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2018 DIGILAW 55 (GAU)

Amalendra Kumar Roy v. Soibam Haridas Singh

2018-01-10

ACHINTYA MALLA BUJOR BARUA

body2018
JUDGMENT : 1. Heard Mr. P. Roy, learned senior counsel for the applicant. Also heard Mr. T.J. Mahanta, learned senior counsel for the applicant in I.A.(Civil) 3344/2017 as well as Mr. N. Sarma, learned standing counsel for the respondent in the Education (Secondary) department. 2. IA(Civil) No. 3115/2017 has been preferred by the respondent No. 4 in WP(C) No. 5091/2017 for modification of the interim order dated 21.8.2017. On the other hand, I.A.(Civil) 3344/2017 has been preferred by the writ petitioner in WP(C) No. 5091/2017 for extension of the interim order dated 21.8.2017. 3. The writ petitioner was working as the Principal In-Charge of Government Girls HS & MP School, Silchar as per the order dated 12.2.2014. Prior to that, the respondent No. 4 Amalendu Kr. Roy was the In-Charge Principal of the School, but due to certain allegation of financial irregularities, the respondent No. 4 was discontinued from being the In-Charge Principal and in his place, the petitioner was made the In-Charge Principal. In the aforesaid circumstance, the proceeding that was initiated against the respondent No. 4 was dropped, resulting in the order dated 29.5.2017 of the Director of Secondary Education, Assam. By the said order, it was provided that from the materials on record, it was concluded that the same were not sufficient for initiating a departmental proceeding against the respondent No. 4 and, therefore, the initiation of the departmental proceeding against him had been dropped. Consequent thereupon, a further order dated 4.8.2017 was passed by the Director of Secondary Education by which, the petitioner who was made the In-Charge Principal of the School had been discontinued and in his place, the respondent No. 4 was allowed to be the In-Charge Principal of the school. The order of 4.8.2017 had been assailed by the writ petitioner primarily on the premises that it was incorrectly concluded by the respondent-authorities not to initiate any disciplinary proceeding against the respondent No. 4. Based on the aforesaid, the interim order 21.8.2017 was passed by which the order of the Director dated 4.8.2017 allowing the respondent No. 4 to be the In-Charge Principal was stayed. 4. In I.A.(Civil) No. 3115/2017, a vacation of the interim order dated 21.8.2017 is being prayed for and the primary ground taken by Mr. Based on the aforesaid, the interim order 21.8.2017 was passed by which the order of the Director dated 4.8.2017 allowing the respondent No. 4 to be the In-Charge Principal was stayed. 4. In I.A.(Civil) No. 3115/2017, a vacation of the interim order dated 21.8.2017 is being prayed for and the primary ground taken by Mr. P. Roy, learned senior counsel for the applicant is that the respondent No. 4 having been made the In-Charge Principal of the school on being exonerated from the charges levelled against him, the present petitioner has no locus standi to challenge the same including the order by which he had been made the In-Charge Principal. According to Mr. Roy, it is a dispute between the respondent No. 4 and the state authorities as to whether a departmental proceeding should be initiated or not and the petitioner being a stranger to such dispute has no locus standi to challenge any order by which, the respondent No. 4 had been exonerated. In the aforesaid premises, the question for consideration before the court in IA(Civil)3115/2017 is as to whether the writ petitioner has the locus standi to assail the order dated 29.5.2017 and 4.8.2017. 5. Mr. P. Roy, learned senior counsel for the applicant relies upon a decision of the hon'ble Supreme Court rendered in Jasbhai Motibhai Desaiv. Roshan Kumar, Haji Bashir Ahmed, (1976) 1 SCC 671 to substantiate that the writ petitioner had no locus standi to assail the aforesaid two letters. On the other hand, Mr. T.J. Mahanta, learned senior counsel for the writ petitioner refers to a decision of the hon'ble Supreme Court rendered in Lakhi Ram v. State of Haryana, AIR 1981 SC 1655 to substantiate that the writ petitioner does have the locus standi in the present matter. 6. Although, Mr. P. Roy, learned senior counsel refers to several paragraphs of the judgment of the hon'ble Supreme Court rendered in Jasbhai Motibhai Desai (supra), but on a closer perusal of the judgment, the relevant paragraphs are found to be paragraphs 12, 27 and 34. 7. In paragraph 12, it has been concluded by the hon'ble Supreme Court that the expression “aggrieved person” denotes an elastic, and to that extent, an elusive concept. 7. In paragraph 12, it has been concluded by the hon'ble Supreme Court that the expression “aggrieved person” denotes an elastic, and to that extent, an elusive concept. Whereas, in paragraph 27, it is provided that the meaning of the expression “a person, aggrieved” means according to the context of the statute and that a person will be held to be aggrieved by a decision, if the decision is materially adverse to him. Although, in paragraph 29, it has been stated that the word ‘aggrieved’ do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made, but again in the same paragraph, it is stated that the person aggrieved must be a man who has suffered a legal grievance or that he has been wrongfully deprived or wrongfully refused of something. 8. Further in paragraph 34, it has been held that it is flexible enough to include any such cases where an applicant has been prejudicially affected by an act or omission of an authority, even though he has no proprietary or even a fiduciary interest in the said matter. The relevant provision of paragraphs 12, 27 and 34 are as follows: “12. According to most English decisions, in order to have the locus standi to invoke certiorari jurisdiction, the petitioner should be an “aggrieved person” and, in a case of defect of jurisdiction, such a petitioner will be entitled to a writ of certiorari as a matter of course, but if he does not fulfil that character, and is a “stranger”, the court will, in its discretion, deny him this extraordinary remedy, save in very special circumstances. This takes us to the further question: Who is an “aggrieved person” and what are the qualifications requisite for such a status? The expression “aggrieved person” denotes an elastic, and, to an extent, an elusive concept. It cannot be confined within the bounds of rigid, exact and comprehensive definition. At best, its features can be described in a broad, tentative manner. 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 the petitioner's interest, and the nature and extent of the prejudice or injury suffered by him. 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 the petitioner's interest, and the nature and extent of the prejudice or injury suffered by him. English Courts have sometimes put a restricted and sometimes a wide construction on the expression “aggrieved person”. However, some general tests have been devised to ascertain whether an applicant is eligible for this category so as to have the necessary locus standi or ‘standing’ to invoke certiorari jurisdiction. 27. The meaning of the words “a person aggrieved” may vary according to the context of the statute. One of the meanings is that a person will be held to be aggrieved by a decision if that decision is materially adverse to him. Normally, one is required to establish that one has been denied or deprived of something to which one is legally entitled in order to make one “a person” aggrieved. 34. The expression “ordinarily” indicates that this is not a cast-iron rule. It is flexible enough to take in those cases where the applicant has been prejudicially affected by an act or omission of an authority, even though he has no proprietary or even a fiduciary interest in the subject-matter. That apart, in exceptional cases even a stranger or a person who was not a party to the proceedings before the authority, but has a substantial and genuine interest in the subject-matter of the proceedings will be covered by this rule.” 9. In Lakhi Ram (supra), the hon'ble Supreme Court was confronted with a situation where a writ petition was preferred assailing the action of the respondents therein in expunging the adverse remarks made in the annual confidential report of a person. In the said matter, the High Court took the view that the petitioner therein was not entitled to complain against the expungement of the remark made in the confidential report of another officer and accordingly, dismissed the writ petition for having no locus standi. The hon'ble Supreme Court took the contrary view by concluding that the expunging of the remarks if illegal and invalid, the same would continue to remain in the confidential report of the concerned person and that would improve the chances of promotion of the person vis-a-vis, the person who had preferred the writ petition. The hon'ble Supreme Court took the contrary view by concluding that the expunging of the remarks if illegal and invalid, the same would continue to remain in the confidential report of the concerned person and that would improve the chances of promotion of the person vis-a-vis, the person who had preferred the writ petition. 10. In other words, the hon'ble Supreme Court was of the view that if the consequence of such expunging of the remarks affected the promotional aspect of the concerned person, such person would have the locus standi to prefer the writ petition. The said principle can also be noticed in paragraph-34 of the judgment rendered by the hon'ble Supreme Court in Jasbhai Motibhai Desai (supra) case, wherein, it is provided that in the event, a person has been prejudicially affected by an act or omission of an authority, the same can be assailed even though such person has no proprietary or even a fiduciary interest in the subject-matter and further that in exceptional cases, even a stranger or a person, who was not a party to the proceeding before the authority, but has a substantial and genuine interest in subject-matter would also have such a locus standi. 11. In view of the aforesaid propositions of law laid down, it is noticed that the writ petitioner was the In-Charge Principal of a School, but he had been removed from such post as because according to him a disciplinary proceeding initiated against the respondent No. 4 had been dropped without duly followed the due procedure of law. Accordingly, in other words, it is the case of the petitioner that the legal right of the petitioner to continue as the In-Charge of the school had been adversely affected because of such alleged illegal and unsustainable act on the part of the respondent-authorities. 12. By following the aforesaid proposition of law laid down by the hon'ble Supreme Court this court is of the view that the writ petitioner has the locus standi to maintain the writ petition. In such view of the matter, this court arrives at a conclusion that the interlocutory application being IA(Civil) No. 3115/2017 for modification of the interim order dated 21.8.2017 in WP(C) No. 5091/2017 on the ground that the writ petitioner has no locus standi to sustain the writ petition is not sustainable. 13. However, Mr. In such view of the matter, this court arrives at a conclusion that the interlocutory application being IA(Civil) No. 3115/2017 for modification of the interim order dated 21.8.2017 in WP(C) No. 5091/2017 on the ground that the writ petitioner has no locus standi to sustain the writ petition is not sustainable. 13. However, Mr. P. Roy, learned senior counsel for the applicant in IA(Civil) No. 3115/2017 also urges that the said interlocutory application was filed on 7.9.2017 and as 14 days have elapsed in the meantime, therefore, by operation of law under article 226(3) of the Constitution of India, the interim order stands automatically vacated. While appreciating the said contention of the learned senior counsel for the applicant, due consideration is also to be given to the other interlocutory application being I.A.(Civil) 3344/2017 preferred by the writ petitioner for continuation of the interim order. In this respect also, Mr. P. Roy, learned counsel raises a technical objection that in the prayer of the interlocutory application, the petitioner prays for extension of the interim order and not for continuation and, therefore, the interim order cannot be continued any further. Perhaps it is the view of the learned senior counsel as the interim order automatically stood vacated, the same cannot be extended even on an application. The aforesaid submission of Mr. Roy appears to be highly technical in nature and moreover, the purport of the intelocutary application filed by the writ petitioner has to be examined from the point of view of the purpose for which it was preferred. 14. In any view of the matter, a further prayer has also been made that the court may pass any order may deemed appropriate which includes that the prayer made in the application can also be considered in a modified form and, therefore, it would not be impermissible for the court to construe that the said application of the writ petitioner was for continuance of the interim order rather than to take it that it was only for the purpose of extension. 15. 15. However, in any view of the matter as the respondent No. 4 has not made out any contrary case against the prima facie case being made out by the writ petitioner for justifying the interim order of 21.8.2017 and nor any instances had been pointed out as regards the balance of the convenience or any irreparable loss that the respondent No. 4 may suffer, this court is of the view that the respondent No. 4 applicant had failed to make out any other case for not further continuing with the interim order. Although by operation of article 226(3), the earlier interim order dated 21.8.2017 stood vacated but considering the facts and circumstances as well as the prima facie case and the balance of convenience and the irreparable loss between the parties, the order dated 4.8.2017 again stayed afresh until further orders. In terms of the above, both the Interlocutory applications being IA(Civil) 3115/2017 and LA(Civil) 3344/2017 stand disposed of.