# Om Prakash v. State Of U.P. & Ors

- **Citation:** (2022) 1 ILRA 669
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-10
- **Case number:** Misc. Bench No.28953 of 2021
- **Bench:** Rakesh Srivastava, Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-v-state-of-u-p-ors-47492
- **Pages:** 6

## Headnote

C.S.C.

A.
Practice
&
Procedure
-
Indian
Constitution, 1950 - Article 226 - In the
present
case,
the
petitioner
being
a
complainant fails to establish any legal right
or able to show any breach of statutory duty
on the part of authorities. Thus he has no
locus to prefer the present writ. (Para 9 &
12)
Writ Petition Rejected. (E-10)

List of Cases cited:

## Text

1 All. Om Prakash Vs. State of U.P. & Ors.
669
the last date of submission of application
form as also that the last date for
submission
of
application
form
i.e.
30.11.2020
in
the
notification/
advertisement dated 27.10.2020 was not
extended
in
subsequent
notification/
advertisement, the candidature of the
petitioner can not be considered in ongoing
interview process.

22. Thus, for the reasons aforesaid,
this Court is of the view that the petitioner
is not entitled to the relief sought in the
present writ petition. The writ petition is
dismissed with no order as to costs.
----------
(2022)01ILR A669
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.12.2021

BEFORE

THE HON'BLE RAKESH SRIVASTAVA, J.
THE HON'BLE SHAMIM AHMED, J.

Misc. Bench No.28953 of 2021

Om Prakash ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Salil
Tripathi,
Gaurav
Singh,
Krishnat
Tripathi, Ragini Pandey, Shikhar Dixit

Counsel for the Respondents:
C.S.C.

A.
Practice
&
Procedure
-
Indian
Constitution, 1950 - Article 226 - In the
present
case,
the
petitioner
being
a
complainant fails to establish any legal right
or able to show any breach of statutory duty
on the part of authorities. Thus he has no
locus to prefer the present writ. (Para 9 &
12)
Writ Petition Rejected. (E-10)

List of Cases cited:

1. Ravi Yashwant Bhoir Vs Collector (2012) 4
SCC 407 (followed)

2. Dharam Raj Vs. St. of U.P. & ors. (2010) 2
AWC 1878 (All) (followed)

3. Ayaaubkhan Noorkhan Pathan Vs St. of Mah.
& ors. AIR 2013 SC 58
(Delivered by Hon'ble Rakesh Srivastava, J.
&
Hon'ble Shamim Ahmed, J.)

1. Heard Shri Salil Tripathi, learned
counsel for the petitioner and the learned
Standing counsel for State-respondent nos.
1and 2.

2. In view of the order proposed to be
passed, notice to respondent no.3 is
dispensed with.

3. This writ petition has been filed
praying inter alia the following reliefs:-

i) To issue a writ in the nature of
mandamus commanding the respondent
nos. 1 and 2 to take appropriate action
against the respondent no.3 within a fix
time frame.

ii) To issue a writ in the nature of
mandamus commanding the respondent
nos. 1 and 2 to take effective steps for
compliance of the (Annexure No.1)within
fix period of time.

4. Learned counsel for the petitioner
submits that respondent no.3 was initially
appointed in the year 1993 in Shri Gandhi
Kisan Inter College, Khadda on the post of
670 INDIAN LAW REPORTS ALLAHABAD SERIES
L.T. Grade Teacher which was vacated due
to the sudden death of one Sri Madan Rai,
for
temporary
period
and
in
the
appointment letter, the condition was
mentioned that till the incumbent joins
from the Public Service Commission, the
services of the respondent no.3 will
continue,
however,
it
came
to
the
knowledge of the petitioner that the
respondent No.3 was appointed on the post
of C.T.Grade Teacher instead of L.T.Grade
Teacher and the appointment was sought
on the basis of frivolous and concocted
documents.

5. It was further argued by the learned
counsel for the petitioner that respondent
no.3 was further promoted without having
requisite qualification as per the norms and
standard of the Public Service Commission.
The selection of the respondent no.3 is
without following the due procedure as
established by the law and the salary which
was drawn by the respondent no. 3 is loss
to the State Exchequer.

6. It was further argued by the learned
counsel for the petitioner that the services
of the respondent no.3 were regularized in
the
year
1913
without
any
proper
advertisement, thereafter the respondent
no.3 got himself transferred to Nehru Inter
College, Mansa Chappar on the same post.

7. Learned counsel for the petitioner
further argued that the appointment of the
respondent no.3 is on the basis of the
forged and fabricated documents and has
curtailed the right of the eligible candidate,
which is against the law and the salary
which has been paid to the respondent no.3
be recovered by the State authorities. In
this regard, one Moti Prasad has made a
complaint to the District Inspector of
Schools, Kushinagar on 19.7.2019. On the
complaint made by Shri Moti Prasad, some
orders have been passed by the concerned
District Inspector of Schools against
respondent no.3 but still he is working on
the post of C.T.Grade Teacher and till date
no action has been taken.

8. Per contra, learned Standing
counsel submits that petitioner has no locus
to file the present writ petition challenging
the appointment of respondent no. 3 as he
is not aggrieved person nor he has any
concern
with
the
appointment
of
respondent no.3 nor he was candidate of
the said post at any point of time. It was
further argued by the learned Standing
counsel appearing on behalf of State that
the petitioner has not made any complaint
against the respondent no.3 to any of the
authorities
and
even
though
the
complainant who is Moti Prasad, has not
turned up for filing the present writ
petition, therefore, the present writ petition
is totally misconceived and has been filed
by a third person who has no locus to
challenge the appointment of respondent
no.3 nor it is a Public Interest Litigation nor
there is any prayer for a writ of quo
warranto.

9. After considering the arguments
advanced by the learned counsel for the
parties and after perusal of the record, we
find that for a person to prefer the writ
petition, 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. Thus in order to prefer a
writ, the person entitled would be one who
has either been wrongly deprived of his
entitlement which he is legally entitled to
receive and it does not include any kind of
disappointment or personal inconvenience.
It is settled proposition of law that the
person who suffers from legal injury only
can challenge the act or action or order by
1 All. Om Prakash Vs. State of U.P. & Ors.
671
filing a writ petition inasmuch as the writ
petition under Article 226 of Constitution
of India is maintainable for enforcing a
statutory or legal right or when there is a
complaint by the petitioner that there is
breach of statutory duty on the part of
authorities. Thus, there must be a judicially
enforceable right for the enforcement of
which the writ jurisdiction can be resorted
to and not for the purpose of settlement of a
personal grievance. In the present case, the
petitioner fails to establish his any legal
right or able to show any breach of
statutory duty on the party of authorities.

10. The same view was observed by
the Hon'ble Supreme Court in the case of
Ravi Yashwant Bhoir Vs. Collector,
(2012) 4 SCC 407 with regard to the locus
of a complainant and was pleased to
observe 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."

11. The same view was taken by the
Division Bench of this Court in the case of
Dharam Raj Vs. State of U.P and others,
(2010) 2 AWC 1878 (All) with respect to
the locus of complainant and was pleased
to observe 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.

10. In the circumstances, the
petitioner cannot have any grievance in the
matter, and he is not an aggrieved person
rather he is a person annoyed,
672 INDIAN LAW REPORTS ALLAHABAD SERIES

11. 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.

12. According to our opinion a
"person aggrieved" means a person who is
wrongly 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.

13. It is settled law that a person
who suffers from legal injury only can
challenge the act/action/order etc. by filing
a writ petition. Writ petition under Article
226 of the Constitution is maintainable for
enforcing a 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 authorities. Therefore, there
must be a judicially enforceable right for
the
enforcement
of
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 satisfied 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 [Utkal University etc.
v. Dr. Nrusingha Charan Sarangi and Ors.
AIR 1999 SC 943 and Laxminarayan R.
Bhattad and Ors. v. State of Maharashtra
and Anr. (2003) 5 SCC 413].

14. Legal right is an averment of
entitlement arising out of law. It is, in fact,
an advantage or benefit conferred upon a
person by a rule of law, [Shanti Kumar R.
Canji v. Home Insurance Co. of New York
AIR 1974 SC 1719 and State of Rajasthan
v. Union of India and Ors. AIR 1977 SC
1361).

15. 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
1 All. Om Prakash Vs. State of U.P. & Ors.
673
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. MANU/SC/1151/1997 MANU/SC/
1151/1997 : (1997) 4 SCC 452, the Hon'ble
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.

16. The view taken by us that the
petitioner is not a person aggrieved, thus he
has no locus standi to file the present writ
petition thereby challenging the order dated
16.3.2009
passed
by
Sub-Divisional
Magistrate, Jaisinghpur, district Sultanpur
is also supported by the decision of this
Court in the case of Suresh Singh v.
Commissioner Moradabad Division 1993
(1) AWC 601, where it was held that in an
inquiry under Section 95(g) of the U.P.
Panchayat Raj Act, 1947, the complainant
who was Up-Pradhan could be a witness in.
an inquiry but had no locus standi to
approach this Court against the order of the
State authorities, for the reasons that none
of his personal statutory right are affected.

17. As such the petitioner has
no focus standi to file the present writ
petition
under
Article
226
of
the
Constitution of India. Even otherwise
having
regard
to
the
facts
and
circumstances of the case, we are not
inclined to exercise our discretionary
jurisdiction under Article 226 of the
Constitution of India."

12. When the facts of the instant case
are tested on the touchstone of the law laid
down in the aforesaid two judgments, it
clearly comes out that the petitioner has no
legal right of his own and neither has
suffered from any legal injury, rather is a
complainant, and thus would not have any
locus to prefer the present petition.

13. Further the Hon'ble Supreme
Court
in
the
case
of
Ayaaubkhan
Noorkhan
Pathan
Vs.
State
of
Maharashtra and others, AIR 2013 SC
58 was pleased to observe in paragraph 22
that under ordinary circumstances, a third
person, having no concern with the case at
hand, cannot claim to have any locus-standi
to raise any grievance whatsoever but in the
exceptional circumstances, the Court may
examine the issue and in exceptional
circumstances the Court may proceed suomotu. For the sake of convenience, the
relevant observations in the case of
Ayaaubkhan Noorkhan Pathan (supra)
are reproduced as under:-

"22. Thus, from the above it is
evident that under ordinary circumstances,
a third person, having no concern with the
case at hand, cannot claim to have any
locus-standi
to
raise
any
grievance
whatsoever. However, in the exceptional
circumstances as referred to above, if the
actual persons aggrieved, because of
674 INDIAN LAW REPORTS ALLAHABAD SERIES
ignorance, illiteracy, in articulation or
poverty, are unable to approach the court,
and a person, who has no personal agenda,
or object, in relation to which, he can grind
his own axe, approaches the court, then the
court may examine the issue and in
exceptional circumstances, even if his
bonafides are doubted, but the issue raised
by him, in the opinion of the court, requires
consideration, the court may proceed suomotu, in such respect."

14. This Court has gone through the
entire petition and no such averment has
been made anywhere in the entire petition
that the actual aggrieved persons because
of ignorance, illiteracy, in articulation or
poverty are unable to approach the Court
and in those circumstances the petitioner
has approached this Court. Thus, the
present
case
would
not
stand
the
exceptional circumstances as have been
spelt out by the Apex Court in the cases of
Ayaaubkhan Noorkhan Pathan (supra)
and Dharm Raj (supra).

15. Accordingly, we find that the
petitioner prima facie has no locus to file
the present writ petition challenging the
appointment of respondent no. 3, who is
working on the post of C.T.Grade Teacher.
The petitioner is also not an aggrieved
person nor he is complainant nor has filed
any
complaint
before
the
authority
concerned challenging the appointment of
respondent no.3. The objection raised by
the learned Standing counsel appears to be
justified regarding locus of the petitioner.

16. Accordingly, keeping in view the
aforesaid discussion, the writ petition is
dismissed.
----------
(2022)01ILR A674
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.10.2021

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE VIKAS BUDHWAR, J.

Writ A No. 14216 of 2021

Rajesh Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Akhilesh Kumar Pandey, Sri Punya Sheel
Pandey

Counsel for the Respondents:
C.S.C.,

A. Service Law - Pension - Constitutional
Validity - GO dated 08.12.2008: Clause
7(3)(gha) - Entitlement of life time family
pension is neither an unfettered nor a
fundamental
right,
as
the
same
is
governed by the statutory enactments so
issued from time to time and in vogue.
Nobody has right to receive family pension
except otherwise provided by the Rules and the
Schemes in that regard. (Para 12, 22)

B. Article 15(1) of the Constitution of
India is not attracted in the present case
and there is no violation of the same as the
Government Order dated 8.12.2008 does not
discriminate between same class of persons.
Instead it protects interest of the petitioner to
get family pension till the age of 25 years. (Para
18)

C. Concept of Valid Classification - Valid
discrimination
-
Article
16
of
the
Constitution
of
India
permits
a
valid
classification. A valid classification is based on a
just objective. A classification to be valid must
necessarily satisfy two tests. Firstly,
the
distinguishing rationale has to be based on a
just objective. And secondly, the choice of
differentiating one set of persons from another