Odisha Gramya Bank Business Correspondents Association (OGBBCA) V. Union of India and National Bank for Agriculture and Rural Development and Indian Overseas Bank and Odisha Gramya Bank and The Dy. Chief Labour Commissioner (C)

WP(C)/32402/2022

AI Insights

The case revolves around a writ petition filed by the Odisha Gramya Bank Business Correspondents Association challenging the Odisha Gramya Bank's decision to change the status of Banking Correspondent Agents (BCAs) to engage Corporate Business Correspondents. The petition argued that this change would adversely affect the BCAs during the pendency of an industrial dispute regarding their employment status. The court examined the legal relationship between the Bank and the BCAs, the nature of the engagement (contractual vs. employment), and the implications of the Bank's policy decision on financial inclusion and technological advancement in banking services.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 800086 (HC-CUTTACK)
• Appeal Type: Others
• Pronouncement Date: 20-01-2025
• Assessment Year: misc
• Other Referred Cases: Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vrs. Ram Gopal Sharma, Union of India Vrs. Arulmozhi Iniarasu, Sarat Kumar Raj Vrs. State of Odisha, State of Odisha Vrs. Gopinath Das, Bajaj Hindustan Ltd. Vrs. Sir Shadi Lal Enterprises Ltd., Tata Cellular Vrs. Union of India, M.P. Gangadharan Vrs. State of Kerala, Shahpura Janjagran & Vikas Samiti Vrs. State of Madhya Pradesh, Tamil Nadu Survey Officers Union (Central) Vrs. The Government of Tamil Nadu
• Laws Referred To: Articles 226 and 227 of the Constitution of India, 1950, Regional Rural Banks Act, 1976, RBI/2010-11/2017/DBOD No.BL.BC. 43/22.01.009/2010-11, Industrial Disputes Act, 1947
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: PRASANNA PARHI; AUROVINDA MOHANTY; M AN O J MI SHRA; TANMAY MISHRA; ROOPAM MISHRA
• Assessee Lawyers: DEBENDRA MOHANTA; SITARAM JENA
• Keywords: Business correspondent; Employer-employee relationship; Financial inclusion; Judicial review; Policy Decision
• Section: 226; 33; 33A; 227

Judgement Text

" W.P.(C) No.32402 of 2022 Page 1 of 130 ORISSA HIGH COURT: CUTTACK W.P.(C) No.32402 of 2022 In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950 *** Odisha Gramya Bank Business Correspondents Association (OGBBCA), Represented through The General Secretary, Sri Pravakar Barik Son of Prafulla Barik Of Bhaskarganj (A), Sailesh Lane P.O./P.S.: Balasore District: Balasore. … Petitioner -VERSUS- 1. Union of India Represented through The Secretary Ministry of Finance Central Secretariat, New Delhi. 2. National Bank for Agriculture and Rural Development Represented through Chairman, 2nd Floor, D-Wing C/24, G-Block, Bandra, Kurla Mumbai, Mahatrastra. 3. Indian Overseas Bank Represented through Chairman. W.P.(C) No.32402 of 2022 Page 2 of 130 4. The Board of Directors Odisha Gramya Bank Kokila Residency, Ananta Vihar Pokhoriput, Bhubaneswar District: Khurda. 5. Odisha Gramya Bank Represented through Chairman Kokila Residency, Ananta Vihar, Pokhoriput, Bhubaneswar District: Khurda. 6. The Dy. Chief Labour Commissioner (C) Plot No.N.7/6-7, IRC Village Behind ISKCON Temple Nayapalli, Bhubaneswar. … Opposite parties. Counsel appeared for the parties: For the Petitioner : M/s. Debendra Mohanta and Sitaram Jena, Advocates For the Opposite party : Mr. Prasanna Kumar Parhi, No.1 Deputy Solicitor General of India For the Opposite party : Mr. Aurovinda Mohanty, No.3 Advocate For the Opposite party : Mr. Manoj Kumar Mishra, Nos.4 and 5 Senior Advocate Assisted by Tanmay Mishra and Roopam Mishra, Advocates P R E S E N T: HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN W.P.(C) No.32402 of 2022 Page 3 of 130 Date of Hearing : 30.09.2024 :: Date of Judgment : 20.01.2025 JUDGMENT Assailed in this writ petition is the “Request for Proposal for Selection of Corporate Business Correspondent with End-to-End Financial Inclusion with Technology” having Reference No.RFP/FID/02/ 22-23, dated 01.11.2022 of the Financial Inclusion Department, Head Office of the Odisha Gramya Bank (Annexure-9). 1.1. The petitioner, challenging the proposed decision of the Odisha Gramya Bank (opposite party No.5) to change the status of the Banking Correspondent Agents beseeches intervention of this Court invoking extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India with the following prayer(s): “Under the circumstances, it is prayed that this Hon‟ble Court may be graciously pleased to issue a writ or writs the nature of writ of certiorari quashing Annexure-9 declaring the same as illegal, arbitrary and against the settle position of law. Further this Hon‟ble Court may be graciously pleased to direct the opposite party No.5 to treat the BCAs named in Annexure-1 as the regular employees of the opposite party No.5 Bank and consequently advance ail service benefits applicable to the employees of the Bank. W.P.(C) No.32402 of 2022 Page 4 of 130 And pass any other order or orders as would deem fit and proper. Further, this Hon‟ble Court may be graciously pleased to quash the SOP under Annexure-11 and declare the same as illegal, arbitrary, unreasonable and against the Order of this Hon‟ble Court dated 02.12.2022. And for which act of kindness, the Petitioners shall as in duty bound ever pray.” Facts: 2. The Odisha Gramya Bank and the Utkal Gramya Bank, established under the aegis of the Indian Overseas Bank and the State Bank of India respectively, in view of the Regional Rural Banks Act, 1976, have distinct area of operation. 2.1. In pursuance of Guidelines vide RBI/2010- 11/2017/DBOD No.BL.BC. 43/22.01.009/2010-11, dated 28.09.2010 issued by the Reserve Bank of India, the Odisha Gramya Bank (for convenience opposite party Nos.4 and 5 are referred to as “OGB”) desirous of expanding its banking operation extensively entered into Agreement (sample copy of which is placed at Annexure-2) with Business Correspondent/Business Facilitator (BC/BF), Clause 11 whereof indicated that the validity period of such agreement would be for one year from the date of execution subject to renewal for further period(s) on mutual consent with rider to W.P.(C) No.32402 of 2022 Page 5 of 130 terminate available with the Bank as well as the BC/BF giving a month’s notice in writing to the other party. 2.2. Since this activity of the Bank is partially related to delivery of financial services, the said services have been brought under the Finance Ministry as Financial Inclusion Personnel (in short, “FIP”). Accordingly, the Odisha Gramya Bank in consonance with the prescribed Guidelines issued vide Circular dated 31.08.2013 indicating the Operational Procedure for Banking Correspondent Agents (“BCA” for short) and Ultra Small Branches. In the said Circular inter alia it provided for the remuneration to the BCAs. Periodically the Bank has been issuing additional works to be undertaken by the BCA as per the schemes introduced by the Government at different point of time for being undertaken by the Regional Rural Banks. 2.3. While such was the position, the OGB changed the fixed commission structure and also other service conditions. For which the BCAs through the petitioner gave a notice of strike specifying the demands with copies to all concerned including said Bank on 11.03:2022, to which reply in Letter dated 21.03.2022 was furnished stating that the petitioner has no locus W.P.(C) No.32402 of 2022 Page 6 of 130 standi to go for strike inasmuch as it is clarified in Letter No.HO/FI/887/2022, dated 25.03.2022 that there being no employer-employee relationship, BCs are paid only commission, but not wages or salary. 2.4. The Regional, Labour Commissioner (Central), Bhubaneswar vide Letter in File No.7(03)/2022-B-II, dated 14.06.2022 submitted report to the Government of India, Ministry of Labour and Employment, New Delhi under Section 12(4) of the Industrial Disputes Act, 1947 (“ID Act”, for brevity) indicating that conciliation proceeding got ended in failure and suggestion was made by the parties for reference of the matter under Section 10A ibid. for arbitration. The Appropriate Government, thereby, have referred the matter to the Central Government Industrial Tribunal and the same got registered as ID Case No.34 of 2022 for adjudication, which is stated to be pending. 2.5. The issue as to the employer and employee relationship is concerned it is claimed by the petitioner that the OGB having engaged the BCA is to function under the direct control and supervision of the Bank. 2.6. While such was the position, the petitioner stated to have could come to know that the OGB sought to put in place proposal for selection of Corporate Business Correspondent with End-to-End Financial Inclusion W.P.(C) No.32402 of 2022 Page 7 of 130 with Technology vide Request for Proposal bearing RFP Reference No.RFP/ FID/02/22-23, dated on 01.11.2022 (Annexure-9) (for convenience be referred to as “RFP”), whereby the successful bidder is required to deploy BCA on same terms and conditions at the locations as per the roadmap given by the Reserve Bank of India/DFS/SLBC/State Government. 2.7. Apprehending that by virtue of such RFP the OGB would change the condition of service of the BCA during the pendency of the adjudication of the dispute referred to the Central Government Industrial Tribunal, the petitioner seeks to question the policy of the OGB by way of the instant writ petition on the grounds inter alia that in absence of express permission of the authority before which the proceeding is pending as contemplated under Section 33 of the ID Act in writing, the OGB needs to be restrained from implementing RFP. Response of the opposite party Nos.4 and 5-OGB: 3. The scope and ambit of BC has been explained by the OGB in its counter affidavit as follows: “i) The Bank has floated RFP for selection of Corporate Business Correspondent with End-to- End Financial inclusion technology along with daily deposit technology vide RFP Reference No. W.P.(C) No.32402 of 2022 Page 8 of 130 RFP/FID/02/22-23 on 01.11.2022 as per the approval of Board of Directors of the Bank. Presently the Business Correspondent Agents are engaged and managed by Bank. However as the number of BCs are growing it is not possible on part of the Bank to manage the same due to shortage of manpower. Also the cost of technology is also increasing day by day. The above RFP shall entrust the engagement and management of the business correspondents to the selected bidder along with FI technology and Daily Deposit technology. ii) The business correspondents had on earlier occasion called for strike under the banner of “Odisha Gramya Bank Business Correspondents Association\" vide their Letter No. OGBBCA/2022/36, dated 11.03.2022 for fulfilment of various demands. The matter was put up before Regional Labour Commissioner for Conciliation proceeding on 25.03.2022 and 11.04.2022. The Conciliation Proceeding ended in failure and the same was recorded vide Letter dated 14.06.2022. The matter is now pending before the Central Government Industrial Tribunal- cum-Labour Court, Bhubaneswar. iii) The Financial Inclusion through Business Correspondents has two parts: a) Financial Inclusion Technology; b) Business Correspondents management. a) Financial Inclusion Technology: W.P.(C) No.32402 of 2022 Page 9 of 130 The Bank started the use of Micro ATM devices for financial inclusion from 2015 onwards. The Micro-ATM devices were given to BCs by the Bank for doing financial transaction like withdrawal, deposit and fund transfer. The Micro ATM services are available for customers of Bank as well as customers of other Banks and financial institutions. The technology service for Micro ATM devises, Financial Inclusion servers and FI gateway are being provided by M/s Atyati Technology Pvt. Ltd. The AMC for the technology service by M/s Atyati Technology Pvt. Ltd. was valid up to 31.12.2022. The servers used for this puipose are old, it needs replacement. Bank in its present RFP vide RFP no. RFP/FID/02/22-23 on dated 01.11.2022 has sought bids from vendors who shall provide FI (Financial inclusion) servers and FI gateway as an End-to-End solution. If the Bank is not allowed to finalize the RFP then the Bank may not be in a position to provide Micro ATM services from 31.12.2022 onwards as the AMC has already expired. Moreover renewal of AMC for longer time shall not be fruitful as the FI servers are not having adequate space and too old to handle the huge micro ATM transactions. The replacement of the servers will put a huge cost burden on the Bank. b) Business Correspondents Management: At present the business correspondents are managed by Bank. This includes W.P.(C) No.32402 of 2022 Page 10 of 130 engagement of new BCs, checking of their daily work, allotment of targets, training, implementation of Govt. directives etc. The Corporate BC model has been implemented by all most all Banks which is approved by RBI and NABARD. The implementation of Corporate BC model not only helps the Bank in better management of Business correspondent agents but also assists the Bank for better implementation of Govt. schemes and technological initiatives. The present RFP includes implementation of Corporate Business Correspondent with end to end FI Technology i.e. the vendor selected will provide technology and BC management as a service. The Hon'ble High Court has directed that status quo as on date with regard to service of the petitioner shall be maintained till next date. At present the engagement of BCs are done by the Bank by an agreement for one year, which are renewable for further period depending on satisfactory performance. c) Bank signed the service Level agreement with M/s. Atyati Technology Pvt. Ltd on 24.06.2016. The scope of work includes the supply of financial inclusion project solution and supply of hardware like Servers, Micro ATM, PIN Pads, HSM etc. Including required licenses. The AMC for financial inclusion project solution has expired on 31-12-2020 and was further renewed from time to time and the last one was valid up to 31.12.2022. W.P.(C) No.32402 of 2022 Page 11 of 130 d) The AMC for Micro ATM device has expired on 31.12.2021. So the Bank has considered for floating of this RFP for Corporate BCA for overall BC management and FI technology. e) After getting guidance from our sponsor Bank i.e. Indian Overseas Bank, Odisha Gramya Bank floated the RFP for the same on 01.11.2022. f) The vendor M/s Atyati Technology Pvt. Ltd had informed the Bank on 29.07.2022 that there is critical space issue in the FI server at Banks DC and DR. g) Bank had prepared the RTF and get it duly vetted by IDRBT. For the said time (i.e. till implementation of Corporate BCA) Bank had arranged the servers used by its IT department to be used by FI technology implementation for providing uninterrupted service to the rural customers. h) However the above said arrangement will be available for FI gateway for temporary period only. As the AMC for Micro ATM device is already over and the FI servers are to be replaced, the selection of vendor through RPF is essentially required for continuation of FI project to extend the service to rural customers in the unbanked area. i) The number of transaction through micro ATM stood at around 27 lakh with transaction value of Rs.842 crore. If the FI project is stopped due to non selection of W.P.(C) No.32402 of 2022 Page 12 of 130 vendor through RFP, then rural customers of around 7500 villages in 13 district of Odisha will be deprived of financial services.” 3.1. Refuting the contention of the petitioner that there exists employer-employee relationship, it is asserted that since ID Case No.34 of 2022 is pending before the Central Government Industrial Tribunal, Bhubaneswar, consequent upon failure of the conciliation proceeding, the BCA is treated as “individual business entity” like proprietorship concern. It is, therefore, affirmed that the requirement of Section 33 of the ID Act is redundant and unwarrnted. Rejoinder affidavit in reply to the contention of the opposite parties: 4. It is impressed upon by the petitioner that the new policy would be frustrated for the following reasons: “I. Banking and financial services are essentially „pull‟ products that are „sought out‟ and like postal services have to be accessible at affordable cost. Banking and financial services should not be „pushed‟ towards or at the customer, unlike other goods sold by retail agents. Companies may, in the interest of revenue maximization, use their resources and wide distribution network to push banking and financial products, unmindful of whether they are suitable or appropriate for such W.P.(C) No.32402 of 2022 Page 13 of 130 persons. In other words, there are concerns of mis- selling of banking products especially amongst uninformed and illiterate consumers. II. A retail agent of a corporate may tend to provide banking services only to those customers who patronize the Corporate‟s products as that would enhance his earnings— this represents a conflict of interest. III. Corporate BCs could misuse customer related information for their own commercial interests. IV. Unfair coercive practices by corporate agents for marketing the financial products/recovery of loans etc. would lead to reputation risks for the banks that have appointed them, besides affecting the confidence of the public in the banking system. V. In case the corporate shrinks its business requiring it to discontinue its retail, it may become difficult for banks to find immediate replacement/substitution of the BC thereby affecting continuity in services. In case of appointment of individuals directly as BCs, the impact of one agent discontinuing business may not be significant.” Hearing: 5. Pleadings being complete and exchanged amongst counsel for the respective parties, on consent this matter is taken up for final hearing at the stage of admission. W.P.(C) No.32402 of 2022 Page 14 of 130 5.1. At the outset, the learned counsel for the petitioner Sri Debendra Mohanta, though was given option to pursue his remedy before the Central Government Industrial Tribunal, Bhubaneswar in ID Case No.34 of 2022 registered on submission of the report by the Regional Labour Commissioner (Central), Bhubaneswar on the failure of conciliation to the Ministry of Labour and Employment under Section 10A of the ID Act, he insisted for a decision of this Court in the present writ petition, being conscious of the fact that observations made herein would bind the parties. 5.2. Heard Sri Debendra Mohanta, learned Advocate for the petitioner and Sri Manoj Kumar Mishra, learned Senior Advocate assisted by Sri Tanmay Mishra, learned Advocate for the opposite party Nos.4 and 5. Rival contentions and submissions: 6. Sri Debendra Mohanta, learned Advocate vehemently opposing the introduction of system of Corporate Business Correspondent in place of BCA would submit that the RFP would be pitted against the Guidelines envisioned in Master Circular dated 01.07.2014 issued by the Reserve Bank of India which sought to engage Business Facilitator/Business Correspondent. He essentially submitted that introduction of new set of W.P.(C) No.32402 of 2022 Page 15 of 130 Corporate Business Correspondent would frustrate the very objective of the Guidelines/Policy by virtue of which BC was engaged. The BC model being integral part of banking activities ensuring greater financial inclusion, to do away with such a pious policy would be detrimental to the very existence of the banking business of OGB. 6.1. Contending that implementation of Corporate Business Correspondent model by RFP during the pendency of Industrial Dispute Case No.34 of 2022 before the Central Government Industrial Tribunal in absence of necessary permission to change the condition of service would tantamount to flagrant violation of mandatory requirement contemplated under sub-section (2) of Section 33 of the ID Act. Therefore, valiant attempt has been made to urge that the introduction of RFP is required to be nipped in the bud. 6.2. Placing reliance on Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd Vrs. Ram Gopal Sharma, AIR 2002 SC 643 = (2002) 1 SCR 284 it has been emphatically suggested that compliance of requirement under Section 33(2) is mandatory, failing which the contemplated action suggested to be taken by the OGB is irrational decision, tainted and illegal inasmuch as such a W.P.(C) No.32402 of 2022 Page 16 of 130 provision protects employee against possible victimisation, unfair labour practice or harassment because of pendency of industrial dispute. Such a safeguard enshrined under Section 33(2) of the ID Act may save the petitioner from hardship of unemployment. 6.3. It has further been sought to be argued by Sri Debendra Mohanta, learned Advocate that the services of the BC being stated to be placed under the control of the successful bidder, but not the OGB, the same would tantamount to change of condition of service. Such a change is not in conformity with requirement of Section 9A of the ID Act. 7. Sri Manoj Kumar Mishra, learned Senior Advocate along with Sri Tanmay Mishra, learned Advocate strenuously argued that since there existed no employer-employee relationship between the OGB and the BC, of course, which is subject-matter of adjudication before the Central Government Industrial Tribunal for the purpose of considering regularisation in service, there is no requirement of adherence to Section 33(2) of the ID Act. To amplify such a contention, Sri Manoj Kumar Mishra, learned Senior Counsel would submit that the engagement of BC is contractual. In the Master Circular on Banking W.P.(C) No.32402 of 2022 Page 17 of 130 Services bearing No.PMT-22/20-21, dated 03.09.2020 issued by the OGB vide Clause E thereof it is clearly stipulated that “while engaging BCs, it is mandatory to issue them an engagement letter, enter into an agreement with them and obtain an indemnity from him/her. It is also required to renew their service period at the starting of the financial year, i.e., in the month of April for a further period of one year subject to satisfactory past performance. The agreement and indemnity are required to be done as per the IBA model BC agreement which has been duly approved by our Board of Directors.” Clause J ibid. further clarifies that “the services of BCs shall be discontinued by either of the parties by giving one-month notice to the counterparty.” It is submitted that the Agreement between the OGB and the BC has not been renewed. Therefore, the petitioner-Association has no locus standi to espouse the cause of the individual BCs whose period of Agreement has been lapsed. 7.1. It is put forth by learned Senior Counsel that Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd Vrs. Ram Gopal Sharma, AIR 2002 SC 643 = (2002) 1 SCR 284 was rendered in the context where there was no dispute about the petitioner being workman-employee. The Hon’ble Supreme Court of India laid down the ruling that permission of the Industrial Tribunal was W.P.(C) No.32402 of 2022 Page 18 of 130 necessary concomitant for the purpose of changing the conditions of service during pendency of dispute case. In the present case, the factual scenario is completely distinct and different. Referring to paragraph 6 of Agreement dated 05.06.2020 (Annexure-2) entered into between OBG and Pravakar Barik, BC/FC, Sri Manoj Kumar Mishra, learned Senior Advocate urged that the petitioner has misdirected itself by relying on the ratio of said decision in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd Vrs. Ram Gopal Sharma, AIR 2002 SC 643 = (2002) 1 SCR 284. Strongly opposing the contention of Sri Debendra Mohanta, learned Advocate, the learned Senior Counsel appearing for the opposite party Nos.4 and 5 stated that the clauses of Agreement read as a whole unequivocally would lead to suggest that the BC is given option to engage employee/workmen and it is paid commission, but not salary or wage and therefore, BC can at no stretch of imagination is construed to be workmen/employee of the OGB. 7.2. While contesting the matter, objection is raised against entertainment of the writ petition filed at the behest of the petitioner-Odisha Gramya Bank Business Correspondents Association. It is urged that in absence of any document being furnished to show individual BC has authorised the Association to W.P.(C) No.32402 of 2022 Page 19 of 130 espouse his/her cause before this Court, particularly so when change of service condition has been alleged, in view of ratio of decision in Swakshtagrahi Sanch, Janpad Panchayat Niwas Vrs. Union of India and others, Writ Appeal No.91 of 2002, vide Judgment dated 15.03.2022 of the High Court of Madhya Pradesh at Jabalpur, the writ petition is liable to be dismissed in limine. 7.3. It is forcefully submitted by Sri Tanmay Mishra, learned Advocate while assisting Sri Manoj Kumar Mishra, learned Senior Advocate that the contention of Sri Debendra Mohanta, learned Advocate for the petitioner is far to be accepted as the engagement of BC is based on agreement for a period of one year subject to extension. Due to RFP, the agreement has not been extended. In essence, the RFP is a policy decision to engage Corporate Business Correspondents in order to utilise tools of advanced technology to meet the exigencies of banking business. Taking cue from Clause 6 of the Agreement at Annexure-2 it is indicated that the employees of BC/FC or its agents will be under the total control, both administrative and supervisory, of the BC/BF. He would submit that whether BC can be recognized as workman/employee of the OGB is subject matter of industrial dispute stated to be pending adjudication W.P.(C) No.32402 of 2022 Page 20 of 130 before the Central Government Industrial Tribunal. Any observation in this regard at this stage would be preposterous. 7.4. Explaining further Sri Tanmay Mishra, learned Advocate submitted that bids are invited from vendors to provide Financial Inclusion Servers and Gateway so as to facilitate end-to-end solution. It is argued that the policy decision has been taken by the OGB for technology based service by introducing ATM devices, Financial Inclusion Servers and Financial Inclusion Gateway. It is submitted that though Sri Debendra Mohanta, learned Advocate for the petitioner has been attempting to impress upon that the alleged change in service condition is not policy, but in the rejoinder affidavit at paragraph 3 he has accepted such change has been effected as a consequence of policy decision of the OGB. 7.5. Sri Manoj Kumar Mishra, learned Senior Advocate along with Sri Tanmay Mishra, learned Advocate repelling the contention of learned counsel for the petitioner, Sri Debenera Mohanta, Advocate that having changed the conditions of service without adhering to the manner specified under Section 9A of the ID Act, and thereby the OGB has contravened provisions of Section 33(2)(b) thereof, drew attention of W.P.(C) No.32402 of 2022 Page 21 of 130 this Court to the provisions envisaged in Section 33A of the ID Act and contended that had the BCs been sanguine about their rights and prejudices, recourse to said provisions would have to be taken. Nevertheless, the approach of the petitioner to this Court by way of writ petition is not only premature but would frustrate the proceeding before the Central Government Industrial Tribunal. Consideration of rival contentions: 8. The first issue sought to be addressed to by this Court as emanated from the arguments would be whether this writ petition filed by the Odisha Gramya Bank Business Correspondents Association is maintainable. 8.1. It is alleged by the petitioner that the BC being placed under control of Corporate-successful bidder, but not the OGB, condition of service gets changed without following the mandate envisaged under Section 9A read with Section 33(2) of the ID Act. Sri Debendra Mohanta, learned Advocate championing the cause of the BCs claiming to be members of the Odisha Gramya Bank Business Correspondents Association submitted that the members having authorised, the Association could very well espouse the case of its members. W.P.(C) No.32402 of 2022 Page 22 of 130 8.2. Per contra, Sri Manoj Kumar Mishra, learned Senior Advocate raised serious objection and submitted that factual disputes with respect to individual service condition and status of Agreement would depend on the issue whether the writ petitioner at the behest of Association can be maintainable. 8.3. Perusal of the record reveals the following facts: i. In the cause title of the writ petition, the petitioner has described itself as: “Odisha Gramya Bank Business Correspondents Association (OGBBCA), represented through the General Secretary, Sri Pravakar Barik, Son of Prafulla Barik of Bhaskarganj (A), Sailesh Lane, P.O./P.S./ District: Balasore”. ii. The affidavit portion of the writ petition would depict as follows: “I, Pravakar Barik, aged about 37 years, Son of Prafulla Barik of Bhaskarganj (A) Sailesh Lane, PO/PS/District: Balasore, do hereby solemnly affirm and state as follows: 1. That, I am the General Secretary of Petitioner. 2. That, the fact stated above are true to the best of my knowledge and those borne out of records.” W.P.(C) No.32402 of 2022 Page 23 of 130 iii. No pleading is available to demonstrate that the members have authorised the General Secretary of the Odisha Gramya Bank Business Correspondents Association to file the case of present nature; nor is there any resolution furnished showing such fact. iv. Nothing is stated by the petitioner-Odisha Gramya Bank Business Correspondents Association to depict that there was any resolution of the Association to question the decision of the OGB, viz., RFP. v. Cursory glance at the copy of Agreement dated 05.06.2020 enclosed as Annexure-2 depicts Sri Pravakar Barik in his individual capacity entered into Agreement with OGB. vi. No list of members is available in the writ petition nor was it produced before this Court during the course of hearing. The writ petition is also not clear whether all the BCs, alleged to be members, have authorised Sri Pravakar Barik to pursue remedy before this Court by way of filing writ petition notwithstanding the subject-matter has been pending adjudication before the Central Government Industrial Tribunal. W.P.(C) No.32402 of 2022 Page 24 of 130 vii. In the Vakalatnama executed in favour of Sri Debendra Mohanta, learned Advocate the General Secretary of OGBBCA has put his signature and seal, but the record does not reveal whether the General Secretary was competent to execute the Vakalatnama and he was authorised by the Association with respect to filing of the present case. viii. There is no declaration nor does any document evince that in case an order is passed against the petitioner, all the members of the Odisha Gramya Bank Business Correspondents Association would be bound by such decision. 8.4. Therefore, this Court finds force in the argument of the learned Senior Advocate Sri Manoj Kumar Mishra, presenting the matter on behalf of the OGB that the Odisha Gramya Bank Business Correspondents Association cannot pursue the matter on behalf of the BCs engaged by the OGB by executing Agreement individually. 8.5. To buttress the objection raised by Sri Manoj Kumar Mishra, learned Senior Advocate, it may require to have reference to Tamil Nadu Survey Officers Union (Central) Vrs. The Government of Tamil Nadu, W.P. No.10465 of 2020 and W.M.P. Nos.16548 of 2020, W.P.(C) No.32402 of 2022 Page 25 of 130 16414 of 2020 and 12723 of 2020, disposed of by Order dated 28.04.2022, wherein the Madras High Court has been pleased to make the following observation: “8. The primordial contention of the petitioner Association is that without appreciating the limited scope of powers of the Village Administrative Officer, the Government of Tamil Nadu amended the Tamil Nadu Survey and Boundaries Act under Section 13 including the Village Administrative Officer as a part of G.O.Ms.No.173, Revenue and Disaster Management Department dated 26.03.2020 under Section 13(h) of the amendment to Chain Survey and Land Records Manual and such exercise of power to modify including the Village Administrative Officer is wholly without authority and the Act does not permit involving of the Village Administrative Officers in the process of surveying. According to the respondents, the writ petition itself is not maintainable, as it relates to service matter and the petitioner Association has no locus standi to challenge the impugned Government Order and further added that the petitioner's service conditions or their right for seniority / promotion will not be affected vide the impugned Government Order and it is also not correct to say that VAOs are not technically qualified to do survey of lands. It is argued by the learned Advocate General that the minimum general educational qualifications for both VAO and Firka Surveyor is a pass in SSLC and therefore, there is no question of technical W.P.(C) No.32402 of 2022 Page 26 of 130 qualification during recruitment and subsequent to appointment, field Surveyors are provided with Survey Training for 60 days and VAOs are provided with Survey Training for 30 days. *** 12. A careful reading of all the above Judgments, makes it clear that an Association either registered or unregistered, can file a writ petition under Article 226 of the Constitution of India on behalf of its members taking the cause of its members only if, (a) the members themselves are unable to approach the Court by reason of poverty, disability or socially or economically in a disadvantaged position, who are termed as „Little Indians‟; and (b) in case of public injury leading to public interest litigation provided the Association has some concern deeper than that of a way- farer or a busy body. 13. In the judgment dated 28.03.2018 in W.A.No.1792 of 2017 [The Secretary to Government, Chennai-9 and Others Vrs. The Tamil Nadu Higher Secondary Vocational Teachers Association], the Hon‟ble Division Bench has observed that „There is no question of entertaining the writ petition at the instance of the Association in a Service Matter and directing the Government to grant the benefits to the members of the Association. Nothing W.P.(C) No.32402 of 2022 Page 27 of 130 prevented the employees who worked as Vocational Instructors to approach the Court for appropriate relief. Since it is a service matter, the concerned employee has to approach the Court. There is no locus standi for the Association to approach the Court for the purpose of giving service benefits to its members. ***‟ 14. Admittedly, in the case on hand, the present writ petition has been filed on behalf of its members and the members of the petitioner’s Association are employees of the Survey & Settlement Department and they cannot be presumed to be poor, disabled or disadvantaged to approach this Court individually. In the light of the aforesaid decision of the learned Single Judge of this Court in Bharathidasan University Backward Class and Most Backward Class Employees Association Vrs. The State of Tamil Nadu, [MANU/TN/0647/2015], and the Division Bench judgment cited supra, the writ petition which pertains to service matter, is not maintainable.” 8.6. In Swakshtagrahi Sangh, Janpad Panchayat Niwas Vrs. Union of India, 2022 SCC OnLine MP 5420 the Madhya Pradesh High Court at Jabalpur observed thus: “7. The Division Bench of this Court in the matter of Prabhat Vrs. Barkatulla University, ILR 2011 MP 1692 has held that a writ petition for enforcement of the rights of its members, as distinguished from W.P.(C) No.32402 of 2022 Page 28 of 130 the rights of the Association as a body, can be filed by the Association acting through its office bearers or members, whether the Association is registered or unregistered, incorporated or not, only when the Association can satisfy the Court that if an adverse decision is given in that petition, all the members of that Association or “Body of Individuals” will be bound by the decision. It has also been held that if the same principle is not followed, immediately after adverse decision, any other members of the said Association may come before the Court in an independent writ petition saying that he has not been heard and he had not authorized such Association or office bearer or member to represent him in the litigation. 8. Therefore, to bind the members by the decision in a litigation brought before the Court on behalf of such members by any Association, it is necessary that such Association must clearly resolve that who authorized the Association to file such litigation. The resolution should also mention that the members will abide any decision rendered in such litigation. In the present case, a perusal of the resolution clearly shows that the same does not fulfil the stipulated requirement. Hence, the learned Single Judge has not committed any error while rejecting the writ petition.” 8.7. Further reference can be had in this regard to Shahpura Janjagran & Vikas Samiti Vrs. State of Madhya Pradesh, Writ Petition No.15973 of 2008, vide W.P.(C) No.32402 of 2022 Page 29 of 130 Judgment dated 05.08.2024 of the Madhya Pradesh High Court at Jabalpur [NEUTRAL CITATION NO. 2024:MPHC-JBP:39035] referring to earlier decisions in Prabhat (supra) and Swakshtagrahi Sangh (supra), observed as follows: “16. There is nothing on record to suggest that the petitioner/society represents all the residents of Shahpura C-Sector Residency. There is also nothing on record to suggest that all the members of the society had authorized the petitioner to file the petition. There is no declaration that in case if an order is passed against the petitioner, then all the members of the society will be bound by it. 17. Since the authorization letter is not in conformity with the requirement of law, as laid down by Division Bench of this Court in the cases of Prabhat (supra) and Swakshtagrahi Sangh Janpad Panchayat Niwas (supra), accordingly, the petition is also bad on that ground.” 8.8. Significant it is to notice the observation to the question— “Whether an association of persons, registered or unregistered can maintain a petition under Article 226 of the Constitution of India for the enforcement of the rights of its members as distinguished from the enforcement of its own rights?”— that was referred to Full Bench in Umesh Chand Vinod Kumar Vrs. Krishi Utpadan Mandi Samiti, W.P.(C) No.32402 of 2022 Page 30 of 130 Bharthana, 1983 SCC OnLine All 638 = AIR 1984 All 46: “It appears to us that according to this decision a joint writ petition would be validly maintainable if there is legally subsisting jural relationship of association of persons between them or if they have the same cause of action. In substance, this decision applies the same principle of procedure as was enunciated by the Full Bench of our Court in Mall Singh‟s case (1968 All LJ 210), namely, generally joinder of more than one person can be permitted in a proceeding under Article 226 where the right to relief arises out of the same act or transaction or where the petitioners are jointly interested in the cause of action and a common question of law or fact arises. In other words, joinder of more than one person is permissible when the cause of action is the same. Such joinder may not be permissible if the cause of action is similar. *** 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”). W.P.(C) No.32402 of 2022 Page 31 of 130 (2) In case of a public injury leading to public interest litigation; provided the association has some concern deeper than that of a wayfarer or a busybody, i.e., it has a special interest in the subjectmatter. (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. In other cases an Association, whether registered or unregistered, cannot maintain a petition under Article 226 for the enforcement or protection of the rights of its members, as distinguished from the enforcement of its own rights.” 8.9. Sri Debendra Mohanta, learned Advocate for the petitioner has laid stress on the following observation contained in All India Loco Running Staff Association Northern Railway Vrs. Union of India, 1984 SCC OnLine Raj 172 to contend that the Association has the locus standi to espouse the case of individual members of the Association: “18. A.B.S.K. Sangh (Rly.) Vrs. Union of India, (1981) 1 SCC 246 = AIR 1981 SC 298 was noticed. The learned Judge observed in State Bank of Bikaner Employees Association Vrs. Bank of India, 1932 (I) LLJ 413 as follows: W.P.(C) No.32402 of 2022 Page 32 of 130 „Keeping the trend with the pronouncements of the Supreme Court, it is not possible to throw out the writ petition at the threshold itself on the sole ground that it has been filed by an association of employees, without going into the merits of the other contentions. Even otherwise, the second petitioner is an individual employee and he must be deemed to be directly interested in and affected by the proposed action of the respondents. Besides the first petitioner is a registered trade union, and it is stated that it has got membership of about 5,000 who are all employees of the second respondent all over India. It cannot be stated that the rights of its members would not be affected by the proposed action of the respondents. The writ laid by the first petitioner, as representing a large body of employees of the second respondent whose rights and interest are likely to be affected, must be held to be competent. Representative actions even in writ jurisdiction cannot be thrown out on the simple ground that the body which represents the cause of its members on roll is not by itself affected. It would suffice the purpose of the rights of its members are affected; and then, as observed by the Supreme Court, collective proceedings are permissible instead of driving each individual employee affected to file an independent writ, which would result only in plurality of litigation on the common question. The Supreme Court was prepared to countenance a non-recognised Association maintaining a writ petition. As observed earlier, the first petitioner is a registered trade union and it can legitimately, be representing its members, W.P.(C) No.32402 of 2022 Page 33 of 130 employees of the second respondent, give vent to their grievances and seek redress and relief, as representing their cause.‟ 19. The aforesaid decisions of the Supreme Court and Madras High Court throw considerable light on the question relating to the maintainability of the writ petitions. In the case on hand the respective petitioners have filed the writ petitions for the enforcement of a right of their employees members which has been affected by a common and single order. The non-petitioners forfeited the earned leave of the employees, postponed the increment and denied benefits of their earlier services for the purpose of leave, passes, qualifying service and pensionary benefits. The petitioners in each of the writ petition represented large body of employees whose rights and interests have been affected. As observed in A.B.S.K.‟s case (2) if the rights of the members are affected, collective proceedings are permissible instead of bringing each individual employee affected to file a writ petition which would result in plurality of litigation on the common question. In that case the Supreme Court was prepared to countenance a non- recognised Association maintaining; the writ petition. It has been stated in the writ petitions that the affected employees are poor receiving meagre salary which is their sole main-stay, therefore, they cannot move this Court individually and hence seek justice through their Union, the petitioner of which they are members. In these circumstances the preliminary objection that the petitioners-Associations representing the W.P.(C) No.32402 of 2022 Page 34 of 130 employees affected cannot maintain the writ petition cannot be accepted and it is overruled and it is held that the petitioners are entitled to maintain these petitions.” 8.10. Said case is distinguishable on facts of the instant case. The distinctive feature in the said case in All India Loco Running Staff Association Northern Railway Vrs. Union of India, 1984 SCC OnLine Raj 172 can be found from paragraphs 9, 13 and 14 thereof, which are reproduced for better comprehension: “9. It has been stated in the preliminary reply that the writ petitions are not maintainable because each individual employee affected by the order should have filed separate writ petitions instead of filing the joint writ petition through the President or the Secretary as the case may be of the Association. In support of this objection it was stated that it was an individual cause of action and, therefore, the President or the Secretary as the case may be could not maintain it. In this connection reference was made to r. 375 of the High Court Rules, 1952 (for short “the Rules” herein). An objection was also taken that the Association has not been recognised by the Railway Administration. It was also contended that before filing the writ petitions no demand of justice was made before the cempetent authority. *** 13. I have given my most anxious and thoughtful consideration to the rival contentions in this regard. W.P.(C) No.32402 of 2022 Page 35 of 130 The material part of Rule 375 of the Rules occurs in Chapter XXII of Part IV which reads, as under: „(4) An application by more than one person shall not be entertained except when the relief claimed is founded on the same cause of action.‟ 14. In Chand Mal Vrs. State, AIR 1968 Raj. 20, the expression „same cause of action‟ was considered. In that case there was a challenge to the validity of the provisions of the Rajasthan Agricultural Produce Markets Act (Act No. XXXVIII of 1561), the Rules made thereunder and the bye-laws made by the Krishi Upaj Mandi Samiti, Kishangarh. The objection regarding the maintainability of the writ petition was raised on the ground that the relief claimed by the petitioners in that case could not be said to be founded on the same cause of action. It was submitted that what was affected by law if at all were personal or individual rights of several petitioners to carry on their trade or business and consequently it being infringement of individual right, cause of action that petitioners‟ claim could not be said to be joint or same so as to entitle them to maintain joint petition. It was held that though petitioners‟ were all challenging same law in same way and they might even be affected in same way, that was not sufficient to hold that they had same rights which were allegedly infringed by law and consequently same cause of action. Mr. Mridul, learned counsel for the petitioners strongly refuted that Rule 375(4) of the Rules is applicable to the cases on hand on the ground that it is not a petition on behalf of petitioner by more than one person, for W.P.(C) No.32402 of 2022 Page 36 of 130 it is a petition by the Association seeking to enforce the rights of its members employed with non- petitioners. He pressed that Rule 375 is not attracted. It is not necessary to make a probe in this matter in view of the recent trend of the decisions of the Supreme Court as Well as of the other High Courts. In A.B.S.K. Sangh (Rly.) Vrs. Union of India, (1981) 1 SCC 246 = AIR 1981 SC 298, Akhil Bhartiya Soshit Karamchari Sangh (Railway) represented by its Assitant General Secretary on behalf of the Association etc. (petitioner) filed writ petition under Article 226 of the Constitution. A contention was raised that it is a non-recognised Association and so whether it can maintain the writ petition. It was observed in para 63 as under: „A technical point is taken in the counter-affidavit that the 1st petitioner is an unrecognised association and that, therefore, the petition to that extent is not sustainable. It has to be overruled. Whether the petitioners belong to a recognised union or not, the fact remains that a large body of persons with grievance exists and they have approached this Court under Article 32. Our current processual jurisprudence is not of individualistic Anglo-Indian mould. It is broad-based and people- oriented, and envisions access to justice through „class action‟, public interest litigation, and „representative proceedings‟. Indeed little Indians in large numbers seeking remedies in courts through collective proceedings, instead of being driven to an expensive plurality of litigations, is an affirmation of participative justice in our democracy. We have no W.P.(C) No.32402 of 2022 Page 37 of 130 hesitation in holding that the narrow concept of „cause of action‟ and „persons aggrieved‟ and individual litigation is becoming obsolescent in some jurisdictions. It must fairly be stated that the learned. Attorney General has taken no objection to a non-recognised association maintaining the writ petitions.” 8.11. Further reading of the said judgment in All India Loco Running Staff Association Northern Railway (supra), it appears the facts based on which the said decision came to be held that writ petition is maintainable at the behest of said Association are these: “5. I will notice facts leading to S.B. Civil Writ Petition No. 2277 of 1983. The petitioner is a Union representing employees working at the various Loco Running Sheds of Jodhpur Division of the Northern Railway. It has inter alia, been stated in para 1 of the writ petition as under: „By this writ petition, the petitioner seeks to enforce the fundamental statutory and other rights of its member citizens employed with respondents No. 1 and 2 in Loco Running Sheds of Jodhpur Division of Northern Railway. These employees are working as Drivers, Shunters, Diesel Assistants and Fireman etc.‟ ***” 8.12. From the factual details obtained in All India Loco Running Staff Association Northern Railway (supra) it can be culled out that the Association comprising Loco Running Staff of Northern Railway ventilated the W.P.(C) No.32402 of 2022 Page 38 of 130 collective grievance maintained petition under Article 226 of the Constitution of India. Furthermore, there was mention in the judgment about specific provision in the concerned Rules envisaging application by more than one person. However, in the case at hand, it is the individual cause as Business Correspondence is sought to be protected by the Odisha Gramya Bank Business Correspondents Association. As is apparent from Annexure-2 of the writ petition the Agreement of the OGB with the individual BC was for one year subject to renewal. Despite query from this Court, no such specific rule could be cited by Sri Debendra Mohanta, learned Advocate, but he tried to justify the maintainability of the writ petition. 8.13. This Court wishes to have regard to the following ratio laid down by the Hon’ble Supreme Court of India in the case of Union of India Vrs. Arulmozhi Iniarasu, (2011) 7 SCC 397: “Before examining the first limb of the question, formulated above, it would be instructive to note, as a preface, the well-settled principle of law in the matter of applying precedents that the Court should not place reliance on decisions without discussing as to how the fact situation of the case before it fits in with the fact situation of the decision on which reliance is placed. The observations of the courts are neither to be read as Euclid‟s theorems nor as provisions of statute and that W.P.(C) No.32402 of 2022 Page 39 of 130 too taken out of their context. These observations must be read in the context in which they appear to have been stated. Disposal of cases by blindly placing reliance on a decision is not proper because one additional or different fact may make a world of difference between conclusions in two cases. [Ref. Bharat Petroleum Corpn. Ltd. Vrs. N.R. Vairamani, (2004) 8 SCC 579; Sarva Shramik Sanghatana (KV) Vrs. State of Maharashtra, (2008) 1 SCC 494 and Bhuwalka Steel Industries Ltd. Vrs. Bombay Iron & Steel Labour Board, (2010) 2 SCC 273.” 8.14. In the case of present nature, claim of each individual is required to be considered independently vis-à-vis terms of Agreement entered into between the OGB and the BC. It is also not the case of the petitioner-Odisha Gramya Bank Business Correspondents Association in the writ application that the members have difficulty in approaching this Court individually; nor has it been shown by the petitioner that any resolution was passed by the members authorising Pravakar Barik, the General Secretary of the Odisha Gramya Bank Business Correspondents Association to pursue remedy before this Court under Article 226 of the Constitution of India. Not a single scrap of paper has been made part of the record to indicate that the BCs are members of the Odisha Gramya Bank Business Correspondents Association and authorized the General Secretary of Odisha Gramya Bank Business W.P.(C) No.32402 of 2022 Page 40 of 130 Correspondents Association to take legal proceedings on behalf of its members. As has already been stated above, the affidavit and cause title as also averment of the writ petition are silent about such fact. Save and except making statement at paragraph 1 of the writ petition that “the petitioner is an Association registered under the Trade Unions Act, 1926 and espouses the causes of the Business Correspondent Agents engaged by opposite party No.5-Bank as per the Guidelines of the Reserve Bank of India”, there is nothing on record to suggest that the authorization has been accorded by members of the Odisha Gramya Bank Business Correspondents Association to file the writ petition. Moreover, it is admitted and remained undisputed that the cause of regularization on adjudication as to whether the BC could be treated as employee-workman of the OGB and the Agreement would elevate the BC to the status of workman- employee of the OGB is yet to be decided by the Central Government Industrial Tribunal where the ID Case No.34 of 2022 is pending. 8.15. The observations in All India Loco Running Staff Association Northern Railway Vrs. Union of India, 1984 SCC OnLine Raj 172 based on fact and analysis of particular rule referred to therein cannot be said to have general proposition that the Association without W.P.(C) No.32402 of 2022 Page 41 of 130 being properly authorised and in absence any document showing resolution of the members of the Association to file writ petition under Article 226 of the Constitution of India could ventilate grievance of cause of action of engagees. There being apparent distinctive feature observed All India Loco Running Staff Association Northern Railway Vrs. Union of India, 1984 SCC OnLine Raj 172 the proposition of the counsel for the petitioner that the writ petition is maintainable at the behest of Odisha Gramya Bank Business Correspondents Association is liable to be repelled. The writ petition is, therefore, defective. 8.16. Apart from the above, important it is to take note of Clause 14 under the Heading “Miscellaneous” of Agreement dated 05.06.2020 (Annexure-2), which inter alia reads as follows: “(d) Neither this agreement nor any provision hereof is intend to confer upon any person other than the parties to this Agreement any rights or remedies hereunder. (j) The BC/BF shall not assign or transfer all or any of its rights, benefits or obligations under this Agreement without the approval of the Odisha Gramya Bank Bank. The Odisha Gramya Bank may at any time assign or transfer all or any of its rights, benefits and obligations under this Agreement. W.P.(C) No.32402 of 2022 Page 42 of 130 (k) The BC/BF agree that they shall not use the logo, trademark, copyright of other proprietary right of the Bank in any advertisement of publicity materials or any other written communication with any other party, without the prior written consent of the Bank. (i) This Agreement shall not be construed as joint venture. Each party shall be responsible for all its obligation towards its respective employee. No employee of any of the two parties shall claim to be employee of other party.” 8.17. Glossing through the Agreement as a whole would lead to suggest that the BCA is an independent person to handle the job entrusted/assigned and it can also do the work done through others by engaging its own employees/personnel. It is also stipulated that the individual right and remedy cannot be transferred or conferred on other party. The main thrust of argument of Sri Debendra Mohanta, learned Advocate is attack on the change in service condition, which, in the considered opinion of this Court, affects the person concerned-BC individually. 8.18. For the reasons ascribed and discussions made supra, the writ petition filed by the Odisha Gramya Bank Business Correspondents Association is incompetent. 9. Notwithstanding above question of maintainability that arose during the course of hearing of present W.P.(C) No.32402 of 2022 Page 43 of 130 case, Sri Debendra Mohanta, learned Advocate sought to insist for a decision on merit of the matter too being conscious of the fact that the observation made herein may have repercussion on the dispute pending before the Central Government Industrial Tribunal. 9.1. Therefore, the next contention of Sri Debendra Mohanta, Advocate that there being flagrant violation of requirement stipulated in Section 9A read with Section 33(2)(b) of the ID Act, the writ petition is liable to be allowed by nullifying the effect of “Request for Proposal for Selection of Corporate Business Correspondent with End-to-End Financial Inclusion with Technology” vide Annexure-9 is considered. 9.2. Sri Manoj Kumar Mishra, learned Senior Advocate for the OGB adverted to such stance of the learned counsel for the petitioner by making reference to Section 33A of the ID Act and contended that the petitioner had the scope to approach the learned Central Government Industrial Tribunal by lodging complaint but should not have approached this Court straightway. Simultaneous proceeding is anathema to the judicial adjudicatory process. 9.3. At this juncture it may be expedient to take note of provisions contained in Sections 9A, 9B, 33 and 33A of the ID Act, which read as under: W.P.(C) No.32402 of 2022 Page 44 of 130 “Chapter Ii-A Notice of Change 9A. Notice of change.— No employer, who purposes to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule1, shall effect such change,— (a) without giving to the workman likely to be affected by such change a notice in the prescribed manner of the nature of the change proposed to be effected; or (b) within twenty-one days of giving such notice: Provided that no notice shall be required for effecting any such change— 1 Fourth Schedule stands thus: “The Fourth Schedule (See Section 9A) Conditions of Service for change of which Notice is to be given 1. Wages, including the period and mode of payment; 2. Contribution paid, or payable, by the employer to any provident fund or pension fund or for the benefit of the workmen under any law for the time being in force; 3. Compensatory and other allowances; 4. Hours of work and rest intervals; 5. Leave with wages and holidays; 6. Starting alteration or discontinuance of shift working otherwise than in accordance with standing orders; 7. Classification by grades; 8. Withdrawal of any customary concession or privilege or change in usage; 9. Introduction of new rules of discipline, or alteration of existing rules, except in so far as they are provided in standing orders; 10. Rationalisation, standardisation or improvement of plant or technique which is likely to lead to retrenchment of workmen; 11. Any increases or reduction (other than casual) in the number of persons employed or to be employed in any occupation or process or department or shift, not occasioned by circumstances over which the employer has no control.” W.P.(C) No.32402 of 2022 Page 45 of 130 (a) where the change is effected in pursuance of any settlement or award; or (b) where the workmen likely to be affected by the change are persons to whom the Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Service Regulations, Civilians in Defence Services (Classification, Control and Appeal) Rules or the Indian Railway Establishment Code or any other rules or regulations that may be notified in this behalf by the appropriate Government in the Official Gazette, apply. 9B. Power of Government to exempt.— Where the appropriate Government is of opinion that the application of the provisions of Section 9A to any class of industrial establishments or to any class of workmen employed in any industrial establishment affect the employers in relation thereto so prejudicially that such application may cause serious repercussion on the industry concerned and that public interest so requires, the appropriate Government may, by notification in the Official Gazette, direct that the provisions of the said section shall not apply, or shall apply, subject to such conditions as may be specified in the notification, to that class of industrial establishments or to that class of workmen employed in any industrial establishment. W.P.(C) No.32402 of 2022 Page 46 of 130 Chapter VII Miscellaneous 33. Conditions of service, etc. to remain unchanged under certain circumstances during pendency of proceedings.— (1) During the pendency of any conciliation proceedings before a conciliation officer or a Board or of any proceeding before an arbitrator or] a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall,— (a) in regard to any matter connected with dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceedings; or (b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending. (2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied between him and the workman— W.P.(C) No.32402 of 2022 Page 47 of 130 (a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or (b) for any misconduct not connected with the dispute, discharge or punish whether by dismissal or otherwise, that workman: Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer. (3) Notwithstanding anything contained in sub- section (2) no employer shall, during the pendency of any such proceeding in respect of an industrial dispute, take any action against any protected workman concerned in such dispute— (a) by altering, to the prejudice of such protected workman, the conditions of service applicable to him immediately before the commencement of such proceeding; or (b) by discharging or punishing, whether by dismissal or otherwise such protected workman, save with the express permission in writing of the authority before which the proceeding is pending. Explanation.— W.P.(C) No.32402 of 2022 Page 48 of 130 For the purposes of this sub-section, a “PROTECTED WORKMAN” in relation to an establishment, means a workman, who being a member of the executive or other office bearer of a registered trade union connected with the establishment, is recognized as such in accordance with rules made in this behalf. (4) In every establishment, the number of workmen to be recognized as protected workmen for the purposes of sub-section (3) shall be one per cent of the total number of workmen employed therein subject to a minimum number of five protected workmen and a maximum number of one hundred protected workmen and for this aforesaid purpose, the appropriate Government may make rules providing for the distribution of such protected workmen among various trade unions, if any, connected with the establishment and the manner in which the workmen may be chosen and recognised as protected workmen. (5) Where an employer makes an application to a conciliation officer, Board, an arbitrator, a Labour Court, Tribunal or National Tribunal under the proviso to sub-section (2) for approval of the action taken by him, the authority concerned shall, without delay, hear such application and pass, within a period of three months from the date of receipt of such application such order in relation thereto as it deems fit: Provided that where any such authority considers it necessary or expedient so to do, it may, for reasons to be recorded in writing extend such period by such further period as it may think fit: W.P.(C) No.32402 of 2022 Page 49 of 130 Provided further that no proceedings before any such authority shall lapse merely on the ground that any period specified in this sub-section had expired without such proceedings being completed. 33A. Special provision for adjudication as to whether conditions of service etc. changed during pendency of proceeding.— Where an employer contravenes the provisions of Section 33 during the pendency of proceedings before a conciliation officer, Board, an arbitrator, a Labour Court, Tribunal or National Tribunal any employee aggrieved by such contravention, may make a complaint in writing in the prescribed manner,— (a) to such conciliation officer or Board, and the conciliation officer or Board shall take such complaint into account in mediating in, and promoting the settlement of, such industrial dispute; and (b) to such arbitrator, Labour Court, Tribunal, or National Tribunal and on receipt of such complaint, the arbitrator, Labour Court, Tribunal or National Tribunal as the case may be, shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act and shall submit his or its award to the appropriate Government and the provisions of this Act shall apply accordingly.” W.P.(C) No.32402 of 2022 Page 50 of 130 9.4. This Court, upon conjoint reading of the above statutory provisions, finds sufficient force in the submission of Sri Manoj Kumar Mishra, learned Senior Advocate that the provisions relate to undisputed fact of employee having raised the dispute before the fora mentioned therein. In the instant case, the issue, whether the BC engaged on the basis of Agreement for a period of one year subject, of course, to renewal, could be treated as employee/workman so that regularisation in service can be considered, is pending adjudication before the Central Government Industrial Tribunal. 9.5. At paragraph 12 of the counter affidavit filed by the OGB, it has been categorically asserted that “there is no employer-employee relationship as BCs are engaged by an agreement. The said agreement is a principal to principal / Business to Business (B2B) contract. The BCAs are treated as individual business entities like a proprietorship concern.” 9.6. In such view of the matter, the terms of Agreement could not be construed to have effect of condition of service. A feeble attempt has been made by Sri Debendra Mohanta, learned Advocate by stating that for selection of Business Correspondents certain qualifications are prescribed under Master Circular W.P.(C) No.32402 of 2022 Page 51 of 130 dated 03.09.2020 (Annexure-D/4). It is submitted that the qualification of BC has been prescribed as “10th pass/SSC/SSLC/Matriculation or equivalent qualification” with clearance in “certificate examination for Business Correspondents from IIBF to continue working as a BC within the stipulated time as advised by IBA”. However, this Court having taken into consideration that the engagement of BC on entering into Agreement for a period of one year (Annexure-2) feels it to observe that the BC with eyes wide open offers to be engaged with conditions stipulated in the clause relevant for termination/non- renewal of agreement beyond the stipulated period. 9.7. Sri Debendra Mohanta, learned Advocate has tried to persuade this Court by referring to Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vrs. Ram Gopal Sharma, AIR 2002 SC 643 = (2002) 1 SCR 284. The said reported Judgment interpreted the requirement of permission under Section 33(2) of the ID Act and consequence of non-compliance in the following terms: “1. From the order of reference made in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vrs. Ram Gopal Sharma, (1994) 6 SCC 522 the question that arises for consideration is: „If the approval is not granted under Section 33(2)(b) of the Industrial Disputes Act, 1947, W.P.(C) No.32402 of 2022 Page 52 of 130 whether the order of dismissal becomes ineffective from the date it was passed or from the date of non-approval of the order of dismissal and whether failure to make application under Section 33(2)(b) would not render the order of dismissal inoperative?‟ *** 13. The proviso to Section 33(2)(b), as can be seen from its very unambiguous and clear language, is mandatory. This apart, from the object of Section 33 and in the context of the proviso to Section 33(2)(b), it is obvious that the conditions contained in the said proviso are to be essentially complied with. Further, any employer who contravenes the provisions of Section 33 invites a punishment under Section 31(1) with imprisonment for a term which may extend to six months or with fine which may extend to Rs 1000 or with both. This penal provision is again a pointer of the mandatory nature of the proviso to comply with the conditions stated therein. To put it in another way, the said conditions being mandatory, are to be satisfied if an order of discharge or dismissal passed under Section 33(2)(b) is to be operative. If an employer desires to take benefit of the said provision for passing an order of discharge or dismissal of an employee, he has also to take the burden of discharging the statutory obligation placed on him in the said proviso. Taking a contrary view that an order of discharge or dismissal passed by an employer in contravention of the mandatory conditions contained in the proviso does not render such an order inoperative W.P.(C) No.32402 of 2022 Page 53 of 130 or void, defeats the very purpose of the proviso and it becomes meaningless. It is well-settled rule of interpretation that no part of statute shall be construed as unnecessary or superfluous. The proviso cannot be diluted or disobeyed by an employer. He cannot disobey the mandatory provision and then say that the order of discharge or dismissal made in contravention of Section 33(2)(b) is not void or inoperative. He cannot be permitted to take advantage of his own wrong. The interpretation of statute must be such that it should advance the legislative intent and serve the purpose for which it is made rather than to frustrate it. The proviso to Section 33(2)(b) affords protection to a workman to safeguard his interest and it is a shield against victimization and unfair labour practice by the employer during the pendency of industrial dispute when the relationship between them is already strained. An employer cannot be permitted to use the provision of Section 33(2)(b) to ease out a workman without complying with the conditions contained in the said proviso for any alleged misconduct said to be unconnected with the already pending industrial dispute. The protection afforded to a workman under the said provision cannot be taken away. If it is to be held that an order of discharge or dismissal passed by the employer without complying with the requirements of the said proviso is not void or inoperative, the employer may with impunity discharge or dismiss a workman. W.P.(C) No.32402 of 2022 Page 54 of 130 14. Where an application is made under Section 33(2)(b) proviso, the authority before which the proceeding is pending for approval of the action taken by the employer has to examine whether the order of dismissal or discharge is bona fide; whether it was by way of victimization or unfair labour practice; whether the conditions contained in the proviso were complied with or not etc. If the authority refuses to grant approval obviously it follows that the employee continues to be in service as if the order of discharge or dismissal never had been passed. The order of dismissal or discharge passed invoking Section 33(2)(b) dismissing or discharging an employee brings an end of relationship of the employer and employee from the date of his dismissal or discharge but that order remains incomplete and remains inchoate as it is subject to approval of the authority under the said provision. In other words, this relationship comes to an end de jure only when the authority grants approval. If approval is not given, nothing more is required to be done by the employee, as it will have to be deemed that the order of discharge or dismissal had never been passed. Consequence of it is that the employee is deemed to have continued in service entitling him to all the benefits available. This being the position there is no need of a separate or specific order for his reinstatement. But on the other hand, if approval is given by the authority and if the employee is aggrieved by such an approval, he is entitled to make a complaint under Section 33-A challenging the order granting approval on any of the grounds available to him. Section 33-A is W.P.(C) No.32402 of 2022 Page 55 of 130 available only to an employee and is intended to save his time and trouble inasmuch as he can straightaway make a complaint before the very authority where the industrial dispute is already pending between the parties challenging the order of approval instead of making efforts to raise an industrial dispute, get a reference and thereafter adjudication. In this view, it is not correct to say that even though where the order of discharge or dismissal is inoperative for contravention of the mandatory conditions contained in the proviso or where the approval is refused, a workman should still make a complaint under Section 33-A and that the order of dismissal or discharge becomes invalid or void only when it is set aside under Section 33-A and that till such time he should suffer misery of unemployment in spite of the statutory protection given to him by the proviso to Section 33(2)(b). It is not correct to say that where the order of discharge or dismissal becomes inoperative because of contravention of proviso to Section 33(2)(b), Section 33-A would be meaningless and futile. The said section has a definite purpose to serve, as already stated above, enabling an employee to make a complaint, if aggrieved by the order of the approval granted. 15. The view that when no application is made or the one made is withdrawn, there is no order of refusal of such application on merit and as such the order of dismissal or discharge does not become void or inoperative unless such an order is W.P.(C) No.32402 of 2022 Page 56 of 130 set aside under Section 33-A, cannot be accepted. In our view, not making an application under Section 33(2)(b) seeking approval or withdrawing an application once made before any order is made thereon, is a clear case of contravention of the proviso to Section 33(2)(b). An employer who does not make an application under Section 33(2)(b) or withdraws the one made, cannot be rewarded by relieving him of the statutory obligation created on him to make such an application. If it is so done, he will be happier or more comfortable than an employer who obeys the command of law and makes an application inviting scrutiny of the authority in the matter of granting approval of the action taken by him. Adherence to and obedience of law should be obvious and necessary in a system governed by rule of law. An employer by design can avoid to make an application after dismissing or discharging an employee or file it and withdraw before any order is passed on it, on its merits, to take a position that such order is not inoperative or void till it is set aside under Section 33-A notwithstanding the contravention of Section 33(2)(b) proviso, driving the employee to have recourse to one or more proceedings by making a complaint under Section 33-A or to raise another industrial dispute or to make a complaint under Section 31(1). Such an approach destroys the protection specifically and expressly given to an employee under the said proviso as against possible victimization, unfair labour practice or harassment because of pendency of industrial W.P.(C) No.32402 of 2022 Page 57 of 130 dispute so that an employee can be saved from hardship of unemployment. 16. Section 31 speaks of penalty in respect of the offences stated therein. This provision is not intended to give any remedy to an aggrieved employee. It is only to punish the offender. The argument that Section 31 provides a remedy to an employee for contravention of Section 33 is unacceptable. Merely because penal provision is available or a workman has a further remedy under Section 33-A to challenge the approval granted, it cannot be said that the order of discharge or dismissal does not become inoperative or invalid unless set aside under Section 33-A. There is nothing in Sections 31, 33 and 33-A to suggest otherwise even reading them together in the context. These sections are intended to serve different purposes. 19. In these appeals, Respondent 1 was employed as Clerk-cum-Cashier with the appellant. He was dismissed from service. As certain proceedings were pending before the Industrial Tribunal, Jaipur, an application seeking approval of the Tribunal for the said dismissal was submitted by the appellant before the Tribunal under Section 33(2)(b). The said application was contested on various grounds by the respondent including that the appellant-Bank had failed to comply with the provisions of Section 33(2)(b) as salary for one month was not paid. The Tribunal, on facts, found that the appellant failed to comply with the provisions of Section 33(2)(b) and in that view dismissed the application. The appellant W.P.(C) No.32402 of 2022 Page 58 of 130 challenged the order of the Tribunal before the High Court in Writ Petition No. 666 of 1980. The same was dismissed concurring with the order passed by the Tribunal.” 9.8. Careful reading of said judgment and taking note of interpretation of Section 31, 33 and 33A of the ID Act, it is transpired that the said case rested on the fact that the Respondent No.1 therein was “employed” as Clerk-cum-Cashier with the Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. 9.9. In the present case, the letter of engagement of BC is extracted for better appreciation of factually distinctive feature: “Odisha Gramya Bank Khaparapada Branch Letter No.BO/MISC/44/2018 31.07.2018 To Mr. Swagat Kumar Sahoo Son of Anup Kumar Sahoo At: Srirampur P.O.: Srirampur Road, Via: Singla P.S.: Baliapal, District: Baleswar PIN: 756023 Ref.: Engagement at Business Correspondent (BC) of the Branch Khaparapada Issuance of provisional engagement letter of offer W.P.(C) No.32402 of 2022 Page 59 of 130 With reference to Regional Office, Baleswar Letter No: BO/FI/188/18 dated 30.07.2018 and your application dated 20.07.2018 in response to OLM sponsorship on above subject for engagement as Business Correspondent (BC) of our branch, we advise you as under. The objective of Government of India is to provide doorstep banking services to customers in allotted area of BC with adherence of norms under Financial Inclusion (FI) Programme. You are required to extend doorstep banking facilities/ services to the people of the allotted BC area and the branch clientele as per norms and procedures of the Bank from time to time. As intimated, you have been provisionally selected by the Competent Authority as Business Correspondent (BC) of our branch for the SSA Srirampur GP initially for a period of one year only subject to ratification of our Head Office. Your above provisional engagement as Business Correspondent (BC) is subject to terms and conditions laid down in various Letters/Circulars and Guidelines issued thereof from time to time. On joining, you are to maintain fidelity and secrecy and must not act to the detriment of Bank‟s interest. You are to execute an Agreement on yearly basis with the Bank in IBA approved format immediately after joining as BC. W.P.(C) No.32402 of 2022 Page 60 of 130 You are to deposit a cash security of Rs.25000/- which will be kept as security deposit in shape of RDP for a minimum period of five years. Yours services shall be discontinued by either of the parties by giving one month notice to the counter party. Your performance will be reviewed from time to time by the Bank and if found satisfactory, it may be recommend for renewal after one year. Any kind of your indulgence in fraud, embezzlement, misappropriation or malpractices etc. will be viewed with extreme disfavour and your services shall be nontinued/terminated immediately. Bank reserves its right to make any kind of additions and alters of terms and conditions etc. without assigning any reason thereof from time to time. If you are agreeable, you are advised to return a copy of this letter against acknowledgment with full signature and date thereon latest by dated 31.07.2018 falling which it will be presumed that you are no longer interested to act as BC of the Branch and this offer letter will be treated as lapsed automatically. Please acknowledgment receipt. Yours faithfully Sd/- Manager Odisha Gramya Bank Khaparapada” W.P.(C) No.32402 of 2022 Page 61 of 130 9.10. The Agreement dated 05.06.2020 would show that the term of engagement was for one year and the agreement is “on a principal to principal basis”. Furthermore, Clause 6 of the Agreement reads thus: “*** BC/BF shall perform its obligations under this Agreement as an independent party. Neither this Agreement not the BC/BF’s performance of obligations under this Agreement shall create an association, partnership, joint venture, or relationship of principal and agent, principal employer-contractor, master and servant, or employer and employee, between the Bank and the BC/BF or its sub-agents. The BC/BF has agreed to employ his/her/its/their own workmen for providing services under this agreement. The employees of BC/BF/or its agents will be under the total control, both administrative and supervisory, of the BC/BF. The BC/BF can have similar arrangements with other Banks through the same employees at the point of customer interface if the technology available with such other Banks, who have also appointed the BC/BF to render service similar to all or any of the services provided under this Agreement. *** Neither BC/BF nor its employees, agents, representatives sub-contractors shall hold out or represent as agents of the Bank.” W.P.(C) No.32402 of 2022 Page 62 of 130 9.11. These covenants would go to show that the BC is not employee as scope is available to employ his/her/its/ their own workmen. 9.12. It may be necessary to quote the affirmation made by the opposite party Nos.4 and 5 in their counter affidavit, which is to the following effect: “9. That the contents of paragraph 5 are denied. The Business Correspondent are engaged as per Bank‟s Circular No.PMT/22/20-21, dated 03.09.2020. There is no interview or written exam for selection BCs. Whereas IIBF certification for working as BC is mandatory as per IBA Circular No.SB/CIR/FI-BC/2019-20/7482, dated 18.06.2019.” 9.13. Therefore, the proposition of law as propounded in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vrs. Ram Gopal Sharma, AIR 2002 SC 643 = (2002) 1 SCR 284 shall not come to the aid of the petitioner. Whether the BC can be regularised in service would fall within the purview of factual dispute which is stated to be pending before the Central Government Industrial Tribunal. 9.14. Under aforesaid premises, the apprehension of the counsel for the petitioner that there was violation of provisions of Section 9A read with Section 33(2) of the ID Act is without comprehension. W.P.(C) No.32402 of 2022 Page 63 of 130 10. Bearing in mind the exposition of law with respect to the aspect that it is the domain of the employer to formulate policies with regard to service conditions, the contention of the petitioner is tested. With respect to scope of judicial review in the context of policy matters, this Court in Sona Spun Pipe Industries Ltd. Vrs. State of Odisha, 2020 SCC OnLine Ori 991 = 2020 (III) ILR-CUT 364 made the following observations: “27. The famous “Wednesbury Case” Associated Provincial Picture Houses Ltd. Vrs. Wednesburry Corpn., (1948) 1 K.B. 223 = (1947) 2 All ER 680, is considered to be landmark in so far as the basic principles relating to judicial review of administrative or statutory direction are concerned. In the said judgment, it has been observed by Lord Greene M.R. that „It is clear that the local authority are entrusted by Parliament with the decision on a matter which the knowledge and experience of that authority can best be trusted to deal with. The subject- matter with which the condition deals is one relevant for its consideration. They have considered it and come to a decision upon it. It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere.‟ 28. In Tata Cellular Vrs. Union of India, (1994) 6 SCC 651, the Supreme Court while dealing with scope W.P.(C) No.32402 of 2022 Page 64 of 130 of judicial review in the matter of administrative decision, has observed as under: „71. Judicial quest in administrative matters has been to find the right balance between the administrative discretion to decide matters whether contractual or political in nature or issues of social policy; thus they are not essentially justifiable and the need to remedy any unfairness. Such an unfairness is set right by judicial review. 72. Lord Scarman in Nottinghamshir County Council Vrs. Secretary of State for the Environment, (1986) A.C. 240 at 251 proclaimed: „Judicial review‟ is a great weapon in the hands of the Judges; but the Judges must observe the constitutional limits set by our parliamentary system upon the exercise of this beneficent power. 73. Observance of judicial restraint is currently the mood in England. The judicial power of review is exercise to rein in any unbridled executive functioning. The restraint has two contemporary manifestations. One is the ambit of judicial intervention; the other covers the scope of the Court‟s ability to quash an administrative decision on its merits. These restraints bear the hallmarks of judicial control over administrative action. 74. Judicial review is concerned with reviewing not the merits of the decision in support of which the application of judicial review is W.P.(C) No.32402 of 2022 Page 65 of 130 made, but the decision making process itself.” 29. The Supreme court in Municipal Corporation, Ujjain Vrs. B.V.G. Indian Ltd., (2018) 5 SCC 462, while dealing with the scope of judicial review by the High Court, held that the modern trend points to judicial restraint in administrative action, the Court does not sit as a Court of Appeal but merely reviews the manner in which the decision was made, and further that the judicial review of administrative action is intended to prevent arbitrariness. If the process adopted or decision made by the authority is not mala fide, not intended to favour someone and is neither arbitrary nor irrational, and if it cannot be concluded that no responsible authority acting reasonably could have reached such a decision and if the public interest is not affected, no interference should be made under Article 226 of the Constitution. Relevant paragraphs of the report, containing such observations are reproduced hereunder: „10. The modern trend points to judicial restraint in administrative action. The Court does not sit as a Court of Appeal but merely reviews the manner in which the decision was made. The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted, it will be substituting its own decision without the necessary expertise which itself may be fallible. The Government must have freedom of contract. In other W.P.(C) No.32402 of 2022 Page 66 of 130 words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or a quasi-administrative sphere. However, the decision must not only be tested by the application of the Wednesbury principle of reasonableness, but must also be free from arbitrariness and not affected by bias or actuated by mala fides.‟ *** 14. The judicial review of administrative action is intended to prevent arbitrariness. The purpose of judicial review of administrative action is to check whether the choice or decision is made lawfully and not to check whether the choice or decision is sound. If the process adopted or decision made by the authority is not mala fide and not intended to favour someone; if the process adopted or decision made is neither so arbitrary nor irrational that under the facts of the case it can be concluded that no responsible authority acting reasonably and in accordance with relevant law could have reached such a decision; and if the public interest is not affected, there should be no interference under Article 226. *** 44. As rightly contended by respondent No.3, a statutory authority granting licences should have the latitude to select the best offer on the terms and conditions prescribed. The technical expert in his report categorically stated that, W.P.(C) No.32402 of 2022 Page 67 of 130 „All the above aspects demand high level of Technicalities and Expertise rather than just depending on lowest financial price quote for a material transport.‟ As clarified earlier, the power of judicial review can be exercised only if there is unreasonableness, irrationality or arbitrariness and in order to avoid bias and mala fides. This Court in Afcons Infrastructure, (2016) 16 SCC 818 = AIR 2016 SC 4305 held the same in the following manner: „13. In other words, a mere disagreement with the decision making process or the decision of the administrative authority is no reason for a constitutional Court to interfere. The threshold of mala fides, intention to favour someone or arbitrariness, irrationality or perversity must be met before the constitutional Court. *** 64. Thus, the questions to be decided in this appeal are answered as follows: (64.1)Under the scope of judicial review, the High Court could not ordinarily interfere with the judgment of the expert consultant on the issues of technical qualifications of a bidder when the consultant takes into consideration various factors including the basis of non-performance of the bidder;‟ W.P.(C) No.32402 of 2022 Page 68 of 130 30. In M.P. Gangadharan Vrs. State of Kerala, (2006) 6 SCC 162, the Supreme Court considered a question as to whether a Family Court can be shifted from one place to another within the area of its jurisdiction. The Court while discussing the scope of judicial review in such administrative functions, observed that the constitutional requirement for judging the question of reasonableness and fairness on the part of the statutory authority must be considered having regard to the factual matrix obtaining in each case. It cannot be put in a straight-jacket formula. It must be considered keeping in view, the doctrine of flexibility. Before an action is struck down, the court must be satisfied that a case has been made out for exercise of power of judicial review. Referring to the recent development of law, the Court further observed that „We are not unmindful of the development of the law that from the doctrine of Wednesbury Unreasonableness, the court is leaning towards the doctrine of proportionality. But in a case of this nature, the doctrine of proportionality must also be applied having regard to the purport and object for which the Act was enacted‟. 31. In Maharashtra Land Development Corporation Vrs. State of Maharashtra, (2011) 15 SCC 616, the Supreme Court observed that the Wednesbury principle of reasonableness has given way to the doctrine of proportionality. As per the Wednesbury principles, administrative action can be subject to judicial review on the grounds of illegality, irrationality or procedural impropriety. The W.P.(C) No.32402 of 2022 Page 69 of 130 principle of proportionality envisages that a public authority ought to maintain a sense of proportion between particular goals and the means employed to achieve those goals, so that administrative action impinges on the individual rights to the minimum extent to preserve public interest. It was held by the Court that administrative action ought to bear a reasonable relationship to the general purpose for which the power has been conferred. Any administrative authority while exercising a discretionary power will have to necessarily establish that its decision is balanced and in proportion to the object of the power conferred. The test of proportionality is concerned with the way in which the decision maker has ordered his priorities, i.e. the attribution of relative importance to the factors in the case. It is not so much the correctness of the decision that is called into question, but the method to reach the same. If an administrative action is contrary to law, improper, irrational or otherwise unreasonable, a court competent to do so can interfere with the same while exercising its power of judicial review. It was further held that, the principle of proportionality therefore implies that the Court has to necessarily go into the advantages and disadvantages of any administrative action called into question. Unless the impugned administrative action is advantageous and in public interest such an action cannot be upheld. At the core of this principle is the scrutiny of the administrative action to examine whether the power conferred is exercised in proportion to the purpose for which it has been conferred. W.P.(C) No.32402 of 2022 Page 70 of 130 32. It is the settled legal proposition that normally the Constitutional Court should be slow to interfere with the opinion expressed by the team of Experts. The Supreme Court in G. Sundarrajan Vrs. Union of India, (2013) 6 SCC 620, after referring to the Constitution Bench of the Supreme Court in University of Mysore Vrs. C.D. Govinda Rao, AIR 1965 SC 491, held that „normally, Court should be slow to interfere with the opinion expressed by the Experts and it would normally be wise and safe for the courts to leave the decisions to experts who are more familiar with the problems which they face than the courts generally can be which has been the consistent view taken by this Court.‟ 33. In Federation of Railway Officers Association Vrs. Union of India, (2003) 4 SCC 289, the Supreme Court has observed that “in examining a question of this nature where a policy is evolved by the Government, judicial review thereof is limited. On matters affecting policy and requiring technical expertise, Court would leave the matter for decision of those who are qualified to address the issues. Unless the policy or action is inconsistent with the Constitution and the laws or arbitrary or irrational or abuse of the power, the Court will not interfere with such matters.‟ Therefore, when technical questions arise and experts in that field have expressed various views and all those aspects have been W.P.(C) No.32402 of 2022 Page 71 of 130 taken into consideration by the Government in deciding the matter, the Court should restrain from interfering with the same when there is no mala fide or unfairness.” 10.1. With the above backdrop of legal perspective highlighting scope of intervention in the policy decisions in the judicial review, the averments, contentions and arguments of rival parties are considered. 10.2. It is averred by the petitioner at paragraph 2 of the writ petition that “the petitioner in the present application challenges the proposed decision of opposite party No.5 to change the status of the Banking Correspondent Agents, engaged and working under the direct supervision of the Bank”. 10.3. It is ascertained from Circular TRAN/77, dated 31.08.2013 issued by IT Department of OGB vide Annexure-3 that to cater to the needs of number of villages banking services through Financial Inclusion Programme was extended through service channels, namely: 1. Ultra Small Branches without ICT Solutions; 2. Ultra Small Branches with ICT Solutions 3. Banking Correspondent Agent with ICT Solutions. W.P.(C) No.32402 of 2022 Page 72 of 130 It is further clarified that the village level worker for delivery of doorstep banking services under Financial Inclusion Programme is termed as Banking Correspondent Agent (BCA). The BCA should be from the same village allotted to the branch for implementation of Financial Inclusion Programme. Apart from requirement of deposit of security deposit by the BCA, it is entitled to remuneration towards incidental expenses and travelling expenses. It is paid commission at fixed percentage on recovery of advances of different categories including delivery of notices/letters. Thus, essentially, the BCA renders varieties of services to the branch of the OGB in villages. Clause 8 of the Agreement entered into between the OGB and the BCA (Annexure-2) reveals that the BC is entitled to be paid fees and commission. It is further significant to notice that said clause provides that “in case of customer complaints, deficiency in service on the part of BC/BF etc. the Bank shall be within its rights to withhold or demand return of fees, commission paid”. 10.4. It is manifest from Circular No.PMT-22/20-21, dated 03.09.2020 issued by Financial Inclusion Department of the Odisha Gramya Bank (Annexure-D/4) that the said Circular supersedes all earlier circulars/ instructions in line with the Government of India/ W.P.(C) No.32402 of 2022 Page 73 of 130 Reserve Bank of India through different circulars and letters with respect to “engagement of BCs, their functions, their service renewals, commission structure, control and monitoring, etc.” It is provided that different entities are eligible to be engaged by the Bank as BCs. Such entities include: i. Educated unemployed youths above 18 years; ii. Individuals like retired bank employees, retired teachers, retired Government employees and ex- servicemen, individual owners of kirana/ medical/fair price shops, individual Public Call Office (PCO) operators, agents of small savings schemes of Government of India/insurance companies; iii. Individual members of the self-help group associated with local branch under Bank Sakhi approach Bank has entered into MoU with Odisha Livelihoods Mission (OLM) on dated 7th October 2016 for engagement of self-help group members as BCS in the bank. iv. The Bank can also enlist other eligible entities/ individuals in respect of BCs as may be advised by Reserve Bank of India/DFS from time to time. W.P.(C) No.32402 of 2022 Page 74 of 130 The Agreement to be entered into between the OGB and the BC would be for one year subject to renewal and the BC is entitled for commission for different types of jobs entrusted/assigned. 10.5. The RFP issued on 01.11.2022 (Annexure-9) contemplating migration of existing Financial Inclusion Solution, the OGB requires an End-to-End Financial Inclusion Solution for Technology and for BC Management. At Clause 6 of Part-III (Annexure-I, thereof) under the Heading “Scope of the Project” it has been stated that “Bank may require additional BC Agents at locations as per the roadmap given by Reserve Bank of India/DFS/SLBC/State Government. The successful bidder is required to deploy BC Agents on same terms and conditions at those locations”. Successful bidder would host Financial Inclusion Gateway and provide End-to-End Solution in Technology and deploy all the banking applications on the Micro-ATMs/Mobile Devices/Kiosk. Successful Bidder is responsible for deploying qualified personnel as BC Agent. 10.6. In the rejoinder affidavit the petitioner has advanced plea based on Master Circular dated 01.07.2014 that “Section 23(2) of the Banking Regulation Act lays down that before granting any permission under this W.P.(C) No.32402 of 2022 Page 75 of 130 Section, the Reserve Bank of India may require to be satisfied, by an inspection under Section 35 or otherwise, as to the financial condition and history of the banking company, the general character of its management, the adequacy of its capital structure and earning prospects and that public interest will be served by the opening or, as the case may be, change of location of the existing place of business”. Such a plea of the petitioner is unwarranted incursion into the policy of OGB. As is apparent from the RFP under Annexure-9 it is abundantly clear that such a model is sought to be implemented by superseding earlier Circulars by virtue of Master Circular dated 03.09.2020 issued by the OGB in conformity with Guidelines/Instructions of Government of India/ Reserve Bank of India. Nothing is brought on record to suggest that the policy under challenge has violated any of the Guidelines or Instructions of the Reserve Bank of India. Thus, the pleading based on Circular dated 01.07.2014 is jejune. 10.7. It has been impressed upon this Court that for smooth running of the banking business of the OGB, it is expedient for change of module in sync with technological development. The challenge before the OGB is that servers used by the bank for financial inclusion have become obsolete and is facing space W.P.(C) No.32402 of 2022 Page 76 of 130 constraints. It may not function for longer period taking the present volume of transactions into account. As the scope of RFP included procurement of new servers, it is important to permit the bank to continue with the RFP process for smooth functioning of Financial Inclusion Gateway and Servers. Government of India in Ministry of Electronics and Information Technology, Unique Identification Authority of India (Authentication Division) vide Letter F No. HQ-13023/I/2020-AUTH-I HQ/2084, dated 23.12.2022 has instructed for removal of old and deployed devices from authentication ecosystem. It has been intimated to all AUAs/KUAs2 that LO3 registered devices4 vide Letter No. HQ-13029/1/2021- AUTH-I-HQ, dated 23.12.2022 that they are required to be removed from authentication ecosystem. All the micro ATM devices presently deployed by the Bank are LO registered device. UIDAI vide Letter No. F.No. HQ- 13021/1/2021-Auth-I HQ, dated 27.01.2023 has 2 AUA: This stands for Authentication User Agency. An AUA is an entity that provides Aadhaar-enabled services and utilizes Aadhaar authentication services provided by the Unique Identification Authority of India (UIDAI). KUA: This stands for e-KYC User Agency. A KUA is an entity that requires Aadhaar authentication specifically for electronic Know Your Customer (e- KYC) processes. 3 LO: This typically refers to Local Operator in the context of Aadhaar authentication systems. Local Operators are responsible for managing devices that are used to capture biometric data or demographic information from individuals during the authentication process. 4 Registered Devices: This term refers to devices that have been officially registered with UIDAI and are authorized to perform Aadhaar authentication tasks, including capturing biometric data such as fingerprints or iris scans. W.P.(C) No.32402 of 2022 Page 77 of 130 suggested for phasing out all existing fingerprint LO Registered devices from authentication ecosystem. As most of the devices deployed by the Bank in the AADHAAR ecosystems are more than 5 years old, in view of UIDAI Circulars these devices would not function after 31st March 2023. 10.8. It is further updated by the opposite party Nos.4 and 5 that the Bank is incurring cost of Rs.4,00,000/- (Rupees four lakh) per quarter towards AMC of Financial Inclusion Gateway and Servers due to non- implementation of Corporate Business Correspondent. The OGB is presently migrating its Core Banking Solution (CBS) and would implement Aadhaar data vault as a result of which testing of Financial Inclusion module is required for implementation of same after migration. As per the RFP the vendor was required to conduct these testing. 10.9. The steps enumerated by the OGB for smooth running of banking business are policy decisions and in conformity with the Central Government directives. 10.10. When policy decision is questioned in the writ jurisdiction, the Hon’ble Supreme Court of India has made the observations in All India Council for Technical Education Vrs. Surinder Kumar Dhawan, (2009) 11 SCC 726 as follows: W.P.(C) No.32402 of 2022 Page 78 of 130 “16. The courts are neither equipped nor have the academic or technical background to substitute themselves in place of statutory professional technical bodies and take decisions in academic matters involving standards and quality of technical education. If the Courts start entertaining petitions from individual institutions or students to permit courses of their choice, either for their convenience or to alleviate hardship or to provide better opportunities, or because they think that one course is equal to another, without realising the repercussions on the field of technical education in general, it will lead to chaos in education and deterioration in standards of education. 17. The role of statutory expert bodies on education and the role of courts are well defined by a simple rule. If it is a question of educational policy or an issue involving academic matter, the courts keep their hands off. If any provision of law or principle of law has to be interpreted, applied or enforced, with reference to or connected with education, the courts will step in. In J.P. Kulshrestha (Dr.) Vrs. Allahabad University, (1980) 3 SCC 418 this Court observed: „11. … Judges must not rush in where even educationists fear to tread. … *** 17. … While there is no absolute ban, it is a rule of prudence that courts should hesitate to dislodge decisions of academic bodies.‟ W.P.(C) No.32402 of 2022 Page 79 of 130 18. In Maharashtra State Board of Secondary and Higher Secondary Education Vrs. Paritosh Bhupeshkumar Sheth, (1984) 4 SCC 27 this Court reiterated: „29. … the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day- to-day working of educational institutions and the departments controlling them.‟ ***” 10.11. In Sarat Kumar Raj Vrs. State of Odisha, a Division Bench of this Court reported at 2013 SCC OnLine Ori 277 = 117 (2014) CLT 584 held as follows with respect to judicial review vis-à-vis change of policy: “Before embarking upon the rival contention of the parties, we would like to deal with the ambit and scope of judicial review with regard to tenability of policy decisions. The Hon‟ble Supreme Court in Premium Granites and another Vrs. State of T.N., (1994) 2 SCC 691 while considering the Court‟s powers in interfering with the policy decision observed at page-715 as under: (SCC para-54) „54. It is not the domain of the Court to embark upon unchartered ocean of public policy in an exercise to consider as to whether a particular public policy W.P.(C) No.32402 of 2022 Page 80 of 130 is wise or a better public policy can be evolved. Such exercise must be left to the discretion of the executive and legislative authorities as the case may be.” 18. The Hon‟ble Supreme Court in Balco Employees‟ Union (Regd.) Vrs. Union of India, (2002) 2 SCC 333 held that it is neither within the domain of the courts nor the scope of the judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are our courts inclined to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical. The Court can interfere only if the policy decision is patently arbitrary, discriminatory or mala fide. 19. The same view is echoed in the case of Shimnit Utsch India Private Limited Vrs. West Bengal Transport Infrastructure Development Corporation Limited, (2010) 6 SCC 303. In paragraph-52 of the report, their Lordships‟ held as follows: „The Courts have repeatedly held that the Government policy can be changed with changing circumstances and only on the ground of change, such policy will not be vitiated. The Government has a discretion to adopt a different policy or alter or change its policy calculated to serve public interest and make it more effective. Choice in the balancing of the pros and cons relevant to the change in the policy lies with the authority. But like any discretion exercisable by the Government W.P.(C) No.32402 of 2022 Page 81 of 130 or public authority, change in policy must be in conformity with Wednesbury reasonableness and free from arbitrariness, irrationality, bias and malice. 20. In the case of Tata Cellular Vrs. Union of India, AIR 1996 SC 11, the Hon‟ble Supreme Court has succinctly stated about the Wednesbury unreasonableness. In paragraph-96 of the report, their Lordships‟ held as follows: „What is this charming principle of Wednesbury unreasonablenss? Is it a magical formula? In Re : Vrs. Askew, (1768) 4 2168, Lord Mansfield considered the question whether mandamus should be granted against the College of Physicians. He expressed the relevant principles in two eloquent sentences. They gained greater value two centuries later : It is true, that the judgment and discretion of determining upon this skill, ability, learning and sufficiency to exercise and practice this profession is trusted to the College of Physician : and this Court will not take it from them, nor interrupt them in the due and proper exercise of it. But their conduct in the exercise of this trust thus committed to them ought to be fair, candid and unprejudiced; not arbitrary, capricious, or biased; much less, warped by resentment, or personal dislike. 21. In the case of State of N.C.T. of Delhi and Another Vrs. Sajeev @ Bitto, AIR 2005 SC 2080, the Hon‟ble Supreme Court had again considered the principle of Wednesbury and held that: W.P.(C) No.32402 of 2022 Page 82 of 130 „Therefore, to arrive at a decision on „reasonableness‟ the Court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors. The decision of the administrator must have been within the four corners of the law, and not one which no sensible person could have reasonably arrived at, having regard to the above principles, and must have been a bona fide one. The decision could be one of many choices open to the authority but it was for the authority to decide upon the choice and not for the Court to substitute its view.‟ Thus, the Court cannot strike down a policy decision taken by the State Government merely because it feels that another policy decision would have been fairer or wiser or more scientific or logical. The Court can interfere only if the policy decision is patently arbitrary, discriminatory or mala fide.” 10.12. Apposite it is to have regard to what has been observed in Small Scale Industrial Manufactures Assn. Vrs. Union of India, (2021) 8 SCC 511. The Hon’ble Supreme Court made it unambiguous with respect to interference with the policy decisions in writ jurisdiction, which is as follows: “59. While considering the aforesaid submissions/ reliefs sought, the scope of judicial review on the policy decisions in the field of economy and/or economic policy decisions and/or the policy decisions having financial implications which W.P.(C) No.32402 of 2022 Page 83 of 130 affects the economy of the country are required to be considered. 60. In catena of decisions and time and again this Court has considered the limited scope of judicial review in economic policy matters. From various decisions of this Court, this Court has consistently observed and held as under: 60.1. The Court will not debate academic matters or concern itself with intricacies of trade and commerce. 60.2. It is neither within the domain of the courts nor the scope of judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are the courts inclined to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical. Wisdom and advisability of economic policy are ordinarily not amenable to judicial review. 60.3. Economic and fiscal regulatory measures are a field where Judges should encroach upon very warily as Judges are not experts in these matters. *** 63. This Court in State of M.P. Vrs. Nandlal Jaiswal, (1986) 4 SCC 566 has observed that the Government, as laid down in Permian Basin Area Rate Cases, In re, 1968 SCC OnLine US SC 87 : 20 L Ed 2d 312 : 390 US 747 (1968), is entitled to W.P.(C) No.32402 of 2022 Page 84 of 130 make pragmatic adjustments which may be called for by particular circumstances. The court cannot strike down a policy decision taken by the State Government merely because it feels that another policy decision would have been fairer or wiser or more scientific or logical. The court can interfere only if the policy decision is patently arbitrary, discriminatory or mala fide. *** 65. In Peerless General Finance & Investment Co. Ltd. Vrs. RBI, (1992) 2 SCC 343, it is observed and held by this Court that the function of the court is to see that lawful authority is not abused but not to appropriate to itself the task entrusted to that authority. It is further observed that a public body invested with statutory powers must take care not to exceed or abuse its power. It must keep within the limits of the authority committed to it. It must act in good faith and it must act reasonably. Courts are not to interfere with economic policy which is the function of experts. It is not the function of the courts to sit in judgment over matters of economic policy and it must necessarily be left to the expert bodies. In such matters even experts can seriously and doubtlessly differ. Courts cannot be expected to decide them without even the aid of experts. It is further observed that it is not the function of the court to amend and lay down some other directions. The function of the court is not to advise in matters relating to financial and economic policies for which bodies like RBI are fully competent. The court can only strike down some or entire directions issued by W.P.(C) No.32402 of 2022 Page 85 of 130 RBI in case the court is satisfied that the directions were wholly unreasonable or violative of any provisions of the Constitution or any statute. It would be hazardous and risky for the courts to tread an unknown path and should leave such task to the expert bodies. This Court has repeatedly said that matters of economic policy ought to be left to the Government. 66. In Narmada Bachao Andolan Vrs. Union of India, (2000) 10 SCC 664, in paras 229 and 233, it is observed and held as under: „229. It is now well settled that the courts, in the exercise of their jurisdiction, will not transgress into the field of policy decision. Whether to have an infrastructural project or not and what is the type of project to be undertaken and how it has to be executed, are part of policy-making process and the courts are ill-equipped to adjudicate on a policy decision so undertaken. The Court, no doubt, has a duty to see that in the undertaking of a decision, no law is violated and people's fundamental rights are not transgressed upon except to the extent permissible under the Constitution. *** 233. At the same time, in exercise of its enormous power the Court should not be called upon to or undertake Governmental duties or functions. The courts cannot run the Government nor can the administration W.P.(C) No.32402 of 2022 Page 86 of 130 indulge in abuse or non-use of power and get away with it. The essence of judicial review is a constitutional fundamental. The role of the higher judiciary under the Constitution casts on it a great obligation as the sentinel to defend the values of the Constitution and the rights of Indians. The courts must, therefore, act within their judicial permissible limitations to uphold the rule of law and harness their power in public interest. It is precisely for this reason that it has been consistently held by this Court that in matters of policy the court will not interfere. When there is a valid law requiring the Government to act in a particular manner the court ought not to, without striking down the law, give any direction which is not in accordance with law. In other words, the court itself is not above the law.‟ 67. In Prag Ice & Oil Mills Vrs. Union of India, (1978) 3 SCC 459 = AIR 1978 SC 1296, this Court observed as under: „24. *** We do not think that it is the function of this Court or of any court to sit in judgment over such matters of economic policy as must necessarily be left to the Government of the day to decide. Many of them, … are matters of prediction of ultimate results on which even experts can seriously err and doubtlessly differ. Courts can certainly not be expected to decide them without even the aid of experts.‟ W.P.(C) No.32402 of 2022 Page 87 of 130 68. In P.T.R. Exports (Madras) (P) Ltd. Vrs. Union of India, (1996) 5 SCC 268, this Court observed as under: „*** In matters of economic policy, it is settled law that the court gives a large leeway to the executive and the legislature. … Government would take diverse factors for formulating the policy … in the overall larger interest of the economy of the country … The Court therefore would prefer to allow free play to the Government to evolve fiscal policy in the public interest and to act upon the same.‟ 69. What is best in the national economy and in what manner and to what extent the financial reliefs/ packages be formulated, offered and implemented is ultimately to be decided by the Government and RBI on the aid and advice of the experts. The same is a matter for decision exclusively within the province of the Central Government. Such matters do not ordinarily attract the power of judicial review. Merely because some class/sector may not be agreeable and/or satisfied with such packages/policy decisions, the courts, in exercise of the power of judicial review, do not ordinarily interfere with the policy decisions, unless such policy could be faulted on the ground of mala fides, arbitrariness, unfairness, etc. 70. There are matters regarding which the Judges and the lawyers of the courts can hardly be expected to have much knowledge by reasons of their training and expertise. Economic and fiscal regulatory measures are a field where Judges W.P.(C) No.32402 of 2022 Page 88 of 130 should encroach upon very warily as Judges are not experts in these matters. 71. The correctness of the reasons which prompted the Government in decision taking one course of action instead of another is not a matter of concern in judicial review and the court is not the appropriate forum for such investigation. The policy decision must be left to the Government as it alone can adopt which policy should be adopted after considering of the points from different angles. In assessing the propriety of the decision of the Government the court cannot interfere even if a second view is possible from that of the Government. 72. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review. The scope of judicial review of the Governmental policy is now well defined. The courts do not and cannot act as an appellate authority examining the correctness, stability and appropriateness of a policy, nor are the courts advisers to the executives on matters of policy which the executives are entitled to formulate. 73. Government has to decide its own priorities and relief to the different sectors. It cannot be disputed that pandemic affected the entire country barring few of the sectors. However, at the same time, the Government is required to take various measures in different fields/sectors like public health, employment, providing food and shelter to the common people/migrants, transportation of migrants, etc. and therefore, as such, the W.P.(C) No.32402 of 2022 Page 89 of 130 Government has announced various financial packages/reliefs. Even the Government also suffered due to lockdown, due to unprecedented Covid-19 Pandemic and also even lost the revenue in the form of GST. Still, the Government seems to have come out with various reliefs/packages. Government has its own financial constraints. Therefore, as such, no writ of mandamus can be issued directing the Government/RBI to announce/declare particular relief packages and/or to declare a particular policy, more particularly when many complex issues will arise in the field of economy and what will be the overall effect on the economy of the country for which the courts do not have any expertise and which shall be left to the Government and RBI to announce the relief packages/economic policy in the form of reliefs on the basis of the advice of the experts. Therefore, no writ of mandamus can be issued. 74. No State or country can have unlimited resources to spend on any of its projects. That is why it only announces the financial reliefs/packages to the extent it is feasible. The court would not interfere with any opinion formed by the Government if it is based on the relevant facts and circumstances or based on expert advice. It is not normally within the domain of any court to weigh the pros and cons of the policy or to scrutinise it and test the degree of its beneficial or equitable disposition for the purpose of varying, modifying or annulling it, based on howsoever sound and good reasoning, only where it is arbitrary and violative of any W.P.(C) No.32402 of 2022 Page 90 of 130 constitutional, statutory or any other provisions of law. When the Government forms its policy, it is based on a number of circumstances on facts, law including constraints based on its resources. It is also based on expert opinion. It would be dangerous if the court is asked to test the utility, beneficial effect of the policy or its appraisal based on facts set out on affidavits. 75. No right could be absolute in a welfare State. Man is a social animal. He cannot live without the cooperation of a large number of persons. Every article one uses is the contribution of many. Hence every individual right has to give way to the right of the public at large. Not every fundamental right under Part III of the Constitution is absolute and it is to be within permissible reasonable restriction. This principle equally applies when there is any constraint on the health budget on account of financial stringencies. 76. It is the cardinal principle that it is not within the legitimate domain of the court to determine whether a particular policy decision can be served better by adopting any policy different from what has been laid down and to strike down as unreasonable merely on the ground that the policy enunciated does not meet with the approval of the court in regard to its efficaciousness for implementation of the object and purpose of such policy decision.” 10.13. In Directorate of Film Festivals Vrs. Gaurav Ashwin Jain, (2007) 4 SCC 737 = (2007) 5 SCR 7, it has succinctly been held as follows: W.P.(C) No.32402 of 2022 Page 91 of 130 “The scope of judicial review of Governmental policy is now well defined. Courts do not and cannot act as Appellate Authorities examining the correctness, suitability and appropriateness of a policy. Nor are courts Advisors to the executive on matters of policy which the executive is entitled to formulate. The scope of judicial review when examining a policy of the Government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary. Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review. [vide: Asif Hameed Vrs. State of J&K, (1989) Supp 2 SCC 364; Shri Sitaram Sugar Co. Ltd. Vrs. Union of India, (1990) 3 SCC 223; Khoday Distilleries Vrs. State of Karnataka, (1996) 10 SCC 304, Balco Employees Union Vrs. Union of India, (2002) 2 SCC 333, State of Orissa Vrs. Gopinath Dash, (2005) 13 SCC 495 and Akhil Bharat Goseva Sangh Vrs. State of Andhra Pradesh, (2006) 4 SCC 162].” 10.14. It is the policy of the Bank which required modification to suit the subsequent Master Circular issued superseding the earlier Circulars and Instructions. What would be methodology appropriate for the banking business of the Commercial Banks, like OGB, it is the domain of the expert body to decide. As is well-settled, this Court is loathe in entertaining challenge made to the policy unless the same falls W.P.(C) No.32402 of 2022 Page 92 of 130 within the delineated criteria specified by the Hon’ble Supreme Court of India as well as this Court as discussed in the forgoing paragraphs. 10.15. The contention of the petitioner on this score is liable to be dismissed. 11. Sri Debendra Mohanta, learned Advocate for the petitioner, though warned against discussions on merit by this Court while the claim for regularisation of individual BC treating him as employee/workman is pending before the Central Government Industrial Tribunal, he went on to argue on the merit of the matter. He submitted that since by virtue of introduction of the RFP, if the new policy comes to be implemented by a successful bidder, the entire effort of approaching said Tribunal would be frustrated. 11.1. Per Sri Manoj Kumar Mishra, learned Senior Advocate simultaneous approach of the petitioner— one before the Central Government Industrial Tribunal for consideration of regularisation which is objected to that the BC is not employee/workman of OGB and the other before this Court to stall the implementation of policy decision to engage Corporate Business Correspondent— is detrimental not only to the functioning of the OGB, but also would affect larger interest of the customer service. W.P.(C) No.32402 of 2022 Page 93 of 130 11.2. Sri Tanmay Mishra, learned Advocate while assisting the learned Senior Advocate Sri Manoj Kumar Mishra, assisted this Court by citing a decision rendered by a Division Bench of the Bombay High Court in the case of Vijay Ramrao Satote Vrs. State Bank of India, 2021 see OnLine Bom 3240, where an identical challenge with respect to Business Correspondent was raised. This Court would wish to take note of the following observations contained in the said judgment: “1. The challenge raised in these writ petitions is to the action initiated by the respondents for seeking to terminate the services of the petitioners on the post of Business Correspondent with a view to appoint a fresh set of employees. Each petitioner was appointed initially on the post of Business Correspondent for a specified period. Since the respondents sought to end this contractual engagement, the petitioners approached this Court. While issuing notice this Court had directed the parties to maintain status-quo. 2. The principal challenge raised by the petitioners to the Impugned action is based on the judgment of the learned Single Judge of the Rajasthan High Court in Civil Writ Petition No. 4308 of 2018 along with other writ petitions (Ashish Kumar, son of Megha Ram Singh Vrs. State Bank of India, Navi Mumbai) decided on 31.05.2018. By that order, the respondents were directed to continue the petitioners therein as Business Correspondents and not to terminate their W.P.(C) No.32402 of 2022 Page 94 of 130 services so as to replace them with another set of contractual employees. This order came to be challenged before the Division Bench of that High Court and by the judgment dated 28.11.20185 the Division Bench allowed the said appeal and dismissed the original writ petition. This order of the Division Bench in turn was challenged by the original petitioners therein before the Hon‟ble Supreme Court. The Hon’ble Supreme Court on 08.01.2020 has dismissed the Special Leave Petition bearing No. 3995 of 20196. 3. In view of this adjudication the petitioners cannot succeed in the prayers made in these writ petitions. By adopting the reasons assigned by the Division Bench of Rajasthan High Court which have been upheld by the Hon‟ble Supreme Court, the writ petitions are dismissed. No costs. 4. Needless to state that if the petitioners are aggrieved by the consequences suffered on account of termination of their engagement as Business Correspondents, they are free to take such steps as are permissible in law.” 5 State Bank of India Vrs. Ashish Kumar, 2018 SCC OnLine Raj 2141. 6 The Hon’ble Supreme Court passed the following Order on 08.01.2020 in Dileep Kumar Vrs. State Bank of India, SLP (C) No.3995 of 2019 (judgment and order dated 28.11.2018 in DBSAW No. 1209 of 2018 passed by the High Court of Judicature for Rajasthan at Jodhpur): “Heard the learned counsel appearing for the parties. . We find no merit in the Special Leave Petition. The Special Leave Petition is, accordingly, dismissed. Pending applications, if any, stand disposed of.” W.P.(C) No.32402 of 2022 Page 95 of 130 11.3. The observations in State Bank of India Vrs. Ashish Kumar, 2018 SCC OnLine Raj 2141 are as given hereunder: “These special appeals are directed against judgments dated 31.05.2018/01.06.2018/ 20.06.2018 passed by the learned Single Judge of this court, whereby the writ petitions preferred by the respondents questioning the action of the appellants in corporatization of Individual Business Correspondents (BCs) have been allowed and the appellants herein are directed to continue the respondents as BCs directly with the appellant-Bank and not to terminate their services so as to replace them by another set of contractual employees or Corporate Business Correspondents, unless there is a performance deficit on their part. *** 23. Indisputably, the BC model has been introduced by the RBI to offer Banking Services to the Unbanked and excluded segment of population of the country specially those living in rural areas. The Banks were permitted to formulate a policy for engaging BCs with the approval of their Board of Directors. It was specifically laid down that due diligence may be carried out on the individuals/ entities to be engaged as BCs prior to their engagement, covering the aspects inter alia such as (i) reputation/marketing standing; (ii) financial soundness; (iii) management and corporate governance; (iv) cash handling ability and (v) ability to implement technology solutions in W.P.(C) No.32402 of 2022 Page 96 of 130 rendering financial services. Obviously, engagement of the BCs for financial inclusion of rural population involves huge risks and therefore, it was made imperative that the Bank shall carry out due diligence exercise for ensuring the protection of the customers. 24. It is pertinent to note that besides the individuals like retired bank employees, retired teachers etc., the owners of kirana/medical/fair price shops, PCOs, Small Saving Scheme Agents of Government of India/Insurance Companies, NGOs, MFIs, Cooperative Societies registered under the State Acts or Multi State Cooperative Societies Act, Post Offices, Companies registered under the Companies Act, 1956, excluding the NBFCs were also included in the eligibility zone for engagement as BCs. Under the Scheme, the decision to engage the BCs in the categories specified is left to the discretion of the Bank concerned and it is not obligatory upon the Bank to engage individual BCs in preference to other entities. The guidelines issued in no manner suggests that individuals engaged shall have a different status as BCs vis- a-vis other entities engaged such as NGOs, Cooperative Societies, Companies etc. That apart, as per the BC model introduced, a BC can be a BC for more than one Bank, at the point of customer interface, a retail outlet or a sub-agent of a BC, shall represent and provide banking services of only one bank. Suffice it to say that the permissibility of engagement of individual as BC is not restricted to one bank. W.P.(C) No.32402 of 2022 Page 97 of 130 25. It is true that pursuant to the advertisement issued by the appellant-Bank inviting applications from eligible candidates, the respondents applied for selection as BCs and on being declared successful in interview, were engaged as BCs by executing the agreement. But then, a bare perusal of the agreement executed between the respondents individually and the appellant-Bank makes it abundantly clear that the respondents were engaged as SP and not as contractual employees. The nature of services to be provided by the SP engaged as aforesaid were also specified in Clause 1.2 of agreement. It cannot be disputed that some of the duties casted upon the SPs engaged are akin to the duties performed by the employees of the Bank but on that account their engagement as SPs shall not stand converted into the engagement as contractual employees of the Bank. 26. As a matter of fact, the relationship between the parties to the agreement has also been specifically dealt with under Clause 4 of the agreement, which makes it plain that the SP shall act as independent service provider and shall not be deemed to be the agent of the Bank except in respect of transactions/services which give rise to Principal Agent relationship by implication. SP has been cautioned not to hold out or represent himself/herself as agent or employee of the Bank. Further, it was also specially provided that the SP shall not be entitled to claim permanent absorption or any other claim or benefit against the Bank and the relation shall be principal to principal basis. W.P.(C) No.32402 of 2022 Page 98 of 130 27. Under Clause 5 of the agreement, the responsibility of complying with the provisions of all applicable laws concerning or in relation to rendering of services by SP envisaged under the agreement has also been fastened upon the SP engaged and they are required to maintain all necessary licenses, permissions, approvals from relevant authorities under the applicable laws throughout the currency of the agreement. 28. Coming to the nature of payments to be made by the Bank to the SP for the services rendered, it is specifically provided under Clause 5.1 that the SP shall be paid fees and commission in the manner detailed in the Schedule B annexed to the agreement subject to deduction of income tax whenever required under the provisions of Income Tax Act by the Bank. All other taxes including Service Tax, Duties and other charges which may be levied are also agreed to be borne by the SP. The cost of field devices i.e. equipments required for carrying on SP activities at customer service point is also required to be borne by the SP from his own sources. 29. Thus, apparently, the agreement entered into between the parties was a contract for service and not a contract of service. 30. As laid down by a Full Bench of this court in the matter of „Akhil Raj Rajya Hand Pump Mistries Sanghathan Vrs. State of Rajasthan‟, 1994 (1) WLC 1, there is a clear distinction between a contract of service and contract for service. A contract of service does give rise to a W.P.(C) No.32402 of 2022 Page 99 of 130 relationship of master and servant but a contract for service does not give rise to such a relationship. The distinction in two concepts, though fine and subtle is nonetheless real. It is easy to distinguish one concept from other though it may be difficult to formulate the distinction precisely. 31. There cannot be any quarrel with the proposition that the court can always lift the veil to find out true fact situation so as to do complete justice between the parties to the lis. But, in the instant case, as discussed hereinabove, under the Scheme, it is not only the individuals but other entities may also be engaged as BCs and the status of an individual engaged as BC vis-a-vis other entities engaged as BC, is not different and thus, it is difficult to accept that in respect of individual BCs engaged, there exists a master and servant relationship, which obviously cannot be recognized for other entities engaged. Moreover, the unequivocal terms and conditions incorporated in the agreement entered into between the parties regarding the nature of the services to be rendered by BCs, the mode of payments for services rendered, the term of engagement & termination and the responsibility fastened on the BCs engaged, clearly indicate that the contract between the appellant Bank and the respondents was a contract for service and not a contract of service giving rise to master and servant relationship. Thus, the conclusion arrived at by the learned Single Judge merely on the basis of procedure adopted for their W.P.(C) No.32402 of 2022 Page 100 of 130 engagement which includes issuance of advertisement, eligibility criteria etc. that there exists employer and employee relationship between the BCs and the Bank, without examining the terms and conditions of the agreement in their entirety, in our considered opinion, is erroneous and cannot be sustained. 32. The learned Single Judge has observed that one set of contractual employees cannot be replaced by another set of contractual employees unless their conduct and performance is under cloud. But in the instant case, it was not even the case set out by the respondents that while terminating their engagement as BCs, other individuals were being engaged by the Bank as BCs. To the contrary, the grievance of the respondents was that their engagement as individual BCs should not be termed, they should be continued as BCs, engaged directly with the Bank and should not be insisted upon for their engagement through National BCs. A fortiori, having arrived at the conclusion that there exists no master and servant relationship between the Bank and the respondents engaged as BCs, for the parity of reasons assigned, the question of substitution of one set of contractual employees by another set of contractual employees also does not arise. 33. The learned Single Judge has erred in arriving at the conclusion that the respondents contractual employees, could be replaced only by regularly selected employees inasmuch as, admittedly, the posts of BCs W.P.(C) No.32402 of 2022 Page 101 of 130 were never the cadred posts either in SBBJ or in SBI and therefore, the question of filling of such posts by way of regular selection, does not arise. 34. Further, the term of the respondents’ engagement as individual BCs having come to an end, this court can neither direct the respondents to extend the term of the contract nor such contract for service could be directed to be enforced by this court, invoking the extra ordinary jurisdiction under Article 226 of the Constitution of India. It is open for the respondents to accept or not to accept their engagement through National BCs or sue the respondents by availing appropriate remedy available under the law for breach of the contract, if any. It is pertinent to note that Clause 11 of the last agreement entered into between the parties, a copy whereof is placed on record, any or all disputes, controversies and conflicts arising out of the agreement in connection with the agreement or the performance or non- performance of the rights and obligation set forth or the breach termination invalidity of interpretation thereof, shall be referred to arbitration in terms of Arbitration and Conciliation Act, 1996 and therefore, it is also open for the respondents to raise the dispute invoking arbitration clause incorporated in the agreement as aforesaid. 35. Coming to the conclusion arrived at by the learned Single Judge regarding the decision of this court in Writ Petition No. 4304 of 2018 preferred by some W.P.(C) No.32402 of 2022 Page 102 of 130 of the respondents viz. Ashish Kumar and others, suffice it to say that while dismissing the writ petition as infructuous on account of withdrawal of the circulars dated 12.04.2017 and 19.05.2017 vide circular dated 17.10.2017 issued by the SBI, the learned Single Judge declined to entertain the petition in respect of the reliefs (a) and (b) referred supra, stating that no writ can be issued granting such declaration and the respondents herein should approach the appropriate form/authority in accordance with law for declaration sought for and thus, the fresh petition filed by the respondents who were petitioners in the earlier writ petition, claiming the relief (a) and (b) in respect whereof, the learned Single Judge had earlier declined to entertain the petition, was not maintainable. 36. In view of the discussion above, we are not agreeable to the conclusions arrived at by the learned Single Judge while allowing the writ petitions preferred by the respondents and therefore, the impugned judgments cannot be sustained and deserve to be set aside. 37. In the result, the special appeals are allowed. The judgments under appeal dated 31.05.2018/ 01.06.2018/20.06.2018 passed by the learned Single Judge of this court are set aside. The writ petitions preferred by the respondents are dismissed. No order as to costs.” 11.4. Examining the instant case with the support of the aforesaid decision in the case of State Bank of India Vrs. Ashish Kumar, 2018 SCC OnLine Raj 2141 this W.P.(C) No.32402 of 2022 Page 103 of 130 court finds similitude in fact-scenario. It needs to be highlighted that as per Agreement dated 05.06.2020 the BC is entitled for commission for rendering its services as stipulated under Clause 8 and the BC can employ his/her/its/their own workmen for providing services. Under Clause 7 of said Agreement, the BC is solely liable and responsible for compliance of applicable labour laws in respect of its employees, agents, representatives and sub-contractors and in particular laws relating to terminal benefits such as pension, gratuity, provident fund, bonus or other benefits to which they may be entitled and the Bank shall have no liability in this regard. These factors coupled with other conditions already discussed in the forgoing paragraphs would indicate that the engagement of the BC can be termed as “contract for service”. 11.5. In Gole Nur Begum Vrs. Bank of India, 2023 SCC OnLine Cal 6270 the Calcutta High Court was considering the fact, “The present writ application has been filed, inter, alia, praying for a direction upon the respondent/bank to absorb the petitioner in service for the post of business correspondent for Khargram Branch with a further direction to pay his salary which is due from October 2013. The petitioner submits that on 26th November 2009, the petitioner was appointed as W.P.(C) No.32402 of 2022 Page 104 of 130 Business Correspondent in the Khargram branch of Bank of India. Unfortunately, in the beginning of October 2013, the respondent No. 3 suddenly had asked the petitioner not to report for duty. According, to the petitioner no formal order of dismissal had also been issued. No reasons had been assigned for refusal of employment of the petitioner.” The said Court held as follows: “5. By relying on the affidavit-in-opposition filed in Court today, which is taken on record, Mr. Majumder submits that the petitioner was neither a regular nor a permanent employee of the bank. The petitioner was only a Business Correspondent and was never recruited in the bank through a selection process. By drawing the attention of this Court to a complaint dated 1st April 2013 lodged by the respondent No.3 with the Superintendent of Police, Murshidabad, he submits that the petitioner and his family members are pressurizing the branch manager so as to permit the petitioner to continue with the job of the business correspondent. It is submitted that the petitioner has no legal right to continue as a Business Correspondent or to be absorbed in the bank. 6. It is still further submitted that the Business Correspondents are employed by reasons of exigencies of service and at this stage, there is no requirement for any Business Correspondent. 7. Having heard the learned advocates appearing for the respective parties and having considered the W.P.(C) No.32402 of 2022 Page 105 of 130 materials on record, I find that the petitioner was not appointed with the respondent No.1 through any selection process. Admittedly, the petitioner was only discharging functions of Business Correspondent, for a particular period. The said job is also not perennial in nature. According to the respondents, the appointment was made with the objective of ensuring enhanced financial inclusion and achieving greater outreach of the banking sector in accordance with the Reserve Bank of India directives. 8. Having regard to the same, I am of the view that the petitioner has no legal right to seek continuance with the job of the business correspondent or to seek for his absorption. Since, the petitioner has no legal right, in my view the direction upon the respondents to consider the petitioner‟s representation would not enure to the benefit to either of the parties. 9. Accordingly, the writ petition being WPA 4306 of 2014 is dismissed without any order as to costs.” 11.6. At paragraph 5 of the writ petition the petitioner has asserted that “in accordance with the instruction of Reserve Bank of India the opposite party No.3 (Indian Overseas Bank) have engaged the BCs as per the list under Annexure-1 after following prescribed procedure, i.e., advertisement, interview, technical test and the pass certificate examination for BC/ Facilitators etc. On being selected in the process of W.P.(C) No.32402 of 2022 Page 106 of 130 interview as above the successful candidates were required to execute IBA Model Agreement with the Bank and in consequence thereof the engagement orders are issued.” Such statement of fact appears to be erroneous and misconceived one. The list of OGB Business Correspondents enclosed to the writ petition as Annexure-1 does not reveal that they were engaged by the Indian Overseas Bank. While refusing to acknowledge employer-employee relationship between the OGB and the BC, it has been affirmed by the opposite party Nos.4 and 5 at paragraph 9 of the counter affidavit that “The Business Correspondent are engaged as per Bank’s Circular No. PMT/22/20- 21, dated 03.09.2020. There is no interview or written examination for selection of BCs. Whereas IIBF Certification for working as BC is mandatory as per IBA Circular No.SB/CIR/FI-BC/2019-20/7482, dated 18.06.2019.” It is also asserted by the opposite party Nos.4 and 5 that “The Bank has issued RFP for engagement of Corporate BCA for better management of the business and better technical support as per approval of the Board of Directors of the Bank (which includes representative from RBI, NABARD, Government of Odisha and Sponsor Bank-Indian Overseas Bank)”. In absence of established fact that W.P.(C) No.32402 of 2022 Page 107 of 130 there has been employer-employee relationship between the OGB and the BCs, the petitioner is misdirected to construe that by virtue of RFP, there would be change in condition of service. 11.7. Sri Tanmay Mishra, learned Advocate for the opposite party Nos.4 and 5 drawing factual similitude of the case at hand in respect of Banking Correspondents with that of the decision rendered by a Division Bench of the Patna High Court in the case of Banking Business Facilitators Association Vrs. The Chairman, State Bank of India, LPA No.1274 of 2015 and LPA No.1516 of 2016, vide Judgment dated 30.11.2016 reported at 2016 SCC OnLine Pat 5643 = (2017) 2 PLJR 160 with reference to identical scope and object of engagement of Banking Facilitators, relationship between parties, fees and commissions, terms of termination with expiry of period stipulated in the Agreement and review of performance, has laid much emphasis on the following observations made in the said case: “14. It is also contended that many High Court have upheld the action of Bank in terminating the services of the Business Facilitators, such as the appellants. 15. *** W.P.(C) No.32402 of 2022 Page 108 of 130 16. The question to be examined is what is the nature of the employment? The process of appointment of Business Facilitators was initiated on the basis of the Circular of the Reserve Bank of India dated 25th January, 2006. The purpose was to ensure greater fiancial inclusion and to increase outreach of the Banking Sector. The Circular itself contemplated engagement of Business Facilitators on payment of reasonable commission. It is thereafter, the Bank circulated a Scheme on 3rd of April, 2007. The Scheme also contemplated payment of commission relating to work performed. In the advertisement issued, there is no promise that the Business Facilitators shall be conferred status of regular employees at any stage. After selection, the agreement executed again shows that it is a contract for a limited term which can be extended from time to time. There is a specific condition that the Business Facilitators shall act as an independent service provider and shall not be deemed to be an agent of the Bank, except in respect of transactions/services which give rise to Principal Agent relationship by implication. With such conditions, in the policy, circulars and in the agreement, the services of the appellants are nothing but purely contractual for a fixed period and on a commission corresponding to work performed. In terms of the conditions in the agreement, the appellants are not even the agents of the Bank and are independent service provider. Therefore, the appellants cannot claim to have any right of employment against the Bank either on basis of doctrine of promissory estoppel or in terms of the contract. W.P.(C) No.32402 of 2022 Page 109 of 130 17. If such was the contract, whether the appellant could make a grievance of their termination of contracts vide Circular dated 11th April, 2012. Since the appointment was contractual with specified condition that it can be terminated in the manner prescribed in the agreement, therefore, the appellant could not claim any right to continue under the Bank. It is the decision taken by the appellants to leave the Insurance jobs and to join the Bank, but at no stage, the Bank has directly or indirectly promised any job security or the fact that the services will be regularised. 18. The stand of the appellants that the services of the Business Correspondents have not been terminated or that the services of Rural Marketing Recovery Officers have been regularised or that the contracts of NGOs working as Business Facilitators have not been terminated will not confer any enforceable right in favour of the appellants. Each of the categories is separate and distinct. The services of the appellants have been terminated or not extended keeping in view the agreements executed by them with the Bank. Since each of the categories, i.e. Business Facilitators, Business Correspondents and Rural Marketing Recovery Officers is separate and distinct, the Bank could frame a policy in respect of each or all of them in the manner which is suitable to the economic and the objective criteria of the Bank. In the matter of policy, where, the power of judicial review is limited. 19. In State of Madhya Pradesh Vrs. Nandlal Jaiswal, (1986) 4 SCC 566, the Hon‟ble Supreme Court has W.P.(C) No.32402 of 2022 Page 110 of 130 held that having regard to the nature of trade and business, the Court would be slow to interfere with the policy laid down by the State Government for grant of licences for manufacture and sale of liquor. „34. But, while considering the applicability of Article 14 in such a case, we must bear in mind that, having regard to the nature of the trade or business, the Court would be slow to interfere with the policy laid down by the State Government for grant of licences for manufacture and sale of liquor. The Court would, in view of the inherently pernicious nature of the commodity allow a large measure of latitude to the State Government in determining its policy of regulating, manufacture and trade in liquor. Moreover, the grant of licences for manufacture and sale of liquor would essentially be a matter of economic policy where the Court would hesitate to intervene and strike down what the State Government has done, unless it appears to be plainly arbitrary, irrational or mala fide. We had occasion to consider the scope of interference by the Court under Article 14 while dealing with laws relating to economic activities in R.K. Garg Vrs. Union of India, (1981) 4 SCC 675. We pointed out in that case that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion, etc. We observed that the legislature should be W.P.(C) No.32402 of 2022 Page 111 of 130 allowed some play in the joints because it has to deal with complex problems which do not admit of solution through any doctrinaire or strait jacket formula and this is particularly true in case of legislation dealing with economic matters, where, having regard to the nature of the problems required to be dealt with, greater play in the joints has to be allowed to the legislature. We quoted with approval the following admonition given by Frankfurter, J. in Morey Vrs. Dond, 354 US 457: „In the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if not judicial deference to legislative judgment. The legislature after all has the affirmative responsibility. The courts have only the power to destroy, not to reconstruct. When these are added to the complexity of economic regulation, the uncertainty, the liability to error, the bewildering conflict of the experts, and the number of times the Judges have been overruled by events — self-limitation can be seen to be the path to judicial wisdom and institutional prestige and stability.‟ What we said in that case in regard to legislation relating to economic matters must apply equally in regard to executive action in the field of economic activities, though the executive decision may not be placed on as high a pedestal as legislative judgment insofar as judicial deference is concerned. W.P.(C) No.32402 of 2022 Page 112 of 130 We must not forget that in complex economic matters every decision is necessarily empiric and it is based on experimentation or what one may call “trial and error method” and, therefore, its validity cannot be tested on any rigid „a priori‟ considerations or on the application of any strait jacket formula. The Court must while adjudging the constitutional validity of an executive decision relating to economic matters grant a certain measure of freedom or “play in the joints” to the executive. “The problem of Government” as pointed out by the Supreme Court of the United States in Metropolis Theatre Co. Vrs. State of Chicago, 57 L Ed 730‟ „are practical ones and may justify, if they do not require, rough accommodations, illogical, it may be, and unscientific. But even such criticism should not be hastily expressed. What is best is not discernible, the wisdom of any choice may be disputed or condemned. Mere errors of Government are not subject to our judicial review. It is only its palpably arbitrary exercises which can be declared void.‟ The Government, as was said in Permian Basin Area Rate cases 20 L ED (2d) 312 is entitled to make pragmatic adjustments which may be called for by particular circumstances. The Court cannot strike down a policy decision taken by the State Government merely because it feels that W.P.(C) No.32402 of 2022 Page 113 of 130 another policy decision would have been fairer or wiser or more scientific or logical. The Court can interfere only if the policy decision is patently arbitrary, discriminatory or mala fide. It is against the background of these observations and keeping them in mind that we must now proceed to deal with the contention of the petitioners based on Article 14 of the Constitution.” 20. In Bajaj Hindustan Ltd. Vrs. Sir Shadi Lal Enterprises Ltd., (2011) 1 SCC 640, the Supreme Court held to the following effect: „21. It is settled law that in the areas of economics and commerce, there is far greater latitude available to the executive than in other matters. The Court cannot sit in judgment over the wisdom of the policy of the legislature or the executive. Thus in BALCO Employees‟ Union (Regd.) Vrs. Union of India, (2002) 2 SCC 333, it was observed: „92. In a democracy, it is the prerogative of each elected Government to follow its own policy. Often a change in Government may result in the shift in focus or change in economic policies. Any such change may result in adversely affecting some vested interests. Unless any illegality is committed in the execution of the policy or the same is contrary to law or mala fide, a decision W.P.(C) No.32402 of 2022 Page 114 of 130 bringing about change cannot per se be interfered with by the court. 93. Wisdom and advisability of economic policies are ordinarily not amenable to judicial review unless it can be demonstrated that the policy is contrary to any statutory provision or the Constitution. In other words, it is not for the courts to consider relative merits of different economic policies and consider whether a wiser or better one can be evolved.‟ In the same decision in SCC para 39 it was observed: (BALCO Employees‟ case, (2002) 2 SCC 333, SCC pp. 358-59) „39. In Premium Granites Vrs. State of T.N., (1994) 2 SCC 691 while considering the court‟s powers in interfering with the policy decision, it was observed at p. 715 as under: (SCC para 54) „54. It is not the domain of the court to embark upon unchartered ocean of public policy in an exercise to consider as to whether a particular public policy is wise or a better public policy can be evolved. Such exercise must be left to the discretion of the executive and legislative authorities as the case may be.‟ ” 21. In State of Odisha Vrs. Gopinath Das, (2005) 13 SCC 495, the Supreme Court held that scope of W.P.(C) No.32402 of 2022 Page 115 of 130 judicial review is confined on the question as to whether the decision taken by the Government is against the statutory provisions or it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution. The Court said as under: „5. While exercising the power of judicial review of administrative action, the Court is not the Appellate Authority and the Constitution does not permit the Court to direct or advise the executive in the matter of policy or to sermonise qua any matter which under the Constitution lies within the sphere of the legislature or the executive, provided these authorities do not transgress their constitutional limits or statutory power. (See Asif Hameed Vrs. State of J&K, 1989 Supp (2) SCC 364 = AIR 1989 SC 1899, and Shri Sitaram Sugar Co. Ltd. Vrs. Union of India, (1990) 3 SCC 223 = AIR 1990 SC 1277). The scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution. Thus, the position is that even if the decision taken by the Government does not appear to be agreeable to the Court, it cannot interfere. 6. The correctness of the reasons which prompted the Government in decision-making taking one course of action instead of another is not a matter of concern in judicial W.P.(C) No.32402 of 2022 Page 116 of 130 review and the Court is not the appropriate forum for such investigation. 7. The policy decision must be left to the Government as it alone can adopt which policy should be adopted after considering all the points from different angles. In the matter of policy decisions or exercise of discretion by the Government so long as the infringement of fundamental right is not shown the courts will have no occasion to interfere and the Court will not and should not substitute its own judgment for the judgment of the executive in such matters. In assessing the propriety of a decision of the Government the Court cannot interfere even if a second view is possible from that of the Government.‟ 22. In another judgment, reported as Brij Mohal Lal Vrs. Union of India, (2012) 6 SCC 502, the Supreme Court was considering the matter whether the Fast Track Court established under the Scheme of the Central Government can be directed to be continued by the Government. It was held that that is matter of policy having financial implications; therefore, there cannot be any direction to continue with such Scheme. The Court held to the following effect: „96. It is a settled principle of law that matters relating to framing and implementation of policy primarily fall in the domain of the Government. It is an established requirement of good governance that the Government should frame policies which are fair and W.P.(C) No.32402 of 2022 Page 117 of 130 beneficial to the public at large. The Government enjoys freedom in relation to framing of policies. It is for the Government to adopt any particular policy as it may deem fit and proper and the law gives it liberty and freedom in framing the same. Normally, the courts would decline to exercise the power of judicial review in relation to such matters. But this general rule is not free from exceptions. The courts have repeatedly taken the view that they would not refuse to adjudicate upon policy matters if the policy decisions are arbitrary, capricious or mala fide. 97. In bringing out the distinction between policy matters amenable to judicial review and those where the courts would decline to exercise their jurisdiction, this Court in Bennett Coleman & Co. Vrs. Union of India, (1972) 2 SCC 788, held as under: (SCC p. 834, para 125) „125. *** The argument of the petitioners that Government should have accorded greater priority to the import of newsprint to supply the need of all newspaper proprietors to the maximum extent is a matter relating to the policy of import and this Court cannot be propelled into the unchartered ocean of Governmental policy.‟ 98. We must examine the cases where this Court has stepped in and exercised limited power W.P.(C) No.32402 of 2022 Page 118 of 130 of judicial review in matters of policy. In Asif Hameed Vrs. State of J&K, 1989 Supp (2) SCC 364, this Court noticed that, where a challenge is to the action of the State, the court must act in accordance with law and determine whether the State has acted within the powers and functions assigned to it under the Constitution. If not, it must strike down the action, of course, with due caution. Normally, the courts do not give directions or advise in such matters. This Court held as under: „19. When a State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the Constitution and if not, the court must strike down the action. While doing so the court must remain within its self- imposed limits. The court sits in judgment on the action of a coordinate branch of the Government. While exercising power of judicial review of administrative action, the court is not an appellate authority. The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonise qua any matter which under the Constitution lies within the sphere of legislature or executive, provided these authorities do not W.P.(C) No.32402 of 2022 Page 119 of 130 transgress their constitutional limits or statutory powers.‟ 99. It is also a settled cannon of law that the Government has the authority and power to not only frame its policies, but also to change the same. The power of the Government, regarding how the policy should be shaped or implemented and what should be its scope, is very wide, subject to it not being arbitrary or unreasonable. In other words, the State may formulate or reformulate its policies to attain its obligations of governance or to achieve its objects, but the freedom so granted is subject to basic constitutional limitations and is not so absolute in its terms that it would permit even arbitrary actions. 100. Certain tests, whether this Court should or not interfere in the policy decisions of the State, as stated in other judgments, can be summed up as: (I) If the policy fails to satisfy the test of reasonableness, it would be unconstitutional. (II) The change in policy must be made fairly and should not give the impression that it was so done arbitrarily on any ulterior intention. (III) The policy can be faulted on grounds of mala fides, unreasonableness, arbitrariness or unfairness, etc. W.P.(C) No.32402 of 2022 Page 120 of 130 (IV) If the policy is found to be against any statute or the Constitution or runs counter to the philosophy behind these provisions. (V) It is dehors the provisions of the Act or legislations. (VI) If the delegate has acted beyond its power of delegation. 101. Cases of this nature can be classified into two main classes: one class being the matters relating to general policy decisions of the State and the second relating to fiscal policies of the State. In the former class of cases, the courts have expanded the scope of judicial review when the actions are arbitrary, mala fide or contrary to the law of the land; while in the latter class of cases, the scope of such judicial review is far narrower. Nevertheless, unreasonableness, arbitrariness, unfair actions or policies contrary to the letter, intent and philosophy of law and policies expanding beyond the permissible limits of delegated power will be instances where the courts will step in to interfere with Government policy.‟ 23. In view of the judgments referred to above, none of the conditions to challenge the policy decision to do away the Business Facilitator is satisfied. Therefore, we find that the decision of the Bank in terminating the services of the appellants cannot be said to be illegal, arbitrary, irrational as such is W.P.(C) No.32402 of 2022 Page 121 of 130 in terms of the agreement entered upon by the appellants with the Bank.” 11.8. Having thus analysed the merit of the matter, and having regard to proposition propounded to attack the policy decisions, this Court is of the considered view that as the period of Agreement has been ended, there is little scope to exercise jurisdiction under Article 226 of the Constitution of India to issue writ of mandamus for extension of the period of Agreement. Conclusion: 12. On the facts that the petitioner, engaged as BC on the agreed terms to engage its own workmen for providing service(s), was required to comply with the statutory obligations under different laws including labour laws. The BC was only entitled to fee and commission towards the services rendered by him. Such Agreement was for one year subject to extension on satisfaction by the OGB. The Agreement appears to have been ended by now and the same has not extended for the OGB has floated tender inviting success bidder to engage Corporate Business Correspondent with Information and Communication Technology Solutions. No material is placed on record by the petitioner to show that the BC was to face interview or written examination for its selection. It is W.P.(C) No.32402 of 2022 Page 122 of 130 held on the analysis of fact that the Agreement was entered into between the OGB and the individual BC as required under the Master Circular. For the reasons inter alia that there was absence of authorisation by the BCs, the Odisha Gramya Bank Business Correspondents Association could not have filed this writ petition to represent cause of the individual BC. 12.1. Since the employer-employee relationship and matter relating to claim for regularisation in service is pending adjudication before the Central Government Industrial Tribunal, the contention of the counsel for the petitioner that there was non-adherence of mandatory requirement under Section 9A read with Section 33(2) of the ID Act is repelled and the decision rendered in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vrs. Ram Gopal Sharma, AIR 2002 SC 643 = (2002) 1 SCR 284 would not countenance the cause of the petitioner. Said reported case is distinguishable on facts. The Agreement in Annexure- 2 reveals the structure of payment was commission basis and the BC was given scope to engage its employees and pay them. The BC was also required to comply with statutory provisions including Labour Laws as independent employer, the moot question sought to be answered in the present writ petition stands answered. Since the industrial dispute is stated W.P.(C) No.32402 of 2022 Page 123 of 130 to be pending in ID Case No. 34 of 2022 it is left open for the learned Central Government Industrial Tribunal to adjudicate on analysis of documents on facts. Nonetheless, as is evinced from the material available on record, it is quite natural but to hold that there is no clarity as to whether the Odisha Gramya Bank Business Correspondents Association is a registered or unregistered Association authorised by its so-called members-BCs to ventilate their grievance to treat them as employees of the OGB before this Court invoking Articles 226 and 227 of the Constitution of India. This Court feels it expedient to have regard to the following dicta of the Hon’ble Supreme Court of India laid in the case of Sanjay Kumar Jha Vrs. Prakash Chandra Chaudhary, (2018) 14 SCR 893: “13. It is well settled that in proceedings under Article 226 of the Constitution of India the High Court does not adjudicate, upon affidavits, disputed questions of fact. In arriving at the finding that the land offered by respondent-Prakash Chandra Chaudhary was located within Giriyama Mauza of Falka Block the learned Single Bench embarked upon adjudication of a hotly disputed factual issue, which the High Court, while exercising its writ jurisdiction, does not do. *** W.P.(C) No.32402 of 2022 Page 124 of 130 16. It is well settled that proceedings under Article 226 of the Constitution of India, the High Court cannot sit as a Court of Appeal over the findings recorded by a competent administrative authority, nor reappreciate evidence for itself to correct the error of fact, that does not go to the root of jurisdiction. The High Court does not ordinarily interfere with the findings of fact based on evidence and substitute its own findings, which the High Court has done in this case. Even assuming that there had been any error in the computation of marks in respect of fixed and movable assets, the High Court could, at best, have remitted the case of respondent-Prakash Chandra Chaudhary to the concerned authorities for reconsideration. *** 19. In exercise of discretionary power of judicial review under Article 226 of the Constitution, the High Court might interfere with administrative matters only if the decision is violative of fundamental or basic principles of justice and fair play or suffers from any patent or flagrant error. It is true that the High Court might rectify, in exercise of its power of judicial review, an error of law or even an error of fact, for sufficient reasons, if the error breaches fundamental or basic principles of justice or fair play or if the error is patent and/or flagrant, but not otherwise. However, even in cases where the High Court finds an apparent factual error which goes to the root of the decision, the appropriate course of action would be to give the opportunity to the W.P.(C) No.32402 of 2022 Page 125 of 130 authority concerned to rectify the error. It is only in the rarest of cases, where the factual error is so obvious that it is rectifiable by the Court itself, that the Court might, to prevent delay and consequential denial and/or miscarriage of justice, rectify the error. *** 21. It is not for the High Court, exercising jurisdiction under Article 226 of the Constitution of India to embark upon a comparative assessment of the suitability of different candidates for appointment of a dealer of a retail outlet. The High Court, in our view, should not have decided the factual question of whether the land of respondent Prakash Chandra Chaudhary was in Giriyama in view of the reports of the concerned Additional Collector, District Magistrate and Circle Officer to the effect that the land of respondent Prakash Chandra Chaudhary was in Falka block and not within Giriyama. The High Court patently erred in brushing aside the reports of the Revenue Authorities and arriving at a different finding.” 12.2. Keeping abreast of such settled principle enunciated by the Hon’ble Supreme Court of India, it is needed to be highlighted that this Court being conscious that the pertinent question on fact is subject matter to be adjudicated in the ID Case No.34 of 2022 by the learned Central Government Industrial Tribunal, but the relevant facts have been discussed herein above on the basis of the documents as made available in the W.P.(C) No.32402 of 2022 Page 126 of 130 record of the present case for the purpose of answering the arguments advanced by the learned counsel for the respective parties. 12.3. This Court finds substance in the submission of Sri Manoj Kumar Mishra, learned Senior Advocate that covenants of the Agreement entered into between the OGB and the BC are in the nature of contract for rendering service and therefore, it is misnomer to say that the RFP would change the condition of service. The period of such Agreement (Annexure-2), i.e., one year, has already been elapsed; as such, there can be no direction to the opposite party Nos.4 and 5 to extend the said period. 12.4. Most significantly, it is acknowledged that the RFP, being in consonance with the terms of subsequent Master Circular superseding the earlier ones, contemplates technological upgradation to smoothen the functioning of banking business. Such a proposal is policy decision of the OGB. A faint attempt has been made by Sri Debendra Mohanta, learned Advocate by suggesting that such policy is contrary to Guidelines and Master Circular. Because of new Master Circular superseding the earlier Circulars/Instructions, the opposite party Nos.4 and 5 have rightfully proceeded to invite tender. The RFP has been issued as a policy W.P.(C) No.32402 of 2022 Page 127 of 130 decision of the OGB in tune with the Guidelines/ Circulars of the Reserve Bank of India and Central Government. This Court must desist from interfering with the policy of the Bank. There are no allegations of unreasonableness, arbitrariness and favouritism. 12.5. The scope of judicial review while examining a policy of the Bank is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution of India, or opposed to any statutory provision or is manifestly arbitrary. Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review. The scope of judicial review in policy matters is no longer res integra. 12.6. This Court considering the submission of the opposite party Nos.4 and 5 that due to interim Order dated 02.12.2022 being passed, the OGB was unable to finalise the tender process to procure new Servers for smooth functioning of the Bank made it clear vide Order dated 14.12.2023 as follows: “*** Considering such submissions made by the learned counsels appearing for both sides, this Court directs the W.P.(C) No.32402 of 2022 Page 128 of 130 opposite party-Bank to maintain the status quo with regard to engagement of the petitioner by the opposite party-Bank as 02.12.2022 shall be maintained till the next date. Further, the Bank is given liberty to proceed with the tender process. However, any decision taken in the meantime shall be subject to the final outcome of the present writ application. The interim order passed on 02.12.2022 is clarified to the aforesaid extent and the same shall continue till the next date.” 12.7. Sri Manoj Kumar Mishra, learned Senior Advocate referred to State of Odisha Vrs. Madan Gopal Rungta, 1951 SCC 1024 and Soumitri Panda Vrs. State of Odisha, W.P.(C) No.4656 of 2014, vide Judgment dated 27.02.2015 of this Court reported at 2015 SCC OnLine Ori 76, to contend that Article 226 could not be used for the purpose of giving interim relief as the only and final relief on the application. An interim relief can be granted only in aid of and as ancillary to the main relief which may be available to the party on final determination of his rights in suit or proceeding. 12.8. Since it is admitted at the Bar that the industrial dispute as regards employer-employee relationship vis- a-vis regularisation in service of the BC is pending adjudication by the Central Government Industrial Tribunal in ID Case No.34 of 2022, the writ petition, without taking recourse of remedy available to the BCs individually under the statute, is premature; hence, W.P.(C) No.32402 of 2022 Page 129 of 130 the interim order passed in the instant writ petition stands vacated. Thus, the prayer of the petitioner “to quash the SOP under Annexure-11 and declare the same as illegal, arbitrary, unreasonable and against the Order of this Hon‟ble Court dated 02.12.2022” is refused. 13. Ergo, the petitioner-Odisha Gramya Bank Business Correspondents Association could not successfully lay challenge in the writ petition against the decision making process; rather the insistence of the petitioner to pierce into the decision itself is untenable inasmuch as nothing is found on record to show that the RFP, which is outcome of policy decision, is patently arbitrary, discriminatory or mala fide. 14. Notwithstanding the fact that it is held the writ petition under Articles 226 and 227 is not maintainable because of defective representation of the petitioner-Odisha Gramya Bank Business Correspondents Association, this Court proceeded to answer all the questions raised and argued by the counsel for both sides at the persistence of Sri Debendra Mohanta, learned Advocate for the petitioner despite the factual issue of regularization of Business Correspondents in service vis-à-vis employer- employee/master-servant relationship is pending W.P.(C) No.32402 of 2022 Page 130 of 130 before the Central Government Industrial Tribunal. For the reasons ascribed hitherto, discussions made supra, and taking note of averments contained in the pleadings coupled with arguments advanced during the course of hearing, this Court opines that the writ petition, being devoid of merit, deserves to be dismissed. 15. The writ petition is, accordingly, dismissed, but in the circumstances there shall be no order as to costs. (MURAHARI SRI RAMAN) JUDGE High Court of Orissa, Cuttack The 20th January, 2025//Aswini/MRS/Suchitra Digitally Signed Signed by: ASWINI KUMAR SETHY Designation: Personal Assistant (Secretary-in- charge) Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 20-Jan-2025 17:31:44 Signature Not Verified "