n No 90 of 1976
Under Article 32 of the Constitution of India
MK Ramamurthi and J Ramamurthi for the appellant
TS Krishnamoorthy lyer and N Sudhakaran for respond ent No 2
The Judgment of the Court was delivered by Beg CJ
The petitioner alleges in fringement of his rights under Articles 161 and 311 of the Constitution
He joined the service of the erstwhile Transport Department of the State of Kerala as a Cleaner in the Mechanical Wing in 1949
He was promoted to the post of Helper and then Assistant Mechanic and finally to that of a Mechanic
On 15th March 1965 the Kerala State Transport Corporation was set up under section 3 of the hereinafter referred to as the Act so
that he became a servant of the Corporation
He alleges that as the Kerala State is administering the Corporation and appoints its Chairman and Members under section 5 of the Act he is entitled to the protection given 390 by the State to its servants
According to him the Corpo ration is really an arm or an agent of the State
We need not however consider the correctness of this proposition as the petitioner has not in our opinion succeeded in showing how any of his rights under Article 161 of the Constitution and even less how any right of his under Article 31 of the Constitution could have been infringed assuming that he is a servant of the State
It appears that on 10th July 1968 there was a settle ment in a dispute between the Corporation and its employees
Under this settlement a trade test was to be conducted after inviting applications from lower grades of what are known as the mechanical line that is to say Assistant Electricians Assistant Tyre Inspectors Stitchers Solu tioners etc
for filling up posts in the higher grades
It was mentioned there that grade promotions will take place up to the post of Assistant Chargeman presumably without a trade test but even under this settlement appointment to the post of chargeman could only take place on the basis of results in Trade Test subject to seniority
Indeed it was stated there that Assistant Chargeman of more than three years service will be entitled to take part in the trade test
The Trade Test was apparently a test of compe tence in technical knowledge for the work to be done in the mechanical line
According to the petitioner the settlement was opera tive until an industrial dispute arose
That dispute was referred to arbitration under section 10A of the Industrial Disputes Act 14 of 1947 on 6th April 1971
The subject matter of the dispute was widely stated so as to embrace all questions relating to wage structure the ratio be tween the higher and lower grades the nature of duties and responsibilities attached to each category and methods to be adopted for increasing productivity so as to contribute to the maximum efficiency and economic advantages from the working of the Corporation
Among the matters decided in the Award given was that categorywise seniority together with Trade Test should determine the promotions to higher grades
The Award dated 31st December 1972 was duly noti fied
It is true that conditions of service were not sepcifically mentioned among subjects referred to arbitra tion
But promotions based on passing appropriate tests would certainly affect productivity
Moreover nobody took steps to assail the Award on any ground whatsoever The petitioner alleges that the Corporation and the Workmen subsequently agreed to promotions in the mechanical wing on the basis of seniority alone as had been done in the past under the settlement
To prove such an agreement the following passage was relied u on from the minutes of discussion held in the presence of the Minister Trans port and Electricity on 20th November 1973 with the representatives of the Unions of the Mechanical Wing It has therefore been decided that all existing vacancies upto Assistant Chargemen in the Mechanical Wing will be filled up as was being done in the past
The Minister however pointed out that comprehensive schemes of test with due importance on the practical Side will be 391 introduced for all categories of employees soon
The Minister promised that the stages at which tests are to be introduced for the various categories of staff will be discussed with the Unions conveniently This document signed by the General Manager of the Corporation contains only minutes of a discussion between the Minister for Trans port and Electricity and the representatives of the Unions
It is difficult to see how it could modify the terms of the Award duly made which had become binding and enforceable under section 17A of the Industrial Disputes Act
The Minutes relied upon as proof of an agreement did not even constitute an agreement or settlement which has to be signed by parties to the dispute under section 191 of the Industrial Disputes Act
The petitioner relies upon his promotion to the post of Leading Hand by the Corporation on 30th November 1973 under the abovementioned alleged agreement
But on 4th December 1975 the High Court had set aside the promotion of the petitioner and all others similarly circumstance upon a writ petition filed by an Association of Technical Certif icate Holders of the Corporation and one Krishna Kutty a mechanic of the Corporation
It appears that among the opposite parties was the Kerala State Transport Mechanical Workers Union represented by its General Secretary
Sec tion 18 3 of the Industrial Disputes Act makes it clear that an Award of a Labour Court or Tribunal is binding on all parties to the industrial dispute
It is true that the petitioner was not individually a party to the proceedings in the High Court which resulted in the quashing of the order of promotion of the petitioner together with others on the ground that the Award had been violated by such promo tions
Nevertheless the petitioner would be deemed to be duly represented by his Union on such a question
He did not take any steps to assail or to get the judgment and order of the High Court set aside
The grounds upon which the petitioner attacks the enforcement of what was treated as an Award against him so that he was reverted are firstly that the so called Award did not relate to matters covered by the previous settlement and subsequent agreement but contained some observations which had been misinter preted by the High Court secondly that the High Court had misunderstood the Award inasmuch as it did not contain any direction that a Trade Test should be imposed upon those who belonged to the petitioner s category before their promotion and thirdly that he was not a party to the proceedings in the High Court which resulted in the quash ing of the document by which he was promoted so that the High Court s order is not binding upon him
We are not able to
agree with the interpretation put forward on behalf of the petitioner upon the Award
The High Court s order shows that not even a counter affidavit was filed by an Opposite Party and no defence was offered by the Union which represented the petitioner
In any case the rights of the petitioner under an agreement or an Award if he had any such right could not be identified with rights under Article 161 of the Constitution
The result of the quashing of the promotion order relating ton whole category of employees in the position of the petitioner was that all similarly situated shared the 392 same fate
All of them had to pass the Trade Test to become entitled to promotion
In this respect they were treated alike
It could not be shown what opportunity was denied to the petitioner which was given to anybody else in the same category or with the same qualifications as the peti tioner had
It was immaterial that somebody else in another category altogether was not required to pass the trade test which was essential on the view taken by the High Court before those in the petitioner s category could claim promotion
All those in the petitioner s category and with his qualifications had been placed on an equal footing
Hence whatever else might have been con travened it was certainly not a fundamental right under Article 16 1  of the Constitution which could be held to have been violated
And no attempt was even made to show how a right of the petitioner under Article 31 1 of the Constitution was affected
The petitioner s remedy when he claims a benefit under an agreement or an Award does not lie by means of a petition under Article 32 of the Constitution
This article is reserved exclusively for the enforcement of a fundamental right
As the petitioner has been unable to disclose how a fundamental right has been violated this petition must be and is hereby dismissed
We make no order as to costs
Petition dismissed


Summary:
The appellant was a mechanic in the service of the erstwhile Transport Department of the Kerala State
He thereafter became
an employee of the Kerala State Transport Corporation when the same was set up in March 1965
In 1968 there was a settlement between the Corporation and its employees providing that a trade test  would have to be passed for promotion to
posts in the higher grade while grade promotions would take place upto the post of Assist ant Chargeman
Subsequently in a dispute referred to arbitration the Award provided that category wise seniori ty together with trade test should determine the promo tions
The petitioner alleged that thereafter the Corpora tion and the workmen agreed to promotions in his wing by seniority alone and consequently the petitioner and some others were promoted
Their promotions were assailed as violative of the award and were set aside by the High Court
The petitioner filed a writ petition under article 32 of the Constitution claiming that his fundamental right under article 161 had been violated
Dismissing the writ petition the Court HELD The rights of the petitioner under an agreement or an award if he had any such right could not be identified with rights under Article 161 of the Constitution
The result of the quashing of the promotion order relating to a whole category of employees in the position of the petition er was that all similarly situated shared the same fate and all
those in the petitioner s category and with his quali fications had been placed on an equal looting
The peti tioner s remedy when he claims a benefit under an agreement or an award does not lie by means of a petition under article 32 of the Constitution
391 G H 392 A C