Tribhuwan Verma vs State Of U.P. Thru. Addl.Chief ...
2021 Latest Caselaw 11453 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

										A.F.R.
 
Court No. - 2							 
 

 
Case :- MISC. BENCH No. - 28898 of 2021
 
Petitioner :- Tribhuwan Verma
 
Respondent :- State Of U.P. Thru. Addl.Chief Secy. Basic Edu. Lko. & Ors.
 
Counsel for Petitioner :- Bhup Chandra Singh,Shiwa Sagar Singh
 
Counsel for Respondent :- C.S.C.,Jaibind Singh Rathour,Tanay Hazari
 

 
Hon'ble Rakesh Srivastava,J.

Hon'ble Shamim Ahmed,J.

(Per- Shamim Ahmed, J.)

Heard Shri Bhup Chandra Singh, learned counsel for the petitioner, Shri Tanay Hazari, learned counsel for respondent no. 2 and learned Standing counsel for State-respondent no.1.

In view of the order proposed to be passed, notice to respondent no.3 is dispensed with.

This writ petition has been filed praying inter alia the following reliefs:-

(i) Issue a writ , order or direction in the nature of certiorari thereby set aside the letter no. 8582-89/2021-22 dated 08.09.2021 passed by opposite party no.2/District Basic Education Officer, Sultanpur because the opposite party no. 2 without investigating the matter seriously and also ignoring the material facts and documents available on record which was provided before him by the petitioner regarding the selection of opposite party no.3 on the post of Assistant Teacher fraudulently at Primary School Nonara, Block-Kadipur, Sultanpur on the basis of forged and fabricated documents likewise date of birth mentioned as 10.04.1983 in the High School Marksheet which was regularly passed out and another Marksheet of High School bearing date of birth is 20.03.1984 in the interest of justice.

(ii) Issue a writ, order or direction in the nature of mandamus thereby directing the concerned authority to terminate the service of the private opposite party no. 3 presently working as Assistant Teacher at Primary School Nonara, Block-Kadipur, Sultanpur on the basis of forged and fabricated documents in the interest of justice.

Learned counsel for the petitioner submits that respondent no.3 namely Pradeep Kumar took admission in class 1st at Primary School Daulatpur, Jaisinghpur, Sultanpur and studied upto 5th class. His date of birth has been mentioned as 10.04.1983 in the school records. He studied from 6th to 10th class at Subhash Inter College, Paliya, Sultanpur and passed High School examination in the year 1999 and in T.C. of High School, his date of birth is mentioned as 10.4.1983.

It was further argued by the learned counsel for the petitioner that respondent no.3 studied from class 6th to 8th at Munna Misr Laghu Madhymic School, Misrauli, Jaisinghpur, Sultanpur and passed 8th class in the year 1997, but with fraudulent intention in order to reduce his age, he has mentioned his date of birth as 20.3.1984 in the school's documents. Thereafter he has passed 9th and 10th class as private candidate in the year 2000 from Janta Inter College, Belhari, Sultanpur on the aforesaid date of birth and thereafter regularly passed 11th and 12th class in the year 2001-2002 from the aforesaid school on the same date of birth i.e. 20.3.1984. Further the respondent no. 3 took admission as regular student in I.T.I. course in the year 2000 to 2002 and simultaneously he was also pursuing studies as regular student of class 11th and 12th in the same year. Learned counsel for the petitioner submitted that it is very surprising that how respondent no. 3 can attend classes simultaneously at two places , which is against the rules.

Learned counsel for the petitioner further argued that the respondent no.3 on the basis of forged and fabricated documents and wrong date of birth was appointed on the post of Assistant Teacher by the Uttar Pradesh Basic Shiksha Parishad and was regularly promoted and is presently working as Head Master, as such his appointment be cancelled and the salary paid to him be recovered by the State authorities.

It was further argued by the learned counsel for the petitioner that letters dated 29.6.2021 and 21.11.2020 were sent by the petitioner mentioning each and every fraudulent activities of respondent no.3 with documentary evidence to the respondent No. 2, who decided the same exculpating the respondent no.3 without applying fair and legal mind in connivance with him with ulterior motives and the allegation levelled by the petitioner was ignored and no action was taken by the concerned Basic Shiksha Adhikari against the respondent No.3 and the finding was given that his date of birth is correct.

Per contra, learned counsel appearing for respondent nos. 1 and 2 submits that petitioner has no locus to file the present writ petition challenging the appointment of respondent no. 3 as he is not aggrieved person nor he has any concern with the fraud committed by respondent no.3 who got enrolled with different date of birth in two schools simultaneously and in this regard after due enquiry the Basic Shiksha Adhikari has given finding that the date of birth of respondent no.3 is not forged and the representation of the petitioner was rejected by the authorities concerned after due verification. Further the present writ petition is not a Public Interest Litigation nor there is any prayer for a writ of quo warranto.

After considering the arguments advanced by the learned counsel for the parties and after perusal of the record, we find that for a person to prefer the writ petition, has to establish that he has been deprived of or denied of a legal right and he has sustained injury to any legally protected interest. Thus in order to prefer a writ, the person entitled would be one who has either been wrongly deprived of his entitlement which he is legally entitled to receive and it does not include any kind of disappointment or personal inconvenience. It is settled proposition of law that the person who suffers from legal injury only can challenge the act or action or order by filing a writ petition inasmuch as the writ petition under Article 226 of Constitution of India is maintainable for enforcing a statutory or legal right or when there is a complaint by the petitioner that there is breach of statutory duty on the part of authorities. Thus, there must be a judicially enforceable right for the enforcement of which the writ jurisdiction can be resorted to and not for the purpose of settlement of a personal grievance. In the present case, the petitioner fails to establish his any legal right or able to show any breach of statutory duty on the part of authorities.

The same view was observed by the Hon'ble Supreme Court in the case of Ravi Yashwant Bhoir Vs. Collector, (2012) 4 SCC 407 with regard to the locus of a complainant and was pleased to observe as under:-

"58. Shri Chintaman Raghunath Gharat, Ex- President was the complainant, thus, at the most, he could lead the evidence as a witness. He could not claim the status of an adversial litigant. The complainant cannot be the party to the lies. A legal right is an averment of entitlement arising out of law. In fact, it is a benefit conferred upon a person by the rule of law. Thus, a person who suffers from legal injury can only challenge the act or omission. There may be some harm or loss that may not be wrongful in the eyes of law because it may not result in injury to a legal right or legally protected interest of the complainant but juridically harm of this description is called damnum sine injuria.

59. The complainant has to establish that he has been deprived of or denied of a legal right and he has sustained injury to any legally protected interest. In case he has no legal peg for a justiciable claim to hang on, he cannot be heard as a party in a lies. A fanciful or sentimental grievance may not be sufficient to confer a locus stand to sue upon the individual. There must be injuria or a legal grievance which can be appreciated and not a stat pro rationed valuntas reasons.

60. Under the garb of being necessary party, a person cannot be permitted to make a case as that of general public interest. A person having a remote interest cannot be permitted to become a party in the lies, as the person wants to become a party in a case, has to establish that he has a proprietary right which has been or is threatened to be violated, for the reason that a legal injury creates a remedial right in the injured person. A person cannot be heard as a party unless he answers the description of aggrieved party."

The same view was taken by the Division Bench of this Court in the case of Dharam Raj Vs. State of U.P and others, (2010) 2 AWC 1878 (All) with respect to the locus of complainant and was pleased to observe as under:-

"9. As evident from narration of the facts given above, it is evident that the petitioner was one of the complainants in the complaint against the respondent No. 4 on 12.3.2008. The action has since been taken on the complaint so made by the petitioner and others against the respondent No. 4, and fine of Rs. 5,000 has been imposed.

10. In the circumstances, the petitioner cannot have any grievance in the matter, and he is not an aggrieved person rather he is a person annoyed,

11. In the case of R. v. London Country Keepers of the Peace of Justice, (1890) 25 QBD 357, the Court has held:

A person who cannot succeed in getting a conviction against another may be annoyed by the said findings. He may also feel that what he thought to be a breach of law was wrongly held to be not a breach of law by the Magistrate.

He thus may be said to be a person annoyed but not a person aggrieved, entitle to prefer an appeal against such order.

12. According to our opinion a "person aggrieved" means a person who is wrongly deprived of his entitlement which he is legally entitled to receive and it does not include any kind of disappointment or personal inconvenience. "Person aggrieved" means a person who is injured or he is adversely affected in a legal sense.

13. It is settled law that a person who suffers from legal injury only can challenge the act/action/order etc. by filing a writ petition. Writ petition under Article 226 of the Constitution is maintainable for enforcing a statutory or legal right or when there is a complaint by the petitioner that there is a breach of the statutory duty on the part of the authorities. Therefore, there must be a judicially enforceable right for the enforcement of which the writ jurisdiction can be resorted to. The Court can enforce the performance of a statutory duty by public bodies through its writ jurisdiction at the behest of a person, provided such person satisfied the Court that he has a legal right to insist on such performance. The existence of the said right is the condition precedent to invoke the writ jurisdiction [Utkal University etc. v. Dr. Nrusingha Charan Sarangi and Ors. AIR 1999 SC 943 and Laxminarayan R. Bhattad and Ors. v. State of Maharashtra and Anr. (2003) 5 SCC 413].

14. Legal right is an averment of entitlement arising out of law. It is, in fact, an advantage or benefit conferred upon a person by a rule of law, [Shanti Kumar R. Canji v. Home Insurance Co. of New York AIR 1974 SC 1719 and State of Rajasthan v. Union of India and Ors. AIR 1977 SC 1361).

15. In Jasbhai Motibhai Desat v. Roshan Kumar Hazi Bashir Ahmad and Ors.: AIR 1976 SC 578, the Apex Court has held that only a person who is aggrieved by an order, can maintain a writ petition. The expression "aggrieved person" has been explained by the Apex Court observing that such a person must show that he has a more particular or peculiar interest of his own beyond that of the general public in seeing that the law is properly administered. In the said case, a cinema hall owner had challenged the sanction of setting up of a rival cinema hall in the town contending that it would adversely affect monopolistic commercial interest, causing pecuniary harm and loss of business from competition. The Hon'ble Apex Court observed as under:

Such harm or loss is not wrongful in the eye of law because it does not result in injury to a legal right or a legally protected interest, the business competition causing it being a lawful activity. Judicially, harm of this description is called damnum sine injuria. The term injuria being here used in its true sense reason why law suffers a person knowingly to inflict harm of this description on another, without holding him accountable for it, is that such harm done to an individual is a gain to society at large. In the light of the above discussion, it is demonstratively clear that the appellant has not been denied or deprived of a legal right. He has not sustained injury to any legally protected interest. In fact, the impugned order does not operate as a decision against him, much less does it wrongfully effect his title to something. He has not been subjected to legal wrong. He has suffered no grievance. He has no legal peg for a justiciable claim to hang on. Therefore, he is not a "person aggrieved" to challenge the ground of the no objection certificate."

In Northern Plastics Ltd. v. Hindustan Photo Films Mfg Co. Ltd. and Ors. MANU/SC/1151/1997 MANU/SC/ 1151/1997 : (1997) 4 SCC 452, the Hon'ble Supreme Court again considered the meaning of "person aggrieved" and "locus of a rival Government undertaking" and held that a rival businessman cannot maintain a writ petition on the ground that its business prospects would be adversely affected.

16. The view taken by us that the petitioner is not a person aggrieved, thus he has no locus standi to file the present writ petition thereby challenging the order dated 16.3.2009 passed by Sub-Divisional Magistrate, Jaisinghpur, district Sultanpur is also supported by the decision of this Court in the case of Suresh Singh v. Commissioner Moradabad Division 1993 (1) AWC 601, where it was held that in an inquiry under Section 95(g) of the U.P. Panchayat Raj Act, 1947, the complainant who was Up-Pradhan could be a witness in. an inquiry but had no locus standi to approach this Court against the order of the State authorities, for the reasons that none of his personal statutory right are affected.

17. As such the petitioner has no focus standi to file the present writ petition under Article 226 of the Constitution of India. Even otherwise having regard to the facts and circumstances of the case, we are not inclined to exercise our discretionary jurisdiction under Article 226 of the Constitution of India."

When the facts of the instant case are tested on the touchstone of the law laid down in the aforesaid two judgments, it clearly comes out that the petitioner has no legal right of his own and neither has suffered from any legal injury, rather is only a complainant, and thus would not have any locus to prefer the present petition.

Further the Hon'ble Supreme Court in the case of Ayaaubkhan Noorkhan Pathan Vs. State of Maharashtra and others, AIR 2013 SC 58 was pleased to observe in paragraph 22 that under ordinary circumstances, a third person, having no concern with the case at hand, cannot claim to have any locus-standi to raise any grievance whatsoever but in the exceptional circumstances, the Court may examine the issue and in exceptional circumstances the Court may proceed suo-motu. For the sake of convenience, the relevant observations in the case of Ayaaubkhan Noorkhan Pathan (supra) are reproduced as under:-

"22. Thus, from the above it is evident that under ordinary circumstances, a third person, having no concern with the case at hand, cannot claim to have any locus-standi to raise any grievance whatsoever. However, in the exceptional circumstances as referred to above, if the actual persons aggrieved, because of ignorance, illiteracy, in articulation or poverty, are unable to approach the court, and a person, who has no personal agenda, or object, in relation to which, he can grind his own axe, approaches the court, then the court may examine the issue and in exceptional circumstances, even if his bonafides are doubted, but the issue raised by him, in the opinion of the court, requires consideration, the court may proceed suo-motu, in such respect."

This Court has gone through the entire petition and no such averment has been made anywhere in the entire petition that the actual aggrieved persons because of ignorance, illiteracy, in articulation or poverty are unable to approach the Court and in those circumstances the petitioner has approached this Court. Thus, the present case would not stand the exceptional circumstances as have been spelt out by the Apex Court in the cases of Ayaaubkhan Noorkhan Pathan (supra) and Dharm Raj (supra).

Accordingly, we find that the petitioner has no locus to file the present writ petition challenging the appointment of respondent no.3 as he is not an aggrieved person nor he has any concern with the fraud alleged to have been committed by respondent no.3. The objection raised by the learned counsel for respondent nos.1 and 2 appears to be justified regarding the locus of the petitioner.

Accordingly, keeping in view the aforesaid discussion, the writ petition is dismissed.

 
Order Date :- 10.12.2021
 
Anurag/GSY
 

 

 
    (Shamim Ahmed, J.)       (Rakesh Srivastava, J.)