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NANNU MAL SHARMA AND 13 OTHERS versus STATE OF U.P. THRU' THE SECY. U.P. LKW. AND OTHERS

High Court of Judicature at Allahabad

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Nannu Mal Sharma And 13 Others v. State Of U.P. Thru' The Secy. U.P. Lkw. And Others - WRIT - A No. 35926 of 2003 [2003] RD-AH 286 (21 August 2003)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO. 34

CIVIL MISC. WRIT PETITION NO. 35926 OF 2003

Nannu Mal Sharma & ors. ------ Petitioners

 Vs.

State of U.P. & ors. ------       Respondents

______

Hon'ble Dr. B.S.Chauhan, J

Hon'ble D.P.Gupta, J.

(By Hon'ble Dr. B.S.Chauhan, J.)

This writ petition has been filed for quashing the impugned order dated 15.07.2003 (Annex. 20), by which the petitioners had been repatriated from deputation to the parent department.

Facts and circumstances giving rise to this case are that the petitioners had been appointed as the Cadre Secretary in the Primary Agricultural Credit Society long back and they had been sent on deputation to Aligarh District Cooperative Bank Limited, Aligarh, respondent no. 5 in 1988 to 1994. From time to time, there had been some departmental process for absorbing such employee in the respondent bank, and some employees had been absorbed in different Districts.  By the impugned order, the petitioners have been repatriated to their parent department instead of absorbing them there. Hence this petition.

Learned counsel for the petitioners submits that as the respondent bank had earlier taken a decision to consider the petitioners and similarly situated persons for absorption, the question of repatriation did not arise and the order impugned deserves to be quashed and this Court may further issue  directions to the respondent no.5 to absorb the petitioners.

On the contrary, Shri K.N. Mishra, learned counsel appearing for the respondents submits that all the petitioners still have the lien in the parent department, i.e. the Cooperative Society. It has not yet been terminated. If some similarly situated persons have earlier been absorbed, that it does not confer any legal right upon the petitioners to file a writ petition. It is simply an order of repatriation of which petitioners cannot be aggrieved. Hence, the petition is liable to be dismissed.

We have considered the rival submissions made by the learned counsel for the parties and perused the record.  

There is nothing on the record to show that the petitioners' lien have been terminated by the parent department nor there is any dispute to the settled legal proposition that deputation is nothing but a transfer and an employee continues to be an employee of the parent department unless his lien is terminated or regularly absorbed in the department where he has been sent on deputation. In the instant case, petitioners have not yet been absorbed. Merely, passing a resolution to consider their candidature in past does not confer any legal right upon the petitioners for the enforcement of which, writ petition can be entertained.

It is settled law that a person who suffers from legal injury only can challenge the act/action/order etc. Writ petition under Article 226 of the Constitution is maintainable for enforcing the statutory or legal right or when there is a complaint by the petitioner that there is a breach of the statutory duty on the part of the respondents. Therefore, there must be judicially enforceable right for the enforcement on which the writ jurisdiction can be resorted to. The Court can enforce the performance of a statutory duty by public bodies through its writ jurisdiction at the behest of a person, provided such person satisfies the Court that he has a legal right to insist on such performance. The existence of the said right is the condition precedent to invoke the writ jurisdiction. (State of Kerala Vs. K.G. Madhavan Pillai, AIR 1989 Supreme Court 49; State of Kerala Vs. Smt A. Lakshmikutty, AIR 1987 Supreme Court 331; Mani Subrat Jain & ors. Vs. State of Haryana, AIR 1977 Supreme Court 276; Calcutta Gas Company (Propriety Ltd.) Vs. State of West Bengal & ors., AIR 1962 Supreme Court 1044; Rajendra Singh Vs. State of M.P., AIR 1996 Supreme Court 2736; Rani Laxmibai Kshetriya Gramin Bank Vs. Chand Behari Kapoor & ors.,(1988) 7 SCC 469; Utkal University Vs. DR Nrusingha Charan Sarangi & ors., (1999)2 SCC 193).  

In Jasbhai Motibhai Desai Vs. Roshan Kumar Hazi Bashir Ahmad, AIR 1976 SC 978, 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  more particular or peculiar interest on his own beyond that of 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. Juridically, harm of this description is called damnum sine injuria. The term injuria being hear used in its true sense of an Act contrary to law. The 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."

The "person aggrieved" means a person who is wrongfully deprived of his entitlement which he is legally entitled to receive and it does not include any kind of disappointment or personal inconvenience. "Person aggrieved" means a person who is injured or he is adversely affected in a legal   sense. (Vide K.N. Lakshminarasimaiah Vs. Secretary, Mysore  S.T.A.T., (1966) 2 Mys. L.J. 199).

Whether a person is injured in strict legal sense, must be determined by the nature of the injury considering the facts and circumstances involving in each case.  A fanciful or sentimental grievance may not be sufficient to confer a standi to sue upon the individual. There must be injuria or a legal grievance,  as   the law can appreciate and not a stat pro ratione valuntas reasons.

In Thiruvengadam Vs.  Muthu Chatiar, AIR 1970 Mad. 34, it has been held that a person can be said to be aggrieved if apart from the general interest,  such a person, as a member of the public, has particular or special interest in the      subject matter supposed to be wrongly decided.

In S.M. Transport Ltd. Vs. Raman  & Raman, AIR 1961 Mad. 180, the Full  Bench  of Madras High Court, while considering the provisions of Madras Motor  Vehicles Act, considered  the  issue and approved the law  laid   down in Rex  Vs.  Richmond Confirming Authority, Ex-parte Hobbit, 1921 (1) KB 248; and Rex Vs.   Groom, ex-parte, Cobbold, 1901 (2) KB 157, and laid down the principle as under:-

"The true principle is to determine whether the applicant has an interest distinct from the general inconvenience which may be suffered by the law being wrongly administered."

In Gram Sabha Vs. Ramraj Singh, 1968 All.WR 844, the Allahabad High Court held that the expression "person aggrieved" does not include a person who suffers from psychological or imaginary injury; the person aggrieved  must   necessarily be one whose right or interest is adversely affected or jeopardised."

Thus, it is evident from the aforesaid that "person aggrieved" is to be considered in context of the Act involved and is to be restricted to the person, which has wrongfully been deprived of something or wrongfully refused something or his interest/ title is adversely affected, but the same does not require a very liberal and wide interpretation.

In Ashok Auto Service of Betin Vs. Union of India &  ors.,  AIR 1968  Goa  67, while considering the issue of locus standi of a person to file a  writ  petition  in the High Court in respect of the provisions of the Motor Vehicles                Act, 1939  placing reliance  on the judgment of the Hon'ble  Supreme Court in  State of Orissa Vs. Madhan Gopal, AIR 1952 SC 12, the Court held that the existence of a right in favour of the writ petitioners is the foundation for the exercise of jurisdiction under Article 226 of the Constitution. Reliance was also placed upon the judgment of the Supreme Court in Kalyan Singh Vs. State of U.P., AIR 1962 SC 1183, wherein the Hon'ble Apex Court enunciated the  proposition that the  right  to maintain  a writ postulates a subsisting personal  right in the claim which the petitioner makes and in the protection  of  which  he is personally interested. The existence of a legal right is a condition precedent  to   approach  the  Court/ Tribunal.

The term  "person aggrieved" was also considered and defined in Re" Sidebotham, 1880  (14) Ch.D.   458, wherein it has been observed as under:-

"The words  'person  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. A 'person aggrieved' must be a man who has suffered a legal grievance, a man 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."

In Ghulam Qadir Vs. Special Tribunal & Ors., (2002) 1 SCC 33, the Hon'ble Supreme Court considered the similar issue and observed as under:-

"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 hypertechnical grounds. If a person approaching the court can satisfy that the impugned action is likely to adversely affect his right which is shown to be having source in some statutory provision, the petition filed by such a person cannot be rejected ion the ground of his not having the locus standi. 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."

The party has to satisfy as what is the legal injury caused by that violation of law.

Thus, in view of above, as learned counsel for the petitioners could not satisfy us as what is the legal injury caused to them for redressal of which they have approached the writ Court, we are not inclined to entertain the petition. It is accordingly dismissed.

21.08.2003

AHA/AKSI


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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