Harnarayan Yadav vs State Of U.P. And 6 Others
2021 Latest Caselaw 10544 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 36
 

 
Case :- WRIT - A No. - 4507 of 2021
 

 
Petitioner :- Harnarayan Yadav
 
Respondent :- State Of U.P. And 6 Others
 
Counsel for Petitioner :- Arvind Kumar Srivastava,Archana Srivastava
 
Counsel for Respondent :- C.S.C.,Hritudhwaj Pratap Sahi,Sharad Chandra
 

 
Hon'ble Mahesh Chandra Tripathi,J.

Heard Shri Arvind Kumar Srivastava, learned counsel for the petitioner, Shri B.B. Pandey, learned Chief Standing Counsel for the State respondents, Shri G.K. Singh, learned Senior Advocate assisted by Shri Sharad Chand Yadav, Advocate and Shri Hritudhwaj Pratap Sahi, learned counsel for private respondent and Shri Ramesh Upadhyay, learned Senior Advocate assisted by Shri Rajan Upadhyay and Shri Shivam Yadav, learned counsel for respondent.

The petitioner claims to be social activist. In pith and substance, he is challenging the appointment of private respondent arrayed as respondent no.6 and 7 namely Rajpal Singh Yadav, Headmaster, Bhartiya Adarsh Uchchatar Madhyamik Vidyalaya, Bheekanpur, Jasohan, Etawah and Vikas Yadav, Assistant Clerk, respectively.

Shri G.K. Singh, learned Senior Advocate and Shri Ramesh Upadhyay, learned Senior Advocate has raised objection that on behalf of petitioner, the writ petition is not maintainable as the petitioner should or ordinarily be one who has a personal or individual right in subject matter of dispute. Aggrieved must necessarily be one, whose right or interest has been adversely effected. Ref: Desh Deepak Srivastava vs. State of U.P. and others 205(3) ADJ 352. Further the process ought not to be allowed to be set in motion at the behest of a third party, who had no locus or interest of his own and who seek to utilize the judicial process for such purpose. Ref: Vimal Kumar Sharma vs. State of U.P. and others 2015(3) ADJ 348 (DB). Maintainability of the writ petition has been questioned on the ground that appointment of private respondent no.6 and 7 were made in the year 2005 and earlier also for the same cause of action, the petitioner has preferred Writ Petition no.62421/2005 (Hari Narain Yadav vs. State of U.P. and others). Lastly, submission has been made that as per pleading it is being alleged that the Manager has accorded appointment to his relatives respondent no.6 and 7, which is also unsustainable as at the time of their initial appointment, the Authorized Controller was in effective control of the Institution, which is reflected from appointment letter itself appended as annexure-I to the writ petition.

So far as question of locus standi is concerned, the same has been considered in Vimal Srivastava (supra). The relevant portion of said order is extracted as under:-

"As a result of the order which has been passed by the learned Single Judge, the appointment of the appellant which had taken place as far back as in April 2005, would be at large to be inquired into and examined by the DIOS in a writ petition which was filed in October 2014. The sixth respondent stated that he had obtained information in regard to the employment of the mother of the appellant only when he applied under the Right to Information Act, 2005, prior to which he was unaware of the facts. The basic issue is whether the sixth respondent had locus, even assuming that he is a patron member of the society which runs the Inter College to challenge the appointment of the appellant. Plainly, the answer to that must be in the negative. The Committee of Management of an educational institution is the appointing authority. Even if, as was stated in the writ petition, the College is under the control and management of an Administrator, that would give no right to a patron member to file a writ petition in order to question a compassionate appointment, which was granted, as in the present case, a decade ago in 2005. The sixth respondent has not asserted any interest of his own that would lead him to file a writ petition. The sixth respondent sought a facially innocuous order, seeking the disposal of his representation to which the Standing Counsel had no objection before the learned Single Judge. Unfortunately, such an order can wreak havoc in the life of a third party, who has no notice of the proceedings. As the facts of this case itself would indicate the order would have the effect of placing in uncertainty, the appointment of the appellant which was made in 2005, at the behest of a busybody, who has no locus to institute the proceedings. This is not to indicate that the State or its authorities are debarred from inquiring into the facts of an appointment, if it has been obtained by fraud or misrepresentation. However, we are emphatically of the view that the process ought not to be allowed to be set in motion at the behest of a third party, who has no locus or interest of his own and who seeks to utilize the judicial process for such purposes.

Orders for the disposal of representations are increasingly being sought in writ petitions before this Court. Such orders are often invited without notice to the affected party on the ostensible ground that 'only' a disposal of a representation is sought and the administrative authority will hear all parties. This is liable to result in serious consequences. Settled rights are unsettled. Administrative authorities assume jurisdiction over matters in which they have no authority as if the Court has clothed them with jurisdiction and authority. Unscrupulous litigants are increasingly resorting to such a stratagem hoping to find allies in willing public officials who would lend them a helping hand. These tendencies must be curbed and Courts must be circumspect in passing orders for disposal of representations. Though the relief sought may seemingly be innocuous, it is misused to pursue extraneous purposes.

The writ petition which was filed by the sixth respondent was thus clearly not maintainable and the only order, in our view, which can be passed, is to dismiss the writ petition both on the ground of the absence of locus on the part of the sixth respondent and the gross and unexplained delay in filing the writ proceedings. We, accordingly, allow the special appeal and set aside the impugned judgment and order of the learned Single Judge dated 12 January 2015. The writ petition (Writ?A No.68146 of 2014) filed by the sixth respondent shall, in consequence, stands dismissed. There shall be no order as to costs."

The same issue has again come before this Court in the case of Desh Deepak Srivastava (supra) and this Court has held as follows:

"9. Basic question which arises for consideration is in respect of the locus standi of the petitioner respondent nos. 5 and 6 to maintain the writ petition in capacity as manager of the committee of management of the institution and the elected committee of management respectively. Undoubtedly, this court restrained respondent no. 5 to function as manager of the institution by means of interim order dated 22.7.2003 passed in WP No. 31710 of 2003 and subsequently the writ petition was allowed and his recognition as manager of the institution was quashed.

10. Locus standi for probative relief under Article 226 of the Constitution of India are subject to certain well settled principle. The petitioner should ordinarily be one who has a personal or individual right in the subject matter of dispute and can demonstrate a legal wrong or legal injury. The only exception to the said principle is in the case of the writ of habeas corpus or a writ of quo-warranto or in writ petition filed in public interest. In writ petitions in the nature of habeas corpus, quo-warannto and public interest litigation the question of locus standi losses its significance. The Apex Court In Vinoy Kumar v. State of U.P., (2001) 4 SCC 734 has held as under:

"Generally speaking, a person shall have no locus standi to file a writ petition if he is not personally affected by the impugned order or his fundamental rights have neither been directly or substantially invaded nor is there any imminent danger of such rights being invaded or his acquired interests have been violated ignoring the applicable rules. The relief under Article 226 of the Constitution is based on the existence of a right in favour of the person invoking the jurisdiction. The exception to the general rule is only in cases where the writ applied for is a writ of habeas corpus or quo warranto or filed in public interest. It is a matter of prudence, that the court confines the exercise of writ jurisdiction to cases where legal wrong or legal injuries are caused to a particular person or his fundamental rights are violated, and not to entertain cases of individual wrong or injury at the instance of third party where there is an effective legal aid organisation which can take care of such cases."-

11. Again the Hon'ble Apex court in the case of Ghulam Qadir v. Special Tribunal, (2002) 1 SCC 33 held that:

"There is no dispute regarding the legal proposition that the rights under Article 226 of the Constitution of India can be enforced only by an aggrieved person except in the case where the writ prayed for is for habeas corpus or quo warranto. Another exception in the general rule is the filing of a writ petition in public interest. The existence of the legal right of the petitioner which is alleged to have been violated is the foundation for invoking the jurisdiction of the High Court under the aforesaid article. The orthodox rule of interpretation regarding the locus standi of a person to reach the court has undergone a sea change with the development of constitutional law in our country and the constitutional courts have been adopting a liberal approach in dealing with the cases or dislodging the claim of a litigant merely on hypertechnical grounds. If a person approaching the court can satisfy that the impugned action is likely to adversely affect his right which is shown to be having source in some statutory provision, the petition filed by such a person cannot be rejected on the ground of his not having the locus standi. In other words, if the person is found to be not merely a stranger having no right whatsoever to any post or property, he cannot be non-suited on the ground of his not having the locus standi."

12. The Apex Court in the case of Aanyaaubkhan Noorkhan Pathan Versus State of Maharashtra" reported in (2013) 4 SCC 465 has held that:

"It is a settled legal proposition that a stranger cannot be permitted to meddle in any proceeding, unless he satisfies the authority/court, that he falls within the category of aggrieved persons. Only a person who has suffered, or suffers from legal injury can challenge the act/action/order, etc. in a court of law. A writ petition under Article 226 of the Constitution is maintainable either for the purpose of enforcing a statutory or legal right, or when there is a complaint by the appellant that there has been a breach of statutory duty on the part of the authorities. Therefore, there must be a judicially enforceable right available for enforcement, on the basis of which writ jurisdiction is resorted to. The Court can, of course, enforce the performance of a statutory duty by a public body, using its writ jurisdiction at the behest of a person, provided that such person satisfies the Court that he has a legal right to insist on such performance. The existence of such right is a condition precedent for invoking the writ jurisdiction of the courts. It is implicit in the exercise of such extraordinary jurisdiction that the relief prayed for must be one to enforce a legal right. In fact, the existence of such right, is the foundation of the exercise of the said jurisdiction by the Court. The legal right that can be enforced must ordinarily be the right of the appellant himself, who complains of infraction of such right and approaches the Court for relief as regards the same".

13. The petitioner-respondent Ajay Singh approached this Court claiming himself to be manager of the institution. He, despite full knowledge concealed the fact that challenge was made to the order dated 29.5.2003 passed by Regional Level Committee recognising the election set up by him and also order dated 20.6.2003 passed by the DIOS attesting his signatures as manager of the Institution in Writ Petition No. 30170 of 2003 wherein an interim order staying the effect and operation of the said two orders was passed on 22.7.2003, thus he could not have filed writ petition representing himself as manager of the institution on 11.8.2014 much after said order dated 22.7.2003 was passed.

14. Apart from the fact that petitioner-respondent no. 5 invoked the extra ordinary jurisdiction of this court by misrepresenting and concealing material fact which dis-entitle him from grant of any relief, even otherwise he has no locus in the matter to challenge the selection process of the appellant for he cannot be said to be a person aggrieved. The person aggrieved does include the person who suffers from psychological or on an imaginary injury. A person aggrieved must, therefore, necessarily be one whose right or interest has been adversely effected or jeopardized. Petitioner-respondent no. 5 by any stretch of imagination does not stand test and thus writ petition at his behest cannot be held to be maintainable.

15. Even the petition cannot be treated as a public interest litigation. The courts have consistently held that such a course of action is not permissible so far as service matters are concerned. The Supreme Court in Duryodhan Sahu & Ors. v. Jitendra Kumar Mishra & Ors.(1998) 7 SCC 273 held that "there is no doubt that a total stranger to the service concerned cannot make an application before the Tribunal. If public interest litigations at the instance of strangers are allowed to be entertained by the Tribunal, the very object of speedy disposal of service matters would get defeated." In Thammanna v. K. Veera Reddy, (1980) 4 SCC 62 it was held Hon'ble Apex Court that although the meaning of the expression "person aggrieved" may vary according to the context of the statute and the facts of the case, nevertheless normally, a person aggrieved must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something.

16. The aforesaid factual situation of the matter was not taken into account by the learned single Judge while allowing the writ petition. Apart from above, in so far as merit of the case is concerned not only the petitioner is to be non-suited on account of filing writ petition by concealing material facts and misrepresenting himself as manager of the institution, but also since we have come to the conclusion that the writ petition itself is not maintainable at the behest of the petitioner, we do not find its expedient to enter into the merits of the matter.

17. As a result, the impugned order passed by the learned Single Judge dated 9.12.2005 is not liable to be sustained and is hereby set aside. Special Appeal stands allowed. However, in the circumstances of the case there shall be no order as to costs."

The Court has proceeded to peruse the record as well as the dictum in the case of Vimal Kumar (supra) and Desh Deepak Srivastava (supra) and finds substances in aforesaid objections raised by learned senior counsel for the respondents.

Once the Court indicate its mind in negative, learned counsel for the petitioner prays that the writ petition may be dismissed as not pressed.

Prayer made is allowed.

The writ petition is dismissed as not pressed.

The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the petitioner alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.

The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

Order Date :- 18.8.2021

A. Pandey