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2005 DIGILAW 907 (ALL)

Aman Singh son of Jai Singh v. State of U. P.

2005-05-09

VINEET SARAN

body2005
VINEET SARAN, J. ( 1 ) THIS bunch of writ petitions is a sequel to the earlier set of writ petitions, decided by this Court on 22. 2. 2005, and of which writ petition No. 48316 of 2004 was treated as the leading writ petition. The issue involved earlier also was with regard to the rights of the petitioners who were engaged by the Corporation as drivers on the basis of contract. Such drivers had continued to work with the respondent-Corporation for a period ranging from 2 to 8 years. Their engagement had been made on contract basis because there was a ban imposed by the State Government on regular appointments of any fresh drivers. Undisputedly the Corporation needed working hands for driving their buses and it was at that time when, after adopting a selection process, the corporation had selected drivers who were engaged on contract basis. After the posts of drivers were sanctioned by the State Government, the Corporation issued an advertisement dated 28. 10. 2004 for filling up the posts in which the petitioners claimed that they ought to have been given some relaxation and/or preference. By the Judgment and Order dated 22. 2. 2005 rendered in writ petition No. 48316 of 2004, this Court had issued directions for looking into the grievances of the petitioners for which a joint committee of the State Government and the corporation was to be constituted, and which was to submit its report regarding the relaxation and/or preference which was to be granted to the contract drivers within the ambit of Regulations of 1981. ( 2 ) IN terms of the said judgment dated 22. 2. 2005, the respondents had constituted a Committee which gave its report dated 14. 3. 2005. The same was forwarded by the Principal Secretary, transport Department, Government of U. P. to the Managing Director of the Corporation on 24. 3. 2005 for necessary compliance. Thereafter the Corporation issued the advertisement dated 31. 3. 2005 inviting applications from amongst the contract drivers who were also to be considered for appointment as drivers. Aggrieved by the report of the Joint Committee and the terms of the advertisement, the petitioners have filed these writ petitions. 3. 2005 for necessary compliance. Thereafter the Corporation issued the advertisement dated 31. 3. 2005 inviting applications from amongst the contract drivers who were also to be considered for appointment as drivers. Aggrieved by the report of the Joint Committee and the terms of the advertisement, the petitioners have filed these writ petitions. ( 3 ) AFTER a short counter affidavit had been filed by the contesting respondent - U. P. State Road transport Corporation (hereinafter referred to as the Corporation), to which a short rejoinder affidavit had also been filed, the matter was heard on merits on 25. 4. 2005 and 26. 4. 2003. However, thereafter on 28. 4. 2005 Sri Sameer Sharma, learned counsel appearing for the corporation, raised a preliminary objection that the petitioners have no locus standi to file this writ petition, as in the pleadings they have not stated as to how they are prejudiced by the action of the respondents which is under challenge in these writ petitions. ( 4 ) ALTHOUGH no such objection had been raised by the Corporation in its short counter affidavits filed in some of these writ petitions, but considering the fact that it goes to the root of the matter, on the request of the learned counsel for the Corporation, this court agreed to first take up the preliminary objection, on which the parties were heard on 2. 5. 2005 and 3. 5. 2005. ( 5 ) THE objection of the Corporation is that in none of the writ petitions, have the petitioners stated as to how they are prejudiced by the report of the committee or the advertisement issued, which are both under challenge. Sri Sameer Sharma has submitted that unless any cause of action is disclosed in the pleadings, these writ petitions, not being in the nature of Public Interest litigation, cannot be entertained by this Court. In support of his submissions he has relied on several decisions and the relevant ones shall be considered at the stage of deciding the issue. ( 6 ) LEARNED counsel for the petitioners have placed reliance only on the pleadings of writ petition no. 28388 of 2005 Aman Singh and Ors. v. State of U. P. and Ors. and writ petition No. 30437 of 2005 Ram Prasad v. State of U. P. and Ors. ( 6 ) LEARNED counsel for the petitioners have placed reliance only on the pleadings of writ petition no. 28388 of 2005 Aman Singh and Ors. v. State of U. P. and Ors. and writ petition No. 30437 of 2005 Ram Prasad v. State of U. P. and Ors. In paragraph 9 of writ petition No. 28388 of 2005 it has been stated that the petitioners had in their earlier writ petition, annexed their driving licenses, School leaving /transfer certificates for certification of their date of birth etc. , and thus the aforesaid certificates which were already on record in the previous writ petition were not being annexed, and if this Court so required, the same would be filed. In paragraph 23 it has been stated that when the petitioners initially joined as contract drivers in the year 1998 they were 32 years of age and now a few of them have become overage in terms of the advertisement dated 28. 10. 2004. It has been submitted that since in the advertisement dated 31. 3. 2005, it has only been stated that the applicants (contract drivers) ought to have been within the prescribed age limit at the time of their initial recruitment, without specifying the age limit for recruitment in the year 1998 when they were engaged, they could not be sure as to whether they would be eligible for making the application in terms of the advertisement dated 31. 3. 2005 It has further been submitted that by the advertisement dated 31. 3. 2005, the requirement is to furnish a certificate of the applicant working in the Corporation at present, i. e. on 31. 3. 2005, whereas the judgment dated 22. 2. 2005 had specified that their case was to be considered as on the date of creation of the posts, which was 25. 10. 2004. In this regard in paragraphs 29 and 30 of the writ petition it has been stated that since after the advertisement dated 28. 10. 2004, for certain reasons, almost all of the petitioners were restrained from working with the Corporation, hence they could not have obtained the certificate of "working with the Corporation at present". 10. 2004. In this regard in paragraphs 29 and 30 of the writ petition it has been stated that since after the advertisement dated 28. 10. 2004, for certain reasons, almost all of the petitioners were restrained from working with the Corporation, hence they could not have obtained the certificate of "working with the Corporation at present". The petitioners thus claim that by such action of the respondents in only allowing those persons who continued to work on the date of the advertisement and not on the date of creation of posts, prejudice had been caused to them. It was submitted that in this light it was to be considered by this Court as to whether any prejudice was actually caused to the petitioners or not. ( 7 ) IN paragraph 7 of writ petition No. 30437 of 2005 filed by Ram Prasad alone, it has been stated that the said writ petition was being filed in the representative capacity to espouse the cause of contract drivers, for whom a general direction had been issued by this Court vide judgment and Order dated 22. 2. 2005. Earlier writ petition No. 48316 of 2004 had been filed by ram Prasad alongwith several other persons. ( 8 ) THE petitioners claim that since the Corporation has grossly violated the directions issued by this Court vide Judgment and Order dated 22. 2. 2005, and there are a large number of ambiguities in the report of the Committee as well as the subsequent advertisement of the Corporation dated 31. 3. 2005, which are both under challenge in these writ petitions, these writ petitions would be maintainable and ought to be heard and decided on merits, and the preliminary objection raised by the respondent-Corporation be rejected. ( 9 ) SRI Sharma, learned counsel appearing on behalf of the Corporation, has relied upon the decision of the. Apex Court in the case of D. Nagaraj and Ors. v. State of Karnataka and Ors. (1977) 2 SCC 148 wherein it has been held that "it is also well established that a person who is not aggrieved by the discrimination complained of cannot maintain a writ petition". Apex Court in the case of D. Nagaraj and Ors. v. State of Karnataka and Ors. (1977) 2 SCC 148 wherein it has been held that "it is also well established that a person who is not aggrieved by the discrimination complained of cannot maintain a writ petition". There the court was dealing with the case of those who had not applied for appointment as Village accountants in response to a Notification for recruitment and did not also possess the prescribed qualifications and in such circumstances it was held that they were not the parties aggrieved and could not complain or have a right to maintain the writ petition. ( 10 ) IN the case of Ashutosh Gupta v. State of Rajasthan and Ors. (2002) 4 SCC 34 the supreme Court has observed that "where the challenge is made to a statutory provision being discriminatory, allegations in writ petition must be specific, clear and unambiguous. There must be proper pleadings and averments in the substantive petition before the question of denial of equal protection of infringement of fundamental right can be decided". In the said case the Court was dealing with the validity of certain rulers framed by the State Government and in that context it was held that the burden of proof of presumption of the unequal treatment would lie on the person complaining of such treatment as there is always a presumption in favour of the constitutionality of an enactment. ( 11 ) IN Rani Laxmibai Kshetriya Gramin Bank v. Chand Behari Kapoor and Ors. AIR 1998 sc 3104 it was held that "it is too well settled that the petitioner who approaches the Court invoking the extra-ordinary jurisdiction of the Court under Article 226 must fully aver and establish his rights flowing from the bundle of facts thereby requiring respondent to indicate its stand either by denial or by positive assertions. But in the absence of any averments in the writ petition or even in the rejoinder affidavit it is not permissible for a Court to arrive at a conclusion on a factual position merely on the basis of submissions made in course of hearing. But in the absence of any averments in the writ petition or even in the rejoinder affidavit it is not permissible for a Court to arrive at a conclusion on a factual position merely on the basis of submissions made in course of hearing. " ( 12 ) IN Bharat Singh v. State of Haryana AIR 1988 S. C. 2181 it has been held that "in our opinion, when a point which is ostensibly a point of law is required to be substantiated by fads, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the court will not entertain the point. " ( 13 ) IN my view the ratio of the aforesaid cases as relied upon by the learned counsel for the corporation are distinguishable on facts and would not be applicable to the present case. There can be no doubt that the burden to prove his case would lie on the person approaching the Court. There should be sufficient material available before the Court to see whether the challenge to the action of the respondents is there or not. ( 14 ) FROM a plain reading of the writ petitions at hand, it cannot be said that necessary facts relating to the cause of action of the petitioners is not there. The objection of the Corporation is that even though such material may be there for deciding the issues involved, but the petitioners have not specified the prejudice which has been caused to them by the action of the respondents, and thus these petitions should be dismissed on the preliminary objection itself. ( 15 ) IN the case of Dwarka Nath v. Income Tax Officer, Special Circle D-Ward, Kanpur and anr. AIR 1966 SC 81 while considering the powers of the High Court under Article 226 of the constitution of India it was held that "this Article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Court to reach injustice wherever it is found". AIR 1966 SC 81 while considering the powers of the High Court under Article 226 of the constitution of India it was held that "this Article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Court to reach injustice wherever it is found". It is well settled that the jurisdiction of the High Court under Article 226 is much wider than the jurisdiction under Article 32 of the Constitution of India because the High Courts are required to exercise this jurisdiction not only for the enforcement of fundamental rights but also for the enforcement of any legal right and there are many rights conferred on the poor and disadvantaged which are the creation of statute and they need to be enforced as urgently and vigorously as fundamental rights, vide Bandhua Mukiti Morcha v. Union of India and Ors. AIR 1984 SC 802 . ( 16 ) IN the case of Ghulam Qadir v. Special Tribunal and Ors. (2002) 1 S. C. C. 33 the Supreme court, while dealing with the legal proposition of the rights of a person to approach the High court under Article 226 of the Constitution of India, held that "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 hyper technical 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. On 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. " ( 17 ) IN Kusum Ignots and Alloys Ltd. v. Union of India and Anr. On 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. " ( 17 ) IN Kusum Ignots and Alloys Ltd. v. Union of India and Anr. (2004) 6 SCC 254 the supreme Court has held that "cause of action implies a right to sue. The material facts which are imperative for the suitor to allege and prove constitute the cause of action. Cause of action is not defined in any statute. It has, however, been judicially interpreted inter alia to mean that every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. " ( 18 ) THE Apex Court in the case of N. Balaji v. Virendra Singh and Ors. (2005) 1 UPLBEC 268 has held that "in the matter of applicability of the procedural rigorous the Constitution Bench of this Court in Sardar Amarjeet Singh Kalra (Dead) by Lrs. and Ors. v. Pramod Gupta (Smt) (Dead) by Lrs. and Ors. , (2003) 3 SCC 272 , has observed that laws of procedure are meant to regulate effectively, assist and aid the object of substantial and real justice and not to foreclose even an adjudication on the merits of substantial rights of citizen under personal, property and other laws. With the march and progress of law, the new horizons explored and modalities discerned and the fact that the procedural laws must be liberally construed to really serve as handmaid, make it workable and advance the ends of justice, technical objections which tend to be stumbling blocks to defeat and deny substantial and effective justice should be strictly viewed for being discouraged, except where the mandate of law inevitably necessitates it. It follows from the decision by the Constitution Bench that the procedure would not be used to discourage the substantial and effective justice but would be so construed as to ad Mince the cause of justice. " ( 19 ) THUS the law on the subject is clearly to the effect that the party approaching this Court is entitled to substantial and real justice. The procedure, which is viewed as handmaid of justice, should not hamper the ends of justice. " ( 19 ) THUS the law on the subject is clearly to the effect that the party approaching this Court is entitled to substantial and real justice. The procedure, which is viewed as handmaid of justice, should not hamper the ends of justice. It should be liberally construed to make it workable and advance the cause of justice. The Courts, while dealing with such issues, should take a positive and constructive approach. It has to break the shackles of technicalities and reach out to the real issues and if the cause demands, proceed to adjudicate the case on merits instead of getting entangled in the hyper technicalities of law. ( 20 ) WITHOUT making any observation on the merits of the case (as only the preliminary objection has been heard), in the facts of this case, when the material for deciding the case on merits is already there on record, this Court would not like to scuttle the hearing on merits of the case merely on the technical objection raised by the respondents. The grievance of the petitioner with regard to the report of the Joint Committee as well as the advertisement issued by the corporation is already there in the pleadings. Admittedly, the report which has been submitted and the advertisement, which has been issued, are with regard to the contract drivers, a class of persons in which all the petitioners fall. Thus, the petitioners, being contract drivers, are the persons who are affected by such action of the Corporation. It cannot be said that the petitioners are strangers to the proceedings or that they would not be prejudiced or aggrieved if, after hearing on merits, it is found that such action of the corporation was unreasonable. Thus it cannot be said that there is no cause of action for entertaining these writ petitions. Undoubtedly the petitioners have been agitating their claim and had promptly approached this Court in the earlier bunch of writ petitions (leading one being writ petition No. 48316 of 2004) which was decided by this Court on 22. 2. 2005. Again when the Corporation has proceeded to fill up the posts of drivers on the recommendations of the Joint Committee and has also issued the advertisement; within a few days of its issuance, the; petitioners have yet again promptly approached this Court by filing these writ petitions. 2. 2005. Again when the Corporation has proceeded to fill up the posts of drivers on the recommendations of the Joint Committee and has also issued the advertisement; within a few days of its issuance, the; petitioners have yet again promptly approached this Court by filing these writ petitions. Thus, in my view, substantial justice needs to be done in their cases. For this, it would be necessary or, if I may say so it is the right of the petitioners, to get the issues involved in these writ petitions decided on merits, after a complete hearing is given to the parties. ( 21 ) THE preliminary objection raised by the respondent Corporation is thus rejected. The writ petitions will be heard and decided on merits. . .