Andhra Pradesh High Court - Amravati

Potluri Immaniel, vs State Of Andhra Pradesh on 23 February, 2021

Bench: M.Satyanarayana Murthy

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                 WRIT PETITION NO.17000 OF 2020

ORDER:

This Writ Petition is filed under Article 226 of the

Constitution of India, seeking the following relief:

" to issue a writ order or direction more particularly one in the nature of WRIT OF MANDAMUS declaring the inaction of the respondents 2 to 4 on the petitioners complaint dated 08.11.2018 submitted for conducting departmental enquiry and initiating disciplinary action against the 5th respondent who secured employment in the services of the 4th respondent on compassionate grounds under bread winner scheme by submitting Bogus Caste Certificate and fake No Earning Certificate as illegal irregular irrational non discharge of legal obligation conferred on them violative of settled principles of service jurisprudence and consequently direct the respondents to conduct departmental enquiry and initiate disciplinary action against the 5th respondent who secured employment in the services of the 4th respondent on compassionate grounds by submitting Bogus Caste Certificate and fake No Earning Certificate"

The petitioner seeks direction to conduct departmental

enquiry and initiate disciplinary action against the fifth

respondent, who secured employment in the services of fourth

respondent-Markapur Municipality.

The petitioner is only a third party and he is unconcerned

with Respondent No.5, but claiming that he is a person having

acquaintance with the facts narrated in the writ petition,

questioning the appointment of Respondent No.5 in Respondent

No.4-Municipality on compassionate grounds being a dependant of

deceased government servant.

During hearing, this Court raised a question as to the

maintainability of the writ petition by the petitioner, since he is MSM,J WP.No.17000 of 2020

neither a person aggrieved, nor a person affected on account of

appointment of Respondent No.5 in Respondent No.4-Municipality.

The answer given by the petitioner to the query is that, the

petitioner is a person acquainted with the facts of the case. A

person who is acquainted with the facts of the case is not

competent to file a writ petition invoking discretionary jurisdiction

under Article 226 of the Constitution of India. unless, the

petitioner satisfies this Court about his locus to file the writ

petition i.e. competency, this Court cannot grant such relief. If

really, he is a person who is acquainted with the facts of the case,

the remedy available is elsewhere by filing public interest litigation,

but not by filing a writ petition before this Court as if he is a

person aggrieved.

A person will have a standing if he or she is harmed by a

legal wrong caused by administrative or State action or is adversely

affected or aggrieved by such actions within the meaning of the

relevant statute. (vide Director of Endowments, Hyderabad v.

Akram Ali1 and D. Nagaraj v. State of Karnataka2). Locus standi

in the context of statutory remedy is not to be determined by

analogy of locus standi to file petitions under Articles 32 or 226 of

the Constitution of India. But, when a dispute or a controversy,

productive of an injury in fact or that the party has been wronged

or adversely affected by the action which impaired that concern

and the said right or interest is arguably within "the zone of

interest" protected by a statute or other instruments of law, can

1 AIR 1956 SC 60 2 (1977) 2 SCC 148 MSM,J WP.No.17000 of 2020

also give standing to the person. There is fine distinction between

litigational competence in ordinary litigation i.e. adversarial and

public interest litigation as non- adversarial, which varies from one

to the other. If, the Act of the State or administrative authority of

the State causes public injury or affects the right of public at large,

such act need not be questioned by a person having locus standi or

litigational competence and such act can be questioned by

invoking pro bono publico.

The tests that may be applied for determining standing in

private or individual interest pursuits may not be strictly applied in

all cases of litigation in public interest. However, the commonality

of some factors for determination of standing in both cases may be

restated. Thus, a real grievance or injury must exist; the impact of

State action must be demonstrated, access to justice in

substantive or procedural terms must be shown to be involved, the

demand to do justice and the failure to rectify the wrong is a

relevant factor, the inappropriateness, futility, inadequacy,

onerous or burdensome nature of alternative administrative

processes, may have to be established to redress a claim by an

individual by filing an application under Article 226 of the

Constitution of India. But the action of the State infringes either

fundamental right or statutory right of general public and

apprehending injury to the public at large to any person having no

interest in the said matter in question or challenge the State act.

Litigational competence is not waived in private litigation.

But in public interest litigation only the litigational competence is MSM,J WP.No.17000 of 2020

waived to some extent but not absolutely. Therefore, one must

have locus to redress the claim approaching the Court in a private

litigation and they must have a right or interest in the property

and infringement of it or invasion or infringement of such is sine

qua non to obtain any relief from the competent court.

In Union of India v. W.N. Chadha3, the Apex Court held as

follows:

"179. In Union Carbide Corporation, it has been said that any member of the society must have locus to initiate a prosecution as well as to resist withdrawal of such prosecution if initiated.

180. That proposition is also, in our opinion, cannot be availed of as the prosecution was initiated by the appellants herein and they are persecuting and pursing the matter upto this Court, The proposition that any one can initiate a criminal proceeding is not in dispute.

181. We have already considered the locus standi of a third party in a criminal case and rendered a considered finding in Janata Dal v. H.S. Chowdary [AIR 1993 SC 892] when this matter came before us in the first round of its litigation. Reference also may be made to Simranjit Singh Mann v. Union of India and Anr

182. Before the Supreme Court of United States, a similar question arose in Whitmore v. Arkansas ([1990] 495 US 149), , whether a next friend can invoke the jurisdiction of the Court when a real party was not able to litigate his or her own cause. The Supreme Court dismissed the writ of certiorari for want of jurisdiction on the ground that Whitmore, an independent person lacked standing to proceed in the case. In said case of Whitmore, reliance has been placed on a decision, namely, Gusman v. Marrero 180 US 81, 87, 45 L. Ed. 436, 21, S.Ct. 293 (1901), in which it has been held thus:

However friendly he may be to the doomed man and sympathetic for his situation; however concerned he may be lest unconstitutional laws be enforced, and however laudable such sentiments are, the grievance they suffer and feel is not special enough to furnish a cause of action in a case like this.

183. In fact when this case on hand came up before this Court arising out of the public interest litigation of Shri H.S. Chowdhary, some other political parties approached this Court as public interest litigants to challenge the impugned judgment in that case, but this Court rejected all those appeals on the ground of locus standi."

3 AIR 1993 SC 1082 MSM,J WP.No.17000 of 2020

Similarly, in Bangalore Medical Trust v. B.S. Muddappa

And others4, the Apex Court discussed the scope of litigational

competence i.e. locus standi and its relaxation in public interest

litigation based on Janata Dal v. H.S. Chowdary5. The law

declared by the Apex Court in the above judgments is that, only in

public interest litigation the litigational competence is waived

though not absolutely, but in private litigation, such litigational

competence cannot be waived.

In view of the law declared by the Courts in the judgments

referred supra, I find that this petitioner has no locus standi to file

the present writ petition, as it is purely a private litigation i.e.