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2019 DIGILAW 685 (ALL)

Vijendra Singh v. State of UP

2019-03-13

PRAKASH PADIA

body2019
JUDGMENT : PRAKASH PADIA, J. 1. Heard Sri Harishchandra Dubey, learned counsel for the petitioner, learned Standing Counsel on behalf of respondent nos.1 and 2 and Sri Prem Prakash Yadav, learned counsel for the respondent nos.3 and 4. 2. The petitioner has preferred the present writ petition with the prayer to quash the order dated 21.9.2015 passed by the District Basic Education Officer, Bijnor. By the aforesaid order, the District Basic Education Officer, Bijnor, granted initial approval in respect of the appointment of the respondent no.5/Monika Rani. Further prayer was made by the petitioner to issue a writ in the nature of mandamus commanding the respondents to conduct the enquiry regarding validity and genuineness of domicile certificate of respondent no.5 and terminate her services and take necessary action in the matter within stipulated time. 3. The facts in brief are that in the Gram Panchayat Juzhaila, Vikas Khand-Noorpur, District Bijnor, there is a junior high school namely Purva Madhyamik Vidyalaya Juzhaila, Vikas Khand-Noorpur, Bijnor. The institution in question run and controlled by Basic Education Board, Allahabad/respondent no.3. The petitioner is claiming himself Chairman of Gram Shiksha Samiti being the Gram Pradhan of Gram Panchayat. It is contended in paragraph 5 of the writ petition that respondent no.5 was appointed as Assistant Teacher vide letter of appointment dated 21.9.2015. In paragraph 6 of the writ petition it was contended that after having knowledge regarding the aforesaid appointment of the respondent no.5, the petitioner being the Pradhan of the Gram Panchayat made a complaint before the District Basic Education Officer as well as District Magistrate on 7.5.2018. The copy of the complaint is appended as annexure 2 to the writ petition. 4. It is contended by learned counsel for the petitioner that respondent no.5 is resident of State of Uttarakhand, who applied for the post of Assistant Teacher in pursuant to the advertisement and forged domicile was submitted by the respondent no.5 while applying on the post in question and submitted the application form saying the resident of District Bijnor. 5. Learned counsel for the respondents no.1 to 4 contended that respondent no.5 got her appointment in pursuance of the Government Order dated 11.7.2013 and according to the said Government Order the candidates having the Indian citizen and ordinarily residing in U.P. since last five years, would apply for the post of Assistant Teacher. 6. 5. Learned counsel for the respondents no.1 to 4 contended that respondent no.5 got her appointment in pursuance of the Government Order dated 11.7.2013 and according to the said Government Order the candidates having the Indian citizen and ordinarily residing in U.P. since last five years, would apply for the post of Assistant Teacher. 6. The affidavit in the writ petition was sworn by the sole petitioner and nothing has been stated in the writ petition regarding source of information of the petitioner in this regard. 7. Apart from the same a preliminary objection has been raised by the respondents that the petitioner has absolutely no locus to challenge the appointment of the respondent no.5. 8. Law in this connection has been well settled by the Supreme Court in the large number of the cases. A writ of mandamus cannot be issued in such disputes. The law in respect of the writ of mandamus is well settled by the Supreme Court in (Kamini Kumar Das Choudhury Vs. State of West Bengal and Others, (1972) AIR SC 2060) & (Veerappa Rachappa Saboji Vs. B.P. Dalal and another, (1975) AIR SC 773 ). In the aforesaid cases, the Court has reiterated its earlier decisions that a writ of mandamus can lie only when the petitioner has a legal right and statutory authority has failed to perform his duty under the statute. 9. The Supreme Court in the case of Subrata Roy Sahara v. Union of India and others, (2014) 8 SCC 470 and Phool Chandra and another v. State of Uttar Pradesh, (2014) 13 SCC 112 has taken a judicial note that of late there has been an increase in the trend of litigants rushing to the Courts, including the Supreme Court, for all kinds of trivial and silly matters which results in wastage of public money and time. A closer scrutiny of all such matters would disclose that there was not even a remote justification for filing the case. It is a pity that the time of the Court which is becoming acutely precious because of piling of arrears has to be wasted on hearing such matters. There is an urgent need to put a check on such frivolous litigation. It is a pity that the time of the Court which is becoming acutely precious because of piling of arrears has to be wasted on hearing such matters. There is an urgent need to put a check on such frivolous litigation. The Court has further noticed that it is high time that the Courts should come down heavily upon such frivolous litigation and heavy cost should be imposed, not only on the litigant but also upon the learned counsel who has acted in irresponsible manner. Relevant part of the judgment in Phool Chandra (supra) reads as under: "12. All these are aberrations in the functioning of the Apex Court of any country. Of late, there has been an increase in the trend of litigants rushing to the courts, including this Court, for all kinds of trivial and silly matters which results in wastage of public money and time. A closer scrutiny of all such matters would disclose that there was not even a remote justification for filing the case. It is a pity that the time of the court which is becoming acutely precious because of the piling arrears has to be wasted on hearing such matters. There is an urgent need to put a check on such frivolous litigation. Perhaps many such cases can be avoided if the learned counsel who are officers of the court and who are expected to assist the court tender proper advice to their clients. The Bar has to realise that the great burden upon the Bench of dispensing justice imposes a simultaneous duty upon them to share this burden and it is their duty to see that the burden should not needlessly be made unbearable. The Judges of this Nation are struggling bravely against the odds to tackle the problem of dispensing quick justice. But, without the cooperation of the gentlemen of the Bar, nothing can be done. 13. It is high time that the courts should come down heavily upon such frivolous litigation and unless we ensure that the wrongdoers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigation. But, without the cooperation of the gentlemen of the Bar, nothing can be done. 13. It is high time that the courts should come down heavily upon such frivolous litigation and unless we ensure that the wrongdoers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigation. In order to curb such kind of litigation, the courts have to ensure that there is no incentive or motive which can be ensured by imposing exemplary costs upon the parties as well as on the learned counsel who act in an irresponsible manner. {Vide Varinderpal Singh v. M.R. Sharma,1986 Supp SCC 719, Ramrameshwari Devi v. Nirmala Devi, (2011) 8 SCC 249 : (2011) 4 SCC (Civ) 1, and Gurgaon Gramin Bank v. Khazani, (2012) 8 SCC 781 : AIR 2012 SC 2881 .}" 10. Recently a Division Bench of Delhi High Court in the case of Kotak Mahindra Bank Ltd. v. Bank of Baroda and another, W.P. (C) No. 9828 of 2015 has also noticed that in the last twenty years the High Courts have become very liberal in entertaining the writ petitions under Article 226 of the Constitution. In all matters they have treated that Article 226 is the only medicine for all ailments, with the result High Courts are creeping under the arrears of the cases. The Court has further observed that the High Court should follow the earlier Constitution Bench judgments of the Supreme Court in the case of Rashid Ahmed Vs. Municipal Board, Kairana, (1950) AIR SC 163 and Nain Sukh Das Vs. The State of Uttar Pradesh, (1953) AIR SC 384, wherein the Constitution Benches have held that the writ jurisdiction under Article 226 should be very sparingly used by the High Courts. Ignorance of this law has resulted huge arrears of cases in all the High Courts. Relevant part of the judgment of the Delhi High Court is as follows: "...The jurisdiction of the High Court under Article 226 of the Constitution of India is an extraordinary remedy, to be not invoked or allowed to be invoked ordinarily, as is found being done increasingly, leaving very little time for the High Courts to deal under Article 226 with issues really deserving consideration there under. Supreme Court, as far back as in Rashid Ahmed Vs. Supreme Court, as far back as in Rashid Ahmed Vs. Municipal Board, Kairana, (1950) AIR SC 163 and Nain Sukh Das Vs. The State of Uttar Pradesh, (1953) AIR SC 384 held that prerogative writs are extraordinary remedies intended to be applied in exceptional cases in which the ordinary legal remedies are not adequate but in the last over half century the said principle appears to have been forgotten, with the writ remedy being considered as a cure for all ordinary ailments also and for which the ordinary legal remedies under the civil law are adequate. The same has resulted in the High Courts being inundated with writ petitions, the disposal whereof axiomatically is found to be taking, in most cases, as much time as the disposal of an ordinary civil lis, and which has resulted in the High Courts facing difficulty in providing immediate relief even in deserving cases in writ jurisdiction and / or being left with little time to ponder over the important constitutional issues coming before it in the writ jurisdiction. In my humble view, a time has thus come for the High Courts to send out a clear message of the writ remedy being an extraordinary remedy not available as an alternative to the remedy already available under the civil and general laws." 11. No satisfactory reply was given by the learned counsel for the petitioner regarding the locus of the petitioner in filing the present writ petition. Nothing has been brought in record that how and what manner the complaint has been sent by the petitioner to the aforesaid authorities. 12. In view of the facts of the case, the writ petition is dismissed with cost.