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SMT BEENA SHARMA versus STATE OF U.P. & ORS.

High Court of Judicature at Allahabad

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Smt Beena Sharma v. State of U.P. & Ors. - WRIT - A No. 47055 of 2005 [2005] RD-AH 1547 (4 July 2005)

 

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. 47055 OF 2005

Smt Beena Sharma       -------------    Petitioner              

        Versus.

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

And

CIVIL MISC. WRIT PETITION NO. 47073 OF 2005

Ashok Kumar Pandey       -------------    Petitioner              

        Versus.

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

And

CIVIL MISC. WRIT PETITION NO. 47137 OF 2005

Smt Asha Singh       -------------    Petitioner              

        Versus.

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

_________

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

Hon'ble Dilip Gupta, J.

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

All these three writ petitions are based on similar facts and they raise the similar legal issues, thus being heard together and disposed of by a common judgment and order. However, for the purpose of deciding the case, Writ Petition No.47055 of 2005 is taken as the leading case.

The facts and circumstances giving rise to this case are that Smt Beena Sharma, petitioner in the leading case had been appointed as Member (Female) District Consumer Forum, Bareilly on 1.12.1993. She continued there on the said post for a period of 5 years and was appointed as Special Judicial Magistrate-I, Bareilly on 28.2.2005. She again applied in pursuance of the Notification dated 20.6.2005 for re-appointment as a Member (Female) District Consumer Forum, Bareilly. The Selection Committee was formed and she was not appointed, though respondent no. 3 has been appointed vide order dated 20.6.2005 in the said Consumer Forum. Hence this petition.

Before we could take up this case, a preliminary objection has been raised by the learned Standing Counsel, appearing for respondents in respect of the maintainability of the writ petition and he further submitted that the petitioner has suppressed the material fact that she had already filed writ Petition No. 45977 of 2005 in respect of the same selection, impleading the same parties, including the respondent no. 3, and the same position remains in respect of the other two writ petitions. At the request of the counsel, we have summoned all the three petitions, namely, Writ Petition Nos. 45977 of 2005, 45976 of 2005 and 45979 of 2005, filed by the present petitioners. What has been challenged therein is the same selection process, and the only difference is that the said petitions have been filed before making the appointments of the respondent no. 3 therein. As the cause of action is the same, we are very much doubtful regarding the maintainability of these writ petitions. However, at this juncture, Shri O.P. Lohia, learned counsel for the petitioners prayed for permission to withdraw the three earlier writ petitions, and with the consent of the counsel for the respondents, the same are dismissed as withdrawn, and separate orders have been passed therein.

Be that as it may, the writ petitions have been filed on the ground that the petitioners had a better merit than the appointed candidates, i.e. respondent no. 3. Appointments have been made in contravention of the statutory provisions as there is a direction for re-appointment of the Members for the second term after expiry of their first term. Therefore, the petitions deserve to be allowed.

Shri S.N. Singh, learned Chief Standing Counsel, appearing for respondents has submitted that earlier there had been an embargo for re-appointment of a Member after expiry of its term as the prohibition has been withdrawn and amendment only enables the Member to be considered for re-appointment only. However, it does not confer any right of re-appointment. Petitions have been vaguely drafted and there are no proper pleadings. Allegations of mala fide have been made without impleading any person and the orders had been relied upon published in the local newspapers, which have subsequently been vacated in appeal by this Court. Petitions have been filed in the most scandalous manner and are liable to be dismissed with exorbitant cost.

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

The Consumer Protection Act, 1986 stood amended by the Consumer Protection (Amendment) Act, 2002 (hereinafter called the Act), and the relevant part of Section 10 reads as under:-

"10. Composition of the District Forum.- (1) Each District Forum shall consist of-

.................................

.....................................

(2) Every member of the District Forum shall hold office for a term of five years or up to the age of sixty-five years, whichever is earlier.

Provided, that a member shall be eligible for re-appointment for another term of five years or up to the age of sixty-five years, whichever is earlier, subject to the condition that he fulfils the qualifications and other conditions for appointment mentioned in clause (b) of sub-section (1) and such re-appointment is also made on the basis of the recommendation of the Selection Committee.

............................. "

Earlier, the statute clearly provided that a Member shall not be eligible for re-appointment. The language is crystal clear that the amendment simply provides for the consideration for re-appointment, and that is to be made only on the basis of recommendation of the Selection Committee. The statute does not confer any legal right for re-appointment. Thus, the submission made by Shri Lohia in this regard is preposterous.

It is settled legal proposition that in case allegations of mala fide are made against any person he is to be impleaded by name, otherwise, the allegations cannot be considered. (Vide Dr. J.N. Banavalikar  Vs. Municipal Corporation of Delhi & Anr., AIR  1996  SC 326; State of Bihar & Anr. Vs. P.P. Sharma, I.A.S. & Anr, 1992 Suppl (1) SCC 222; I.K. Mishra Vs. Union of India & Ors., (1997) 6 SCC 228; All India State Bank Officers Federation & Ors Vs. Union of India & Ors., JT 1996 (8) SC 550; and Federation of Railway Officers Association & Ors Vs. Union of India, 2003 AIR SCW 1764). In none of these writ petitions, parties have been impleaded by name. Only in one of them, the name Secretary of the State of Uttar Pradesh, has been impleaded by name, though no specific allegations have been made against him, nor it is suggested that he had been the member of the Selection Committee. Thus, we fail to understand as under what circumstances the allegations of mala fides can be entertained.

Allegations made by the petitioners against the State Authorities are of such a nature that it does not warrant  any  inquiry  on the issue  for  the reason that  the  same are not specific and  fall short of making any inquiry in this regard. The issue of "malus  animus" was considered in Tara Chand Khatri Vs. Municipal Corporation of Delhi & Ors., AIR 1977 SC 567, wherein the Hon'ble  Supreme Court has held that  the High  Court  would  be justified  in refusing to carry on  investigation into the  allegation  of mala fides, if necessary particulars  of  the  charge making out  a  prima facie case are not given in the writ petition and burden of establishing mala fide lies very heavily on the person who alleges it and there must be sufficient material to establish malus animus.    

Similarly, in E.P.  Royappa Vs.  State of Tamil Nadu & Anr.,  AIR 1974 SC 555, the Hon'ble Supreme Court observed as under:-

"Secondly,  we  must not  also  over-look  that the burden of establishing mala fides is very heavy on the person who  alleges it..... The Court would, therefore, be slow  to  draw  dubious  inferences  from incomplete  facts  placed before it by a party, particularly when the imputations are grave and they are made against the holder  of an office which has a high responsibility in the  administration. Such is the judicial perspective  in evaluating  charges  of unworthy  conduct against  ministers and other, not because of any  special status.... but because otherwise,  functioning effectively would become difficult in a democracy."

The   Hon'ble  Supreme   Court,  in  M/s. Sukhwinder  Pal Bipan Kumar & Ors. Vs.  State of Punjab & Ors., AIR 1982 SC 65;  and Shivajirao Nilangekar Patil Vs.  Dr. Mahesh Madhav Gosavi & Ors., AIR 1987 SC 294; has made similar observations.

In  M. Sankaranarayanan, IAS  Vs.  State  of Karnataka & Ors.,  AIR 1993 SC 763, the Hon'ble Supreme Court observed  that  the  Court  may  "draw  a reasonable  inference of mala fide from the  facts pleaded and established.  But such inference must be based  on  factual  matrix  and  such  factual matrix cannot remain in the realm of institution, surmise or conjecture."

In  N.K. Singh  Vs. Union  of  India & Ors., (1994) 6  SCC  98, the Hon'ble Supreme Court has held that "the inference of mala fides should  be drawn by  reading in between the lines and taking into account the attendant circumstances."        

There has  to be very strong and convincing evidence to establish the allegations of mala fides specifically alleged in the petition as the same cannot  merely  be  presumed.  The presumption  is in favour of the bona fides of the order unless contradicted by acceptable material. (Vide State of U.P.  Vs.  Dr.  V.N.  Prasad, 1995 Suppl (2)  SCC  151;  Arvind Dattatraya  Dhande Vs. State  of  Maharashtra & Ors., (1997) 6  SCC 169;  Utkal University Vs.  Dr.  Nrusingha Charan Sarangi & Ors.,  (1999)  2 SCC 193;  Kiran Gupta &  Ors. Vs. State  of  U.P.  & Ors., (2000) 7  SCC  719; and Netai Bag & Ors.  Vs.  State of W.B. & Ors., (2000) 8 SCC 262).

In  State  of Punjab Vs.  V.K.  Khanna  & Ors., (2001)  2  SCC 330, the Hon'ble Apex  Court examined   the  issue  of   bias  and   mala fide, observing as under:-                              

"Whereas fairness is synonymous with reasonableness- bias stands  included within the attributes and broader purview of  the  word  'malice' which  in  common acceptation  means and implies 'spite' or 'ill will'.  One redeeming feature in the matter of attributing bias or malice and is now well settled that mere general statements will not be sufficient for the purposes of indication  of  ill   will. There must be cogent evidence  available on record to come to the conclusion as to whether  in  fact, there was  existing  a bias or a mala fide move which results in the  miscarriage  of  justice....... In almost all  legal inquiries, 'intention as distinguished from motive is the all-important  factor' and in common parlance  a malicious act stands  equated with  an  intentional  act  without  just cause or excuse."                        

Similar  view  has   been  reiterated  in Samant & Anr.  Vs.  Bombay Stock Exchange & Ors., (2001) 5 SCC 323.

In First Land Acquisition Collector & Ors. Vs. Nirodhi Prakash Gangoli & Anr., (2002) 4 SCC 160; and Jasvinder Singh & Ors. Vs. State of J & K & Ors., (2003) 2 SCC 132, the Apex Court held that burden of proving mala fides is very heavy on the person who alleges it. Mere allegation is not enough. Party making such allegations is under the legal obligation to place specific materials before the Court to substantiate the said allegations.

The allegations of mala fides are very vague and are general in nature. It has been suggested that all the appointments throughout the State of Uttar Pradesh are made on extraneous considerations, and this Court had taken serious note of it and granted interim relief staying the selection process itself. Instead of annexing the copies of the order passed by this Court, newspaper cuttings have been annexed and we fail to understand as under what circumstances the pleadings can be substantiated by newspaper cuttings. Admittedly, it is secondary evidence and can be taken note of, provided the requirements of Section 65 of the Evidence Act have been complied with. No attempt has been made by the petitioners or their counsel to substantiate the pleadings. It is also pointed out by the learned Standing Counsel that the interim order passed by this Court staying the recruitment in U.P. Police, has already been vacated. Thus, no reliance can be placed on the interim order passed by this Court.

It  is settled proposition of law that a party has  to plead the case and produce/adduce  sufficient evidence to substantiate his submissions  made in the petitions and in case the pleadings are not complete, the Court is under no obligation  to  entertain the pleas. In  Bharat Singh & Ors. Vs. State  of Haryana & Ors., AIR 1988 SC  2181, the Hon'ble Supreme Court held that in a writ petition or in the   counter affidavit, not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it."        

Similar view has been reiterated in M/s. Larsen and  Toubro  Ltd. & Ors.  Vs.  State of Gujarat & Ors., AIR 1998 SC 1608; National Buildings Construction  Corporation Vs. S. Raghunathan  & Ors., AIR  1998  SC 2779;  Ram Narain  Arora  Vs. Asha Rani  & Ors.,  (1999) 1  SCC 141; Chitra Kumari Vs. Union  of India, AIR 2001  SC 1237;  and  State  of U.P. Vs. Chandra Prakash Pandey, AIR 2001 SC 1298.

In   Atul   Castings   Ltd.   Vs. Bawa Gurvachan  Singh,  AIR 2001 SC 1684, the  Hon'ble Apex Court observed as under:-                    

"The findings in the absence of necessary pleadings and supporting evidence cannot be sustained in law."                    

Similar  view  has   been  reiterated  in Vithal N.   Shetti  &  Anr. Vs. Prakash   N. Rudrakar & Ors., (2003) 1 SCC 18.

In view of the above, the pleadings fall short to make out any case for interference in a writ jurisdiction.

Even otherwise, Illustration (e) of Section 114 of the Evidence Act provides for a presumption  that every action of Statutory Authority is carried out in accordance with the law. The expressions "may presume" and "shall presume" are defined in Section 4 of the Indian Evidence Act, 1872 (in short "the Evidence Act"). The presumptions falling under the former category are compendiously known as "factual presumptions" or "discretionary presumptions" and those falling under the latter as "legal presumptions" or "compulsory presumptions". Unless the presumption is disproved or dispelled or rebutted, the Court can treat the presumption as tantamounting to proof. However, as a caution of prudence we have to observe that it may be unsafe to use that presumption to draw yet another discretionary presumption unless there is a statutory compulsion. (Vide Union of India Vs. T.R. Varma, AIR 1957 SC 882;  Gopal Narain Vs. State of U.P. & Ors., AIR 1964 SC 370; Maharaja Pratap Bahadur Singh Vs. Thakur Man Mohan Dey & Ors., AIR 1966 SC 1931, Ajit Singh Vs. State of Punjab & Ors., AIR 1967 SC 856; Ishwarlal Girdharlal Joshi & Ors. Vs. State of Gujarat & Anr., AIR 1968 SC 870; State of Punjab Vs. Satya Pal Dang & Ors., AIR 1969 SC 903;  Sone Lal & Ors Vs. State of U.P. & Ors., AIR 1978 SC 1142; R.S. Nayak Vs. A.P. Antulay & Anr., AIR 1986 SC 2045; Suresh Budharmal Kalani Vs. State of Maharashtra, (1998) 7 SCC 337; Municipal Board, Saharanpur Vs. Imperial  Tobacco of India Ltd. & Ors. AIR 1999 SC 264; K. Bhaskaran Vs. Sankaran Vaidhyan Balan & Anr., (1999) 7 SCC 510; Kiran Gupta Vs. State of U.P. & Ors., (2000) 7 SCC 719; Superintendent, Narcotics Control Bureau Vs. R. Paulsamy, (2000) 9 SCC 549; The State Government of NCT of Delhi Vs. Sunil & Anr., (2001) 1 SCC 652;  Updesh Kumar & Ors. Vs. Prithvi Singh & Ors., AIR 2001 SC 703; S. Venkatappa Vs. Narayanappa & Ors., (2001) 4 SCC 705; Karewwa & Ors. Vs. Hussensab Khansaheb Wajantri & Ors., AIR 2002 SC 504; T. Shankar Prasad Vs. State of A.P., (2004) 3 SCC 753; and Engineering Kamgar Union Vs. Electro Steels Castings Ltd. & Anr., (2004) 6 SCC 36).

In Narayan Govind Gavate Vs. State of Maharashtra & Ors., AIR 1977 SC 183, the Hon'ble Apex Court observed that the presumption provided in Illustration (e) of Section 114 of the Evidence Act is based on well-known maxim of law "omnia praesumuntur rite esse acta" (i.e. all acts are presumed to have been rightly and regularly done). The Court further held that this presumption is, however, one of the fact. It is an optional presumption and can be displaced by the circumstances, indicating that the power lodged in an authority or official has not been exercised in accordance with law.

In all these cases, it has been submitted that petitioners are of extraordinary merits and ought to have been selected on the qualifications possessed by them. However, the qualifications and merits of the selected candidates have not been mentioned anywhere. We had repeatedly put querries to the learned counsel for the petitioner as to why material facts including that relating to the qualification and merit of the selected candidates had not been mentioned in the petition, but to each querry a parrot-like reply came that the petitioners have no knowledge and that such querries were not expected from the Court, and therefore, it is not possible to give a reply. In absence of such required material, the question of inter se merits/comparative merits cannot be examined. The petitioners have failed to substantiate the averments made by them.

To sum up, the petitions have been filed on very vague and general allegations of mala fides which do not require any scrutiny in a writ jurisdiction. Court has been asked to proceed on general presumption that every appointment in the State of Uttar Pradesh is being made only on extraneous consideration, which is not permissible in view of the provisions of the Evidence Act. The orders passed by this Court on which such a heavy reliance has been placed by filing the photocopy of the newspaper cutting stood already vacated in the Special Appeal filed by the State.

The Hon'ble Supreme Court in State of Orissa Vs. Nalinikanta Muduli, AIR 2004 SC SC 4272 expressed its concern over citing a overruled judgment observing that a lawyer is an official of the Court and has a bounden duty to assist the Court and not to mislead it.

Petitions lack merit and are accordingly dismissed.

4.7.2005

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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