Research › Search › Judgment

J&K High Court · body

2015 DIGILAW 116 (JK)

Jyoti Hak v. State of J&K

2015-03-25

BANSI LAL BHAT, N.PAUL VASANTHAKUMAR

body2015
JUDGMENT : 1. These appeals are filed by appellant (Jyoti Hak) and the State against order passed in SWP No. 2800/1999, dated 13.08.2001 wherein after issuing the writ of quo-warranto it was held that appellant was selected in breach of the Reservation Rules, i.e., she was selected on a post which was meant for Scheduled Caste Category candidate and the private respondent No. 4 was found ineligible by the Public Service Commission. Whether ineligible candidate has locus standi to challenge the selection of selected candidate was considered by Hon'ble the Supreme Court in the following decisions:- In Ghulam Qadir v. Special Tribunal & Ors., (2002) 1 SCC 33 , Hon'ble the Supreme Court considered a similar issue and observed as under:- "38. 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 hyper-technical grounds. 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." (Emphasis added) In Anand Sharadchandra Oka v. University of Mumbai, AIR 2008 SC 1289 , a similar view was taken by Hon'ble the Supreme Court, observing that, if a person claiming relief is not eligible as per requirement, then he cannot be said to be a person aggrieved regarding the election or the selection of other persons. In A. Subhash Babu v. State of A.P., AIR 2011 SC 3031 , Hon'ble the Supreme Court held as under:- "25....The expression aggrieved person' denotes an elastic and an elusive concept. In A. Subhash Babu v. State of A.P., AIR 2011 SC 3031 , Hon'ble the Supreme Court held as under:- "25....The expression aggrieved person' denotes an elastic and an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of complainant's interest and the nature and the extent of the prejudice or injury suffered by the complainant." In Ravi Yashwant Bhoir v. District Collector, Raigad & Ors., (2012) 4 SCC 407 , Hon'ble the Supreme Court held as under: "58. Shri Chintaman Raghunath Gharat, Ex-President was the complainant, thus, at the most, he could lead evidence as a witness. He could not claim the status of an adversarial litigant. The complainant cannot be the party to the lis. 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 eye of the 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 lis. A fanciful or sentimental grievance may not be sufficient to confer a locus standi to sue upon the individual. There must be injuria or a legal grievance which can be appreciated and not a stat pro ratione voluntas reasons i.e. a claim devoid of reasons. 60. Under the garb of being a necessary party, a person cannot be permitted to make a case as that of general public interest. There must be injuria or a legal grievance which can be appreciated and not a stat pro ratione voluntas reasons i.e. a claim devoid of reasons. 60. Under the garb of being a 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 lis, as the person who 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." A similar view has been re-iterated by this Court in K. Manjusree v. State of Andhra Pradesh & Anr., (2008) 3 SCC 512 , wherein it was held that, the applicant before the High Court could not challenge the appointment of a person as she was in no way aggrieved, for she herself could not have been selected by adopting either method. Moreover, the appointment cannot be challenged at a belated stage and, hence, the petition should have been rejected by the High Court, on the grounds of delay and non-maintainability, alone." In Ayaaubkhan Noorkhan Pathan v. State of Maharashtra and others, (2013) 4 Supreme Court Cases 465, Hon'ble the Supreme Court has considered in extenso the scope and ambit of a "person interested" and "locus standi". The following passages are apposite. "Person aggrieved: 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. 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. Infact, 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 & Anr. v. State of U.P., AIR 1954 SC 728 ; Calcutta Gas Company (Proprietary) Ltd. v. State of West Bengal & Ors., AIR 1962 SC 1044 ; Rajendra Singh v. State of Madhya Pradesh, AIR 1996 SC 2736 ; and Tamilnad Mercantile Bank Shareholders Welfare 2736; and Tamilnad Mercantile Bank Shareholders Welfare Association (2) v. S.C. Sekar & Ors., (2009) 2 SCC 784 )." 2. It is now well settled that ineligible candidate cannot challenge the selection of selected candidate. Hence on that ground alone order passed by the learned Single Judge cannot be sustained. 3. Secondly, the writ petition though was filed in the nature of writ of certiorari, the same was converted into one of writ of quo-warranto with a prayer of re-notifying the vacancies. The conversion of writ petition filed under writ of certiorari to quo-warranto is impermissible under law. As quo-warranto can be issued only under certain exceptional circumstances i.e. whether the person holding the post is satisfying the qualification for the post or not. Further appellant was appointed on 27.10.1999 and she is serving for the last sixteen years. Private respondent No. 4 was selected subsequently and he is also in service. The order of learned Single Judge dated 13.08.2001 is set aside. Appeals filed by appellant-Jyoti Hak and the State are allowed.