Allahabad High Court
Mohd. Mobeen vs State Of U.P.Thru.Secy.Transport ... on 24 November, 2020
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 20 Case :- SERVICE SINGLE No. - 21879 of 2020 Petitioner :- Mohd. Mobeen Respondent :- State Of U.P.Thru.Secy.Transport Department & Ors. Counsel for Petitioner :- Ashish Kumar Mishra,Sudhir Kumar Counsel for Respondent :- C.S.C.,Ratnesh Chandra Hon'ble Manish Mathur,J.
Heard Mr. Sudhir Kumar, learned counsel appearing on behalf of petitioner, learned State Counsel appearing on behalf of opposite party no.1 and Mr. Mohit Pandey, learned counsel holding brief for Mr. Ratnesh Chandra, learned counsel for opposite parties 2 and 3. Notice to opposite party no.4 stands dispensed with.
A preliminary objection has been raised by learned counsel for opposite parties 2 and 3 with regard to maintainability of writ petition in view of fact that the relief sought is for dismissal of opposite party no.4 from services and to recover compensation from his properties. It is submitted that petitioner is merely a complainant and has not explained his antecedents anywhere in the memorandum of writ petition. In support of his submissions, learned counsel has relied upon a decision of Hon'ble the Supreme Court in Ravi Yashwant Bhoir v. Collector reported in (2012) 4 SCC 407 and a decision of a Division Bench of this Court in Dharam Raj v. State of U.P and Ors. reported in (2010) 2 AWC 1878 (All).
A perusal of the prayer made in the petition makes it amply clear that petitioner seeks dismissal of opposite party no.4 from service and for recovery of compensation from his properties with regard to salary paid. It has been stated in paragraph 12 of the petition that petitioner had also filed a complaint on 19.09.2020 with regard to aforesaid prayers, before the concerned authority but no decision thereupon has been taken.
A perusal of the memorandum of writ petition also does not indicate the antecedents of petitioner and as to how he would be aggrieved in case opposite party no.4 continues in service.
In Ravi Yashwant Bhoir(supra) Hon'ble the Supreme Court has held as under:-
"58. Shri Chintaman Raghunath Gharat, Ex-President was the complainant, thus, at the most, he could lead the evidence as a witness. He could not claim the status of an adversial litigant. The complainant cannot be the party to the lies. 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 eyes of 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 lies. A fanciful or sentimental grievance may not be sufficient to confer a locus stand to sue upon the individual. There must be injuria or a legal grievance which can be appreciated and not a stat pro rationed valuntas reasons."
"60. Under the garb of being 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 lies, as the person 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."
The Division Bench of this Court in the case of Dharam Raj (supra) with respect to the locus of complainant has held has under:-
"9. As evident from narration of the facts given above, it is evident that the petitioner was one of the complainants in the complaint against the respondent No. 4 on 12.3.2008. The action has since been taken on the complaint so made by the petitioner and others against the respondent No. 4, and fine of Rs. 5,000 has been imposed.
In the case of R. v. London Country Keepers of the Peace of Justice, (1890) 25 QBD 357, the Court has held:
"A person who cannot succeed in getting a conviction against another may be annoyed by the said findings. He may also feel that what he thought to be a breach of law was wrongly held to be not a breach of law by the Magistrate.
He thus may be said to be a person annoyed but not a person aggrieved, entitle to prefer an appeal against such order."
Upon a consideration of the aforesaid judgments, it is clear that for a person to have locus standi making writ petition with regard to appointment of another person on a civil post, he necessarily has to have not only the statutory right to maintain the writ petition but also should be a person aggrieved. It is clear from the aforesaid judgments that a complainant who may have a right to adduce evidence during departmental inquiry, would not have a right to maintain the writ petition against a private person with regard to appointment on a civil post. As such a person in order to maintain his writ petition should necessarily be a 'person aggrieved' i.e. he should be a person who claims a right in place of such a private person or is somebody who has been deprived of his right by action of State authorities or their instrumentalities.
In Jasbhai Motibhai Desat v. Roshan Kumar Hazi Bashir Ahmad and Ors.: AIR 1976 SC 578, the Apex Court has held that only a person who is aggrieved by an order, can maintain a writ petition. The expression "aggrieved person" has been explained by the Apex Court observing that such a person must show that he has a more particular or peculiar interest of his own beyond that of the general public in seeing that the law is properly administered. In the said case, a cinema hall owner had challenged the sanction of setting up of a rival cinema hall in the town contending that it would adversely affect monopolistic commercial interest, causing pecuniary harm and loss of business from competition. The Hon'ble Apex Court observed as under:
" Such harm or loss is not wrongful in the eye of law because it does not result in injury to a legal right or a legally protected interest, the business competition causing it being a lawful activity. Judicially, harm of this description is called damnum sine injuria. The term injuria being here used in its true sense reason why law suffers a person knowingly to inflict harm of this description on another, without holding him accountable for it, is that such harm done to an individual is a gain to society at large. In the light of the above discussion, it is demonstratively clear that the appellant has not been denied or deprived of a legal right. He has not sustained injury to any legally protected interest. In fact, the impugned order does not operate as a decision against him, much less does it wrongfully effect his title to something. He has not been subjected to legal wrong. He has suffered no grievance. He has no legal peg for a justiciable claim to hang on. Therefore, he is not a "person aggrieved" to challenge the ground of the no objection certificate."
In Northern Plastics Ltd. v. Hindustan Photo Films Mfg Co. Ltd. and Ors. reported in (1997) 4 SCC 452, Hon'ble the Supreme Court again considered the meaning of "person aggrieved" and "locus of a rival Government undertaking" and held that a rival businessman cannot maintain a writ petition on the ground that its business prospects would be adversely affected."
Aforesaid judgments are squarely applicable in the present case since petitioner claims as a complainant and neither his antecedent has been explained in writ petition nor the fact as to how he is aggrieved with continuance in service of opposite party no.4.
The writ petition as such, being devoid of merits, is dismissed at the admission stage.
Order Date :- 24.11.2020 kvg/-