed by an order dated 16.5.1992 proceeded by a telex message dated 16.11.1991 as the Deputy Chairman of Marmagoa Dock Labour

Board and the same was duly Gazetted in the Government of India Gazette dated 16.5.1992.

While so, the Deputy Chairman, Madras Dock Labour Board retired and the Government decided to transfer the 4th respondent from

Marmagoa to Madras Dock Labour Board to assume the charge of Deputy Chairman. The order was to come into effect from 31.8.1994. But,

the said Sethuraman filed W.P.No.10192 of 1994 before this Court challenging the proposed transfer. The writ petition was partly allowed and

directions were given not to fill up the said post by transferring him (4th respondent) and that it should be filled up by regular process of selection.

The Court has however held that the fourth respondent was appointed as Deputy Chairman, Goa Dock Labour Board on selection and not on

deputation.

The said matter was taken up on appeal by the Union of India, Madras Dock Labour Board and Sethuraman. The Division Bench dismissed

the writ appeal filed by Sethuraman but allowed the appeals filed by the Government of India and the Dock Labour Board. The said Sethuraman

filed S.L.P.NO. 7042 of 1995 in the Supreme Court challenging the order of the Division Bench and the same was dismissed by the Supreme

Court after due hearing. The Division Bench of this Court has given the following findings: (a) The Central Government is entitled to make

appointment to the post of Deputy Chairman Dock Labour Board either by selection or by transfer of Deputy Chairman of any of the Dock

Labour Boards; (b) The fourth respondent was appointed as Deputy Chairman under the relevant rules, pursuant to selection as per the order

contained in Gazette notification dated 16.5.1992 and hence, the 4th respondent was not deputed; and (c) the post of Deputy Chairman is

superior to the post of the said Sethuraman and since the 4th respondent Arumugham having been appointed to the said post, there is no question

of posting junior to Sethuraman to the higher post and ceases to be a member of lower category or class from which he was selected.

The tenure as Deputy Chairman, Madras Dock Labour Board as per the original terms of appointment was due to expire on 24.1.1996. The

Union of India sought to fill up the post once again by resorting to selection process by inviting applications from eligible officers and Port Trusts

Dock Labour Boards and cadre controlling authorities in Government. Meanwhile, the Central Government has extended the fourth respondent''s

tenure of service as Deputy Chairman until 23.4.1996. Thereafter the Government has appointed him until 31.1.1998 or until the merger of

Madras Dock Labour Board with Madras Port Trust whichever is earlier. Now the said Arumugham has retired.

In the said decision of the Division Bench in the case of The Union of India (UOI) Vs. P. Sethuraman, Chairman, M.D.L.B. and Others, in

paragraph 6.1. this is what this Court has observed:

The question for consideration is as to whether in law it is permissible for the Central Government to make appointment to the post of Deputy

Chairman, Dock Labour Board by transfer. It may be pointed out that the post of Deputy Chairman of a Dock Labour Board is of the same

cadre, whether it be of the Deputy Chairman of the Dock Labour Board, Bombay, Madras, Calcutta or Mermageo. Appointing Authority for the

post is the Central Government. When once a person is selected and appointed as the Deputy Chairman of the Dock Labour Board, we see no

reason or no obstacle in law for the Central Government to appoint that person to another Dock Labour Board by way of transfer. Ultimately, a

vacancy will arise in one Dock Labour Board or the other, which has to be filled up by selection and in that event, all the officers who are eligible

for appointment as Deputy Chairman- whether they be in the Madras Dock Labour Board or Bombay Dock Labour Board or Calcutta Dock

Labour Board or Mormagao Dock Labour Board, are entitled to apply, therefore, the appointment by transfer does not in the ultimate analysis

result in depriving any of the eligible persons to seek appointment. It may be pointed out here that appointment by transfer to the equivalent cadre

post is one of the well known methods of appointment. Hence, we are of the opinion that the Central Government under sub rule (2) of Rule 3 of

the Rules is entitled to make appointment to the post of Deputy Chairman Dock Labour Board either by selection or by transfer of a Deputy

Chairman of any of the Dock Labour Boards.

Since the post of Deputy Chairman being a selection post, the question of reservation will not arise. Since the aggrieved party, Sethuraman has

already filed writ petition and failed in his attempt, the present writ petition filed as a public interest litigation will not survive.

In the case of Dilip Karambelkar Vs. Rear Admiral Vishnu Bhagwat and others, , the Bombay High Court observed in paragraph 18 at page

136 as thus:

Similarly, the judgment rendered by the Supreme Court in the case of the Janata Dal Vs. H.S. Chowdhary and Others, also requires to be kept in

mind. In paragraph 108 of the said judgment, the Supreme Court observe as under:-

It is depressing to note that on account of such trumpery proceedings initiated before the Court, innumberable days are wasted which time

otherwise could have been spent for the disposal of cases of the genuine litigant. Though we are second to none in fostering and developing the

newly invented concept of PIL and extending our longer arm of sympathy to the poor the ignorant, the opposed and the needy whose fundamental

rights are infringed and violated and whose grievances go unnoticed, unrepresented and unheard, yet we cannot avoid but express our opinion that

while genuine litigants with legitimate grievances relating to civil matters involving properties worth hundreds of millions of rupees and criminal cases

in which persons sentenced to death facing gallows under untold agony and persons sentenced to life imprisonment and kept in incarceration for

long years persons suffering from the undue delay in service matters, Government or private persons a awaiting the disposal of tax cases were

wherein huge amounts of public revenue or unauthorised collection of tax amounts are locked up, detenus expecting their release from the

detention orders, etc. etc. are all standing in a long serpentine queue for years with the fond hope of getting into the Courts and having their

grievances redressed, the busy bodies, meddle some interlopers, wayfarers or officious interveners having absolutely no public interest except for

personal gain or private either for themselves or as proxy of others or for any other extraneous motivation or for glare of publicity break the queue

muffling their faces by wearing the mask of public interest litigation and get into the Courts by filing vexatious and frivolous petitions and thus

criminally waste the valuable time of the Courts and as a result of which the queue standing outside the doors of the Court never moves which

piquant situation creates a frustration in the minds of the genuine litigants and resultantly they lose faith in the administration of our judicial system.

(Italics added)

In the present case also we feel that the public interest litigation is misused by the petitioner for some extraneous purpose. Unfortunately, these so-

called public interest petitions are fought with more vehemence than the litigations where some personal stakes are involved reason may be that

petitioner has not to lose anything in such petitions. It is forgotten that in a public interest litigation the party has only to draw attention of the Court

where some directions are required to be issued for doing justice in accordance with law. But, Court process cannot be permitted to be misused

for delaying legitimate administrative actions. It is not for the Court to decide suitability of some of the respondents for being appointed to the

highest post in the Navy. Further, legal process cannot be permitted to be misused for tarnishing someone''s reputation. The object of Public

Interest Litigation is to see that provision of the constitution or the law is enforced for advancing the cause of community or weaker section of the

society or individual by a person without any private motivation or gain. Merely because a person is journalist, it does not give him/her a right to

institute litigation which affects the reputation of any individual holding high post on a crucial point, when the highest authority of the State is

considering me suitability for the highest post. In this case, it is difficult to say that the present petition is to vindicate any public interest.

After going through the entire materials produced by all the parties and after hearing the arguments of the learned counsel. I am of the opinion

that there is no merit in this writ petition and the writ petition is dismissed with costs. Advocate for Respondent No.4''s fee is fixed at Rs.2,000.