Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 2327 (ALL)

RAM SEVAK v. STATE OF U. P.

2016-07-06

P.K.S.BAGHEL

body2016
JUDGMENT Hon’ble P.K.S. Baghel, J.—The petitioner has instituted this writ proceeding for a direction upon the second respondent, the District Magistrate, Jalaun, to consider the complaint made by the petitioner against the illegal appointment of the sixth respondent on the post of Aanganwadi Sahayika. 2. A brief reference to the factual aspects would suffice. 3. The petitioner is a resident of Village Riniyan, Block, Pargana and District Jalaun. An advertisement was made for appointment on the post of Aanganwadi Sahayika in the said village. The sixth respondent made her application against the said advertisement and she was selected and accordingly, appointed on the said post. The petitioner made a complaint against the sixth respondent on 07th October, 2014 on the ground that she has secured appointment on the basis of forged academic certificates. On the said complaint, Bal Vikas Pariyojna Adhikari, Jalaun issued a letter dated 20th October, 2014 to the Principal of Lok Nayak Jai Prakash Memorial Junior High School, Orai for verification of certificates of Class-V and Class-VIII of the sixth respondent as she had mentioned in her application form that she did her Junior High School from the said institution. It is stated that the Headmaster of the said Junior High School vide his letter dated 22nd November, 2014 reported that Smt. Seema Devi, daughter of Sri Atar Singh Thakur, resident of Naya Ram Nagar, Orai was not a student of his school nor he has issued any transfer certificate to her. It is further stated that serial number mentioned in her transfer certificate was also not mentioned in his register with the name of the sixth respondent. 4. On receipt of the said information from the Headmaster, the Bal Vikas Pariyojna Adhikari, Jalaun submitted his report dated 25th November, 2014. In his report he has mentioned that the certificate of the sixth respondent was found to be fabricated and action against her is being taken. Pursuant thereto, a show-cause notice dated 01st December, 2014 was issued to the sixth respondent. The sixth respondent on 28th January, 2015 appeared before the District Magistrate and submitted a reply, wherein she has made allegation against her father in-law that he has deliberately enclosed the fabricated documents alongwith her application. She claimed that her certificates are genuine and originals thereof are in her possession. The sixth respondent on 28th January, 2015 appeared before the District Magistrate and submitted a reply, wherein she has made allegation against her father in-law that he has deliberately enclosed the fabricated documents alongwith her application. She claimed that her certificates are genuine and originals thereof are in her possession. She has requested the Bal Vikas Pariyojna Adhikari to verify the statement of marks and the certificates of the petitioner. A copy of the reply submitted by the sixth respondent is on the record as annexure-3 to the writ petition. It is averred in the writ petition that the sixth respondent has submitted a totally different document with regard to her academic qualification issued by Sardar Patel Vidya Mandir, Dhanaura, Jalaun, which were not appended with her application form. 5. The Bal Vikas Pariyojna Adhikari thereafter again sent the statement of marks and certificates submitted to him, by the sixth respondent alongwith her reply to the show-cause notice, to the Headmaster of Sardar Patel Vidya Mandir, Dhanaura, District Jalaun for verification. In response to the said query, the Headmaster submitted his report that the academic certificates issued by his institution are genuine and the sixth respondent has passed her Class-VI to Class-VIII examinations from his institution as a regular student and also reported that she has passed her Class-VIII in 1995-96. 6. The grievance of the petitioner is that in spite of several reminders, the District Magistrate has not passed any further order on his complaint and has kept the further proceedings in abeyance, without any plausible reason. 7. It is stated that the District Magistrate has orally allowed the sixth respondent to continue in service. 8. I have heard learned counsel for the petitioner and learned Standing Counsel for the State functionaries. 9. Learned counsel for the petitioner submits that the subsequent document submitted by the sixth respondent is also a fabricated one as she passed her Class-V in academic session 1988-89 from Sardar Patel Shishu Mandir, Dhanaura, Jalaun and took admission in Class-VI in academic session 1993-94 and there is no explanation why she has missed four academic sessions. He further submitted that in collusion with the Headmaster of Lok Nayak Jai Prakash Memorial Junior High School she got prepared the fabricated documents. He has also pointed out the discrepancy in her date of birth mentioned in her various certificates. 10. He further submitted that in collusion with the Headmaster of Lok Nayak Jai Prakash Memorial Junior High School she got prepared the fabricated documents. He has also pointed out the discrepancy in her date of birth mentioned in her various certificates. 10. Learned Standing Counsel submits that the petitioner does not have any locus to challenge the selection and appointment of the sixth respondent as he was not a candidate for the post in question and he is simply a busybody. He has further submitted that the petitioner is not an aggrieved person. The petitioner has not disclosed his locus in the writ petition also as he has made only a general and bald statement that he is a peace loving and law abiding citizen. 11. I have considered the submissions advanced by the learned counsel for the parties and perused the record. 12. The issue with regard to locus of the petitioner is to be examined at the very threshold. In this Court a large number of writ petitions are filed against the selected candidates particularly in respect of Aanganbari Karyakatri, Aanganbari Sahayika, Shiksha Mitra, Rojgar Sewak, Asha Worker, Asha Sangini, etc. These appointments are made under the different schemes of the Government and most of which are made in different welfare schemes launched and financed by the Central Government. These schemes are carried out by the State Government in terms of the guidelines/circulars issued by the Government of India. A large number of appointments are made under the Sarva Shiksha Abhiyan (Education to All), National Health Scheme and Mahatma Gandhi National Rural Employment Guarantee Act. In terms of the guidelines issued by the Government of India, the State Government has issued executive orders, circulars, etc. to regulate the recruitment in these schemes. In some of the schemes, the State Government has framed the statutory rules also. In these schemes, the recruitment is made at the local level after following the procedure prescribed in the relevant rules/Government orders, etc.. After the selection, spate of writ petitions are filed on somewhat similar grounds that the employment has been secured by the selected candidate on the basis of the fabricated documents. Serious disputed question of facts are raised in such writ petitions with regard to educational qualifications, date of birth/age, B.P.L. Certificates, domicile and caste certificates. 13. After the selection, spate of writ petitions are filed on somewhat similar grounds that the employment has been secured by the selected candidate on the basis of the fabricated documents. Serious disputed question of facts are raised in such writ petitions with regard to educational qualifications, date of birth/age, B.P.L. Certificates, domicile and caste certificates. 13. It is also a common experience that a large number of the writ petitions are filed by the residents of the village or third persons, who claim that appointment has been secured by the suppression of facts and fabrication of the documents. 14. The Supreme Court has considered the issue of locus in such matters way back in 1976 in the case of Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed and others, (1976) 1 SCC 671 . The Court considered several English and American decisions and found that as per English decisions, in order to have the locus standi, the petitioner should be an aggrieved person, and if he does not fulfil that character and he is simply a stranger, the Court in its discretion can deny him the extraordinary remedy, certiorari jurisdiction, except in very special circumstances. The expression “aggrieved person” was also examined in the light of the decisions of English cases and it was found that “aggrieved person” denotes an elastic and elusive concept and it cannot be kept or confined within the bounds of a rigid definition. To consider a person as aggrieved person, it will depend upon the scheme of the statute and the intention of the legislature. The nature and extent of the prejudice or injury suffered by such person shall also go a long way to consider him as an aggrieved person. After considering English and American cases, the Supreme Court found that in the context of locus standi broadly there are three categories. The relevant paragraphs of the judgement are extracted herein-below: “37. It will be seen that in the context of locus standi to apply for a writ of certiorari, an applicant may ordinarily fall in any of these categories: (i) ‘person aggrieved’; (ii) ‘stranger’; (iii) busybody or meddlesome interloper. Persons in the last category are easily distinguishable from those coming under the first two categories. Such persons interfere in things which do not concern them. They masquerade as crusaders for justice. Persons in the last category are easily distinguishable from those coming under the first two categories. Such persons interfere in things which do not concern them. They masquerade as crusaders for justice. They pretend to act in the name of pro bono publico, though they have no interest of the public or even of their own to protect. They indulge in the pastime of meddling with the judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity; while the ulterior intent of some applicants in this category, may be no more than spoking the wheels of administration. The High Court should do well to reject the applications of such busybodies at the threshold. 38. The distinction between the first and second categories of applicants, though real, is not always well-demarcated. The first category has, as it were, two concentric zones; a solid central zone of certainty, and a grey outer circle of lessening certainty in a sliding centrifugal scale, with an outermost nebulous fringe of uncertainty. Applicants falling within the central zone are those whose legal rights have been infringed. Such applicants undoubtedly stand in the category of ‘persons aggrieved’. In the grey outer-circle the bounds which separate the first category from the second, intermix, interfuse and overlap increasingly in a centrifugal direction. All persons in this outer zone may not be “persons aggrieved”. 39. To distinguish such applicants from ‘strangers’, among them, some broad tests may be deduced from the conspectus made above. These tests are not absolute and ultimate. Their efficacy varies according to the circumstances of the case, including the statutory context in which the matter falls to be considered. These are: Whether the applicant is a person whose legal right has been infringed? Has he suffered a legal wrong or injury, in the sense, that his interest, recognised by law, has been prejudicially and directly affected by the act or omission of the authority, complained of? Is he a person who has suffered a legal grievance, a person against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something? Has he a special and substantial grievance of his own beyond some grievance or inconvenience suffered by him in common with the rest of the public? Has he a special and substantial grievance of his own beyond some grievance or inconvenience suffered by him in common with the rest of the public? Was he entitled to object and be heard by the authority before it took the impugned action? If so, was he prejudicially affected in the exercise of that right by the act of usurpation of jurisdiction on the part of the authority? Is the statute, in the context of which the scope of the words “person aggrieved” is being considered, a social welfare measure designed to lay down ethical or professional standards of conduct for the community ? Or is it a statute dealing with private rights of particular individuals ? 40. Now let us apply these tests to the case in hand. The Act and the Rules with which we are concerned, are not designed to set norms of moral or professional conduct for the community at large or even a section thereof. They only regulate the exercise of private rights of an individual to carry on a particular business on his property. In this context, the expression “person aggrieved” must receive a strict construction.” The view taken by the Supreme Court in Jasbhai Motibhai Desai (supra) was water down for the first time in the case of S.P. Gupta and others v. President of India and others etc., AIR 1982 SC 149 . The change in the trend was noticed by the Supreme Court in the case of Chairman, Railway Board and others v. Chandrima Das (Mrs) and others, (2000) 2 SCC 465 . In the said case, the Supreme Court has considered the decision of Jasbhai Motibhai Desai (supra) and observed as under: “15. The existence of a legal right, no doubt, is the foundation for a petition under Article 226 and a bare interest, maybe of a minimum nature, may give locus standi to a person to file a writ petition, but the concept of “locus standi” has undergone a sea change, as we shall presently notice. In Satyanarayana Sinha (Dr) v. S. Lal & Co. (P) Ltd., (1973) 2 SCC 696 : 1973 SCC (Cri) 1002 : AIR 1973 SC 2720 , it was held that the foundation for exercising jurisdiction under Article 32 or Article 226 is ordinarily the personal or individual right of the petitioner himself. In Satyanarayana Sinha (Dr) v. S. Lal & Co. (P) Ltd., (1973) 2 SCC 696 : 1973 SCC (Cri) 1002 : AIR 1973 SC 2720 , it was held that the foundation for exercising jurisdiction under Article 32 or Article 226 is ordinarily the personal or individual right of the petitioner himself. In writs like habeas corpus and quo warranto, the rule has been relaxed and modified. 16. In S.P. Gupta v. Union of India, 1981 Supp SCC 87 : AIR 1982 SC 149 , the law relating to locus standi was explained so as to give a wider meaning to the phrase. This Court laid down (at SCC p. 220, para 26) that practising lawyers have undoubtedly a vital interest in the independence of the judiciary; they would certainly be interested in challenging the validity or constitutionality of an action taken by the State or any public authority which has the effect of impairing the independence of the judiciary. It was further observed that lawyer’s profession was an essential and integral part of the judicial system; they could figuratively be described as priests in the temple of justice. They have, therefore, a special interest in preserving the integrity and independence of the judicial system; they are equal partners with the Judges in the administration of justice. The lawyers, either in their individual capacity or as representing some lawyers’ associations have the locus standi to challenge the circular letter addressed by the Union Law Minister to the Governors and Chief Ministers directing that one-third of the Judges of the High Court should, as far as possible, be from outside the State.” In the same year, the Supreme Court in another case in M.S. Jayaraj v. Commissioner of Excise, Kerala and others, (2000) 7 SCC 552 , observed as under: “12. In this context we noticed that this Court has changed from the earlier strict interpretation regarding locus standi as adopted in Nagar Rice & Flour Mills v. N. Teekappa Gowda & Bros., (1970) 1 SCC 575 and Jasbhai Motibhai Desai v. Roshan Kumar, (1976) 1 SCC 671 and a much wider canvass has been adopted in later years regarding a person’s entitlement to move the High Court involving writ jurisdiction. A four-Judge Bench in Jasbhai Motibhai Desai pointed out three categories of persons vis-a-vis the locus standi: (1) a person aggrieved; (2) a stranger; and (3) a busybody or a meddlesome interloper. Learned Judges in that decision pointed out that anyone belonging to the third category is easily distinguishable and such person interferes in things which do not concern him as he masquerades to be a crusader of justice. The judgment has cautioned that the High Court should do well to reject the petitions of such busybody at the threshold itself. Then their Lordships observed the following: (SCC p. 683, para 38) “38. The distinction between the first and second categories of applicants, though real, is not always well demarcated. The first category has, as it were, two concentric zones; a solid central zone of certainty, and a grey outer circle of lessening certainty in a sliding centrifugal scale, with an outermost nebulous fringe of uncertainty. Applicants falling within the central zone are those whose legal rights have been infringed. Such applicants undoubtedly stand in the category of ‘persons aggrieved’. In the grey outer circle the bounds which separate the first category from the second, intermix, interfuse and overlap increasingly in a centrifugal direction. All persons in this outer zone may not be ‘persons aggrieved’.” 13. A recent decision delivered by a two-Judge Bench of this Court (of which one of us is a party — Sethi, J.) in Chairman, Railway Board v. Chandrima Das, (2000) 2 SCC 465 , after making a survey of the later decisions held thus: (SCC pp. 478-79, para 17) “17. In the context of public interest litigation, however, the Court in its various judgments has given the widest amplitude and meaning to the concept of locus standi. In People’s Union for Democratic Rights v. Union of India, (1982) 3 SCC 235 : 1982 SCC (L&S) 275, it was laid down that public interest litigation could be initiated not only by filing formal petitions in the High Court but even by sending letters and telegrams so as to provide easy access to Court. In People’s Union for Democratic Rights v. Union of India, (1982) 3 SCC 235 : 1982 SCC (L&S) 275, it was laid down that public interest litigation could be initiated not only by filing formal petitions in the High Court but even by sending letters and telegrams so as to provide easy access to Court. (See also Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 : 1984 SCC (L&S) 389 and State of H.P. v. A Parent of a Student of Medical College, (1985) 3 SCC 169 , on the right to approach the Court in the realm of public interest litigation.) In Bangalore Medical Trust v. B.S. Muddappa, (1991) 4 SCC 54 , the Court held that the restricted meaning of aggrieved person and the narrow outlook of a specific injury has yielded in favour of a broad and wide construction in the wake of public interest litigation. The Court further observed that public-spirited citizens having faith in the rule of law are rendering great social and legal service by espousing causes of public nature. They cannot be ignored or overlooked on a technical or conservative yardstick of the rule of locus standi or the absence of personal loss or injury. There has, thus, been a spectacular expansion of the concept of locus standi. The concept is much wider and it takes in its stride anyone who is not a mere ‘busybody’.” 14. In the light of the expanded concept of the locus standi and also in view of the finding of the Division Bench of the High Court that the order of the Excise Commissioner was passed in violation of law, we do not wish to nip the motion out solely on the ground of locus standi. If the Excise Commissioner has no authority to permit a liquor shop owner to move out of the range (for which auction was held) and have his business in another range it would be improper to allow such an order to remain alive and operative on the sole ground that the person who filed the writ petition has strictly no locus standi. So we proceed to consider the contentions on merits.” 15. Regard may also be had to the fact that in the last decade from 2000-2010, the issue with regard to locus standi in the context of public interest litigation has been diluted. So we proceed to consider the contentions on merits.” 15. Regard may also be had to the fact that in the last decade from 2000-2010, the issue with regard to locus standi in the context of public interest litigation has been diluted. But now again the trend is changing and the Court is now strictly screening the locus of the petitioner in filing the public interest litigation. Reference may be made to the judgment of the Supreme Court in the case of State of Uttaranchal v. Balwant Singh Chaufal and others, 2010 AIR SCW 1029. In the said case, the appeal of the State was allowed by the Supreme Court and the writ petition filed by a lawyer before the Uttaranchal High Court was dismissed and a cost of Rs. 1 lac (Rupees One lakh) was imposed upon the writ petitioner. Following the judgment of Balwant Singh Chaufal (supra) this Court has also amended its Rules of the Court in respect of the public interest litigation to avoid frivolous petitions. From the judgment of Balwant Singh Chaufal (supra), it is evident that now the Supreme Court is again scrutinizing the locus of the petitioner even in public interest litigations as per the law laid down in Jasbhai Motibhai Desai (supra). However, in a country like India where large number of writ petitions are instituted in the High Court of such nature and many of them are frivolous, the requirement that at the very outset a strict ascertainment regarding the standing of the petitioner must be insisted upon, has come true as a large number of public interest litigation in the last decade had been filed in the Supreme Court and various High Courts, but later most of them were found frivolous and by the busybodies. 16. A Division Bench of this Court in the case of Salauddin v. State of U.P. and others, Special Appeal No. 266 of 2015, decided on 01st May, 2015 considered the issue of locus in service matter. In the said case the appointment of an Assistant Teacher was challenged by his own brother on the ground that his brother had secured the appointment on the basis of fabricated documents. The learned Single Judge had dismissed the writ petition on the ground of locus of the petitioner therein, who was not a candidate and had moved the petition only due to personal animosity to his brother. The learned Single Judge had dismissed the writ petition on the ground of locus of the petitioner therein, who was not a candidate and had moved the petition only due to personal animosity to his brother. But the Division Bench did not agree with the learned Single Judge. The Division Bench opined thus: “...It is not in dispute that the appellant is the complainant at whose behest the enquiry was initiated against the sixth respondent. The sixth respondent has obtained employment as an Assistant Teacher in an aided institution and is in receipt of salary from the public exchequer. The private dispute between the appellant and the sixth respondent may be a reason for the Court to tread in a matter, such as the present, with a great deal of circumspection and caution. However, the issue still remains as to whether the Court should shut its eyes to the facts which have been placed on the record. In our view, there is an element of public interest involved where a person, who has obtained public employment and is in receipt of salary from an institution which is aided by the State, seeks to do so on the basis of documentary record indicating a particular date of birth. *** *** *** .... The Court must not also be oblivious of the fact that in such matters, the process of enquiry is set in motion often by a complainant. The fact that the complainant may have some interest of his own, is a ground for the Court to act with care but that cannot shut out a proper enquiry altogether, particularly in a case, such as the present, where the sixth respondent is in the employment of an aided educational institution and is drawing his salary from the public exchequer. For these reasons, we allow the special appeal in part. ... “ 17. It is equally true that in case the rigour of the locus standi is relaxed/liberalized, in that event the busybodies will file petitions to settle their personal scores. In such situations public money and public time will be wasted. 18. For these reasons, we allow the special appeal in part. ... “ 17. It is equally true that in case the rigour of the locus standi is relaxed/liberalized, in that event the busybodies will file petitions to settle their personal scores. In such situations public money and public time will be wasted. 18. In the light of the judgments referred above, I find that in the matters where an appointment of an employee is challenged on the ground that he has secured the employment on the basis of fabrication of documents/suppression of fact or any such kind of fraud, the Court must insist for the following requirements: (a) The petitioner must disclose his/her locus clearly in the writ petition; (b) A specific pleading regarding the fraud should be given in the writ petition and general and sweeping allegation should not be entertained, and the petitioner should file the documents in support of his/her allegations; and, (c) In case the claim/allegation is found to be bogus and motivated, a heavy cost should be imposed upon the petitioner to deter the other persons from filing the frivolous petitions and for wasting valuable public time and money. 19. In view of the conspectus of the aforesaid facts and circumstances, I am of the considered view that the ends of justice would be subserved by issuing a direction upon the District Magistrate, Jalaun, the second respondent, to enquire into the allegations made by the petitioner, after furnishing opportunity to the sixth respondent, and pass the appropriate order in accordance with law expeditiously, preferably within a period of four months from the date of communication of this order. 20. It is made clear that any observation made in the order shall be without prejudice to the rights and contentions of the parties. 21. With the above observations and directions, the writ petition is disposed of. 22. No order as to costs.