Allahabad High Court
Sitala Prasad Ojha vs State Of U.P. And 4 Others on 4 August, 2022
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 37
Case :- WRIT - A No. - 11445 of 2022
Petitioner :- Sitala Prasad Ojha
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Agnihotri Kumar Tripathi
Counsel for Respondent :- C.S.C.,A.K.S.Parihar
Hon'ble Manish Mathur,J.
Heard learned counsel for petitioner, learned State Counsel for respondents 1 to 3 and Mr. A.K.S. Parihar learned counsel for respondents 4 and 5.
Petition has been filed seeking a direction to the respondents to include seats occupied by ad hoc teachers and lecturers for vacancy of Trained Graduate Teachers in the advertisement No. 1/2022 and in the vacancy of Lecturers in the advertisement No.2/2021 advertised on 9th June, 2022.
Learned counsel for respondents at the very outset have taken a preliminary objection regarding maintainability of petition on the ground that petitioner being an unemployed person does not have any statutory or fundamental right inherent in him to maintain petition for the relief claimed. It is submitted that even otherwise the petition is liable to be rejected on the ground of non joinder of necessary parties since petitioner himself in the prayer indicates that the seats required to be advertised at its instance are actually being occupied by ad hoc teachers and lecturers while the said persons have not been arrayed as respondents in the petition.
Learned counsel for petitioner submits that petitioner is unemployed candidate having all eligibility to be appointed as a trained graduate teacher or lecturer for the vacancies in the respondent board and even otherwise has a fundamental right to be considered in terms of Articled 14 and 16 of the Constitution of India for consideration for appointment to a post under the State. He has placed reliance on the judgment rendered by Supreme Court in the case of Ashok Kumar and others versus Chairman, Banking Service Recruitment Board and others reported in 1996 1 UPLBEC 710.
Upon consideration of submissions advanced by learned counsel for parties, it is apparent that petitioner has adverted to himself as an unemployed person having qualifications and eligibility to be appointed as trained graduate teacher or lecturer. It is also apparent that certain post being held by ad hoc teachers and lecturers in the institution have not been advertised. From a perusal of memorandum of petition, it is apparent that petitioner in paragraph 6 has clearly stated that he has already applied for the vacancies advertised by the aforesaid advertisements. There is no averment as to how petitioner would be aggrieved in case the aforesaid vacancies are not advertised considering the fact that petitioner has already applied for the vacancies advertised.
The judgment relied upon by learned counsel for petitioner in the case of Ashok Kumar (supra) clearly has no applicability in the present facts and circumstances considering the fact that issue before the Supreme Court in the said case was pertaining to appointment of persons kept in the waiting list by the respective boards although vacancies on which such appointments had been made had arisen subsequently and without being notified for recruitment. There is no law enunciated in the aforesaid judgment that a person such as petitioner or that every unemployed person of the country has a right to maintain the petition to compel the State to advertise the vacancies. Although in the said judgment, it has been held that every citizen has a fundamental right enshrined under Articles 14 sand 16 to claim consideration for appointment to a post to the same, the said observation of Supreme Court can not be stretched to an absurd limit as has been claimed in the present petition. The said law would definitely applicable only on the posts which have been advertised.
Hon'ble Supreme Court in the case of Ayaaubkhan Noorkhan Pathan versus State of Maharashtra reported in (2013)4 SCC 465 has held as follows:-
" 9. 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. [Vide State of Orissa v. Madan Gopal Rungta [AIR 1952 SC 12] , Saghir Ahmad v. State of U.P. [AIR 1954 SC 728] , Calcutta Gas Co. (Proprietary) Ltd. v. State of W.B. [AIR 1962 SC 1044] , Rajendra Singh v. State of M.P. [(1996) 5 SCC 460 : AIR 1996 SC 2736] and Tamilnad Mercantile Bank Shareholders Welfare Assn. (2) v. S.C. Sekar [(2009) 2 SCC 784] .]"
Upon applicability of the aforesaid judgment in the present facts and circumstances of the case, it is apparent that petitioner having already applied in terms of aforesaid advertisements for the vacancies advertised even otherwise does not have any right to claim the prayer as being made in the present writ petition. The petition as such being devoid of merits is dismissed .
Order Date :- 4.8.2022
Prabhat
